The Federal Circuit’s recent decision in UltimatePointer v. Nintendo (Fed. Cir. Mar. 1, 2016) provides a reminder of the need to use caution when drafting a claim that could be read to cover both a device and a method of use.
UltimatePointer is the assignee of U.S. Patent No. 8,049,729 (the ‘729 patent), which is generally directed to a handheld pointing device that can be used to control the cursor on a projected computer screen, thereby improving a presenter’s ability to control the cursor while making a presentation to an audience. UltimatePointer asserted several claims of the ‘729 patent against Nintendo, with Nintendo’s Wii remote being the accused product. A key issue in the litigation was whether the asserted claims were invalid for impermissibly reciting both a device and a method in the same claim.
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