Tuesday, May 11, 2010

Concerning a shoulder-mounted harness for holding a percussion instrument

In Randall May, a change in claim construction changes the outcome.

The words "common sense" appear:

However, in reviewing a district court's claim construction, this
court takes into account the views of the trial judge. Nazomi, 403 F.3d at 1371. Though
we review those views and the record de novo, “common sense dictates that the trial
judge's view will carry weight.” Id. (quoting Cybor Corp. v. FAS Techs., Inc., 138 F.3d
1448, 1454 (Fed. Cir. 1998) (Plager, J., concurring)).

Nevertheless, the district court judge did not fare well here:

The district court’s elision of the claim limitation (supported by the specification) that the shoulder
supporting members are either changeable or adjustable is legal error because all the
limitations in a claim must be considered meaningful. Cablestrand Corp. v. Wallshein,
29 F.3d 644 (Fed. Cir. 1994).

This had consequences:

The ’866 patent discloses
shoulder supporting members that are changeable or adjustable, whereas those of
DEG’s harness are not adjustable and cannot be changed without simultaneously
jettisoning the back bar and Y-shaped chest piece at the same time. Literal
infringement requires that the accused device literally embodies every limitation of the
claim. Kraft Foods, Inc. v. Int'l Trading Co., 203 F.3d 1362, 1370 (Fed. Cir. 2000).

Of an agreement:

California law requires at least a preliminary consideration of all
credible evidence offered to prove the intention of the parties. Pacific Gas & Elec. Co.
v. G. W. Thomas Drayage & Rigging Co., 442 P.2d 641, 645. (Cal. 1968).

Under California law:

‘The test of admissibility of extrinsic evidence to explain the meaning of a
written instrument is not whether it appears to the court to be plain and
unambiguous on its face, but whether the offered evidence is relevant to
prove a meaning to which the language of the instrument is reasonably
susceptible.’ To determine whether offered evidence is relevant to prove
such a meaning the court must consider all credible evidence offered to
prove the intention of the parties. ‘If the court decides, after considering
this evidence, that the language of a contract, in the light of all the
circumstances, is ‘fairly susceptible of either one of the two interpretations
contended for’, extrinsic evidence to prove either of such meanings is

Delta Dynamics, Inc. v. Arioto, 446 P.2d 785, 787 (Cal. 1968) (quoting Pacific Gas, 442
P.2d at 645).


Moreover, an
interpretation of the 2003 Agreement to mean that DEG contractually agreed that it
would never infringe any patent that ever issued to May, anywhere, and until the end of
time, is plainly unreasonable.


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