Two-Way Media & the Doctrine of Equivalents

Two-Way Media v. AT&T, SA-09-c-476 (W.D. Tx. 2013)

Interesting jury verdict for Two-Way Media where a jury found that that AT&T infringes a total of seven claims coming from two different patents owned by the plaintiff and awarded $27 million in damages. U.S. Patent Nos. 5,778,187 and 5,983,005. The jury found no literal infringement but only infringement under the doctrine of equivalents.

The patents are part of a family of patents claiming a method of multicast-streaming. Infringed claim 1 is broadly written and listed below:

1. A method for transmitting message packets over a communications network comprising the steps of:

converting a plurality of streams of audio and/or visual information into a plurality of streams of addressed digital packets complying with the specifications of a network communication protocol,

for each stream, routing such stream to one or more users,

controlling the routing of the stream of packets in response to selection signals received from the users, and

monitoring the reception of packets by the users and accumulating records that indicate which streams of packets were received by which users, wherein at least one stream of packets comprises an audio and/or visual selection and the records that are accumulated indicate the time that a user starts receiving the audio and/or visual selection and the time that the user stops receiving the audio and/or visual selection.

The patent itself was subject to a third-party requested reexamination and the USPTO confirmed that all claims were patentable without amendment.

The patents themselves were originally owned by Netcast Communications. That company was founded by Jim Butterworth with the help of Antonio Monteiro. The pair received a number of patents covering various aspects of streaming technology. When Netcast closed operations, Butterworth founded Two-Way Media as the new patent holder and still runs the company. As streaming technology moved forward, these patents have become more valuable and the company has sued several others for infringement, including Akamai, Limelight, and AOL. Those cases all settled.

Among the motions in limine granted before trial, Judge Garcia ordered AT&T’s attorneys to (1) not mention the contingency fee arrangement between Two-Way and its attorneys at Susman Godfrey and (2) not use any language that would denigrate the patent system.

I suspect that we’ll have an appeal in this case that will focus on the doctrine of equivalents.

60 thoughts on “Two-Way Media & the Doctrine of Equivalents

  1. A claimed apparatus

    What about a shift register? (keep in mind that sometimes the Court gets so caught up in itself that it makes even an apparatus subjective)

  2. Max: So, can there ever be a process claim, expressed as process steps, that fails to
    ” integrate the concept into the process as a whole.”

    101 Integration Expert: Yes, see Benson, Flook, Bilski, Prometheus,. These processes all included a claim, or an attempt to claim, a “manifestly evident” law of nature, or math formula/algorithm that is like a law of nature and considered abstract by the Court. In those cases the formulas stood alone or were disembodied, or offered nothing more than the formula itself when applied. Thus the formulas were not integrated. In addition, any claim that is “manifestly” a fundamental truth; an original cause; a motive; cannot be patented, if not “integrated” in a process that is an inventive application ( offering something more than the truth, cause, or motive itself), because as the Court said, “no one can claim in either of them an exclusive right.” See Benson relying on Court precedents.

    Max: I suppose not. In which case, the 101IE analysis is like that of 6. That is, does the claimed process pre-empt the underlying concept? Y/N?

    101 Integration Expert: No. 6 use of Pre-emption, on this board at least, is to simply recognize an otherwise statutory process consisting entirely of information processing, software, or business methods steps, then arbitrarily declare those steps a pre-emption of an abstract concept. No integration analysis takes place. This is clearly a gross violation of the law.

    Max: Only trouble I have with that is, every claim I write is a sincere effort to pre-empt an inventive concept. Where am I going wrong?

    101 Integration Expert: Well, if you go by United States patent law your mistake is writing claims that pre-empt a concept, inventive or otherwise. Here, in the USA, patents are not granted for concepts, no matter how inventive. Concepts and ideas, are essentially dreams and like anything in nature, such are free to all men. The Court recognized such when it stated in Funk Bros: “…patents cannot issue for the discovery of the phenomena of nature. See Le Roy v. Tatham, 14 How. 156, 55 U. S. 175. The qualities of these bacteria, like the heat of the sun, electricity, or the qualities of metals, are part of the storehouse of knowledge of all men. They are “manifestations” of laws of nature, free to all men and reserved exclusively to none. He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end. ” [Emphasis Added]

    More recently, our CAFC explained that the “disqualifying characteristic” of abstractness must exhibit itself “manifestly” “to override the broad statutory categories of patent eligible subject matter.” Research Corp., 627 F.3d at 868. relying on Supreme Court precedent previously cited.
    Thus, Patents are granted for inventive “applications” of concepts. Whether the concept itself is new, or old, is largely irrelevant as by itself, it is ineligible. What will keep you out of trouble is this “Integration Shortcut Memory Sheet”.

    a) If your process claim recites a math formula or natural law by itself ( manifestly), it’s not legally integrated.

    b) If your process claim recites a fundamental truth; an original cause; a motive by itself ( manifestly) , it’s not legally integrated.

    c) If your claim recites (a) or (b) above in conjunction with other steps that make it a new use of (a) or (b) above, it is an “inventive application” and thus is integrated.

    Hope this helps.

    Let me know if you have any further questions.

    Max: How about “applying” a mathematical equation, to crunch lots of numbers. Is the equation thereby “integrated”?

    101 Integration Expert: Well, that depends. In the concluding analysis, when viewed as a whole, do the steps beyond the equation add something more than the sum of their parts? If yes, the steps are sufficient to transform an un-patentable math equation into a patentable application of the equation. See [ Prometheus referencing Diehr. ]

    Max: In other words, integration in what?

    101 Integration Expert: A process other than a manifestly evident law of nature, natural phenomenon, fundamental truth; original cause; or motive.

    Max: I think SCOTUS is trying to tell us to enquire whether the claimed process is a process within the ambit of the useful arts, all the while ducking out of telling us what the useful arts are. You?

    101 Integration Expert: No. Processes are within the useful arts. See [ 35 U.S.C. ]. The Court has only created the exceptions, of law of nature, natural phenomenon, and abstract ideas.

    Max: “The observer thinks objectively about the dialogue.”

    Now you have strayed out of processes within the useful arts, such as business and industry, into processes within the liberal arts such as human communication, speech and perception. In the USA we have Bachelor of Arts degrees, and text books on these liberal art processes e.g. there are Communication Studies, Speech Communication/Human Communications and Social Psychology programs to name a few. And while you can earn a degree in such fields you can’t earn a patent. The reason why is because such examples are based on individual perceptions, and as such can never be truly objective. Your observer may say she is thinking objectively about the dialogue, but her perception is “subject” to her own beliefs, values and attitudes , and thus never truly objective. Another observer may witness the same exact conversation and have a totally different perception. Therefore human communication can’t be the subject of a patent eligible process.

    Now take executable code. The code is objective no matter what a human being thinks. MM may call it crpp, but the code does not care or change because of that perception. The code will still function the way it was designed. Thus, it is within the useful arts, and if new and useful, a patent eligible process.

    The same is said of many business processes, including setting a price. An established and agreed upon price is objective, no matter what you think of the price. You may think the price is unfair, outrageous, too high, or just perfect. But it is still the price no matter your perception. The price is objective and is within the useful arts, and like all new and useful business methods/processes, patent eligible subject matter.

    MM: What is “this theory”?

    101 Integration Expert: Your theory ( or proposition as you’ve called it) of first dissecting all processes into what you call eligible and ineligible steps, and then ignoring, or refusing to give patentable weight to the so called ineligible steps in the concluding analysis. Such a theory, if ever allowed by the Court would give petitioners, or examiners, a surgical instrument that would subjectively vitiate any claim, and ultimately eviscerate all patent law. Starting first and foremost with the Courts controlling precedent for over 30 years ( Diehr) in which claims are considered as an inseparable whole.

    MM: Please explain the “conflict” and tell everyone how a subsequent novel mental step can be “integrated” with an old eligible step in such a way to as to satisfy 101.

    You have just answered your own question (the conflict) and defeated your own proposition by proffering a challenge that will ultimately show how “dissection” and “integration” can’t coexist at the same time. The former is the antithesis of the latter.

    Even in the special circumstance of post solution activity, as was the case in Flook and Prometheus, the claims are ultimately integrated and considered as an inseparable whole in the concluding analysis for 101 subject matter eligibility. See, “( Diehr and Flook, the cases most directly on point, both addressed processes using mathematical formulas that, like laws of nature, are not themselves patentable. In Diehr, the overall process was patent eligible because of the way the additional steps of the process “integrated” the equation into the “process as a whole”. 450 U. S., at 187. These additional steps transformed the process into an inventive application of the formula. )” [MAYO COLLABORATIVE SERVICES v. PROMETHEUS LABORATORIES, INC 566 U. S. (2012) 3 Syllabus] (Emphasis Added)

    Any further questions?

    Max: “The observer thinks objectively about the dialogue.” …..” I am doubting that you can sort claimed processes into subjective ones and objective ones.”

    Now you have strayed out of processes within the useful arts, such as business and industry, into processes within the liberal arts such as human communication, speech and perception. In the USA we have Bachelor of Arts degrees, and text books on these liberal art processes e.g. there are Communication Studies, Speech Communication/Human Communications and Social Psychology programs to name a few. And while you can earn a degree in such fields you can’t earn a patent. The reason why is because such examples are based on individual perceptions, and as such can never be truly objective. Your observer may say she is thinking objectively about the dialogue, but her perception is “subject” to her own beliefs, values and attitudes , and thus never truly objective. Another observer may witness the same exact conversation and have a totally different perception. Therefore human communication can’t be the subject of a patent eligible process.

    Now take executable code. The execution of the code is objective no matter what a human being thinks. MM may call it software crpp, but the code does not care or change because of that perception. The code will still function on a machine the way it was designed. Thus, it is within the useful arts, and if new and useful, a patent eligible process.

    The same is said of many business processes, including setting a price. An established and agreed upon price is objective, no matter what you think of the price. You may think the price is unfair, outrageous, too high, or just perfect. But it is still the price no matter your perception. The price is objective and is within the useful arts, and like all new and useful business methods/processes, patent eligible subject matter.

  3. I’ll think on that. I think I know the difference between subjective and objective. Suppose a policeman is interviewing a suspect and a third party observes. The policemen subjectively hears an admission of guilt. The suspect subjectively thinks he has made no such admission. The observer thinks objectively about the dialogue.

    A claimed apparatus is neither subjective nor objective. I am doubting that you can sort claimed processes into subjective ones and objective ones.

  4. If it is subjective then it is abstract in terms of how you evaluate it. Remember what the Court explicit told you, ” fundamental truth; original cause; or motive”. Essential anything that you do within the mind.

  5. Max: So is it abstract, what they are doing?

    It’s not what they are doing but HOW they are doing it. The difference is between subjective processes ( Liberal Arts ) and objective processes ( Useful Arts). Business and industry, or industrial arts, are objective processes, and all within the Constitutional framework of patents and the meaning of Useful Arts.

  6. I think that’s a very kind service, to pull out the dialogue. Thanks.

    I think I know what is a natural phenomenon or law of nature but I’m not sure what SCOTUS means (in the context of patent-eligibility) by “abstract”.

    I am still thinking that some new and non-obvious processes, by no means “abstract”, are nevertheless not within the ambit of the useful arts as contemplated by the writers of the Constitution.

    For example: clever new ways to write jokes, save tax or persuade people to buy your product.

    While only a patent attorney, for a joke, would apply for a US patent on a process of telling a joke (see Roberts) there is money enough in tax accountancy and on Madison Avenue, to prompt patent filings in these areas. So is it abstract, what they are doing? I should have thought not.

  7. IBP:Didn’t we go over this already and find that your source of authority was merely some comment made somewhere by some PTO bureaucrat?

    101 Integration Expert: No. The authority for the Doctrine of Integration comes explicitly from the Supreme Court of the United States of America. See:

    “In Diehr, the overall process was patent eligible because of the way the additional steps of the process “integrated” the equation into the process as a whole. 450 U. S., at 187. These additional steps transformed the process into an inventive application of the formula. ) [MAYO COLLABORATIVE SERVICES v. PROMETHEUS LABORATORIES, INC 566 U. S. (2012) 3 Syllabus] (Emphasis Added)

    Which, by the way, the Official USPTO Guidance relies on and cites explicitly. And since you have failed to cite the Supreme Court, or ANY court case for specific authority for your apparent dissection of the “method claim for transmitting message packets over a communications network” it’s time for you to concede the debate. But since you are not capable of such mature and professional behavior, your customary rant of juvenile invectives that show the primacy of your patent law puppyhood, will do.

  8. > Max: I suppose not. In which case, the 101IE analysis is like that of 6. That is, does the claimed process pre-empt the underlying concept? Y/N? 
    >
    >
    > 101  Integration Expert: No. 6 use of Pre-emption, on this board at least, is to simply recognize an otherwise statutory process consisting entirely of information processing, software, or business methods steps, then arbitrarily declare those steps a pre-emption of an abstract concept. No integration analysis takes place. This is clearly a gross violation of the law.
    >
    >
    > Max: Only trouble I have with that is, every claim I write is a sincere effort to pre-empt an inventive concept.  Where am I going wrong?
    >
    >
    > 101  Integration Expert: Well, if you go by United States patent law your mistake is writing claims that pre-empt a concept, inventive or otherwise. Here, in the USA, patents are not granted for concepts, no matter how inventive.  Concepts and ideas, are essentially dreams and like anything in nature, such are free to all men. The Court recognized such when it stated in Funk Bros: “…patents cannot issue for the discovery of the phenomena of nature. See Le Roy v. Tatham, 14 How. 156, 55 U. S. 175. The qualities of these bacteria, like the heat of the sun, electricity, or the qualities of metals, are part of the storehouse of knowledge of all men. They are “manifestations” of laws of nature, free to all men and reserved exclusively to none. He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end. ” [Emphasis Added]
    >
    >
    > More recently, our CAFC explained that the “disqualifying characteristic” of abstractness must exhibit itself “manifestly” “to override the broad statutory categories of patent eligible subject matter.” Research Corp., 627 F.3d at 868. relying on Supreme Court precedent previously cited.
    >
    > Thus, Patents are granted for inventive “applications” of concepts. Whether the concept itself is new, or old, is largely irrelevant as by itself, it is ineligible. What will keep you out of trouble is this “Integration Shortcut Memory Sheet”. 
    >
    >
    > a) If your process claim recites a math  formula or natural law by itself ( manifestly), it’s not legally integrated.
    >
    >
    > b) If your process claim recites  a fundamental truth; an original cause; a motive by itself ( manifestly) , it’s not legally integrated.
    >
    >
    > c) If your claim recites (a) or (b) above in conjunction with other steps that make it a new use of (a) or (b) above, it is an “inventive application” and thus is integrated.
    >
    >
    > Hope this helps. 
    >
    >  
    >
    > Let me know if you have any further questions.
    >
    >
    >
    >
    > Max: How about “applying” a mathematical equation, to crunch lots of numbers. Is the equation thereby “integrated”?
    >
    >
    > 101 Integration Expert: Well, that depends. In the concluding analysis, when viewed as a whole, do the steps beyond the equation add something more than the sum of their parts?  If yes, the steps are sufficient to transform an un-patentable math equation into a patentable application of the equation. See [ Prometheus referencing Diehr. ]
    >
    >
    >
    > Max: In other words, integration in what?
    >
    >
    > 101 Integration Expert: A process other than a manifestly evident law of nature, natural phenomenon,  fundamental truth; original cause; or motive.  
    >
    >
    > Max: I think SCOTUS is trying to tell us to enquire whether the claimed process is a process within the ambit of the useful arts, all the while ducking out of telling us what the useful arts are. You?
    >
    >
    > 101 Integration Expert: No. Processes are within the useful arts.  See [ 35 U.S.C. ]. The Court has  only created the exceptions, of law of nature, natural phenomenon, and abstract ideas.
    >
    >

  9. 101DE–

    Didn’t we go over this already and find that your source of authority was a statement made somewhere by some PTO bureaucrat?

    And I don’t rely on PTO interim guidance for a statement of what the law is. If I did, a bunch of my design clients might now be up-the-creek with a bunch of dashed-dot lines in their patents.

  10. 101DE–

    Didn’t we go over this already and find that your source of authority was merely some comment made somewhere by some PTO bureaucrat?

    I do not look to USPTO interim guidance for a statement of what the law is. If I did, my design clients would be up-the-creek with a bunch of dashed-dot lines right now.

  11. Dear 101 IE, above you write “Thus”. From this I conclude that every process claim is “integrated” except those that are “abstract” in the sense explained in Benson and its progeny.

    I’m trying to find what the process of “integration” involves, over and beyond the enquiry whether the subject matter of the process claim is abstract. How about “applying” a mathematical equation, to crunch lots of numbers. Is the equation thereby “integrated”?

    In other words, integration in what?

    I think SCOTUS is trying to tell us to enquire whether the claimed process is a process within the ambit of the useful arts, all the while ducking out of telling us what the useful arts are. You?

  12. Max: So, can there ever be a process claim, expressed as process steps, that fails to ” integrate the concept into the process as a whole.”

    101 Integration Expert: Yes, see Benson, Flook, Bilski, Prometheus,. These processes all included a claim, or an attempt to claim, a “manifestly evident” law of nature, or math formula/algorithm that is like a law of nature and considered abstract by the Court. In those cases the formulas stood alone or were disembodied, or offered nothing more than the formula itself when applied. Thus the formulas were not integrated. In addition, any claim that is “manifestly” a fundamental truth; an original cause; a motive; cannot be patented, if not “integrated” in a process that is an inventive application ( offering something more than the truth, cause, or motive itself), because as the Court said, “no one can claim in either of them an exclusive right.” See Benson relying on Court precedents.

  13. 101, that's all they claimed.   They just broke the steps down into sub-steps that themselves were commonplace. 
     
    Nothing new from concept to implementation.

     
    Sent from Windows Mail
     

  14. You have to go by what the inventors actually claimed

    B-b-b-but changing the claim to talk about “the gist” is so much easier to transition into the strawmen to be knocked down.

  15. I suppose not.

    Why do you suppose not?

    I have just recently posted such a claim.

    Stop being lazy MaxDrei.

  16. Unfortunately, I failed to make my “How..” question clear enough to stop 101 answering it with the standard text with which he always answers. I will try again.

    So, can there ever be a process claim, expressed as process steps, that fails to

    ” integrate the concept into the process as a whole”

    I suppose not. In which case, the 101IE analysis is like that of 6. That is, does the claimed process pre-empt the underlying concept? Y/N? Now that I can understand.

    Only trouble I have with that is, every claim I write is a sincere effort to pre-empt an inventive concept. That’s what clients have been paying me to do, these past 40 years. That I see as the essence and acme of my profession. A claim that fails to do that is so poor it will not even get me through the claim drafting paper that I need to pass to qualify as a British or European patent attorney.

    Where am I going wrong? Who wants to tell me?

  17. IBP: “Yes you are, when what you are eliminating is field-of-use limitations (Flook).”

    No, you are not. Field of use limitations are only evoked by the Court when there is a manifestation of a bare Court created judicial exception such as the math formula in Flook, and the algorithm in Diehr. There are no such manifestly evident exceptions in this claim. Therefore you are to proceed with “integration” by considering the claims as an inseparable whole. On, a personal note IBP, I can see you are painfully struggling with the doctrine of integration so I suggest you take some time review this link.

    ( link to uspto.gov )

  18. IBP: This claim in concise form

    101 Integration Expert: As has already been pointed out you are not allowed by law to so change a claim.

  19. Ned: “Did they invent the idea of rent, did they invent using the internet?”

    101 Integration Expert: No, and the inventors did not claim any such ideas. You can’t just make up anything you want Ned. You have to go by what the inventors actually claimed.

  20. MM: “A good analogy is to consider a packet to be like a letter: the header is like the envelope, and the data area is whatever the person puts inside the envelope.”

    101 Integration Expert: The problem with that is all technological inventions are analogous to nature. So to use your rationale would be to make all inventions un-patentable, since all inventions can be reduced to underlying principles of nature. That’s why the Supreme Court has exalted “integration” over dissection to prevent the evisceration of patent law by people like you with a social political agenda

  21. MM: Are you suggesting that the named inventors were the first people ever to transmit “message packets” over a communications network? That nobody had done so before the priority date of this application?

    101 Integration Expert: Since this is an issued patent I believe the PTO determined from it’s prior art search that the inventors “particular method” of transmitting message packets over a communications network had never been practiced or described before. However such a question is addressed under 102 and therefore has no relevance to the fact the inventors claimed an “integrated” technological process, and therefore have a claim that is statutory subject matter.

  22. Max: Is it, like, a “way” that is special in some way or will any way do?

    101 Integration Expert: “the way” means that in the concluding analysis the steps must be sufficient to narrow the scope of the claim so that others are not foreclosed from using the idea of the claim in different applications. And again, in the concluding analysis, “these steps” are identified as the specific steps that prevent the monopolization of the idea or concept itself. See Prometheus and the USPTO Official Guidance on Integration.

    Max: How do we distinguish those processes that “integrate” the underlying concept from those processes that fail to achieve that integration?

    101 Integration Expert: We don’t. In United States patent law the claims MUST be taken as an inseparable whole. So you do as I instructed and consider the application of the concept irregardless of the instrumentalities used. You do not not dissect, distinguish, or conclude separately the eligibility of the “underlying” concept for 101. Such would be the antithesis of “Integration”. To proceed as you propose would be to in effect “eviscerate” patent law and make all inventions unpatentable because as the Supreme Court said, “.. all inventions can be reduced to underlying principles of nature which, once known, make their implementation obvious.” This reasoning by the Court in Prometheus comes from directly from its precedent in Diehr . See [Footnote 12] “It is argued that the procedure of dissecting a claim into old and new elements is mandated by our decision in Flook, which noted that a mathematical algorithm must be assumed to be within the “prior art.” It is from this language that the petitioner premises his argument that, if everything other than the algorithm is determined to be old in the art, then the claim cannot recite statutory subject matter. The fallacy in this argument is that we did not hold in Flook that the mathematical algorithm could not be considered at all when making the § 101 determination. To accept the analysis proffered by the petitioner would, if carried to its extreme, make all inventions unpatentable, because all inventions can be reduced to underlying principles of nature which, once known, make their implementation obvious. The analysis suggested by the petitioner would also undermine our earlier decisions regarding the criteria to consider in determining the eligibility of a process for patent protection. See, e.g., Gottschalk v. Benson, supra; and Cochrane v. Deener, 94 U. S. 780 (1877). ]

    Max: If you chant something, endlessly repeating it like a mantra, you can convince yourself of anything. Till reality intervenes.

    101 Integration Expert: To mock the law before you even understand it is to show the folly of your own ignorance.

    Any further questions?

  23. And, before you respond, even if the remainder is not characterizable as field-of-use, as I already stated, “Everything other than that contained in the concise claim form above…contributes absolutely nothing to suggest substantiality of utility.”, which was not entirely correct.

    I should have stated that “Nothing in either the concise claim form above, nor in the original claim form stated, provides evidence for substantiality of utility.”

  24. anon: “You are not allowed to distill a claim down to its gist or “concise form.”"

    Yes you are, when what you are eliminating is field-of-use limitations (Flook).

  25. Ned your Saffran Decision is for me fascinating reading.

    Lourie reverses ED Texas claim construction, finding that the claim requires two things, A and B, and that as J&J lack both of them it doesn’t infringe.

    Moore says J&J does have A but not B.

    O’Malley says J&J does have B but not A.

    Until somebody disabuses me of my theory, I see this Decision as achieving two objectives i) getting to the right result (even without any agreement amongst the three how to get there) and ii) deliberately stirring the debate how properly to go about the task of construing the claims of a patent. As MM points out, at the CAFC:

    “We still don’t know how to construe patent claims”

    But Ned, I’m not sure why letting J&J off is the right result. Is the reality that Saffran’s claims are (on any reasonable view) invalid?

    Dennis will, I hope, soon run a thread on this fascinating Decision.

  26. Claim in its concise form

    LOL – expressly not allowed by law. You are not allowed to distill a claim down to its gist or “concise form.”

    Thanks.

    Law is really easy when you can make things up, huh?

  27. 101DE–

    Claim in its concise form: A method for signaling.

    Insubstantial utility. 101 fail.

    Everything other than that contained in the concise claim form above is fluff, and contributes absolutely nothing to suggest substantiality of utility.

    For everyone else, see how easy SS&C is under 101?

  28. 101DE–

    This claim in concise form: A method for signaling.

    Insubstantial utility. 101 fail.

    Everything recited other than that in the concise claim form is fluff, and contributes absolutely nothing to suggest substantiality of utility.

    To everyone else, see how easy 101-based SS&C is?

  29. [continued from previous 3:22 pm comment]

    A “message packet” itself is plainly ineligible for patenting because it’s an abstract description of a type of data. Even if that weren’t the case, the concept is ancient and the “application” of that concept to any kind of data transmitted using any kind of technology is likewise obvious: “A good analogy is to consider a packet to be like a letter: the header is like the envelope, and the data area is whatever the person puts inside the envelope.”

    Not rocket science. It’s basic, predictable stuff that high schoolers (or younger) can understand but the USPTO chooses to look the other way and pretend that it’s all new and shiny and that without claims granted on such “technology” nobody will bother to implement it.

  30. 101E: According to the claim the inventors invented: “A method for transmitting message packets over a communications network.”

    Are you suggesting that the named inventors were the first people ever to transmit “message packets” over a communications network? That nobody had done so before the priority date of this application? Let everybody know.

    Regardless, here is what we do know: a “message packet” is just transmitted data comprising two types of information: “control information and user data (also known as payload). The control information provides data the network needs to deliver the user data, for example: source and destination addresses, error detection codes like checksums, and sequencing information. Typically, control information is found in packet headers and trailers, with payload data in between.”

  31. Did they invent the idea of rent, did they invent using the internet?

    No better, they invented the idea of using the internet to rent things!!!!!!!!!!!

    I have seen the way to paradise… A way to make money with flimflam and a pretty paper called a patent!

  32. LB, everything in that claim is as old as the hills except its application to the internet.

    What must have been invented was some technology to implement what was claimed. But the claim has non of that technology.

    This “kind” of claim makes a mockery of the patent system.

  33. Thanks for that answer anon. While we are in conversation, and for the avoidance of any doubt on the matter, I should take this opportunity to report to you my absolute conviction, that the EPO is definitely not at all good at the Doctrine of Equivalents.

  34. Good morning anon. I have a question. The Decision. Is it possible to download it from somewhere? Can you give me a Link? Is this the sort of question you do answer? Would be grateful. Thanks.

  35. If you chant something, endlessly repeating it like a mantra, you can convince yourself of anything. Till reality intervenes.

    LOL – Anyone up for some EP is great at [fill in the blank] endlessly repeated mantra?

  36. 101 Expert writes:

    “…the overall process is patent eligible because of the way the steps of the process integrate the concept into the process as a whole. These steps transform the process into an inventive application of the concept.”

    which leaves me focussed on “the way” and “these steps”. Is it, like, a “way” that is special in some way or will any way do? Every process has “steps”. Every process claim recites “steps”. On this logic, does not every single claim that is directed to “A process…..” inevitably “transform” an ineligible abstract concept into a real live process? How do we distinguish those processes that “integrate” the underlying concept from those processes that fail to achieve that integration?

    If you chant something, endlessly repeating it like a mantra, you can convince yourself of anything. Till reality intervenes.

  37. Those last two contributions nicely illustrate why these threads are worth following. Ned gives me some tips on what to look out for in the Decision, and then Malcolm gives me a wry (but nevertheless hearty) laugh.

    Now, with appetite aroused, to that Decision.

  38. Is that the same reason you won’t perform Integration Analysis, even though you say you “would love to” ?

  39. MM Said to LB: “They invented the idea of sending multiple things to people? Or monitoring the progress of sending multiple things to people?”

    No, those are examples of ideas or concepts. One may not obtain a patent on an idea or concept but the “application” of an idea or concept may very well be worthy of patent protection, irregardless of the instrumentalities used.

    According to the claim the inventors invented: “A method for transmitting message packets over a communications network.”

    An “application” of a concept is not abstract, nor is there a manifestly evident Law of Nature, or Natural Phenomenon claimed, or present in the elements, therefore you can rule out any pre-emption of ineligible subject matter.

    What’s left is to apply the Courts “Integration Analysis” to the claims. See (Prometheus, Diehr, and the USPTO Official Guidance on Integration.) Using the doctrine of Integration the claims are considered as an inseparable whole, it being inappropriate to dissect claims into ineligible and eligible subject matter. ( See Diehr, and Prometheus relying on Diehr for integration.)

    Therefore in the concluding analysis, while the basic idea or concept of communicating is not eligible, the overall process is patent eligible because of the way the steps of the process integrate the concept into the process as a whole. These steps transform the process into an inventive application of the concept.” ( See Prometheus)

    Any questions?

  40. Dear District Courts,

    We still don’t know how to construe patent claims so we can’t tell you how to do it. Maybe we should defer to you. Or not?

    Best regards,

    The Court of Appeals for the Federal Circuit

  41. I expect Dennis is going to discuss this case eventually, but found it fascinating in that it generated three different opinions, with O’Malley “dissenting” from Lourie and Moore on whether a statement in prosecution was a “disclaimer,” and Moore, from Lourie and O’Malley, on whether the only example, a hydrolysable bond, was the “corresponding structure” of a means element, when the specification said any of a type of bonding structure was contemplated.

    On the disclaimer, the dissent said the only thing disclaimed was that which was necessary to distinguish the prior art, as a broader disclaimer would disclaim many examples described in the specification.

    On the corresponding structure, the generic references to other structure without examples seems insufficient.

    SAFFRAN v. JOHNSO N & J O H N S O N
    link to cafc.uscourts.gov

  42. Malcolm, I agree that the “kind” of data here is irrelevant.

    The claim seems to read on a broth … el, where “streams” are workers, and users are clients, except here, the kind of transaction claimed is a specific application of a well known principle.

    As you say, Malcolm, way to go P T O.

  43. ‘chum-bath’ stories like this

    Not sure what you mean. Seems to me that you’d love this rags-to-riches, self-made millionaire, lonely-guy-in-his-garage-slaving-away-for-years-invents-streaming-content, David-versus-Goliath battle.

    Okay, I made some of that up. Still, seems like something you’d love. What’s the problem exactly?

    Here’s Wikipedia on streaming audio/video:

    In the early 1920s George O. Squier was granted patents for a system for the transmission and distribution of signals over electrical lines[2] which was the technical basis for what later became muzak, a technology streaming continuous music to commercial customers without the use of radio.

    Attempts to display media on computers date back to the earliest days of computing in the mid-20th century. However, little progress was made for several decades, primarily due to the high cost and limited capabilities of computer hardware. From the late 1980s through the 1990s, consumer-grade personal computers became powerful enough to display various media. The primary technical issues related to streaming were:

    having enough CPU power and bus bandwidth to support the required data rates

    creating low-latency interrupt paths in the operating system to prevent buffer underrun.

    And apparently there was also a serious problem with “monitoring” who was receiving what that needed to be “solved”. And the awesome non-obvious solution to that problem is in the claim Dennis posted. Right? Uh-huh. Sure it is.

  44. Perhaps an academic out there is willing to do a study as to the high correlation between the frequency of posting such ‘chum-bath’ stories like this and the drubbing the little circle of echo-chamber anti-patents receive.

    C’est la vie.

  45. I would guess that there was little suspense about the first three steps, which leaves only the “monitor and accumulate” step. That step seems pretty broad already, since the accumulated record need only “indicate” certain times.

    Because prior to 1995 nobody ever accumulated information about when things were sent or received.

  46. The claim refers to two different times – those times are significant in the context of streamed audio and/or video, but not so significant in the context of bulk data transmissions.

    That would depend on the size of the files being transmitted. A 0.1 microsecond “beep” is “audio.” Turning on one pixel on a screen for 0.1 second is “video”. Transcripts of all Congressional Hearings 1800-1900 is text. The “significance” of the time it takes to transmit is not content-dependent. It’s dependent on the file size.

    All that said, the claim is absolute g-rb-ge. What’s the contribution of the inventors? They invented the idea of sending multiple things to people? Or monitoring the progress of sending multiple things to people? I’m not impressed. Looks like typical hand-wavey software j–k of the lowest order.

    Data is data. Long data, short data, video data, audio data, text data, copyrighted video data, copyrighted audio data, copyrighted text data, live action data, cartoon data, drama data, comedy data, real estate availability data, Granny’s favorite DVDs data, least interesting horse races in Florida broadcast over AM radio data …. it’s all just data. Any device that can transmit and receive data can transmit and receive data about anything. Period. There’s nothing patentable about coming up with new ineliglbe subject matter and sticking it into an otherwise old method. Not now. Not ever.

  47. I suspect that we’ll have an appeal in this case that will focus on the doctrine of equivalents.

    I suspect that you’re right. Off the top of my head, I would guess that there was little suspense about the first three steps, which leaves only the “monitor and accumulate” step. That step seems pretty broad already, since the accumulated record need only “indicate” certain times. It seems to me that there are a lot of ways that the records could “indicate” times.

  48. The claim refers to two different times – those times are significant in the context of streamed audio and/or video, but not so significant in the context of bulk data transmissions.

    For a change, these claims are reasonably well written.

  49. “When Netcast closed operations, Butterworth founded Two-Way Media as the new patent holder and still runs the company.”

    Dude’s gittin’ paid, yo!!!!!

    Great name, BTW.

    “…not mention the contingency fee arrangement between Two-Way and its attorneys at Susman Godfrey…”

    40% of $27.5M is? CHA-CHING!!!!!!

    Let’s hope these folks are gonna spread a little of that around and stimulate this economy!

    Hollah!

  50. Judge Garcia ordered AT&T’s attorneys to … not use any language that would denigrate the patent system.

    Wow. I guess the presumption of validity needs all the help it can get these days. ROTFLMAO.

  51. audio and/or visual information

    wherein at least one stream of packets comprises an audio and/or visual selection

    In the context of the broad claim reproduced in the original post, what possible patentable difference could it make whether it’s audio, visual, textual, or any other kind of information that’s being transmitted over the network?

    Also, what was the element that was not literally practiced by the alleged infringer?

  52. “Among the motions in limine granted before trial, Judge Garcia ordered AT&T’s attorneys to (1) not mention the contingency fee arrangement between Two-Way and its attorneys at Susman Godfrey and (2) not use any language that would denigrate the patent system. ”

    That is funny.

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