Political Candidates Sued for Patent Infringement

by Dennis Crouch

EveryMD v. Rick Santorum, Mitt Romney, and Newt Gingrich (C.D. California)

In a recent filing, Hollywood patent attorney and inventor Frank Weyer has sued Rick Santorum, Mitt Romney, Newt Gingrich, and an estimated 4 million FaceBook business account holders for infringing Weyer's U.S. Patent No. 7,644,122. The lawsuit was filed by Weyer's company EVERYMD. That company provides communications services to over 300,000 medical doctors.

The complaint alleges that FaceBook business account holders infringe the patent by creating individual home pages for members of a group of members that contain controls for sending messages to and for submitting comments about the members. Download Complaint. In 2011, the patentee offered an open license to FaceBook business account holders for $500 per account. The complaint states that that reduced price license program "has ended."

The patent itself is in the midst of an inter partes reexamination originally requested by FaceBook. ?See Reexam No. 95/001,411. In the reexamination, all of the claims are currently on appeal to the Patent Office's internal Board of Appeals (BPAI) following a final rejection of the claims by an examiner in the Central Reexamination Unit (CRU). At least two other continuations of the application are pending and claim priority to the original 1999 filing date.

022812_1403_PoliticalCa1 In 2005, I reported on Weyer's case against Ford for infringing his patent on user-selectable multi-color instrument panel illumination. In an earlier case Weyer sued Network Solutions and Register.com for violating his patent on the selection of an e-mail address based on a domain name. He has also sued Harley Davidson, Bosch, and MySpace. Those cases have all settled. Prior to law school, Weyer was a Peace Corps Volunteer in Lesotho and now works as a volunteer engineer in Antarctic expeditions. I should also mention that Weyer's book M.I.T. Can Be Murder is for sale on Amazon. His screenplay based upon the book has received multiple honors.

130 thoughts on “Political Candidates Sued for Patent Infringement

  1. Speaking of vanishing acts, where have all my naysayers gone in the light of more case law supporting my legal reasoning?

  2. Anon, thanks for the link.

    I wonder why Patently O has not reported on this case and the other case that recently issued on the section 101 versus section 102/103 debate?

    Dennis?

  3. Max,
    I have been as a fruit Bat,hanging off the wrong tree. I need to send a copy of the stamped Copyrighted Material and the two sets of RR cards to the Secret Service along with the extra Materials that were copyrighted by someone else. And the funny thing is FTF applies here.

  4. Thanks Ned. Some of the comments upthread remind me of conversations heard amongst bats hanging upside down in a dark cave, debating amongst themselves how humans can get around at all, when they lack any echo-sounding navigation organ.

    Almost as funny as it would be for the bats, if they could listen to a panel of Austrian yodellers dismissing as impossible how a bat underway on a moonless night, can catch flies one after another, using nothing more than its yodelling organ.

    We at least both realise that humans and bats both navigate quite successfully, in their different ways. Neither of us knows what it’s like to be a bat. One of us has navigated issues of novelty and priority for 30+ years under FtI and the other under FtF. How each of us navigates under his respective system is hard to imagine, but at least I no longer have to try to imagine life under FtI.

  5. Ned.

    No. You are wrong. The application B + C will be rejected by the earlier application that permits any combination of A, B, and C. Your arguments are stillborn.

    The first application has the elements and teaches the combination, albeit not directly. I would love to have MaxDrei’s ABC…Z application/patent. It would serve as my frontal assault piece in rejecting any application coming along with subset claims.

    And my rejections would stand. I guarantee that.

    Let’s not forget that KSR gave PHOSITA broadened powers of creativity and those powers allow PHOSITA, armed with MaxDrei’s ABC…Z application/patent, the ability to understand that at the time of that ABC…Z application that the PHOSITA could see the combinations without them being explicit. It’s called inherency. And the inventor (I would love such a clever inventor) has provided me a field clearing piece of prior art to knock out a lot of crrp. Your B + C secondary application would not get by my star piece of prior art, so the worry of double patentings can be dismissed. Won’t happen on my watch.

    Which also means that the current law on late claiming is perfectly fine. Even with First Inventor to File. That change really doesn’t mean a hill of beans. For the most part, 102 is still 102 and 103 is still 103. Inherency still exists, and the PHOSITA is still supercharged with KSR. There are no worries about the sky coming crashing down.

  6. Plain, I am not sure you understand what we are talking about. If I disclose A B and C, and indicate that together they are an invention, but say nothing about B and C being and invention, I think it is possible that another inventor could still file and obtain a patent on B + C.

    Now, in the US, 35 USC 135 prevents the first inventor from late claiming B + C. But that statute is repealed. He can now claim B + C, and, AFAIK, there is nothing in the law to prevent him from doing so except possibly the WDR of 112, p. 1.

    But let us assume that the mere disclosure of B and C in the same specification plus some weasel words is sufficient to late claim B and C, I would submit to you that there is nothing in the law that would prevent it.

    Thus there could be two patents on the exact same invention and both could be valid.

    Which means that the current law on late claiming HAS TO CHANGE.

  7. Plain, I beg to differ.

    If the current practice holds (but I suggest it should change), there is nothing in the current law to stop one from claiming late — i.e., claiming the EXACT SAME INVENTION as in an earlier application or patent.  Give me a cite to the statute post Sept. 16 that forbids this.  The statute that did forbid this was Section 135, below, but that statute was repealed:  It read,

    (1) A claim which is the same as, or for the same or substantially the same subject matter as, a claim of an issued patent may not be made in any application unless such a claim is made prior to one year from the date on which the patent was granted.(2) A claim which is the same as, or for the same or substantially the same subject matter as, a claim of an application published under section 122(b) of this title may be made in an application filed after the application is published only if the claim is made before 1 year after the date on which the application is published.

    That's right, Plainly Wacky.  Section 135 was REPEALED!!!

    What, pray-tell, does that mean or imply?

    That there is no bar to a late claim!

  8. Even a late claim must still be suppported by earlier matter. That very earlier matter would prevent the first attemtp at patent, even if the early matter was not claimed.

    The Office is not to rely merely on claims to reject later applications. Don’t make that mistake.

  9. This example is fluff and nonsense.

    A late claimer cannot get a patent in the new US FITF system and the idea that granting of two patents to the same thing ignores the fact taht the second grant would not happen, or if it did happen (the second late claimer being the FITF) would then void the first grant as prior art and dispense with the nonsense attmepted to be spun here.

  10. FTF is new for the US and we should look to Europe for guidance.

    Which would be perfectly normal.

    When Imperial Germany drafted its patent law after 1870 it took a long look at the French and British systems for inspiration. It also sent people overseas during the 1876 Centennial year to see how the US Pat. Office handled things in practice.

    It’s not very much remembered nowadays, but it took them some decades and a few scandals to get things right.

  11. Max, I understand you and fully agree.

    The PTO cannot grant two patents to the same invention to two different inventors. The first to file gets the patent, all other things being equal. His entitlement to the patent should be apparent on the record as filed.

    What could happen if late claiming is allowed in a FTF system is that a the late claimer could claim the same invention already granted to a third party. In a FTI system, the PTO would simply require an interference. In a FTF system, that is not possible, now is it?

  12. Max, I agree with you here. The well developed state of European law should be reviewed by the Federal Circuit in deciding issues such as these on a going-forward basis, just at the US courts looked to the cases from England for a good 60 years plus after we adopted a patent system modeled to a degree on English law. FTF is new for the US and we should look to Europe for guidance.

  13. What a terrible thing to have lost one’s mind. Or not to have a mind at all. How true that is.

  14. Leo, I think in theory, especially after Ariad, that you might be right regarding the nature of the rejection under 112, p.1. But, honestly, I have never received such a rejection, ant least none that I can recall. Can you cite to the MPEP for support for what you said here?

  15. Thank you Leopold. As I thought, the amendments objectionable at the EPO as adding matter are often objectionable in the USPTO as failing the “written description” requirement. A rose by any other name.

    Thank you again for the notion that EPO Examiners are often stricter, even though the common underlying legal principle should deliver much the same outcome.

    I was of course well aware of all that. I was just using these columns to figure out exactly why it might be, that EPO Examining Divisions are almost invariably, in their daily work, stricter. You put it down to their inadequate acknowledgement of what PHOSITA knows. To an extent, I agree. If the PHOSITA knows so much that a prosecution amendment adds no new matter, the corollary is that a lot more documents, when considered by the PHOSITA, will prejudice the novelty of the claim in view. And because EPO patent attorneys have trained EPO Examiners, these past 30 years, to reject on novelty only when there is no doubt, the boot is on the other foot, when those same attorneys want a prosecution amendment judged as adding no new matter.

    There’s an irritating background noise when we discuss, don’t you find. Let’s ignore it, shall we?

  16. during prosecution, is to the MONKEY machine

    cf

    A machine comprising M, O, N, K, E, Y.

    W

    T

    F

    Lack of clarity ensues from at least the lack of commas, the change in transition term, the use of a definte article and placement in the context of the provided hypothetical. Add in the notices of strawman already pointed out and wha tyou have MaxDrei and Leopold Bloom is g_arbage.

    “Dullard” is a kind word.

  17. That was pointed out: your sentence three conflicts with your sentence two. … I think that you are just a dullard.

    That makes at least two of us, then. Please explain the conflict. Max’s second sentence says the issued claim reads: “1. A machine comprising M, O, N, K, E, Y.” Max’s third sentence says that the originally filed claim reads: “1. A machine comprising elements selected from A, B, C, …, Z.”

    Where is the conflict?

  18. I don’t know how you get from my words that there is a claim to MONKEY in the app as filed.

    That was pointed out: your sentence three conflicts with your sentence two. Specifically, “Suppose the app as filed was claiming:

    Personally, I don’t think you are devious. I think that you are just a dullard.

  19. Cripes, this is hard. I’m trying to be straight but it’s being seen as being devious.

    Is there any wonder given your past exploits?

  20. I am trying to ascertain whether in the USA 1) MONKEY is indeed new matter (but nobody cares whether it is or not)…

    The answer is yes, Max, it is indeed new matter. And you’ve made several comments suggesting your belief that new matter doesn’t matter in the U.S. – that is simply not true. In prosecution, the examiner should object to the MONKEY claim under 35 USC 112, first paragraph, on the grounds that the specification fails to convey to the skilled person that the inventor had the “MONKEY” combination in his “possession” at the time the application was filed. In litigation, a defendant should argue invalidity on the same grounds.

    In my view, the EPO, which is clearly stricter than the USPTO, sometimes underestimates the person of ordinary skill in the art when it says that a given disclosure fails to teach a (later) claimed combination. The USPTO also sometimes does a horrible job of enforcing 112, paragraph 1. But the underlying law, while not identical, is pretty similar.

  21. Cripes, this is hard. I’m trying to be straight but it’s being seen as being devious.

    The app as filed describes all of mechanical elements A through Z. In my hypo, the particular feature combination MONKEY is the subject of the issued patent but that combination of technical features MONKEY was not particularised in the app as filed. There was no claim to MONKEY in the app as filed. There was no announcement, in the app as filed, of the particular MONKEY feature combination. There was a Catch-all “any of A to Z in any combination you like” paragraph though.

    I don’t know how you get from my words that there is a claim to MONKEY in the app as filed.

    Where Americans take most exception to EPO strictness on “added matter” is when an Applicant seeks during prosecution to insert a claim to a combination of technical features (like “MONKEY”) not picked out as such in the app as filed. I am trying to ascertain whether in the USA 1) MONKEY is indeed new matter (but nobody cares whether it is or not), or 2) legally, it isn’t new matter.

    I agree that any hint of Markush terminolgy is unhelpful. Mea Culpa. Can we concentrate on the area with the most transatlantic misunderstanding, namely, the claim directed to MONKEY, an originally-undisclosed intermediate generalisation, narrower than “A machine comprising any one of features A-Z” and wider than “A machine comprising all of features A-Z”?

  22. I think my post was eaten.

    To summarize, I would further guess that Anon would call your reply a strawman. And he would be right.

    Contributions by several people already dispose of the alphabet/word machine and use of a mere Catch-all paragraph. Using these in your hypo is a rather blatant attempt at mischaracterization.

    Further, your 2. is a bit confusing, as “illustration” in the states typically connotates drawings, and aside from teh rare all-method claim application, drawings are usually required by the Patent Office, so I really doubt this part of your hypo passes the finesse aspect that Anon uses.

    Also, you use a Markush-style “consisting of” transition. That may not (it may) pass the finesse aspect.

    The fact that you throw in a narrowing amendment also unnecessarily complicates the fact pattern.

    Lastly, it is unclear from you hypo if the MONKEY claim is the amended claim or the clim in the app as filed (Your second sentence conflicts with your third sentence).

    That’s what I think. I appreciate your asking.

  23. So it was clear that MaxDrei did not mean that boilerplate may be enough

    My guess would be that this was not clear.

  24. So it was clear that MaxDrei did not mean that boilerplate may be enough. Funnily enough, that is what I said that he did not mean.

    However, this does not necessarily lead to the opposite conclusion that he meant that explicit disclosure of each and all combinations would always be necessary.

  25. Well thanks for that valiant effort JaG. Suppose the claim that issued, after narrowing amendment during prosecution, is to the MONKEY machine. Suppose the app as filed was claiming:

    A machine made up from elements selected from the group consisting of A………..Z.

    The originally filed specification includes:

    1. a definition of each one of the 26 elements A through Z

    2. several illustrated embodiments but no drawings of a MONKEY machine

    3. A catch-all para that says you can have in your machine any combination selected out of the elements A through Z.

    I’m saying admitting the MONKEY claim admits to the pending app subject matter that was not in the app as filed.

    Is anon saying the opposite? What do you think?

  26. MaxDrei,

    My guess is the following exchange:

    MaxDrei said in reply to anon…

    Anon writes about “the notion that individual features are combinable”. He urges that one carefully writes down all the letters from A to Z and then, as a careful drafter, diligently tells one’s readers that these letters are “combinable”.

    Who here thinks that all that careful drafting is enough to “disclose” even one particular word in a dictionary, or in the alternative, all the words in the dictionary?

    Reply Mar 01, 2012 at 08:42 AM

    anon said in reply to MaxDrei…

    “He urges that one carefully writes down all the letters from A to Z and then, as a careful drafter, diligently”

    MaxDrie,

    Your understanding of what I wrote, like your understanding of the word “finesse” is woefully inadequate. One does not have to write down every permutation of a possible combiantion in order to capture those permutations.

    THINK man.

    Reply Mar 01, 2012 at 09:28 AM.

    It’s just a guess, but Anon’s meaning is pretty clear, and it’s pretty clear that you were disagreeing with him.

  27. Perhaps other readers haven’t quite got it yet. So, yet another attempt.

    Still a non-sequitor to the noted comment and my question of, what has that got to do with any burbling about the lack of traction for any thought of “harmonisation?” .

    A patent system can be fair and be nationally self-contained.

    Tell us all readers (who haven’t quite got it yet) another of your jokes, you wily wag.

  28. Perhaps other readers haven’t quite got it yet. So, yet another attempt.

    Any fair FtF system has to be neutral between Inventor A and Inventor B, and therefore neutral as between the disclosures they respectively make to their respective Patent Offices on their respective dates (prio doc, app as filed, post-filing amendment).

    It is this neutrality which renders it inherent in any FtF system that the concept of “disclosure” is the same when looking at a prio doc, a doc alleged to destroy novelty, and a prosecution amendment.

    I’m assuming such neutrality is also inherent in the AIA, despite its name.

  29. That’s what I thought.

    You just can’t stand it when people bypass the litigators at Beasley, can you?

  30. Hey Eggo, you write of my postings:

    “MaxDrei “notes” indicate only that every permutation would need to be expressly disclosed.”

    But which one was it? I can’t find any of my postings that fits with your assessment of it. I don’t agree with your summary. I think you are not understanding.

    We all have minds willing to understand, I suppose. So tell me which of my postings you were looking at, when you summarised it as above.

  31. So exactly what was filed, on which date, becomes decisive to the issue who gets the patent, also in the USA, as never before experienced.

    There can be no doubt that the new system will be one “never before experienced.”

    That’s a truism unrelated to your noted non-sequitor.

    In either system, there is an award of patent rights. The mere difference of determining who wins those rights when contested adds nothing to your noted comment, and my question of, what has that got to do with any burbling about the lack of traction for any thought of “harmonisation?”

    You assume the misapprehension is mine. That’s a bit egotistical of you. Given your reputation, both the ego and the error are not surprising.

    You also mistake just who is providing the entertainment. Please, continue your frolic. Ah, I see you have. You have now added a line of thought that “Different tests for priority, new matter and novelty attacks are inherently irreconcilable with the basic legal tenets of ANY First to File system, (even if it is the American First to Publish/First Inventor to File system).” Delightful ignorance and buffoonery you offer. Won’t you give more? Please continue the entertainment.

  32. Not quite.

    MaxDrei “notes” indicate only that every permutation would need to be expressly disclosed. As does your comment of “To put it pithily: in EP practice, the application isn’t a Lego” also allude to. Anon’s point is expressly counter to that.

    Anon and you both agree on the start of drafting. I am pretty sure that any definition of “finesse” requires going beyond mere boilerplate. I do believe that Anon’s point is that an application can be a Lego.

    Ah, the mind that is not willing to understand…

  33. Sorry you are not following me.

    A first to Invent system dispenses patent rights according to who invented first, but a First to File system does it by reference to who filed first. So exactly what was filed, on which date, becomes decisive to the issue who gets the patent, also in the USA, as never before experienced.

    Different tests for priority, new matter and novelty attacks are inherently irreconcilable with the basic legal tenets of ANY First to File system, (even if it is the American First to Publish/First Inventor to File system). If not now then, at the latest after a few years of operating your First to File system, you will also come to see why.

    But, whoever you are, if today you persist in your misapprehension that it just ain’t so, tell me why I’m wrong, won’t you. Give me some more entertainment.

  34. Oh, then you do agree with Anon.

    In what? Certainly not on what he perceives as European practice…

    (Also, I said only “a good start”. As MaxDrei notes, merely inserting some boilerplate may not be enough. The whole spec must be drafted keeping in mind the need to disclose, explicitly or implicitly, as many inventive permutations of features as possible.)

  35. Yes, every system needs some regime to decide the factors you list.

    What has that got to do with any burbling about the lack of traction for any thought of “harmonisation?”

    Your fact is a non-sequitor.

  36. Posters can burble on all they like about the lack of traction for any thought of “harmonisation” but the fact is that every patent system needs some regime to decide:

    1. whether subject matter has been added during prosecution, upon the insertion of an amended claim

    2. when D1 prejudices novelty, and

    3. when a claim is entitled to the declared Paris Convention date a year before the claim was filed.

    At the EPO, the test applied to determine the “disclosure content” of any particular document (D1, app as filed, prio doc) is the same (directly and unambiguously derivable) for all three situations. If the USA chooses not to harmonise with that, the world will look on in fascination, to see what is the alternative (and whether it is viable).

    It took Europe many years, and thousands of TBA Decisions, to get to the point of evolution that EPC law has reached. The USA will no doubt do its FtF evolution much quicker. For Europeans, watching the process is going to be fascinating.

  37. You need a well-drafted specification, though. An explicit statement that individual features of the disclosed embodiments may be combined is a good start.

    Oh, then you do agree with Anon.

    As they say, rodger copy copy that.

  38. This does in fact refute the stated EP notion of – or at least the proposed EP notion of – new matter being decided by the initially introduced claim set.

    This is neither a “stated” nor a “proposed” EP notion. The strictness with which the EPO applies the requirement of “no added matter” makes it difficult but not impossible to introduce amendments incorporating matter which was not in the initially introduced claim set. You need a well-drafted specification, though. An explicit statement that individual features of the disclosed embodiments may be combined is a good start.

    As for expanding the scope of protection after grant, that is an entirely different matter. In Europe, it is forbidden under Art. 123(3) EPC. Indeed, the dangerous “Catch 22″ situation MaxDrei has previously mentioned concerns the potential conflict of the “no added matter” requirement of Art. 123(2) and the “no post-grant extension of scope” requirement of Art. 123(3): if, in post-grant proceedings (litigation or opposition) it is found that limitation C of an independent claim was added matter, it is no longer possible to remove it, because removing an limitation broadens the scope of protection. Hence, the whole claim falls without remedy. An extra reason to be very, very careful about introducing new matter in European practice.

  39. That’s quite some gall (or is it gaul) there Ned.

    Pre-issuance publication is a bonus. It shouldn’t even be rightfully asked for. It’s an early taking of quo with a giving of practically no quid. The entire application is laid open and a mere prospectus (without effective obtainment) of rights is offered.

    It is an underlying cause of the poor examination that runs rampant in the Office.

    Think about it. After publication, the government has already gotten the maximum quo out of the deal. There is nothing more that can be gained. Why bother with quick, efficient or even fair examination at that point? It is a moral dilemma, a Hobson’s choice of sorts.

    In addition, to try and limit the invention and shortcut the give and take of prosecution just because of some other foreign country’s notion that is not a part of the US patent history and bargain is insulting. It’s a part of the continuing sell-out to transnational Big-Corp.

    It’s downright anti-American.

  40. Ned,

    I do understand the point that some applications are not written well enough to permit the “Lego” effect.

    However, that line of thought is a red herring.

    It simply does not matter that some applications would fail in that regard, as the point of the matter is that well written applications will not fail. Again – this is the point of my “finesse.” Those that attacked that position clearly did not grasp the point. And in a pre-emptive move to BigGuy, not understanding this point is a “you” problem, as my explanation is as clear and proper as anything on these boards. Writing to a lower common denominator would involve far more time and effort than is customary.

    As to “need to follow” because of FTF, that of course remains to be seen. You well know that our version of FTF is not the same as the version in the EP. My statements at 10:59 bear repeating (and please consider them repeated).

  41. Anon, I agree, and I think you understand my point as well.  If the invention that is late claimed in not described in the specification as filed, even if the elements are individually described, then we do have a failure of notice.  I think this is one of the reasons why Europe requires strict disclosure of inventions in the first place.  There are other reasons as well; and as we now venture into FTF, we might find that we need to follow Europe on this path as well.

  42. Yah Ned the most important fact in this Case is the Sept 22, Application, the beautifully written one, On that lovely Rice Paper with red margin lines . The one with the 3 different Drawings I was only allowed, and the one that just didn’t look right to me. That will clear up a lot. Thanks again Ned you’ve been wonderful.

  43. Ned,

    Your conclusion from my argument is an over-reach and a bit of a strawman.

    Publication is and does provide notice. I never indicated otherwise. To the extent that your statement seeks to nullify this, it is errant.

    But it is not perfect notice. Especially if you concentrate merely on claims! You cannot look at claims in a vacuum. The fact – and it is a fact – that late claiming is sanctioned – both during prosecution and even after issuance must be accepted for what it entails.

    Due diligence, as I have oft stated, means more than just looking at claims (original or issued). It means understanding what the specification – the application in total – provides, noting the window status (availability of increased scope reissues) and noting the family status (are continuation chains intact). Each and every one of these things provides a piece of “notice.” It is against this background that my comments of “nuance” and “finesse” must be understood – I daresay by those with a mind open to understanding.

  44. Anon, your points are all well considered.  There is no hard and fast prediction here, but I think it is a possibility given Europe.  The likes of Rader follow what is going on there, just as an example.

  45. Yah Ned… Explain how things that I signed and said no to and have been abandoned have any strength? It’s not my fault if the Examiner doesn’t know what PRO SE or NO means! That’s your problem. And how can the one that was pulled out be over there? Fall on the Sword. It really doesn’t matter whether you do or not. The files will do that for you. Now for my IDS!

  46. Ned,

    Our posts crossed in timing.

    I would further add that your views reflect a reliance on Harmonization, that may be reflected in trends, but that there is no legal compunction to follow that trend, or in following that trend to abdicate any portion of US jurisprudence.

    It is not a fait accompli that US law will follow every facet of EP law. Not only should such thinking be critically evaluated, it should – I daresay – be challenged as something intrinsically desired. Harmonization at any cost is an extremely bad idea.

    Further, I think the reliance on a “post-Ariad” case would only take you so far. One of the points being discussed – a point you have recognized – is that Ariad will not stop all late claiming, if the specification is written carefully enough to build that “Lego” style capability into the specification. It is precisely this type of careful building in that I meant by “finesse” that stirred the hornet’s nest way above.

    Notwithstanding the attacks on those posts, my position stands as the correct position on this matter.

  47. Anon, then publication of a patent application is not suppose to provide notice to the public?  That is what one concludes from your argument.

  48. Ned,

    “Intervening rights” is an equitable treatment, but you have to ask yourself, an equitable treatment of “what?” Answering that question wins the argument.

    P. Falk’s point is only strengthened by the notion of intervening rights, not weakened. As WT points out, the concept is about notice and I would add that it seeks to do justice to those who act in reliance on a patent’s issuance.

    The plain fact of the matter is that even after issuance – and for a limited time – claim scope can be increased without any harm of “new matter” being introduced from the specification into the claims.

    This does in fact refute the stated EP notion of – or at least the proposed EP notion of – new matter being decided by the initially introduced claim set. “Late claiming” is fully sanctioned by the laws of the US.

    In fact, this is a fundamental reason for the strategy of keeping continuation applications alive (to minimize the loss effects of reissue).

    Anyone contemplating making a large start-up investment is most strenuously advised to perform due diligence on both patents and patent applications.

    WT,

    The equitable considerations can include and allow for continued actions even after notice. So even though you are correct about the section of law being about notice and the ability to obtain patent rights, the enforcement period affected can be more than just the time of lack of notice.

  49. Ned,
    I want to thank you from the bottom of my AKIN Heart,
    Thank you for all your help, I couldn’t have done it without you.

  50. I beg to differ.
     
    We are really talking about filing claims to subject matter disclosed in the specification and to which neither claims or any discussion in the specification previously indicated was an invention.  No one reading the published application is even remotely on notice that the subject matter might be claimed. 
     
    Historically, we in the US have had no problem with late claiming in continuations — with the sole exception of Muncie Gear and some Circuit Court support outside of the Federal Circuit.  But it is the practice in Europe to not allow it.  I think, given an appropriate case post-Ariad, that we will adopt the European practice as well.
     
    This is just a prediction, but given the weight of authority in Europe on this issue, we will follow eventually.
     

     

  51. “Intervening rights” is about notice and you do lose some enforcement – for the lack of notice period. But intervening rights has nothing at all to do with the discussion point on this thread about the ability to obtain patent rights on things claimed late.

    Ned, your counter is weak because its focus is off point.

  52. So obviously I have to re fire the Atty’s on the last Application. OK. Come Monday I’ll do it again. Maybe that’s why the other one lied. Makes sense.

  53. In order to be a Lawyer, you have to go to school. You have to graduate from that College and take a test in order to obtain the License. Then you must swear to DO NO HARM!
    To be an Inventor, you don’t need a license,you don’t need anything but vision. You don’t need to be a Genius. You don’t even need to go to college.And you certainly don’t need a license in the area you invent from. Now if what you claim requires licensing such as a better way to operate, then that is understood. But for anyone to grade an Inventor on their ability to make a Gadget is beyond me. Why should a persons skill level on something not related to their work or what someone claims as their ability… when with their ability they created the Gadget… seems ludicrous.
    Where do we get these people that Judge on what we are allowed to be, or what we are allowed to think, or invent, or say? Or are allowed to hammer nails down on a BOX that was designed to keep a person from doing just that? and all the while they are breaking the Law to do just that?

  54. So I ask you did special interests twist this law to fit their Agenda? Did they allow the audacious one to stay on with free reign? How can the USPTO survive if there is no check and balance?

  55. Ned,
    Do you think that the Pond they drank from was full of Kool Aid, and now therein lies a dead Pony? You all seem to think I am an empty Vacuum. The only thing empty in my Vacuum was the knowledge that my Country was like I was told. And all the things I was told by OED I believed. But thankfully he is gone. And hopefully he will never get a Job in government again. And consider the audacity of blocking the audacious one from ever practicing Patent law as an atty. when he the one in charge of the blocking stayed on till someone put their foot down. Where is the Justice in that? There isn’t any.

  56. One more thing,

    Doesn’t the US allow limited broadening reissues for reasons that one did not originally claim as much as one could, as a right? 35 U.S.C. 251

    Wouldn’t a law allowing such right provide a de facto proof that late claiming is not only a possibility, but a sanctioned reality?

  57. Mr. Falk, you make very good points here that some combinations do not have to be literally described in order to be described in sufficient detail to satisfy the written description requirement. However, I couldn't help but notice that the European practice regarding new matter, at least to some extent, is what we in United States would call late claims to subject matter disclosed in the patent specification but which was otherwise not claimed at all, perhaps because at the time of the application the patent attorney or inventor did not realize that the invention was not the one they thought it was, but something else.

  58. Is it really people’s experience that only explicitly combined items are what is covered?

    I find it interesting that the opponents to the view being expressed of allowable later combination claiming are some of the same people on other threads crying for the “EPO’s standing Principle of Synthetical Propensity” which stands for a willingness to build up from the Lego brand’s building blocks of features presented. It seems that an express unwillingness is being mandated incongruently.

  59. However, I might be wrong in this. There is language in Ariad that suggest that the WDR requires that the claimed “invention” be described in the specification.

    Now, what does this mean if a particular combination of elements is not described to be an invention even if each element is individually described?

    What if…

    …the singular elements are described in great detail, and…

    …a few examples of combinations are also described, and…

    …language to the effect of “the invention is also considered as to these singular elements combined in any permutation; does that:

    provide enough description in the specification to satisfy Aried?

    provide enough description in the specification to allow a later claim amendment to a combination of features?

    It seems like many commentators do not consider anything less than an explicit combination of features to be something originally covered in a specification. If language addressing combinations is present, even if the explicit combinations are not, how is this considered “new matter” in later claims? I think the allusion to words and dictionary is a bit over the top, as typically a specification covering alternative elements does not leave things at a “word” level.

    Is it really people’s experience that only explicitly combined items are what is covered? I just have not seen this.

  60. And now, IANAE, you’re the next one I don’t understand. I am not a cat owner, no. I don’t think of myself as “upbeat” either. But I did much enjoy your inspired link of “cat” with “throw up”. LOL in fact.

  61. thank you anon for the opportunities you so generously throw up.

    Max, you’re not a disturbingly upbeat cat owner by any chance, are you?

  62. I appreciate the salutary warning. I shouldn’t rise to the bait, I know. But first it’s fun and second it gives me, each time, another chance to make my point for the benefit of readers other than anon.

    So, thank you Big for reading, and thank you anon for the opportunities you so generously throw up.

  63. Careful, Max. You should know better by now: problems understanding anon’s contributions are always the reader’s fault.

  64. …but perhaps to “capture” a particular permutation you have to “particularise” that particular permutation?

    As to “finesse” I see that you wrote:

    “I do not think that the AIA will result in a more strict application of any “no added matter” requirement – we are already there; it’s just that the US practice is more finessed about playing that game.”

    And I do agree, that my understanding of what you write is indeed incomplete. I have no idea what mean by “US practice is more finessed about playing that game”. Are you perhaps labouring under the misapprehension that “more finessed” means “less rigorous”?

  65. He urges that one carefully writes down all the letters from A to Z and then, as a careful drafter, diligently

    MaxDrie,

    Your understanding of what I wrote, like your understanding of the word “finesse” is woefully inadequate. One does not have to write down every permutation of a possible combiantion in order to capture those permutations.

    THINK man.

  66. Anon writes about “the notion that individual features are combinable”. He urges that one carefully writes down all the letters from A to Z and then, as a careful drafter, diligently tells one’s readers that these letters are “combinable”.

    Who here thinks that all that careful drafting is enough to “disclose” even one particular word in a dictionary, or in the alternative, all the words in the dictionary?

  67. CC,

    A lot of noise in your response, all of which I had already dealt with in my post with “Careful drafting should include the notion that individual features are combinable – if that is indeed what is desired. One does need to give notice of such.

    This is what I mean by “finesse” – a term you have obviously misapplied in your “EP practice has only made it more and more restrictive…” comment.

  68. Historically PTO management has been more concerned with avoiding embarassment from silly mini-scandals

    Can anyone say Reject-Reject-Reject?

  69. Thanks all, especially Leo, for some useful comments on the interaction between late arrival of a claim and late arrival of some “matter”.

  70. Sorry, Max, I don’t follow you. I don’t see what best mode has to do with anything. (And I think you generally overestimate its significance, for what that’s worth.) And “added subject matter” is certainly a viable ground for an invalidity attack in litigation, but I can’t say that it’s particularly popular, perhaps because it relies on fact issues that would typically get sent to a jury.

    As to why examiners don’t focus on the issue, I’d say that’s because PTO management hasn’t focused on the issue. Historically PTO management has been more concerned with avoiding embarassment from silly mini-scandals about supposedly nonsense patents like IBM’s toilet reservation patent and the notorious peanut butter and jelly sandwich patent.

  71. You’ll note I was referring to the USPTO’s treatment of added matter, not the courts or any “rule” of mine. Many people think it is a bit soft.

  72. Max and CC, Several points:

    1) I will agree that US examiners are not obsessive or even diligent about new matter. This may lull US practitioners into a sense of complacency where they think they can get away with murder, such as with the steel screw example above.

    2) The issue of whether a critical limitation was in fact disclosed has historically arisen in the US primarily in challenges to a claim’s right to the benefit of the filing date of an earlier application. The issues typically resolved by whether one of ordinary skill would recognize that the critical limitation was disclosed.

    3) Late Claiming of new combinations not involving new disclosure: However, the only case that I can think of where the new matter was a new combination of elements actually disclosed in the parent, but not otherwise described to be an invention, was Muncie Gear. This was last US Supreme Court case to deal with issues of new matter.

    Now that case spawned a great deal of acrimony in the US, and a division of opinion. The doctrine that case is known for is the late claiming doctrine, where the new combination is first claimed later. This is exactly what CC and Max describe as the EPO practice.

    Outside of the CCPA, some circuits recognized the doctrine of late claiming announced in Muncie Gear. However, the doctrine was not adopted by the CCPA:

    Rich wrote an opinion either for the CCPA or for Federal Circuit (I don’t recall which right now) which expressed the opinion of the court that Muncie Gear was limited to the more traditional new matter doctrine and did not extend to late claiming.

    That view has not been challenged as far as I know in any Federal Circuit case since. I would think it safe to say that late claiming is not the US law unless someone challenges Rich’s view of Muncie Gear and takes the issue back to the Supreme Court.

    However, I might be wrong in this. There is language in Ariad that suggest that the WDR requires that the claimed “invention” be described in the specification.

    Now, what does this mean if a particular combination of elements is not described to be an invention even if each element is individually described?

  73. Looks like I failed to make my proposition clear. So I’ll try again. Here it is:

    EPO Examiners are obsessive about the prohibition on adding matter during prosecution because of the spotlight that, after issue, when validity is put in issue, illuminates any prosecution amendment whatsoever that they let in, prior to issue.

    USPTO Examiners have no experience of any such spotlight, so don’t care whether prosecution amendments at the USPTO add matter.

  74. Perhaps on a more fundamental level with repect to best mode, if the issue were to come up during prosecution, it seems to me that one could simply file a CIP to add the omitted “best mode.” As long as the added information is not necessary for purposes of enablement, written description, etc., of what you are claiming, the best mode problem is gone.

  75. OK, Leopold, so the “immediately discern” test is more like a novelty than an obviousness test. Same with the “written description” test for prosecution amendments, I gather. Perhaps the difference between Europe and the USA is the popularity of “added subject matter” attacks on validity of issued patents. If a failure to include the Best Mode is no ground of invalidity, how much are people going to bother themselves any longer with including it. If added matter is no attack after issue, why should USPTO Examiners bother to check for it?

  76. The second paragraph (at least) in my last post doesn’t make much sense, on second reading. Please ignore.

  77. It was a smart@ss comment that was probably based on my misunderstanding, which can safely be ignored, and for which I apologize.

    In fact, I’m in about 92% agreement with anon on the substantive points discussed above, at least as a matter of underlying law. One difference is that I can’t say that US law is quite “every bit as strict” as EP law, as I have not seen the “inextricably linked” argument in the US, although I think it could appropriately be applied to certain fact patterns, within the current law. Underlying law aside, patent office practice in this area in the US and the EPO is certainly different, however.

  78. Context is important, of course. A steel screw might well be obvious from a disclosure of a brass screw and a steel nail, but I don’t see the skilled person “immediately discerning” a steel screw from the illustrated embodiments you list. The law as I understand it also doesn’t let you get away with narrowing a claim limitation from “metal wall fastener” to “steel screw” without support in the description for not only metal screws but steel screws in particular. That’s not to say it doesn’t happen, and probably far too frequently, but it’s not supposed to happen.

    Courts (and practitioners) often get way too wrapped up in verbal and grammatical gymnastics when construing claims. At least with respect to identifying many things that are not covered by a claim, there’s no adequate substitute to reading and understanding the description. If the specification doesn’t explicitly mention steel screws and also fails to discuss applicable circumstances under which steel and brass are interchangeable, then a newly presented limitation to a “steel screw” is probably new subject matter.

  79. Brilliant post Bloom. I know what “directly and unambiguously derive” means (from thousands of EPO decisions). Your test “immediately discern” is meaningful to me but whether it means one thing to me and a different thing to the CAFC, I don’t know.

    I wonder how widespread in the USA is the maxim that the general does not disclose the particular. Suppose a specification discloses screws nails rivets and dowels, and the illustrated embodiments show a brass screw, a steel nail, a copper rivet and a wooden dowel. In the end, in an attempt to get round the art, and get to issue with something useful, you claim a steel screw and assert that it is your patentable invention. A steel screw is not directly and unambiguously derivable from the app as filed. A later EPO filing announcing and enabling a steel screw would be novel and claimable, patentable as the First to File for a steel screw. And in the USA? How immediate does “immediately discern” have to be?

  80. He/she has already told you what you “desire.”

    Come again? I don’t see that.

  81. Are you next going to tell me and CC what the law is, under the EPC?

    Why not? He/she has already told you what you “desire.” Clearly the force runs strong in this one.

  82. I also think pay to play’s rule is a bit soft. This is from a case involving a continuation-in-par, but I think it is probably a reasonably accurate statement of the general rule:

    “The fact finder must determine if one skilled in the art, reading the original specification, would immediately discern the limitation at issue in the parent.” WALDEMAR LINK v. OSTEONICS CORPORATION, 32 F.3d 556, 31 U.S.P.Q.2d 1855 (Fed. Cir. 1994).

    “Immediately discern” isn’t quite “directly and unambiguously derivable,” perhaps, but I don’t think it’s very far off. And it’s certainly not “what can be reasonably inferred.”

  83. Thanks for that “more along the lines of” offering, Pay to Play. It is the best I have been given, thus far. How does one know whether “matter” is or is not added during prosecution? Is there a leading case I should be reading, that gives us the rule?

  84. anon, I do not recognise your 8:44 musings on claims as in reply to anything I wrote. I am not CC. Whatever do you mean by “the way the law is written…..in the EP”? Are you next going to tell me and CC what the law is, under the EPC?

  85. anon, as I’ve answered in my reply below in more detail, I’m afraid that you have misunderstood my point: in European practice, the whole content of the application as filed can also serve as basis for amendments to the claims. However, European case law sees the content of the application as filed as disclosing combinations of features, rather than individual features. So, if your amendment introduces a new combination of features, even if the individual features were present (and sometimes even when they were present in combination, if they were “inextricably linked” to other features), your amendment is considered to introduce new matter.

    To put it pithily: in EP practice, the application isn’t a Lego.

  86. I doubt that US practice is more “finessed” on this point. “Finessing” EP practice has only made it more and more restrictive…

    I’m also not sure we are understanding each other. When I wrote that in European practice what is claimed “must have been contained in its claimed form” in the application as filed, I did not mean that all features have to be in the claims of the application as filed. Only that the specific combination of features of each amended claim must have been “directly and unambiguously derivable” from the content of the application as filed, and I mean the whole content.

    What does this mean?

    Well, in the first place, obviously, if you have a claim with features A+B, and you try to amend it so as to incorporate a feature C which is nowhere to be found in the application as filed, that’s an extension of subject matter. Same if you had feature C’, which was quite similar but not exactly the same as C, or if C would have been obvious, but was not directly and unambiguously there.

    And, if feature C is disclosed in the application as filed, but in combination with only A and/or in combination with only B, and never in combination with both A and B, A+B+C would also be an extension of subject-matter (and this, again, even if A+B+C was obvious in view of the content of the application as filed).

    When things get really complicated is if C was disclosed in combination not just with A and B, but also with D, E and F (typical case when C is disclosed only in the detailed description and/or drawings). Then you must be able to show that feature C was not “inextricably linked” to D, E and F (good luck with some EPO examiners).

    Same if you don’t want to add anything to the claims, and instead want to take something away. So if you start with A+B, but decide that B is superfluous after all, deleting B may be very, very difficult, if it isn’t “clear and unambiguous” from the application as filed that you could have A without B.

  87. Instead of requiring any added matter to be “directly and unambiguously derivable”, the test at the USPTO is more along the lines of what can be reasonably inferred from the specification as a whole.

    Is this wishful thinking, an opinion or both?

    It certainly is not the legal view of how things are now. At least for “the invention.” It may be true for what a PHOSITA may know or bring to the table, but since any such “common knowledge” is expressly not a part of the “invention” anyway, any such “matter” is immaterial to considerations of “new matter” to the invention.

    In other words, this is blowing smoke.

  88. Instead of requiring any added matter to be “directly and unambiguously derivable”, the test at the USPTO is more along the lines of what can be reasonably inferred from the specification as a whole.

  89. With respect to the new joinder provision of AIA, new 35 USC 299 is virtually identical to FRCP 20(a)(2) with the exception that same transaction/occurrence or series of transactions/occurrences must relate “to the making, using, importing…of the same accused product or service.” And under the new section 299, there must be questions of fact common to all defendants that will arise (FRCP 20 says questions of law or fact common to all defendants). It seems to me that if this type of joinder was previously permitted under FRCP 20 (depending on the court), the new requirements of 299 would not result in a different outcome in this case–the claims relate to the making and using of the same product/service, and there are common questions of fact (namely, how the facebook feature is constructed and operates).

    Of course who knows how courts are going to interpret 299. But it seems to me that if you just look at this lawsuit as naming a manufacturer and one of its customers, the new joinder rule ought to allow joining the two as co-defendants.

  90. Interesting joinder issue under the AIA. If he is right to treat the individual users as the infringers, do these suits arise out of the same transaction or occurrence? Or should they be split into 4 million different suits?

  91. Read as broadly as possible, would claim 1 read on domain registration services? I think we had those before 1999.

  92. MaxDrei,

    I did not see your post prior to my post.

    Comparing the two, I would disagree (for the reasons already stated) that the AIA – in itself – will have the impact on drafting practice that you indicate.

    Liberality with prosecution amendments is completely unaffected with the AIA changes – outside of any desire to apply pre-AIA law to applications in process during the transition.

    You are conflating drafting standards with examination reality. As long as the examination path allows – even promotes – an artificially expanded view of claims during prosecution (and I am not stating a value judgment on BRI, as opposed to BUI), there will be the give and take battle for maximum claim scope. And the notion that as-filed claims – as opposed to the as-filed application – locks in the invention will continue to be an improper view of the process.

    Matter is not limited to the as-filed claims. Never has been.

    This would also explain your errant statement of “most every nuanced prosecution amendment adds matter.” Adding matter – in and of itself is a red herring. Adding new matter is the real point. And matter is not new to the invention, even as it is new to the claim, if that matter was present in the application. Your musings about the EPO Examiner reasons quite misses the distinction between what is divulged and what is claimed – there is a difference and pretending there is none to begin with is quite the fallacy. That fallacy is what is “wrong.” Further, your conflation of “How about thinking of EPO strictness as merely its implementation of a written description requirement, no more, no less?” further evidences a misunderstanding of the different parts of an application. Clearly, you desire an application submission with fixed and final claims. That is just not the way the law is written. In the US, nor in the EP.

    After all, while the claim is the name of the game, it is the entire body of the application that sets and controls the “new matter” boundary.

  93. I agree that all the elements seem to read only on the entity operating the system, not the individual users. I don’t see where the individual business owners have liability unless the plaintiff has some new theory of contributory infringement. The claim can’t be infringed without the actions of a user.

    One element of the independent claim is “receiving by said interface server an online request for said individual URL from a requesting source…” Does a request from a business user for a static URL have a non-infringing use? Would it matter?

  94. Good discussions.

    As CC notes, US practice does rely more on individual features being able to be isolated from specific embodiments, regardless of whether those embodiments are in written or drawn form.

    Careful drafting should include the notion that individual features are combinable – if that is indeed what is desired. One does need to give notice of such.

    But this reaches the same point of “the invention” fully contained in the application as filed.

    I distinguish the “as claimed,” since claims themselves are allowed to change during prosecution; and indeed, with the state of prosecution (BUI, commonly referred to as BRI), the “must have been fully contained in its claimed form” is an unduly harsh and unrealistic expectation.

    I do not view this as some form of “Platonic” ideal in the inventor’s mind at all. In fact, the work involved for US application preparation is taking that “Platonic” ideal from the inventor’s mind and making sure it is captured in the application since the US has, in fact, a no new matter requirement – every bit as strict (in the legal sense) as the EP’s.

    Consequently, I do not think that the AIA will result in a more strict application of any “no added matter” requirement – we are already there; it’s just that the US practice is more finessed about playing that game.

  95. Thanks CC for those mature words. I too think that strictness on prosecution amendments is an inevitable consequence of a FtF regime. If one is liberal with prosecution amendments, the patent might go to a party which was NOT the first to file on that very invention defined by the claims. So, FtF will do wonders for US drafting standards.

    Zvicka, what is sauce for the goose is also sauce for the gander. It is increasingly said that EPO strictness on prosecution amendments has been created by 30 years of patent attorney argument to the EPO, why the content of the app is novel over the disclosure of prior document D1. Whether a prosecution amendment adds something to the app as filed is a novelty test. So, when most every nuance endows the claim with novelty, most every nuanced prosecution amendment adds matter. You need to factor in the Protocol on the Interpretation of Art 69 EPC, to apprecaite how wide claims in Europe can get, thanks to its Doctrine of Equivalents. EPO Examiners reason: Either the amendment adds matter or it doesn’t. Why is the attorney so desparate to get it in, if it adds no matter? If it adds no matter, what’s wrong with the thing as it is, prior to introducing the controversial amendment.

    Oh and by the way, you as Applicant really don’t want to go to issue with a dodgy amendment in claim 1 do you, for you will find yourself, after issue, in the most exquisite CATCH 22 situation I know, that provided by the interaction of Art 123(2) and (3) EPC.

    But what about the US “written description” requirement. That’s also a novelty test, if I’m not mistaken. How about thinking of EPO strictness as merely its implementation of a written description requirement, no more, no less?

  96. Zvika,

    the EPO’s Boards of Appeal also have plenty of case law accepting that claim features may be “directly and unambiguously derived” from drawings. Where the case law is more restrictive is on whether individual features can be isolated from specific embodiments, regardless of whether those embodiments are in written or drawn form. In particular, the case law takes a very dim view of combining features which were only separately disclosed in the application as filed.

    This said, I’ve experienced, like you, EPO examiners overeager in rejecting amendments (my advice: appeal), but also, like MaxDrei, US practitioners requesting amendments which not even with the best will one could pretend to be “directly and ambiguously derivable” from the content of the application as filed. That the frequent reply of these practitioners to this objection is that “but that’s what the invention is!” leads one to the conclusion that there’s perhaps a philosophical difference between the FtF and FtI systems, with European practice taking a strict view that “the invention” must have been fully contained in its claimed form in the application as filed to be able to benefit from the date of filing, and US practice taking a broader view of “the invention” as a Platonic ideal present in the inventor’s mind at the date of invention.

    Consequently, I wonder if the America Invents Act may thus ultimately result in a more strict application of the “no added matter” requirement in US practice as well.

  97. Max – I am not a US PA but from experience with the USPTO and EPO, I can say that in the US they seem to understand that information can be transferred & understood via Figs, for example. Also, the USPTO seems to understand that examples may merely be examples for explanation of what has already been disclosed, whereas at the EPO, ANYTHING added is verboten (whether most people would agree it is not NEW matter).
    I think the EPO does a good job of examination, but their interpretation of new matter can be extreme, to say the least.

  98. I’m grateful to all those who responded to my point about not knowing how many “cards”. Bit like Hydra, isn’t it: no sooner have you despatched one published pending threatening appln but the next one rears up?

    I welcome the reassurance that there is, also in the USA, a prohibition on adding “matter”. But when I have to advise American clients that their wished-for prosecution amemdment at the EPO surely adds matter, they get very upset and retort that, in the USA, it certainly is NOT new matter.

    This mystifies me, for the test in Europe is whether the document as amended includes any matter that is beyond what is directly and unambiguously derivable from the document before it suffered the prosecution amendment. What other sensible definition of “added matter” can there be? But there must be another one, at least in the USA, a more liberal one. What is it please?

  99. ??

    And the point of such fluctuation is…??

    What’s the word..?

    Ah yes = immaterial.

    As CA notes, it’s there or it’s not there. If it’s there, then you can know it, react to it, plan for it, devise around it. The plain and simple fact o fthe matter is that the application is frozen at the time of submission. Any fluctuation of the values and rules of the game will “float” all facts frozen in time, both facts known and facts unknown. Knowing the cards (how many and face up) tells you all that you can ever know; no matter how the values and rules of the game fluctuate.

  100. This does not appear to be a prudent lawsuit to pursue. Then again I am a political party fearing man.

  101. It’s there or it’s not there.

    Sort of like the re-exam information.

    (this really is not that difficult)

  102. You did not need to visit your wanna be friends over at techdirt 6.

    All you had to do was actually read the story above:

    The patent itself is in the midst of an inter partes reexamination originally requested by FaceBook. See Reexam No. 95/001,411.

  103. >>associating an individual home page for each said >>individual member of said plurality o

    Claim 1 recites the above elements. The individual users aren’t doing this. Only Facebook could be said to do this. So, what’s up? Summary judgement. Rule 11.

  104. O, so all you have to do is examine the application and every possible way it could possibly distinguish even slightly over the prior art and you know the exact contours of what he will have the legal right to exclude you from!

    Lulz.

  105. So nobody knows how many cards he has in his hand

    Given the fact that no new matter can be added to enjoy whatever comes of the disclosure, I would say that not only how many cards are known, they are all face up.

  106. He’s whining about those carpet stores that have the fake going out of business sales and never seem to go out of business…and I don’t blame him. They drive me crazy too!

  107. The bit I like is “At least two other continuations of the applicatoin are pending and claim priority to the original 1999 filing date.” So nobody knows how many cards he has in his hand, but everybody knows for sure that there are more than enough patent applications still pending to keep the game in play for the entire 20 years from filing.

    No wonder American inventors get angry about the EPO 24 month cap on the period for filing any and all continuation (ie divisional) applications.

  108. creating individual home pages for members of a group of members that contain controls for sending messages to and for submitting comments about the members.

    Promote the progress!

    Heckuva job, Dudas.

  109. Prior to law school, Weyer was a Peace Corps Volunteer in Lesotho and now works as a volunteer engineer in Antarctic expeditions.

    d_amm liberals

  110. And the &*(t hits the fan? Praise be to the stupi dest of the stu pid patent holders for eventually *(&^ing right where the source of their power is.

    Soon they’ll be accusing congress of infringement, probably of a mental process patent on how to make decisions. I would like to see how far that goes.

    ” 19. EVERYMD has given notice of its patent rights by marking its website at
    http://www.everymd.com with the ‘122 patent number”

    Because everyone who goes to facebook also goes to everyMD.com . lulz, some “notice” there.

    ” 28. None of defendants have taken advantage of EVERYMD’s voluntary
    licensing program, which is now no longer available to the”

    I wonder why.

    “29. Defendants each have actual notice of EVERYMD’s patent rights but
    Defendants continue to act in conscious and willful disregard of those rights. ”

    Orly?

    ” 30. Defendants’ infringements of EVERYMD’s patent rights have
    irreparably damaged EVERYMD and will continue to cause irreparable harm unless
    enjoined by the Court.”

    Yep, making a facebook page irreparably damages EVERYMD. LULZ.

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