Thursday, February 12, 2015

CAFC mentions Teva v. Sandoz in affirming ED Texas in Fenner v. Cellco

In affirming ED Texas in Fenner v. Cellco, the CAFC shows that Teva v. Sandoz is not going to be a large obstacle in claim construction review. The CAFC will find the intrinsic evidence sufficient for construction in many cases.

The CAFC observed:

 We review de novo the ultimate question of the proper
construction of patent claims and the evidence intrinsic to
the patent. Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S.
Ct. 831, 841 (2015); id. (“[W]hen the district court reviews
only evidence intrinsic to the patent (the patent claims
and specifications, along with the patent’s prosecution
history), the judge’s determination will amount solely to a
determination of law, and the Court of Appeals will
review that construction de novo.”). The district court’s
determination of subsidiary facts based on extrinsic
evidence is reviewed for clear error. Id. at 835, 841.


Words are symbols, linguistic embodiments of information
sought to be communicated, and, as such, can be
imperfect at representing their subject. The Supreme
Court recently observed this challenge to patent claim
interpretation, stating in Nautilus, Inc. v. Biosig Instruments,
Inc., 134 S. Ct. 2120, 2128-29 (2014), that “the
definiteness requirement must take into account the
inherent limitations of language,” and that clarity is
required although “recognizing that absolute precision is
unattainable.” When the disputed words describe technology,
the terse usage of patent claims often requires
“construction” in order to define and establish the legal
right. Judicial “construction” of patent claims aims to
state the boundaries of the patented subject matter, not to
change that which was invented.



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