At a claim construction hearing the week before last, Chief Judge Connolly discussed the pitfalls of a party proposing "plain meaning" as a construction without specifying what the plain meaning is, and how that may just end up deferring disputes until later in the case. We'll have a post about that once the transcript is available.
In the meantime, I thought it was interesting that Judge Andrews this month declined to adopt opposing proposed constructions from the parties in an action, and construed the term as "plain and ordinary meaning":
Plaintiffs expert Dr. Robert Ruffolo asserts that a person of ordinary skill in the art would have understood the term "pharmaceutical batch" to incorporate [a] regulatory definition . . . But I am not convinced that a POSA would interpret the term "pharmaceutical batch" to incorporate an FDA regulatory definition, especially because there are no references to the FDA or to FDA regulations in the '901 patent. Thus, I deny Plaintiffs attempt to import this FDA regulatory guidance into the plain and ordinary meaning of this term. . . .
Defendant's proposed construction simply adds a limitation to the plain and ordinary meaning[, relying on] statements made by Plaintiff during the IPR . . . Defendant argues that these statements amount to a disclaimer of an intermediate purification step. [But] Plaintiff withdrew the purported disavowals before the PTAB took any steps in reliance on them. . . . Thus, I decline to adopt Defendant's proposed construction.
I instead apply the plain and ordinary meaning, which is, as always, the default in claim construction. Phillips, 415 F.3d at 1316.
So, keep in mind that while (as Judge Connolly noted) proposing plain meaning may have some risks, it remains in the menu of options for a court dealing with claim construction disputes.
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