Appeal No. 2005-1431
Application 09/442,070
expressly incorporated by reference, at Columns 5 and 6 thereof, for a listing of a
whole host of nematic and mesomorphic and non-mesomorphic optically active
materials which can be utilized.
Hass patent, col. 6, ll. 38-44 (emphasis added). Furthermore, as in the instant appeal, the
incorporation by reference is applied to the document per se rather than merely to the
material therein which is specifically discussed in the incorporating language. In our
view, it is reasonable to assume that had the court been of the view that an express
incorporation by reference of a document per se is necessarily effective with respect to
the entire contents of the document, the opinion would have so stated. Also, the court
presumably would have further held that as a result the magistrate judge's referral of the
incorporation issue to the jury, which presumably held that sufficient material was
incorporated by the Hass patent to result in anticipation of the West claims, did not
constitute prejudicial error.
Appellants, on the other hand, cite Ultradent, decided before Advanced Display, as
support for construing their express incorporation by reference of the Windows Interface
document as effective with respect to the entire document even though the incorporating
language specifically discusses only the manner of interleaving menu items, which appears only
in Chapter 5. Supplemental Reply at 5. The issue before the Federal Circuit in Ultradent was
whether the district court, in denying a motion for the entry of partial summary judgment against
claims of Ultradent Patents 5,098,303 and 5,234,342 on the ground of anticipation by any one of
a U.S. patent to Rosenthal, a U.S. patent to Munro which refers to the Rosenthal patent, and an
article to Haywood and Heymann, erred in construing the scope and content of that prior art.
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