DC correctly construed claims (e.g., “and” means “and/or”) but improperly denied pre-judgment interest

Micheal Philip Kaufman v. Microsoft Corporation

Docket No. 2021-1634, -1691 (https://cafc.uscourts.gov/opinions-orders/21-1634.OPINION.5-20-2022_1954422.pdf)

DYK, TARANTO, CUNNINGHAM

May 20, 2022

Brief Summary:   DC claim construction affirmed but denial of pre-judgment interest reversed.

Summary:  Mr. Kaufman appealed the DC’s denial of his motion to amend his motion to amend damages to include prejudgment interest after finding Microsoft (MS) infringed his patent (now expired US 7,885,981 claiming priority to a provisional application filed in 2000) directed to the creation of user interfaces allowing users to interact with data in relational databases.  MS also appealed the judgment of infringement.  Mr. Kaufman alleged MS’s Dynamic Data product infringed the ‘981 claims by automatically generating “a Web application for ‘viewing and editing data based on the schema of the data’”.  MS moved for summary judgment in 2019, arguing the preamble phrase “automatically generating” is limiting and means “no human labor required” and its product carried out the related step using a human developer.  The parties agreed on the construction of this limitation.  MS also argued its product does not meet ‘981 limitation (c) (including integrating, processing, navigating, “and” managing “relationships across tables”) as its product does not include of all the limitations.  The SJ was denied over the limitation (c) “and” issue because the parties disputed whether it was present in MS’s product and the DC’s construction of “and” as “and/or”.  The FC panel reviewed the DC decision for an abuse of discretion.  It first found MS waived arguments regarding the “automatically generating” limitation as there was “‘no indication’ that the court was ‘aware of the supposed dispute’” and it was therefore forfeited (O2 Micro, FC 1995; Lazare, FC 2010 (“cannot ‘resurrect’ its argument on appeal by ‘pointing to ambiguous statements in the record’”; also rejecting another argument “presented for the first time on appeal”).  MS also argued “there was insufficient evidence to support the jury’s finding that use of Dynamic Data infringed limitation (b) of the claim” (Hewlett-Packard, FC 2003), which was rejected by the FC panel.  The FC panel also agreed with the DC’s construction of “and” as MS’s proposed construction would “exclude[] a preferred embodiment” or a “sole embodiment” (Epos, FC 2014; Vitronics, FC 1996; Lucent, FC 2008 (“we recognize that we may not ‘redraft claims . . . whether to make them operable or to sustain their validity”); Ortho-McNeil, FC 2008 (“in certain contexts, the word ‘and’ can reasonably be understood to denote alternatives, rather than conjunctive requirements…we [are] not required to ‘interpret and according to its most common usage in the dictionary’” but “must interpret the term to give proper meaning to the claim in light of the language and intrinsic evidence”); “Microsoft cannot meet the high bar required to conclude that the patent excludes the only embodiment described in the specification.”)  The FC panel also concluded Mr. Kauffman should have been allowed “to amend the judgment to include prejudgment interest”, and the DC’s denial was an abuse of discretion regarding the jury instructions (Sanofi-Aventis, FC 2011; 35 USC section 284; General Motors, US 1983).  The DC decision was therefore affirmed-in-part and denied-in-part.

This entry was posted in Appeal, Claim Construction, Damages, Lost Profits, Preamble, Royalties. Bookmark the permalink.

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