After Phillips, Panel Decision Pits Dictionary Definitions and Plain Meaning Against the Intrinsic Evidence

Illustrating the extent to which the Phillips decision is likely to alter claim construction in the future, a panel of the U.S. Court of Appeals for the Federal Circuit, on reconsideration, reversed its earlier decision on several claim construction issues, essentially adopting the positions urged by the dissent (Gajarsa, J.) in the original Federal Circuit opinion. Nystrom v. Trex Co., Case No. 03-1092 (Fed. Cir. Sept. 14, 2005) (Linn, J.).Nystrom involved a patent dispute over material used in flooring surfaces in which a number of claim terms were in dispute. In its earlier opinion, the Court, applying the plain meaning rule, construed one of the most prosaic of claim terms, "board," to not be limited to a board cut from a log. In its new post-Phillips decision, the Court, after examining the term "in the context of the written description and prosecution history" and agreed with the district court that the term "must be limited to wood cut from a log." Declining Nystrom’s