Saturday, September 26, 2015

EFF discusses dispute over meaning of the word "integer"

Within the post Our Broken Patent System at Work: Patent Owner Insists the “Integers” Do Not Include the Number One , EFF notes

In patent litigation, patent owners and alleged infringers often disagree about the meaning of words in patent claims and ask the court to resolve the differences (a process known as “claim construction”). In Core Wireless’ case against LG, the majority of the disputes seem like usual ones in terms of patent litigation.

Except for the dispute about “integer.”

You may have learned what an “integer” was in high school. It’s a common concept many teenagers learn about when they take algebra. In Ontario, Canada, for example (where Conversant is based), teachers discuss integers in the 9th and 10th grades. As defined in the Ontario Curriculum, an integer is: “Any one of the numbers . . . , –4, –3, –2, –1, 0, +1, +2, +3, +4, . . . ”


To be clear: the law allows patent applicants to redefine words if they want. But the law also says they have to be clear that they are doing that (and in any event, they shouldn't be able to do it years after the patent issues, in the middle of litigation). In Core Wireless’ patent, there is no indication that it used the word “integer” to mean anything other than what we all learn in high school. (Importantly, the word “integer” doesn’t appear in the patent anywhere other than in the claims.)

It appears that Core Wireless is attempting to redefine a word—a word the patent applicant freely chose—because presumably otherwise its lawsuit will fail. The Supreme Court has long disapproved of this kind of game playing. Back in 1886, it wrote:

Some persons seem to suppose that a claim in a patent is like a nose of wax which may be turned and twisted in any direction, by merely referring to the specification, so as to make it include something more than, or something different from, what its words express.

EFF correctly notes the source of the nose of wax line as the Supreme Court, which is more specifically White v. Dunbar, 119 U.S. 47 (1886).

Earlier, the 717MadisonPlace blog had written:

Judge Plager was the author of the “nose of wax” line from Exxon Chem. Patents, Inc. v. Lubrizol Corp., 64 F.3d 1553 (Fed. Cir. 1995) in which he stated:

Claim drafting is itself an art, an art on which the entire patent system today depends. The language through which claims are expressed is not a nose of wax to be pushed and shoved into a form that pleases and that produces a particular result a court may desire. The public generally, and in particular, the patentees’ competitors, are entitled to clear and specific notice of what the inventor claims as his invention. That is not an easy assignment for those who draft claims, but the law requires it, and our duty demands that we enforce the requirement. There is no room in patent claim interpretation for the equivalent of the cy pres doctrine; that would leave the claiming process too indefinite to serve the purposes which lie at the heart of the patent system.


***As to the future, the Recorder notes that there are no patent cases currently docketed by the Supreme Court:

So far the high court has not put a single patent case—or trademark or copyright, for that matter—on its 2015-16 docket. Some patent law experts believe the court is taking a break from patent law after a period of exceptional activity, including a record six decisions in 2013-14.

"I don't think we'll see six" this term, said Emory University School of Law professor Timothy Holbrook. "I wouldn't be surprised if we saw none."

"It may be that other things are crowding out patent law for awhile," said Fenwick & West patent litigation chief Michael Sacksteder.



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