posted on
May 23, 2007 06:59AM
"To reiterate, expert (extrinsic) evidence, whether in the form of
an affidavit or "live testimony" cannot be validly relied upon by the
judge to vary patent claims that are complete and unambiguous. It is
only when the claims are ambiguous/unclear/incomplete that such expert
evidence is relied upon. Of course, the judge can read/hear that
evidence all he wants, but whether he actually relies upon it is quite
another question --- and if he violates the principles set forth in Phillips, he would likely be reversed."
Perhaps JW's questions-unanswered to both sides allows him some latitude in using extrinsic evidence still within Phillips.
