Clear and Unmistakable Disclaimer's Stardard Raised

Sat, 8 Nov 2005 18:54:00 EST

"Relying on Phillips methodology and an open transitional phrase, the U.S. Court of Appeals for the Federal Circuit vacated a summary judgment grant of non-infringement and set aside a finding of equivalents barring prosecution history estoppel. Free Motions Fitness, Inc. v. Cybex International, Inc. Case No. 05-1006 (Fed. Cir. Sept. 16, 2005) (Dyk, J.; Prost, J. dissenting)."

"Free Motions sued both Cybex and Nautilus for infringing its exercise machine patents. The exercise machine in issue included cables and pulleys that lift a weight stack. The claimed invention required that specified cables and extension arms pivot or swivel about a certain point. In the accused device, the arm and pivot assembly operated in a manner different from that as literally claimed. Based on this difference and a finding of prosecution history estoppel that barred the patent owner from relying on the doctrine of equivalents, the district court granted summary judgment of no infringement. Free Motions appealed."

"In reversing the district court, the Federal Circuit relied on several canons of construction to modify the district court's claim construction. First, the Federal Circuit held the district court erred in construing the claimed "first" and "second" pivot points as requiring specific spatial locations relative to the extension arms. Instead, the Federal Circuit ruled that "first" and "second" are merely used to distinguish between repeated recitations of an element. "

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