But, FIG. 5 of the ‘744 patent, on its own, does not show or
disclose the invention of the claims of the ’744 patent. Also, the fact that the subject
website used the word “object” does not, by itself, support any conclusion that WebOS
was an object oriented product. The overwhelming evidence shows that WebOS was a
procedural program that had absolutely nothing to do with object oriented programming or
the invention of the ‘744 patent.
III. MICROSOFT PRESENTS UNSUSTAINABLE CONSTRUCTIONS
The ‘744 patent provides a large number of specific examples for elements such as
“arbitrary objects,” “content,” “form,” “functionality,” etc. Rather than providing definitions
for those terms, Microsoft does exactly what the Court of Appeals for the Federal Circuit
admonishes against – it confines the terms and the associated claims to specific4
examples in the specification of the ‘744 patent. (See, Phillips, 415 F.3d at 1323). And, it
does not use all the examples – just those that suit its purposes.
But, a person of ordinary skill in the art rarely confines his or her definitions of terms
to the exact representations depicted in the examples and embodiments. Phillips, 415
F.3d at 1323. And, unless the patentee has demonstrated a clear intention to limit the
claim scope using words or expressions of manifest exclusion or restriction, a court cannot
confine the definitions to specific examples. Innova/Pure Water, Inc. v. Safari Water
Filtration Systems, Inc., 381 F.3d 1111, 1120 (Fed. Cir. 2004).
The patentee of the ‘744 patent (Aubrey McAuley) not only did not demonstrate
such an intention, he did the exact opposite. For example, with respect to “arbitrary
objects,” the specification of the ‘744 patent states that “arbitrary objects”: “may include
encapsulated legacy data…” (col. 2, lines 29-34, Exhibit A); “can include text file
pointers..” (col. 3, lines 43-46, Exhibit A); and may include any combination of application
logic and data desired by the developer.” (col. 4, lines 21-22, Exhibit A). This language
clearly demonstrates an intent that “arbitrary objects” not be limited to the specific
examples.
In fact, the most egregious example of where Microsoft took a permissive “can be”
and turned it into a limiting definition is in its definition for “arbitrary objects” where it took
the permissive sentence: “One arbitrary object can be easily replaced with another
arbitrary object of another type” (col. 4, lines 40-41, Exhibit A) and turned it into the
following restrictive expression: “that is interchangeable with another object of
another type” in their definition (emphasis added).Microsoft has engaged in this type of gamesmanship throughout its claim
constructions; and Vertical will outline those instances in the following text in the
discussions for the specific terms. On page 22 of its brief, Microsoft coins its improper
approach as “defining … by example.” Example, indeed.