Whether a patentee's express definition of a claim term governs over the Federal Circuit's new definition

QUESTIONS PRESENTED Finjan asserted five interrelated U.S. patents relating to anti-malware systems and methods against ESET. The Finjan patents purport to analyze a “Downloadable,” aterm that had no meaning to persons of skill in the computer art. In three of the asserted patents, conflicting definitions of the term “Downloadable” are supplied by patents as an “executable application program” or as a “small executable or interpretable application program...” In the other two asserted patents, the patentee expressly defined the term “Downloadable” as an “executable application program...” but also incorporated by reference prior related patents that contained the conflicting definition of “Downloadable” as a “small executable or interpretable application program...” The District Court adopted for its construction of the term “Downloadable” in all five asserted patents the patenteeprovided definition that included “small,” “executable,” and “interpretable,” applying Federal Circuit precedent that a patentee may act as his own lexicographer in defining his invention. Ignoring its own precedent and that of this Court, the Federal Circuit reversed, fashioning an entirely new definition that included “executable” and “interpretable” but excluded the word “small.” There is no patentee-coined definition of “Downloadable” that includes “interpretable” but excludes “small.” The Federal Circuit opined, counterfactually, that there was no conflict in the definitions provided in the patents. The questions presented are: 1. Inacase of first impression for this Court, where a patentee expressly defines a claim term, may the Federal u Circuit disregard its decades-old precedent that the patentee’s express definition governs? 2. Does a Federal Circuit ex post facto claim construction comply with pre-AIA 35 U.S.C. § 112 191 and 2, and this Court’s precedent in Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898 (2014), when a person of skill in the art could not have predicted the Federal Circuit’s claim construction with reasonable certainty? 3. Must the Federal Circuit, under Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 574 U.S. 318 (2015), credit a District Court’s underlying factual determinations in resolving conflicts arising from a patentee multiple conflicting definitions of a patentee-coined claim term?