Opinion
Case No. 05-0061.
September 20, 2006
ORDER DENYING MOTION FOR RECONSIDERATION
On August 18, 2006 the Court entered an Order on Claim Construction. In construing the phrase "a connecting member" the Court looked to International Publication WO 99/39878 which effectively construed the phrase. The International application was incorporated by reference in the specification of the patent-in-suit. Defendant argues in a motion styled
Motion for Reconsideration of Court's Markman/Claim Construction Ruling or, in the Alternative, to Re-Open Briefing on Claim Construction
that the incorporation is improper because it is prohibited by the Manual of Patent Examining Procedure because it did not meet the test of "essential matter." The motion is DENIED.
The patent was issued with the incorporated by reference language col. 7: I 65; col. 14: I 53. Also, WO 99/39878 was listed on the facing page of the patent-in-suit as a References Listed/FOREIGN PATENT DOCUMENTS. Lastly, as stated by plaintiff in its Brief in Opposition to Defendants' Motion for Reconsideration (p. 3):
In ascertaining the intended meaning of the claims, the skilled artisan could certainly read the PCT application, and this Court properly did so as well.
SO ORDERED.