Interference No. 105,113
C. Cheung Preliminary Motion 2
The parties disagree as to whether Ritzdorf's claims should be construed in light of
Ritzdorf's '613 application disclosure or in light of Cheung's patent, where the claim language at
issue originated. Ritzdorf, citing In re Spina, 975 F.2d 854, 856, 858, 24 USPQ2d 1142, 1144,
1145 (Fed. Cir. 1982) and Rowe v. Dror, 112 F.3d 473, 479, 42 USPQ2d 1550, 1554 (Fed. Cir.
1997), would have us construe the claims in light of Cheung's patent (Opposition 2, at 16-17).
Cheung, quoting the requirement of 37 CFR § 1.633(a) that "[i]n deciding an issue raised in a
motion filed under this paragraph (a), a claim will be construed in light of the specification of the
application or patent in which it appears," correctly argues that Ritzdorf's claims should be
construed in light of Ritzdorf's disclosure. Motion 2, at 166; Reply 2, at 2. See also Cultor Corp.
v. A.E. Staley Mfg. Co., 224 F.3d 1328, 1332, 56 USPQ2d 1208, 1211 (Fed. Cir. 2000):
Every patent claim is construed in the context of the specification in which
it appears as part of the patent document. When a claim is copied from another
patent for interference purposes, it must be supported by the specification of the
copier. In Spina the application into which the claim was copied was deemed to
contain sufficient written description to support the claim, although the structure
by which the claimed function was performed was not the same as the structure
shown in the specification from which the claim was copied. The court in Spina
did not hold that the copier of a claim for interference purposes thereby acquires
the benefit of the descriptive text of the copied patent.
The claims to which Cultor demonstrated priority in the interference are
construed in light of Cultor's specification; it becomes irrelevant whether the
specific text of the claim was copied from the interfering patent. See Young
Dental Mfg. Co. v. Q3 Special Prods., Inc., 112 F.3d 1137, 1143, 42 USPQ2d
6 Specifically, the motion asserts that "the involved Ritzdorf application fails to provide a
written description for the annealing chamber claim limitations, interpreted in light of Sach's [sic:
Ritzdorf's] application (37 CFR 1.633(a)), rendering the claims unpatentable under 35 USC 112,
first paragraph."
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