Federal Circuit Pitches Claim Construction Curve Ball Rules

Revisiting the rule that claims may not be construed with reference to the accused device, the U.S. Court of Appeals for the Federal Circuit declined to provide its own claim construction, choosing instead to highlight flaws in the district court’s construction because the record on appeal did not provide a description of the accused product. Wilson Sporting Goods Co. v. Hillerich & Bradsby Co. Case No. 05-1103 (Fed. Cir. Mar. 23, 2006) (Rader, J.).

The patent at issue was directed to a softball bat incorporating interior structural members to improve the bat’s impact response. The claim construction dispute focused on the claim terms "gap" and "insert." The district court interpreted "gap" in all the claims to mean "a single continuous space or void between the interior of the frame and the exterior of the insert great enough to allow for deflection across the gap" and interpreted "insert" in all the claims to mean a "rigid, circular, hollow tube having an outer diameter less than