Herb Wamsley has been a mainstay and leader of the patent law bar for many decades — including 32 years leading Intellectual Property Owners Association (IPO) and previously as chief of staff to the Patent & Trademark Office Director. I have tremendous respect for Herb and the organization he has built. Although I often don’t fully agree with the IPO positions, Herb has always been honest and open and ready to talk through the pros and cons of any issue.
Herb Wamsley has announced his retirement from the IPO and I want to congratulate Herb on such a successful career that has touched so many of us.
The IPO has also announced its new search for an executive director of the agency. I wonder if they can woo away the current PTO Chief of Staff Andrew Byrnes. According to the announcement: “Candidates should be skilled in IP law and practice, government affairs, communications, consensus-building, management and organization. To view the job announcement including duties and skill set click here.”
In honor of Jesus Christ on this Easter Sunday, I bring you a musical clip from the greatest movie of all time, Ben Hur. link to youtube.com
To which this reponse:
link to youtube.com
link to npr.org
regarding the big j.
As one poster noted, a lot of the problems we have with the status of Jesus Christ came out of the Council of Nicea — convened by Constantine, and ordered by Constantine as a condition that Christianity be recognized as a state religion, that the Christians agree that there was only one god, which the Roman state religion had by then agreed upon.
As a result of that Council, Arius fled the Empire. He was as advocate of the concept that Jesus was “created.” As such, just how could he be God, just of God?
Roman politics infected the Council of Nicea. As a result, we may never have a clear view of what really happened and what really was said back at the time of Jesus.
After the Council, 500 copies of the official bible were created. The Church itself held them, and it was they who told the people what they contained and what they were to believe. It is not an accident that the people were required to recite the Nicene Creed and not until the printing press did the people finally get a chance to read the bible.
VASUDEVAN SOFTWARE, INC. v. MICROSTRATEGY, INC
link to cafc.uscourts.gov
The Federal Circuit affirmed the District Court claim construction that “disparate databases” meant “databases having: (1) an absence of compatible keys; and (2) an absence of record ID columns of similar value; and (3) an absence of record ID columns of similar format in the schemas or structures that would otherwise enable linking data’ based on prosecution history disclaimer which distinguished the prior art arguing that the prior art did not have disparate databases which it defined to be
“…absence of compatible keys or record identifier (ID) columns of similar value or format in the schemas or structures of the database that would otherwise enable linking data within the constituent databases. An example of such a common key value is a social security number that would enable linking or relational databases “join operations” on an individual’s personnel data with his or her insurance plan. In embodiments of Applicant’s invention, such a common key value is not necessary.”
The court justified its affirmance for two reasons. First, the applicant distinguish one reference based on the lack of common keys.
“This is only consistent with the conjunctive interpretation. According to the disjunctive interpretation, the presence of common keys, alone, would not necessarily preclude two databases from being disparate: they could still be disparate so long as they lacked record ID columns of similar value or format.”
Second, the court said the conjunctive interpretation was consistent with conventional grammar: “the phrase “‘not A, B, or C’ means ‘not A, not B, and not c.’”
Finally, the court reversed the finding of invalidity based on lack a written description and enablement. While the specification provided no examples of the working embodiment, the patent owner provided expert testimony that demonstrated that one of ordinary skill in the art would understand what was necessary to parse disparate databases. Also, even though the inventor took three years to reduce the invention to practice, the expert testimony was that this was primarily due to the fact that he was trying to develop a commercial embodiment, and that if he was just trying to develop prototype one of ordinary skill in the art could of done it in a year. Because the defendant did not provide any rebuttal expert opinion, the court said there was unresolved issues of fact, and reversed the summary judgment.
Comment: there seem to be testimony that people skill in the art for 20 years have been trying to develop software that were parse incompatible databases in real-time. I don’t think the specification told anybody how to do it.
I’m not sure what the court meant when it said the expert was unopposed. It’s summary judgment. Practitioners often don’t put in their own expert’s analysis on SJ because that will allow for arguments about “dueling experts” and about that in and of itself shows a triable issue.
My point: Seems like the movant is damned if they do, damned if they don’t, according to the Fed Cir.
The correct question is whether the expert was enough (along with the other facts that should be reasonably believed in the non-movant’s favor) to raise a triable issue of fact. But perhaps the Federal Circuit was just using some short-hand.
In any event, I find it interesting that the Federal Circuit didn’t talk about whether statements in the prosecution history evidenced any sort of clear and unmistakeable disclaimer of claim scope beyond citing the district court’s finding. I wonder if this has anything to do with SCOTUS asking for the SG’s opinion in Google v. Vederi.
The question in Google v. Vederi
“Issue: Whether, when an applicant for a patent amends a claim to overcome the Patent and Trademark Office’s earlier disallowance of the claim, a court should (i) presume that the amendment narrowed the claim and strictly construe the amended claim language against the applicant, as this Court has held; or (ii) presume that the claim scope remained the same and require that any narrowing be clear and unmistakable, as the Federal Circuit has held.”
From the Fed. Cir. opinion:
“Additionally, the prosecution history does not support the district court’s construction. Google contends that the inventors of the Asserted Patents disclaimed the construction sought by Vederi in responding to a rejection over a prior art reference. Specifically, the application leading to the ‘760 patent initially contained claims reciting “images providing a non-aerial view of the objects.” J.A. 404. The Patent Office rejected those claims in view of U.S. Patent No. 6,140,943 (Levine). The applicant responded by amending the claims to remove “nonaerial view” and add “substantially elevations.” Id. at 494. The applicant also correctly noted that Levine was directed to “map images, which may include names of streets, roads, as well as places of interest” that a traveler could use to navigate through a geographic area. Id. at 503-04. Therefore, Levine did not disclose images “depict[ing] views that are `substantially elevations of the objects in a geographic area'” or “acquired by an image recording device moving along a trajectory.” Id. at 504. Despite Google’s protestations to the contrary, this court discerns no clear and unambiguous disavowal of spherical or curved images that would support the district court’s construction.”
Note, an elevational view, in the architectural art is a flat projection, not spherical or curved. The term is NOT used in the spec.
“In this case, for example, the court of appeals
held that the claim language must be construed
broadly enough to encompass the specification’s brief
mention of fish-eye lenses (and any spherical images
produced by such lenses). See p. 12, supra; App. 12–
13. But the applicants drafted the specification’s
description of the claimed invention before the
narrowing amendment, and the specification does not
even use the word “elevations.” The court of appeals
should have strictly construed that amendment―not
undone it in deference to the specification’s
description of the original, pre-amendment claims. ”
So the question is: what does the word “substantially” do in context? Does this extend to spherical? The issue of spherical or curved never came up in the prosecution.
But there has to be difference between “non aerial” and any type of image that is not aerial. The Feds. ruling does seem to support Google’s contention because it seems to that there was no narrowing despite the amendment.
Opinion by Rader. One of his last. Could this be another 9-0 reversal?
Since the claim term was not used in the spec, and there is substantial debate as to what it encompasses beyond flat projections, clearly the problem here is that the claim term is indefinite.
If a claim term is indefinite, it has to be construed against the drafter. In other words, one should not be able to interpret substantially elevations beyond flat projections. If this rule were applied here, the Federal Circuit holding is incorrect.
But in the future, I would hope that the Federal Circuit raises the issue of indefiniteness sua sponte and simply remands the case back to the District Court for further consideration.
Let’s deconstruct Ned’s comment in a number of important ways:
Not the law being presented as “the law”
a) Construing “contract term” against the writer. I “get” the importation of the concept from contract law, but the current state of law is not what Ned suggests. This is a subtle but important point here because the terms are to be read as understood by PHOSITA and Ned is clearly lacking in that understanding, and instead is jumping to an anti-applicant view instead of the more neutral and objective ITA view.
b) Ipsis verbis – Ned appears to reach for a EP type standard that is NOT the law (nor custom) here in the US. Sorry Ned, but this reach is only endemic of the typical path of patent profanity and will only yield only more “gamesmanship” of the scriviners. Instead, we probably should be more simply aware that language – all language is merely an imperfect t001.
Now, then, let’s take a close look at the phrase, including the plain meaning of the modifying term “substantially:”
c) First, let’s point out and acknowledge the obvious, that yes, there is always a problem inherent in using relative terms.
d) However, the clear meaning in context is clearly not the one that Ned would reach: the plain meaning of the term “flat projection“ without any modifier whatsoever. Clearly, the use of the term in context here must mean different than that, as the true life effects (we live in a 3D world) are meant to be mitigated to at least include “near” but not quite reaching “flat projection”.
To an important extent that a previous discussion by myself and others more than a year ago already captured what I post here, the link to that discussion can be found at link to patentlyo.com
Note the important contribution by Erik at March 19, 2014 (post 16).
“anon” the current state of law is not what Ned suggests.
The current state of the law is a complete joke that folks like you love to manipulate.
The change is coming, “anon”, so you might as well start getting used to it. Construction against the patentee makes a lot of sense. Either that or just invalidate the claim as indefinite. Take your pick.
Feel free to recommend changes to the law in the appropriate manner, and note that your C R P postings here are most definitely NOT the appropriate manner.
That’s my pick.
A headline that caught my eye:
link to yahoo.com
Saw that headline myself anon.
Did they approach you for your trollin skilz? The pay isn’t that good, but its better than your period of unemployment.
Let’s put it this way, anon. If a claim term is added to avoid the prior art, and that claim term is not in the specification, what does it mean, and where are the boundaries?
Once upon a time, one simply could not add a term to a claim that was not used in the specification. One would get an instant new matter objection.
That the fricken id iots at Google, who have lots and lots of money to spend on lawyers, never raised a 112 defense here has gotten this case in the land of delusion. We are arguing this and that about “elevation” and “substantially” when we don’t even know what that means in the context of the specification.
If a point of novelty is not even disclosed in the specification, there is something mightly wrong with this claim.
Ned,
Read again my post and pay attention to what I am actually saying.
You err as I point out, and you compound this by pretending that your views make sense when you clearly do not have a basis of understanding the art field involved and whether or not the term added has meaning OUTSIDE of your ipsis verbis treatment.
You need to back up and realize your limitations. Your “once upon a time” comment is simply false, as the US NEVER had that type of ipsis verbis.
Simmer.
Down.
Erik’s contribution was incorrect.
His conclusion was wrong. His premises were mistaken.
Perspective and distortion are not the same thing.
“Perspective and distortion are not the same thing.”
That’s great. That’s also NOT what Erik said.
You have misread the post, and the error is not Erick’s, but your own.
Our error was unclear posting. Distortion is not perspective is relevant in general, and we meant it to be distinct point. Erik’s points about distortion are true. It’s not really about esoteric lenses or terms in the context. Substantially flat must be about perception of the resultant images.
The “real problem” though, is not “obstruction”. Erik’s “best plan” merely shifted what was obstructed, his camera height adjustments either moved the focal point (or zone) higher putting the horizon at the eave (just a design choice), maybe he also tilted the image plane, (more aeriel) aiming slightly downwards; either way he traded viewing the dome quadrant for obstructing some of the upper windows and “unflattening” the walkway. The other side of obstructing is “revealing”, which can more noticeable in comparison to flat projection. The problem though is about vanishing points and a radiating focal point of view vs non-covering parallel projections. Understanding the distinction of elevation flatness (orthographic no-perspective projection) from flat planes of geometry is fundamental.
Anon your point “d” is still correct, but resolving “c” requires evaluating “substance”. We’ll ignore “b”. To “a” ITA understanding is not automatic here, as there are still confounding issues about off-normal (oblique) view-lines to cameras/subject, foreshortening esp with overlapped structures/environment and corrected images. The court and others, may have gisted the word elevation into the invention by hindsight. We are definitely not sure about the boundary, but we think we still know what the invention is.
“non-converging”
Jane, since written description and enablement are questions of fact, any testimony by a expert supporting the patentee might be sufficient.
Oh I’m not disagreeing. I just think it was odd they pointed out the lack of expert testimony rebutting it. That seems like it shouldn’t really matter given that it was on SJ.
I recommend Judge Rader for the position.
I recommend Malcolm Mooney.
Is that the same as the paid blogger MM?
Night,
The paid blogger thing seems a little desperate, honestly.
>>desperate
??
Night,
Desperate was the wrong word. You’re just so persistent about it.
Let me be frank. I find MM’s positions very appealing and I think he states his position in a clear, persuasive way.
I know he annoys you and I know you disagree. I know you think he is a paid blogger.
However, instead of harping on that fact I really, really wish you and anon would engage his arguments directly. I’d love to see how those arguments play out. To some extent both you and anon do this, but it seems to ignore the policy implications of your position.
Let’s face it, the patent laws are subject to a spectrum of interpretations. So cites to pre-Bilski, Mayo, Alice case law is only so persuasive
The problem overall as I see it in the overall debate (and obv this is heavily colored by my perspective) is that MM is engaging the obvious problem of huge amounts of low quality (often software) patents.
As I stated in a recent thread, we have to engage THAT problem. Without that shared understanding, there can be no common dialogue.
Also just as an aide, I agree the Supreme Court is “activist” and I’m not a huge fan, but that is a ship that sailed so long ago in so many areas of law. Its just a separate debate, really.
>>I find MM’s positions very appealing
He does not have positions but propaganda that is not based on fact.
>>I really, really wish you and anon would engage his arguments directly
We do and have. He does not respond to the substance of the arguments. The point is that he is paid to blog on here so he has much more time and does not care about the substance of the arguments. He is pushing propaganda.
>>I agree the Supreme Court is “activist”
That is not even a debatable point. Anyone who does not agree with that is either pushing propaganda or is completely ignorant.
>the obvious problem of huge amounts of low quality (often >software) patents
I agree that this is a problem. And many times I have said that the source of this problem is Benson and now Alice.
And, also, I don’t agree that the problem is isolated in software. I have done a lot of prosecution in several areas. The quality of patents is not higher in mechanical areas or electrical circuits.
And, in fact, you say you don’t want to discuss the SCOTUS, but that is the source of much of the problem. The Fed. Cir. case law is typically designed to be practical for the PTO to implement. The SCOTUS case law is coming from the fifth dimension. TSM was a great base in which to build quality. Broad 101 was a great base in which to build quality.
Anyway, I am not going to repeat all my arguments in this post. Read what we write. We don’t have time to write it down everyday because we aren’t paid like MM. I am flexible in my opinions and engage in real debate. MM is working from a policy sheet of his employers.
Moreover, Go, I think that people who actually understand the patent see that there is a problem and what is happening is that large corporations that want to end patents are using this as an opportunity to destroy rather than repair the system.
The ends do not justify the means, my ever polite but redundant Go.
You keep focusing on the kool-aid items and keep on ig noring the fact that I DO keep on pushing Malcolm to talk about the means to those “policy” ends in an intellectually honest manner without the duplicitous rhetoric that you seem only too willing not to see.
You speak optimistically about a common understanding and yet appear to be unwilling yourself to recognize elements of the conversation that need to be recognized for a common understanding.
Elements such as software is defined to be a manufacture (as understood by patent law), and a machine component.
Such as the fact that software is equivalent to hardware and to firmware (and yes, once again to prevent dust-kicking, it is to be noted that “exactly the same as” is expressly and legally different).
Such as that patent law DOES recognize exceptions to the judicial doctrine of printed matter.
These baselines are refused to be honestly treated by the ones you cheerlead. Persistently so.
It has been on the ever rare occasion that Malcolm attempts a real conversation, engages in a real dialogue, that he has slipped up and volunteered admissions against his agenda.
Engage his arguments directly?
That my friend is a joke of a statement.
He has NO legal arguments to be engaged directly. I have ripped apart his “pet theory” and invited him to an honest discussion of the same, and his ONLY response is the same ad hominem and running away.
He is a sad and bitter man, fighting only with an end-state “policy/opinion” without law to pound and without facts to pound.
And to the extent – even ever polite as your gambit remains – that you refuse to see this and expound differently as you do here, attempting to portray what he does as somehow “legitimate,” you too are simply being duplicitous.
The ever-polite front has worn through.
“Such as that patent law DOES recognize exceptions to the judicial doctrine of printed matter.”
Oh yeah, here we go again, anon’s favorite – old CCPA and CAFC decisions. “Just do it on a computer” isnt good enough according to the SC, but anon feels these old cases allow for “just do it on a sheet of paper.”
Oh wait… There are mystical categories of stuff you print on that paper and somehow that makes it A-OK. Hahaha.
Hilarious stuff.
Night and Anon,
I just wanted to thank you both for the thoughtful replies. I feel like I have a better appreciation of where you both are coming from.
The paid blogger thing seems a little desperate
It was “desperate” five years ago. Four years ago we moved into “bizarre” territory.
Uh huh. How do you account for the 40+ hours you put into blogging each week?
Night, it would please me greatly if you would stop it with MM. You simply disagree with him on 101, particularly software patents.
Ned,
Let’s do the opposite and have the v@pid propaganda be stopped.
Maybe then we can have some honest dialogue, eh?
anon, if I could convince you that engaging in “cat fights” with Malcolm or with anybody else for that matter does do you more harm than it does the the other, perhaps you would think before you act in the future.
People reading this board are convinced by solid arguments.
You argue well we choose to do so, and I really look forward to those kinds of conversations. I wish you would do more of them. I really do.
If Malcolm is making ridiculous statements as you think he is doing, people reading the statements will quickly understand that Malcolm is biased. However, he does listen if you point out why a statement of his was overbroad or incorrect.
But he tends to respond in kind if you attack him on a personal level. So don’t do it.
“could convince you that engaging in “cat fights” with Malcolm or with anybody else for that matter does do you more harm than it does the the other,”
Take your own advice Ned, as you are the one that applauds empty posts that merely agree with your own agenda (the “6-is-a-genius-because-he-agrees-with-me syndrome).
Solid arguments…?
You mean like the ones I have posted, invited your full participation, only to which you run away? Your “wish” here is hollow and self-serving my friend. As is your view that Malcolm listens, as if he did, he would not repeat as nauseum the VERY limited script that he does.
No, Ned, what you wish to convey is simply not true.
And as for his “responding in kind,” that too is false, as his “response” is OFTEN a first-strike propaganda “grifter” post. The black and white on these boards simply do not support your contentions.
At all.
So instead, let’s try what I suggest: let’s stop the v@pid propaganda.
My take: he will be hard to replace.
Herb Wamsley has announced his retirement from the IPO and I want to congratulate Herb on such a successful career that has touched so many of us.
My perspective: good riddance.
But I doubt that anything is going to change. I wrote just the other day about the remarkably thoughtless, self-serving brief the IPO filed in Prometheus v. Mayo. It’s difficult to imagine a more transparent and greedy grab for power and cash but there it is, for everyone to read. Short version: “it’s a process with a transformative step, therefore it’s eligible.” It takes two seconds to crush that argument into dust but somehow all the king’s men couldn’t figure it out (or they pretended not to).
This wealthy boy’s club put ther powerful minds and expertise together and reached the super deep conclusion that 102 and 103 and 112 were the way to go to screen out claims like Prometheus’ claims, ignoring the fact that Prometheus’ claims had already escaped those provisions. At the same time, they drop this nugget into their brief: “IPO takes no position on whether Respondent’s claims meet these other requirements for patentability.”
It’s nearly impossible to believe, but it happened. Meanwhile, lots of other people including myself were attacked as “communists” and and worse because we had the brains and the backbone to “take a position” that actually made sense.
Maybe the IPO can figure out a way to apologize? There’s “wrong” and then there’s “so wrong that it burns”.
“actually made sense”
…to your anti-patent mantra,…
Go figure.
(That “attack as commie” thing sound more than a bit hollow, because in very real part, there is the truth of being anti-personal property there, and your rampant “grifters” meme is just too stale and too class-warfare-ish.
“actually made sense”…to your anti-patent mantra,…
I have no idea what that’s supposed to mean. Do you not understand what Prometheus v. Mayo was about and why the IPO’s arguments were dead on arrival? This was a 9-0 decision that is never, ever going to be reversed and it put your ridiculous absolute prohibition against “claim dissection” to bed forever.
This was all explained to you in real time. But you know all this already. Keep flailing.
So are you saying MM that Google doesn’t like the IPO?
are you saying MM that Google doesn’t like the IPO?
Nope.
Before he leaves, can Herb Wamsley tell everyone the average income and net worth of America’s “intellectual property owners”?
Maybe a graph over the last, say, twenty years would be interesting and useful to people.
I’ve heard some stories that these “intellectual property owners” were “struggling” and faced some sort of existential crisis. Some data would be interesting.
The not-so-subtle introduction of a class-warfare screed…
How b@nal.
“anon” The not-so-subtle introduction of a class-warfare screed…
I didn’t spend promulgating this “struggling small inventor” mythology, “anon”, and all the accompanying David-v-Goliath baloney that goes with it.
That was you and your cohorts. And you’re still doing it. How many hours has it been since your buddy NWPA driveled some more nonsense about big Google destroying the patent system because it wants to “steal” from the “little guys” who allegedly do all the innovating?
Your post SO misses the mark in multiple dimensions including the factual basis of patents being more valuable for small start-ups and disruptive innovation as as well as what you do post as to the b@nal”1%er” C R P while duplicitously attacking the modern form of innovation most accessible to the non-1%ers.
My point stands.
You remain the chump.
disruptive innovation
Another meaningless pile of hoohaw.
attack the modern form of innovation most accessible to the non-1%ers.
You mean dreaming up a “new correlation”?
Or dreaming up some “new” logic? Or dreaming up some new “functionality” for a computer?
It’s funny watching — for the billionth time — beat this strawman that I’m “attacking” some kind of “innovation”. Are you going to tell me to stop using computers next? That’s always good for a laugh, too.
Try to recognize the difference between junky patent claims and useful objects or processes that might fall within the scope of those claims. I know it’s difficult for you but please try.
Lastly, if you’re statement about “most accessible to non 1-%ers” is meant somehow to imply that granting junky software patents is a means for leveling out income inequality then surely that is the best delayed April Fool’s joke I’ve heard so far. Please tell another one!
Maybe you should first pick up a clue that my views on innovation are well grounded in the studies of the topic, while yours just reflect your sad and twisted philosophical bents.
It’s rather bizarre your post here of wanting to attribute to me this notion of “leveling out income inequality” as that has NEVER been a part of my position – and has, in fact, always been a part of yours.
No wonder then why you are so reluctant to have an actual intellectually honest dialogue and stick to your poor ad hominem based rhetoric. You really are just p@thetic at this.
my views on innovation are well grounded in the studies of the topic
[pats “anon” on head]
Sure they are.
wanting to attribute to me this notion of “leveling out income inequality”
You were the one popping off about “innovation most accessible to the non-1%ers”. Or have you already forgotten?
I guess it’s possible that you didn’t actually have a point and you were just pulling something out of your behind because you thought it sounded good.
[shrugs]
>>You remain the chump.
Not really anon. MM is being paid to blog on here so anyone that spends time engaging his policy sheet posts is wasting their time and giving credibility to the paid blogger named MM.
MM is being paid to blog on here
Nope. False. Wrong.
Nice try, though.
On the other hand, we have no doubt whatsover about your direct interest in making it easier to obtain and enforce junky software patents. You’ve made that perfectly clear (as if it wasn’t easily deducible).
Keep up the great work. Every day there’s more “rapers and killers” like me trying to “steal” your “rights” from you. Booga booga!
So, you are saying, “Yes, I am definitely being paid to blog.”
“The Journal also claims that the report includes a message sent by Google telling competitors that it would “extract the fruits of its rivals’ innovations.”
link to cnet.com
The Journal also claims that the report includes a message sent by Google telling competitors that it would “extract the fruits of its rivals’ innovations.”
Not sure what’s the relevance here. Google was accused by its competitors (e.g., Amazon) of taking “content” (e.g., sales figures) from them. Last time I checked, published information belongs to the public (with the exception of information that is illegally protected by patents). That’s all you got. There’s no “stealing” of innovation whatsover. There isn’t even a confirmation of stolen “content”.
Now go ahead and tell everyone that Amazon is a “little guy.”
Just the record (and for the billionth time): I’m no fan of Google’s. I’m happy to see them busted for antitrust practices. If I wanted to, of course, I could start obtaining junk patents designed to extract money from Google. But I’ve got a conscience and a long list of more productive things to do (something many attorneys lack, as you are probably aware).
Based on the volume of your comments, I heartily disagree.
Based on the volume of your comments, I heartily disagree.
That’s okay, sockie. Nobody cares what you think about anything.
Trololololo lololo lololo trololololooooooo
“Google was accused by its competitors (e.g., Amazon) of taking “content” (e.g., sales figures) from them.”
Malcolm, did you even bother to read the linked article?
Well now you want to talk about evidence and reality. I am sorry but those headings don’t appear on MM’s policy sheet he works from.
Good job, Herb. Actually, great job!
I spent many years on the Board of Directors of the IPO so I know from personal experience just what a wonderful person Herb is in addition to being extremely competent. One simply cannot replace this man.
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