One Deleted Term, One Case Lost

In DDR Holdings, LLC v. Priceline.com LLC, No. 2023-1176 (Fed. Cir. Dec. 9, 2024), the Federal Circuit affirmed a judgment of non-infringement.

The dispute centered on the construction of "merchants" and "commerce object." DDR sought a construction for both terms that included both products and services. The district court construed the terms to only include products.

The Federal Circuit affirmed, relying on the patent's specification and the related provisional application. The specification only used the disputed claim terms in in the context of products without mentioning services. However, the specification incorporated by reference the provisional application, which defined merchants as selling either goods or services. Because there is a progression from a provisional to an issued patent, the Court determined the deletion of a term to be significant. The patentee chose to delete references to "products or services" and chose to define merchants