United States: A "Program" Is Just A Set Of Instructions

Ancora Technologies, Inc. v. Apple, Inc.

In a case essentially decided on a single disputed claim construction, the U.S. Court of Appeals for the Federal Circuit rejected a narrow construction of the claim term "program" and construed the term, consistent with its ordinary meaning, to include any type of computer program.  Ancora Technologies, Inc. v. Apple, Inc., Case Nos. 13-1378, -1414 (Fed. Cir., Mar. 3, 2014) (Taranto, J.).

Ancora owes a patent directed to a method for verifying that a software program on a computer is not there without authorization, but is licensed.  Ancora sued Apple alleging that products running Apple's iOS operating system infringed its patent.  After the district court construed the claim term in dispute to be limited to application programs, Ancora stipulated to summary judgment of non-infringement and appealed the district court's construction, while Apple cross-appealed the district court's holding that the terms "volatile memory" and "non-volatile memory" were not indefinite.

On appeal, Ancora challenged the district court's conclusion that the term "program" was limited to application programs, thereby excluding operating systems from the class of programs that the claimed method checks for license authorization.  The Federal Circuit, explaining that a "claim term should be given its ordinary meaning in the pertinent context, unless the patentee has made clear its adoption of a different definition or otherwise disclaimed that meaning," found "no reason" to depart from the term's ordinary meaning.  The Court therefore construed the term to simply mean a set of instructions for a computer.  In doing so the Court looked to the specification, the doctrine of claim differentiation, as well as the prosecution history.

As for its examination of the prosecution history, the Federal Circuit, after noting that the term "program" in the claims refers exclusively to the program for which a license is to be verified, examined the excerpts of prosecution history cited by Apple (in support of its narrowing argument, i.e., application program only) and concluded that the prosecution history distinguishing the prior art did not mandate that the "program" being verified must be an application program.

Turning to Apple's cross appeal (on indefiniteness) the Court first explained that under 35 U.S.C. § 112(b), a claim must be "sufficiently definite to inform the public of the bounds of the protected invention, i.e., what subject matter is covered by the exclusive rights of the patent," noting in passing that the "Supreme Court currently is considering how to refine the formulations for applying the definiteness requirement."  (See  IP Update, Vol. 17, No. 1 regarding Nautilus v. Biosig Instruments.)  Here, the Court rejected Apple's indefiniteness argument, noting that "there is no dispute that the terms 'volatile memory' and 'non-volatile memory' have a meaning that is clear, settled, and objective in content."

The Court rejected Apple's argument, premised on the fact that the specification uses language (inaccurately) referring to a hard disk as an example of volatile memory, noting that "the terms at issue have so clear an ordinary meaning that a skilled artisan would not be looking for clarification in the specification" and that "the specification nowhere purports to set out a definition" for the terms or disclaims the clear and ordinary meaning.

Finally, the Court noted that "the prosecution history eliminates any reasonable basis for thinking that the patent has adopted a meaning different from the clear and ordinary one," citing to an office action where the examiner, in rejecting the claims, stated that he was "relying on the standard definition of non-volatile memory as memory that is maintained even when the power is removed from the storage system," a definition which the applicants did not dispute.

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