So Bass Pro sued for violating the settlement agreement. The district court agreed, finding literal infringement.

The appeals court (CAFC 06-1276), stunned that district court hadn't bothered to pay attention, vacated, because "EZ Chair Combo" had backpack-type straps, not a vest, and hence, did not literally infringe.

Bass Pro's weasel claim construction was that the vest appeared only in the preamble, and was "vest comprising," "comprising" being an expansive term, so the vest part could be ignored. Cabela argued, rightfully, that "vest" is a substantive claim limitation.

Claims are construed to implement the invention described in the specification and prosecution history, within the confines of the prior art. See Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc). It is clear that this patentee procured the patent based on the "unique combination of vest and pivotable seat member" stressed in the prosecution history, see Prosecution History of Serial No. 08/625,753, 1, 7-8 (Aug. 19, 1996), where the applicant placed these limitations in the claims. The district court erred in holding that the "vest" of claim 1 was not a material limitation to the claim.

On the correct claim construction the vest is a material element, and the claim cannot reasonably be found to be literally infringed. See Engel Industries, Inc. v. Lockformer Co., 96 F.3d 1398, 1405 (Fed. Cir. 1996) (literal infringement occurs when "every limitation recited in the claim is found in the accused device"). Absent literal infringement, the contempt order that was issued for violation of the injunction cannot stand and is vacated, along with the accompanying sanctions.

Hal Wegner sizzles the turkey:

While there is much that can be said about the complexities of American claim construction rules as they have evolved in recent years, the Bass Pro case manifests the recurring problem that all too often the trial court has simply gotten it wrong, and would have under any claim construction regime.

If there is any theme to be drawn from Bass Pro it is the ongoing need for reform of the trial level judicial system so that all patent cases are tried before judges given a sufficiently heavy docket of patent cases to gain a high level of expertise. A claim to a simple "vest" is hardly rocket science. The claim construction issue here stares the reader in the face.