Claim construction of D Utah vacated in Free Motion Fitness v. Cybex
The patents in question were 6,238,323 and 6,458,061 of Free Motion Fitness.
Procedurally, the CAFC was reviewing a summary judgment of noninfringement by the federal District Court of Utah. The CAFC noted that the review was without deference, citing to Howmedica, 401 F.3d 1367. The CAFC also noted that review of prosecution history estoppel limitations on doctrine of equivalents were without deference, citing Bus. Objects 393 F.3d 1366.
Of the infringement issue, the CAFC noted that the addition of uncomplained elements does not typically defeat a claim of infringement when one deals with the transitional term "comprising." That is, if the claim says comprising A, B, and C, there is infringement if A, B, and C are present even if elements D and E are also present. The CAFC cited Crystal Semiconductor, 246 F.3d 1346.
An issue was the construction of the term "first pivot point." Another issue was the meaning of the term "adjacent," which turned into a discussion of Phillips. The CAFC found that the specification suggests that "adjacent" be considered "not distant." [Nautilus attempted a "preserving validity" argument which was rejected by the CAFC.] Another issue in claim construction was the meaning of "a cable linking." The doctrine of claim differentiation was invoked.
There was an issue of disclaimer of claim scope. Southwall Technologies, 54 F3d 1570 was cited. The Southwall case is generally cited for disclaimer of claim scope in the context of literal infringement.
Judge Prost dissented. Of the construction of "adjacent," the Judge noted Connecticut is near New Jersey, but it is not adjacent. Judge Prost's argument was that the majority started with a broad definition of "adjacent" and consulted the written description to see if it were narrowed. This is as opposed to starting with a narrow definition and see if the written description disclosed anything broader. He cited Phillips, 415 F.3d 1303, 1321. Judge Prost found this case more like Insituform, 99 F.3d 1098, than did the majority.
***
US 6,238,323 (issued May 29, 2001) has been cited by six patents (one of which is 6,458,061) . It claims no priority to earlier applications.
The first claim of the '323 recites:
An exercise apparatus, comprising:
a resistance assembly;
a cable linking a first extension arm and a second extension arm to the resistance assembly, wherein the cable includes a first strand and a second strand;
the first extension arm includes a first end selectively supported adjacent the resistance assembly and a free second end from which the first strand of the cable extends for engagement by a user;
the second extension arm includes a first end selectively supported adjacent the resistance assembly and a free second end from which the first strand of the cable extends for engagement by a user; and
wherein the first extension arm extends away from the second extension arm, moving the second end of the first extension arm away from the second end of the second extension arm to define an extended opposed spacing of the first and second strands and the first end of the first extension arm is pivotally supported adjacent the resistance assembly at a first pivot point for rotation about a first axis, the first end of the first extension arm includes a pulley having an axis of rotation offset from the first pivot point and rotating about an axis substantially parallel to the first axis such that cable tension does not vary as the first extension arm is selectively rotated, and wherein the first end of the second extension arm is pivotally supported adjacent the resistance assembly at a second pivot point for rotation about a second axis, the first end of the second extension arm includes a pulley having an axis of rotation offset from the second pivot point and rotating about an axis substantially parallel to the second axis such that cable tension does not vary as the second extension arm is selectively rotated.
Claim 15 recites:
An exercise apparatus, comprising:
a resistance assembly;
a cable linking a first extension arm and a second extension arm to the resistance assembly, wherein the cable includes a first strand and a second strand;
the first extension arm includes a first end selectively supported adjacent the resistance assembly and a free second end from which the first strand of the cable extends for engagement by a user;
the second extension arm includes a first end selectively supported adjacent the resistance assembly and a free second end from which the first strand of the cable extends for engagement by a user; and
wherein the first extension arm is pivotally supported adjacent the resistance assembly and the second extension arm is pivotally supported adjacent the resistance assembly and the first end of the first extension arm is pivotally supported adjacent the resistance assembly at a first pivot point for rotation about a first axis, the first end of the first extension arm includes a pulley having an axis of rotation offset from the first pivot point and rotating about an axis substantially parallel to the first axis such that cable tension does not vary as the first extension arm is selectively rotated; and wherein the first end of the second extension arm is pivotally supported adjacent the resistance assembly at a second pivot point for rotation about a second axis, the first end of the second extension arm includes a pulley having an axis of rotation offset from the second pivot point and rotating about an axis substantially parallel to the second axis such that cable tension does not vary as the second extension arm is selectively rotated.
US 6,458,061 (issued October 1, 2002) has been cited by no patents. The application for the '061 is a continuation of application Ser. No. 09/395,194, filed Sep. 14, 1999, and now U.S. Pat. No. 6,238,323.
The first claim of the '061 recites:
An exercise apparatus, comprising:
a resistance assembly;
a cable linking a first extension arm and a second extension arm to the resistance assembly, wherein the cable includes a first strand and a second strand;
the first extension arm includes a first end pivotally supported adjacent the resistance assembly at a first pivot point rotating about a first axis and a free second end from which the first strand of the cable extends for engagement by a user, the first end of the first extension arm further including a pulley having an axis of rotation offset from the first pivot point and rotating about an axis substantially parallel to the first axis;
the second extension arm includes a first end pivotally supported adjacent the resistance assembly at a second pivot point rotating about a second axis and a free second end from which the first strand of the cable extends for engagement by a user, the first end of the second extension arm further including a pulley having an axis of rotation offset from the second pivot point and rotating about an axis substantially parallel to the second axis.
Claim 12 recites:
An exercise apparatus, comprising:
a resistance assembly;
a cable linking a first extension arm and a second extension arm to the resistance assembly, wherein the cable includes a first strand and a second strand;
wherein the first extension arm includes a first end pivotally supported adjacent the resistance assembly at a first pivot point rotating about a first axis and a free second end from which the first strand of the cable extends for engagement by a user, the first end of the first extension arm further including a first pulley having an axis of rotation offset from the first pivot point and rotating about an axis substantially parallel to the first axis; and
wherein the second extension arm includes a first end pivotally supported adjacent the resistance assembly at a second pivot point rotating about a second axis and a free second end from which the first strand of the cable extends for engagement by a user, the first end of the second extension arm further including a second pulley having an axis of rotation offset from the second pivot point and rotating about an axis substantially parallel to the second axis, and further comprising
a first pivoting pulley assembly coupled to the second end of the first extension arm; and
a second pivoting pulley assembly coupled to the second end of the second extension arm.
***
One sees immediately that this is NOT a patent litigation wherein the asserted patents were highly cited. Further, both parent and continuation patents were asserted (not just the continuation). The continuation application did seem to product broader claims.
Both of these observations run against the conventional wisdom of legal academics giving advice on HR 2795.
Procedurally, the CAFC was reviewing a summary judgment of noninfringement by the federal District Court of Utah. The CAFC noted that the review was without deference, citing to Howmedica, 401 F.3d 1367. The CAFC also noted that review of prosecution history estoppel limitations on doctrine of equivalents were without deference, citing Bus. Objects 393 F.3d 1366.
Of the infringement issue, the CAFC noted that the addition of uncomplained elements does not typically defeat a claim of infringement when one deals with the transitional term "comprising." That is, if the claim says comprising A, B, and C, there is infringement if A, B, and C are present even if elements D and E are also present. The CAFC cited Crystal Semiconductor, 246 F.3d 1346.
An issue was the construction of the term "first pivot point." Another issue was the meaning of the term "adjacent," which turned into a discussion of Phillips. The CAFC found that the specification suggests that "adjacent" be considered "not distant." [Nautilus attempted a "preserving validity" argument which was rejected by the CAFC.] Another issue in claim construction was the meaning of "a cable linking." The doctrine of claim differentiation was invoked.
There was an issue of disclaimer of claim scope. Southwall Technologies, 54 F3d 1570 was cited. The Southwall case is generally cited for disclaimer of claim scope in the context of literal infringement.
Judge Prost dissented. Of the construction of "adjacent," the Judge noted Connecticut is near New Jersey, but it is not adjacent. Judge Prost's argument was that the majority started with a broad definition of "adjacent" and consulted the written description to see if it were narrowed. This is as opposed to starting with a narrow definition and see if the written description disclosed anything broader. He cited Phillips, 415 F.3d 1303, 1321. Judge Prost found this case more like Insituform, 99 F.3d 1098, than did the majority.
***
US 6,238,323 (issued May 29, 2001) has been cited by six patents (one of which is 6,458,061) . It claims no priority to earlier applications.
The first claim of the '323 recites:
An exercise apparatus, comprising:
a resistance assembly;
a cable linking a first extension arm and a second extension arm to the resistance assembly, wherein the cable includes a first strand and a second strand;
the first extension arm includes a first end selectively supported adjacent the resistance assembly and a free second end from which the first strand of the cable extends for engagement by a user;
the second extension arm includes a first end selectively supported adjacent the resistance assembly and a free second end from which the first strand of the cable extends for engagement by a user; and
wherein the first extension arm extends away from the second extension arm, moving the second end of the first extension arm away from the second end of the second extension arm to define an extended opposed spacing of the first and second strands and the first end of the first extension arm is pivotally supported adjacent the resistance assembly at a first pivot point for rotation about a first axis, the first end of the first extension arm includes a pulley having an axis of rotation offset from the first pivot point and rotating about an axis substantially parallel to the first axis such that cable tension does not vary as the first extension arm is selectively rotated, and wherein the first end of the second extension arm is pivotally supported adjacent the resistance assembly at a second pivot point for rotation about a second axis, the first end of the second extension arm includes a pulley having an axis of rotation offset from the second pivot point and rotating about an axis substantially parallel to the second axis such that cable tension does not vary as the second extension arm is selectively rotated.
Claim 15 recites:
An exercise apparatus, comprising:
a resistance assembly;
a cable linking a first extension arm and a second extension arm to the resistance assembly, wherein the cable includes a first strand and a second strand;
the first extension arm includes a first end selectively supported adjacent the resistance assembly and a free second end from which the first strand of the cable extends for engagement by a user;
the second extension arm includes a first end selectively supported adjacent the resistance assembly and a free second end from which the first strand of the cable extends for engagement by a user; and
wherein the first extension arm is pivotally supported adjacent the resistance assembly and the second extension arm is pivotally supported adjacent the resistance assembly and the first end of the first extension arm is pivotally supported adjacent the resistance assembly at a first pivot point for rotation about a first axis, the first end of the first extension arm includes a pulley having an axis of rotation offset from the first pivot point and rotating about an axis substantially parallel to the first axis such that cable tension does not vary as the first extension arm is selectively rotated; and wherein the first end of the second extension arm is pivotally supported adjacent the resistance assembly at a second pivot point for rotation about a second axis, the first end of the second extension arm includes a pulley having an axis of rotation offset from the second pivot point and rotating about an axis substantially parallel to the second axis such that cable tension does not vary as the second extension arm is selectively rotated.
US 6,458,061 (issued October 1, 2002) has been cited by no patents. The application for the '061 is a continuation of application Ser. No. 09/395,194, filed Sep. 14, 1999, and now U.S. Pat. No. 6,238,323.
The first claim of the '061 recites:
An exercise apparatus, comprising:
a resistance assembly;
a cable linking a first extension arm and a second extension arm to the resistance assembly, wherein the cable includes a first strand and a second strand;
the first extension arm includes a first end pivotally supported adjacent the resistance assembly at a first pivot point rotating about a first axis and a free second end from which the first strand of the cable extends for engagement by a user, the first end of the first extension arm further including a pulley having an axis of rotation offset from the first pivot point and rotating about an axis substantially parallel to the first axis;
the second extension arm includes a first end pivotally supported adjacent the resistance assembly at a second pivot point rotating about a second axis and a free second end from which the first strand of the cable extends for engagement by a user, the first end of the second extension arm further including a pulley having an axis of rotation offset from the second pivot point and rotating about an axis substantially parallel to the second axis.
Claim 12 recites:
An exercise apparatus, comprising:
a resistance assembly;
a cable linking a first extension arm and a second extension arm to the resistance assembly, wherein the cable includes a first strand and a second strand;
wherein the first extension arm includes a first end pivotally supported adjacent the resistance assembly at a first pivot point rotating about a first axis and a free second end from which the first strand of the cable extends for engagement by a user, the first end of the first extension arm further including a first pulley having an axis of rotation offset from the first pivot point and rotating about an axis substantially parallel to the first axis; and
wherein the second extension arm includes a first end pivotally supported adjacent the resistance assembly at a second pivot point rotating about a second axis and a free second end from which the first strand of the cable extends for engagement by a user, the first end of the second extension arm further including a second pulley having an axis of rotation offset from the second pivot point and rotating about an axis substantially parallel to the second axis, and further comprising
a first pivoting pulley assembly coupled to the second end of the first extension arm; and
a second pivoting pulley assembly coupled to the second end of the second extension arm.
***
One sees immediately that this is NOT a patent litigation wherein the asserted patents were highly cited. Further, both parent and continuation patents were asserted (not just the continuation). The continuation application did seem to product broader claims.
Both of these observations run against the conventional wisdom of legal academics giving advice on HR 2795.
posted by Lawrence B. Ebert at 5:12 PM
0 Comments:
Post a Comment
<< Home