Federal Circuit examines ‘a’ definitionApril 19, 2006

In Lava Trading, Inc. v. Sonic Trading Management, LLC, the Federal Circuit begrudgingly reversed the district court’s claim construction and vacated its judgment of non-infringement. The patent at issue deals with a method of providing trading information about a given security or commodity collected from multiple sources in order to assist a trader to make better decisions regarding the purchase or sale of stock. Little information was in the record regarding the allegeded infringing system, much to the chagrin of the Federal Circuit, which stated that ‘[w]ithout knowledge of the accused products,’ the Federal Circuit ‘lacks a proper context for an accurate claim construction.’ Similar statements were made in another recent case, Wilson Sporting Goods Co. v. Hillerich & Bradsby Co., decided less than a month ago.The lower court, in an unusual procedural move, also entered final judgment of non-infringement after it construed the relevant claim under a rule that permits the district court to enter final judgment on fewer than all claims at issue. This is interesting because typically courts of appeal do not gain jurisdiction until there is a final judgment in a case. By using Rule 54(b) and rendering a final judgment on the issue of infringement, the district court effectively forced the Federal Circuit to decide whether it had construed the claim language correctly before deciding the remaining issues in the case. Thus, the Federal Circuit was presented with two scenarios it didn’t like: lack of information about the accused infringing product and a procedural posture that forced it to decide the claim construction issue before the case was fully disposed of at the lower court. In his dissent, Judge Mayer stated that these were symptoms of the Federal Circuit’s decisions that treat claim construction as a pure issue of law, and effectively resulted in an interlocutory appeal of claim construction. Judge Mayer would have dismissed the appeal for lack of jurisdiction.In addition to the procedural irregularity, there was also a potential waiver issue caused by Lava’s decision to change attorneys between the lower court and the appellate court. Lava argued one claim construction at the district court and another before the Federal Circuit. As a result, Sonic argued that Lava should not be permitted to change its position for purposes of appeal. The court disagreed, finding that Lava’s alternative construction argued on appeal did not substantially change its earlier position, and that Sonic’s alternative construction was unchanged as a result.Once the Federal Circuit reached the merits of the case, its analysis was fairly routine. One issue was whether the phrases ‘distributing the combined order book’ and ‘displaying said combined order book’ were correctly construed to mean that the entire combined order book must be distributed to the trader, rather than just information about a single or other subset of commodities. The Federal Circuit found this construction to be erroneous, stating that other claim language such as ‘a security or commodity’ indicated that the full order book need not be distributed. Because ‘a’, when used in an open-ended patent claim, typically means ‘one or more’, it was contrary to the claim language to require the entirety of the order book to be displayed when only one or more securities were required elsewhere in the claim. In addition, the district court’s construction excluded several embodiments of the invention disclosed in the patent’s specification. As a result, the court reversed the lower court’s claim construction and vacated the order of non-infringement, as it was premised on the incorrect construction.For the complete decision, log on to http://fedcir.gov/opinions/05-1177.pdf.