Heralding a possible en banc consideration of the written description rule from the 1997 Eli Lilly case, and further eroding that rule, the U.S. Court of Appeals for the Federal Circuit affirmed denial of a motion for judgment as a matter of law (JMOL) of a jury verdict of validity in a case where claims to an egg sorting machine were construed to cover a conveyor design that was not illustrated or described in the written description of the patent in suit. Moba, B.V. and FPS Foodprocessing Systems, Inc. v. Diamond Automation, Inc., Case No. 01-1063, 01-1083 (Fed. Cir. April 1, 2003).
The patent in suit is directed to an egg sorter. Foodprocessing Systems, Inc. (FPS) contended that if the conveyer element of the patent claims was construed to encompass lifting eggs from a moving conveyor, the claims would be invalid as no such conveyor mechanism is disclosed in the patent. Two prior Federal Circuit decisions were distinguished in this case: Gentry Gallery and Eli Lilly.
