Claim Construction Revised in Light of Plaintiff's Inconsistent Arguments During Reexam

Defendants' motions to reconsider claim construction were granted. "The Court rejects [plaintiff's] arguments that this Court should ignore the arguments and remarks made to the USPTO during reexamination, particularly in light that its arguments to the USPTO are contradictory to arguments it made to this Court. The Court will not allow [plaintiff] to make arguments as to the interpretation of claims in this Court and then to make contradictory arguments to the USPTO in distinguishing the prior art without any effect on the scope of the claim." In the earlier claim construction order, the court had adopted plaintiff's proposed construction of the term "unrequested," but upon reconsideration in light of plaintiff's arguments during reexamination, the court adopted a construction that was similar to defendant's proposed construction.

Beneficial Innovations, Inc. v. AOL, LLC. et al., 2-07-cv-00555 (TXED June 3, 2010, Memorandum Opinion & Order) (Ward, J.)