Saturday, July 05, 2008

Invalidity under 112 P 2 in Fargo v. Iris

The CAFC affirmed a finding of indefiniteness. The CAFC noted:

A plain reading of claim 8 shows that there is an error. We reject Fargo’s
argument to the contrary. As the district court noted, “the phrase ‘second supports
other than the’ naturally leads the reader to expect a description of a further subset of
that category of supports known as ‘second supports.’” Summary Judgment Order, at
*13. Claim 8 as issued, however, does not identify the object of the phrase “other than
the.” Absent correction, “[t]he claim is invalid for indefiniteness because it is ‘insolubly
ambiguous’ and not ‘amenable to construction.’” Novo Indus., 350 F.3d at 1358
(quoting Exxon Research & Eng’g Co. v. United States, 265 F.3d 1371, 1375 (Fed. Cir.
2001)). Thus, the district court did not err by engaging in a claim correction analysis
under Novo Industries.

Accordingly, we next turn to the question of whether the district court properly
determined that it could not correct the error in claim 8 under Novo Industries.


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