Chief Judge Stark finds two terms of key logger patent indefinite

Chief Judge Leonard P. Stark recently issued the Court’s claim construction opinion for the disputed terms of U.S. Patent No. 8, 316,445, titled “System and Method for Protecting Against Malware Utilizing Key Loggers.”  Trusted Knight Corporation v. International Business Machines Corporation, et al., C.A. No. 14-1063-LPS-CJB (D. Del. Nov. 19, 2015).  Judge Stark found two claim terms invalid as indefinite.  Judge Stark found the term “in response to the software key logging through the API stack to an internet communication port” indefinite because “it is unclear what action is performed ‘in response to the software key logging.'”  Id. at 8 (emphasis in original).  The Court found the second term indefinite after determining it was missing the verb “is.”  Id. at 11.  Corrected, the term would read “a process of passing the encrypted data to a 3-ring level where a hook is inserted by a hook-based key logger.” Id. (emphasis in original).  Judge Stark determined that the Court could not correct the term because Plaintiff’s proposed correction was the “subject of reasonable debate.” 12.

Making Plaintiffs requested correction . . . would appear to make this limitation operative only in response to a hook (i.e., a form of malware) being inserted. Yet the specification – and, as noted in connection with the preceding term dispute, Plaintiff as well – states that the claimed invention operates even in the absence of malware (i.e., without a hook being inserted by a hook-based key logger). This seeming contradiction and, at minimum, ambiguity – demonstrate that Plaintiffs proposed correction to the claim language is subject to reasonable debate.

Id. (emphasis in original).  Judge Stark also noted that other corrections were feasible.  As such, the Court could not correct the claim term and, uncorrected, a person of ordinary skill in the art would not know the meaning of the term with reasonable certainty.  Id. at 12-13.


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