By Jason Rantanen
This opinion is notable because it involves an emerging split in the Federal Circuit’s jurisprudence on “X plus function” claim language. At the heart of the split is the presumption that arises from the non-use of the word “means” in a claim. Under the majority’s ruling in this case, that burden is extremely difficult to overcome; a holding that furthers the tension with the Federal Circuit’s recent decision in Bosch v. Snap-On.
Williamson v. Citrix Online, LLC (Fed. Cir. 2014) Download Opinion
Panel: Moore,* Linn (author), Reyna (dissenting)
The patent in this case is part of the bankruptcy estate of the @Home Corporation, a late 1990’s venture to provide cable internet and later, a content portal. (Those of you who were online in the late 1990’s may remember the company or the multi-billion dollar merger of @Home and Excite in 1999). Shortly after the dot-com bubble burst, @Home collapsed and entered bankruptcy proceedings. The plaintiff in this case, Richard Williamson, acts as trustee for the At Home Bondholders’ Liquidating Trust and has brought a series of patent infringement suits against major technology companies in an effort to recover assets for the debt holders.
Patent No. 6,155,840 describes and claims “[a] system for conducting distributed learning among a plurality of computer systems coupled to a network.” Williamson brought an infringement suit against an array of defendants, including Citrix, Microsoft, Adobe, Cisco, and IBM. At the district court, the defendants obtained a favorable claim construction at the district court on three key terms, two in independent claims 1 and 17 and one in independent claim 8, leading to a stipulation of noninfringement of claims 1-7 and 17-24 and of invalidity due to indefiniteness of claims 8-12.
On appeal, the Federal Circuit reversed the district court’s claim constructions for both groups of claims. The reversal as to the first group (1-7 and 17-24) is not particularly noteworthy. There, the majority concluded that the district court erroneously imported an extraneous limitation into the claims: the claim element called for “a graphical display representative of the classroom” and the district court construed this as requiring a “pictorial map illustrating an at least partially virtual space in which participants can interact, and that identifies the presenter(s) and audience member(s) by their locations on the map.” “While the specification discloses examples and embodiments where the virtual classroom is depicted as a “map” or “seating chart,” nowhere does the specification limit the graphical
display to those examples and embodiments.” Slip Op. at 10. The proper construction is “a graphical representation of an at least partially virtual space in which participants can interact.”
Judge Reyna disagreed in part. In his view, “the specification and prosecution history make clear that the ‘graphical display representative of a classroom’ terms are properly construed as requiring a visually depicted virtual classroom.” Dissent at 2 (emphasis added). Judge Reyna reached this conclusion based on the specification and prosecution history’s distinguishing of the invention from the prior art based on the presence of this additional element. [Given Judge Reyna’s views, it sounds like these claims may be invalid under the majority’s claim construction].
The Section 112 Issue: The more significant portion of the opinion involves the second group of claims, which implicate issues of claim construction, functional language, and indefiniteness. The district court construed the element “distributed learning control module for…” as being a § 112, ¶ 6 [now § 112(f)] means-plus-function element. Because there was no corresponding structure for the claimed function disclosed in the specification, the claim was indefinite. (I’ve highlighted the relevant section of the claim in the image above).
On appeal, the majority concluded that it was error to treat “distributed control module” as a means-plus-function claim term. Under the court’s precedent, the failure to use the word ‘means’ in a claim limitation creates a strong presumption that 35 U.S.C. § 112, ¶ 6 does not apply. And rebutting this presumption requires meeting a very high standard: “it must be demonstrated that ‘skilled artisans, after reading the patent, would concluded that [the] claim limitation is so devoid of structure that the drafter constructively engaged in means-plus-function claiming.’ Inventio AG v. ThyssenKrupp Elevator Ams. Corp., 649 F.3d 1350, 1357 (Fed. Cir. 2011).’ ” Slip Op. at 13 (my emphasis added). “A claimed expression cannot be said to be devoid of structure if it is used “in common parlance or by persons of skill in the pertinent art to designate structure, even if the term covers a broad class of structures and even if the term identifies the structures by their function.” Lighting World, 382 F.3d at 1359–60.
Applying this “devoid of structure” standard, the majority concluded that the presumption was not rebutted. There are at least some meanings of “module” that connote structure. “The district court, in characterizing the word “module”
as a mere nonce word, failed to appreciate that the word ‘module’ has understood dictionary meanings as connoting either hardware or software structure to those skilled in the computer arts.” Slip Op. at 14. In addition, the full term, “distributed learning control module,” is part of a structure, “distributed learning server,” and interconnects and intercommunicates with that server. “These claimed interconnections and intercommunications support the conclusion that one of ordinary skill in the art would understand the expression “distributed learning control module” to connote structure.” Id. at 16. The specification, too, suggests that “distributed control module” is not “devoid of structure.”
“Module” is a ‘nonce” word: Dissenting Judge Reyna would have agreed with the district court that the language triggered Section 112, para. 6. “Module” is simply a substitution for “means”; the effect is the same, as the claim limitation follows the term with “for” and three functions performed by the “distributed learning control module”:
This claim limitation is in the traditional means-plus-function format, with the minor substitution of the term “module” for “means.” The claim language explains what the functions are, but does not disclose how the functions are performed.[] In this case, the term “module” is a “nonce” word, a generic word inherently devoid of structure.
Dissent at 5. In support of this conclusion that “module” is tantamount to “means,” Judge Reyna cites sources recognizing that terms such as “module for” may invoke Section 112, para 6, including the Manual of Patent Examining Procedure. Furthermore, the majority’s citation of sources indicating that “module” can connote hardware, software, or both does not provide structure: “It refers only to a “general category of whatever may perform specified functions.” Id. at 6, quoting Bosch v. Snap-On. None of the addition material relied on by the majority provides any structural significance.
The Intra-Circuit Split: Setting aside the issue of whether the Federal Circuit’s current algorithmic approach to indefiniteness of functional language conflicts with Supreme Court precedent, an issue that Dennis and I have written about, this opinion reflects one of two different approaches to interpreting “X plus function” language in claims. (When “X” is something other than “means” or “step.”).
The majority’s holding in this case is an extension of a line of cases applying a very high threshold for “X plus function” language to trigger application of § 112, ¶ 6. To rebut the presumption in these cases, the “X” must simply “connote” structure to a person of ordinary skill in the art (and arguably under the way the standard is applied in Williamson, merely be capable of connoting structure). Put another way, the presumption is only rebutted if the claim term is “devoid” of structure.
The Federal Circuit’s recent opinion in Bosch v. Snap-On, which Dennis wrote about in October, reflects the second approach, which applies a less-strict threshold for rebutting the presumption. In Bosch, the court described the analysis as asking “if the claim language, read in light of the specification, recites sufficiently definite
structure to avoid § 112, ¶ 6…The question is whether the claim language names
particular structures or, instead, refers only to a general category of whatever may perform specified functions.” Bosch at 7 (emphasis added). There, the court concluded that “program recognition device” and “program loading device” did lack sufficient structure; the term “device” was a “nonce” word. The result was the opposite of Williamson: § 112, ¶ 6 was triggered and, because there was no corresponding structure the specification, the claims were indefinite.
For purposes of direct comparison, I’ve pasted the statements of the law from these two cases below.
From Williamson v. Citrix:
In Personalized Media Commc’ns, LLC v. International Trade Commission, 161 F.3d 696 (Fed. Cir. 1998), and again in DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 469 F.3d 1005 (Fed. Cir. 2006), we stated that the failure to use the word “means” in a claim limitation created a rebuttable presumption that 35 U.S.C. § 112, para. 6 did not apply. See Personalized Media, 161 F.3d at 703–04; DePuy Spine, 469 F.3d at 1023. This presumption is “a strong one that is not readily overcome.” Lighting World, Inc. v. Birchwood Lighting, Inc., 382 F.3d 1354, 1358 (Fed. Cir. 2004). To rebut this strong presumption, it must be demonstrated that “skilled artisans, after reading the patent, would conclude that [the] claim limitation is so devoid of structure that the drafter constructively engaged in meansplus-function claiming.” Inventio AG v. ThyssenKrupp Elevator Ams. Corp., 649 F.3d 1350, 1357 (Fed. Cir. 2011). A claimed expression cannot be said to be devoid of structure if it is used “in common parlance or by persons of skill in the pertinent art to designate structure, even if the term covers a broad class of structures and even if the term identifies the structures by their function.” Lighting World, 382 F.3d at 1359–60.
From Bosch v. Snap-On:
Although both “program recognition device” and “program loading device” are presumed not to invoke § 112, ¶ 6, we must next turn to the issue of whether this “strong” presumption against means-plus-function claiming is overcome. See Lighting World, Inc. v. Birchwood Lighting, Inc., 382 F.3d 1354, 1358 (Fed. Cir. 2004). In undertaking this analysis, we ask if the claim language, read in light of the specification, recites sufficiently definite structure to avoid § 112, ¶ 6. Inventio, 649 F.3d at 1357. The question is whether the claim language names particular structures or, instead, refers only to a general category of whatever may perform specified functions. See Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1536 (Fed. Cir. 1991) (“[t]he recited structure tells only what the means-for-joining does, not what it is structurally”). In the latter case, § 112, ¶ 6 then commands a construction of the limitation as referring to specification identified corresponding structures and their equivalents.
***
The real problem in my mind, however, is less the split over the strength of the presumption against triggering Section 112(f) when the words “means” (or “step”) are not used, and more the conflict with Nautilus. Even if Section 112(f) is not triggered, the claim could still be indefinite under the “reasonable certainty” standard for indefiniteness. In other words, the presumption simply goes to whether or not Section 112(f) is triggered; it does not address the deeper question of what happens when Section 112(f) is not triggered.
*The panel originally included former Chief Judge Rader. Upon his retirement, Judge Moore was appointed to join the panel.
Have any of you experienced the same interpretation with the use of the phrase “an xyz mechanism” for doing something ?
BTW, seems the proper wording should be “module configured to”.
Look at the patent itself:
“The distributed learning server includes distributed learning control modules, classroom environment modules, and streaming data modules. Distributed learning control modules control the interactions between the other modules and the various presenter and audience computer systems coupled to the distributed learning server. In addition, distributed learning control modules provide security by authenticating the presenter and, if necessary, audience members. Distributed learning control modules also allow the presenter to pre-select sources of streaming data, such as digital video feeds, that will be used in the presentation. The pre-selected sources may be sources that are coupled to a presenter or audience member computer system or sources that are connected to the network through another means.”
No structure of a “distributed learning control module” is described in the patent specification. A complete failure of a teaching of how to create the same. Why is this not a lack of a written description? This is all there is in the detailed description:
“FIG. 3 is a block diagram illustrating the functional units of the DLS 102, including a distributed learning control module (DLCM) 310, a classroom environment module 312, and a streaming data module 314. The DLCM 310 controls the communications among the various computer systems 106, 108 in the distributed learning system 100 and manages the other modules in the DLS 102. A preferred embodiment of the DLCM 310 executes an operating system like MICROSOFT WINDOWS NT.RTM. or SUN MICROSYSTEMS SOLARIS.RTM. 2.x and uses a hypertext transport protocol (HTTP)-based web server, like NETSCAPE ENTERPRISE SERVER 2.0 or the APACHE web server, to receive and respond to requests for data from the other computer systems 106, 108.”
OK, everyone, create a “distributed learning control module” from this. Best anyone can do is copy the blocks int he drawing and label them accordingly. No teaching at all as to how to practice the invention.
Further to my comment above – Google “distributed learning control module.” Nothing but this case shows up. Can someone find a definition of this expression? Where is there any teaching of what this means? (plus function of same)
Joe,
I think that you are thinking that an engineering document is required.
That is just not so.
The legal document does obtain the unintended benefit of a Supreme Court augmenting the strength of the Person Having Ordinary Skill In The Art with the KSR decision. Were you aware of the near omnipotent ability of that person to have ready access and understanding of ALL prior art? I think instead of this understanding, you are trying to think of how an actual real engineer would react (I get that, but do you get that such is just not the right way of thinking about the legal reality that is involved).
I think that you are thinking that an engineering document is required.
That is just not so.
I don’t think that’s what he’s thinking.
But great job with that strawman, “anon”!
I think instead of this understanding, you are trying to think of how an actual real engineer would react
You said that already.
Were you aware of the near omnipotent ability of that person to have ready access and understanding of ALL prior art?
Right. The art that’s existed for years that says that computers can be used to receive, store, process and transmit any kind of information that they are programmed to progress.
But wait … teaching information? That’s totally different! Plus this “innovation” has a “module”, man, that’s like totally configured to do stuff.
Too bad about the complete lack of novel structure, though.
“Too bad about the complete lack of novel structure, though.”
Yes, let’s talk about that (and out away your own strawman of pretending that the option of describing in purely physical terms is more than just an option).
Tell me Malcolm how does ‘old box’ – without change (no matter which option is used to describe the change) able to – in fact – change and have a new capability that it did not have before with an addition of the machine component called software?
Malcolm?
Malcolm?
(why did he run away yet again?)
…and about that “are programmed to,” – you are not trying to kick up dust and say that future changes are somehow inherently already in there, that all future programming already is contained in ‘old box,’ are you?
Can you try to be a little more clear about the point you wish to make?
Me and my big box of electrons, protons, and neutrons, just waiting to be configured, joyfully await your thoughtful, and logical response.
Malcolm, oh Malcolm where are you?
Hmm, maybe posting 30 times on one thread with the same b@nal repeat.
Maybe creating yet another “transparent” sock puppet (that he only uses on “rare” occasions) to ploy his attack on Dr. Noonan as a grifter, while he, Malcolm, plays the role of ‘simple’ savior for all the little children running through the field of grain.
I wonder if those children are all Amish children…
“anon”: How many patent claims are written with this detailed three dimensional actual physical structure? That’s right: zero.
Meanwhile, back on planet Earth:
link to google.com
7. The crystal according to claim 1 having a three-dimensional structure comprising main chain and side chain atoms and atomic coordinates set forth in Table 2.
That took five seconds.
Please stay out of the deep end of the pool.
More importantly, maybe take a deep breath and try to appreciate the fact that when you make arguments to the effect that a molecular structure isn’t structural that you are really just admitting that you have no arguments.
Of course we all knew that. That’s the same reason that you harp incessantly about the Constitution and the 1952 patent act as if all your fantasy answers lurk there.
There is more to come, folks — a lot more! Alice was just the beginning. And that means much more crying and whining from “anon” and his crew. Hold onto your barf bags.
Yes you have nice words that cover an awful lot of molecules. In fact — REALLY MM—please tell us about the actual structure of those molecules. Admit that those are just words used by those skilled in the art that cover (well you don’t even know what it covers do).
Can somebody “articulate” translate NWPA’s “argument” here?
Surely there is someone out there who can step up and lend the guy a helping hand.
How about if you just tell us more about this nonce word you are using to describe the structure of a molecule. Come on now: what is the structure of a molecule.
Come on now: what is the structure of a molecule.
Try to believe it, folks.
And again no answer.
Because if you answer what we will see is an answer that is less definite than the structure of software or a chip.
Because if you answer what we will see is an answer that is less definite than the structure of software or a chip.
Anybody following this genius “argument”?
Please explain MM how two chips one 8086 and the Pentium have the same structure (which is no structure) according to you.
So with your molecules I find it indefinite. What do you mean by the words
“three-dimensional structure comprising main chain and side chain atoms and ” these are clearly nonce words.
So with your molecules I find it indefinite. What do you mean by the words “three-dimensional structure comprising main chain and side chain atoms and ” these are clearly nonce words.
Try to believe it, folks.
These are the great defenders of the current software patent regime. These are their “arguments.”
And again, no answer.
Love the attempt to change the subject, NWPA.
Nobody sees what you’re doing! Super clever!
Actually dead on point. That what you are trying to pull is ask for a standard of “structure” that is beyond what is understood by one skilled in the art.
NWPA: what you are trying to pull is ask for a standard of “structure” that is beyond what is understood by one skilled in the art.
“Trying to pull”? Huh?
Because it’s such a “sleight of hand” to suggest that “a standard” for the recitation of novel structure include a mere iota of actual objective physical structure.
Too funny.
Please, please, please keep pressing the “chemical structures aren’t structures because Einstein” argument or whatever it is that you’re striving for. It’s a real winner! I guarantee you the Federal Circuit will just love it because it’s like totally “real” and not just something you’d expect to read in a Yahoo chatroom where the lowest forms of innovators go to cry about their entitlements being taken away.
Mere iota…?
Have you moved the goalposts (again) and switched the topic to something TOTALLY in the mind or PURELY functional?
Please move the goal posts back.
Thanks.
Please move the goal posts back.
I’ve no idea what you’re babbling about but, hey, if you see a “goalpost” by all means feel free to imagine that it’s moving around if you find that entertaining. You’re also free to pretend that you don’t know the difference between an actual physical object that might be covered by a broad functional claim (e.g., “a box with parts configured to determine when it’s time to announce the winner of the bingo game”) and a claim that recites objective structure that distinguishes the recited object from the prior art in structural terms. Go ahead. Knock yourself out with these transparent dust kicking games.
Meanwhile your bizarre “argument” that “zero” patent claims recite 3 dimensional structure is lying curbside waiting for the street cleaner.
Here’s a thought: just acknowledge that the patent system was not created to evaluate and protect the “patentability” of “new” logic and math, and cheerleading courts and the PTO as they create meaningless, self-serving legal fictions out of thin air (e.g., “algorithms are the essence of electronic structure” etc) is an excessively st 00pit way to go about addressing that problem.
I know it’s a truly radical thought. But once you recognize this basic truth then you can do something really, really impressive: use your brain to come up with a better framework than the miserable broken one that you and your crew tried to foist on everybody.
NWPA,
I’m a little confused by this line of argument. First, I don’t think MM (or anyone, really) is saying that a computer processor doesn’t have structure.
What I believe he’s saying, and please correct me if I’m wrong, is that whatever structure exists in a processor or software is not recited IN THE CLAIMS to distinguish those claims from the prior art. Instead, functional language is used that typically recites the desired result to be accomplished.
If a chemical claims were written the same way, you’d seem something like “a chemical comprising carbon, hydrogen and nitrogen configured to cure baldness.”
Is your argument that chemicals lack structure or that the structure of chemicals are not required to be recited in the claims? I have seen a lot of chemical claims that recite specific formulas, so I am confused here.
Or is that, ultimately, there are some ambiguities in the structure of electrons, protons, etc. due to quantum physics and the like?
Help a brother out here.
>IN THE CLAIMS to distinguish those claims from the prior art. >Instead, functional language is used that typically recites the desired >result to be accomplished.
This is simply not true. The functional claims define a set of solutions to one skilled in the art which defines the structure. So, the structure is clearly recited to one skilled in the art. MM’s argument is that he is ignorant and doesn’t understand the structure; therefore, none exists.
Moreover, to see that this is true (to get it out of the software field), one can do the same thing with circuits.
Or for that matter with most mechanical cases I’ve worked on.
So, he really doesn’t have an argument, but an attitude. Any of these functional claims connote a very definite set of solutions and structure to one skilled in the art.
(And yes MM has said there is no structure in a chip.)
MM’s argument is that he is ignorant and doesn’t understand the structure; therefore, none exists.
That’s not my argument. My argument is that there is no objective structure for these functions that is ascertainable to skilled artisans. In addition to other basic facts acknowledged by many of these same skilled artisans, you can find “evidence” for this assertion in NWPA’s continued failure to tell everyone what the structures are that he is allegedly capable of seeing.
MM has said there is no structure in a chip.
Okay, so now NWPA is back to simply telling l i es about me. Nothing new there.
But he’s a very serious person! We must pay attention to his deep thoughts.
“That’s not my argument. My argument is that there is no objective structure for these functions that is ascertainable to skilled artisans. ”
Respectfully, that is not the argument that you are “objectively” stating.
That is the conclusion that you want to reach.
The argument that you are using is that functional language cannot be used to describe that objective physical difference.
And as I have repeatedly corrected you, that is simply a false statement per the words of Congress.
Yes, stating that difference in physical terms is an option. Stating a claim that spans dozens of pages IS possible, but would not be as clear as you want to pretend it would be.
But it is just not the only option.
And that IS the objective truth.
…further, your “appeal” to skilled artisans is a ploy, as I am sure (since you claim to be an attorney) that you know that the proper measure is NOT one of the lemmings from Slashdot/Techdirt, but is the KSR augmented PHOSITA.
Yes, I get the mob mentality that you want to use, but as a legal professional you should know that that option is denied to you in any intellectually honest dialogue on this legal topic.
So, the structure is recited in the claims. Most definitely to one skilled in the art.
And more so than a molecule which really has a functional definition when it comes down to it and maybe that is even a stretch with quantum mechanics.
quantum mechanics.
These “deep” existential arguments that “nothing can be described structurally so give me my jinky software patent” are exactly the sort of thing that jurists and congresspersons find most persuasive!
Keep it up!
Go Arthur: What I believe he’s saying, and please correct me if I’m wrong, is that whatever structure exists in a processor or software is not recited IN THE CLAIMS to distinguish those claims from the prior art. Instead, functional language is used that typically recites the desired result to be accomplished.
Of course that’s what I’m saying. And for further clarity note that the objective distinguishing structure is typically absent from both the claims and from the specification (i.e., there is no objective structure — at least no novel objective structure — that can be read into the claims, even where the drafter is taking advantage of the statutes which permit the use of functional language).
Or is that, ultimately, there are some ambiguities in the structure of electrons, protons, etc. due to quantum physics and the like?
That appears to be where NWPA and “anon” are heading. Why in the world they (or anyone) would believe that this sort of “ambiguity” somehow ties the f a te of a properly drafted chemical (or any other composition) claim to the typical functionally-claimed “do it on a computer” claim is a complete mystery. It just seems to be another variation on the tired “if I can’t have my claims then you can’t have yours” non-argument that the proponents of the lowest forms of innovation have reflexively tossed at everyone who disagrees with them since forever.
go,
You are doing that naïveté thing again…
Tell us what a structure is? You are so full of it.
NWPA Tell us what a structure is?
You are so full of it
You’ve said that numerous times over the years. And yet, exactly as I predicted, a vast number of the patents you love so much are now worthless pieces of paper. Well, let’s face it: they always were as long as you had half a brain and the minimum amount of spine that it takes to look people like you in the eye and tell you to where to shove it.
I predicted as much as well (much better than you predictions), but I identified the reason being Google. Remember you denying they were pouring money into DC, then I posted a article from the front page of the FT where they are number one out of all corporations pouring money into DC.
Remember that? I can go on and on about all the nonsense you have spouted. (Remember I named you.)
OK deny your history of denials of reality.
That’s the second rule of propaganda club.
Whew, I am glad the number is not zero.
Tell me though, what is your ‘educated’ guess as to the percentage of patents in charm and bio-chem that are so 3D written?
(try to not let the hyperbole become a dust cloud)
Autocorrect strikes again — “charm” replaced by “chem”
“anon”: Whew, I am glad the number is not zero. Tell me though, what is your ‘educated’ guess as to the percentage of patents in charm and bio-chem that are so 3D written?
Wow. Serious?
Meanwhile, this incredible hypocrite “anon” can be found upthread making some incoherent “argument” about “moving the goalpost.”
Try to believe it, folks.
The exception that proves the rule… and not the iron clad thing you want to spin.
It is telling that you run from the follow-up question.
This dialogue thing is new to you, so take another shot at it.
CAFC: failed to appreciate that the word ‘module’ has understood dictionary meanings as connoting either hardware or software structure
What’s the “structure” of this particular module that is understood by the skilled artisan?
I’d be especially interested in the (trying not to laugh here) “software structure” that is “understood” here.
Still waiting to hear from “one of skill” for the answer to this question.
What’s the problem exactly? Allegedly there are some “articulate” defenders of these kinds of patents here who are super duper knowledgable about the “software arts”.
So what’s the objective structure of this particular module? While you’re at it, you can tell everyone the objective structure of the module that determines whether Billy has used his credit card outside of the predetermined range, and the objective structure of an online bingo management thingie and the objective structure of the highlight emails from selected virtual friends unit.
Why don’t you switch in an 8086 processor and STFU.
An underlying thread throughout most of the various topics on this blog have to do with the central notion of what is the law.
Patent law is statutory law.
Pure and simple.
By design of our constitution.
This carries some fundamental restraints – restraints that are being asked to be ignored because certain ideological groups have identified certain ends that are desired, and the quickest way to those ends is by way of Judicial common law.
A quote from another blog interview with Sherri Knowles (of fame for successfully fighting the illegal power grab of the Office a few years back in a similar “ends-justify-the-means” battle) is directly on point for all of our dialogues here:
“We are seeing a strong anti-innovation sentiment in the U.S. not just on the issue of obviousness but also on patent eligibility. We’re seeing a rewriting of patent law through judicial decisions which have draconian effect on the industry that judges have not given full consideration of the larger impact of. And I might go even further to say that judges are not sufficiently trained or authorized to overhaul the patent system through the judiciary. The judiciary is taking over the job of Congress. I think that’s what we are seeing. (emphasis added; full interview over at IPWatchdog)
Now I ‘get’ that my stridency turns certain people off (and no, I am not trying to persuade those whom will not be persuaded no matter what), but CLEARLY the points that I continue to put on the table need to be both acknowledged and integrated into the ongoing dialogue.
Anything less is just drive by monologuing and serves no other purpose than propaganda. It is not an option to clench right your eyes and proclaim “but I don’t see that.”
(and for those who have an unnatural aversion to that blog owner, I would add that the exact same sentiments also appeared recently on Dr. Noonan’s PatentDocs blog)
For transperancy’s sake, I will state that I am in no way connected to either blog, nor have any ties to Miss Knowles.
for those who have an unnatural aversion to that blog owner, I would add that the exact same sentiments also appeared recently on Dr. Noonan’s PatentDocs blog
LOL
Two guys who will do and say pretty much anything to promote More Patents All The Time Easier to Enforce.
Anyone need evidence of that? In 2014? After all the client-coddling junk they posted trying to defend Prometheus and the lowest forms of innovation out there?
Give us a break.
We are seeing a strong anti-innovation sentiment in the U.S. not just on the issue of obviousness but also on patent eligibility. We’re seeing a rewriting of patent law through judicial decisions which….
Whine, whine, whine, whine.
You guys made your bed. Now lie in it and try to grow up.
… CLEARLY the points that I continue to put on the table need to be both acknowledged and integrated into the ongoing dialogue. Anything less is just drive by monologuing and serves no other purpose than propaganda. It is not an option to clench right your eyes and proclaim “but I don’t see that.”
Says you. I think it is quite well understood that you believe the courts’ actions in several areas of patent law are unconstitutional. I, for one, hereby acknowledge that you have made that point. But, you seem to be demanding that this be the only topic of discussion here. That demand strikes me as a bit excessive. Frankly, I don’t find the topic that interesting. It doesn’t appear that Professors Crouch or Rantanen do either, for what it’s worth.
About time you admitted it.
“anon” : It is not an option to clench right your eyes and proclaim “but I don’t see that.”
Meanwhile, much effort was made to sp00nfeed the facts and issues raised by Prometheus’ claims to _uinn and _oonan and other “experts”. “Clenching their eyes” is exactly how those “experts” responded. In some cases they expressly refused to discuss the obvious questions raised by their oh-so-principled positions, or they attacked people who “dared” to ask them.
But of course “anon” is just pretending to be “principled” about this so-called “propaganda”, just like he pretends to be “principled” about “judicial activism” … just as long as it makes it easier to obtain and enforce a patent!
Nobody could have predicted.
LOL – talk about not having an argument – here we have Malcolm reduced to an implicit insult that there must be anon “pretending” to be principled meaning that anon is NOT principled.
Please share the evidence for this accusation.
Oh wait – you have none.
Well then, let’s see a substantive argument from you.
Oh wait, you have none of that either.
Eight years and running – does that not hurt Prof. Crouch?
here we have Malcolm reduced to an implicit insult that there must be anon “pretending” to be principled meaning that anon is NOT principled.
I apologize for the implictness. Let me be explicit: “anon” is probably the least principled person commenting about patent law here or anywhere else but he loves to pretend that he is riding on a high white horse, just dripping with ethics and righteousness, protecting the world from communists and thieves and unethical, ignorant attorneys who want to destroy his beloved patent system because luddites or something.
Need evidence? Just read the comments here for a day or two and you’ll have enough evidence to break your back.
We now return to you “anon’s” regularly scheduled “I-know-you-are-but-what-am-I?” show.
MM says:
>Because anyone can easily make any hardware or software to perform >any information processing “functionality” once you recite that >functionality.
This forever discredits MM saying anything about computer science ever again. Nothing could be further from the truth of this–nothing.
This is the brain trust of destroying information processing patents. What MM just wrote is the type of thing that business students used to say to me when I was a graduate student teaching computer science.
Interestingly too, if what you say is true MM, then I guess that doesn’t say much for human intelligence does it?
The functional words describe a set of solutions to one skilled in the art. Please read LazardTech. Scope of enablement.
NWPA This forever discredits MM saying anything about computer science ever again. Nothing could be further from the truth
Really? Nothing could be further from the truth? That’s pretty funny because what I wrote is very similar if not identical to arguments that you’ve made here and people like you make all the time to justify functional claiming of computer-implemented junk.
See that is the problem with monkey see monkey do type of people like you.
The whole point of those functional words being ok is that people like me know which functions can be performed as routine or by picking up a book, and those functions which cannot. That is why it is scope of enablement.
MM you are so far out of depth.
people like me know which functions can be performed as routine or by picking up a book, and those functions which cannot.
Do “people like you know” appreciate what your admissions mean with respect to what’s already been disclosed about the information processing capabilities of computers, and about information processing methods (like math and logic) generally?
It certainly doesn’t appear to be the case. That doesn’t say much for “people like you.”
Gee what a cutie post there MM. No content just bizarro accusations.
And attitude, which is all your lot has.
“nonce” is the new witch.
Someone please run a google word usage on some of the computer science sites. Tell us how often this word with no meaning is used.
You should look at the arguments presented by MM. He is saying that a computer chip has no structure. That is his argument.
You should look at the arguments presented by MM. He is saying that a computer chip has no structure. That is his argument.
That’s not my argument at all.
Nice try, though.
My “argument” is that the typical computer-implemented junk claim doesn’t recite any new structure, directly or indirectly. Note the use of quotes around the term “argument”. That’s because it’s not really an “argument.” It’s just a fact.
Yeah that is your argument. The claims to cover a range of solutions like all patent applications. Software has structure just like hardware. Remember last time: I said OK I will build a chip with exactly the same functionality as the software. Now the hardware must have structure, which you said it did not.
The equivalence of software/hardware/firmware makes easy to see that software has structure. Not to mention the fact that it is absurd in science to say it doesn’t.
Software has structure just like hardware.
How much does the typical software weigh?
The equivalence of software/hardware/firmware
Ah yes. The meaningless self-serving mantra returns.
I wonder if this one will have the super impressive legs that “claims as a hole! claims as a hole!” had.
Your clenching tight your eyes to the importance of these facts does NOT make then into how you wish to mischaracterize them.
Eppur si muove.
Awesome – the Galileo gambit!
When the quote fits, it fits.
Not sure why this seems to bug you so…
Anon, I think you failed to see the irony.