Patentlyo Bits and Bytes by Anthony McCain

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Anthony McCain

About Anthony McCain

Anthony McCain is a law student at Mizzou where he is focusing on intellectual property; He has a background in mechanical engineering. anthony.mccain@patentlyo.com

5 thoughts on “Patentlyo Bits and Bytes by Anthony McCain

  1. Van Loy et al : the Federal Circuit held that the relevant question is “whether the claims are directed to an improvement to computer functionality versus being directed to an abstract idea, even at the first step of the Alice analysis.” This subtle change in the question asked of software patents may result in a profound change in the USPTO’s approach to software patents.

    Enfish is just rehashed DDR. There isn’t going to be a “profound change” at the PTO — or at least there shouldn’t be — because the PTO is already bending over backwards and using DDR to coddle computer-implementers.

    Every patentee-friendly decision is given its broadest intepretation by the PTO; every decision not deemed patentee friendly is limited to its specific facts.

    Here’s the two most important things practitioners and their clients need to understand about Enfish and DDR: (1) they’re not going to last and patentee’s relying on those decisions to obtain their patents are going to be holding worthless pieces of paper before the terms of those patents are up; (2) vast numbers of “do it on a computer” junk just got even more junkier because if there’s one thing that’s clear from Enfish and DDR it’s that “innovations” that don’t plainly “improve computational functionality” generally (i.e., wholly independent of the content of information being stored or processed) remain ineligible.

    And there will be no turning back.

    I look forward to Van Loy et al’s write-up on the precedential TLI Communications case that followed immediately in Enfish’s wake. I’m also looking forward to seeing how the CAFC is going to deal with Planet Blue’s junky “use a look up table to determine whether Mickey’s mouth needs to move” patent. Those claims certainly fall on the TLI Communications side of the fence but never underestimate the CAFC’s ability to shoot itself in the face trying to shoehorn some undeserving junk onto the trophy shelf.

    1. Prompted by the above, I found and read the Planet Blue opening brief and listened to the oral argument.

      Leaving aside the question as to where this should fall under 101, did the claim drafters not make problems for themselves by not producing some narrower claims limiting the rules?

      Plain ordinary meaning of “output morph weight set as a function of phoneme sequence and time of said phoneme sequence” to me would include every possible way of expressing output morph weight set for phoneme sequence p1, p2, p3, p4, p5 and associated time sequence t1, t2, t3, t4, t5 as a function of the form

      F((p1, p2, p3, p4, p5), (t1, t2, t3, t4, t5))

      irrespective of how complicated or trivial the function F is. And functions include constant functions and identity functions, for example, so this would not exclude, say,

      F((p1, p2, p3, p4, p5), (t1, t2, t3, t4, t5))
      = (g(p1), g(p2), g(p3), g(p4), g(p5))

      where g is a function converting phoneme to morph weight set. (This might read on the prior art.)

      The lawyer for Planet Blue seemed to be arguing to the contrary in the final five minutes of oral argument.

      It seems that the prior art lacks dependent claims including things like

      wherein the morph weight sequence associated to at
      least one phoneme differs in at least one case where
      a neighboring phoneme changes

      or

      wherein the morph weight sequence associated to at
      least one phoneme differs in at least one instance
      where the time between that phoneme and a
      neighboring phoneme is increased or diminished.

      Such claim limitations would limit to a broad class of rules indicated by the specification, with the result that the claim wouldn’t read on every way of expressing morph weight sets as functions of phoneme sequences and timings, thereby ensuring that the claim was directed to the abstract idea of morph weight set determined by rule from phoneme and timing sequences.

      This may have been what the CAFC judges were probing in the final minutes of the oral argument.

      And maybe this might have been what Judge Wu was getting at in his section 5 entitled “The Draftman’s Art”, where he writes “This case illustrates the danger that exists when the novel portions of an invention are claimed too broadly.”

      1. The narrowness of the subject matter being “pre-empted’ isn’t important when the subject matter being pre-empted is ineligible for patenting. For instance, I could “innovate” a new rule for determining how long to shake a customers hand when he walks into my store. It doesn’t matter how complicated and narrow that rule is. It’s still ineligible for patent protection. Limiting the application of the rule to a certain type of store (a video store, selling 3D movies!) also doesn’t change a thing.

        That said, the subject matter you identified as “seemingly lacking” in the prior art is almost surely in the prior art once you translate the h0gwash into plain English. People have been using rules to sync sound with image for a long, long, long time. Pretty much nobody does it randomly, after all, and for the most part (some experimental films excepted) pretty much nobody ever did.

  2. Scott Flaherty: SEC Suit Targets Patent Troll Owner

    This link leads to a paywall.

    But this one doesn’t: link to americanlawyer.com

    The U.S. Securities and Exchange Commission took aim Friday at a pair of Texas lawyers—one with ties to a notorious patent assertion entity and another with Am Law 200 grooming—accusing them of furthering a multimillion-dollar scheme to cheat small business owners.

    The SEC filed suit in Manhattan federal court against Jay Mac Rust, a Stephenville, Texas-based lawyer who also owns the litigious patent holder MPHJ Technology Investments LLC, and Christopher Brenner, a onetime Fulbright & Jaworski and Bracewell lawyer now at Houston’s Martin, Disiere, Jefferson & Wisdom. ….

    As part of the scheme, the two lawyers allegedly helped coax deposits out of small business owners that were looking for commercial loans through Atlantic Rim. In all, some 29 small businesses deposited about $13.8 million into the supposed escrow accounts, the SEC said, and victims of the alleged scheme lost more than $6 million. ….

    [T]he SEC claims, Rust and Brenner diverted the funds into investments in risky derivatives and, in some instances, the lawyers allegedly stole money outright. Rust allegedly siphoned off $662,000, and Brenner allegedly took $595,000 to pay themselves and others, according to the suit.

    What a huge surprise! Why, I’m almost as suprised to hear about this as I was suprised to hear about Niro’s woes. Nobody could have predicted that these righteous defenders of “small inventors rights” were just grifting hacks on a wallet-lining mission.

    But let’s hear from the peanut gallery: these guys are the exceptions, right?

    Sure they are.

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