Technical Expert Precluded From Offering Testimony at Odds With Plain and Ordinary Meaning of Patent Claim

The court granted in part defendant's motion to strike portions of the report of plaintiff's technical expert for applying improper legal principles. "The asserted claims require that each created reprogrammable communication protocol 'includes a command code set. . . .' The parties dispute the meaning of 'includes.' When asked whether a communication protocol that did not include a command code set would satisfy this claim limitation, [the expert] responded, '⁠[I]t’s a question of whether it’s capable of including a command code set that defines those signals to -- you have to have -- it needs to be capable.' That’s not the question. The plain and ordinary meaning of the phrase requires more than a mere capability that the communication protocols include a command code set: It requires actual inclusion. Accordingly, the Court will preclude [the expert] from advancing any argument that, with respect to this limitation, mere capability of inclusion is sufficient."

Salazar v. HTC Corporation, 2-16-cv-01096 (TXED May 3, 2018, Order) (Payne, MJ)