News

News and Recent Developments

What Do You Do When the ASTM Standard is Unclear?

In Pacific Coast Building v. CertainTeed Gypsum, the Fed. Cir. affirmed the district courts holding as indefinite the term “scored flexural strength.”  Patentee had discovered a laminated structure of two gypsum board, without paper cladding between layers of gypsum, having a specific scored flexural strength.  The laminated structure allowed for cutting by a traditional drywall scoring technique.  Patentee coined the term “scored flexural strength” as the ASTM C 473-06a flexural strength after scoring an outer paper layer of the laminated structure.  However, ASTM C 473-06a sets forth measuring the flexural strength in four different orientations and that the average for each test condition should be calculated.  While the specification reports averaging the force from four test samples there was insufficient detail to described which of the our different flexural strength methods was used.  The Fed. Cir. agreed with the district court that the patent failed to provide guidance to one of ordinary skill on how to measure this new characteristic.  CertainTeed’s expert provided testimony that the absence of details would affect the scored flexural tests.  Practice tip, get as much detail of your measurement technique, as possible, especially if you are describing a new characteristic.  Even relying in an international standard for testing can be perilous.

Richard Chinn