Network Commerce v. Microsoft: more discussion of Phillips

The CAFC upheld SJ of noninfringement by Microsoft of US 6,073,124. The accused product was Microsoft's Windows Media Player. The '124 patent has been cited 21 times. The application erroneously states that it is a "continuation-in-part" of a U.S. Provisional Application No. 60/049,844; the application also notes it is also a continuation-in-part of U.S. patent application Ser. No. 08/792,719, entitled "Method and System for Injecting New Code Into Existing Application Code," filed on Jan. 29, 1997.

The term "download component" was at issue. The CAFC cited Phillips (415 F.3d 1303) but noted that the term "download component" had no commonly understood meaning in dictionaries. Furthermore, "download component" appeared in the claims, but not in the specification.

The CAFC adopted a construction similar to "application" in Eolas v Microsoft, 399 F.3d 1325.

The argument of claim vitiation was raised but not applied. The CAFC cited Claim Connector v. Smartdisk, 406 F.3d 1359, noting that plaintiff must present evidence for doctrine of equivalents infringement on an element-by-element basis.

An argument under Rule 56(f) was also dismissed. The plaintiff apparently went bankrupt during the proceeding and was a bit late in filing the 56(f) motion, to no avail. The CAFC cited Jack Guttman v. Kopykake, 302 F.3d 1352, on rolling claim construction. Parties may be forced to take discovery without benefit of knowing the court's claim construction.