“Does a patentee clearly and unmistakably surrender claim scope by argument-based prosecution history disclaimer under longstanding precedent of this Court where: (a) the purportedly disclaiming statement responded to, but did not adopt, the Examiner’s mapping of claims to a prior art patent, but instead distinguished that reference, without characterizing the scope or meaning of that claim element, by logical inference based on how the Examiner mapped the reference to the claim elements, (b) during prosecution the patentee separately and successfully distinguished the same reference based on a different claim element than the one purportedly narrowed by argument, (c) a district judge in the same case had considered and rejected the same alleged disclaimer argument and found, citing this Court’s precedent, that patentee’s arguments were not a clear and unmistakable disclaimer because they were amenable to multiple reasonable interpretations, one of which is consistent with the full scope of patentee’s express definition of the claim element, and (d) the disclaimer-based claim construction (i) excludes a preferred embodiment, (ii) ignores claim differentiation, and (iii) the construction was based on and motivated by the accused device.”
