Olaf Sööt Design, LLC v. Daktronics, Inc. (Fed. Cir. 2021)
Sööt’s patent covers a winch system used for major theatre productions. A jury found Daktronics Vortek product infringed under the doctrine of equivalents and awarded $1 million in damages.
On appeal, the Federal Circuit reversed, holding that “Under the proper construction, the Vortek product does not infringe claim 27 either literally or under the doctrine of equivalents.”
The problem with this decision is that neither party appealed claim construction. Rather, the adjudged infringer appealed on infringement. Sööt petitioned for rehearing on the issue of waiver, but that quest has now also been denied.
Whether waiver prevents a challenge to claim construction on appeal sua sponte where a party’s waiver is based on the act that the original claim construction was (i) sponsored by the party during Markman, (ii) accepted by the district court, and applied by the jury in reaching its verdict; and (iii) not challenged on appeal by either party. If not, what conditions must exist to overcome such waiver on claim construction.
This case comes just in time to see my new 6 second video explainer on the two ways to argue patent infringement: