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Justin E. Gray

IP Litigation Attorney at Foley & Lardner LLP

Former Adjunct Professor at Northwestern University School of Law

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Wednesday
Nov182009

Supreme Court Denies Every Penny Counts' Cert Petition Regarding Claim Construction

On October 5th, Every Penny Counts, Inc. ("EPC") filed a petition for writ of certiorari regarding its pending litigation against various companies regarding gift cards.  The Question Presented by EPC to the Supreme Court was "Did the Federal Circuit err by construing the meaning of a plain and obvious term - a term not limited by the claim language, specifications, or prosecution history - by first considering the accused infringing device and then constructing a limiting definition that excluded the alleged infringing device?"  EPC sought "this Court's assistance in tempering the Federal Circuit's continued misapplication of Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996)."

On November 9th, the Supreme Court denied EPC's cert petition.  While interesting, EPC's petition focused largely on Federal Circuit cases without once mentioning even one Supreme Court case other than Markman, and also did not allege a conflict between the Federal Circuit and any Supreme Court opinion.  Further, while the petition cited a total of eleven opinions from the Federal Circuit, it failed to allege any inter-circuit conflict.