majestic vs superior fireplaces

301-307, or issued after a reissue pursuant to 35 U.S.C. The examiner's amendment also reminded Superior that [s]hould the changes and/or additions be unacceptable to applicant, an amendment may be filed. Superior did submit an amendment under 37 C.F.R. 252. District courts already are overworked and we need not add to their burden. Id. The declaration alleges that Examiner Yeung advised me [Marantidis] that the Certificate of Correction was granted because the error sought to be corrected was a typographical error on his part. This allegation contains an oral assertion, Fed.R.Evid. The 534 patent relates to gas fireplace technology. The former interpretation, that there are two rear walls, is suggested most strongly by the commonality between sheet 11 and rear wall 15, which commonality suggests that sheet 11 should be considered to be a second rear wall. at 1009 n. 4. This requirement is based on the presumption of validity.1 35 U.S.C. The APA provides a variety of standards of appellate review of agency action. Section 251 addresses the correction of an error and it is understood that corrections under 251 can result in the broadening of a claim. Accordingly, we are constrained to vacate and remand on the issue of exceptional case and attorney fees. 2394, 2420. Furthermore, the Southwest court itself was concerned with placing the risk inherent in unanticipated broadening where it belongs: on the patentee that has availed himself of the patent system, not on the public that is entitled to rely upon the public record of the patent. Superior concludes therefrom that 255 should not be interpreted to require the correction of the mistake to be evident from the specification, drawings, and prosecution history. Learn more about FindLaws newsletters, including our terms of use and privacy policy. Webster's New World Dictionary of the American Language 116, 646 (David B. Guralnik ed., Warner Books 1982). 11-24. This interpretation is further reinforced by the fact that there is no limitation in the claims of the 534 patent which clearly corresponds to the sheet 11; the only possible corresponding limitation is the rear walls limitation of uncorrected claim 1. I also agree that the PTO is authorized, under 35 U.S.C. A third category of mistakes includes those where it is apparent that a mistake has been made, but it is unclear what the mistake is. Id. Reissued patent claims that are not substantially identical to the original patent claims also are valid only for the trial of actions for causes arising after the issue of the reissued patent claims. The majority expresses concern that section 255, unlike section 252, provides on its face no protection from infringement liability for intervening rights. 1268 (1925), to save time and money and also promote efficiency in the operation of the Patent Office because, when errors are detected that are clearly clerical errors the certificate obviates the necessity of reprinting the entire patent. 65 Cong. 11. See View Eng'g, Inc. v. Robotic Vision Sys., Inc., 208 F.3d 981, 982-84, 54 USPQ2d 1179, 1180-82 (Fed.Cir.2000) (affirming district court's imposition of sanctions where patentee had filed an infringement counterclaim without having seen the accused infringer's products, and where the patentee admitted that it had no factual basis for its counterclaims). Based on this silence, Superior insinuates that the addition of the s to rear wall was never authorized. Southwest Software, Inc. v. Harlequin Inc., 226 F.3d 1280, 1296, 56 USPQ2d 1161, 1173 (Fed.Cir.2000) (stating that it does not seem to us to be asking too much to expect a patentee to check a patent when it is issued in order to determine whether it contains any errors that require the issuance of a certificate of correction). Third, a catalytic converter 9 is provided, thus eliminating the need for a flue and allowing a more visually attractive flame instead of the cleaner burning blue or invisible flames. AFFIRMED-IN-PART, VACATED-IN-PART AND REMANDED. As explained earlier, the first is the declaration by Superior's patent attorney, Marantidis. First, as shown in Figure 2 from the 534 patent, included below, a reflective sheet 11 is provided behind the flame 8 and artificial log F, thus increasing the apparent depth of the fireplace for a better visual appearance. Section 254 is, of course, part of the statutory context we must consider in interpreting 255. Thus, the prosecution history supports the view that the change from rear wall to rear walls was inadvertent and was a clerical or typographical mistake.3 Certainly, Majestic has not presented clear and convincing evidence that this was not a mistake, much less clear and convincing evidence that the PTO made an error in issuing the certificate of correction. This plural term was changed to the singular term rear wall in Superior's certificate of correction, as explained below in the section entitled Procedural History of Litigation. The 534 patent purports to solve at least some of these problems by providing a combination of three features. In Arnott, the PTO expressed its view by stating that [a]bsent very unique and unusual circumstances, a clerical or typographical error should be manifest from the contents of the file of the patent sought to be corrected. 19 USPQ2d at 1053. We agree with the PTO, other than to note that we find no cause to provide for an exception for unique and unusual circumstances when a claim is broadened. After the summary judgment decision, Superior became aware of a PTO questionnaire entitled Notice Re: Certificates of Correction, prepared by the PTO in connection with the grant of the certificate of correction under 35 U.S.C. Majestic cross appeals the finding that this was not an exceptional case and the decision not to award attorney fees. The PTO granted this request, issuing a certificate of correction on August 17, 1999. We note that both requests were filed and the certificate was granted less than two years after the 534 patent issued. Id. Summary judgment is only appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. S.Rep. Crating & Packing, Inc., 731 F.2d 818, 829-30, 221 USPQ 568, 576-77 (Fed.Cir.1984) (discussing the intervening rights of 252). In Carroll Touch, Inc. v. Electro Mechanical Systems, Inc., 15 F.3d 1573, 1583, 27 USPQ2d 1836, 1845 (Fed.Cir.1993), although the district court issued no factual findings as to whether [it] was an exceptional case, we affirmed a district court's denial of the accused infringer's motion for attorneys' fees because the record provided a sufficient basis for us to review the district court's decision. (allowing a reissue only for the invention disclosed in the original patent). We note that neither of the parties has directed us to any legislative history that we should consider. Second, the interior of the fireplace is constructed so as to provide various convection pathways within the fireplace to transfer heat into the room and, thus, reduce heat transfer into the structure surrounding the fireplace. Camargo Correa Metais, S.A. v. United States, 200 F.3d 771, 773 (Fed.Cir.1999). V 1999) (A patent shall be presumed valid.); Am. 255. A finding that this case was exceptional would not, of course, end the inquiry. Co., 92 F.Supp.2d 1001 (C.D.Cal.2000) (judgment). So too a claim which is written to exclude the preferred embodiment is likely to be an error. 1.Section 254 was first enacted by the Patent Act of Mar. But Congress displayed a greater concern for public notice in 251 and 252 by insulating the public from this lack of effective notice through the provision of, first, a two-year limit on broadening reissues and, second, intervening rights. 255, which applies only to the correction of mistakes made by the applicant. To help resolve this question, we consider Figure 2 in conjunction with the written description. It must be remembered that at the time the complaint was filed, the claims included the rear walls limitation and no request had been filed with the PTO to correct the claim under either 254 or 255. 2505, 91 L.Ed.2d 202 (1986). Thus, the requested correction of the alleged mistake was not apparent from the specification, drawings, and prosecution history. We are hesitant to impose so great a limitation without express indication from the statute. This amendment, however, did not amend the claim term rear walls, and Superior submitted no further amendment before issuance. Hoffmann-La Roche Inc. v. Invamed Inc., 213 F.3d 1359, 1365-66, 54 USPQ2d 1846, 1850 (Fed.Cir.2000) (in the context of a 285 finding that a case was not exceptional, noting that Torpharm has not presented any facts showing that when Roche and Syntex filed their complaint, they had reason to believe that their patents did not cover the processes used to make Torpharm's generic drug). This is evident from the district court's holding that the corrected claim is null and void for the purposes of this case and all future cases, subject to the present appeal. The second document is the marked-up version of the edited claim allegedly faxed to Superior's representative by the examiner and then marked up by Superior's representative. If a mistake were made by the applicant and went undetected by the PTO (as apparently occurred here), it would often not appear in the prosecution history. According to Superior, prior to the March 6 interview the examiner edited the claim in question and faxed to Superior the edited claim. That inference is buttressed by the fact that Superior did not object to the change, even though the examiner's amendment itself reminded Superior of its right to do so. The Ninth Circuit, the pertinent circuit in this case, reviews evidentiary rulings of the type appealed from for an abuse of discretion. 251 (1994) (No reissued patent shall be granted enlarging the scope of the claims of the original patent unless applied for within two years from the grant of the original patent.). We also hold that a mistake the correction of which broadens a claim is not a mistake of minor character subject to correction under 35 U.S.C. The district court opinion then immediately begins explaining why the alleged error is not of minor character. The same presumption applies to certificates of correction. See Gechter v. Davidson, 116 F.3d 1454, 1457, 43 USPQ2d 1030, 1033 (Fed.Cir.1997) (stating, in the context of an appeal from a PTO interference decision, that [w]hen the opinion explaining the decision lacks adequate fact findings, meaningful review is not possible, frustrating the very purpose of appellate review); Transmatic, Inc. v. Gulton Indus., Inc., 53 F.3d 1270, 1276, 35 USPQ2d 1035, 1040 (Fed.Cir.1995) (vacating because [w]ithout more detailed findings and reasoning, we cannot evaluate the court's damage award); Atl. At a minimum, that exception requires that the statement be contrary to the declarant's [the examiner's] pecuniary or proprietary interest, or tend[ ] to subject the declarant to civil or criminal liability, or render invalid a claim by the declarant against another. Fed.R.Evid. The patentee's right to broaden a claim is not absolute, however. The district court presumed that the PTO had come to these conclusions and proceeded to find that such conclusions were in error. Rodime PLC v. Seagate Tech., Inc., 174 F.3d 1294, 1301, 50 USPQ2d 1429, 1434 (Fed.Cir.1999) (citing Conroy v. Reebok Int'l, Ltd., 14 F.3d 1570, 1575, 29 USPQ2d 1373, 1377 (Fed.Cir.1994)). 254 (Emphasis added.). Superior has presented no persuasive argument that any of these conditions were met. This result is indistinguishable, for practical purposes, from the fundamental effect of a successful direct validity challenge to a claim. According to Superior, however, the faxed, edited claim also changed rear wall to rear walls. Superior asserts that it marked up the faxed, edited copy of the claim to show the amendments that Superior authorized during the March 6 interview. Applying the clear and convincing evidence standard to this validity challenge, we must affirm the district court's holding if we find the absence of a genuine issue that the appropriate correction of the alleged rear walls mistake was not clearly evident from the intrinsic record. FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. A Notice of Allowability was also mailed on March 11, 1997, thus indicating that the amended claim-with the revised expression rear walls-was allowable. 44-45 (Emphasis added.). Wendt v. Host Int'l, Inc., 125 F.3d 806, 810 (9th Cir.1997). Majestic's challenge was, in essential respects, indistinguishable from any other challenge to the validity of corrected claim 1.

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