Different Words Have Different Meanings

One interesting apect of Augme Technologies, Inc. v. Yahoo! Inc., 2013-1121, -1195 (June 20, 2014), is the Federal Circuit’s application of the Claim Construction Cannon that different words have different meanings.  The claim required an “embeded code module,”   The Federal Circuit noted that each asserted claim recites that the first code module is “embedded” or “configured to be embedded” and that the second code module is “retrieve[d]” or “download[ed].” The Federal Circuit found that this distinction creates a presumption that “embedded” means something different than “retrieved” or “downloaded, ” citing Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1382 (Fed. Cir. 2008) (“[D]ifferent claim terms are presumed to have different meanings.”); Applied Med. Res. Corp. v. U.S. Surgical Corp, 448 F.3d 1324, 1333 n.3 (Fed. Cir. 2006).  Having created a distinction between embedded  and retrieved and downloaded in structuring its claims, the patent owner could not argue that these different terms meant the same thing.