by Dennis Crouch
In re Imes (Fed. Cir. 2015)
The Federal Circuit has again rejected USPTO’s broadest reasonable claim construction as unduly broad. The Federal Circuit here maintains the BRI standard, but suggests that more emphasis should be placed on the ‘reasonable’ prong and less on ‘broadest.’
More formal claim construction is becoming a common aspect of ordinary patent prosecution. However, rather than applying the “correct” claim construction that would be applied to an issued patent, the USPTO examiners are tasked with construing pending patent claims according to their Broadest Reasonable Interpretation (BRI). By design, BRI is intended to be broader than the interpretation given by a court. The purpose of this approach is to offer an additional buffer zone between the prior art and the issued patent and to give the USPTO stronger tools to ensure that claims are not ambiguously written.
In the present case, Imes is attempting to patent a device for certain types of wireless communication and the applied-for claim includes a “wireless communication module.” Imes argues that that term should be construed as a module that communicates without wires using electromagnetic waves. The claim construction debate over that term stems from the USPTO’s position that the broadest reasonable construction of “wireless communication” includes communication with wires. In particular, the PTO argued that “wireless communication” between two devices could be accomplished with a removable flash-drive — i.e., by saving information from a first computer on a flash drive then physically moving the flash drive to the second computer. Boom!
Siding with Imes, the Federal Circuit writes:
The Patent Office’s construction of “wireless” to include communications along metal contacts of the removable memory card and the computer system is inconsistent with the broadest reasonable interpretation in view of the specification. The construction of “wireless” is straightforward. The ’423 application expressly and unambiguously defines wireless: “[w]ireless refers to a communications, monitoring, or control system[] in which electromagnetic or acoustic waves carry a signal through atmospheric space rather than along a wire.” ’423 application. The ’423 application consistently uses the term “wireless” to refer to methods and devices that carry waves through atmospheric space, such as Bluetooth and various cellular protocols. The metal contacts of a removable memory card do not carry a signal through atmospheric space using electromagnetic or acoustic waves, and thus removable memory card 35 is not a wireless communication module under the broadest reasonable interpretation of that term in view of the specification.
USPTO Solicitor had identified the error in the PTAB ruling and attempted to shift the argument on appeal. However, the Federal Circuit refused to hear the new theory as not properly on appeal.
= = = = = =
Imes’ pending application also requires streaming video. In its rejection of the claims, the USPTO concluded that one of the references taught streaming video by teaching the ability to send a series of emails that each include an image attachment. The USPTO determination here looks like a factual conclusion regarding the scope-and-content-of-the-prior-art — the type of determination that is generally given substantial deference on appeal. On appeal, the Federal Circuit gave that deference, but found the conclusion still unreasonable:
Sending a series of e-mails with attached still images is not the same as streaming video. Such a construction is unreasonable as it comports with neither the plain meaning of the term nor the specification. Streaming video is the continuous transmission of video. A series of e-mails with attachments does not meet the definition of “streaming” and still images do not meet the definition of “video.”
On remand, the USPTO’s solution will likely be to search for better prior art.
[…] inspiration for this blog comes from the informative Patently-O, which recently carried a post regarding the subject of “broadest reasonable interpretation” of claims in patents in the […]
Second test by “MaxThree”
A test. Why are postings by MaxDrei not getting through?
The quality of examination in the PTO is currently abysmal.
Just another example of an attorney wasting his client’s money challenging something that, while technically an error, could never be a valid basis for an allowance. I’m sure the client will be just thrilled to have spent so much time and money challenging a holding only to have one of a literal millions of references cited to clean it up.
What does it say about the quality of the PTO’s work product if, when able to choose from over “a literal millions” of applicable references, they choose *none of them* and instead erroneously argue that a term of art means something it doesn’t?
It speaks poorly of it. I’m not condoning what the examiner did. I would have taken official notice that wireless communication existed, though not everyone’s SPEs would let them do that. I can 100% tell you why it happened: There was either a 102 rejection or a lot of 103 rejections and the examiner didn’t want to take the extra half hour to do secretarial work of changing all of his headers and adding in the motivation over such pointless thing. Then the applicant went and made a point of it, which is fine, but somewhat expensive for my tastes.
If everyone knows what the guy meant, and everyone knows the guy didn’t invent it, it seems to me the more ridiculous position is the one who spends a lot of time and effort over it. Two wrongs don’t make a right here.
“I’m not condoning”
Actually, in a very real sense that is exactly what you are doing.
By making and excuse and playing the “blame the applicant’s attorney for wasting money” line of B$, you are skirting what the real issue is here: poor examination.
This is just another symptom of a rampant problem. That you refuse to see this AS a problem is in fact PART of the problem.
“Actually, in a very real sense that is exactly what you are doing.”
I will agree with you there.
“By making and excuse and playing the “blame the applicant’s attorney for wasting money” line of B$, you are skirting what the real issue is here: poor examination.”
I will disagree with you there. “poor examination” is a symptom, not the disease. The disease is fundamentally people not wanting to pay, in either time or money, for examination and the people in charge not wanting them to pay for examination. You could also toss in lack of management into that disease.
Your ability to prognosticate diseases and symptoms – or rather, your inability to do so, is well displayed here.
Ridiculing someone for spending time and money chasing after a patent he didn’t invent is fine, that’s your prerogative, but frankly it’s also his prerogative to spend his money on that in the first place. People can spend their money however they want — on appeals for rejections on sketchy patents, on sound-activated dancing Santa dolls, or on life-sized Yeti sculptures (but not for much longer). To each his own.
I think it’s a bigger issue that the quality of examination has gotten so bad that something like this even comes out of the PTO and needs to get sent up in front of a judge to get it right. That cost doesn’t come out of the filer’s pocket, it comes out of yours and mine, and it’s a failure in regulation if we’re just talking about an examiner being too lazy to write a good rejection.
I’m glad that you’re not suggesting, as MM did, that the PTO was right. I agree that two wrongs don’t make a right, but that doesn’t absolve the PTO from doing its job properly in the first place. To suggest otherwise is like suggesting it’s okay that the Patriots deflated footballs because they were going to beat the Colts anyway.
“if we’re just talking about an examiner being too lazy to write a good rejection.”
He didn’t say lazy. He said he didn’t want to take the time. There’s a very large difference.
Because not wanting to take the time to do the job right the first time is SOOOO much better, right?
/face palm
it’s backed by rational reasoning anon
Wrong 6.
Just because you can make an excuse that seems to justify behavior from your own selfish vantage point does NOT mean that such behavior is backed by “rational reasoning.”
To reach that level, one must look at both the pros and cons of the reasoning, must look at both the benefits and the drawbacks, must look at the reasoning as a whole – not just the one-sided “gee, it’s easier for me if I do this” rationing (that is called deluded self-justification).
Slotguy: I’m glad that you’re not suggesting, as MM did, that the PTO was right.
I don’t recall suggesting that the PTO was right here. I’m not sure how you arrived at that conclusion. On the contrary, I recognized that the PTO has made mistakes and will continue to make mistakes when applying BRI. That’s because (wait for it): human beings.
I also recognized that the number of mistaken rejections made by the PTO is dwarfed by the number of correct rejections made by applicants who should know better (and surely do know better in most instances) and the number of missed rejections that favor applicants (at least those applicants who are looking for some broad, invalid claims to wave around to “investors” and would-be licensors).
“I don’t recall suggesting”
Time for that spin spin spin game…
“number of correct rejections made by applicants who should know better”
Huh?
Since when are applicants in the business of making rejections?
You do know whose job it is I examine, right? Do you need a refresher on the Tafas case?
“number of correct rejections made by applicants who should know better”
Huh?
Should be “number of correct rejections of mistakenly filed or drafted claims made by applicants who should know better”.
Time for that spin spin spin game…
No idea what you’re talking about. But go ahead and pretend that I said something that I never said. You impress everyone when you do that.
you are on record as not believing that honesty here on the blog is required,
I’m on record as observing that you’re commenting here and, if honesty was “required”, that couldn’t be happening.
In any event, please keep digging! It’s super fun to watch.
Your “keep digging” exhortations – while it is you grasping the shovel – are legendary.
@tta b0y.
I think it’s a bigger issue that the quality of examination has gotten so bad that something like this even comes out of the PTO and needs to get sent up in front of a judge to get it right.
See here is where you and I differ. While I agree it was a poor examination job and the examiner did fail in their job, the “failure” in the system was not of the examiner’s making. I don’t see this as indicative of a poor quality of examination (though that is fact here), I see this as poor procedures that allow such a large amount of everyone’s time to be taken up because an applicant has money.
You’re not reading about this case because the examiner made a mistake, you’re reading about this case because the examiner made a mistake and the procedures of the office allowed the applicant to argue an ancillary issue as if it were material.
Here would be a very simple way to solve the issue: Allow the examiner to add, without causing a second non-final, an enablement/WD rejection to any claim limitation applicant argues the references do not teach. The Applicant knows he didn’t invent wireless communication, and you can tell he didn’t because he made no effort to convey its enablement. That would force the applicant to only argue about things he arguably, you know, invented, and consequently you would not have taken up the board’s, the attorneys’, or the court’s time when the examiner fails.
You are most definitely missing the point here.
Not only was the mistake made, the mistake was pursued by the Office up until that level, and this was NOT a case that the applicant had money so the applicant could “take it there” as much as it was a case that the applicant was forced to spend the money unnecessarily along all those steps.
You keep on ig noring the fact that you ARE defending a mistake as somehow not a mistake and missing the point that it was defending the mistake that was ALSO a mistake.
Wake up.
Not only was the mistake made, the mistake was pursued by the Office up until that level,
The original mistake was the examiner’s. Once an argument erupted about it the mistake became both sides’, because if the applicant got what he wanted (a finding that the record does not support a conclusion that the art could perform wireless communication prior to his filing) his claim would STILL be rejectable under 112, 1st, because I’m certain he didn’t enable wireless communication in his spec. And in fact he makes it worse, because if he just comments on the issue and leaves it he could argue the issue in post-allowance proceedings. If the examiner were to make a 112 rejection he would have to prove the art could do it himself to defeat the rejection, which would be an admission against him if it came up later. It was wrong for the office to pursue it because the 103 rejection was wrong, and it was wrong for the applicant to pursue it because he knew he didn’t invent wireless communication.
This isn’t a contest for the applicant – there’s no trophy for winning an argument just to win it. The applicant wants a patent, he should probably confine his argument to those material to getting him there.
and this was NOT a case that the applicant had money so the applicant could “take it there” as much as it was a case that the applicant was forced to spend the money unnecessarily along all those steps.
Its never necessary for an applicant to perform a step that won’t lead toward an allowance. Nobody forced him to raise the issue.
that you ARE defending a mistake as somehow not a mistake and missing the point that it was defending the mistake that was ALSO a mistake.
^Just the opposite. There’s more than one person making a mistake here, and you’re the one defending it as a valid act. This goes into the general lawyering knowledge you seem to lack – but there is a difference between arguing liability and arguing remedy. I’m not defending the examiner – I find the examiner is liable, I just suggest a de minimus remedy is the best result for all involved. You don’t even recognize the applicant is also liable.
“the mistake became both sides’”
Absolutely and irrevocably wrong.
Full stop.
It is simply a matter of kicking dust to hide the wrongness of trying to defend a known error by saying “well, there was something else wrong.”
You just don’t get to go there. And by your constant insistence, you continue to show that you just don’t understand the issue – that you are part of the problem of bad examination because you don’t see why the issue is SOLELY the onus of the examiner, trying as you are to kick dust and play the “blame the applicant” game.
You should note that NO ONE is saying that the applicant is going to have a patent for inventing wireless communication. NO ONE. Stop with the misdirections already.
Stop kicking dust.
“his claim would STILL be rejectable under 112, 1st, because I’m certain he didn’t enable wireless communication in his spec.”
omg
/facepalm.
omg
/facepalm.
What’s the matter 6? Are you about to show your lack of legal knowledge?
Far too many people in this thread are hung up on the alleged crappiness of the applicant’s patent, and far too few on the abysmal examining practice followed by the PTO. Here’s the real issue: the PTO examiner and the applicant are not on equal footing. They are not equivalent parties in a transaction, they are applicant and gatekeeper, with very different rights and responsibilities.
One of the rights an applicant has is to file whatever the hell he wants with the PTO (except for a very small number of precluded items, like a perpetual motion machine). That patent application process comes with very few preliminary requirements except those that form the bases of rejections under 35 USC 101, 102, 103, 112, etc. I’d assume there would be a preliminary rejection if, for example, an applicant attempted to file a patent application by audiocassette tape or a series of 3-panel comics. (Just wait, now someone will try.)
The point is that the MPEP sets forth the procedure for making a considered evaluation of any application for patent – that’s *any,* not just the well-written ones. The process is simple: applicant writes it up, files, pays the fee, and the examiner gets to work. It’s a straightforward transaction.
There is *nothing* in that process that says a patent application must be “probably patentable.” That’s the whole point of the examination process — to make that determination. Obviously there are caveats for when the applicant himself knows (and doesn’t disclose) something relevant to the examination, but if the applicant thinks they’ve invented X, it’s up to the examiner to provide a considered examination of X in view of the prior art. Not take the prior art, invoke all sorts of bizarro hindsight and lexical machination like “walking a flash drive across the room is wireless,” and issue a rejection like the case at hand. There is very little daylight between that logic and the logic that says “everything that is a machine is made from the same star stuff that our solar system was created from, so everything’s obvious in view of the Big Bang theory.”
From a policy standpoint, the Constitution and the US Code are very clear on which side of the patent fence they sit. Both are pro-patent and that means examination policy should be geared toward minimizing false negatives (fewer rejected but allowable patents) rather than minimizing false positives (fewer allowed but rejectable patents).
But if the PTO is as overzealous as they were in this case (a fact that is universally recognized by everyone here, apparently), it leads to the opposite: far more rejections of allowable material than allowances of rejectable material. That’s bad — that PTO mismanagement increases the cost not just on applicants but on taxpayers overall. You and I just had to pay a federal judge to issue a ruling on this PTO illogic about “wireless”, reasoning that even the most virulent anti-patent crusader would agree was incorrect.
In this particular case, if there is (as 6 indicated above) some rational reasoning behind why an examiner would intentionally make the rejection presented *rather than* do a proper analysis, I’d suggest that’s a systemic problem that needs to be addressed in the MPEP somehow. A workflow bug with an unintended perverse incentive, as it were. But it’s a workflow bug that’s costing *all of us* money, not just the applicants.
Absolutely correct SlotGuy.
If I pick up my land-line phone and call you on your land-line phone number, that’s still a “wireless” communication because the sound waves coming from my vocal cords traveled through atmospheric space before hitting the handset, and again from the earpiece to your ear on the other end of the line. Boom!
There are lots of other broad and unreasonable constructions for “wireless” if the PTO wants to ignore what the term of art actually means. If I print off a paper copy of a document, put it in an envelope and FedEx it overnight to your office where you scan it into your PC, that’s also a transmission that happened “through atmospheric space.” Nobody in their right mind would consider that “wireless communications” except where it’s acceptable to broaden the definition to include “anything that doesn’t actually involve a wire for 100% of the communication.”
If that’s the new status quo at the PTO, then the costs to obtain a computer technology patent now include filing a CAFC appeal to argue against nonsense like this. That adds what, 500% to the cost of a patent? I don’t actually know but I’m sure someone can look at fees and billings and figure it out (that might make a good paper going forward — average cost of a patent over time per art unit). In any event, it seems that such a dramatic increase in the cost of a patent wouldn’t exactly promote the progress of the useful arts. That’s only a good result if you think all technology was invented in the 1950s and everything is old hat by now.
If I pick up my land-line phone and call you on your land-line phone number, that’s still a “wireless” communication because the sound waves coming from my vocal cords traveled through atmospheric space before hitting the handset, and again from the earpiece to your ear on the other end of the line. Boom!
There are lots of other broad and unreasonable constructions for “wireless”
There’s nothing unreasonable about your analysis. The activity you described falls squarely within the definition given by the applicant. An acoustic wave is a sound wave. If I talk to you face to face, that’s a “wireless” communication according to the applicant’s express definition. It’s also a “wireless” communication according to the plain meaning of the term “wireless.”
The reason these complaints from computer-implementers continually crop up is because the computer-implementers are not developing new technology but simply applying existing in old, obvious contexts.
Any digital information can be communicated wirelessly. It doesn’t matter if the information is image information or information about the smell of your grandma’s purse. It doesn’t matter if the information is communicated from a Martian rover or from your Smart NoseRing (TM). Wireless communication — acoustic or electromagnetic — is very, very, very old and there is nothing “non-obvious” about using it any context where information communication is desirable. And that’s *always* been the case since wireless communication was first invented.
Why is that so hard for the USPTO to figure out? We know why certain applicants can’t figure it out. But what’s the PTO’s problem? Same with “mobile” or “portable” devices and “computers” generally. When does the art grow up?
Describing these obvious applications of old technology is not patent-worthy innovation. Far from it. It’s free riding and bottom-feeding at the expense of the patent system and the public and people who skilled people who actually work hard to develop technology that actually works (as opposed to legal documents describing a fantasy that a skilled person will need to trouble-shoot and implement).
While you are at it, how about applying the same reasoning to mechanical inventions. They all employ the same cogs, gears, screws, etc. as eachother, so they are all obvious.
The same reasoning ==> my big box of electrons, protons, and neutrons.
Alun: While you are at it, how about applying the same reasoning to mechanical inventions. They all employ the same cogs, gears, screws, etc. as eachother, so they are all obvious.
The reasoning here is not “the claim recites an old component so therefore it’s obvious.”
The reasoning is “the claim recites the use of old components for their well-known purposes without any unexpected results therefore the claim is obvious.”
There’s a huge and important difference between the two.
You seem to want to make an inherency doctrine argument, yet you fail to do more than merely state a bland and unsupported conclusion.
Try again Malcolm – this time with some substantive merit.
(and remember that you cannot “just use” the new machine until that machine has been changed by adding the software component that provides the capability that you want to use – you seem to gloss over that very important point on a consistent basis).
You seem to want to make an inherency doctrine argument
It’s not an inherency doctrine argument.
Whew, that’s a good thing then (for you), eh?
Still, you seem stuck on making an actual argument instead of merely proclaiming a conclusion.
You might want to work on that.
you seem stuck on making an actual argument instead of merely proclaiming a conclusion. You might want to work on that.
Huh?
“It’s free riding and bottom-feeding at the expense of the patent system and the public and people who skilled people who actually work hard to develop technology that actually works”
Shallow and even duplicitous words coming from the person who has stated that NO software patent should ever issue.
MM opines: There’s nothing unreasonable about your analysis. The activity you described falls squarely within the definition given by the applicant. An acoustic wave is a sound wave. If I talk to you face to face, that’s a “wireless” communication according to the applicant’s express definition. It’s also a “wireless” communication according to the plain meaning of the term “wireless.”
This is why we can’t have nice things. “Wireless” is a term of art — it means something specific to the technologists who implement the gadgets you take for granted. Specifically, it means transmission of data using electromagnetic frequencies. That’s what PHOSITA would understand from a specification directed toward wireless communications technology.
But you’re not PHOSITA, are you? You think audio — talking to someone face to face — falls within what “wireless” means. “Wireless audio” is therefore a redundant phrase, no? See http://www.sonos.com for why it’s not, and if you need a physics refresher, “vibrating air” is not part of the EM spectrum.
Your reasoning exhibits the same casual, breezy, anti-intellectual “common sense” that makes parents skip vaccinations and leads to measles at Disneyland. Why on earth would you intentionally inject your child with a deadly disease? You should choose to believe Jenny McCarthy over the thousands of doctors who have dedicated their lives to improving the health of humankind because she speaks “common sense” and those over-educated doctors are too durned scientifical.
If the PTO wants to argue that wireless and wired communication are interchangeable under 35 USC 103 for the purpose set forth in the patent, they should marshal the prior art and make that argument. But that’s not what they did – they argued, as you do, that the term “wireless” itself means something far broader than it does. It doesn’t, and saying so doesn’t even come close to passing the smell test. Such transparently flawed reasoning might not trouble you, but it bothers me when it’s promulgated by my government.
It should bother anyone – and everyone – looking for a legal discussion on “America’s leading patent law source.”
Downright painful even.
Eight years and running…
That’s a separate issue. I agree that MM’s sophistry is painful, and while I question the wisdom of Prof. Crouch in tolerating it for eight years, this is his website and he’s footing the bill. I’m not, so if he wants to let anyone into his living room, it’s his prerogative. It’s why, despite having discovered this blog years ago, I rarely interact here. Too much invective, not enough substantive or productive discussion. Moderating a healthy online discussion forum with anonymous participants is *really hard* and doesn’t often overlap with the traits that make a successful legal scholar. You’ll notice that most blogs with comment sections don’t even try because the cost/benefit doesn’t add up. Just look at ESPN — if anyone’s got the funds to hire full-time comment moderators, it’s Disney, yet they don’t bother with one of their premier brands.
Point is, the PTO’s quality control in this case is abhorrent, and that’s irrespective of whether you think the application itself is patent-worthy. My gripe is with the PTO’s quality of examination, not the patent application itself.
Absolutely correct – but one important item to distinguish: when you “cry” about the ecosystem and it is pointed out that a certain blight exists – and has existed the ought multiple repetitions of “ecosystem controls” and you STILL allow the blight, well, that pain you feel belongs to the blog master.
You are right – it is his choice.
For the reasons you’ve brought up, personally I’d not have a comment section. The amount of good conversation is vastly outweighed by the people espousing singular, never-changing viewpoints.
I think that you and I (at least) are in agreement of a fundamental flaw here.
Notwithstanding that understanding, the desire to have an “ecosystem” here for dialogue necessitates the understanding that a mere Drive-By Monologue model is simply incompatible with promoting true dialogue.
If one professes to want the one (Dialogue), but does nothing about the blight of the other (Drive-By Monologue), then the (repeated) calls for “everyone doing their part” sound in the classic definition of insanity – expecting a different result when doing the same thing over again and again.
sites without comments are BORING.
doubtless MM does not really believe that “wireless” in a patent claim means anything but that which we all accept it to mean- rather, he is demonstrating as usual the idiotic scholasticism that has enveloped the patent system around the subject of computers/software.
No statue can be written to demand common sense among a community that has shunned it….and apparently patent examiners can’t use it either.
Because software models the world, every single implicit fact about the world will have to be written, or it will be in danger of being patented. Since making explicit everything on Earth that is implicit is impossible, we have the mess we have…..
Sorry Mr. Snyder, but your supposition of “doubtless MM does not really believe” just is NOT supported by the record here (or on the other recent BRI thread dealing with lamination.
Further, it is NOT the modeling of any certain fact that is at issue with software, but rather, it is the attempt to foreclose a certain type if innovation and use (think about the difference between math and applied math) of facts (as merely sub parts of any particular claim) and the legal effects (as allowed unconstained by the law as written) with claims as a whole in a well recognized art field that is the single largest art field of modern innovation.
Like it or not, this field of innovation TOO is meant to be covered by patent law. You simply cannot arrive at your philosophical end point without recognizing that your drive to that end point is based on your mere philosophical beliefs. You have provided NO path to the legal conclusion that you merely wish to have.
Tenacity alone just does not suffice here.
the single largest art field of modern innovation
“Innovating” “new” facts and logical methods for dealing with those facts has always been the largest field of human endeavor.
What’s unprecedented is the abuse of the patent system to protect those activities.
But you knew this already.
Yet another “with friends like this, who needs enem1es” and Malcolm and his alternate reality view of “abuse”…
(Yes, folks – this is the same guy who has stated that ALL software patents are de facto invalid, yet won’t put his money where his mouth is and abstain from those innovations that he would deny patent protection to)
Well said!
SlotGuy: “Wireless” is a term of art — it means something specific to the technologists who implement the gadgets you take for granted.
Tell everyone exactly what this “specific meaning” is. Then compare the meaning to the express definition provided by the applicant. As a reminder, that definition includes the following: “[w]ireless refers to a communications … in which … acoustic waves carry a signal through atmospheric space rather than along a wire.
Are you going to argue now that “acoustic waves” has some special definition, too? That’s a typical low-level dust-kicking applicant maneuver that we see all the time.
In fact, as everybody knows, acoustic waves are sound waves. Acoustic waves travelling through atmospheric space includes waves emanating from a loudspeaker or someone’s mouth.
“Wireless audio” is therefore a redundant phrase, no?
No, it’s not. Acoustic waves (or adio) can be propagated on a wire or any other non-atmospheric medium, as everybody knows.
If the PTO wants to argue that wireless and wired communication are interchangeable under 35 USC 103 for the purpose set forth in the patent, they should marshal the prior art and make that argument.
Or the applicant can learn how to use the English language to describe his invention. Preferably that occurs after the applicant learns what an invention is, something this particular applicant seems deeply confused about.
“rather than along a wire” is sufficient to demonstrate that the PTO got it wrong. Do you actually disagree with the CAFC decision?
Would you argue that a laptop’s keyboard is a “wireless” input device because your fingers travel through atmospheric space to reach the keys? Do you truly believe that two people speaking on landline telephones are using “wireless communications” because atmospheric sound is transduced to and from the handsets into electrical signals?
And please don’t pretend that pressure waves travelling through matter are equivalent to electricity travelling through a circuit. Telephone wires don’t carry (or generate) acoustic waves the way piano wires do, they carry electricity.
It should be plain that methods of communication that predate the invention of wires, like talking, smoke signals, or hand gestures, are not “wireless communications” within the meaning of the term in a patent directed to “a device for communicating digital camera image and video information over a network”. If you get cut off in traffic and you flip the other driver the bird, you are not using a “wireless communications network.”
MM Do you actually disagree with the CAFC decision?
No.
I do disagree with your analysis at 18 and I’ve already explained why. And I did so nicely, by the way, without personal insults. You were the one who couldn’t help yourself in that regard.
Anyone surprised? I’m not.
“Huh?“
MM, Jan 31st: “I do disagree with your analysis.”
MM, Jan 30th: “There’s nothing unreasonable about your analysis.”
Anyone surprised? I’m not.
MM, Jan 31st: “I do disagree with your analysis.”
MM, Jan 30th: “There’s nothing unreasonable about your analysis.”
Anyone surprised? I’m not.
I’m certainly not surprised that you can pull quotes out of context in what appears to be an intentional effort to create confusion about what I’ve been saying.
I’m not impressed, either.
But I bet you that “anon” is.
Keep up the great work, “SlotGuy”. You guys are cute together.
Out of context…?
Seems like he got the context right.
Then again, you falsely accused me of taking your absymal mantra of incorrectly portraying the option of writing claims in “objective physical structure” as somehow being the only proper lega way to write claims.
Don’t you get tired of being so wrong so often?
lease don’t pretend that pressure waves travelling through matter are equivalent to electricity travelling through a circuit.
Please don’t beat on strawman and attack arguments I never made.
Telephone wires don’t carry (or generate) acoustic waves the way piano wires do, they carry electricity.
That’s nice. I never claimed otherwise.
It should be plain that methods of communication that predate the invention of wires, like talking, smoke signals, or hand gestures, are not “wireless communications” within the meaning of the term in a patent directed to “a device for communicating digital camera image and video information over a network”.
That depends on how the term is defined.
You see, SlotGuy, there are a lot of patent attorneys out there who arent very clever. Or worse. There are even some out there who can’t tell the difference between a definition someone actually wrote and a fantasy about something that wasn’t written. Even worse, these patent attorneys can’t tell the difference between an argument that is actually written down in plain English and some imaginary argument that nobody is making.
Go ahead and ask me how I know this.
Maybe I’m giving you too much credit. When you wrote, “acoustic waves (or adio) can be propagated on a wire or any other non-atmospheric medium, as everybody knows,” I thought you were part of “everybody” and were being pedantic. Perhaps you don’t understand the difference between how sound travels through air vs. how it travels over a phone line. Here’s a quick physics lesson:
The way acoustic waves are propagated over non-atmospheric media is the same as it is through air: by vibration. That’s how the children’s telephone toy works (two tin cans and a string or a wire). If you pinch the string in the middle, it can’t vibrate and doesn’t work anymore. It’s also why you can hear an inaudibly ringing tuning fork if you hold it to your temple — the sound travels directly through your bones to your inner ear, bypassing the eardrum, as the fork vibrates your skull. But over a telephone wire, sound is transduced by the microphone into electric signals, and the wire doesn’t vibrate at all (at least not relative to the sound being transmitted) — it’s just an electric circuit. The same is true for headphone wires and the 1/8″ jack on your smartphone. They don’t vibrate – that signal doesn’t turn into acoustic waves until the circuit triggers the magnets in your earbuds to vibrate.
If you already knew all that, then you’ve being intentionally obfuscatory and my prior critique was well-founded. If you didn’t, it’s further evidence that you’re suffering from the delusion that you already know everything about science and technology and therefore believe everything is necessarily obvious. Which is it?
Because to your point, one thing that’s worse than a patent attorney who isn’t very clever is one who is ignorant but believes himself otherwise, and then goes on a fervent, prolonged crusade about how everyone’s constitutional rights should be abridged because he can’t comprehend why one technology is different than another and therefore believes everything is obvious in view of technology developed 60 years ago. One of my concerns is that, with the growing anti-science movement in this country, Congress may soon agree with you.
the costs to obtain a computer technology patent now include filing a CAFC appeal to argue against nonsense like this. That adds what, 500% to the cost of a patent?
So what? Given that computer “technology” as it is presently understood by the patent system requires precisely zero cost to “innovate” there should be lots and lots of money left over.
“A computer configured to receive information about how a user prefers eggs to be prepared for consumption, wherein said computer is operably connected to one or more cameras that monitor all household activity, wherein said computer comprises a determination module for determining when eggs are ready for said user to consume, wherein said computer comprises a communication module, wherein said module wirelessly alerts said user upon receipt of a signal from said determination module.”
Can I haz patent now? I’ve invested soooooooooo much time in this. It would be unfair to charge me more than a few hundred dollars for the right to sue deep pocketed IntelliKitchen (TM) after all that “innovation.”
“required precisely zero cost”
And then there’s the canard that the patent system exists ONLY for those types of things that have a “but for” cost element…
Just more of the same stale rhetoric…
the patent system exists ONLY for those types of things that have a “but for” cost element…
I never stated otherwise.
Keep beating on that strawman! It doesn’t change the facts but it sure makes you feel good about yourself. And that’s what really matters, right, “anon”? Kiss your bicep again and tell everyone about how you “devastated” all your critics. That’s always fun.
LOL – so which is it Malcolm, you were just bl0wing wind and not saying ANYTHING, or I correctly deduced your implict meaning and identified one of your short script memes?
What did you mean by:
“required precisely zero cost”
Why did you include that particular phrase?
Perhaps you might explain yourself instead of kicking up dust…
(And maybe we will see one of those classic non-responsive *click* responses that highlight Malcolm’s dialogue skills)
Malcolm, Oh Malcolm, where did you run off too?
Questions about the point that you attempted to make need answers.
I found some “advice” that you might think about following to help you “make your point:”
“If you have a point to make, try typing it out in declarative sentences”
(guffaw)
If that’s the new status quo at the PTO, then the costs to obtain a computer technology patent now include filing a CAFC appeal to argue against nonsense like this. That adds what, 500% to the cost of a patent?
Lots of procedures would be vexed if you argued every issue. How about not appealing the clearly old limitation simply because the particular citation was in error?
OT but certainly IP-related and perhaps worthy of a few moments of “Friday Time”:
link to bigstory.ap.org
PHOENIX (AP) — It is the game that must not be named — at least not without permission.
For most people, the game Sunday between the New England Patriots and Seattle Seahawks is the Super Bowl. But for many business owners, it’s simply the “big game” or “game day.”
Radio hosts are tripping over their tongues and airport signs are carefully worded to keep from referring to it as the Super Bowl, a trademarked name the NFL strictly polices….
“Like any brand, we work to protect our valuable intellectual property and the rights we extend to our partners,” NFL spokesman Brian McCarthy said…. McCarthy said if a potential infringement is discovered, the league will notify the party involved. If nothing changes, then a cease-and-desist letter follows. McCarthy declined to discuss how many companies have received letters in recent months.
This is just one of many examples of how trademark laws have been warped and abused. The NFL spends hundreds of millions of dollars shouting and shoving “Super Bowl” into everybody’s face so that we all know what the term refers to. But when people use the term to refer to (wait for it) the Super Bowl (TM <– lol) in contexts that have precisely zero chance of confusing any consumer about who is selling what, get ready for an NFL lawyer to start harassing you.
Nobody could have predicted that the tightening of the patent laws would lead to reflexive, hyperbolic PTO bashing on the patent blogs (e.g., “the whole function of the PTO’s is to make repeated unfair and ridiculous rejections”).
Meanwhile, thousands of invalid and ineligible applications continue to sail through the USPTO to the delight of its “stakeholders” and the number of patents granted remains at or near an all-time high. And every week there are fresh examples of patent applicants making arguments that are so desperate the Federal Circuit doesn’t even bother writing an opinion about them.
Ooh, there are some good ones this week.
Check out 8939768. Truly shocking that this could issue. Decided not to post the independent claim because…well, you’ll see.
Oh, by the way, first action allowance!
link to patft1.uspto.gov
Unbelievable.
Sample claim elements:
“wherein the at least one first employer requires references from a plurality of reference providers to be received for each job candidate before the at least one first employer decides whether or not to conduct a job interview”
“wherein the statistical scores of the first job candidate are benchmarked against statistical scores of other job candidates who applied to a specific position that is at least similar to the at least one first position”
Never underestimate the extent to which the US patent system has been turned into a complete joke by the lowest form of innovators.