Today in X2Y Attenuators, LLC v. U.S. Int’l Trade Comm’n, __ F.3d __ (Fed. Cir. 2013)(Moore, J.), in an otherwise unremarkable affirmance of a trial court’s narrow claim construction keyed to “disavowal” of an “essential” feature,  following GE Lighting Solutions, LLC v. AgiLight, Inc., 750 F.3d 1304 (Fed. Cir. 2014),  the Court provides yet another good example for patent drafters of a reason to refrain from characterization of an invention in the specification.

The literal wording of the claims in question clearly covered the accused embodiment, yet because the patentee chose to define an unclaimed feature disclosed in the specification as “essential” to the invention, such disavowal of claim scope led to a conclusion of a narrow construction of the claimed invention to reach a conclusion of noninfringement.

The Concurring Opinion:  Remarkably, the third member of the panel found it necessary to provide an extensive tutorial on claim construction with twelve footnotes; the third member is sharply critical of the decision-makers below but  join[s] the court’s opinion in its entirety.”  X2Y Attenuators, __ F.3d at __ (Reyna, J., concurring)




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