Fixing an Error Doesn’t Fix Patent Infringement
In Brief: A court’s fix of an obvious error in patent claim language can’t be used as a defense to willful patent infringement.
Here’s What Happened: Pavo Sols LLC (who was substituted in for the first plaintiff, CATR Co.) sued Kingston Tech Co. for infringement of a patent relating to a pivoting cover for a USB device. During the claim construction phase of the infringement case, the district court found that the claim language “pivoting the case with respect to the flash memory main body” included a clerical error. The court judicially corrected the language by replacing the word “case” with the word “cover”. The jury returned a verdict of willful infringement and awarded Pavo damages. Kingston appealed to the Federal Circuit Court of Appeals.
First, Kingston argued that the district court should not have corrected the error. The Federal Circuit rejected the argument for many reasons. The Federal Circuit stated that “[n]othing in our case law precludes district courts from correcting obvious minor errors that alter the claimed structure” and that “courts are not limited to correcting errors that result in linguistic incorrectness.” Specifically, the Fourth Circuit pointed to the fact that numerous reviewing bodies (the examiner, the Board, the Federal Circuit) consistently understood the scope of the claim to be as corrected.
Second, Kingston argued that it couldn’t be held to have willfully infringed on the claims as they were originally written. The Federal Circuit didn’t buy that Kingston was “ignorant” of the error. The Federal Circuit held that “reliance on an obvious minor clerical error in the claim language is not a defense to willful infringement.”
Kingston made two other arguments that the Federal Circuit held were waived because it failed to raise them in post-trial motions before the district court.
Why You Should Know This: This case illustrates that knowledge of a mistake in a patent claim doesn’t excuse infringement. If you look at the illustration, you can see exactly how the patented device worked. The drawing says it all despite the language in the claim.
Case Information: Pavo Sols. LLC v. Kingston Tech. Co., 35 F.4th 1367 (U.S. Fed. Cir. 2022).