The Claims Interpreted Report

Markman Construction of “Along” based on the Specification

By Chris Francis

Categories: The Claims Interpreted Report

In Stern v. Globus Medical in the District of Delaware (Civil Action No. 1:16-cv-91-RGA), the Markman construction of the claim term “along a longitudinal axis” was “on line or course parallel or close to,” i.e., not necessarily on the longitudinal axis.  A representative one of the patents at issue is US8,556,895.

Representative language from claim 1 reads: “at least one interlocking portion arranged on the cervical plate body along a longitudinal axis thereof.”

The plaintiff proposed that “along a longitudinal axis” be construed as “located on or over.”  The defendant argued that the term should be construed as “on a line or course parallel or close to,” because there is nothing in the specification that limits “along” the axis to mean “on” the axis, and, in fact, “at least one of the embodiments disclosed in the patent has an interlocking portion that is comprised of two arms that are parallel to a longitudinal axis but not centered on the plate.”  Based on these factors, the Court agreed with the defendant’s proposed construction.

This case is a reminder that consistent use of the terms across various embodiments can play a critical role in claim construction.  In the case of words like “along” that have two reasonable constructions, a clear definition in the specification can be key to achieve a desired claim construction.  In this case, if “along the longitudinal axis” was intended to mean “on the longitudinal axis,” then a definition in the specification and consistent use across embodiments may have been useful in obtaining such a claim construction.