Re-Writing Prevost

The Prevost patent application has always been a cornerstone of the accused patent infringers' defense.  It failed in the Markman claim construction.  The defense now takes the novel approach that the court should rewrite Prevost so that it makes the COES Patents void.  We will see how that works for them.  Here is a quote below:

Undeterred, Defendants argue that the 15% water disclosure is “an obvious typographical error” and should have said “15% fat.”   Defendants thus ask this Court to re-write a prior art reference—not just altering its meaning, but giving it effectively the opposite meaning—to anticipate the patents-in-suit. Defendants cite no case for this remarkably extreme position. They cite no case in which a court “corrects” a typographical error on a critical disclosure to anticipate a patent.  And they have no authority for the even more extreme position that such a “correction” can give the reference the opposite meaning of what it initially said.”

 

Defendants relied heavily upon claim 19 of Prevost during the Markman phase of this case, but never suggested it included a typographical error that fundamentally changes the meaning of the claim.  p.88-89

 

See Here

 

SkunK

Greenshift claims that there is no precedence in having the court rewrite Prevost.  I disagree.  Allow me to provide a well used source for the defendants:

“ ‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’ ” **

Through the Looking-Glass - Lewis Carroll

**This passage has appeared in 250 judicial decisions in the Westlaw database as of April 19, 2008, including two United States Supreme Court cases. See, e.g., TVA v. Hill, 437 U.S. 153, 173 n.18 (1978)   See HERE for my source - footnote 116.  The defendants are not choosing a new path of defense.  This path is regrettably well worn.  For the court to accept this legal chaos theory however, now that would be a pathfinder route indeed.