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Evidence Of Accused Product Provides Meaningful Context For Claim Construction Analysis


In Wilson Sporting Goods Co. v. Hillerich & Bradsby Co. (No. 05-1103, March 23, 2006), the Federal Circuit revisits its rule that “claims may not be construed with reference to the accused device.” In the district court, defendant's baseball and softball bats were accused of infringing a patent directed to a bat having a special “insert” within its body. Following the district court's claim construction of the terms “insert” and “gap,” the parties stipulated that the accused products do not infringe. The patentee appealed the claim construction ruling, but the record on appeal did not include a description of the accused products.

According to the Federal Circuit, it reviews claim construction only as necessary to reach final judgment and that, without evidence of the accused products, this appeal “assumes many attributes of a proceeding seeking an advisory opinion on the scope of the patent.” While claim construction should not be biased to include or exclude features of an accused product, the Court clarifies that awareness of the accused product supplies the Court with the parameters and scope of the infringement analysis. The Federal Circuit concludes that without that additional context it cannot fully review the judgment of non-infringement, including its claim construction component. The Federal Circuit ultimately construed the terms “insert” and “gap,” but reiterated that it did so without full context of this infringement action and that on remand the district court “may reconsider its construction in light of this opinion.”

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