If you’ve ever wondered what the term, “continuous microtextured skin layer over substantially the entire laminate” means, then you’re not alone. The Federal Circuit recently pondered this very thing in deciding a patent infringement case brought by 3M against Tredegar,[1] a supplier of film laminates used in baby diapers, training pants, and adult incontinence products. 3M owned several patents[2] that claimed certain types of laminates used in the waistband or side tabs of baby diapers.

The side tabs are made up of “stretchable films or laminates that allow the [diaper] to expand to fit around the person wearing them[,] with the laminate stabilizing to recover its shape once stretching is complete” (see FIGS. 1 & 2).[3] Whether Tredegar’s film laminates infringed the 3M patents depended in part on the meaning of the term, “continuous microtextured skin layer.”

3M argued the term meant “the skin layer, not the microtexturing, must be ‘continuous’ across the laminate because the adjective ‘continuous’ only modifies the noun ‘skin layer.’”[4] Further, “if the inventors had wished to require the microtexturing to be ‘continuous,’ then they would have used the adverb ‘continuously’ instead of ‘continuous.’”[5] Tredegar argued the term meant “the microtexturing and the skin layer [had to] be ‘continuous’ across ‘substantially the entire surface area of the laminate.’”[6] In other words, the entire laminate had to exhibit microtexturing.

After studying the patent, the Federal Circuit sided with Tredegar. The court found no discussion in the patents which limited the microtexturing to a single skin layer. Instead, the patents referred to “unique continuous microtextured surfaces.”[7]

In a concurring opinion, Judge Plager opined “the nuances of comma usage seem to me a tenuous foundation” on which to base the meaning of a claim.[8] He would rather apply a contract drafting doctrine called contra proferentem to patent claim language.[9] “When a term is ambiguous, . . . the ambiguity should be construed against the draftsman.”[10] Better yet, he thinks an ambiguous term (and therefore the claim) should be “invalidated as indefinite.”[11]

In a dissenting opinion (in part), Judge O’Malley takes the side of “natural reading” or “plain and ordinary meaning” rather than that based on a precise understanding of grammar. Grammatically, Tredegar is right. However, in the judge’s view, as a matter of natural reading (whatever that means), 3M is right. If the word “continuous” was intended to describe the microtexturing, then the adverb “continuously” would have been used because, as “any reader” would know, adverbs modify adjectives.[12] I guess I’m not any reader.

This case reminded me of why so many patent attorneys chose a technical degree over an English degree: because they generally don’t understood the nuances of commas or know that adverbs modify adjectives, verbs and other adverbs, but not nouns. And sometimes neither does the Federal Circuit. For proof, see my bracketed addition in the court’s sentence quoted in paragraph 2 above.