Term's Narrow Ordinary Meaning and Usage in the Intrinsic Evidence Overcome Claim Differentiation; JMOL of Non-Infringement Appropriate Where Patentee Didn't Argue Infringement Under Narrower Construction

Cardsoft LLC v. Verifone, Inc., __ F.3d ___ (Fed. Cir. Oct. 17, 2014) (Prost, Taranto, HUGHES) (E.D. Tex.: Payne) (2 of 5 stars)

Federal Circuit reverses claim construction and enters JMOL of non-infringement. The patent covered a payment terminal that included a "virtual machine" having certain functionality. The Federal Circuit determined that "virtual machine," by its ordinary meaning and by the problem that the specification and prosecution purported to overcome, should make it so that applications run on the machine are independent of the operating system or hardware on which the machine runs.

The court noted that the quintessential prior art virtual machine—Java—had this feature, and the prosecution history described Java as a "conventional" virtual machine, and argued that the claims cover "an addition to a conventional virtual machine." Slip op. at 7-8 (emphasis in original). Claim differentiation did not require a broader construction: "Because the ordinary meaning of—virtual machine' is clear in light of the specification and prosecution history, claim differentiation does not change its meaning." Id. at 9. Finally, after altering the construction, the Federal Circuit granted JMOL because the patentee did not argue on appeal that there was still infringement under the narrower construction, and it thus waived any chance to make such a showing on remand.