Federal Circuit Again Supports USITC Jurisdiction for Pure-Enforcement NPEs; Court Again Splits on Claim Construction

by Dennis Crouch

InterDigital v. USITC and Nokia (Fed. Cir. 2012)

InterDigital is a publicly traded company whose primary revenue comes from patent licenses.  The majority of 3G mobile handset manufacturers pay royalties to the company.  After conducting its investigation, the US International Trade Commission (USITC) found that Nokia did not infringe InterDigital’s patents.  On appeal, the Federal Circuit has reversed based upon the USITC’s improper and unduly narrow construction of the claim terms “code” and “increased power level.”

The USITC was designed to protect US industry from “unfair” foreign competition.  Thus, the staute includes a “domestic industry” requirement that must be satisfied as a precondition of enforcing patent rights through the USITC.  In the appeal, Nokia argued that InterDigital could not satisfy the domestic industry requirement.  That argument was rejected by the USITC and on appeal as well.  The Federal Circuit held particularly that “patent licensing alone” can be sufficient to satisfy the US industry requirement and that the statute does not require that any actual articles covered by the patent be manufactured in this country. “That is, the domestic industry requirement is satisfied if there is a domestic industry based on substantial investment in the patent’s exploitation where the exploitation is achieved by various means, including licensing.” (internal formatting removed).

Writing in dissent, Judge Newman would have sided with the accused infringer and held the patent not-infringed.  Newman writes:

The panel majority’s enlargement beyond the invention described in the patents, in disregard of the protocols of claim construction, simply adds uncertainty to the patent grant. In today’s technology-based commerce, rational economics requires that the patent provide a reliable basis for investment. The patentee is in control of the specification that describes the invention. The panel majority’s theory that “the inventors’ failure to include a reference to the alternative embodiment in the specification does not justify excluding that embodiment from the coverage of the claims” is a departure from routine rules of the meaning of legal documents, and in negation of the notice purpose of the patent claim. From this unsound approach to claim construction, and its incorrect conclusion on the facts of this case, I respectfully dissent.

Judge Newman’s suggestion here is to give claim terms a narrow definition when the patentee uses an ambiguous term and does not provide any limiting definition to that term. 

121 thoughts on “Federal Circuit Again Supports USITC Jurisdiction for Pure-Enforcement NPEs; Court Again Splits on Claim Construction

  1. Max, If the invention had nothing to do with exactly two wheels, I think the broader claim construction implied by the dependent claim should prevail.  For example, if the invention were a new drive mechanism, what is the difference between driving one wheel vs. two?

  2. For the second time in less than a week Ned has capitulated on legal matters and MM has followed right behind with a “Seems reasonable” that self-defeats previous positions held by both.

    See link to patentlyo.com

  3. ….and, thus, I take it, Ned, the mere switch from implicit to explicit recitation of a front and back wheel does not widen the scope of the motorbicycle claim.

  4. Ned thanks for the Hemcon tip. The answer in that case, 5:5, is what I was driving at. It’s what I would expect, in a hard case.

    I agree that your “motorcycle” could have three wheels. That’s why I carefully wrote “motorbicycle”.

    Further, don’t you have in the USA a rule of interpretation that the singular includes the plural, and the plural the singular, unless the context dictates otherwise? Does not your envisaged tricycle X also have the claimed (whether it be implicit or explicit) feature of a front wheel and a back wheel, no more and no less than does a bicycle?

  5. Max, in your example, the motorcycle could have one front wheel and two back wheels.

    Assume there's an express definition in the specification that would include the subject matter of dependent claims, I think that the construction is of the definition regardless that there is a dependent claim that implies that the parent claim is broader.

    Also take a look at the recent Hemcon decision.  The specification described the invention to be a compound having a certain score on a particular test, namely a score of zero.  The dependent claim said the test scores could be up to two on the same test.  The Federal Circuit split, 5-5, on the construction of the claim.  One side suggested that the definition given in the specification controlled.  The other side disputed whether there was such a definition, and suggested that the implied broader range of the dependent claim controlled.

    But I think both sides seem to agree that if there is a express definition in the specification that clearly defines the term, the dependent claims that are inconsistent in any way will give way to the express definition.  But in other cases, the dependent claims will somewhat control the construction.

  6. Thanks Ned. Give no weight to my reading of the case. I have no experience or special knowledge in its technical field, and lack the motivation to mug up on the facts of the case thoroughly enough to debate them with you and Leo. I’m more curious to discover how the courts decide how much weight to give to the Doctrine of Claim Differentiation.

    You say that a mere switch from implicit to explicit does change the scope of the claim. That surprises me. But then you cite an exception, where the specification includes an explicit definition of the term that the switch imports explicit into the claim. That surprises me too.

    Suppose the claim (A) is to Motorbicycle including an X. For me, a front wheel and a back wheel are implicit. By this I mean that a “motorbicycle” is simply NOT a motorbicycle if it lacks a front wheel and a back wheel.

    Suppose the next claim (B) is the same, but with that feature explicit. Thus: Motorbicycle with a front wheel, a back wheel and an X. Is the scope different? How?

    Now suppose your specification includes an explicit and perfectly correct and accurate definition of a front wheel and a back wheel. How does the presence of those definitions make a decisive difference to the scope of i) claim A ii) claim B?

    Just curious.

  7. And should a mere switch from implicit to explicit change the scope of the claim?
     
    Yes, unless the specification actually defines the term in question.
     
    Regarding your reading of the case, I came away with the distinct impression that the only codes being talked about were the access codes, short and long.  After a good discussion with Leo, I am more that ever convince that this is the proper interpretation.  The access codes, short and long, were the only thing actually transmitted during the power up intialization sequence described an claimed.  The spreading code itself was not transmitted at all, from what I can tell.
     

     

  8. you have seen me off

    Wasn’t hard to do. No pat on the back is necessary. You are so far away that I daresay ANY step will bring you closer (but “closer” is not good enough, now is it?)

  9. Whether I “like it” or not is of no interest to anybody except you. Whether my hypo is a “Pass” or a “Fail” is interesting only insofar as it will get me closer to understanding how the court thinks.

    If I am so dim that I can’t even understand your cryptic answers, how do you suppose I will ever be able to build you a “better” hypo for you then to fail?

    Feel free to pat yourself on the back, that you have seen me off.

  10. “may be others” = fail.

    Suppositions just don’t cut it. Such do not make a list of suitable metals. It isn’t so hard to understand that, is it?

    I dismiss your hypothetical on the stength (or lack thereof) of your hypothetical. Don’t like it? Build a better hypothetical.

  11. I only wonder why he was hung by his… And sent out of town on a rail then. But now he won’t even have the dough for the Train! Imagine he made a mockery of me and the ##$%&! Imagine he sent me an email asking me to join him on linked in. He’s gonna be linked in alright!

  12. Think? I thought enablement, scope, Morse, any means, and then wrote into my hypothetical (about what biocompatible metal a stent might be made out of):

    “..in your spec, you mention those two and say that there may be others.”

    Selecting one from a list of suitable metals isn’t so hard, is it?

    In the patent here is suit, what did the spec say about selecting a code other than a spreading code? My hypothetical was intended to expose the decisive issue.

    Did you take all that into account, before you dismissed my hypothetical?

  13. You present a strawman as your example (or at the least, an illogical example).

    Think: enablement and scope of claim due in comparison to what you have provided in the specification – then think of Morse and “by any means.”

    Your example fails even before you can get to the differentiation aspect of the claim differentiation doctrine.

  14. Basics: My point is that what is “implicit” is just as much there, present, as when the feature is recited in words, explicit. Suppose claim 1 is “An X atom” and claim 2 adds to that “wherein the atom includes a nucleus”. Under your understanding of how the courts of the USA do claim construction, does the claim directed to “atom X” necessarily and inevitably (by mandatory application of The CD Doctrine) include within its scope an “atom” of X that lacks any nucleus? Can that be?

    My understanding of the CD Doctrine is other than yours. I’ll give you an example of what I suppose to be a correct use of the Doctrine.

    Suppose you invent a stent. The only two biocompatible metals you know are NITINOL and stainless steel. So, in your spec, you mention those two and say that there may be others. Then, in the claims, you claim “Stent X of biocompatible metal”. Your claim 2 recites that the metal is either Nitinol or ss.

    In my example, it is NOT right to say that ss and Nitinol are implicit in claim 1. My point is that my claim 2 is NOT a mere switch from implicit to explicit.

  15. should a mere switch from implicit to explicit change the scope of the claim?

    Yes.

    That is what the doctrine of claim differentiation meand.

  16. Finally got round to reading the majority and the dissent and I think the case makes a nice template for testing the way the English courts do claim construction. They ask: “In the mind of the reader of the issued patent who is a PHOSITA, what was the writer of the claim using the language of the claim to mean?” From the witness evidence recited in the Decision, one gleans that such a reader would take it that when the claim writer wrote “code” in the independent claim the only thing in the mind of that writer was “spreading code”.

    That leaves me with The Doctrine of Claim Differentiation to address. This would not be the first time I have seen a dependent claim recite in explicit terms what is only implicit in the independent claim from which it depends. You guys see such claim structures all the time don’t you? It’s the commonest form of claim drafting, isn’t it? And should a mere switch from implicit to explicit change the scope of the claim?

  17. “From where, UDC?”

    Lol, that’s funny. I’ve heard stories. But come on, splurge a little, Catholic? Super easy to get into, and there are all kind of hotties there :)

    Go halvsies and you get the app no’s as a free bonus.

  18. Well, Leo, and thanks for the explanation, then there was a problem with the construction of "code" by the DC.  You would say that code had to mean "spreading code" because, in context, that is the only think it could have meant.  But the DC held that it meant a sequence of chips, and that seemingly would read on a scrambling code.

    However we have the problem of the dependent claim, do we not?  It said the code of the parent was a spreading code.  This implies that the code of the independent claim could be something quite different.

    But let me ask you this, Leo, the thing transmitted the base station are chips regardless of whether they have been scrambled or mixed with data or whatever.  The signals transmitted in a CDMA system are always the output of a spreader, which employs a spreading code.  In this sense, it makes no difference what one does with the information after it has been spread. It could be encoded with data.  It could be encoded with some access code.  It could be encoded with a short access code.  It could be scrambled.

    Given the context of the specification however, I think it becomes clear that "code" can only mean an access code, either full or short, depending on where in the power ramp the process currently it is.  

    Given that this is a CDMA system, these codes when transmitted will necessarily have been spread in a spreader using a spreading code.

    I don't know about infringement, and whether a scrambling code is a form of access code, but infringement is a different issue than claim construction.

    Finally, since both short and long axis codes are the output of a spreader in a CDMA system, the dependent claim that states the code of the independent claim is a spreading codes make no sense, except to think that the access code, whether short or long, actually is the spreading code itself, i.e., in your example, an 8-bit code.

     

  19. Do you think maybe the reason she wouldn’t send replacement Docs for me to sign…. was because she couldn’t because ( My Law Firm. them) were not the ones that mailed them to me? And the reason I was asked why I had to addresses was just an excuse because they couldn’t believe they weren’t even PUT IN my PO BOX YET, because they knew they weren’t in control and they knew that’s how they were going to be delivered by hand? Because both packets I received form the PO BOX were not mailed they were put in my PRIVATE PO BOX. Just like before.

  20. The above mentioned action of Goldman Sachs is it whats very difficult – they are not interested in reducing the rates; you could implement a “reverse bonus” system or similar to get what you want, but i think this is not gonna happen, at least not in the first iteration of this “test balloon”

  21. I just think sales… and licensing is a stretch for the word ‘industry.’

    I fail to see how “stretch” is appropriate.

    You think “licensing” is not a subset of commerce? That industry must mean manufacturing?

    Downright medieval.

  22. I actually think it’s a good outcome. I think the statute should be read, as much as possible, to conform with out other statutes and treaties. I just think sales of completed articles and licensing is a stretch for the word “industry.” To me, industry is a subset of commerce, but the definition by the ALJ and the court works for me.

  23. A “spreading code” was defined in the specification as a code, that multiples the data signal. The quote from opinion itself reads: “data signal (the signal that carries the telephonic communications) “is multiplied by code sequence, called the ‘spreading code,’ which has a much higher rate than the data.” I think this implies some form of modulation, but not using a fixed signal, but a code that describes different frequencies centered, perhaps, on a particular frequency.

    You were fine until the last sentence, Ned. The problem is that you can’t really understand the significance of the term “code” unless you understand how code-division multiple access works.

    Forget frequencies and think about bandwidth instead. The magic of CDMA is that many transmitters can use the same frequency at the same time – it doesn’t matter which particular frequency band we’re talking about.

    Bandwidth and data rate are related. Imagine that you want to transmit 1000 bits of information per second. You can use any of several different modulation schemes to accomplish that, but you will need something on the order of 1000 Hz of radio bandwidth to do it, depending on the complexity of your modulation scheme and the amount of power you are willing to use. Simpler modulation and/or less power will require something more than 1000 Hz. More complex modulation and/or higher power will let you do it in something less than 1000 Hz.

    Before CDMA, the name of the game was trying to squeeze more bits into a smaller bandwidth, so that we could divide the total available bandwidth among several users, or divide use of a given bandwidth into timeslots, or both. So, the radio resource (time-frequency) was split by frequency (FDMA), time (TDMA), or both.

    CDMA approaches it differently. First, we’re going to take each bit of your input data stream and multiply it by a spreading sequence, or code, turning each bit into a multi-chip sequence. (For purposes of this exercise, 0 times 0 equals 1.)

    Let’s say the spreading code is 8 bits long. Applying this as a spreading code does two things. First, an given sequence of bits from your input data stream is converted into a sequence of “chips” that is 8 times as long. Second, you are creating these chips at a rate 8 times your data rate. So, your 1000 bit/second data stream is turned into an 8000 chip/second stream. Note now that it will take a bandwidth that is roughly 8 times as large to transmit this signal, i.e., on the order of 8 kHz. This is why the code is called a “spreading” code – it spreads the data over a larger transmission bandwidth.

    If you want to do this for several transmitters at the same time and in the same place, you can allocate each transmitter its own spreading code. If you choose these spreading codes carefully (not just any sequence will do) it’s possible to add several (let’s say 4, for example) of the chip sequences from the transmitters together, resulting in a single chip sequence, and then actually extract the original information data streams for each of the transmitters from this single sequence, given that you know the spreading codes that were used. Adding them together is more-or-less what happens when the individual chip sequences are transmitted simultaneously, using the same center frequency. Spreading codes chosen to facilitate this can be called “channelization codes” as well.

    Now, once an information data signal has been spread, it’s also possible to multiply the resulting chip sequence by another sequence of chips, called a “scrambling code.” Here, however, we do it on a one-chip-by-one-chip basis, meaning that the chip rate doesn’t change. For our example, our spread sequence is 8000 chips/second. We will multiply by a scrambling code that is also produced at 8000 chips/second. The result is an 8000 chips/second sequence. The scrambling code is a certain length code that is repeated over and over to make the scrambling sequence.

    Finally, it’s important to know that it’s possible to simply transmit a spreading code sequence and/or a scrmabling code sequence directly, without multiplying it against an underlying data sequence. This is actually equivalent to using an input data sequence that is all 1′s (or all 0′s). In this case, you’ve created a pilot signal. A receiver can tell that it’s being transmitted, but doesn’t get any data (information bits).

    One of the problems in the case is that all of these “codes” – scrambling codes, spreading codes, pilot codes, look more or less the same. The difference is in how they are used. A given code is a spreading code if it is applied to a lower-rate data signal, thus “spreading” the data. The same code is a scrambling code if it is applied to a sequence that has already been spread. The same code is a pilot code if we don’t bother applying it to data at all, and transmit it “plain.” In the case at hand, Nokia wants “code” to mean “spreading code” because it argues that the code pointed to in their product is not a spreading code but a scrambling code. The draftsman presumably decided to use only the word “code” in the claim, rather than spreading code, because he realized that the spreading function of the code was simply not important to the claim. Instead, the important aspect of the code with respect to the claims is that it allows simultaneous bursts from several transmitters to be distinguished from one another. This property is separate from the spreading and scrambling functions, but can be common to both spreading codes and scrambling codes, since these categories of codes overlap.

    I don’t know if any of this is intelligible, but maybe it helps show that the argument in this case is somewhat nuanced, as it really depends on terms of art that carry a lot of baggage.

  24. A product extracted from, purified from or isolated from nature is a product of man albeit sourced from nature. (Focus on the word “from” to get away from the ambiguous word “of.”)

    The key to patentability of such products of man, sourced from nature, is whether they possess a substantial utility not possessed by the product in nature.

    Seems reasonable.

  25. Leo, “Ned, the claim doesn’t talk about long codes and short codes. It talks about the lengths of the transmissions. The length of the code and the length of the transmission are not directly related in a CDMA system.”

    I took another look, thanks.

    It appears that short-codes, access codes, pilot codes and spreading codes were all used in the specification for different purposes. A “spreading code” was defined in the specification as a code, that multiples the data signal. The quote from opinion itself reads: “data signal (the signal that carries the telephonic communications) “is multiplied by code sequence, called the ‘spreading code,’ which has a much higher rate than the data.” I think this implies some form of modulation, but not using a fixed signal, but a code that describes different frequencies centered, perhaps, on a particular frequency.

    In contrast, the pilot codes, the short codes and the access codes were not spreading codes in that they multiplied nothing. Even so, some in the art believed every CDMA code was a spreading code. Why? That was not clearly explained, except that perhaps all CDMA signals were perhaps output by a “spreading circuit.”

    Regardless, the term code in the claim was clearly intended to mean either the short code or the access code as opposed to a spreading code. The short code and the access code served to identify the subscriber station, the short code not fully so to shorten the power ramp up phase.

    But, in the end, you are right. The claim broadly covers all ramp up configurations and not merely those that use short codes.

  26. The key to patentability of such products of man, sourced from nature, is whether they possess a substantial utility not possessed by the product in nature.

    This is not a new way of looking at the product of nature exception.

    This is the “difference in kind” way of looking at the product of nature exception.

    Ned,

    It’s OK to say that you were wrong in your views and that you accept what people have posted. So what if Malcolm bites you? Are you really that frightened of him that you cannot be intelledtually honest? That’s really pathetic.

  27. Malcolm, I have a new way of looking at the product of nature exception:

    A product extracted from, purified from or isolated from nature is a product of man albeit sourced from nature. (Focus on the word “from” to get away from the ambiguous word “of.”)

    The key to patentability of such products of man, sourced from nature, is whether they possess a substantial utility not possessed by the product in nature.

  28. When the 3 unsigned copies were stolen, I thought all I had was a verbatim problem, and the charge of fraud was understood. But for the BOPR to have the Files and know my problem was not one of just fraud is downright illegal. How can I be able to articulate my Complaint if they know more than I do? And then they just let it die. What was the arguement? The Federal jurisdiction line was that of a nya nyan nyan nayh. That way you all come up smelling like roses and I’m skunked? And I still don’t have the Files! But i have enough proof to show the files should be opened!

  29. Agreed, LB. Nice discussion, though. It’s always nice to read the comments of a writer with a viewpoint and the ability to articulate it.

  30. No less than three dismissed petitions last year say otherwise.

    You mean no fewer. But hey, since you’re not going to give us an application # for any of these cases anyway, why not say “no fewer than 45″?

    Go halvsies on a law degree?
    From where, UDC?

  31. ” it would not survive a petition. ”

    No less than three dismissed petitions last year say otherwise. You want structural limitations brosensky? You can dam well draw them out just like everyone else.

    “To the extent that the details of the claim admit of illustration,”

    The “detals” of the “claim” are not what are under discussion. What is under discussion is the claimed subject matter, and according to the claim construction, which I’d happily oblige to make, configurations are supposedly structural limitations. You can draw it out just like any other structure.

    Lulz, I look forward to yet another petition dismissed on these sorts of objections. Some few people wise up and simply amend before wasting money on a petition.

    “There is simply no basis in the statute, regulations, or MPEP for your imaginary complaint.”

    Tell it to your dismissed petition.

    Rely on magic in your application, and it shall dam well die by that same magic.

    “On the bright side, 6, you’ve got serious potential as a litigator.”

    Trust me, I know. Go halvsies on a law degree?

    “the judge why the claimed invention is “literally impossible to make.”

    Simple, remind him what the word “wherein” means and that it isn’t a weasel word used simply to append more limitations. The transmitted signals are not “in” or even “a part of” the claimed device. Since such signals as appended are impossible to make, enablement issue. Non-infringement goes without saying.

  32. If I wanted to meet a particular person in a crowded room, I’d get their attention first before introducing myself.

    Cool story, bro. You’ll need an examiner’s affidavit to get that into the record, though.

    I think we’ve exhausted this topic. Back to real work …

  33. Oh snap, I just happened to glance back, it was leo that made this comment. By all means leo, tell us what we’re all waiting to hear as I asked lester about below.

    Oh snap, I looked back and it turns out that all of them were bogus. 0/6. I guess you’re just average, after all.

    As I noted earlier, the examiner could have and should have complained about the wording of at least the first wherein clause, as it is ambiguous as to whether it actually limits the mobile terminal’s structure. I don’t think this is fatal to the claim as issued, as the claim is certainly amenable to construction, but it should have been fixed while there was an opportunity to do so. There are a few other issues with phrasing that should have been addressed.

    Regarding your drawing silliness, there’s no basis for your objection at all, and it would not survive a petition. To the extent that the details of the claim admit of illustration, those details are amply illustrated in at least Figures 4, 6, and 10. There is simply no basis in the statute, regulations, or MPEP for your imaginary complaint.

    On the bright side, 6, you’ve got serious potential as a litigator. In this case, all you’d have to do is to explain to the judge why the claimed invention is “literally impossible to make.” Non-infringement should be a no-brainer after that.

  34. I DIDN’T COUNT THE YEARS THAT THE FILE WAS MISSING. AND THE ONLY REASON OF COURSE WAS BECAUSE I NEVER THOUGHT I’D SEE IT AGAIN. STATUTES DON’T MATTER WHEN YOU HIDE THE FILES. AND THEY REALLY DON’T MATTER WHEN YOU DENY THEM TO ME!

  35. just that it gives a very broad reading to “industry.”

    No broader than what the law provides.

    See pages 21-23 of the decision:

    Nokia argues that in order to satisfy section 337(a)(2), InterDigital had to establish that there is a United States industry “relating to the articles protected by the patent,” and that proof of licensing activities alone is not sufficient to satisfy that requirement. The problem with that argument, as the administrative law judge noted, is that section 337(a)(3) makes clear that the required United States industry can be based on patent licensing alone; it does not require that the articles that are the objects of the licensing activities (i.e., the “articles protected by the patent”) be made in this country. That is, the domestic industry requirement is satisfied if there is a domestic industry based on “substantial investment in [the patent’s] exploitation” where the exploitation is achieved by various means, including “licensing.”

    That interpretation of the statute is strongly supported by the legislative history that gave rise to the “licensing” language in section 337(a)(3). Congress added subparagraph (C) to section 337(a)(3) in 1988 to overrule earlier Commission decisions that had found that licensing alone did not constitute a domestic industry. Omni-bus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, § 1342(a), 102 Stat. 1212-13. The Senate report on the bill that amended section 337 specifically recognized that the “third factor,” i.e., subparagraph (C), “does not require actual production of the article in the United States if it can be demonstrated that substantial investment and activities of the type enumerated are taking place in the United States.” S. Rep. No. 100-71, at 129 (1987); see H.R. Rep. No. 100–40, at 157 (1987); see also John Mezzalingua Assocs., Inc. v. Int’l Trade Comm’n, 660 F.3d 1322, 1327-28 (Fed. Cir. 2011).

    In the years since the enactment of that amendment, the Commission has consistently ruled that a domestic industry can be found based on licensing activities alone. See, e.g., Certain Integrated Circuits, Chipsets, and Prod-ucts Containing Same Including Televisions, Media Players, and Cameras, Inv. No. 337-TA-709, Order No. 33 (Jan. 5, 2011); Certain Semiconductor Chips with Minimized Chip Package Size and Products Containing Same, Inv. No. 337-TA-605, Order, at 118 (Dec. 1, 2008); Certain Semiconductor Chips with Minimized Chip Package Size and Products Containing Same (III), Inv. No. 337-TA-630, Order No. 31 (Sept. 16, 2008); Certain 3G Wideband Code Division Multiple Access (WDCMA) Handsets and Com-ponents Thereof, Inv. No. 337-TA-601, Order No. 20 (June 24, 2008); Certain Digital Processors and Digital Process ing Systems, Components Thereof, and Products Containing Same, Inv. No. 337-TA-559, Order No. 24, at 84 (June 21, 2007). In those cases, the Commission has held that subparagraph (C) requires a showing of substantial licensing activities related to the asserted patent in order to support a finding as to the existence of a domestic industry based on licensing; it has not, however, required that the licensed product be manufactured in this country. If there were any ambiguity as to whether the statute could be applied to a domestic industry consisting purely of licensing activities, the Commission’s consistent interpretation of the statute to reach such an industry would be entitled to deference under the principles of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984); see Nucor Corp. v. United States, 414 F.3d 1331, 1336 (Fed. Cir. 2005); Cathedral Candle Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352, 1361-62 (Fed. Cir. 2005).

  36. Oh and Jessie, did that Woman that called all the time to claim I didn’t want the files, did she sound like me? Obviously not enough.

  37. So can you explain
    Why was I put in an illegal Bankruptcy?
    Why was the Lawyer allowed to keep my File?
    Why were they allowed to steal my Rod Bracket?
    Why were they allowed to give my rights away, and control my Assets?
    And why was my Atty. in the Bankruptcy allowed to igmore me?
    And why did it take 3 months to get my money back? Was it for a head start?
    And why is the PO BOX I pay for a Community PO BOX?
    And the most important question of all. How did I get such a mess for a family? Each and every one of them threw stones. And when I threw them back they pretended to turn on me, when in fact they had already done so because they wanted what was mine. So the word IS I can define it. PHONY!

  38. Oh snap, I just happened to glance back, it was leo that made this comment. By all means leo, tell us what we’re all waiting to hear as I asked lester about below.

  39. “So much for consistent prosecution across examiners eh?”

    Meh, you can’t expect tar ds that work in the joke AU’s like the ones you deal with to actually examine a patent right.

  40. Well by all means lester jester, don’t keep us all a waitin’. Which do you think are totalz bogus and which did you think are totally the rockz?

    And by all means, do tell how you will get around the same objection to the drawings that no less than three (though probably more) managed to in the last year? Are you a magician? Or do you have some secret argument against having to show all claimed subject matter? Because a lot of people would like to know this secret.

  41. One should not be able to distinguish a new article of manufacture (or combination thereof) from an old article merely by describing how they are used. Fundamental stuff.

    Yes, you’ve said that before, and I agree completely. But that’s not what is going on here. The claim here is distinguishing a(n obstensibly) new article of manufacture from an old one by describing what it does. A subscriber can’t use his old phone to perform the functions described in the claims. The cellular network can’t “use” the old phones to perform these functions.

    And conceptually how does this differ from someone in a crowd shouting a special nickname to get a third party’s attention?

    Nice. That you can come up with this analogy (it’s certainly not a substitutable technology) after the fact proves only that you would make a fine examiner. But that would be a terrible way to go through life, wouldn’t it?

  42. Given your ‘voices in the crowd’ analogy, would you be surprised if I told you that the latter approach (when applied in the context of the claim) actually results in less noise in the room and a faster average completion rate for introductions? That seems like an unexpected result to me.

    It seems the opposite to me. If I wanted to meet a particular person in a crowded room, I’d get their attention first before introducing myself.

  43. Stating that the prior art is “usually preferrable” over an obvious alternative is typically not adequate to rebut the obviousness determination.

    I’m aware of that. But then, declaring that an alternative to the prior art is obvious without any rationale for modifying the prior art is typically not adequate to support a legal conclusion of obviousness. I can assure you that the word “usually” doesn’t typically show up in my office action responses, either.

    Yes, whether one is “preferred” or not may be context-dependent but there is nothing “unexpected” about the result in either context.

    Hmmm… Given your ‘voices in the crowd’ analogy, would you be surprised if I told you that the latter approach (when applied in the context of the claim) actually results in less noise in the room and a faster average completion rate for introductions? That seems like an unexpected result to me.

  44. Right, and courts use –Ordinary meaning–, so…code means code, not spreading code or scrambling code..

  45. “Why don’t you do your own grunt work les”

    Fine, the original claims refer to a “first” code. Those were replaced in a preliminary amendment (16 or 17 months after the initial filing) with the claims in front of the court, which were allowed in a first action allowance (about a month after the preliminary amendment).

    So much for consistent prosecution across examiners eh?

  46. LB the real question is whether it is obvious to go from a perfectly functional one-stage process, in which the cellphone draws attention to itself and identifies itself in a single transmission, to a two-stage process, in which it first draws attention to itself and only then identifies itself. That’s a very context-senstive determination, in my view. In an interference-limited communications system (which CDMA is), it’s usually preferable to have fewer steps/transmissions.

    Stating that the prior art is “usually preferrable” over an obvious alternative is typically not adequate to rebut the obviousness determination.

    Voices in a crowd:

    “Hey, it’s me — Mike!”
    “Nice to know you.”

    versus

    “Hey”
    “Yes, what’s your name?”
    “Mike”
    “Nice to know you.”

    Yes, whether one is “preferred” or not may be context-dependent but there is nothing “unexpected” about the result in either context.

  47. TypePad HTML Email

    Leo, your post seems to acknowledge that a one digit signal will
    work.  Even if two or more signals were sent at the same time, the patent
    envisions a transition into a more normal long-code power ramp phase.  So,
    it make no difference at all if two handsets are transmitting at the same
    time.  None at all.  When the acknowledgement was received, all
    handset that transmitted would transition to the long-code method.  Some of
    them, because the acknowledgement was premature, would take a suboptimal time to
    receive the long-code acknowledgement.  But that does not mean that it
    would not work.  It will.  And in most cases, it might work just as
    well if in most cases more than one handset were not transmitting at the same
    time.

     

    My point about the simplistic cross invention is that even though only one
    embodiment is disclosed, the question of whether the broader construction is 1)
    supported or 2) whether its scope is enabled is one of validity.  That is
    not a claim construction issue.  The claim itself was clearly not limited
    to the detail of the two bolts.  Ditto the claims at issue here.  The
    dependent claim made it clear that the parent claim did not include the added
    subject matter of the dependent claim.  Construing the independent claim to
    include the added matter was clear error, as we seem to agree.

     

     

     

     

  48. LB With some random access procedures that I’m aware of, a random access message that essentially says “My name is X and I’d like to be allocated resources” is transmitted repeatedly, with increasing power levels, until the message is heard and the base station responds with a message that says “OK, X, I heard you, and here is an identification of radio resources that you may use.” Note that it’s critical to do all this efficiently when you’re sharing a precious resource (bandwidth) among a bunch of cellphone users. The claim describes a cellphone that does that a bit differently – it sends a repeated series of coded bursts that distinguishes the cellphone from others that might be doing the same thing at the same time. The base station responds with an indication that essentially communicates “OK, I saw a burst that looked like this – whoever that was can now send me a complete random access message now.” .

    And conceptually how does this differ from someone in a crowd shouting a special nickname to get a third party’s attention? The claim recites little more than this bare concept.

    Oh but wait! The concept is tied to a PORTABLE PHONE WITH A POWERFL COMPUTER BRAIN so everything old is new again. I wonder if the same examiner granted this patent who granted the patent on the computer-implemented method of identifying a bird.

    The base station responds with an indication that essentially communicates “OK, I saw a burst that looked like this – whoever that was can now send me a complete random access message now.” This is enabled by the coding that was applied by the burst

    Again, this is not a method claim. Base stations and cell phones and transmitters are old. Linking them together is old. One should not be able to distinguish a new article of manufacture (or combination thereof) from an old article merely by describing how they are used. Fundamental stuff. But it gets forgotten in certain art units with stunning regularity.

  49. blah blah blah.

    What would be more interesting (and possibly germane), is if you identified a patent that was the cause of the erroneiys trading position.

    Instead, all we have is an anti-business, anti-capitalist rant.

  50. And more news:

    link to cnbc.com

    Trading firm Knight Capital is being forced to raise money after an erroneous trading position wiped out $440 million of the firm’s capital, Knight said in a statement on Thursday.

    Problems at Knight Capital Group, one of the largest firms that buys and sells stocks to provide liquidity to the markets, emerged at the beginning of trading on Wednesday.

    Wednesday’s technology breakdown roiled the prices of 140 stocks listed on the New York Stock Exchange, undermining fragile investor confidence in the stability of U.S. stock markets.

    Promote the progress!!

  51. Interesting response, Ned.

    The invention seems on its face generally applicable to all cellphone-base communications where one would like to ramp power to the level necessary but no more. That the claims are even limited to CDMA systems seems on its face unnecessary. The invention is self-evidently broader.

    Self-evidently? If you say so, but I’m not aware of any other “cellphone-base communications where one would like to ramp power to the level necessary but no more,” at least in the context of a random-access procedure. Ramping power over repeated random access bursts in other systems would actually increase the interference in those systems.

    Leo, short codes – long codes. The long has a complete cell phone address. The short only serves to ping the base so that it acknowledges. I haven’t looked at the spec., but let us say the cell phone address is 12 hex digits. That is huge if the short code is one digit, such as the number 10 hex. If I repeatedly transmit 10 until I receive an acknowledgement, that is a lot more efficient and rapid than transmitting 12 hex digits.

    Ned, the claim doesn’t talk about long codes and short codes. It talks about the lengths of the transmissions. The length of the code and the length of the transmission are not directly related in a CDMA system.

    Furthermore, your one-digit vs. 12-digit approach doesn’t work very well in a non-CDMA system when there are multiple cellphones doing this at the same time, even if those cellphones use different “codes.” The base station will often be unable to identify either of the codes if both are transmitted at the same time. In the CDMA system, the base station will have no trouble detecting both.

    It was definitely not an error on the draftsman’s part to limit the claim to the CDMA context. The claimed invention is only sensible in a CDMA system and only works properly because of the peculiar operation of a code in a code-division multiple access system. You are supposed to read the claim from the perspective of one skilled in the art who has actually read the specification. Ignoring limitations of the claim so that you can completely disconnect other terms in the claim from their technical context is an examiner stunt.

    I think of a comparable Roman invention, the cross.

    Comparable? In what sense?

  52. Alun, it’s just another flail.

    I don’t know why you would be surprised, it’s MM the crybaby after all.

  53. That’s awesome, 6. Of the 5 objections/rejections you presented in this hypothetical office action, exactly 1 is appropriate (although fairly easy to address). That’s better than the average office action I receive from this art unit, so my hat is off to you.

  54. TypePad HTML Email

    Leo, short codes – long codes.  The long has a complete cell phone
    address.  The short only serves to ping the base so that it
    acknowledges.  I haven’t looked at the spec., but let us say the cell phone
    address is 12 hex digits.  That is huge if the short code is one digit,
    such as the number 10 hex.  If I repeatedly transmit 10 until I receive an
    acknowledgement, that is a lot more efficient and rapid than transmitting 12 hex
    digits.

     

    The invention seems on its face generally applicable to all cellphone-base
    communications where one would like to ramp power to the level necessary but no
    more.  That the claims are even limited to CDMA systems seems on its face
    unnecessary.  The invention is self-evidently broader.

     

    I think of a comparable Roman invention, the cross.  The claim is to
    two beams attached at substantially right angles near one end, where one beam
    has a length sufficient to  be embedded in the ground and support a human
    torso substantially elevated.  The specification discloses that the beams
    are held together with two bolts. 

     

    The infringing device has the beam length and attachment points within the
    claim, but attaches the beams using facing recesses and ropes. 

     

    I think that limiting the claim to the two bolts would be ridiculous,
    especially if a dependent claim specifically called for two bolts as did a
    dependent claim here call for the short code to be a spreading code.  The
    question really is whether the invention required the use of a spreading code,
    or was it only the embodiment that required it.

     

    I think the fact that Nokia did not use a spreading code, but did use a
    short code, was sufficient proof regarding enablement.  The short code did
    not need to be a spreading code to work because, I believe, the base tower did
    not need all 12 digits to recognize a short code even in CDMA base towers.

     

     

  55. “Was the use of the word –code– in the original version of claim?”

    Why don’t you do your own grunt work lester jester?

    You want to know what I would do on a hypothetical case that doesn’t exist Lester Jester? Without commenting on the ultimate validity of these claims, or of hypothetical claims that don’t exist, as surely that is a question for a court, I will tell you.

    First, the drawings will be objected to until they show the alleged configurations. Then there will be 112′s out the wazzoo. 112 enablement for claiming a product that construed literally, is impossible to make. 112 1st lack of written description for at least one certain word as written (I would note the two different claim constructions at this point and note which was literal and which was ivo the spec and which one was used for the purpose of this specific rejection under 112 1st). 112 2nd for the two different claim constructions the claim is amenable to. And finally, if I had your example reference, I’d give them the 102 noting which claim construction it was under.

    The applicant then gets to reply, fix the parts making the thing literally impossible to make, or else tell me about how it is totally ez to make, fix the parts which lack WD, and make sure that those amendments distinguish over my Morse code ref, then they submit it, and I treat their response. And he gets to try to amend his drawings, although he may well fail, or else cancel those limitations about the configurations. Simple as pie in hypothetical cases that don’t exist brosensky.

    All that said, the instant patent may well be valid, I do not comment on such, as that is a question for a court. I wouldn’t worry about that tho lester jester, courts know about 112 1st, and they know what new claim constructions may well walk right into.

  56. I will tell you who will have a problem with that: The large multi-national conglomerates, that’s who.

    The point though, is that these same multi-national conglomerates don’t care about protecting the US (case in point: the AIA).

  57. Patents are territorial.

    Let’s start protecting our territory. If other nations want to follow and protect their territory, let them. I have ZERO problem with that.

  58. BRI only applies during prosecution. You should read In Re Morris, because that’s where it comes from.

  59. MM, on the type of signaling, I tend to agree with you that it was quite beside the point. However, I am cautioned by Leo to take a close look and I will.

    I look forward to your thoughts. Let me just add that the approach as a whole doesn’t really make sense in a non-CDMA system. Those other systems generally take a radically different approach to random access.

    One key aspect of the “code” that the opinion doesn’t address (and the court clearly doesn’t appreciate) is that the code serves to distinguish one cellphone’s transmission from others happening at the same time in the same frequency band. This is the underlying “magic” in CDMA. The CAFC is a little off track when it suggests that it is the spreading alone that enables reuse of time and freuqency.

    This ability of the code itself to distinguish one transmission from another is what allows the short bursts to work in this case – the bursts are too short to carry any real information about the identity of the transmitter or what it wants, but are long enough to permit the base station to reliably distinguish one transmitted by cellphone A from another transmitted at the same time by cellphone B.

    Malcolm suggests that it is obvious to use a shorter burst. Maybe, but the real question is whether it is obvious to go from a perfectly functional one-stage process, in which the cellphone draws attention to itself and identifies itself in a single transmission, to a two-stage process, in which it first draws attention to itself and only then identifies itself. That’s a very context-senstive determination, in my view. In an interference-limited communications system (which CDMA is), it’s usually preferable to have fewer steps/transmissions.

  60. TypePad HTML Email

    MM, on the type of signaling, I tend to agree with you that it was quite
    beside the point.  However, I am cautioned by Leo to take a close look and
    I will.

     

    Regarding obviousness, is this judged with hindsight?  How should the
    examiner prove it through prior art?

     

  61. Take a shower, suckie. The adults are having a conversation.

    Looks more like the adults are pointing out how much MM is flailing.

    In many and sundry ways, no less.

  62. TypePad HTML Email

    Leo, upon your recommendation, I’ll give a bit more time to the
    spreading/scrambling code issue.  I was of the impression that the
    shortness of the code was the invention and that it made no difference at all
    what kind of code was being used.  Ned

     

  63. TypePad HTML Email

    May, but in this case I doubt it.  The invention was in the short
    code, and had nothing at all to do with spread spectrum signaling.

     

  64. Was the use of the word –code– in the original version of claim? Clearly, if the inventors intended to be limited to only scrambling code, they would have used the word scrambling code in the claim. Original claims are self supporting.

    Moreover, if YOU had been the examiner and you found an reference wherein everything in the claim was disclosed, but the code used was Morse code, would YOU have rejected the claim and asserted that Morse code is a code? Me knows you would have.

    Clearly, even in YOUR view, code encompasses scrambling code, secrete code, spreading code, Morse code, PIN code, and the Code of Hammurabi.

    For you to assert otherwise would be typical, but disingenuous nontheless.

  65. “does “code” include a scrambling code, or is it limited to the definition and usage of “code” in the specification?”

    That is how the word is ambiguous in a manner that isn’t equivalent to broad. Basically she is asking whether code can be a code that is a scrambling code, or simply a code as used in the context of the invention, a spreading code.

    What she is further saying is that if the term “code” simply means “code” broadly and unrestrictedly, then they lack WD because they didn’t describe the invention thusly at the time of filing and thus did not possess it. This is an amended claim, not an original.

    “because it is described as a spreading code, produced by a spreading code generator, and no other form of code is suggested.”

    She is saying that you can’t interpretlol claim terms outside of what you disclosed and thereby sneak in new matter. What she fails to remind people of is that this would lead to a lack of WD, and thus you cannot interpret thusly.

  66. How in h— can this question be relevant to the construction of a composition claim?

    It’s relevant because a phone manufactured to transmit spread spectrum signals in a code-division multiple access system is quite different than one built to transmit narrow-band QPSK signals in a time-division multiple access system, for example. Have you ever tried to use your Verizon phone on an AT&T network?

  67. What’s the point of novelty of this apparatus, LB?

    I don’t know precisely, Malcolm, because I don’t know exactly where this sits in the prior art. However, they are describing a random access procedure as performed by a cellphone. With some random access procedures that I’m aware of, a random access message that essentially says “My name is X and I’d like to be allocated resources” is transmitted repeatedly, with increasing power levels, until the message is heard and the base station responds with a message that says “OK, X, I heard you, and here is an identification of radio resources that you may use.” Note that it’s critical to do all this efficiently when you’re sharing a precious resource (bandwidth) among a bunch of cellphone users. The claim describes a cellphone that does that a bit differently – it sends a repeated series of coded bursts that distinguishes the cellphone from others that might be doing the same thing at the same time. The base station responds with an indication that essentially communicates “OK, I saw a burst that looked like this – whoever that was can now send me a complete random access message now.” This is enabled by the coding that was applied by the burst and is quite useful because these bursts can be considerably shorter than the full message, reducing interference. Reducing interference means higher capacity and fewer dropped calls.

    My best guess, without looking at the file history, is that the two “wherein” clauses at the end were added by amendment. The first one is a little interesting – if that’s the only point of novelty then it is a fairly narrow one, in my humble opinion. The second one looks like it was added to emphasize that the short bursts are different in kind from the message, probably in response to an examiner who decided he could ignore the “message being transmitted only subsequent…” limitation.

    The real point is that, leaving aside the normal arguments about claim construction, I and thousands of others with experience in this area can tell you which cellphones fall under this claim and which do not, either by testing them or by consulting the specifications to which they were manufactured. Functional claiming can be abused, but it’s not being abused here.

    Disclaimer: this is all off-the-cuff analysis here and should not be confused with a legal opinion. I have no connection to the case either.

  68. that could run afoul of our obligations under TRIPS and/or the WTO

    There is no doubt that putting real teeth into protecting the US oils run afoul of our obligations under TRIPs and/or the WTO.

    I agree. But so what? The point was to put teeth into protecting this country, not maintaining treaties that weaken this country.

    Maybe it’s time we remove ourselves from TRIPS and/or the WTO?

  69. Apperantly you haven’t bothered reading the article or noting that Congress has already deliberated on this.

    But why let facts get in the way of your QQ’ing?

  70. What’s the point of novelty

    As with any patent claim, the point of novelty is the claim itself, taken as a whole.

    Next.

  71. Sean it gives a very broad reading to “industry.”

    It’s a boundless definition. All you need to do is find something being “exploited” apparently, and the analysis is over.

  72. In other news:

    link to nytimes.com

    New York City, embracing an experimental mechanism for financing social services that has excited and worried government reformers around the world, will allow Goldman Sachs to invest nearly $10 million in a jail program, with the pledge that the financial services giant would profit if the program succeeded in significantly reducing recidivism rates.

    The city will be the first in the United States to test “social impact bonds,” also called pay-for-success bonds, which are an effort to find new ways to finance initiatives that might save governments money over the long term.

    Promote the progress!!!! LOL. Please tell me this awesome investment method is patented. I need more laughs.

  73. If a functionally described apparatus claim clearly conveys the metes and bounds of the apparatus to a person skilled in the art, then there’s no problem.

    What’s the point of novelty of this apparatus, LB?

  74. Ned: the invention is very straightforward in my view: using short codes in the sequence of attempted communications to a base station, where each iteration is transmitted at increased power until a signal is received from the base station. The short codes shorten the time both to communicate to the base station and to establish the desired power level without going too far over the necessary power.

    Could anything be more obvious? Oh wait, let me guess: only the “wireless code division multiple access subscriber unit” arts were deemed relevant by the braindead Examiner at the USPTO. That entire first paragraph is ancient horse—.

    The main point of dispute was whether the communication to the base power had to be spread spectrum.

    How in h— can this question be relevant to the construction of a composition claim?

  75. Sean,

    You might be interested in the article at link to ipwatchdog.com

    Keep in mind though, that the academics are really also addressing the statute as it could be in the future (even though they seem to be denying exactly that).

  76. Should it?

    After all, doesn’t the Office already practice Broadest (un)Reasonable Interpretation for exactly this type of situation?

  77. I saw that, but I was addressing the statute as it is today. That’s not to say I think the decision is a bad one, just that it gives a very broad reading to “industry.”

    As for a more protectionist posture, that could run afoul of our obligations under TRIPS and/or the WTO.

  78. Has Judge Newman forgotten –Broadest Reasonable interpretation– and the –doctrine of equivalents–? Doesn’t the use of a broad term by itself clearly imply a claim to a broad range?

  79. Ned, I agree with you as to the patent eligibility of this claim. Respectfully, you are way off regarding the “main point of dispute.” One of the issues was an arcane argument about the difference between a spreading code and a scrambling code and whether the word “scrambling” should be read into the claim, and I think the CAFC got it right. The other issue was whether “continuous” power increases as applied to a series of separated short bursts meant that power had to increase during the burst as well as from one burst to the next. The defendant was really stretching on this one – again, it appears to me that the CAFC got it right.

    Malcolm, with all due respect, you’re way off base here. If a functionally described apparatus claim clearly conveys the metes and bounds of the apparatus to a person skilled in the art, then there’s no problem. I am one, and it does.

    That said, there are a few technical problems with the claims (as 6 notes), but those should have been caught by the examiner (where were you, 6?), and the law is pretty clear that a court shouldn’t invalidate the claim in a case like this one. I think it’s pretty safe to assume that the defendant here had top-notch lawyers consider invalidity, and either decided to pass on the issue or simply lost on it.

  80. Thanks. Fair enough.

    Supplementary if I may). Does fixing the claim with the wider meaning have repercussions for validity?

  81. I’m not really expecting anything, SQ, just curious how the London test would play out against this particular claim. Both the majority and the dissent have to construe “code” in the “context” of the claim in suit, and “code” has a wealth of different meanings, all context-dependent.

    No argument but that we all have to construe the claim in the light of the attendant specification. I myself have not read it (and might not understand even if I were to read it). So, short cut, Ned, what do you think?

  82. Do you expect anything but a litmus test result on how people feel about the subject in general?

  83. Ned in Europe courts run a check across their conclusions, asking themselves what their brother and sister judges at the EPO would have decided. If the conclusions are rigorous, they withstand such checks. So, here, what if the case had instead been tried in England. In London, the claim is construed by using the test question: What was the writer of the independent claim using the language of that claim to mean (to the PHOSITA reader)? Perhaps, without witness evidence on the issue, it’s impossible for you to answer but I’ll ask nevertheless: which of the majority and dissent here is closer to the answer to that test question?

  84. On the licensing issue, we are talking here about US patents and US licensees. If the ITC becomes a severe impediment to foreign manufacture, so be it. I think this would be entirely in the interest of US Jobs.

    I believe Big Labor understands this issue, clearly. Stopping imports with US patents makes sense, especially when there are US licensees in competition for foreign manufacuting.

  85. Actually, MM, this is the kind of programmed computer claim that I think makes sense.

    The invention can be described as a method, but the method can be programmed and or implemented in circuitry. Take your pick.

    Furthermore, the invention is very straightforward in my view: using short codes in the sequence of attempted communications to a base station, where each iteration is transmitted at increased power until a signal is received from the base station. The short codes shorten the time both to communicate to the base station and to establish the desired power level without going too far over the necessary power. It is a worthwhile invention it seems.

    The main point of dispute was whether the communication to the base power had to be spread spectrum. Doing so might seem to be suggested by the fact that the base station was a CDMA base station. But if that were the case, the claims were easily avoided by a cell phone the did not use a spread spectrum technique in the initial contact the base unit.

    All in all, a good decision on the patent law issues.

  86. Sean,

    As I said above, if we really wanted to put teeth into protecting the US…

    How about manufactured in the US? How about manufactured in the US, by a US company (based in the US; no multinationals allowed)” (emphasis added).

  87. Apparently, all business qualifies as “industry.”

    I wonder how far “domestic” would be interpreted. How would the panel view the case of a foreign owned U.S. patent whose owner’s only business in the U.S. was collecting royalties? What if the only product covered by the U.S. claims was exported to the U.S. by the foreign patent owner?

    Perhaps the economic impact of hiring U.S. counsel to file an ITC complaint will suffice.

  88. At least 2.

    And neither would be AI or 101 Integration Expert.

    (But chances are good that one of them would be MM ! )

  89. “I wonder how many naysayers would come out of the woodwork if we made all enforcement dependent on manufactured?”

    At least 2.

    “let’s see some TEETH”

    I agree.

  90. The patent licensing “industry.”

    Sort of the like the ambulance chasing industry, except less well regulated.

  91. is this really a troll? The decision says the ALJ made uncontested findings of a “substantial investment in its [the patents] exploitation” and Dennis says this is “a PUBLICLY TRADED company whose primary revenue comes from patent licenses.” That does not sound like a mere empty shell corporation with a purchased patent, owned and run just by one or more contingent fee litigators?

  92. That 2006 call was for the “Ten Year Statute.” SWEEEEEEEEEEEETTTTTTTTTTTTTTTTTTTTTTT! This one will also be that long for you to dodge, not as long as that for me though. There is even more this time. My head in the clouds HAH? Dreamers that’s where ideas come from. So if my head is in the Clouds? Yours is up your @ss!

  93. They should have said :” manufacturer’s exploitation

    I wonder how many naysayers would come out of the woodwork if we made all enforcement dependent on manufactured? How about manufactured in the US? How about manufactured in the US, by a US company (based in the US; no multinationals allowed)?

    If you are really serious about protecting the US, let’s see some TEETH.

  94. It wasn’t the PTO that made that determination – it was Congress.

  95. Ridiculous on its face.

    QQ QQ

    The law is not how I want it to be.

    QQ QQ

  96. I also wonder how they make a subscriber unit in which each of successively transmitted signals is shorter than the message. One would think that signals that are being transmitted are not actually inside the subcriber unit.

  97. I would like to see a picture of such a configuration as that claimed. Perhaps they included figures showing that config?

  98. ” patent’s exploitation where the exploitation ”

    They should have said :

    ” manufacturer’s exploitation where the exploitation ”

    “Judge Newman’s suggestion here is to give claim terms a narrow definition when the patentee uses an ambiguous term ”

    Whereas it should be summary execution by 112 2nd if not for their floundering 112 2nd caselaw.

  99. “patent licensing alone” can be sufficient to satisfy the US industry requirement

    Ridiculous on its face.

    1. A wireless code division multiple access (CDMA) subscriber unit comprising:

    a transmitter configured such that, when the subscriber unit is first accessing a CDMA network and wants to establish communications with a base station associated with the network over a communication channel to be indicated by the base station, the transmitter successively transmits signals until the subscriber unit receives from the base station an indication that a transmitted one of the signals has been detected by the base station, wherein each transmission of one of the signals by the transmitter is at an increased power level with respect to a prior transmission of one of the signals;

    the transmitter further configured such that the transmitter transmits to the base station a message indicating to the base station that the subscriber unit wants to establish the communi-cations with the base station over the communication channel to be indicated by the base station, the message being transmitted only subsequent to the subscriber unit receiving the indication,

    wherein each of the successively transmitted signals and the message are generated using a same code; and

    wherein each of the successively transmitted signals is shorter than the message.

    Functionally-claimed wankery of the lowest order that should never have been granted in the first place. People, this is a claim to an article of manufacture. And the entire case rests on the construction of a method step in a wherein clause! What an unbelievable joke. Everyone involved with this case should be taken to the woodshed. Then the directions to the woodshed should be destroyed.

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