Friday, September 17, 2004

Knorr-Bremse Post Mortem - (courtesy of the Internet Patent News Service): Greg Aharonian provides his opinion on the Knorr-Bremse decision and brings up an interesting point: since claim construction is a matter of law, how can one ever claim to know the true meaning and scope of a claim? Here are some of Greg's comments:

Willful infringement of a patent requires that the infringer understand the exact scope of the patent claims, i.e., the infringer saw the boundary and crossed it. But unmentioned in its Knorr decision, is another CAFC decision, Markman, which says that only judges can draw the lines of the boundary. Until the Markman hearing, and especially without Jepson claims, there are no boundaries to be crossed, making willfulness impossible.

The CAFC can't have it both ways. It can't say the public can't scope claims if they are on a jury, but then say they can scope claims to willfully infringe. (I am ignoring the issue of exact copying, which for technologies like software where many opinions are sought, is rarely the case).

Since patent lawyers are not judges, Markman implies that their opinions are almost as useless as the analysis of the infringer. And given the rate of cases being overturned, Markman implies that the decisions/opinions of district court judges are as useless. So it doesn't matter if an infringer asks a lawyer for an opinion or not, and it doesn't matter if the infringement opinion says there is infringement or not, none of this matters in light of Markman. I mean, companies now have to deal with the problem of worrying if the district court judge is not as smart as their lawyers (imagine your lawyer, with an excellent argument, saying you don't infringe, only to later to have deal with the judge construing the claims another way).

Yet the CAFC in Knorr doesn't mention Markman. That defies logic. The implications of Markman are still a big legal mess, and at least one CAFC judge knows how very deep this legal mess is to be a lie.

Greg Aharonian

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