Danger Will Robinson! — should “set” in patent law include “the empty set”

There’s an interesting line in today’s opinion in Keynetik v. Samsung.

The word “set” can mean “[a]n assemblage of distinct entities, either individually specified or which satisfy certain specified conditions.” SetOxford English Dictionary, https://www.oed.com/view/Entry/176794 (last visited Jan. 26, 2021). A “set” need not consist of multiple things and may consist of nothing, i.e., an “empty set.” Id.3

Keynetik, Inc. v. Samsung Electronics Co., Ltd., 2020-1271, (Fed. Cir. Jan. 27, 2021) (slip. op. at pages 8-9.

Think of the implications of the word “set” including the “empty set” for purposes of claim construction in patent law. How many issued claims does that line of thinking broaden by reducing claim elements within those issued claims to include a nullity? How many claims does it invalidate for 112 or 102/103 purposes? I fear Judge Dyk has relapsed to a Texas Digital perspective on this one and is relying too heavily on dictionary definitions, again.

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