CLAIM WRITTEN IN GENERAL, DESCRIPTIVE WORDS LIMITED BY A NUMERICAL RANGE IN THE WRITTEN DESCRIPTION BECAUSE THE WORDS DEFINED BY IMPLICATION

Amazin’ Raisins International, Inc., v. Ocean Spray Cranberries, Inc., [2008-1098] (October 31, 2008) [ALSUP, Newman, Lourie] The Federal Circuit affirmed summary judgment of non-infringement of U.S. Patent No. 5,188,861.
DISCUSSION: U.S. Patent No. 5,188,861 relates to a method of reflavoring dried fruit. Based upon a teaching in the specification in that “Any dried fruit which contains between about 10% to 18% moisture may be employed.” the court construed dried fruit as meaning fruit with a 10% to 18% moisture content. Using this construction, the district court found that OSC’s accused process did not treat “dried fruit” because the frozen cranberries entering used in the process had a moisture content well above 10 to 18%.
The Federal Circuit agreed with the district court’s construction, noting that the language cited by the district court appeared “before any preferred embodiments are discussed or any specific examples detailed.” The Federal Circuit said that it was hard to understand the import of the underscored sentence other than as defining the dried fruit to which the invention was directed. To now say that these limits should be ignored would be a direct contradiction to the public-notice function of a patent. The Federal Circuit explained that although it is generally true that a claim written in general, descriptive words will not be limited by a numerical range appearing only in the written description “when a patentee uses a claim term throughout the entire patent specification, in a manner consistent with only a single meaning, he has defined that term ‘by implication.’”
The Federal Circuit affirmed lack of literal infringement, and lack of infringement by equivalents, holding that a finding that OSC’s frozen fruit equivalent to dried fruit would vitiate the dried fruit claim limitation.