- Ariad v. Eli Lilly (Written Description): Ariad has filed its opening brief in the en banc Federal Circuit challenge to the statutory basis for a written description requirement that is separate and distinct from enablement requirement. The patentee’s strongest arguments are textual and historic. Although done with tact and persuasive skill, the brief asks the court to read the statute: “The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same.” [File Attachment: Ariad v. Lilly Plaintiffs-Appellees Principal Brief.pdf (509 KB)]
- Forest Group v. Bon Tool False Marking Case: The question on appeal is whether mass production of a falsely marked product constitutes a single instance of false marking. If the Federal Circuit agrees, the false marking statute will continue to have no impact because damages are limited by statute to $500 or less per offense. Judges Rader, Plager, and Moore will likely issue a decision in January. In oral arguments, the court struggled with the potential problem of “marking trolls” — suggesting that an amicus in this case is “pretty close to that.”
- USPTO Website: Out of Beta
- Patent Reform: Senator Leahy has suggested a Senate debate on patent reform “before the end of the year.”
- Board of Patent Appeals: Numbers are in for FY2009 (ending September 30, 2009). 15,349 appeals docketed; 6,757 appeals completed; 12,489 appeals pending at the end of the FY. The Board took heroic efforts to increase its throughput by over 35% in FY2009. However, the Board was already operating in a deficit and the number of cases received in FY2009 is more than double that of FY2008.
- Board of Patent Appeals II: Despite the backlog, the Board reports an average pendency of only 7.7 months (calculated from assignment of appeal number to decision date).
- Patent Law Jobs:
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- Vestas is looking to hire an experienced in-house patent attorney in Houston.
- Covidien is looking to hire an experienced in-house patent and trademark attorney in Boulder, Colorado.
- Metabolix is looking to hire an experienced intellectual property manager in Lowell, Massachusetts with a focus on polymer science.
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I see no answer A or B and I see no answer as to any rules o da englaise being broken upon.
You better bow. Especially if they take the time to blow your ridiculous textualist arguments out o da water. Just to top it off I hope Newman delivers the coup de grace.
6,
There will be no bowing even if the court rules against how I think it will, for you have not presented any cogent arguments.
Come back for another beating when you feel up to putting forth another of your weak arguments, you can of course continue to bring your own rope with Wiki references that destroy your position.
“It allows the judges to give an answer to the question without going into all the policy issues”
Allowing them to won’t persuade them to. And that’s where your case falls apart.
“Those good causes are simply not at issue here and the question of their home is not before the court.”
My question does not pertain to the “good causes”. My question in fact related to the “context” which you bring up.
In which “context” does
“in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, ”
^ that make any sense at all?
The context of:
A: a written description of the invention
B: a written description of the manner and process of making and using it
A or B NAL?
Like on the LSAT, you must choose the best answer.
The question is asking, which of these two is even capable of enabling a person to make and use something? A written description of an invention, or a written description of the manner and process of making and using it?
In other words, is a written description of an invention (i.e. “the invention is a table”) even capable of enabling someone to make and use the same? It’s a simple yes or no question. And it will preclude whatever magic you think you’re pulling in a textual argument (which is different from a contextual argument btw).
ON A TOTALLY DIFFERENT SUBJECT:
If you answer No to the above, does this breakdown of the sentence not make sense?
(ind clause) The specification shall contain a written description of the invention, (dep clause from the preceding ind clause) and of the manner and process of making and using it, (dep clause from the preceding dep clause OR from the preceding ind clause) in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same…
The specification (subject) shall contain a written description of the invention (pred), and of the manner and process (subject) of making and using it (pred), in such full, clear, concise, and exact terms (subject) as to enable any person skilled in the art to which it pertains (pred), or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
What rules o da englais does this go a violatin’ on?
None.
The only question remaining is:
Are you going to bow to me when your side loszors?
“Because, let’s be 100% honest, there is no doubt you will be. As usual.”
– You mean like in Alappat? Yeah, that’s usual. Once again, as usual, you are wrong.
“since you present no reason it cannot be”
– You mean OTHER THAN the rules of English, even by your own sources, that say you are wrong?
“The textual argument is a pleasant diversion at best.”
– Look at the question before the court. Is the question about all the “stuff” you are trying to make it about? – The answer is No. The straight forward contextual argument directly answers the the question before the court. That’s why it is brilliant. It allows the judges to give an answer to the question without going into all the policy issues – and if you haven’t noticed (and I doubt that you have since focus on what the law really is, is not a strength of yours or other examiners who have posted gratuitous comments – like Jame), judicial efficiency often takes the easy, straight forward answer.
As I posted upthread to MaxDrei:
Do you think the “want” to have a place for a rule overrides the clear plain reading of the rule?
The case appears deceptively simple, and your question, although meriting thought as to preventing the introduction of new matter, is simply not part of the question as put to the court.
The battle here was won in the act of framing the question. The simplicity of the question and the direct answer by contextual argument is brilliant. Policy considerations are largely mooted,
(drum roll please)
as even an incorrect reading of the law for a good cause is still an incorrect reading of the law.
Those good causes are simply not at issue here and the question of their home is not before the court.
As such and for at least this reason, your question of A or B is immaterial.
Noise you focus too much on trying to win the battle. I’m in it to win the war. That is, 112 WD req will stand as it always has and the “newly added” portion that apparently just came about fairly recently will also stand. The textual argument is a pleasant diversion at best.
The only thing that remains to be seen is whether you will bow when you are justly defeated. Because, let’s be 100% honest, there is no doubt you will be. As usual.
“As Broje points out, if you want to separate the clauses and enable (pun intended) them to stand alone, you have to change them from dependent clauses to independent clauses.”
My bad, I thought you were backing broje’s plan of doing so right there. But there is no reason to back that plan. No reason they must all be ind clauses. And thus, my simple question certainly can correlate to the way the sentence is written, since you present no reason it cannot be and I’m presenting a way for it to be.
So which is it going to be? A or B?
Molly is your expert? Can you be more specific? Molly who? Molly has published what and where? Or is Molly some English major that happens to share a view with you, possibly after MANY drinks… Perhaps Molly is your imaginary friend, who kept you company when the bullies beat you up when you were but a mere lad.
“I happen to disagree with this practice…
…as they seem like…to me”
No foolin. Doesn’t change the fact that you are wrong. Wrong with the very source you brought to the table. Gotta love a man who brings his own rope.
“…and this gets a bit above your head” – it’s not my head that you should be concerned about – you are the one wearing the rope.
“if anything you just showed that you yourself were wrong, even if I am wrong technically” – 6 double speak at its finest.
“You are the one holding the position that the clauses MUST BE ABLE TO STAND ALONE.” – show me where I said that, please. I think you have confused my stand with broje’s. I asked you to diagram 112. I asked you to explain your view in plain English. I asked you for something you have YET to deliver. I never said to make clauses stand alone.
“And in the end let’s be clear NAL, my point is that you don’t know tha lawl. Ironic that it is me accussing you of not knowing the lawl isn’t it? ” – Not ironic at all 6. You are wrong. You continue to be wrong. I have proven yet again that you are wrong. You keep on saying you know that law and I do not – you keep on being wrong. Irony? Try persistent shield of ignorance instead. Try looking at the crap you have thrown and that you are standing in beneath your precious shield.
But please, run along now. Come back again when you want another beating.
“One of the cases is a clear winner in so far as it matches up with the longstanding law, therefore, I presume that it is the way the law is being determined. ”
Determined should be “interpreted”. My bad.
Typing up these huge documents is rather taxing. I’m going to have to get going, c’yall.
“It does not mean that the information contained in the parenthetical is meaningless. ”
It’s not that it is “meaningless”. It is that it is “non-essential” to the meaning of the sentence. Everything in a law is essential isn’t it?
link to grammar.ccc.commnet.edu
See no. 4.
“By “parenthetical element,” we mean a part of a sentence that can be removed without changing the essential meaning of that sentence.”
If we remove the part after the first comma then I’m sorry, but a whole section of 112 1st goes out the window. “and of the manner and process of making and using it” changes the sentence somewhat if we include it, and discluding it CERTAINLY changes the sentence. We can’t divine whether or not the drafter meant for it to or not, so we cannot rule out that it wasn’t meant to have effect.
You are assuming a meaning of the sentence and then stating, based upon that pre-disposition, that the phrase is paranthetical. I am attempting to remove all predisposition and determine whether or not it is paranthetical. The answer is maybe, and maybe not. After determining that I am determining what the sentence means. After having determined it in both cases I compare it to the longstanding law. One of the cases is a clear winner in so far as it matches up with the longstanding law, therefore, I presume that it is the way the law is being determined.
But again, be clear, I would love for it to be parenthetical, because it would make perfect sense to me. But that’s not the law, and it isn’t going to be. And it not being the law doesn’t mean that the courts are doing anything necessarily improper. Watch.
“Show me one expert that says the particular type of error of run-on sentences demands that the affronting sentence necessarily results in indefiniteness or precludes a proper diagramming per my statement of “Even considering 112 to have this particular grammatical error, it does NOT follow that the error results in indefiniteness or precludes a proper diagramming.”
or SHUT THE F UP.”
Come to my next party and I’ll make sure Molly shows up.
“”…a dependent clause then it doesn’t stand alone… I should qualify that again, …It might be able to, or it might not. Either is proper.”
Try actually reading your own source:
“A dependent clause (also embedded clause, subordinate clause) CANNOT STAND ALONE as a sentence.” – my caps.”
The difference stems from whether or not you consider them “dependent clauses” or “complimentary clauses” which you will see mentioned throughout those articles. Those articles attempt to bunch the two of them up together. I happen to disagree with this practice of bunching them up together, as they seem like separate and distict entities to me. One completes a thought and might or might not be a complete thought in and of itself (i.e. an independent clause) if you wanted it to be so, and the other is simply an incomplete thought that might or might not complete the previous thought. However, on at least one of those pages I saw that they were conflating the two phrases and figured that they are usable together. Perhaps they were conflating them and perhaps I am wrong on that one.
Or perhaps they were not, and this gets a bit above your head so I’m not going to bother to explain it to you further. You have your fingers in your ears and are singing “la la la la la I can’t hear you”. So, let’s continue with your definition then.
“My point is that you know jack, and can’t even get out of the way of your own arguments. I have used your own sources to show just how wrong you are.”
Um, if anything you just showed that you yourself were wrong, even if I am wrong technically about dependent clauses being able to stand alone in some instances (which ok, perhaps they cannot). You are the one holding the position that the clauses MUST BE ABLE TO STAND ALONE. They do not if they are dependent clauses. You specifically just said according to your belief that if they are a dependent clause then they CANNOT be able to stand alone. So which is it going to be? Do clauses have to stand alone? Or do dependent clauses NEVER STAND ALONE?
So NAL, what happens if the last pertinent clause is a dependent (or complimentary) clause to the clause that comes before it? It doesn’t stand alone, according to your definition. This contradicts exactly what broje said. It doesn’t have to be a complete sentence (or, said more specifically, it doesn’t have to be able to be re-written as a complete sentence without a substantial re-write. And this happens to be the position you are taking.
And in the end let’s be clear NAL, my point is that you don’t know tha lawl. Ironic that it is me accussing you of not knowing the lawl isn’t it?
In any event, this is a busy day, I don’t have time to bs about a case that is already decided before it was even appealled. We can discuss this more later if you really, desperately, want to pi ss into the wind.
“BTW, the “non-essential” thing just means that the parenthetical isn’t necessary for the sentence to make sense as a complete, gramatically correct sentence. ”
I disagree, the “desperately” in my last sentence is parenthetical. Not only is it not necessary for the sentence to make sense, it isn’t necessary at all. And that is kind of a requirement for parenthetical statements. Otherwise it isn’t really parenthetical.
You just happened to post before I could clear my post, I’ll have to address you further later I do have stuff to do.
6, from your wiki article, “a dependent clause contains a subject and a predicate …”
Also, from the Owl, “A dependent clause is a group of words that contains a subject and verb but does not express a complete thought. A dependent clause cannot be a sentence.” link to owl.english.purdue.edu
You can’t correctly write, “He had a bowl containing a cup of milk, and of flour.” Nor can you correctly write, “He had a bowl containing a cup of milk, and of flour, that was sifted before being placed in the bowl.” That is what you are trying to say is the sentence structure.
On the other hand, you can correctly write, “He had a bowl containing a cup of flour, that was sifted before being placed in the bowl, and of milk.” Since you can move parentheticals around, it is actually equivalent, and gramatically correct, to write, “He had a bowl containing a cup of flour, and of milk, that was sifted before being placed in the bowl.” That is the only grammatically correct way to interpret 112. I’ll convert it for you:
“The specification shall contain a written description of the invention, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and of the manner and process of making and using it.”
BTW, the “non-essential” thing just means that the parenthetical isn’t necessary for the sentence to make sense as a complete, gramatically correct sentence. It does not mean that the information contained in the parenthetical is meaningless. That is such a deceitful diversion. I expected better.
“…didn’t say that it does, the “experts” do. I’m pretty sure I made this clear NAL.”
Show me one expert that says the particular type of error of run-on sentences demands that the affronting sentence necessarily results in indefiniteness or precludes a proper diagramming per my statement of “Even considering 112 to have this particular grammatical error, it does NOT follow that the error results in indefiniteness or precludes a proper diagramming.”
or SHUT THE F UP.
“…a dependent clause then it doesn’t stand alone… I should qualify that again, …It might be able to, or it might not. Either is proper.”
Try actually reading your own source:
“A dependent clause (also embedded clause, subordinate clause) CANNOT STAND ALONE as a sentence.” – my caps.
“No kidding? What’s your point? Do you have one? Are you arriving there soon?”
My point is that you know jack, and can’t even get out of the way of your own arguments. I have used your own sources to show just how wrong you are. I realize that you have a shield of persistent ignorance, but you should realize that when you throw crap AND hold onto that shield, that the crap ricochets off the shield and lands squarely on you.
“I just told you that if it is a dependent clause then it doesn’t stand alone”
I should qualify that again, it doesn’t *have* to be able to stand alone. It might be able to, or it might not. Either is proper.
“What does your predicate contain? Does it contain a verb perhaps? ”
It can be a number of verb related things, not just simply “a verb”. For example, a “verb phrase”.
“it does NOT follow that the error results in indefiniteness or precludes a proper diagramming.”
I didn’t say that it does, the “experts” do. I’m pretty sure I made this clear NAL.
“You are relying on wikipedia for your English rules?”
Not really it just makes for a convenient reference, one that is so simple even you might can read it. I know, I know, I could be wrong, you might still have trouble with it.
“You need to go to Wiki’s independent clause to arrive at the stand alone definition: “An independent clause (or main clause, matrix clause) is a clause that can stand by itself, also known as a simple sentence.” ”
No kidding? What’s your point? Do you have one? Are you arriving there soon?
“In other words, to stand alone, you do have to have a sentence.”
That’s your point? I just told you that if it is a dependent clause then it doesn’t stand alone. What are you having trouble comprehending here NAL? I know, it’s hard for me to teach you over the interwebs and all, but need to try to be a better student, put a little effort in. K?
Like I asked NAL, when Lilly wins are you going to go ahead and take a knee and kiss the royal pinky ring?
“Your question is NOT how the paragraph is structured.”
So your answer is: “I don’t like the answer I come to 6 because that answer leads us directly into your meaning.” And I understand NAL, I understand.
“As Broje points out, if you want to separate the clauses and enable (pun intended) them to stand alone,”
Separating them doesn’t necessarily = enabling them to stand alone. They may very well not be able to stand alone. For instance, the portion after the first comma “and of the manner and process of making and using it” may very well depend upon the part that comes after it to be whole, or it may depend upon the portion that comes before it to be whole. Addtionally, “in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains,” may depend upon that which comes before it for a subject (i.e. the manner and process of making it).
“Finally, I’m pretty sure that Kev’s comment cannot be taken at face value. See bread’s comments above.”
Kev could spend all day trying to make you understand this, but it wouldn’t make any difference. You want it to mean what you want it to mean and you’re not listening to anything that leads you away from that. Putting your hands into your ears and singing “la la la la la I can’t hear you” might do you well in prosecution since you can bully examiners who don’t care to put up a fight, but in a litigation you might want to take into account the other side’s position. Especially when they are backed up by the long standing lawl.
As JD is want to say: The lawl, know it. Or something like that. I think he means in the biblical sense.
One more point 6, as per your wiki-grammer book, while a run-on sentence may be a grammatical error, not all grammerians consider comma spliced sentences to be run-on sentences. “…while others exclude comma splices from the definition of a run-on sentence.”
link to en.wikipedia.org
Even considering 112 to have this particular grammatical error, it does NOT follow that the error results in indefiniteness or precludes a proper diagramming.
Do the homework 6. Stop trying to explain things before you do the homework correctly.
6,
You are relying on wikipedia for your English rules? That explains a lot. Even then, you can’t seem to read, and you even get Wiki wrong –
What does your predicate contain? Does it contain a verb perhaps?
Compare your astute comment “Mmmm, complete sentences don’t require subjects and verbs”
with
Wiki’s “The predicate is a finite verb phrase: a finite verb together with…”.
Furthermore, the second link you provided indicates the opposite of what you state.
You stated “clauses do not have to be able to stand alone as a sentence”
and your link states
“A dependent clause (also embedded clause, subordinate clause) cannot stand alone as a sentence.”
You need to go to Wiki’s independent clause to arrive at the stand alone definition: “An independent clause (or main clause, matrix clause) is a clause that can stand by itself, also known as a simple sentence.”
In other words, to stand alone, you do have to have a sentence. See link to en.wikipedia.org
6, how can you stand to be so wrong, so often?
“by what magic did you determine that it modifies…” – the magic you introduced. See the previous thread for the diagrammed sentences wherein the meaning was fully explained. You do remember diagramming, don’t you? Once you diagramm the complete paragraph, you will understand. Do the homework BEFORE you come to a conclusion, otherwise, you will keep going in circles, trying to forcefeed your construction to match your preconcieved notions.
“…by asking one simple question:Which of the two following things enables a person to make and use something?”
Your question is NOT how the paragraph is structured. Because you have to ask the question in the way you do to get the answer you want us to say should make it clear to you that your structural analysis of 112 is off. As Broje points out, if you want to separate the clauses and enable (pun intended) them to stand alone, you have to change them from dependent clauses to independent clauses.
Finally, I’m pretty sure that Kev’s comment cannot be taken at face value. See bread’s comments above.
““The specification shall contain a written description of the invention, and THE SPECIFICATION SHALL CONTAIN A WRITTEN DESCRIPTION of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same.” ”
You don’t need to have the cap part because you’ve already introduced “shall contain a written description of” then you follow it by two fill in the blank portions “blank, and of blank …”
“Only by viewing it as a parenthetical can it be grammatically correct.”
We’re going to have to agree to disagree. I might would agree with you that it would be the MOST grammatically correct way. Indeed, that is the way I would have written it. But I don’t agree that it is the only way. And I also see that the parenthetical way is certainly not the way the law has been read for a long time. Idk, 50 or 100 years?
“Seriously, the second clause has to be a complete sentence, with a subject and verb. ”
Mmmm, complete sentences don’t require subjects and verbs. They require subjects and predicates.
link to en.wikipedia.org
And every clause which I have designated has at least one of each.
Furthermore, clauses do not have to be able to stand alone as a sentence:
link to en.wikipedia.org
Either way they decide the knuckle wrapping English teachers are already taking congress to task for writing a monstrosity of a run on sentence.
Remember guys, even if you win you’d be pis sing directly into the wind. Like Kev said, the SC would step in, or congress would rewrite the statute. Which actually might be a good thing I have to admit.
Treating it as separation of clauses renders it grammatically incorrect. The only way for it to be grammatically correct if you view as separation of clauses would be as follows:
“The specification shall contain a written description of the invention, and THE SPECIFICATION SHALL CONTAIN A WRITTEN DESCRIPTION of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same.”
Emphasis mine.
Seriously, the second clause has to be a complete sentence, with a subject and verb. Only by viewing it as a parenthetical can it be grammatically correct. The Court may decide otherwise, but for doing so, they shall be eternally consigned to the hell of knuckle wrapping english teachers.
“You haven’t made your point on that argument yet.”
I’m pretty sure that I have. The sentence, when viewed as a whole, supports my interpretation more than the other interpretation.
Furthermore, according to “experts” on the issue (i.e. english teachers) the whole thing is nothing but a poorly written run on sentence. And in such a case, they claim, it is impossible to genuinely dissect the sentence as usual because by definition you already fuc ked up using proper English by writing a run on sentence. And to some extent I have to agree with them. Congress could simply express itself in normal sentences and get the point across much more clearly.
“on what basis, other than because you want it to, do you make this assertion?”
point by point nal. On what basis do I say that there is nothing making a prepositional phrase modify TWO THINGS in one sentence? The basis of “I know how to read and you apparently have trouble”. That’s a factual finding mind you.
“so you are rewriting the rules of the English language in order to reach your desired meaning, ”
I rewrote no rules to make that re-writing. If you would like to point out to me what rule I broke specifically then I will consider it.
“Your rendition places a double “of” at [A](ii),
and ignores the comma after the manner and process clause. You do know what a clause is, do you not? ”
Sorry I didn’t make myself clear, I was focusing on a specific issue they were bringing up in the brief at the time of writing. To make it 100% perfect:
An interpretation may also be represented as follows:
The specification shall contain
[A] a written description
(i) of the invention
and
(ii) of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and
use the same…
Note here that this is not my “ignoring the comma” it is my simply stating that “in such full …” is a complimentary clause. That is, it completes the thought of the independent clause preceding it.
The person writing the brief starts out by UNDERSCORING THIS ON PAGE 1. Where he says:
“Properly interpreted, the statute requires the
specification to describe (i) what the invention is (written description of the invention), and (ii) how
to make and use it. (manner and process of making it)”
How he manages to deviate from the path he laid out for himself on page 1 I will never know.
“The proper construction has ONLY one written description followed by both “of” clauses. ”
I see you’re now on board with my interpretation now that I fixed the “of”. My bad, I should have looked it over before posting before.
” That’s why the prepositional phrase applies as it does – that’s the proper construction.”
So you feel like the prepositional phrase applies to both “of” clauses because it supposedly modifies the written description? Mhmmm. Tell me though, by what magic did you determine that it modifies the “written description” rather than “the manner and process of making and using it” as is proper? The proper way for congress to have written a law to mean what you suggest is thus:
“he specification shall contain a written description, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, of the invention, and of the manner and process of making and using it, …”
Do you notice how we put the modifying clause DIRECTLY AFTER THAT WHICH IS BEING MODIFIED? But you wouldn’t like that, because it looks horrible, and makes no sense what so ever.
“It is easy to see that your ignorance comes from at least in part your inability to actually grasp the English language.”
When Lilly wins will you acknowledge that I grasp english much better than you?
“I bet you’re not willing to let examiners simply ignore internal clauses in your claims according to this rule.”
LOL I know right? I brought up that very point with a few attorneys a few times. Them making parenthetical clauses with commas. They didn’t like it much at all lolz.
“I honestly don’t understand how anyone could take a different view of the plain meaning of 112.”
Because going the parenthetical route doesn’t yield “and of the manner and process of making and using it,” “emphasizing” that you must have the manner of making and using the invention in the description. It yields that specifically being unnecessary. And no court is going to moot that clause.
Watch.
As to which type of comma this is on your list I am not sure because I don’t want to read that whole list.
I will point you here:
link to en.wikipedia.org
“Separation of clauses” section should do you.
Now, I will admit straight up to you broje that upon first reading the sentence I ALWAYS think “and of the manner and process of making and using it,” is a parenthetical phrase because that is how I would have written it in everyday usage. However, we must take into account that other people do not write the same way as you or I, and that this is a law. You must further take into account the ramifications of interpreting it thus. And the ramifications are big. If you interpret it in a parenthetical manner then the lawl no longer requires that “and of the manner and process of making and using it,” be in the application at all. Thus you must go back and remember that, for all intents and purposes, parenthetical phrases do not exist in LAWS because pretty much everything in the law exists to mean something. Do you not agree?
Furthermore, do you agree that taking that stance would fly in the face of every caselaw decision on 112 1st since “the dawn of time”?
After you agree with both of those you’ll understand why I’m taking the opposite view from you and NAL etc. You have to rule out the parenthetical, right out of the gate.
Now, to support my interpretation that I espouse (not the alternative one to the one they propose) I will leave you guys by asking one simple question:
Which of the two following things enables a person to make and use something?
(A) A written description of something (I.e. I invented a “table”)
or
(B) the method and manner of making the same (you make the table by attaching 4 legs to the underside of a slab of wood)
if you answered B then you should understand why I feel like the enablement clause only directly modifies “the method and manner…”
If you answered A, let me further ask you, if I say “you make it by attaching 4 legs to the underside of a slab of wood” and neglect to tell you that it is a “table”, are you not still enabled to make and use the item?
“Why, oh why has 6 not posted the sentence diagramming?”
I’ll be 100% honest with you Noise this is why: I’m a bit concerned about using the office’s scanner for what is, pretty much, personal use.
Now, I suppose a case could be made for the allowability of an employee using the scanner for limited personal use. In fact that might be permitted, but I don’t know. Alternatively, the case could be made that this is, at least tangentally, related to my work. Surely one must know what 112 2nd says in order to be able to apply it.
One other concern is copying this thing over again into flowery handwriting. But I guess I’m just going to have to do that.
broje’s right
Off topic request: Anyone aware of any recently-issued patents in biotechnology area that were prosecuted under the accelerated exam regime?
Is there a resource for this information?
Please identify another category with respect to which the comma usage could be interpreted. Here is a handy comma usage guide.
link to grammar.ccc.commnet.edu
“According to the rules of comma usage, a pair of commas are used in the middle of a sentence to set off clauses, phrases, and words that are not essential to the meaning of the sentence.”
That’s not right, broje. These internal clauses, phrases, and words can be omitted and still yield a sensible sentence, yes, but that’s not the same as saying that they don’t contribute to the meaning of the sentence. I bet you’re not willing to let examiners simply ignore internal clauses in your claims according to this rule.
Section 112 says, “The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same.”
According to the rules of comma usage, a pair of commas are used in the middle of a sentence to set off clauses, phrases, and words that are not essential to the meaning of the sentence. Removing the phrase “and of the manner and process of making and using it” yields:
“The specification shall contain a written description of the invention in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same.”
That is simple enough. The written description must enable how to make and use the invention. That is the requirement.
Adding “and of the manner and process of making and using it” merely emphaisizes that the written desription must include a description of the manner and process of making and using it.
So, in my view, if you have a description of the manner and process of making and using the invention, and if that description is enabling, then the requiement of 112 is satisfied. I honestly don’t understand how anyone could take a different view of the plain meaning of 112.
Malcolm,
Your “laugh worthy comment” is highly subjective, has nothing to do with the thread and is completely “trollish”.
The fact that you think that I am the mistaken one and defend your action as perfectly reasonable only proves my point that opening a dialogue with you is a mistake.
Thankfully, one I can easily rectify.
Enjoy your moths.
NAL “Did you learn ANYTHING from the fabulous diagramming website you posted on the Ariad thread now months ago? … If you had done the actual diagramming, you would not have put forth the crap above as it violates plain English.”
I look forward to the Federal Circuit’s detailed discussion of these “brilliant” diagrams when the opinion publishes.
bc “Do you realize that your post at 6:52 PM failed to address any issue of the thread and was simply an ad hominem attack on NAL’s post”
Do you realize that you are mistaken? I highlighted a particularly laugh-worthy comment for quick reference at a later date.
OK, NAL, only since I owe you one, even though engaging in a dialogue with someone who cannot advance the conversation is rather pointless.
Malcolm,
Do you realize that your post at 6:52 PM failed to address any issue of the thread and was simply an ad hominem attack on NAL’s post (which was actually on point)? Isn’t your behavior exactly the type that you label as “trollish”?
You force me to agree with NAL’s observation that your behavior is rather creepy. Do you really want your pseudonym to evoke images of Jame Gumb?
6 continues with his crap posts and STILL fails to deliver on his homework assignment.
Why, oh why has 6 not posted the sentence diagramming?
Let’s debunk some of the 6 diarrhea above:
“That prepositional phrase doesn’t necessarily modify both clauses” – on what basis, other than because you want it to, do you make this assertion?
There is no rule of proper English making it do so. – C’mon 6 – really? Let me fix this for you: There is no rule of proper English, that 6 understands, making it do so. Thankfully, the English language does not depend on the understanding of 6 to function.
“It may also be represented” – so you are rewriting the rules of the English language in order to reach your desired meaning, Your rendition places a double “of” at [A](ii),
and ignores the comma after the manner and process clause. You do know what a clause is, do you not? It may NOT “also be represented” if you violate English construction to reach that representation.
“the problem in their construction is that it creates two written descriptions and yet insists that both of them be modified by one prepositional phrase.” – No 6, again you misconstrue – use the diagramming techniques to see why. The proper construction has ONLY one written description followed by both “of” clauses. That’s why the prepositional phrase applies as it does – that’s the proper construction.
Did you learn ANYTHING from the fabulous diagramming website you posted on the Ariad thread now months ago? Is that why you waited so long to post a reply, hoping that readers would forget what you said? C’mon 6, did you really do the homework? If you had done the actual diagramming, you would not have put forth the crap above as it violates plain English. Post your homework, follow through on my challenge, and it will be painfully obvious. Stop running away.
“You don’t. Mhhhmmmm that’s what I thought. “ – The root of your problem – your thinking. Again, you thought wrong. They applied the basic rules of the English language. That’s why we went through the diagramming exercise. That’s why you have never revealed the results of your own diagramming work and have merely retreated to your first, “well, if it’s read this way” argument.
“Furthermore, even IF…” – typical 6 acquiescence. This is a non sequitur to the construction argument, and is merely trying to preserve some semblance of “well I was right in this area.” Stick to the discussion point 6. You haven’t made your point on that argument yet.
“This isn’t exactly rocket science or patent law to…” – 6 your persistent ignorance in patent law is what makes you famoose (that’s not a good thing). It is easy to see that your ignorance comes from at least in part your inability to actually grasp the English language. The strength of your persistent ignorance comes from your thinking that your interpretations are infallible. You can’t see that you are wrong, thus you reason that you must be right, even though you end up with logical inconsistencies that you dismiss as “there is no proper rule of English to do X”. You do love preaching when you don’t have a clue as to what you are talking about, don’t you?
Malcolm,
As I recall, you quietly refrained from the challenge I put to 6 to even offer an analysis.
Your continued use of the “troll” reference in light of your own trollish behavior remains as creepy as Buffalo Bill.
NAL: “The simplicity of the question and the direct answer by contextual argument is brilliant.”
Looks like the troll found another “hero”.
We’ll return to the troll’s analysis when the smackdown is published.
“A review of the major revisions of the patent laws – the Patent Acts of
1790, 1793, 1836, and 1870 – does not support a separate written description
requirement as currently interpreted by this Court. 4”
“State a specification in writing, containing a description,
accompanied with drafts or models, and explanations and
models (if the nature of the invention or discovery will
admit of a model) of the thing or things, by him or them
invented or discovered, and described as aforesaid, in the
said patents; which specification shall be so particular,
and said models so exact, as not only to distinguish the
invention or discovery from other things before known
and used, but also to enable a workman or other person
skilled in the art or manufacture, whereof it is a branch,
or wherewith it may be nearest connected, to make,
construct, or use the same,”
Actually that does support it quite nicely. You see we have to have a spec, which contains a description. Not only do we have to have a spec which contains a description (which your application fails to have), but the spec must be in certain terms, terms which you may or may not have, we don’t really care if it does or not since you failed to have a description.
“deliver a written description of his invention,
and of the manner of using, or process of compounding
the same, in such full, clear and exact terms, as to
distinguish the same from all other things before known,
and to enable any person skilled in the art or science, of
which it is a branch, or with which it is most nearly
connected, to make, compound, and use the same.”
That one supports their construction, but then leaves them open to die none the less under the second problem. The problem that they don’t even have a description. That’s a big problem. And that’s the one they’re never going to get around even if they get their construction.
And, that lawl is no longer the lawl. There is a new lawl.
And it’s cause to lawl lawl lawl lawl lawl at their position.
“Under § 112, ¶ 1, the invention is described for a reason, and the
nature of that description would change if the reason were changed. For
example, the description would say one thing if its purpose was to enable a
person of ordinary skill to make and use the invention; something different if
its purpose was to enable a layman to make and use the invention; and
something different again if its purpose was to show why the invention was
novel and non-obvious.”
Would it be something different if it were to TELL US WHAT THE INVENTION IS IN THE FIRST PLACE?
Oh wait, no it wouldn’t.
lolololololololol
lolololololololol
lolololololololol
lolololololololol
lolololololololol
lolololololololol
lolololololololol
lolololololololol
lolololololololol
lolololololololol
It’s like Ariad footed the bill to write me a comic book. And to think, I was putting off reading this because I thought it would be boring.
I can’t stop reading this nonsense, it’s like reading humor. It’s like reading a big comic strip book, page after page of lols.
Their 3 problems with the “alternate” present construction are easily overcome with reference to my first post. Lolable. This is professional work?
Except perhaps:
“the addition of a
comma between the phrases “the manner and process of making and using
it” and “in such . . . terms” is inexplicable.”
…
“No reason exists for inserting a comma immediately
before the [B].”
Actually a reason does exist, and that reason is what is known as proper comma usage. You put one in where you want the reader to take a breath when you want to continue down your train of thought. Maybe if the drafter of this brief had paid attention in 11th grade he would know that.
“Rather, this Court’s written description
cases tend to truncate the statutory language after the phrase “written
description of the invention,” and solely focus on only this one phrase,
ignoring the remaining language in the paragraph.”
That’s because under all the courts, who have bothered with this question’s interpretation, contruction’s it doesn’t matter “what kind of terms” must legally be used (i.e. enabling ones) if you DON’T HAVE ANY TERMS WHAT SO EVER describing the full invention.
Idiots. Jebus. This isn’t exactly rocket science or patent law to put this together. Oh wait, it is patent lawl! You guys fail so hard.
I couldn’t resist that one last shot.
I’m reading their brief.
Funny enough, it looks like they contradict themselves in their second answer on page 2.
“Properly interpreted, the statute requires the
specification to describe (i) what the invention is, and (ii) how
to make and use it. The purpose of this description is to enable
any person skilled in the art to make and use the claimed
invention, and the description suffices if it achieves this
purpose.”
(i) is the “seperate written description requirement” you jackof fs.
All the court need do is say “we agree with Ariad’s brief on page 1” wherein they explain that one must “describe (i) what the invention is”. However we disagree that this is not a “separate written description requirement” and feel that it, specifically, IS the separate written description requirement. “That is to say Ariad did not fully fulfill it’s obligation to describe what the invention is”.
That should pretty well settle the matter, Lilly wins.
This is a great example of where big companies pay people a lot of money to not be persuasive. Or, in the alternative, be persuasive for the other side.
Their prepositional phrase argument fails as well. That prepositional phrase doesn’t necessarily modify both clauses, and the long standing law has been that it doesn’t.
They gonna losezor.
“This interpretation may be represented as follows:
The specification shall contain
[A] a written description
[i] of the invention, and
[ii] of the manner and process of making and using it,
[B] in such full, clear, concise, and exact terms as to
enable any person skilled in the art to which it pertains,
or with which it is most nearly connected, to make and
use the same . . . .”
It may also be represented
An interpretation may also be represented as follows:
The specification shall contain
[A] a written description of
(i) the invention
and
(ii) of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and
use the same . . . .
And unfortunately for them that’s the lawlzor as of this particular moment.
Furthermore, even IF they were to get their way and have the statute interpreted in the other way, the court can simply say that they still didn’t describe the whole invention, in fact they left out ANY terms describing portions of the invention. That is, they don’t even have terms which are “full, clear, concise, and exact terms [so] as to enable any person skilled in the art to which it pertains,” they have no terms, what so ever, describing a portion of the invention.
These guys lose so many different ways it isn’t even funny.
“prepositional phrases are used as modifiers; they modify by relating the object (or
complement) of the preposition to some other word in the sentence.”
Yes, but how do you know it isn’t modifying only the “written description” “of the method and process of making it” under your proposed construction where there are two written descriptions being required?
You don’t.
Mhhhmmmm that’s what I thought.
And that is exactly what the court is going to wonder.
See, the problem in their construction is that it creates two written descriptions and yet insists that both of them be modified by one prepositional phrase.
The thing is, it might, but then again, it might not. There is no rule of proper English making it do so.
I’m through looking over their stuff, they lose too many different ways to even bother with them.
MaxDrei,
Do you think the “want” to have a place for a rule overrides the clear plain reading of the rule?
The case appears deceptively simple, and your question, although meriting thought as to preventing the introduction of new matter, is simply not part of the question as put to the court.
The battle here was won in the act of framing the question. The simplicity of the question and the direct answer by contextual argument is brilliant. Policy considerations are largely mooted, as even an incorrect reading of the law for a good cause is still an incorrect reading of the law.
Those good causes are simply not at issue here and the question of their home is not before the court.
Dear Defame This, Baby!,
Apparently you can’t comprehend English – remarkable!
My friend Lionel you wrote this:
“For the record, you post anonymously. How do I know you are not some shill for the Niro firm or some other disreputable, opportunist dirtbags?”
Asking if I, Jaoi, am a “shill” does not constitute defamation of me. Do you get it now?
Who is even stupider now?
Following the “written description” debate is fun for an EPO person, because there is no “written description” requirement in the EPC that goes beyond a requirement to define in the claims and enable in the specification.
But Europe does have a prohibition on adding subject matter during prosecution.
And the way the 112 “written description” requirement is now being imposed is very like the way the EPO interprets the art 123(2) prohibition on adding matter.
One has to have some way to stop matter being added during prosecution. Agreed? Call it failing to meet the “written description” requirement if you like but, if you kick that Rule off the playing field, what will you put in its place?
Curious:
I can think of the following two examples.
1. Purely functional claim limitations, where the specification describes no structure-function relationship that would allow one of skill in the art to identify what kinds of structures do and don’t perform the recited functions. Such claims are arguably enabled because the claim encompasses no inoperative embodiments, as the functional limitation would exclude any inoperative embodiment. See Lilly.
2. Claims that cover X+Y and X+Z, but the specification suggests that only X+Y, and not X+Z, is part of the invention. Again, the broader claim is enabled, but its inconsistency with the specification casts severe doubt on whether X+Z is part of the invention.
See LizardTech.
Enablement asks whether one of skill in the art can separate operative embodiments from inoperative embodiments without undue experimentation. But this analysis assumes that one can recognize that these embodiments fall within the scope of the claims.
Written description asks a different question. It asks whether one of skill in the art can recognize whether or not a particular structural embodiment is indeed encompassed by the claim.
Furthermore, section 112 p.6 would be meaningless in the absence of a written description requirement. Why even have M+F claims, if there is no written description requirement to prevent the recitation of purely functional claim limitations?
“The real question is this: Is one entitled to recite a purely functional claim limitation without relying on (or articulating) a structure-function relationship that would allow one to identify which structures do and don’t perform the recited function?”
Let’s hope not. Otherwise patenting becomes a big joke.
“Ariad complains that the written description requirement makes it harder for small companies and universities to patent. That’s rings a bit hollow.”
It’s pure horse hockey.
But if you think Ariad is a WATB, just wait until the PTO and the Fed Cir starts applying the written description to software apps like they’ve been applying it to chem/bio apps for many years. You’ll need earplugs for the howling.
“Robert — any thoughts on how a patent application would be deficient if it complied with the enablement requirement but somehow failed to comply with a “written description” requirement? What would it be missing?”
A viable priority date.
Robert — any thoughts on how a patent application would be deficient if it complied with the enablement requirement but somehow failed to comply with a “written description” requirement? What would it be missing?
JAOI writes, “Firstly: I would be careful if I were you of who you libelously defame!
I suggest an immediate apology – you’ll thank me in the morning.”
That would be interesting. An on-screen avatar makes a claim of reputational loss via defamation.
Kind of like that nutjob Roller suing David Copperfield for using his “Godly Powers”, eh?
Except even stupider, that is.
Breadcrumbs:
I’m not sure what you’re getting at. Ariad’s brief implicitly makes two points: (1) there is no separate written description requirement in 112 p.1; and (2) there is no separate written description requirement anywhere in the Patent Act.
Even if Ariad is partly right on the first point, it is squarely wrong on the second. In the Morse case, the Court invalidated the claim because the specification failed to describe the invention. Thus, it is simply wrong to suggest that the “written description” principle originated with Ruschig. Ariad attempts to get around this point by showing that the Court could have reached the same result had it elected to perform an enablement-type analysis. But that’s not what the Court did. Thus, a separate written description requirement existed long before the 1952 Act, and there is no evidence that Congress intended to overturn Morse by virtue of the 1952 Act.
The written description requirement is a lot like utility. We know that there is such a requirement, but it’s not clear where Congress intended for it to reside in the statute. It’s probably best thought of as a hybrid of 112 p.1 and p.2. Equity even seems to play a role: Should you be able to accuse an embodiment of infringement if you were unable to describe that embodiment as of the priority date of your patent? This is often referred to as the “after-arising technology question.”
Ariad has also pulled a bit of sleight of hand in how they have framed the questions. (After all, they lost on the previous round, and had the luxury of initially framing the issue. The CAFC is not bound by their framing, though.) Essentially, Ariad is asking the Court to excise the written description requirement from our patent laws because it is a judicially created doctrine that combines principles of 112 p.1, 112 p.2, and equity. Ariad supposes that the written description requirement can only survive if it can free itself of judicial maxim and find a purely textual home in one and only one of the paragraphs of 35 USC 112. That argument might make sense if Congress had created the 1952 Act ab initio. But Congress was aware of Morse, and showed no intention of overruling it. In fact, the draftsman of the 1952 Act, Judge Rich, penned Ruschig–the very case that Ariad alleges is at odds with the 1952 Act.
I understand the hatred of patent prosecutors toward the written description requirement. It makes them describe what they claim. Further, it forces them to put some elbow grease into fleshing out the metes and bounds of the invention in exchange for the valuable monopoly that the government will confer upon their clients. Ariad complains that the written description requirement makes it harder for small companies and universities to patent. That’s rings a bit hollow. Such companies can’t afford to expend an extra $10k to write a better patent application, but they can spend millions to hire some of the nation’s top litigators in unsuccessful attempts to shake down the likes of Lilly, Amgen, etc.?
Just Visiting,
That’s what I was wondering, except it is not Kevin’s style to bow to cynical postings like that. Kevin will come out straight forward with a position and back up that position. The post was merely proclaiming an end without any support – not in line with any of Kevin’s postings.
“In short, Ariad’s brief fails because it does not explain how the Patent Act can address functional claiming by other means.”
Does it Robert? – Look again at the question before the court. What you want the provision to mean (to achieve the end you want to achieve), is not pertinent to the actual question before the court.
You are arguing a secondary (although powerful) factor. Plain meaning can and should always trump such factors. Ariad’s brief only covers this aspect late, because it was a late historical development.
Perhaps you find the brief unpersuasive because you don’t want to be persuaded. You want a different path than the one being followed.
Ariad’s brief is unpersuasuve. It is hard to discuss the written description requirement without dealing with the Morse case. Ariad doesn’t get around to the case until p. 46.
Under Ariad’s theory, the following claim would have no problems: “I claim a method of treating [Disease X] comprising administering a compound of [Genus Y] to a patient in need thereof, provided the compound of [Genus Y] actually treats [Disease X].” There are no enablement problems; I took care of that with my proviso statement.
The real question is this: Is one entitled to recite a purely functional claim limitation without relying on (or articulating) a structure-function relationship that would allow one to identify which structures do and don’t perform the recited function? The CAFC has dealt with the plague of functional claiming via the written description requirement. But it seems like the Court could reach the same result under the definiteness requirement. Cf. In re Cohn.
In short, Ariad’s brief fails because it does not explain how the Patent Act can address functional claiming by other means.
“Without specifics, this sounds like an empty party line repeat and I have a hard time believing this is your position”
I believe his post is a cynical prediction that may not represent his own position.
OT: I was wondering if it might be possible to run a “peer to patent” typw of website that is run like one of the “consumer complaint” websites.
In particular, I’m thinking about the one that allegedly used ” variety of techniques … — including the use of meta tags and keyword advertising techniques to advertise critical accounts to drive more consumers to those criticism (hence increasing pressure on the criticized companies), deliberately selling advertising to direct competitors of the targeted companies, and then charging exorbitant sums to the targets so that they could buy immunity on the web site message board.”
link to pubcit.typepad.com
Dear Lionel,
Thank you for your comment. You ask me:
“What factual, supportable statement did RJR make in that rant you cited? It seems like a stream of opinion.”
Mr. Riley wrote these facts, facts which no professional IP person could deny – even Cisco General Counsel Mark Chandler would be constrained to admit such:
“As far as I can tell … Frankel … displayed a profound disrespect for the court and the practice of law.
… This is … an issue of misconduct unbecoming an attorney.”
Also, perhaps you missed these excerpts from Business Week posted on the Troll Tracker Defamation … thread:
link to patentlyo.com
link to businessweek.com
“… subject … “patent trolls,” a derogatory term … The “about me” section of the blog noted that the writer [Rick Frenkel] was simply “a patent lawyer trying to gather and organize information about patent litigation.”
—————————————————
… in its pointed commentary, Troll Tracker advanced views squarely in line with the company’s own agenda. Cisco General Counsel Mark Chandler even cited the blog as a good independent source of information while in Washington lobbying for changes to patent law that would rein in trolls, unaware he was plugging the work of a Cisco employee.
Troll Tracker gained repute as a forum for information, not invective. But its more volatile content would eventually combine to blow up the blog and land its creator and Cisco in legal hot water.
… Frenkel and Cisco are now defendants in a pair of defamation lawsuits, and they may be dragged into other litigation.
… But when an employee blogs about company business, anonymity can spell trouble. “I think there’s very much a tendency to be reckless when you’re posting anonymously—and to be more biased than you normally would be,” says Dennis D. Crouch, a law professor at the University of Missouri, who runs Patently-O, the most widely read patent blog.
…After his identity was revealed, Cisco took a path of contrition. In a Mar. 24 post to its corporate blog, Cisco said that even though Frenkel intended his blog to reflect solely his opinion, “Cisco takes responsibility for the content.” The statement concluded: “Blogging and blog policy are evolving areas for many companies. We believe we have learned a valuable lesson from this regrettable situation.”
… the Eastern District of Texas, … Frenkel referred to it in an October item as “the Banana Republic of East Texas,” even as Cisco was defending litigation there.
…”He did a very good job of cloaking himself,” the lawyer says. The search found that the blog was hosted on a Google server in Korea, and that the blogger filled out a profile in which he claimed to be from Afghanistan.
… Cisco in a Mar. 24 blog post chastised some of its employees for “poor judgment,” and outlined a new policy.”
—————————————————
* * * * *
Lionel, my friend, you wrote:
“For the record, you post anonymously. How do I know you are not some shill for the Niro firm or some other disreputable, opportunist dirtbags?”
Firstly: I would be careful if I were you of who you libelously defame!
I suggest an immediate apology – you’ll thank me in the morning.
Secondly: In the interest of Full Disclosure, please be advised that I am exactly who I say I am – no more, no less – patriotic and opinionated, proud and accomplished, yet still a humble “ordinary” inventor.
You only need to read my numerous diatribes to know that to be true. Moreover, I’ve revealed much of my background and experiences, philosophy and principles by which I live, and even some of my habits, many times on Patently-O.
Other than my litigations and bloggings, I prefer a quite, private life.
I post anonymously because I do not want to tie my comments to past, present or possible future litigations, Just as other professionals who post here do not want to tie their comments to past, present or possible future litigations.
After all, the practice of IP is fraught with litigation.
Below is a link to an article you may find of interest,
an article I think we should all heed – which is not to suggest there is anything wrong with anonymous blogging, as long as one doesn’t set out to materially defraud, but, rather, exercises “good Behaviour.”
* * * * *
Lionel, would you agree that attorneys, as Officers of the Court, should be held to a higher standard than the average (ordinary) bear blogger?
link to nytimes.com
Excerpts from this New York Times article:
SOON, BLOGGERS MUST GIVE FULL DISCLOSURE
By TIM ARANGO — Published October 6, 2009
“For nearly three decades, the Federal Trade Commission’s rules regarding the relationships between advertisers and product reviewers and endorsers were deemed adequate. Then came the age of blogging and social media.
On Monday, the F.T.C. said it would revise rules about endorsements and testimonials in advertising that had been in place since 1980. The new regulations are aimed at the rapidly shifting new-media world and how advertisers are using bloggers and social media sites like Facebook and Twitter to pitch their wares.
The F.T.C. said that beginning on Dec. 1, bloggers who review products must disclose any connection with advertisers, including, in most cases, the receipt of free products and whether or not they were paid in any way by advertisers, as occurs frequently. …
For bloggers who review products, this means that the days of an unimpeded flow of giveaways may be over. More broadly, the move suggests that the government is intent on bringing to bear on the Internet the same sorts of regulations that have governed other forms of media, like television or print.
“It crushes the idea that the Internet is separate from the kinds of concerns that have been attached to previous media,” said Clay Shirky, a professor at New York University.
Richard Cleland, assistant director of the division of advertising practices at the F.T.C., said: “We were looking and seeing the significance of social media marketing in the 21st century and we thought it was time to explain the principles of transparency and truth in advertising and apply them to social media marketing.”
“Why would 1) even be a goal? This type of argument is often a presumed premise of the weak and anti-patent crowds.”
Probably because he works in Bio and understands that simply granting a patent on a whole genus, when such hasn’t even been nearly well described, is a good thing, or the intention of the congress.
“or some other disreputable, opportunist dirtbags?”
Be clear Lionel, he’s a shill for himself, so this last part probably applies.
“Where’s your contextual argument? Have you given up? so quiet…”
As it happens it is sitting right here beside me. I’ll put it in front of the door.
“anon, that is because cases slated for reversal take longer to process.
appeal HOOOOOO”
lol
JAOI,
I really have said all that I wanted to say about my position and normally would not feed your desire, but I post to say one thing.
What factual, supportable statement did RJR make in that rant you cited? It seems like a stream of opinion.
Regardless, Mr. Rile has every right to post his beliefs openly or anonymously.
For the record, you post anonymously. How do I know you are not some shill for the Niro firm or some other disreputable, opportunist dirtbags?
bread,
It’s an obvious hi-jack.
6,
Where’s your contextual argument? Have you given up? so quiet…
Kevin, please add more detail to your 3:23 PM post, specifically regarding
1) limits/reduces patenting and
2) is supported by specific language in the statute.
Without specifics, this sounds like an empty party line repeat and I have a hard time believing this is your position (it does not seem to fall to your character).
Why would 1) even be a goal? This type of argument is often a presumed premise of the weak and anti-patent crowds.
The Ariad Brief disposes 2) rather directly. Are you referencing some other statute? Which one?
From Forest Group v. Bon Tool, “…with the potential problem of “marking trolls” — suggesting that Matthew Pequignot (an amicus in this case) is “pretty close to that.” ”
DC, I thought the amicus was from Heltko, not Pequinot?
You’re hearsay defaming the wrong troll!
link to patentdocs.org
Woohoo
Just received this from the PTO via e-mail:
* USPTO Rescinds Controversial Patent Regulations Package Proposed by Previous Administration
USPTO Rescinds Controversial Patent Regulations Package Proposed by Previous Administration
Agency Files Joint Motion with Plaintiff GlaxoSmithKline to Dismiss Lawsuit Related to Regulations Affecting the Ability to Secure Patent Protection for Inventions
Under Secretary of Commerce for Intellectual Property and Director of the USPTO David Kappos has signed a new Final Rule rescinding highly controversial regulations, proposed by the previous administration, that patent applicants felt unduly restricted their capacity to protect intellectual property. The regulations, which addressed the number of continuation applications as well as the number of claims that could be included within each application, were published in the Federal Register in August 2007, but were enjoined and never came into effect.
The USPTO also announced that it will file a motion to dismiss and vacate the federal district-court decision in a lawsuit filed against the USPTO that sought to prevent the rules from taking effect. GlaxoSmithKline – one of two plaintiffs in the Tafas v. Kappos lawsuit – will join the USPTO’s motion for dismissal and vacatur.
“The USPTO should incentivize innovation, develop rules that are responsive to its applicants’ needs and help bring their products and services to market,” Kappos said. “These regulations have been highly unpopular from the outset and were not well received by the applicant community. In taking the actions we are announcing today, we hope to engage the applicant community more effectively on improvements that will help make the USPTO more efficient, responsive, and transparent to the public.”
“We are grateful to GlaxoSmithKline for working with us to file this joint motion to both dismiss the appeal and vacate the district court’s decision. This course of action represents the most efficient way to formally and permanently move on from these regulations and work with the IP community on new ways to take on the challenges these regulations were originally designed to address.”
Dear Max and CD:
The interpretation of a separate written description requirement limits/reduces patenting and is supported by specific language in the statute. For both these reasons, should the CAFC overturn this line of precedent, the Supreme Court will re-establish it.
“Board of Patent Appeals II: Despite the backlog, the Board reports an average pendency of only 7.7 months (calculated from assignment of appeal number to decision date)”
Which is not a problem at all when it takes a year or two to assign an appeal number.
Here’s a Bit, or a Byte. The PTO has foisted its beta webpage on us all. When it loads at all. And the link to PAIR doesn’t work. Every 11 months they seem to believe it is important to spend money rearranging the locations of the links we use. Where was that thread regarding the IT infrastructure? Quit spending money on webpage redesigns and buy a few more servers.
Anyone aware of any recent SD. Illinois cases denying dismissal or transfer based on personal jurisdiction?
“Despite the backlog, the Board reports an average pendency of only 7.7 months (calculated from assignment of appeal number to decision date).”
If you repeat the lie long enough, people will believe it.
A year-by-year graph comparing the number of BPAI “judges” with the number of applications filed over the past 20-30 years would be useful and enlightening, Dennis.
David,
A textual discussion on 112 paragraph 1 has been entertained on these boards previously. See link to patentlyo.com
Certain famoose examiners will (eventually?) post their construction of the paragraph to educate us all.
Very nice brief by Ariad!
I predict the en banc court will eliminate the separate written description requirement from s. 112, para. 1.
Written description will be returned to its original purpose: policing priority.
Dear Lionel,
I missed the comment below found on the link below – perhaps you did also.
I’d very much appreciate reading your views regarding Mr. Riley’s thoughts.
Mr. Riley writes far more elegantly than me.
Mr. Riley wrote:
* * * * *
link to patentlyo.com
I find the assertion that Joe Mullin has picked up where Rick Frankel left off, perhaps with some anonymous help very interesting and I am looking forward to learning much more about this.
Who believes that Cisco had nothing to do with this?
Was Rick Frankel commenting on behalf of Cisco and they both were irresponsible or were his actions on his own and just simply incredibly stupid? Either way it is not a pretty picture.
In light of this Frankel is not a poster child for First Amendment rights and if he was I would be defending his rights. As far as I can tell Cisco and Frankel perpetuated a huge fraud on the public and displayed a profound disrespect for the court and the practice of law.
It is a fact that attorneys must give up some of their First Amendment rights when representing a client. This is not a First Amendment issue. It is an issue of misconduct unbecoming an attorney.
The only thing amazing about Joe Mullin is how biased his coverage is. He either knows or should know that that patent enforcement entities only exist because large corporations are stealing untold billions of dollars worth of others patented inventions. They have been doing this for a very long time and it has only been in recent times that they are being held accountable.
One last point, the Obama administration is systematically alienating commercially successful inventors by backing the agenda of patent thieves. Inventors who survive big corporations trial by fire have become much more active politically. Most of this is behind the scenes. They are incredibly tenacious and have memories like an elephant.
There is no way that the Coalition for Patent Fairness (aka. Piracy Coalition) can give their political allies enough cover to avoid the consequences of their actions.
Ronald J. Riley,
President – http://www.PIAUSA.org – RJR act PIAUSA.org
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 – 9 am to 8 pm EST.
Posted by: Ronald J Riley | Sep 27, 2009 at 09:18 PM
* * * * *
Mr. Riley,
I think I can speak for the majority of Patently-O readers in saying:
Thanks for your enlightenment.
Posted by: Just an ordinary inventor™ to Lionel | Oct 08, 2009 at 11:22 AM
Mr Jaglowski, I like your offering but I think it suffers by not reminding us of the sense that the description must “enable”.
In other words, in what sense “enable”.
When I read the Statute I find that the sense is “enable…..to make and use the same”.
So, looping back to your (a) and (b), I find that the written description of “making and using” must enable….wait for it…. making and using, while the written description of “the invention” must enable the selfsame making and using, of the same invention.
Where’s the sense in that, pray?
anon : The BPAI is being, shall we say, “creative” with its numbers. For example, I (an examiner) have had a case up on appeal that was docketed early December 2008 (about 10 months pending so far).
anon, that is because cases slated for reversal take longer to process.
appeal HOOOOOO
The SUV and gas example does not have the same grammatical structure as the statute.
The statute reads:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable…
Those pesky commas in “,and of the manner and process of making and using it,” indicate that the preposition “in” and the prepositional phrase “in such full clear, concise and exact terms as to enable…” refer to both “a written description of the invention” and “the manner and process of making and using [the invention].”
The grammatical structure in the SUV and gas example is ambiguous, and would provide greater support for arguments that there is a separate written description requirement if the actual statute had been written in that form. For example, in
The specification shall contain a written description of the invention and of the manner and process of making and using it in such full, clear, concise, and exact terms as to enable…
the preposition and prepositional phrase could refer to the written description of the invention, or to the written description of the manner and process, or to both. But the actual statute avoids this ambiguity. An equivalent expression of the actual statute is (I’m arguing):
(a) The specification shall contain a written description of the invention in such full, clear, concise, and exact terms as to enable…
(b) The specification shall also contain a written description of the manner and process of making and using the invention in such full, clear, concise, and exact terms as to enable…
The issue is the meaning of “subsection (a).” You are free to argue that there is nothing equivalent to “(a)” in the actual statute, and you are free to argue that “(a)” does not express the only standard applicable to the written description requirement, but you are not free to (I’m assuming inadvertantly and innocently) alter the grammatical structure of the statute when rebutting a textual argument.
Thanks anon.
“The examiners could help them out by allowing cases that should be allowed instead of insisting on cockamamie claim interpretations and absurd applications of the obviousness standard just to be able to reject.”
Agreed. But appeals make up only a very small portion of my (and I assume any other individual Examiner’s) overall docket. FWIW, Fleming (head APJ at BPAI) has said the main reason for the exploding backlog is not really more rejections by *individual* examiners, but rather just more rejections by a greater *total number* of Examiners – i.e. with the PTO hiring 000’s of Examiners over the past couple of years and the Board not keeping up with its own hiring of enough APJs to adequately handle the growing backlog , then the more (total) rejections from the 000’s of added examiners result in more (total) appeals. I guess that makes sense, but I’m not sure what the solution will be given the current hiring freeze at the PTO.
anon, I agree that BPAI is fudging the numbers to hide Everest, but the examiners could help them out by allowing cases that should be allowed instead of insisting on cockamamie claim interpretations and absurd applications of the obviousness standard just to be able to reject
“If there are 12K appeals pending and only 7K disposed of in FY2009, then the backlog has to be way over a year.”
The BPAI is being, shall we say, “creative” with its numbers. For example, I (an examiner) have had a case up on appeal that was docketed early December 2008 (about 10 months pending so far). Yet if you look at the daily opinions coming out, you’ll see some appeals *in my same art unit* that were docketed in April, May, June of 2009 (i.e. with only 4, 5, or 6 months pending before decision). Obviously, if you pick-and-choose later-docketed cases and render those opinions earlier than you can alter the “average” pendency numbers a good deal. The numbers also don’t reflect the “black hole” where appeals go in transition from Examiner’s Answer/Reply Brief (if there is one) to actual docketing. That time frame can be months by itself, that is before the appeal is actually “docketed” at the BPAI and receives an docketing/appeal number. They also have gotten really good at bouncing a number of appeals back down to the Examiner for what seems like trivial, arbitrary matters, thus delaying the docketing of those appeals and again skewing the numbers to hide the Everest-like mountain they are currently buried under.
I just want to say one thing about the textual argument in the brief.
A statute reading “Everyone shall buy an SUV and gas, in such quality so as to permit them to travel to Phoenix” would not be satisfied by buying a *car* and gas, even if that car would permit travelling to Phoenix. “Written description” has to mean something.
The BOPAI numbers do not make sense. If there are 12K appeals pending and only 7K disposed of in FY2009, then the backlog has to be way over a year.
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