Differentiation among the claims can serve to counter an inference that restrictions on one claim term should be applied to other claim terms. Here, for example, “posts” and “separators” were found to be sufficiently distinct elements based on their inclusion in different independent claims, despite a similar description of their related structures and core functions in the specification. It may therefore be best to recite claim terms with important distinctions in separate claims to enforce any intended differences in scope.
Background / Facts: The patent being asserted here is directed to foot therapy devices for aligning, stretching, and exercising toes. The patent discloses two different embodiments: one with “posts,” which must be elastic and is claimed in claims 1–34, and one with “separators,” which is intended to be more generic and is claimed in claim 35. However, the specification describes posts and separators as related structures having the same core function, and repeatedly emphasizes the importance of the posts of the invention being formed of an elastic or elastomeric material.
Issue(s): Whether the characterizations of the desired elasticity of posts in the specification are equally applicable to separators.
Holding(s): No. “Claim 35 is the only claim that recites a device with separators. It is also the only independent claim that does not recite ‘post(s) formed of an elastic material.’ [] The language of claim 35 itself does not limit the term separators to being formed of an elastic material or having elastic properties. The scope of the claim, therefore, does not appear restricted to encompassing only embodiments formed of an elastic material.”