Docket No. 2014-1214
PROST, BRYSON, WALLACH
March 19, 2015
Brief Summary: DC claim construction affirmed as consistent with the specification and drawings (“no other reference…that provides an alternative definition or illustration”).
Summary: Flexiteek appealed DC construction of the claim term “longitudinal slots” in its reexamined US 6,895,881 relating to extruded plastic planks for use in covering floors, walls, etc. Claim 1 was invalidated during reexamination but claims 2-8 remain dependent on that claim. It requires planks or sheet form with longitudinal slots at the underside thereof for facilitating forming of curved coverings acting as a base for a glue or adhesive material by means of which the surface covering is mounted on a surface recipient.” Claim 2 is dependent on claim 1 “wherein the plants or sheet are mounted on the surface recipient in a tightly curved formation only with adhesive and without use of additional fasteners.” After a Markman hearing, the DC issued its claim construction order regarding the definition “longitudinal slots”. It then granted Plasteak SJ of non-infringement. Flexiteek argued the DC construction was “poisoned by the use of samples of the [Parties] commercial embodiments during the technology tutorial”, the construction is contrary to the intrinsic evidence and three USPTO examiners determinations during reexamination, and it is contrary to and broader than that determined in an earlier litigation. The FC panel disagreed with each of these points becase the Markman hearing was after the tutorial and the opinion does not reference the commercial embodiments and the construction is consistent with the patent specification and drawings (“no other reference…that provides an alternative definition or illustration” and consistent with expert testimony). The DC judgment was therefore affirmed.