Hutchins v. Zoll Medical (Fed. Cir. 2007)
[Updated] Hutchins is an individual inventor and represented himself pro [se] before the district court and on appeal. Hutchins’ patent relates to computer aided CPR. (U.S. patent no. 5,913,685). The district court granted summary judgment of noninfringement in favor of Zoll.
Hutchins lost on claim construction — with the courts holding that a “general purpose computer” does not include the RISC processors. The prosecution history made this finding easy as the “general purpose computer” limitation was added during prosecution to avoid “similar devices with dedicated microprocessor units.”
It appears that the prosecution history pretty clearly established that the premable was limiting because it was amended and argued to get over the prior art. Most likely either the plaintiff’s attempts to argue otherwise were either futile or he recognized that they would be futile. In fact it seems likely that the result of winning on an argument that the preamble was not limiting would be a claim invalidated as anticipated. That would be worse than simple finding that the claim not infringed.
From reading the CAFC opinion, my impression is that the district court did incorrectly say that a RISC processor was not an element of a general purpose computer, while the CAFC instead based their decision that the RISC processor was part dedicated, embedded computer rather than a general purpose one.
This inventor has a long history of pro se litigation per PACER. Sounds a little crazy to me.
SF, I agree with you. The pro se plaintiff should have hired an attorney or stayed at home. I believe in the truism that “a person who represents himself has a fool for a client.”
Tom: For us, it’s a pretty glaring omission (the failure to discuss whether the preamble should be limiting). However, I blame the pro se plaintiff for failing to argue that the preamble was not limiting and thus failing to force the Feds to address the issue. I don’t expect the Feds to raise and address issues that the plaintiff should have raised, but didn’t (except things like subject matter jurisdiction, for example).
As I see it, this case illustrates the need to retain experienced litigators who specialize in patent litigation. Claim construction is not intuitive and plaintiffs need specialists who understand how to avoid unduly narrow claim constructions for terms like “general purpose computer” and who understand how preambles fit in.
SF, I would agree with you if the Fed Cir had provided a basis for their use of the preamble term. But, the opinion rambles and throws out unexplained tidbits. The opinion provides no information on if the phrase was added to all the independent claims, or only selected ones. Was it added only in the body of one of the other claims, in which case it would clearly present estoppel – for that claim? I’m not about to order the filewrapper to check.
The Fed Cir web site notes that the opinion is precedential. Unfortunately, the opinion appears to have been written as if it were non-precedential by responding directly to the pro se plaintiff’s complaints without addressing fully the legal issues. You say that “by his amendments and (I presume) arguments, the applicant breathed life into his preamble –.” What troubles me is the “I presume” part. A precedential opinion should not leave anyone to presume why the court held the way it did.
Tom Kulaga wrote, “One troubling aspect to this opinion is that, for independent Claims 1 and 13, ‘general purpose computer’ appears only in the preamble. The opinion doesn’t address why it treats a phrase in the preamble as if it were a claimed element.”
I didn’t find it that troubling given that the “general purpose computer” limitation was added during prosecution to distinguish the claims from the prior art. One test previously mentioned in caselaw suggests that the preamble is limiting where it “breathes life and meaning into the claim.” Here, by his amendments and (I presume) arguments, the applicant breathed life into his preamble — coincidently for an invention relating to CPR.
One troubling aspect to this opinion is that, for independent Claims 1 and 13, “general purpose computer” appears only in the preamble. The opinion doesn’t address why it treats a phrase in the preamble as if it were a claimed element.
Also, the opinion reproduces only a portion of Claim 1, but gives the impression that the reproduced portion is the complete claim. The portion omitted includes the element for “a processing unit,” which sounds like a RISC processor.
Ultimately, the non-infringement result rests upon the Zoll device not including the claimed element of an interactive display input. Why the court felt compelled to discuss the general purpose computer issue as they did puzzles me, except that Sections A and B of the opinion appear to be aimed only at addressing the pro se plaintiff’s arguments without worrying about providing a firm legal analysis of the claims or the technology.
“The district court accepted the definition of ‘general purpose computer’ that had been agreed by the parties; the court found that a RISC microprocessor does not meet that definition, and that the potential for connecting to a personal computer did not meet the claim limitation.”
The pro se plaintiff should sue himself for agreeing to such a claim construction.
Judges Gajarsa, Linn, and Moore all have EE backgrounds.
“Most of the concerns expressed about this case are the result of the Federal Circuit’s inartful summary of the district court’s decision.”
Shades of the court’s complaint in DyStar that most of the known world misunderstood what they had been saying about TSM – as though it was everyone else’s fault they could not express themselves clearly.
Most of the concerns expressed about this case are the result of the Federal Circuit’s inartful summary of the district court’s decision. That decision can be found on the court’s Web site. The court did not actually hold that no RISC processor can be a general purpose computer. Rather, it noted that “notwithstanding Plaintiff’s argument that the factory could design the accused device to run ‘multiple unrelated programs,’ the fact is it has been designed to run only one,” thereby failing to satisfy the definition to which the patentee himself had agreed.
Judge Moore has a EE degree.
As a transplanted Brit, I’d like to add that Apple had to print retractions admitting false advertising after Acorn pointed out that it was they, and not Apple (or Sun for that matter, but they weren’t mentionned) who first built general purpose computers with RISC processors.
Notwithstanding Acorn’s place in history, they are no longer in business as such. However, production of their computers was continued by their former distributors, Castle Communications, who later produced improved models, still with RISC processors, under the name Iyonix, AFAIK now clocking a heady 600 MHz! I assume a few Brits and other Europeans who already have Acorn software still buy them, even if they can get a faster PC for half the price (that sounds a lot like Macs a few years ago, doesn’t it?).
I beleive Pauline Newman to be the best judge on the panel, but she is a chemist. She’s simply from the wrong art.
I’m an EE graduate. How many EEs or computer scientists are there on the CAFC? I’m not sure, but I beleive it’s zero, isn’t it? I think this is a problem.
Alun Palmer, US Patent Agent.
It seems like the court is confusing the RISC processor in Zoll’s device with the device itself. From reading the case, it seems that Zoll’s device has to be attached to a computer to work, and that it lacks at least one of the elements of a “general purpose computer” as defined by the parties, but the use of a RISC processor in Zoll’s device seems irrelevant as it’s not the processor itself but Zoll’s device that’s in question.
What is a freaking difference between RISC, CISC or whateverISC computer, patent -wise ?
None.
And what is “general purpose computer” ? If it runs some application software it is a specialized apparatus perfoming some specific function.
Those people need to take some intro courses in CS or EE
Just for the record, we Brits got there first with RISC computing.
In the 1990’s when my children were growing, they had Acorn A3000 computers with a RISC processor running an operating system called RISC OS. The operating system and software were, so far as our family was concerned, streets ahead of what either the PC platform or Apple could provide at the time. For example, an excellent graphics-based word processor having the advantage (unavailable elsewhere at the time) of a concurrent spell checker. Every time a word was typed in which was not in the dictionary, it appeared with red underlining on the screen and a beep to signal to the user that attention was needed. It was ideal for teaching children to spell and made a huge difference – telling a child immediately when he or she has typed something wrong has a dramatic effect on speed of learning. Much other admirable software was available, including an outstanding music composition program called Sibelius which is still available on other platforms and has gone from strength to strength.
Apple came along later with advertisements that they were the first with a RISC computer. In fact they were not – Acorn got there first.
In any event, anyone who says that a RISC computer is not a “general purpose computer”, alas, is not aware of their development history. Our family owned RISC computers, and can affirm that they are indeed general purpose computers, as testified by the wide range of software that was available for the Archimedes.
Could you get a better contrast that the one between Honeywell and Hutchins decisions on the same day? I’m a conspiracy theorist, but those who are could use this as Exhibit 1 alleging a pro-big business (and not merely pro-patent) bias of the Federal Circuit. In Honeywell, even thought hte claims said heading, and heading has a specific meaning to those skilled in the art, they really meant bearing, so they get the benefit of the doubt (oh, and an infringement judgment).
On the other hand, Hutchins [did he prosecute pro se, too?] claimed a general purpose computer, and he even amended the claims to include that feature. So if the accused decive isn’t using a Intel x86 or AMD based PC-compatible machine with a screen and a QWERTY keyboard, it just isn’t a general-purpose computer; no infringement for the pro se inventor.
I’m not saying that there are not valid reasons for the two outcomes. For example, I can envision the Hutchins court finding no infringement on narrow claim construction rather than invalidating a borderline patent, a slap to the patentee and the PTO. But results-oriented reasoning makes a mess of the law.
[Cross-posted to Honeywell thread]
Your beloved Judge Newman actually gets one right for a change and you dump all over her.
Note that the panel also included CJ Michel, no patent lightweight.
If these two pro patent judges couldn’t find a way to reverse and find infringement, who else would?
QUOTE:page 4 of the opinion states “The court found that it was ‘implausible’ for a RISC microprocessor to be deemed a general purpose computer, for RISC microprocessors have limited functionality”. Is this not absurd?
Yes, totally. RISC and the alternative CISC are different implementations of the same general purpose computer (chip).
They’re idiots.
You people are missing the distinction between a processor and a computer. I sure hope you don’t just hold a Pentium processor in your hand and hope to surf the Internet. A general purpose computer has many more components than just a processor, and the parties in the case agreed to the definition:
a computer capable of running multiple unrelated programs, which are selected by the user and loaded into the device. It must feature at least: (1) a central processing unit, (2) one or more input devices that are not specific to any one program, (3) memory, (4) mass storage devices (such as a disk drive) for storing large amounts of data, and (5) one or more output devices.
A RISC microprocessor, on its own, only satisfies (1).
“I guess someone forgot to tell Sun Microsystems that a RISC processor could not be a general purpose computer.”
Huh? Since when is any microprocessor a complete general purpose computer. Especially a RISC, which offers far fewer on board operations than, say, an x86 chip.
The definition of “general purpose computer” was:
a computer capable of running multiple unrelated programs, which are selected by the user and loaded into the device. It must feature at least: (1) a central processing unit, (2) one or more input devices that are not specific to any one program, (3) memory, (4) mass storage devices (such as a disk drive) for storing large amounts of data, and (5) one or more output devices.
The RISC satisfies element 1, but I don’t know how a dedicated RISC can cover the other four, especially where the inventor disclaimed similar systems when amending to add a GENERAL purpose computer. Sounds like he wanted to patent a software program and the only way to do it was to say that it ran on a regular computer rather than a dedicated device.
Uh, the inventor represented himself pro se, and presumably knew the technology (or there would be an even bigger problem with the patent). And I find it implausible that the briefs could somehow managed to confuse Judge Newman — the Ph.D. in Chemistry and experienced patent lawyer, not to mention Federal Circuit judge for 25 years — on basic technology. This is about as far from the two “liberal arts major” lawyers confusing a “liberal arts major” judge situation as you can expect.
It isn’t just Sun that used RISC, Apple did in their PowerPC line (G3,G4, and G5) for a good 10 years. Then again there those who would argue that the Mac is not a real computer, but that is another war best left elsewhere. Even Intel processors are not pure CCISC, but hybrid devices.
I clerked for two appellate judges at the state level. That experience taught me that, in most cases, opinions reflect what is presented to the court in the briefs. I have not read the briefs in this case, but I suspect that a brief made an argument that an RISC is different than a gp computer, and the judges, who are not technical wizards, bought it.
Now that I am practicing, I have been tangentially involved in some patent litigation. In every case, the first chair was some liberal arts major who knew even less about the technology than the court. Put two such attorneys against each other and its no wonder that the courts don’t understand the technology involved.
The main post here focuses exclusively on the CAFC’s claim construction analysis regarding the term “general purpose processor”. Since the court’s analysis of the term “general purpose processor” is technically shaky (see, big hairy rat), even in view of the prosecution history (“dedicated microprocessor unit” is not the same thing as RISC processor), it might have been a good idea to at least mention the second part of the claim construction regarding the term “interactive display input”.
With regard to the “interactive display input”, the parties stipulated a definition requiring “a computer which allows a user to respond to options presented by the computer by selecting from a menu displayed on a screen” (p. 6). From the opinion, it looks like the accused device had no menu driven user input. Hence, game over, more robustly.
‘Page 4 of the opinion states “The court found that it was ‘implausible’ for a RISC microprocessor to be deemed a general purpose computer, for RISC microprocessors have limited functionality”.’
I guess someone forgot to tell Sun Microsystems that a RISC processor could not be a general purpose computer. Sounds like someone got confused about the difference between RISC and ASIC – in which case, what the h*** were they doing splashing around in an intellectual pond that was obviously too deep for them?
Lately, I am not getting links to the cases in these PatO case summaries. Man, it would be sooo much easier to put the link up so we don’t have to close out of PatO and chase down the case. Not that I don’t need the exercise. . .
Babel Boy
Page 4 of the opinion states “The court found that it was ‘implausible’ for a RISC microprocessor to be deemed a general purpose computer, for RISC microprocessors have limited functionality”. Is this not absurd?
Page 4 of the opinion states “The court found that it was ‘implausible’ for a RISC microprocessor to be deemed a general purpose computer, for RISC microprocessors have limited functionality”. Is this not absurd?
It’s obvious the author meant “pro se”. This is an excellent blog, so let’s keep our comments on point.
Sorry Snitty,
Only Sonny can represent himself pro “Bono”
Representing himself pro bono, that’s quite the feat. Is he providing free legal counsel for himself?
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