Claim construction

25Whether a C1.3 alkyl group includes lx till n-propyl and iso-propyl is a matter of claim construction and how one of ordinary skill in the art would understand such a group to mean. As we will see in the next section, the patentee can define his own terms and if he doesn t do so clearly, it is up to die court, using techniques of claim construction to figure out what is meant by definitional terms in die claims. The safest and best patent practice is for die patentee to provide die definitions in die specification to minimize any ambiguity. 

It is not surprising that a reasonable place to begin the search for a claim s meaning is the context of the claim itself. Although claims will not often define the terms they include, those term definitions maybe clarified or at least somewhat delineated when put into the context of the rest of the claim language or more broadly, in the language of one or more of the additional claims in the patent. In one recently decided case heard on appeal in Mars, Inc. v. H.J. Heinz Co.,2 claim 1 from U.S. patent 6,312,746 shown below was in dispute. 

A dual texture pet or animal food product comprising  

The central issue in this case was the meaning of the claim language containing a mixture of lipid and solid ingredients. The plaintiffs asserted that the defendant s 

Now more than ever I am convinced of the futility, indeed the absurdity, of this court s persistence in adhering to the falsehood that claim construction is a matter of law devoid of any factual component. Because any attempt to fashion a coherent standard under this regime is pointless, as 

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This begs the question of what effect the transition comprising has in this example. We have already seen that we cannot read the claim to allow addition to structural formula I itself. However, the preamble to the claim clearly explains that a pharmaceutical composition is being claimed and not merely a compound. We do not need to get into the exact nature of any claim construction limitations that this preamble might introduce to appreciate that this claim is not limited in scope to the compound of formula I and at least one pharmaceutically acceptable excipient, but would also cover the addition of materials that might be understood to go into a pharmaceutical composition. If the preamble is understood to be a limitation of the claim, then the claim can be read to be broad enough to capture the compound in a pharmaceutical composition but not so broad as to capture the compound in any possible setting, to ensure this interpretation, the patent drafter has carefully added an additional required element, the pharmaceutically acceptable excipient.19... 

Whether claim construction is a mix of law and fact is an important distinction since a federal court of appeals will review a district court s findings of fact with deference and reverse on a finding of clear error only, whereas matters of law are reviewed completely again (de novo) on appeal. Since each appeal on claim construction is reviewed without deference to the district court s finding and claim construction is a very nuanced, complex (and dare we say, often fact based) undertaking, the net result is that many of the district court s claim constructions are modified or reversed on appeal. 

First, we again engage in some claim construction, the major observation being that the claim transition is open (comprising) and thus the listed parts are the minimal elements necessary to fulfill the claim language. 

In 2002, another judicial trial in claim construction prevented a patentee from covering in vivo conversion. Bristol-Myers Squibb has, upon expiration of its basic patent to the use of buspirone to treat anxiety, obtained a patent covering the systemic administration of an effective anxiolytic (anxiety-treating) dose of the 6-hydroxy metabolite of buspirone. The district court construed the claim as directed to the administration of an externally-measured quantity of the metabolite into the body, and not to the administration of a dose of buspirone into the body, which, in turn, produces variable and changing levels (not doses) of the metabolite in the bloodstream. 6 Therefore, this patent could not be asserted against the generic manufacturers and sellers of generic buspirone. 

As an example of simplifying the case for the jury, consider the patentee who has received a broad claim construction from the court, but must still demonstrate to the jury that the claims read on the accused product. Although the patent drawings are technically irrelevant to that issue, the patentee s counsel may use every available opportunity to show the jury that the accused product looks similar to the patent drawings to visually reinforce the infringement theory. The jury is more likely to understand the drawings than the scope of the claims. 

After completing the process of claim construction, POE, and the NPTF-IG key phrases extraction methodology, the target patent and the related prior art patents are analyzed to identify patent novelty. An invention is patentable if it satisfies specifications for novelty. Novelty is defined in Section 102 of the US Patent Law The invention is novel if it was not previously patented, described in a publication, in public use, or on sale by others before the inventor invented it. Trappey et al. [35] use non-exhaustive overlap clustering to analyze patent documents with multiple technical descriptions of the invention. The results show that key phrases... 

To improve upon die mean-field picture of electronic structure, one must move beyond the singleconfiguration approximation. It is essential to do so to achieve higher accuracy, but it is also important to do so to achieve a conceptually correct view of the chemical electronic structure. Although the picture of configurations in which A electrons occupy A spin orbitals may be familiar and usefiil for systematizing the electronic states of atoms and molecules, these constructs are approximations to the true states of the system. They were introduced when the mean-field approximation was made, and neither orbitals nor configurations can be claimed to describe the proper eigenstates T, . It is thus inconsistent to insist that the carbon atom... 

Under modern condition the ordinary layman...has neither the opportunity nor the capacity to inspect or to determine the fitness of an automobile for use he must rely on the manufacturer who has control of its construction, and to some degree on the dealer who, to the limited extent called for by the manufacturer s instructions, inspects and services it before delivery. In such a marketing milieu his remedies and those of persons who properly claim through him should not depend "upon the intricacies of the law of sales. The obligation of the manufacturer should not be based alone on privity of contract. It should rest, as was once said,... 

Before the 1960s, the bias-ply tire exemplified standard construction. It had a typical rolling resistance coefficient of 0.015 on hard pavement. Since then, the radial-ply tire has emerged, offering a coefficient closer to 0.010. Coefficients as low as 0.008 to 0.009 have been claimed in tires suitable for use on passenger cars. Cutting the coefficient from 0.015 to 0.008 offers the opportunity for about a 10 percent reduction in fuel consumption. 

Sulfur can replace 30-50% of the asphalt in the hlends used for road construction. Road surfaces made from asphalt-sulfur hlends have nearly double the strength of conventional pavement, and it has been claimed that such roads are more resistant to climatic conditions. The impregnation of concrete with molten sulfur is another potential large sulfur use. Concretes impregnated with sulfur have better tensile strength and corrosion resistance than conventional concretes. Sulfur is also used to produce phosphorous pentasulfide, a precursor for zinc dithiophosphates used as corrosion inhibitors. 

Obviously, construction of a mathematical model of this process, with our present limited knowledge about some of the critical details of the process, requires good insight and many qualitative judgments to pose a solvable mathematical problem with some claim to realism. For example what dictates the point of phase separation does equilibrium or rate of diffusion govern the monomer partitioning between phase if it is the former what are the partition coefficients for each monomer which polymeric species go to each phase and so on. 

It looks simple to introduce GNDL in the family of repetitive sentences found in high level languages. So we feel that a claim in this direction to language and compiler builders can be made here. Some immediate computational benefits in order to construct really general programs may be obtained. 

Although this final determinant structure can easily lead to an immediate construction of sequential or parallel Fortran subroutines, there cannot be a claim such that this procedure will be better, from a computational point of view, than well established numerical ones, based on other grounds as Cholesky decomposition, see references [8] for more details. One can recall again the remarks already made at the beginning of section 3.1 above, and stress once more the formal nature of the programming immediate translationcapabilitiesofNSS s. 

Overtime is especially costly because after laboring eight hours a man s efficiency is less. He is naturally tired. Some employers have claimed that when a worker puts in two hours of overtime they get only about one hour of services. This means a company may pay for twelve hours of work at the base pay rate and effectively get only nine hours of work per day. This could increase the cost of construction labor by one-third or the total cost of constructing the plant by over 8%. The average construction costs index by state is given annually in the Plant Sites issue of Chemical Week and by the Federal Department of Labor. 

A simple rocking device was tested for routine determination of distribution coefficients [9], Sample cells were constructed for two-phase [9] and three-phase [10] systems. The investigators claim that the rocking action causes the shape of each phase to vary slowly and constantly and that the precision associated with the distribution coefficient is similar to that for shake-out methods. The three-phase cell was tested as an in vitro model to simulate factors involved in the absorption process. Rates of drug transfer and equilibrium drug distribution were evaluated under conditions in which one aqueous phase was maintained at pH 7.4 and the other phase was maintained at another pH. 

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