tag:blogger.com,1999:blog-1949935810569534550.post4567891619232119418..comments2023-08-17T14:09:24.945+01:00Comments on PatLit: the patent litigation weblog: CAFC Judges Debate Correct Claim Construction Standard For AIA TrialsUnknownnoreply@blogger.comBlogger1125tag:blogger.com,1999:blog-1949935810569534550.post-34623748981277763952015-07-15T16:04:07.565+01:002015-07-15T16:04:07.565+01:00Some thoughts:
1. When you see BOTH the accused i...Some thoughts:<br />1. When you see BOTH the accused infringement AND the prior art, you know for the first time whether it is just, that the accused infringer should be enjoined. The judges at the USPTO see no accused embodiment, so best that they go for BRI, leaving the courts enough wiggle room to narrow the duly issued and presumed valid claim enough to let the accused infringer get away in cases where it is just that he should do so.<br />2. Duly issued claims are presumed valid in court. Only evidence that is "clear and convincing" can touch their validity. This is the counterpart to a claim construction exercise by the court that says the claim is narrower than its BRI scope. <br />3. Ever since the year 1906, says the majority, the USPTO has used BRI to "prevent needless litigation after the patent has issued". Curtailing the amount of patent litigation seems to be a top current preoccupation in the USA. Hence, I suspect, the determination to cling to BRI, despite Pauline Newman's good reasons to eschew it.<br />4. Some commentators are saying that in reality there ain't much difference betweeen BRI and the court's Philips standard of claim construction. Much ado about not much? No sky falling after all?MaxDreinoreply@blogger.com