“Strong Presumption” Not So Strong After all

Thomas Brown | June 25, 2015

Williamson v. Citrix

June 16, 2015

Opinion by Linn (joined by nine other Judges), Dissenting Opinion by Newman-Decided.


En banc CAFC expressly overrules the “strong” presumption that a limitation lacking the word “means” is not subject to § 112, para. 6 and applies the presumptions prior to Lighting World, which do not require any heightened evidentiary showing. CAFC also overrules the strict requirement of “a showing that the limitation essentially is devoid of anything that can be construed as structure.”
When a claim term does not recite the word “means,” the presumption can be overcome and § 112, para. 6 will apply if one demonstrates that the claim term fails to “recite sufficiently definite structure” or recites “function without reciting sufficient structure for performing that function.” That is, the standard is “whether the words of the claim are understood by persons of ordinary skill in the art to have a sufficiently definite meaning as the name for structure.”

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CBM Petitions – Second Chances Can Be Tough

Darrin Auito | June 17, 2015

Travelocity.com L.P., Priceline.com Inc., and Expedia, Inc. v. Cronos Technologies, LLC (Case CBM2015-00047)

June 15, 2015

Before:  Jennifer S. Bisk, James B. Arpin, and Lynne E. Pettigrew, Administrative Patent Judges.  Opinion by Arpin.


The Patent Trial & Appeal Board (“PTAB”) decided not to institute a covered business method patent review (“CBM”) of any challenged claim of U.S. Pat. No. 5,664,110 (“the ‘110 patent”).  Travelocity, Priceline, and Expedia’s (“Petitioner”) joint request was denied because the Petition included “substantially similar arguments presented and the same references applied” in CBM2014-00082, an earlier Petition filed by Petitioner that was denied by the PTAB.

The PTAB expressly cautioned against taking a “second bite at the apple” and remarked that “a decision on a petition for covered business method review is not simply part of a feedback loop by which a petitioner may perfect its challenges through subsequent filings.”

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Presenting Extrinsic Evidence At District Court Does Not Guarantee Review For Clear Error On Appeal

Ryan Chirnomas | June 11, 2015

Shire Development et al. v. Watson Pharmaceutical et al.  

June 3, 2015

Before: Prost, Chen and Hughes.  Opinion by Hughes.


In 2014, the CAFC reversed and remanded a district court finding of infringement, due to incorrect claim construction.  Shire appealed to the Supreme Court, which vacated and remanded in view of Teva v. Sandoz.  The CAFC again reached the same conclusion, and found that de novo review is appropriate in this case, since extrinsic factual findings did not “underlie” the district court’s claim construction.  Because the district court claim construction was based only on intrinsic evidence, de novo review was appropriate.

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Reissue cannot modify Claim Construction determined for repeated Original Patent Claims

Michael Caridi | June 3, 2015

ArcelorMittal France v. AK Steel Corp. et al.

May 12, 2015

Before: Dyk, Wallach and Hughes.  Opinion by Hughes.


ArcelorMittal had filed suit on the ‘805 patent against the appellees.  However, the construction of a key term “very high mechanical resistance” was unfavorable to ArcelorMittal and a jury subsequently found the claims of the ‘805 patent not infringed and invalid.  During appeal of the decision ArcelorMittal filed a Reissue application at the USPTO which included a new dependent claim with a broader construction of “very high mechanical resistance” than that construed during the judicial action.  The CAFC affirmed the District Court’s claim construction but remanded the case on other grounds.

ArcelorMittal filed new suits based on the Reissue patent, but the District Court granted Summary Judgment invalidating the claims on the basis that the term “very high mechanical resistance” was earlier construed  during the ‘805 litigation narrower than the subsequent claims of the Reissue patent.  The CAFC affirmed the District Court asserting that under the law-of-the-case-doctrine and mandate rule, ArcelorMittal could not use the Reissue process at the PTO to broaden construction after the decision on the ‘805 patent.

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