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At Least One Said Index" Is Identical To "Said At Least One Index

Oct.10.2008

An amendment changing a software claim term from "said at least one index" to "at least one said index" does not broaden the scope of the claim, a Federal Circuit panel concludes in Predicate Logic, Inc. v. Distributive Software, Inc. (No. 2007-1539; October 9, 2008).

The amendment was one of two made by an Examiner during reexamination of the patent at issue. In a motion for summary judgment, the defendant, Distributive Software, Inc. argued that the subtle change in wording impermissibly enlarged the scope of the claim and thereby rendered the reexamined patent invalid under 35 U.S.C. § 305. After conducting a meticulous analysis that included a hypothetical example, the Federal Circuit determines that it "can imagine no conceivable process . . . that would infringe the amended claim but would not infringe the original claim." Applying this test, which is the same test used for reissue claims, the Court determines that the amended claim does not broaden the scope of the original claim and the district court's finding of invalidity is reversed.

[http://www.cafc.uscourts.gov/opinions/07-1539.pdf]

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