Court Construes "Substantially Flattened" and "Means for Limiting Movement"

In Playtex Products, Inc. v. Procter & Gamble Company, et al., (Fed. Cir.; March 7, 2005)the court construed "substantially flattened surfaces" and "means for limiting the movement of said plunger" in connection with US Patent No. 4,536,178 for a tampon applicator shown above.

On the first point, the court noted, among other things, that the disputed claim term is clearly a comparative term.

Comparison requires a reference point. Therefore, to flatten something, one must flatten it with respect to either itself or some other object. In the context of the claim, the term "flattened" requires a comparison between the diametrically opposed surfaces and something else. The only antecedent basis in the claim is the tubular barrel. Playtex, therefore, claimed something flatter than a tubular barrel, but not necessarily something flat.

On the second point, the parties agreed that claim 9 is a means-plus-function claim under 35 U.S.C. § 112 ¶ 6 but disputed the corresponding structure of the limiting means. Playtex argued that the claim term "limiting means" should be restricted by the sole drawing of the structure, notwithstanding its broader description in the specification.

But, the court noted that the text of the written description clearly describes how the structure of the "limiting means" is broader than the single embodiment depicted in the drawing. In particular, although the only drawing in the specification depicting the limiting means shows a plunger with a curved lip at both ends, the abstract stated that "[o]ne manner of limiting the movement of the plunger is by providing at least one curled lip integral with the inner end of the plunger and engageable with the angled shoulders and preferably a second curled lip integral with the outer end of the plunger and engageable with the plunger entry area of the barrel."

The appellate court went on to vacate the summary judgment non-infringement determination because the district court erred in its construction of the claim term "substantially flattened surfaces" and based its holding on an improperly construed claim. It then added "we conclude that, based on the disposition of this appeal, a reasonable jury may also find that the Tampax Pearl applicator design infringes the patent under a doctrine of equivalents analysis."