{"id":1364,"date":"2009-12-22T20:16:32","date_gmt":"2009-12-23T02:16:32","guid":{"rendered":"http:\/\/www.717madisonplace.com\/?p=1364"},"modified":"2009-12-22T20:16:32","modified_gmt":"2009-12-23T02:16:32","slug":"repeated-use-of-permissive-language","status":"publish","type":"post","link":"https:\/\/www.717madisonplace.com\/?p=1364","title":{"rendered":"Repeated Use of Permissive Language"},"content":{"rendered":"

One of the reasons that I\u00a0enjoy listening to the recordings of the Federal Circuit oral arguments is for the creative arguments that are not eventually addressed in the court’s opinion.\u00a0 Oftentimes, there is no need for the court to address these arguments in the resulting opinion because another issue on appeal makes the arguments moot.\u00a0 Such was the case in Intellectual Science and Technology v. Sony Electronics, Inc.<\/span>, 2009-1142, (Fed. Cir. Dec. 15, 2009).<\/p>\n

One of the issues that was on appeal in Intellectual Science and Technology v. Sony Electronics, Inc.<\/span> was whether repeated use of the phrase “multitasking” in describing an embodiment in a permissive context (e.g., “capable of multitasking”, “including multitasking”, “such as multitasking”) mandated that the “multitasking” language in the preamble\u00a0be\u00a0considered as an element in the claim.\u00a0 This is the query Judge Rader had for plaintiff-appellant’s counsel: [Listen<\/a>].\u00a0 And, this is the exchange between Judge Rader and defendant-appellee’s counsel on the same issue: [Listen<\/a>].<\/p>\n

The court did not have to address the issue in the opinion.\u00a0 Instead, it said:<\/p>\n

Intellectual Science also appeals the district court\u2019s construction of the term “with multitasking function” in the preamble of claim 1 of the \u2019575 patent. The construction of that term, however, does not affect the issue of adequate information to create a factual issue on infringement of the “data transmitting means” in the accused devices. Because Intellectual Science did not show a genuine issue of material fact on one of the limitations in the accused devices, this court need not reach the district court\u2019s construction of another. See TechSearch<\/span>, 286 F.3d at 1371 (“To establish literal infringement, all elements of the claim, as correctly construed, must be present in the accused system.”).<\/p><\/blockquote>\n

\u00a0Judge Rader also noted in one of his hypotheticals that he is an ABBA and a Beatles fan.\u00a0\u00a0Counsel quickly invoked the title of the song “Dancing Queen” by ABBA\u00a0into his response — proving,\u00a0as many have long\u00a0suspected, that\u00a0the\u00a0rough and tumble world of\u00a0patent litigation eventually turns\u00a0all patent litigators\u00a0into\u00a0ABBA fans\u00a0 [Listen<\/a>].<\/p>\n

\u00a0You can listen to the entire oral argument here: [Listen<\/a>].<\/p>\n","protected":false},"excerpt":{"rendered":"

One of the reasons that I\u00a0enjoy listening to the recordings of the Federal Circuit oral arguments is for the creative arguments that are not eventually addressed in the court’s opinion.\u00a0 Oftentimes, there is no need for the court to address these arguments in the resulting opinion because another issue on appeal makes the arguments moot.\u00a0 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[],"_links":{"self":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/1364"}],"collection":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1364"}],"version-history":[{"count":18,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/1364\/revisions"}],"predecessor-version":[{"id":1385,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/1364\/revisions\/1385"}],"wp:attachment":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1364"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1364"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1364"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}