CAFC Construes "Hand-Grip Size Case"

In Kapusta v. Gale Corp. (Fed. Cir., November 15 2005, not citeable as precedent), the court considered a claim to a portable test instrument including a "hand-grip size case" represented by element 72 in U.S. Patent No. 6043663 (left). The court noted that although the term may be of a nonspecific size and shape, it is not ambiguous. Therefore, "The [lower] court should have given the term "hand-grip size case" its ordinary and customary meaning. . . . The ordinary and customary meaning of 'hand-grip size case' is a case of a size that can be gripped in a normal hand. . . . "

The limitation was added after the Board of Patent Appeals and Interferences ("BPAI") rejected the applicant’s broad argument that the invention is distinguishable over the prior art because it is "portable." But the BPAI also pointed ot that "there is no teaching or suggestion in [the references cited upon which the rejection was made] of a hand grip size case and therefore we will not sustain this rejection . . . ."

According to Circuit Judge Lourie, the district court incorrectly established the size dimensions of the "hand-grip size case" from a preferred embodiment described in the specifications and shown in the drawings. He then remanded the case for a determination of just what "can be gripped in a normal hand:"

While we might, on the basis of that meaning, make our own judgment on the question of infringement, based on the record, the better practice is to have the district court make that factual determination on remand. We therefore remand for the court to redetermine whether Gale’s Products meet the limitation as we have construed it.

If it doesn't fit, you must acquit. . . .