Wednesday, December 26, 2007

Google loses a bit in Hyperphrase case before CAFC

In the nonprecedential case Hyperphrase v. Google, the CAFC affirmed-in-part, vacated-in-part, and remanded a case from WD Wisconsin, which concerned possible infringement by Google concerning the products AutoLink and AdSense.

The term at issue was "data reference." The CAFC found that the district court improperly imported from the specification the limitation that the data reference only refer to one and only one possible data record. In finding an "improper importation" from the specification, this case is a counterpoint to the Sinorgchem case. As in Sinorgchem, the CAFC found that the patentee opted to be his own lexicographer (the CAFC citing CCS Fitness v. Brunswick, 288 F.ed 1359). The CAFC also noted that a claim construction that excludes an embodiment is usually incorrect, citing to both Vitronics and SanDisk (415 F3d 1278). Innova (318 F.3d 1111) was cited for the warning against improper importation of limits from the specification into the claims.

Jay Kesan was of counsel on hyperphrase's brief.


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