A “glove” approach to patent claim construction 

Everyone may remember the famous rhyme Johnnie Cochran used in his closing arguments in the O.J. Simpson trial:“if it doesn’t fit you must acquit!” Could a similar approach (i.e., the glove approach) be used in claim construction, infringement analysis or patent infringement trials? I believe that at least in some cases, the answer is yes. I am a passionate believer in simplification of difficult concepts, such as patent claim scope, by using easy to understand graphics (e.g., a sketch of glove having five fingers) or even rhymes…, even though, I must admit, encapsulating any technology in a rhyme would be more often than not quite challenging.   

Typically, claims in a patent have several claim limitations, also called claim elements. Imagine for example a simple patented device that has several components. For the simplicity of the analogy, let’s say that we have one patent having one claim protecting the patented device and the device has five components, exactly the number of fingers of a typical glove. The one claim is reciting this simple device and the five components the device is made of. Let’s say that there is a first competing device that also has five components, but one of the five components is completely different than the corresponding component recited in the patented claim. The question is, is the first competing device infringing?

As another example, there is a second competing device that has only four of the five components recited in the patented claim. Is the second computing device infringing the patent claim? Finally, as a third example, let’s say there is a third competing device that has six components, five of which are exactly the same as in the patented claim. Is the third competing device infringing the patented claim?  

Let’s analyze them one by one under the “glove” approach. Regarding the first competing device, because one of the five components is different, the glove will not fit, meaning that one of the five “fingers” of the “glove” (i.e., the patented claim) will not fit the corresponding “finger” of the competing device. Of course, the different component must not be equivalent to the corresponding component recited in the pattern of claim. In that case, the competing device is not infringing the patented claim. Regarding the second competing device, because the device is missing one of the five components recited in the patented claim, again the “glove” will not fit, and, thus there’s no infringement. That is because there is no fifth “finger” in the computing device to correspond with the five-finger “glove” of the patented claim.

Regarding the third computing device example, it should be noted that because the competing device has all the corresponding fingers of the “glove” of the patented claim, the glove will fit, in the sense that all the five “fingers” of the glove will fit the corresponding five “fingers” of the competing device. This means that the third computing device will infringe the patented claim. Yes, I know, you are asking, what about the sixth “finger” of the competing device? It doesn’t matter. Because all “fingers” of the patented claim have a correspondent and fitting “finger” in the competing device (also called accused device), the competing device is infringing the patented claim.

It should be noted that this is an overly simplified analogy. In practice there are several nuances, such as how the five elements cooperate with each other, as recited in the patent claim. That is because the manner of cooperation itself could constitute a distinct claim element. Still, this “glove” approach could help for example a jury in an infringement trial understand the difficult concepts of claim scope and patent infringement.