The Patent Act requires that patent claims be clear and distinct. 35 U.S.C. 112(b)(“The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.”). Ambiguity is important because it can fundamentally smudge patent scope and resulting enforceability. As a friend recently commented to me – that ambiguity fuels conflict and (in my view) helps spoil the market for patents.
The rule of definiteness is designed to put the world on notice of the scope of the exclusive patent right. Unduly ambiguous claims are not patentable and – if patented – are invalid. As the Supreme Court recently held, the scope must be “reasonably certain” to one of skill in the art. Nautilus (2014). Although not requiring absolute certainty, reasonable certainty remains a high standard that has been thought of as a civil equivalent of the beyond-a-reasonable-doubt standard used in criminal cases and is the same standard used to prove lost-profits damages.
Applicant Responsibilities: The Examiner is the first adjudicator of indefiniteness, but it is applicants who draft and amend patent claims. The patent system creates some incentive for applicants seek some claims that are ambiguous (with other claims being more well defined). However rather than addressing that partial incentive for ambiguity, I wanted to think for a moment about the applicant’s requirement under the law.
The Duty of Candor & Good Faith Dealing is a fundamental aspect of the patent prosecution system. Rule 56 includes:
Each individual associated with the filing and prosecution of a patent application has a duty of candor and good faith in dealing with the Office, which includes a duty to disclose to the Office all information known to that individual to be material to patentability as defined in this section. The duty to disclose information exists with respect to each pending claim until the claim is cancelled or withdrawn from consideration, or the application becomes abandoned.
37 C.F.R. § 1.56.
Although patent attorneys (and agents) have a duty of zealous advocacy for their clients (37 C.F.R. § 10.84), the duty of candor and good faith dealing is significantly raised in the ex parte patent prosecution process in comparison with traditional adversarial proceedings such as litigation.
It seems to me that the duty of candor would kick-in if the applicant knew a claim term to be unduly ambiguous (scope not reasonably certain). The bigger question involves other what-ifs: What if the applicant knows of that a term has multiple definitions that leave the term potentially indefinite; and what if the applicant knows that a term is not well defined in the art?
Comment # 24 below generates a debate about the duty of candor which (for me) reveals a fundamental difference of understanding between the USA and the rest of the world, and I should like to see that discussion continue.
I asked Ned what to do at the USPTO if the Examiner cites Example 3 of the prior art reference but Ned can see that Example 13 is more relevant to patentability. Here’s what he wrote in reply:
“Max, argue against 3, point out 13. If the examiner says you have overcome 3, but then cites 13, you can then overcome 13.
If, however, the examiner allows the case after you have pointed out 13, you can argue with some force that 13 was not more material than 3, just cumulative.
I expect this would stand up in an opposition as well.”
I can’t understand his last para. Ned what do you mean? Outside the USA, no tribunal or court gives a tinker’s kiss what the EPO Examining Division happened to think before grant. What does a PTO Examiner know about ordinary skill and common general knowledge in the art. They sit in their ivory tower reading attorney work product all day, and patents full of ridiculous statements like “Surprisingly and unexpectedly, when I put more air in my bicycle tyres, I reduce their rolling resistance”.
Opposition is another matter entirely, for then they hear the other side of the patentability story for the first time. And there are always two sides to any story.
So Ned, please, what does “stand up” mean, for you?
I have to chuckle as the continued “debate” here reminds me of why there is only one person blindfolded and swinging a stick at a piñata.
Both views by MaxDrei and by Ned show that the piñata remains whole and both Ned and MaxDrei are getting bruised.
Ned – you do realize that art already of record can be used in arguments that were not previously made, right? Yes, you can point out that the art is of record, but the argument of “it’s cumulative” falls flat if that same art is being used for a different point (that is what MaxDrei is trying to point out to you).
MaxDrei, your question as to whether examiners know or understand PHOSITA is beyond silly. It is their job to know and apply that standard.
If they don’t know that standard, why are we even bothering with any examination at all in the first place (the system for which is paid for entirely by innovators to the tune of Billions of dollars in government fees alone).
Why bother with examination on the merits? Even when the Examiner lacks the mental furniture of the notional addressee of the patent? Easy.
Inventors and their attorneys are prone to see the patentable merits of the Invention and are blind to the demerits. As Simon and Garfunkel (almost) have it “A man sees what he wants to see, and disregards the rest”. The Job of the Examiner is to see those demerits and confront the one-eyed Applicant with them. Applicant, being a PHOSITA, can then gratefully acknowledge receiving those Examiner viewpoints, weigh them for substance, and then take whatever Action is proper, to address them.
Examination on the merits gives Applicant a much enhanced chance to take through to issue claims that will withstand inter partes scrutiny of their validity ie the chance to have, at issue, a presumption of validity. Such a presumption is not made available by a pure Registration System. It is a huge benefit, to the public, to innovative industry, and to its competitors.
You have this knack for contradicting yourself and being rather muddled at times.
1) the applicant is NOT the PHOSITA
2) you just finished lambasting the examiner for lacking the proper skill of being ale to apply the PHOSITA – and now you want to backtrack and say that the value is there because that skill is there.
Make up your mind my friend.
The mutual incomprehension between me and Ned set me thinking overnight. Europe controls indefiniteness in issued patents in a way very different from the approach used in the USA. I think it helps both jurisdictions, to understand how the other one does it.
In Europe the file wrapper is not used as an aid to claim construction. Instead, the claims are taken at face value, construed in the context of the specification, by a notional addressee who is a person of skill in the art who has not read the wrapper.
But more important than all that are two further details of practice in Europe.
First, indefiniteness (clarity) is not open to argument, once the patent issues. If the claim is unclear, well, tough. The courts have to deal with it as it is. Indefiniteness is not a ground of attack on validity.
Second, it is the Office, not the Applicant, that proposes a text for grant. You want an effective text to issue? Ok, well then, work with the EPO Examining Division, to make sure (as best you can) that you get one from the Office.
The EPO announces what it “intends to grant” and Applicant has 4 months to reply, either approving or disapproving the text proposed for grant. You don’t like it? OK, then disapprove. But before you do, be aware of the consequences for your client if you do.
Is Europe right, to deny lawyers the opportunity to attack validity after issue, on the ground of indefiniteness? Mainland Europe still thinks it is. In contrast, English litigators still want every EPO patent to be open to attack, on the ground that the patent falls short of being 100% clear. I think they are just looking for work, because there has never yet been a patent issued that is 100% clear. Mere words can never succeed in capturing perfectly the essence of an inventive concept. There is always room for lawyers to argue what the invention is. Do you want to give them free rein? Oops, sorry. Silly question.
Thanks Max – good post (no snark)
Here, our CAFC wanted it to be more like the EP (not sure if that was a Rader thing), but our Supremes do not like such clear lines.
Yes language is an imperfect medium, even in the best of hands. I can only imagine what the multiplicity of languages in Europe must do to the situation.
As you may already know, anon, running on the IPKat blog is a thread about using as prior art a translation of a published document:
link to ipkitten.blogspot.de
In the thread to that IPKat post is a reference to an interesting article by Grover:
link to philosophynow.org,
in which Grover notes how hard it is to define an invention, if all you have is words.
It had not occurred to me before, but the notional PHOSITA is (presumably) deemed to be able to extract meaning from a prior publication, just as easily when it is in Chinese, Russian or Basque, as when it is in American English. No ordinary person, that legendary PHOSITA, that’s for sure.
Even a thousand words at a time are not enough (at times) to do Justice to the inventions of the mind’s eye…
😉
Max, I have always had problems with the concept that prior art published in one language should be automatically be prior art in a different language.
I think the effective date of such prior art should date from the date of the publication of at least an abstract in the other language.
I would welcome a treaty clarification.
I also think the United States should amend its laws consistently.
I also think that public use and knowledge in another country should not be prior art in this country. U. S. patents only cover the United States and do not preempt activity outside United States. There is absolutely no reason at all to invalidate a U. S. patent based upon foreign knowledge or public use. This makes no sense whatsoever and the people who got the Congress to amend the laws to extend public use and knowledge the way they did ought to be excoriated.
Ned,
You know who did that…
In the olden days, intrepid explorers of overseas territories would, on return to the UK homeland, repair to their patent agent to report what they had seen, and take out a UK patent on it. The named inventor of such a “communication invention” was the patent agent. The grant of a patent was seen as promoting progress which would just not happen without the encouragement of a patent to retrieve for the homeland useful technology which would otherwise remain known only in Japan or Sicily or Iceland or wherever.
But about a hundred years ago, with the emergence of modern communications, the notion began to be recognised as outmoded.
And now you come along and want a return to those days. Ned, you cannot seriously suggest that what is exhibited at a Trade Fair in Hannover today will never make it back to the USA unless a US patent is offered as a reward for its import.
Or have I misunderstood you again?
I think that it is more subtle than that MaxDrei.
Rather than the blunt “but for” (for which modern communication surely answers as you suggest), the aspect of “what’s best for ME” (in the voice of the sovereign, of course) is the driving force.
And while the world, as they say, has become a smaller place, the question of what’s best for any one particular sovereign is – and remains – the true driving force of patent law (for example, witness the pharma debate and India).
That is not to say that the situation lacks external pressures (witness the US and the WTO), but no matter those pressures (and obviously others – like those of the large Multi-National Corporations), patent law remains sovereign law.
Yes, the US should look out for itself first and foremost. But to really do that, our politicians will have to realize that the mega-dollars from the mega-lobbying of the mega-corps do NOT have this country’s best interests first and foremost on their agendas.
That’s an easy message to get lost in all the philosophical battles going on.
Amen to that, anon. Amen.
The folks behind the AIA do not have the best interests of the US at heart.
They have their own best interests at heart. They are international companies and think like international companies.
When and if we have a world patent, worldwide known and public use would and should be applicable. Until that time, we have to remember that US patents cover the US only. Invalidating US patents based on non-US art not actually known before the application in the US should never happen.
“Ever” get back to the US is not the operative concept.
“Whether” in fact it got back to the US prior to the date of invention or filing as applicable is the operative concept.
Max, the concept that the prosecution history has no bearing on claim construction in court baffles me entirely. I will predict to you, with confidence, that this rule of sticking one’s head in the sand will not stand.
More mutual incomprehension Ned I suspect.
Ever since the start of modern patent law in Europe, we have got by without doing claim construction starting from the prosecution history.
But those seeking a line of attack on validity have always started by combing the wrapper for possible lines of attack.
So when you boldly predict that the way Europe does claim construction “will not stand”, you might be in for rather a long wait before your prediction comes true.
I see from another of your postings today (below) that you are waiting for patent litigation in Europe to become more “defined” (I guess you meant “refined”), presumably for it to come closer to the higher levels of refinement you see in the USA. You disappoint me Ned. You seem to be totally ignorant of how refined patent litigation is now, at least in UK, DE and NL, and of the staggeringly high levels of refinement that the notion of “disclaimer” has by now reached, at the EPO.
I’m with Einstein: one should eschew over-simplification but, subject to that, keep things as simple as possible.
I’ll reply below to your other post today.
In this thread, comment # 21 sets off a discussion about how much to include in letters to the Examiner of your patent application at the USPTO.
It often happens, that the Examiner cites the right prior-published document but misses the sentence in it that provides the most potent attack on patentability. What to do?
In Europe, with no Duty of Candor, and no post-issue scrutiny of the File Wrapper, but with post-issue validity settled on a “more likely than not” standard and no post-grant tribunal, judge or court giving any deference to the EPO’s work prior to issue, one would take care to go to issue with a claim that is robust against the most potent attack you can conceive, including the one that you have identified but the Examiner has not (yet). I would however be inclined deliberately NOT to draw the attention of the EPO Examining Division to that potent sentence though. Why complicate matters unnecessarily for your client?
Opinion seems to be divided, on whether at the USPTO you must point out the potent sentence to the Examiner. Could an assiduous reader of the EPO prosecution infer a Lack of Candor in the USA out of a Lack of Candor at the EPO? You could argue it to a jury, I suppose. But would it help?
I find this post from MaxDrei, like most of his posts, to be somewhat muddled.
Three separate thoughts:
1) MaxDrei seems to want to interject differences in the two sovereigns as if those differences are meaningful to the point at hand.
Truth be told, his conclusion of “ one would take care to go to issue with a claim that is robust against the most potent attack you can conceive” is a truism no matter what the differences between the sovereigns are. It matters not at all then, the scrutiny or effect of the file wrapper, or the standard that MaxDrei often detests (clear and convincing). I do not see why these points are introduced into the topic.
2) I would be interested in understanding this notion of “why complicate?” versus the view as listed by Ned as “having something clearly on the record.” I am curious as to how this single item can be viewed on the one hand as “complicating” but in sharp contrast to be “clarifying.” These appear to be polar opposites and one view, or even both views (if applied at an extreme), cannot be correct, can they?
3) MaxDrei does inject a new and interesting wrinkle: cross-sovereign actions and their effects within different sovereigns. Well, it’s not that new of a wrinkle, given the Dayco/McKesson/Larson line of cases (not withstanding Therasense and the “but-for” wrinkle in post-grant questions, as opposed to action while still in the patent office), answers already available do indicate that the duty that might arise from knowledge on related matters does exist – and the duty concerning that the knowledge is not (nor ever has been), constrained to only that knowledge attributable to one country or actions in one soverign – at least in the US, the duty of candor does include ANY action ANYWHERE in the world, even if that action is merely on a related – but foreign – application being pursued in a foreign jurisdiction under foreign law. It would appear that that case answers MaxDrei’s query of inferring a lack of candor in the affirmative.
Max, if you want a bulletproof patent, you have to bring the best prior art to the attention of the examiner. In the United States, if the prior art was before the examiner and patentability issues were discussed, that piece of prior art cannot be used against you in a subsequent re-examination and, while this is not crystal clear yet, in any other postgrant review.
As well, both the courts, particularly during claim construction, and the juries are very much interested in the proceedings in the patent office. If a reference and the issues were clearly articulated, and resolved in favor of the patent owner, the courts and the juries tend to give deference. When you speak to the examiner you are speaking to the court and you are speaking to the jury. You have to keep this in mind.
I have handled the prosecutions, including reexaminations, of numbers patents that have been involved in litigation. What I said or did not say was highly material to claim construction. But I was aware that what I said was going to be read by a court when I said it; and I said it in a way that I was speaking not only to the examiner but to the court.
I always want to know what the best prior art is and I want to make sure that it is before the examiner and discussed.
Ned I’m obliged by your answer but unsure I understand you.
Let’s go back to the prior publication D1 that is on the record and on which the USPTO Examiner is relying. Examiner relies on (say) Example 3 for the 103 rejection, but makes no mention of Example 13. You look at D1 rather more carefully, and you see that the objection to patentability would be more potent if it were to start from D1’s Example 13. Do you draw Example 13 to the attention of the Examiner? Do you re-set the 103 objection starting from Example 13 and then argue even that more potent attack is not well-founded?
On a related matter, I think about PCT and EPO search reports, and by the content of a Notice of Opposition at the EPO. They all cite the column and line reference in D1 where its most potent disclosure is to be found. When you report prior art to the USPTO, do you follow the same reporting style, citing for the Examiner the hottest spot in the cited doc?
Max, first I always submit the search report itself, not just the prior art.
Second, I don’t recall a specific example where examples in the specification were critical, but I generally say that there is a better reference and give a brief summary of what it discloses.
I don’t argue against a reference in the abstract. I wait instead for the examiner to enter a rejection and then I respond to it.
You have to understand that the cause of this in the United States is at times “broad as reasonable interpretation.” Because of this, the examiner might be searching in a slightly askew field. One ways of bringing the discussion back on topic, and indirectly arguing claim construction, is to point out to the examiner the better reference.
Thanks again Ned, but your reply just leaves me even more perplexed. It is as if we live on different planets. I can’t understand why you don’t appreciate what I’m on about.
Have a look at what CRP writes at 21.1.1.1 in this thread. In particular:
“… I argued against the cited part, and then brought up the uncited part and argued against that….”
I think that he and I are on the same issue, and look what consternation his remark caused.
Max, we have the problem of disclaimer in this country where if you say that my invention does not include this, then the scope of your claims is limited by disclaimer. An equivalent is saying that so-and-so prior art is not so-and-so claim limitation. That too is a disclaimer.
So one does not argue against prior art in the abstract. One argues against rejections from the examiner – and carefully.
So when bringing up new prior art to the examiner all you do is identify the prior art and describe its contents. That is not a disclaimer or even admission that the identified prior art is prior art.
The way we do things here in United States has a lot to do with the doctrine of disclaimer, and I think you might want to read some cases on that topic. And, let me predict, as patent litigation becomes more defined in Europe, that Europe will also adopt the doctrine of disclaimer. This will prevent most European patent attorneys from arguing against the prior art in the abstract. It makes no sense.
Ned your notion of arguing over the prior art “in the abstract” is something you understand but I don’t. Perhaps at this juncture I should stress the notion of Caveat Emptor. Those buying a patent from a Patent Office in Europe have in their own hands the responsibility to take to issue that which can withstand validity attacks after issue. The Examiner is their friend, not their adversary. Applicant needs the Examiner to rehearse all possible attacks, so they can be neutralised while there’s still a chance, ie prior to issue.
But can we not return to the hypothetical? Examiner cites a reference and points to its Example 3. Evident is that the Examiner would have been far better placed if he had cited Example 13.
So, in the USA, what do you do? A: do not mention Example 13? B: draw Example 13 to the attention of the Examiner? C: Reply to the Examiner as if the Examiner had invoked 13, but nevertheless in your reply make no mention of Ex 13? D: Something else? Which approach best serves your ends, of getting to issue with claims that a jury will find, on the basis of the file wrapper, to be good over Example 13?
Max, argue against 3, point out 13. If the examiner says you have overcome 3, but then cites 13, you can then overcome 13.
If, however, the examiner allows the case after you have pointed out 13, you can argue with some force that 13 was not more material than 3, just cumulative.
I expect this would stand up in an opposition as well.
Why not petititioners in reexams and IPRs?
The lying that goes on there is over the top.
How about an Examiner’s duty of candor?
Every Office Action should contain a statement saying whether or not the Application (or Applicant) is being subjected to SAWS.
Moot point on SAWS – however, during the Office’s brief glimpse into SAWS, it was shared that SAWS was but one of many such “quality” programs.
What else is there that has not seen the sunlight?
Actually, if you want some fact patterns where the law is unclear but duty of candor might actually apply:
1) The Examiner cites a reference, say as a secondary or tertiary reference, against some claims. You see that there are much more damaging parts of the reference that could be applied and cited by the Examiner but are not. You do not alert the Examiner to these more damaging parts of the reference. Did you shirk your responsibility under your duty of candor? Or because the Examiner is citing the reference, have you met your duty of candor?
2) You receive a search report and analysis from a foreign patent office (eg, the EPO). You send the references and analysis to the PTO in an IDS. You receive subsequent rejections from the US patent Examiner. These subsequent rejections use different references than cited in the IDS. The subsequent rejections are not on point. Does your duty of candor extend to pointing out that the EPO references are much more on-point than are the references cited by the Examiner? Or do you meet your duty of candor by submitting the references and the analysis by the EPO?
How often do these happen? More often that I’d like to admit.
PatentBob,
You raise some interesting questions, but seem to imply that there is in fact a duty to do more than supply the references, even so much as to imply that a duty to examine those or any references exists.
I would posit that your implications are not reached, and that the actual scope of duty does not – and cannot – rise to the level of examination. I would invite you to read again the case and history of Tafas as support for this position.
…that being said, a different duty may be invoked in pursuing claims that we professionally believe to be faulty and – if granted – would create a disservice to our client in being claims that are not enforceable. This type of consultation should be actively engaged and our professional opinion presented to the client and then we should follow the client’s direction or elect out right to discontinue serving that client.
Amen, brother. The hypo posited by PatentBob actually happened to me. The Examiner cited one part of a new reference in his OA which was inapposite. However, there was another part of that reference that was on point. I argued against the cited part, and then brought up the uncited part and argued against that. As far as I’m concerned, being a patent attorney and complying with the ethical commitment to zealously represent your client means you need to strive for claims that are not subject to misinterpretation by patent litigators. If I felt that a claim term could be misinterpreted, I’d either put the proper meaning in the spec or, if during prosecution, deliberately created file wrapper estoppel just so there would be no misunderstanding.
My best mentor taught me early that the highest value of a patent is in its enforcibility.
As many have pointed out across many threads, the possibility of litigation brings out a much more rigorous examination. ALL patent drafters should have this firmly in mind when they render service to clients.
Anon,
I agree with you. Not that they’re totally incompatible, but obviously this perspective often conflicts with the (common) perspective of “obtain the broadest claims possible.”
CRP, I do something like that all the time — tell the examiner that he has missed the best references and why.
Why do I do this?
To make sure that the best prior art has been considered — to ward off reexams and to enhance the presumption of validity.
… to ward off reexams and to enhance the presumption of validity
Can you cite a case where this “enhanced presumption of validity” has come into play?
I argued against the cited part, and then brought up the uncited part and argued against that.
Why? If you have legitimate arguments over the uncited part, and don’t need to amend the claims to distinguish them from the art of record as a whole, how does it help your client to put additional and unnecessary argument on the record?
Please note that I’m not advocating an approach of sneaking anything past the examiner – since you say you’re arguing over the uncited portions of the art, I’m assuming that those are credible and legitimate argument. If there is truly problematic art in the record, I’m advising my client to amend. But how does it help the client to do the examiner’s job for him or her?
DanH, since you are allowed to talk about what happened in the PTO to the jury, it makes a difference.
Thanks, Ned. I wonder about the value of that versus the risk of saying something about your invention or the reference that you might later regret. That said, perhaps the typical patent prosecutor worries a little too much about prosecution disclaimer, given that it must be clear and unambiguous.
There is nothing at all that is difficult, or interesting, about this topic. Dennis, have you ever drafted or prosecuted an app, or counseled on the same? It doesn’t sound like it.
This non-issue is why applicants typically look for a prosecutor with experience in their particular art to draft their applications.
While it is true that any licensed prosecutor may prosecute an app in any art, if a prosecutor steps outside his area of expertise, he must understand that more research will be needed on his part, and that more questions will need to be asked and more information demanded from, the client–AND, most importantly, that a greater degree of client counseling may be in order.
Practitioners are called upon to exercise professional judgment on not only this, but on ALL matters within their professional purview. There are different ways to discharge or meet that responsibility, depending on the particular issue, the particular practitioner, the state of the law, the scope of representation, the particular client, etc. Judgment extends to the practitioner’s assessment of the current, and potential future, state and meaning of the law.
Really, this is such a non-issue, I’ve written too much already. I’m just incredulous at some of the recent posts on this board.
Another hi-jacking by MM. Gee, I think these are bad claims ’cause I am MM feel it so. No 103 arguments. No evidence. Just hi-jack and emote.
Wahhhhhh!! I don’t like these claims. Wahh!
I don’t like these claims.
Pretty sure I’m not the only who doesn’t like those patent claims.
I’m also pretty sure that the number of people who believe those claims aren’t pure unadulterated junk of the lowest order can be counted on two hands and maybe a foot if we include the inventors (who probably know better).
I’m pretty sure with almost 9,000,000 patents issued that you can find some that aren’t great. I am pretty sure there are lots of people that read this blog that don’t appreciate you constantly posting claims that you don’t like to hi-jack posts.
I am also pretty sure you are being paid to do so.
Night Writer,
It has become a cultural thing – the ever-present “this patent is bad so the WHOLE system is bad” propaganda. This is why I stressed the point recently that the patent system was NEVER designed for perfect quality, and to pretend otherwise is simply disingenuous.
Prof. Crouch had a pretty snappy statement about what it takes to change a cultural problem recently…
I’m pretty sure with almost 9,000,000 patents issued that you can find some that aren’t great.
It’s like finding a needle in a needlestack.
you are being paid to do so.
Riiiiiight. Because only a person who’s paid to point out ridiculous patent claims and the miserable failures of our patent system would ever do such a thing. On the Internet. On a patent blog. Where people are invited to comment about patents and patent law, free of charge.
Yes, that makes sense. Sure it does.
About as much sense Malcolm as your past comments that the patent system is not under attack.
About that much, eh?
“anon” your past comments that the patent system is not under attack.
Ah, the path0l0gical lying is back. Do you want to give NWPA a hand and help him show everyone where I called him the “n” word?
That was good for a laugh, too.
Let’s be perfectly clear here before I post a link from the archives:
You are saying that you Malcolm never made a post intimating that it was ludicrous to think that the patent system was under attack, right?
Crickets. I wonder why.
intimating
LOL
That short declarative sentence somehow too much for you to understand Malcolm?
No 103 arguments.
Leaving tips is in the prior art (at least several centuries old). Using a third party to perform basic math — including tips — is in the prior art (also centuries old, if not millenia). The use of a computer system to facilitate information processing, including remote information processing, is well-known in the art (half a century, at least). Calculating tips is information processing.
Done. But go ahead and pretend you don’t understand this. Please ask for more “evidence” so we can all have a laugh.
Welcome to our broken patent system where unbelievable junk like this gets appealed all the way to the Federal Circuit:
The ’192 application is directed to a point-of-sale (POS) device that can be used by a merchant to complete an electronic transaction using a customer’s credit or other card. The specification describes a system that improves the manner in which gratuities are calculated and added to the amounts charged. ’192 application. After a customer presents a card for payment for goods or services, the merchant utilizes the POS device to transmit information concerning the pending charge, including the amount owed, to the entity that issued the customer’s
card. The card issuer then sends back to the merchant (and ultimately the customer) data that is indicative of a gratuity.
Because it makes a huuuuuuuge difference who calculates the tip! Nobody ever imagined that someone other than the customer to do this. Plus “electronic”! Wowee zowee. It’s a bright and shiny world.
The ’192 application touts the advantages of this approach over prior art processes requiring the customer to calculate a gratuity and then add the gratuity to the subtotal. It states that these prior art processes were inefficient and
caused stress to the customer. Id. ¶ 4.
LOL. What a conundrum! So much stress! Thank goodness we have a patent system or the world might never have figured out an alternative to this onerous stressful paradigm. One small tip for man, one giant leap for mankind.
The claim term “data that is indicative of a gratuity” was the super crucial element here. Smell the essence of that electronic structure!
MM –
Which is it?
Is it that the patent/invention addresses a non-problem and no one would ever want to take advantage of the invention (so who would care that it was patented) OR is it that the invention is vital to the continuation of society and the invention must be freely available to all mankind?
If its worthless and silly, don’t do it. That way it doesn’t matter that its patented.
If its a great idea and you wish you had thought of it earlier and had been doing it your whole life, then stop whining, pay the man his royalty and direct your energy for a system that lets insurance companies determine who is selling cars at the best price and inform there customers.
Is it that the patent/invention addresses a non-problem and no one would ever want to take advantage of the invention (so who would care that it was patented) OR is it that the invention is vital to the continuation of society and the invention must be freely available to all mankind?
Pretty sure those aren’t the only two options.
Keep digging! Nothing is more amusing than watching the lovers of junky software patents defend the indefensible.
But this tip is 14%. But this is a chinese restaurant. But this is a debit card. But this is a payment made through a mobile phone device. But this card issuer is offshore. But this waiter was incompetent. But there were two waiters and the tip should be divided. But this customer is visually impaired. But this system automatically warms up the car when the bill is paid.
Ah, so much innovation, so little time.
“Pretty sure those aren’t the only two options.”
There may be other options. But those were the two YOU were arguing.
I was merely asking you to pick one.
those were the two YOU were arguing.
Really? I don’t see where I made those two arguments.
I was merely ridiculing/bemoaning the state of any patent system where junk like this manages to take up more than ten seconds of the system’s time.
The US patent system is a joke.
“Really? I don’t see where I made those two arguments.”
You make this argument: the patent/invention addresses a non-problem and no one would ever want to take advantage of the invention, through sarcasm here:
“Because it makes a huuuuuuuge difference who calculates the tip! Nobody ever imagined that someone other than the customer to do this. Plus “electronic”! Wowee zowee. It’s a bright and shiny world. ” and here: “Thank goodness we have a patent system or the world might never have figured out an alternative to this onerous stressful paradigm. ”
You make this argument : the invention is vital to the continuation of society and the invention must be freely available to all mankind?
by bemoaning the “broken patent system” here : “Welcome to our broken patent system where unbelievable junk like this gets appealed all the way to the Federal Circuit:”
Les: the patent/invention addresses a non-problem
Oh, calculating a tip for somebody is certainly a “problem.” Just like figuring out when to cut your toenails or what to buy your dog for her birthday is a “problem.” I’m not going to deny that these “problems” exist. How could I? They are very real “problems”, Les — to you, especially. And you’re very imporrtant! It’s all about you, you know. The patent system, I mean. The solution to your favorite “problems” is (wait for it!) more patents. So here come more patents! Yay!
no one would ever want to take advantage of the invention
Because without a patent on figuring out when to cut your toenails, how would you ever figure it out, Les? Just think about your long your toenails would be. You’d never be able to walk outside to buy your dog a birthday present, even if it were possible for you to figure out how to do that without a separate patent.
Seriously, Les: try harder to figure out the difference between a patent claim and “some thing that you like” that might fall within the scope of that patent claim. It’s a non-trivial difference. Pretending that their is no difference or lacking the ability to see the difference is a real and recurring problem for you and others who bend over backwards to defend the junkiest junk that any patent system ever dealt with in the history of human civilization.
You make this argument : the invention is vital to the continuation of society and the invention must be freely available to all mankind
I’m not making that argument, Les. Inventions on new methods of restaurant tip calculation are certainly not “vital to the continuation of society.” Nobody believes that. It’s bizarre that you would pretend to be confused about that. And I have to assume you’re pretending you’re 10 years old and you’ve never been to a restaurant without mommy.
“Nobody believes that. It’s bizarre that you would pretend to be confused about that. And I have to assume you’re pretending you’re 10 years old and you’ve never been to a restaurant without mommy.”
Well then, what’s the problem with someone patenting it. We are all free to calculate tips the old fashion way. No harm, no foul.
He doesn’t like it Les. Wah! Boo hoo! I see a claim I don’t like so I cut and paste it and share. No analysis. Just bad claim. Bad claim.
Ambiguity is in the eye of the beholder.
Reply below with a claim you believe is clear and unambiguous and I will take on the role of an infringer and find ambiguities.
In reality, there was nothing ambiguous about the specification of electrode distances in the claim to that exercise machine a while back…. but they alleged ambiguity… and got away with it, as I recall….
1. A method of unlocking a portable electronic device, the device including a touch-sensitive display, the method comprising: detecting a contact with the touch-sensitive display on an unlock image displayed at a first location on the touch-sensitive display, wherein the unlock image is a graphical, interactive user-interface object with which a user interacts in order to unlock the device; continuously moving the unlock image on the touch-sensitive display in accordance with movement of the detected contact while continuous contact with the touch-sensitive display is maintained; if moving the unlock image on the touch-sensitive display results in movement of the unlock image from the first location to an unlock region on the touch-sensitive display: unlocking the portable electronic device; and ceasing to display the unlock image; and if moving the unlock image on the touch-sensitive display does not result in movement of the unlock image from the first location to an unlock region on the touch-sensitive display: maintaining the device in a locked state; and maintaining display of the unlock image.
Just off the top of my head:
“detecting a contact” A contact lens, an electrical contact, like a gold plated pin or finger on a circuit board?
“the unlock image is a graphical, interactive user-interface object with which a user interacts ”
How is an image an interactive user interface object? an image is an image, how does it interact? what does it interact with? the user interface? the user? how does an image interact with a user? You mean the user looks at the image? is that what you are calling interaction?
The problem is that it’s difficult to analyze a claim without first reading the patent. So, many of your questions/ambiguities would be answered/wouldn’t be ambiguities in light of the patent’s disclosure.
The patent: 8,286,103. One I’m sure MM will love.