Pending Supreme Court Patent Cases 2016 (April 1 Update)

by Dennis Crouch

Design Patent Damages: The Supreme Court has granted Samsung’s petition for writ of certiorari on the issue of design patent damages under 35 U.S.C. 289.  The statute allows for disgorgment of the infringer’s “total profit,” but the question is total-profit-as-to-what? Certainly not the entire company. The Federal Circuit has ruled that the total profit applies to the article of manufacture (here a mobile phone) while Samsung argues that the profit should be reduced to the profits associated with the component at issue (the screen). The Supreme Court rejected the second proposed issue of design patent scope.

No Standing for Cuozzo?: I wrote some about the standing and appellate jurisdiction issue in Cuozzo earlier this week.  [Link].  Up to now, Cuozzo has not explained how a Phillips claim construction would impact the outcome of its inter partes review.  Cuozzo’s reply brief may address that issue – either way they almost have to come-up at oral arguments under questioning from Justice Breyer or Justice Sotomayor.

Post Sale Restraints: A key new petition was filed in Impression Products v. Lexmark on the issue of patent exhaustion and the extent that a manufacturer can rely upon patent rights to create post-sale use requirements and restrictions and limits on international trade. [Link]. In Sequenom, v. Ariosa, the court is subtly asked to reconsider and scale-back the language of Mayo v. Prometheus.  The petition actually asks the court to stop mis-interpreting Mayo. [Link].  Vehicle Intelligence and Safety as well as Cloud Satchel also raise Section 101 challenges, but those cases are battling long odds.

Reviewing a Jury Verdict of Definiteness: New petition Dow v. Nova raises the interesting question regarding the standard for appellate review of factual findings that serve as the underlying basis for a definiteness determination. Based upon a logical extension of Teva v. Sandoz, those factual findings should be given deference even though the ultimate determination of definiteness is a question of law.  An important distinction from pure claim construction is that (as here) juries may be tasked with the job of ruling whether a claim is indefinite.  In that situation, the juries do not separate their factual conclusions from legal conclusions creating some amount of confusion.  The original Federal Circuit opinion cited to Teva, but not for its holding regarding deference. I would not be surprised by a GVR order from the Supreme Court asking the Federal Circuit to reconsider based upon that holding. [DowPetition].

Flexible Obviousness Test Does Not Apply to Secondary Indicia of Nonobviousness: In Cubist Pharma v. Hospira, the petitioner-patentee challenges the Federal Circuit’s increasingly bright line limits on secondary indicia of nonobviousness.  How do those limits mesh with the flexible doctrine outlined in Section 103 and explained by Deere and KSR.  [CubistPetition].

Did the AIA Shrink Federal Circuit Appellate Jurisdiction?: Finally, in Globus Medical, the question focuses on Federal Circuit jurisdiction over appeals in former-patent-cases, but where the only issue appealed is a non-patent issue.  This same issue was previously decided in favor of Federal Circuit jurisdiction. However, the AIA modified the language of the Federal Circuit appellate jurisdiction statute and opened the door to a re-visitation.  28 U.S.C. 1292.  However, the argument barely carries the weight of its linguistics if that.

Previously, the Federal Circuit had appellate jurisdiction over cases if the district court’s jurisdiction could at least in-part be traced to 28 U.S.C. 1338 (giving district court’s jurisdiction over patent cases). The AIA amended the statute to give appellate jurisdiction to the Federal Circuit in any “civil action arising under” the patent laws.  Since appellate jurisdiction ordinarily attaches at the notice-of-appeal filing stage, Globus Medical argues that former patent cases no longer “arise under” the patent laws once final judgment is issued and no patent questions are appealed.

Denials: Cert was denied in Daiichi Sankyo v Lee (term adjustment); ParkerVision (standard for setting aside jury verdict based upon errors in expert testimony); Biogen (district court jurisdiction over interferences post-AIA); Morales v. Square (eligibility); Joao Bock v. Jack Henry (eligibility); and BriarTek v. DeLorme (USITC preclusion issue).

The big list:

1. Petitions Granted:

2. Petitions Granted with immediate Vacatur and Remand (GVR)

3. Petitions for Writ of Certiorari Pending:

  • IndefinitenessThe Dow Chemical Company v. Nova Chemicals Corporation (Canada), et al., No. 15-1160 (standard for appellate review of jury verdict of definiteness that is inherently based upon the jury’s factual findings) [DowPetition]
  • Exhaustion: Impression Products, Inc. v. Lexmark International, Inc., No. 15-1189 (unreasonable restraints on downstream uses)
  • Obviousness: Cubist Pharmaceuticals, Inc. v. Hospira, Inc., No. 15-1210 (bright line limits on secondary indicia of nonobviousness) [CubistPetition]
  • Infringement by Joint EnterpriseLimelight Networks, Inc. v. Akamai Technologies, Inc., et al., No. 15-993 (can a defendant be held liable for the collective performance of method steps by multiple independent parties?)
  • Post Grant Admin: Versata v. SAP, No. 15-1145 (scope of CBM review)
  • Post Grant AdminCooper v. Lee, No. 15-955 (whether IPRs violate Separation of Powers; two amici now filed in support)
  • Post Grant AdminClick-to-Call Tech, LP v. Oracale Corp., No. 15-1014 (Same questions as Cuozzo and now-dismissed Achates v. Apple)
  • Post Grant Admin: GEA Process Engineering, Inc. v. Steuben Foods, Inc., No. 15-1075 (Flip-side of Cuozzo: Can there be no appeal when the PTAB exceeds its authority by terminating an instituted IPR proceeding?)
  • Post Grant AdminInterval Licensing LLC v. Michelle K. Lee, No. 15-716 (Can the Patent and Trademark Office appropriately apply the “broadest reasonable interpretation” standard in construing patent claims in post-grant validity challenges?)
  • Post Grant Admin: Stephenson v. Game Show Network, LLC, et al., No. 15-1187 (is BRI proper for IPR validity challenges?; Same as Cuozzo) [GameShowNetworkPetition]
  • LachesMedinol Ltd. v. Cordis Corporation, et al., No. 15-998
  • LachesSCA Hygiene Products Aktiebolag, et al. v. First Quality Baby Products, LLC, et al., No. 15-927 (three amici filed in support)
  • Biologics Notice of Commercial Marketing: Sandoz Inc. v. Amgen Inc., et al., No. 15-1039 (Does the notice requirement of the BPCIA create an effective six-month exclusivity post-FDA approval?) (cross-petition asks for recourse on failure to dance).
  • Design Patents: Systems, Inc. v. Nordock, Inc., No. 15-978 (design patent damage calculations – similar issues as Samsung v. Apple)
  • InducementLife Technologies Corporation, et al. v. Promega Corporation, No. 14-1538 (whether an entity can “induce itself” under 271(f)(1))(CVSG, awaiting government brief)
  • Preclusion or JurisdictionVermont v. MPHJ Technology Investments, LLC, No. 15-838 (Federal court jurisdiction in anti-troll consumer protection case)
  • Preclusion or JurisdictionGlobus Medical, Inc. v. Sabatino Bianco, No. 15-1203 (Appellate jurisdiction of the Federal Circuit) [GlobusMedicalPetition]
  • Eligibility Challenges: Sequenom, Inc. v. Ariosa Diagnostics, Inc., et al., No. 15-1182 (scope of the natural phenomenon eligibility exclusion)
  • Eligibility ChallengesRetirement Capital Access Management Company, LLC v. U.S. Bancorp, et al., No. 15-591 (Whether subject matter eligibility under 35 U.S.C. § 101 is a ground specified as a condition for patentability under 35 U.S.C. § 282(b)(2))
  • Eligibility Challenges: Hemopet v. Hill’s Pet Nutrition, Inc., No. 15-1062 (natural phenom case of tailoring a diet to a pet’s genomic characteristics)
  • Eligibility Challenges: Cloud Satchel, LLC v. Barnes & Noble, Inc., et al., No. 15-1161 (abstract idea eligibility) [CloudSatchelPetition]
  • Eligibility Challenges: Vehicle Intelligence and Safety LLC v. Mercedes-Benz USA, LLC, et al., No. 15-1201 (abstract idea eligibility) [VehicleIntelligencePetition]
  • Damages: Innovention Toys, LLC v. MGA Entertainment, Inc., et al., No. 15-635 (Stryker/Halo follow-on – potential wait-and-see)
  • DamagesWesternGeco LLC v. ION Geophysical Corporation, No. 15-1085 (consequential lost-profit damages for infringement under Section 271(f))
  • Written DescriptionTas v. Beach, No. 15-1089 (written description requirement for new drug treatments)

4. Petitions for Writ of Certiorari Denied or Dismissed:

  • Daiichi Sankyo Company, Ltd. v. Michelle K. Lee, No. 15-652 (Patent Term Adjustment – whether the 180 day deadline applies; could bleed into admin law issues)
  • Parkervision, Inc. v. Qualcomm Incorporated, No. 15-1092 (“Whether and under what circumstances an inconsistency in expert testimony permits a court to set aside a jury verdict and grant the losing party judgment as a matter of law.”)
  • Joao Bock Transaction Systems, LLC v. Jack Henry & Associates, Inc., No. 15-974 (defining an abstract idea)
  • Biogen MA, Inc. v. Japanese Foundation for Cancer Research, et al., No. 15-607 (Whether AIA eliminated federal district courts’ jurisdiction over patent interference actions under 35 U.S.C. § 146.)
  • BriarTek IP, Inc. v. DeLorme Publishing Company, Inc., et al., No. 15-1025 (Preclusive impact of ITC consent judgment).
  • Morales v. Square, No. 15-896 (eligibility under Alice)
  • ePlus, Inc. v. Lawson Software, Inc., No. 15-639 (what happens with a finally-determined permanent injunction after PTO cancels the patent claim?)
  • Media Rights Technologies, Inc. v. Capital One Financial Corporation, et al., No. 15-725 (Claim Construction: whether there a strong presumption against construing terms as subject to 35 U.S.C. § 112p6 that do not recite the term “means.”)
  • Alexsam, Inc. v. The Gap, Inc., No. 15-736 (appellate jurisdiction over patents that were dropped from case pre-trial)
  • Universal Lighting Technologies, Inc., v. Lighting Ballast Control LLC, No. 15-893 (intrinsic vs extrinsic evidence for claim construction).
  • STC, Inc. v. Global Traffic Technologies, No. 15-592 (Whether marking the packaging of a patented article with patent notification satisfies the marking provision of 35 U.S.C. § 287(a) where the patented article itself is undisputedly capable of being marked.)
  • Achates Reference Publishing, Inc. v. Apple Inc., et al., No. 15-842 (IPR institution decisions unreviewable, even when addressed in a final written decision by PTAB) [Note – This case was dismissed after being settled by the parties]
  • Alps South, LLC v. The Ohio Willow Wood Company, No. 15-567
  • Allvoice Developments US, LLC v. Microsoft Corp., No. 15-538
  • OIP Technologies, Inc. v. Amazon.com, Inc., No. 15-642
  • Fivetech Technology Inc. v. Southco, Inc., No. 15-381
  • Tyco Healthcare Group LP, et al. v. Ethicon Endo-Surgery, Inc., No. 15-115
  • Nautilus, Inc. v. Biosig Instruments, Inc., No. 15-561
  • Chunghwa Picture Tubes, Ltd., et al. v. Eidos Display, LLC, et al., No. 15-288
  • Kenneth Butler, Sr. v. Balkamp Inc., et al., No. 15-273
  • Arthrex, Inc. v. KFx Medical Corporation, No. 15-291
  • Arthrex, Inc. v. Smith & Nephew, Inc., et al., No. 15-559 (Commil re-hash – if actions were “not objectively unreasonable” can they constitute inducement?)
  • Daiichi Sankyo, Inc., et al. v. Apotex Inc., No. 15-281
  • Mylan Pharmaceuticals Inc. v. Apotex Inc., No. 15-307
  • Luv N’ Care, Ltd. v. Munchkin, Inc., No. 15-242
  • Automated Merchandising Systems, Inc. v. Michelle K. Lee, Director, United States Patent and Trademark Office, No. 15-326
  • I/P Engine, Inc. v. AOL Inc., et al., No. 14-1358
  • Interval Licensing LLC v. AOL Inc., et al., No. 14-1362
  • Content Extraction and Transmission LLC v. Wells Fargo Bank, National Association, et al., No. 14-1473
  • L. Gore & Associates, Inc. v. Bard Peripheral Vascular, Inc., et al., No. 15-41
  • NetAirus Technologies, LLC v. Apple Inc., No. 14-1353
  • Muffin Faye Anderson v. Kimberly-Clark Corporation, No. 14-10337
  • MobileMedia Ideas LLC v. Apple Inc., No. 15-206
  • SpeedTrack, Inc. v. Office Depot, Inc. et al., No. 15-461 (Kessler doctrine)
  • Rodney K. Morgan, et al. v. Global Traffic Technologies LLC, No. 15-602
  • Lakshmi Arunachalam v. JPMorgan Chase & Co., No. 15-691

5. Prior versions of this report:

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

28 thoughts on “Pending Supreme Court Patent Cases 2016 (April 1 Update)

  1. Ned: there is a difference between coining a term that has a defined meaning that is definite and using a term that has a multiple known meanings within the art that is not clarified by the specification.

    If you’re doing either of those things for the the first time after the critical date (i.e., after you’ve filed your appication) then the differences are irrelevant (or should be).

    In this case, if you accept the CAFC’s conclusion that the term “data channel” has a definite meaning that excludes the use of an Internet connection then the tr0ll who filed this junk lawsuit should be sanctioned to the tune of every dollar of Google’s attorney fees and then some. We all know they have the money because they extorted it from many other companies they’d sued previously.

    As a bonus, if that happened we’d all know the CAFC was beginning to understand the bigger picture and the depths to which the b0tt0m-feeders in everybody’s favorite “art” unit are prone to sink. Any bets on that happening?

    Fyi, article on the case here:

    link to arstechnica.com

    1. MM, I do not disagree. If the term had a definite meaning that the patentee ignored that meaning during its claim construction, then they should be sanctioned.

      I haven’t looked at the office actions and responses here to see if the meaning was clear. But I will assume it was and that Google was right all along.

  2. I was disappointed not to find an April Fools joke in this April 1 list of cert petitions.
    But perhaps it might not have been recognized as such. Judging by some I have seen in the past, no one ever seems to get sanctioned for frivolous cert petitions. One wonders if some are filed just to delay paying damages, or delay telling the client they had wasted their money on the lawsuit?

    1. Paul, a belated Aprils fools joke for you: IPRs enhance America’s system of strong patent rights that for two centuries has lead the world in transformative inventions.

      1. With 80% of petitions instituted, and only a handful of those resulting in a finding of validity, we hardly have a system of property rights that provides incentive to innovate.

        Now some might argue that 80% of issued patents are invalid. I think it is the IPR, with its lower burden of proof, BRI, unfair procedures, and a decision rendered by a political institution that has bragged about being “death squads.”

        This is not simply about lowering the costs of infringers to litigate validity, it is about the patent system itself.

        1. Ned, the statistics on the number of claims found valid in IPRs are vastly better for those claims that are NOT just broadly functional “do it on any computer” claims.
          But there is no point in discussing that and other distinctions here since no issue raised in this Sup. Ct. case will significantly affect IPR statistics. All those deluding themselves that simply changing from BRI to Phillips claim interpretation will make a big difference should look at the table and its citations in the Cuozzo amicus brief filed by Unified Patents Inc.
          As noted, I do think the indirect result of Cuozzo will be somewhat easier claim amendments in IPRs providing they are timely requested, but I do not think most patent owners will file them soon enough.

          1. Paul, BRI may be part of the problem with the bad stats in IPRs . It certain is part of the problem during reexaminations where the examiners are wild an wholly.

            If, as you suggest, the main reason for the high invalidity rate is related to software patents, well, I can only hope that you are right.

            Personally, I also think part of problem is KSR. From what I have seen personally, petitioner’s do not seem to think they have to do anymore than provide references that show all the claim limitations and then recite KSR to show that the combination is “obvious.” The PTAB seems to be willing to go along with this charade.

  3. Even Google explained what a data channel was very clearly

    Anybody who is modestly competent with the English language can explain what a term is “very clearly” once they decide for themselves what it “has to mean”.

    In this case, the patentee could have made up the term “narglefark” during prosecution and a defendant or a court might very well have reached the same conclusion as to what the term “had to mean”. And the patentee would have objected because that meaning isn’t where the $$$ is.

    This is a big problem.

    If applicants can reach into the ether for terms that admittedly have multiple meanings (or none) and then “define” them as essentially “what the cited prior art doesn’t teach” then the system is a complete joke.

    Which it is.

    1. MM, putting narglefark to one side for a minute, I have more trouble with a common everyday word like “module”, if it is inserted in the claim during prosecution, with a meaning defined somewhere in the file wrapper.

      As Ned points out, the wrapper can set the meaning. But what if readers already know full well what a “module” means, in the context of the claim, without recourse to the wrapper, and it is not what the wrapper defines “module” to mean? Confusion reigns, I would say, throughout the world beyond the confines of the offices of patent attorneys.

      Here in Europe, you derive from the patent, not the wrapper, what the claim means. During prosecution at the EPO, an Applicant introducing into the claim a new term, like “module”, a term not found in the appln as filed, has a rebuttable presumption to overcome, that the addition of the term offends the written description requirement of Art 123(2) EPC. I think the reliance by the courts in the USA on the PTO wrapper has allowed Applicants at the USPTO up to now to get away with stuff which would not be permitted by any PTO that is examining in a First to File jurisdiction. From now on, I expect to see much tightening up at the USPTO, in this area of practice. So, cheer up Malcolm, eh?

      1. As is often (when is it not, really), MaxDrei posts in a “commercial” manner for more non-US sovereign type of patent law…

        Yes, MaxDrei, there is a difference in the sovereigns on how ipsis verbis is treated. Now do not fret MaxDrie, as the US sovereign STILL has its no new matter rule firmly in place.

        Alas, MaxDrei, the US sovereign treatment of treating the entire package (wrapper and its estoppels, or conversely, its informing the public) will NOT be going away, even as we took a step towards (and decidedly NOT a step to be exactly like) ROW. TIghtening…? Um that would be not necessary, and certainly not along the lines of ipsis verbis, which would be the opposite of what we see here.

        So your little snide “allowed Applicants at the USPTO up to now to get away with stuff” can itself be stuffed.

        Thanks.

      2. Max, it sound like what you are suggesting is that a claim term that has a “plain meaning” that is not contradicted or defined differently by anything in the original specification can be changed to something other than its plain meaning simply by a prosecution argument or a proposed new definition in the prosecution. I do not think that should work in the U.S. PTO either under the controlling en banc Phillips decision. Of course the applicant can argue about what the “plain meaning” IS [to a POSITA as of the filing date]cation.

        1. Paul there is current in the UK a case where the claim recited a range (I forget the exact upper limit) of “from 1 to 20%” and there was a huge dispute whether the accused infringer, operating at 0.75%, was infringing. England doesn’t do infringement by equivalent, by the way. Either you infringe or you don’t.

          What is the “plain meaning” of “from 1 to 20%” in a claim? What’s not “plain” about 1-20? But suppose the stated range was instead “from 1.0 to 20.0%”. Then that embraces anything within the interval 0.95 to 20.05 doesn’t it? So does a stated range of 1-20 (ie whole numbers, nothing after the decimal point) cover the wider range “0.5 to 20.5%” and thereby embrace what the competitor is doing?

          Suppose the point had come up during examination in the USPTO, prior to issue (maybe suppose that what in real life came after came instead as a prior filing at the PTO). Would the wrapper be decisive, as to the meaning of 1-20 in the issued claim? Or Phillips?

          BTW what (typically) would the wrapper say about the 0.75 in the art? Perhaps just that the 0.75 disclosure does not disclose the range 1-20? In that case, how does the wrapper help, to fix the plain meaning of 1-20 in the claim?

          1. Never mind “the wrapper,” MaxDrei – what is the actual numerical limits of the claim directly as stated?

            1 to 20%

            (btw, I remember this case – and the LACK of responses then to several of my questions, including “how does one have a single “objective physical structure” with a range?”)

            What is the actual numerical limits of the claim directly as stated below?

            1.0 to 20.0%

            What is the actual numerical limits of the claim directly as stated below?

            1.00 to 20.00%

            What is the actual numerical limits of the claim directly as stated below?

            1.01 to 20.01%

            Remembering basic math includes normal rounding rules, as well as the meaning of significant digits, can anyone truly say that any of the listed ranges are the same? (hint: they are most definitely NOT).

            Of course, none of this has anything to actually do with the wrapper/no wrapper discussion, but hey, maybe this time around we all will see some answers from you.

                1. So very Malcolm of Malcolm to focus ONLY on the form and NOT (at all, as in ZERO) to discuss the content.

                  Great “ecosystem” Prof.

                  Come to think of it, Malcolm is the frack to MaxDrei’s frick on this topic, as he too “ran away” last time I wanted to discuss the use of ranges and how this impacts ANY actual claim to a single “objective physical structure”.

                  The (obviously clear) message here is that Malcolm does not want to look too closely at the content, because that content is just too darn inconvenient to his usual screeds.

                  A single claim to a family of possible solutions is not – and cannot be – a single “objective physical structure.”

                  So while writing a claim – ANY claim – in a manner to capture a single “objective physical structure” remains a nice optional claim format, the key word to keep in mind is…

                  ..

                  .

                  (wait for it)

                  ..

                  .

                  optional.

    2. MM, there is a difference between coining a term that has a defined meaning that is definite and using a term that has a multiple known meanings within the art that is not clarified by the specification.

  4. SIMPLEAIR, INC., v. SONY ERICSSON MOBILE COMMUNICATIONS
    AB & GOOGLE

    Similar facts to Cuozzo. Patentee adds a term during prosecution that appears nowhere in its specification. Patentee succeeds in convincing the district court to broadly construe the term (yep — the same term that it so desperately relied on during prosecution). Jury awards patentee $85 million.

    Now the CAFC has chucked that judgment, correctly reading the term far more narrowly such that Google doesn’t infringe. The CAFC should have found the term indefinite, of course, but that might hurt the patentee’s fee-fees. This way the patentee can continue to assert its junk patent against others, if it chooses.

    1. appears nowhere in the specification

      You want to throw an ipsis verbis fit here too…?

      Sooo “Grown-up”….

      /off sardonic bemusement

      1. ipsis verbis

        Because it’s soooooo hard to describe stuff in English.

        Especially if you’re a s00per genius “innovator” on teh Internets!

        The best part: if you’re not describing your “innovation” with precision, using words or Figures (limited to what they show), then what are you doing? Surely you’re not just describing the “gist” of your “innovation”, are you?

        Are you?

        LOL

        1. You laugh but have not done anything on point…

          That point being that there has never been an ipsis verbis requirement, so it is most odd that you keep on whining as if that was some “golden rule.”

          Why?

          1. there has never been an ipsis verbis requirement

            Shout it from the rooftops! Get on your high horse and prance around with a big wavy banner! Whoopee! Yee-haw!

            And watch your patent swirl down the tubses.

            LOLOLOLOLOLOL

            Nice horse, though.

            1. There is no “shouting from the rooftops” from me – but there is a steady stream – from you – of whining about something that is not even a requirement. I am merely reminding you of something that you should know (and that you are coming across as a major doosh because you keep on whining about it, now over three threads).

              I suggest that you get over yourself and stop whining for ipsis verbis when such is not there.

    2. It’s quite a bit more complex than your succinct description, since the CAFC took 10 pages to analyze this part of the claim. Furthermore, they held that the claims were sufficiently definite. If you want to complain about something, complain about “instantaneously” in the claim:

      1. A method for transmitting data to selected remote devices, comprising the steps of: transmitting data from an information source to a central broadcast server; preprocessing said data at said central broadcast server, further comprising the step of: parsing said data with parsers corresponding to said central broadcast server; transmitting said data to an information gateway for building data blocks and assigning addresses to said data blocks; transmitting said data blocks from said information gateway to a transmission gateway for preparing said data block for transmission to receivers; transmitting preprocessed data to receivers communicating with said devices; and instantaneously notifying said devices of receipt of said preprocessed data whether said computing devices are online or offline from a data channel associated with each device.

      US Patent 7,035,914

      1. the CAFC took 10 pages to analyze this part of the claim.

        That’s because (1) they get paid to repeat the patentee’s ridiculous arguments and (2) anytime you are construing a claim term that is not only undefined in the specification but doesn’t even appear in the specification, you’re going to have to do a lot of contortions.

        Furthermore, they held that the claims were sufficiently definite.

        Which they shouldn’t have done. They should have found the claims indefinite (because they were, as is often the case when claims are frankensteined into existence during prosecution by an applicant trying to grab hold of anything to rescue the junk that it filed).

        Just reading that junk is enough to make a reasonable person sick to their stomach. You do understand what the “innovation” is supposed to be, don’t you?

        “Data blocks.” Give us a break already.

        complain about “instantaneously” in the claim

        Go ahead. It’s junk from top to bottom. And the best part? There’s hundreds of thousands of equally junky claims just like it.

    3. Well, MM, this does support what I said that a claim term that has no known meaning, that is not used in the specification, can still be definite in the context of the patent and prosecution history.

      Even Google explained what a data channel was very clearly in it exemplars that were reproduced in the opinion.

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