Construing Claims: Independent Claim Preamble is Limiting when Used in the Body of Dependent Claims

ScreenShot156by Dennis Crouch

In Pacing Tech v. Garmin, the Federal Circuit has affirmed a summary judgment of non-infringement — holding that Garmin’s fitness watches do not infringe U.S. Patent No. 8,101,843.

Although captioned as a decision on infringement, the defendants were able to shift the focus to claim construction.  Here, the Federal Circuit found the claim-preamble limiting in such a way that avoids infringement.

One well-known secret of patent interpretation is that, a claim preamble will not be seen as limiting unless it “breathes life and meaning into the claim” In re Wertheim, 541 F.2d 257 (CCPA 1976).  The rule here is essentially a particular application of the general thought that statements of the invention’s intended purpose are not limiting. Expanding upon Wertheim, however, the Federal Circuit has also ruled that the preamble can be limiting when elements in the preamble serve as an antecedent basis for limitations in the claim body. See Eaton Corp. v. Rockwell Int’l Corp., 323 F.3d 1332 (Fed. Cir. 2003).

The strategy used by some patent applicants is to include preamble terms that make the claim scope seem reasonable and well grounded, but with the hope that those limitations will not be given effect later in enforcement proceedings.

Here, the claim at issue is:

25. A repetitive motion pacing system for pacing a user comprising: . . .

a web site adapted to allowing the user to pre-select [activities]…

a data storage and playback device; and

a communication device adapted to transferring data [between the web site and data storage and playback device].

The ‘preamble’ of claim 25 is the portion coming before the word ‘comprising:’ i.e., ‘A repetitive motion pacing system for pacing a user.’ Although not used in the body of claim 25, the ‘repetitive motion pacing system’ phrase is found in the body of dependent claim 28 with the following clause: ‘wherein the repetitive motion pacing system can determine a geographic location of the data storage and playback device.’ Further, the preamble term ‘user’ was also relied upon in the body of claim 25.

Taking a whole-patent analysis approach, the Federal Circuit found the claim preamble limiting because the core terms served generally served an antecedent basis:

Because the preamble terms “user” and “repetitive motion pacing system” provide antecedent basis for and are necessary to understand positive limitations in the body of claims in the ’843 patent, we hold that the preamble to claim 25 is limiting.  

After finding that the preamble requirement of a “repetitive motion pacing system” was limiting, the court then took the next step of giving meaning to the term through the construction process.

Object of Invention Disavows Scope: The patent application describes several ‘objects of the invention’ – all of which include ‘a repetitive motion pacing system for pacing a user that includes a data storage playback device adapted to produce a sensible tempo.’  The asserted claim 25 does not expressly state that the pacing system needs to ‘produce a sensible tempo’, but the Federal Circuit here found that the stated object of the invention represented ‘a clear and unmistakable disavowal’ of scope and requires that the term be interpreted to require the tempo. As the final step of the analysis, the court made the easy conclusion that – since Garmin’s accused devices do not produce a sensible tempo, they do not infringe.

Of interest, the patent does include several embodiment where there was no discussion of whether or not the tempo feature was included.  In its decision, the Federal Circuit found those statements insufficient to overcome the object-of-the-invention statements. “Just because an embodiment does not expressly disclose a feature does not mean that embodiment excludes that feature.”

= = = = =

I. In my mind, the right decision is that the claim preamble should be limiting in this case — and in all cases. Claims need no extraneous elements but instead each claimed phrase should be included for a legally cognizable purpose and interpreted as such.  Additional descriptions, statements of purpose, and the like are helpful, but belong in the specification unless they are intended to be limiting.

II. Here, the court took a statement-of-purpose from the specification and deemed it a clear disavowal of claim scope.  That approach makes logical sense because it truly limits the claim to the subject matter that the inventor believed she had invented.  However, my problem with the approach is that patent attorneys will walk away with the solution of avoiding any discussion of the purpose of the invention or else choose to provide discussion of purpose so full of caveats and exceptions so as to eliminate the potential for clarity in understanding the technological advance being disclosed.

 

88 thoughts on “Construing Claims: Independent Claim Preamble is Limiting when Used in the Body of Dependent Claims

  1. Objectively, are “objectives” (hewing to one poster’s desire to use a more precise word) of an invention even the same thing as the invention itself?

    If my objective was to create a certain glue, and I fail but instead create Post-It notes, have I failed to invent?

    If my objective was to create a particular heart medicine, and I fail, but instead create a drug that solves erectile dysfunction (and makes more money than any heart medicine could ever have made), have I failed to invent?

    Is not a court that limits an invention by the objectives engaging in a form of “reverse discrimination” against the inventor by applying a form of “intended purpose” which intention may have nothing at all to do with the invention?

  2. There is a lot of discussion about the background below. One point is that without TSM (which is what the standard should be) an examiners can and do merely take your background and then paste in 103 arguments.

    This can be very difficult to fight. I had an application about year ago like this. I did not write the application, but the attorney laid out the real problems and the real state of the art prior to the invention. The examiner rejected all the claims based on the background and official notice. It was ridiculous. I argued with the examiner for about one hour and had to suffer through his view of why the claims were obvious. No external evidence. Just Hindsight Examiner saying why hypothetically he would of figured the whole thing out. Needless to say I fought this, but this is what you get when you write real backgrounds.

    Once we left intellectual honest land and Google started pouring money into burning the patent system, all bets were off.

    And, for those paid bloggers and anti-patent judicial activist: hindsight is real. It takes time to understand hindsight. I was a real engineer and real inventor. I worked on one project that had I found the solution I would have made many millions. I did not find the solution nor did dozens of Ph.D.’s from the top schools. The solution now is considered by the lowly like of MM as obvious and anyone could have done it.

    Seriously, when people deny hind sight and have an intent to burn the system down there can be no constructive improvement of our system. If you want to improve the patent system, first remove and punish the intellectually dishonest like Lemley, who claims software has no structure, from the debate.

    1. And it is not enough to have to defeat the intellectually dishonest at each battle. They need long-term punishment and removal from the debate.

      1. Won’t happen because there is no one to make it happen, and, as we have seen, “self-policing” is just not effective for those who believe that the ends justify the means, and that “rules” are only meant for other people.

  3. What is the reaction of interested readers to the following propositions.
    1.The Background of the Invention should contain the bare identifying details of the prior art known to be relevant, and incorporate that prior art by reference.That can do no harm anywhere and can provide a rich source of information in subsequent prosecution in the United States (though not elsewhere).
    2. The prior art should not be discussed. However, if the draftsman thinks it is helpful in clarifying the invention, exact quotation of words in a reference is not only permissible but helpful

    1. Timothy,

      Thank you for your post. While on the surface your suggestions “sound” good, even just a little analysis shows their weakness.

      To your point 1., several critical flaws:

      – most importantly, your gloss of “that can do no harm” is just not true and ig nores the reality of patent profanity.

      – there is NO requirement for an applicant to search out (i.e. examine) his invention against the prior art. There is no requirement either to include in the application any known prior art. The informing the Office of known prior art is by way of IDS. Incorporating by reference is explicitly something that applicants are NOT to do: the application is NOT about, not should it include prior art. The purpose of the application is not to be a history text, not to be your desired “rich source of information” on others’ inventions and how the state of the art was arrived at. That’s just not the purpose.

      Your point 2 is a mere reflection of your lack of understanding of patent profanity. In a perfect world, sure, using prior art to contrast and exemplify the invention “sounds” good. But we do not live in a perfect world and even such a noble intent is only too willing to be subverted by others to use the patentee’s own admissions as a baseline to deny the patentee his desired protection.

      Like it or not, the very real offshoot from the long history of anti-patent philosophies is that “less” is necessarily more, and applicants must strive for more as there is always someone trying to give them less.

      Your “sounds good” is simply also “too Pollyanna.” I’m sorry that this may sound harsh to you, but the real world just is not always pretty.

      1. …and I would add that if your “sounds good” reasoning were in fact applicable to reality, that the Jepson claim form would be a de facto standard.

        Reality intrudes – Prof. Crouch has in the past shown that the opposite is true: the Jepson claim form has largely been abandoned.

        1. Anon.
          Nothing in my posts suggests that a Jepson claim should be used. I agree that it should not be used.
          “Sounds Good” are your words, not mine

          1. Timothy,

            On the contrary, your post is parallel to the Jepson claim form in that you seek to add the state of the art, and then seek to distinguish the client’s invention directly in relation to that same state of the art.

            That’s exactly what the Jepson claim form does.

            If you meant to say something else, than I suggest that your message did not come through.

      2. Unfortunately, Anon is correct. Most US attorneys do not use any actual “background” anywhere in the text of the application, unless it’s absolutely necessary. They will, however, cite any known references.

        This also depends whether your US application will go to Europe. If so, then it is helpful to at least have some discussion of problems with the prior art. How detailed that discussion must be is an issue. Some people say to cite references and at most quote directly from them. I’m not sure how well that amount of disclosure goes over in the EPO. Their “problem and solution” test is a bit confusing to me.

        1. I say “unfortunately” because I find this type of information to be helpful many times to determine what the inventors thought their invention was. Without this info, it can be difficult to discern what the inventors thought their invention was, which makes it difficult to amend claims at a later stage (or analyze the subsequent patent for that matter).

          So, if you’re reading a patent/patent application written in this manner, you skip the Background, Abstract, Summary, as they are useless. You go into the Detailed Description and hope you can understand what’s being said with enough detail to discern what the invention might be. For analyzing a prior art reference written like this, if the Detailed Description is basically a regurgitation of the claims (which seems to be common with European-generated cases), with no or little actual detail, you will likely have a tough time characterizing the reference.

        2. This comment would be more persuasive from an active European practitioner (whose comments we should welcome), but for what it is worth, here is my experience .
          While European-originating specifications tend to present a “story line” leading from the prior art to the invention, and sometimes present the invention as the solution to an identified problem, I think that there is no need for a European application, as filed, to do so. Indeed, I think it is better that it should not. The reason is that the “problem and solution” approach, which often (but not always) becomes the focus of European prosecution, cannot even be considered until the single most relevant prior art reference has been identified BY THE EUROPEAN EXAMINER. That “single most relevant” reference may well not be the one that the draftsman would have identified at the time of filing.The “problem” is some practical shortcoming in that single most relevant reference, and the solution is the contribution of the invention which overcomes that shortcoming.
          The drafting of Claim 1 in a European application in two-part form similarly requires that the pre-characterizing clause should be based on the single most relevant prior art reference.

          1. Timothy,

            I see a rather obvious problem with your advice to draft the claims (and write an application to support the drafted claims) that necessarily flow from being “based on the single most relevant prior art reference.”

            What that reference is just is not known at the time the application is written.

            Sure, applicants may try to ascertain that. And sure, it is “best practice” to do as thorough a job in ascertaining how the invention advances the art, but not only is this type of searching and ID’ing the best prior art simply NOT required by law, applicants themselves can (fully rightfully) request counsel not to search the prior art.

            Further, even IF searched and even if any possible “patent profanity” is reduced by merely listing the prior art found in a search in a properly submitted IDS, the Office – as is their proper role – is the entity charge with examination and that charge of examination includes the determination of exactly what that “best prior art” is. And that determination necessarily comes from the proper source AFTER the application is written.

            And even further, it should be noted (and Prof. Crouch has run articles on this), US examiners by a very very large preponderance choose non-applicant supplied art as the best prior art. So even IF applicants did shoulder a burden that is not theirs to shoulder, the Office is not likely to recognize the very basis of the claims that you would so draft. Even under the best of intentions then, your work product will not be the best work product to advance the interests of your clients.

            So take what I say and ask yourself, what is a “scriviner” to do?

      3. Thanks for your reply, Anon.
        1.Please tell me why you think that it can be harmful to include, in the Background of the Invention section of the specification, the “bare identifying particulars” of prior art already known to the draftsman. Those same particulars will of course need to be presented in an IDS in prosecution.
        2.I agree that an applicant is not obliged to go and look for relevant prior art, and that the specification should not be a “history text”. But my post does not suggest otherwise.
        3. If a US patent is “incorporated by reference”, relevant parts of its disclosure can be incorporated verbatim into the description and claims of the invention. This can be very helpful in prosecution, for example in drafting potentially important dependent claims and in addressing actual or potential 112 objections. I speak from experience.
        4. The facts of a particular case will always be important. My post notes that there should be no discussion of a reference, and at most quotation from it. If such quotation helps to identify the patentability of the invention, I don’t think that there should be any”iron rule” preventing it.

        1. Timothy you solicit comment from Europe. Here’s one.

          To a large extent, I agree with your remarks. The 2 part form of claim is not always insisted upon but it does reveal the way EPO Examiners think about obviousness.

          The EPO’s “Problem and Solution Approach” to the objective exploration of whether any given claimed subject matter is obvious depends on toggling between i) the technical features recited in the claim and ii) the technical effects reported in the application as filed as being delivered by the claimed feature combination. So, if you want a patent in Europe (and the rest of the world except for the USA), better tell us what those effects are, in the application you write.

          Obviousness is relative to the PHOSITA (not a real person). That way is objective.

          The EPO considers that a patentable invention is a technical feature combination that solves an objective technical problem (OTP) with technical means, in a way not suggested to the PHOSITA by the prior art.

          To define the OTP is a fully automatic arithmetical exercise, independent of what art you mention in your app as filed. One look at just two sources i) the delivered technical effects and ii) the closest realistic prior art starting point that a PHOSITA who is deemed i) not to know what the solution is and ii) to be trying to silve the technical problem that the patent application presents as the one solved by the real life inventor). Subtract one from the other and you have your OTP. Just occasionally, there is no realistic starting point and the non-obviousness lies in conceiving of the problem.

          Yes, I realise that it is confusing, for those who don’t practise it, day in, day out. But it’s like learning to ride a bike. once you can do it, you wonder how it was, that you ever had a problem to do it.

          And like an elegant equation, it’s beautiful. Engineers and scientists get very enthusiastic about it, once they have grasped it. Patent law, for them, then becomes fun. In German corporations, it is the scientists who often write the first drafts of new patent applications.

          Not sure how long it will take, before the obviousness law of the rest of the world spreads as far as the USA, but those drafting new applications today might wish to bear it in mind.

          1. Max.
            I did hope that my post would provoke a reply, for which I thank you. What follows may go beyond anything that you want to deal with in this blog. If so, and you would like to follow up by direct email, please do. Paul Cole, who no doubt you know, knows who I am. We worked together in the UK long ago.
            Thoughtful US draftsmen tend to avoid statements which promise (or which can be construed by an adversary as promising) that a particular feature (or combination of features) will provide an identified technical effect. Such statements are seen to be disadvantageous, particularly in litigation.
            I assume that you often file European applications using US-drafted specifications. Is it your experience that such specifications often fail to identify the technical effects which are delivered by the claimed features (which is what the EPO is looking for)?
            Is it your experience that the lack of an explicit link between the claimed features and the technical effects is a real barrier to patentability in the EPO? My very limited experience of European prosecution is that it is not, provided that there is reasonable basis for arguing non-obviousness.
            I assume also, that you often file US applications based on a European-drafted specification arrives in the US. Am I right in thinking that such specifications are apt to contain “promises” that serve well in the EPO, but would be better omitted under US practice? Do you amend such specifications during prosecution to remove the “promises”?
            Realistically, almost no one will prepare different specifications for US and Europe. Is there some way to reconcile the two approaches in the same specification?

            1. Timothy, thanks. Paul Cole also knows who I am.

              My experience is with US-drafted cases at the EPO. It is as you say, namely that the drafting is often not optimal for use in Europe. I am sure Euro-drafted cases are often not optimal for the US jurisdiction.

              In my experience, when drafting is done by somebody comfortable in both jurisdictions, it can be near optimal in both jurisdictions. I don’t know any other way to protect the legal interests of inventors who want a patent in both the USA and Europe.

              When EPO entry is off of a PCT, and it is then that I see the case for the first time, there is little I can do. But when I get a case for EPO entry just before the end of the Paris year, there is much I can do, given enough time, to amend the text to improve prospects in First to File Europe.

              I believe that the legal consequences of ANY First to File system are what they are, regardless of jurisdiction, and that the US patent attorney community will come to see that, when the US courts have become familiar with FtF and its consequences. Those drafting today in the USA might think it prudent to reflect on that.

              1. Without snark MaxDrei, what is it that US practitioners should reflect on in the new age of First to File? What are the types of things that you are ably helpful with for EP filings within the Paris year, and are those things helpful for US prosecution?

                I ask because in a very real sense, prosecution remains driven by laws of the Sovereign, and here in the US (as noted by others), too closely following a “problem-solution” approach may very well cause a 103 catastrophe (whether or not you are ready to admit that the US PHOSITA is different than the EPO PHOSITA due to the KSR augmentation should be put to the side for now and accepted for argument’s sake).

                1. Your comment, anon, set me thinking, in a very real sense. Those who earn their crust by translating, in a very real sense, between two languages, say, English and German, can have an enjoyable conversation, in a very real sense, about the pleasures of toggling between the two. For example, the notorious Lubke “Equal goes it loose” or Helmut Kohl’s friendly-intentioned but equally amusing “You can call me you” to Maggie Thatcher.

                  With somebody who is not yet acquianted with both languages, however, attempts at such conversations are (in a very real sense) a complete waste of time.

                  So it is also with patent law outside of North America. Timothy knows about it and so with him I can have a worthwhile conversation. With you though, in a very real sense, not.

                  Be happy. It is for your own good. Any continuance of this dialogue will only confuse you further and bring on fantasies additional to the one you have already developed, about discrepancies you imagine (in a very real sense) between the American and European PHOSITA’s. This is something neither of us wants. Really.

                2. You point your finger, and only too true, four fingers point back at you.

                  So goes your soliloquy, absent as it is with any real understanding of the language of US jurisprudence (and your double languages of English and German being only one side – that of “EP uber alles,” reveals your own weakness yet again.

  4. This is a very valuable post about a valuable FC opinion – they both raise some serious lessons for practitioners.

    However, I have to take issue with the way Moore’s opinion has been presented, both by Dennis and by some of the commentators. It is clearly not as broad as it’s being painted, particularly with respect to the object-clauses. (I wish that archaic use of the word “object” would get flushed from the patent lingo. If one wants to talk about the objectives of an invention, say “objectives.”) IMO, Dennis’ description of the opinion places way too much emphasis on the object-clauses themselves, but that is not Moore’s point.

    Let me preface my comments with a pro practice tip: Practitioners should establish as a standing operating procedure the rule that if the courts trash your client’s application/patent by citing Phillips v. AWH against you, just go ahead and give you malpractice carrier a call. This case illustrates why that rule should be seriously considered.

    Dennis characterizes the patent’s object-clauses as follows:

    The patent application describes several ‘objects of the invention’ – all of which include ‘a repetitive motion pacing system for pacing a user that includes a data storage playback device adapted to produce a sensible tempo.’

    Maybe I’m missing something or maybe Dennis is reading from a different patent 8,101,843 than I am, but I cannot find a single one of the 19 objects clauses that meets this description. I cannot find, for instance, a reference to “sensible tempo” in any of the 19 clauses. Here is one example:

    It is another object of the present invention to provide a system and method whereby music producers and musicians can submit audio content that can be modified for users’ pacing needs.

    The language Dennis employs is not what the “application describes” but what Moore describes the application/patent as describing. [The issue in this case is not an application, but a patent.]

    IOW, I believe Dennis is missing Moore’s point, but it’s an important one.

    The problem described by Moore is not object-clauses, per se. Moore explicitly states that a recitation of objects does not necessarily act as a disclaimer.

    The problem is that there is an omnibus clause following the inventory of 19 object-clauses, and that omnibus clause states that the objects listed “are accomplished, as embodied and fully described herein, by a repetitive motion pacing system that includes ….” It doesn’t say “some of the objects are accomplished” or that “the invention could possibly achieve one or more of these objectives,” and so Moore contends, and reasonably so, that:

    “[w]ith these words . . . [the inventor] alerts the reader that the invention accomplishes all of the objects and features . . .with a repetitive motion pacing system that includes a data storage and playback device adapted to produce a sensible tempo.”

    The problem is not the object-clauses; it’s the omnibus clause. And she’s right – to the extent that claims claim the invention, then that omnibus clause, by referring to “the invention,” incorporates all of the objects into all of the claims. Another way to say this is that Moore is, essentially, drafting the inventor’s complaint in the malpractice action against whomever drafted the application.

    I would suggest that if you’re going to write object-clauses, then step around the word “invention” like you would dog poo on a hot sidewalk. Tie the objectives to unspecified embodiments, not the invention: “An objective of at least one embodiment of the invention is . . .” And for goodness sake, leave off the omnibus clause that the “invention” achieves all of the objectives. If you feel you need to make an assertion of utility, then say “The invention is durn useful as will be apparent to anybody who doesn’t have two glass eyes.” and leave it at that.

    And for what it’s worth, I can just about guarantee that over the years of crawling up the learning curve I have violated every one of my own pompous suggestions. Most everyone has, and so Moore’s reminder is most welcome.

    1. Best post of the century. Almost makes suffering through Milly’s insufferableness worth it….

      almost…

    2. There’s no need to use “the invention” in the application. The “invention” is whatever is described, enabled, novel, non-obvious, and particularly pointed out and distinctly claimed.

      If you’re a practitioner and writing applications in which you describe “the invention” then you’re doing it all wrong.

      Stop it.

    3. Thanks for this commment – I have not fully read the patent but instead relied primarily upon the statements in the opinion for my analysis here. I’ll reread the case and also the relevant portions of the patent.

    4. BB: I cannot find, for instance, a reference to “sensible tempo” in any of the 19 clauses. Here is one example:

      “It is another object of the present invention to provide a system and method whereby music producers and musicians can submit audio content that can be modified for users’ pacing needs.”

      In light of the rest of the specification, what do you envision happening to the audio content that satisfies the “user’s pacing needs”? A non-“sensible” tempo? An inappropriate tempo?

      Here’s a few of the other objects:

      It is another object of the present invention to provide a system and method that allows users to add audible sounds, signals, statements, phrases, or tempos to songs that help users identify a song’s tempo for pacing purposes.

      Would a non-“sensible” tempo be appropriate here? Nope. But a “sensible” one certainly would.

      It is still another object of the present invention to provide a system and method whereby users can download mixes of songs according to BPM, enabling users to achieve desired heart rates, or to burn a desired number of calories during an activity.

      BPM = beats per minute (i.e., the tempo). Does this object sound like it’s aimed at producing non-“sensible” tempos?

      My point is that the objects of the invention are largely consistent with the omnibus statement (the opinion notes that not all of them are). If none of them were consistent with the omnibus statement and if the claim at issue was plainly directed at an object that was not consistent with the omnibus statement, I’m sure the court would have found a way to ignore or diminish the impact of the omnibus statement (unless, of course, the court simply wanted to kick the patentee in the shins — a totally understandable motive under the circumstances here where the patent should never have been granted in the first place for any of the ridiculous “objects” that are described in the spec).

      I don’t see how a malpractice claim against the drafter would ever apply in this cae because the patent should never have been granted in the first place. But for the limitions from the “omnibus statement” being read into the claim, this claim would never have gone up to the Federal Circuit on claim construction grounds. It would have been invalidated as anticipated or obvious, then appealed, and then we’d see a Rule 36 affirmance of the invalidation.

      Get this garbage out of the patent system already.

      1. burn a desired number of calories

        By the way: is this fourth grade math or fifth grade math?

        Just trying to figure out the level of “skill in the art” here.

      2. Mr. Moonbeams: I don’t see how a malpractice claim against the drafter would ever apply in this cae because the patent should never have been granted in the first place.

        Interesting affirmative defense. Get the jury to split hairs as to liability: the drafter of the application or the person who advised the inventor the invention was patentable.

      3. Mr. Moonbeams: In light of the rest of the specification, what do you envision happening to the audio content that satisfies the “user’s pacing needs”? A non-“sensible” tempo? An inappropriate tempo?

        The point was not what can be inferred from the spec. The point was what the object-clauses “include.” Sure, I guess any part of a specification can be read into any other part, but the term “include” doesn’t normally include such inclusions.

        1. The point was not what can be inferred from the spec. The point was what the object-clauses “include.”

          My point is that if you use your entire brain you can see quite easily that most of those object-clauses require “sensible” tempos.

          It’s an important fact that is relevant to this case and the outcome. That’s all I’m saying.

    5. Babel, one might add this. It is here that I begin to agree with the opinion.

      “…[E]ven if Pacing is correct that this embodiment does not play a sensible
      tempo and therefore would be excluded under our construction, this is not a reason to ignore the specification’s clear and unmistakable disavowal. It is true that constructions that exclude the preferred embodiment are disfavored. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996). However, in a case such as this, where the patent describes multiple embodiments, every claim does not need to cover every embodiment. See Aug. Tech. Corp. v. Camtek, Ltd., 655 F.3d 1278, 1285
      (Fed. Cir. 2011). This is particularly true where the plain language of a limitation of the claim does not appear to cover that embodiment. The preamble of claim 25 differs from the preambles of the other seven independent claims. Claim 25 requires a “repetitive motion pacing
      system for pacing a user.” The plain language requires the system to pace the user. We conclude that the system of claim 25 must be capable of producing a sensible tempo for pacing the user.”

  5. “Here, the court took a statement-of-purpose from the specification and deemed it a clear disavowal of claim scope. That approach makes logical sense because it truly limits the claim to the subject matter that the inventor believed she had invented. ”

    It does seem fair to limit inventor William Gibson’s claims to what *she* believed *she* invented.

  6. A little OT but following up on some earlier comments:

    There is but one thing the specification must contain, and thus should only contain: a written description to enable someone to make and use the invention of the claims. This is the duty owed to the public that has been imposed
    by Congress, nothing more. The only remaining professional duty is to advocate for the broadest enforceable coverage possible for the client.

    Because there is no statutory requirement for a background, professionally drafted backgrounds that are more than merely cursory are usually driven by an overly-voluble inventor who insists on proving he’s the smartest guy in the room. This is why adult supervision is sometimes necessary to explain that no reason exists to gratuitously festoon the file history with estoppels on the face of the patent prior to prosecution. If the patent haters do not like this fact, they should write their Congressmen.

    1. You’re forgetting one or two of your audiences. You have three audiences for the patent application and granted patent. (1) The Examiner who has to read and understand the invention and the claims. (2) The inventor who has to see his/her invention in the spec and claims. And most importantly, (3) the judge and jury who will be deciding the infringement action some years down the road.

      If you don’t provide some background information so that the non-technical jury can understand what the invention is all about, you’ve failed in your job. Yes, yes, explaining the invention to the jury is what the attorneys are supposed to do in litigation, but don’t forget one simple fact: the patent goes into the jury room with the jury when it’s time to deliberate. The attorneys’ explanation doesn’t.

  7. ” However, my problem with the approach is that patent attorneys will walk away with the solution of avoiding any discussion of the purpose of the invention or else choose to provide discussion of purpose so full of caveats and exceptions so as to eliminate the potential for clarity in understanding the technological advance being disclosed.”

    Hasn’t this ship already sailed?

    1) The Background section does not contain background.
    2) The Summary isn’t a summary (it’s a repeat of the claims). No one I know has used “objects of the invention” in years, perhaps decades.
    3) The Abstract isn’t an abstract (it’s a repeat of the claims). At one time, the Abstract couldn’t be used against you, but the CAFC overruled that.
    4) Any mention of background can be used against you. Consequently, many attorneys completely remove any mention of background or prior art from the application.
    5) We can’t put what problem is being solved, as that can be used against us. Thank you, Supreme Court.

    Basically, you get a document that’s completely or mostly devoid of context, and that hides the invention between layers of obfuscation.

    This is where the European rules are better than ours: the Europeans can actually put in true background and make it known what the problems being solved are and how the invention goes about solving those problems. They can have “objects of the invention” that help to understand what the invention is. (Now, if they would stop drafting incredibly broad claims, put definitions in their applications, etc., they’d truly have great patents.)

    1. that can be used against us

      I’m pretty sure that any fact about the prior art or the relation of your innovation to the prior art can be used “against you” regardless of whether you disclose it to the PTO or the public in your specification.

      This habit of “bluffing” to obtain a patent that might not otherwise be granted is one of the primary reasons that broadest reasonable interpretation is built into the system.

      1. It’s not “bluffing” and it’s not a mere fact of the prior art itself.

        Any admission that you make works against you – even if you make the admission in error.

        Try not to be so anti-patent.

          1. Let’s be pedantic, shall we?

            Here is my minor correction:

            Any admission that you make may work against you – even if you make the admission in error.

            An item admitted by the applicant to be “prior art” is deemed prior art, even if technically that is not a correct statement.

    2. This is where the European rules are better than ours: the Europeans can actually put in true background and make it known what the problems being solved are and how the invention goes about solving those problems. They can have “objects of the invention” that help to understand what the invention is.

      The US has this too, all the examples you list are just people trying to get something for nothing. “Used against us” is code for “We won’t be able to make arguments we know are false.” Those sections exist, there’s just (currently) no penalty for avoiding filling them in.

      Basically, you get a document that’s completely or mostly devoid of context, and that hides the invention between layers of obfuscation.

      Sounds like you’ve hit upon the solution right there.

    3. Good comment.

      I preferred the good ole days, many decades ago, where in the Background you told a little story about the prior art (and maybe even had a (Prior Art) drawing or two of it) and all of its problems. And then you described how the invention solved those problems.

      1. For a European, that’s an interesting comment. All this intricate lawyerly discussion about claim construction is all very well, but are we not in danger of losing sight of the bigger picture, by which I mean, putting readers of the patent application (and patent) into a frame of mind receptive to the idea that this is a meritorious contribution to the art for which the inventor deserves a patent with a scope commensurate to that contribution? All the fancy lawyerly claim construction in the world won’t help your client if your drafting for that client fails to enthuse the reader as to the inventive merits of the claimed subject matter, starting with the Examiner in the Patent Office. So, make that your priority. We are simply selling our client’s invention to the PTO, aren’t we? So, in your drafting, concentrate on that, above all else.

        As I see it, the way to do that is to draft in the way Sticks tells us it was done in the good old days.

        In Europe we still are in the good old days. For a techie who wants to explain technology, patent drafting is bliss, so Euro-drafted stuff is more likely to be good stuff for the intended reader, the PHOSITA.

        1. Sure, choosing to ig nore the reality of “patent profanity” is a great way to serve what you like to do and “best” serves the client…

          Um, not.

    4. PatentBob is right. Many practitioners are now loathe to use the word “invention” in their patent applications, lest an examiner or a court use that assertion to limit what claims the applicant is entitled to. And these practitioners strip the “Background of the Invention” of any mention of the prior art, because it amounts to an admission that the reference actually is prior art and because one may regret the way a reference is characterized during prosecution or later.

      However, it seems unlikely that one can protect oneself by saying “In one embodiment this disclosure provides …” versus “In one embodiment this invention provides …” And, while it is possible to create prior art from something not otherwise available under 102 by characterizing it as such, one does not create prior art by referring in the Background to a previously published reference. So, if characterized at all, the characterization is anodyne.

      The ship has sailed. Get with the program.

  8. The only thing I find remarkable about this case is what it turned on – that there are apparently patent attorneys at this late date still writing U.S. specification “objects of the invention” or “summaries of the invention,” much less those that may be narrower than a literal claim reading. Is there some kind of “CLE shield,,” or blinders issued to prevent reading Fed. Cir. opinions, for Neanderthal patent application writers or patent attorneys who should be supervising their work?

    1. P.S. Further as for “taking a statement-of-purpose from the specification and deemed it a clear disavowal of claim scope,” no one is forcing anyone to write that way, much less to make statements of purpose that do not even apply to all the claims.
      In describing specific exemplary embodiments in the body of the spec [NOT in archaic practice “objects of the invention” or a “summary of the invention”] one can mention what that specific example accomplished or was intended to accomplish.

      1. Cannot “statements of purpose” be worked into some original dependent claims with functional language in many cases? Is not that a more appropriate location for “clarity in understanding the technological advance being disclosed?”

  9. The strategy used by some patent applicants is to include preamble terms that make the claim scope seem reasonable and well grounded, but with the hope that those limitations will not be given effect later in enforcement proceedings.

    I’m assuming that this an opinion, Dennis? If not, I’d be interested in your source.

    I doubt this is a strategy that is consciously employed by prosecuting attorneys very often. I think the more likely explanation for most of the controversies over preambles arise when a patentee (or its litigation counsel, or both) decides, long after the patent is issued, that it would be really helpful if the preamble’s language were discarded.

    My best guess is that most attorneys try to write claims that cover the invention, and I think that is likely the story in this case as well. The attorney probably wrote claims directed to a “repetitive motion pacing system” because the attorney understood the invention to be an inventive repetitive motion pacing system.

    1. I doubt this is a strategy that is consciously employed by prosecuting attorneys very often.

      It may not be “conscious” but putting the “intended purpose” of the “system” in the preamble has the effect — regardless of its ultimate “legality” — of making the claim appear to be more narrow than it actuallly is (unless, of course, the preamble is ultimately construed as limiting).

      The same is true for many other clauses in claims that are both unnecessary and obscuring with respect to the actual “innovation” that the applicant is seeking to protect.

  10. Philips was about whether a baffle could have other than oblique angles with a wall, the only examples being such. The patent disclosed at least two different objects for the baffle: bullet deflection and mechanical support. The argument was made that the claimed baffle had to be construed to have only oblique angles because that was an object of the invention and and constituted the only disclosed examples. Yet the court did not limit the claim to oblique angles because there was more than one object for a baffle. The oblique angles was for the purpose of deflecting bullets, but was not disclosed as being necessary for mechanical support.

    I am concerned that this case may not be consistent with Phillips because there are examples that do not have a tempo requirement, which seems to suggest that the invention was not so much about tempo, but about something else as well. I have not looked into the specification, file history etc. to determine what this is, but this case is disturbing and seems wrong.

    1. Ned, the problem with the construction is that on its face the claim is incredibly broad. It’s a system comprising (1) web site for receiving data, (2) a “storaga and playback” device that can receive, store and display information, and a (3) “communcations device” for transferring the data from the website to the “playback” device.

      A repetitive motion pacing system comprising:

      a web site adapted to allowing the user to preselect from a set of user-selectable activity they wish to perform and entering one or more target pace values corresponding to the activity;

      a data storage and playback device; and

      a communications device adapted to transferring data related to the pre-selected activity or the target tempo or the target pace values [from the website to] playback device.

      The hardware here includes pretty much every old computing device connected to the Internet. What’s allegedly “new” is the information being requested and provided. That information, of course, is ineligible for patent protection. It’s also ancient.

      Setting aside the monstrous invalidity and eligiblity issues, if the defendant’s storage/playback device is capable of converting the received website data into *any* detectable audio or visual signal (aka “playing back”) “related to” the “target pace value” then the system infringes. Information “related to” the “target pace value” would seem to include “the target pace value” itself or an indication that the user’s actual pace is greater or less than the target pace value.

      Yes, that is an incredibly broad and certainly invalid claim. Computers are old. The Internet is old. Devices that can receive data about a pace/tempo and display “related information” to that pace/tempo are old. Pacing yourself is old. Using computers to pace yourself is old. Heck, a computer that you wear on your wrist that beeps a tempo according to your desired pace is surely older than some of the patent attorneys who comment here (I had one back in the very early 80s and it wasn’t exactly “experimental”).

      What’s messed up about the process at the distict court is that the plaintiff here should have been forced to stipulate that if their broader construction was adopted, then the claim is invalid. Why beat around the bush? Why pretend we were all born yesterday?

      1. MM, how many times have we discussed this. When a claim can only be construed one way and that way leads to invalidity, so be it.

        This situation is not one where the claim was ambiguous in any fashion. It only required that the website communicate data to the machine’s data storage. This data was either
        1) related to the pre-selected activity;
        2) target tempo or
        3) target pace values.

        The court held that the machine itself be capable of producing sensible tempo to a user while one embodiment only showed a map the user selected that scrolled according to the user’s pace. The display then tells the user “total distance traversed over time, average pace, locations, calories burned, etc., which information can be uploaded to the system 100 and stored in the database 116 as part of the user’s user profile.” This embodiment is entirely consistent with the principle object of the invention (a time-based workout) and the claim itself.

        I see no clear disavowal here, and the ultimate holding is inconsistent with the claim and with the principle object of the invention.

        What I see in this case is what I call rough justice — a court reading into the claim something that was not there and which is truly inconsistent with the specification and for a purpose – to get Garmin off the hook.

        I am not sure about the validity of this claim from any viewpoint. However, new systems that provided videos of locales that scrolled as one walked on a treadmill were a big item during the last holidays. If this inventor was the first to do that, bully for him. If not, so be it. But to having his invention robbed from him by this kind of rough justice is simply wrong.

        1. What I see in this case is what I call rough justice — a court reading into the claim something that was not there and which is truly inconsistent with the specification and for a purpose – to get Garmin off the hook.

          At best you’re looking at rough injustice because the patentee lives to fight another day when it’s patent should be torn up and tossed in the trash. Claim 25 is obvious or ineligible. It’s junk. Nobody with a spine and half a brain will ever be “on the hook” for infringing that claim.

          new systems that provided videos of locales that scrolled as one walked on a treadmill were a big item during the last holidays.

          So were candy canes. WHO CARES.

          1. MM, I have reconsidered in view of the text at 9-10 of the opinion that the claim is limited by the preamble to pacing and pacing requires a machine to produce a sensible tempo.

            Other claims not requiring pacing may not be so limited.

            1. OT, but of possible interest (especially to Ned), but behind a paywall – so no link, is an article this morning on a failed attempt to oust a PTAB action on constitutional grounds.

              Case 1:14-cv-00672-GBL-JFA, Cooper v. Lee.

              Shot down for being premature and “will ultimately fail.” (Judge Gerald Bruce Lee)

      2. MM, without the limitation of the preamble to producing a sensible tempo, I think claim 25 is invalid on its face under 101. With that limitation, I am not so sure.

        This case could be a poster boy for some future argument that claims must be construed before 101 analysis.

        1. Ned: without the limitation of the preamble to producing a sensible tempo, I think claim 25 is invalid on its face under 101. With that limitation, I am not so sure.

          At best, this is a system that determines a tempo “over the Internet.” It’s not method claim. It’s a system. Actual playback is not required for infringement. A number goes out, a number comes back. Old technology. Old math. There’s no eligible innovation in the claim.

          Alice snuffs it out.

          Would some “new math” save the claim? Some fancy algorithm for determining a “beat per minute”? Maybe, although that effectively just protects some new math becaue every other aspect of the “invention” is old.

          Preambles that recite what theoretically could qualify as an eligible invention do not convert otherwise ineligible subject matter. Remember, Prometheus’ claims were described in the preamble as methods for improving a therapeutic treatment. Didn’t matter. And it shouldn’t matter.

          Given that computerized devices that produce a tempo are old, can I get a claim on a “new” method for producing a tempo that is distinguishable from the old method on the basis that my “new” method uses data that is obtained from a robot car? Or from a guy named Bruce Brainbomb? or from any other source that was previously “undescribed” but understood as capable of producing a crunchable number? The computer doesn’t care where the number is coming from, after all, nor does the loudspeaker care.

          I’d say that’s an ineligible claim. Data is data is data. Math is math. Computers process numbers.

          Get this garbage out of the patent system.

    2. I was right.

      Here is a link to the patent. link to google.com

      Look at the principle object:

      Accordingly, it is a principal object of the present invention to provide a computer-implemented, network-based system 10
      having a networked server, database, client computer, and input/output device for use by individuals engaged in repetitive motion activities, and a method of using the same by
      those individuals to achieve their time-based and/or pace-based goals for completing repetitive motion activities.”

      “Time-based” or “pace-based.”

      Two distinct objects.

      Two, not one as the decision reported.

      Two.

      Distinct.

      Objects.

      Since I own a machine like this, I know what the difference is between time based and pace based.

      One can say, this opinion is in direct conflict with Phillips if one looks into the facts of the case. What the opinion is very good at is not telling the whole story. In fact, the opinion is lying to us.

    3. Ned, the actual (a broad claim scope) claim construction decision in the en banc Phillips majority decision has been repeatedly ignored since [except for the part about the use of dictionaries] in numerous subsequent Fed. Cir. decisions in which at least two of the judges think the claims should be limited by the spec example. As I noted at the time, the Phillips decision text itself provides a loophole for the dissenters to do that which is big enough to drive a large truck through.
      Which is why all those demanding that IPRs be legislatively required to use a Phillips standard for claim interpretation [rather than the present BRI standard] are arguing for a more ambiguous and inconsistent standard that can vary depending on which Federal Circuit judges are on the panel.
      [However, I think it would have been difficult for any panel to agree to the breadth of claim scope that was argued in this particular case.]

      1. Paul, I know. I have had endless arguments about Phillips here with MM who seems to have an entirely different view of Phillips as well.

        There was a lot of dicta in that case, but the holding was simple and clear. When there are multiple purposes, objects, for an element, and the claim does not require a particular aspect of that element in context, it is error to limit the claim to that particular aspect.

        That is all the court actually held.

      2. Paul, on this case, I concede that the claim limitation to pacing requires a machine to produce a sensible tempo per the specification.

        If this claim were in the PTO, it also seem clear that the Board would not limit the claim to the preamble, but would read the claim as only requiring the elements of the body. How that works out for novelty purposes would be interesting if this patent ever gets to the Federal Circuit from an IPR where the PTAB construction was at variance from the construction of the court here.

  11. I. In my mind, the right decision is that the claim preamble should be limiting in this case — and in all cases.

    But nothing entertains me more than giving a straight 101 rejection to a “device comprising” modules of code and watching the response!

    “II. Here, the court took a statement-of-purpose from the specification and deemed it a clear disavowal of claim scope. That approach makes logical sense because it truly limits the claim to the subject matter that the inventor believed she had invented. However, my problem with the approach is that patent attorneys [will work around it]”

    This is part of the problem of patent law. See the claims, by definition, ARE limited “to the subject matter that the inventor believed she had invented.” It’s a statutory requirement. It can’t be gotten around. The idea that there is some sort of special doctrine in play here that can be voided with proper word choice is part of the problem with patent law. When all your examples share a structure, that structure is a de facto limitation. It’s a limitation whether you explicitly call it a limitation in the spec, or in the claims, or ignore it completely, because you can’t sustain an infringement action against an “infringer” who uses a different structure than you’ve proven you have. To the extent there are several FC decisions suggesting the opposite, they are simply wrong, as Supreme Court law (and the occasional correct FC decision) controls on the issue.

    Applicants lack the ability to, as some on this board call it, abstract out features whenever they feel like. Possession of a particular fuel-efficient engine does not support a claim to all fuel-efficient engines, no matter the difference in structure or mode of operation.

    Claim 25 reads on a whole host of things. Claim 25 would be invalid but for the FC bending over backwards to save it. It’s irrelevant whether one jumps through circus hoops to save a claim by shrinking its scope or simply declares the scope invalid, the point is the broader scope is not available to them.

    1. RG: It’s irrelevant whether one jumps through circus hoops to save a claim by shrinking its scope or simply declares the scope invalid, the point is the broader scope is not available to them.

      It’s not “irrelevant” to the vast universe of other people who are undoubtedly legally entitled to transmit an intermittent signal to a “playback device” upon request, whether that request occurs in person, by mail, by email, by phone, by Internet, by mobile phone, by “handset”, by “headset”, by dashboard of robot car, by super techno wristwatch or any other technology designed for communicating signals.

      But this is the state of our broken patent system. We’re all supposed to look the other way because otherwise (so we’re told) we’d never have awesome beeping technology over the Internets.

      1. It’s not “irrelevant” to the vast universe of other people who are undoubtedly legally entitled to

        Well that’s an obviousness argument that I’m not discussing. I’m talking about the breadth of the grant assuming there is an invention. It is irrelevant whether you simply shrink the overbroad scope by jumping through hoops to save it or whether you declare it invalid and force a better fitted (and probably not infringed upon) dependent to stand.

        1. It is irrelevant whether you simply shrink the overbroad scope by jumping through hoops to save it or whether you declare it invalid and force a better fitted (and probably not infringed upon) dependent to stand.

          Got it.

          1. I’m still trying to figure out where those abstract ladders of abstraction would go, if they did go away.

            Given who their continual advocate is, I’d say Fantasyland 😉

        1. Since over 95% of claims that have any value utilize the ladders of abstraction, clearly I was talking about perfectly valid claims.

          Don’t be obsequious.

          As for DanH/Leopold, your last smarmy attempt to be a smart-@$$ on the topic did not end well for you.

          You seem to conveniently forget about that…

          1. Since over 95% of claims that have any value utilize the ladders of abstraction, clearly I was talking about perfectly valid claims.

            Ah, I wasn’t aware of the case linking valid claims to ones with monetary value. Citation?

            1. School of gen er al experience and common sense (also based on the facts of claim writing experts as previously supplied to DanH/Leopold).

              Need more? Check the archives.

    2. But *some* amount of abstraction is of course available to all applicants, lest the slightest variation avoid infringement. The question is just about “how much,” and try as we might nobody seems to have a better answer than “I know it when I see it.”

      1. But *some* amount of abstraction is of course available to all applicants, lest the slightest variation avoid infringement. The question is just about “how much,” and try as we might nobody seems to have a better answer than “I know it when I see it.”

        Well that’s not entirely accurate, I mean clearly there can be no unified rule because each situation is fact specific, but Lizardtech and Ariad lay down a sufficient test, imo. You need to have a specific example, and then other examples or an expanding principle. When you have no example, you have nothing to expand upon. When you have an example but no disclosed principle or other examples, you might be able to say he has enabled a broader scope (this happens in software all the time) but not necessarily passes written description for it. Then we have the functional language that often results in a 101 issue as well. 101 and 112, 1st hem in a claim more than practicioners seem to think.

    3. Random can you say more about your choice of the word “irrelevant” in your:

      “It’s irrelevant whether one jumps through circus hoops to save a claim by shrinking its scope or simply declares the scope invalid, the point is the broader scope is not available to them.”

      You see, I think it not irrelevant and, actually, important. When a claim ought to be struck down as invalid, but is not, there are adverse consequences for legal certainty, and so for business planning and also for the NPE sector.

      1. You see, I think it not irrelevant and, actually, important. When a claim ought to be struck down as invalid, but is not, there are adverse consequences for legal certainty, and so for business planning and also for the NPE sector.

        I’m not sure what the adverse consequences are, since regardless of whether you strike down or shrink on construction you a) didn’t know before the ruling whether the larger scope was valid and b) after the ruling, didn’t infringe the larger scope because it doesn’t exist one way or the other. So it has adverse effects in a lack of legal certainty, but its not especially uncertain from any other situation.

        This has always kind of been how things were done is my understanding – that’s how means plus got to be means plus. Courts were construing “means for” in an equitable manner to save the claim, while the Supreme Court just said you take the limitations before you and found the claim invalid, which lead to what is now 112(f). So I suppose you could say that Halliburton has already spoken on the issue (for claims that don’t invoke 112(f) of course).

        1. For me, used to the notion that there can be only one true construction of a claim, it is important when I offer an FTO opinion to identify that construction and then work out whether, on that construction, the claim is i) invalid or not and ii) wide enough to include the subject embodiment within its ambit. This degree of legal certainty confines litigation to those few cases where both sides think they can win. That’s important, I think.

          If, Random, I read you (and MM) right though, it is “irrelevant” if the ambit of the claim is too elastic to pin down. And perhaps it is, in the USA, a given that the ambit cannot be identified before the court tells us what it is.

          Irrelevant because one can anyway safely opine that the claim is either too wide or too narrow. If in the end it is judged to be narrow, it might well be valid but it ain’t infringed. Conversely, if the FC holds it to be wide, it might well be infringed but that’s OK because in the end it will be downed as invalid.

          All very well, just as long as there is no room for a middle way, wide enough to catch the infringer but narrow eniough to resist all the validity attacks.

          What determines if such a middle way exists? Perhaps the colour of the hats (black or white) worn by the litigating parties. Is that where the “legal uncertainty” creeps in? Here, were Garmin wearing white hats?

          For me, the problem is that the outcome is unknown till the FC sings. The existence of that problem is what created the trolls, isn’t it?

  12. “patent attorneys will walk away with the solution of avoiding any discussion of the purpose of the invention or else choose to provide discussion of purpose so full of caveats and exceptions so as to eliminate the potential for clarity in understanding the technological advance being disclosed.”

    Yep, that probably is a practice tip from this decision

    1. In light of Nautilis, I don’t believe that intentionally obscuring what you believe to be your patent-worthy innovation is that great of a “practice tip”.

  13. I’ve never understood rules like this: “a claim preamble will not be seen as limiting unless it “breathes life and meaning into the claim” In re Wertheim, 541 F.2d 257 (CCPA 1976).” Could we be more obtuse? 😉

    This is just another ruling telling us what we already knew, which is that preambles are bad. If you don’t want the preamble to be limiting, remove it; if you want the preamble to be limiting, put it in the body of the claim. Otherwise, you never really know how the preamble will be interpreted, until it is.

      1. What lengthy preambles do is create ambiguity in scope.

        And since they could easily not be included, or included elsewhere, what does Nautilus say on the issue?

          1. Nautilus is silent on the direct topic of preambles.

            That’s a pretty blithe comment. Nautilus discusses all claim language. What makes you think preambles would be any different? If language is not reasonably clear then the scope is indefinite – Nautilus didn’t limit the language to a particular type or a particular location within the claim.

            1. It is not blithe at all – rather, it is succinct and directly answers the question you asked.

              If you meant to ask some other question, please feel free to ask that one.

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