obvIPat - Obviously Patentable

The blog for inventors, in-house counsel, & entrepreneurs.

Archive for November, 2011

A Case of Missed Opportunities: The Denial of En Banc Rehearing of Retractable Technologies

by Orlando Lopez

When the CAFC denied en banc rehearing of Retractable Technologies v. Becton Dickinson,
the Court missed both the opportunity to make claim construction (claim interpretation) more certain and also whether to consider if some deference should be given to the claim interpretation provided by the trial judge.  The batting average of trial judges when it comes to claim construction, in terms of the number of claim constructions reversed by the CAFC, is about .500, which is good for baseball players, but causes consternation to trial judges (even though it generates work for trial attorneys).  The first question that was raised by the decision in Retractable Technologies is whether a claim interpretation based on the clear language of the claim where there are no ambiguities, that does not meet  the written description requirement or is not enabled, should be allowed.   Read the rest of this entry »