this is per NukeJohn from a while back...i see the part about prosecution history and thought that ALJ kinda said 2 claims were the same...
Isn't this also discussed in the HTC/IPCOM ruling?
A finding of infringement, whether literal or by equivalents, is a question of fact. Bai v. L&L Wings, Inc., 160 F.3d 1350, 1353 (Fed. Cir. 199
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Infringement is a two-step inquiry, in which a court must first construe disputed claim terms, and then compare the properly construed claims to the accused device. Cybor Corp., 138 F.3d at 1454. The patent’s intrinsic record is the primary tool to supply the context for interpretation of disputed claim terms. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). This tool usually provides the technological and temporal context to enable the court to ascertain the meaning of the claim to one of ordinary skill in the art at the time of invention. Moba v. Diamond Automation, Inc., 325 F.3d 1306, 1315 (Fed. Cir. 2003) (“Moreover, as this court has repeatedly counseled, the best indicator of claim meaning is its usage in context as understood by one of skill in the art at the time of invention.”). In most cases, the best source for discerning this proper context is the patent specification, wherein the patent applicant describes the invention. Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1360 (Fed. Cir. 2004). If necessary, courts may also look to extrinsic evidence, often presented in the form of expert testimony. Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1309 (Fed. Cir. 1999) (“[C]onsultation of extrinsic evidence is particularly appropriate to ensure that [the court’s] understanding of the technical aspects of the patent is not entirely at variance with the understanding of one skilled in the art.”); Vitronics, 90 F.3d at 1582. Dictionaries may also help interpret claim language. See, e.g., Tex. Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1202 (Fed. Cir. 2002).
To reach a proper construction, the district court must look first to the claims, the specification, and the prosecution history, and if further guidance is needed, to extrinsic evidence, such as dictionaries and expert opinions. The trial court should use the term’s “ordinary and accustomed” meaning to one of ordinary skill in the art as a touchstone for meaning. Thus, the district court must determine what “instruction” means to one of ordinary skill in the art, and then must determine whether the specification indicates that the patentee meant a different definition. See, e.g., Moba, 325 F.3d at 1315 (“[T]he best indicator of claim meaning is its usage in context as understood by one of skill in the art at the time of invention.”); Tex. Digital, 308 F.3d at 1204.
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IMHO, ALJ Luckern did not follow the CAFC guidance to "look first to the claims, the specification and the prosecution history". He did not use the ordinary meaning of "code" and "signal". For example, he convoluted the definition of code to where it had to be a spreading code (he made a very narrow claims construction). Apparently, he did not follow the CAFC guidance to go back to the patent and look at the how the terms applied in the patent claims. If you used his definitions of "code" and "signal", the preferred embodiments of the patent would not even infringe (how can that be?). IMHO, the claims construction in this case will be overturned by the de novo review of the Merits Panel.
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