"Between" Means "Only Between"

Outside The Box Innovations, LLC v. Travel Caddy, Inc., [2007-1253] (January 15, 2008) [ARCHER, Bryson, Dyk] NON-PRECEDENTIAL The Federal Circuit affirmed the denial of a preliminary injunction.
SIGNIFICANCE: Different terms in a claim have different meanings.
BRIEF: A claim term must be read in view of the specification of which it is a part. "However, the specification cannot be used to read nonexistent limitations into a claim." At issue was the term "between". In the accused products the panels extended slightly beyond, and thus the district court found they were not between. Because the Federal Circuit found no error in the district court’s construction of the term "between," and it is undisputed that the bottom, front, and back panels of the accused product extend beyond the edges of the end panels, the Federal Circuit affirmed that Travel Caddy had not shown a likelihood of success in proving infringement.
Travel Caddy also argued that the accused product met the requirement of flexible fabric panels. The Federal Circuit noted that the claim recites both "flexible . . . fabric panel[s]" and "fabric covered . . . panel[s]", and held that the claims must be construed to preserve the distinction. CANNON: THE USE OF DIFFERENT TERMS IN A CLAIM MANDATES THAT THEY HAVE DIFFERENT MEANINGS. See CAE Screenplates, Inc. v. Heinrich Fiedler GmbH & Co. KG, 224 F.3d 1308, 1317 (Fed. Cir. 2000) ("In the absence of any evidence to the contrary, we must presume that the use of these different terms in the claims connotes different meanings." ); Applied Med. Res. Corp. v. U.S. Surgical Corp., 448 F.3d 1324, 1333 n. 3 (Fed. Cir. 2006) ("[T]he use of two terms in a claim requires that they connote different meanings . . . ."). While Travel Caddy was correct that the addition of elements does not avoid infringement of a claim with transition "comprising", infringement is avoided where that addition eliminates the claimed element.