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ARTICLE · 21 MAY 2015

ArcelorMittal And The Federal Circuit: When Is Re-Issue Broadening?

Smart & Biggar
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ArcelorMittal's US patent 6,296,805 had been judicially interpreted by the US Court of Appeal for the Federal Circuit. The patentee thereafter sought, and obtained, a re-issue, RE 44,153.

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Bereskin & Parr LLP
Bereskin & Parr LLP
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ArcelorMittal v. AK Steel, Fed. Cir. May 12, 2015

ArcelorMittal's US patent 6,296,805 had been judicially interpreted by the US Court of Appeal for the Federal Circuit.1 The patentee thereafter sought, and obtained, a re-issue, RE 44,153. It was filed more than two years after the original grant, and so it was necessarily a narrowing re-issue. In the re-issue the patentee added two dependent claims. Although the claims were narrowed in terms of form, the substantive effect of the dependencies was to force a broader interpretation of the independent claim than had been made by the Federal Circuit.

The defendants sought a declaration of invalidity of RE 44,153 as an impermissible broadening outside the statutory two year period. US Delaware D.C. granted summary judgement. ArcelorMittal appealed. ArcelorMittal argued that the new interpretation by the PTO was new evidence to support reconsideration of the previous claim interpretation.

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