in re schemberger

In re Schwemberger, 2010 BL 242754 (Fed Cir. Oct. 13, 2010)

P is a named inventor on a patent application for a curved surgical stapler (patent application ‘909). The instrument includes a support frame with a handle at one end and an “end effector” which supports the stapling mechanism. The end effector region is movable to allow for different angles of stapling.
The application received a rejection notice for claims 1-30 for being obvious.

P filed application and was rejected. P appealed to the Board and they affirmed the examiners rejection. P appeals again to the current court. Court affirmed decision of Board.

Whether the Board improperly construed the term “bottom tissue retention feature” in holding that the claims were obvious when compared to prior art.

The Court held that the Boards ruling that the language in the claims were properly afforded their ordinary meaning because the specification did not provide any clear definition of the disputed terms. When reviewing the claims with their ordinary meanings the court found that the prior art ‘503 patent covered the “bottom tissue retention member limitation” and thus made the claim obvious.
The court noted, but did not give credence to P's claim that they attempted to act as their own lexicographer because of the lack of context in the specification.


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