Latest Centripetal SCOTUS Petition Challenges Material Changes in Claim Construction Post-Markman

Virginia-based secure network developer Centripetal Networks has filed a petition for writ of certiorari asking the U.S. Supreme Court for the second time to weigh in on issues related to its patent infringement claims against Cisco Networks’ unauthorized copying of its packet filtering and hacker prevention technologies. In this petition, Centripetal asks the nation’s highest court whether the Federal Circuit erred in affirming a materially different claim construction entered by the district court without giving Centripetal a meaningful opportunity to adjust its infringement position based on the new claim scope.

The present appeal follows Centripetal Networks’ February 2018 lawsuit in the Eastern District of Virginia asserting claims of two patents against Cisco: U.S. Patent No. 9686193, Filtering Network Data Transfers; and U.S. Patent No. 9203806, Rule Swapping in a Packet Network. Following claim construction and bench trial, U.S. District Judge Henry Coke Morgan, Jr. ruled that Cisco willfully infringed on both the ‘193 and ‘806 patents by releasing networks with embedded software functionality copied from proprietary algorithms disclosed by Centripetal during extensive meetings with Cisco about the patented technology.

Two months prior to Judge Morgan’s ruling, he disclosed that his wife owned nearly $5,000 in Cisco stock, information obtained after the opinion draft had been prepared and most issues had been decided. The Federal Circuit reversed Judge Morgan’s ruling after Cisco appealed the denial of its recusal motion, and in December 2022 the Supreme Court denied cert to Centripetal’s first petition seeking clarification of the judicial recusal statute.

CAFC Case Law Leaves No Standard for Determining Mere ‘Clarification’ or ‘Elaboration’

Reassigned to U.S. District Judge Elizabeth Wilson Hanes on remand to the Eastern Virginia district court, the case resulted in a noninfringement ruling after Judge Hanes granted-in-part Cisco’s motion to supplement the record with patent owner briefing from inter partes review (IPR) proceedings brought by Cisco against the ‘193 patent. This April, the Federal Circuit affirmed Judge Hanes’ noninfringement ruling, agreeing that Centripetal’s position in IPR affected the scope of its asserted claims and that Centripetal had adequate notice because Cisco had continuously pursued the same noninfringement theory.

Centripetal’s cert petition argues that the decisions below conflicted with settled norms surrounding the Markman process for claim construction. Claim construction plays a critically important role in framing the underlying patent dispute, Centripetal’s petition notes, as claim scope can impact the scope of admissible evidence, expert testimony and invalidity defenses, and can even be dispositive to motions to dismiss or for summary judgment.

Claim construction typically takes place early in patent infringement proceedings following Markman hearings, where both sides can present evidence and testimony on the meaning of disputed claim terms. While several Federal Circuit rulings acknowledge that parties in patent infringement cases must be provided notice and opportunity to present argument on claim construction disputes, Centripetal argues that a distinct line of Federal Circuit precedential decision making has created a carveout for mere “clarifications” and “elaborations” of what was already inherent in the claim construction. Centripetal argues to the Supreme Court that these cases provide no standard for discerning a mere clarification from new claim construction requiring notice and an opportunity to be heard. “This case represents a stark depravation of due process stemming from the Federal Circuit’s increasing rudderless invocation of a standardless distinction between a ‘new’ claim construction, on one hand, and a so-called ‘clarification’ or ‘elaboration’ after trial,” claims the petition.

Late Changes to Claim Construction Prove Dispositive to Centripetal’s Infringement Theory

On remand in light of the newly admitted briefing from IPR, Judge Hanes found that Cisco’s networking products did not meet the “particular type of data transfer” limitation from the ‘193 patent, adopting an express limitation for the first time in the history of the case requiring “filtration of a subset of packets sent between [endpoint] computers in two different networks.” For the ‘806 patent, Judge Hanes interpreted the claimed “swap” signal to be the sole, but-for cause of each of the enumerated steps in the claimed rule swapping method, whereas Cisco’s products completed certain steps while the device was idle. Centripetal’s petition also noted further “clarification” in a reconsideration order entered by Judge Hanes that the disputed limitation of the ‘198 patent refers to the specific technique associated with the data transmission.

Although Judge Hanes should have been controlled by claim construction previously established under Judge Morgan, Centripetal argues that Judge Hanes improperly viewed the remand as restarting the trial. In the Federal Circuit’s ruling this April, Centripetal contends that the appellate court only grappled with the major shift in the ‘198 patent’s claim construction in a single paragraph that did not account for the parties’ acceptance of the term’s plain-meaning construction throughout litigation. The Federal Circuit also relied upon evidence submitted in 2023, well after the 2020 trial, and upheld the denial of Centripetal’s request to recall certain witnesses if new claim construction were adopted.

Beyond the apparent late change in claim construction for the ‘806 patent, Centripetal argues that the but-for causation interpretation isn’t required by the claim language. According to Centripetal, the text and grammar structure of the disputed claim establishes that the entire five-step sequence is triggered by the swap signal even if one or two steps occur in other processes. As a result, the noninfringement ruling is directly attributable to the narrowed construction determined by Judge Hanes rather than the plain-and-ordinary meaning construction previously established under Judge Morgan.

The importance of maintaining a settled Markman process supports the Supreme Court granting cert to address the series of standardless rulings on claim construction clarifications being issued by the Federal Circuit, Centripetal urges in its petition. Given the outcome-determinative nature of the claim construction applied in this case, Centripetal argues that its petition provides the Court with a clean vehicle to address the opportunity that should be provided so that parties can address late breaking, materially different claim construction.