Retractable Technologies

Supreme Court CVSG Order including Cybor de novo Claim Construction

Today in Retractable Technologies, Inc. v. Becton, Dickinson and Co., Supreme Court Nos. 11-1154, 11-1278, the Court issued a CVSG Order which asks the Solicitor General to file an amicus curiae brief advising whether it should grant certiorari. The vote on certiorari is thus deferred until at least late this year following the filing of the government brief. (There is no time limit running for a CVSG filing.)

The two Questions Presented in the first petition are reproduced below, including a challenge to appellate de novo claim construction under Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448 (Fed.Cir.1998) (en banc).

The opinion below is found at 653 F.3d 1296 (Fed. Cir. 2011)(Lourie, J.), reh’g den., 659 F.3d 1369 (2011).

Questions Presented in No. 11-1154: “In this case, two district judges construed the term ‘body’ in a patent claim to include multi-piece bodies as well as one-piece bodies. On appeal, a sharply divided panel of the Federal Circuit reviewed the district court’s claim construction de novo and construed the term ‘body’ to mean ‘one-piece body,’ based upon language in the patent specification.

“The Questions Presented are:

“1. Whether a court may depart from the plain and ordinary meaning of a term in a patent claim based on language in the patent specification, where the patentee has neither expressly disavowed the plain meaning of the claim term nor expressly defined the term in a way that differs from its plain meaning.

“2. Whether claim construction, including underlying factual issues that are integral to claim construction, is a purely legal question subject to de novo review on appeal.”

About Harold Wegner (756 Articles)



Foley & Lardner LLP


Harold C. Wegner is a partner in the international law firm of Foley & Lardner LLP, where he is actively engaged in cutting edge domestic and international patent issues. Domestically, Prof. Wegner focuses upon appellate patent issues as well as reexamination and other complex matters at the U.S. Patent and Trademark Office. Globally, Prof. Wegner crafts strategies for multinational and particularly Chinese and Japanese patent enforcement and management.

Prof. Wegner is the former director of the Intellectual Property Law Program at the George Washington University Law School, where he had been a professor of law; he continues his affiliation with George Washington as member of the Dean’s Advisory Board. He has been a visiting professor at Tokyo University and spent several years as a Mitarbeiter at the Max Planck Institute for Intellectual Property Law in Munich followed by service as a Kenshuin at the Kyoto University Law Faculty.

Prof. Wegner holds degrees from Northwestern University (B.A.) and the Georgetown University Law Center (J.D.). He started his career as a patent examiner. In 1980 he founded his own law firm; in 1994 he merged his practice into the Foley firm.