By Jason Rantanen
In preparing for a talk on recent developments in patent law that I’m giving in a few days at the Salishan Patent Conference, I went back and reread Judge Dyk’s opinion concurring in the Federal Circuit’s denial of rehearing en banc in Sequenom v. Ariosa (available here: 14-1139.Order.11-30-2015.1). In my view, he hits the nail on the head with this one, framing the patent eligible subject matter issue as an issue of claim breadth. I find his discussion particularly appealing because unlike many conventional critiques of the Supreme Court’s Mayo/Alice framework, Judge Dyk acknowledges that patent law is not limitless, and that patentable subject matter should not be completely unbounded, subject only to the constraints of §§ 102, 103 & 112. Accepting this proposition frees Judge Dyk to articulate a conceptually coherent approach to patentable subject matter in the context of discoveries of natural laws, one that allows for valid claims in this space but which still imposes limits on what can be claimed. When discovery of a natural law supplies the innovative aspect of the invention, Judge Dyk writes, claims should be limited to what the inventor has actually done:
This approach appears also to be supported by Morse. The Supreme Court established in Morse that the extent to which a patentee can claim is the extent to which he has actually made some concrete use of the discovery and reduced it to practice. “The specification of this patentee describes his invention or discovery, and the manner and process of constructing and using it; and his patent … covers nothing more.” Morse, 56 U.S. at 119. Limiting patentees to narrow applications they have actually developed and reduced to practice would be in keeping with Mayo ‘s commandment that “simply appending *1292 conventional steps, specified at a high level of generality, to laws of nature, natural phenomena, and abstract ideas cannot make those laws, phenomena, and ideas patentable.” Mayo, 132 S.Ct. at 1300 (emphasis added).
This proposed approach, limiting the scope of patents based on new discoveries to narrow claims covering applications actually reduced to practice, would allow the inventor to enjoy an exclusive right to what he himself has invented and put into practice, but not to prevent new applications of the natural law by others.5 This would ensure that the scope of the patent claims would not “foreclose[ ] more future invention than the underlying discovery could reasonably justify.” Id. at 1301. Limiting the scope of the patent also would avoid the problem that “the more abstractly [a process patent’s] claims are stated, the more difficult it is to determine precisely what they cover.” Mayo, 132 S.Ct. at 1302 (quoting Christina Bohannan & Herbert Hovenkamp, Creation without Restraint: Promoting Liberty and Rivalry in Innovation 112 (2012)).”
Removing the tag that I place – taken directly from what you have allowed Malcolm to post – and leaving behind the items that the tag marks – the true blight – only ADDS to the perception of lack of objectivity and overt shaping of content on this blog.
One set of rules – evenly and objectively applied.
For some unknown reason, this seems impossible to enact here.
WHY?
Ned said ”
6, “particularly point out.” See the cases I quoted.
Functional claiming of the INVENTION as opposed to the prior art, does not “particularly point out.”
Do not fall into the trap that 112(b) ONLY addresses clarity.”
The Courts have said:
“Applicant may use functional language, alternative expressions, negative limitations, or any style of expression or format of claim which makes clear the boundaries of the subject matter for which protection is sought. As noted by the court in In re Swinehart, 439 F.2d 210, 160 USPQ 226 (CCPA 1971), a claim may not be rejected solely because of the type of language used to define the subject matter for which patent protection is sought. ”
So, when the boundaries of the subject matter for which protection is sought are functional….
Capice?
The vacuous passage you quoted, Les, doesn’t address the point that 6 was making. It’s addressing a strawman.
Frankly, it’s not worth anyone’s time trying to explain the “nuances” to you but, in a nutshell, if you claim an apparatus using functional language at the point of novelty (hence the highlighting of the term “invention” by 6) your claim is very likely a pile of junk for any number of reasons. Now you can try to kick up some dust and pretend that judges and fact-finders are incapable of distinguishing between prior art elements and inventive subject matter recited in a claim. That effort will convince nobody except perhaps a naive client whose pocket you can continue picking.
That is of course, as we are all well aware, your opinion.
…and of course, it is his “opinion” that one optional claim format somehow is a de facto ONLY “legal” claim format…
…because his feelings are comforted as he sits in his field of rye.
And the passage I quoted is from the Manual of Patent Examination Procedure, and is to be adhered to by 6 et al. (section 2173.01).
“The vacuous passage you quoted, Les”
LOL – chose another passage in that decision then Malcolm. One that relates to the holding of that case.
Oh wait, you don’t want to do that, do you? Your “precious” attempts to make one optional claim format be a de facto ONLY legal claim format might be shown for the chicanery that your efforts are.
Oopsie for you.
I can’t even tell what Les is responding to. But its nice to be the talk of PO even when I’m out.
#datinfluence
I was responding to a post by Ned, which I quoted in its entirety.
6 will always relish what Ned has to say (after all, Ned has the affliction of “6-must-be-an-Einstein-because-he-agrees-with-me.”
Reposted to remain visible above the spamming of the MM. Rinse repeat.
There has not been one substantive response to this post. Outrageous that a judge at the Fed. Cir. will just ignore our patent laws and fabricate his own nonsense that is not even law, but equity in the worse sense where a judge can just invalidate claims based on their feelings. (Note this is coming from a judge that never had any science training, never had any patent law experience outside of government, and has made poor use of his time to learn our laws. Impeachment is the right way to go.)
No intellectual honest person can say that scope of enablement isn’t the right test.
Just think about it:
(a) Should something that is enabled by your patent be outside what you can claim? No way. Makes no sense. If you should be entitled to the breadth of what you disclosed and enabled.
(b) Should you be allowed to claim something outside the scope of enablement? No. Obviously not as you didn’t enable it.
(c) And, it is a simple matter as discussed in LizardTech to invalidate claims if a later arising invention is a non-obvious invention that falls within the scope of your claims.
That is all that is needed and it is simple to enforce. Dyk’s nonsense is more judge invented nonsense where he wants to be able write down some psychotic nonsense and invalidate claims. Shameful. Dyk has no science background. Dyk is unqualified to sit on the Fed. Cir. Please resign.
There was a substantiative response at 12.1, and also 12.1.2.1 where RandomGuy exposed your fundamental misunderstanding of relevant case law.
Except not, “Bob,” as there was no “relevant case law,” and the flashlight example was itself debunked.
The flashlight example wasn’t great, but you haven’t debunked the existance (or value) of a possession requirement.
“The fact that you enable a genus does not mean that you have posited each point within the genus”.
Move the goalposts back “Bob.”
Thanks
Regarding “(a)” can you just try to explain why you should be able to claim something that you enabled but didn’t possess?
So Bob you sound like a troll, but I will answer anyway. 112 now requires that one skilled in the art would recognize the invention in the disclosure. You don’t consider that posses? That is a pretty tight requirement.
So no substantive response to my comment. Dyk should be impeached.
link to arstechnica.com
[T]he newest tree of life, published in Nature Microbiology, reveals that most of life’s diversity is bacterial and that much of it belongs to a recently discovered branch of especially tiny bacteria that no one has ever grown or seen under a microscope.
All we have is their DNA, mixed in with the DNA of everything else that inhabits the same ecosystem.
This is just one of the many basic facts about life that justify the decision to tank claims like those in Ariosa, Myriad and similar “I detected it first!” patents.
It’s a feature of a sane patent system, not a bug.
The patent maximalists, of course, will never understand any of this. But it’s fun to listen to them whine and cry. It’s all they know how to do, really.
And still more diagnostic fun:
link to arstechnica.com
Holmes managed to build a $9 billion valuation for Theranos, promising it would revolutionize diagnostics and patient care with a newly developed device that could perform a wide range of medical tests on just a few drops of blood. But the company has failed to publish or release scientific data to back up their claims.
But the PTO has really high standards when it comes to evaluating scientific claims. Even if Theranos is incompetent at the core, we can rest assured their patents are totally awesome and not the least bit junky. After all, investors happily poured billions of dollars into this enterprise. And they are the most important people ever! They are going to bring “personalized medicine” to everyone so that we’ll be able to better calculate how much bacon to eat! It’ll be a real revolution — we can trust them!
Here’s a claim “invented” by the CEO (USPN 9,128,015):
1. A sample processing device comprising:
a programmable fluid handling system;
a cartridge receiving location accessible by the programmable fluid handling system;
at least one optical detector positioned at a location accessible by the programmable fluid handling system;
a centrifuge positioned at a location accessible by the programmable fluid handling system, wherein the centrifuge comprises: a motor assembly comprising a rotor configured to rotate about a stator about an axis of rotation, wherein the motor assembly has a height that is oriented along the direction of the axis of rotation, wherein along said height said stator is circumscribed by said rotor; and a base affixed to the rotor, wherein the base rotates about the stator, wherein the base comprises at least one bucket that is characterized in that (a) the bucket comprises a cavity to receive a sample vessel and (b) the bucket is configured to pivot about a pivot axis to move the cavity from a first orientation when the base is at rest to a second orientation when the base is rotating, wherein the bucket at a fully extended orientation does not extend beyond a circumferential perimeter of the base, and wherein the centrifuge is capable of achieving a rotational speed of at least about 1,000 RPM and wherein an entire bottom surface of the centrifuge is about 200 cm2 or less.
It’s a cute little automatic mini centrifuge, functionally claimed at the point of novelty. That’s some real fine scrivening. You gotta love the lack of a lower end on the size limit. Heckuva job, PTO!
“and wherein the centrifuge is capable of achieving a rotational speed of at least about 1,000 RPM and wherein an entire bottom surface of the centrifuge is about 200 cm2 or less.”
MM: “It’s a cute little automatic mini centrifuge, functionally claimed at the point of novelty.”
What, MM, is the “point of novelty?” I don’t see anything new.
MM: “The patent maximalists, of course, will never understand any of this. But it’s fun to listen to them whine and cry. It’s all they know how to do, really.”
Maybe you should reread 31.1.
Would you like a hankie?
First, Malcolm what exactly is this ” just one of the many basic facts about life” that you want to showcase?
Secondly, how would any such fact remotely and importantly legally “justify the decision to tank claims like those in Ariosa“…?
You have strung together non sequiturs and proudly (but in error) exclaim some magical “logic” that you think supports your views.
Then you v0mit your typical “patent maximalist” short script ad hominem – as if that means anything….
It’s pretty simple, “anon”, but I’ll try to simplify it even further for you.
what exactly is this ” just one of the many basic facts about life” that you want to showcase?
Well, it’s right there in the passage I quoted. It’s the fact that life comprises nucleic acid and that there is an incredible amount of diversity out there, both in terms of discoverable life forms and discoverable variations in DNA sequence. Neither those life forms or the nucleic acid in those life forms is patentable (at least not as “discovered” compositions).
how would any such fact remotely and importantly legally “justify the decision to tank claims like those in Ariosa“…?
Those previously unknown microbial life forms and the nucleic acid polymers comprised by those life forms were detected using PCR in the same manner that the “previously unknown” fe tal DNA in maternal serum was detected. Should researchers be permitted to monopolize access and further research on those life forms and their DNA sequences because “they detected them first”? I’m not aware of anyone who thinks so other than you and your fellow patent maximalists. But that’s exactly what happens if you open the door to junky “I detected it first!” patents like those sought by Sequenom and Myriad.
You falsely attribute my views on the situation that you outline here.
Refresh what I tried to teach you on that subject “that you did not care that much about” – but v0mited out more than 30,000 words in the immediate aftermath – you know the one, the one where you waffled badly on understanding what the word “effectively” meant.
Then note the difference between actual claims to the items and claims to methods involving the items.
You completely whiffed on the “how” question.
In addition, the granting of endless reams of such claims (and endless reams is exactly what you’ll get) inevitably converts the act of further investigation of natural phenomena using the same public domain t0 0ls (e.g., using PCR to search for detectable nucleic acid sequences in a medium where such sequences may exist) into infringement liability. That’s the opposite of “promoting progress”, unless you believe that increasing costs and lawsuits is “progress”. There’s quite a few patent attorneys who apparently hold that belief but, thankfully, they are mostly sidelined these days, desperately repairing their tattered p0m-p0ms.
^^^ ? – your rant based solely on your short script does not make any actual point.
But you already know that, eh pumpkin?
If anyone is disturbed by the Ariosa opinion, try the recent CAFC decision in Genetic Technologies v Merial, which in some of its dicta is even worse. Another case for the Supreme Court, I think, following closely on the heels of Ariosa (en banc reconsideration on this topic is a dead letter).
The big picture is that the SCOTUS has opened the door with Alice of lawlessness. Alice is basically if you don’t like the claims, you may invalidate them. The Fed. Cir. seems to want more case law that says if the judgey thinks the claims are too broad–just ’cause it does–then they can invalidate the claims as a matter of law.
Disgusting. Please let’s reset our judicial system.
You notice missing from Dyk’s filth too is that it doesn’t go through and even apply patent law to its analysis. It’s argument is basically I should get to invalidate if I don’t like it.
Night, may I respectfully ask you to stop calling people names? There is a certain presidential candidate who does the same thing and you know what people think of him because of it.
Lol – Ned’s “umbrage” takes its typical one-sidedness, as Malcolm is clearly the Trump of this board’s anti-patentists (and we should “enjoy his swagger and make up head up the PTO” according to Ned….
anon: two-wrongs-don’t-make-a-right is only an [b]optional[/b] ethical standard.
Ethics being optional….?
Now, I agree that 6 used to get personal with individuals. Regarding MM, I know he get upset with you anon, and that has a lot to do with history. I can only ask that you take the first step in ending the long acrimony between you to by being as respectful to MM as you can. I would urge the same of MM to you.
The first step Ned is that he needs to put away his short script of ad hominem and vap1d propaganda.
He started LONG before me – celebrating a full Decade of Decadence now.
anon, OK, then. MM sees a lot of patent holders and patent attorneys as rich, entitled whiners whose arguments are self-interested and disingenuous. Right? You see people who oppose business method patents as “anti-patent.” I see the patent bar being run by big companies for their benefit only, and that includes killing off the patent system for anybody but big companies. I think each of us is entitled to his view and entitled to say it.
What I don’t like is calling the likes of Judge Dyk some sort of name. He may not always get it right, but he seems to be asking the right questions and looks like he has an open mind. I got that sense at oral argument in our case. Had he not required two other votes, he may have been freer in discussing “public rights.”
Ned, we are supposed to have our liberty, which means we form our own judgment and do not defer to J. Dyk. And go read what I wrote again. I called his work filth not him.
He is not qualified to sit on the Fed. Cir. and should resign.
Stop trying to get brownie points.
Ned,
Malcolm’s cl@ss w@rfare meme cannot rise above the dichotomy that the very thing he despises is ALSO the route to innovation MOST accessible to the NON-rich.
It is assuredly NOT the “Big Companies” that Malcolm takes aim at – not at all.
There is NOTHING there that Malcolm “claims” is disingenuous – and quite the contrary, it is Malcolm (and to a large extent, YOU) that is disingenuous in these discussions.
There is NO entitlement to the twisting and prevarications that he constantly engages in – that you ever so politely call “his view.”
Lastly, you just do NOT have it right with Judge Dyk and the supposed “looks like he has an open mind” – see directly below at post 28.
That is the opposite of an open mind.
… as far as 6 and “used to,” while he has toned down a bit, he too still launches into the vap1d “meds/cra zy” line of ad hominem, and still has tremendous trouble saying the simple things (like, anon was right all along).
Ned, the vulgarity is in the behavior of the judges. No name I could call them would be as vulgar as their decisions. Reality. One of the problems with our society is that people are allowed to hid behind civility. Lemley is a prime example where he will not address any tough question and merely publishes in the vanity press and turns tail and runs when confronted.
So, my I respectfully request that intellectual dishonesty and coward academics be treated as worse than vulgarity.
Look, Night, I do not believe that Dyk decided our case, MCM, properly. But he did put a lot of effort into his opinion and I respect and thank him for that. Actually, I was quite impressed. The guy is obviously an intellectual leader on the court, if not THE leader.
That is not “inte11ectual leadership” Ned – it is rather the opposite.
anon, to the extent that Dyk is trying to go to the fundamentals to get it right is something I really appreciate.
That extent is nonexistent. What you have is an ignorant old man that never should have been appointed to the Fed. Cir. trying to fabricate new law to suit his fancy.
Ned,
Again see 28 below – that you somehow think this is attempting to get to the fundamentals only shows your continuing affliction of the “6-is-a-genius-because-he-agrees-with-me” variety.
Ned, MM calls me names all the time. Where are you then? The fact is that you have an agenda on these blogs and are not a neutral participant.
“Where are you then?”
Enjoying the “swagger”…?
:-O
PC: try the recent CAFC decision in Genetic Technologies v Merial
There’s a whole thread on the case here:
link to patentlyo.com
Definitely the right decision … but about fifteen years too late. That was some of the worst junk out there.
But don’t feel bad, Paul! GTG made lots of money threatening people. with that junk. Isn’t that wonderful? We all know that you think so.
The problem with the approach of Judge Dyk is that equity demands that an inventor should receive protection commensurate with the contribution that he has made. If that contribution is in the nature of a fundamental advance, then the commensurate scope may be very broad, subject only to the overriding proviso that it should not extend what is scientifically predictable from the reported work.
As readers may know, I have thought long and hard about the ISIS/Sequenom invention and my first impression, which persisted for a long time, resembled that of Judge Dyk. However, the better view is that the existence of cffDNA in maternal serum or plasma is a fundamental advance opening the way to earlier and less invasive testing with a reduced risk to the developing foetus. The scope of claim 1, which covers the generality of amplification and testing in my opinion represents a patent-eligible application of the discovery and is of scope commensurate with that discovery.
If the Supreme Court fails to take up the present petition and to reverse the decision of the Federal Circuit, that marks the Sutterization (for derivation look up the biography of John Sutter) of the US patent system which at least in the life sciences will only protect second-rate or incremental inventions.
Another way to say this is scope of enablement. Dyk wants a test where a judge gets to look at the claims and invalidate them ’cause they don’t like them.
The notion of “scientificly predictable” is – at best – problematic, and leads to the logical extremes of Flash of Genius (explicitly rejected by Congress) OR pure “oops,” which has no “teaching” value when one considers the Quid Pro Quo aspect of patents.
Sorry Paul, the mantra needs a bit more critical thinking.
a fundamental advance
Totally different from those non-fundamental advances!
LOL
Paul, I do not fundamentally disagree. The problem usually comes in the claim. I think the claim must have some physically new process step, and not just claim old processes with new “considerations” or metal steps – the abstract principle of Morse.
In my view, the ISIS/Sequenom satisfied this test. The claim covers looking for fetal DNA in maternal plasma. That literally was new.
PC: the Sutterization (for derivation look up the biography of John Sutter) of the US patent system which at least in the life sciences will only protect second-rate or incremental inventions.
Wait — the last time I checked you guys were telling me that all innovation is “incremental” and that’s why we need to grant all that “do it on a computer” junk.
Time to tidy up that script, I guess. After all, you are super serious and very very important. We have to pay attention to you!
Nice strawman – I don’t recall anyone EVER saying such a thing as ALL innovation is incremental….
Your own script needs “tidying” Malcolm.
Prof. Rantanen,
Dyk is a hypocrite of the highest order and presents a level of inte11ectual dishonesty that is difficult to countenance.
At the same time he pleads that he must hew to the writings of the Supreme Court, he advances ideas opposed to those very writings and would elevate dissents into controlling law based purely on his own ideological framework.
Page 6 of his concurrence: “In my view,
claims to business methods and other processes that
merely organize human activity should not be patent
eligible under any circumstances.”
So much for being “bound” – bound only when something is convenient and aligns with your own agenda is a travesty, that no matter the “bias because of agreeing that 112 is somehow not enough,” a law professor should be alarmed at and taking umbrage with.
So instead of trying to push 112 even more into 101, maybe the dangers of this approach – and the outright chicanery of such “selective” choice of when to apply law and when NOT to – should be in focus.
Yes, that is more than a bit inconvenient to perhaps realize that a different and more desired law needs to go through Congress to arrive at that level of desired control for “limiting claim breadth,” but ig noring the duplicity involved in arriving at that desired end through rather blatant judicial activism NOT supported by the words of Congress is an affront to the very law that you are supposed to be teaching.
Let’s fact it. At this point we are dealing with Fed. Cir. judges that are little better than criminals. They think nothing of writing their own laws and invalidating any claim to suit their fancy. The worst part about it is they are ignorant people as a group of patent law, science, innovation, and the real world. Dyk is a prime example of the type of person that is unqualified to sit on the Fed. Cir. No science background. No real world patent law experience. No real world experience at all. But some how this boz0 just knows what right.
We have entered the dark ages of the USA.
“In my view, claims to business methods and other processes that
merely organize human activity should not be patent
eligible under any circumstances”
What is Dyk’s basis for this view. What we see is the ignorant judges making these blanket statements with no empirical evidence and obviously absolutely no understanding of science and technology. Back up your statement Dyk. That is what is most frustrating is these ignorant judges just making these statements with no basis whatsoever. And really? “Merely.” So, hours of your time a day is a “merely.” What a joke the USA has become that such minds are in charge of our future.
Anyone that has an education knows that “organize human activity” is one of the edges of technology that holds enormous promise. And anyone that knows anything about innovation knows that the information processing machines and humans are intertwined in innovation spiral. Dyk please do us all a favor and resign.
In my opinion, one problem with recent Supreme Court patent eligibility decisions is that every patent ever written can be viewed as an attempt to monopolize certain laws of nature.
Further, when broken down into individual clauses, every claim limitation can be viewed as being both “conventional” and “obvious” and being nothing more than merely an invitation to “apply” the law of nature in this regard. Indeed, if a given conventional limitation could not be understood as being obvious or conventional in the light of the specification, then most likely the limitation is unclear in any event. Put alternatively, can anyone cite a clear and unambiguous example of a non-obvious and unconventional claim limitation?
Taken to their logical conclusions, these recent SCOTUS decisions have essence turned patent law into a subjective “mush”. There are no sharp boundaries or logical “cut-offs” anywhere in these decisions. Merely vague warnings such as “should not be interpreted too broadly lest it swallow all of patent law”, which can be viewed as an admission that the decisions are inadequate.
I appreciate Judge Dyk’s valiant attempt to impose some sort of order into this mush by trying to apply the slogan, “narrowly tailored”. I am assuming that Judge Dyk intended to use a standard definition here, such as: “a law written to specifically fulfill only its intended goals.” This sounds nice on paper, but how would this actually be implemented in real life?
The intended goal of essentially every applicant everywhere is to try to get claims as broad as possible that will also stand up to future challenge. So apparently the goals of the applicant would not figure into the definition of “narrowly tailored”.
The goals of the USPTO are the reverse of the applicant’s goals. To narrow the claims down so that they are do not read on prior art, are not obvious, and are supported by the applicant’s specification. So either all USPTO approved patent claims are “narrowly tailored”, or alternatively the goals of the USPTO also do not figure into the definition of “narrowly tailored” either.
Who determines the goal? The judge or the applicant’s business competitors? We are again in a subjective space here, but of course the business competitors will always carefully move the goalposts so that they don’t infringe.
So it is “turtles all the way down”. We have simply exchanged one type of subjective “mush” for a different type of subjective mush.
Taken to their logical conclusions, these recent SCOTUS decisions have essence turned patent law into a subjective “mush”. There are no sharp boundaries or logical “cut-offs” anywhere in these decisions.
There are plenty of sharp boundaries.
But, hey, patent lawz is teh hard! Be sure to keep telling your clients you have no idea what’s going on and “everything is subjective”. They’ll appreciate that. Plus you’ll have your behind covered when you screw up.
Or can you start to teach yourself about what many of us reasonable people have been saying for years.
Reposted to remain visible above the spamming of the MM.
No intellectual honest person can say that scope of enablement isn’t the right test.
Just think about it:
(a) Should something that is enabled by your patent be outside what you can claim? No way. Makes no sense. If you should be entitled to the breadth of what you disclosed and enabled.
(b) Should you be allowed to claim something outside the scope of enablement? No. Obviously not as you didn’t enable it.
(c) And, it is a simple matter as discussed in LizardTech to invalidate claims if a later arising invention is a non-obvious invention that falls within the scope of your claims.
That is all that is needed and it is simple to enforce. Dyk’s nonsense is more judge invented nonsense where he wants to be able write down some psychotic nonsense and invalidate claims. Shameful. Dyk has no science background. Dyk is unqualified to sit on the Fed. Cir. Please resign.
“And, it is a simple matter as discussed in LizardTech to invalidate claims if a later arising invention is a non-obvious invention that falls within the scope of your claims.”
That is a “simply matter”? Please do tell what section under which you plead this defense, and tell me if you can do it in an IPR.
It goes to enablement. The claims are covering a scope that they did not enable.
You know, 6, what amazes me is that none of you seemed to have learned how to claim and how to police claims and then we get boz0 like Dyk come out with psychotic musings with no relationship to real patent law, and the group that never learned real patent law nod as if this is wisdom. Just strange.
Claims and patent law is really quite easy if you don’t want laws in there for the witch hunters to burn down whatever they don’t like.
Alright it’s enablement then, do you have to go to the DC to get this done or IPR it up?
Because this chap that this actually happened to irl didn’t manage to do it “simply”.
Heckuva job, PTO. This is unreal.
link to arstechnica.com
A New Jersey man named Michael Garofalo had a patent he claimed covered online contests, and used it to demand money from other small businesses. But when the Electronic Frontier Foundation came to the defense of a photographer targeted by Garofalo last year, Garofalo quickly dropped his case. Last month, he and his lawyers were ordered to pay $29,000 in legal fees.
Now Garofalo, who owns the website Garfum.com, is asking for the fee smackdown to be reconsidered. His reasoning: since the US Patent and Trademark Office recently agreed to grant him another patent, nearly identical to the first, his case couldn’t possibly be considered “exceptional.”
…[T]he original patent describes “a method for sharing multi-media content… in a computer network consisting of” of various traits. Meanwhile, the continuation application claims “a method for sharing multi-media content… in a computer network comprising” those same traits.
Another section of the original patent’s main claim describes “establishing a hierarchy for the uploaded multi-media content within the competitive format by implementing a competitive measurement system.” In the newer application, the claim describes “establishing a hierarchy for the uploaded multi-media content within the competitive format as a function of a competitive measurement system.”
The original patent describes “enabling each user to designate a single point… for each one of a plurality of competitive rounds.” The new application describes “enabling the users, over a first time period, to designate a single point… for each one of a plurality of competitive rounds.”
The US patent system is a joke.
MM, the sanctions are for asserting a patent against a defenseless business and then dropping the lawsuit when confronted. Classic abuse of process.
Obviously, people should not enforce their patents first against the weak lest this happen to them.