Illustrating the extent to which the Phillips decision is likely to alter claim construction in the future, a panel of the U.S. Court of Appeals for the Federal Circuit, on reconsideration, reversed its earlier decision on several claim construction issues, essentially adopting the positions urged by the dissent (Gajarsa, J.) in the original Federal Circuit opinion. Nystrom v. Trex Co., Case No. 03-1092 (Fed. Cir. Sept. 14, 2005) (Linn, J.).Nystrom involved a patent dispute over material used in flooring surfaces in which a number of claim terms were in dispute. In its earlier opinion, the Court, applying the plain meaning rule, construed one of the most prosaic of claim terms, "board," to not be limited to a board cut from a log. In its new post-Phillips decision, the Court, after examining the term "in the context of the written description and prosecution history" and agreed with the district court that the term "must be limited to wood cut from a log." Declining Nystrom’s dictionary offerings (which only required a rigid member of a similar shape to a piece of cut wood), the Court noted, "Nystrom is not entitled to a claim construction divorced from the context of the written description and prosecution history."
However, the Court did use the dictionary for a definition of the claim term "convex" as applied to the top surface of the board in refusing to impart any radius of curvature limitation onto that term. After considering positions taken by Nystrom during the prosecution, the Court determined the arguments made regarding what was and was not an acceptable range of curvature were directed to a specific pending claim reciting a range of curvatures and not to the meaning of the term "convex top surface" as it appeared in the broadest claim. Thus, the Court reversed the district court’s construction, which limited the broad claims to boards having a specific range of radii of curvatures.
The Court also faulted the district court for its reliance on computer models of so-called prior art board, made based on illustrations in the prior art, as anticipating the claims. Citing Hockerson–Halberstadt, the Court instructed that it is error to rely on non-dimensioned drawings or illustrations without a written disclosure of dimensions to anticipate a claim: "…the speculative modeling premised on unstated assumptions in prior art patent drawings cannot be the basis for challenging the validity of claims reciting specific dimensions not disclosed directly in such prior art."
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