Digest of FenF, LLC v. SmartThingz, Inc., No. 2014-1490 (Fed. Cir. Feb. 6, 2015) (nonprecedential). On appeal from E.D. Mich. Before Lourie, Moore, O’Malley

Procedural Posture: SmartThingz, Inc. appealed final judgment of infringement and granting of permanent injunction. CAFC vacated and remanded.

  • Claim Construction: The patent separately claims two different embodiments of a foot therapy product: claims 1-34 recite the term “posts,” which must be elastic, and claim 35 recites the generic term “separators.” The district court incorrectly construed “separators” to mean “posts formed of an elastic material (or a material with elastomeric properties) such that they have the ability to stretch and elongate vertically and expand outwardly.” Although the specification described both posts and separators as having related functions, and desirability of having elastic properties, neither the language of claim nor the specification limit the term “separators” to only elastic materials. While the phrase “the present invention” is often a keystone for interpreting a claim in light of the specification, as used in the Summary of the Invention section of the present specification it instead refers to separate embodiments, as the indicated aspects are incorporated virtually verbatim in the claims. The only discussion in the Detailed Description section of separators states that they may be made of various materials, including plastic, silicone and cork, but does not state that separators must be formed of elastic material.