The presumption that claim terms should be interpreted using their plain and ordinary meaning, absent express intent to the contrary, has long been a staple in claim construction. Parties often submit proposed constructions that ask the court to give certain terms their ordinary and customary meaning—the meaning that the terms would have to those skilled in the art at the time of invention. In a recent case from the District of Massachusetts that involves patents relating to tuberculosis testing methods and kits, the defendants tried to bar the plaintiff from submitting such plain and ordinary construction proposals. However, the court instead prescribed a solution in favor of the plaintiff.

During the Markman phase of the litigation, Defendants alleged that Plaintiff Oxford should be prevented from opposing Defendants’ proposed constructions for 19 disputed terms because Oxford did not propose its own specific constructions for these terms; Oxford instead took the position that the “plain and ordinary meaning” of these terms should control. In response to Defendants, Oxford asserted that it was not required to provide express definitions for the terms in question and that its proposal of plain and ordinary meaning is sufficient.

In deciding the issue, Judge Gorton first looked to the weight of precedent. He cited several cases where courts routinely adopt the plain meaning of disputed claim terms, particularly when doing so would resolve the parties’ dispute. Although Defendants pointed to decisions from other courts where alternative constructions were required, Judge Gorton distinguished those decisions because the courts there, “sought additional information at or after the Markman hearing.” Here, the court explained that Defendants still have opportunities to counter Oxford’s position in the upcoming briefing and hearing phases of the claim construction process.

Therefore, the court refused Defendants’ request to bar Oxford from opposing Defendants’ constructions for the terms at issue, and further allowed Oxford to maintain its plain and ordinary meaning proposals for these terms as the Markman process continues.

The case is Oxford Immunotec Ltd. v. Qiagen, Inc. et al., Action No. 15-cv-13124-NMG, before Judge Nathaniel M. Gorton.  A copy of the Court’s order can be found here.

Disclosure: Proskauer represents Oxford in this matter.