Chudik loses at CAFC

Finally, Dr. Chudik argues that Leonard does not disclose the “humeral implant” limitation of claim 5 because Leonard is directed to a glenoid implant and not a humeral implant. The patentability of an apparatus claim “depends on the claimed structure, not on the use or purpose of that structure.” Catalina Mktg. Int’l v. Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed. Cir. 2002); see also In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997) (“It is well settled that the recitation of a new intended use for an old product does not make a claim to that old product patentable.”) Thus, Dr. Chudik’s contention that his apparatus will be used in a humeral, as opposed to a glenoid, implant is not a patentable distinction, and cannot prevent Leonard from anticipating the claim.