Anticipate This!™ | Patent and Trademark Law Blog

They Invented What? (No. 83)

Posted in They Invented What? by Jake Ward on January 22, 2008

U.S. Pat. No. 5,413,328: Body supported sports target and method.



To entertain fans at sporting events, such as baseball, basketball backboards, palm trees, hockey and soccer goals are provided as targets for fans to participate by tossing objects at the target. Targets are strapped to a person moving through the stands. In one configuration the target is attached to a backpack and raised over the head using a telescoping mechanism attached between the target and the backpack worn by the operator. In another configuration the target is attached to a helmet worn by the person working the crowd. Both the helmet and backpack arrangement use mounting brackets for attachment of the target members. To telescope the target overhead from the backpack, concentric tubes are extended from within each other using a pulley and cable system controlled by the operator.

What is claimed is:

1. A body supported sports target comprising:

a target member having an image affixed to a surface of the target member, the member having a perimeter dimensioned to form a silhouette of the image;

a container affixed to the target member, the container having an open portion for receiving an object tossed at the target member and a closed portion for holding the object;

a multiplicity of concentric generally tubular members each having distal ends and proximal ends, the members having an innermost tubular member and an outermost tubular member, the innermost tubular member distal end affixed to the target member;

means affixed to the tubular members for telescoping the concentric tubular members from a first position wherein the tubular member distal ends are proximate each other to a second position wherein the distal ends are separated by a distance sufficient to extend the target member a predetermined distance above a head of a person operating the target; and

means for affixing the outermost tubular member to the person operating the target.


Baldwin Graphic Systems v. Siebert.

Posted in Opinion Commentary by Jake Ward on January 22, 2008

If an initial phrase carries no definitive numerosity, an anaphoric phrase does not alter the meaning in the slightest.

(Fed. Cir. 2008, 07-1262)


Baldwin sued Siebert for infringement of Baldwin’s U.S. Pat. No. RE35,976 and U.S. Pat. No. 5,974,976, relating to  a device and method for cleaning a cylinder of a printing press.  On appeal from the district court (N.D. Ill.), the CAFC determined that the district court erred by construing the term “a pre-soaked fabric roll” to mean “a singlepre-soaked fabric roll”, and by construing the phrase “reduced air content cleaning fabric” to mean “a fabric whose air content has been reduced by some method prior to being wound on a roll.”  The CAFC agreed, however, with the construction of the term “sealed sleeve” to mean “heat-sealed sleeve.”

In relation to the construction of the claim term “a pre-soaked fabric roll”, the CAFC first reiterated that the “court has repeatedly emphasized that an indefinite article ‘a’ or ‘an’ in patent parlance carries the meaning of ‘one or more’ in open-ended claims containing the transitional phrase ‘comprising.’”  The exceptions to this rule are extremely limited:  a patentee must “evince[ ] a clear intent” to limit “a” or “an” to “one.” 

There was no clear indication in the record of the patents that the applicant departed from the general rule for the article “a.”  The claim language, specification, and prosecution history of the patents at issue did not compel an exceptional reading of “a”.  Additionally, since the initial indefinite article (“a”) carried either a singular or plural meaning, any later reference to that same claim element in a singular form merely reflected the same potential plurality.  Or, as the opinion so eloquently states:

In grammatical terms, the instances of “said fabric roll” in the claim are anaphoric [definition] phrases, referring to the initial antecedent phrase.  Because the initial phrase carries no definitive numerosity, the anaphoric phrases do not alter that meaning in the slightest.

In relation to the construction of the phrase “sealed sleeve”, the court noted that it has “consistently recognized that the Patent Act prevents an applicant from adding new subject matter during the patent prosecution process.”  The record indicated that during prosecution the Examiner had refused to allow the applicants to amend the specification to remove references to “heat” as the way of sealing the sleeve because such amendment would have broadened the patent and introduced impermissible new matter not included in the initial disclosure.  Thus, the court was correct in refusing to broaden the term “sealed sleeve” to mean more than a “heat-sealed sleeve”.

Finally, the CAFC disagreed with the construction of the term “reduced air content cleaning fabric”.  The district court had apparently seized on the parties’ agreement that the term “reduced air content cleaning fabric” in the independent apparatus claim and the step “reducing air content of a strip of cleaning fabric” in the independent method claim were substantially similar, to erroneously construe the limitations.  “Courts must generally take care to avoid reading process limitations into an apparatus claim.”  “Courts must [also] carefully avoid importing limitations from the specification into method claims.”  The claims themselves contained no basis to require air content reduction before winding.  Citing Phillips v. AWH, the CAFC noted that the “district court effectively imported limitations it saw in dependent claims into the independent claims, contrary to basic claim construction principles.”  Thus, the district court erred in limiting “reduced air content cleaning fabric” to “a fabric whose air content has been reduced by some method prior to being wound on a roll.”