By Dennis Crouch
Apple v. Motorola (Fed. Cir. 2014)
Sitting by designation in the smart-device battle between Apple and Google’s proxy Motorola, famed 7th Circuit jurist Richard Posner offered the bold summary judgment conclusion that neither party had offered adequate proof of damages or ongoing harm to support injunctive relief. Here, each party had asserted infringement of three patents. However, without any remedy, the case became moot and Judge Posner dismissed the case with prejudice. The foundation for this decision was built when Judge Posner considered the lack of credibility of both sets of damages expert reports and excluded almost all of that testimony under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
On appeal, the Federal Circuit has – as expected – has reversed. The majority decision has several sections, but portions regarding damages are of most interest. First, the court provides a detailed analysis of damages expert analysis and finds a number of faults with Judge Posner’s exclusionary rules. However, the court goes on to hold that, even if the damages expert testimony were properly excluded, the proper calculation for damages on summary judgment is not zero.
Once a court has found that a patent is infringed and enforceable then it has a duty to award damages “in no event less than a reasonable royalty.” Here, the Federal Circuit appears to place the burden of identifying that minimum royalty on the fact finder:
Because no less than a reasonable royalty is required, the fact finder must determine what royalty is supported by the record. . . . If a patentee’s evidence fails to support its specific royalty estimate, the fact finder is still required to determine what royalty is supported by the record. . . . Indeed, if the record evidence does not fully support either party’s royalty estimate, the fact finder must still determine what constitutes a reasonable royalty from the record evidence. . . . Certainly, if the patentee’s proof is weak, the court is free to award a low, perhaps nominal, royalty, as long as that royalty is supported by the record.
Thus, a fact finder may award no damages only when the record supports a zero royalty award. For example, in a case completely lacking any evidence on which to base a damages award, the record may well support a zero royalty award. Also, a record could demonstrate that, at the time of infringement, the defendant considered the patent valueless and the patentee would have accepted no payment for the defendant’s infringement. Of course, it seems unlikely that a willing licensor and willing licensee would agree to a zero royalty payment in a hypothetical negotiation, where both infringement and validity are assumed.
The court goes on to note that it has been unable to find any case in history where the record properly supported an infringement award of zero.
The majority was penned by Judge Reyna and joined by Chief Judge Rader. However, these two Judges disagreed on one particular point – whether Motorola’s FRAND commitment for its patent removes all possibility of injunctive relief for unlicensed infringement. Judge Reyna says yes, Judge Rader says no – and that Apple’s bad behavior as an unwilling licensee should open the door for injunctive relief.
The majority opinion also vacated Judge Posner’s SJ determination that Apple was not entitled to an injunction seemingly because of a change in claim construction that now potentially creates a causal nexus between infringement and a market harm. Writing in dissent from that portion of the opinion, Judge Prost disagreed.
Random guy writes: “Here’s the actual state of the art: Someone who isn’t Apple invented a touchscreen. Apple took the mouse drag input (which is probably public domain) and replaced it in an obvious fashion with a finger swipe input (i.e. Apple invented nothing) then disclosed nothing about their obvious conversion, received a patent, and is now going around suing people who use completely different algorithms but want to use touchscreens. The end result is that you cannot use a touchscreen without infringing Apple’s independent, because every finger input is “based on the angle” in some fashion or other and its in the nature of the internet that things need to be scrolled. (I suppose you could just have button presses on the touchscreen, but in that case what you really have is a virtual keyboard, not a touchscreen)
I asked for a real patent and real claims, and I’m not sure what patent you are referring to. The latest Apple patent (and reportedly the broadest) for the swipe to unlock (if you have another patent in mind, you need to specifically identify it) is US Patent No. 8286103, and claim 1 reads as follows:
A method of unlocking a portable electronic device, the device including a touch-sensitive display, the method comprising: detecting a contact with the touch-sensitive display on an unlock image displayed at a first location on the touch-sensitive display, wherein the unlock image is a graphical, interactive user-interface object with which a user interacts in order to unlock the device; continuously moving the unlock image on the touch-sensitive display in accordance with movement of the detected contact while continuous contact with the touch-sensitive display is maintained; if moving the unlock image on the touch-sensitive display results in movement of the unlock image from the first location to an unlock region on the touch-sensitive display: unlocking the portable electronic device; and ceasing to display the unlock image; and if moving the unlock image on the touch-sensitive display does not result in movement of the unlock image from the first location to an unlock region on the touch-sensitive display: maintaining the device in a locked state; and maintaining display of the unlock image.
In going through the claim, I see plenty of ways somebody can get around this claim. It describes an “unlock image displayed at a first location.” No “unlock image” = no infringement.
Also, the claim recites “the unlock image is a graphical, interactive user-interface object with which a user interacts in order to unlock the device.” Include your “unlock image” but don’t require the user to interact with the unlock image itself.
Also, the claims recites “continuously moving the unlock image on the touch-sensitive display in accordance with movement of the detected contact.” If you have your unlock image you can get around it by not moving in accordance with movement of the detected contact. Alternatively, you can move it non-continuously. Alternatively, it is moved but not in accordance with movement of the detected contact.
BTW — I’m not particular fond of this language. I think it is sloppy claim drafting. Specifically, the claims recite “if moving the unlock image … results in movement” and “if moving the unlock image … does not result in movement.” I would argue that infringement requires that all the elements be present. I would also argue that “moving the unlock image” in both limitations refers to the same element. Thus, the moving the unlock image can either result in movement or not — but it cannot do both. Thus, the claim cannot be infringed.
Regardless, the point of this exercise is to show how a patent that some people think claims just a result (i.e., “slide to unlock”) actually claims far more than just the result.
Of course, if you want to point to another patent involving computer software (something issued in the last 10 years or so), I’ll perform the same exercise.
Good luck Oh no – all you have is yet another thirsty horse dying of htirst piling up in front of the trough.
OH No, I think you divert attention.
The patent at issue in this discussion is 7,479,949. Claim 1 is set forth in the opinion. In material part, it requires:
“a vertical screen scrolling heuristic for determining
that the one or more finger contacts correspond
to a one-dimensional vertical screen
scrolling command rather than a two-dimensional
screen translation command based on an angle of
initial movement of a finger contact with respect to
the touch screen display;
a two-dimensional screen translation heuristic for
determining that the one or more finger contacts
correspond to the two-dimensional screen translation
command rather than the one-dimensional
vertical screen scrolling command based on the
angle of initial movement of the finger contact with
respect to the touch screen display; and
a next item heuristic for determining that the one
or more finger contacts correspond to a command
to transition from displaying a respective item in
a set of items to displaying a next item in the set
of items.”
What these claims seem to claim are swipes, where the initial angle distinguishes between command 1 and command 2. The priority date is Sept. 6, 2006.
FIRST ACTION ALLOWANCE!
The patent is subject to 2 ex parte and, it appears, one inter parte reexamination, still pending.
This from the NIRC that was issued after a patent owner response:
“Patent Owner’s Response states that the prior art of Wakai does not specifically teach
“rather than a two-dimensional screen translation command based on an angle of initial movement of a finger contact with respect to the touch screen display;
a two-dimensional screen translation heuristic for determining that the one or more finger contacts correspond to the two-dimensional screen translation command rather than the one-dimensional vertical screen scrolling command based on the angle of the initial movement of the finger contact with respect to the touch screen;”
Claims were confirmed.
The angle of initial movement appears to be the PON.
Hot off the press: the Nautilus Oral Argument transcript:
link to supremecourt.gov
The money quotes, early on during questioning of the patentee:
JUSTICE KENNEDY: You would agree, I take it, that if, was it, “insolubly ambiguous” were the standard that the court used, that we should reverse?
MR. HARRIS: If there were no other context and only those words alone would be used, it seems that some district courts might misinterpret those words, as the Solicitor General has mentioned, but —
CHIEF JUSTICE ROBERTS: So it was fair, as I suggested earlier, nobody agrees with that formulation, right?
MR. HARRIS: Yes, I guess so, Your Honor.
And thus the Federal Circuit is slapped down again. Wave buh-bye to the awful, stillborn “insolubly ambiguous” standard for indefiniteness.
MM, but the Court was asking for a good alternative test and did not seem to get one.
Actually they were given one several times, but they didn’t seem to be following along for a long time. Granted it’s all a pretty abstract conversation and somewhat difficult for someone not familiar with the basic issue to just pick it up and be 100% on it immediately.
6, be so kind as to predict what the court will hold?
I put my prediction, which is pretty much just what all the justices seemed to like all throughout, in the other thread.
Though I don’t know, perhaps they’ll embrace the “two or more reasonable interpretations that differ substantially wreck the claim”. I don’t know if even I am comfy having that happen at the DC. At the PTO sure, but they seem to want the standard the same, which I applaud, but I also think the two or more reasonable interpretations is certainly approps for the PTO and inapprops for the DC.
The court extensively talked about Chevron and statutory construction. A lot of times there are a number of reasonable constructions and the courts choose one.
But is the issue that the claim can be construed? The court did ask that question. Is the amenability to construction the real issue or even relevant? One justice at one point suggested that claim construction should have little or nothing to do with the question of definiteness, perhaps suggesting that the issue should be resolved before the claim is construed.
Regarding the claims at issue, Scalia was extremely harsh on the patent owner — suggesting that the claim at issue did not even suggest adjusting spacing — just that there be spacing. The patent owner agreed that picking any spacing would not work.
Other justices pointed out that the specification provided no examples or methodology whereby one would know how to adjust spacing.
One wonders just how the court can come up with a decent test in this case where the specification is as much at fault as the claim.
Note: all parties seem to agree that the patent has to be definite on issue. Subsequent prosecution in reexaminations cannot provide a cure.
“ One justice at one point suggested that claim construction should have little or nothing to do with the question of definiteness, perhaps suggesting that the issue should be resolved before the claim is construed.”
How does one even get to definiteness without construction?
They’re saying that you should resolve whether there are two or more interpretations before formally adopting one or the other. In other words, you “get to definiteness” “during” construction. Or at least begin the inquiry.
An interpretation is a construction 6.
“An interpretation is a construction 6.”
I rather agree with you anon. Though I’ve heard lately that some people like to draw a distinction between the two. I’ll let some of those people lay out how their proposed distinction works out sometime since it doesn’t interest me.
“Wave buh-bye to the awful, stillborn “insolubly ambiguous” standard for indefiniteness.”
Took long enough.
RandomGuy: Here’s the actual state of the art: Someone who isn’t Apple invented a touchscreen. Apple took the mouse drag input (which is probably public domain) and replaced it in an obvious fashion with a finger swipe input (i.e. Apple invented nothing) then disclosed nothing about their obvious conversion, received a patent, and is now going around suing people who use completely different algorithms but want to use touchscreens. The end result is that you cannot use a touchscreen without infringing Apple’s independent, because every finger input is “based on the angle” in some fashion or other and its in the nature of the internet that things need to be scrolled. (I suppose you could just have button presses on the touchscreen, but in that case what you really have is a virtual keyboard, not a touchscreen)
Yup. It’s a straightforward analysis once you cut through the semantic b.s.
But this is how the computer-implementers love to patent their j*nk: take old stuff and give it a name. The new name = new function. The touchscreen recognizes touches — that’s why it exists. The computer accepts input from the touchscreen — that’s what computers do. Now the micromental “innovator” comes along and says “this touch means turn on” or “this touch means sleep” or “this touch means play Beethoven next time I lift up the txxlet set” and the PTO rolls over and pretends that some technological advance has been made. But there’s no progress in any useful art being promoted by that nonsense. It’s only progress in lining the pockets of patent lawyers and/or wealthy grifters who have the time and inclination to sit around and file claims on the infinite number of things that everybody already knows (and has known for many, many years) that computers can do in response to signals.
One would have to compare the claimed technology to the prior art. I wonder how Apple got a patent if the PON was not even claimed.
“ if the PON was not even claimed”
Isn’t part of your merry-go-round running that claims do not have to have a PON?
Isn’t that your ‘standard” run away answer to my asking you what the PON was in Diehr when it is simply inconvenient for you to give the real answer as to the PON being only a computer program?
anon, I think it is clear that Apple neither invented touch screens or swipes. What they patented here is, to me, quite unknown given the prior art.
I don’t think this is so much a definiteness claiming issue. The problem is lack of invention.
Thanks Ned – totally unresponsive to my post.
The oral argument in Nautilus is today. In the SCOTUS Blog, the poster noted the unprecedented number of patent cases being heard by the Supreme Court as follows:
“The number of patent cases already granted certiorari in a few short months is unheard of. In each instance, it is likely that Supreme Court will be reigning in the Federal Court of Appeals for the Federal Circuit (CAFC), and the mess it has made out of a good portion of the patent system.
CAFC’s expansion of what constitutes patentable subject matter under Section 101, and its weakening of requirements for definiteness under Section 112, have combined to create the swamp we are now in. A lot of the abusive litigation is a result of the fact that virtually any argument is plausible in a software or business method case. Software and business methods are difficult enough to deal with on their own. But CAFC’s hollowing out of definiteness standards have made a difficult task impossible.
In the present case, Nautilus won at the district court. That court granted summary judgement of patent invalidity for indefiniteness. On appeal, CAFC reversed. In it’s brief to the Supreme Court, Nautilus argues “The Federal Circuit… expressly tolerates ambiguous patent claims with multiple reasonable meanings, so long as courts can construe the claim to ‘inform skilled artisans of the bounds of the claim (quoting Star Scientific…).” “In other words, the Federal Circuit has shifted the public-notice function from the patent claim to a court’s construction of the claim.” Nautilus goes on to criticize CAFC’s position that ” a ‘claim is indefinite only when it is ‘not amenable to construction’ or ‘insolubly ambiguous.’ ”
In Alice v CLS and Nautilus v Biosig, SCOTUS could perhaps one last time, direct CAFC to drain the swamp. Should it subsequently fail to do so I am guessing some of the more extreme proposals, the one’s that question CAFC’s existence in present form, may well get looked at more seriously. We’ll be here to report on the case after it is argued in April and subsequently decided.”
I think this clearly indicates that the rest of the country has come to realize that the Federal Circuit’s jurisprudence has gone awry, and for the reasons identified in the post. The Federal Circuit struggles to expand patents into business methods and software uncabined by technology, and refuses to find anything wrong with indefinite and otherwise functional claims. The court has, as I have noted, now been perceived as the problem and not the solution.
Any more malfeasance, and congress will act.
“uncabined by technology”
still trying to import EP law into the US, Ned?
Scotublog also has an interesting article on the Akamai case:
link to scotusblog.com
It is interesting (and a little puzzling) the lack of coverage (lack? try none at all) of the Aereo case (which just held oral arguments) and the parallel to the logic put forth by Ronald Mann in his article.
In the Aereo case, an avenue of attack laid out was that Aereo was merely gaming the copyright law with a work around. The same can be said for Limelight (and the article’s author goes one step further and indicates that he does not see a statutory tie to the tradition of single actor claim writing. In truth, 35 USC 112 does not indicate that claims must be written in single actor form.
Given that one of the main points stressed in the AIA (by Lemley of all people) was that invention was more and more a ‘team activity’ creates the very real reading of 112(a)’s “any person” to use the permissible statutory construction of “any” as not limited to a singular actor.
Is it time that the old-fashioned notion of single actor patent infringer fade away…? What legal basis is there to so (artificially) constrain inventions to be only those that can be performed by single actors?
“What legal basis is there to so (artificially) constrain inventions”
I think the word you’re looking for here is “statutes”.
LOL – go ahead 6 and give it a shot – be more particular.
anon, I note the author share his total dumb-foundedness about BMC Resources, the case that announced doctrine, without citing any authority other than Lemley, that there was no direct infringement for multi-party cooperative actions:
“Having offered what I would like to think is a relatively objective background summary, this is the point where I should admit that I always have regarded the Federal Circuit’s doctrine in this area as bizarre. The doctrine first arose in a 2007 case called BMC Resources Inc. v. Paymentech LLP. Essentially, that case held that a payments processing patent can’t be infringed if no single party implements the entire method. That seemed crazy to me because the very premise of payments networks is to transfer funds rapidly and seamlessly among a web of interconnected parties, through countless distinct intermediaries. I would have thought it common, and indeed desirable, for inventors to pursue technological improvements that facilitated those network activities, and I would have expected that many of those patents described joint conduct. The Federal Circuit rule, as far as I could tell, seemed to say that patents of that nature would as a practical matter never be enforceable. How much sense can that make?”
He ends up opining that there is clear direct infringement in the case at bar, suggesting that the solution here would be to overrule BMC Resources.
Here! Here! What I have been saying for a very long time.
I thought that you would like the Mann article.
Nautilus argues “The Federal Circuit… expressly tolerates ambiguous patent claims with multiple reasonable meanings, so long as courts can construe the claim to ‘inform skilled artisans of the bounds of the claim (quoting Star Scientific…).” “In other words, the Federal Circuit has shifted the public-notice function from the patent claim to a court’s construction of the claim.”
Beautifully written. The whole ScotusBlog piece is well-done. Thanks for sharing, Ned.
<i<I think this clearly indicates that the rest of the country has come to realize that the Federal Circuit’s jurisprudence has gone awry, and for the reasons identified in the post. ….The court has, as I have noted, now been perceived as the problem and not the solution.
It’s not the sole source of the problem, of course. The bxttom-feeding patentees in the so-called biz and computer-implemented arts and their cheerleaders are a major part of the problem as well. Their behavior is also well-documented and understood by the “rest of the country.”
“ bxttom-feeding ”
So decrees the RQ/HD.
(yawn)
link to scotusblog.com
Nautilis oral argument transcript available.
The esteemed Sotomayor:
“Mmhmm.”
in re to “MR. HARRIS: The word when when it
says “whereby,” the whereby means the elements that came
before are going to produce that result.”
Lol.
You can almost see the incredulous face being put on after the Mhmmm.
“But what the whereby clause says, it it conveys a structure. ”
Should have said “mhmm” again. lol.
“Why didn’t the patent provide more specificity as to the exact spacing?
MR. HARRIS: Because like Eibel Process and like Mineral Separation, it wasn’t possible. It depended on too many variables. ”
Riiiiight, they could have just given at least an example.
“If there are two constructions, each of which has survived the Markman claim construction process, and each one of them does the things that Markman says the correct construction needs to do, which is that it fully comports with the instrument as a whole and it preserves the patent’s internal coherence, then yes, we would agree in that case it’s indefinite.”
^That’s what anon likes to call an “admission against interests” and apparently throws the whole case lol.
“In Alice v CLS and Nautilus v Biosig, SCOTUS could perhaps one last time, direct CAFC to drain the swamp. Should it subsequently fail to do so I am guessing some of the more extreme proposals, the one’s that question CAFC’s existence in present form, may well get looked at more seriously. We’ll be here to report on the case after it is argued in April and subsequently decided.”
Mhmm. I’m glad other, more general, outlets are writing about such. And that’s what happens when courts get all uppity for decades, refuse to apply the law as written and make up their own nonsense to supplant it and implement their own policies. Not to mention dragging the PTO along with it. Gj CAFC.
You are doing that not-understanding thing again 6.
“The court has, as I have noted, now been perceived as the problem and not the solution.”
I for one am glad to have been a part of pointing that out from the beginning.
Once more, Ned, you’ve got it 180 degrees wrong. The primary blame for this mess properly lies at the door step of Our (“won’t obey the patents statutes”) Judicial Mount Olympus, not the Federal Circuit. And anon is correct that respect for SCOTUS is at an all time low, and correctly so.
EG, and the Federal Circuit is more respected by the patent bar and is better situated to decide, in consultation with the patent bar, of course, what is the best patent policy so that the profession prospers?
EG, your logic is impeccable.
Ned,
You ignore the Constitution repeatedly.
You further paint the patent bar as de facto corrupt. No doubt, this is because of your long-standing agenda against Judge Rich and the 1952 Act which removed power from the courts.
I understand why you feel that way.
I do not understand why you think that the bias in your posts escapes critical notice and how that bias so tremendously harms your credibility.
Ned,
May be the Federal Circuit is more respected by the patent bar because it tries (not perfectly in all cases) to construe the patent statutes as they read (and as Congress asked them to do), rather than as does Our Judicial Mount Olympus which sticks their fingers in their ears and listens only to their own uninformed and nonsensical reasoning.
EG, “May be the Federal Circuit is more respected by the patent bar because it tries (not perfectly in all cases) to construe the patent statutes as they read…”
?
The WAY the Federal Circuit interprets the statutes is often to read them out of the law. The court was reversed today on 285. Tomorrow it will be reversed on 112(b). The day after it will be reversed on 271(a) and (b). And, just how many times in recent history has it been reversed on 101?
The Federal Circuit seems to go out of its way to ignore the statutes or interpret them in ways that are untenable.
Why the court does this is uncertain, but clearly they are not faithfully following the statutes, but are doing their own thing.
Once again, Ned – you view the world through the prism of your own agendas.
Your lack of ability to separate those agendas from the law and view the law in any type of objective measure is your greatest obstacle.
“And, just how many times in recent history has it been reversed on 101?”
LOL – you tell me. Or better yet, just ask Alice.
(you further assume that the Court itself is ‘faithfully’ following the statutes when such is NOT on the record)
Considering the “source” of this reversal, what you say doesn’t persuade me one whit, Ned, that the Federal Circuit doesn’t read the patent statutes, just interprets them differently. Now tell me where does 35 USC 103 say that “common sense” is part of the criteria for obviousness (i.e., as in KSR International)? Or where do those so-called “exceptions” to patent-eligible subject matter appear in 35 USC 101? Now tell me again who is “making up the law”?
How deep does the rabbit hole of “implicit” run?
Worth posting as its own sub thread number, Malcolm has (once again) been caught in one of his deceptions.
Malcolm at post 3.1.1.1 feigns ignorance over his own hypocrisy and too-clever-by-half states “Nobody is arguing that using functional language in claims is fatal per se. But you keep pretending that’s the case. And we all know why.”
Malcolm,
Point blank, where in your “objective physical terms” does any sense of functional language lay?
See your own post 15.2.2.2 at link to patentlyo.com
Given that you yourself argued that “objective physical terms” is THE answer (and seeing as you have given no other answer, it appears to be your only answer and thus implicitly, at least, you are arguing that using functional language in claims (outside of 112(f) – to eliminate your weasel room) is fatal per se.
Or are you pretending that it is ONLY in 112(f) that functional language in claims is allowed?
If that is so, then please provide EITHER a holding or a citation to back up that proposition (and note that I have already provided the Orthokinetics case for the opposite proposition).
Eagerly awaiting a substantive and intellectually honest answer devoid of any of the typical short script banality that seems to have come to be synonymous with “MM”….
You will not answer directly and honestly and yes, we DO all know why.
And interestingly enough, Random Examiner has just joined the “nobody” group by posting that all software-related functional claims be mandated to be examined under 112(f).
LOL – nobody indeed.
Random Examiner has just joined the “nobody” group by posting that all software-related functional claims be mandated to be examined under 112(f).
Learn to read English, TB. Or learn to stop lying. Your choice.
I wrote that “nobody is arguing that using functional language in claims is fatal per se.” Random Examiner is not arguing that “functional language in claims is fatal per se.”
How can functional language in claims be fatal per se when 112(f) plainly allows functional language to be used (with certain important caveats)?
This isn’t a difficult distinction to make. But you keep failing to make it and attacking strawmen. You look like a complete idi0t when you do that. Maybe you should consider some other tactic.
Point blank, where in your “objective physical terms” does any sense of functional language lay?
Point blank: learn to write in English and you’ll have better luck getting people to answer your questions.
Given that you yourself argued that “objective physical terms” is THE answer … is fatal per se.
Again: learn to write in English. This is gibberish.
are you pretending that it is ONLY in 112(f) that functional language in claims is allowed?
Functional language that isn’t tied to a readily ascertainable objective physical structure is certainly “allowed” in composition/article/manufacture claims. But the proper application of the law to such claims will result in those claims being invalidated to the extent that the functional language is/was relied on for patentability. That’s because you can’t protect new “functionality” with patent claims. You can certainly protect new compositions/articles/manufactures with new functionalities, but the new structures responsible for those new functionalities must be disclosed in the specification or (if you choose not to rely on 112(f)) they must be readily ascertainable by the skilled artisan upon recitation of the “functional” language.
please provide EITHER a holding or a citation
I’ll do better than that. I’ll provide you with a statute called 35 USC 101 that does not list “new functionality” as eligible subject matter. The rest of my argument is just the application of basic logic. As in Prometheus v. Mayo where the recitation of old conventional subject matter is insufficient to rescue an abstraction (e.g., a “new thought”) from ineligibility, the recitation of an old machine component and nothing more is insufficient to rescue a new “functionality” from ineligibility. If you want more cases, just consult the reams of case law out there applicants attempted to claim new functionality without any tie to new ascertainable physical structure and were denied. Or see Abbott v. Sandoz where similar issues arose from the attempt to claim new compositions by their method of manufacture.
Proponents of computer-implemented jxnk such as yourself seek to warp the fundamentals of patent law around your jxnk. The rest of us (the overwhelming majority of people) would like to see those fundamentals respected. The time for coddling of the softie wofties is long past. That’s why your house of cards is continually being shaken from the foundation, and eventually it will collapse simply because the patent system can not bear the weight of all the ad hoc b.s. loaded onto it.
If functional claiming without any tie to ascertainable objective structure was a necessary or important part of patent law, as you appear to believe, there would be zero need for 112(f). People would just claim the desired functions of their imaginary machines and let other people figure out how to make them (after taking a license of course). That’s never been the way our patent system has worked until very very recently, and it only started working that way because some patent fluffing judges (Rich and Rader) made up some ridiculous b.s. to please their friends and stroke their own gigantic egos.
ROTFLMAO
Fed Cir: “Structure” to a person of ordinary skill in the art of computer-implemented inventions may differ from more traditional, mechanical structure. For example, looking for traditional “physical structure” in a computer software claim is fruitless because software does not contain physical structures.
So much for the usual patent teabagger b.s. re “software is structure.”
Indeed, the typical physical structure that implements software, a computer, cannot be relied upon to provide sufficiently definite structure for a software claim lacking “means.”
Indeed. So let’s watch the Federal Circuit reach deep inside their own butth0les and pull out the magical rabbit to coddle their beloved softie woftie babychildren:
Rather, to one of skill in the art, the “structure” of computer software is understood through, for example, an outline of an algorithm, a
flowchart, or a specific set of instructions or rules.
Why is the term “structure” in quotes? Oh right: because there is no structure. This is just One Big Fxcking Lie. At best, software has “structure” like an argument or a sentence has “structure.” That’s not the structure contemplated by the patent statutes. On the contrary, the “structure” being referred to by the Federal Circuit is a quintessential example of an abstraction.
Requiring traditional physical structure in software limitations lacking
the term means would result in all of these limitations being construed as means-plus-function limitations and subsequently being found indefinite.
So what?
After this, the majority simply drops the quotation marks from “structure” and pretends that they are referring to an actual physical structure. What a disengenuous pack of clowns. How low will they sink? Check this out:
The specification also discusses the structure behind translating “content within a frame rather than translating the entire page that includes the frame.” Id. at col. 123, ll. 6-8. For performing this function, the specification describes an “M-finger translation gesture 4214,” where M is a number different from the number of fingers used to translate the entire page.
So now a “gesture” is a structure? Lies upon lies. How do these people sleep at night?
The empty wagon that is Malcolm clatters on…
MM says: “Why is the term “structure” in quotes?”
Because some compare a mechanical thing to an electronic thing. The concept of “structure” came from mechanical engineering and patents such as those from Halliburton and GE. In the mechanical arts the requirement for structure makes abundant sense because, to give an example, one may have invented a blanket but cannot claim the “function” of the blanket and claim “a device to keep me warm”, which is excessively broad and would encompass an electric heater, which the inventor could not have under any imaginable theory invented. The disallowed claims in Halliburton and GE were of this type.
So much for mechanical engineers. They are comfortable with moving parts, and therefore anywhere they do not see moving they do not call a “machine.” Unfortunately for them, when electronics/computer science came about the terminology remained the same–we call a computer a “machine” and we call an arrangement of chips “architecture,” and organization on data “structure”–which completely throws off the mechanical engineer. How in the world can you call an algorithm a “structure,” he argues. It is, to the extent the word means arrangement of steps of how you can program a processor to do some things, and after such programming, the processor becomes, magically, a “new machine” doing new things.
The argument against “functional” claiming does not apply to computer science and software because, all that you do in computers is “functions.” A programmer of software only programs “functions” which are called variously as “modules” in the PASCAL language, “methods” in C++/Java languages, and simply “functions” in FORTRAN (you are likely to remember this Mr. MM) and C programming language. If all that is done and invented is the “function” of how a processor is programmed, arguing that “functional” claiming is bad requires some serious examination of knowledge or motives. I do not think MM has bad motive; he appears to be too much engrossed in mechanical patents and is therefore uncomfortable with software patents.
Lemley’s opposition to “functional claiming”, however, is predicated in bad faith. He is a troll for the corporate infringers. He deliberately applies inapplicable concepts from mechanical engineering to computer science to help destroy software patents altogether because that is what his clients would like to see.
Someone predicted in this blog that Alice/CLS case would result in significant narrowing of software patents. I cannot disagree more. The case will be as significant as State Street Bank in expanding software patents. The Supreme Court will uphold that software is patentable, full stop.
This is funny stuff:
So much for mechanical engineers. They are comfortable with moving parts, and therefore anywhere they do not see moving they do not call a “machine.” Unfortunately for them, when electronics/computer science came about the terminology remained the same–we call a computer a “machine”
Uh … last time I checked, computers are machines. Nobody is arguing that computers aren’t machines. People are arguing that programmable computers don’t become new machines for patent law purposes merely because they are programmed. But nobody is arguing that computers aren’t machines.
we call an arrangement of chips “architecture,”
That’s nice. Nobody has a problem with that.
[we call] organization of data “structure”–which completely throws off the mechanical engineer.
No, it doesn’t “throw off” anybody. In fact, everybody understands that the “structure” of data is an abstraction, just like the “structure” of an argument or “sentence structure.” Periods and commas have functions. But they don’t have any physical structure, at least not as far as patent law is concerned. The Federal Circuit recently acknowleged as much when it recognized that software has no structure.
How in the world can you call an algorithm a “structure,” he argues. It is, to the extent the word means arrangement of steps
Again, you can play all kinds of semantic games once you head down this road. And those games present problems for patent law because once you permit fundamental concepts such as structures and methods to become blurred the the system breaks down into gibberish and gobbledygook and becomes a playground for lawyers to protect all kinds of plainly ineligible subject matter with patent claims, e.g., ineligible subject matter like information and “new functionality”.
The argument against “functional” claiming does not apply to computer science and software because, all that you do in computers is “functions.”
Or the real problem is that the patent system is the wrong way to promote progress in information processing functionality. Note that I’m not suggesting that new computing machines or components thereof, properly described by the recitation of new structure, can be be patented and protected just as any other new machine is patented and protected.
If all that is done and invented is the “function” of how a processor is programmed, arguing that “functional” claiming is bad requires some serious examination of knowledge or motives.
Huh?
Lemley’s opposition to “functional claiming”, however, is predicated in bad faith. He is a troll for the corporate infringers.
LOL! Sorry, but the only response to this kind of nonsense is to laugh. You guys should really start bringing this silliness up in your legal briefs and in oral arguments and see how wonderfully it works in front of judges who are trained to smell fear and desperation a mile away.
The case will be as significant as State Street Bank in expanding software patents.
You are certainly wrong about that, but you are entitled to your opinion. Too bad you don’t have the guts to post with a name that we’ll recognize later when you show up to complain about the case.
“Nobody is arguing that computers aren’t machines. People are arguing that programmable computers don’t become new machines for patent law purposes merely because they are programmed.”
Is that why you run away, er um “argue” and never seem to be able to explain just how is it that ‘oldbox’ can – if NOT changed – somehow ‘magically’ be able to do something that it could not do before?
My, that is very Morse of you.
I have two old, conventional meat grinders. I put my “innovative” “structure” of combined chunks of lamb, emu, and ostrich meat, which we can call, for convenience, “Lame-o”. I leave the other meat grinder empty.
I turn the cranks on both meat grinders. The loaded meat grinder obviously demonstrates the new capability of creating finely ground Lame-O, an unquestionable improvement over the other machine which has not been loaded with anything. Therefore, I have invented a new machine, a ground Lame-O production device.
Is it really that difficult to see how ridiculous this claim is, and how it relates to a comparison between a load/non-loaded pair of computers?
— Dobu
Opinions are not [necessarily] facts.
Dobu – you need to brush up on a little thing called law to see why your hypothetical is an instant FAIL.
But then again, you are apt to call anything an opinion – even what is or is not law. In that regards you share the vapidness that is 6 and his view of law as something subjective totally in the mind and make up anything and it goes.
When you want to return to this reality and discuss law and facts, let me know.
Anon,
When the CAFC and USSC are unable to agree on what the “facts” and the “law” are, I guess a computer expert trying to understand how the software landmine factory that is the PTO ended up in its current, horrifically broken situation, and what is being proposed or done to fix it, will forever be reaching beyond his grasp.
How fortunate we (me and your compadre you keep mentioning to me, 6) are to have your comments to let us know the vapidness of our musings.
“Or the real problem is that the patent system is the wrong way to promote progress in information processing functionality”
LOL – Because Malcolm the RQ/HD has so decreed !
“Again, you can play all kinds of semantic games”
Translation: Waaaahhh Malcolm’s semantic games are no longer the best games in town.
“So much for mechanical engineers.”
Ahh, so it’s all a big ol conspiracy against people in certain arts then eh? Yeah I wonder how that’s going to work out now that it has been made a little more clear.
You do not seem to care or understand what he is trying to tell you 6.
You know the way to think about this —if we want to understand it and not get a political agenda through– is to take real world examples.
Here we have one. Prost is saying to limit heuristic to those disclosed embodiments. The patent drafter must have known that there were 1000’s of other ways to perform the heuristic known in the art. The patent drafter under Prost proposed rule would have to include all of those 1000’s of ways. There are whole conferences in academia on this type of heuristic algorithm.
Is that the result we want? That you have to disclose all known ways or things for each element of a claim or you are limited to only what you disclose? That is an absurd result.
The novelty lies in the combination of steps.
I just cannot believe that intelligent people could propose that Prost’s rule is anyway reasonable and in anyway a deliberate attempt to burn the patent system down.
And, it is against fundamental principles of patent law. The specification is supposed to be what is new. Scope of enablement is supposed to be the rule. LizardTech.
Gee, now let’s argue about creationism.
“I just cannot believe that intelligent people could propose that Prost’s rule is anyway reasonable and in anyway a deliberate attempt to burn the patent system down.”
Difficulty of description of structure is not justification for using functional language – Wabash.
Lizardtech does not say scope of enablement is the rule. In fact, Lizardtech invalidated a claim based upon a lack of description without an enablement finding. Seriously, you need to read it again cause that’s a horrible takeaway from that case.
That being said, Wabash also invalidated a claim and that was when they expressly assumed that enablement was met.
The (un)intended consequences of decisions like KSR and the well-known fact that an applicant need not include every detail of what a person having ordinary skill in the art to which the invention pertains may know…
Everything from how software is equivalent to firmware and is equivalent to hardware to the fact that a computer is designed to be changed (and that future state of change is perfectly capable of being an invention in its own right) must be accepted as baseline.
When you add a machine component, a manufacture known as software, to ‘oldbox,’ you must accept that ‘oldbox’ has changed. The fact that ‘oldbox’ was built to be changed does not make those changes inherent in ‘oldbox.’
This is why the analogy of my big box of electrons, protons and neutrons in the Star Trek replicator – using the attempted logic here – would destroy EVERY future invention in the entire catogories of machines and manufactures.
link to texaslynn.files.wordpress.com
To blindly accept that ‘oldbox’ magically has all of these future inventions inherently present is to embrace the fallacy of the House/Morse contradiction. Morse says that you cannot have “all of that” when “that” is not there and House wants to say that “all of that” is somehow magically already there.
This fallacy is easily seen as not a single anti-software proponent has been able to explain this contradiction away. Not Malcolm, Not Random Examiner, Not Owen, Not Ned, Not 6, Not any of them. At “best,” you have the dissembling that “use” includes the vary acts of later inventors, seeking to deny those inventors their improvements. Of course, the immediate realization of how inane this proposition is does not stop the proposition from being advanced time and again (without taking into account the counterpoints raised to defeat the proposition in the first instance).
“Everything from how software is equivalent to firmware and is equivalent to hardware to the fact that a computer is designed to be changed (and that future state of change is perfectly capable of being an invention in its own right) must be accepted as baseline.”
Is it your argument that one of ordinary skill in computer programming is enabled to create a hardware-only version of their software?
“ in computer programming ‘
Why the limitation?
There are whole conferences in academia on this type of heuristic algorithm.
So what?
you are limited to only what you disclose? That is an absurd result.
There’s nothing absurd about that result. It happens all the time in the grown-up arts.
It’s 2014. Digital computers are old. We all know that they can process any kind of information they are programmed to process. When are the softie wofties going to stop crying and grow up?
“ in the grown-up arts.”
Sort of like effective amounts and dimensioned to….
/face palm
“s going to stop crying and grow up?”
KA-BLOOEY !