By Dennis Crouch
Lighting Ballast Control v. Philips Electronics (Fed. Cir. 2013) on petition for en banc rehearing
The patentee in this case has now filed its brief requesting that the court sit en banc and overturn its 15-years-old decision, Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448 (Fed. Cir. 1998) (en banc). In Cybor, the Federal Circuit held that district court claim construction should be given no deference on appeal, facts-be-damned.
The major claim construction issue in the case turns on whether a particular claim phrase should be interpreted under 35 U.S.C. 112¶6. The asserted claim requires a "voltage source means providing a constant or variable magnitude DC voltage between the DC input terminals." U.S. Patent No. 5,436,529. In preparing for a claim construction decision, the district court was presented with evidence on the technology in question and the level of ordinary skill in the art and then made a number of seemingly factual conclusions — The most pertinent conclusion being that a person of skill in the art would interpret the disputed term as covering a class of structures that include "a rectifier, or structure to rectify the AC power line into a DC voltage." Once that factual conclusion was reached, it was easy for the district court to make its claim construction decision that the term was not limited by 112¶6. The district court particularly held that interpreting the term as a means-plus-function limitation would have "exalted form over substance and disregarded the knowledge of a person of ordinary skill in the art." Based upon district court's construction, a jury sided with the patentee in finding infringement.
On appeal, the Federal Circuit reversed that decision – following Cybor and its progeny in holding that the entire claim construction process is reviewed de novo. On de novo review, the appellate panel found that the better interpretation of the claims limited their scope to that available under 112¶6. Further, because the asserted patent did not spell-out how to build a voltage source, the Federal Circuit ruled that the claim was invalid as indefinite.
In its decision, the Federal Circuit held that the lower court decision "concerned only questions of law." Everyone understands that conclusion is wrong but that it a required constructive conclusion based upon Federal Circuit precedent. Of course, the Supreme Court has written on the topic too and found claim construction a "mongrel practice" involving a mixture of fact and law. Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996) (holding for policy reasons that judges, not juries, should decide claim construction).
Why is this important for Lighting Ballast? If the Federal Circuit is able to recognize that the court made some factual conclusions then it will likely give some deference to those conclusions on appeal. And, in this case, that deference may be sufficient to flip the decision back in favor of the patentee.
Read the petition. Download CyborPetition
Briefs in support are apparently due by February 15, 2013. Andrew Dhuey is representing the patentee on appeal.
I will take your post as constructive criticism.
Anon, a word of friendly counsel: relax.
You’ve been going nuts on this board again, and you seem to just be oppositionally defiant in many of your posts–for instance, it was you, not I, who by implication included me in the “anti-patent crowd”.
I understand your frustration with MM in particular, but in trying to meet his posting with your own, your style has degenerated into something that is no longer interesting to engage.
So try to not let MM rule your posting, and come back to the commons.
Have you ever hear the phrase, “The enemy of greatness is ‘good enough’ ?”
Whether or not you are “anti-patent” isn’t quite the point. More to that point is that the logic you embrace has the same downfalls as the logic they embrace. “Cost” and “uncertainty” are your ill-defined boogeymen that drive an absolute decision without proper mooring or understanding.
Like language itself, this stuff simply is not black and white, and is not conducive to your hard and fast edicts, especially when the answer to the question of why is “just because.”
“The claim should be absolutely tight. It’s not too much to ask–in fact, it is the minimum.”
This statement itself fails the tightness you would require.
I leave it to you to figure out why.
Anon–
You can relax, I’m not anti-patent.
I am for more certainty and predictability, however.
You have failed to establish that it is a sound policy, as you have provided no cost-to-reduced-benefit analysis. Merely ‘reducing cost’ is simply not good enough. The entire premise of the anti-patent movement is that patents create ‘a cost.’ Sorry, but your reply falls short. Far short.
I already “get” your desire.
That is not enough.
Alun–
I respectfully disagree. We have professional patent draftspersons, and no claim language should ever be adjudged as superfluous, else it shouldn’t be in the claim in the first place.
The claim should be absolutely tight. It’s not too much to ask–in fact, it is the minimum.
Anon–
One need not belong to the “infringer” class to benefit from this.
In fact, the major benefit comes in greater efficiency and certainty in adjudging those actions that could land you in that class.
It’s a sound policy, especially as part of a larger revised integrated policy.
Patent disputes often come down to claim construction in my experience. Anything that clears the brush, would be a good thing. The tools that allow judges to give effect to their “gut feelings” should be eliminated to the extent that it is efficient to do so–and this change would be very efficient IMO.
btw, you make a good point on the “dispute” versus litigation – kudos to you.
“it invariably results in increased costs and uncertainty for accused infringers.”
Sorry – I am not a member of the Infingers’ Rights club. The boogeyman of “but that surely increases costs” is just too nebulous for me, and the fact that patent claims as a whole must be evaluated deflates your “everything MUST be limiting” desire. Without more, all it is is a desire, and no matter how much spin you attempt, it is not law – and it is not law for a reason.
I will grant you that a brightline rule would in fact provide clarity, but you have not established (at all) that is particular area needs that clarity – at least to the extent that I would have to sacrifice my flexibility for that “reduced cost.”
I remain completely unpersuaded by your view.
Anon–
I chose the word “dispute” specifically to cover a range of situations broader than litigation, and a great deal more patents are “disputed” than are ever litigated.
I have no data on how many are disputed, and it would be difficult data to gather. Not only would patent owners need to be surveyed, but also anybody who ever had a non-infringement opinion prepared on a patent would also need to be first identified, and then surveyed. Difficult, to say the least.
(Hey Dennis, that would be an interesting metric, no? Maybe you can apply some research resources to it, and maybe narrow the question to one that is somewhat answerable.)
But returning to the point, although the current preamble rule permits flexibility for patentees, it invariably results in increased costs and uncertainty for accused infringers.
I have refrained from posting on the design patent thread, as it represented a lot of work–but one of the critical, and overlooked, parts of a single design patent claim is the so-called “preamble”.
Briefly, it must be remembered that a design patent is for the ornamental appearance of a thing–either a design applied to a thing, or the design of the form of a thing, or a combination of the two.
But the fact that there must be a THING is key. That “thing” is disclosed textually in the preamble, and graphically in the drawings, usually as so-called “environmental information” or “environmental lines”, and in current design patent understanding, “forms no part of the claims”–i.e. is not limiting.
Rubbish. It absolutely shows the relationship of the design to the article that is designed, or to which the design is applied, and thereby distinctly points out the invention–without the so-called “environmental lines”, without information about the article, the claim would be indistinct. The environmental lines are necessary to show how the design is applied to the article, and is therefore limiting.
A fortiori, the textual description of the article in the preamble should always be limiting in the case of a single-claim design patent. I don’t want to go too far down this road, but I fear I already have.
Design patents are one example of specific benefit of always considering the preamble as limiting.
It is the single most succinct statement of what the applicant regards as “the invention”, and is (not “can be”, but IS) invaluable in a multitude of otherwise difficult situations–e.g. Newman’s Bilski dissent: “It is a “process,” set out in successive steps, for obtaining and analyzing information and carrying out a series of commercial transactions for the purpose of “managing the consumption risk costs of a commodity sold by a commodity provider at a fixed price.” Claim 1, preamble.”
Thanks IBP.
It’s not a bad suggestion, but I kind of like the flexibility of the current state.
Do you have any real data supporting the contention that this is a “costly” item in patent disputes? I tend to think that the cost involved with this single aspect is basically negligible, but would be open to any persuasive factual basis you could provide. After all, the entire population of active patents even seeing litigation runs well under 2%, so the fraction of that fraction must be on the order of, what, about 0.0002% of the total population? – and that’s being extremely generous.
Anon–
Yes, it certainly has no current legal effect.
But it is a rule suggestion to support a policy of increased certainty and lowered costs in patent dispute resolution.
Still an important reason, MM.
So where is my page cite?
And my popcorn?
LOL – meaningless QQ.
I am so over it. Now if we can get rid of the canards, we can talk about real law.
(Yeah, I know, that’s not something you understand).
LOL law understanding FAIL
If – as is the case – a claim, perfectly valid, does not even need your version of “point of novelty,” there is in fact no reason to contemplate such.
Different claims present different issues. The issues can be discussed, and in nearly every case, should be discussed using different words appropriate to the specific issue.
Some claims have an easily ascertainable point of novelty. There’s no law against discussing the point of novelty of such a claim. Anybody can do it, including a judge hearing a patent case.
So get over it.
“And, as always, I will repeat my mantra that THE PREAMBLE SHOULD ALWAYS BE CONSIDERED LIMITING.”
Nice mantra. Is that like an opinion or an @$$hxxe? (since anyone can have one and they don’t mean diddly for legal purposes)
That's the basic idea. In Markman, the Supreme Court said that they didn't trust a jury to make the decision and the decision to district court judges. In Cybor, the Federal Circuit upped the ante and said that they didn't trust district courts and claimed de novo review for itself.
Joe–
“it is clear in hindsight that the “voltage source means providing a constant or variable magnitude DC voltage between the DC input terminals” should have been left out of the claim body and simply stated as a “DC voltage source” in the preamble.”
Given current law, this would not be appropriate, as the preamble could still be limiting if required to breathe life or meaning or whatever into the claims.
The better solution would have been to change the drafting entirely to eliminate any reference at all to the voltage source, if it imparted no patentability to the claim.
And, as always, I will repeat my mantra that THE PREAMBLE SHOULD ALWAYS BE CONSIDERED LIMITING.
Joe, what if your invention is a DC circuit and your specification shows an input for connectiing to a DC voltage source, but does not actually show the source, but just says, connect it here.
You then claim, as an element, a DC voltage source.
Assume everyone of ordinary skill in the art knows what a DC voltage source is, like they know what ground is.
Is your claim supported in the specification in a manner required by 112, p. 1? Written description and enablement?
I think the purpose of de novo review is to save us from dist ct judges in some obscure corner of the nation who don’t know the difference between a patent and a copyright. Of course, with forum shopping that is less of a problem than it might be.
Here’s a suggestion – if you can buy it in Radio Shack then describing how to make it is superfluous.
A completely descriptive term of art with the word ‘means’ tacked on the end should not be interpreted under 112(6) – that IS exalting form over substance. Voltage source means falls as squarely under that as screw means or hammer means.
Lots of applicants simply won’t pay for revisions before examination.
“Got a cite for that proposition?”
I got a whoooolllle box of ’em:
link to mpep.info
(sigh)
You need to find another host, Conscience, as your posts simply do not associate well with anything I post.
It is quite difficult to segue Sally Fields into the present thread.
Phhhffffft.
I have pulled the carpet from your attempt and you are in free fall.
Why? Was it a magic carpet?
anon,
It is you that refuses all analysis where the novelty in the claim is expressed functionally with respect to Morse and its progeny; or is an LON or abstraction that does not modify any physical step, as in Prometheus. Your resistance ASSUMES that every claim is composed of a combination of old elements.
Speak of agendas.
Then we have “All business methods ARE eligible,” when, of course, you know they are not all eligible.
Then we have, “Programmed computers ARE eligible” when we know that not all are, if any are at all, without more.
And the beat goes on, Anon.
Agenda anyone?
Software is patentable?
There, say it.
Software is patentable.
One more agenda.
Sent from Windows Mail
He likes me! He really likes me! (in best Sally Field tones)
…and apparently on the shoulders…
the lady in the blue dress.
The devil is in the details.
LOL, I will be waiting for the lady in the blue dress.
It should not require the expense of preliminary amendments to file a national stage application.
Of course it should. The law is different here than it is elsewhere. That’s the best possible reason for filing different claims.
Voltage source means is not the same as means.
It depends on what the definition of “means” means.
Where have I heard that before?
I did not. draft. patent applications. with that term.
It should not require the expense of preliminary amendments to file a national stage application. Voltage source means is not the same as means.
And you, Ned, are not very skilled at attempting to kick up dust with a bogus philosophy.
As I said, point in fact:
claims do not even need any elements that would constitute an element as a point of novelty.
If – as is the case – a claim, perfectly valid, does not even need your version of “point of novelty,” there is in fact no reason to contemplate such. All you are doing with trying to infuse (groundlessly) your “point of novelty” discussion is to press your agenda.
That agenda is bogus. I have pulled the carpet from your attempt and you are in free fall.
Time to stop trying to use that canard.
Anon, all I can say is that you are very skilled at missing the point.
“If” the novelty in the claim is X, or Y, or Z, then A, or B, or C happens. This logic does not exclude the possibility that the novelty in the claim is in a combination of old elements.
Sent from Windows Mail
Ned,
No one is doubting that there can be both new and old elements in a claim.
You are building a strawman.
Fact is, a claim can be composed of ALL old elements. When you want to throw around a canard like “point of novelty” and that canard simply does not address claims such as those that have no explicit element as a “point of novelty” it is easy to see that you are attempting a false crutch in order to advance an agenda. This is especially so given the actual reasoning used by the Supreme Court – and tellingly – the very reasoning championed by 101 Integration Expert (the reasoning that applies in all cases, no matter the descriptions of the elements):
Integration.
101, you may want to start “your” analysis with the words of the statute (103). What is the “first” thing one must to conduct a claims as whole analysis? Clue. It has something to do with “new” and “old.”
Sent from Windows Mail
Your recommendation of abolishing copyright is tantamount to curing the patient by k_illing him.
That being said, this policy does have serious flaws, up to and including a constitutional takings issue.
Copyright definitely needs to be abolished:
link to washingtonpost.com
Conscience,
Riddle me this: what does your not answering my retorts imply?
LOL
You forgot your bongo drums. Don’t all circle members retreat to the quip “on a roll” and include bongo drums when they have nothing else to say?
LOL – Better trolling please.
Gossamer insults! Dismantling impropriety! Yeah, we’re on a roll, now!!
And no small surprise, that’s a lot like MM and his “answering ” of questions.
Is that the best trolling you can manage?
Really?
Why not actually respond to my comebacks? Oh wait – I know – you do not because you cannot.
LOL – is there a point in your response?
And my conscience would have gently noted the proper word in the context was “impropriety,”
Please excuse me for missing the prefix, and allow me to properly state the sentence:
Since you (MM) can only [shrug] and stick by what you say even as I dismantle (you and your posts for) the impropriety for doing (exactly what I have pointed out as indicators of poor quality blogging) (the lesson that facts are not there to be spun), you obviously do not have a conscience.
Ignoring the real problem and focusing on me – LOL, where have I seen this before? Funny, I thought the quitter said he was done with that…
No matter – quite in fact, this further proves my point that multiple pseudonyms are not really all that big of a quality issue. The content (and lack thereof from my would-be detractors) is more important to pay attention to.
I love it when I am right (again), and my detractors prove it.
Now, Dr. G__ said something last week … if I start talking to myself … everything is OK … propriety … gossamer … unless I start answering … vacuous … arrows …
The historian in Ned will enjoy the “Story-anti-process” bias. Story was enamored with British patent law – unfortunately, at that time that law did not allow process patents.
Ned’s bias against process patents has also shown itself in his attempts to tie “legitimate” process patents as only those process patents that lead directly to something in one of the other statutory classes – in effect, reducing the status of that fourth statutory category into a sub-category. He has – in fact – on more than one occasion, completely omitted the statutory class of process in his discussions (on purpose or not, it was not clear). Alas, either way, the bias is there.
Does popcorn count as a big word, conscience? It’s got seven letters.
How about “conscience”?
or “mischaracterization”?
oohhhh – that one has 19 letters. And it rings a bell or even two: both what you are attempting to do, and one of the items I have pointed out is done by poor quality, dust-kicking bloggers. Imagine the coincidence!
you forgot “vacuous”
and your quiver.
Hmm… I need another big word or two to impress my legions of admirers… Posit, dissipation, propriety – yes, that’s it! But do I know how to correctly use “propriety” in a sentence? Oh, what the heck…
The only thing ambiguous is your non answer.
Stop trying to be cute and answer the question.
Or just continue ignoring the question like you normally do.
Because what you are doing is not cute or smart
Two reasons:
1) it’s is “style” – it just doesn’t matter how ineffective it is, he won’t let go.
2) the truth – unspun and unvarnished simply destroys his philosophy. What would he do if he were not QQ’ing?
Is there something about “statute” that is ambiguous?
Sent from Windows Mail
anon: “Providing weight” has nothing to do with your attempts to restrict functional claiming Ned.
I really don’t understand Ned’s rationale here.
If I understand it correctly, process claims comprised of a series of actions/steps are functional claims.
So If Ned restricts functional claiming, assuming he means the “means plus” language of claims, what’s to stop the same logic from restricting pure process claims?
After all the statute allows pure process claims.
And as E.G. pointed out in another thread the acts/steps of the process claim is the structure.
So there does not have to be specific devices, machines, materials or apparatus recited in process claims at all.
I think Ned is going to have to explain how he wipes out, or even restricts functional claiming, without effecting or restricting the “process” category itself.
MM: “The claim, as a whole, is the point of novelty.
Got a cite for that proposition?”
sigh :-/
Will you people never cease this canard? Look, it’s not a proposition. It’s the law hat explicitly comes from :
1. Diamond v Diehr.
2. USC 103.
3. Prometheus ( Integration)
I have cut and paste the exact passages from the case law for you many many many times, as well as the statute.
I have provided you the analysis, and application of the law to real claims, many, many,times.
I have invited you to perform “integration analysis” yourself and even provided a link to USPTO Official Guidance.
Yet you don’t apply it.
You don’t dispute it .
and won’t debate it.
You just ignore it!
And then continue asking the same old QUESTION, over, and over again!
So I ask you just like I ask Ned, Why do you do that MM?!?
Why????
Ned: “anon, I wonder just where you got your ideas that the “claim as a whole” requirement of 103 somehow is implicitly written into every other section concerning patentability? ”
It’s not an idea. The Claims as a whole requirement is the law that explicitly comes from :
1. Diamond v Diehr. for 101
2. USC 103. for 103
3. Prometheus ( Integration) for 112, 101, 102, 103
I have cut and paste the exact passages from the case law for you many many many times, as well as the statute.
I have provided you the analysis, and application of the law to real claims, many, many,times.
Yet you don’t dispute it and won’t debate it.
You just ignore it!
And then continue asking the same old QUESTION, over, and over again!
Why do you do that Ned?!?
Why????
MM,
Since you can only [shrug] and stick by what you say even as I dismantle the propriety for doing so (the lesson that facts are not there to be spun), you obviously do not have a conscience. Also, since the poster perpetrating to be my conscience seems intent on defending you from what I say, and is obviously defective in both those defenses and in even coming close to my views, I would not wish to give you that “conscience” even to fill the void that you have.
For the betterment of the blog, and to achieve true quality in posting, I would posit that for intellectually honest posting to ascend, that both you develop a conscience that would do more than [shrug] at posting without spin and that whoever (it really does not matter who you are) is trying to mischaracterize me by falsely attributing reasons for my posts desist. Any low value of humor has already dissipated, and you are only creating a safety trap for yourself in tripping over the arrows that have gathered at your feet. Your arrows have missed the target – and badly so.
MD,
Are you saying that 112 Para 6 is unconstitutional?
Not snark – I seriously do not know how to take your comment.
And something my “conscience” left out – and something I’ve asked for before without getting answers from you – what exactly is my lie? You once again accuse me of lying without being able to point to any lie.
You really shouldn’t make accusations like that without support. Not that that hasn’t stopped you before, but that “style” of yours simply isn’t intellectually honest, nor is it in the least effective as a rhetorical tool (outside of your little circle). It really doesn’t fool anyone with half a brain, no matter how many times you throw it around.
Now I’m thinking that it is the belated tinkering with statute law that does the damage. Shame about the 7th Amendment. Shame that 6th para was ever added to 35 USC 112
Structure is structure. It is not that I must disagree with MM, it is that I must disagree with being wrong (I see why you are confused since the two are so very often the same thing).
“Imply” is a weasel word used to be able to say “I don’t like this particular one, so this one is not structure, as only an implication has been made.
If you were truly my conscience, you would see right through the pedantic semantics. So who are you and why are you trying to mischaracterize my views?
Uh-oh. Tricky situation. Even I don’t want to argue that “configured to” isn’t used to imply structure, but I can’t agree with MM under any circumstances. What to do?
Oh – I know! I’ll insist on the need to define simple words, change the subject, and misspell a big word or two. Yeah, that’s the ticket!
LOL, blame Kappos – it’s all the rage.
“There is absolutely no reason”
You mean, except that is not actually what the law is?
Kinda an important reason.
… or could they have simply misread the voltage source in the spec … as being a “rectumfier?” …
“Providing weight” has nothing to do with your attempts to restrict functional claiming Ned.
“in any way they choose”
You are so full of yourself and your twisted contradictions. At the same time you want “latitude” to use loaded language (and twist facts – which you gleefully maintain as some sort of right), you want me to provide a quote for the basic proposition that claims must be treated as a whole (see for example Prometheus).
Further, you are expressly NOT allowed “any way.” Prof. Crouch has expressly said: No Lying.
Often you go about in violation in blatant ways, and even when not blatant, you twist as much as possible which, for all extents and purposes is lying. Your answer to being called out for such flagrant behavior and poor quality posting? [shrug].
Your attempt at logic of course fails, because you refuse to abide by intellectual honesty and you glory in perversity and spin too reach your philosphical ends.
Sorry, MM, the ends do not jusityf the means, and if my handing you your head time and again is what happens when you go off the deep end, well, I’m ok with that (I told you I wear gloves).
The option is yours for reducing what you don’t like from me: reduce what I don’t like from you. Is it really that hard for you to be intellectually honest, to refrain from your spins, mischaracterizations, strawmen, undeserved insults, and blatant lies?
Really?
Another interesting post.
psst MM – take note,
Your correction was disallowed as you failed to define yourself adequately.
You left the discussion without explaining “imply”
You started kicking up dust without really explaining yourself.
I asked you nicely to try again, but all you could do was spew explitives.
Seems you do that quite often, and when the “going gets tough” and actual answers are needed from you.
Not all that surprising actually, given your propensity for vacuous comments, and your tendency for self-defeating when venturing into substantive matters.
Now where is my popcorn?
Looking at the claims, it is clear in hindsight that the “voltage source means providing a constant or variable magnitude DC voltage between the DC input terminals” should have been left out of the claim body and simply stated as a “DC voltage source” in the preamble. The specification fails to provide any corresponding structure for the “voltage source means . . .”, and as a limitation, it does not even add anything to patentability, which apparently resides in the “control means . . .” limitation. The drafter never gave a thought to providing any supporting structure in the specification since all such circuits operate using a conventional DC source. Any different result if the first limitation had simply left out “means”?
MM has voluntarily admitted that “configured to” is structure.
Hey, creepy a–hole, I already corrected you once. “Configured to” can imply a specific structure one skilled in the art in certain contexts. It can also be pure handwavey horsehockey in other contexts.
You’ve been reminded again of my position to kindly cut your a—hole lying bullsh-t. Thanks.
The claim, as a whole, is the point of novelty.
Got a cite for that proposition?
As has been explained to you previously, adults are allowed to discuss patent claims and analyze them in any way they choose.
We aren’t in court. It’s a comments section of a blog. There are a lot of claims that recite a number of old elements that have zero patentable weight, i.e., they are completely disclosed in the prior art and serve no purpose in the invention other than the purpose disclosed in the prior art. One might ask whether they need to appear in the claim at all. Then there is an element that by itself might be patentworthy and without that crucial element the claim is plainly invalid. That’s the point of novelty.
There is absolutely no reason why that element can not be described as the point of novelty by reasonable adults, and there is no legal or logical reason to allow a patent applicant to claim that key element using functional language. Logically extending the opposite view would permit applicants to claim
“A pharmaceutical comprising a salt and a composition, wherein said composition is capable of treating ovarian cancer in mole rats.”
“A new device allowing helicopters to fly upside-down and backwards in strong winds.”
etc.
Correct me if I am wrong, but the patent apparently disclosed a generic rectifier as a “voltage source …,” but not how to build a such generic rectifier.
But, a generic rectifier is a well known structure.
There is a screw loose in the Feds 112, p. 6, jurisprudence.
anon, I wonder just where you got your ideas that the “claim as a whole” requirement of 103 somehow is implicitly written into every other section concerning patentability? Wouldn’t you agree that the presence of certain words here and their absence there should be accorded at least some weight?
Exactly. For a 7th Amendment jury right “preservation” case, the Supreme Court took a very different rationale – less historical (primarily because claiming is a recent development, particularly peripheral claiming) and much more about who would be the best actor to perform it, judge or jury. Essentially, that was a policy decision. If you’ve only read the Cybor majority’s explanation of Markman, you miss out on a lot of nuances of the opinion and the reasoning.
lulzlulz lulz,
link to youtube.com
Shouldn’t you be out with your gang spray painting equations on the side of buildings? lolololol
We took the English system and improved it, Max. Just like we did with the language.
That’s what preliminary amendments filed upon entry into national stage are for. I don’t think any of this is the Federal Circuit’s fault, though.
Policy grounds. Ah-ha. So that’s it (if I read you right)! Guest, thanks, that is a great help. I always did wonder why Markman had to go to SCOTUS and why, when there, the amici were at such pains to brief SCOTUS exhaustively on the precise role of the jury in early English patent cases.
I had thought up to now that it was relatively simple, that the judge does law and the jury does the facts, and that no other split could be contemplated. Now I know better. Policy grounds.