There’s no rule against blawg-citing a non-precedential, interlocutory ruling, with dissent, from the CAFC.

In the typical, nonprecedential CAFC ruling (if any there have been), the rule of plain and ordinary meaning is applied. The atypical exception is where a ruling is denominated nonprecedential as a way to relegate it to the waste heap of deviations from precedent.  Out of the Box v. Bonaka (1/15/08 CAFC) may be a fitting caption for this 2-1 nonprecedential affirmance. Quare: is an opinion that departs from precedent appropriately designated nonprecedential because it does not add to the body of established law?

With Out of the Box, the claimed box had a bottom panel “joined between” side panels. The patentee wanted “between” to include a panel that joined the side panels even if it extended past the joints. That would be, like ya’know, common and ordinary meaning. Indeed, the CAFC acknowledged it was “correct that the preposition ‘between’ could be used to describe something that extends beyond the bounds of the objects of the preposition.” (Try to diagram such a sentence). What then could take away that plain and ordinary, even Markmanesque, meaning? The “written description and drawings of the ’104 patent do not support such a broad interpretation of the term ‘between’ in the claims.” Let us return to the lessons of yesteryear. Claim terms enjoy an ordinary meaning, unless it is a specialized term in the art, or unless the applicant “unequivocally” disclaims that meaning. Well, actually, there is a third, albeit nonprecedential rule that can cut away the plain meaning of a term: the it’s not in the FIGS. rule.

The dissent fairly notes that “between” is not a limiting or narrowing term. Think of the cross-bar between the vertical lines of the symbol Pi, which extends a bit past the joining points. The present ruling is that no preliminary injunction would issue, but the claim construction in an injunction setting is interlocutory. So, the term is still fair game between a full-scale Markman hearing on remand, and perhaps a second appeal.