D THREE ENTERPRISES, LLC v. SUNMODO CORPORATION, Appeal Nos. 2017-1909 and -1910 (Fed. Cir. May 21, 2018).  Before Reyna, Clevenger and Wallach.  Appealed from D. Colo. (Judge Shaffer).  (Priority; Written Description)


D Three sued SunModo and Rillito River for infringing claims of three patents directed to roof mount sealing assemblies.  SunModo’s products were available to the public in 2010, and Rillito River’s products were available in 2009.  In order to antedate these products, D Three needed to rely on the earliest effective filing date of the priority application (February 5, 2009) for written description support.

The district court determined that the asserted claims could not rely on the

February 5, 2009, priority date because the asserted claims were broader than the invention disclosed in the priority application.  As a result, the district court found the defendants’ products to be intervening prior art that rendered the asserted claims invalid.  D Three appealed.


Did the district court err in holding that the claims were not entitled to the priority date and thus invalid?  (continue reading)

Summary by:  Graham Nelson

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