Smartphone Wars: Micron’s Slide-to-Unlock Patent

by Dennis Crouch

Adding a bit of drama to the slide-to-unlock debate, Micron has just received its own patent covering a "system and method for controlling user access to an electronic device." U.S. Patent No 8,352,745 issued in January 2013 but claims priority to an original application filed in February 2000 and lists Jim McKeeth as inventor.

Claims:

1. A system comprising:

a touch screen upon which a user is to enter, by drawing, a geometric pattern in a specified direction to gain access to the system; and

a processing circuit coupled to the touch screen to compare the user entered geometric pattern to a predefined geometric pattern stored in a memory.

6. The system of claim 1 wherein the user entered geometric pattern is a line.

Apple's slide-to-unlock patents claim priority only to the 2004-2005 timeframe and, although they may be separately patentable, Apple's patents will not serve to invalidate Micron's new patent.

Samsung has a 10-year cross-license deal with Micron. I have not seen reports of any similar deals with Apple, Google\Motorola, or RIM. It will be interesting to see whether Micron holds onto the patent or shifts it to an enforcement company as it did in 2010 in sending 4,000+ patents to John Desmarais for enforcement. Micron is a major manufacturer of computer memory with a market valuation of about $8 billion, perhaps they should just ask for Apple to endorse-over its recent billion dollar patent infringement judgment. One complicating factor is that I suspect Micron is a supplier for all of the potential defendants.

162 thoughts on “Smartphone Wars: Micron’s Slide-to-Unlock Patent

  1. Why does not this Micron 8,352,745 claim read [102] on the [PRE February 2000 filing date] U.S. patent 5,596,656, or provide at least strong 103 prior art?

  2. “As far as I know Apple’s slide to unlock does not store and compare any geometric pattern.”

    As claim 6 helpfully points out, a line is also “a geometric pattern”. And you are an examiner, you say?

  3. MM on Jan 31, 2013 at 02:11 PM:

    Do you need a page cite to the case to refresh your memory anon?

    Criminy, MM – that offer was from last month already?

    Where is my offered page cite?

    And my popcorn.

  4. Jim McKeeth: Even if Apple doesn’t infringe that patent, it clearly is prior art that invalidates their patent.

    It’s pretty darn good prior art, that’s for sure.

    Was it cited during prosecution of the Apple swipe patent?

  5. I need a comeback? For “Do you live in a cave?”?

    You’re more delusional than I thought.

    “Many of us evaluate claims for a living and many of us work with a wide variety of technologies outside of our expertise.”

    Right. I’ve seen your evaluation of claims outside of your expertise of protein fragments and DNA bits. It consists entirely of declaring anything that uses a POWERFUL COMPUTER BRAIN to be “facially invalid” or “pure g–bage” (as you did in the third post of this thread).

    Here’s an idea: Why don’t you demonstrate your “expertise” in the touch screen art by posting an actual invalidity analysis of this claim for all of us to see. Any section(s) of 35 USC you want. But none of your usual hand waving nonsense.

    I bet you won’t. Because I know you can’t.

  6. I see that you are now modifying your argument to be one of literal infringement.

    Nice.

    I still think you lose.

    The fact of the matter is, you must draw a line, even with the partial code you provided at 5:50 AM on Feb 1, because, as I have stated, the rest of the story is that the beginning point is somewhere else, and the track is also defined.

    You have two points, A and B. You are constrained to begin at A. You end up at B. You are constrained in a track. Any judge, any jury, anywhere will rule against you.

    Since infringement is not limited to your new argument of literal infringement, I would welcome your argument to the judge and jury as to how you do not infringe given the facts as presented. Wishful thinking simply will not win you the day.

    Sorry, but you don’t win this one.

  7. Your eloquence notwithstanding, to literally infringe the claim a comparison must be made between a line that the user draws and a stored line. In my design-around the line that the user draws is not itself compared to a stored line, no matter how many times you point out that the user actually draws a line. Whether a judge or jury will understand this difference is a different matter entirely.

  8. Dan,

    I’m not buying that it does not matter where the slider button is initially. By default (and quite by design) the slider button is initially at a preset point. The end point being the other point of a geometric figure (a line). Quite simply, and as I mentioned, eloquently, the set of facts means that a line must be drawn – no matter what else you might think.

    Whatever point (or colinear adjacent set of points) you had started out with, is lost. You have looked at one mere portion of code and forgotten the forest. It matters not what you ONLY look at at the end if you also build in that the start is somewhere else.

    Sorry, but you don’t win this one.

  9. It does not matter where the slider button is initially, not does it matter that the user indeed draws a line when dragging the slider to the end of the slider track. What matters is whether or not the user-entered line itself is used as part of the access algorithm.

    I submit that infringement may be avoided by not comparing “the user entered geometric pattern to a predefined geometric pattern stored in a memory” as the claim recites. One way to do this is to make sure that the access algorithm ONLY looks at whether or not the slider is at the end of the track, notwithstanding how it got there. This does not involving comparing the user-entered line to a stored line.

  10. And conscience, since you are so tight with MM, ask him to provide the page cite that he offered below (“Do you need a page cite to the case to refresh your memory anon?” – January 31 at 2:11 PM since you are sometimes challenged by finding things on a thread).

    What was that about “abandon”…?

    LOL

  11. LOL – not answering a question is MM’s schtick.

    The answer to the question is Kappos. But that question isn’t really tied to his premise, now is it?

    Or is “premise” too big a word for you?

    And there is no “bluster” about MM being a liar – I have delivered the actual lies that he has told. Very much unlike him.

    You know, for someone attempting to pass themselves off as related to me, you are doing a p1sspoor job of it.

    I wonder why?

    Actually I don’t.

  12. Uh-oh. Perfectly reasonable question. I better abandon this thread. But wait, that would be too obvious. I probably ought to bluster about how much of a liar MM is, and trot out some stuff about broken arrows and dead shovels. But above all, don’t answer the question …

  13. For somebody who whines incessantly about “ad hominem attacks” and “insults” you’re more than guilty of such practices.

    You apparently don’t know what “ad hominem” means, AJ. I’m chuckling at your feigned ignorance. It’s cute that you try to pretend that this application is really nuanced and super technical. But like many such applications in this sad art unit, no expertise whatsoever is required.

    Many of us evaluate claims for a living and many of us work with a wide variety of technologies outside of our expertise. Apparently you don’t, or that’s what you would have us believe now (when it suits you).

    There used to be a commenter or two here who took the position that it was somehow improper to “speculate” about the validity of government granted patents. Apparently we were supposed to focus on other controversies (I believe Obama’s birth certificate was questioned here by one of the same proponents of the “mind off” approach to claim analysis). It seems more likely that you subscribe to this view than it does that you “have no idea” what “touch-screen” could mean way way back in the dark ages of 2000.

    If somebody wants to pay me to challenge it, I’m available. Otherwise, I don’t really care.

    But you care enough to post silly nonsense like “if there was a 112 issue, the Examiner should have raised it.” Uh … no s–t? Really?

    I live in a house with my family

    HAHAHAHAHAHH!!! Great comeback, man. Anyway, your lack of understanding of touch-screen “technology” is noted. Like I said, it’s really easy to teach yourself about this stuff. Most patent prosecutors like “technology” and are happy to learn about it because it makes them better prosecutors. You must not be a prosecutor. (<–great argument huh? i’m sure it sounds familiar to you)

  14. this thing has been around since February 2000 with no new matter added.

    The claims were granted in 2013. Who’s ultimately responsible for claims granted in 2013 by the USPTO when Kappos is the USPTO director?

  15. MM,

    Where is my page cite? Do you want me to give you the proper pincite for the Prometheus dead letter quote? While I don’t mind helping you (I have actually provided the exact quote before), I am taking you up on your offer. Where ARE YOU?

    LOL – not saying that you hiked up your skirt and ran away, but that article of clothing gathered about your waist is flapping pretty violently as you speed away.

  16. AAA, may I respectfully refer you to your post at Jan 31 2:31pm. I made the point that the patent was directed to a display and processing circuit. It actually did not require a swipe — that is an action, not a piece of hardware as claimed. You disagreed — then. Now you seem to agree.

    The claim is directed to hardware. It is not a method claim. It does not actually require a swipe action to infringe.

    A person making the hardware is an infringer. A person selling the hardware is an infringer. A person using the hardware is an infringer.

    A person selling a display capable of recognizing a swipe might be an infringer under 271(c).

    A person selling the processing circuit probably would infringe under 271(c).

    A prior art display that could recognize a swipe probably would anticipate. I believe 6 that such systems are notoriously old, as I actually used them in the ’80s.

  17. Are you suggesting that distinctions without a difference are the stuff of many patents being granted under Kappos?

    But I like Jeff’s post. It does illustrate that there might be room for some invention in the “swipe.” But just calling for a swipe in the claims without any particular problem being solved by the solution can only lead to patents on the trivial design choice variation.

  18. MM, you forgot the response at 9:42 AM.

    MM reading comprehension FAIL.

    You do know that when you purposefully select less than the full picture and then smirk at the comments, that you are not in touch with the full reality, right?

    Or is that a part of your education? The ability to spin what facts you want to spin, and selectiely ignore the rest of reality?

    Come back soon. Your head is waiting. I’ll exchange it for some popcorn.

  19. Understood. I don’t think we need a “penumbra”, however. We’ve already got Section 103. As I’ve said before, at this point in history it is certainly obvious to computerize any manipulation of data that has previously been performed by humans. It may also be obvious to computerize many “new” manipulations of data. But I think there’s room for computerized devices that interact with their users and/or surroundings in surprising new ways.

    So far, it seems that the courts agree with my view. We’ll see how it goes.

  20. Why Dennis allows a hypocritical f#*cking pr!ck such as you to post is a mystery.

    It’s the negative lesson of how not to post.

    Plus I think he actually likes seeing MM being handed his head.

  21. You have a funny way of thinking about “educating yourself” MM.

    Self-delusion is not education. Reinforcement of your twisted version of reality is not education.

  22. I disagree. 101 problems arise when ANY ineligible subject matter is effectively protected by the claim.

    Except for the fact that mental steps are both ineligible subject matter (on their own) and ARE effectively protected as being allowable elements of a perfectly eligible claim.

    That is one little twist that your pet consistently FAILS to take into account.

    Nice imaginary world you inhabit MM.

    Let us know when you return to this world and this country and this country’s actual patent laws.

    And until then, do take care to not mislead anyone as to what the law really is.

    Thanks.

  23. For somebody who whines incessantly about “ad hominem attacks” and “insults” you’re more than guilty of such practices. Why Dennis allows a hypocritical f#*cking pr!ck such as you to post is a mystery.

    I have no idea what the broadest reasonable interpretation of “touch screen” is/was at the time of the earliest priority date of this patent. And I don’t really give a sh$t either. A primary examiner at the PTO read, searched, and examined the claim and determined it met all the statutory requirements of patentability. He got paid to do that. What purpose would it serve for me to spend my time worrying about it? If somebody wants to pay me to challenge it, I’m available. Otherwise, I don’t really care.

    “Do you live in a cave?”

    No. I live in a house with my family. You should crawl out of your mom’s basement sometime and give it a try, you sad little creature.

  24. “A couple of days ago, IIRC, you seem to say that the claim required physical actions by a user, rather than being directed to hardware capable of recognizing and responding to such actions.”

    I never said any such thing.

    “You seem to be up in the air about the issue at this point.”

    What “issue” are you talking about? LB asked me whether I thought of the “in a specified direction” recitation is a “structural limitation” as it pertains to the touch screen. My response was, “I don’t think anything about it.”

  25. Jeff: That confuses me. First the SCOTUS says, we don’t have to decide whether the extra steps being less conventional would save the claim from 101 ineligibility.

    All they are saying, Jeff, is that those facts were not before them so they are not going to create a per se rule based on different facts. For example, they did not hold that “a claim which recites one step that is ineligible (e.g., a mental step) and one additional novel and non-obvious eligible step is per se eligible.

    My view is that such a claim should almost always be deemed eligible. In other words, if you have an novel and non-obvious method that is eligible by itself, it would be difficult to render the claim ineligible merely by tacking on additional mental steps. After all, provided the claim is written using comprising language, it’s still infringed regardless of whether additional mental steps are carried out.

    The reason old conventional steps are insufficient to turn an ineligible method (e.g., a method of thinking a new thought) into an eligible method is because otherwise lawful practitioners of the prior art are turned into literal infringers if they should happen to think the new thought. Clearly, that’s not a concern when the eligible steps in the claim are novel and non-obvious.

    I think 101 is surmounted by a new finger swishing pattern, because a particular finger swishing pattern doesn’t preempt all finger swishing, although it may be obvious.

    I disagree. 101 problems arise when ANY ineligible subject matter is effectively protected by the claim. I think a reasonable argument can be made that any and all “drawings” are ineligible subject matter. The hypothetical claim I discussed in my 11:20 post upthread is ineligible not because it preempts all drawings but because it effectively removes a specific drawing (the ineligible subject matter) from the public domain at least with respect to otherwise lawful practitioners of the prior art (i.e., people who use touch screens).

  26. Jeff: There is no difference whether you call it ignoring ineligible subject matter when deciding 102/103 or ignoring old or obvious subject matter when deciding 101; the outcome is the same.

    I’m glad you recognize this fact, Jeff. Can you believe that some people still do not recognize this fact (or pretend that they don’t) even after it was explained to them for years?

    The Supreme Court didn’t adopt the government’s approach for the two reasons I noted in my 2:11 comment upthread. But yes, the result is the same.

  27. anon’s conscience When posting, it’s important to make ambiguous references to earlier comments, such as “the phrase I noted.” If you don’t say anything specific, it’s impossible to get pinned down.

    It really is anon’s conscience! It’s like a little miracle.

  28. we obviously have some people who sniff claims in isolation of the specification,

    Like who, anon? Think carefully before you answer.

  29. I don’t think anything about it. I have no idea if it’s a “structural limitation” as it pertains to the touchscreen. That’s a claim construction exercise. And I have no knowledge of this art, the terminology, the ordinary and accepted meanings of any of terms or jargon or whatever.

    LOL.

    Do you live in a cave? Heard of the Internet? It’s really not that difficult to educate yourself.

  30. Regarding your other question, the Federal Circuit does not seem, even today, to understand “exhaustion.” So the case it does not understand is Univis Lens/Quanta and for that matter, Bobbs Merrill, a copyright analog.

    The Federal Circuit seems to think that one can impose contractual use restrictions on the sale of a item and enforce those use restrictions via patent infringement actions with respect to downstream users not in privity. See, e.g., Mallinckrodt.

    They have a blind spot regarding exhaustion that affects their decision making even today. Thus, they dismissed exhaustion in the Monsanto v. Bowman, essentially saying that Monsanto can both sell its seeds and control what people do with those seeds post-sale under the patent laws.

  31. AAA, change you tune?

    A couple of days ago, IIRC, you seem to say that the claim required physical actions by a user, rather than being directed to hardware capable of recognizing and responding to such actions.

    You seem to be up in the air about the issue at this point.

    I think the claim is ambiguous myself, and may fail 112, p.2 (or whatever it is called today) because cannot tell from the claim what infringes — is it it hardware or is the actions of the user?

  32. So I think, despite the Court’s quizzical statement at page 18 of the slip opinion suggesting that the conventionality (i.e. oldness) of the additional steps was sufficient grounds for reversal unto itself, the overall thrust of the opinion seems to be that for a claim to fail 101 despite reciting some 101 eligible subject matter, the 101 eligible portion must be both (1) old or obvious AND (2) so essential to any application of the ineligible subject matter that the ineligible subject matter is effectively preempted by the claim.

    Applying that 101 analysis to unlocking by finger swishing, I think 101 is surmounted by a new finger swishing pattern, because a particular finger swishing pattern doesn’t preempt all finger swishing, although it may be obvious.

  33. That confuses me. First the SCOTUS says, we don’t have to decide whether the extra steps being less conventional would save the claim from 101 ineligibility. Then they say, the reason why we don’t have to and do not decide is because we have decided – it would not save the claim to only make the steps less conventional, because they also would have to “add something of significance.” We don’t have to decide, and we don’t decide, because we have decided and here is our decision. ??? I take “add something of significance” as alluding to the second part of the court’s earlier statement of why the “instructions” don’t save the claim from 101 ineligibility – they are steps that *must* be taken to apply the law, such that reciting those steps doesn’t save the claim from preempting all applications of the law of nature:

    “These instructions add nothing specific to the laws of nature other than what is well-understood, routine, conventional activity, previously
    engaged in by those in the field. ***And*** since they are steps that must be taken in order to apply the laws in question, the effect is simply to tell doctors to apply the law somehow when treating their patients.”

    Slip op at 13.

    Taken alone, the above passage seems to suggest that to reject/invalidate under 101, you have to show that any eligible portion of the claim is both old/obvious AND preempting. Another passage also suggests that merely finding the patent-eligible elements to be old or obvious is not enough by itself to reject/invalidate a claim:

    “The Government, however, suggests in effect that the novelty of a component law of nature may be disregarded when evaluating the novelty of the whole. See Brief for United States as Amicus Curiae 27. But §§102 and 103 say nothing about treating laws of nature as if they were part of the prior art when applying those sections. Cf. Diehr, 450 U. S., at 188 (patent claims “must be considered as a whole”). And studiously ignoring all laws of
    nature when evaluating a patent application under §§102 and 103 would ‘make all inventions unpatentable because all inventions can be reduced to underlying principles of nature which, once known, make their implementation obvious.’ [citing Diehr]”

    Slip op. at 21-22.

  34. MM, how is the analysis that you are applying here different from the analysis proposed by the government that both you and anon are saying that the Supreme Court rejected? There is no difference whether you call it ignoring ineligible subject matter when deciding 102/103 or ignoring old or obvious subject matter when deciding 101; the outcome is the same. On the other hand, the Supreme Court said this:

    “We need not, and do not, now decide whether were the steps at issue here less conventional, these features of the claims would prove sufficient to invalidate them.”

    Prometheus slip op at 18. So it is enough to say that the extra steps were conventional (i.e., by themselves, they would fail 102 and/or 103), and we can stop there. Or is it? Here is the very next sentence:

    “For here, as we have said, the steps add nothing of signifi­cance to the natural laws themselves.”

    Id.

  35. I am trying to post a comment about my interpretation of Prometheus on this point, but it won’t let me do it, perhaps because it is too long

  36. In any case, it looks like Graffiti was available for the Apple Newton as of 1994, and on the Newton it worked via on-screen input. I assume the Newton had a password lock–at least there are instructions on the web on how to circumvent it. So as long as Graffiti worked for the password input, you would have precisely the first quote claim: unlocking by recognition of geometric stuff on the screen. And if you set your password to a single space, assuming the Newton allowed that, you’d have the other quoted claim. (But I am not a lawyer.)

    One can go even further back to the PARC unistroke system (patent 5,596,656, granted in 1997) which Palm got sued for infringing. It would be very surprising if nobody had a system with on-screen unistroke recognizer and a password input. With unistrokes, a horizontal left swipe is “e” and a horizontal right swipe is “t”, so you can have the swipe claim if you just set the password to “e” or “t”.

  37. As far as I know, no comparison is performed to see if you actually drew a line to a stored image.

    The claim is to a “predefined geometric pattern”, not a stored image. The starting point and the end point could be considered a predefined geometric pattern, especially if you’re a plaintiff waving this patent around.

    It sounds like the device does compare where you end up to the pre-programmed location where you’re supposed to end up, once you’ve started where you’re supposed to start. You wouldn’t get out of this one on summary judgment, at least.

  38. Looking at the claim, I am wondering if it would actually cover a slide to unlock device.

    Take a standard android device. A slider may be provided where you touch a component of the slider and drag it across. The phone unlocks based on the slider reaching the specified position. As far as I know, no comparison is performed to see if you actually drew a line to a stored image. Rather, the system is concerned with the position of the movable component. If you took the slider and drew some sort of squiggle, but still eventually took the slider to the end position, the phone would still unlock.

    Thus, as far as I can tell, the standard slide to unlock mechansim does not utilize:
    “a processing circuit coupled to the touch screen to compare the user entered geometric pattern to a predefined geometric pattern stored in a memory.” as the systems seem to be unconcerned with the actual pattern drawn, and definitely does not compare the actual pattern to a predefined geometric pattern.

    Meanwhile, unlock systems such as that in Microsoft Windows 8 may be closer to the claim. However, based on the references posted above, it seems that the patent may have problems being enforced even against this unlocking mechanism.

  39. I don’t think anything about it. I have no idea if it’s a “structural limitation” as it pertains to the touchscreen. That’s a claim construction exercise. And I have no knowledge of this art, the terminology, the ordinary and accepted meanings of any of terms or jargon or whatever. If applicant and his attorney thought it was meaningful, and the examiner thought it was meaningful, and not indefinite or unclear or whatever, I’m not going to debate it. If an accused infringer thinks some hay can be made of it, have at it.

  40. Ever the attempts at being a smart-@$$ and coming up short on the smart, eh IANAE?

    Read the thread.

    It’s quite obvious.

    And since “my conscience” evidently can’t read the thread either (notwithstanding its birth on noting why MM is being “jerked around” at Jan 31, 2013 at 03:32 PM), the specific comment is at Jan 30, 2013 at 08:25 PM.

    This cannot be your best trolling, can it?

    One would almost assume that Leopold’s obsession has warped into him actually thinking he is a part of me, and IANAE obviously disregards my repeated notices of my voluntarily posting under one pseudonym as a sign of good faith (even inviting Prof. Crouch to verify if he so desired). And yet more youtube snippets? Is this a new tactic? Be as lame as possible? Guys – you would be much better off spending your homework time actually studying the law.

  41. Good luck with that approach, IANAE. When posting, it’s important to make ambiguous references to earlier comments, such as “the phrase I noted.” If you don’t say anything specific, it’s impossible to get pinned down.

  42. The phrase I noted really is already in the claim.

    Which phrase would that be, and at what time and under what alias did you note it?

  43. Agreed – and even so, we obviously have some people who sniff claims in isolation of the specification, instead of in light of the specification.

    The phrase I noted really is already in the claim.

  44. The section “Field of the Invention” clearly states

    The issue here is what the section “Claims” clearly states. One doesn’t sue people for infringing the field of the invention.

  45. A subset of the swipe to unlock is the HEY LOOK AT ME AND THIS IS HOW YOU SWIPE TO UNLOCK (no one said the lock had to be tough to figure out).

    But that is just a subset.

    Other swipes can be much more tricky. Think of all the other lines possible in the plane of the touchpad: all types of vectors – variations in angle, length, start and stop point, direction…

  46. Ok, so I am confused as to why you would need to delve so deeply into the patent application to try and relate it to the simple swipe to unlock method being used by the vast majority of users.

    The section “Field of the Invention” clearly states “More particularly, this invention relates to a method and system for authenticating an identity of a user before accessing a computer system.”

    The standard swipe-to-unlock method doesn’t do any sort of authentication of a user at all.

    In the case where you use the popular pattern unlock system in Android, I can see that the patent might be applied, but it doesn’t apply to a standard swipe-to-unlock system, since that method of access doesn’t involve user authentication.

  47. This doesn’t require processing a user-entered geometric pattern

    Actually, it does.

    You forgot to note that the SliderButton position is initially (and by default) is not at position x, and that the algorithm is written (eloquently) as to capture the end point of the motion, but still requires the start to finish motion.

  48. The algorithm is:

    If SliderButton is at position x
    let him in
    else
    don’t
    endif

    This doesn’t require processing a user-entered geometric pattern (i.e., what the user did to get the slider button to the end of the slide track), nor comparing anything to a predefined geometric pattern stored in a memory.

  49. (2) such an approach would turn 101 into a “dead letter”

    LOL – try again (and this is not the first time I have made this correction).

    The dead letter comment was NOT to 101, but rather it was to the SC’s judicial exception.

    If you are going to go all high and mighty, and least get it right.

  50. Not, MM, regarding me personally, I don't have a website or know of one that describes me.  However, I was chair of the AIPLA patent law committee when Bob Armitage was president, a member of the board of the AIPLA in the late '90s, member of the Board of the IPO during the '90s, member of the board of the National Inventors Hall of Fame during the same timeframe.  There are some folks who know me fairly well, including acting director of the PTO Terry Rae.

    I was heavily involved in these organizations at the time because I was the chief IP guy at Seagate for the same timeframe.  I was trying to represent my company, and not trying to advance any personal interests.  I can tell you that taking an active role in such organizations is a job itself that most folk in private practice and small companies cannot afford.  

    I can tell you that I particularly respect and admire Bob Armitage, Gary Griswold and Roger Smith.  They were and are class acts.

    I should also say that I respect and admire Vic Siber, even though he and I do not see eye-to-eye on the Beauregard claims he invented.  He and I had a big debate, once upon a time, at the IPO annual meeting.  It had something to do with Lotus 123, IIRC.  A lot of fun was had by all.

    As to your legal question,  i will consider it and get back to you.

  51. I can see the court broadly construing the term “touchscreen” to include a “small graffiti input.” So that wouldn’t be a reason to abandon your argument.

  52. Director Kappos. This is his legacy.

    See? There you go with a baseless accusation and false spinning. You missed what IANAE were discussing – this thing has been around since February 2000 with no new matter added.

    You want to reconsider who (and what) you are accusing? Or, as is typical, you want to keep digging with that B$ shovel of yours?

  53. Nice imaginary world you inhabit MM.

    Let us know when you return to this world and this country and this country’s actual patent laws.

    And until then, do take care to not mislead anyone as to what the law really is.

    Thanks.

  54. Nice attempt conscience, but you are not quite there.

    Any insight as to why MM goes ballistic – especially as my style is so much more intellectually honest than his style?

    btw MM, still waiting for you to explain exactly what lies I have told. I can name your two most notable ones at the drop of a hat, yet all I get (all anyone ever gets) from you is accusations.

  55. Ned, when you say “usually the only thing I add to the discussions here is some case law, usually ancient”, I’m assuming you are talking about –

    (1) holdings that are still valid (i.e., not holdings that have been seriously called into question by subsequent SCOTUS decisions, and also not one-line-dicta sentences in a footnote in a concurring opinion that just happens to jive with your opinions on the matter); and

    (2) holdings that are very closely associated with the issue that is being discussed.

    If so, what in your opinion is the one SCOTUS holding that is still valid (i.e., the SCOTUS has not called into question the holding in a subsequent decision) and that the Fed. Cir. has misunderstood/misinterpreted the most?

    Also, if you are comfortable telling people on this message board who you really are (I’m not comfortable, so I’m not going to do that), can you provide a website etc. that has your biography?

  56. LOL – thou protests too much.

    Touch a nerve? More like I stomped on you. Poor baby – try actually following what I tell you and you won’t be so eplectic.

  57. Not MM, usually the only thing I add to the discussions here is some case law, usually ancient. If you really do not care about whether the Federal Circuit is right or not, and only want to know what the Federal Circuit laws is, then please do ignore me. Otherwise, I typically am a heavy critic of the Federal Circuit and, in turn, am a supporter of the Supreme Court.

    MM stands for Malcolm Mooney. He has been a poster here for years. I really enjoy his posts, and look forward to them.

    While MM’s posts are normally light on the case law, they are long on common sense. This does him well, as he usually gets things right.

    MM is a heavy critic of the PTO for issuing so many obviously bad patents. I generally share that view, but I don’t place all the blame on the PTO. I think the Federal Circuit has to share a portion of the blame. Further, I think, the reason the Supreme Court is intervening so much in recent years is because they have to. The Federal Circuit is way out of control in their view, and in mine.

  58. “Then ignore his posts or, better yet, …”

    I think the first recommendation is excellent. I intend to follow it.

    “Just don’t expect a lot of detail if he’s commenting from his iPhone. ;)”

    Just curious – what’s the deal with the “;)”?

    And BTW, my post about taking the comments on this blog too seriously were sincere. I really think your life would be better off if you cooled down a little bit, but this would not be the first time someone has ignored sage advice.

  59. “Dennis can look at the IP addresses and figure out the problem”

    I sincerely hope he has better things to do than that. But what exactly do you think Dennis would be able to do after he finds out the IP address? (Careful how you reply to this question – you might remove any little doubt that some may still have about the limited amount of knowledge you have of computer networks.)

  60. But “technically challenging” is not part of the patent code.

    Not yet. ;)

    I do believe, however, that in certain contexts a requirement for solving a technically challenging problem (and describing that solution in the claims) is subsumed by the combined requirements of 101/103/112 (we could call it a “penumbra”). And yes I think one of those contexts is creating a computer (or computer-implemented “system”) with “new functionality.”

    I think it’s also true in other contexts where a machine or composition whose capabilities are broadly understood is improved by specific modifications, where the nature of the modifications is circumscribed by inherent features of the machine/ composition.

    Computers receive, store, process, and output information. How they do this and what purpose it serves depends on the instructions that are provided to the computer. A new computer distinguished from an old computer merely by describing a new functionality for the computer is per se not a patentable invention. That’s my rough take on the situation.

  61. Well known and well regarded firm.

    True, but shoddy work nonetheless. Several of those claims (at least) are completely worthless. I’m frequently on your side with respect to complaining about the poor quality of examination. But I don’t measure the quality of my work based solely on whether I can get something by the examiner.

    Tell me, if you don’t mind, what you think about the “in a specified direction” limitation. Is that a structural limitation as pertains to the touchscreen?

  62. I’m not very impressed by the posts from Ned Heller anyways

    Then ignore his posts or, better yet, explain why you are not impressed in a way that we can all understand exactly what it is that you deem to be inaccurate.

    It’s that easy. Ned’s pretty good at explaining what he means and doesn’t take disagreement personally. Just don’t expect a lot of detail if he’s commenting from his iPhone. ;)

  63. Well, yes, that’s what the claim says, although in this context the difference between “capable of” and “actually configured to” is non-existent.

    If by “non-existent” you actually mean “not very significant, in a practical sense” then I don’t disagree – it’s certainly not technically challenging to implement this, given the touchpad and processor. But “technically challenging” is not part of the patent code.

    Obviousness is, however. So I can’t dispute the rest of your comment.

  64. anon’s conscience: Authentication and access control are … certainly not the same …

    Undoubtedly true. Access control is a broader concept. That’s why devices that allow access by detecting a line movement on a touch screen can fall within the scope of the claims. You do recall that this issue came up in the context of an infringement analysis?

  65. Well known and well regarded firm. If there were any 112 issues with the claim, the examiner should have raised them.

  66. For me the handle “MM” and “anon” are essentially equivalent. I don’t know who “MM” is, and anyone can post with that handle, e.g., see this post.

    Right, except you’re a nym-stealing troll and I’m not.

    We’ve been through the nym-stealing sockpuppetry phase already. Go ahead and start posting under my name. Every time you do I’ll point it out. If you keep it up, Dennis can look at the IP addresses and figure out the problem.

    There’s lots of other letters in the alphabet for you to use. I can recommend a couple if you need help.

  67. at this point a court should and probably would interpret this to require a processing circuit that is actually configured to compare a user entered geometric pattern to a predefined geometric pattern stored in a memory.

    Well, yes, that’s what the claim says, although in this context the difference between “capable of” and “actually configured to” is non-existent. It’s pure functional claiming of the software kind: “I imagine a system that can do this allegedly new thing!” and just like that the “problem” is solved.

    Are we to believe that prior to the filing date of this claim that devices comprising touch screens coupled to POWERFUL COMPUTER BRAINS were actually incapable of comparing movements on the touch screen with a computer memory? Nobody believes that.

    So what we’re left with is the idea that an image could be used as a passkeey. Again, that’s as ancient as signature verification, which predates computers by many centuries.

    Using a passkey image as a passkey for a computer? If it’s not anticipated, it’s obvious. And not just kind of obvious. It’s obvious in the same way that playing peek a boo with a baby is obvious even if the baby has a new name.

    The system is broken and we have yet another poster child. The sad truth is that these things are being issued in record numbers every Tuesday morning. They just aren’t blogged about because the claims are usually written with a lot more words to hide the banality from the public and (if possible) the Examiner and his/her supervisor.

  68. Regardless of the law, the PTO has an independent duty the public that the claims that issue are clear and understandable.

    Sure it does. But what about the prosecuting attorneys? Don’t let them off the hook here – that is some shoddy work.

  69. the claim may be claiming the actions themselves.

    There are separate method claims. Method claims are for claiming actions. So called “system claims” are compositions of matter or manufactures, albeit compositions of matter or manufactures with extended connectivities between component parts.

    I would think the PTO should not issue such confusing claims as an ideal.

    I don’t think the claim is “confusing”. It’s a pile of g—rbage and it wasn’t “examined” in any meaningful way.

    the problem here has very little to do with the professional incompetance of the examiners.

    I agree that it is a systemic problem and the person responsible is Director Kappos. This is his legacy.

  70. You’re getting jerked around because you said “There are no limitations about ‘authentication’ in the claim.” Authentication and access control are related concepts (although certainly not the same). This is one of those blatant misrepresentations that you are notorious for.
    Aren’t you tired of being wrong all the time?

  71. This is just a comment section in a blog. I think some of you are taking this a little too seriously. (I’m not “anon” BTW.)

    For me the handle “MM” and “anon” are essentially equivalent. I don’t know who “MM” is, and anyone can post with that handle, e.g., see this post.

    “Ned Heller” may mean something if there is actually a practitioner called Ned Heller, and the posts in this blog are actually from that person. But I don’t know that, and I don’t care. (I’m not very impressed by the posts from Ned Heller anyways.)

  72. I agree with you to the extent that at this point a court should and probably would interpret this to require a processing circuit that is actually configured to compare a user entered geometric pattern to a predefined geometric pattern stored in a memory.

    But why did the prosecuting attorney(s) write “a processing circuit coupled to the touch screen to compare …”? “A processing circuit to compare …”? That’s just asking for trouble.

    And claim 6 is dreadful, too. The user entered pattern is not part of the structure. A better claim would have been “wherein the processing circuit is configured to compare the user entered geometric pattern to a stored, predefined pattern representing a line.”

    Even worse, the prosecution history indicates that the “in a specified direction” limitation was necessary to overcome the prior art rejections. I’d have to look more closely to be absolutely certain, but I don’t think “in a specified direction” actually limits the touch screen. Instead, I think the “specified direction” concept is related to the processing that the processing circuit must do.

    What a mess.

  73. ou might actually try to make a decent argument.

    I did. See my 10:52 am comment. There’s nothing “not decent” about it. If you disagree, explain why, in your own words. Make an argument. Stop being a f—-ing pr*ck.

    It was shown to be false in the two seconds

    No, it wasn’t shown to be “false”. I explained why. You responded with your recycled personal attacks. This is what you do here, anon, every day. It’s pretty much all you do.

    If you think these patent claims are valid in view of touch screens (which are ancient in the art as of the effective date) and everyone who disagrees is an anti-patent idjit, just say so. Say it once, in black and white, and we’ll have perfect understanding of your position. If you don’t think that, then whtf is your f—-ng problem?

    Likewise, if you think “user authentication” and “gaining access” mean the same thing and everyone who disagrees is an anti-patent idjit, just say so.. Say it once, in black and white, and we’ll have perfect understanding of your position. If you don’t think that, then whatf is your f—–ng problem?

  74. “All the claim requires is a display and processing circuit that is capable of responding to a ‘swipe.'”

    Wrong.

  75. I begin to wonder at time whether the commentators here even know what we are talking about? The next question, is why is that?

    That answer is also easy to give. The real question is why Dennis let’s this f—knob “anon” sit here and spew his recycled invective at us when regardless of what we say or do.

    I just don’t see the trade-off. I get that people might not like my “style” (or yours) or they might not like my positions or they might disagree with them. That’s perfectly fine. You and I have had our disagreements, for sure. We’ve got back and forth on a lot of different topics and never agreed on them.

    But this anon —hole and its endless identical trolling in every thread. On the rare occasion it does make a contestable statement, if anyone dares to contest it and tries to get it to clarify what it’s talking about, it just accuses that person of “running away” and lying. And it’s the same mfing cre*p that tried to sockpuppet the comments into oblivion for years.

    What. The. F–k. Dennis.

  76. The Apple Newton had a password lock–at least I can find stuff online about how to circumvent it. And on-screen Graffiti input was available for it as of 1994. If that’s right, then a 1994 Newton equipped with Graffiti and with a password set by the user would be “1. A system comprising: a touch screen upon which a user is to enter, by drawing, a geometric pattern in a specified direction to gain access to the system; and a processing circuit coupled to the touch screen to compare the user entered geometric pattern to a predefined geometric pattern stored in a memory.”

    And if the user set the password to be a space, it would be a “system of claim 1 wherein the user entered geometric pattern is a line.”

  77. the big money finger swishing Apple case to see what reasoning and precedent they applied in rejecting the invalidity attack

    You won’t find any “reasoning” there which persuasively addresses the issues you raise. The USPTO lacks the competence (and/or the willingness to hurt the fee-fees of software applicants they’ve coddled for so long) required to correctly assess the invalidity of such claims.

  78. except for the very words used by that decision in denying EXACTLY what MM is trying to do here (in denying the Government’s suggestions in its amicus brief).

    The government suggested that ineligible subject matter should be ignored when deciding 103. The Supreme Court responded (1) that there was no precedent justifying that approach and (2) such an approach would turn 101 into a “dead letter”. Do you need a page cite to the case to refresh your memory anon?

    The Supreme Court then examined the relationship of the eligible step recited in the claim to the prior art. That step was old and conventional. As a result, the claim was effectively a claim to the ineligible subject matter itself and failed 101. This is the analysis I am applying here. The difference is that the ineligible subject matter in Prometheus was a mental step of thinking about a correlation and the ineligible subject matter here is a new drawing.

    If you have a counter-argument, try to articulate it without being a f—–ing pr*ck, anon. I doubt you can do it but go ahead and suprise everybody. I could play devil’s advocate and articulate one myself but whytf would I want to help a f—-ing pr*ck like you? I wasn’t even responding to your comment in the first place. I was respondig to Jeff Dixon. If Jeff wants to be a f—-ing pr*ck like you then let Jeff do that. I bet Jeff is capable of better.

  79. MM, I begin to wonder at time whether the commentators here even know what we are talking about? The next question, is why is that? Are they patent attorneys or just attorneys?

    Patent agents also should know better — that one cannot read into the claim limitations that are not there to distinquish over the prior art.

  80. Judith, I agree with Malcolm. All the claim requires is a display and processing circuit that is capable of responding to a “swipe.”

    Tell me that Apple machines do not have this capability. I would venture that every touch screen display has this capability and has had this capability for decades.

    Do not read limitations into the claim that are not there.

  81. I am afraid what I said wasn’t exactly right. I forgot that on classic Palms, the geometric recognition wasn’t on-screen but in a small “graffiti input” silkscreened rectangle below the screen (but the rectangle was included in the same resistive touch detection unit as the screen, I think).

    It was only in 2001 with the release of the Handera 330 (and later in 2002 with the Graffiti Anywhere app) that Graffiti input on the LCD screen itself became possible.

    Still, it seems to me (who am not a lawyer, though) to be a bit silly to think that the Handera 330 would have automatically infringed on this patent just because it extended the LCD to cover the input area and kept the old password system unchanged.

  82. MM, actually, the way the claim is written, it is confusing at best. The claim seems to be claiming hardware that is capable of doing something. Yet, viewed in a different light, the claim may be claiming the actions themselves.

    I would think the PTO should not issue such confusing claims as an ideal. But, what then is the reason they do? Professional incompentence of their examiners? PTO policy? The law as interpreted by the Federal Circuit. A combination?

    Regardless of the law, the PTO has an independent duty the public that the claims that issue are clear and understandable. The PTO truly needs to toughen up, because I think the problem here has very little to do with the professional incompetance of the examiners.

  83. Yes, I am talking about the application of 35 USC 103. However, 35 USC 103 doesn’t actually define obviousness. It just says that a patent may not be obtained if the differences between the invention and the prior art are such that the subject matter as a whole would have been obvious to PHOSITA, leaving it to the courts to work out what it means for something to be “obvious.” Taking a closer look at MPEP 2144.05(II)(A) refreshed my memory of the type of rejection I was thinking of, which relates to optimization of ranges (typically inserted in an Office Action to reject dependent claims that recite ranges of parameters as a sort of afterthought):

    “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.)”

    So it’s really only by loose analogy that this jurisprudence would apply to one shape of finger trace versus another. Is genus (finger swishing in general) / species (swishing a straight line) jurisprudence more applicable? Maybe I should actually read the big money finger swishing Apple case to see what reasoning and precedent they applied in rejecting the invalidity attack, and I might answer my own question, but I was feeling lazy and thought the commenters here might point me in the right direction.

  84. Palm devices have had password locks for a long time. The Palm III, released in 1998, had it (I just checked with a manual of it online). Now you might say: “Big deal, entering a password is not drawing a geometric pattern.” But it precisely is, since the text input on the classic PalmOS devices is done by drawing geometric patterns recognized by the Graffiti system. Seems a perfect match to the quoted claim (but I am not a lawyer).

    E.g., if you set up your password to be a single space, to activate the device you need to swipe left to right, because that’s how you write a space in Graffiti. Or you can activate your device by drawing a circle, simply by setting the password to “o”.

    Granted, I think you also have to tap a submit button. But the claim listed doesn’t say that the geometric pattern is ALL you need. And it’s an obvious modification to activate the device as soon as the password has been entered, without the need for pressing a submit button. Moreover, it would not surprise me if one of the many replacement security apps for PalmOS devices included a feature where you don’t have to tap on a submit button, but it lets you in as soon as you’ve entered the password.

  85. It was shown to be false in the two seconds it took me to dismantle your first vacuous post MM. You still have not addressed my counter post with anything close to being an intelligent reply.

    then say so and explain why

    I did. You (again) were not listening. You still are not listening.

    You are too busy immersing yourself in an eplectic rant of rage. It really is quite simple MM. Read and follow my posts. You wont have to get upset, and the readers will be spared your vacuous sniff and weak attacks. Instead of QQ’ing to Prof. Crouch, you might actually try to make a decent argument.

  86. I think there is a viable 101 angle, however, by analogy to the Prometheus decision.

    LOL – except for the very words used by that decision in denying EXACTLY what MM is trying to do here (in denying the Government’s suggestions in its amicus brief).

    MM Spin FAIL

    How do you stand to be so wrong, so often?

  87. Why reiterate something shown to be false?

    The fact that the above claims (i.e., claims 1 and 6) are not limited to “authenticating a user” was not “shown to be false”, anon. That limitation appears in dependent claim 9.

    Stop behaving like such an ignorant lying pr*ck. If you disagree with my analysis of the claims, then say so and explain why (like I did) instead of just hurling your recycled insults at commenters here. If you can’t handle that, then GFY.

    For godsake, Dennis, what is your f—king attraction to this piece of s–t???

  88. Jeff: I don’t know if there is an articulated legal principle with more substance or particularity than the type of rejection I mentioned above, which perhaps we could think of as a “tinkering is not inventing” rejection

    I’m not sure that there needs to be a more articulated legal principle at least with respect to the system/composition claims (to the extent those claims are treated as composition claims, and not as method claims). 103 should take care of it but of course the Examiner and his/her supervisor need to be sure that their oxygen tanks are functioning.

    I think there is a viable 101 angle, however, by analogy to the Prometheus decision. Consider the following:

    1. A method for [insert whatever you want], comprising:

    a) recognizing the movements of a finger on a touch-sensitive screen, wherein said touch-sensitive screen is connected to a POWERFUL COMPUTER BRAIN capable of recognizing and storing said movements; and

    b) determining that said movements created a pattern or image, wherein said pattern or image is [insert new, non-obvious image here].

    Obviously step (a) is old and conventional. Taken as a whole, then, the claim is effectively a claim to ineligible subject matter, i.e., the “new” image created on the touch-sensitive screen. Artists who use touch-sensitive screens would become infringers of this claim if their drawings happen to fall within the scope of the bracketed element in step (b).

  89. Descending into abusive language because I nailed you attempting (once again) more of your typical spin.

    Prof. Crouch must weep. But you do provide a powerful example of what NOT to do, and you do provide the opportunity for me to (once again) rip your head off and hand it back to you.

    btw, your latest post is even more spin, attempting to portray something that was not there – you never asked for details of implementation – at least with regards to the picture you are trying to paint here. I, in fact, provided more than ample details in order to defend the comments I made – details that you were unable to overcome. You – not being able to overcome the details provided – thus did the usual MM “quality” move of mischaracterizing, spinning, and using undeserved insults. And yes – you are still leaving out details – like the attempted trick of using some other lawyer’s name and address.

    And accusing me of that which you do: if I am lying, state the lie.

    You will not because you cannot.

  90. Just to reiterate: there is no limitation in the claims recited above regarding “authenticating a user”

    Why reiterate something shown to be false?

    How intellectually honest is that?

    At the very least, your position should migrate from “no limitation” to “the limitation that anon graciously showed me was thre when he handed my head back to me should fail for a different reason under patent law, (and if you wanted to tempt fate with some substantive content) that reason being that the claim limitation is too broad.”

    Instead, you just break out your QQ shovel and start digging.

    (sigh) – one of these times you might (if only by accident) actually put your head back on straight.

  91. even as your spin keeps leaving out elements in my original post, it remains ineffective

    You were asked to provide the details of your imaginary “screening system” and you refused to do so. Now you claim that I’m leaving out “elements”? LOL. GFY, you pathologically lying pr*ck.

  92. If the Examiner can’t identify a particular “reason” (KSR) why OSITA would program a phone to unlock by a user tracing a pentagram, a Star of David, or Mickey Mouse’s face and ears in view of some other known swipe, does that make the new swipe pattern non-obvious?

    Director Kappos’ answer to your question, at least, is evident in the claims that are being granted on the basis of such meaningless changes.

  93. Thanks Les and haha.

    I am in fact thinking about how examination should be performed. Examiners – all examiners – are charged with examining the application presented – not just the claims. Anyone can take a sniff at the claims and miss badly(and as evidenced on this blog).

    The fact that examination is not done properly is directly correlated to the fact that such an unreasonable gap in time does exist.

    Whether or not the same examiner was involved, this application was examined on the merits – with no new matter – three times prior to the delay, and mere claim changes does not and cannot explain the egregious delay.

  94. Just to reiterate: there is no limitation in the claims recited above regarding “authenticating a user” (i.e., treating the “drawing” as a personalized passkey). Clearly the applicant knew how to write the word “authenticating” and the applicant (like any average high school student) also knew how to describe a touch-screen system that would, in fact, function specifically to “authenticate a user”.

    Indeed, such a system is plainly defined in the dependent claims (e.g., 7. “system of claim 1 wherein the user entered geometric pattern is unique to the user”; and claim 9. “The system of claim 1 wherein the user entered geometric pattern authenticates the user if the user entered geometric pattern matches the predefined geometric pattern”). In light of these dependent claims, the breadth of claim 1 should become more clear.

    That’s not the system that is described in the broad claims above, however. The system in the claims above is a broader system for “gaining access” that comprises a touch screen and a POWERFUL COMPUTER BRAIN that is merely capable of comparing a “drawing” on the touch screen to a “drawing” in the memory of the PCB. The authenticating “step” appears in a dependent claim (steps in a composition claim? yet another example of USPTO failure in its never-ending effort to feed the computer-implementing parasites who have infected it).

    The term “drawing” is not defined. There is no requirement in claims that any “drawing” be viewable to the user at any time, nor is there any such requirement indicated in the claims. Given that the term is at least broad enough to encompass a line of any length, it certainly encompasses putting one’s finger on a screen and moving it any direction of any length. There are no other limitations in the claim.

    The term “gain access” does not appear in the specification. It appears only in the claims. The specification and the dependent claims are clear that “gain access” encompasses any additional functionality (“access to a file in the memory of the device”) offered to the user after the finger movement is recognized.

    And of course there’s this: “The following description is not to be taken in a limiting sense, but is made merely for the purpose of describing the general principles of the invention. The scope of the invention should be determined with reference to the claims.

  95. LOL

    Still digging with that, huh MM?

    It’s as comical as it is futile. And even as your spin keeps leaving out elements in my original post, it remains ineffective (like most anything else you regurgitate).

    And I’m pretty sure that the handling of IDS information cannot be pinned on Kappos, no matter how much you want to try to smear him (yes, I am aware that this smear job still traces back to the FACT of the Kappos quote “Quality does not equal reject.” that burns you, that you attempted to spin but could not, given the factual and histroical chart that the pre-Kappos Office actually used (brazenly) as an example of its Quality initiative “success” – the very same “success” that launched the mountains of backlogs when applicants refused to be rejected away).

    MM Spin FAIL

  96. But I don’t know if there is an articulated legal principle with more substance or particularity than the type of rejection I mentioned above

    35 USC 103.

  97. This comment is maybe not as asinine as it might first appear – like a lot of people, I use my smartphone as an alarm clock, and it seems to need to “breathe” or it gets hot, to the point where I nearly burned my arm on it once when it was under the covers. I wonder if some kind of ventilating cover might have prevented that…

  98. My gut feeling is that you could justify programming a processor to recognize a trace being patentably distinct from a mere stationary touch, but beyond that any one trace should be at least prima facie obvious over any other trace, and to overcome obviousness ought to require a really strong showing of secondary considerations. But I don’t know if there is an articulated legal principle with more substance or particularity than the type of rejection I mentioned above, which perhaps we could think of as a “tinkering is not inventing” rejection.

  99. “that any of the examiners read the specification”

    I wouldn’t call it a fatal assumption … however, it should be an unjustified assumption. The default assumption is that the Examiner reads the claims and nothing more.

  100. I’m sure that nobody at Micron ever knew about those applications. Like most companies, even if some slimy competitor tried to anonymously send those publications by registered letter to Micron’s IP counsel, CEO or the inventor, the mailroom staff would open the letter and destroy it before any damage could be done.

    Seriously, though, I wouldn’t be surprised if they were cited in an IDS and simply ignored. That’s our USPTO.

    Heckuva job, Kappos.

  101. I don’t have an iPhone, but I just did a little field research on my LG smartphone running an Android OS, curious to see if it would actually just let me touch the first endpoint and trace my finger anywhere on the screen as long as I eventually arrived at the second. (This is swiping to decline a call rather than swiping to unlock, because I had to set my phone to unlock with a code to meet my firm’s Outlook security settings). What I noted was that the path certainly doesn’t have to be straight or direct – it can have swirlies and loopies and retracings – but it has to fit within a band bounded maybe 1/4 inch above and 1/4 inch below the slider graphic. If your finger traces to a point outside that band, the slider jumps back to its start position, and you can’t regain “hold” of it even if you trace back into the band; the only way to execute the swipe then is to take your finger off the screen and start over by touching on/near the slider again and dragging it while keeping your finger inside the band. I’m not sure if my “research” adds much to the legal discussion, but it got me thinking about different plausible and useful ways that you could program a processor to recognize a swipe and reject a “non-swipe.” For example, you could have the slider bounce back to start if and only if the user’s finger traces all the way off the screen. Or in the opposite extreme, if the user’s finger loses contact with a line as opposed to a band. Even then, effectively there would still be a “band” because your finger pad contacts an area of the screen rather than just a point, and as long as your finger pad covers at least one point on the line segment at all times, you wouldn’t lose control of the slider. To be more restrictive, then, it would be useful to define negative instead of positive boundary criteria – i.e., instead of a band or line that the area of contact of your finger pad on the screen must intersect at all times, you could define an upper area on the screen above the slider and a lower area on the screen below the slider that the area of contact of your finger pad must NOT intersect at any time, or you lose control of the slider. The legal/philosophical question seems to be, do all of these types of variations render one another obvious based on the rationale often presented in Office Actions to the effect of, “once the general conditions of an invention are known, merely identifying an optimal range of a parameter is an obvious design choice?” If not, how is an Examiner to distinguish between what kind of touch/swipe merely entails a design choice and what kind of touch/swipe is non-obvious over a known kind of swipe? If the Examiner can’t identify a particular “reason” (KSR) why OSITA would program a phone to unlock by a user tracing a pentagram, a Star of David, or Mickey Mouse’s face and ears in view of some other known swipe, does that make the new swipe pattern non-obvious?

  102. You appear to make two fatal assumptions: 1) that the same examiner examined all 4 applications and 2) that any of the examiners read the specification.

  103. Thanks Anon. You saved me the typing.

    Dan Swirsky 0, NWPA 1.

    Dan, don’t take a victory lap so quickly. Besides, if you are an attorney that has worked on claim construction issues you have to know that no one ever knows what a federal dist. judge is going to come up with in a Markman hearing.

  104. I think the fact that a slide track is present removes the squares as well as the triangles, ellipsis, circle and anything else not on the slide track (which itself is a geometric pattern, and a predefined one at that).

    No apple for you, teacher.

  105. Say what?

    Checking the ends only is NOT checking a geometric pattern – a geometric pattern is path dependent. A triangle and square can share a point, so if you trace them you can start and end at the same place, but if you trace the points on each shape you take different paths. So too, a line cutting an ellipse or circle or parabola will intersect with two point on the shape, but tracing the shape between the points and tracing the line segment between the points yields a different path. Thus, merely comparing endpoints is NOT the same as comparing the shapes that have been traced out, and the claim recites the latter. Dan Swirsky 1, NWPA 0.

  106. Checking a first end and then checking a second end is comparing user entered geometric pattern to a predefined geometric pattern.

    The representation of the geometric pattern is two ends.

  107. As far as I know Apple’s slide to unlock does not store and compare any geometric pattern. However, the Android phones do use a geometric pattern unlocking system so I’d expect this patent to be tested against all of the major cellphone manufacturers except Apple, if they all don’t just license it.

  108. Thanks…

    US6148093 – PCT Published Mar. 26, 1998 – Note Abstract detailing validation of a personal signature, Figure 6, and Col. 17, ll. 19-30 detailing pen 1, no ink, and pressure sensitive display device 10.

    JP10222241 – Published Aug. 21, 1998 – Note Abstract detailing “To accurately authenticate an individual by a simple method which saves trouble and to completely obtain the security of a computer by authenticating the individual through comparison between stored signature feature data and an electronic pen signature”. Note also Figure 6 showing 81-83.

    That is 2 of the 4 references from this super simplistic string executed on Espacenet: authenticat* signature in the title or abstract AND 1980:1999 as the publication date AND G06F3 as the IPC classification

  109. Who says that Apple’s operating system compares the user entered geometric pattern to a predefined geometric pattern stored in a memory? Perhaps they merely check that the slider reaches the end of the slide track? And if they’re not already doing this, they could easily update their operating system with this design-around and send Micron on their merry way.

  110. field of the invention:

    “The invention relates generally to methods of accessing a secure computer system. More particularly, this invention relates to a method and system for authenticating an identity of a user before accessing a computer system.”

    from early in the spec:

    “To overcome the above-mentioned limitations, the invention provides a method and system for authenticating a user to access a computer system. The method comprises communicating security information to the computer system, and providing the computer system with an implicit input. The method further comprises determining whether the security information and implicit input match corresponding information associated with the user. The method further comprises granting the user access to the computer system in the event of a satisfactory match.”

    from end of the spec:

    “In view of the foregoing, it will be appreciated that the invention overcomes the long-standing need for a method and system for correctly authenticating a user despite the presence of duress and force by a computer hacker.”

    Drawing a straight line with your finger on a touchpad DEFINITELY overcomes the problem of *authenticating* a user (as opposed to merely functioning as an on/off switch, which is what Apple’s swipe does, for instance).

  111. Unless my humongous postings on the matter have not been clear, I also blame bad drafting. Indeed, much was made in the past about the horrendous drafting work done on the lawls behind this nonsense.

  112. Not that I care too much, but how does the spec or prosecution differentiate this from the dozens of touch pads and circuit references which compare a stylus drawn signature to a memory stored signature to authenticate a user and enable access to a device? (Please don’t say touch pad vs. touch screen.)

  113. and I explained why.

    Your explanation was vacuous and defeated two seconds after I saw it. It was your usual sniff and (mindless) attack.

    Better trolling please.

    If you think you are adding anything of value in your mindless retort you are (as usual) way way way too full of yourself.

    Let us know

    I did. You weren’t listening (again).

    Stop asking me to hand your head to you. Come up with some non-vacuous posting that is more than a sniff and a weak put-down.

  114. Pointing out that your reply is vacuous is a far cry from defending what you so poorly attack.

    Oh, look, it’s that disparaging fortune cookie again. Or maybe it’s disparaging magic 8 ball?

    Maybe you can tell everyone whether you think Apple’s (or anyone else’s) swipe falls within the scope of the claim. I think it does and I explained why. Nothing “vacuous” about it. In response, you spewed out your generic insults, like some cranked out a–hole on the corner at 2 am.

    Do you want to talk about the scope of the claims and the validity of the claims? Let me know. I’d like to talk about and probably other people do as well. I think Dennis would like it if people talked about the claims and their meaning and their validity.

    So … we can do that … or you can just sit there and re-type all your endless repetitive horsesh-t about me and LB and 6 and MD and Ned and the other “anti-patent” people you believe are conspiring to take away your cheetoh bags. Which do you choose, anon? Let us know.

  115. Heckuva job, Kappos.

    Somebody call him up and ask him if he stands behind this. Or any other pending patents that cite and old touch screen capable of being touched in a “new” way. Or methods of touching an old touch screen in an old way for a “new” purpose (“wherein said swiping motion authorizes the son of the owner of the hand-held device to withdraw money from a Ft. Lauderdale bank”).

    How is progress in any useful art being promoted by the issuance of pure g—bage like this?

    At least there’s only one inventor listed. Enjoy it while it lasts, Jim.

  116. Pointing out that your reply is vacuous is a far cry from defending what you so poorly attack.

    Better trolling please.

  117. Now if you had QQ’d about “directionality,” you would have avoided that charming vacuous character you are so well known for.

  118. “to gain access to the system”

    That’s a pretty broad definition of “user authentication.” My TV set has a remote control with a button that I use to “gain access”. It’s called an “on button.”

    travesty.

    It is a travesty. I knew you’d defend it, though, anon! You always do. Your position is noted.

  119. The Spec indicates that this is an authentication mechanism, and the directionality of the geometric object is used to authenticate the user. I don’t think Apple’s slide to unlock would fall within the scope of this claim.

    There are no limitations about “authentication” in the claim and it would be a claim construction travesty to read such limitations in now.

  120. The Spec indicates that this is an authentication mechanism, and the directionality of the geometric object is used to authenticate the user. I don’t think Apple’s slide to unlock would fall within the scope of this claim. I do think the Android operating system’s draw-to-authenticate yourself would potentially be within the claim scope.

  121. Your read of claims as requiring only hardware capable of reading the swipe is probably correct. The claim does not actually require any swipes at all.

    As such, the claim is invalid over any prior system that has the requisite capability.

    FYI, Control Data had a major education busines circa the ’70s based on touch screen displays. I would suggest that interested folks might look there for prior art.

  122. Tell me again how that technical amendment publicly listing all those nasty people who have schemed NOT to have their applications fully examined did…

  123. LOL

    Anytime a plug can be thrown in that drafting is bad – there be IANAE.

    You have jumped to the conclusion that the view of the first Exelixis case (and several other cases in the interrim) are “bad,” or that the statute itself must be “bad” if the court’s interpretation stands.

    See my comment to 6 above about the untoward desire to label law based on how you want the world to be.

  124. Given the way the AIA and it’s technical amendment were ramrodded through Congress, my guess is that if Rep. Smith wants to correct section 154, he will get his wish.

  125. 6,

    Your desire to call any result you don’t like “ta rdation” is going to really impact your ability to understand law.

  126. I only cared at all about the outlandish construction of the statute.

    Huh. Even examiners blame bad construction when they should be blaming bad drafting.

  127. Well if they correct the statute then I personally do not care either way. I do not mind if someone gets PTA, I only cared at all about the outlandish construction of the statute.

  128. I don’t wish it to be either way, I am unaffected by it myself. I have just noted that the proposed construction by the courts that changed the PTO’s construction was just plain ta rdation. I’m glad that it will be fixed, I didn’t think it would be this soon.

  129. Until the dictatorship of Smith is established, I guess we will have to defer to the courts until enough of the rest of Congress agrees with Smith.

  130. Rep. Lamar Smith has said that if the Fed. Cir. affirms the earlier Exelixis decision (not J. Brinkema’s recent decision in favor of the PTO, the first one that went against the PTO), he would introduce legislation to correct the statute.

  131. LOL – Of course it had different claims. They do that in continuations.

    But since the specification was EXACTLY the same, and had been fully examined, not once, not twice, but three times, the fourth shoudl hav ebeen extremely easy – ESPECIALLY if the claims were radically different.

    Your “A” in perceptions just went to a “C-”

  132. Given that no new matter was added to the original application, and that it was fully examined and resulted in a patent earlier, what possible rational could there be for such a delay in any continuation?

    Looks like the continuation had different claims from the parent, so it probably also had to be fully examined.

  133. If anything 6 – it’s just getting started.

    Keep in mind, that the initial Exelixis decision has already been accepted by other districts, this one rogue “the Office was right” is hardly the decisive factor you wish it to be.

  134. Mea culpa,

    I assumed the span of time was for examination of the single application. I was incorrect.

    The filing date of this application was 4/10/2012 and the patent issued 1/8/2013.

    However, there is an unseemly span between the 3rd and 4th continuations – a roughly six and half year span between filings dates. Given that no new matter was added to the original application, and that it was fully examined and resulted in a patent earlier, what possible rational could there be for such a delay in any continuation?

  135. So many things wrong with this.

    It’s something called a “continuation”. Apparently you can do that now.

  136. U.S. Patent No 8,352,745 issued in January 2013 but claims priority to an original application filed in February 2000

    So many things wrong with this.

    6 – where are you getting the effective filing date preceeds 1980?

  137. Of course, the effective filing date preceeds 1980 when the founding work on touch screens coupled to processing circuits capable of these intended uses was being performed, but I presume they get 17 years from issue.

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