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In re Fought

Term That is Antecedent Basis for Other Clauses is Generally Limiting

In re Fought, __ F.3d __, 2019 WL ____ (Fed. Cir. Nov. 4, 2019) (Newman, MOORE, Chen) (PTAB) (1 of 5 stars)

Fed Cir reverses rejection of claims as anticipated. David Fought is a co-inventor on claims relating to a travel trailer comprising both a living quarters and a garage. The PTAB erred in determining that the claims were not limited by “travel trailer” (as in, “A travel trailer having a first and second compartment . . .”). First, subsidiary clauses rely on “a travel trailer” for antecedent basis, indicting that the term is limiting as per C.W. Zumbiel, 702 F.3d 1371 (Fed. Cir. 2012), etc. Second, to the extent the Board relied on extrinsic evidence to indicate that “travel trailers” are not structurally different from other recreational vehicles, that finding is not supported by substantial evidence, and the opinion reasons that a travel trailer’s “towability” and incorporation of living areas are structural requirements, not statements of intended use. On remand, the Board should apply the correct construction. Mr. Fought’s allegation of error based on the Board not expressly stating the level of ordinary skill is meritless because Mr. Fought never placed the level of skill in dispute, and did not explain how it would alter the outcome.

KEYWORDS: CLAIM CONSTRUCTION; LEVEL OF ORDINARY SKILL