Claims Should be Construed within the Context of the Accused Device

Lava Trading v. Sonic Trading Management (Fed. Cir. 2006, 05–1177)

In today's case of Lava Trading, the CAFC again found that knowledge of the accused product is import for providing "a proper context for an accurate claim construction. . . . Without the vital contextual knowledge of the accused products or processes, this appeal takes on the attributes of something akin to an advisory opinion on the [patent] scope. " 

This decision falls in line with the recent Wilson Sporting Goods case that held “while a claim is not to be construed in light of the accused device, in an infringement case, it must inevitably be construed in context of the accused device.”

Comments

[Al]

Interesting disent in this case by the former Chief Judge. Maybe the court will take another look at whether we are better off with or without Markman as was discussed at the ABA conference in April.

[Alan McGrath]

Interesting dissent in this case. Maybe the CAFC will take another look at whether we are better off with or without Markman as was discussed by the Friday afternoon panel at the April ABA conference.

[Anthony Diepenbrock]

So much for claim construction as a matter of law. How can the court, on one hand, say it has jurisdiction to review claims de novo as a matter of law and then say, on the other hand, it must do so in the context of the accused device, which is a fact issue?

[Phil Mann]

Good question Anthony.

If you're as cynical as I am, you can't help wondering if the Court's real frustration is that, without knowing what the accused product is, the Court can't figure out what result it wants and, therefore, can't adopt the construction it needs to get that result.

The entire Markman process is wrong and contrary to the Seventh Amendment right to a jury. (And yes, I'm aware of the "common law" provision of that amendment.) More decisions along these lines will further expose the Court's charade.