Digest of CardSoft, LLC v. Verifone, Inc., No. 2014-1135 (Fed. Cir. Oct. 17, 2014) (precedential). On appeal from E.D. Tex. Before Prost, Taranto, and Hughes.

Procedural Posture: Following jury trial, district court entered judgment of infringement of the two related patents. Defendants VeriFone, Inc., VeriFone Systems Inc., and Hypercom Corp. appealed the district court’s denial of their motions for a new trial and judgment as a matter of law of noninfringement. CAFC reversed.

Claim construction: The district court erred in construing the “virtual machine” claim term found in all asserted claims. Intrinsic evidence in the patents’ specification and prosecution history and extrinsic evidence of a previously released Java virtual machine established that the applications run by the machine are not dependent on any specific underlying operating system or hardware, but the district court failed to include this limitation in its construction of this term. Further, the patent holder waived any argument in favor of infringement under this construction by failing to address this issue in its responsive appeal brief, and the CAFC deemed that the patent holder conceded this point. Accordingly, the CAFC granted the defendants’ judgment of no infringement as a matter of law.

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