Patently-O
Claimed "Insert" Limitation Creates Product by Process
“insert（插入物）” 解釋成“用以插入的物”
On appeal, the CAFC agreed with Miken that the insert limitation required an element that was “put or fit into something else.” Consequently, Miken’s products cannot infringe because the accused structural members were never “inserted or intended for insertion.”
因此，不能解釋成“內部結構元件”“多牆結構”。
Miken Composites v. Wilson Sporting Goods (Fed. Cir. 2008)
To contend, however, as Wilson does, that it does not matter whether an insert is placed into a pre-existing frame or whether a frame is built around it ignores that ordinary and customary meaning, notwithstanding Wilson’s attempts to categorize the term “insert” as “purely structural.” The issue would have been different if the claims contained the language argued in Wilson’s briefs; to wit, “internal structural member,” Wilson Br. at 31, 38, or “multi-wall product,” Reply Br. at 3, but they do not. It is the language of the claims not the argument that governs.
心得：
標的為物之Claim中，所使用的語言，最好儘量使用靜態用語及結構性的用語，少使用具有動詞暗示性的用語。
使用動態用語或動詞暗示性的用語，很有可能會被解釋成Product by Process的claim，雖然判決中法官說不是Product by Process而是功能代表結構的用語，但我怎麼看怎麼讀都覺得是滿像Product by Process。
As for Wilson’s contention that the district court impermissibly imported a process limitation into a product claim, we disagree. As we have discussed, the district court merely adopted an ordinary meaning of the term “insert.” Summary Judgment Opinion at 11. That this ordinary meaning has functional attributes does not change the fact that the claim recites a structural component, albeit one possessed with certain understood characteristics.
