Friday, February 26, 2010

"99% of the Time" is not "Always"

Defendant's motion for summary judgment of noninfringement was granted. "[T]he Court now finds that the applicants’ unequivocal statements in the prosecution history, made to distinguish prior art, in conjunction with the strong specification language, amount to a clear and unambiguous confirmation that the [patent-in-suit] requires that the claimed method always be performed, and thus does not encompass an accused system that only practices the claimed method some, or even most, of the time. The word 'never' is one of the strongest and most unequivocal words in the English language, and [plaintiff] used it (and its equally strong antonym, 'always') repeatedly in explaining its invention in the specification and prosecution history. . . . [Plaintiff's arguments] essentially admit that [the accused product] does not always write full stripes to empty logical tracks. Even taking the evidence in the light most favorable to [plaintiff] and assuming that [accused product] does so 99% of the time, 99% is not 'always.'"

Sun Microsystems, Inc. v. Network Appliance, Inc., 3-07-cv-05488 (CAND February 24, 2010, Order) (Laporte, M.J.)

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