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Patents: When the 'Plain and Ordinary' Meaning Is Neither Plain Nor Ordinary

By Matthew Chivvis
September 01, 2016

It is common in patent cases for the patentee to ascribe “plain and ordinary” meaning to terms in a patent claim, while the defendant often seeks a narrower construction. But what if the parties agree that “plain and ordinary” applies but then dispute what the plain and ordinary meaning should be? The U.S. Court of Appeals for the Federal Circuit's decisions provide conflicting guidance on the duty to construe a term when the plain and ordinary meaning is disputed. The lack of a clear rule has allowed district courts to vary widely in how they handle claim construction in these circumstances.

The Federal Circuit

In O2 Micro International v. Beyond Innovation Technology, 521 F.3d 1351 (2008), the Federal Circuit held that a determination that a claim term “needs no construction” or has the “plain and ordinary meaning” may be inadequate when a term has more than one “ordinary” meaning or when reliance on a term's “ordinary” meaning does not resolve the parties' dispute. The dispute in that case concerned the term “only if”; the plaintiff argued that the limitation applied only during “steady state” operation of the current controllers at issue, while the defendant argued that the “only if” limitation applied at all times without exception.

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