"Plain and ordinary meaning" has a mixed record as a claim construction position. Despite the fact that the claim language itself is the heart of claim construction, litigants and judges may feel pressure to define claim language that is already reasonably clear, especially if there is a dispute tied to that language. In fact, judges in this District have expressly discouraged litigants from advancing "plain and ordinary meaning" as a proposed construction during the Markman process.
However, there is no reason that the language of the claim itself - if sufficiently clear - cannot stand on its own, even if there is a dispute. The challenge (and burden) for the Court lies in sorting through the alleged disputes, discarding those that are not ripe or not really disputes at all, and resisting the impulse to over-construe.
A well-reasoned claim construction order from Judge Burke in S.I.SV.EL., S.P.A. v. Rhapsody Int'l, Inc., C.A. No. 18-69-CJB nicely illustrates restraint in claim construction. Judge Burke was asked to construe three terms by the parties; plaintiff sought "plain and ordinary meaning" constructions for all three terms . Regarding the first term ("stored on a/the media device"), Judge Burke concluded that two of the possible disputes identified by the parties were not live: "The Court does not typically construe a term in a certain way unless prompted to do so by a clear, relevant dispute over the term’s meaning.." The third dispute was resolved in the plaintiff's favor - because the Judge found that the claimed media device was not limited to a "user's" media device, he rejected the insertion of that language into the construction.
Regarding the second and third terms ("automatically generating" and "automatically deriving," which were addressed together), the Judge declined to limit the terms to implementation "by means of computer code" where the plain language of the claim permitted other means of deriving or generating.
The Rhapsody opinion is a tidy illustration of the viability of positions that rely on the words of the claims above all else.
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