Patent Plaintiff seeks to appeal based on misconstrued claim construction
Last week, the RFID Journal reported on a patent dispute case in the US District Courts, in which the plaintiff, Ronald Bormaster plans to seek an appeal based on the judge’s “[mis]interpretation of [his] patent.” While the case has yet to be decided, the court claim construction ruled that Bormaster’s RFID interrogator/reader “does not contain a transmitter,” while the defendants claimed that their system did. Jim McNeill, a partner at McKenna Long & Aldridge, was quoted in the article noting the importance of claim construction as it can “make or break” a patent infringement case.
Rel Ambrozy, also a partner at McKenna Long, remarked in a Aug 2006 article about Bormaster’s case that “end users need to make sure that they consider indemnification very carefully when purchasing” RFID technology. The lawsuit was not filed against the RFID manufacturers, but rather the companies who employed them: Wal-Mart, Target and Gillette.
From my reading it would appear that both the Judge and the plaintiff may be correct.
If the patent is specifically for 'passive' RFID, than the plaintiff is correct that an interrogator/reader must have a transmitter in order for passive to backscatter.
On the other hand, if the patent is not specific to passive RFID, it is conceivable that a battery assisted tag can transmit an ID over RF without the need for a transmitter. This is not ordinary, since most active RFID still backscatters, it is possible.
So it would appear that the Judge's construction while may be valid, the question to me is whether the Judge's construction can be valid based on an exception, or should the construction be based on prevailing use of the technology ?
Jeff Schaengold
RF Commerce
800-797-RFID