Barrette Outdoor Living Inc. v. Fortress Iron LP and Fortress Fence Products LLC Archives

Boss move: Disclaimer that doesn’t work can still work as a disclaimer

The US Court of Appeals for the Federal Circuit affirmed a district court’s judgment of noninfringement and no invalidity for indefiniteness, concluding that the court correctly construed the claims and properly determined that the patents’ specifications and prosecution histories would enable a person of ordinary skill in the art (POSA) to ascertain the scope of the claims with reasonable certainty. Barrette Outdoor Living, Inc. v. Fortress Iron, LP, Fortress Fence Products LLC, Case Nos. 24-1231; -1359 (Fed. Cir. Oct. 17, 2025) (Moore, Linn, Cunningham, JJ.)

Barrette sued Fortress for infringing its patents directed to a fencing assembly featuring pivoting, sliding connectors that connect pickets to rails. During claim construction, the district court determined that the terms “boss,” “projection,” and “nub” should be given the same meaning and that these “boss” terms described fastener-less and integral structures, distinguishing them from prior art. The district court also held that the terms “sliding” and “causes” were not indefinite because a POSA would understand their scope.

Following the Markman hearing, Barrette stipulated that it could not prove infringement under the court’s construction of the “boss” terms because the accused products used non-integral fasteners. Fortress stipulated, under the same construction, that it could not establish invalidity for indefiniteness. Barrette appealed, and Fortress cross-appealed.

Barrette first argued that the district court erred in finding that the specification disclaimed bosses with fasteners by disparaging prior art assemblies that used them. According to Barrette, the specification did not criticize the use of fasteners but merely distinguished the prior art designs. Fortress, however, argued that the specification repeatedly criticized assemblies employing fasteners, describing prior art systems that used fasteners to join the rails as time consuming to install. In contrast, the patented invention attributes its quick installation advantage to the use of fastener-less, integral bosses.

The Federal Circuit agreed with Barrette that the specification did not clearly and unmistakably disclaim bosses that use fasteners. The Court explained that while a patent may describe multiple advantages over the prior art, not every embodiment must incorporate each of those advantages. Accordingly, claims should not be construed to require every advancement disclosed in the specification. The Court further rejected Fortress’ argument that the claimed “boss” must always achieve the benefit of quick installation. Although the asserted patents describe ease of installation as an advantage of using bosses, that benefit does not limit the term’s structural scope. A “boss,” the Court held, is not restricted to fastener-less configurations. Accordingly, the Federal Circuit determined that the district court erred in limiting the claims to fastener-less bosses.

Barrette next argued that the district court erred by concluding that the prosecution history disclaimed non-integral bosses. The Federal Circuit rejected this argument and agreed with the district court that Barrette had clearly disclaimed non-integral boss structures during prosecution. The Federal Circuit stated that Barrette clearly distinguished prior art from the “claimed integral boss” in prosecution and expressly clarified the scope of its claims.

Barrette argued that its subsequent communications with the patent office rendered any purported disclaimer [...]

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When patent law meets free speech: Anti-SLAPP appellate jurisdiction

The US Court of Appeals for the Federal Circuit determined that it had jurisdiction over an interlocutory appeal from a district court’s denial of a California anti-SLAPP (Strategic Lawsuit Against Public Participation) motion in a trade secret and inventorship case, finding such a denial was immediately appealable under the collateral order doctrine. On the merits, the Federal Circuit vacated and remanded the district court’s decision. IQE, plc v. Newport Fab, LLC, DBA Jazz Semiconductor, et al., Case No. 24-1124 (Fed. Cir. Oct. 15, 2025) (Hughes, Stark, Wang, JJ.)

IQE sued Jazz Semiconductor, Tower Semiconductor, and other entities and individuals (collectively, Tower) for violation of the Defend Trade Secrets Act, correction of inventorship under 35 U.S.C. § 256, and five claims arising under California state law, including trade secret misappropriation and intentional interference with prospective economic advantage. Tower moved to dismiss for failure to state a claim and simultaneously filed an anti-SLAPP motion to strike the claims for misappropriation and intentional interference arising under state law. The district court denied Tower’s motion to strike. Tower appealed to the US Court of Appeals for the Ninth Circuit.

The Ninth Circuit determined that under 28 U.S.C. § 1295(a) the Federal Circuit would have had jurisdiction at the time the appeal was filed. The Ninth Circuit explained that the Federal Circuit had subject matter jurisdiction over the appeal because the complaint asserted a claim for correction of inventorship, a cause of action arising under federal patent law. The Ninth Circuit further concluded that the Federal Circuit had appellate jurisdiction under Ninth Circuit law since the denial of an anti-SLAPP motion is an immediately appealable order under the collateral order doctrine. The Ninth Circuit therefore transferred the appeal to the Federal Circuit.

The Federal Circuit noted that the appeal raised a jurisdictional question of first impression: whether the Federal Circuit has jurisdiction over an appeal from a district court’s denial of an anti-SLAPP motion before entry of final judgment. The Federal Circuit agreed with the Ninth Circuit that it has subject matter jurisdiction over claims created by federal patent law. The Federal Circuit noted that appellate jurisdiction typically is limited to a final decision by the district court, but the collateral order doctrine provides a narrow exception that allows an interlocutory appeal when a trial court’s order affects rights that will be irretrievably lost in the absence of an immediate appeal. The Court analyzed the three collateral order factors and determined that an anti-SLAPP motion to strike under California law fits squarely within the collateral order exception to the final judgment rule.

IQE argued that jurisdiction was improper for two reasons:

IQE filed an amended complaint after Tower’s appeal, suggesting the district court must revisit the motion.
Some circuits have held that state anti-SLAPP statutes conflict with the Federal Rules of Civil Procedure.

The Federal Circuit rejected both arguments, finding the amended complaint improper under Ninth Circuit precedent and deferring to the Ninth Circuit’s view that California’s anti-SLAPP law applies in federal court. [...]

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Boss move: Disclaimer that doesn’t work can still work as a disclaimer

When patent law meets free speech: Anti-SLAPP appellate jurisdiction

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