concurring.
This is another example of the predicted mischief of Markman v. Westview Instruments, Inc., 52 F.3d 967, 34 USPQ2d 1321 (Fed.Cir.), cert. granted, - U.S.-, 116 S.Ct. 40, 132 L.Ed.2d 921 (1995). Two judges have divined an interpretation of the claim that occurred to no one else in this extensive litigation. None of the parties or the trial court offered the interpretation that these two judges chose, and none of the extensive extrinsic evidence about how those skilled in the art would understand the claim supports it. After Markman, apparently the meaning of a claim has very little to do with the parties’ theories of the case and the record made in support, and everything to do with what at least two judges here prefer regardless of the record.
CLEVENGER, Circuit Judge,with whom PLAGER, Circuit Judge, joins, concurring in the court’s denial of the petition for rehearing in banc.
Because more than twelve thousand pages will separate the decision of the court in this case, found at 64 F.3d 1553 (Fed.Cir.1995), from the comments of Judges Newman and Mayer, we shall quickly bridge the gap to ease the mind of any concerned reader.
Judge Newman’s general views on how to read the claims in suit reduce themselves to a simple proposition. Although Exxon’s patent is on a specifically defined chemical product (a “lubricating oil composition suitable as a crankcase lubricant”), Judge Newman treats Exxon’s claims differently, as if they were drawn to a formula (or recipe) for making whatever product results from mixing the ingredients named in the formula. Were such the case, Exxon would have won on its proofs in this ease. Instead, Exxon sued Lubrizol on a chemical product claim. To win, Exxon had to prove that Lubrizol’s product contains, in the specific amounts stated in the patent, the chemicals named in Exxon’s patented formula. Although Exxon proved that Lubrizol’s product contained the named chemicals, it failed to prove that those chemicals are present in Lubrizol’s product in the specific required amounts. So Exxon lost.
The basic claim interpretation theory adopted by the court was put forth by Lubri-zol in its defense to Exxon’s suit, as explained in the court’s opinion, .which amply demonstrates the respects in which our colleagues have misread the opinion and the record in this case.