Court Refuses "Back Door" Attempt at Claim Construction

Minemyer v. B-Roc Reps., Inc., No. 07 C 1763, Slip Op. (N.D. Ill. Mar. 22, 2011) (Cole, Mag. J.). Judge Cole denied defendants' summary judgment of noninfringement. The motion was premised upon an effort to amend the construction of "approximately perpendicular" which the parties previously agrees was "approximately ninety degrees" to no more than five degrees away from a ninety-degree angle. Defendants' accused couplers had threads at an eighty degree angle – ten degrees away from ninety degrees. But the parties had already cancelled their claim construction process because they agreed upon all constructions, including that approximately perpendicular meant approximately ninety degrees." Even if the arguments were timely, and not a "back door" attempt to avoid the Court's schedule, defendants' evidence did not support their construction: The inventor's testimony suggested ten degrees did not meet the "approximate" modifier. But the inventor's testimony is heavily discounted if not disregarded, in claim construction. The parties experts also opined that ten percent was outside "approximate." But that was evidence for the trier of fact to weight in considering infringement. The examiner's use of "perpendicular" without the "approximately" modifier was irrelevant because the allowed claim contains the modifier.

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