Ford Krippelz

By Dennis Crouch

Krippelz v. Ford (Fed. Cir. 2012)

This case involves an interesting 20+ year history between Mr. Krippelz and Ford Motor Company, including 14 years of litigation over a mirror lamp. Ford has won what appears to be the final round.

* * * * *

Back in 1991, Mr. Krippelz sent Ford Motor Company a copy of his patent covering a downward-facing side-mirror light and a license inquiry. Ford was not interested in a license, but in 1997 began selling cars with downward-facing side-mirror lights. Krippelz sued in 1998. A paper battle continued over the next decade and even after Mr. Krippelz death in 2010. During that time, the USPTO confirmed the patentability of the asserted claims in a reexamination, the judge awarded summary judgment of infringement, the jury the patent valid and awarded $23 million in damages; and the judge boosted that figure to $56 million based upon pre-judgment interest and enhanced damages for willful infringement.

On appeal, the Federal Circuit has reversed – finding the patent invalid as anticipated by a 1951 French Patent invented by Charles DuBois of the former French West African colonial territories.

A court may find issued patent claim invalid as anticipated only when presented with clear and convincing evidence that a single prior art reference discloses each and every element of a claimed invention.

The focus here was on the Krippelz patent’s claimed “conical beam of light” and whether that beam was disclosed by DuBois. In construing the claim, the district court held that the conical limitation required that “the filament of the light bulb is at or near the focal point of an optical reflector.” DuBois included a statement that his system may also include “a bulb at the focus of the reflector.” In reviewing the difference, the appellate panel found that any reasonable jury would find the asserted claim invalid based upon DuBois and that the district court had abused its discretion in denying the motion for Judgment as a Matter of Law.

Most appellants in Ford’s position would have appealed claim construction because of the lower standard of review. Here, Ford may have lost that right by not previously objecting to the claim construction. That said, the motor company was able to roll a hard eight to overcome the strong presumption of validity and the deference given to the jury determination.

89 thoughts on “Ford Krippelz

  1. Ill take over for him. Another ripoff for big business putting another nail in the coffin of the incentive to create and grinding the patent system and human advancement and job creation to a hault disgusting. As far as a 1951 patent by some african patentee its no doubt bogus as a three doller bill. I am not focused in on this one yet as far as place where I concieved it but all of these should be going back to court for new evidence hearings because of the high likleyhood I was involved just find the proximus location of the contact will show the correct line of conception

  2. How about Justice Douglas over Judge Hand?

    Ned, sometimes, the answers not given say more than any answer to any question that is given.

  3. “MM,

    What is your fascination with Gene Quinn?”

    Malcolm’s definitely got a stiffy for Gene.

  4. Do you think everything put out by the Supreme Court must be followed?

    LOL. Only our sockpuppets and their Lord and Savior Gene Quinn know what the True Law is. That’s what makes them so special.

  5. I remember a case where CCPA actually said it would decline to follow the Supreme Court.

    Do you think everything put out by the Supreme Court must be followed? All Dicta? Even dicta not on point and not attaching to a constitutional question? What about the (huge) amount of conflicting dicta by that court? How do you follow when the directions point in paths one hundred eighty degrees apart?

  6. All in all, I’ll take Justice Douglas over Judge Rich.

    That’s not a shock Ned.

    How about Justice Douglas over Judge Hand?

  7. anon, Douglas was certainly anti-patent-misuse. What he saw during his time is that patents were being used as an excuse to control prices and exact royalties on unpatented components of patented machines such as the toilet paper of a toilet paper holder or the film of the motion picture camera or the punchcards that worked in IBM card punch machines and readers.

    Arguably, Douglas was also for higher standard of invention than that being practiced by the patent office and that era. But this is a complaint heard even in this era; it was the reason for KSR.

    As for “flash of genius,” that was not a phrase that Douglas coined. It was a phrase used in prior Supreme Court cases on the meaning of invention and what it was that distinguished invention from the work of the ordinary mechanic.

    What is very true also is that there was a war between the Supreme Court and the CCPA (which Supreme Court held the be an Article I court) of that era, led in the later years by Judge Rich. I remember a case where CCPA actually said it would decline to follow the Supreme Court.

    All in all, I’ll take Justice Douglas over Judge Rich.

  8. Douglas was the anti-patent judge in Cuno Engineering Corp. v. Automatic Devices Corp. 314 U.S. 84 in which he espoused the Flash of Genius doctrine.

    Justice Reed, in the same anti-patent era, continued in the “lack of inventive genius” mode, authoring an opinion in Jungersen v. Ostby & Barton Co., 335 U.S. 560 in which the phrase at hand originated – in dissent (and in opposition to the evident anti-patent bias of the Supreme Court – as led by Douglas).

    That dissent by Jackson states: “But I doubt that the remedy for such Patent Office passion for granting patents is an equally strong passion in this Court for striking them down, so that the only patent that is valid is one which this Court has not been able to get its hands on.

    It is interesting to note that another dissent to the anti-patent furor was logged by Justice Frankfurter, who personally attributes pro-patent thoughts to the esteemed Learned Hand (I know, Malcolm thinks this person a mere quack).

    History repeats.

  9. I can’t believe AI isn’t in this thread screeching up a storm about the injustice this independent inventor suffered. Maybe someone should go check on him to see if he’s ok?

  10. “Because we all know there is a great conspiracy to not challenge software claims that may wreck the entire industry.”

    The entire software patent industry maybe.

  11. Another statement about “printed matter”:

    A “printed matter rejection” under Section 103 stands on questionable legal and logical footing. Standing alone, the description of an element of the invention as printed matter tells nothing about the differences between the invention and the prior art or about whether that invention was suggested by the prior art…. [The Court of Customs and Patent Appeals], notably weary of reiterating this point, clearly stated that printed matter may well constitute structural limitations upon which patentability can be predicated.

    It seems to me that printed matter, if it isn’t dead, is nearly dead.

    BTW — the limitations you were attempting to remove include data structures. As such, the goal posts haven’t moved. You’ve still got to cite case law that applies to ignoring the limitations that were the subject of your statement “The limitations being removed are b.s. carrying no patentable weight.”

    Try again chief-sockie ….

  12. When I said “a complete failure on the part of their attorneys”, I meant a failure to comply with Rule 3-110(A) of the California Rules of Professional Conduct:

    “A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.”

    IMO, to be performed competently, the “legal service” of a court filing must meet the minimum formal standard for consideration on the merits by the court, which the formally deficient pleading did not. Same with the SJ motion.

    They may well have done exactly what they were told to do, in which case IMO they failed to appropriately exercise independent professional judgment.

  13. Kookoo McSockietroll never fails to impress.

    Babbling is all Mal can do when nailed with pincites.

    Svcks to be Mal.

  14. ***But Malcolm provided no response to my post, so…

    Jun 03, 2009 at 03:51 PM
    Jun 03, 2009 at 05:05 PM
    Jun 03, 2009 at 06:11 PM

    ***Ever the smug smart-axx (but only when he thinks he cannot be shown up), and less than 24 hours later,

    Jun 04, 2009 at 01:02 PM

    ***Of course, the so-called admitted defeat was ethereal. The challenge laid out (yet once again):

    Jun 06, 2009 at 10:16 AM

    ***And thus we reach the moment of truth when Malcolm finally answers the challenge with all his honesty and integrity:

    Jun 07, 2009 at 03:30 PM
    Jun 07, 2009 at 04:39 PM

    ***So… after goading for the information and getting it, Malcolm’s answer to the challenge is…:

    “What the sam hill are you talking about?”

    So much for the bravado: “I would be glad to respond. I predict you are not up to the task, however.”

    To quote ME:
    “Your prediction, like much of what you put up would be wrong.

    You have run so many times and avoided the Printed Matter Doctrine challenge that it will take some time to find the original. I will find it and you will run again….

    I will find it and you will run again….”

    Running up that (sam) hill.

    Reply Oct 30, 2009 at 06:41 PM

  15. Noise above Law said…

    In fact, for those who want pincites to the gory details:

    Track shoes and a pretty dress…

    Running up that (Sam) hill… with apologies to Kate Bush.

    Last time we were down this path (but definitely not the first time) we had, from the evening of June 2 to the afternoon of June 7, the following interplay (see comments,previously numbered but now identified by posting times of:

    Jun 02, 2009 at 08:21 PM
    Jun 02, 2009 at 09:00 PM
    Jun 03, 2009 at 06:14 AM

  16. that was about the same time

    It’s an old bookmark – I’ll see if I can dig it up.

    Something about running up a Sam-Hill or such.

  17. sockie : Was it that long ago that NAL cornered Mal who swore that there was no such thing as the printed matter doctrine?

    Right, that was about the same time that you swore that you could patent your mom’s bellybutton lint. Good times, sockie.

    Man, this blog has the dxmbest trolls.

  18. sockie FYI … printed matter doctrine and data structures are like oil and water, they do not mix well together.

    By the way: move the goalpost much? You were the one spouting off absolute nonsense about what the PTO “must consider.” I just pointed out that, in fact, the PTO can ignore certain limitations when assessing patentability. In fact, the law requires that they do so. But they often don’t which is why I LOL’d at 1:18. For instance, Examiners are still screwing up examination of product-by-process claims. It’s pathetic. But not as pathetic as the applicants who pay money to prosecute invalid gxrbxge, and not as pathetic as the attorneys and agents who take the money and cry to this blog about how the USPTO is soooooooo “anti-patent”.

  19. the nature of the “limitation” itself (see, e.g., the printed matter doctrine)

    Was it that long ago that NAL cornered Mal who swore that there was no such thing as the printed matter doctrine?

    Also, Mal, your understanding of the printed matter doctrine (in its full glory) does not support your views. You of course know this, and thus are already pulling out the tall stalks of grain.

  20. sockie printed matter doctrine and data structures are like oil and water, they do not mix well together.

    That’s nice. Perhaps we need a new doctrine. Oh wait, this case is precedential, isn’t it?

    LOL.

  21. The same Douglas as the “The only valid patent is one that has not yet appeared before me” Douglas?

  22. Google’s attorneys were not doing exactly what they were told to do?

    Because we all know there is a great conspiracy to not challenge software claims that may wreck the entire industry.

    How many patents did Google have at the time the suit was brought?

  23. LOL all you want … it doesn’t change the law.

    echoes across the hills as the pearls land in the pig slop…

  24. If you’re trying to make the argument that the claim in this case “has always been” limited to…

    …the words of the claim — am I still fishing?

    Once again, if the words are the same, the claim is the same (the understanding of what the claim has always been may have changed, but that’s a different kettle of fish).

  25. “But increasingly the Federal Circuit is not.”

    What was that case cite where the Federal Circuit deemed a limitation as “not limiting” when “determining patentability of an invention over the prior art”? You must have it.

    FYI … printed matter doctrine and data structures are like oil and water, they do not mix well together.

    Federal Circuit case law:
    The printed matter cases “dealt with claims defining as the invention certain novel arrangements of printed lines or characters, useful and intelligible only to the human mind.” In re Bernhart, 417 F.2d 1395, 1399, 163 USPQ 611, 615 (CCPA 1969). The printed matter cases have no factual relevance where “the invention as defined by the claims requires that the information be processed not by the mind but by a machine, the computer.” Id. (emphasis in original).

  26. sockie: “[t]he Patent and Trademark Office (PTO) must consider all claim limitations when determining patentability of an invention over the prior art.”

    There’s a big difference between “considering” a limititation, sockie, and deciding that the limitation is b.s. and/or meaningless in light of (1) the state of the (prior) art and (2) the nature of the “limitation” itself (see, e.g., the printed matter doctrine).

    You might practice in one the immature arts where the PTO and the Examiners operate in deep confusion about how to address fake, gxrbxge “limitations” such as “credit card” data, “my favorite movie” data, “grandma’s hairy moles” data, and “blog troll posting frequency” data. But increasingly the Federal Circuit is not.

    Ah, growing pains. I do pity you.

  27. IANAE: “‘What I have a problem with is construing the claim to require, require! a bulb at the focus of a reflector.’

    I’m glad you agree. Supposing the structure is actually disclosed in the spec (it’s bound to disclose one example of a structure producing a conical beam), do you still think the construction is problematic?”

    If you read the case, will find that no such structures actually disclosed. The disclosure required a conical beam of light so that the beam not impinge on the side of the car or otherwise get interfere with the driver. However, the actual structure of the apparatus for generating a conical beam of light was not disclosed. Rather it was assumed, it appears, that the inventor relied upon the fact that the apparatus for generating a conical beam of light was well known.

    But, assuming that the structure of a bulb located at the center of a reflector was disclosed, I think most examiners would require the claims be amended to include such structure if the argument that the prior art did not disclose the unclaimed structure was made to distinguish that prior art. The problem here of course, was that the structure argued was not described in the specification. It was implicit.

  28. I’m not so sure, IANAE.

    Assume the claim included a screw. Assume the specification described an elongated member in the drawings as a screw, but otherwise the screw itself was not described in the specification in the drawings did not show threads. Assume the examiner cites a reference disclosing a nail.

    Consider two lines of argument:

    1) I distinguish the prior art by saying that it does not disclose a screw, rather it discloses a nail and a nail is not a screw.

    or

    2) I distinguished the prior art by saying that it does not disclose a screw because, as is well known and by citing a technical dictionary, a screw has threads and the prior art element does not.

    Both lines of argument seemed just fine to me, but if I use the latter line of argument, the Federal Circuit will require that the element “screw” in the claim to be construed as having threads. As such, the claim is open to a lack of written description defense. However, assuming for the moment that no such defenses raised, just how is the claim narrowed to the extent that it is well known that screws have threads?

  29. LOL all you want … it doesn’t change the law. I’m sure you are familiar with this statement of law … “[t]he Patent and Trademark Office (PTO) must consider all claim limitations when determining patentability of an invention over the prior art.”

    Nice try ….

  30. What I have a problem with is construing the claim to require, require! a bulb at the focus of a reflector.

    I’m glad you agree. Supposing the structure is actually disclosed in the spec (it’s bound to disclose one example of a structure producing a conical beam), do you still think the construction is problematic?

    I think it would be a bad enough construction at the CAFC level, but from the PTO which is supposed to apply a BRI construction and allow/require amendments it’s positively ludicrous.

  31. The the obvious problem with your dependent claim is that the additional structure is not disclosed.

    Assume it is disclosed. Otherwise we’re never going to get anywhere with this discussion.

  32. IANAE, the question was whether the prior art produced a conical beam. If one of ordinary skill in the art would know that the prior art could not have produced a conical beam because it did not have any means for producing a conical beam, including a bulb at the source of a reflector, I think the argument is sound. What I have a problem with is construing the claim to require, require! a bulb at the focus of a reflector. That renders the claim invalid here because no such structure is disclosed in the specification.

    I think there is a real difference between limiting the scope of a claim by arguing the prior art and construing the claim to include structure not disclosed. I haven’t fully thought this through, but what is going on here is, to me, bizarre.

  33. The the obvious problem with your dependent claim is that the additional structure is not disclosed. It is new matter. If you claim new matter, your claim is invalid under 112, p. 1.

    No back to the argument, the additional structural elements were NOT disclosed, so just how in the world can they be read into the claims? After construction, the claim is without written description support. I think there is something fundamentally flawed with such a construction, don’t you?

  34. IANAE If the application had included a dependent claim “further comprising a reflector having a focus, and wherein the conical beam of light is produced by a source of light placed at the focus of the reflector”, would you have considered that an improper dependent claim for failing to further limit claim 1? I doubt it.

    Excellent point. And to drive the point home even further: what happens if the Examiner recognizes that such a dependent claim is improper based on the “new understanding” of claim 1 and cancels the claim. Still no absolute intervening rights because claim 1 “wasn’t amended”? Doesn’t seem fair …

  35. IBP ogle’s attempted showing was entirely pathetic, like the attorneys spent all of, literally, 2 minutes on it. It evidenced no ability whatsoever to articulate an understandable and compelling theory and instance of “abstractness”.

    Do you have reason to believe that Google’s attorneys were not doing exactly what they were told to do?

  36. the understanding of what the claim has always been may have changed

    If you’re trying to make the argument that the claim in this case “has always been” limited to a light source at the focus of a reflector, you really are fishing.

    If the application had included a dependent claim “further comprising a reflector having a focus, and wherein the conical beam of light is produced by a source of light placed at the focus of the reflector”, would you have considered that an improper dependent claim for failing to further limit claim 1? I doubt it.

  37. Loaves–

    “However, Google has not shown under the applicable “clearly established” standard of Rule 12(c) that the concepts embodied in the ‘459 Patent are “so manifestly abstract as to override the statutory language of Section 101.””

    The attempted showing was in support of a motion for SJ.

    Google’s attempted showing was entirely pathetic, like the attorneys spent all of, literally, 2 minutes on it. It evidenced no ability whatsoever to articulate an understandable and compelling theory and instance of “abstractness”.

    IMO a complete failure on the part of their attorneys, just like happened when their counterclaim and affirmative defense on invalidity were dismissed for inadequate pleading.

    This is what litigators get paid the big bucks for. These 2 occurrences were IMO clear failures by counsel to understand the requirements of the proceeding.

    The claim itself is laughable–using my paradigm I could torch it easily and readily.

    We’ll see what happens from here, as the case moves forward.

  38. To fixate on whether the actual words of the claim have been changed is to elevate form over function and to miss the whole point of having intervening rights.

    Not sure I agree.

    It might just be semantics, but if the words are the same, the claim is the same (the understanding of what the claim has always been may have changed, but that’s a different kettle of fish).

  39. Sometimes the USPTO does rtarded things. For instance, if you are who I think you are they’ve been issuing you bad patents for the better part of 3 decades most likely. But it is ok, there are still courts out there to go ahead and take care of the situation the PTO keeps creating.

  40. Now, if a conical light beem can be rendered using means other than those argued in the PTO, and those means are not disclosed, we have a host of problems for the patentee other than intervening rights, do we not?

    No, we do not. If the spec describes and enables a conical light beam, the patentee is entitled to broadly claim a conical light beam.

    The problem is that he’s now arguing that additional structure such as a reflector with the light source at the focus should be read into the claims. That’s much narrower than a conical light beam, and a competent examiner should dismiss the argument as unpersuasive because it relies on features not positively claimed, thereby requiring the amendment.

    If the claim previously covered a “conical light beam” however produced, and is now limited to a conical light beam emitted by a light source at the focus of a reflector, the claim has unquestionably been narrowed during examination for the express purpose of avoiding prior art. To fixate on whether the actual words of the claim have been changed is to elevate form over function and to miss the whole point of having intervening rights.

  41. “The limitations being removed are b.s. carrying no patentable weight.”

    Not to the USPTO. Not to most of the Federal Circuit. However, Linn and Dyk like to play fast and loose with the law before their time on the Federal Circuit comes to a close.

    FYI — Linn and Dyk didn’t actually remove the limitations, they “simplified” the claim language before determining preemption.

  42. carrying no patentable weight

    Looks like another case of heavy lifting…

    Where is Inviting when you need him?

  43. if you “simplify” the claim language by removing limitations

    The limitations being removed are b.s. carrying no patentable weight.

  44. IANAE, I don’t think you are right about your alternative technically.

    Regardless, the claim was not amended. It requires a conical light beam.

    Now, if a conical light beem can be rendered using means other than those argued in the PTO, and those means are not disclosed, we have a host of problems for the patentee other than intervening rights, do we not?

    Remember our discussion of “integrally formed as a portion of?” If the PO on reexamination of the Morris patent were again faced with a rejection over the prior art that had no analogy to the disclosed means, and responded that “integrally formed…” meant the means actually disclosed and their equivalent, would that be narrowing in the sense of 252?

  45. Trolls are spawned when Big Companies want to malign those with property interests who are looking for protection under the law after Big Companies have slammed the door in the face.

  46. Are you sure you want to share your thoughts?

    After all some big bad mean man might disagree with you and cause you to become upset. What would Mommy say?

  47. I have some thoughts on Dealertrack:

    1) we see here another use of the CAFC’s confused, logically unsupportable so-called “preemption doctrine”, and one example of how it relates to the other term of convenience, “abstractness”; we also see the resultant use of the misbegotten “field of use limitation” paradigm as an unfortunate and conclusory device; It is unfortunate to see these live on to fight another day, regardless of what one thinks of the ultimate decision; no progress here, SSDD

    2) we also see the assumption made, during the CC of “routing”, that the preamble is always limiting, with no analysis of whether it is required to be so in order to “breathe life and meaning into the claim”; as the limitation appeared in the preambles of all claims, yet in the bodies of only some, this seems like the perfect setup for a claim differentiation defense, in order to avoid redundancy and superfluity in claim language, but it doesn’t appear that any such defense was made, nor was the concept considered independently by the court–it was just assumed that the preamble was limiting…as it should be, IMHO.

  48. 2) PO argued that prior art does not have a beam of light. Why? It does not position its bulb next to a reflector. I take it that the latter is a requirement well known in the art.

    Actually, PO argued that the prior art beam is not “conical” because the bulb is not at the focus of the reflector.

    Unless that’s the only way to produce a conical beam of light, it’s a clear case of reading an additional structural limitation into the claim (the claim doesn’t even require a reflector at all), which is tantamount to a narrowing amendment.

    Bit of an odd limitation too, if you think about it. A light source at the focus of a reflector should produce a cylindrical beam of light. Anyway, you could easily produce a conical beam without a reflector by sizing the claimed “opening”, which claim scope was excluded by Krippelz’ argument, so this is clearly a narrowing “amendment”.

  49. Dealertrack v. Huber? – 1/20/12

    How about Iconfind Inc. v. Google Inc., E.D. Cal. No. 2:11-cv-00319-GEB-JFM, 1/18/12 ?

  50. Claim 1 of the ’427 patent:
    A computer aided method of managing a credit application, the method comprising the steps of: receiving credit application data from a remote application entry and display device; selectively forwarding the credit application data to remote funding source terminal devices; forwarding funding decision data from at least one of the remote funding source terminal devices to the remote application entry and display device; wherein the selectively forwarding the credit application data step further comprises: sending at least a portion of a credit application to more than one of said remote funding sources substantially at the same time; sending at least a portion of a credit application to more than one of said remote funding sources sequentially until a finding source returns a positive funding decision; sending at least a portion of a credit application to a first one of said remote funding sources, and then, after a predetermined time, sending to at least one other remote funding source, until one of the finding sources returns a positive funding decision or until all funding sources have been exhausted; or; sending the credit application from a first remote funding source to a second remote finding source if the first funding source declines to approve the credit application.

    Claim 1 of the ’427 Patent after Linn got through “abstracting” it:
    receiving data from one source (step A), selectively forwarding the data (step B, performed according to step D), and forwarding reply data to the first source (step C).

    Linn got to the above steps after writing “Dealertrack’s claimed process in its simplest form includes three steps.” Well, if you “simplify” the claim language by removing limitations, you take it from the concrete to the abstract. Nothing magical about that.

    In the same paragraph Linn writes “Neither Dealertrack nor any other entity is entitled to wholly preempt the clearinghouse concept.” Nothing about claim 1 “wholly preempt[s]” the clearinghouse concept. The clearinghouse concept had been around for decades before the application was written. Moreover, I have no idea where Linn got the idea that claim 1 covered the “clearinghouse concept.” It doesn’t.

  51. And we have been harassed for at least 2 years. They they even told us to pay Hundreds because we didn’t file returns? What returns? The city should have been paying my husband a Salary. So do you know what BUCKET that is going in?

  52. Having read the Decision I like to imagine what went on in the Ford patent department. I can hardly imagine a clearer case of non-infringement. But then the DC (only 3 yrs ago) skewered Ford with its summary finding of infringement. Holy cow Batman. Is nothing safe, these days?

    BTW, is Batman still pursuing his “study of the great boners of all time”? When were readers of his comic first introduced to that idea, I wonder.

  53. And how about this recent one… like so many others that were delivered.
    P.O. BOX 504CH STREET….. DELIVERED. But delivered to cause more distress for something that is not even relevant to any license we (never) had. We just wanted a tax license. We didn’t own the Business. He just collected Taxes for the city really if you want to know the truth. But it continues to go round and round. Why they even charged him 20.00 for the Tax License. I got two a long time ago… even before this last one. and I didn’t pay a dime. And I wasn’t even the collector of the Taxes…. Go figure. I already have. And by the way thanks for one of the numerous delivered packages and letters that ROBIN claims couldn’t be delivered. So did he send those to 451 too?
    Excuse me while I GHA GHA GHA GHA Popeye Belly laugh, as I recall the screaming Pop Eyed Woman on TDS, used to drive me a little further into the “BOX YOU DESIGNED!” But it ain’t going to be too funny now is it?

  54. Why would you reply

    6, why would you ask that question?

    The lure of crying, then dissembling about that crying is too great for the site’s biggest crybaby.

    MM, you should hang your head in shame, but for a different reason.

  55. And the trickery that was used…. POA no FAS Frequently Asserted Stupidity. I can’t wait till noon. And do you know that I am ready to leave this country with the rest of my Cache! Who needs this Sh@t.

  56. Why would you reply to blatant troll? Seriously? You’re an old hand at this by now MM.

    My bad.

    [hangs head in shame]

  57. “I’m also not crying.”

    Why would you reply to blatant troll? Seriously? You’re an old hand at this by now MM.

    Let a troll troll in peace by himself.

  58. Malcolm, the point is this: taking a position does not mean that the claims were narrowed. It simply means that one now is estopped to deny the position.

    Assuming the courts would agree that one could invoke intervening rights by disclaimer, one would still have to show that the claim scope was narrowed during reexamine. This requires a before and after comparison.

  59. I’m also not crying

    You have got to be joking.

    A little bit of “If only the PTO could” plus a little bit of “whole lot of resource-wasting cases” plus a little bit of “do nothing more than” plus a little bit of “with a bunch of worthless b.s. tossed in” plus a little bit of “as if computers care” plus a little bit of “worked like the computer-implemented arts” plus a little bit of “That sort of crxp” plus a little bit of “Even if something goes wrong you’ll have someone like

    equals a whole bunch of whining.

    You are not fit to give advice. Stop your whining.

  60. Doesn’t this case prove the opposite of what you are whining about?

    I don’t believe so. I’m also not crying. Maybe you should stop playing with the inversion boots in your dad’s closet.

  61. Why was the claim put into re-exam in the first place?

    Litigation tactic. Why else? Justice? [laughter supressed]

  62. Dealertrack’s claimed process in its simplest form in-cludes three steps: receiving data from one source (step A), selectively forwarding the data (step B, performed according to step D), and forwarding reply data to the first source (step C). The claim “explain[s] the basic concept” of processing information through a clearing-house, just as claim 1 in Bilski II “explain[ed] the basic concept of hedging.” See Bilski II, 130 S. Ct. at 3231. The steps that constitute the method here do not “impose meaningful limits on the claim’s scope.” Bilski I, 545 F.3d at 961-62 (citing Benson, 409 U.S. at 71-72). Neither Dealertrack nor any other entity is entitled to wholly preempt the clearinghouse concept.

    Dealertrack’s primary argument is that the “com-puter-aided” limitation in the preamble sufficiently limits the claims to an application of the idea. We disagree.

    How it’s done, folks. If only the PTO could do this regularly and consistently we’d see that backlog disappear and a whole lot of resource-wasting cases dry up and blow away. A lot of computer-implemented patents do nothing more than claim the basic concept of data-processing with a bunch of worthless b.s. tossed in, e.g., “limitations” about the type of data being processed, as if computers care.

    Imagine if all the art units worked like the computer-implemented arts. Let’s say that green sand becomes popular. It’s just like all the other types of sand except it’s green. So the PTO gets flooded with all kinds of applications: dump trucks for hauling green sand; method of sanding with green sandpaper; sandboxes with green sand; hourglasses with green sand; etc. That sort of crxp goes nowhere in other art units. But get it into the biz method or computer-implemented art units and you’re golden. Even if something goes wrong you’ll have someone like Lord Quinn devoting an entire post to how unfairly you’re being treated.

  63. Ned, is the passage from the decision I quoted presenting the facts inaccurately? Is it not the case that the scope of the claims were narrower than they otherwise would have been as a result of statements made during re-exam? Statements that were made for the sole purpose of achieving narrower claim scope? Why was the claim put into re-exam in the first place?

  64. Malcolm et al., unless the PO agrees that a claim term has broader meaning, how can it be said his arguing for a particular meaning narrows the scope of the claim?

    The PTO uses BRI, at times unreasonably. If the PO argues that the examiner’s construction is wrong, unreasonable, either directly or by inference, how is it that the PO has narrowed the claim? All he has done is restrain the examiner.

    Only if the PO agrees that, as properly construed, the claim reads on the prior art is he forced to amend. This is where the claim is narrowed; but not otherwise.

  65. I was going to take that one as my debut on PO. But I kept expecting it to pop up the day after or the same day as I would have sent a message to D. I was going to just write it up this weekend but I actually did some work and had some fun.

    If D wills it though I will go ahead and write it up.

    Spoiler:

    Claim construction issues: Claim construction reversed because the internet is a WAN, who would have guessed?

    Means plus function issues: If you use “means plus function” language while referring to a GP computer you better put some algorithms in the spec for your “structure” or your claim will bite the dust under 112 6th/2nd.

    101 issues: Some of the claims took a dive because they were an attempt to preempt the concept of a clearinghouse for automobile sales. Research Corp distinguished and Hulu distinguished.

    If I recall correctly anyway. There are a lot more issues than those listed, it is a really long decision.

  66. Malcolm,

    1) claim requires “beam of light.”

    2) PO argued that prior art does not have a beam of light. Why? It does not position its bulb next to a reflector. I take it that the latter is a requirement well known in the art.

    3) How is this narrowing at all? The proper construction all along required apparatus that could generate a beam of light. The prior art did not generate a beam of light.

  67. Or maybe Ford agreed with that claim construction D and thought they had a 102b and didn’t really care about trying legal b s. In other words, perhaps they are built Ford tough.

  68. the motor company was able to roll a hard eight to overcome the strong presumption of validity and the deference given to the jury determination.

    Congrats to Ford Motor Company and the CAFC panel for gettting it right. Rather sad that it took so long to invalidate this patent. What a waste of time. What the heck was the District Court judge thinking? And the BPAI blew it big time as well.

    And there there’s this:

    Taking them into account, we agree with the district court that the term “conical beam of light,” as used in the ’903 patent and in light of Mr. Krippelz’s arguments during reexamination, incorporates limitations as to the shape of the reflector and the positioning of the light source relative to it. As a result of these statements, Mr. Krippelz disclaimed lamps lacking these limitations, and the limitations therefore became part of the properly-construed claims.

    Once again: absolute intervening rights would seem appropriate here. Keep the case law or fix the statute.

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