In Parkervision, Inc., v. Vidal, [2022-1548] (December 15, 2023) the Federal Circuit affirmed the PTAB’s determination that claim 3 of U.S. Patent No. 7,110,444 was unpatentable as obvious.

At issue on appeal was the construction of “storage element.” The Federal Circuit noted that in the ‘551 patent, incorporated by reference into the ‘444 patent, Parkervision acted as its own lexicographer to define the term “storage element.” The language expresses an intent to define the term “storage element.”  In particular the Federal Circuit said that the patentee’s use of the phrases “as used herein” and “refer to” conveys an intent for sentence 5 to be definitional.”  The language was found definitional because it did not refer to reference numerals, and referring to the document as a whole with the phrase “as used herein.”

The Federal Circuit found that the Board’s construction of “storage element”—“an element of a system that stores non-negligible amounts of energy from an input EM signal”— correctly tracks the lexicography provided in the specification.  Agreeing with the PTAB’s claim construction, the Federal Circuit affirmed their obviousness determination as well.