Interference No. 103,414
Bond, 25 F.3d 1566, 1571, 30 USPQ2d 1911,
1915 (Fed. Cir. 1994).
In the absence of ambiguity, it is fundamental
that the language of a count should be given the
broadest reasonable interpretation it will support
and should not be given a contrived, artificial,
or narrow interpretation which fails to apply the
language of the count in its most obvious sense.
Only when counts are ambiguous may resort be had
to the application where the counts originated,
and this court does not look to the specification
to determine whether there is an ambiguity.
In re Baxter, 656 F.2d 679, 686, 210 USPQ 795, 802
(CCPA 1981)(citations omitted).
Genentech Inc. v. Chiron Corp. , 112 F.3d 495, 500, 42 USPQ2d
1608, 1612 (Fed. Cir. 1997). As neither party contends the count
is ambiguous, the count will be construed without resort to
either party's involved application. Henry argues that the count
describes a rivet having a head and a shank with two
stages - one stage having a relatively larger diameter
than the other. What Junior Party Ellis has provided
is evidence of an improvement - a third stage - to the
pre-existing two stage rivet claimed in Count 1 and
invented elsewhere by Senior Party Henry. [H.Br. 7.]
Ellis's briefs for final hearing do not challenge Henry's
interpretation of the scope as reciting a "two-stage" rivet,
arguing instead that the count is broad enough to encompass his
three-stage and partially tapered rivets (E.Rep.Br.2). 6 However,
at the oral hearing Ellis argued that Henry's interpretation of
the count is incorrect because it fails to take into account the
term "spaced" in the phrase "a relatively small outer diameter
portion positioned on said body spaced axially inwardly from said
relatively large outer diameter portion" (emphasis added).
6 Ellis's opening brief does not address the question of
count construction.
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