Bottom line: The Federal Circuit construed the meaning of a phrase (i.e., a contact hole) which typically is construed to mean “one or more” to mean “two or more.” This case illustrates the fickleness of patent litigation and how the entire case could turn on not only one phrase in the claims but the varying opinions of how the judge, jury or the Federal Circuit might think a person of ordinary skill in the art would interpret a phrase in the claims.
In Eidos Display LLC v. AU Optronics Corp. (Fed. Cir. 2015), the invention was directed to the manufacturing process for LCD panels. The independent claim which defines what is protected under the patent required “a contact hole for source wiring and gate wiring connection terminals.” The literal, normal sense of the phrase means that one or more holes are used for both terminals. However, based on how the patent specification was written, the court construed the meaning of the literal meaning of the phrase to mean that each terminal has its own hole.
At the district court level, the judge held that the claim was indefinite. The parties had proffered four different interpretations for the phrase in question. The patent owner requested that the phrase be construed to mean either that each terminal has its own hole or the terminals have a shared hole. The defendants argued that the phrase should be construed to mean either (1) two terminals share one hole or 2) a hole be provided for the source wiring connection terminal and no hole be provided for the gate wiring connection terminal. The district court rejected all four possible meanings and held that the claim was indefinite, and thus invalid.
Upon review by the Federal Circuit, the court looked to the specification and how the terminals and the holes were described. The parties agreed that at the time of the invention, the industry practice was to form one hole for each of the terminals. The patent specification only provided examples where one hole was provided for each of the terminals. Although it was technically feasible to form a shared hole for multiple terminals, the patent specification did not disclose or teach one how to do so. In sum, it appears that the Federal Circuit decided this case on the premise that “if the patentee wanted to deviate from the standard practice and claim a novel shared contact hole, some teaching of how to depart from the common practice would not only be expected, but is required.”
The analysis of the Federal Circuit appears to be cogent until it analyzes the actual words of the claim. The word “a” is typically construed to mean “one or more.” Nonetheless, the Federal Circuit construed the phrase so that “a” meant two or more. The Federal Circuit analogized the phrase at issue with the phrase “I am going to create an electric car for the United States and United Kingdom.” One reading this phrase would expect that two cars to be created. One left sided steering for the U.S. and another right sided steering for the U.K. Under claim construction rules, the court is not supposed to rewrite a claim but they distinguished rewriting the claim with interpreting the claim language in line with how one of ordinary skill in the art would interpret the claim language. In many ways, one can go very far away from the normal, no-nonsense meaning of the actual literal text of the claim based on expert testimony, specification in order to get a result-oriented decision.
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