Gerry,
I think GIFT should easily win this issue.
If I were responding to Broderbunds brief I would write a very short (2-3page) response. First I would state the law, and say the parties agree on the law: 1) use normal meaning if not contradicted in patent, 2) use specific meaning if given by patent, 3) use patent generally to define. I'd state clearly and succintly that the patent says a point of sale can be in a user's hom. I might drop a footnote explainging how the Lockwood case cited by Broderbund is not on point -- it never describes a travel agent as the customer. Here the patent describes a home as a point of sale.
The patent never explictly states "Point of sale is defined as ...". However, the patent gives examples of what is a point of sale. If a location is described as an example of a point of sale, then the defintion must include that example. Other examples can expand the definition, but they cannot limit the definition.
Broderbund wastes this Court's time by describing ad nauseum the "other" examples. All the court needs is the example directly on point. The patent clearly states that a point of sale may be in the consumer's home.
"Also, in recent years, pay, cable or subscription television has
become a popular means for distributing television type
information. In some of these systems, the television type
information only was delivered to the consumer at the consumer's
home (point of sale location) in response to the consumer
requesting such information and paying an appropriate amount to the
owner of such information."
Nothing could be clearer. The patent clearly defines point of sale to include a home. To say otherwise simply ignores the patent, and is contrary to the law.
I'd appreciate other peoples views on this. |
