How does claim construction work?

Claim construction is the process in which courts interpret the meaning and scope of a patent’s claims. Since the claims “define the invention to which the patentee is entitled the right to exclude,” construing the claims can be a critical step in determining the outcome of almost all patent litigations.

Who decides claim construction?

Claim construction is a question of law to be decided by the judge, and therefore, the judge, not a jury, decides the appropriate construction of terms in patent claims. 13 The judge must construe the claims from the view of “one of ordinary skill in the art at the time of invention.” 7. 35 U.S.C.

What is a claim construction ruling?

A Markman hearing is a pretrial hearing in a U.S. District Court during which a judge examines evidence from all parties on the appropriate meanings of relevant key words used in a patent claim, when patent infringement is alleged by a plaintiff. It is also known as a “Claim Construction Hearing”.

What is the Phillips claim construction standard?

The Phillips standard differs by requiring that claims be given their ordinary and customary meaning to a person of ordinary skill in the art at the time of the invention, by considering the claims, specification, and prosecution history, as well as evidence extrinsic to the patent, when construing patent claims.

What is plain and ordinary meaning?

According to the plain meaning rule, absent a contrary definition within the statute, words must be given their plain, ordinary and literal meaning. If the words are clear, they must be applied, even though the intention of the legislator may have been different or the result is harsh or undesirable.

What does Markman mean?

markman in British English (ˈmɑːkˌmæn) nounWord forms: plural -men. history. a person who lived in and owned part of a mark. obsolete another name for marksman.

How different are the broadest reasonable interpretation and Phillips claim construction standards?

The BRI standard requires determining the “broadest reasonable meaning of [a claim’s] words in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by the written description contained in …

What is broadest reasonable interpretation?

Under a broadest reasonable interpretation (BRI), words of the claim must be given their plain meaning, unless such meaning is inconsistent with the specification. The plain meaning of a term means the ordinary and customary meaning given to the term by those of ordinary skill in the art at the time of the invention.

What is direct infringement?

The unauthorized exercise of one of the exclusive rights granted to the owner of a patent, copyright or trademark. In copyright, direct infringement occurs when a person without authorizaton reproduces, distributes, displays, or performs a copyrighted work, or prepares a derivative work based on a copyrighted work.

What is literal infringement?

The term “literal infringement” means that each and every element recited in a claim has identical correspondence in the allegedly infringing device or process. Compare the claims, as properly construed, with the accused device or process, to determine whether there is literal infringement.

How does a claim affect a construction project?

Claim leads to wastage of money, time and efforts, especially due to unprofessional presentation of it. A survey conducted with 24 construction projects in Western Canada, demonstrated that the total amount of claims contributed to a 40% increase in project cost and total delays to 48%.

How is head of claim calculated in construction?

The relationship between the contract base lines, i.e., Contract Price, Scope, Schedule and Conditions are established here along with the head of claim due to change in conditions, delay and disruption. Methodology for the calculation of Head Office Overhead and Profit is also discussed with their relative importance and interrelations.

How many construction projects are delayed in Canada?

A survey conducted with 24 construction projects in Western Canada, demonstrated that the total amount of claims contributed to a 40% increase in project cost and total delays to 48%. The study also revealed that more than half of the claims led to a cost increase of at least 30% of the original contract value.

How are construction claims resolved in the courtroom?

The unfortunate reality is that construction claims are often resolved by people who were not directly involved in the construction project. In the courtroom, it is settled by lawyers and judges; or in conference room often by corporate, vice presidents, or financial officers with little construction experience.