Debating Diction in Delaware

Markman hearing presents key inflection point in biotech patent dispute

Words are hard. They’re harder when they’re patent claims covering highly technical subject matter.

But because they’re hard—hard to conceive, hard to draft, hard to interpret—the best legal special situation opportunities often hinge on just a few, key words. This is true of all types of litigation; contract clauses must be interpreted in breach of contract cases, mental states must be interpreted in criminal cases, and so on. But perhaps the king of all linguistic pedantry comes in patent cases. Interpreting patent language is so difficult that patent law has developed entire proceedings dedicated exclusively to figuring out what the f*** an applicant meant when he or she filed for a patent.

We saw in coverage of the SmartSky v. Gogo suit that SmartSky is asserting a “continuous” wifi connection is one that essentially seems continuous to the user, but may permit actual breakages in connectivity provided the application layer remains intact. Gogo, on the other hand, asserts that the language of SmartSky’s patents is clear and requires an actual continuous connection. If Gogo wins on its interpretation, it’s highly likely their design, which “breaks then makes” connections between base stations, won’t infringe the relevant patent.

The point is, whoever gets the court to buy their selected interpretation of patent language will usually get a significant leg up in the remainder of the litigation.