Plaintiff Prepares Appeal of RFID Case Against Wal-Mart, Target, Gillette

The defendants claim the interrogator/readers they use as part of their RFID inventory control system do contain transmitters. Based on this claim, Goldstein explains, Bormaster says he would "stipulate" (agree) that the defendants did not infringe the claims, and has asked the judge to dismiss the case on that basis, so that he can set up an appeal. The appeal would state that the judge erroneously construed the term "interrogator/reader."

"Claim construction can make or break a case, depending on which way it comes down," says Jim McNeill, a partner at McKenna Long & Aldridge, an international law firm based in Washington, D.C. "If the plaintiff is going to stipulate non-infringement, he believes the court would ultimately decide non-infringement, so it could be a time- and cost-saving measure. If he thinks the court misconstrued a claim, he can then appeal on that."

However, McNeill says, the defendants have asked the judge to make a summary judgment based on other grounds in the case. A party in a case often requests a summary judgment when, based on the patent definitions, it believes it would ultimately win the case. (Summary judgments usually negate the need for court cases, though the other party can still argue that it has enough evidence to merit a full trial.)

According to Goldstein, the judge could soon make his decision on the motions before him. In the event that he does not dismiss the case or present a summary judgment, the parties are set to return to court in August of this year. Although RFID Journal has called Wal-Mart and Proctor & Gamble asking for comments, neither company has responded.

Bormaster initially set up a firm called RFID World, to which he transferred the patent. At the request of a media outlet with the same name, however, he has since changed the name of his firm to RFID Tracker. But as a business, RFID Tracker exists only on paper—according to his lawyer, Bormaster works in the real-estate industry and does not sell products or services based on his RFID patent.