Monday, June 23, 2008

RealSource whacked by CAFC

In a battle over phone cards that turned on the doctrine of claim differentiation, RealSource lost to Best Buy, Circuit City and CostCo.

Note the appearance of "attorney estoppel"/"attorney admission":

In addition, we note that counsel for Realsource frankly
admitted during argument that his client had no intention to expand the scope of the
asserted claims by making the change in claim language. Oral Arg. at 39:13-39:24,
available at; see also 35
U.S.C. ยง 112 (permitting an inventor to Aclaim[] the subject matter which [he] regards as his
invention@) (emphasis added); Phillips, 415 F.3d at 1316 (AUltimately, the interpretation to
be given a term can only be determined and confirmed with a full understanding of what the
inventors . . . intended to envelop with the claim.@).

What an attorney says in oral argument can and will be held against the client.


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