By Dennis Crouch
In Lighting Ballast, the en banc Federal Circuit once again held that claim construction should be seen as a question of law that is reviewed de novo on appeal. In the end, this is probably a good result for the patent system – but not for any of the reasons given by the court.
Over the years, the high-rate of claim construction reversal has repeatedly been highlighted as a symbolic of problems with the patent system. Some thought that the problem lay in district court failures to conduct proper analyses, but over time, most of us have come to reject that explanation. Rather, my view is that claim construction is a difficult task and it is not surprising that, out of the myriad possible definitions that a term could be given, two courts would disagree on which definition is best. I actually see this issue pointing a spotlight toward a major problem with the patent system – perhaps the largest problem – that patents often fail to provide clear notice of what is and what is not covered by the various claims.
Deference would have only masked the problem. The reversal rate would have gone down and from that high level that traditional off-kilter signal would be missing. The real difference with deference would be that patent scope would be understood as of the district court decision rather than having to wait for an appeal. That may help some litigants, but still it is a fairly ridiculous patent system where the scope of claims are not well understood until determined by a judge.
Rather, the problem has to be addressed by the US Patent Office with a renewed focus on clarity of claim scope. President Obama’s administration has recognized this with their call to “ensure claims are clear and can be consistently enforced.” The rub is that the administration’s approach of (1) encouraging glossaries and (2) providing additional examiner training are unlikely to have any meaningful impact. The good thing then is that the Federal Circuit’s continued power means that these systemic problems won’t be buried.
Here are two ideas, either one of which would seem to solve the problem:
1) Give the claims their broadest reasonable interpretation;
or
2) Since the claims are allowed, interpret them as broadly as possible while avoiding the prior art.
The second one has the advantage of agreeing with the examiner’s interpretation (and the examiner is more of an expert that any court would be) and avoids having to deal with the validity question.
Les, I agree that the examiner’s interpretation when he allowed the claims is highly pertinent. I have seen it be decisive in court.
BRI is what happens earlier. The claims in the interim might be clarified by argument or affidavit, so that the claims as allowed might be different than BRI.
So now to figure out infringement, you have to first conduct a prior art search? This solution goes the exact opposite way from what Prof. Crouch is talking about.
In George Orwell’s 1984 the purpose of the language NEWSPEAK was to limit thought processes and amongst other things avoid ambiguity or multiple meanings. As explained in Wikipedia:
“The purpose of Newspeak was not only to provide a medium of expression for the world-view and mental habits proper to the devotees of IngSoc, but to make all other modes of thought impossible. Its vocabulary was so constructed as to give exact and often very subtle expression to every meaning that a Party member could properly wish to express, while excluding all other meaning and also the possibility of arriving at them by indirect methods. This was done partly by the invention of new words, but chiefly by eliminating undesirable words and stripping such words as remained of unorthodox meanings, and so far as possible of all secondary meaning whatever.”
Are you advocating that we speak newspeak Paul?
The context missing is “proper” and an authoritarian control.
Hmmm, much like those who would wish to emulate Jane and the views on ‘personal property.’
Go figure.
We have to stop wasting time and resources on patent applications that will never be asserted or that do not protect products. Some propose a registration system. A registration system still results in an issued patent, but of dubious scope.
May I suggest this, that we condition examination upon any of the following:
1) A payment of a very large fee; or
2) An affidavit showing a product marked with the application number; or
3) The owner has a product covered by the claims of the application and there is an infringement of the same claims.
“We have to stop wasting time and resources on patent applications that will never be asserted or that do not protect products”
Completely the wrong thought and one that ignores the nature of innovation.
Innovation is not linear and the purpose of the patent system is to gather all types of innovation – regardless of assertion/products.
Another loser post, Ned.
What has that to do with not wasting resources actually examining patent applications that are not protecting products or which will never be asserted?
You wrongly assume that the resources are ‘wasted.’
Truth be told, they are not.
Innovation is not so limited to those items actually made or to patents actually asserted.
You are operating under a false pretense.
anon, but you do not connect the dots.
What is the relationship between innovation and examination?
Examination – done correctly – delineates what is truly worthy of being called invention – and that is the beginning of innovation.
As to connected dots, Ned – your dots are not only not connected, but in complete disarray.
“Examination – done correctly – delineates what is truly worthy of being called invention – and that is the beginning of innovation.”
In other words anon and his fellow patent maximalist religion adherents have redefined “innovation” (“invention” too!) to have a special definition, known generally only to themselves, to fit their own agenda. Under their agenda innovations/inventions that occur “in the wild” so to speak are not actually innovations/inventions until officially vetted as being such.
The sooner you learn this ned the less energy you’ll need to expend trying to understand their nonsensical statements.
6 errs badly with “redefined “innovation” (“invention” too!) to have a special definition, known generally only to themselves, to fit their own agenda. ”
LOL – tell me 6, what is the purpose of the patent office? Why do you think it grants patents?
“LOL – tell me 6, what is the purpose of the patent office?”
To administer the patent entitlement program.
“Why do you think it grants patents?”
What I “think” about it doesn’t matter one whit. It grants patents to promote the progress of the useful arts through public dissemination of information related thereto.
And neither of those things above have anything to do with your and some other folks having redefining of definitions of words to fit your agenda and pseudo religious beliefs.
It is truly amazing how daft you can be 6. How blind your ‘belief’ system causes you to be.
The answer is full employment for patent prosecutors.
“Anonymous’ – what is the question that your answer of “The answer is full employment for patent prosecutors.” goes to?
After I clear away the innuendo, there is not enough substance left to make anything intelligent of your post.
““Anonymous’ – what is the question that your answer of “The answer is full employment for patent prosecutors.” goes to?”
He means that such is what you think, subjectively, is the purpose of the patent office. aka to provide for examination so that patent attorneys will have something to do.
Examination – done correctly – delineates what is truly worthy of being called invention – and that is the beginning of innovation.
Uh … most (nearly all?) innovation happens completely divorced from the patent system, for very good reasons.
But maybe you’ve got some special definition of “innovation” you’d like to share with us. Based on your comments, I will bet that the definition is either circular, incoherent, or somehow impossible for you to articulate.
Give it a shot Malcom: why do we have a patent system?
“Give it a shot Malcom: why do we have a patent system?”
Why don’t you give it a shot ta rdface?
6,
I have already given it a shot – and even though you say you disagree with me, your answer at 1:09 pm actually shows that you agree with me. You simply don’t see it because of your belief system blinding you.
“Examination – done correctly – delineates what is truly worthy of being called invention – and that is the beginning of innovation.”
^ that is your shot? Lulzlulzlulz.
Yet again, no answers from Malcolm to a direct and simple question.
This time “Give it a shot Malcolm: why do we have a patent system?” goes unanswered.
‘Shockers.’
What has that to do with not wasting resources actually examining patent applications that are not protecting products or which will never be asserted?
Those “resources” are bought and paid for.
Good point.
>>>Innovation is not linear and the purpose of the patent system is to gather all types of innovation – regardless of assertion/products.<<
Naw, the patent system has been instructed to disregard any novel and unobvious development that is useful in this world that gets subjectively designated to be flushed down the "ineligible subject matter" sewer, as recently redefined……
Not quite. “Ineligible subject matter” has not been “recently redefined” because the 101 cases now at hand are predicated on a steroidal version of the “abstract idea” doctrine, which NEVER has been defined, much less “redefined” by anyone. This is why it is such a wonderful jurisprudential tool for a modern age of governance by fiat and whimsy, which perceptively recognizes the nuisance posed by consistent legal standards and creatively dispenses with them.
What is interesting is that various worthies on this site who routinely disparage others for harboring “pseudo religious beliefs” and other amiable salutations also routinely express fealty to the tautology (and hence the pseudo-religion) of the abstract idea doctrine. But again, this seems inconsistent and contradictory only to those who are so backward they fail to comprehend that to see what is in a law, you have to pass it, and in discovering its less convenient provisions, transmogrify it by the expedient of executive fiat.
Just as the President knows a bad provision in an act of Congress when he sees it, SCOTUS knows an abstract idea when they see it. In both cases the percipience is ad hoc but declared to the rest of us only post hoc, for our faithful acceptance and grateful appreciation.
Well said Tourbillion.
+1,000,000,000
Thanks, and just finished the PTAB “CRS” opinion “6” kindly linked me to. Classic 101. Start with describing the various stars in the abstract idea constellation. Then declare that the abstract idea telescope reveals the claims at issue to be closer to Orion than to Virgo. Zero meaningful legal analysis beyond a tarted-up kind of astrology.
Zero meaningful legal analysis beyond a tarted-up kind of astrology.
Welcome to the PTAB.
Further note that the PTAB is more than willing to not apply stare decisis and make things up all on its own.
Of course, this too should be noted in a slightly different context of the Founding Fathers warnings against a blurring of the separation of powers – the article I court – fully under control of the executive agency (normally I would say Director of the USPTO – but with that position remaining vacant for so ungodly a length of time – clearly some other shadow person is pulling the strings) coupled with that same agency so willing to write its own laws, execute its own laws and ‘judge‘ the meaning of any laws unto itself, a certain Federalist paper screams for attention.
“clearly some other shadow person is pulling the strings”
Me 😉
Tour, I would argue that there was some ambiguity in the legal basis for Benson, Flook and Diehr, but one can see by comparing the facts in the cases that Benson and Flook ended in numbers that were not applied to any use; but in contrast, the Diehr numbers were used. There is very little distinguish Flook and Diehr except this. Observe, that the requirement of limitation to a useful application was laid down in Morse to distinguish the patentable from the principle in the abstract.
In Bilski, Rader argued that the claims were abstract without clearly explaining why they were abstract. The majority in the Supreme Court adopted this approach, never explaining its reasoning. They could have, because the roadmap laid down by Benson, Flook and Diehr seemed clear. So they apparently intended to leave the door open to interpretations of “abstract,” that may not be consistent with Benson, Flook and Diehr.
Many thought the problem with the Bilski claims was not that they ended in a number, but because the claims were not limited to being implemented in software on a computer.
Thus on remand there was chaos that has to be resolved again by the Supreme Court. But, in truth, the chaos was the result of an indefinite definition, or by other lack of any definition, of what the Bilski court meant by the term “abstract.”
Let me remind you again Ned not to conflate the utility aspect of 101 with the statutory category aspect of 101.
Registration system ? No, ridiculous.
(Not that in some art units we don’t already have that….)
But, a DELAY for EXAM and separate from FILING FEE ?
Great, I’ll take that system. I’ll go for early publication, maybe republish new claims. When the economist experts have counted enough $$ to make it worthwhile, I will polish up a set of claims that read as precisely as possible on the target’s product or process. File for Exam. On grant, file with courthouse and send out process servers on Wednesday morning. No worries about continuations, thus we can lay off a few Examiner’s who won’t have to worry about those, or the majority of cases where no Request for Exam will ever be filed. The Canadian system works as far as extending the date after filing, to make the necessary exam request…. …but prompt exam (rather than 3+ years in Canada) would be necessary to make such as system work in the US….
Blindman, glad for your support for deferred examination. There are multiple good reasons for doing so and you just reminded us all that delaying allows one to craft the claims better in view of developments in the market so as to avoid the need for continuations.
It also allows one to determine whether the patent is valuable at all, and to simply let it go if it turns out to be worthless.
Ned,
I will disagree with you as to continuations.
First, there is the no-new-matter rule.
Second, most people I know that draft applications use a Claim-Drawing-Specification reiteration style that negates what you are attempting to do.
Third, the aspect of keeping a continuation alive comes part and parcel with having a granted patent to also enforce. The notion of ‘deferred examination’ completely misses this.
anon, it is amazing how having a competitors product before you as you draft claims focus’s one’s attention on the problem of unnecessary limitations.
Whether or not having a competitor’s product in front of you assist you in claim drafting has nothing to do with the three points I raised as 7.2.1.1.
Another day at the Merry-Go-Round.
Ned makes an inane post and disappears.
I post a challenge that goes unanswered in any meaningful way.
Malcolm jumps in with a some vacuous dust-kicking, joined full force by the lemming 6, exhibiting his typical character suicide tendencies.
No answers to the points raised will be offered and inevitably the same CRP will be posted yet again.
C’est La Vie.
Worth repeating: No answers to the points raised will be offered and inevitably the same CRP will be posted yet again.
When the only tools available to define the concept are words, no claim can ever be 100% “clear” as to what the inventive concept is. No claim ever issued by the USPTO was 100% clear.
As Chris Christie illustrates with traffic management, it is easier to bring chaos than it is to bring order. So it is with patent litigators, easier to clog the meaning of a claim than clear it.
Those scriveners who wilfully write ambiguous claims should see their claims fail the 112 test. Those who strive for clarity, but fail to achieve it to a level of 100% are entitled to a fair treatment from a court which, in the words of Judge Lourie in the support to the majority judgement, wrote that, when enquiring what a particular claim term means, the relevant enquiry should be:
….what the Inventor understood the term to mean.
To a British reader, that is an echo of the UK Supreme Court way to construe claims. The court must “don the mantle” of the PHOSITA, then read the patent and using what the EPO calls “synthetical propensity” ask itself, as the PHOSITA, what was the inventor using the language of the claim to mean.
This process of claim construction has the merit, that inventors, engineers, scientists and business people can see that it makes sense, and that it puts patent law back into the real world of technology and business, thereby restoring their faith in the patent system.
MaxDrei, have you looked at the Nautilus v. Biosig case now up to the supreme court? The claim was to old structure and the novelty was alleged to be in a function. The Feds said that one of ordinary skill would know how to adjust the prior art structure to achieve the function. However, the spec itself said nothing on this topic, not what should be adjusted or how. Nothing.
How would such a claim fair in England?
link to scotusblog.com
Ned I’ll have a look at Nautilus, but not tonight.
In Europe, post-issue, clarity is not available to attack validity. But there is often a squeeze between obviousness and enablement. Thus, saying that the skilled needs no instructions is grist to the mill of the obviousness attack and, in Europe, validity attacks succeed as soon as they get over the “balance of probability”.
But were you perhaps looking for something else from me?
No Max, I was genuinely curious at how you would handle the problem of Nautilus.
Do you have a concept of enablement? Some would thing that that is the problem with Nautilus.
Enablement under the EPC? Yes Ned. Article 83. See Link:
link to epo.org
Enablement is hard for PTO Examiners to challenge, ex parte, for they have no lab facilities.
Insufficiency under Art 83 EPC is a ground of invalidity and of opposition at the EPO. The petitioner (or opponent) carries the burden of proof. The standard is the balance of probability. Of course, it costs nothing to assert and to argue insufficiency. To prove it though, that is typically not easy.
Thus it is, that also in Europe invalid claims a) get to issue and b) survive attacks on their validity under Art 83 EPC.
“So, a sensible contruction of the term could be to require simply the two electrodes of each couple to be placed apart from each other, nothing more, nothing less.”
Yes, for that part of the term that is completely sensible. Now keep reading and you’ll note the functional term that supposedly modifies that spaced relationship to where it must be a special spaced relationship. Then note how the supposed claim construction morphed over time. It’s a pretty bizarre case. But it’s par for the course for functionally claimed garbage that the boundaries of shift with the function rather than with the structure claimed, and is a poster child for reform.
I kept reading, and I did find the two “whereby” clauses, which are in all likelihood the functional terms that you are referring to, and I can imagine how construing this sort of features can be problematic. What strikes me as odd is that in the decision under appeal the contested term was “spaced relationship”, which I find rather harmless for the reasons I illustrated above, and not the two additional “whereby” limitations.
Coming now to these two “whereby” clauses, they clearly specify at least a further limitation for the “spaced relationship”, namely that each couple of electrodes is arranged to be covered by one hand and therefore that there is an upper limit to the distance between them. This upper limit, although not expressed in absolute terms, is such that a skilled person could correctly assess it in the vast majority of cases, so I guess that it would be considered OK by most courts.
The rest of the “whereby” clauses, insofar they concern the kind of signals that are picked up by the electrodes, is a classical example of “result to be achieved” that it is so strongly disliked on this side of the Atlantic, because they claim an effect and not the features that bring about said effect. If we had the same standard for assessing clarity (which, at least as long as the Fed. Cir. decision stands, apparently it is not the case) I agree that the two features would fail it. However, I think that at least the first question posed to the SC does not really reflect the issues raised by this case: rather than presenting an insoluble ambiguity, it seems to me that the claim basically fails to define the invention (a heart rate monitor) in terms of its features.
Well said LBZ.
“What strikes me as odd is that in the decision under appeal the contested term was “spaced relationship”, which I find rather harmless for the reasons I illustrated above, and not the two additional “whereby” limitations.”
You seem to not be understanding that they’re only arguing over “spaced relationship” because of the supposed modification thereof. Or at least your post seems to indicate such.
“Coming now to these two “whereby” clauses, they clearly specify at least a further limitation for the “spaced relationship”, namely that each couple of electrodes is arranged to be covered by one hand and therefore that there is an upper limit to the distance between them. This upper limit, although not expressed in absolute terms, is such that a skilled person could correctly assess it in the vast majority of cases, so I guess that it would be considered OK by most courts.”
Yeah no arguments there I don’t believe.
“The rest of the “whereby” clauses, insofar they concern the kind of signals that are picked up by the electrodes, is a classical example of “result to be achieved” that it is so strongly disliked on this side of the Atlantic, because they claim an effect and not the features that bring about said effect. If we had the same standard for assessing clarity (which, at least as long as the Fed. Cir. decision stands, apparently it is not the case) I agree that the two features would fail it. However, I think that at least the first question posed to the SC does not really reflect the issues raised by this case: rather than presenting an insoluble ambiguity, it seems to me that the claim basically fails to define the invention (a heart rate monitor) in terms of its features.”
Exactly. Poster child for reform of the insoluably ambiguous standard re functional (in this case i.e. “result”) language.
“rather than presenting an insoluble ambiguity,”
Be sure to read the prosecution history before you pass such judgement. At first blush, sure it seems fine.
L.B.Z., The rest of the “whereby” clauses, insofar they concern the kind of signals that are picked up by the electrodes, is a classical example of “result to be achieved” that it is so strongly disliked on this side of the Atlantic, because they claim an effect and not the features that bring about said effect. If we had the same standard for assessing clarity (which, at least as long as the Fed. Cir. decision stands, apparently it is not the case) I agree that the two features would fail it. However, I think that at least the first question posed to the SC does not really reflect the issues raised by this case: rather than presenting an insoluble ambiguity, it seems to me that the claim basically fails to define the invention (a heart rate monitor) in terms of its features.
L.B.Z., I think you hit the nail on the head. This is a classic example of claiming a result. Since 1952, there has been tremendous controversy in the United States as whether this is a problem under section 112, paragraph 2, or under section 112, paragraph 1. Clearly, the Federal Circuit in this case treated the result as easy to achieve by anybody of ordinary skill in the art, effectively saying that there was no section 112 paragraph, 1 problem, even while the question presented was under section 112, paragraph 2.
From a quick perusal of the decision you linked, it seems that the whole point of contention was the expression “spaced relationship” for the first (second) live electrode and the first (second) common electrode, which appears, for instance, in claim 1 (see the features: “a [first/second] live electrode and a [first/second] common electrode mounted on said [first/second] half in spaced relationship with each other”).
I don’t know what an English judge would decide, but it is true that if the patent had been an European patent, it couldn’t have been revoked for lack of clarity of the granted text, so some kind of claim construction should have been attempted by the court.
In the case at hand, a glance to the first paragraphs of the description reveals the passages “A first common electrode 11, which also comprises a ring member of a conductive material and which is also force-fit onto the cylindrical member, is also disposed on the first half and spaced from the first live electrode 9” and “a second common electrode, also comprising a ring member of a conductive material force-fit onto the cylindrical member and, once again, spaced from the second live electrode 13”. So, a sensible contruction of the term could be to require simply the two electrodes of each couple to be placed apart from each other, nothing more, nothing less. As placing electrodes does not seem to me to involve any specific skill, I think the feature as such does not present enablement issues. I would also say that I don’t see how the feature could be regarded as functional.
In more general terms, once the interpretations which do not make sense are ruled out, those which remain that make sense in the context of the patent should be considered to be part of the claim scope; in other words, this sort of lack of clarity ends up working against the patent proprietor in terms of novelty, because if the unclear feature “X” may be reasonably interpreted as either “A” or “B”, and the ambiguity cannot be resolved, then any document disclosing either “A” or “B” anticipates “X”.
LBZ, but you have to understand that the prior art structure and circuits were identical. During reexamination, the effect of that structure, the claimed balancing or nullification of certain kinds of signal was what turned out to be new. Unless the claim was construed to include some adjustment of the spacing relationship to effect this function, then everything was old.
But the specification did not say what to adjust to balance the signals. There was no link to any spacing relationship and the balancing of signal. Nothing.
Ned, I don’t see how your concerns have anything to do with clarity of the claims. I haven’t had a look at the re-examination results, but taking at face value what you said, then the patent should have been invalidated for not being novel (“everything was old”) or possibly obvious. The Fed. Cir. had instead to examine a decision whereby the patent had been invalidated for being indefinite, they found the feature in question clear, and vacated.
In my opinion, the term “spaced reltionship” as such does not indicate any predefinite spatial relationship by the two electrodes; at most, any further limitation comes from the other features of the claim, which require each couple of electrodes to be covered by one hand, thereby posing some upper limit to how far apart they can be. As for whether this is meaningful to patentability, I can hardly say without having a look to the prior art cited against it, but it’s definitely not an issue that makes the claim unintelligible. For sure, if someone is able to squeeze from those two words some sort of magical relationship, then you have a wonky claim construction; I don’t believe, however, that you can improve the situation by tightening the standard for indefiniteness (whether it *would* be a good idea, in general terms, to do so is another question) .
L.B.Z., yes you might want to read the re-examination history because novelty did depend upon a construction of spaced relationship that allowed the new function of balancing certain signals so that they may be removed in a differential amplifier. In other words, the claims were not claiming any spaced relationship, but a particular spaced relationship.
Divorced from this context, of course relationship, “spaced relationship” could mean any space. But if so, the claims read on the prior art. Thus the patent owner attempted a construction to read into spaced relationship the need to adjust the spacing to achieve the allegedly novel function.
But I would agree, the claims never should have been allowed because there was no clear nexus between the term and the function, either in the claims or in the specification.
Then we also have the problem of inherency.
Ned’s comment of “Then we also have the problem of inherency.” calls to mind that the notion of ‘inherency’ of any old computer – any UNCHANGED old computer 6 – screams volumes for the patent eligibility of software patents.
Ned, I will remind you also that once again you have run away from the legal logic of the Nazomi case. For your beloved FACT, use the fact that software is equivalent to firmware and is equivalent to hardware – as clearly done in the Nazomi case.
Stop running away.
Here, my reading glasses work for me… What? they do not work for you?
Oh yeah – US law is different than EP law.
>>>When the only tools available to define the concept are words, no claim can ever be 100% “clear” as to what the inventive concept is. No claim ever issued by the USPTO was 100% clear.<<<
The last sentence seems a bit overbroad…. …in that there in quite a number of "molecule" or other chemical structure claims that are 100% defined.
However the elements of patent claims are much like dominos…. you know that this element has 6's on one end and 2's on the other… and the drafter plays it one way, thinking about a particular use or function. Then, and someone else finds the technique useful for another – usually later developed situation – makes up a different set of words so his description is not clearly a copy of the words of the claim. The patentee then says, my dominos read on those words. yes they do…. …no they don't…. There will never be a perfect answer for preventing that dispute. It will inevitably happen. The PTO shouldn't worry about that during examination.
The courts will look at the domino pieces – but it will remain their job, and not that of the patent office, to worry about how many different ways to let the patentee play the dominos they were granted… ..or if the hood and mask worn by the accused actually hides the body of an infringer… ..in spite of their carefully chosen alternate vocabulary….
Thanks for those thoughts, Blindman, which I take as support for my assertions, despite your saying they are overbroad.
As you remind us, the reason claims have to be “clear” (Europe) or “definite” (the USA) is so that folks know whether they are operating inside or outside the scope of protection afforded by the claim. As you point out, the courts will always have to adjudicate between two opposed parties who, on that issue, argue the opposite. For me “always” implies “never clear”.
Seldom will the courts be called upon to decide whether molecule X infringes a claim directed to molecule X. More likely the claim will be directed to molecule X and substituents, and then it will turn out that X, per se, is old or obvious. Then the squeeze is on, to find a definite claim that is not only infringed but also not invalid. That’s when the lawyers can start having fun.
I think that claim construction in the USA is so hard to do because of the assymmetry between scope and validity. When validity is protected by the “clear and convincing” standard, and courts are striving for justice between the parties but are prevented from holding the asserted claim invalid, strained constructions ensue which, in turn, strain the jurisprudence as a whole.
Elsewhere in the world, justice is done by the simple expedient of finding the asserted claim invalid (until such time as its owner amends out of the difficulty and into a wording that is both valid and infringed). That brings clarity in its wake, and a simplification of the task of construing the claim.
I have always found your desire to denigrate the C&C standard to be bizarre and itself to generate “strained constructions” of all types of law that are simply illogical.
But you never want to discuss any of the points that I bring up, always taking umbrage at the fact that I bring up points against your soapboxing.
Here, for example, you claim clarity as a function of easily finding (or not) validity. But that is nonsense. Clarity is the result of the process – not the degree to which the result of the process must be weighed against to reach a decision. The standard which you so evidently despise has no such ‘effect’ on clarity as you wish to portray.
One of my favorite Einstein quotes:
“Everything should be made as simple as possible, but not simpler”
Your desire and reliance on “but it is simpler” is not sustainable and falls to the error of violating Einstein’s second half of the quote.
I somewhat agree with you D. But that doesn’t really excuse the failure of the courts to recognize in their procedure the fundamental nature of claim construction. I kind of hope the USSC gets involved.
Nautilus v. Biosig, at the supreme court, involves indefinite claims where the structure claimed was old and the function claimed was alleged to be novel.
But, of course, if the structure is the same, the function is assumed to be inherent.
And that sword cuts both ways Ned – See Nazomi. See Alappat.
anon, if you could, please explain Nazomi to me, and to all of us. What it holds in unclear because it was unclear what hardware was being claimed.
As to Alappat, what are the facts of the case again?
Ned – a million times now you do NOT need to concern yourself with a factual question like “hardware” to understand the legal logic of the Nazomi case.
You really do need to come to grips with that legal logic. Once you do so, then you can take your time and revisit the archives of our many discussions on Alappat and you may finally understand what I have told you so many many many times now.
anon, one cannot understand what a case held unless one knows the facts. Really.
Ned,
And one cannot understand – even if one has the facts – if one cannot FIRST understand the legal logic that facts are to be applied to.
You (purposefully it seems) refuse to see the legal logic because you are striving so hard to see “hardware” claimed and you are quite missing the FACT (as I have so often reminded you) that software is equivalent to firmware and is equivalent to hardware.
You put blinders on by failing to understand the FACT of that equivalence and what that equivalence means under the law.