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01 Communique Laboratory, Inc. v. Citrix Systems, Inc.

Patent Defendants May Argue That Claim Application Leading to Infringement Would Capture Prior Art

01 Communique Laboratory, Inc. v. Citrix Systems, Inc., __ F.3d __, 2018 WL 1954760 (Fed. Cir. Apr. 26, 2018) (Newman, MAYER, Stoll) (N.D. Ohio: Lioi) (3 of 5 stars)

Fed Cir affirms denial of Communique’s motion for new trial following judgment of no infringement. There was nothing improper in Citrix’s argument that, were Communique’s claim applied broadly so as to cover the Citrix product, then the claim would also read on the prior art. Tate, 279 F.3d 1357 (Fed. Cir. 2002), and Zenith, 522 F.3d 1348 (Fed. Cir. 2008), are not contradictory. Citrix was not attempting to defeat a literal infringement claim by pointing to similarities with the prior art, but was permissibly emphasizing that a patent must be construed the same way for both invalidity and infringement. The opinion rejects Citrix’s argument that there any improper jury prejudice resulting from this argument. “[W]e have never suggested that any comparison between an accused product and the prior art mandates a new trial.” Id. at 13. The district court also did not abuse its discretion in ruling that the record of a recent reexamination of Communique’s patent could be entered into the record without informing the jury that the reexamination had been requested by Citrix itself.

KEYWORDS: RULE 59; INFRINGEMENT (NO); CLAIM CONSTRUCTION; INVALIDITY (NO)