Elbit Systems v. Thales Visionix (Fed. Cir. 2018)
In its IPR final decision, the PTAB sided with the patentee – holding that Elbit had failed to prove that the challenged claims of Thales patent were obvious. On appeal, the Federal Circuit has affirmed – holding that “substantial evidence” supported the finding.
The challenged (U.S. Patent No. 6,474,159) is directed to a method for tracking motion relative to a moving platform. The claims basically require two inertial motion sensors and a processor “configured to determine an orientation of the object relative to the moving reference frame based on the signals received from the first and second inertial sensors.” The particular claims here are limited to include “angular” measurements.
The decision focuses primarily on the standard of review of PTAB factual findings – substantial evidence. Substantial evidence is a very low standard – simply requiring “more than a mere scintilla of evidence.” In re NuVasive, Inc., 842 F.3d 1376, 1379–80 (Fed. Cir. 2016). Although obviousness is a question of law, that legal conclusion must begin with evidence that serve as the foundation for factual conclusions. The ultimate legal conclusion of obviousness then is based upon the structure built by those factual conclusions.
Here, the PTAB made the factual finding that the prior art reference (McFarlane) did not teach the claimed “relative angular rate signal.” That finding was based upon presented evidence: both the prior art document and expert testimony regarding what was taught by the document. The patentee’s expert explained that the prior art calculated relative angular orientation using a different approach than that claimed by Thales (i.e., did not separately create an intermediary “angular rate signal”). Although the competing expert testified to the opposite (that the prior art approach is mathematically equivalent without any practical difference), the Board chose to believe the patentee’s expert based upon its conclusion that the competing expert did not provide credible citations to support those conclusion.
On appeal, the Federal Circuit held that the PTAB was the best position to determine expert credibility and thus declined to disturb those credibility determinations. Trs. of Columbia Univ. v. Illumina, Inc., 620 F. App’x 916, 922 (Fed. Cir. 2015) (“The PTAB [i]s entitled to weigh the credibility of the witnesses.”) The challenger’s attorneys attempted to support their case with an explanation that PHOSITA would understand the meaning the prior art – That argument was rejected on appeal, however, as attorney argument rather than evidence based. Rather, to make the argument, the party should have actually presented evidence on the level of understanding of a person of skill in the art.
= = = = =
Note, I’m not sure, but this may be the first precedential decision holding that PTAB has power to weigh credibility of expert testimony in IPR proceedings. The concept was previously stated in Trs. of Columbia Univ. v. Illumina, Inc., 620 F. App’x 916, 922 (Fed. Cir. 2015) (“The PTAB [i]s entitled to weigh the credibility of the witnesses.”) VirnetX Inc. v. Apple Inc., 665 Fed. Appx. 880, 884 (Fed. Cir. 2016).
= = = = =
Challenged Claim 3 is listed below:
1. A system for tracking the motion of an object relative to a moving reference frame, comprising:
a first inertial sensor mounted on the tracked object;
a second inertial sensor mounted on the moving reference frame; and
an element adapted to receive signals from said first and second inertial sensors and configured to determine an orientation of the object relative to the moving reference frame based on the signals received from the first and second inertial sensors.
2. The system of claim 1 in which the first and second inertial sensors each comprises three angular inertial sensors selected from the set of angular accelerometers, angular rate sensors, and angular position gyroscopes.
3. The system of claim 2, in which the angular inertial sensors comprise angular rate sensors, and the orientation of the object relative to the moving reference frame is determined by integrating a relative angular rate signal determined from the angular rate signals measured by the first and second inertial sensors.
Consider whether this is patent eligible.
Yes. Though it has a lot of problems in other areas and will likely be accused of being directed to an abstract idea. It is nevertheless directed to a statutory apparatus. One that currently exists in drones, cruise missiles and B777s.
Haha, anon. I know, according to MM everything that has to do with information processing is just so easy as to not be worth mentioning.
Of course, the reality is that we are facing 100’s of million of jobs being replaced by information processing algorithms that are run using a tool called a computer. That is reality.
So, to MM he is the same as a squirrel. The information processor that we say separates us from the animals is our brain. But a squirrel and a human are both just sensors hooked up to a brain with some movement apparatuses.
link to thehill.com
People are starting to put together evidence that the burning of the patent system is hurting the US economy.
One thing additional that is interesting about the squirrel and the human is structure. MM uses this ridiculous term (and Lemley) objective structure.
But, anyone that knows anything about information processing knows that the structure of the solutions is to some degree controlled by the problem itself. So, the algorithms take on structure that is to some degree controlled by the problem, which is similar to brain structure.
You give too much credit to Malcolm and why he uses the term “objective structure.”
Malcolm only wants “picture claims” – and does not understand what the term “Ladders of Abstraction” even means – or how that term covers even the concept of Markush groups or ranges of items.
Note how he disappears every time I bring this up to him and discuss the fact that his version of “proper claim” resolves down to a singular “objective physical structure” because the moment that you permit a single claim to cover more than one actual “objective structure,” you have climbed a rung on the Ladder, and you cannot have climbing on the Ladder AND have the version of “objective physical structure” that Malcolm feels should be a limit on patent claims.
Note too that he OFTEN obfuscates and attempts to portray an optional claim structure as somehow NOT being optional and being a legal requirement when he intimates that proper claims MUST HAVE “objective physical structure.”
Reality – and innovation – are simply different than Malcolm’s feelings.
You give too much credit to Malcolm and why he uses the term “objective structure.” Malcolm only wants “picture claims”
Not at all. I want what the law requires: claims to new compositions of matter recite objective structure that distinguishes those compositions from the prior art on that basis. I’ve said this hundreds of times already. And I’ll keep saying it.
you cannot have climbing on the Ladder AND have the version of “objective physical structure”
Sure you can. The range of objective structures encompassed by a term is still objective. The distinction is objective versus subjective and/or functional.
he intimates that proper claims MUST HAVE “objective physical structure.”
I don’t intimate that. I state so expressly. Of course, I’m assuming we’re all reasonably intelligent people who understand that the objective structures may be referenced in a claim indirectly, i.e., they can appear in a list or Table in the specification (or in an electronic file submitted with the application) and don’t need to be set forth “directly” in the claim. As I said, reasonably intelligent people understand this.
They also understand that you kick up dust around this issue because I’m right, and plainly so. Go ahead and take your client’s money and claim functionality at the point of novelty. If stealing makes you feel great, then keep doing it! But dont’ pretend that you’re not stealing. Be proud of it. Put on those hot pants and strut about like only you can, “anon.”
Malcolm you want others to watch out for malpractice while stating “want what the law requires: claims to new compositions of matter recite objective structure that…”
which is objectively and patently FALSE.
You attempt yet again to turn an optional claim format into something that is not an option.
You better inform your own insurance carrier that you are advising clients in this manner – if in fact you are actually doing so (and not just blowing smoke here in a blog, thinking that such is not advocacy that is controlled by attorney ethics).
[A]nyone that knows anything about information processing knows that the structure of the solutions is to some degree controlled by the problem itself. So, the algorithms take on structure that is to some degree controlled by the problem…
Er, fine, but what of it? The shape of an ice cream scoop is also controlled by the problem itself (how to create a ball of ice cream of sufficient diameter to sit easily on the top of a standard sized ice cream cone). That does not really stop one from describing the scoop in objective structural terms nonetheless (“a hollow semicircular hemidome with a diameter between 4 and 6 cm” or some such).
Greg >>> in objective structural terms
What does that mean? The description of an information processing algorithm is not enough? A chart? Pseudo-code? College text books explain that functional language is often used to capture the set of known solutions.
That is structure. (And, it actually defines how a special purpose circuit would be structured. I.e., the contacts, transistors, etc.)
What does that mean?
To my mind, an algorithm is enough. I can see the logic, however, to the argument that algorithms are not enough, and actual code is required.
[F]unctional language… is structure.
This seems like a cute slogan more than an actual argument. Surely, not.
[F]unctional language… actually defines how a special purpose circuit would be structured. [(]I.e., the contacts, transistors, etc.)
Well, now, that rather answers your question, does it not. If it is really the case that a given functional recitation bespeaks a certain arrangement of contacts, transistors, etc, then it follows that the structural description is to describe the contacts, transistors, etc.
Please Pardon Potential (re)Post:
Greg,
Please show me in the law written by Congress where exactly it states that claim formats MUST be in this “objective physical structure” thingie.
Having that avenue as an option is all fine, dandy, and wonderful.
Pretending that a claim format that is optional is somehow “magically” NOT optional is quite the opposite.
I think anon that the antis have invented a new term without a definition (other than it doesn’t apply to information processing) in objective structure.
But, reality we should try to identify for all inventions what they actually are. Where is the structure.
Actually, given quantum mechanics and the fuzzy nature of molecules I think that MM’s structure is less definite than the structure of information processing claims.
Greg speaking the truth plainly here. Nice!
Of course the twin brick walls will react predictably.
That Accuse Others meme in action with “the brick” comment…
So predictable.
>>[F]unctional language… is structure.
>>This seems like a cute slogan more than an actual argument. Surely, not.
I just told you why it is not a “cute slogan.” I have provided links before to college textbooks that expressly state that functional language is used to capture the set of known solutions. Each of those solutions is structure.
And–reality–each of those solutions define a set of special purpose chips.
I really don’t get the argument that this isn’t structure. I spent years studying algorithms and as part of the Ph.D. program had to figure out how to make special purpose chips.
I have provided links before to college textbooks that expressly state that functional language is used to capture the set of known solutions.
Er, o.k., but to say that “functional language… capture[s] the set of known solutions” is not the same as to say that “functional language… is structure.” I can use a set of social security numbers to designate a group of people, and I can use a set of given names to designate the same group of people, but that does not means that the SSNs are the people, or that the names are the people, or that the SSNs=names. The fact that there are two ways of describing a given thing does not mean that those two descriptors are interchangeable.
[F]unctional language is used to capture the set of known solutions.
Oh, we are speaking of known solutions? Why did you not say so earlier. Carry on. You can indulge as much functional language as you like when describing the old elements of your invention. It is only the novel bits that require objective structural designations.
“It is only the novel bits that require objective structural designations.”
Cite please.
>> It is only the novel bits that require objective structural designations.
Again, you did not define “objective structural designations.”
Of course you can use functional language for “novel bits.” The claim is supposed to be viewed as a whole, so your novel bits is wrong from the get go. Moreover, as long as the functional language is enabled—which is the test–then it is fine.
You really have some twisted logic that is not patent law, but a plaintive attempt to limit patents.
The way to control the functional language is that you can say if the scope is so broad as to include new non-obvious solutions that perform the same function then it could be invalidated. But even that is simplistic. Was it the function that was the invention? In some cases yes.
Anyway, you analysis is incredibly simplistic. You act very much like a judicial activist anti-patent person.
Plus, you are not even dealing with reality. When real inventions are considered, then it becomes immediately obvious that claims that do not include functional language are almost worthless. They are way too narrow and very easily designed around.
I have written plenty of real claims that are used for licensing and lawsuits. And I was a litigator too.
What you spout is from Lemley’s nonsense that only a person that is not a patent attorney could come up with.
Greg, you come off as anti-patent judicial activist. Your views on claim construction are not realistic and shameful.
[Y]ou did not define “objective structural designations.”
Fair enough. I am using the words in their plain, ordinary, English-language sense, so I did not suppose that a definition was really necessary, but if you wish one, I will happily oblige. “Structure” conveys that one must describe the invention by what it is rather than by what it does. Just as Morse was not permitted to claim “the use of… electro-magnetism, however developed for marking or printing intelligible characters, signs, or letters, at any distances,” but was rather limited to claiming the particular arrangement of machine parts that he had contrived to achieve that outcome, so too must all inventors describe the actual process, machine, material (etc) that they have invented. They may not simply claim “a material that achieves [outcome].” That is what is conveyed by “structural.”
“Objective,” being an adjective, modifies “structure” and conveys that the structure must be described in terms that are mutually intelligible to all people on equal terms. It is no good to describe a lever as “long” or “short,” because different people have different ideas about what is long and what is short. Rather, one must say that the lever is “at least 10 cm long” or “between about 14 dm and 15 dm,” or some such.
Of course you can use functional language for “novel bits.”
You are, of course, quite correct. One can describe the novel elements of one’s invention in functional terms. When one does so, however, §112(f) acts by operation of law to change those functional descriptors into structural designations, such that one ends up claiming no more than the structures that one has disclosed plus “equivalents.” In other words, you can use functional language if you like, but you really cannot achieve a functional claim. The law will simply turn your function into structure, whether you like it or not.
Greg,
You err – and err badly with your leap immediately into 112(f) and:
“One can describe the novel elements of one’s invention in functional terms. When one does so, however, §112(f) acts by operation of law to change those functional descriptors into structural designations, such that one ends up claiming no more than the structures that one has disclosed plus “equivalents.” ”
Think: Vast Midle Ground (as penned by none other than Prof. Crouch.
[C]laims that do not include functional language… are way too narrow and very easily designed around.
If I claim “no more than 500 mg celecoxib” that is (1) objective (we all know what celecoxib is and how much makes 500 mg” and (2) structural. Now you might say that one can design around this claim by formulating a product that contains 550 mg celecoxib, but in real life 550 mg is a toxic dose, and this design-around strategy will open one to tort liability. So in practice, there is no commercially viable design around, even though the claim is phrased in objective, structural terms.
In other words, it is not the case that all claims set down in objective structure are “worthless.” You simply need to know your subject matter, so that you can write in the definitions that capture all of the commercially practicable subject matter. This requires more effort on the part of the applicant and/or the attorney, but it is by no means impossible. Such claims are not only not “worthless,” they are actually worth more than the lazy, functional claims, because the objective structural claims will hold up in court.
Greg, you come off as anti-patent judicial activist.
As long as we are complaining about undefined terms, can I press for a definition of “anti-patent.” What does this mean? If I argue for a 100-year-from-issue patent term, does that mean that I get to deride the rest of you as “anti-patent” because you are content with 2o-years-from-filing? Are there “ladders” of anti-patentism, and each person gets to spit on the rungs below?
Your views on claim construction are not realistic and shameful.
Hm, I do not feel ashamed. No doubt this reflects a defect in my character. I shall have to remember to discuss this with my priest next time I go to confession.
Sorry Greg, but wrong again.
“no more than” REMOVES the “objective nature, as you now have a range and when you have a range, you are no longer limited to any one single actual “objective” item.
As I noted, this is part of the ability (even necessity) of using the Ladders of Abstraction.
Greg,
Please show me in the law written by Congress where exactly it states that claim formats MUST be in this “objective physical structure” thingie.
Having that avenue as an option is all fine, dandy, and wonderful.
Pretending that a claim format that is optional is somehow “magically” NOT optional is quite the opposite.
These 101 arguments from Ned and MM below just seem to get more and more ridiculous as the judges slowly ramp up on information technology.
Again, 101 simple. Figure out the structure. And, then go through the list of witches to make sure you don’t have a witch. If you have a witch, then you are going to get burned most likely if you run into a medieval judge.
Ned and MM would exclude all information processing.
“Again, 101 simple. Figure out the structure. And, then go through the list of witches to make sure you don’t have a witch. If you have a witch, then you are going to get burned most likely if you run into a medieval judge.”
I support this method of finding facts for 101.
“I support this method of finding facts”
Pop quiz for you, 6.
As an examiner, I am sure (?) that you are well aware of the limitations to which you (as an examiner) must abide by when it comes to ANY method of finding facts.
Can you explain these to the readership here?
Thanks
” the limitations to which you (as an examiner) must abide by when it comes to ANY method of finding facts.”
Yes, they must involve witches and witchcraft. The “goddess mother” must be given her due.
Caught in the “don’t have a dialogue” filter, 6, is the link to the Office official memorandum on “Taking Official Notice.”
That – rather than any glib “witch” reference was what I was asking you to comment upon.
Ned and MM would exclude all information processing.
Definitely I would exclude all claims that protect information processing being performed by prior art machines that were built to perform information processing.
That’s because information processing (otherwise known as logic applied to data) is ineligible subject matter.
This isn’t a radical concept, nor is it new.
But boy does it upset a certain tiny class of patent attorneys! Wow. I mean you’d almost think that they have no other skills except scrivening g@ rbage. And that’s just not true. At least not for some of them.
Well, at least you are being honest about your position.
There is NOTHING honest about his position.
It is the epitome of inte11ectual DIShonesty.
Well, anon, not if taken as an advocacy position.
I completely disagree Night Writer.
EVEN IF taken as an advocacy position, the manner in which Malcolm proceeds with his position (ignoring reality and engaging in purposeful obfuscation) so taints the position being advocated as to make it untenable from an inte11ctual honesty perspective.
It might be different if the counter points raised (time and time and time again) were actually integrated into his advocacy (as opposed to his drive-by monologue internet-style “shout down”), but we both know that not only does that not happen, but that Malcolm absolutely refuses to engage in anything close to an inte11ectually honest manner.
Twelve years now.
if the counter points raised (time and time and time again) were actually integrated into his advocacy
I address those alleged counter-points time and time again, rebutting them reason and logic. I don’t even wait for the counter-points to be made.
Sure, I also use sarcasm and humor, especially when the dialog begs for it. I also don’t shy away from harshly criticizing dissembling and hypocrisy and willful ignorance and, let’s face it, that’s what really peeves people off — especially the l i a r s and hypocrites out there.
And just in case it isn’t clear, it’s a strange kind of “advocacy” where you advocate for your opponent’s positions, which is what you’d really like me to do. And I could do it, too, if only your positions weren’t so ridiculously self-serving and full of fatal holes in logic and reasoning that a truck could drive through.
“I address those alleged counter-points time and time again, rebutting them reason and logic.”
Pure B$.
“don’t shy away from harshly criticizing dissembling and hypocrisy and willful ignorance”
Except of course your own – which is rampant (along with your number one meme of Accuse Others Of That Which You Do.)
Yeah, the manner, yes. But just that one statement as advocacy is not dishonest.
Night Writer, it most definitely is NOT a matter of “just that one statement”
Clearly.
This case further illustrates the vital importance of adequate declarations in IPRs.
————-
Re: “… PTAB has power to weigh credibility of expert testimony in IPR proceedings.” That has always been so for the Board in interferences or any other inter party patent or trademark proceedings with conflicting evidence.
The assertion leads to a question that has long puzzled me.
Why do I often find that a patent litigator is often reluctant to file a Daubert motion?
I am an MIT, Harvard, and Yale credentialed engineer and physicist. I reviewed the credentials of the patent owner’s expert and the petitioner’s expert in Tinnus Telebrands PGR.
Both were MIT credentialed.
The patent owner’s expert had relevant expertise in the engineering of toys. The petitioner’s expert had no relevant expertise whatsoever. His research lay in the rheology of granular solids — something completely irrelevant to the issues of the case.
[BTW, I had much more relevant expertise because in the past I have worked as a plumber.]
IANAL but I certainly could have written a first draft of a motion to exclude the petitioner’s expert.
I think a patent owner should always make a Daubert motion to exclude the petitioner’s expert if it is in any way possible. If the PTAB excludes the expert, it seems good because the it screws up the petitioner’s case. If the PTAB does not exclude, the patent owner’s litigator can argue obvious error in not excluding before the CAFC.
[BTW, if I work for the petitioner, I make sure the petitioner’s expert is invulnerable to a Daubert motion.]
I have found the USPTO tends to accept the analysis of an unprincipled expert willing to argue what the USPTO wants even if the expert is an obvious clown.
In the evaluating the arguments or findings of an expert, the CAFC certainly should not defer to the USPTO, and nowadays we should give the CAFC as little justification for Chevron deference to the USPTO as possible because the USPTO is showing serious evidence either of agency capture or of agency corruption.
Even weirder, the PTO regularly relies on inventor decs for establishing what the prior art — not just the prior cited art — fails to teach. Think about that.
The inventor has a positive duty of due diligence in finding and in disclosing prior art. Conscious withholding of disclosure of prior art during examination is grounds for invalidation of an issued patent.
If you have not read MPEP 2800 Supplemental Examination, you probably should.
If a patent owner discovers new prior art after issuance, he is foolish not to disclose it to the USPTO because a defendant in an infringement proceeding or a plaintiff seeking declaratory judgment almost certainly will find the prior art.
Malcolm was merely exhibiting his cognitive dissonance and disdain for his “clients” again.
As is his “habit” that is marked this month with a 12 year anniversary.
He was not adding anything meaningful and frankly won’t give a rip about your attempt to help him.
Just so we’re at least kind of on the same page … what I’m talking about usually has nothing to do with the declarant’s “diligence” because the declarant (expert or not) in most instances before the PTO will not have done any focused searching (there is no requirement for doing so). Rather, the declarant, in most instances, will rely on his/her own background and experience to “give weight” to his/her opinion.
The issue I’m drawing attention to is the PTO’s habitual willingness to accept the most biased possible declarations on their face. I recall that there is some lip service in the MPEP about self-serving inventor declarations. That’s all it is, however. Lip service. I’d guess that the number of inventor decs that are rejected by the PTO as hopelessly biased and self-interested and which are, in effect, “proving a negative” about the prior art (or about PHOSITA’s understanding of that art), are less than 10% of all that are submitted.
This is the kind of self-evident fact that should give patent attorneys and “small inventors” (LOL) pause before they ramble on and on (and on and on and on…) about the PTO’s conspiratorial “anti-patent” prejudices. But of course it won’t stop those people. Nothing will. Because that kind of rant is pretty much all those people know how to do.
Let’s get on the same page.
Are you, Malcolm, referring to an Inventor’s Declaration, a 130 declaration, a 132 declaration, a declaration in support of a petition, or an Affidavit-not covered under specific rule?
All are scrutinized. Sometimes the Office requests supporting evidence and then decides how much wait to give an affidavit or declaration.
As I said, Joachim,
Malcolm was merely exhibiting his cognitive dissonance and disdain for his “clients” again.
As is his “habit” that is marked this month with a 12 year anniversary.
He was not adding anything meaningful and frankly won’t give a rip about your attempt to help him.
He constantly whines about others “constantly whining” as if his own constantly whining is enough to dismiss what others are complaining about – with NO regards to what those others are actually complaining about.
He
Just
Does
Not
Care
…and yet he purports to be an attorney in service to the very types of people that he holds in such disdain – he purports to have a job helping those he despises.
What do you think that must do to his mental state?
Declarations by named inventors are NOT alone sufficient in interferences, and declarations in IPRs are subject to live cross-examinations which should challenge state of the art allegations made without any serious prior art investigation.
The inventor has a positive duty of due diligence in finding and in disclosing prior art.
Er, this is not correct. The inventor has a duty to disclose art of which the inventor is aware, but the inventor has no “positive duty of due diligence in finding… prior art.”
It is an open question whether the inventor should have such a duty. It is black letter law, however, that the inventor does not presently have such a duty. American Hoist & Derrick Co. v. Sowa & Sons, 725 F.2d 1350, 1362 (Fed. Cir. 1984) (“Nor does an applicant for patent, who has no duty to conduct a prior art search, have an obligation
to disclose any art of which, in the court’s words, he ‘reasonably should be aware.'”)
“but the inventor has no “positive duty of due diligence in finding… prior art.””
Absolutely correct.
“It is an open question whether the inventor should have such a duty”
Absolutely Incorrect.
“open question” is not the term to use.
That would imply that THAT question is actually being asked. It is not. In fact, I do not recall that question EVER being asked (in the sense that anyone in the legislature has even floated that idea).
Speaking about clowns….
The clown Malcolm will be most unhappy about this: link to ipwatchdog.com
Of course, he will whine about people wanting patents (to – gasp – make money), and his whining may even stir up the old canard about “making a better ec(h)osystem here (ALL THE WHILE we “celebrate” this month of February as the twelfth year of Malcolm’s documented blight (of which, the attempts at “ecosystem” correction never seem to be able to “pick” that low hanging fruit).
Goodness knows, suggestions for handling that blight have been provided (and implementation would be easier than finding some college students in a coffee shop and offering a free pizza for a weekend’s work to “just do it”).
Very good comment Joachim Martillo. I wouldn’t let MM bait you. I’ve been blogging with him for 13 years. He has little interest in an intellectually honest debate.
You are being far too generous with the characterization of “little.”
“Less than zero” would be more accurate.
“structure of factual findings”
Is that like “objective physical structure”…?
Also, claim 3 is somewhat poorly written which may play into either 112 (think IPXL) or 101 arguments. Note that claim 3 does not recite “wherein the controller is configured to determine [the object’s orientation] by integrating”, and indeed does not recite ANY further structural or functional limitations on the controller. Rather, it recites that something “is determined by integrating”, without requiring that it be the controller (or any other previously recited element) that does the integration.
J, indubitably. In the reason for this vagueness is that the invention is in the calculus because all the hardware is old and old in combination; it only provides input to the calculating means whatever that is. The calculating means outputs a number which is interpreted as an orientation of the target. This is very much like Benson.
It is not that integration of angular rate signals is new in context, but that the algorithm uses an intermediate step that calculates what the algorithm describes to be a “relative angular rate signal.” The prior art never calculated such.
While this intermediate calculation may be new, the subject matter is not patentable.
Ned, What you are attempting is your old “Point of Novelty” for eligibility determinations.
We both know – and you are being unethical pretending otherwise – that for eligibility, it is the claim itself, taken as a whole that is “the subject matter.”
Anon, as the courts have explained, simply including ineligible subject matter in a claim does not render the claim ineligible. However, if the eligible subject matter of a claim is not improved in some fashion, then the claim presents no patentable invention even if the ineligible subject matter in the claim is new and nonobvious.
“simply including ineligible subject matter in a claim does not render the claim ineligible. ”
That is exactly what you are trying to do though with your vapid (even if you no longer use the term) “Point of Novelty” for eligibility Windmill Chase.
“if the eligible subject matter of a claim”
“of”
Once again Ned – the subject matter for eligibility is the CLAIM ITSELF, taken as a whole.
“outputs a number which is interpreted as an orientation of the target. This is very much like Benson.”
This is nothing at like Benson.
This is VERY MUCH like Alappat.
That “just a number” which you are falsely crowing about is very much functionally related to the NON-conventional treatment of the sensors in relation to what the sensors are sensing.
For my understanding of the discussion of the prior art, the only novelty over the prior art is the alleged production by these sensors of an angular rate signal that permits a two-step calculation instead of a three-step calculation. But this novel subject matter is not introduced into the claims until dependent claim 3. I don’t know why or even how claims 1 and 2 are valid because they must necessarily read directly on the prior art and must be anticipated as they are not limited to sensors producing an angular rate signal.
“Something something specification something improvement.” – with love, the CAFC
On further reading of the case, the Federal Circuit was determining patentability of claims 3, not necessarily of claims 1 and 2.
link to cafc.uscourts.gov
Dennis,
FYI, re: “Consider whether this is patent eligible.”
See Thales Visionix Inc. v. United States, 850 F.3d 1343 (Fed. Cir. 2017).
My apologies, as I should have included a synopsis in my prior post. The Federal Circuit found that “[t]hese claims are not merely directed to the abstract idea of using ‘mathematical equations for determining the relative position of a moving object to a moving reference frame,’ as the Claims Court found”, but instead “are directed to systems and methods that use inertial sensors in a non-conventional manner to reduce errors in measuring the relative position and orientation of a moving object on a moving reference frame.” Thales Visionix Inc. v. United States, 850 F.3d 1343, 1348-49 (Fed. Cir. 2017).
JCD, I wonder what the result would be if the apparatus were demonstrated to be entirely old, generating conventional signals from inertial sensors where the only improvement was in the calculus? I have no idea what this “angular rate signal” is without looking at the spec. But I believe that it is the same signal that is produced by conventional inertial sensors. If that is the case, then there is nothing new about the sensors and the improved result, a number, would depend only upon improved mathematics.
But the claims claim a system that produces a number, not unlike a computer produces a number. That system is improved by the improved calculus. Thus I believe the claims may be eligible nevertheless because of their structure. But, methinks, this case is more like Benson than not.