In my first post about Pavo Solutions v. Kingston Technology a few weeks ago, I noted that the Federal Circuit rewrote claim language in the asserted patent by changing the claim element "for pivoting" from case to cover. The claim element in question read as follows:
...at least one hinge hole receiving the hinge protuberance on the case for pivoting the [[case/cover]] with respect to the flash memory main body...
So instead of the claim requiring the case to pivot per its plain language, the Federal Circuit rewrote the claim to require the cover to pivot.
Not only did the Federal Circuit affirm infringement based on the rewritten claim language, but it also affirmed that defendant
The Federal Circuit held that “reliance on an obvious minor clerical error in the claim language is not a defense to willful infringement,” reasoning that “judicial correction does not re-make the claim; rather, it gives effect to its obvious meaning. [Citation omitted]. An obvious minor clerical error, by definition, does not mask that meaning, so
But does this reasoning and conclusion hold up under scrutiny?
In its decision, the Federal Circuit referred one time to the
Section 284 allows district courts to punish the full range of culpable behavior. Yet none of this is to say that enhanced damages must follow a finding of egregious misconduct. As with any exercise of discretion, courts should continue to take into account the particular circumstances of each case in deciding whether to award damages, and in what amount. Section 284 permits district courts to exercise their discretion in a manner free from the inelastic constraints of the Seagate test. Consistent with nearly two centuries of enhanced damages under patent law, however, such punishment should generally be reserved for egregious cases typified by willful misconduct.
Were
Interestingly, when discussing Safeco Ins. Co. of America v. Burr, 551 U. S. 47 (2007), the Halo court stated that “[n]othing in
Couldn't the same be said for
Couldn't it be said that “[defendant
To be sure, a counterargument is that
Another counterargument is that the Federal Circuit presumably reviewed the case under an abuse of discretion standard, so affirmance of the district court's decision is not particularly noteworthy. Despite this review standard, however, isn't the apparent breadth of the Federal Circuit's holding (“reliance on an obvious minor clerical error in the claim language is not a defense to willful infringement”) problematic? How is one truly supposed to “know or have reason to know” when claim language will be rewritten because it contains an “obvious error,” as opposed to when claim language will not be rewritten because it would improperly import limitations into the claims?
Hence, obtaining a crystal ball (or at least a Magic 8 ball for those in the
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