Florist-Inventor Stuck With Admissions Made During Deposition and Loses on Summary Judgment

Delaware Valley Floral Group v. Shaw Rose Nets (Fed. Cir. 2010)

Shaw’s Patent No. 5,765,305 covers a process for producing larger rose heads by placing an elastic netting around the head during growth. The netting reduces the light and heat felt by the petals and therefore conditions them to continue growing for a longer time before opening. The netting has become ubiquitous. On summary judgment, the district court held the patent invalid under the on-sale bar of 35 U.S.C. § 102(b).

Changing Testimony: In a deposition, Shaw stated that he invented and began selling modified roses in 1994. However, Shaw submitted a declaration to the court indicating that he had misspoken at the deposition and the actual invention date was in 1995. This difference was important because the 1994 sales date was more than one-year before the application filing date. The district court, however, refused allow Shaw to modify his prior statement and instead awarded summary judgment of invalidity based on the admission of the 1994 date. On appeal, the Federal Circuit affirmed – holding that the district court had properly refused to allow Shaw to create a disputed material fact. (FRCP 30(e) provides a 30-day window for reviewing the deposition statements, but Shaw did not challenge his own statements until after that deadline had passed.)

Waiver: The perhaps more interesting issue on appeal involves implicit waiver of argument. During the district court proceedings, the parties never directly argued whether the invention was “ready for patenting” by the 1994 date. Shaw admitted that by then he had “ironed out all the wrinkles” but on appeal argued that even then the process was not ready for patenting. Based on the “subtle” and admittedly indirect discussion of the issue, Federal Circuit held that Shaw had waived his right to appeal on the “ready for patenting” issue.

At oral argument on appeal, when questioned about whether Shaw waived this argument, counsel’s response was that the argument was “subtly” raised at oral argument before the district court even though it was not the subject of any heading in its brief, and he did not believe the words “ready for patenting” were used. Oral Argument 6:47-7:24, http://oralarguments.cafc.uscourts.gov/mp3/2009-1357.mp3. We conclude that Shaw failed to contest whether the invention was ready for patenting below and that argument is therefore waived.

Summary Judgment of Invalidity Affirmed

75 thoughts on “Florist-Inventor Stuck With Admissions Made During Deposition and Loses on Summary Judgment

  1. The netting reduces the light and heat felt by the petals and therefore conditions them to continue growing for a longer time before opening. The netting has become ubiquitous.

  2. For puzzles like that, it’s a matter of seeing the answer. The first time I did it, I believe it took me longer than 45 sec., but I can totally see someone getting it in ten seconds. It’s a simple reversal. photo frame
    Digital Picture Frames
    Mobile Digital Photo Frame
    digital frame I have done a number of similar puzzles and for some the answer jumps out at me and for others I sit there and work at it until it comes to me and I eventually have the slap my forehead moment.

  3. Going back to JAOI’s puzzle,

    For puzzles like that, it’s a matter of seeing the answer. The first time I did it, I believe it took me longer than 45 sec., but I can totally see someone getting it in ten seconds. It’s a simple reversal. I have done a number of similar puzzles and for some the answer jumps out at me and for others I sit there and work at it until it comes to me and I eventually have the slap my forehead moment.

  4. 6,

    Another point,

    You could not visualize a 3 dimensional surface as it would cover a 4 dimensional object.

    Math was never your strong suit, was it?

  5. 6,

    Please go back and take high school geometry. I am not one to pile on normally, but you really do not understand. A surface of a three dimensional object is two dimensional. End of story. If you do not understand it, please reflect until you do understand it before posting again.

  6. the automatic space elimination tool is heck on graphics (but onyl the first level of heck)

    Step 3 (dbot = down below (v) and over the top(v) of the donut)

    ———————————————–
    …………..\
    ……………v
    House 1 – - – House 2- – - House3

    Water – - – - – Electric – - – - Gas
    \
    ….v
    ———————————————–

    IANAE is a genius!

  7. My paper mache model is done and so is 6.

    Step 1:

    electic lines to each house
    Water to house 1 and house 3 (ducking “under” E node)
    Gas to house 3 and house 2 (curling above house 3)
    ———————————————–

    House 1 – - – House 2- – - House3

    W1 E1 E2 E3 W3 G3 G2

    Water – - – - Electric – - – - Gas

    ———————————————–

    There are two remaining lines

    Gas to house 1 and Water to house 2.

    The torus triumphs:

    Step 2 –(aed = around the edge of the donut)–>

    ———————————————–

    –(aed)–>House 1 – - – House 2- – - House3

    Water – - – - – Electric – - – - Gas–(aed)–>

    ———————————————–

    Step 3 (dbot = down below (v) and over the top(v) of the donut)

    ———————————————–
    \
    v
    House 1 – - – House 2- – - House3

    Water – - – - – Electric – - – - Gas
    \
    v
    ———————————————–

    IANAE is a genius!

  8. This is the first day of spring. In London it was a really lovely warm sunny day. So I missed your argument. Anyway, it it Sunday and I am not paid to argue on Sunday.

  9. 6 must have been passed out when I explained to him that the curvature of space superseded his beloved Euler, which is based on an orthogonal projection from the world is flat view.

    “Surface” is only 2D to the ultra thin skinned people. That’s the beauty of it all.

  10. Truly a mind-warping and explosive mixture: 6, IANAE, normal reality and arbitrary.

    Children, do not try this at any playground near you.

  11. Math fight Math fight

    Hike up your suspenders and get out your pocket protectors – we have a full blown fisticuff battle for the penchant perversity lying logic coveted crown. Like a bad “3-D” movie, witnesses to this spectacle must wear the appropriate head gear (and no, it is not lasers – such is appropriate headgear only for sharks): Head gear available from Mike Wage at link to pnas.org or not.

    Featuring the logic of End of Story: 6 against the logic of If Nothing Else: IANAE

    The battle is enjoined in the middle of the road and so far no one has crossed to the winner’s torus. The ultimate battle of playing dumb is underway.

    The gathering crowd is hereby forewarned to watch out for that Cardoza character and his tort train – not only for your immediate safety (see what happened to the chicken), we wouldn’t want the chimp cargo let loose. Our decorum demands suitable sublimity.

  12. Here’s a link that will help you visualize what is happening when they make the general purpose torus.

    Here is making a general purpose sphere:

    link to en.wikipedia.org

    just look down the page. Then click on n-sphere.

    link to en.wikipedia.org

    The “2d” general sphere is actually a 3d sphere in our normal reality. That is simply an arbitrary designation of dimensions that makes it 2d.

    Next time yall come in with jokes like 1d curves being at all relevant to the topic, at least preface it with: this is irrelevant information to the topic but I’m posting it anyway. LOLOL.

  13. “6,

    Please note the definition you quoted.

    “In geometry, a torus (pl. tori) is a SURFACE of revolution generated by revolving a circle in three dimensional space about an axis coplanar with the circle.” – emphasis added.

    Ergo, it’s 2D. The surface of a sphere is 2D as well. Both exist in a three-dimensional space, but both are 2D”

    It’s a 3d surface. End of story. If you say otherwise you clearly are not looking at what one is. Btw, a “surface of revolution” isn’t exactly the same thing as a normal “surface”. It’s a term of art. Look it up.

    “surface of a sphere is 2D as well.”

    LOL. Not in our reality bub.

    “Just like a curve is one-dimensional even though it may be generated by moving a point in two or more dimensions.”

    A curve is 1d? LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL

    the jokes just keep on flowin’ from you mathtarded folks.

    You guys need to start at the beginning. Go to your local library and request “Flatland”. When you have each completed a factual 3 page report on the nature of dimensions I will continue to talk to you.

    “I guess you didn’t keep on reading that wikipedia page you linked. “The torus discussed above is the 2-dimensional torus. The 1-dimensional torus is just the circle. The 3-dimensional torus is rather difficult to visualize.”

    Rather disappointing, from the guy who wrote on 12:01 Tuesday “I’m the one who bothered with Physics beyond 101 in college, not you. I will outmatch you at this game of “modern physics demands x” every single time. Don’t even bother.”"

    That is where you are using an arbitrary designation of what a “dimension” is to describe the “n-dimensional torus” in a generalization of what a torus is (as opposed to what it actually is).

    “Recalling that the torus is the product space of two circles,” <—– you need to recall that to know what a torus actually is.

    This “general purpose torus” is used in so far as you are creating a special general purpose torus (as opposed to the one which you want to use for the game) accounting for how many circles must be used to describe the product that describes the torus. This is used to study the form of the torus in multiple dimensions. I know, I know, it’s a lot to take in at once, but try reading in context and starting at the beginning. And seriously Flatland will help you out. A lot. Beginners need to start at the beginning. Not in the middle of thesis work that is far above their heads describing things they don’t even come close to understanding.

    I know, I know, this is all rather impressive for the person who told poor Lester Jester that I’d pwn his face far into the future regarding similar matters. And I still do and will. What say let’s add your face to my collection of faces which I am sole proprietor of?

    In any event, until we have outright ownership discussions about the situation of your face, let’s let JAOI judge his contest thx.

  14. I have thought about what you have said, Ping, and would prefer to stick to the chicken example. Partially crossing is not enough – this chicken never gets to the other side.

  15. The chicken has succeeded in at least partially crossing the road.

    partially crossing – is that like a little pregnant?

  16. “In geometry, a torus (pl. tori) is a surface of revolution generated by revolving a circle in three dimensional space about an axis coplanar with the circle.”

    So what? It’s still a two-dimensional surface. Just like a curve is one-dimensional even though it may be generated by moving a point in two or more dimensions. Don’t play dumb with me.

    Just what kind of torus are you talking about that is 2d? Are we using polar coordinates or something?

    I guess you didn’t keep on reading that wikipedia page you linked. “The torus discussed above is the 2-dimensional torus. The 1-dimensional torus is just the circle. The 3-dimensional torus is rather difficult to visualize.”

    Rather disappointing, from the guy who wrote on 12:01 Tuesday “I’m the one who bothered with Physics beyond 101 in college, not you. I will outmatch you at this game of “modern physics demands x” every single time. Don’t even bother.”

  17. 6,

    Please note the definition you quoted.

    “In geometry, a torus (pl. tori) is a SURFACE of revolution generated by revolving a circle in three dimensional space about an axis coplanar with the circle.” – emphasis added.

    Ergo, it’s 2D. The surface of a sphere is 2D as well. Both exist in a three-dimensional space, but both are 2D

  18. before you cry fowl, train conductor Cardoza does regret hitting the chicken, crosses himself in its memory and successfully delivers his cargo.

  19. A chicken stands on one side of a road.

    Something pecks his interest (we don’t know what, or even why), and he decides that he wants to cross the road.

    On his way over, a run away train, way off track, barrels through on its way to the zoo with a cargo full of
    chimps.

    The train obliterates the chicken.

    Was the chicken successful in crossing the road, or do teh malcolmy remains of the chicken laying atop the road count as crossing?

  20. That’s crossing in a manner of speaking tho

    In an incorrect manner.

    The letter T is a cross for instance.

    No, it’s not.

    When they intersect, that’s when they cross.

    Well that clears it up.

  21. “One utility could run on top of another without crossing. ”

    That’s crossing in a manner of speaking tho :( I already thought about that. The puzzle isn’t really a puzzle (save for a kindergartener) if you do that.

    “Stacked connections do not cross. ”

    In a manner of speaking they do.

    5. A mark or pattern formed by the intersection of two lines, especially such a mark (X) used as a signature.

    5. To place crosswise one over the other:

    1. To lie or pass across each other; intersect.

    The letter T is a cross for instance. Even though the bottom line never goes through the top. When they intersect, that’s when they cross. Your lines that go one on top of another cross from the top down perspective used in the puzzle.

  22. If this was set as a three utilities puzzle, then brief study on the web shows that it has no planar solution, only a toroidal solution. I think, 6, that a brief reference to relevant web pages establishes that.

    However real houses and real utilities have more latitude than simple geometry. There is no limitation that everything has to be in a single plane. One utility could run on top of another without crossing. In fact, for compactness all the utilities can have part of their runs one on top of another. There is nothing in the wording of the puzzle that says that they can’t simply that they do not cross. Stacked connections do not cross. So we can evade the limitations of the three utilities puzzle by using a single U-shaped connection that goes water-electric-gas-house 3-house 2-house 1.

    Of course the problem could have been written to prohibit that. But it was not. And we are skilled at dealing with words and not being confined by unstated limitations.

    Euler, of course, had no identity. But we will cross that bridge when we come to it.

  23. “Technically the problem doesn’t even specify 2D, but more importantly a torus is a two-dimensional surface and could pretty easily be fashioned out of paper.”

    Lol wut?

    “In geometry, a torus (pl. tori) is a surface of revolution generated by revolving a circle in three dimensional space about an axis coplanar with the circle.”

    link to en.wikipedia.org

    Just what kind of torus are you talking about that is 2d? Are we using polar coordinates or something?

    I’m tired of discussing your nonsensical solution until you post it. Go ahead, it’ll take 2 minutes in paint.

  24. This thread is proof that the Supremes are taking too long with the Bilski opinion.

    Maybe they needed a bathroom break, but it was too complicated to figure out when the bathroom was available and coordinate which of the nine judges would go next, and they got confused.

    Someone really needs to get on that problem and come up with a useful solution.

  25. The paper situation. I.e. the 2d planar situation.

    Is that how you examine claims? Paper only means 2D Euclidean planar sheets of paper?

    Technically the problem doesn’t even specify 2D, but more importantly a torus is a two-dimensional surface and could pretty easily be fashioned out of paper.

    Go ahead, explain/show your paper mache torus scheme in some specific arrangement that satisfies the puzzle to you.

    It’s not complicated at all. Put the six nodes on a torus and connect them up. If you don’t have a torus handy, grab a roll of masking tape.

  26. “but you’ll also note they’re not usually confined to a common two-dimensional plane.”

    They are in this game. Which is, after all, impliedly on paper or your flat screen.

    “The problem asks you to find a way to connect them (impliedly on paper), not identify a narrow situation that makes it impossible.”

    That “narrow situation” is the one you just stated was implied. The paper situation. I.e. the 2d planar situation.

    I’ve identified the only realistic situation in which the question was posed and proved it an impossible task. You insist there are plenty of situations where it is possible but have yet to provide a particular one. Much less provide one that in any way jives realistically with the game as presented. Go ahead, explain/show your paper mache torus scheme in some specific arrangement that satisfies the puzzle to you. We’ll let JAOI be the judge of his own contest.

    I need to go to the gym to become sexay, don’t keep us waiting for your bs solution. If you don’t have one then just say so. If you would like more time then say so.

    Oh and btw: Sir, (a+b^n)/z = x, hence God exists — Reply! I love reading about the old mathematicians lol. They’re so funny.

  27. I was unaware that houses and sewer/water/electrical lines existed in/on a torus.

    They don’t usually, but you’ll also note they’re not usually confined to a common two-dimensional plane. It’s hard to get much water pressure out of a two-dimensional main.

    The problem asks you to find a way to connect them (impliedly on paper), not identify a narrow situation that makes it impossible.

  28. I was unaware that houses and sewer/water/electrical lines existed in/on a torus.

    However, if you so insist that they do, and can provide justification for such insistance, then be my guest and post your solution.

    You will not escape my victory into other coordinate systems anytime soon, sore loser. Of course I already considered going 3+d with the lines and putting some lines on top of each other “without crossing” in the up/down dimension but instead being right on top of each other, or out into the other dimension. But that doesn’t really fit with the reasonable interpretation of the givens. Broad interpretation or not. Also, the problem with going to other coordinate systems etc. is that when you convert your actions in those systems back into what would actually happen on the drawing provided you’ve crossed. You are in fact forever limited to the planar geometry by the presentation of the problem.

    “Who says you cannot have a common line along which the three utilities run? ”

    The problem itself.

    “Who was this Euler person?”

    link to en.wikipedia.org

    He was the master of mathematicians.

    “Read Euler, read Euler, he is the master of us all”

  29. I think you simply connect water, electric and gas along a common line and run that common line to one house after another, optionally with spurs to each house.

    Who says you cannot have a common line along which the three utilities run? If our public utilities in the UK coordinated in that way, we would have less road works and better traffic flow.

    But it is just a suggestion of course. If you cannot solve a problem within the rules, see if you can re-interpret the rules.

    Who was this Euler person?

  30. IANAE, I never said that “these three things can’t be connected to those three things”.

    I know. I said you never said that.

    And that is sufficient to answer the puzzle.

    Except that it’s not. Because the puzzle was not posed for a Euclidean planar geometry. It was posed generally. If you have a papier maché torus, for example, the problem becomes quite trivial.

  31. IANAE, I never said that “these three things can’t be connected to those three things”. What I showed was that those three things couldn’t be connected to those other three things in a planar geometry (as is dictated by his “without crossing one line over another line” limitation) because such a figure cannot exist. And that is sufficient to answer the puzzle.

    That is to say that “K3,3 is not planar” is the same thing as “those three things couldn’t be connected to those other three things in a planar geometry (as is presumed by his “without crossing one line over another line” limitation) because such a figure cannot exist” and I just got through explaining to you why up above. The shape which we are trying to construct cannot be made, that is, a planar shape with 6 vertices and 9 edges cannot have 5 faces as would be dictated if there was a solution to the puzzle.

    JAOI I’ll see about your project, but I can’t be involved as an inventor I doubt, else we’ll have a heck of a time trying to file. However, in any event I do have an invention which you might like to be the first to constructively reduce to practice under my instruction and file on in your own name.

  32. JAOI,

    Since paper can be bent into a non-planar arrangement, hasn’t IANAE provided the solution by pointing out that to solve the problem involves going beyond the planar limitation?

  33. Dear IANAE,

    I’m guessing that Mr. 6 provided proof that there was no solution.

    If you find a solution, my offer is still open.

    Good luck.

  34. Jaoi, the solution is that the puzzle has no solution.

    There actually is a solution, with only pen and paper. The reason 6 didn’t find it is because he limited himself to Euclidean geometry instead of using the broadest reasonable interpretation.

    For you fans of logic out there, 6′s actual stated conclusion was “K3,3 is not planar”, which isn’t the same thing as “these three things can’t be connected to those three things”.

    Dunno about you, JAOI, but I consider the problem still open and the offer to go halfsies on the patent still good.

  35. Does one obtain a patent for an invention, or does one obtain a patent for the disclosure of the invention?

    One obtains a patent for one or more claims.

    Ok, a patent is obtained for claims.
    Claims are at the end of the specification.
    The specification is the heart of the application
    The application is the disclosure of the invention.

    American Cowboy – sell to your hearts content, just make sure your claims are different than what you sell (if you are going to wait a year or more to file).

    You might want your claims to be non-obvious and novel to what you sell too. No point in being your own worst enemy.

  36. Dear Number Six, Phd,

    You impress the hell out of me!

    Let’s hear it for No. 6 –
    hiphipwhorah!,
    hiphipwhorah!,
    hiphipwhorah!

    Who are you?, so wise in the ways of Euler.

    Your mathematical knowledge certainly exceeds my own.
    I knew there was no solution to the puzzle. I’ve wondered for decades what the proof was — although I didn’t wonder enough to do any serious research or ask a mathematician.

    Thank you so much for the proof which I will study at leisure while sipping Early Times Manhattan’s.

    Prior to posting I thought about what prize the winner would be entitled to if he said what you did:

    “Jaoi, the solution is that the puzzle has no solution.”

    I hope you won’t think it too weasel-ly of me to argue that “no solution” is not equal to a “solution”, but rather is the antithesis, and I hope you won’t think my third puzzle was a facetious posting.

    However, I would like to work with you on a future invention of mine if I should be so blessed. If this is reasonable to you, please stay in touch.

  37. Whoa, the filter has eaten my post – must not of liked my reference to nu_de patents (or at least to metaphysical nu_dity).

    I was commenting with surprise that it seems that IANAE of all people did not like word games.

    I offer for your consideration:

    35 U.S.C. 101 Inventions patentable.

    Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

    If we have an invention that violates 101, is that invention ever ready for patenting? Oh the conundrum – does this speak against a supposition that an invention, merely by being an invention is an invention ready for patenting? If we try to make “an invention ready for patenting” be the same as “an invention”, what are we to do with the surplusage (aren’t we supposed to not like surplusage?)

    Perhaps there is something to this “ready for patenting” in that the conditions and requirements of this title are subject?

  38. This ain’t word games, it’s hard-core lawyering.

    Is that what you think “hard-core lawyering” is? Arguing that “the invention is ready for patenting” means “the application has been drafted and the declaration has been signed”? That sort of thing might work on Ally McBeal or with NAL when that interpretation suits her, but real lawyers know better.

    Why all the numbers games?

    That would be hard-core inventoring.

  39. Why all the word games? This ain’t word games, it’s hard-core lawyering. Remember that even teh president of the United States doesn’t always know what the meaning of “is” is.

    Why all the numbers games?

  40. Jaoi, the solution is that the puzzle has no solution.

    The proof will not be at all difficult and for which we will use Euler’s beautiful formula for planar graphs:

    F – E + V = 2,

    where V is the number of nodes, or vertices (6 in K3,3), E is the number of edges (9), and F is the number of faces – regions bounded by edges that form a closed path, or walk, with no nodes in their interior. A planar graph with a finite number of nodes may always be embedded into a bounded portion of the plane. By convention then, Euler’s formula also accounts for the ever present single unbounded face.

    Let us use the customary notation for the graph which will be K3,3

    Let Fi denote the number of faces bounded by exactly I edges. (A single edge if it connects a node with itself bounds a face. The number of such faces is F1. Two edges that connect the same nodes also form a face. F2 denotes the number of 2-sided faces. Etc. We may assume that there are no double edges; for, their presence does not affect planarity of the graph.) The fact that each edge is included as part of the boundary of exactly two faces leads to the following formula

    2E = F1 + 2F2 + 3F3 + 4F4 + …

    For any bipartite graph,

    F1 = 0 as there are no loops.
    F2 = 0 because no two nodes are connected by 2 edges (by the convention we made).
    F3 = 0. For, a 3-sided face would have one side that connects 2 nodes of the same triple of nodes in contradiction with the definition.
    Fi = 0, for any odd I (as above.)
    Thus we get

    2E = 4F4 + 6F6 + 8F8 + 10F10 + …

    which must also hold for K3,3 if we assume it is planar. But, for K3,3, V = 6 and E = 9. From Euler’s formula it then would follow that F = 2 – V + E = 2 – 6 + 9 = 5. Now,

    F = F1 + F2 + F3 + …
    (or F = F4 + F6 + F8 + … for K3,3. Check, though, that F8 = F10 = … = 0).

    Hence

    18 = 2E = 4F4 + 6F6 + 8F8 + 10F10 + … > 20

    The latter is obviously nonsense. We must conclude therefore that K3,3 is not planar.

    However, if you provide me with a bulldozer and allow me to push two of the houses together then I have the solution also.

    I win. Now which patent are we talking about?

  41. If you have an invention, but have not written the claims to that invention, what exactly is ready for patenting?

    The invention is ready for patenting. The application clearly is not, unless you’re filing a provisional.

    Does one obtain a patent for an invention, or does one obtain a patent for the disclosure of the invention?

    One obtains a patent for one or more claims.

    Why all the word games? The test is whether the invention is ready for patenting, i.e. whether the invention is developed to the point that a patent application could be drafted and filed that discloses that invention in compliance with 112.

  42. I think I favour an obligation to disclose the second best mode.

    The obligation to disclose the second most important prior art reference which gives the second best obviousness attack is equally important. Why should the Examiner be denied second rate prior art?

    The penalty for non-compliance should of course be unenforceability of the patent, payment by the patentee of triple costs to the defendant, and lifetime incarceration of the responsible attorneys.

    Or has a sense of proportion been lost somewhere along the way>

  43. The on-sale bar really needs to go, along with best mode, and any obligation to disclose. It’s silly, the amount of hoops we have to jump through.

  44. “An invention can be ready for patenting even if you have yet to engage a patent agent to draft the spec or prepare the declaration for signature.”

    (invention in the metaphysical buff) IANAE – you need to bring this to the other thread, quoting that judge who once upon a time said something about a tort waiting to happen at the train station (no less – oh the irony).

    If you have an invention, but have not written the claims to that invention, what exactly is ready for patenting? Does one obtain a patent for an invention, or does one obtain a patent for the disclosure of the invention? Ah, the mental gymnastics we must undertake in our pedantic penchants for perversion (shamelessly stolen – so sue me).

  45. Puzzle #3 – the first winner to post the solution gets a serious prize – the chance to be 50/50 owner of a valuable patent:

    Draw a line from Water, Electric and Gas to each House without crossing one line over another line (Hint – Put Pen to Paper).

    ———————————————–

    House 1 – - – House 2- – - House3

    Water – - — – - Electric – - – - Gas

    ———————————————–

  46. Dear Paul Cole,

    I agree – I believe O and 9 is the only logical solution.
    About how long did it take you to sort out?

    Re the arrowhead puzzle:
    “It was while drawing out the original arrowhead on paper…”

    This is a great lesson to learn!

    If you lose a case, for example, and there appears to be no grounds for appeal, or if you get a PTO 102 rejection, and there appears to be no possible invention-salvaging amendment possible, then there is only on thing to do

    - – - – -

    - – - – -

    Put Pen to Paper!, and you will be amazed at what solutions can be found lurking behind seeming defeat.
    With pen and paper, victory can be pulled from the jaws of defeat almost always.

  47. But in order for it to be patented,

    Not patented. Ready for patenting.

    A steak can be ready for cooking even if the grill is cold. A prepared meal can be ready for eating even if there is nobody seated at the table. An invention can be ready for patenting even if you have yet to engage a patent agent to draft the spec or prepare the declaration for signature.

    How about a composition of matter invention where you know a precise formula works, but you still need to do experimentation to find out how broadly the proportions of ingredients can vary to get a suitable result?

    If by “suitable result” you mean “result that works”, it’s not ready for patenting yet because you can’t enable it. If by “suitable result” you mean “result that can be produced on an industrial scale at a profit”, it’s ready for patenting – just not ready for market.

    Are you supposed to sacrifice that range of protection that you have not worked out yet because the one embodiment works so you need to file ASAP?

    No, you’re free to keep it secret until you’ve ironed out the details. And by “keep it secret” I mean “don’t offer to sell it to anyone”.

  48. Hint: it’s the “invention” that has to be ready for patenting, not the “application”.

    But in order for it to be patented, there must be an application with a signed declaration. One doesn’t jump directly to a patent, newby inventors learn to their chagrin.

    Fundamentally, my point is “How do you know when an invention is ready for patenting?” When you have one embodiment that works?

    How about a composition of matter invention where you know a precise formula works, but you still need to do experimentation to find out how broadly the proportions of ingredients can vary to get a suitable result? Are you supposed to sacrifice that range of protection that you have not worked out yet because the one embodiment works so you need to file ASAP?

  49. I think that the answers are O and 9.

    To the best of my knowledge and belief I had never seen the puzzle before.

    My talent for puzzles of this kind is slight.

    it was analysis, not luck. I saw how to generate a new row of four, and then the second move was self evident. It was while drawing out the original arrowhead on paper that I saw how the design had been created and hence how it could be reversed. So if there is luck, it was in the decision to draw the original arrowhead out on paper rather than just study it.

  50. Another Puzzle:
    Replace the question marks with the missing characters.

    - – - M – - – - P

    L – - — – ?

    7 – - – - 10

    - – - 6 – - – - ?

    * * * * *

    Dear Paul Cole,

    On another thread with a puzzle you said this:
    “When you draw the arrowhead out on a sheet of paper it takes about 45 seconds to see how the three elements should be moved. I claim no special talent in puzzles of this type. So I would say it is obvious.”
    Posted by: Paul Cole | Feb 25, 2010 at 10:09 AM

    link to patentlyo.com

    I’ve been meaning to comment to you about your 45 second-solution to the arrowhead puzzle.

    O
    - — O
    O — — O
    - — O — – - O
    O — – — O
    - — O
    O

    Reverse the direction of this arrowhead (triangle) by moving only three Os.
    With all due respect, in contrast to your notion, I think there are three possibilities:
    (i) Whether or not you remember, you may have seen the puzzle before;
    (ii) you do have a “special talent in puzzles of this type”;
    (iii) you Just got lucky.

    I say this because I’m confident most readers who tackled the puzzle spent considerably more time than 45 seconds to solve it.

    The reason I wanted to follow up on this is to let those readers know that this is, in fact, a difficult puzzle (many people never get it), and the fact that it took them notably longer to solve is no reflection on their intelligence.

    There are numerous factors involved in solving these puzzles.

  51. Every patent law textbook in the US should have the following in big friendly red letters.

    WARNING

    GRACE PERIODS APPLY ONLY IN THE US

    THEY DO NOT PROVIDE PROTECTION FOR APPLICATIONS OUTSIDE THE US

    IF YOU PUBLISH OR MARKET YOUR INVENTION PRIOR TO YOUR FIRST PATENT FILING DATE, THEN FOREIGN PATENT RIGHTS WILL BE LOST.

    In this case Shaw only patented in the US. But many US inventors attach importance to their foreign rights but are at risk of being caught in this trap.

    MORAL: US inventors should be taught the world standard on novelty and adhere to it. If we aliens (there are signs in every US airport telling us what we are) want protection in the US, we have to observe your law as regards best mode, information disclosure statements and avoidance of inequitable conduct.

  52. The patent application cannot be filed without the signature of the inventor and if the inventor is not ready to file, the invention is not ready for patenting.

    In your professional opinion, then, the on-sale bar date is the date on which the application is completely drafted and the declaration signed by the inventor? And he has one year from that date to file before his on-sale events bar patentability? Yeah, that’s meaningful.

    Hint: it’s the “invention” that has to be ready for patenting, not the “application”.

  53. I don’t see “ready for patenting,” [for something actually sold, as is also required] as that ambiguous? It should mean that one has at that point in time sufficient information to file a patent application covering the invention that would comply with all of the requirements of 35 USC 112 [which would be a constructive reduction to practice]. How is that any more difficult to determine than the date of a first “actual reduction to practice” [which is what so many interferences are litigated over] ?

  54. if the inventor, who is crucial to patenting the invention is not ready to file, is the invention ready for patenting? I think not.

    Sometimes inventors don’t want to file until they’ve developed a good enough embodiment to bring to market. That’s a much more exacting standard than supporting and enabling a claim to the inventive concept. For a simple mechanical device, a single drawing in an engineer’s notebook with no prototype might enable and make the device ready for patenting.

    If it’s ready for patenting, you should be applying for a patent. You can’t sit around for five years and then claim that the mere fact that you sat around for five years proves that you were entitled so to do.

  55. “ready for patenting”

    Does anybody really know what this means? In the florist’s case, if the inventor, who is crucial to patenting the invention is not ready to file, is the invention ready for patenting? I think not. Can he wait years if he wants before he, who is a crucial element in patenting (he is required to sign the oath or declaration and if he says he is not ready to do so, so be it) chooses to sign and therefore makes it ready for patenting?

    Agreed that Scotus is a font of gobbledygook.

  56. Seriously, what the frak is up with Private PAIR lately? Of course the client wants an update on their entire pending profile when PAIR is down for days.

  57. And vice versa Paul. I note an increasing American usage of EPO’s Register Plus service. I suspect they use it inside the USPTO too. Not just in >0.1% of cases on the PPH but generally, to manage their workload.

    Going by recent behaviour of EPO Examiners handling oppositions, I think they also read USPTO files of patent family members, and use what they have discovered as an aid to their decision whether or not to revoke the issued European patent under opposition.

    The world is not getting any bigger, is it.

  58. On the appeal may be more interesting question involves implicit argument to give up. In the District Court and wireless presenter, both sides argued whether the invention is not directly is “patent date” ready. Shaw admitted he was “straighten out all the wrinkles,” but on appeal that, even so, the process is not ready to apply for a patent. If you have an usb wireless presenter, you can make it successful. Read more about the wireless presenter laser pointer at:
    link to espow.com

  59. “Suppose you give a supplier a set of specs and they agree to build and sell you a product to those specs. They haven’t even begun to

    design

    it yet, so the on-sale clock shouldn’t start running yet.”

    Add ignorance of design to IANAE resume.

  60. But then again, maybe I missed something…

    Suppose you give a supplier a set of specs and they agree to build and sell you a product to those specs. They haven’t even begun to design it yet, so the on-sale clock shouldn’t start running yet.

    Pfaff had to have a “ready for patenting” test, because it held that an offer to sell something that doesn’t exist yet is an on-sale event, but it’s impossible to secure your patent rights by filing before that on-sale event because your invention isn’t invented yet. They couldn’t have made the test “reduction to practice”, because sometimes the filing is the reduction to practice and it would be silly to say that you don’t have to file until one year after you file.

  61. “ready for patenting” LOL

    more patent gobbledygook brought to you by SCOTUS courtesy of Pfaff, the first in a line of cases running through the last couple of decades that left one wondering if the SCt really knew anything at all about our patent system.

    But then again, maybe I missed something… (I doubt it)

  62. Unless they go to a florist-to-file system.

    Seriously though, is the ready-for-patenting issue really an issue when the thing was (by admission) actually sold? I can understand that an offer to sell a product you’re still designing raises a question of when the clock starts, but surely once you’re selling actual product it’s ready for patenting.

  63. This was no mere “slip of the tongue” or one answer to a trick question. The Court states:
    “During his deposition, Plaintiffs’ counsel directly asked Mr. Shaw about the discrepancy between the 1994 dates he was currently asserting and the 1995 dates previously averred. In response, Mr. Shaw unequivocally and repeatedly dismissed his earlier interrogatory answers as a mistake. J.A. 175. Further, Mr. Shaw testified eighteen times that he invented the process described and claimed in the ’305 patent in 1994 during the deposition. In this case, we cannot conclude that Shaw does anything more than offer a contradictory declaration to create a genuine issue of material fact.”

  64. One day, 6, you’ll have a $$,$$$,$$$$.$$ patent that gets challenged and the court will find your testimony retracting the above statement unpersuasive.

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