Leveling the Culinary Field: Typographical Corrections in ...

Leveling the Culinary Field: Typographical
Corrections in Markman Ruling Allow Food Service
Equipment Leveling Device Patent to be Construed

Tuesday, February 4, 2014

Judge Batten examined the parties’ contentions in light of
controlling federal law and construed patent claims as
plaintiff Kason Industries, Inc. (“Kason”) contended,
rejecting reliance by defendant Component Hardware Group,
Inc. (“Component”) on indefiniteness and rejecting its
efforts to restrict the term “projection” to mean only a
“rib.”

By Order dated January 31, 2014 [Dkt#57] (the “Order”), the Article By
Court briefly recited the background of United States Kirk W. Watkins
Patent No. 7,571,887 (the ‘887 Patent) and quoted the three Womble Carlyle Sandridge & Rice, PLLC
claims in issue (1, 4, and 7). A figure from the patent, George IP Litigation
which is directed to a height adjustable support for food
service equipment, is reprinted below: Antitrust & Trade Regulation
Intellectual Property

Judge Batten’s Order provides an excellent tutorial on the Litigation / Trial Practice
standard for claim construction and then moves through a Administrative & Regulatory
well-written synopsis of the current state of the law when Georgia
an indefiniteness argument is raised. “A claim is 11th Circuit (incl. bankruptcy)

indefinite only when it is ‘not amenable to construction’

or ‘insolubly ambiguous,” quoting Biosig Instruments, Inc.

v. Nautilus, Inc., 715 F.3d 891, 898 (Fed. Cir.

2013), cert. granted, 82 U.S.L.W. 3195 (2014). The Petition for Writ of Certiorari, recently granted,

seeks elimination of this standard. The Order notes that “It is well-settled law that, in a patent

infringement suit, a district court may correct an obvious error in a patent claim,” quoting CBT Flint

Partners, LLC v. Return Path, Inc., 654 F.3d 1353, 1358 (Fed. Cir. 2011).

Judge Batten noted the errors in the claims language, but held that those errors were easily corrected
without broadening the claim. The first error was clearly a scrivener’s error of substituting “that” for
“than” and the second error merely required a word change to achieve the antecedent phrase reference
obviously intended. “No skilled artisan would have difficulty concluding that the ‘said insert first
select external diameter’ refers to the ‘said insert having an insert first portion with a first select
external diameter.’” Reaching this decision was, in the Court’s opinion, consistent with the mandate
that “Claims should be . . . construed, if possible, to sustain their validity,”quoting Rhine v. Casio,
Inc., 183 F.3d 1342, 1345 (Fed. Cir. 1999).

With regard to the other term Component sought to have construed, the Court also agreed with Kason. In
this instance no construction was found necessary. Nevertheless, the Court took pains to point out that
short-shrift had not been given to its obligation to construe disputed claims. Rejection of an
unnecessary proposed construction fulfills the Court’s duty and resolves the dispute. See Finjan, Inc.
v. Secure Computing Corp., 626 F.3d 1197, 1207 (Fed. Cir. 2010).

Accordingly, the Court construed the disputed terms of the '887 patent as follows:

The case is Kason Industries, Inc. v. Component Hardware Group, Inc., Docket no. 57, decided January 31,
2014, in 3:13-cv-00012-TCB, in the United States District Court for the Northern District of Georgia,
Atlanta Division, assigned to Judge Timothy C. Batten, Sr.

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