Certificate Of Correction That Broadens Is Invalid
In Central Admixture Pharmacy Services, Inc. v. Advanced Cardiac Solutions, P.c., (No. 2006-1307, April 3, 2007), the Federal Circuit vacates a finding of patent infringement involving a chemical solution used during heart surgery and remands for redetermination of infringement under the patent’s original claims, uncorrected by an invalid certificate of correction. Summary judgment that the patent is not invalid is, however, affirmed.
The Federal Circuit panel disagrees with the district court’s determination that a certificate of correction of the patent, changing the word “osmolarity” to the word “osmolality” was appropriate. “Osmolarity” is the amount of solute per liter of total solution (mOsmol/L), and “osmolality” the amount of solute per kilogram of solvent (mOsmol/kg). In the asserted claims, a solution having an “osmolarity . . . of between about 400-500 mOsmol” was initially claimed, but was by the certificate to read “osmolality”. Because of the change in the range, the accused solution is more likely to infringe the corrected claims.
Invalidating a certificate of correction for impermissible broadening of the claims, says the panel, requires proof that the corrected claims are broader than the original claims, and that the presence of the error in the original claims, or how to correct it, is not clearly evident to one of skill in the art. The panel reasons that in the original claims, the word “osmolarity” is spelled correctly and reads logically in the context of the sentence. And because the error corrected by the certificate was not clearly evident to one of skill in the art, the result of the correction was to broaden the claims.
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