Tuesday, February 02, 2016

Columbia University gets remand on infringement assertions as to U.S. Patent No. 8,074,115 and U.S. Patent No. 8,601,322

Note how the Teva case is cited:

Claim construction is ultimately a question of law
that this court reviews de novo. Teva Pharm. USA, Inc. v.
Sandoz, Inc., 135 S. Ct. 831, 839 (2015). The construction
of claim terms based on the claim language, the specification,
and the prosecution history are legal determinations.
Id. However, claim construction may involve subsidiary
issues of fact based on the extrinsic record, which this
court reviews for clear error. See id. at 837–38.
Claim construction requires a determination as to
how a person of ordinary skill in the art would understand
a claim term “in the context of the entire patent,
including the specification.” Phillips v. AWH Corp., 415
F.3d 1303, 1313 (Fed. Cir. 2005) (en banc). We begin a
claim construction analysis by considering the language of
the claims themselves. Id. at 1314. However, “claims must
be read in view of the specification, of which they are a
part.” Id. at 1315 (quoting Markman v. Westview Instruments,
Inc., 52 F.3d 967, 978 (1995) (en banc) (quotation
marks omitted). The specification is the “single best guide
to the meaning of a disputed term,” Vitronics Corp. v.
Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996),
and “is, thus, the primary basis for construing the
claims.” Phillips, 415 F.3d at 1315 (citation and quotation
marks omitted). A court should also consider the patent's
prosecution history, Id. at 1317, and may rely on dictionary
definitions, “so long as the dictionary definition does
not contradict any definition found in or ascertained by a
reading of the patent documents.” Id. at 1321–22 (citation
and internal quotation marks omitted).

Columbia University ran into a problem on its
plain and ordinary meaning argument:

Thus, we reject Columbia’s argument that the presumption
of plain and ordinary meaning “can be overcome
in only two circumstances: [when] the patentee has expressly
defined a term or has expressly disavowed the full
scope of the claim in the specification and the prosecution
history.” Appellant’s Br. at 26 (emphasis added). As our
en banc opinion in Phillips made clear, “a claim term may
be clearly redefined without an explicit statement of
redefinition” and “[e]ven when guidance is not provided in
explicit definitional format, the specification may define
claim terms by implication such that the meaning may be
found in or ascertained by a reading of the patent documents.”
415 F.3d at 1320–21 (citing and quoting Bell Atl.
Network Servs., Inc. v. Covad Commc’ns Group, Inc., 262
F.3d 1258, 1268 (Fed. Cir. 2001), and Irdeto Access, Inc. v.
Echostar Satellite Corp., 383 F.3d 1295, 1300 (Fed. Cir.
We have previously followed this approach, for example,
holding that the claim term “electrochemical sensor”
excluded cables and wires based on critical language in
the claims and specification, despite there having been no
explicit disclaimer of cables or wires. See In re Abbott
Diabetes Care Inc., 696 F.3d 1142, 1149–50 (Fed. Cir.
2012); see also AIA Eng'g Ltd. v. Magotteaux Int'l S/A,
657 F.3d 1264, 1278 (Fed. Cir. 2011) (where “the specification
reveals a special meaning for a term that differs
from the meaning it might otherwise possess, that special
meaning governs”); Comput. Docking Station Corp. v.
Dell, Inc., 519 F.3d 1366, 1374 (Fed. Cir. 2008) (“Occasionally
specification explanations may lead one of ordinary
skill to interpret a claim term more narrowly than
its plain meaning suggests.”); Astrazeneca AB v. Mut.
Pharm. Co., 384 F.3d 1333, 1339 (Fed. Cir. 2004) (The
patentee “seems to suggest that lexicography requires a
statement in the form ‘I define _____ to mean _____,’ but
such rigid formalism is not required.”).

We have also found that a patent applicant need not
expressly state “my invention does not include X” to
indicate his exclusion of X from the scope of his patent
because “the patentee’s choice of preferred embodiments
can shed light on the intended scope of the claims.”
Astrazeneca, 384 F.3d at 1340; see also On Demand Mach.
Corp. v. Ingram Indus., Inc., 442 F.3d 1331, 1340 (Fed.
Cir. 2006) (“[W]hen the scope of the invention is clearly
stated in the specification, and is described as the advantage
and distinction of the invention, it is not necessary
to disavow explicitly a different scope.”); Edwards
Lifesciences LLC v. Cook Inc., 582 F.3d 1322, 1333 (Fed.
Cir. 2009) (finding disavowal implicitly); Boss Control,
Inc. v. Bombardier Inc., 410 F.3d 1372, 1377 (Fed. Cir.
2005) (same).

Of using an academic paper referenced in the

Columbia points to an academic paper referenced in
the specification and written by one of the inventors
wherein a model for detecting network intrusions was
built using both attack and attack-free data as support for
its construction. However, this reference describes a
different invention and is not relevant for construing the
claims of these patents. In addition, Columbia points to
two patent applications incorporated into the specification
describing databases used to store information to build
models that have passing references to attack data’s being
stored in the database. These fleeting references cannot
overcome the overwhelming evidence in the specification
and the prosecution history, especially given the specification
did not “even refer with any detailed particularity” to
the passages Columbia now argues support its construction.
See SkinMedica, Inc. v. Histogen Inc., 727 F.3d
1187, 1207 (Fed. Cir. 2013). The district court’s conclusion
that the model of the ’084 and ’306 patents must be
built with only attack-free normal data is correct.

Columbia did get a remand on the construction of the
term "anomalous"

Lastly, Columbia argues that the district court incorrectly
construed the term “anomalous” as used in claims
1, 4–5, 11, 14–15, 21–22, 25–26, 32, 35–36, and 42 of the
’115 and claims 1–4, 9–13, 18–21, and 26–27 of the ’322
patent. The claims of these two patents cover media,
systems, and methods for detecting and classifying anomalous
program executions. As is described in the specification,
computer programs may anomalously “terminate
due to any number of threats, program errors, software
faults, attacks, or any other suitable software failure.”
’115 patent col. 1 ll. 23–25. Thus, a program crash may be
the result of a malicious attack or it simply may be the
result of a bug in the software. This invention “teaches” a
computer model to tell the difference between the two,
and then uses that model to predict whether anomalous
program executions are the result of a malicious attack.


At the outset, we note that there is no reason why the
construction of claim terms in the ’115 and ’322 patents
should be the same as the ’084 and ’306 patents, contrary
to the views expressed by the district court and the parties.
We have previously held that where multiple patents
“derive from the same parent application and share
many common terms, we must interpret the claims consistently
across all asserted patents.” NTP, Inc. v. Research
in Motion, Ltd., 418 F.3d 1282, 1293 (Fed. Cir.
2005); see also Microsoft Corp. v. Multi-Tech Sys., Inc.,
357 F.3d 1340, 1349–50 (Fed. Cir. 2004) (finding that
statements by the patentee in prosecution of sibling
patent were a “representation of its own understanding of
the inventions disclosed” in all sibling patents, despite the
statement being made after the issuance of the patent in
which the term being analyzed was used). But here,
none of those considerations is present. These four patents
comprise two separate families, and these two
families of patents claim two different inventions, list only
one inventor in common, were filed years apart, and do
not result from the same patent application. See Abbot
Labs. V. Dey, L.P., 287 F.3d 1097, 1104–05 (Fed. Cir.


Thus, even if they were part of
the same family, there would be no reason to construe the
terms similarly. See Ventana Med. Sys., Inc. v. Biogenex
Labs., Inc., 473 F.3d 1173, 1182 (Fed. Cir. 2006) (“[T]he
doctrine of prosecution disclaimer generally does not
apply when the claim term in the descendant patent uses
different language.”); ResQNet.com, Inc. v. Lansa, Inc.,
346 F.3d 1374, 1383 (Fed. Cir. 2003) (“Although a parent
patent's prosecution history may inform the claim construction
of its descendant, the [parent] patent's prosecution
history is irrelevant to the meaning of this limitation
because the two patents do not share the same claim
language.”). We see no reason to construe the term
“anomalous” in the ’115 and ’322 patents consistently
with the term “probabilistic model of normal computer
system usage” in the ’084 and ’306 patents.

The outcome:

In summary, we affirm stipulated judgment of noninfringement
of the asserted claims of the ’544 patent, the
’907 patent, the ’084 patent, and the ’306 patent. In
addition, we affirm the district court’s finding of invalidity
of claims 1 and 16 of the ’544 patent. However, we reverse
the stipulated judgment of non-infringement of the
asserted claims of the ’115 and ’322 patents because it
was based on an incorrect claim construction, and remand
for further proceedings consistent with this opinion


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