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CAFC Happenings

By John L. Rogitz of Rogitz & Associates

1. Claim Construction

The Laryngeal Mask Co. Ltd. V. Ambu A/S, 2010-1028, -1062 vacates summary judgment of no infringement for improperly construing "backplate" in claim to laryngeal mask to require (an otherwise unclaimed) tube joint and, thus, two-piece construction of a stiffening backplate and accompanying airway tube. The CAFC opinion is scattered, first complaining that the case is a difficult one of claim construction (arguably of its own making) and plaintively observing that the specification is replete with discussion of the tube joint, the specification describes it as the preferred embodiment, and no "integrated" embodiment appears in the specification. Perhaps deliberately trying to obscure its reasoning, the CAFC then immediately declares that "[c]ertainly, it would be improper to add a tube joint limitation to the claims where none appears" but that the accused infringer "does not ask this court to import the tube joint limitation into the claims generally, but rather argues that the claim limitation "backplate" should be construed to include a tube joint." The CAFC then disagrees with the accused infringer, noting that claim 1 did not mention the airway tube at all, much less how it should be attached to the backplate, so the claims cover "only a laryngeal mask airway device comprising the backplate and cuff". Furthermore, given that no definition of "backplate" which included the tube joint was in...

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