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Justin E. Gray

IP Litigation Attorney at Foley & Lardner LLP

Former Adjunct Professor at Northwestern University School of Law

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British Claim Construction Practice Summarized in One Sentence

W L Gore & Associates GmbH v. Geox SPA (Court of Appeal Jul. 29, 2009) (Jacob, J.)

In this case, the Court of Appeal construed various terms in two patents related to shoes. Lord Justice Jacob, citing to the Court's prior decision in Kirin Amgen, succinctly described the British system of claim construction in a single sentence: "The task for the court is to determine what the person skilled in the art would have understood the patentee to have been using the language of the claim to mean."

Throughout its opinion, the Court focused on the "purposive construction" of claim terms. For example, in construing the term "mid-sole" the Court pointed out that "there is simply no purposive reason to read in some complicated question of where the line between sole and mid-sole is to be drawn." In construing the term "filler", the Court noted that the term "cannot just mean something which fills its own space for every solid object does that." Finally, in construing the term "unitary" the Court found that the term "must mean something - a complete whole thing. The claim itself, at a later point, calls it 'an article of manufacture' - items held together in a mould cannot reasonably be so described. It must be remembered that this is a method patent. Putting and positioning two components in the mould is simply a different process from putting a single component in."

This decision is a good read for American patent practitioners to see the differences in analysis between the U.S. and British claim construction systems.

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