by Dennis Crouch
Ancora Tech. v. Apple Inc. (Fed. Cir. 2014)
Ancora’s patent covers a verification system to ensure that the software running on a computer are properly licensed. U.S. Patent No. 6,411,941. Following claim construction, Ancora stipulated to a summary judgment of non-infringement — agreeing that the district court’s construction of the claim term “program” was so narrow that Apple’s verification system did not fit within its bounds. In particular, the examples from the original 1998 patent application all focused on application programs — ones that rely upon an operating system in order to run and thus exclude the (Apple) operating system itself.
Asserted claim 1 is written as follows:
1. A method of restricting software operation within a license for use with a computer including an erasable, non-volatile memory area of a BIOS of the computer, and a volatile memory area; the method comprising the steps of:selecting a program residing in the volatile memory,using an agent to set up a verification structure in the erasable, non-volatile memory of the BIOS, the verification structure accommodating data that includes at least one license record,verifying the program using at least the verification structure from the erasable non-volatile memory of the BIOS, andacting on the program according to the verification.
A claim term should be given its ordinary meaning in the pertinent context, unless the patentee has made clear its adoption of a different definition or otherwise disclaimed that meaning. . . There is no reason in this case to depart from the term’s ordinary meaning.
The Supreme Court currently is considering how to refine the formulations for applying the definiteness requirement. See Nautilus, Inc. v. Biosig Instruments, Inc., Sup. Ct. No. 13-369, cert. granted, 2014 WL 92363 (Jan. 10, 2014). In this case, we think that we can reject the indefiniteness challenge without awaiting the Court’s clarification. However other circumstances may be evaluated, it suffices to reject the challenge in this case that the claim language and the prosecution history leave no reasonable uncertainty about the boundaries of the terms at issue, even considering certain aspects of the specification that could engender confusion when read in isolation.
Most importantly, there is no dispute that the terms “volatile memory” and “non-volatile memory” have a meaning that is clear, settled, and objective in content. Both parties and the district court agreed that, as a general matter, “[t]o one of ordinary skill in the art, a volatile memory is memory whose data is not maintained when the power is removed and a non-volatile memory is memory whose data is maintained when the power is removed.” That meaning leaves the relevant public with a firm understanding of the scope of the claim terms, unless something exceptional sufficiently supplants that understanding.
Under our claim-construction law, a clear ordinary meaning is not properly overcome (and a relevant reader would not reasonably think it overcome) by a few passing references that do not amount to a redefinition or disclaimer.
Under our claim-construction law, a clear ordinary meaning is not properly overcome (and a relevant reader would not reasonably think it overcome) by a few passing references that do not amount to a redefinition or disclaimer. . . . [Furthermore], it is well known that a computer’s hard disk is routinely used as “virtual” memory to provide temporary storage when there is insufficient RAM to complete an operation.
It will be interesting to see here if Apple asks petitions for certiorari on either de novo review or indefiniteness.