Layers of Doctrine with a Faulty Claim Construction at the Core

by Dennis Crouch D Three Enterprises v. SunModo Corp. (Fed. Cir. 2018) Reading this decision feels akin to slowly peeling off the layers of an onion – hoping to reach some prize at the core but only reaching a rotten core. D-Three’s patents in suit are directed to roof-mount sealing assemblies for solar panel installation.  U.S. Patent Nos. 8,689,517; 9,068,339; and 8,707,655.   The district court found the asserted claims invalid as obvious or anticipated.  The basic central dispute, however, was whether the claims could rely upon a 2009 provisional application filing date.  Although the formalities of the priority chain was met — the district court found a substantive problem. In particular, the court ruled that the 2009 provisional did not sufficiently disclose the inventions as claimed — i.e., failure of written description.  Going one layer deeper, it seems that the real dispute is about claim construction —…

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