PHOSITA Standard Set In Kilopass Markman Hearing

by Adam Philipp on September 28, 2011

Protean constants
defy one’s understanding
bitlines are unique.

Just this past August, Kilopass, a producer of semiconductor logic non-volatile memory, (i.e., specialized stable memory chips) received a favorable Markman order in the case of Kilopass v. Sidense.  All 10 terms disputed in the patent case were determined in Kilopass’s favor, strengthening their arguments in their patent infringement case against Sidense. The District Court decided that the extensive qualifications on the technical terms offered by Sidense, which would have narrowed the meanings of the semiconductor related terms, were unduly limiting. The patent utilizes technical language that describes structures of transistors in detail. The court found that Sidense’s suggested definitions were not consistent with the "ordinary and customary meaning" of the terms.

Briefly, Kilopass’s 2010 lawsuit claims patent infringement by Sidense on three patents which describe memory chips. In response, Sidense requested re-examination of all three patents by the USPTO. The USPTO rejected all claims of two of the patents, and sustained validity of the third patent’s claims by ruling that key terms in the patent, “wordlines” and “bitlines”, are not interchangeable. The USPTO stated that based on the ordinary skill standard “bitlines and wordlines have a distinct functional effect on the operation of memory devices and thus are not interchangeable."

The Markman hearing was held this past August to determine how the highly technical terms should be defined, prior to trial. When deciding claim construction, the Court considers a list of factors, beginning with the ordinary and customary meaning of the term, as given by “persons of ordinary skill in the art” (A.K.A. Person Having Ordinary Skill In The Art or PHOSITA). In this work that requires highly specialized skills, one “ordinarily skilled” would have an engineering degree and two years of experience in semiconductors. Additional factors, including how the patent is specified, may be considered, so as to give the most accurate description of the invention. Generally, terms are given their ordinary and accustomed meaning unless examination of the patent specification, history, or other claims shows the inventor intended something else.

In the Markman hearing, the District Court considered the definitions of 10 terms, including relatively basic terms such as transistor. The Court accepted Kilopass’s interpretation of all terms in dispute, rather than the definitions suggested by Sidense. Specifically, the Court adopted Kilopass’s broad standards for bitlines and wordlines, rather than the narrow, highly specific definitions offered by Sidense. The result may strengthen Kilopass’s position as they head to trial in this patent dispute next year.

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