A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: December 2021

We mentioned earlier this week that "plain and ordinary meaning" (sometimes shortened as "plain meaning" or "ordinary meaning") is the default in claim construction. But what is it?

As the Federal Circuit has said, plain and ordinary meaning is the meaning of a phrase to a person of skill in the art:

The ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application. . . . The inquiry into how a person of ordinary skill in the art understands a claim term provides an …

Caution
Scott Rodgerson, Unsplash

At a claim construction hearing earlier this month, Chief Judge Connolly noted some concerns with parties who offer "plain and ordinary meaning" constructions without explaining what that meaning is:

THE COURT: And going forward, Mr. Oakes, Mr. Russell, I am tempted to say the next time I get this situation [where] one side, the plaintiff[,] says, oh, plain and ordinary meaning and offers no alternative definition and all it does is criticize the defendant['s construction], which there's some actual[ly] support for, [then] I don't hold a hearing. I'm just going with the defendant. I was really tempted to do that in this case. So get the word out.

Volterra Semiconductor LLC v. Monolithic Power Systems, Inc., C.A. No. 19-2240-CFC-SRF, at 22:22-23:7 (D. Del. Nov. 12, 2021) (transcript).

Chief Judge Connolly also pointed out a "new trend" of parties ...