Broadened Claims : US PTO Litigation Alert™

Kimberly Clark Loses “Broadened” Patent Claim

Scott Daniels | March 20, 2013

With all the activity surrounding the new AIA inter partes review trials, it is easy to forget that accused infringers are still getting good results from traditional ex parte reexamination, even where the patent emerges from the Patent Office with patentable claims.

Yesterday, for instance, Judge William Caldwell of the Middle District of Pennsylvania granted summary judgment in Kimberly Clark v. First Quality Baby Prods., 2013 U.S. Dist. LEXIS 37493 (M.D. Pa. March 19, 2013), holding that claim 34 of U.S. Patent No. 5,496,298 was invalid because it had been broadened in reexamination.  The Patent Statute states in part that “[n]o proposed amended or new claim enlarging the scope of a claim of the patent will be permitted in a reexamination proceeding under this chapter.”  35 U.S.C. § 305.  To determine whether a claim has been impermissibly broadened, the courts “compare the scope of the original claim and the new claim [, and if] the new claim covers any subject matter that would not have fallen within the scope of the original claim, then the new claim is broader.”

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