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Let's suppose that an inventor did NOT claim all that they could claim given the disclosure of the specifications of their invention in the patent application.

A competitor has created a product that bypasses all of the claims in the inventor's patent.

However, the competitor's product is actually an embodiment detailed in the specifications, except that it simply wasn't claimed.

Is it possible for judge to make the ruling along the aligns that:

even though the competitor has bypassed all of the claims of the original patent, it still infringes because if the original inventor were to file a continued application claiming the competitor's embodiment it would be allowed.

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    No. Patent rights are not awarded by the Judiciary. Such a ruling would be equivalent to awarding a right in a new patent to a patentee. Only the Executive Branch can award patents.
    – Andrew
    Commented Sep 4 at 23:37
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    No - However you can amend your patent, and within two years the amended patent can be broader.
    – George White ♦
    Commented Sep 7 at 1:25

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If the embodiment isn’t in the claims, it can’t be infringing. The spec does prevent the competitor from getting their own patent.

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