What Markman Means Depends on Where The Meaning is Found.

Predictable rules for interpretation of patents are among the most desirable features for CAFC jurisprudence.  Risk is measurable only to the extent it is predictable.  Two courts, looking at the same intrinsic evidence, should come close to the identical result when interpreting the same claim terms.  Fuzzy rules produce fuzzy, or incongruent results, as explicated in Comcast v. Finisar, (N.D. Calif. 04/06/2007).  That case interprets the same terms in the same patent as had been read in an earlier district court ruling from the E.D. of Texas.

An “information database” in Texas means “a collection of computerized information which can be accessed,” but in California that I-db means “a dynamic, structured collection of digitized data capable of being held in computer storage.”

A “hierarchically arranged set of indices” in NoCal means “a set of ranked indices used to reference data …with the higher-level indices giving access to the lower-level indices.”  However, in MarshTex, that same “hierarchical” index set simply is a “set of indices for referencing data in said information database.”

Even the more perceptible claim phrase, “downloading into a memory storage device” yields differing interpretations in the SanFran and Marshall courthouses.  The Texas construction is “transferring data into a memory storage device the data packets specified in the filter data,” and while in California, it “means transferring the desired data into a device capable of saving it for later access.”

Plainly, the two constructions are material different, such that the scope of the patent claim is difficult to ascertain, even after two rulings.  What will these terms mean when both cases reach the CAFC?  If Markman and Phillips do not enable judges skilled in the art of claim construction to reach the same or substantially the same interpretations, then the CAFC should try again to craft a predictable model for deciding what claim terms mean.  The Judge in California must expect an appeal, having offered the following remark on the reviewable record:  “[my] constructions are made without the benefit of the entire file history [which neither party lodged with the Court, and so] it would be most unfair for any party to rely on other file history passages [apart from those “few snippets” cited].”