**Federal Circuit Upholds District Court Correction of “Obvious Clerical Error” in Claim
Pavo Solutions LLC v. Kingston Technology Company, Inc., 21-1834 — On Friday in an opinion by Judge PROST, the Federal Circuit upheld a district court judgment that Kinston willfully infringed Pavo’s claims. The patent claimed USB flash memory drive with an attached cover that pivoted to expose the USB drive. Kingston argued that the district court erred in judicially correcting a claim phrase and that it lacked the intent necessary for finding of willfulness because it relied on the claims as written.
The Federal Circuit disagreed. Replacing “case” with “cover” in the phrase “pivoting the case with respect to the flash memory main body” was a permissible judicial correction. The use of “case” was “an obvious minor typographical or clerical error” that was “evident from the face of the patent,” which was directed to a “cover” that “pivots with respect to the case.” The correction was not subject to reasonable debate—Kingston’s alternative correction “would result in the same claim scope”—and the prosecution history did not “suggest a different interpretation.” The Federal Circuit said “reliance on an obvious minor clerical error in the claim language is not a defense to willful infringement.”
(1 to 4 stars rate impact of opinion on patent & trademark law)
IPO’s European Practice Conference to be Held This Friday, June 10 in Munich, Germany
Join us in Munich this Friday, June 10 for an engaging one-day program that includes presentations on G 2/21 and the question of plausibility, how will the UPC deal with injunctions, the Rule 30 problem, and the UPC and equivalents. There will be several networking opportunities for attendees to connect face-to-face including coffee breaks, lunch, and a closing reception. For more information or to register, visit www.ipo.org/europe22.