O Prior Art, Prior Art, Wherefore Art thou Prior Art? 

by Dennis Crouch

In a new opinion the court asked and answerd an interesting question: What if most on-point prior art was accidentally created due to a typographical error? In LG Electronics, Inc. v. ImmerVision, Inc., — F.4th — (Fed. Cir. 2022), the Court sided with the patentee in holding that a person of skill in the art would have “disregarded or corrected” the  error rather than relying on the error as the foundation of an inventive project.  A key to the analysis was a finding that the error would have been apparent to someone of skill in the art.  See In re Yale, 434 F.2d 666 (CCPA 1970).

ImmerVision’s patent claims an improved method for panoramic images.  The basic idea is to use a non-linear objective lens that captured and then digitally mapped onto a linear pixel grid. The claims require that the lens compress the image at its center and edges and expands intermediate zones.  You can compare the prior art linear objective lens results (Fig. 4A) with those of the proposed panorama lens (Fig 7A).

Because of lens curvature, the center and edges of a super-wide-angle-lens are typically produce lower image quality. The approach here improves the quality of those areas but at the same time creates odd distortions in the image that then need to be corrected using digital image processing.   There are other solutions that would work as well. One example would be higher sensor density in these particular areas.

Lots of smartphones now have multiple lenses, including panorama lenses.  ImmerVision sued LG (and others) for patent infringement and LG responded with two IPR petitions. The PTAB instituted the IPR here, but eventually concluded that LG had failed to prove that the claims should be cancelled. On appeal, the Federal Circuit has affirmed.  Judge Stoll penned the majority opinion joined by Judge Cunningham.  Judge Newman wrote in partial dissent — arguing that the error in the prior art was not an obvious-enough error.

Typo in the Prior Art: The key prior art (Tada) included one table of aspherical data that appeared to show a non-linear lens similar to ImmerVision’s.  The problem — those figures do not match-up with other descriptions of the embodiment in the Tada specification and there is no discussion in Tada of having such a non-linear lens.  Tada is a U.S. patent, and the clincher for the court was that the original Japanese priority document included different numbers that actually matched the other portions of the specification.  Finally, LG did not dispute that “the aspheric coefficients in Tada’s Table 5 were erroneous.”

Of course patent lawyers usually don’t get a balcony scene asking: O Prior Art, Prior Art, wherefore art thou Prior Art?  Rather, we take the printed publication as it is and compare the published words and figures to the patent document.  But for obviousness we do ask an additional WWPD question: What would POSITA do? And here, we have some precedent with the court announcing that a Person of Skill in the Art (POSITA) would disregard an obvious typographical in the prior art and instead fix the typo before trying to modify the reference. In re Yale, 434 F.2d 666 (C.C.P.A. 1970).

In Yale, a patentee was seeking protection for a specific compound of inhalation  the anesthetic—CF3CF2CHClBr.  The USPTO rejected Yale’s claims as obvious based upon a prior art publication that listed that same compound (CF3CF2CHClBr) as an known important analgesic compound.  At the time though the compound was not actually known and it was clear from context that the author of that prior art publication meant CF3CHClBr which was actually well known at the time. In correspondence, the author of the prior art admitted that was “of course, an error.” Still, the PTO rejected the claims as obvious since the compound was actually disclosed in the prior art.  On appeal, the CCPA reversed — holding that such an POSITA would “mentally disregard” such an “obvious error” in the prior art.

Certainly he would not be led by the typographical error to use the erroneous compound as an anesthetic even if as a chemist of ordinary skill in the art he would know how to prepare the compound. He simply would not get so far in the thought process as to determine if he knew how to make CF(3) CF(2) CHClBr, as it would have long since been discarded by him as an obvious typographical error.

Yale. One aside about YaleYale was decided by the Federal Circuit’s predecessor court, the Court of Customs and Patent Appeals (CCPA) and remains good law and binding precedent on the Federal Circuit.  In its first decision back in 1982, the Federal Circuit adopted all prior CCPA holdings as binding precedent. South Corp. v. U.S., 690 F.2d 1368 (Fed. Cir. 1982):

In LG, the Board concluded that the Tada error was an obvious error in line with the holding of Yale. On appeal, the Federal Circuit affirmed — holding that substantial evidence supported the Board’s findings.

This is where Judge Newman dissent comes into play.  She notes that the error was not discovered “until an expert witness conducted a dozen hours of experimentation and calculation.”  Further, Tada’s owners had filed a certificate of correction to fix some aspects of the patent — but did not correct the table.  Judge Newman also notes that the only way that the expert witness firmly concluded that the error existed was by translating the Japanese priority document–something even optics experts are unlikely to do.

I agree with the panel majority that Yale establishes the correct standard to determine if an error would be obvious to a person of ordinary skill in the field. However, I do not agree with the majority’s application of this standard to the facts herein. An “obvious error” should be apparent on its face and should not require the conduct of experiments or a search for possibly conflicting information to determine whether error exists. When a reference contains an erroneous teaching, its value as prior art must be determined.

The error in the Tada reference is plainly not a “typographical or similar error,” for the error is not apparent on its face, and the correct information is not readily evident. It should not be necessary to search for a foreign document in a foreign language to determine whether there is an inconsistency in a United States patent. The foundation of the “typographical or similar” standard is that the error is readily recognized as an error. I am concerned that we are unsettling long-standing law, and thus I respectfully dissent in part.

Slip Op. (Newman, J. in dissent).  The majority disregarded Judge Newman’s arguments: “The distinction between the typographical error in Yale and the copy-and-paste error here is a distinction without a difference.”  Id. (majority opinion).

LG had asked the court to shift its standard — only disregard typographic errors that are “immediately” obvious.  The court rejected this temporal urgency as not required by Yale.

162 thoughts on “O Prior Art, Prior Art, Wherefore Art thou Prior Art? 

  1. 16

    I feel like the problem is that you simply aren’t educated. You don’t know what a rational debate is or what a fact is. That you are a member of a Far left Right cult and you can’t think anymore

    There, fixed it for you. Projection is a cr azy thing.

    PS I read from a spectrum of sources, including right wing sites. That’s how I learn all of their conjuring words and shibboleths, ever growing and baroque.

    Benghazi!

    1. 16.1

      You are SOOO dense, marty — missing both of what Night Writer asks of you (look at facts) AND attempting to project your own style of projecting (Dr. Lindsay nails this behavior of the woke).

      It is not enough that you “read from a spectrum of sources” — especially as you admit HOW you read from sources that you have already pre-judged. You know, if you actually paid attention to what Night Writer said, you could read from that spectrum AND actually cogitate and form a non-Sheeple opinion.

      As it is – you are worse than Sheeple.

    2. 16.2

      You can lead a horse to water, but you can’t make him drink.

      1. 16.2.1

        You sound like a cult member Greg.

        1. 16.2.1.1

          I expect that I do sound like a cult member to you. Hélas, dommage ça.

          1. 16.2.1.1.1

            No objectively you sound like a cult member. You have beliefs that cannot be challenged. You are not operating as a rational thinker.

            Try to do what I said. Drop your cult beliefs and just look at facts. Try to write a few stories yourself. I used to write for the school paper. And then compare the facts you think should be included with what the mainstream media has included.

            1. 16.2.1.1.1.1

              Note as well that he simply and openly re-defines your statements, denying facts are facts and accuses you of not following facts.

              Greg simply has zero credibility.

    3. 16.3

      Right. So you aren’t going to look at one of the stories in depth and argue about the facts.

      I wish I could find it. I watched a couple of days ago a video about the NY Tx had distorted the facts they reported and not reported many of the facts regarding the Bodega worker. I’ll see if I can find it. What educated people say is that the mainstream media misrepresents the facts they report and doesn’t report all the facts. Or all the facts that fit our narrative.

      Try to argue the facts.

      1. 16.3.1

        Martin, I note too that you keep referring to the R political party’s positions as opposed to non-mainstream reporting.

        Do some research on a few issues. Do what I did. I wrote on an Excel spreadsheet the major facts of a story by reading from many news sources and doing my own research. So, there would be a list of say 10 facts that are substantive to the story. Then give a column for the news source and mark which of the facts they have reported or if they have misreported the fact.

        Do this for a few politically charges news stories and you will quickly find that the mainstream media is propaganda.

        1. 16.3.1.1

          I wrote on an Excel spreadsheet the major facts ofthings that it pleases me to believe about a story by reading from many news sources and doing my own researchdeciding that I liked this claim more than that one.

          There, fixed it for you.

          1. 16.3.1.1.1

            Sad Greg. No I was a reporter for my school newspaper.

            I have a pretty good idea about ethics and what is a substantive fact.

            Again, pick a couple of stories and let’s go through the facts. I note that you don’t want to do that.

            1. 16.3.1.1.1.1

              I have a pretty good idea… what is a substantive fact.

              Over the course of this thread, we have all watched you—repeatedly—make up “facts” (July 14, “John Paul Mac Isaac won a huge defamation lawsuit…”; July 18, “The laptop and data has been confirmed by multiple sources”; July 18, “Biden is giving away huge deals to the Chinese, fighting a war in the Ukraine, and giving away huge amounts of money to Iran”). The idea that you are using these “facts” to evaluate the relative credibility of various news sources is a morosely comical example of reasoning in circles.

              Martin and I are both doing exactly what you recommend that one should do. We both start from a list of facts that we can meaningfully confirm, and then we evaluate the relative credibility of various actors and media sources based on their presentations of those confirmable facts. If we arrive at a different conclusion than you do about relative credibilities, it is because the “facts” on which you are basing your assessment are fictions and indulgences of your own whims and desires.

              1. 16.3.1.1.1.1.1

                You are claiming that this is not true: “The laptop and data has been confirmed by multiple sources”. Sorry but that is true.

                “Biden is giving away huge deals to the Chinese, fighting a war in the Ukraine, and giving away huge amounts of money to Iran”. You are claiming this is not true? Biden is not giving good deal to China? We are not fighting the war in Ukraine as a proxy war? The deal Biden is making with Iran would give Iran access to about $1 trillion dollars.

                July 14, “John Paul Mac Isaac won a huge defamation lawsuit…”. Here, I corrected myself and changed it to settlements. Did you watch the Fox News link? Probably not. And since you are limited to mainstream media you wouldn’t even have known about the laptop.

                And that is fine if you want to contest facts. That is part of the process. I notice the way you construe the facts in odd ways to suit your narrative. The laptop is a good example where we have gone from it being Russian disinformation, to be real data, but not data that was on an actual laptop. So now the Russians have been injected into the formula with from what I’ve seen no proof. And my point about the laptop is that if what you say is true about there really being no laptop (no proof of this), then why isn’t the FBI telling us this?

                I think the one that indulges himself in fanciful thinking is you.

                Some of that is subjective. Fine. Other parts of that are not.

                1. Right so this is pretty typical of the far left the way you think.

                  You can’t justify anything you’ve said about the laptop and you keep falling back on Russian stories. But each time the proof and time has been put into the story it has been shown to be real. There are lawsuits pending that assert the data was on the laptop.

                  So you expect some higher level of proof for anything you don’t like and freely speculate about anything you like with rumors being good enough.

                  And then you play the game of mischaracterization. You don’t think the USA is fighting a war in Ukraine? Really? What do you call it then? Every real military analysis says we are fighting a proxy war and if we as many Ds want create a no fly zone, then we will be in a direct war with the Russians.

                  That is just a couple examples of the ridiculous games you play.

                2. There is some kind of weird twisty thinking to people like you.

                  It is as if the reason why you doing something or the purpose changes the facts of what is being done. That is almost of the definition of being in a cult.

                  I note too that you just bow out of any slam dunk loses on your side. Like the payments to Stormy Daniels not being illegal. Or 10 other times the Ds over the last six years have spent months saying that Trump has committed a crime and will be going to jail immediately and then the whole thing is dropped. Just like the Stormy Daniels story was a lie and 100 federal prosecutors lied. And there was no accountability.

                  Reality Greg. You will like living in it better than being a member of the far left cult.

  2. 15

    Consider that the payment wasn’t illegal or Trump would be prosecuted for it

    You should do standup, really.

    1. 15.2

      Martin, so what happened to the payment to Stormy Daniels?

      Why was that not prosecuted? And—-even more important–the case against the attorney at Trump Enterprises was dropped. Get it?

      The payment was not illegal.

      Just weird the gaslighting from the far left. I’ve never seen this type of behavior since the 60’s and the DOD.

      1. 15.2.1

        The payment was not illegal

        Paying someone (a sex worker) to be quiet so they do not damage a political effort is an in-kind contribution to that campaign, covering a cost meant to aid efforts to win election.

        Nobody gets successfully prosecuted for ticky-tack campaign violations- see c.f. John Edwards. Still technically illegal, but the lack of prosecution means absolutely nothing.

        The guy was paying off a porn star but only the MSM and people with TDS would think that newsworthy, criminal or not.

        Meanwhile, to think that Fox is balanced and not right wing propaganda while the New York Times and Washington Post are house organs for the Democrats is just stoo pid. Just no other word for it.

        1. 15.2.1.1

          1.) You don’t understand the law. The issue is that it was private money and that it was not just done for campaign reasons. Not illegal. Never be able to convict anyone in a court of law. Then why did Cohen admit to it ? Probably because the DOJ is corrupt and they wanted Cohen to confess to it so that the New York AG would have grounds to investigate the Trump organization.

          2.) Try go after the facts. Don’t yap out political alliances. Do what I asked you to do. Pick a few issues and then let’s talk about the facts. I can see, though, that you seem to be unable to understand facts.

        2. 15.2.1.2

          Also if you spend some time, there are videos of people actually going through the facts of issues and illustrating how the NY Tx has misrepresented the facts and not presented other facts.

          I feel like the problem is that you simply aren’t educated. You don’t know what a rational debate is or what a fact is. That you are a member of a far left cult and you can’t think anymore.

          Again, I’d challenge you to stop using the mainstream media and go to other sources. Doesn’t have to be Fox. Read foreign papers. Just as an example learn about what Australia thinks of some of what is going on. Or the German. Or the English. You will quickly find out that the mainstream media has gone fact free. They are advocates.

          You know there are books written about how the mainstream media has morphed since 2016. They are no longer journalists.

          The key to figuring this out is go to the facts.

  3. 14

    John Paul Mac Isaac won a huge defamation lawsuit

    Or not. Smart patent lawyers can’t be bothered with details like that.

    There was a real laptop and there was a real icloud account.

    Expert analysts have looked at the volume and arrived at the obvious conclusion that it was an archive, not the contents of a working laptop drive.

    And somehow that volume gets into the hands of Giuliani. And mor ons still think it wasn’t a Russian leak.

    Guccifer 2.0 was real, and really stole Podesta’s email account, and really gave it to Wikileaks, who really gave it to Roger Stone.

    And there ain’t no realistic way that’s not what happened to Hunter’s iCloud account.

    And 6, absolutely nobody doubts that the data is real- not faked. But it’s also a joke. Hunter Biden “penniless” is a joke. And him walking his laptop into some random place that would just happen to give it to high level Republicans is also a joke.

    Says the Sheeple

      1. 14.1.1

        WaPo — that’s like crack to a crack wh 0re.

      2. 14.1.2

        Martin,

        link to youtube.com

        He did win defamation lawsuits.

        Plus, I’m not going to search for it but the FBI confirmed there was a laptop in a Congressional Hearing under oath.

        You need to use different news sources. The WaPo is about as reliable as the Star was 50 years ago. And read the WaPo for decades. Now it is trash.

        1. 14.1.2.1

          And yes Greg that was sloppy saying he won rather than settled. But it is hard to understand how/why the propaganda outlets would settle if there was no laptop.

          Plus, I am not going to spend the time looking for it but the FBI has discussed the laptop in Congressional hearings.

          1. 14.1.2.1.1

            [T]he FBI has discussed the laptop in Congressional hearings.

            Right. No one doubts that there is a laptop. The point in dispute is whether the laptop in FBI possession and its contents were delivered to Mac Isaac’s shop as asserted. The FBI has not actually spoken to that issue.

            1. 14.1.2.1.1.1

              Greg,

              I guess it is not definitive what exactly is going on. I don’t understand why the FBI can’t figure it out.

            2. 14.1.2.1.1.2

              … and Greg will still deny the fact that there is a Deep State problem…

        2. 14.1.2.2

          He did win defamation lawsuits.

          This is the sum total of results for the Google Scholar search “‘Mac Isaac’ AND ‘defamation’.” The report of Mac Isaac’s losses in his defamation suits against Twitter are the only reported outcomes. If Mac Isaac actually won some suit, where can one find this outcome reported?

          1. 14.1.2.2.1

            Fox says there were settlements.

        3. 14.1.2.3

          Yes, the Washington Post, and it’s vastly experienced newsroom of elite reporters and legion of connected sources is a most unreliable rag.

          Wait, what?

          1. 14.1.2.3.2

            Martin, goodness. This the same problem you have understanding patent law.

            The WAPO has a dog in the race. Doesn’t matter how “elite” they are. What matters is if they are reporters or advocates.

            1. 14.1.2.3.2.1

              Then why are you citing FOX in 14.1.2.2.1? They have at least as much of a dog in the fight as WaPo. Why is your skepticism about alleged self-interest one-sided?

              1. 14.1.2.3.2.1.1

                Actually Greg if you start to watch Fox News, you will see that they are by far more objective than any of the mainstream media. And Fox allows the left a voice and there is a great diversity of opinion expressed on Fox.

                1. Actually Greg if you start to watch Fox News, you will see that they are by far more objective than any of the mainstream media

                  And I’m the one alleged to be out of touch with reality.

                2. Martin,

                  Look at the facts. I challenge you to learn a lot about a few stories. For example, learn all you can about Cohen. Or the Stormy Daniel payments.

                  And then look at which of the facts are reported by which news outlet.

                  You can’t see what is going on if you don’t put some work in and understand some of the issues in depth.

                3. Night Writer,

                  What I have seen is a de facto choice of outright dismissing any and all things that just do not fit into the Mainstream Media’s set narrative.

                  It just doesn’t matter if it is Fox, or any other NON-Mainstream Media source, Big Media and Big Tech simply seek to squelch anything not fitting the pre-ordained (and oft-times 1984’d) story line.

                  This has been reflected in how those kowtowing to the Liberal Left treat learned sources that I have provided. This is also reflected in the Elon Musk’s “Sprint Left” meme, and its related meme of the Left stick figure knocking down a Central stick figure and accusing that stick figure of being “Far Right” (a la “Joe Rogan is Far Right”).

                  This is ALSO reflected in the changing demographics of the “D” party itself — much to the consternation of the “D’s” as the (bloated and bloating) new Hispanic voice is hewing Heavy Conservative, while the Liberal Left hews more to college (Left-indoctrinated) Elites of the Coasts (and Chicago).

                4. I challenge you to learn a lot about a few stories… [T]hen look at which of the facts are reported by which news outlet.

                  Wait a second. How does this scheme work? How do I “learn a lot” about any of these phenomena, other than by reading the WaPo, NYT, NPR, etc? I have no ability to research (e.g.) the Stormy Daniels payments firsthand (i.e., interview Daniels, trace Cohen’s checks, etc.). If I am to purport to “know” anything about l’affaire Daniels, it can only be by dint of trusting media accounts.

                  Mind you, it is not good to trust everything one reads. Some claims are fake. Once again, however, I cannot independently trace Cohen’s checks (etc), so I cannot prove counterfeits and falsehood. As above, I am obliged to rely on the standards of journalism at long established outlets to keep known fakes and falsehoods out of their reporting.

                  If I begin—as you propose—from a hermeneutic of suspicion about the “mainstream” media, how can I claim to “know” anything about current events? It sounds like you have simply decided that the “facts” that you see reported in certain outlets are more commodious to your tastes, and have decided to trust these outlets accordingly—and distrust other by extension. It is not, however, as if you are basing these decisions about trust and skepticism on firsthand knowledge.

                5. I wrote a post to you Greg but it was waiting for moderation.

                  Short answer: LOL! You can’t figure out how to learn a lot about a subject like Cohen? Or the Stormy Daniels payment?

                  I read case law and found an interview with the former AG. There was no way that payment was illegal and the 100 former prosecutors that said it was were LIARS!

                6. And actually Greg I am trying to get the DOJ investigated right now related to the Stormy Daniel payment.

                  Consider that the payment wasn’t illegal or Trump would be prosecuted for it.

                  So why did Cohen plead guilty to it? Why? Why hasn’t the mainstream media followed up and asked those 100 former prosecutors that question?

                  I think the DOJ gave Cohen a reduced sentence for his other “crimes”, which were all about lying to a bank for a loan before he met Trump.

                  So think about that. Cohen confesses to a crime that he could never be convicted of in court because it was not illegal and gets a reduced sentence. The confession of Cohen is then the basis of the AG of New York investigating the Trump organization.

                  That is the kind of corruption that is going on. And none of it is being reported by the mainstream media. In fact, the only news reporters that will work with me are ones from the alternative right media.

                  I also did have personal knowledge of one very big case and knew right away that the mainstream media was lying based on personal first hand knowledge.

            2. 14.1.2.3.2.2

              There is no such thing as actual journalism left at WaPO – all that you have Left there [sic] is Liberal Left Elitism (check your Activist Privilege at the door, please).

              Funny how Greg wants to take a “pan both sides — but really is only panning Night Writer’s choice of Fox; seeing as he was SO quick to dismiss Dr. Lindsay (and it was painfully aware that he did so out of his own averred Religious Left views).

    1. 14.2

      “Hunter Biden “penniless” is a joke.”
      I see, so he was tots lying when he said that over and over, and the people that knew him also saying replies thereto, they’re all FAKE FAKE FAKE.

      “And him walking his laptop into some random place that would just happen to give it to high level Republicans is also a joke.”

      I mean, you don’t think that there actually laptop repair shops that take possession of their repair jobs after x time period and there are no people that ever turn in evidence to the FBI? People get caught by this very mechanism on the semi-regular day to day fyi. Be careful what you take to a repair shop and make sure you trust them 1000000000% if you have vids of you weighing crack on there bros. That he also dropped it to his local republicans is also not surprising considering his political bent.

      I’m not sure why you think any of that is a joke or out of the mundane/ordinary. Unless rachel maddow told you so.

      1. 14.2.1

        This is exactly right 6. This is exactly what goes on all the time.

    2. 14.3

      Russia! Russia! Russia!

      I have seen text messages regarding payments to the Bidens from China. If those are authentic, the President is compromised.

      Let’s pretend Joe is Trump, and do what we would have done if the laptop/data regarding Don Jr.

      1. 14.3.1

        Nope – never happen.

      2. 14.3.2

        Let’s pretend Joe is Trump, and do what we would have done if the laptop/data regarding Don Jr

        Oh I don’t know, will this do?

        link to nytimes.com

        PS So far, there is not even a single item on the “laptop” that incriminates Joe Biden, the actual President, rather than a man who holds no office, and has never held office. Sad.

        1. 14.3.2.1

          … The NY Times…

          He’s jumped to freebasing.

          You really need to stop the Mainstream Media Kool-Aid.

        2. 14.3.2.2

          Martin, please. Stop.

          The NY Tx refused to admit the laptop information was real for a whole year. They have ZERO credibility.

          There is a mountain of evidence at this point that Joe Biden was taking money from foreign governments while VP.

        3. 14.3.2.3

          Martin, there is evidence. The NYT just does not report it. Look up Tony Bobulinski. As someone else noted, the NYT and others claimed the laptop was Russian disinformation for years. the NY Post was banned from Twitter for reporting on it before the 2020 election.

          Regardless, do you think Trump would escape scrutiny if one of his sons behaved like Hunter? Every news outlet and alphabet agency would be looking to find a connection, not working to hide the evidence.

          1. 14.3.2.3.1

            marty and Greg refuse to even see a problem with Mainstream Media.

            The narrative being pursued there FITS their (quasi-religious) Ends, and that’s all that they need to accept with zero critical evaluation.

  4. 13

    9% inflation now bruhs.

    1. 13.1

      Relationship to prior art?

      If this was my website, I’d stop all comments. Your comment is a reason why. Useless. There for no purpose other than for politics. I keep seeing CRT, Hunter Biden’s laptop, all types of nonsense that have nothing to do with patent law.

      And when people do respond, they use derogatory terms like “bruh” or they attack the other person.

      And there’s no reason to post anything, because no matter what you post, people are in their “camps” and are not going to be swayed by you anyway.

      1. 13.1.1

        “derogatory terms like ‘bruh'”

        Is “bruh” and its equivalents intended to be derogatory? I thought these are used in attempts to sound cool and nonchalant that, to my ear, produce the opposite effect.

      2. 13.1.2

        As if there was an actual laptop rather than a data volume supplied by the Russians, as usual.

        What a propaganda coup that was. People will believe anything.

        1. 13.1.2.1

          “As if there was an actual laptop rather than a data volume supplied by the Russians, as usual.”

          You’ve got to be kidding me. Are you literally just joking that you think that hunter did not leave his laptop at the repair shop and it got turned over? Are you also kidding me that you don’t believe that anonymous ha xed his online accounts and recovered vids of him weighin his cr ack? Did you even look at any of the pics/vids/texts? They’re obviously him bro. It’s obviously him, complete with crack-mouth, texts to his brothers widow turned lover, ladies of the evening galore, etc. etc. No russians could fake it. He literally took like a hundred vids of himself, and thousands of pics. Many with him doing illegal stuff. Also he apparently brought ladies of the evening ACROSS STATE LINES (lol) they say today so he might catch federal charges (lol as if).

          1. 13.1.2.1.1

            6, the data is real. The laptop is an absurd cover story for the insertion of the stole iCloud account (which it clearly was) into the public domain, by the Russians as usual.

            What’s next, you wanna debate Guccifer 2.0?

            1. 13.1.2.1.1.1

              This is probably correct, but short of the FSB opening its archives, we will never really be able to prove the point one way or the other.

              1. 13.1.2.1.1.1.1

                mmmmm

                John Paul Mac Isaac is an ab surd figure whose story and creditability could only be relied on by a cre tin.

                Russia likes to hack American political figure’s data and release it. They have done it time and again. And they did it here.

                As if Hunter would walk into a store to get his own computer fixed. Please.

                1. John Paul Mac Isaac won a huge defamation lawsuit against several news media outlets that says the laptop was real.

                  There was a real laptop and there was a real icloud account.

                2. Mac Isaac won a huge defamation lawsuit against several news media outlets…

                  Where? When? Where can I find reporting about this “win”? The only story I can find about an actual ruling in one of Mac Isaac’s suits reports his loss.

                3. “Russia likes to hack American political figure’s data and release it”

                  Based russia exposing the Great Satan. Maybe the Great Satan should get its house in order.

                  “They have done it time and again. And they did it here.”

                  100000000000000000000000000000% based.

                  “As if Hunter would walk into a store to get his own computer fixed. Please.”

                  You do know he was practically penniless for a long while right?

                4. That is a good question where the lawsuit information is.

                  I saw him interviewed on Fox and Fox News said he had settled with several of the news outlets like CNN. He was on the show and had gone from being poor to being wealthy.

                  I assume you aren’t hearing about it because the mainstream media settled and lied and don’t want to admit it. And because Isaac probably signed an agreement not to talk about it.

                  But we do know he was destitute and now has lots and lots of money.

                5. Ok, note the progression of logic here. Martin claims that there never was a laptop. You respond that there must have been a laptop, because Mac Isaac had “won a huge defamation lawsuit… .” So far, this is a logical argument. Part of Mac Isaac’s prima facie case for defamation would be to establish—to the satisfaction of a jury—that the laptop was real. If he had won his suit, therefore, it would mean that the fact finder concluded that the evidence—on balance—pointed to the existence of the laptop.

                  Now you are no longer talking about him having “won” his suit, but rather having “settled” his suit (although as I just established, he has actually lost some of his suits). Unlike winning a defamation suit, settling the suit proves nothing. He does not have to establish any facts to settle a suit.

                  Mind, you have not even proven that he has settled his suits. You are merely assuming as much from the lack of reporting on this point. Even if a settlement has happened, however, that no longer supports the existence of the laptop, which was the point that you were purporting to establish by citing the defamation “win.”

                6. Greg, are you asserting that there was no laptop?

                  Are you playing your usual game of wanting a level of evidence from the other side that you are never willing to meet yourself?

            2. 13.1.2.1.1.2

              “6, the data is real. ”

              What “data” is supposedly “real”? The hundred+ vids and 1000’s of pics/texts of hunters? Of course they’re “real”. Who is asserting otherwise?

              “The laptop is an absurd cover story for the insertion of the stole iCloud account (which it clearly was) into the public domain, by the Russians as usual.”

              A crackh ead leaving a near worthless laptop at a repair shop is “absurd”? I mean bro, you must not know many crackh eads. Obviously he didn’t think the repair shop would do something so underhanded as turning it over to the feds (rarely happens as is).

              And the laptop happened was before the icloud hax, I’m not even sure how you think they’re related other than “by the russianslololol”.

              Let’s presume that it is “the russianslolol” that leaked it. Who cares? I certainly don’t.

              “What’s next, you wanna debate Guccifer 2.0?”

              I don’t want to debate anything. I would recommend that you accept the laptop’s contents as actual pics/vids/texts of hunter’s and the same for the icloud, if this subject at all interests you. As to your espionage/conspiracy rus ky theory, I don’t really care.

              1. 13.1.2.1.1.2.1

                What “data” is supposedly “real”? The hundred+ vids and 1000’s of pics/texts of hunters? Of course they’re “real”. Who is asserting otherwise?… I would recommend that you accept the laptop’s contents as actual pics/vids/texts of hunter’s and the same for the icloud, if this subject at all interests you.

                There are two hypothesis on the table here, and they make a bit of a difference.

                (1) The texts/videos/photos/etc were recovered off the hard drive of a laptop that was left with a Delaware repairman. The repairman then turned the laptop over to the FBI and its contents to Republican operatives.

                (2) The texts/videos/photos/etc were hacked by Russian government services. The story about the Delaware repairman was invented as cover so that the Republican operatives who laundered the embarrassing bits to the American media would not look quite so skeevy.

                If #1, then the fact that some of the messages have been subsequently confirmed as authentic ipso facto authenticates everything else in the leak. If #2, then the confirmed messages are confirmed, but the rest of the stuff remains of uncertain authenticity.

                In other words, it makes a difference which of #1 or #2 one finds most plausible.

                In the big picture, though, perhaps it does not really matter. The reason anyone cares about these data is not because we are all intimately concerned with Hunter Biden. Rather, the real reason for interest is because of our national interest in Joe Biden. But Joe Biden should not run for re-election in any event, which means that these data should not have any relevance to any future electoral outcomes.

                Here’s hoping that we can all simply forget about the laptop story, because it becomes irrelevant to any issue about which anyone has any actual reason to care.

                1. “(2) The texts/videos/photos/etc were hacked by Russian government services. The story about the Delaware repairman was invented as cover so that the Republican operatives who laundered the embarrassing bits to the American media would not look quite so skeevy.

                  … If #2, then the confirmed messages are confirmed, but the rest of the stuff remains of uncertain authenticity.”

                  Hilarious C O P E. He’s a crackh ead, accept it boyos. I can’t believe this is even being seriously discussed. I literally cannot believe that someone thinks that all those vids and pics are “lolfaked”. They’re obviously him. And one of the women is obviously his sister in law (widowed) he was bangin upon. Several of the ladies of the evening are confirmed ladies of the evening in his known hang out areas and the geotag information lines up perfectly with his known verified locations during various time periods. Further, it’s obviously his crack mouth and other confirmed body marks.

                  “Here’s hoping that we can all simply forget about the laptop story, because it becomes irrelevant to any issue about which anyone has any actual reason to care.”

                  I hear that, but it probably won’t. Lefties are POed that joe is putting black people in jail for way less crack and not his son. Even I am. Right here is literally the evidence his son was in possession and he STILL ISN’T IN JAIL. High power liberal privilege at its most blatant. Jail for the browns and blacks and rehab+a million dollars for the whites.

                2. [I]t probably won’t. Lefties are POed… [about h]igh power liberal privilege at its most blatant.

                  Right, but none of that hypocrisy matters if (e.g.) Jared Polis is the democratic candidate. The whole story becomes irrelevant if Biden decides not to run again. Here’s hoping Biden announces such a decision

                3. He’s a crackh ead, accept it boyos. I can’t believe… that someone thinks that all those vids and pics are “lolfaked”.

                  No one doubts that Hunter Biden is a drug addict, and no one supposes that all the leaked documents are fakes.

                4. “Jared Polis”

                  Lol who? I googled, trump would eat for breakfast.

                  “The whole story becomes irrelevant if Biden decides not to run again.”

                  We’re going to have to disagree on that one bro. As my vision of the ruling elite “liberal and conservative” classes becomes clearer I become more incensed at the whole entrenched governing class. Same goes for other people no doubt.

                  “No one doubts that Hunter Biden is a drug addict, and no one supposes that all the leaked documents are fakes.”

                  I understand what you’re saying. But it’s just not all that conceivable that the whole thing is a rusky op and they stuck just a couple of incriminating details/texts/etc. in there for flavor AND hunter didn’t even bother to say “some of this sht is fake” if it was fake. It’s him, and the stuff that incriminates his dad is standard crackhead stuff that quite often gets people that do not disconnect entirely from their crackhead relatives in trouble (though often they don’t get charged). 100% standard issue b s. The crackhead has no money, the parent gets them a prime gig to get them some money and on their feet (Halfish illegally). The crackhead proceeds to do something dmb. And I forget the other major one, but it was standard crackhead stuff as well.

                5. And into the filters….

                  Your comment is awaiting moderation.

                  July 15, 2022 at 10:52 am

                  And again Greg with his ridiculous “well then, it’s irrelevant”
                  C
                  R
                  A
                  P

                  It certainly is NOT irrelevant.
                  Under ANY future action from Biden (ANY of the Bidens).

                6. Greg, what is the matter with you?

                  The laptop and data has been confirmed by multiple sources. No not all the data but at this point it should be up to Biden to deny that anything isn’t real.

                  And the reason it matters is that RIGHT NOW Biden is president and RIGHT NOW Biden is giving away huge deals to the Chinese, fighting a war in the Ukraine, and giving away huge amounts of money to Iran. Just as examples.

                  There should be impeachment hearings RIGHT NOW. And to understand how to stop further corruption we need to hold Biden accountable and understand what he has done.

                  But you are right the mainstream media ploy is to pretend that we care about Hunter Biden being a dirty bag. We don’t. The aspect of his behavior that is really Billy Carter 2.0 is not relevant.

                7. If it is true that Joe is compromised by payments from China, or others, he should not be in office now.

                  I am constantly surprised by how the parable of the log and the speck is confirmed on a daily basis in this country. Don Jr. allegedly met with Russians to get information on Hillary, and it is imputed as evidence of wrong-doing by Don Sr. (i.e., the speck). But, Joe is somehow shielded from everything Hunter does (including payments from other countries while his dad is Veep, i.e., the log). It is truly fascinating.

            3. 13.1.2.1.1.3

              Well, WaPo said the FBI has the laptop, so there’s that…

              1. 13.1.2.1.1.3.1

                As previously explained, there are two hypotheses on the table here.

                (1) The texts/videos/photos/etc were recovered off the hard drive of a laptop that was left with a Delaware repairman. The repairman then turned the laptop over to the FBI and its contents to Republican operatives.

                (2) The texts/videos/photos/etc were hacked by Russian government services. The story about the Delaware repairman was invented as cover so that the Republican operatives who laundered the embarrassing bits to the American media would not look quite so skeevy.

                If you are going to launder the leaked texts/videos/photos/etc into the media through a cover story about a laptop, then the way that you do that is that you load all of the texts/videos/photos/etc (both the fakes and the stuff that you hacked off of iCloud) onto a laptop, and hand it off to a co-conspirator who runs a computer repair shop in Delaware.

                In other words, under either hypothesis, there will be an actual laptop in existence. The fact that the laptop is in the FBI’s possession does not distinguish between the two hypotheses. This fact is consistent with either hypothesis.

                1. The mental gymnastics to make the laptop contents seem innocuous are commendable. You add the “republican operative” part to imply that the republicans manipulated it.

                  Sadly, I do not expect anything to come of it, even if the FBI is investigating the contents, because the DOJ is controlled by the dems right now. Unlike repubs, they rarely go after their own.

      3. 13.1.3

        “all types of nonsense that have nothing to do with patent law.”

        You think that till the economy collapses, budgets dry up, attorneys and researchers are out of work, applications are going abandoned, maybe even office layoffs. And that’s setting aside the CRT dept. having taken over the USPTO and most major gov. institutions etc. etc. around the extra topics you also bring up.

        You mean of course that this isn’t pure patent law. Sux bruh.

        “they use derogatory terms like “bruh””

        Bruh is not derogatory you supergeek.

        “and are not going to be swayed by you anyway.”

        I sway people all the time.

      4. 13.1.4

        Well BobM, you “speak up” again only when one side of the story is put forth (and ever remain quiet when truly heinous posts are made — BOTH outside of patent law and within patent law.

        Here’s a suggestion though (not a new one): it is now been over 11 months since anything new has been seen on the Ethics side of the blog — literally, this is a waste of prime blog real estate. Open that up for the off-topic stuff.

        “Easy peasy Japaneasy” (to quote Brooks Hadlin)

      5. 13.1.5

        I usually enjoy your contributions, Bob, so I mean no disrespect when I ask why you read the comments if you know in advance that you will not enjoy them. The simple solution to “I’d stop all comments” is just not to click the “show comments” button. If you do not click that button, the website reads just as if there were no comments. There is no point in joining the discussions if you do not enjoy them.

        1. 13.1.5.1

          +1

          1. 13.1.5.1.1

            At least the THIRD time Greg has mentioned this.

            And yet, BobM has ONLY whined when comments of a particular viewpoint have been presented.

            He wonders why he is made fun of.

            No seriously, he is thick enough to wonder why he is made fun of.

    2. 13.2

      No, 9% in June. The drivers of inflation (or deflation) “now” are occurring in many different domains. Gasoline and commodities are rolling over, and retail inventories are building again.

      Firms are testing pricing power and some will be found wanting. Others, not so much. You cannot have capitalism without constant tension between inflation and deflation.

      You don’t want much deflation. Managed inflation is better, by a long shot.

      Since everything is irony, the economy is probably about as good as we have seen in 50 years.

      1. 13.2.1

        “No, 9% in June. The drivers of inflation (or deflation) “now” are occurring in many different domains. Gasoline and commodities are rolling over, and retail inventories are building again.

        Firms are testing pricing power and some will be found wanting. Others, not so much. You cannot have capitalism without constant tension between inflation and deflation.

        You don’t want much deflation. Managed inflation is better, by a long shot.

        Since everything is irony, the economy is probably about as good as we have seen in 50 years.”

        That’s a whole lot of words to defend the indefensible there bro.

        1. 13.2.1.1

          I saw a real economist on Fox Business say that the real inflation (not the year over year average which is what the 9.1 percent is) for our daily needs was 32%.

          And he said for the first time that I’ve heard it that we might get hyper inflation. That it was possible. Marie always has the best commentators.

          1. 13.2.1.1.1

            Of course inflation is actually higher. The 9.1 number (not even reflecting the wholesale situation) is a cherry-picked CPI government number.

            This is not news.

            I put up a link to Breaking Points podcast that recounts the current record inflation (and shows how it is decoupled from wage inflation, which means inflation AND recession screws most all middle and lower class Americans).

            That link: link to open.spotify.com

            What is frustrating is that this mess is being done on purpose by the Liberal Lefts.

            1. 13.2.1.1.1.1

              It is insanity. It is getting more and more like the 20’s and 30’s of last century.

              1. 13.2.1.1.1.1.1

                Still waiting for marty to explain his “best economy” comment.

              2. 13.2.1.1.1.1.2

                Still waiting.

                Maybe marty is one of those that thinks that Biden is “outperforming” expectations…

      2. 13.2.3

        Since everything is irony, the economy is probably about as good as we have seen in 50 years.

        Please explain.

        1. 13.2.3.1

          … still waiting…

        1. 13.2.4.1

          Is this the “source” of “the best economy of the last 50 years”….

          https://technofog.substack.com/p/bidens-mental-decay

          … those pursuing with religious fervor — such as Greg — may be inclined to belieb so.

          Or, for those who prefer less religion:

          link to wsj.com

          1. 13.2.4.1.1

            Odd how the Biden teleprompter escapade will not post as a hyperlink (pure cut and paste in browser WILL take you to The Reactionary site).

      1. 13.3.1

        One more (perhaps only tangentially related to inflation): how much of Joe Biden’s weak approval/disapproval numbers reflect a hope that he will not run again? If he were to announce that he does not plan to seek a second term, would there be any rebound in his approval?

        1. 13.3.1.1

          Rumor I saw was that he literally may not even serve out his whole term. I can’t say regarding his nums tho, he’s pretty unpopular/disapproved of right now for a whole vast variety of reasons from not stopping ukraine conflict (note they literally just let the cat out of the bag that the reason they’re doing/allowing the conflict is so that russia will wear itself down fighting ukrainelolololol), inflation, leftism, not getting abortion done, his son’s/fam’s mess, etc. etc.

          1. 13.3.1.1.1

            In the abstract, it probably would be for the best if he were to resign before the end of his term. Rumors, however, are worth no more than you pay for them.

            1. 13.3.1.1.1.1

              That is true, but that rumor is not a random rumor, it’s apparently from a source in his “inner circle” or whatever. And I agree, it probably would be for the best all told for dems, and for the country. Would be better for the country if it wasn’t kamala set to takeover, but for the dems at least, they could say they put in the first poc woman president in one swoop.

              1. 13.3.1.1.1.1.1

                Krystal and Saager – a balanced podcast forum:

                This should make people really cringe at what is going on.

                But the Liberal Left maintain their Sheeple status, and “BobM” is getting upset.

                link to open.spotify.com

  5. 12

    Is there not always a paradox, when it comes to errors that are asserted to be “obvious”? I mean, if the error is “obvious”, for example in the way the EPC has it:

    “….that it is immediately evident that nothing else would have been intended than what is offered as the correction.”

    then a petition for correction is superfluous because the skilled person would always have factored in the obvious correction anyway, whenever they took the time to read the document thoughtfully. With that factoring in, the disclosure of the doc (to the skilled reader) prior to correction of its obvious error is just the same as after correction.

    It’s another world entirely though, if the error is not “obvious”. Then, to correct it is to add something to the prior art which, prior to the correction, simply wasn’t there.

    Accordingly, either way, there is no case for allowing the correction of the prior publication.

    1. 12.1

      Far less a paradox and merely the EPO choosing a very particular form or minute subset of errors.

  6. 11

    It would have been obvious to modify the cited reference. Fine, and if the inventor had done so, what would have been the result? Doesn’t the obviousness doctrine in the U.S. require that what the reference is modified, doing so produces the invention?

    1. 11.1

      ” . . . require that when the reference is . . . .”

      1. 11.1.1

        You are making no sense, Mr. Buckley. Stop now while you are behind.

        1. 11.1.1.1

          Okay, I got it. The issue being discussed is how do you handle a 103 reference that contains an error that is not apparent to PHOSITA.

  7. 10

    Yet again, I have to agree with another Justice Newman dissent. Newman’s dissent is based on rock solid logic and is really unassailable. Newman’s expertise as an experience IP practitioner highlights the lack of real world IP experience of the majority of the CAFC. It does not make any sense that If you are not qualified to be a patent examiner then you should be put on the CAFC without Senate confirmation? The CAFC should not be the dumping ground of judicial nominations that do not meet Senate muster. We need geeks; not freaks on the CAFC. Congress, please help fix this mistake going back to the Reagan administration and make an appeals court for just patent law cases.

    1. 10.1

      CAFC appointments require Senate confirmation. [It it probably not a coincidence that some appointees to the CAFC were former Senate staffers.]

    2. 10.2

      +1

  8. 9

    Under the AIA, what if the prior art reference was only prior based on its foreign filing priority date and the error relied upon for prior art only occurred in its subsequent U.S. application publication or patent filed after the filing date of the application being rejected?

    1. 9.1

      Your question oddly appears to allow an error to still control.

      The error never controls.

  9. 8

    How would we expect this to play out if the erroneous reference, with reliance on the error, anticipated the claim?

    1. 8.1

      Only enabled disclosures anticipate, right. Is the erroneous statement in the prior publication enabled?

      1. 8.1.1

        You haven’t answered the point put to you as to whether you think fiction counts as to obviousness.

        Are you still feigning that you do not understand what fiction means?

        1. 8.1.1.1

          I understand what “fiction” means. What I don’t understand includes i) your thinking, and ii) why it is so important to you what “fiction” means.

          In Europe, obviousness is tested relative to the “state of the art” which is defined as everything already “made available” to the public. Thus, in Europe one is free to cite as part of one’s obviousness attack a published novel or other work of “fiction” and, under the principle of the “free evaluation of evidence”, the EPO will give any such citation the evidential or rhetorical weight it thinks it merits. But I don’t know of any such case. Perhaps there has not been one yet. Why are you so possessed by the issue?

          1. 8.1.1.1.1

            You don’t seem to appreciate the difference between “made available” and “made up.”

            For all of your “I know what fiction means,” YOU seem to not only be the one with confusion AND you also (again) try to project that to me.

            Just not having that.

  10. 7

    I’ve had a few situations over the years when an Examiner dug in their heels when confronted with a typo or badly translated phrase from another language, despite the fact it was one of those errors where the inventors reviewed the reference and right away knew there was a typo or other error. Even with a submission from an inventor explaining why a person of ordinary skill would have recognized it as an error, the Examiner dug in their heels with “the reference is good for whatever it discloses”.

    1. 7.1

      That might actually be the legally correct thing to do, I forget off hand. Seems like I saw them do that in a CAFC decision or two. Gotta be done, if they accidentally disclose your invention in anticipatory ref or its accidentally in 103 combo etc., sorry bro.

      1. 7.1.1

        There’s a case somewhere that says doubts about what a reference discloses needs to be resolved in favor of the applicant.
        It’s just that the Examiner claims there’s no doubt about what the reference discloses.

        1. 7.1.1.1

          “doubts about what a reference discloses ”

          That’s not the same as accidental disclosure of your invention bruh. Tho I agree with you where there is substantial doubts.

          “It’s just that the Examiner claims there’s no doubt about what the reference discloses.”

          Correct. Legally correct I’m fair sure bruh.

          1. 7.1.1.1.1

            Only disclosures that are enabled are effective to anticipate, right?

            When is a statement that “anticipates” X one that “discloses” X? Only when its “disclosure” of X is enabled, right, and that is often not the case.

            In this thread, that topic has already been well-aired by Greg, I would say.

            1. 7.1.1.1.1.1

              Yes but that’s usually irrelevant max as it’s usually basic stuff.

          2. 7.1.1.1.2

            “Accidental disclosures” are often chock full of doubt, especially when the so-called disclosure is only seen in a figure but the written description is silent.

            1. 7.1.1.1.2.1

              In situations where there is a lack of clarity as to what is actually disclosed, you can argue that no inference should be made from the facts of record in favor of the party bearing the burden of proof when other reasonable conclusions are possible. See In re Carreira, 189 USPQ 461, 463 (CCPA 1976). For example, drawings constitute an adequate description only if they describe what is claimed and convey to those of skill in the art that the patentee actually invented what is claimed. See Cooper Cameron Corp. v. Kvaerner Oilfield Prods., Inc. 291 F.3d 1357; 62 U.S.P.Q.2D 1846 (2002).

  11. 6

    I can’t help but ask: was this the famous designer of the Hubble space-telescope mirror?

  12. 5

    She was contending that the typo wasn’t obvious without digging into the priority documents which she believes experts would be unlikely to do, and so she does not deem the correction to the typo itself obvious…

    One needs to distinguish between (1) recognizing the typo, and (2) correcting the typo. I agree that it would not be possible to correct the typo without digging into the JP priority documents. One could (indeed, ImmerVision’s expert did) recognize the typo, however, without the benefit of the priority documents. When you try to reproduce the relevant example (the only disclosure in the cited document that makes the point that LG needed in its argument for obviousness), it does not work, because the numbers do not add up.

    I agree with Judge Newman that this error is not facially obvious, but it is a mistake to get hung up on how hard or easy it is to spot the error. For LG’s purposes, the skilled artisan needs to be motivated to start from this erroneous disclosure. Why would a skilled person be motivated to do that if the skilled person knows—as soon as a replication is attempted—that the disclosure is wrong?

    1. 5.1

      Sorry, this was supposed to a response to 1.1 below.

    2. 5.2

      “I agree with Judge Newman that this error is not facially obvious, but it is a mistake to get hung up on how hard or easy it is to spot the error”

      I disagree, if it ain’t ez, then it ain’t obvious. Same here as the use of the word obvious in 103 btw. A lot of people disagree with that, but it goes back to the very root of the word “obvious” (laying literally in the middle of the road ala “that is in the way, presenting itself readily, open, exposed, commonplace”). If taint presenting itself readily (as in easily: “without delay or difficulty; easily”) then taint obvious. That is, if it be at all hidden, tho in “the middle of the road”, then it is not obvious (example: smaller rock hidden by larger rock in the middle of the ancient roman road). Note this causes disagreements for people in the 103 context as well as this context, and I think it should be more well developed in the caselaw’s discussions on the matter as it does pop up semi regularly.

      Bottom line for me, nothing obvious is hidden. If twas hidden at all here, taint obvious.

      1. 5.2.1

        6 – you are conflating the colloquial (obvious mistake) WITHIN the prior art – which (as a whole) is to be understood in the NON-colloquial sense of obviousness.

        Bro – it’s your JOB to have a better understanding that what you are displaying.

  13. 4

    Yes we know that legal fiction PHOSITA has the fictional superpower of knowledge of all publications. Newman’s dissent is spot-on: if PHOSITA would have to undertake a structured investigation to reveal an error, it’s not an obvious error.

    But the wider point is buried, since everything is ironic.

    If the error is unobvious than the reference itself is not likely contributing to the solution of the problem, because it suggests that PHOSITA doesn’t know enough about the problem to make the error obvious.

    Which raises the question that superpower PHOSITA does not have to answer: why are they looking at that reference in the first place?

    1. 4.1

      Yes we know that legal fiction PHOSITA has the fictional superpower of knowledge of all publications. Newman’s dissent is spot-on

      Do you even realize the contradiction that you just walked yourself into?

      Also wrong: “Which raises the question that superpower PHOSITA does not have to answer: why are they looking at that reference in the first place?

      When you refuse to recognize the territory, THIS is what happens.

      But you keep on being you, marty.

  14. 3

    Hm, a rare instance where I agree with the majority against a dissent by Judge Newman. That does not happen often.

    1. 3.1

      Her dissent from denial of en banc review of American Axle was very good, as are her dissents when the majority limits patent eligibility.

      1. 3.1.1

        Agreed

  15. 2

    I am immediately reminded of what the EPC has to say about whether an error is “obvious” namely (Implementing Regs. Rule 139):

    “….that it is immediately evident that nothing else would have been intended than what is offered as the correction.”

    The reality is that it is quite hard at the EPO to establish that any given error was (to the notional PHOSITA reader) an “obvious” one.

    1. 2.1

      Even if this would not have swing in the EPO as an “obvious” typo, presumably the obviousness challenge would still have failed because the proffered reference was not enabling, right? I mean, when the patentee tried to recreate the only portion of the reference that was relevant to the challenge, he could not do so because the numbers did not work.

      1. 2.1.1

        Greg, I baulk at your “not enabling” point because that is not decisive in obviousness debates (though is for novelty attacks). Obviousness is so different though, isn’t it, between the two jurisdictions.

        If this patent family has inter Partes proceedings also somewhere in Europe, we could compare the reasoning.

        1. 2.1.1.1

          Fair enough. I agree that—even in the U.S.—“non-enabling” is not fatal to an obviousness challenge. If the D1 is non-enabling however—on exactly the point for which D1 is being cited—surely that does tell against the TSM argument, no? Why would the skilled person start from D1 to solve a problem if the skilled person knows that D1 does not actually work?

        2. 2.1.1.2

          Can you clarify?

          Non-enablement (i.e., that an item may be fiction) is still pertinent for US Sovereign law of obviousness.

          Are you declaring that items of fiction are allowed in the EPO for obviousness rejections?

          1. 2.1.1.2.1

            In your scheme of things, anon, is a prophetic Example ever a “work of fiction”? You say what you mean by “fiction” and I will attempt to “clarify”.

            1. 2.1.1.2.1.1

              I mean the ordinary meaning of “fiction.”

              What else could I mean?

              1. 2.1.1.2.1.1.1

                We are not understanding each other. As usual. For me, the ordinary meaning of “fiction” (pulled out of the imagination) is wide enough to embrace prophetic Examples. Novels, for example, works of fiction, often include a note from the author, who feels it necessary to say that any resemblance between a character in the book and a real person is pure coincidence, lest the reader suppose otherwise.

                You must have in mind a sub-set of all those “items” that fall within the ambit of the ordinary meaning of “fiction”. Care to clarify?

                1. Surely it matters, does it not, whether the prophetic example is or is not subsequently borne out? If the prophetic example turns out to be wrong, surely that affects how obvious it would be to follow up on that prophetic example.

                2. You are being confused of your own accord, and – as already provided – fiction is understood as the normal meaning of the term.

                  Not sure why you are asking — again — what is clear on its face.

  16. 1

    Even giants sleep.

    Judge Newman also notes that the only way that the expert witness firmly concluded that the error existed was by translating the Japanese priority document — something optics experts are unlikely to do.

    The legal point is not what real human experts may or may not do, but instead the non-human juristic person of Person Having Ordinary Skill In The Art is charged with understanding any language.

    1. 1.1

      Newman was not contesting that the person of ordinary skill wouldn’t understand the alternate language. She was contending that the typo wasn’t obvious without digging into the priority documents which she believes experts would be unlikely to do, and so she does not deem the correction to the typo itself obvious (and thus would not find that it should be corrected prior to modification in a combination under 103 I presume). Because of the standard under yale. Derp. If the foreign document was not published ez to find I tend to agree with Newman on this one, if the typo isn’t obvious itself to be corrected then it doesn’t get corrected, and it seems likely here to not have been something obvious to correct without getting into the buried foreign literature which here seems to be unlikely to be done. If the foreign document was ez to find and esp if you can ez get machine translation, I would have to disagree with her, that’s like 5-10 mins of work if you know what you’re doing usually.

      1. 1.1.1

        Nice try 6, but it does not wash.

        You don’t get to insert a real person into the equation for the juristic person.

        That’s plain legal error.

        1. 1.1.1.1

          Nobody said we’re inserting real persons for the juristic person dumbas. We’re discussing what it is reasonable to expect from the juristic person as it pertains to this “obvious typographical error” standard in yale.

          1. 1.1.1.1.1

            Nobody – Except Judge Newman.

            Oopsie for you.

          2. 1.1.1.1.2

            6 – see page 2 of her dissent (emphasis added):

            The error in Tada Table 5 was not corrected anywhere, even after 20 years of publication. Not until an expert witness conducted experiments and compared the U. S. application with the Japanese Priority document2 did anyone discover the possibly erroneous numbers in Table 5. Appx2422–2430; Appx3030–3042.

            The discussion here is about REAL PERSONS (the “expert witness” in contrast to any other real person in the “anyone” denotation).

            Again – this is plain legal error to mix this notion of real person with what the juristic person would understand. Juristic persons can handle “typos.”

            1. 1.1.1.1.2.1

              “The discussion here is about REAL PERSONS”

              Yes, because she is just establishing that the facts distinguish this case from yale. derp. Yale is distinguished on the facts here she says. That is, so that yale will not control the outcome outright she makes clear these are different facts, by a long shot. But that is just how it is distinguished, not on which she will be basing her opinion. She then finds:

              “In Tada, the error in Table 5 is not discoverable unless”

              That is, the juristic person literally could not discover the typo, in her opinion. As the juristic person doesn’t get to do any (or very little) experimenting.

              See: “An “obvious error” should be apparent on its face [note to anon: because it’s just a juristic person finding the error and they don’t have an imaginary lab and get to do imaginary experiments to find hidden typos] and should not require the conduct of experiments or a search for possibly conflicting information to determine whether error exists.”

              based judge newman dabbing on anon.

              link to cdn.shopify.com

              1. 1.1.1.1.2.1.1

                Filter shenanigans

                Your comment is awaiting moderation.

                July 12, 2022 at 8:51 am

                Yes, because”

                No.
                No because.
                The answer of “yes” is an admission that my position is correct.
                Do not pass go.
                Do not collect $200.

                (Do not proceed until you recognize the simple error – but an error nonetheless – at that initial point)

              2. 1.1.1.1.2.1.2

                You are showing your age with that “dab” stuff, bro.

Leave a Reply

Your email address will not be published. Required fields are marked *

You can click here to Subscribe without commenting

Add a picture