While caution should be taken to not read too much into this non-precedential opinion, especially since this line of argument was not specifically addressed, it is troubling to see another “plurality” of elements being read on all of the elements of the accused device, rather than a subset. The only reference to this line of argument by the court is that the patentee admitted that each “probe” per se must be tested, so perhaps there are extraneous reasons why “a plurality of probes … each probe representing a relative position at which at least one test is performed” requires each and every probe in the accused device to meet this limitation. For a more certain construction, it may be worth considering reciting a single element, or first and second elements, for example, having a particular constitution rather than resorting to “plurality” claiming if possible.
Background / Facts: The patent being asserted here is generally directed to “machine vision,” which is “a system or set of procedures for taking in images, analyzing them, and then making decisions.” Pattern location methods are of particular importance in industrial automation, where they are used to guide robots and other automation equipment in semiconductor manufacturing, electronics assembly, pharmaceuticals, food processing, consumer goods manufacturing, and other applications. The claims at issue recite a “model including a plurality of probes … each probe representing a relative position at which at least one test is performed.” The ITC determined that, while the accused software “does have probes,” it does not practice this limitation because “it does not perform a test at ‘each probe’ as required by claim 1.”
Issue(s): Whether, as argued by the patentee, a data element only becomes a “probe” under the meaning of the claims when a test is actually performed at that data element, such that the accused software by definition tests “each probe” at a given pose.
Holding(s): No. “[The patentee’s] argument that a data element somehow transforms into a probe only upon testing is unavailing. The specification defines a data element as a ‘probe,’ … and the plain language of the claim requires that ‘at least one test is performed’ at each ‘probe.’ … The specification also confirms that ‘[e]ach probe represents a relative position at which certain measurements and tests are to be made in an image at a given pose.’” Accordingly, the court affirmed the ITC’s claim construction requiring all probes of the accused device to be tested to meet the claim limitation at issue, which they are not.