Washington DC
26 August 2016
Reporter: Mark Dugdale

Google wants Supreme Court to calm construction

Google has asked the US Supreme Court to weigh in on how the Court of Appeals for the Federal Circuit deals with patent claim construction.

The internet company filed a petition for review in mid-August, asking the Supreme Court to clarify that a patent’s entire prosecution history be used in claim construction.

Google and two inventors came to blows in 2013. They accused the internet company of infringing patents for malware protection software with the Chrome web browser.

In 2015, the Federal Circuit overturned the lower court’s ruling that Google hadn’t infringed the patent.

The appeals court used the inventors’ definition of “web browser process” and ignored the prosecution history, because it didn’t clearly disavow what they had claimed.

Google argued in its petition for review that the Federal Circuit both ignored correct practice and skewed analyses towards "overbroad and acontextual" constructions by failing to consider the prosecution history.

“First, the uncertainty over which claim-construction rules will apply in any given case deprives the public of reasonable certainty regarding patents’ scope,” Google explained.

“Second, the Federal Circuit’s clear- and-unmistakable standard artificially restricts the courts’ consideration of important contextual evidence by rendering prosecution history all but irrelevant in the mine run of cases, and thereby skews the analysis toward overbroad and acontextual constructions.”

“The resulting uncertainty and overbreadth harm the very innovation the Patent Act is supposed to encourage and protect.”

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