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The Federal Circuit's En Banc Consideration of Claim Construction in Phillips v. AWH Corp.
Federal Circuit decisions on how to interpret patent claim language are critically important. Unfortunately, however, recent Federal Circuit decisions do not reflect a unitary approach to patent claim interpretation. On July 21, 2004, the Federal Circuit issued an order granting a petition to rehear en banc the appeal in Phillips v. AWH Corp., 363 F.3d 1207 (Fed. Cir. 2004). The court “determined to hear this case en banc in order to resolve issues concerning the construction of patent claims,” and invited the parties as well as amicus curiae to submit briefs on seven very specific questions relating to claim construction methodology and review on appeal. This article analyzes the Phillips en banc appeal focusing on the amicus briefing and responses to the Federal Circuit's seven questions. Overall, the response to the court's call for amicus briefs was indicative of the keen interest in the bar on these issues. Thirty-three responses were filed, with the majority of them urging the court to interpret claim terms by looking primarily to the patentee's use of the terms in the specification and prosecution history and secondarily to dictionaries and similar sources if useful. The majority of the amici also advocated allowing expert testimony to play at least some role in claim construction. Further, most of the amici that addressed the final question posed in Phillips urged the Federal Circuit to accord deference to varying aspects of trial court claim construction rulings, rather than review these findings entirely de novo. A chart summarizing the positions advocated by each of the amici on each issue can be accessed at the following Web site address: www.mofo.com/misc/chartphillipsawh.pdf.
Phillips Question Number 1 for Amici Curiae
“Is the public notice function of patent claims better served by referencing primarily to technical and general-purpose dictionaries and similar sources to interpret a claim term or by looking primarily to the patentee's use of the term in the specification? If both sources are to be consulted, in what order?”
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?