Federal Circuit: Acacia Plaintiff Cannot Have It Both Ways on Claim Construction

August 27, 2021

The Federal Circuit has upheld a judgment of noninfringement for Google in litigation filed by Data Engine Technologies LLC (“Data Engine” or “DET”), a subsidiary of Acacia Research Corporation. On August 26, the appellate court issued a precedential opinion that affirmed the claim construction of a preamble term that led to that prior ruling, faulting the plaintiff for contradicting arguments that it made during an earlier appeal on patent eligibility. While Data Engine had previously overcome the three asserted patents’ invalidation under Alice by flagging this term as the source of a claimed technological improvement, the court rejected its subsequent attempt to argue that this preamble was nonlimiting as an improper attempt to “twist claims  . . . ‘like ‘a nose of wax’’”.

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