Vehicle IP v. General Motors Corp. and OnStar (Fed. Cir. 2009)(Nonprecedential)
VIP’s patent covers a vehicle navigation system. After construing the asserted claims, the W.D. Wisc. court granted summary judgment of non-infringement. This appeal focuses on construction of the phrase “a notification region defined by a plurality of notification coordinates.”
The infringing systems use scalars – such as a distance – and the debate is whether those scalars fit the claimed “coordinates” limitation. The majority opinion (Prost & Bryson, JJ) held that the “plain language of the claims precludes the possibility that a coordinate can be a scalar.” According to the claim, the location of the device must “substantially corresponds to a notification coordinate,” and a bare distance does not correlate to a location. The majority also found suggestions in the prosecution history supporting a narrow construction of coordinate.
In dissent, Judge Mayer would not have limited the coordinate to “a longitude latitude pair.”
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“In mathematics, there are many types of coordinate systems and the common ground is that they all define a point. For instance, in a curvilinear system, coordinates are defined with a fixed origin point, and a scalar distance offset from that point along a known curve, such as a section of road. A distance offset necessarily has a “partner” to define a point, as offsets are necessarily set off from another known point. A coordinate should not be construed to exclude defining a point by an offset from another point along a known path.” |
In Hal Wegner’s words, this decision “demonstrates the different views that can be reached by reasonable minds on claim construction issues which, due to appellate de novo review, creates the opportunities for so much judicial uncertainty.” And, as suggested by dissenting judges in Phillips v. AWH, that en banc decision did little to create predictability in claim construction.
I had a quick look at the CAFC decision without reviewing the specification, the prior art or the accused infringers, and I am forced to disagree with Malcolm.
First, an aside. If any of the accused infringers tried to patent what they were actually doing (as described in the decision) they would get a solid novelty rejection in light of the VIP patent.
To the infringement. The accused infringers transmit a single number. VIP considers the single number to be a coordinate while the accused infringers say that a single number is not a coordinate.
Since the position of the vehicle is easily determined from that single number, I think that a PHOSITA would consider it to be, for all intents and purposes, a coordinate.
But this decision does affirm what gejrmmot is alluding to: patent specifications need to be very long unreadable collections of meaningless boilerplates.
Attention Macolm Mooney and Malcolm Mooney. Are you the same? If not, is Macolm “posing as Mooney”? It’s not only gejrmmot that’s confused.
“coordinates in terms of latitude and longitude, which are most definitely NOT “x,y” coordinates.”
LOL. Keep jerking it, bro’.
“The reason ‘coordinates’ are limited to ‘x,y’ coordinates is because (1) that is a reasonable interpretation of how the term would be understood by one skilled in the art; and (2) the spec and prosecution history supports that interpretation and not a broader interpretation.”
The term “coordinates” is not so limited in this particular case, not least because the specification describes coordinates in terms of latitude and longitude, which are most definitely NOT “x,y” coordinates. But I suppose there’s no real point in constraining our opinions to be based on the actual facts.
gejrmmot is confused.
This is an issue of claim construction, not enablement or written description under 112.
The reason “coordinates” are limited to “x,y” coordinates is because (1) that is a reasonable interpretation of how the term would be understood by one skilled in the art; and (2) the spec and prosecution history supports that interpretation and not a broader interpretation.
gejrmmot,
Do you consider Claims to be a part of the specification?
There’s the mischief. So, if the claim recites (say) “a cutter” do I get protection for the water jet cutter in my drawings, while most every other cutter under the sun is outside the scope of the claim. In that case, why not go back to mainland European patent law a hundred years ago, and not bother writing claims at all? It would certainly save a few trees.
You can only claim what is found and supportive in the Spec. Period.
That means if there are only a bunch of x, y coordinate systems discussed in the description, that’s it. And nothing else is within your rim.
“I’m talking about sanctions under Rule 11 for trial attorneys who misrepresent the case law and facts to district court judges, or sanctions for filing frivolous lawsuits.”
Get off my lawn!!!!
“As I have said to you before, the FC is no stranger to sanctions.”
I’m talking about sanctions under Rule 11 for trial attorneys who misrepresent the case law and facts to district court judges, or sanctions for filing frivolous lawsuits.
“The CAFC was a first step, and not a bad one”
1) “Federal Circuit” is now the term of art for the Court of Appeals for the Federal Circuit – a real practitioner would know that.
2) I can’t count the number of times Mooney has glibly criticized learned judges of all levels of the Federal Circuit as if he himself somehow was in possession of superior wisdom.
The above points aside, Mooney, I don’t have to remind everyone that you don’t have the slightest clue about what you’re talking about, therefore the best recommendation may be to just STFU.
However, since you clearly have failed to exercise that option, let me just note something for you to stuff in your codpiece. Something that many here probably already know, except, apparently, you.
As I have said to you before, the FC is no stranger to sanctions. There was a time when claim of Inequitable Conduct, treble damages, and a call for sanctions was a routine part of every patent case. The practice became a ridiculous ritual that threatened to needlessly jeopardize careers and raise damage awards.
Thankfully, a rapid halt was put to this practice, since sanctions and charges of I.C., by definition, should be rarities reserved for the most egregious conduct, not for every legitimate claim of infringement as you would like to have it (for some bizarre and ill conceived reason).
Mr Hutz, the English patents judges are people with 20 years of experience as patent barristers (QC’s), alternately advocating patent owner’s viewpoint, then infringer’s, after plotting for a year with their respective client, to win at trial. Nobody pulls the wool over the eyes of an English patents judge. Yet, still, the English appeal courts, every so often, reverse the first instance on claim construction. Looking at the USA, we marvel how any of your non-specialist first instance district court judges can ever do a competent job of construing a claim. I think the law should be ashamed of the inefficiency and legal uncertainty it creates, when it imposes that particular task on them. But claim construction is self-evidently a matter of law, all the same.
Claim construction should be left to the fact-finder and only overruled on appeal when the CAFC determines that no reasonable person could have come to that conclusion given the facts and the rules of claim construction.
I believe Markman and Cybercorp were bad decisions.
At the very least, if there is not universal agreement among the tribunal, then they should leave the claim construction alone.
“We were determined–above all else–to stop the lunacy of Judges with no scientific education invalidating patents without real support from experts and POSHITA evidence.”
Then you failed miserably because most patent cases involve district court judges without scientific education listening to “experts” spew whatever the attorneys pay them to spew, with the added background of dust being kicked up by litigators who do not fear ever being sanctioned for their misrepresentations and compulsive ball-hiding.
I think a dedicated system of patent courts would be fine. The CAFC was a first step, and not a bad one. If the CAFC would start sanctioning more attorneys and show district court judges how sanctioning is done, we’d see a lot less games being played.
I was part of the team that lobbied for a national patent court in 1982. Our proposals became were the basis of the CAFC. We were determined–above all else–to stop the lunacy of Judges with no scientific education invalidating patents without real support from experts and POSHITA evidence.
Why? because in the pre-1982 world, up to 70% patents were being invalidated–depending on the circuit. Predictability was gone.
Well, suffice it to say, we never envisioned a patent court staffed by lay judges who adopted a “rule” that key issues such as claim construction and obviousness are a matter of “law”.
Think of it from a logistical point. Can the CAFC continue to spend the huge amount of time doing de novo review of of every patent, staring with file wrappers? No.
The CAFC aside, US appellate courts confine their review to determine if the applicable law has been applied. Facts found by the fact-trier are not reviewanle unless manifestly wrong.
Eventually, the CAFC’s de novo approach will crash the system. I suspect that is what, in part, Hal Wegner meant.
Dear Mr WasThere, What a technical term of art, present in the claim, means to the PHOSITA might be an issue of fact, so admit evidence. As to the “ambit” of the claim, that’s an issue of law, which the court has to decide. That’s how it’s been for 100 years, at least in England. Where’s the issue? But I’m with you on the tendency of the cafc to arrogate that which is really fact as issues of law, like whether some particular act would have been obvious to perform, on date X. But, hey, I’m not a litigator. Other readers can surely put it better.
Claim construction is self-evidently a matter of law, so the appeal instance has to get involved, from time to time.
Funny – the law is ” how a POSITA would understand a claim term” when viewed in light of the spec blab blah blah – What a POSITA would understand is an issue of FACT. Judge Posner has it right, its not just cafc, – all the circuits do it, turns issues of fact into one of law – under different verbiage. a specialized patent court would probably make disregard for the 7th amendment even worse.
After cursory review, this is a tough case. “Plurality of notification coordinates” seems at first like a bunch of x,y callouts. Spec probably doesn’t mention anything other than x,y callouts as notification coordinates.
So — infringer appears who uses a different way (than what is described in spec) to determine location. Patent Owner says “they stole the ‘idea” of the patent”. Patent Inventor says “I never really considered ways other than x,y callouts”. Patent Litigator says “We’ll argue that the claim language is broad enough to cover ways other than x.y callouts”.
Sounds like about 90% of the patent litigation I’ve ever seen. Depends where your patent philosophy lies as to whom you think should win. Mooney and his ilk favor (like me) think that claims should put the public on notice of what infringes and what doesn’t infringe. Others, currently the majority but losing ground quickly, favor reading the claims broadly to cover the “idea” of the patent.
Thusly, the present dilemma.
“…an article…”, “..as they put forth…”
C’mon, 6, You can do better than that. Help us obey the Law and our ethical duty and at least provide a link to this worthy tome so that we can be as enlightened as you.
And then, let’s discuss your ethical duty to follow the law as it is and not follow what you think the law should be.
“ethical obligations associated with zealous advocacy.”
Funny you should mention that I just read an article by a lawyer who was telling it like it is, your “ethical” duty to zealously advocate is little more than you acknowledging people pay you. Your real ethical duty, as they put forth was to see that justice was done, whether or not it went as well as it could have for your client within the boundaries of the law. He also brought up that it was always the older attorneys, near or at retirement who held these views because the younger generations were always beholdin’ to those that pay them. Your practice is corrupt good sir, admit it already, you should still be able to sleep at night because “everybody’s doin it”.
“district court judges not only refuse to sanction those attorneys for misrepresenting claim construction case law (and the facts underlying those attorneys’ claim construction arguments) but swallow the bad arguments whole”
The above statement does not sound like someone who understands a thing about the ethical obligations associated with zealous advocacy. On the other hand, Mooney would be nothing without his perennial expectation that those on this board would swallow his constant stream of garbage arguments whole.
“In Hal Wegner’s words, this decision “demonstrates the different views that can be reached by reasonable minds on claim construction issues which, due to appellate de novo review, creates the opportunities for so much judicial uncertainty.”
So what is Hal proposing??? How should the law and/or patent practice be changed?
Judge Mayer is forgetting that curvilinear systems still need two coordinates — distance and name of road, distance and angle, distance and SOMETHING.
“Director Dudas will be leaving the USPTO in mid-January. The Office of the Under Secretary and Director is hosting a farewell event from 1 p.m. to 3 p.m. on Monday, January 12, 2009, in the South Madison Auditorium, on the concourse level of the Madison building”
You heard it here first folks.
Claim 1:
A system for providing directions, comprising:
a server coupled to a communication network, the server operable to determine directions from an origination location to a destination location and to communicate the directions using the communication network, wherein the directions comprise a plurality of segments, each segment separated from an adjacent segment by a separator signal and comprising a command and a notification region defined by a plurality of notification coordinates;
and a mobile unit coupled to the communication network remote from the server, the mobile unit operable to receive the communicated directions, the mobile unit further operable to present automatically a particular segment of the directions to a user if the location of the mobile unit substantially corresponds to a notification coordinate defining the notification region associated with that segment.
Given the impressive breadth of this claim (would almost seem to cover the field of automobile GPS), it’s reasonable to expect that some arguments were made during prosecution that limit the scope of one or more terms. The term “scalar” does not appear anywhere in the spec, nor does the spec include any boilerplate that would expand the disputed clauses to include “any other location identifying means known in the art” or something of that sort.
Seems to me that the district court judge did a fine job of following the LAW in Phillips and construing the claims. The CAFC majority agreed with the reasoning.
Hal Wegner says this decision “demonstrates the different views that can be reached by reasonable minds on claim construction issues which, due to appellate de novo review, creates the opportunities for so much judicial uncertainty.” But this case proves the opposite: if everyone follows the law set forth in Phillips, the result is predictable (i.e., in most cases, the CAFC and the district court will agree).
The unpredictability arises not because of any fault in the Phillips decision (one of the CAFC’s best decisions on any patent related subject), but because attorneys refuse to follow Phillips when it doesn’t lead them to the desired claim construction, and district court judges not only refuse to sanction those attorneys for misrepresenting claim construction case law (and the facts underlying those attorneys’ claim construction arguments) but swallow the bad arguments whole.
If we posit a workable system of litigation, it would involve a competent first instance, and an appeal instance that reverses only when the first instance gets the law seriously wrong. Claim construction is self-evidently a matter of law, so the appeal instance has to get involved, from time to time. But if the first instance were capable of doing claim construction competently, then the CAFC could routinely confirm the first instance, which would deliver the legal certainty that US industry needs (I assume). Will Mr Obama encourage specialised patent courts of first instance, I wonder?
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