Friday, March 14, 2014

Google ripped at CAFC in Vederi v. Google; CJ Rader v. CJ Kozinski

The Vederi v. Google decision is notable because a claim construction from CD Cal ( Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, sitting by designation .) was altered in an opinion by Chief Judge Rader.

Verderi asserted that Google's "Street View" ran afoul of Verderi patents.
The claim term at issue was "substantially elevations," as in

“images depicting views of objects in a geographic area, the
views being substantially elevations of the objects in the
geographic area”

The CAFC noted: 

However, the district court erred
in construing “substantially elevations”
without sufficiently considering
the intrinsic evidence in this case.
“A claim construction that gives meaning to all the terms of the
claim is preferred over one that does not do so.”
Merck & Co., Inc. v. Teva Pharm. USA, Inc.
, 395 F.3d 1364, 1372 (Fed. Cir. 2005).
By effectively reading“substantially”
out the claims, the district court erred. 
The CAFC alluded to text in a provisional patent application:
For starters, the provisional application
incorporated by reference into the Asserted Patents notes
that 360 degree synthetic panoramas may be created
if asufficient number of cameras are used. J.A. 217. 

[Of "incorporation by reference", see IPBiz post:]

Liebel-Flarsheim was invoked:

Even assuming this method
results in vertical flat views, the specification
does not state that this is the only
to create composite images, and
this court perceives no reason
to limit the disputed claim language based on that particular embod-
iment.Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d
898, 905–06 (Fed. Cir. 2004)

Of disclaimer:
Despite Google’s protestations to the contrary, this court
discerns no clear and unambiguous disavowal of spherical
or curved images that would support the district court’s
construction Invitrogen Corp. v. Biocrest Mfg., L.P., 327  F.3d 1364, 1369 (Fed. Cir. 2003).


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