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“Or” Excludes Both

September 05, 2001

Decision icon Decision

Last Month at the Federal Circuit - October 2001

Judges: Newman (author), Lourie, and Mayer (dissenting)

In Kustom Signals, Inc. v. Applied Concepts, Inc., No. 99-1564 (Fed. Cir. Sept. 5, 2001), the Federal Circuit found that the word “or” covered only one of two alternatives, but not both, and, accordingly, affirmed the district court’s grant of SJ of noninfringement regarding U.S. Patent No. 5,528,246 (“the ‘246 patent”).

The patent-in-suit involved traffic radar equipment having digital-signal processing capabilities for determining the speed of a target vehicle. In these radar systems, speed is determined by measuring signals reflected from a target vehicle, where larger targets generally produce a stronger reflected signal and faster targets generally produce a reflected signal at a higher frequency. The digital processing aspects of such radar systems allow a system to discern between, for example, a large truck and a speeding car based on the frequency and/or amplitude of a received signal.

The patent-in-suit claimed a radar device with a user-selectable mode wherein the user could select between identifying and displaying the speed of a slower target with a stronger signal and a faster target with a weaker signal. Some early processing steps of the patented invention manipulated both strongest and fastest data, while later processing steps only manipulated data associated with the selected mode. In particular, the claim language of the ‘246 patent included the disjunctive words “or” and “either-or” for describing the divergence of processing steps related to these user-selectable modes.

The accused device had no user-selectable mode, as it always analyzed both strongest and fastest signals returned to the radar device. The user could then select between displaying the speed associated with the strongest signal or the speeds associated with both the fastest and strongest signals. The patentee alleged that the claims of the ‘246 patent read on the accused device regardless of the disjunctive words used in the patent claims.

The Federal Circuit first construed the claims of the ‘246 patent. In doing so, it looked to the specification to determine whether the term “or” as used in the claims should restrict the claims scope to identifying and displaying either the faster target data or the strongest target data, but not both, as was found by the district court. The Federal Circuit found that the specification did not describe any embodiment that searches for and displays both modes and that the “or” language was added during prosecution. Therefore, the Court affirmed the construction that the “or” and “either-or” language of the patent claims excludes from their scope the identification and display of both strongest and fastest analyzed target data.

Applying its construction to the accused product, the Court found that the accused product did not literally infringe because it always analyzed and displayed the fastest and strongest target data.

As to the DOE, the Court noted that the “all elements rule” did not apply to the term “or” in the present invention because the word “or” was not itself an “element” of the apparatus claim. Nevertheless, the Court upheld the district court’s alternative findings based on prosecution history estoppel and differences in the functions performed by the claims and the accused product and the ways in which they operate. Judge Mayer dissented, stating that the term “or” should be construed to mean “either or both,” given the teachings of the patent.