We find no abuse of discretion. The dispute in this appeal focuses on the emphasized term rear walls, in the firebox limitation above. Barton v. Adang, 162 F.3d 1140, 1144, 49 USPQ2d 1128, 1132 (Fed.Cir.1998); Madison Galleries, Ltd. v. U.S., 870 F.2d 627, 629 (Fed.Cir.1989). 255. We review a district court's grant of summary judgment de novo, reapplying the standard applicable at the district court. But Congress displayed a greater concern for public notice in 251 and 252 by insulating the public from this lack of effective notice through the provision of, first, a two-year limit on broadening reissues and, second, intervening rights. Accordingly, we hold that the certificate of correction is invalid. 255. We believe that 251 and 252 are of particular relevance in the statutory scheme, since they deal explicitly with post-issuance amendments that may broaden claim scope. at 1011. Accordingly, the district court determined that there was no infringement under the DOE. This is particularly disadvantageous for smaller apartments, hotel rooms, etc., in which space is at a premium. Co., 92 F.Supp.2d 1001 (C.D.Cal.2000) (Opinion). 1295(a)(1) (1994). This might be explained by the court's determination that the Administrative Procedure Act (APA) applied. Am. The examiner's amendment also reminded Superior that [s]hould the changes and/or additions be unacceptable to applicant, an amendment may be filed. Superior did submit an amendment under 37 C.F.R. As Majestic argues, there are serious and open questions as to whether Superior ever had a good faith belief in its claim that Majestic infringed the 534 patent, given that the rear walls limitation was present in the claims when the complaint was filed and given that no action had been taken up to that time either to seek correction as a matter of public record or to advise the court of the presence of the alleged mistake. Accordingly, we are constrained to vacate and remand on the issue of exceptional case and attorney fees. Id. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. Because Southwest requires that the certificate of correction be treated as valid only for acts occurring after the certificate issues, the public's reliance on the public record is protected, regardless of whether the mistake is evident in the original prosecution history. In the course of its proceedings, the district court refused to admit as evidence two documents proffered by Superior. The questionnaire is a form, and the substantive content consists of six boxes that are checked, three indicating questions requiring a response from an examiner, and three more indicating the yes/no answers provided by the examiner. The alleged mistake is, therefore, not a clerical or typographical mistake correctable under 255. The district court is, in effect, stating that because the alleged error is not typographical or clerical, and because the PTO granted the certificate, we must assume that the PTO found the alleged error to be of minor character. 35 U.S.C. 6,842-43 (1924) (statement of Rep. Lanham). Neither of the noninfringement findings are directly challenged on appeal, nor is the construction of the uncorrected claim. Co., No. The PTO, not the district courts or this court, is in the best position to know whether a typographical or clerical error has occurred. 2120, 2124-25, 150 L.Ed.2d 251 (2001). Id. I note that none of the cases on which the majority relies for its conclusion that judicial findings are compelled involved an attorneys' fee award reviewed under an abuse of discretion standard. This statutory scheme reveals Congress' concern for public notice and for protecting the public from the unanticipated broadening of a claim. Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1574, 37 USPQ2d 1626, 1631 (Fed.Cir.1996) (When considering issues which are not unique to our jurisdiction we defer to the law of the regional circuit.); In re Stein, 197 F.3d 421, 424 (9th Cir.2000). 255. 3.District Court's Section 255 Decision. The majority states that reading into section 255 an extra-textual requirement that mistakes be evident from the prosecution history is consistent with the overall statutory scheme, articulated in 251-256. The district court found, and it is not disputed on appeal, that both parties agreed that the accused devices do not contain more than one rear wall and that there can be no literal infringement if the claim is construed to require two or more rear walls. The claim language in question recites a firebox within the housing comprising a top wall, rear walls and side walls. 534 patent, col. 5, ll. The court then proceeded to construe both the original claim and the corrected claim and, based on the resulting legal determinations, concluded that the correction of the alleged mistake in this case did broaden the claims. 44-45 (Emphasis added.). 112, but the district court was not called upon to address the validity of the 255 certificate correcting that claim or to interpret 255. Co. v. Allen Group, Inc., 917 F.2d 538, 543, 16 USPQ2d 1622, 1626 (Fed.Cir.1990) (providing a similar list). The district court determined, on summary judgment, that Superior's certificate of correction for United States Patent No. In the course of prosecution, Superior submitted an amendment adding a claim that eventually matured into claim 1 of the 534 patent. For these reasons, despite the fact that 255 does not explicitly reference the prosecution history, we deem it necessary to interpret this statutory section to contain this implicit, extra-textual requirement. Second, the interior of the fireplace is constructed so as to provide various convection pathways within the fireplace to transfer heat into the room and, thus, reduce heat transfer into the structure surrounding the fireplace. District courts already are overworked and we need not add to their burden. 35 U.S.C. We have exclusive appellate jurisdiction over the issues appealed. at 1008-09 (quoting Eagle Iron Works v. McLanahan Corp., 429 F.2d 1375, 1383, 166 USPQ 225, 231 (3d Cir.1970)). 1040, 137 L.Ed.2d 146, 41 USPQ2d 1865, 1871 (1997) (discussing the impact of the doctrine of equivalents on the definitional and public-notice functions of the statutory claiming requirement); Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 234 F.3d 558, 575, 56 USPQ2d 1865, 1877 (Fed.Cir.2000) (en banc) (stating that the notice function of patent claims has become paramount), cert. The context of the district court's statement leaves absolutely no doubt that it is a statement of proposition, made in transitioning to a discussion of whether the alleged error is of minor character. Cf. Southwest Software, Inc. v. Harlequin Inc., 226 F.3d 1280, 1294, 56 USPQ2d 1161, 1172 (Fed.Cir.2000).2 We offered the example of a patent issuing with a single claim that was clearly invalid due to a mistake, and stated that: Until the PTO issues a certificate of correction , such a claim would appear invalid to the public, and reasonable competitors would be justified in conducting their affairs accordingly. No. In re Gartside, 203 F.3d 1305, 1312, 53 USPQ2d 1769, 1773 (Fed.Cir.2000). Hoffmann-La Roche Inc. v. Invamed Inc., 213 F.3d 1359, 1365-66, 54 USPQ2d 1846, 1850 (Fed.Cir.2000) (in the context of a 285 finding that a case was not exceptional, noting that Torpharm has not presented any facts showing that when Roche and Syntex filed their complaint, they had reason to believe that their patents did not cover the processes used to make Torpharm's generic drug). However, we recently (and correctly) held that a certificate of correction is valid only for claims arising after the certificate issued, as the language of the statute makes clear. In contrast, a second category includes those typographical mistakes not apparent to the reader at all; for example, a mistake resulting in another word that is spelled correctly and that reads logically in the context of the sentence. Warner-Jenkinson Co. v. Hilton Davis Chem. This court has previously noted the propriety of independently considering the public notice function in interpreting the patent statutes. Superior's first request was filed on February 16, 1999, under 35 U.S.C. Applied Materials, Inc. v. Advanced Semiconductor Materials Am., Inc., 98 F.3d 1563, 1569, 40 USPQ2d 1481, 1485 (Fed.Cir.1996) (The presumption of validity is based on the presumption of administrative correctness of actions of the agency charged with examination of patentability.), cert. Although small gas fireplaces can be made, the smaller models often do not look as good and are, thus, of less commercial value. Rec. This leads to a classification of these typographical mistakes into three categories. 6.Conclusion for Certificate of Correction. 252 (Supp. Challenges to the validity of claims, whether regularly issued, issued after a reexamination pursuant to 35 U.S.C. Some mistakes are immediately apparent and leave no doubt as to what the mistake is. In conclusion, the claim limitation in question is itself syntactically correct and on its face raises no question of a mistake. The subsequent decision to award attorney fees, vel non, is discretionary and permits the judge to weigh intangible as well as tangible factors: the degree of culpability of the infringer, the closeness of the question, litigation behavior, and any other factors whereby fee shifting may serve as an instrument of justice. Nat'l Presto Indus., Inc. v. West Bend Co., 76 F.3d 1185, 1197, 37 USPQ2d 1685, 1693 (Fed.Cir.1996); Modine Mfg. Because such language is absent from section 255, the inference is inescapable that Congress did not intend to impose such a requirement in section 255. Section 255 was enacted in 1952 at the very same time section 254 was re-enacted, and both sections appear in the Patent Act of 1952, Pub.L. At some time after this, Majestic pointed out that the second limitation of claim 1 recited rear walls. Superior then proceeded to apply for a certificate of correction from the Patent and Trademark Office (PTO), seeking to change the claim term from rear walls to rear wall.. The 534 patent relates to gas fireplace technology. Thus, clerical or typographical mistakes are generally understood to include simple mistakes such as obvious misspellings that are immediately apparent. Superior also seeks review of the district court's: (1) exclusion of a declaration by Superior's patent attorney and a facsimile alleged to be part of the prosecution history of the 534 patent; and (2) denial of a motion to amend judgment or for reconsideration based on the allegedly new evidence of an examiner's questionnaire. The same presumption applies to certificates of correction. The email address cannot be subscribed. 251. The majority notes that the examiner's amendment changed rear wall to rear walls after a telephonic interview between Superior's representative and the examiner to discuss prior art. at 1341-42. 301-307, or issued after a reissue pursuant to 35 U.S.C. Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1359, 220 USPQ 763, 770 (Fed.Cir.1984). The subsequent determination of whether attorney fees are appropriate is reviewed for an abuse of discretion. Tegal Corp. v. Tokyo Electron Am., Inc., 257 F.3d 1331, 1351, 59 USPQ2d 1385, 1400 (Fed.Cir.2001) (internal quotations, ellipsis, and citation omitted). 534 patent, col. 4, ll. at 1294, 56 USPQ2d at 1172. However, the holding in Southwest does not relieve us of our duty of interpreting 255 in its statutory context. Co., 520 U.S. 17, 29, 117 S.Ct. First, as shown in Figure 2 from the 534 patent, included below, a reflective sheet 11 is provided behind the flame 8 and artificial log F, thus increasing the apparent depth of the fireplace for a better visual appearance. Opinion, 92 F.Supp.2d at 1008. Since the correction had resulted in a broadened claim, the court concluded that the corrected mistake was not of minor character, and thus was not correctable under 255. at 1010. The district court, accordingly, did not need to address any additional requirements of 255, such as whether the alleged mistake was not the fault of the Patent and Trademark Office and whether a showing ha[d] been made that such mistake occurred in good faith. 35 U.S.C. 255 (Supp. The public is entitled to rely upon the public record of a patent in determining the scope of the patent's claims.). As explained above, the present challenge is a challenge to the validity of the certificate of correction. Thermoplastics Co., Inc. v. Faytex Corp., 970 F.2d 834, 837, 23 USPQ2d 1481, 1483 (Fed.Cir.1992) (vacating because [t]he district court did not provide any findings of fact or analysis for its [on-sale bar] conclusion). Before explaining the litigation, however, we document the events that led to the 534 patent being issued with the term rear walls.. It was not in the prosecution history, and the facsimile itself does not contain any indication of who prepared it or who made the hand written notes on it. In appropriate cases, ambiguity may be resolved by considering the public notice function in interpreting the patent statutes. See Vectra Fitness, 162 F.3d at 1384, 49 USPQ2d at 1148 (interpreting 253 in light of 251, so as to ensure that the notice function of 251 was not frustrated, stating that after the two-year window for broadening reissues, the public should be able to rely on the scope of non-disclaimed claims). This should include a determination of what pre-filing preparation, if any, was done by Superior. Superior seeks review of the invalidity determination. 28 U.S.C. We acknowledge that Congress dealt with broadening reissues in detail in 251 and that our interpretation of 255 must consider the entire statutory scheme, including 251. 255. On February 14, 1997, Superior representatives met with the examiner and agreed to certain changes to the claims. We hold that a mistake in a claim the correction of which broadens the scope of coverage of that claim and is not clearly evident from the specification, drawings, and prosecution history is not a mistake of a clerical or typographical nature subject to correction under 35 U.S.C. 255. 2505, 91 L.Ed.2d 202 (1986). The patentee's right to broaden a claim is not absolute, however. 11-24. This interpretation is further reinforced by the fact that there is no limitation in the claims of the 534 patent which clearly corresponds to the sheet 11; the only possible corresponding limitation is the rear walls limitation of uncorrected claim 1. A Notice of Allowability was also mailed on March 11, 1997, thus indicating that the amended claim-with the revised expression rear walls-was allowable. at 1365, 54 USPQ2d at 1850 (stating, in the context of an accused infringer seeking an exceptional finding and an award of attorney fees, that [a]mong the types of conduct which can form a basis for finding a case exceptional are willful infringement, inequitable conduct before the P.T.O., misconduct during litigation, vexatious or unjustified litigation, and frivolous suit); Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1481-82, 45 USPQ2d 1429, 1436 (Fed.Cir.1998) (stating, in a case in which the accused infringer sought an exceptional finding and attorney fees, that [f]indings of exceptional case have been based on a variety of factors; for example, willful or intentional infringement, inequitable conduct , vexatious or unjustified litigation, or other misfeasant behavior); Cambridge Prods., Ltd. v. Penn Nutrients, Inc., 962 F.2d 1048, 1050-51, 22 USPQ2d 1577, 1579-80 (Fed.Cir.1992) (In the case of awards to prevailing accused infringers exceptional cases' are normally those of bad faith litigation or those involving fraud or inequitable conduct by the patentee in procuring the patent.). CV-98-1816 (C.D.Cal. No inquiry as to the subjective intent of the applicant or PTO is appropriate or even possible in the context of a patent infringement suit. at 1008-09. 1.323. Barton v. Adang, 162 F.3d 1140, 1144, 49 USPQ2d 1128, 1132 (Fed.Cir.1998). Superior Fireplace Co. v. Majestic Prods. Superior Fireplace Co. v. Majestic Prods. The phrase clerical or typographical nature is not explicitly defined in 255, so we first look to the plain meaning and common understanding of the phrase. We also affirm the district court's evidentiary preclusions and denial of Superior's motion to amend judgment or for reconsideration. Id. 00-1543). The parties filed summary judgment motions and the district court determined that the certificate of correction issued by the PTO was invalid. However, we vacate and remand, for proceedings consistent with this opinion, the district court's finding that this is not an exceptional case and its decision not to award Majestic attorney fees. Please try again. Both the Supreme Court and this court have highlighted the importance of the notice function of patent claims. 82-1979, at 27 (1952), reprinted in U.S.C.C.A.N. Accordingly, we interpret 255 to allow broadening corrections of clerical or typographical mistakes. 3-4 (uncorrected claim 1). Second, any suggestion that Superior simply did not review the patent as allowed and issued, thus explaining Superior's failure to object to the examiner's amendment, is negated by Superior's section 312 amendment and Make-of-Record Letter, as well as by the critical importance of reviewing claims. 254 (Emphasis added.). 251 (1994) (No reissued patent shall be granted enlarging the scope of the claims of the original patent unless applied for within two years from the grant of the original patent.). The second document is the marked-up version of the edited claim allegedly faxed to Superior's representative by the examiner and then marked up by Superior's representative. There is nothing here to overcome that presumption, and the legislative history of the 1952 Act is silent on the reason for the textual difference in the two sections. Regarding the second branch, allowing correction of a mistake of minor character, the district court followed the Third Circuit in holding as a matter of law that the statute does not authorize a broadening of the claims. Id. This document was proffered as an exhibit to a declaration of Nelson, an attorney at the same firm as Marantidis. The Ninth Circuit, the pertinent circuit in this case, reviews evidentiary rulings of the type appealed from for an abuse of discretion. 804(b)(3). 2394, 2420. Citing Brandt, which is not controlling on this court, Superior invites us to compare the corrected claim not to the uncorrected claim but to that which was agreed to, or intended, by the patentee and the examiner. Vectra Fitness, 162 F.3d at 1384, 49 USPQ2d at 1148 (Moreover, an additional consideration also weighs against the interpretation of the statutory scheme[, involving 251 and 253,] for which Vectra argues. 706 (1994). Finally, the court holds that the district court erred in summarily denying Masjestic's motion for attorneys' fees without further explanation. denied, 520 U.S. 1230, 117 S.Ct. Id. But since the effect of that challenge in the present case is to challenge the validity of a claim, the clear and convincing standard applicable under our precedent to other validity challenges should also apply to the present challenge to the validity of the certificate of correction. These edits, according to Superior, were made by the examiner not to effect any substantive change but merely to facilitate consideration of the newly discovered reference by showing reference numerals, corresponding to features of the reference, after each of the limitations of the claim in question. Id. Majestic's challenge was, in essential respects, indistinguishable from any other challenge to the validity of corrected claim 1. The questionnaire merely reflects the conclusions that the PTO must have come to in order to grant the certificate of correction. Those cases hardly suggest that we should read entirely new clauses into a statute because we think that that approach better fits the overall design. The statute saves expense. Thus, Superior's suggestion that we compare claim scope by considering what was intended by the parties, rather than by construing the claims for what they actually recite, is completely without merit. Superior has presented no persuasive argument that any of these conditions were met. The rest of the claim, the other claims and the written description and drawings do not make it clearly evident that the rear walls limitation is a mistake and should have been rear wall. Furthermore, the prosecution history provides compelling evidence that rear walls was the correct phrase. The second document was Superior's marked-up version of the faxed, edited claim. View Eng'g, Inc. v. Robotic Vision Sys., Inc., 208 F.3d 981, 986, 54 USPQ2d 1179, 1183 (Fed.Cir.2000) (stating, in a Rule 11 context, also in the Ninth Circuit, that a party alleging infringement must, at a bare minimum, apply the claims to an accused device and conclude that there is a reasonable basis for a finding of infringement). 801(a), from the examiner, other than one made while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted, Fed.R.Evid. If a mistake were made by the applicant and went undetected by the PTO (as apparently occurred here), it would often not appear in the prosecution history. Because Superior's certificate of correction became part of the 534 patent and changed claim language, Majestic's challenge to the certificate amounted to a challenge to the corrected claim itself. Section 251 itself provides only minimal notice for broadening reissues, requiring simply that the original specification support the broadened claim. 2478, 2482, 150 L.Ed.2d 632 (2001) (stating that we interpret the words in their context and with a view to their place in the overall statutory scheme) (internal quotations omitted); Vectra Fitness, Inc. v. TNWK Corp., 162 F.3d 1379, 1383, 49 USPQ2d 1144, 1147 (Fed.Cir.1998) (statutory interpretation is a holistic endeavor that requires consideration of a statutory scheme in its entirety). Opinion, 92 F.Supp.2d at 1009. The district court further found that Superior had not offered one shred of evidence, ha[d] cited to no authority, presented no facts, and ha[d] made virtually no argument to support recovery under the doctrine of equivalents (DOE).