Behind the Curtain of Non-Precendence – Ampex v. Kodak.

The CAFC used to webpublish only rulings it deemed precedential, but that recently changed. Their publication now of per curiam affirmances gives rise to curiosity as to what made that one case unworthy of anything more wordy. Consider today’s order in Ampex v. Kodak from the D. Del. The record below indicates that the appealed rulings were claim construction of video and data terms, and prosecution estoppel based on an amendment adding the word “said” in response to a 112 objection. The argument was that the amendment was not narrowing or was made for reasons unrelated to patentability. Why are those issues of less interest than what we’ve read in about four similar cases decided by the CAFC in the last six months?

As Congress moves glacially to reform the Patent Act, the gloss on the proposed amendments often mentions harmonization, reduced costs, certainty of patent rights. Most of those came to be concerns due, in some measure, to judicial doctrines that read ‘out from’ the express statutory text. Where then, in these passing seasons of reform, is mention of cures for the unwritten rules of implicit disclaimer and file wrapper estoppel, which have no textual basis in the Act?