Using Broadest Reasonable Interpretation to Your Advantage in Patent Prosecution

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Using Broadest Reasonable Interpretation to Your Advantage in Patent Prosecution Establishing Scope of Claims, Preserving Enforceability THURSDAY, SEPTEMBER 27, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Christopher Francis, Partner, Bejin Bieneman, Detroit Daniel Hegner, Partner, Bejin Bieneman, Southfield, Mich. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 1.

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5 Chris Francis & Dan Hegner

6 DAN HEGNER 6

7 TODAY S DISCUSSION Part I BRI and Phillips In re Smith Int l Progeny of In re Smith Int l at the Federal Circuit In re Power Integrations In re Hodges Sophos vs. Iancu Part II Decisions preceding In re Smith Int l In re Am. Acad. of Science Tech Center In re Van Geuns Application of In re Smith Int l at PTAB Consistency w/spec vs. Importing Limitations Examiner s Burden Extrinsic Evidence Key Takeaways 7 7

8 MPEP 2111(V) 8 8

9 PHILLIPS V. AWH CORP. VS. USPTO (BRI) Plain meaning the ordinary and customary meaning given to the term by those of skill in the art, in light of patent specification and prosecution history Implicit definition in specification, based on spec, claim, drawings / context Explicit (special) definition in specification (that modifies plain meaning), or in claim itself or Clear and Unmistakable Disavowal in specification Extrinsic evidence Indefinite under 112(b) 9 9

10 BRI PLAIN MEANING Plain meaning the ordinary and customary meaning given to the term by those of skill in the art, in light of patent specification and prosecution history MPEP (I) and (I): The ordinary and customary meaning of a term may be evidenced by a variety of sources, including the words of the claims themselves, the specification, drawings, and prior art. However, the best source for determining the meaning of a claim term is the specification the greatest clarity is obtained when the specification serves as a glossary for the claim terms. Citing: In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989) and In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997), respectively. MPEP (III): It is also appropriate to look to how the claim term is used in the prior art, which includes prior art patents, published applications, trade publications, and dictionaries. Any meaning of a claim term taken from the prior art must be consistent with the use of the claim term in the specification and drawings. Moreover, when the specification is clear about the scope and content of a claim term, there is no need to turn to extrinsic evidence for claim interpretation. 3M Innovative Props. Co. v. Tredegar Corp., 725 F.3d 1315, (Fed. Cir. 2013) 10 10

11 IN RE SMITH INTERNATIONAL 871 F.3D 1375 (FED. CIR. 2017) Parties: Smith International (subsidiary of Schlumberger) manufacturer of products relating to gas and oil production and exploration; owner of US Pat 6,732,817 Baker Hughes oil & gas company Procedural Posture: Schlumberger sued Baker Hughes, Baker Hughes requested REEXAM PTAB held the claims of 817 patent unpatentable over Eddison, Wardley, and Jewkes Examiner and PTAB, under BRI, found Smith s use of the term body broad enough to encompass terms like mandrel and cam sleeve On this basis, PTAB affirmed 102, 103 rejections Smith Int l appealed 11 11

12 IN RE SMITH INTERNATIONAL 871 F.3D 1375 (FED. CIR. 2017) Claim 28 (representative): An expandable downhole tool for use in a drilling assembly positioned within a wellbore having an original diameter borehole and an enlarged diameter borehole, comprising: a body; and at least one non-pivotable, moveable arm having at least one borehole engaging pad adapted to accommodate cutting structures or wear structures or a combination thereof and having angled surfaces that engage said body to prevent said arm from vibrating in said second position; wherein said at least one arm is moveable between a first position defining a collapsed diameter, and a second position defining an expanded diameter approximately equal to said enlarged diameter borehole

13 pocket recesses (accommodate axial movement of several components of the tool upper connection portion (for connecting tool 500 into drilling assembly expandable tool biasing spring angled channels, body channels, channels within the body wellbore annulus one or more moveable, non-pivotable tool arms cutting structures drive ring pocket recesses (accommodate axial movement of several components of the tool flowbore inner mandrel slidingly engages lower retainer 590 actuating piston biasing spring lower retainer angled channels, body channels, channels within the body wellbore annulus one or more moveable, non-pivotable tool arms cutting structures drive ring IN RE SMITH inner mandrel slidingly engages lower retainer 590 INTERNATIONAL actuating piston 871 F.3d 1375 (Fed. Cir. 2017) generally cylindrical tool body lower connection portion (for connecting tool 500 into drilling assembly 13 generally cylindrical tool body

14 COLLAPSED POSITION EXPANDED POSITION IN RE SMITH INTERNATIONAL 871 F.3d 1375 (Fed. Cir. 2017) 14

15 IN RE SMITH INTERNATIONAL 871 F.3D 1375 (FED. CIR. 2017) Board s argument, affirming Examiner interpretation: body considered a generic term such as member or element that by itself provides no structural specificity Patentee has not shown that prior art identifies a specific identity of what a body is Patentee did not act as a lexicographer and define body In the specification, the patentee did not disavow anything that would preclude examiner s reading of the term It reasoned that although a body, a mandrel, and moveable arms are all consistently identified and described separately in the specification, the generic claim term body includes some of the separately described components, such as a mandrel, but not others, such as moveable arms, solely because the moveable arm is recited in the claims and the mandrel is not. Nothing in the specification would disallow the examiner s interpretation, therefore, examiner s interpretation is reasonable 15 15

16 IN RE SMITH INTERNATIONAL 871 F.3D 1375 (FED. CIR. 2017) Smith s argument: Board s interpretation of the term body as a generic term encompassing the drilling tool s internal components was unreasonable Even when giving claim terms their broadest reasonable interpretation, the Board cannot construe the claims so broadly that its constructions are unreasonable under general claim construction principles. Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1298 (Fed. Cir. 2015) The specification consistently refers to and depicts the body of the drilling tool as a component distinct from other separately identified components, such as the mandrel or piston that reside inside the drilling tool. The term body should be interpreted as an outer housing. Smith cites relevant prior art, including the Eddison reference, to support this [rebuttal evidence] The Board s interpretation of body as a generic term renders the term indistinguishable from tool, which is used in the specification to denote the overall drilling tool. CLAIM 28: An expandable downhole tool comprising: a body, 16 16

17 IN RE SMITH INTERNATIONAL 871 F.3D 1375 (FED. CIR. 2017) CAFC The Board s reasoning that because the specification does not in and of itself proscribe the Examiner s construction, the examiner s interpretation was reasonable was erroneous The correct inquiry in giving a claim term its broadest reasonable interpretation in light of the specification is not whether the specification proscribes or precludes some broad reading of the claim term adopted by the examiner. And it is not simply an interpretation that is not inconsistent with the specification. It is an interpretation that corresponds with what and how the inventor describes his invention in the specification, i.e., an interpretation that is consistent with the specification. In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997) Definition of consistent? one that corresponds with what and how the inventor describes his invention in the specification 17 17

18 IN RE POWER INTEGRATIONS 884 F.3D 1370 (FED. CIR. 2018) Parties: Power Integrations manufacturer of AC-DC converters, power supplies, amplifiers; owner of US Pat 6,249,876 (Frequency Jittering Control for Varying the Switching Frequency of a Power Supply) Fairchild Semiconductor competitor Procedural Posture: PI sued Fairchild Semiconductor Dist. Ct. claim construction of coupled (US D.C. Del. 2004); coupled limitation requires the counter and the digital to analog converter to be connected in a manner such that voltage, current or control signals pass from one to another Fairchild requested Ex Parte Reexam (2006) PI appealed BPAI used Webster Dictionary definition coupled means join (electric circuits or devices) into a single circuit CAFC vacated Board s construction, acknowledging that the Board was not bound by the district court s construction Since PI s principal argument was that the proper interpretation of the term coupled was expressly tied to the district court s claim construction, the Board had an obligation to evaluate that construction to determine whether it was consistent with BRI Board stated it could glean no substantial guidance from the context of the claim or the specification, and that, moreover, that even if claim 1 requires the counter to drive the digital to analog converter, this does not preclude the counter and a memory functioning together to cause the converter to adjust the control input PI again appealed to CAFC 18 18

19 IN RE POWER INTEGRATIONS 884 F.3D 1370 (FED. CIR. 2018) Claim 1, as amended: A digital frequency jittering circuit for varying the switching frequency of a power supply, comprising: an oscillator for generating a signal having a switching frequency, the oscillator having a control input for varying the switching frequency; a digital to analog converter coupled to the control input for varying the switching frequency; and a counter coupled to the output of the oscillator, the digital to analog converter coupled to the counter, the counter causing the digital to analog converter to adjust the control input and to vary the switching frequency of the power supply

20 IN RE POWER INTEGRATIONS 884 F.3D 1370 (FED. CIR. 2018) CAFC adopts Del. District Court interpretation, as consistent with the specification: Board has had two opportunities to come up with a sustainable interpretation that differs from the one that survived litigation and has failed. Thus, coupled limitation requires the counter and the digital to analog converter to be connected in a manner such that voltage, current or control signals pass from one to another Every embodiment in 876 Patent showed this Specification advocated minimizing circuit size. Thus, the CAFC found that a bulky pre-programmed memory between the counter and the digital to analog converter [was] inconsistent with the 876 patent s focus on minimizing A proper claim construction analysis endeavors to assign a meaning to a disputed claim term that corresponds with... how the inventor describes his invention in the specification

21 IN RE POWER INTEGRATIONS 884 F.3D 1370 (FED. CIR. 2018) Case Citations for YOUR Prosecution Practice: While the broadest reasonable interpretation standard is broad, it does not give the [b]oard an unfettered license to interpret the words in a claim without regard for the full claim language and the written description. Trivascular, Inc. v. Samuels, 812 F.3d 1056, 1062 (Fed. Cir. 2016). The board s claim construction here was unreasonably broad and improperly omitted any consideration of the disclosure in the specification. See Novartis Pharm. Corp. v. Abbott Labs., 375 F.3d 1328, 1334 (Fed. Cir. 2004) ( Even when guidance is not provided in explicit definitional format, the specification may define claim terms by implication such that the meaning may be found in or ascertained by a reading of the patent documents. ) Claims are not interpreted in a vacuum, but are part of and are read in light of the specification. Slimfold Mfg. Co. v. Kinkead Indus., Inc., 810 F.2d 1113, 1116 (Fed. Cir. 1987) The broadest-construction rubric coupled with the term comprising does not give the PTO an unfettered license to interpret claims to embrace anything remotely related to the claimed invention. In re Suitco Surface, Inc., 603 F.3d 1255, 1260 (Fed. Cir. 2010) Even more fundamentally, the board s unduly broad reading of the language of claim 1 (of 876 Patent, Power Integrations) is unsupported by the specification. See PPC Broadband, Inc. v. Corning Optical Commc ns RF, LLC, 815 F.3d 747, 752 (Fed. Cir. 2016) ( The fact that [a claim term] has multiple dictionary meanings does not mean that all of these meanings are reasonable interpretations in light of [the] specification. ). Citing In re Smith Int l too 21 21

22 IN RE HODGES 882 F.3D 1668 (FED. CIR. 2018) US2012/ Examiner/PTAB US2012/ BRI of signal: a piston stem and piston head collectively constituted the claimed sensor because they sense pressure insofar as they move in response to the pressure applied thereto Dictionary definition of signal: an act, event, or the like that causes or incites some action CAFC Looking to the specification, the CAFC noted that the sensor may transmit the signal to an indicator, such as a pressure gauge or alarm system, to provide a visual or audible indication of the operability of the drain. Board s interpretation of signal would encompass virtually any mechanical component within the valve drain that moves in response to the flow of fluid through the drain Board s interpretation is unreasonably broad and inconsistent with the specification, citing In re Smith Int l Piston stem/head cannot fairly be characterized as a sensor that generates such a signal, much less one that is reflective of a pressure downstream of [the] inlet seat valve body 12 valve 14 valve 16 inlet seat 18 outlet seat 20 fluid pressure sensor 40 A drain valve comprising: a. a valve body, wherein said valve body defines an inlet seat and a first outlet seat downstream of said inlet seat; b. a first member, wherein said first member has a first position in sealing engagement with said first outlet seat and a second position separated from said first outlet seat; c. a second member, wherein said second member has a first location in sealing engagement with said inlet seat; and d. a sensor downstream of said inlet seat, wherein said sensor generates a signal reflective of a pressure downstream of said inlet seat

23 SOPHOS LTD. V. IANCU 882 F.3D 1668 (FED. CIR. 2018) (UNPUBLISHED) Examiner/PTAB 1 st construction rank: ordered, meaning the phenotypes must be ordered via-vis each other 2 nd construction are ranked: may occur as part of the comparing step such that phenotypes are not already ranked before the comparing step begins CAFC US2012/ US2012/ Board explained that this 2 nd construction precluded pre-comparison ranking The only reasonable understanding of the claim phrase is: a phenotype is ranked relative to others based in some way on its indicating known malware; the runtime object is scrutinized to see if its set of observed behaviors matches one of the phenotypes in the phenotype database; and it is the rank of a matched phenotype that determines the level of confidence that the runtime object is like a known family of malware (triggering content analysis and action). Board points to nothing in Sophos patent that discloses ranking the predetermined phenotypes according to their degree of similarity to a particular set of malicious behaviors observed in a particular runtime object. To the contrary, the patent speaks consistently of seeking a match of a phenotype for the runtime object s set of malicious-behavior indications, never of examining degrees of similarity. A computer program product embodied in a nontransitory computer readable medium that, when executing on one or more computers, performs the steps of: monitoring an executing computer process for an indication of malicious behavior, wherein the indication of the malicious behavior is a result of comparing an operation with a predetermined behavior, referred to as a gene, where the gene is stored for reference in a database and wherein the gene relates to at least one of API calls, registry access, process manipulation, and file system access; performing the monitoring step a number of times to collect a plurality of malicious behavior indications; comparing the plurality of malicious behavior indications to a predetermined collection of malicious behaviors, referred to as a phenotype, which comprises a grouping of specific genes that are typically present in a type of malicious code, and wherein the phenotype is one of a number of phenotypes that are ranked to create increasing levels of confidence that a runtime object is executing a behavior pattern comparable to a known family of malware; triggering a content analysis of the executing computer process when the plurality of malicious behavior indications for the executing computer process corresponds to one of the number of phenotypes having a predetermined level of confidence that the executing computer process contains a known family of malware, thereby providing a prediction that the executing computer process is the type of malicious code; and causing an action based on the prediction. We conclude that the Board s understanding is divorced from the specification and is legally incorrect. Citing In re Smith Int l (citing Proxyconn)

24 CHRIS FRANCIS 24

25 APPLICATION BY THE PTAB BPAI/PTAB Appeals to Fed. Cir. as background to In re Smith Int l Balance between interpretation that is consistent with the specification vs. importing a limitation from the specification into the claim Must an Examiner cite Applicant s specification to support BRI? Where does extrinsic evidence fit into In re Smith Int l? More practice pointers based on the PTAB s application of In re Smith Int l 25 25

26 PTAB EX PARTE APPEALS DECISIONS About 50 ex parte appeals cite In re Smith Int l Mixed bag of reversals and affirmances Many decisions contrast In re Smith Int l with: In re American Academy of Science Tech Center, 367 F.3d 1359 (Fed. Cir. 2004); and In re Van Geuns, 988 F.2d 1181 (Fed. Cir. 1993)

27 IN RE AMERICAN ACADEMY OF SCIENCE TECH CENTER 1. A method of operating a distributed data processing system said method comprising the steps of: running a user application program in a general purpose user computer to process user data, said user application program indirectly issuing data base calls for data operations regarding user data items in response to requirements for said data operations by said user application program; Indirectly issuing Patent holder s interpretation: a user computer application program issuing a call for data as though from resident storage, coupled with an intermediate step redirecting the call to the remote data center computer Board s interpretation: requiring only that a request from a host computer go through some other component before it is sent to the database 27 27

28 AMERICAN ACADEMY (CONT D) Fed. Cir. agrees with Board s interpretation of indirectly issuing We have cautioned against reading limitations into a claim from the preferred embodiment described in the specification, even if it is the only embodiment described, absent clear disclaimer in the specification. See Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed.Cir.2004) Specification describes the invention broadly and does not limit the term indirectly issuing to the use of a database simulator The database simulator is a preferred embodiment, and just one of the variety of conventional protocol procedures 28 28

29 IN RE VAN GEUNS 42. A magnet assembly comprising a first superconducting coil assembly defining a working volume ; and a second superconducting coil assembly, said assemblies being arranged such that a resultant, uniform magnetic field is generated in said working volume Uniform magnetic field Board interpreted uniform magnetic field as a magnetic field varying no more than 10 percent. The prior art discloses such a magnet. Patent holder argued that uniform magnetic field must be interpreted in light of the specification and understanding of persons skilled in the NMR and MRI art

30 IN RE VAN GEUNS (CONT D) Fed. Cir. agreed with the Board s interpretation of uniform magnetic field The short answer is that claim 42 is not expressly limited to NMR or MRI apparatus. [L]imitations are not to be read into the claims from the specification. In re Zletz, 893 F.2d 319, 321, 13 USPQ2d 1320, 1322 (Fed.Cir.1989). Thus, Van Geuns cannot read an NMR limitation into claim 42 to justify his argument as to the meaning of the "uniform magnetic field." 30 30

31 CONSISTENT W/SPEC. VS. IMPORTING LIMITATION Ex parte Man, Appeal (decided July 2018) 1. An anti-theft RFID system for monitoring the presence of a plurality of merchant items during an in-store try-out process comprising: a display counter having a top surface Specification and drawings disclosed two embodiments: A display counter (interchangeably used with display shelf ) Spec: FIG. 5. FIG. 5 and FIG. 6 illustrate the physical installation of the system setup when they are applied in the fixed container or display shelf. A tray (sometimes referred to as movable tray ) 31 31

32 EX PARTE MAN (CONT D) Examiner rejected claims over art with movable trays Appellant argues that these prior art references do not disclose a display counter but instead merely disclose movable trays Majority affirms the Examiner: Cites In re Van Geuns Display counter is a structure comprising a surface over which items are displayed The spec and claims do not provide a specific definition for the term that precludes a display counter from being portable Dissent: Cites In Re: Smith Int. The spec discloses two embodiments, one fixed and one movable. Dissent notes that spec states, FIG. 5 and FIG. 6 illustrate the physical installation of the system setup when they are applied in the fixed container or display shelf. Referring to FIG. 5, the luxury items are put on the display shelf or display counter (emphasis added) Consistency with the spec requires that the display counter be fixed 32 32

33 EXAMINER S BURDEN TO SUPPORT BRI The PTO fails to point to any description of the body that would support its strained construction of body. In re Smith Int l at 1383 The Examiner does not cite to, nor are we aware of, credible evidence or reasoning of record that tooth brushing in this form constitutes a surgical procedure in the context of claim 12. Ex parte Tani, Appeal (decided Nov. 2017) We note that the Examiner does not identify a portion of the Specification which uses contact to solely mean engagement or indirect touching rather than electrical contact. Ex parte Amitai, Appeal (decided Dec. 2017) Here, the Examiner has not identified any disclosure in the Specification (and we do not discern any from our review) indicating that an inner suit and an outer suit could be two layers of a single article of clothing. Ex parte Yair, Appeal (decided Jan. 2018) (Also discussed at:

34 DICTIONARY DEFINITION IMPROPER USE Ex parte Boeke, Appeal (decided May 2018) 1. A component for a gas turbine engine, comprising: a body portion that extends between a leading edge and a trailing edge, wherein at least one of said leading edge and said trailing edge includes at least one discharge slot having a first portion that includes an oval geometry and a second portion having a different geometry than said first portion. Prior art 34 34

35 DICTIONARY DEFINITION IMPROPER USE (CONT D) Examiner adds horizontal line to Figure 10 of prior art and interprets as follows: at least one discharge slot having a first portion that includes an oval geometry and a second portion having a different geometry than said first portion. Definitions in Spec: Oval No straight portions, see FIG. 5 Racetrack shape includes two flat sides 90, 92, see discharges slots 80B of FIGS. 3 and

36 DICTIONARY DEFINITION IMPROPER USE (CONT D) Appellant argues that the shape in Figure 10 is a racetrack shaped hole and lacks any oval geometry. Examiner responds that Figure 10 shows an oval geometry as supported by dictionary definition Oval: an elliptical track, as for racing or athletic events. (From Board: [T]he dictionary definition provided by the Examiner conflicts with the Specification before us on appeal, which distinguishes oval shaped and racetrack shaped, disclosing that an oval shape has no straight portions whereas a racetrack shape has flat sides

37 DICTIONARY DEFINITION PROPER USE Ex parte Twohy, Appeal (decided Jan. 2018) Claim 22. The method of claim 20 wherein the electrically-powered device is a heater. Examiner essentially interprets heater as a structure that provides heat. Board: Here, neither the claim language nor the Specification limit the construction of heater narrower than the implicit construction. The Examiner s construction aligns with extrinsic evidence as to the meaning of a heater. See The American Heritage Dictionary of the English Language (2016) (definition 1: An apparatus that heats or provides heat ) 37 37

38 KEY TAKEAWAYS Force the Examiner to identify support in your spec for the Examiner s BRI Consider whether amending the claim to match your proffered claim construction would be the most efficient and effective resolution PTAB latches onto consistency The Specification consistently uses the term contact as meaning electrical contact and not as simply some sort of indirect interaction. Ex parte Amitai, Appeal (decided Dec. 2017) [T]he Specification consistently describes the inner suit and outer suit as separate components. Ex parte Yair, Appeal (decided Jan. 2018) Explicit definition in specification can make it easier to invoke In re Smith Int l Explicit claim construction by Applicant (at least by the time of the appeal brief) can make it easier to invoke In re Smith Int l 38 38

39 BRI OF AT LEAST ONE OF Ex parte Jung, Appeal (decided March 22, 2017) Designated informative on July 10, 2018 See De-designated on August 7, 2018 See Claim language: each scene object including metadata representing at least one of [i.] a precedence relation indicating the scene object s location in a sequence of scene objects and [ii.] a connection relation indicating one or more scene objects capable of replacing the scene object 39 39

40 BRI OF AT LEAST ONE OF (CONT D) The Examiner interpreted the claim language in the form of at least one of A and B to mean A or B PTAB reversed and instead interpreted the claim language in the form of at least one of A and B to mean at least one of A and at least one of B PTAB: Our reviewing court has held that the plain meaning of at least one of A and B is the conjunctive phrase at least one of A and at least one of B. SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, (Fed. Cir. 2004). For claims written in the format of at least one of A and B, the Federal Circuit has made clear in SuperGuide that the plain and ordinary meaning is the conjunctive phrase at least one of A and at least one of B. 358 F.3d at 887. An Examiner may adopt a different meaning if called for based upon the usual claim construction considerations, including analyzing the specification for any definition or disavowal. See id

41 BRI OF AT LEAST ONE OF (CONT D) August 7, 2018 bulletin by PTAB: It has come to PTAB s attention that the decision has not been read as intended. For example, the designation was not intended to reflect new or changed policies with respect to claim construction. As a result, in order to avoid any confusion, the decision has been de-designated and removed from the list of informative decisions. The case remains a routine decision of the Board BUT there is still a valuable takeaway at the end of the Ex parte Jung decision: The opinion provides specific examples for ensuring a desired interpretation as a disjunctive phrase: at least one of A or B; at least one of A or at least one of B; or at least one selected from the group of A and B

42 Chris Francis (direct dial) THANK YOU! Dan Hegner (direct dial) Visit the Bejin Bieneman website at: And the Bejin Bieneman blogs at: Bejin Bieneman, PLC 2000 Town Center, Suite 800 Southfield, MI Phone: