Certificate of Correction is Not A Cure All

Central Admixture Pharmacy Services, Inc. v. Advanced Cardiac Solutions, P.C., [06-1307](April 3,. 2007)[GAJARSA. Schall, and Prost] The Federal Circuit vacated a finding of wilful infringement because a certificate of correction amending the claim language was invalid.
BRIEF: Central obtained a certificate of correction changing the word "osmolarity" to "osmolality". Based upon the amended claims, summary judgment of willful infringement was entered against Advanced Cardiac. Advanced Cardiac challenged the validity of the certificate of correction because it broadened the claims. Invalidating a certificate of correction for impermissible broadening requires proof of two elements: (1) the corrected claims are broader than the original claims, and (2) the existence of an error, or how to correct the error, is evident to a person of ordinary skill in the art. LOF: Whether a claim has been broaden by a certificate of correction is a question of law. Because the corrected claims covered solutions not covered by the original claims, the Federal Circuit held that the claims had been broadened. The Federal Circuit also found that the error was not evident to a person of ordinary skill in the art. The Federal Circuit noted that all solutions have a measurable osmolarity, and the concentration specified in the the claims was not manifestly erroneous. The Federal Circuit was not impressed with the argument that osmolarity was not the most conventional or convenient, quipping: "Claims mean precisely what they say." Because the construction of the claims changed, the judgment of willful infringement was vacated.
The Federal Circuit went on to comment about claim construction, even though the words of the claims had changed as a result of its ruling. The Federal Circuit commented that construction is "basically the same" except for the substitution of units. The Federal Circuit placed weight on the presence of the term "about", finding that the word about extends the ranges to values that the intrinsic evidence showed were effective.