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FEDERAL CIRCUIT REJECTS “CAPABILITY” ARGUMENT

by | Nov 8, 2011 | Patent | 0 comments

In a precedential opinion issued this past Friday, the United States Court of Appeals for the Federal Circuit rejected arguments that an accused device merely needs to be “capable” of being configured or programmed to perform a claimed function in order for patent infringement to occur.

The district court’s construction of several disputed claim terms essentially stated that for a device to be covered by the claim term, the device as sold must actually perform, or be configured or programmed to perform, each of the functions stated in the claims. Typhoon Touch Technologies, Inc. argued on appeal that a number of the claim limitations of its patents were met if a device has the “capability” of being configured or programmed to perform the stated function, even if the device is not structured to do so as sold.

On appeal, the Federal Circuit affirmed the district court’s construction of several claims terms, including, “memory for storing”, “processor for executing”, “operating in conjunction [with]”, and “keyboardless”, and as a result, affirmed the district court’s judgment of non-infringement as to all Appellees and all of the accused devices.

The devices at issue in the present action comprise various smart phones and tablet style computers, and the list of Appellees is a veritable Who’s Who in the industry, including Dell, Lenovo, Sand Dune Ventures d/b/a TabletKiosk, Toshiba America Information Systems, Fujitsu America, Panasonic Corporation of America, Apple, HTC America, and Palm. Appellant, Typhoon Touch Industries, Inc., is a non-practicing entity.

For the complete Federal Circuit Opinion, click here.