In re Nordt Development Co. LLC, 020818 FEDFED, 2017-1445

Docket Nº:2017-1445
Opinion Judge:Stoll, Circuit Judge.
Party Name:IN RE: NORDT DEVELOPMENT CO., LLC, Appellant
Attorney:Jeremy Cooper Doerre, Tillman Wright PLLC, Charlotte, NC, argued for appellant. Joseph Gerard Piccolo, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, argued for appellee Joseph Matal. Also represented by Nathan K. Kelley, Thomas W. Krause, William LaMarca.
Judge Panel:Before Moore, Taranto, and Stoll, Circuit Judges.
Case Date:February 08, 2018
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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IN RE: NORDT DEVELOPMENT CO., LLC, Appellant

No. 2017-1445

United States Court of Appeals, Federal Circuit

February 8, 2018

Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. 13/241, 865.

Jeremy Cooper Doerre, Tillman Wright PLLC, Charlotte, NC, argued for appellant.

Joseph Gerard Piccolo, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, argued for appellee Joseph Matal. Also represented by Nathan K. Kelley, Thomas W. Krause, William LaMarca.

Before Moore, Taranto, and Stoll, Circuit Judges.

Stoll, Circuit Judge.

Nordt Development Co., LLC appeals the Patent Trial and Appeal Board's decision affirming an examiner's rejection of claims 1 and 14 of U.S. Patent Application No. 13/241, 865. Ex Parte Nordt, No. 2015-001233, 2016 WL 6560183 (P.T.A.B. Nov. 1, 2016). For the reasons below, we disagree with the Board's claim construction of "injection molded" as a process limitation with no patentable weight, vacate the Board's finding of anticipation, and remand for additional proceedings consistent with this opinion.

Background

The '865 application is directed to an elastic knee brace having a framework (106) and a hinge (108) with a strut (112) and arm components (114, 116). Application Figure 1 is shown below and illustrates a side perspective view of the front of the knee brace. The elastic nature of the knee brace allows for and aids in the flexing of the knee.

(IMAGE OMITTED)

Claim 1 is representative of the two claims at issue on appeal: 1. A support for an area of a body that includes a hinge joint, comprising:

(a) a hinge mechanism comprising an injection molded strut component and injection molded first and second arm components;

(b) an elastically stretchable framework injection molded about the strut and arm components of the hinge mechanism, the framework being configured to extend across the hinge joint of the area of the body, and the framework defining a flexible, elastically stretchable web of elastomeric interconnecting members;

(c) wherein the first arm component is connected to the strut component such that the first arm component is rotatable relative to the strut component only about a first pivot axis;

(d) wherein the second arm component is connected to the strut component such that the second arm component is rotatable relative to the strut component only about a second pivot axis; and

(e) wherein the strut component is configured to extend with the framework across the hinge joint such that the first pivot axis is located on a first side of the hinge joint and the second pivot axis is located on a second, opposite side of the hinge joint.

Nordt, 2016 WL 6560183, at *1 (emphases added).

The specification describes the "injection molded" aspect of the invention in a section titled "Preferred Manufacturing Methods" near the end of the written description. This section includes the following relevant paragraphs: [¶140] The supports of the invention and, in particular, the embodiments collectively shown and described above preferably are manufactured in injection molding processes, whereby the various components of each embodiment of the support, including, inter alia, the framework and strut components, are integrally formed from elastomeric materials. The...

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