More on cattle castration
Further to the earlier post on IPBiz about the Callicrate case, the two patents asserted by patentee were the '329 and the '553. There was an issue of a proper claim of priority of the '329 and the '553 to the earlier '434 patent.
The '329 was a continuation-in-part of the '325 patent, which was a continuation of the '434. The '553 was a divisional of the '095 patent, which was a continuation of the '329. Thus, one notes that both of the asserted patents (the '329 and the '553) were linked to the claimed priority patent (the '434) through a continuation-in-part (the '329 was a continuation-in-part of the '325).
The defendant Wadsworth asserted that the asserted claims did not find support under 35 USC 112 P 1 from the specification of the priority case, the '434. The initial articulation looked like a written description issue, although the CAFC ultimately discussed enablement. What happened at district court, and the briefs of the parties, as to which of written description/enablement was at issue is murky, at least in the CAFC decision.
A different blog portrayed this as an "incorporation by reference" case, in that the '329 and the '553 did not incorporate by reference the text of the '434. I did not find an incorporation by reference discussion in the CAFC case. The proper query is whether the claims of the '329 and the '553 are supported by the specification of the '434 under 35 USC 112.
An issue was that the "background" section seemed to argue against a caulking-gun type mechanism, as did some arguments during the prosecution of the '434. A quirky part of the case is that an element that was somewhat distinguished (caulking gun type mechanism) and not claimed in the '434 became part of the infringement net of the claims of the later '329 and '553.
The '329 was a continuation-in-part of the '325 patent, which was a continuation of the '434. The '553 was a divisional of the '095 patent, which was a continuation of the '329. Thus, one notes that both of the asserted patents (the '329 and the '553) were linked to the claimed priority patent (the '434) through a continuation-in-part (the '329 was a continuation-in-part of the '325).
The defendant Wadsworth asserted that the asserted claims did not find support under 35 USC 112 P 1 from the specification of the priority case, the '434. The initial articulation looked like a written description issue, although the CAFC ultimately discussed enablement. What happened at district court, and the briefs of the parties, as to which of written description/enablement was at issue is murky, at least in the CAFC decision.
A different blog portrayed this as an "incorporation by reference" case, in that the '329 and the '553 did not incorporate by reference the text of the '434. I did not find an incorporation by reference discussion in the CAFC case. The proper query is whether the claims of the '329 and the '553 are supported by the specification of the '434 under 35 USC 112.
An issue was that the "background" section seemed to argue against a caulking-gun type mechanism, as did some arguments during the prosecution of the '434. A quirky part of the case is that an element that was somewhat distinguished (caulking gun type mechanism) and not claimed in the '434 became part of the infringement net of the claims of the later '329 and '553.
posted by Lawrence B. Ebert at 9:31 PM
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