R+L Carriers v. Qualcomm was decided on September 17, 2015 on appeal from the Southern District of Ohio. There, after bringing suit, the plaintiff R+L filed for ex parte reexamination of the patent-in-suit. Although the patent survived reexam, R+L added language to the claim at issue. Because defendant Qualcomm ceased its alleged infringing activity before the reexamination certificate issued, and because the district court determined that the amended claim was “substantively narrower” than the original claim, the district court dismissed the infringement action. R+L appealed.
The Federal Circuit affirmed the district court’s dismissal of the infringement claims.
For a patent that survives reexamination, the patentee is entitled to infringement damages for the time period between the date of issuance of the original claims and the date of issuance of the reexamined claims only “if the original and the reexamined claims are substantially identical.” (citing 35 U.S.C. § 252). If a substantive change has been made to the original claims during reexamination, the patentee is entitled to infringement damages “only for the time period following issuance of the reexamination certificate.” To determine whether substantive changes have been made, the court considers “whether the scope of the claims are identical, not merely whether different words are used.” The Federal Circuit reviews “the district court’s subsidiary factual findings on the scope of the reexamined and original claims for clear error, but the ultimate conclusion regarding the scope of the claims de novo.”
The Federal Circuit affirmed the district court’s dismissal. “[I]t is irrelevant why an amended claim is narrowed during reexamination, or even whether the patentee intended to narrow the claim in a particular way.” The court does not assess why a claim might have been narrowed as a predicate to determine whether it has been narrowed. Rather, to determine whether an amended claim is narrower (and thus substantially different from the original claim), the court simply asks “whether there is any product or process that would infringe the original claim, but not infringe the amended claim.” The Federal Circuit found that the asserted claim was narrowed during reexamination, and thus, was not substantially identical to the original claim. So R+L was not entitled to infringement damages for the period prior to issuance of the reexamination certificate.
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