4/25/2005
4/18/2005
【辭典】已決判決 res judicata （Law of the Case）
已決判決 res judicata
或 一事不再理。在法律上，指已經確定判決了的事情。該術語常被用來指這樣一項準則，即對已決爭議反覆重新審查不符合社會利益。長期以來人們一直認為：對一項 特定的權利要求或辯護，訴訟雙方當事人有一次經過爭訟的審判就足夠了。隨著審判工作量的增加，更迫切要求對訴訟雙方當事人進行限制，只准許他們對一次爭議 進行一次爭訟。由於法院工作的改進，已決事件的概念在範圍和權限方面都已有所擴大。
The Toro Company v. White Consolidated Industries, Inc., et al.
Law of the Case（既判案例）
The doctrine of law of the case was “created to ensure judicial efficiency and to prevent the possibility of endless litigation.” Cent. Soya Co. v. Geo. A. Hormel & Co., 723 F.2d 1573, 1580 (Fed. Cir. 1983); see also Messenger v. Anderson, 225 U.S. 436, 444 (1912) (law of the case doctrine “expresses the practice of the courts generally to refuse to reopen what has been decided”); Roberts v. Cooper, 61 U.S. 467, 481 (1857) (“[T]here would be no end to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to criticisms on their opinions, or speculate of chances from changes of its members.”); United States v. Turtle Mountain Band of Chippewa Indians, 612 F.2d 517, 520 (Ct. Cl. 1979) (“No litigant deserves an opportunity to go over the same ground twice, hoping that the passage of time or changes in the composition of the court will provide a more favorable result the second time.”). Further,
[i]f the law-of-the-case doctrine is to have any substance, it must sometimes require a judge to uphold a ruling on a question that the judge would decide the other way if it were presented for the first time. In order to serve the interests of judicial economy, finality, and avoidance of “panel-shopping,” the doctrine strongly discourages reconsideration of issues that a previous panel has addressed, fully considered, and decided.
Hughes Aircraft Co. v. United States, 86 F.3d 1566, 1578 (Fed. Cir. 1996) (Bryson, J., concurring) (citing Roberts, 61 U.S. at 481; Central Soya, 723 F.2d at 1580). The law of the case doctrine is limited to issues that were actually decided, either explicitly or by necessary implication, in the earlier litigation. See, e.g., Alpha/Omega Ins. Servs., Inc. v. Prudential Ins. Co. of Am., 272 F.3d 276, 279 (5th Cir. 2001).
或 一事不再理。在法律上，指已經確定判決了的事情。該術語常被用來指這樣一項準則，即對已決爭議反覆重新審查不符合社會利益。長期以來人們一直認為：對一項 特定的權利要求或辯護，訴訟雙方當事人有一次經過爭訟的審判就足夠了。隨著審判工作量的增加，更迫切要求對訴訟雙方當事人進行限制，只准許他們對一次爭議 進行一次爭訟。由於法院工作的改進，已決事件的概念在範圍和權限方面都已有所擴大。
The Toro Company v. White Consolidated Industries, Inc., et al.
Law of the Case（既判案例）
The doctrine of law of the case was “created to ensure judicial efficiency and to prevent the possibility of endless litigation.” Cent. Soya Co. v. Geo. A. Hormel & Co., 723 F.2d 1573, 1580 (Fed. Cir. 1983); see also Messenger v. Anderson, 225 U.S. 436, 444 (1912) (law of the case doctrine “expresses the practice of the courts generally to refuse to reopen what has been decided”); Roberts v. Cooper, 61 U.S. 467, 481 (1857) (“[T]here would be no end to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to criticisms on their opinions, or speculate of chances from changes of its members.”); United States v. Turtle Mountain Band of Chippewa Indians, 612 F.2d 517, 520 (Ct. Cl. 1979) (“No litigant deserves an opportunity to go over the same ground twice, hoping that the passage of time or changes in the composition of the court will provide a more favorable result the second time.”). Further,
[i]f the law-of-the-case doctrine is to have any substance, it must sometimes require a judge to uphold a ruling on a question that the judge would decide the other way if it were presented for the first time. In order to serve the interests of judicial economy, finality, and avoidance of “panel-shopping,” the doctrine strongly discourages reconsideration of issues that a previous panel has addressed, fully considered, and decided.
Hughes Aircraft Co. v. United States, 86 F.3d 1566, 1578 (Fed. Cir. 1996) (Bryson, J., concurring) (citing Roberts, 61 U.S. at 481; Central Soya, 723 F.2d at 1580). The law of the case doctrine is limited to issues that were actually decided, either explicitly or by necessary implication, in the earlier litigation. See, e.g., Alpha/Omega Ins. Servs., Inc. v. Prudential Ins. Co. of Am., 272 F.3d 276, 279 (5th Cir. 2001).
4/13/2005
【辭典】Declaratory Judgment 確認之訴
政治大學智慧財產研究所: "「確認之訴」(Declaratory Judgment)是一種由原告請求法院確認其與被告之間，是否存在某種法律關係的訴訟。通常起因於雙方當事人對於法律關係之認識不一致，因此發生爭議而至無法解決，此時便要求法院予以認定，以確定雙方存在或不存在某種法律關係；這類訴訟並不要求被告履行一定的民事義務，一旦法院作出判決，消除當事人之間爭議後，此案即告結束。"
將確認之訴應用於「專利訴訟」時，通常會提出二種主要的主張：
1. 向法院請求宣告對方之專利權無效。
2. 即使對方專利有效，但原告公司本身的產品沒有侵犯到對方專利權。
將確認之訴應用於「專利訴訟」時，通常會提出二種主要的主張：
1. 向法院請求宣告對方之專利權無效。
2. 即使對方專利有效，但原告公司本身的產品沒有侵犯到對方專利權。
4/04/2005
【判例】disclaimer的研究 CAFC: No Disclaimer of Claim Scope When Patentee Makes Contradictory Statements.
Patently-O: Patent Law Blog: CAFC: No Disclaimer of Claim Scope When Patentee Makes Contradictory Statements.: "The rule, of course, is that a disclaimer must be unequivocal and unambiguous."
4/03/2005
【判例】Disclaimer 的研究
C.R. Bard, et al. v. United States Surgical Corp.
the Summary of the Invention將會是決定請求項用語的較重要考慮
20. An implantable prosthesis for repairing a tissue or muscle wall defect, comprising:
a hollow plug, ...... the surface of said hollow plug being conformable ......,
said hollow plug being extremely pliable, .......
於請求項清楚地記載沒有包含“pleated”。
The Summary of the Invention states that “[t]he present invention is an implantable prosthesis” and that “[t]he implant includes a pleated surface
The Abstract describes “[a]n implantable prosthesis including a conical mesh plug having a pleated
In particular, during the reexamination, Bard stated that “the surface of the inventive plug is pleated.”
清楚地記載包含“pleated”
若Surgical販售一個包含在請求項20文義範圍內但沒有pleated的implantable prosthesis，會落入Bard的專利請求項20的權利範圍嗎？
法官們的判決是，沒有落入Bard申請專利範圍第20項內，因為
Under this approach, where the ordinary meaning of a claim term is thus evident, the inventor’s written description of the invention, for example, is relevant and controlling insofar as it provides clear lexicography or disavowal of the ordinary meaning. See id. (“[T]he presumption in favor of a dictionary definition [of a claim term] will be overcome where the patentee, acting as his or her own lexicographer, has clearly set forth an explicit definition of the term different from its ordinary meaning. Further, the presumption also will be rebutted if the inventor has disavowed or disclaimed scope of coverage, by using words or expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope.”
As demonstrated below, both the specification and the prosecution history require that the plug in claim 20 be pleated.
See Digital Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335, 1347 (Fed. Cir. 1998) (relying on “global comments made to distinguish the applicants’ ‘claimed invention’ from the prior art” during the prosecution of the patent in construing a claim term). Statements that describe the invention as a whole are more likely to be found in certain sections of the specification, such as the Summary of the Invention. See Microsoft Corp. v. Multi-Tech Sys., Inc., 357 F.3d 1340, 1348 (Fed. Cir.) (“Those statements, some of which are found in the ‘Summary of the Invention’ portion of the specification, are not limited to describing a preferred embodiment, but more broadly describe the overall inventions of all three patents.”),
解譯申請專利範圍用語的順序
Language in some of our recent cases, however, suggests that the intrinsic record, except for the claims, should be consulted only after the ordinary and customary meaning of claim terms to persons skilled in the pertinent art is determined.
第一：ordinary and customary meaning
When an analysis of intrinsic evidence resolves any ambiguity in a disputed claim term, it is improper to rely on extrinsic evidence to contradict the meaning so ascertained. [E]vidence extrinsic to the patent document “can shed useful light on the relevant art,” but is less significant than the intrinsic record in determining the “legally operative meaning of disputed claim language.”
第二：intrinsic evidence
第三：extrinsic evidence
但 是，[T]he presumption in favor of a dictionary definition [of a claim term] will be overcome where the patentee, acting as his or her own lexicographer, has clearly set forth an explicit definition of the term different from its ordinary meaning. Further, the presumption also will be rebutted if the inventor has disavowed or disclaimed scope of coverage, by using words or expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope.
就這樣一句話，就把intrinsic evidence排到ordinary and customary meaning前面了，真混亂。
字 典屬於intrinsic evidence還是extrinsic evidence？技術性字典和一般性字典應該是屬於ordinary and customary meaning吧？那哪一個較屬於ordinary and customary meaning？
當字典和intrinsic evidence，不一致的時候怎麼辦？
Bard block quotes language from Texas Digital Systems, which advises that dictionaries might be more objective and reliable than other sources for determining the meaning of claim terms. In those two constructions, the Texas Digital Systems court concluded that the dictionary definition and intrinsic record were consistent with one another. Thus, Texas Digital Systems cannot be read as holding that a dictionary definition trumps the intrinsic record.
the Summary of the Invention將會是決定請求項用語的較重要考慮
20. An implantable prosthesis for repairing a tissue or muscle wall defect, comprising:
a hollow plug, ...... the surface of said hollow plug being conformable ......,
said hollow plug being extremely pliable, .......
於請求項清楚地記載沒有包含“pleated”。
The Summary of the Invention states that “[t]he present invention is an implantable prosthesis” and that “[t]he implant includes a pleated surface
The Abstract describes “[a]n implantable prosthesis including a conical mesh plug having a pleated
In particular, during the reexamination, Bard stated that “the surface of the inventive plug is pleated.”
清楚地記載包含“pleated”
若Surgical販售一個包含在請求項20文義範圍內但沒有pleated的implantable prosthesis，會落入Bard的專利請求項20的權利範圍嗎？
法官們的判決是，沒有落入Bard申請專利範圍第20項內，因為
Under this approach, where the ordinary meaning of a claim term is thus evident, the inventor’s written description of the invention, for example, is relevant and controlling insofar as it provides clear lexicography or disavowal of the ordinary meaning. See id. (“[T]he presumption in favor of a dictionary definition [of a claim term] will be overcome where the patentee, acting as his or her own lexicographer, has clearly set forth an explicit definition of the term different from its ordinary meaning. Further, the presumption also will be rebutted if the inventor has disavowed or disclaimed scope of coverage, by using words or expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope.”
As demonstrated below, both the specification and the prosecution history require that the plug in claim 20 be pleated.
See Digital Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335, 1347 (Fed. Cir. 1998) (relying on “global comments made to distinguish the applicants’ ‘claimed invention’ from the prior art” during the prosecution of the patent in construing a claim term). Statements that describe the invention as a whole are more likely to be found in certain sections of the specification, such as the Summary of the Invention. See Microsoft Corp. v. Multi-Tech Sys., Inc., 357 F.3d 1340, 1348 (Fed. Cir.) (“Those statements, some of which are found in the ‘Summary of the Invention’ portion of the specification, are not limited to describing a preferred embodiment, but more broadly describe the overall inventions of all three patents.”),
解譯申請專利範圍用語的順序
Language in some of our recent cases, however, suggests that the intrinsic record, except for the claims, should be consulted only after the ordinary and customary meaning of claim terms to persons skilled in the pertinent art is determined.
第一：ordinary and customary meaning
When an analysis of intrinsic evidence resolves any ambiguity in a disputed claim term, it is improper to rely on extrinsic evidence to contradict the meaning so ascertained. [E]vidence extrinsic to the patent document “can shed useful light on the relevant art,” but is less significant than the intrinsic record in determining the “legally operative meaning of disputed claim language.”
第二：intrinsic evidence
第三：extrinsic evidence
但 是，[T]he presumption in favor of a dictionary definition [of a claim term] will be overcome where the patentee, acting as his or her own lexicographer, has clearly set forth an explicit definition of the term different from its ordinary meaning. Further, the presumption also will be rebutted if the inventor has disavowed or disclaimed scope of coverage, by using words or expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope.
就這樣一句話，就把intrinsic evidence排到ordinary and customary meaning前面了，真混亂。
字 典屬於intrinsic evidence還是extrinsic evidence？技術性字典和一般性字典應該是屬於ordinary and customary meaning吧？那哪一個較屬於ordinary and customary meaning？
當字典和intrinsic evidence，不一致的時候怎麼辦？
Bard block quotes language from Texas Digital Systems, which advises that dictionaries might be more objective and reliable than other sources for determining the meaning of claim terms. In those two constructions, the Texas Digital Systems court concluded that the dictionary definition and intrinsic record were consistent with one another. Thus, Texas Digital Systems cannot be read as holding that a dictionary definition trumps the intrinsic record.
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