Gloss, the

Derived from the expression to “gloss-over,” (i.e., “to conceal or disguise (something unfavourable) by treating it briefly or representing it misleadingly“) it refers to a common feature of patent assertion claim charts. It typically arises when a patent holder on a cross-licensing campaign, or engaged in a patent ambush sends a target company a demand that it takes a license under various patents with claim chart(s) attached purporting to show infringement. For various reasons large patent holders and aggressive trolls appear to often reuse the same set of patent assertion charts on various targets, twisting claims like “noses of wax” so as to make different companies’ products fit the same basic chart template. Very often the assertion claim chart, particularly from some large companies, runs into a problem – a claim element that simply is not present, which, under the all-elements rule would mean no infringement.

A common solution is in some vague way to ‘gloss-over’ the missing claim element, either neglecting to mention it, or conflating it with another claim element for which there is some evidence of presence or practice. This step in an assertion claim chart is sometimes referred to as ‘the gloss’ and those responding to such charts should always look for ‘the gloss’ to show non-infringement as well as incomplete work by the patent holder. It is a particularly bad strategy when the target company is known to have professional patent counsel, since it tends to preclude the claims of the patent holder from being taken seriously; users of the gloss may be deceived into thinking it is universally effective because many companies fail to retain such counsel – or because the peculiar circumstances of earlier patent ambushes means that their prior work was not subjected to a thorough and professional examination. When that examination happens the discussions can be hilarious for one side, humiliating for the other.

From time to time ‘the gloss’ is also seen in patent infringement litigation, particularly when patent trolls that have filed a large number of ‘hit or miss’ patent cases with limited preparation are pressed to provide infringement contentions by the court.

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