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Posts Tagged: "Cindy Chen"

Claim Construction: A Game of Chance at the Federal Circuit

Where the Federal Circuit is reviewing a validity decision from the district courts, the Federal Circuit reviews the claim construction de novo. The Federal Circuit also chooses not the most likely meaning, but the broadest reasonable meaning for disputed claim language. That is, the claim construction most likely to invalidate the claim in question. Now, we ask whether the same fate is likely to befall claims that are being asserted in a patent infringement action. Asked differently, does the Federal Circuit choose the claim construction most likely to lead to a conclusion of no infringement? Saffran v. Johnson & Johnson seems to suggest that the answer is sadly, yes.

CAFC Favors Non-Practicing Entities on “Domestic Injury”

Recently the Federal Circuit, sitting en banc, denied Nokia’s petition for rehearing. The Federal Circuit decision is nevertheless interesting for its treatment of Section 337’s “domestic industry” requirement as it is applied to NPEs. Under 19 U.S.C. §1337(a)(2), relief at the Commission is predicated on the existence or establishment of an industry in the United States “relating to the articles protected by the patent.” This is commonly known as the “domestic industry” requirement. In turn, section 1337(a)(3) provides that an industry is considered to exist if there is in the United States, “with respect to the articles protected by the patent,” significant investment in plant or equipment, significant employment of labor or capital, or “substantial investment in [the patent’s] exploitation, including engineering, research and development, or licensing” (emphasis added).