Clear And Undisputed Ordinary Meaning Of Claim Terms Not Easily Displaced

Fed Cir reverses the judgment of non-infringement based on an erroneous claim construction of "program" and affirms judgment that the claim terms "volatile" and "non-volatile" are not indefinite.

Ancora Techs., Inc. v. Apple, Inc., ___ F.3d ___ (Fed. Cir. Mar. 3, 2014) (Rader, TARANTO, Chen) (N.D. Cal: Gonzalez Rogers) (2 of 5 stars)

Claim Construction: The district court incorrectly construed "program" by limiting the term to "application programs" and excluding operating systems. The Fed Cir reasoned that (i) the ordinary meaning of "program" encompassed both application programs and operating systems, (ii) claim differentiation applies based on another claim using the term "application software program," (iii) the specification’s examples involving application programs were not limiting, and (iv) references to an "application" in the prosecution history referred to the program implementing the invention, not the program being verified by the invention.

Indefiniteness: The terms "volatile memory" and "non-volatile memory" were not indefinite, despite statements in the specification identifying a hard disk as "volatile memory." The Fed Cir first noted that the terms "have a meaning that is clear, settled, and objective in content ... that leaves the relevant public with a firm understanding of the scope of the claim terms, unless something exceptional sufficiently supplants that understanding." Slip op. at 10. Nothing in the patent changes that understanding because the terms "have so clear an ordinary meaning that a skilled artisan would not be looking for clarification in the specification" and that "a clear ordinary meaning is not properly overcome ... by a few passing references that do not amount to a redefinition or disclaimer." Id. at 11. The Fed Cir further reasoned that the specification's references to a hard drive as "volatile memory" were not necessarily inconsistent with the ordinary meaning because they could refer to the use of hard drive space as virtual memory, and that the prosecution history confirmed that the patentee did not intend to depart from the ordinary meaning of the terms.