Actually, given the facts recited in the Federal Circuit’s opinion, I wonder if Home Depot would have been better off to argue that they were not even true when made. As I understand it, the statements were that Powell was obligated to supply the patented invention at a time there was no contract with Home Depot. The statements appear to have been based on an expectation arising out of an existing relationship, not a contract.

The distinction made by the majority between the claims in the ’739/’139 patents and the claims in the ’283 patent is reasonable. (I’m also not going to dwell on the other problems with the claims in the ’739/’139 patents, including the “may” language which raises potentially both 35 USC 101 and 35 USC 112, second paragraph, issues.) The “comparative” claims in the ’283 patent are problematic under 35 USC 101 as process/method claims because there’s no “end result” achieved or even a suggestion of what to do after the “comparison” is made. Even under the now discarded (and more objective) “tangible, concrete, and useful result” test, the claims in the ’283 patent would fail because there’s no “end result” either explicitly or implicitly achieved by the claimed method. Let’s face it, the claims in all three of these patents are badly written method claims.