No Mud-Slingers

The Federal Circuit heard oral argument yesterday in the appeal of the order granting a preliminary injunction in Apple v. Samsung.  The court previously granted expedited oral argument for this appeal.  You can listen to yesterday’s oral argument here:  [Listen].

Much of the oral argument was spent arguing about how to define the size of the market for the smart phones at issue.

What intrigued me, though, is that this is another “each” case.

The claim being discussed in the oral argument reads as follows:

An apparatus for locating information in a network, comprising:
an interface module configured to receive an inputted information descriptor
from a user-input device;

a plurality of heuristic modules configured to search for information that corresponds to the received information descriptor, wherein:

each heuristic module corresponds to a respective area of search and employs a different, predetermined heuristic algorithm corresponding to said respective area, and the search areas include storage media accessible by the apparatus; and

a display module configured to display one or more candidate items of information located by the plurality of heuristic modules on a display device.


You can listen to Apple’s attorney argue about the meaning of “each” in this sound bite [Listen]. The link to the order granting the preliminary injunction at the beginning of this post gives more of a discussion on the claim construction of “each” for the above claim.  See page 19 of the order.


Judge Moore also had some tips for brief writers at the end of the oral argument.  She noted that mud-slinging in the briefs turns off appellate judges.  [Listen].


The claim above also uses the word “plurality.”  Use of the word “plurality” is ubiquitous in patent claim drafting.  In his post last week about the Federal Circuit’s  Magsil Corp. v. Hitachi, __ F.3d __ (Fed. Cir. 2012) decision, Dennis Crouch observed that the word “plurality” could be deemed an open-ended range term with no upper bound.  In Magsil, the court invalidated a claim for not fully enabling an open-ended range claim that recited “at least 10%.”

“Siri, will the Federal Circuit officially recognize that “plurality” is a legal term of art — just as it did with the word “comprising” in Genentech v. Chiron, 112 F.3d 495 (Fed. Cir. 1997) — and that it has an implicitly finite upper bound?”

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