Inventors often emphasize that one of the distinguishing features of their invention is that it can operate in “real-time” versus the slower working of the prior art. However, just what “real-time” entails can be quite difficult for a patent attorney to define and for the public to grasp from reading a patent’s claims, specification, and prosecution history. In the oral argument for Netcurrents Information Services, Inc. v. Dow Jones and Co., the entire oral argument was spent trying to understand how “real-time” should be construed and whether the district court erred in its grant of summary judgment based on its construction of “real-time.” Despite the lengthy oral argument, the Federal Circuit affirmed summary judgment in a non-precedential per curiam opinion under Federal Circuit Rule 36 (i.e., no explanation given for the affirmance).
In addition to the fact that this oral argument highlights how difficult it can be to adequately define “real-time,” this case is also interesting in this interchange between one of the judges on the panel and counsel for the defendant/appellee where the judge recites a passage from the Summary of the patent and the attorney responds by citing a passage from the Abstract. It should highlight to patent prosecutors the importance of those sections when drafting an application: [Listen].