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Language matters: Grammar guides court’s patent interpretation

June / July 2021 IP Newsletter

Grammar nerds can delight in a new ruling from the U.S. Court of Appeals for the Federal Circuit, which hears all appeals involving patent litigation. Asked to interpret the meaning of the phrase “a plurality of” when it precedes a list of components in a patent, the court relied in part on a source likely to be found on the bookshelf of every English major at some point.

Defendant tries to avoid charges

SIMO Holdings Inc. owns a patent on apparatuses and methods that let individuals reduce roaming charges on cellular networks when traveling outside their home territory. It sued Hong Kong uCloudlink Network Technology Limited for infringement.

The parties presented briefs addressing whether the patent required a “non-local calls database” and, if so, whether the defendant’s products had such a database. The trial court held that a database wasn’t required and sent the case to trial, which resulted in an $8.2 million judgment for the plaintiff. The defendant appealed, arguing that the district court misinterpreted the phrase in the patent that included the reference to the database.

Court makes a clear call

The patent claim at issue referred to a “wireless communication client or extension unit comprising …,” followed by a list of components that included a non-local calls database. The Federal Circuit agreed with the lower court that the language was limiting, meaning that what it required was an essential part of the patented invention.

But it disagreed with the trial court’s finding that the language made the database optional. It explained that the determinative issue was the role of “a plurality of” in the phrase “a plurality of memory, processors, programs, communication circuitry, authentication data stored on a subscribed identify module (SIM) card, and/or in memory and non-local calls database.”

The trial court treated the word “and” near the end of the phrase as meaning “and/or” and concluded that “a plurality of” requires only “at least two” items from the entire list of components. The Federal Circuit, however, held that “a plurality of” required at least two of each of the listed items. In support, it cited various grammatical principles, Strunk and White’s “The Elements of Style” and a well-regarded book on interpreting legal texts co-authored by the late U.S. Supreme Court Justice Antonin Scalia.

Plaintiff is cut off

Although the appellate court reversed the trial court, the case wasn’t sent back for further proceedings. The plaintiff’s failure to identify evidence demonstrating that the defendant’s products actually had two non-local calls databases prompted the court to enter a judgment of noninfringement without trial.

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