Scenario:
You and 9 friends have fished a small, local lake for years. It has been a source of relaxation and fun, not to mention the fish you caught.
One day, the owner catches you at the lake and lets you know it is a private lake and the public is not welcome. Not to be bullied, you decide you’re going to keep fishing; after all, the posted signs are not of legal size, nor are they worded properly.
Eventually, the owner takes you to court. During the briefing stage your lawyer issues a statement regarding the inadequacy of the signs at the lake, adding that this case should be dismissed. In short order, the owner erects proper signs with all the legal wording and his lawyer alerts the court that the problem has been corrected. Your friends quit fishing the lake once the new signs go up, yet you continue to fish there, to which the owner’s lawyer informs the court.
In an effort to expedite things, the judge issues an order: It is illegal to fish at this lake after the date the new signs went up.
Is it okay for the owner to go after the other 9 fishermen to sue them for fishing on his lake before the new signs went up? Maybe. What if the owner gets the courts to agree that the wording, though not technically legal, was adequate to warn the public?
This seems to be loosely analogous to the lack of clarity Judge Caspar saw in WDDD’s prosecution history, as there was no clear path for anyone who searched their patent to reference back to the provisional application. In her opinion, if it wasn’t clear to ATVI why would it have been any clearer to any other potential infringer. Thus, Judge Caspar has declared the WDDD patents to be invalid (regardless of defendant) before the date of correction.
However, whether the glitch in the prosecution history is a clerical error or a major oversight on the part of WDDD appears to be the question. As well, if a clerical error (and it is ruled such by the courts), can infringement be claimed all the way back to the original patent date? In my opinion, until this issue is appealed and won, the date of the correction is the best WDDD can do for infringement.
