Looking over Abraham Lincoln’s patent the other day, I noticed the boilerplate portion of his specification. It reads:
I wish it to be distinctly understood, that I do not intend to limit myself to any particular mechanical arrangement, in combining expansible buoyant chambers with a vessel, but shall vary the same as I may deem expedient, whilst I attain the same end by substantially the same means.
Courts from time to time have pointed to boilerplate to support their positions. Indeed, this happened just the other day in Judge Prost’s opinion for the court in Aventis Pharma v. Hospira, __F.3d __ (Fed. Cir. 2012)(emphasis added):
This interpretation of “perfusion” also is consistent with the teachings of the specification. Although the specification does refer to perfusions with a stability of at least eight hours, see ’561 patent col.2 ll.43-45 (”The new perfusions [referring to examples in the specification] are stable from a physical standpoint, that is to say no precipitation phenomenon is seen to appear within approxi-mately 8 hours.”), and the disclosed examples of perfu-sions have stabilities exceeding eight hours, see id. at col.2 l.59-col.3 l.26, these general descriptions of the characteristics of embodiments do not suffice to limit the claims. See Thorner, 669 F.3d at 1366 (”It is likewise not enough that the only embodiments, or all of the embodi-ments, contain a particular limitation.”). Indeed, the specification expressly instructs that the disclosed examples “are not to be considered as limiting the invention.” ’561 patent col.2 ll.53-54. Moreover, in contrast to the specification’s discussion of anaphylactic and alcohol intoxication manifestations, nothing in the specification indicates that a minimum stability of eight hours is an essential feature of the claimed perfusion or an advantage of the perfusion over the prior art. See Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906-09 (Fed. Cir. 2004) (distinguishing cases where the court narrowly construed an otherwise broad claim term).
The authors of the book “Drafting Patents for Litigation and Licensing” have documented other occasions where the presence of boilerplate, as well as the omission of boilerplate, was noted by a court. For example, in Rexnord Corp. v. Laitram, 274 F.3d 1336,1345 (Fed. Cir. 2001), Judge Clevenger writing for the court said:
Moreover, the written description explicitly states that aside from the preferred embodiment, “[t]he invention is capable of other embodiments and of being practiced or being carried out in various ways.” ‘550 patent, col. 3, ll. 57-59. The inventor was careful to consistently use phrases throughout the written description such as: “In one embodiment …”, “Before one embodiment …”, “of other embodiments …”, “of a preferred embodiment …”, or “In the particular embodiment….” These phrases reflect the inventor’s teaching that his invention could be embodied “in various ways.” Finally, the inventor explicitly qualified his detailed “Description of A Preferred Embodiment” by stating that “it is to be understood that the invention is not limited in its application to the details of construction and the arrangements of components set forth in the following description or illustrated in the drawings.” ‘550 patent, col. 3, ll. 54-57.
In contrast, the omission of boilerplate was noted by a district court judge in Honeywell Intern., Inc. v. ITT Industries, Inc., 330 F. Supp. 2d 865, 880 n. 12 (E.D. Mich. 2004):
Importantly, there is absolutely nothing in the specification to contradict this characterization by implying that the invention is broader than a fuel filter or that a fuel filter is merely an example part.12
Footnote 12. For example, the boilerplate statement that other embodiments and variations will be readily apparent to persons of ordinary skill in the art, which appears in many patents after the written description and before the claims, is not present in the ‘879 patent.