by Dennis Crouch
In a major 2014 decision, the Supreme Court raised the standard of definiteness under 35 U.S.C. 112(b) – now requiring that the scope of patent claims be “reasonably certain” to one of skill in the art. Nautilus v. Biosig. Historically, “reasonably certain” is a high standard and has been linked with the beyond-a-reasonable-doubt standard in criminal law. I.e., claim scope that is reasonably certain may also be seen as having its scope defined beyond a reasonable doubt. The higher standard can also be contrasted with the prior Federal Circuit that only invalidated ambiguous claims that were both insolubly ambiguous and not amenable to construction.
Despite the dramatic potential of Nautilus, the Federal Circuit has largely muted its impact.
The one area where patent-challengers see continued success is when means-plus-function claims lack appropriate structural support in the underlying patent document. 35 U.S.C. 112(f) allows a patentee to claim a “means” for accomplishing a specified function without reciting the actual structure of the mechanism or material used to accomplish the function. However, as a rule of construction, the statute indicates that the “means” will be construed to “cover the corresponding structure, material, or acts described in the specification and equivalents thereof.” The impact is that, although the claim appears to broadly cover a “function” it will be construed to be much more limited. When an applicant follows this claiming approach, but fails to specify any corresponding structure within the specification then the claim is deemed invalid as indefinite.
In Eon Corp v. AT&T (Fed. Cir. 2015), the Federal Circuit has affirmed that Eon’s asserted patent claims are invalid for failing to specify the structure associated with a purely functional claim element.
Eon’s U.S. Patent No. 5,663,757 covers a data processing station that facilitates instant purchases while watching a television program. The patent was written back when the wort “means” was still popular among patent drafters. Here, the district court found that eight separate “means” claims were directed to “complex” computer software such as “causing selected themes to automatically display a second menu.” Based upon that undisturbed complexity fact-finding, the appellate court found that a structure in the form of the software algorithm should have been disclosed. Because no software algrithms were disclosed, the software means claims failed and were properly held invalid as indefinite.
Of interest here, the Federal Circuit reasoned that the algorithm is necessary to “avoid pure functional claiming.” Quoting Aristocrat Techs. Austl. Pty Ltd. v. Int’l Game Tech., 521 F.3d 1328 (Fed. Cir. 2008).
A general purpose computer is flexible—it can do anything it is programmed to do. Therefore, the disclosure of a general purpose computer or a microprocessor as corresponding structure for a software function does nothing to limit the scope of the claim and “avoid pure functional claiming.” Aristocrat. As such, when a patentee invokes means-plus-function claiming to recite a software function, it accedes to the reciprocal obligation of disclosing a sufficient algorithm as corresponding structure.
Although the court here highlights the doctrinal point of “pure” functional claiming — claiming function with no limiting structure — the actual facts are that the disclosed microprocessor and does provide some amount of structure. As with abstract-idea analysis, it seems here that the question is not so black-and-white, but rather whether some magical threshold has been crossed.
The case also offers some hints to the ongoing debate over subject matter eligibility of computer implemented inventions. In particular, the court reiterated its prior statements that a “the general purpose computer becomes a special purpose computer when loaded with the special programming.”
In a similar infotechnofunctional vein:
May 12, 2015: another very bad day for MediaQueue (see, e.g., link to patentlyo.com) and its “affiliates”. A great day for everybody who loves to watch junk patents go up in flames.
Three up, three down, all per curium Rule 36 affirmances of the Board’s decisions. Evidently the CAFC doesn’t like wasting its time, or the PTO’s.
Speaking of impatience, check out the recent oral arguments in Hyatt v. Lee to get a whiff of how the CAFC views the kerfuffle (hint: nobody loves Gil Hyatt as much as Gil Hyatt, and that’s an understatement) and the oral arguments in Action Star Enterprise v. Kaijet. In the latter case (involving attorney fees awarded to the defendant), the attorney for the winning party gets reamed by one of the judges (about 10-15 minutes in) because, apparently, (1) the judge couldn’t believe that it could cost anyone half a million dollars to flush a claim as junky as the one asserted by Action Star down the t0ilet and (2) the judge was plainly frustrated by the slop in the briefs.
Here’s the claim that stunk up the room:
1. A method for converting a KVM system comprising the steps of:
(1) initializing a mouse device, at least two computer hosts, a keyboard, and at least two corresponding displaying devices;
(2) selecting which computer host and a corresponding displaying device are needed to be operated, then switching to the selected computer host and the corresponding displaying device by controlling a switch disposed on the mouse into a particular direction;
wherein step (2) further comprises the steps of;
(2A) judging whether a first computer host is needed to be operated, if yes, going to step (2B), if no, going to step (2D);
(2B) controlling the switch disposed on the mouse into a first direction corresponding to the use of the first computer host;
(2C) operating the first computer host, then going to step (4);
(2D) judging whether a second computer host is needed to be operated, if yes, going to step (2E), if no, going to step (2G);
(2E) controlling the switch disposed on the mouse into a second direction corresponding to the use of the second computer host;
(2F) operating the second computer host, then going to step (4); and
(2G) continuing the steps of judging whether a third computer host, a fourth computer host, or other computer hosts, the steps being the same logic as the steps of (2A) to (2F), then going to step (4);
(3) operating the selected computer host and the corresponding displaying device;
(4) finishing the operation;
(5) judging whether one of the computer hosts and another corresponding displaying device is needed to be operated, if yes, going to step (2), if no, going to next step; and
(6) end.
Gotta love those “judging” steps. How in the heck stuff this awful gets out of the PTO is one of those perpetual mysteries…
This book puts into perspective the absurdity of the anti-software patents movement. These machines are taking over all our jobs (probably a patent attorney isn’t too far behind) and to suggest that they aren’t inventions or are not eligible because they are some bizarre psychotic made-up judicial witch is absurd.
link to nytimes.com
Night,
Machines and claims aren’t the same thing. This is getting old.
Go, the blue sky and the sun aren’t the same thing. This is getting old.
What is getting old, go, is your posting as if what you say has any meaning whatsoever in a patent law context.
You act as if “well, a claim is a legal document, and therefore has no relation to machine,” when – for those particular claims directed to machines – you spout gibberish and some sort of (rather weak) cheerleading for the Malcolm nonsense.
Why exactly do you think Congress choose the statutory categories that they did? What meaning (if any) do you personally ascribe to those statutory categories?
Why exactly do you think Congress choose the statutory categories that they did?
It’s an interesting question given that “processes” plainly includes “mental processes” and “logical processes carried out with a pencil and paper or other old devices” which neither Congress nor anyone else ever believed were eligible for patenting.
Perhaps Congress just had its head deeply up its behind, kinda like some of the software patent lovers out there.
Very bot’tish sounding.
Not sure if he was aware that he was not making a legal point at all, save perhaps that no words of Congress should be given any effect, no matter the fact that the constitution was rather explicit about which branch of the government was given sole authority over the statutory (i.e., non-common law) law that is patent law.
“any meaning at all within a patent law context.”
What does this even mean?
Night Writer always posts how important information processing machines are and how they ‘took our jobs.’
I will continually remind him (and you, apparently) that, the ‘greatness’ of a particular technology is legally irrelevant for at least two reasons.
First, as I explained, we judge claims not inventions. If your claims aren’t eligible, novel, etc. it simply does not matter how great your invention is.
This is a mistake you and Night continually make. I’ll keep pointing it out.
Second, as you’re aware, ‘secondary considerations’ play no role in eligibility analysis.
Spoken like a true witch trier.
If you don’t know “what this even means” then you should take great pause in thinking that you are making any sense whatsoever in your desire to post some difference (unstated and somewhere only existing in your mind) as to claims and inventions.
Your statement of “my mistake” is absolute rubbish.
Now try to give actual answers to my questions and at least appear to have some semblance of understanding patent law.
Or failing that, continue to jump in and (politely) cheerlead the anti-patent whiners – your choice.
If you can’t tell the difference between a patent application publication and an issued patent, then you shouldn’t be explaining anything regarding claims to anyone.
Where did I confuse an application and a patent?
I knew Amazon’s claims were in an application and stand by everything I said.
As for the difference between an invention and claims “only existing in my mind,” I’ll let that speak for itself.
Go,
The appearance of you being confused comes from your comment at 15.1, and the apparent alignment with Slashdot. While your second comment can indeed stand separate, you do not appear to distinguish from Slashdot’s error in your haste to cheerlead.
For all we know, MM could be a automated bot.
These machines are taking over all our jobs
In your dreams.
Life must be really scary for you.
Would those be machine dreams?
(and why does the concept of anthropomorphication scare you so much?)
NWPA These machines are taking over all our jobs
Look out! Google’s sooper awesome robot car technology is going to put stunt drivers out of business!
link to usatoday.com
Three of the crashes involved cars being operated by Google, which has a fleet of 23 self-driving Lexuses
If only Google was able to more junky patents more quickly, then we wouldn’t have to wait so long for someone to describe the fake structure of a computer that is “configured to safely control a car.”
Speaking of functional claiming, Amazon has patented delivering goods by drone. Patent No. 20150120094. Filing date Sept 14, 2014, issue date April 30, 2015 .
Why was this not rejected as obvious? How is the improvement here “more than the predictable use of prior art elements according to their established functions.” ?
Here is claim #1
1. A system for aerial delivery of items to a destination location, comprising: a plurality of unmanned aerial vehicles, each of the plurality of unmanned aerial vehicles configured to aerially transport items; an unmanned aerial vehicle management system, including: a processor; and a memory coupled to the processor and storing program instructions that when executed by the processor cause the processors to at least: receive a request to deliver an item to a destination location; and send to an unmanned aerial vehicle of the plurality of unmanned aerial vehicles, delivery parameters identifying a source location that includes the item and a destination location; wherein the unmanned aerial vehicle, in response to receiving the delivery parameters, is further configured to at least: navigate to the source location; engage the item located at the source location; navigate a navigation route to the destination location; and disengage the item.
Truly insane.
I’m completely willing to believe that actually implementing the system Amazon envisions required some nonobvious advance over the prior art.
Whatever that is, it isn’t in the claim.
go,
I have to ask: what the F do you do for a living?
You jump right in and whine with Slashdot Reader’s lament and simply overlook the fact that the item is NOT a granted patent and it is NOT an issue date of April 30, 2015, and that there has been NO examination yet.
Criminy, see what has become of America’s leading source of something other than patent law?
Far far too many far far too willing to jump at the minutia and not bother with understanding even the basic state of the thing being lambasted.
WAKE UP PEOPLE.
Why was that ridiculous claim filed, “anon”?
Most of us know why.
Hint: rhymes with “reedy glass bowls.”
“Delivery parameters”.
Too flipping funny for words.
see what has become of America’s leading source of something other than patent law
Go somewhere else if it bothers you, “anon.”
You quite missed the point there Malcolm.
Supposedly this is a place for law and discussions of law, particularly patent law. When the by-line is changed to read “America’s leading source of whiny and errant nit-picking minutia” then I might just want to find a different place that wants to focus on the real law.
Supposedly this is a place for law and discussions of law
It’s a patent blog, Einstein. Discussions about ridiculous junk patents that are being filed by sooper dooper important companies is going to continue to happen, particularly when lawyers are filing those claims and those lawyers owe the PTO a duty of candor.
Do you think the claim is non-obvious, “anon”?
Let everyone know.
Oh right: you don’t know how to do make that kind of determination. Sorry. I forgot.
More dissembling nonsense because I stick to law and avoid the minutia.
Classic.
Anyone here believe that the claim posted by SR is non-obvious?
Raise your hand.
Application, not patent. Thank you anon. I was lied to again by the scurrilous BBC you said the PTO had ‘approved the ideas’ in the patent. link to bbc.com
I have far less an issue with you Slashdot, as you don’t try to portray yourself as some sort of expert here.
It is the ones that should know better, that pretend to know better that should be shamed.
What I would recommend for you is to note that first impulse and simply do a quick check before joining the lemmings marching up Lemming Hill. And as you do this mental check, ask yourself what is the motivation for so much anti-patent rhetoric.
I can envision you having a Neo-like awakening in that bio-electric harnessing pod…
(see link to youtube.com )
sk yourself what is the motivation for so much anti-patent rhetoric.
It couldn’t be the fact that claims even worse than the one that Slashdot just highlighted are granted all the time. And then used to extort businesses and line the pockets of deep thinking patent attorneys like “anon.”
Nope. Unpossible.
It must be some nefarious plan by a communist insurgency seeking to trample the Constitution, destroy property rights and take us all back to the iron age. Yes, that makes so much more sense.
Notfanuttin, but My post at 15.2 was was at 1:08, well ahead of the 1:21 posting of 15.1.1…..just sayin…
No prob, Les – you get the credit for posting first (my post crossed in transit, otherwise I would have posted my message under yours).
First Off Slash – That is a patent APPLICATION. It is not a patent.
the subscriber
Terms like “subscriber” and other terms that “limit” an alleged technology or technological “system” to people with particular legal relationships raise a bright red flag indicating a strong possibility that the claim is a pile of information-processing junk protecting one more ineligible abstractions in the context of an otherwise unpatentable (old) context.
This junk needs to be expunged from the system. There’s a lot of out there, unfortunately, and more is being added to the pile all the time.
Tanked by the CAFC (affirming the Board). You gotta love these “system” claims. They’re just like process claims, except when they’re just like apparatus claims, which is usually within the same claim. Thank goodness that 101 specifically sets forth that systems and other mixed subject matter claims are eligible for patenting. Oh wait …
1. A system for mobile or wireless communication or computation, said system comprising:
first unit comprising first antenna, wherein said first unit is mobile or wireless;
last unit comprising last antenna, wherein said last unit is mobile or wireless; and
said first unit receives data from said last unit, wherein said data is transmitted from said last antenna to said first antenna, wherein said last unit receives said data from a location outside said system, wherein said data is transmitted from said location outside said system to said last antenna,
wherein transmission of said data betwee said first antenna and said last antenna is done at first frequency, and transmission of said data between said last antenna and said location outside said system is done at second frequency,
wherein said second frequency is different than said first frequency,
wherein said first frequency is chosen from a range of frequency which corresponds to a low radiation power absorption for a specific tissue or part of human body, or which corresponds to a low overall radiation power absorption for whole body of a human or a specific animal, and
wherein transmission of said data between said first antenna and said last antenna is done at first power, and transmission of said data between said last antenna and said location outside said system is done at second power, wherein said second power is different than said first power, wherein said second power is larger than said first power.
That’s a lot of words to say very, very little indeed. Bye-bye junky claim!
Oh, I almost forgot one of the best parts: “As an initial matter, the specification of the ’657 patent fails to explicitly define what constitutes a “low radiation power absorption.”
LOL
How does this relate to Eon v. AT&T?
It does not.
Did you really expect Malcolm to break stride and not do his usual propaganda C R P fest wherever he pleases? Why should this thread be any different?
Nine years and running.
How does this relate to Eon v. AT&T?
Junk patent with value far out of proportion to any “innovation” on the part of the applicant.
But very clever lawyering! Way to bury the non-innovation under a pile of verbiage. Better luck next time.
It’s a complete non sequitur. You provide no introduction (such as a cite to a case) and just launch into a claim. Is it the claim for the case being discussed? I had no idea.
At least if you’re going to attack patents you don’t like, provide some introduction. Otherwise, it can be difficult to follow.
Note that “limitations” like this:
sending and receiving video and interactive control signal information wirelessly to and from the subscriber television receiver stations
present huge subject matter eligibility issues.
Presumably everyone here already understands why. I’m happy to help out anyone who is confused.
“Presumably everyone here already understands why. I’m happy to help out anyone who is confused.”
You seem to want to project onto anyone who disagrees with your policy/opinion a certain state of confusion where it is simply not required that those who know and understand the law, its history, and the factual realities of modern innovation recognize that your Belieb system falls woefully short.
Your offer then of “being happy to help” is errant. Everyone would be better off if you first helped yourself understand reality and the law, and shelved your propaganda machine, or at least took an inte11ectually honest approach to engaging in dialogues here.
Have a nice day.
Let me know if you’re asking for help understanding why the recitation of a “limitation” regarding information content always raises a serious subject matter eligibility problem.
It’s 2015. I don’t think most people need an explanation. But if you do, I’m happy to provide one.
Again.
Malcolm’s reply is empty and nonsensical rambling.
Again.
Try again to read what I actually stated in short declarative sentences.
“It’s 2015. I don’t think most people need an explanation. But if you do, I’m happy to provide one.”
Apparently the Patent Office needs one, ’cause:
1. A method for communicating between a source and a destination, comprising:
receiving, at an egress edge device from an ingress edge device, an upper layer packet including a virtual private network identification identifying a destination, the virtual private network identification having been added to a header of the upper layer packet by the ingress edge device;
authenticating the upper layer packet at the egress edge device using the virtual private network identification by comparing the virtual private network identification against an expectation for the upper layer packet; and
upon authentication, decapsulating the upper layer packet into a lower layer packet for the destination,
wherein the virtual private network identification is a unique identification number assigned to the source for marking the upper layer packet as belonging to a virtual private network to which the source and the destination belong, the virtual private network identification comprising at least four bytes.
Publication number US8942240 B2
Publication type Grant
Application number US 13/951,867
Publication date Jan 27, 2015
Filing date Jul 26, 2013
Priority date Jul 29, 2003
link to google.com
1. A method for improved multicast scaling through policy-based redirection, the method comprising:
receiving a packet belonging to an Internet protocol multicast (IPMC) stream, wherein the packet includes packet routing information;
performing a lookup in an IPMC forwarding database (FDB) and, in response to failing to locate an entry in the IPMC FDB, attempting to insert the packet routing information in the IPMC FDB;
in response to failing to insert the packet routing information in the IPMC FDB:
automatically creating a packet redirection rule based on the packet forwarding information; and
automatically adding the packet redirection rule to a policy-based redirection (PBR) access control rule (ACR) data structure for storing policy-based redirection rules for overriding layer 3 forwarding decisions for specific access controls and instead forwarding packets to an alternate next hop, wherein the packet redirection rule points to an entry in an IMPC egress port list data structure that specifies a port list identifying at least one port to which packets in the IP multicast stream should be forwarded and includes a redirection action for redirecting packets in the IPMC stream to the port list and a multicast group identifier for identifying the packets in the IPMC stream;
redirecting the IP multicast stream, using the packet redirection rule in the PBR ACR data structure and the entry in the IPMC egress port list data structure and forwarding the IP multicast stream to the at least one port specified by the port list in structure the IPMC egress port list data structure; and
wherein redirecting the IP multicast stream using the policy based packet redirection rule in the PBR ACR data structure includes performing a lookup in the PBR ACR data structure for packets in the IPMC stream for which entries do not exist in the IPMC FDB in lieu of performing slow path processing for the packets.
Publication number US9008091 B1
Publication type Grant
Application number US 12/973,417
Publication date Apr 14, 2015
Filing date Dec 20, 2010
Priority date Nov 19, 2010
link to google.com
the Patent Office needs one
No doubt about that, Les.
So, provide it like you promised. Why aren’t those recently allowed claims actually not even eligible to be allowed?
Why aren’t those recently allowed claims actually not even eligible to be allowed?
Ooooh, lookie! It’s comparing information … with rules! Sooper dooper techno! So many fancy terms.
Deep, man. Deep, I tell you! Who knew that you could compare information and decide to do something based on the comparison? Using rules! But this is on an “egress edge device” — that changes everything!
I’m infringing right now. Come get me, Les. Then you’ll get all the explanation you ever wanted and more.
Wasn’t you who told everyone here that before computers animators used “their guts” to make cartoons look good?
LOL.
So, your saying you have no argument against subject matter eligibility for those claims, despite your earlier assertions…. Got it.
policy-based redirection
Because protecting new policies is what the patent system is for.
What a joke.
I thought the fundemnetal issue was that the application failed to recite any flow chart or series of steps to be performed for executing the functions it describes. I.e. no “algorithm.” If the application had such a flowchart, I don’t believe we would have seen this case on 112 6th grounds.
Your spelling of “fundamental” is not nearly as egregious a fail as my referring to Prost as “he”. After all, she is the hottest appellate judge appointed by Bush in his 8 years – maybe the hottest in US history, although Pauline is hot in an entirely different way.
After 77 comments it is good of you to bring the discussion back to the most salient take-home msg of this case.
An interesting question is how much statutory equivalents breadth does a flow chart get when used to support a MPF claim? I would presume that if an infringing algorithm functions the same way in the program it would be equivalent regardless how it is written. Consequently, any flow chart that works works and yer good to go. Another reason to consider MPF.
“I would presume that if an infringing algorithm functions the same way in the program it would be equivalent regardless how it is written. ”
See any of a several slashdot/techdirt articles by a gentleman named POIR on the equivalency of software (based ironically on function) and note the sharp contrast with the Belieb system of Random here on these boards.
It would be nice if the several different views of such anti’s actually noted that their discrepancies detract from the big picture of what in the end they each want the law to be.
That being said, my dear Babelboy, I would remind you as well that you still miss the “issue” of the use of language that sounds in function, especially when the language is not purely functional and the claims are safely in that Vast Middle Ground.
There is quite plainly a very real difference that is being obfuscated (perhaps not by you) when anti-software people seek to deny patent protection to something that CLEARLY fits the statutory category portion of 101 (either by being a manufacture and machine component, or as a system), AND equally as CLEARLY fits the utility portion of 101 (feel free to quote Ned Heller from the API copyright thread).
If one recognizes (as one should) what Congress (and not as errantly attempted to be portrayed as merely Judge Rich) did in 1952 (see Federico), then you would realize that MPF (and your comment regarding “Another reason to consider MPF“) is really just a sideshow to the bigger issue of a much bigger battle to deny patent protection to the single largest area of innovation in the world today.
“anon”: anti-software people seek to deny patent protection to something that CLEARLY fits the statutory category portion of 101
Like a mental process.
Because it’s a “process.” Which is a statutory category, “CLEARLY”.
Deep stuff, “anon.” You should try submitting an amicus brief somewhere.
Move the goalposts back and “be happy” to recognize that your sham question has been asked and answered many times now Malcolm.
Tell us why MM you think that a “mental process” should not be eligible for patentability.
Night Writer,
Please do not feed the Malcolm “Tr011” and his goalpost moving attempts to claims that are PURELY in the mental realm.
Anything so purely in the mental realm have obvious enforcement and freedom of thought issues that NO self-respecting patent attorney would (or should) allow to obfuscate the big picture.
Anything so purely in the mental realm have obvious enforcement and freedom of thought issues that NO self-respecting patent attorney would (or should) allow to obfuscate the big picture.
But “on a computer” changes everything!
ROTFLMAO
You can’t parody this stuff.
Accuse
Others
Of
Tha
Which
Malcolm
Does
See any of a several slashdot/techdirt articles by a gentleman named POIR on the equivalency of software (based ironically on function) and note the sharp contrast with the Belieb system of Random here on these boards.
Except there isn’t equivalency. People don’t shell out hundreds or thousands for Adobe Photoshop because it performs the same functions you get with shareware. They get it because it does those functions better. Ditto searching with Google. Ditto using Google Maps instead of the iPhone’s built in Maps function. Do you know how many millions of times internet browsers have been downloaded on windows computers that come with internet explorer installed? Do you think it’s maybe because they perform the function of rendering a webpage faster and better than IE does, or maybe everyone is just stupid except you anon.
It makes no more sense to say that there is equivalency of function absent knowing what the algorithm is than it does to say a magnifying glass and a microscope have the same power because they both make little things bigger, or that some random person sings as well as a grammy winner, or that the average person is as stupid as anon.
You can SAY things are equivalent (especially if you have an agenda) all you want. But an Apple isn’t an Orange no matter how much you try to emphasize that they’re both fruit.
This is the kind of lackluster non-analysis that anon puts out there Babelboy. “Well some dipsh!t on the internet said it, so clearly we should blindly accept it when doling out hundred million dollar patents.”
Except you base your view solely on your own lack of understanding. Combine that with your lack of understanding of the ladders of abstraction (more than just two rungs on ladders), and you get what we all see: your constant attempts to merely reinforce your faulty Belieb system.
POIR is not just a random person on the Slashdot/Techdirt scene.
Eppur si muove
Sister anon,
The Eon case is a dud for what the anti’s want.
That much is clear from a simple reading of the case (and rather reminiscent of Malcolm’s “quick jump” and first to link to the Office’s integration take-away after the Prometheus case.
The bigger – and more subtle danger here is the dicta from Miss Prost and the “reconceptulization” effects.
This was a panel decision, and as such cannot override a previous panel decision, which its dicta attempts to subtly do. Recall that the first panel decision after Bilski reaffirmed the holdings and the decision of Alappat in full.
What we see going on here is just more of the CAFC having been bullied by the Supreme Court.
We need a two step rectification to deal with the rather clear effects of a judicial addiction to messing with statutory law.
It is a good point. I just wish Obama would appoint people with integrity that have a science and patent law background and will apply the law and not be judicial activist. I’ll accept whatever the consequences if only we could have just that.
The level of judicial activism should be noted as the scourge that it is in no small part because patent law is expressly statutory law as directed by the constitution.
I really do not have a problem with common law development per se, but those who so actively and so fervently clench tight their eyes to the means being used in order to reach a desired ends should be aware that they are attempting to change law through the wrong branch of the government.
Given that the CAFC’s mandate goes well beyond patents, it’s not practical to wish for a court that is made up of people who have advanced skills in every subject matter the court touches.
Once again I advocate for a patent court system roughly analogous to the bankruptcy system. Each circuit should have one Article III DC that is specialized in patent law and whose judges have been admitted to the PTO. (USDC EDTX almost full fills that role in CA5.)
Ditto that for a specialty appellate court — a bench made up of technical people who know enough about patent law to pass the PTO bar exam.
As it is now, the judicial system is run on the assumption that if you can get a BA in AmLit and a Yale or Harvard JD, you’re good to go to be resolving very complex technical and legal issues peculiar to patent practice. And I’m talking J. Prost here, among others. It amazes me that they ever get it right, not that Linn always did.
It gets even worse Babel when you have the Royal Nine lording it over you in a truly bully pulpit manner, coercing you into ever more inane (lacking touch with technical reality) decisions.
We need that two step corrective action to liberate patent law from the scourge on an ongoing basis.
If the application had such a flowchart, I don’t believe we would have seen this case on 112 6th grounds.
At the very least, it’s going to depend on what’s in that flowchart.
Until it doesn’t.
Here’s Claim 1:
1. A local subscriber’s data processing station for a wireless television program communication network coupling together a set of interactive subscriber television receiver stations, comprising in combination,
an operation control system in said data processing station for controlling video signals, system operating modes and interactive communications available to the subscriber
,
a television receiver with a video display screen, program control means and television program channel selection means,
a plurality of sources of video text and television program channels available from said network for individual presentation on said display screen in response to operator control by way of said operation control system,
a programmable computer interconnected with said television receiver and said operation control system,
radio wave transmission and reception means for sending and receiving video and interactive control signal information wirelessly to and from the subscriber television receiver stations in said network including messages with subscriber identification, video text and control signals for said television receiver,
said operation control system providing local station organization and operation in different operating modes permitting various degrees of interactive participation by a local subscriber, including network communication interconnection between the subscriber television receiver stations, television program viewing options, fiscal transactions and audience response modes,
subscriber manual control means for interactive participation and operation of said operation control system over an authorized range of optional features,
monitoring means for generating video displays of instructions and interactive menus on said video screen related to said operating modes,
self contained software programs operable with said operation control system at the subscriber’s data processing station for identifying program and operating mode options individually authorized to the subscriber for controlling the local station options by means of said software programs,
replaceable software means located at the subscriber station for storing at least one replaceable software control program defining authorized operating conditions for that station, and
operating means for programming said computer with said software control program to establish optional operating mode conditions authorized to said subscriber at the local data processing station as defined by the software control program.
link to google.com
The application does not claim a method. It claims devices. Accordingly, as one might expect, it includes block diagrams.
Which “means” do you suppose has one of ordinary skill in the art baffled?
the monitoring means perhaps?
“monitoring means for generating video displays of instructions and interactive menus on said video screen related to said operating modes”
I’m no expert, but that sounds like a monitor to me, you know, like a TV screen thingy…