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Central Admixture Pharmacy Services, Inc. v. Advanced Cardiac Solutions, P.C.
2006-1307, 2007 WL 96793, Fed.Cir.(Ala.), 04/03/2007
Holding
A patentee who has made “a mistake of a clerical or typographical nature, or of minor character” may apply to the Patent and Trademark Office (PTO) for a certificate of correction, if the correction does not involve such changes in the patent as would constitute new matter or would require re-examination. However, such certificate may be invalidated for “impermissible broadening” upon proof of two elements: (1) the corrected claims are broader than the original claims; and (2) the presence of the clerical or typographical error, or how to correct that error, is not clearly evident to one of skill in the art.
Detailed Summary
This case is an appeal from the district court’s judgment rendered in favor of plaintiff which filed the patent infringement suit involving its chemical solution used during heart surgery. Prior to the filing of the suit before the trial court, plaintiff applied with the PTO for the issuance of a certificate of correction to replace all instances of the word “osmolarity” in plaintiff’s patent with the word “osmolality.” This certificate was issued when the suit was already pending before the trial court. It is on the basis of this corrected patent that the trial court found that infringement was committed by defendant. The appellate court however disagreed on the ground that the certificate of correction was invalid since it broadened the coverage of the patent claim. It said that a mistake in the patent claim that, “if corrected, would broaden the scope of a claim cannot be a mistake of ‘minor character.’ ” The two terms, which each describe the concentration of a chemical solution contributing to that solution’s osmotic pressure, are related but subtly different in meaning. The claim as defined under the certificate of correction covered less-concentrated solutions which would not be covered under the original claims, and the error corrected was not clearly evident to one of skill in the art. The Court of Appeals therefore ordered the remand of the case to the trial court in order for it to determine whether infringement was committed under the patent’s original, uncorrected claims.
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