Anticipate This!™ | Patent and Trademark Law Blog

Hyperphrase Technologies v. Google.

Posted in Opinion Commentary by Jake Ward on January 3, 2008

The use of the singular form “a” in conjunction with “comprising” and without narrowing language, such as “one and only one,” typically encompasses both singular and plural possibilities.

(Fed. Cir. 2007, 07-1125, nonprecedential)


On appeal to the CAFC, Hyperphrase argued that the district court (W.D. Wisc.) improperly granted a summary judgment of noninfringement of various Hyperphrase’s patents (collectively, “Patents-In-Suit”) by Google’s AutoLink and AdSense products.  The CAFC affirmed in part, vacated in part, and remanded.

AutoLink is an application that is integrated into web browsers.  When the user views a webpage, AutoLink scans the page’s content to identify certain strings of characters called “tokens.”   Google’s servers receive the tokens and returns a “redirect” URL to the user’s browser that enables the user to access relevant information from a different source.  AdSense is a service that coordinates advertiser content with contextually related webpages, typically targeted at corporate clients with a desire to advertise on the Internet.  Advertisers supply Google with online advertisements to display on the Internet via AdSense for a fee.  Adsense simultaneously conducts analyses of repeated words and combinations of words, and of keywords on the webpage that match a database, to select an advertisement to display.  At issue were the ways the Google products contextually link and present related information from disparate sources.

All but three of the patent claims asserted by Hypephrase included limitations requiring at least one “data reference,” “record reference,” “specifying reference,” or “reference.”  An explicit definition in one of the patents (and adopted by the district court for the Patents-In-Suit) stated:

A [data reference] is a unique phrase or word which may be used in a record to refer to another record or record segment. 

The district court held that meaning of the terms was a singular, specific record which the created link retrieves, or “one and only one record.”  Under this construction of the term “data reference” and the like, the district court held that AutoLink did not infringe the asserted claims because its tokens may link to any of multiple data records, and that AdSense did not infringe the asserted claims because it also lacks data references (plural).

In conducting its analysis, the CAFC first stated the axiom that “[i]t is well settled that a patentee may choose to be his own lexicographer and that definitions so provided will govern.”  However, the CAFC noted that the district court erred in going beyond the explicit definition to hold that a data reference may only refer to one and only one possible record.  The court has consistently held that the use of the singular form “a” in conjunction with “comprising” and without narrowing language, such as “one and only one,” typically encompasses both singular and plural possibilities. An intent to claim more narrowly and limit singular elements to one and only one such element can, of course, be expressed in the specification and/or prosecution history. But the patentee did not do so here.  Also, the district court’s claim construction would incorrectly excludes certain embodiments of the Hyperphrase specifications.  Thus, the district court erred in its claim construction, and the correct construction is that “a data reference” may refer to “one or more than one record.”

Summary judgement of non-infringement of patents where the term “a data reference” was not relied upon AFFIRMED .  Summary judgement VACATED and REMANDED in relation to the other patents for further proceedings in accordance with the opinion.

JW Note:  See also a related previous AT! post, titled Construction of “A”.

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