Supreme Court Looks Ready to Reverse Long-Standing Presumption of Patent Market Power in Antitrust Tying Cases

Yesterday, the Supreme Court heard oral argument in the antitrust tying case of Independent Ink v. Illinois Tool Works. News reports indicate that the Justices may be ready to reverse the long-standing rule that a patent is presumed to create market power. The Federal Circuit had earlier invited Supreme Court review by criticizing the market power presumption as "wobbly and moth-eaten." (See our post here.) Reversal of the rule would favor patentees in pursuing generic manufacturers.

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Supreme Court to Review eBay Case on Injunctions in Patent Cases

Case: eBay Inc. v. MercExchange, No. 05-130 (S. Ct. 11/28/05)

The Supreme Court will review the question of whether a permanent injunction should be automatically granted after a finding of patent infringement. The question of when injunctions should be granted in patent cases has been hotly debated, and was a subject of the Proposed Patent Reform Act of 2005.

The Court's order states:

The petition for a writ of certiorari is granted. In addition to the Question presented by the petition, the parties are directed to brief and argue the following Question: "Whether this Court should reconsider its precedents, including Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405 (1908), on when it is appropriate to grant an injunction against a patent infringer."

The Continental Paper Bag decision mentioned in the Court's order held that a patentee could obtain an injunction despite non-use of the patent:

The next contention of the petitioner is that a court of equity has no jurisdiction to restrain the 'infringement of letters patent the invention covered by which has long and always and unreasonably beed held in nonuse . . . instead of being made beneficial to the art to which it belongs.' It will be observed that it is not urged that nonuse merely of the patent takes jurisdiction from equity, but an unreasonable nonuse. And counsel concedes indulgence to a nonuse which is 'nonchargeable to the owner of the patent,'-as lack of means, or lack of ability or opportunity to induce others to put the patent to use. In other words, a question is presented, not of the construction of the law simply, but of the conduct of the patentee as contravening the supposed public policy of the law.
* * *
The right which a patentee receives does not need much further explanation. We have seen that it has been the judgment of Congress from the beginning that the sciences and the useful arts could be best advanced by giving an exclusive right to an inventor. The only qualification ever made was against aliens, in the act of 1832. That act extended the privilege of the patent law to aliens, but required them 'to introduce into public use in the United States the invention or improvement within one year from the issuing thereof,' and indulged no intermission of the public use for any period longer than six months. A violation of the law rendered the patent void. The act was repealed in 1836. It is manifest, as is said in Walker on Patents, 106, that Congress has not 'overlooked the subject of nonuser of patented inventions.' And another fact may be mentioned. In some foreign countries the right granted to an inventor is affected by nonuse. This policy, we must assume, Congress has not been ignorant of nor of its effects. It has, nevertheless, selected another policy; it has continued that policy through many years. We may assume that [210 U.S. 405, 430] experience has demonstrated its wisdom and beneficial effect upon the arts and sciences.

From the character of the right of the patentee we may judge of his remedies. It hardly needs to be pointed out that the right can only retain its attribute of exclusiveness by a prevention of its violation. Anything but prevention takes away the privilege which the law confers upon the patentee. If the conception of the law that a judgment in an action at law is reparation for the trespass, it is only for the particular trespass that is the ground of the action. There may be other trespasses and continuing wrongs and the vexation of many actions. These are well- recognized grounds of equity jurisdiction, especially in patent cases, and a citation of cases is unnecessary. Whether, however, as case cannot arise where, regarding the situation of the parties in view of the public interest, a court of equity might be justified in withholding relief by injunction, we do not decide.

The New York Times report on the case can be found here.

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Generic Drug Manufacturer Properly Shut Down by Preliminary Injunction

Case: Pfizer v. Teva Pharmaceuticals USA, Inc., No. 05-1331 (Fed Cir. 11/22/05)

The One Sentence Summary: A preliminary injunction against a generic drug manufacturer was affirmed after consideration of issues of claim construction, issue estoppel, doctrine of equivalents, vitiation and weighing of the harms.


What They Were Fighting About: Pfizer had sued Teva and Ranbaxy for infringement of its patent on stabilizing a hypertension drug. Teva and Ranbaxy had been manufacturing a generic version. The district court granted a preliminary injunction against defendants, and the Federal Circuit panel affirmed.

Federal Circuit Holdings:

• The district court properly construed claim language providing for stabilization of the compound with “saccharides.” This claim language was interpreted to include polysaccharides, and not just sugars as defendants claimed. The claim language did not use the narrower term “sugars.”
• The claim was not narrowed due to the phrase “saccharides (i.e., sugars)" in the specification. The claim language should be read in the context of the entire specification, and broader language existed in other sections.
• Extrinsic evidence from technical dictionaries, treatises and expert testimony supported the conclusion that "saccharides" was broader than the term "sugars."
• A stipulated construction of the term "saccharides" from earlier litigation between Teva and Warner Lambert did not control the interpretation of the term here. There was no issue preclusion where the stipulation clearly stated that its effect was limited to the earlier litigation.
• The district court properly found that plaintiffs were likely to prevail in showing infringement. Plaintiffs need not have tested the accused product in order to prevail in a preliminary injunction.
• In applying the doctrine of equivalents, the disclosure-dedication rule did not apply. The patents did not dedicate the stabilizing agent to the public domain by listing it as a disintegrating agent. Disclosure-dedication requires disclosure as an alternative to the relevant claim limitation. There was no disclosure of microcrystalline cellulose as an alternative to "saccharides."
• The "all limitations" rule did not preclude application of the doctrine of equivalents because holding microcrystalline cellulose was equivalent to a "saccharide" did not vitiate the claim limitation and render it meaningless.
• The district court properly presumed irreparable harm to the patentee absent an injunction. Defendants failed to rebut the presumption. A narrow license granted by patentee to one generic manufacturer did not show that there was no harm.
• An injunction's harm to the defendant in loss of market share and customer relationships was outweighed by the harm to the patentee in loss of exclusivity due to infringement.
• The policy of ANDA in encouraging low priced generics was not a public interest that prevented issuance of an injunction.

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Single Claim Covering Both Apparatus And Method Found Invalid For Indefiniteness

Case: IPXL Holdings, LLC v. Amazon.com, Inc., 05-1009, -1487 (Fed. Cir. 11/21/2005)

The One Sentence Summary: In an issue of first impression, the Federal Circuit upheld a ruling on summary judgment that a single claim covering both an apparatus and method was invalid as indefinite; it also reversed an attorneys' fees award where the motion for fees was not filed within the 14-day rule set by FRCP 54.


What They Were Fighting About: The plaintiff, IPXL, claimed Amazon's 1-step shopping system infringed its patent. The district court found both that the pertinent claims in that patent were invalid and that there was no infringement, and then awarded Amazon its fees under 35 U.S.C. section 285, finding that the case was exceptional, notwithstanding that the motion for fees was filed out of time. The Federal Circuit upheld the finding of invalidity on the basis of anticipation and indefiniteness, and so did not reach the question of infringement, and then reversed the attorneys' fee award as untimely.

Federal Circuit Holdings:

• In an issue of first impression for the court, it held that a single claim covering both an apparantus and a method of use of that apparatus is invalid. Previously the Board of Patent Appeals had taken that position, reasoning that the statutory class of invention was important to determining patentability and infringement. For example, a buyer or seller of the apparatus could not know whether it could later be held liable for contributory infringement because the subsequent user of the apparatus later performed the claimed method. The Federal Circuit agreed with that reasoning.
  
• For example, here the claim first described a system, and then included the language "and the user uses the input means . . . ." The court found the claim, by reciting both a system and method, was invalid under section 112, paragraph 2.
  
• The court found the remainder of the claims at issue invalid because anticipated by a prior patent. IPXL argued the prior patent did not disclose the limitation "displaying transaction information on a single screen." The court disagreed.
  
• For example, IPXL had argued that the prior patent's use of the term "lead through display" indicated a series of screens; the court found that it referred to a physical component, not the image presented, recognizing that in fact the prior patent had used four different names for the same component, one of which was "lead through display."
  
• The court also looked to the prior patent's description, which made clear that upon commencement of the "interaction process" the user could simply indicate the desired transaction and it would be completed -- so, the court reasoned, no transaction information needed to be entered before the single screen displayed multiple possible transactions, and from that single screen the transaction could be completed. The selection of which transactions were displayed was based on prior transactions with the user.
  
• Finally, the court held that the "correct was to perfect a claim to attorney fees under 35 U.S.C. section 285 is through compliance with Fed. R. Civ. P. 54." Amazon filed its motions for fees 17 days after entry of judgment, whereas Rule 54 required such a motion within 14 days of judgment. Amazon did not attempt to excuse the untimely motion by claiming, for example, "excusable neglect," the standard the district court was required to apply before exercising its discretion to enlarge time under Rule 6. Therefore, the court found no basis for exempting Amazon's fee request from compliance with the time limits set by Rule 54.
  
  

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Trade Secret Claim Failed to Show That Secret Aspects of a Design Were Used

Case: Stratienko v. Cordis Corp. No. 04-6349 (6th Cir. 11/18/05)

The One Sentence Summary: In an idea-submission trade secret case involving the alleged theft of a catheter design, summary judgment for the defendant was affirmed because the plaintiff inventor failed to present evidence that the defendant's design incorporated secret and innovative aspects of plaintiff's design.


What They Were Fighting About: Plaintiff Stratienko submitted a catheter design to defendant Cordis under a confidentiality agreement. In-house counsel for Cordis reviewed the design and rejected it. Cordis then began selling a catheter that plaintiff claimed incorporated his design, and plaintiff sued for trade secret misappropriation, breach of the confidentiality agreement and conversion under Tennessee law.

Sixth Circuit Holdings:

• The declarations of defendants' employees, although self-interested, provided sufficient basis for granting summary judgment when there was no reason to doubt their credibility.
• Leaving plaintiff's proposal in an unlocked office did not allow an inference that it was used by other employees of defendant.
• Plaintiff's evidence of access to his design and similarity of the Cordis product was insufficient circumstantial evidence to avoid summary judgment. Plaintiff failed to show that the innovative features of his design were in the Cordis product.
• Tennessee courts would likely hold that circumstantial evidence alone can be used to infer defendant's use of a trade secret because most other courts have so held.
• Plaintiff failed to present sufficient circumstantial evidence of use because he failed to identify the secret features of his design, and to show that those were used by Cordis.
• Tennessee law does not allow a tort of conversion for intangible property such as trade secrets.
  
  

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Eisenhower Biography Was a Work for Hire Under 1909 Copyright Act

Case: Twentieth Century Fox v. Entertainment Distributing, No. 03-57052, 04-55410, 03-57234 (9th Cir. 11/18/05)

The One Sentence Summary: A copyright infringement verdict for plaintiff Twentieth Century Fox was affirmed where plaintiff owned a valid copyright in an Eisenhower biography that had been created as a work for hire under the 1909 Copyright Act.


Ninth Circuit Holdings:

• Plaintiff owned a valid copyright to an Eisenhower biography which was created as a work for hire. Under the 1909 Copyright Act, an independent contractor can create a work for hire if the work was created at the "instance and expense" of the hiring party.
• The biography was created at the publisher's "instance" because Eisenhower was initially reluctant to write a biography and had to be persuaded.
• The publisher had a sufficient degree of control and supervision over the work to make it a work for hire.
• The work for hire presumption was not rebutted because there was no evidence that Eisenhower intended to own the copyright for his work. A later written agreement providing that Eisenhower assigned his rights in the book to the publisher did not establish that he intended to own the copyright before the assignment.
• The district court did not err in granting attorneys' fees to plaintiff based on success on the copyright claims.
  
  

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Patent Not Invalidated by Earlier Possession of the Invention by Others Who Did Not Appreciate What They Had

Case: Invitrogen v. Clontech, No. 04-1039, 04-1040 (Fed Cir. 11/18/05)

The One Sentence Summary: The panel reversed summary judgment of invalidity based upon a prior conception and later reduction to practice under 35 U.S.C. § 102(g) when a jury could conclude that the earlier inventors had not appreciated what had been invented.

What They Were Fighting About: Invitrogen owned patents for mutant reverse transcriptase (RT) with no RNase H activity - this enzyme is an effective tool for cloning DNA. Invitrogen reduced the invention to practice on January 27, 1987. Two other researchers at Columbia, Goff and Tanese, had isolated mutant RT in 1984, but did not confirm that the mutants lacked RNase H activity until March 1987 when a more sensitive test became available. The district court held that Goff had conceived the invention first and diligently reduced it to practice, after which Invitrogen consented to entry of final judgment of invalidity under 35 U.S.C. § 102(g).

Federal Circuit Holdings:

• Clontech had the burden of proving with clear and convincing evidence that Goff had conceived of the invention before Invitrogen, and diligently reduced it to practice.
• Conception requires appreciation. Accidental creation of the invention without appreciation of what has been created is not conception. The invention goes to the person who first realizes the invention and can describe it to others.
• In order to declare a patent invalid under § 102(g), the accused infringer must demonstrate prior conception with objective corroboration of when the prior inventor understood the invention.
• Clontech's expert improperly made conclusory statements that Goff had conceived of the invention in 1984, but did not back it up with explanations of the underlying notebook entries. Attorney argument explaining the notebook entries without expert backup was insufficient on summary judgment.
• The patent sufficiently enabled the invention although it described only one method of achieving the mutations. Alternate methods of making mutants that were known to one of skill in the art without undue experimentation were also within the scope of the invention when the claims were not limited to a single method.
• The patent claims provided a sufficient written description under 35 U.S.C. § 112 without providing DNA sequences of RT because the sequences were well known in the art.
• The district court properly construed the claims in granting partial summary judgment of infringement. Arguments in the parent application about different claim language did not create an estoppel as to different but similar claim language in the later application.
• Summary judgment was proper despite a conflict in expert testimony as to interpretation of gel assays when there was no support for the position taken by defendant's expert.
  
  

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Expert's Analysis of Trade Secret Damages Was Flawed Due to Failure to Consider Effects of Dot Com Crash in Damages Analysis

Case: Microstrategy Inc. v. Business Objects, No. 04-1572 (Fed Cir. 11/17/05)

The One Sentence Summary: In a patent infringement and trade secret case, an expert's damage analysis was properly excluded under the Daubert test (Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 589 (1993)) where the expert ignored the dot com crash and a huge drop in plaintiff's stock due to accounting errors, and failed to link the damages to specific misconduct.


What They Were Fighting About: Microstrategy sued Business Objects for infringement of a patent for delivering data to various output devices such as cell phones, PDAs or email. It also sued for trade secret misappropriation, associated with Business Object's hiring of four former Microstrategy employees.

Federal Circuit Holdings:

• The district court properly construed the claim language and granted summary judgment of non-infringement. The patent required that the data be associated with more than one type of device-specific formatted output data. Because the accused device only generated one type of output, it did not have the multiple output styles required by the patent.
• The district court correctly found no infringement by the doctrine of equivalents because plaintiff did not present a detailed analysis of this theory.
• On the business tort claims, the panel applied Fourth Circuit law in holding that the district court properly excluded expert reports and expert testimony from plaintiff's damages expert. The initial report was excluded under the Daubert test because the expert attributed all damages to Business Object's alleged torts while ignoring the burst of the dot com bubble and a major accounting error that tanked Microstrategy's stock. The report also failed to link any single instance of misconduct to a specific amount of damages, and the proffered supplemental reports were late.
• The district court properly excluded other damages evidence proffered by plaintiff that had not been disclosed in response to an interrogatory requesting all damages evidence.
• After a bench trial on the trade secrets claim, the district court properly granted an injunction against further use of two trade secrets in the possession of Business Objects. Summary judgment of no damages was appropriate where the amount was not shown with reasonable certainty and no causation was shown.
• The district court erred in finding that a non-solicitation clause in the employee contracts was unenforceable under Virginia law. The prohibition in the clause against inducing employees, customers or agents to terminate or modify their relationship with Microstrategy was not ambiguous.
• On its claim of tortious interference with contract, plaintiff failed to show causation of any damages.
• The district court properly dismissed claims under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, due to a failure to show damages with reasonable certainty and to establish causation.
• The tort claim for conspiracy to interfere with Microstrategy's business was preempted by the Virginia Trade Secrets Act.
  
  

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Adoption of Identical Service Mark With Knowledge of Plaintiff's Mark Allowed Inference of Willful Infringement

Case: Western Diversified Services, Inc. v. Hyundai Motor America., Inc. (10th Cir. 11/2/05 - No. 03-4248)

The One Sentence Summary: Adoption of a service mark identical to plaintiff's registered mark allowed plaintiff to seek defendant's profits based upon an inference of willful bad faith and intent to profit from plaintiff's goodwill and reputation.


What They Were Fighting About: Plaintiff Western Diversified owned federally registered service marks for automobile warranties "THE ADVANTAGE" and "THE ADVANTAGE PLUS." Hyundai adopted the name "THE HYUNDAI ADVANTAGE" for its manufacturer's warranty program after receiving an opinion letter that the use of the name was possible but subject to risk and litigation. Another division of Hyundai then adopted the names "ADVANTAGE" and "ADVANTAGE PLUS" for extended warranties, but did not do request another trademark opinion letter. The district court granted summary judgment for defendant, finding no evidence of willful infringement.

Tenth Circuit Holdings:

• An award of the infringer's profits requires a showing of willfulness or bad faith and a weighing of the equities.


• In the Tenth Circuit, in order for a trademark plaintiff to receive an award of profits under the Lanham Act in the absence of actual damages, the plaintiff must ordinarily show that the defendant intended to benefit from the goodwill or reputation of the trademark holder.
• Summary judgment for Hyundai was improper because a jury could infer that Hyundai intended to benefit from the goodwill and reputation of the plaintiff's mark.
• Hyundai could not show that it did not know of plaintiff's mark by arguing that knowledge of the mark was confined to the legal department. Knowledge of the legal department was imputed to the corporation.

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A Patent Claim for a Removable Car Seat Did Not Require Easy Removal, But the Function as a Seat After Removal Was a Disputed Question of Fact

Case: Dorel Juvenile Group, Inc. v. Graco Children's Prods., Inc., No. 05-1026 (Fed Cir. 11/7/05)

The One Sentence Summary: Over a dissent by Judge Newman, the Federal Circuit panel held that a child's car seat did not need to be easily removable in order to infringe patent claim language providing for a seat "removably attached" to a base, but the district court erred in granting summary judgment of non-infringement due to factual questions for the jury about whether the seat could function as a seat once removed.


What They Were Fighting About: Dorel's patent claimed a car seat with a retractable cup holder where the seat was removably attached to a base. Graco claimed that its car seats could not infringe because the seat could only be removed from the base by disassembly, and one of its seats required removal of upholstery and use of a special one-way screw driver. The district court granted summary judgment of non-infringement.

Federal Circuit Holdings:

• The district court properly construed the claim language in rejecting an argument that the seat be easy to detach from the base. The language "removably attached" did not require ease of removal.
• The district court properly construed the claim as requiring the seat to function as a seat once removed. However, the district court erred in finding that the accused seats could not infringe because they did not function as seats after removal. This was a question of fact for the jury.
  
  

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Breach of Fiduciary Duty Claims Against Former Employee Could Proceed Despite Absence of Trade Secrets

Case: Hecny Transportation, Inc. v. Chu (7th Cir. No. 05-1273, 05-1399 10/31/05)

The One Sentence Summary: The district court erred in holding that the Illinois Trade Secrets Act preempted an employer's breach of fiduciary duty claims against its former employee who allegedly diverted corporate assets and opportunities.


Seventh Circuit Holdings:

• The district court correctly dismissed trade secret claims by the employer, Hecny, when its customer list was not shown to be a trade secret.
• The failure of the trade secret claim did not preclude the employer from pursuing claims of breach of fiduciary duty and related claims against Hecny's former employee, Chu.
• The court properly denied an order enforcing the employee's covenant not to compete in light of the seven year lapse of time since the employee departed.
  
  

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Disclosure of a Feature in the Background of a Parent Application Was Enabling and Established Priority Despite Criticism of Feature

Case: Callicrate v. Wadsworth Manufacturing, Inc., No. 04-1597, 04-1598 (Fed. Cir. 10/31/05)

The One Sentence Summary: The panel reversed judgment for defendant in a dispute about large animal castration tools, finding that the patents were valid and infringed - the patents were valid because they were entitled to priority from a parent application even though the application disclosed the disputed feature only in the background section and criticized the limitations of the feature.


What They Were Fighting About: Callicrate owned patents 5,997,553 and 5,681,329 on large animal castration tools, and alleged that Wadsworth infringed those patents. Callicrate's '553 and '329 patents claimed priority to an earlier application by Callicrate, the '434 patent. The district court held that Callicrate's '553 and '329 patents were not entitled to priority based upon the '434 patent application because the disputed feature (a caulking gun ligature tightening mechanism) was only in the background of the '434 application, and its limitations were criticized. A jury found for defendant, holding that the patents were invalid based upon a patent filed by Wadsworth after the '434 application.

Federal Circuit Holdings:

• The district court improperly construed the claim term "lever for deforming a grommet" - the claim language had a common meaning, and the district court erred by importing a limitation from the specification: "The straightforward mechanical technology and understandable claim language give that meaning to this term. See Phillips, 415 F.3d at 1314 ("In some cases, the ordinary meaning of claim language as understood by a person of skill in the art may be readily apparent even to lay judges, and claim construction in such cases involves little more than the application of the widely accepted meaning of commonly understood words.") (citing Brown v. 3M, 265 F.3d 1349, 1352 (Fed. Cir. 2001))."
• In interpreting the claim term "cutting means", the district court properly found that this was a means-plus-function claim under 35 U.S.C. § 112, ¶6. The term "means" invoked a presumption of the application of means-plus-function, and the claim lacked recited structure for performing the function. However, the district court improperly limited the term to a single embodiment when the specification showed several cutting means.
• In construing the term "pre-formed endless loop", the district court erred in adopting a claim interpretation that did not require preforming of the loop.
• Claim language should be interpreted consistently throughout various claims of the same patent. However, this did not require limiting the term "endless loop" to incorporate the limitation of a grommet that appeared in some claims and not others.
• The district court erred in not granting judgment as a matter of law (JMOL) of infringement against defendant where defendant admitted that the accused device included every element of the claims.
• There was no need for a new trial on infringement despite the changes in claim construction by the Federal Circuit panel. The new claim constructions were narrower and did not invalidate defendant's admissions that led to the conclusion that JMOL of infringement should be granted.
• The jury's verdicts of invalidity due to anticipation and obviousness were based on an incorrect determination of priority by the district court. The panel held that Plaintiff's patents were entitled to a priority date of the filing of a parent application for the '434 patent. The '434 patent had sufficiently enabled a caulking gun mechanism even though it criticized the limitations of such a mechanism in the background section. The panel explained: "'[A] patent may only claim priority to an earlier application if the earlier application fulfills the requirements of § 112, first paragraph. In turn, that paragraph requires, in part, that the application ‘shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same.’ Chiron Corp. v. Genentech, Inc., 363 F.3d 1247, 1253 (Fed. Cir. 2004) (quoting 35 U.S.C. § 112, ¶ 1). . . . First, a patent specification may sufficiently enable a feature under § 112, ¶ 1, even if only the background section provides the enabling disclosure. See Micro Chem., 194 F.3d at 1259-60. . . . Moreover, contrary to the district court’s opinion, the background section’s discussion of problems with the caulking gun-type tightening mechanism does not mean that one of ordinary skill in the art would not, after reading this discussion, know how to make and use this feature. Indeed this court has stated that disparaging remarks in a background section or remarks characterizing the prior art as less effective do not remove those disclosures as enabling references. See Micro Chem., 194 F.3d at 1260."
  
  

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Colored Plastic May Be Enough for Mercedes-Benz to Infringe Patent

Case: Sorensen v. International Trade Commission and Mercedes-Benz USA, No. 05-1020 (Fed Cir. 10/31/05)

The One Sentence Summary: The International Trade Commission erred in interpreting a claim for molding of plastics with "different characteristics" to require that the plastics differ in some aspect other than color.


What They Were Fighting About: Sorenson held a patent for injection molding of plastics in two steps. The second step called for injecting a plastic with "different characteristics" than the first plastic. Sorenson had alleged that automobile tail lights imported by Mercedes Benz infringed. After an investigation under 19 U.S.C. § 1337, the International Trade Commission held that Mercedes-Benz did not infringe in that the second plastic used by Mercedes-Benz differed only in color from the first plastic, and that the claim language "different characteristics" required a difference in some characteristic other than color.

Federal Circuit Holdings:

• The Federal Circuit reviews claim interpretation by the ITC without deference. Commission erred in its interpretation of the claim term "different characteristics."
• The claim language itself, "different characteristics," and would allow any difference including color to satisfy it.
• The context of the invention, requiring the molding of two different pieces of plastic, would allow any difference between the plastics, including color.
• The specification supported a broad interpretation of "different characteristics" because it said that the first and second pieces could be of the same material, and it said that differences in transparency (which like color may not require differences in molecular structure) could be different characteristics.
• The prosecution history did not reflect a clear and unambiguous disavowal of claim scope.
• The ITC should reconsider its infringement finding in light of this decision.
  
  

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