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:
 http://ipbiz.blogspot.com/2012/12/incorporation-by-reference.html]

Liebel-Flarsheim was invoked:

Even assuming this method

results in vertical flat views, the specification

does not state that this is the only

way

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).