571-765-7700
Mistake in Flash Drive Patent Claim Excused
Reliance on an obvious minor clerical error in the claim language is not a defense to willful infringement

Pavo Solutions LLC owned a patent directed a flash drive device with a pivotable cover and asserted it against Kingston Technology Company. Kingston responded by contending that the claim of Pavo’s patent contained a structural impossibility and could not be infringed. The problem with the claim was that it recited a case for flash memory main body and cover with a hinge hole “for pivoting the case with respect to the flash memory main body.” Because the “case” was part of the “main body” it could not pivot relative to the “main body.”


The Federal Circuit affirmed the district court’s decision to allow a judicial correction of the patent to fix the structural impossibility. A district court may correct “obvious minor typographical and clerical errors in patents” “only if (1) the correction is not subject to reasonable debate based on consideration of the claim language and the specification and (2) the prosecution history does not suggest a different interpretation of the claims.”


In this case, the appropriate correction was to allow the main body to pivot with respect to the “cover” of the flash memory device rather than the "case." The error was clear from the full context of the claim language, the correction was not subject to reasonable debate based on consideration of the claim language and the specification, and the prosecution history did not suggest a different interpretation. In fact, during an earlier appeal, the Federal Circuit itself “understood the nature and scope of the invention consistently with correcting 'case' to 'cover” (without explicitly stating the correction).


Kingston was also unable to rely on the typographical error to defeat a charge of willful infringement. The Federal Circuit held that reliance on an obvious minor clerical error in the claim language is not a defense to willful infringement. It pointed out that “judicial correction does not re-make the claim; rather, it gives effect to its obvious meaning” and an “obvious minor clerical error, by definition, does not mask that meaning,” so an infringer “cannot hide behind the error to escape the jury’s verdict.”