Monday, July 18, 2005

North American Container v. Plastipak: a big deal in the beverage container business

In North American Container v. Plastipak et al., the CAFC affirmed the district court as to the interpretation of the claim term "generally convex" but altered the interpretation of "re-entrant portion." The patent in question is Reissue 36,639, derived from US 5,072,841.

The re-issue in question retained the 18 originally-allowed claims, but added 14 broader claims. Protests about the new claims were filed under 37 CFR 1.291(a).

On August 3, 1999, NAC filed suit against thirty-seven (37) defendants.

Of the various issues, Plastipak cited Elekta, 214 F.3d 1302 (CAFC 2000)for the proposition that claim construction does not necessarily include all embodiments in the specification.

There was an issue of prosecution disclaimer, and the CAFC cited Omega, 334 F.3d 1314 (CAFC 2003). The CAFC also cited DuPont v. Phillips, 849 F.3d 1430 (CAFC 1988) [sic: 849 F.2d 1430] for the proposition that limitations of the spec should not be imported into the claims. Of the recapture rule, the CAFC cited In re Clement, 131 F.3d 1364 (CAFC 1997).

Of an issue of deference to the PTO, the CAFC noted: "the examiner's basis for denying the protests ... demonstrates the examiner's inattention to the rule against recapture."


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