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Claim Construction

Federal Circuit’s X2Y Attenuators Decision Reinforces The Importance Of Drafting Patents For Litigation

On July 7, 2014, the Federal Circuit Court of Appeals issued an opinion in X2Y Attenuators, LLC v. International Trade Commission, which underscores the importance of carefully drafting patent applications with an eye toward litigation.  The decision also demonstrates why form often dominates over substance in patent litigation.  A copy of the opinion can be…

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Have Your Cake and Eat It Too – Obtaining Broad Claims That Define a Device or Apparatus Based on How it Works

Pros and Cons of Apparatus and Method of Use Claims Devices or apparatuses can often be protected by using two kinds of patent claims: apparatus and method of use claims. Each approach has its benefits and drawbacks. In general, apparatus claims expand the class of direct infringers relative to method of use claims but are…

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Improving Patent Quality – Reining in Statements of Intended Use In Patent Claims

There has been a lot of discussion in the patent world recently about how to improve patent quality.  Much of this discussion has been motivated or at least strongly influenced by the surge in patent litigation brought by “patent trolls.”  As we discussed last month, Congress is attempting to reduce the leverage that patent trolls enjoy…

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What Limitations Are There on the Breadth of Otherwise Novel and Non-Obvious Patent Claims?

Clients are often surprised and perplexed at the breadth of patent claims their competitors obtain because they seem to go well beyond the descriptions and examples in their patents.  In our experience, patent lawsuits typically involve situations where the accused product is not specifically described in the specification of the asserted patent yet the patent…

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Are We Kidding Ourselves With Patent Jury Trials? Lessons from Apple v. Samsung

When I talk to lawyers who do not practice patent law, they often speak of the complexity of patent cases in terms of the scientific or technological issues involved.  What many of them fail to understand is that quite apart from the technology, the law itself is very complex.  Lawyers and judges often have difficulty…

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Claim Construction – The US Patent Classification Glossary

This post may be helpful to those of you who litigate patent cases.  While it is true that the most significant sources of claim construction evidence are the claim language, specification, and file history, courts often consider reliable sources of extrinsic evidence such as technical dictionaries and glossaries.  In Phillips the Federal Circuit held that…

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Tell Me a Story About Claim Construction

Storytelling is the key persuasive device used to win lawsuits.  Early in any case, good litigators begin to develop a compelling narrative with themes that support the outcome they seek for their clients.  Patent cases are no different, at least when they get to trial.  Before that happens, however, courts must construe the patent claims. …

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Defending the Patent Case – Make the Patent Holder Commit

Forcing patent holders to commit to their positions as early as possible is critical for successfully defending a patent case.  There is often tension between the patent holder’s infringement case and its validity case, and it is important to force and pin down the patent holder’s positions as early as possible to improve your chances…

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Sprechen Sie Patent? Learning How to Speak “Patent”

We have observed many instances in which clients and patent attorneys communicate with one another like “two ships passing in the night” because they operate from different paradigms when speaking about patent issues.  Such miscommunications may often go unnoticed and uncorrected.   Of course, this can result in bad business decisions and other problems depending on…

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