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Edward H. Phillips v. AWH Corp. et al.: Did the Federal Circuit Change Anything?
The Federal Circuit piqued the interest of the patent bar when it issued its decision granting Edward H. Phillips' petition for rehearing en banc. Edward H. Phillips v. AWH Corp. et al., 376 F.3d 1382 (Fed. Cir. 2004) (“Phillips I“). Patent practitioners expected that the court would finally provide the bar with a clear understanding of how claims should be interpreted and construed. The court's guidance would help not only patent prosecutors so that claims could be crafted with appropriate scope to provide maximum coverage for a client's invention, but also aid patent litigators so that efforts could be focused on specific disputed claim terms and their construction rather than scatter shot attacks on every possible claim term in the hope that one of the shots would hit home. Whether the Federal Circuit provided any guidance to the bar has yet to be determined. However, it is clear that despite the fervent hope of the patent bar, no new law was made with the Phillips en banc decision.
The en banc petition decision directed the parties to address the following seven separate issues relating to claim construction: 1) should dictionaries be used as sources to interpret a claim term; 2) should technical dictionaries be consulted before general usage dictionaries; 3) should the specification limit the scope of the claim language; 4) should the specification be used to interpret the claims of the patent rather than a dictionary; 5) should claims be interpreted to avoid invalidity; 6) what role should prosecution history or expert testimony play in determining the meaning of disputed claim terms; and 7) should the trial court be accorded deference in claim construction rulings. Phillips I, 376 F.3d at 1383. All of these questions, with the exception of the last, were touched upon in the en banc decision. A summary of the case follows.
Appellant Phillips invented modular, steel-shell panels that can be welded together to form vandalism-resistant walls. Edward H. Phillips v. AWH Corp. et al., 415 F.3d 1303, ____, 2005 WL 1620331, *1 (Fed. Cir. 2005) (“Phillips II“). During litigation, the claim language “further means disposed inside the shell for increasing its load bearing capacity comprising internal steel baffles extending inwardly from the steel shell walls” became the focus of dispute. Id. at 2005 WL 1620331 at *1. The issue was whether the baffle limitation must be construed to cover baffles at an angle other than 90 to the wall faces or whether the claim covered baffles at acute, obtuse, and right angles to the wall face. Id. at *1. The district court ruled that the claims at issue were means plus function claims and thus were limited to the structure or its equivalent disclosed in the specification. Id. Because the district court determined that every reference in the specification disclosed a baffle at an angle other than 90 to the wall faces, it found that the claims could not cover a baffle disposed at a right angle to the wall and granted summary judgment for noninfringement. Id.
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.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.