concurring-in-part, dissenting-in-part.
I join that part of the court’s opinion that affirms the judgment of the district court that claims 1, 7, and 8 of the '264 patent are invalid by reason of obviousness. However, I respectfully dissent from that part of the court’s opinion that reverses the district court’s grant of summary judgment of non-infringement of claims 8-10 of the '065 patent.
I.
The '065 patent claims kits for preparing calcium phosphate minerals. The district court granted summary judgment of non-infringement in favor of Stryker after it construed the phrase “consisting of’ in independent claim 8 of the patent as a closed transition phrase that limits the scope of claim 8 to kits having only the chemical components enumerated in the claim and no other components. Because the accused device includes a spatula, an additional mechanical component, the court concluded that Stryker does not infringe. Norian Corp. v. Stryker Corp., No. C 01-0016 WHA (N.D.Cal. Apr. 20, 2001).
On appeal, the court determines that the transition phrase “consisting of’ speaks only to the types of components listed in claim 8. It does so after noting that all of the elements in claim 8 are chemical components. As a result, the court concludes that the patentee drafted the claim to cover kits that include the enumerated chemical components, but no other chemical components. However, the court further concludes that claim 8 does not exclude additional, unrecited components that are unrelated or irrelevant to the invention. Based upon ■ that claim construction, the court holds that Stryker’s accused kit, which undisputedly includes the listed chemical components plus a spatula, i.e., an unrelated mechanical component, infringes claim 8. In light of that claim construction, the court reverses the district court’s grant of summary judgment of non-infringement of claims 8-10 of the '065 patent and remands for proceedings on damages.
*1334II.
Claim interpretation begins with the intrinsic evidence, i.e., the claims themselves, the written description, and, if in evidence, the prosecution history. CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed.Cir.2002). The terms used in a claim bear a “heavy presumption” that they have the ordinary meaning that would be attributed to those words by persons skilled in the relevant art. Id. I begin with the language of claim 8, which provides as follows:
8. A kit for preparing a calcium phosphate mineral, said kit consisting of:
at least one calcium source and at least one phosphoric acid source free of uncombined water as dry ingredients; and
a solution consisting of water and a sodium phosphate, where the concentration of said sodium phosphate in said water ranges from 0.01 to 2.0 M and said solution has a pH in the range of about 6 to 11.
'065 patent, col. 12, ll.12-22.1
On appeal, the parties dispute the meaning of the phrase “consisting of.” In particular, they dispute the effect of the pat-entee’s use of the phrase in the preamble of claim 8. Norian argues that the district court construed “consisting of’ too narrowly by holding that it limits the claim to those kits with the enumerated items and no others. Instead, Norian argues that the phrase “consisting of’ should only serve to limit the chemical components to those listed in the claim, but should not serve to exclude any mechanical components. Norian bases its argument on the fact that claim 8 lists only chemical components, suggesting that the patentee only intended to limit the chemical components and not any other types of components. As a result, Norian contends that Stryker cannot avoid infringement by selling a kit that has all of the enumerated chemical components merely because it also includes a spatula, i.e., a mechanical component. For its part, Stryker argues that the district court properly construed the disputed phrase to limit claim 8 to those kits that have only the enumerated items. As such, it urges us to affirm the district court’s grant of summary judgment of non-infringement of claims 8-10 of the '065 patent.
Our case law makes it clear that “ ‘closed’ transition phrases such as ‘consisting of are understood to exclude any elements, steps, or ingredients not specified in the claim.” AFG Indus., Inc. v. Cardinal IG Co., Inc., 239 F.3d 1239, 1245 (Fed.Cir.2001); see also Manual of Patent Examining Procedure § 2111.03 (8th ed.2001). Thus, we have held that “consisting of’ is a narrow phrase that limits the scope of a claim to the enumerated elements in that claim. See Georgia-Pacific Corp. v. United States Gypsum Co., 195 F.3d 1322, 1327-28 (Fed.Cir.1999) (quoting Manual of Patent Examining Procedure § 2111.03 (6th ed.1997)); Vehicular Techs. Corp. v. Titan Wheel Int'l, Inc., 212 F.3d 1377, 1383 (Fed.Cir.2000) (“In simple terms, a drafter uses the phrase ‘consisting of to mean T claim what follows and nothing else.’ ”).
In my view, the court errs in holding that Norian’s use of the phrase “consisting of’ limits only chemical, but not mechanical, components. Our precedent indicates that such language limits all components. *1335Vehicular Techs., 212 F.3d at 1383. In addition, Norian chose to claim a kit as opposed to a chemical composition in claims 8-10, and a kit is generally understood to be a packaged set or collection of related items. Norian even recognized that a kit can include mechanical items, such as packaging, by stating in claims 1 and 4 of the '065 patent that “said dry ingredients and solution are present in separate containers.” '065 patent, col. 11, ll. 18-19; col. 12, ll. 2-3.
I think it is important for us to construe the “consisting of’ language in claim 8 in line with our prior jurisprudence because of the public notice function that a patent and its claims serve. Springs Window Fashions LP v. Novo Indus., LP, 323 F.3d 989, 995 (Fed.Cir.2003) (“The public notice function of a patent and its prosecution history requires that a patentee be held to what he declares during the prosecution of his patent. A patentee may not state during prosecution that the claims do not cover a particular device and then change position and later sue a party who makes that same device for infringement.”). The public relies on the words of a patentee’s claims to determine the scope of the claims and to form a business strategy. If Nori-an erred by employing the phrase “consisting of’ rather than “comprising,” and thereby mistakenly acquired claims that were not as broad as it intended, it must bear the consequences. Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1425 (Fed.Cir.1997) (“However, as between the patentee who had a clear opportunity to negotiate broader claims but did not do so, and the public at large, it is the patentee who must bear the cost of its failure to seek protection for this foreseeable alteration of its claimed structure.”). I do not believe that we should change the meaning of a well established phrase to save a patentee from a decision to limit its claims.
Moreover, Norian amended claim 8 during prosecution of the '065 patent, creating a clear record for the public. The Examiner rejected the pending claims as obvious in light of the prior art Iwamoto reference. Iwamoto discloses in claim 1 a colloidal solution containing a calcium source and a phosphate source in a sodium phosphate solution. In response to the rejection, No-rian amended claim 8 (original claim 26) by changing the term “comprising” to “consisting essentially of’ and finally to “consisting of.” The inventor explained the last amendment by stating that it would leave “no question that the claims exclude from their scope any kits in which the liquid is a colloid or sol.... In other words, the claimed kits of the present application are limited to kits in which the setting liquid is a solution.” These statements do not, as Norian suggests, alter the effect of the amendment.
In view of the case law discussed above, a reasonable competitor reviewing claims 8-10 and the amendments made by Norian to distinguish the claimed invention from Iwamoto would conclude that the claims do not cover kits that contain any items beyond those specifically listed in the claims. See Hockerson-Halberstadt, Inc. v. Avia Group Int’l, Inc., 222 F.3d 951, 957 (Fed.Cir.2000) (stating that “[t]he prosecution history constitutes a public record of the patentee’s representations concerning the scope and meaning of the claims, and competitors are entitled to rely on those representations when ascertaining the degree of lawful conduct”). Norian chose to overcome the asserted prior art by changing the language of claim 8. However, in so doing, it excessively narrowed the scope of the patent. As amended by Norian, the preamble of claim 8 reads, “A kit for preparing a calcium phosphate mineral, said kit consisting of....” Norian could have protected itself against the infringement defense mounted by Stryker by amending the preamble of claim 8 so that it read *1336instead, “A kit for preparing a calcium phosphate mineral, said kit comprising. ...” Alternatively, Norian could have amended the preamble of claim 8 so that it read instead, “A kit for preparing a calcium phosphate mineral, the chemical composition of said kit consisting of....” As the claim language stands, however, Stryker was entitled to rely on Norian’s use of the limiting phrase “consisting of’ to determine whether its kits would likely infringe Norian’s claims.
In my view, claim 8 should be limited to kits that include (i) at least one calcium source and at least one phosphoric acid source free of uncombined water as dry ingredients and (ii) a solution consisting of water and at least one sodium phosphate with a specified concentration and pH. Because there is no genuine issue of material fact regarding the presence of an additional component in Stryker’s kit, i.e., a spatula, I believe that Stryker is entitled to judgment of non-infringement as a matter of law. Thus, I would affirm the decision of the district court granting Stryker summary judgment of non-infringement of claims 8-10 of the '065 patent.
For the foregoing reasons, I respectfully dissent.
. Claims 9 and 10 read as follows:
9. The kit according to claim 8, wherein said sodium phosphate is present in said water at a concentration ranging from about 0.05 to 0.5 M.
10. The kit according to claim 8, wherein said solution has a pH in the range from about 7 to 9.
'065 patent, col. 12, ll. 23-26.