Adding a Layer to the Rule, Without Precedent – AFG v. Cardinal

According to the CAFC rules, a nonprecedential opinion is one not “adding significantly to the body of law.”  So then, why make new law, then mark the opinion nonprecedential.  This term of the CAFC might be called the ‘do-over’ term, in view of the number of appeals being reviewed for a second time, e.g., Liebel-Flarsheim, AquaTex, Transclean, E-Pass, Fuji (Jazz), Aspex, etc. 
Add to those, AFG Indus. v. Cardinal IG, (CAFC 03/30/07).  Over a dissent, the panel goes nonprecedential to create “exceptions” to a well-grounded rule of interpretation for product claims.  Quare: when a 2-1 nonprecedential ruling creates exceptions, may those “be employed or cited as precedent”?  CAFC Rule 47.6(b).  We’ll wait until that ‘tree falls in the woods’ and see.

The better rule was that patent claims for a product are “not limited to the process by which it was made.”  Vanguard Prods., 234 F.3d at 1372.  Without citing a case, the AFG Indus. (II/IIIrds) panel baldly states there are “exceptions” to that rule “when the validity of the patent depends on the use of a particular process.” 

With no case on point to cite for these “exceptions”, the 2/3rds panel opts for the maxims of “construed so as to sustain their validity” and the “statutory presumption of patent validity.”  If the ‘construe for validity’ tenet has validity after Liebel-Flarsheim, and also, lends itself to creating “exceptions” to the rule on construing article of manufacture claims as articles and not as products of any process, then does not this nonprecedential ruling add “significantly” to claim construction law?  The supposed caveat to any broad application of these “exceptions” is in the last clause of the same sentence, which perhaps limit application to product claims, whose validity depends on use of a particular process, but only “when such construction is supported by the record.” M’excuser?

In the beginning there was a rule, which begat exceptions, and from that were spawned limits on applying the exceptions  – what then became of the rule.