Apple vs Samsung let the fun begin.

[Christian Klippel]

Because in bizarro-Christian Klippel world, saying "I may know better than a panel of judges in a very specific, technical area that I work with on a daily basis and most judges encounter only rarely" is exactly the same as saying "I am brighter than judges."

Well, it was you who said they are "blatantly wrong". It was you who said that "it happens so often". It was you, again, who said "It proves beyond a shadow of a doubt that far too few judges ever bothered with a decent suite of math classes in school".

This 100% implies that you think you are superior to them. But it also implies that, since you think "it happens so often" and "It proves beyond a shadow of a doubt that far too few judges ever bothered ..." that it could be actually you who is wrong so often and who hasn't bothered to pay attention.

From where i sit, you are just some random anonymous guy on the internet who proclaims himself an expert and who wants to tell us how wrong not only we, but how wrong judges are oh so often.

The possibility exists, but the errors here are blatant. You don't narrowly construct a "comprising" claim to only apply to the full set of elements; you certainly don't construct it so that the addition of a non-conforming element in addition to the conforming elements takes a configuration outside the scope of the claim.

For example, I claim:

A collection of marbles comprising a plurality of marbles, each of which is green.

In the correct construction, a bag of two blue, two green, and two red marbles would infringe this claim. The plurality of marbles would be the two green marbles, and the "comprising" language means any additional number of marbles (or other objects, for that matter) would be fine.

Under the court's construction, the bag of two blue, two green, and two red marbles would not infringe this claim, because they insist that all the marbles must be included in the plurality of marbles, and some of the marbles aren't green. But not only does that misapply the plurality limitation, it eviscerates the claim by allowing me to add an extraneous element (adding a single red marble to a bag of green marbles, say) and escape the claim -- something the comprising language is specifically designed to avoid.

It's contrary to basic claim construction canon, and a very bad ruling. I recognize that they used an ill-advised line from the prosecution history to bolster their interpretation, but just following basic principles of construction, it's very poor. I'm very disappointed.

Comprising:

1. To consist of; be composed of
2. To include; contain

So it can be either all marbles or only a subset of the marbles. Either interpretation is correct. The idea of having it mean "to include; contain" exclusively is something that only patent-bozos can come up with, just so they can apply these ridiculous software patents and their claims even more broadly to sue their competitors. Or, in case of patent trolls, extort the industry.

But then, these patent-bozos also think that by adding a bunch of superfluous words to some paragraphs of text changes it "substantially" and all of a sudden makes it means something else. Thats why we end up with loads of pages in a software patent that in the end describe very little, all just so that the examiner can be baffled by the sheer amount of words, thus missing the fact that what is described is just some little, obvious thing.

Greetings,

Chris

ETA: Let's write out your example claim. You claimed:

A collection of marbles comprising a plurality of marbles, each of which is green.

Going by what "comprising" can mean, it can be:

A collection of marbles consisting of a plurality of marbles, each of which is green.

Which means "A bunch of marbles, all of them green".

Or it can be:

A collection of marbles including of a plurality of marbles, each of which is green.

Which means "A bunch of marbles, some of them green".

 

[AvalonXQ]

CK, claim construction is very technical, which is why certain words have been defined in certain specific ways to add clarity.

The patent rules themselves officially define "comprising" as allowing for further elements, and "consisting" as not allowing further elements (you can look it up in the MPEP if you want). This is not obfuscation; this is technical jargon for a very specific purpose, and any judge who rules on claim construction is expected to know these rules. A lot of patent law isn't black-and-white, but this very intentionally is.

Still, your insistence on terms like "patent-bozo" is characteristic of the level of thought and study you're willing to give the system itself. Any student with even the most rudimentary patent background knows the "comprising / consisting" distinction. These are straightforward rules with easy logical underpinnings.

 

[Christian Klippel]

The patent rules themselves officially define "comprising" as allowing for further elements, and "consisting" as not allowing further elements (you can look it up in the MPEP if you want). This is not obfuscation; ...

What a load of nonsense. So they actually redefine existing words that can have multiple meanings, to only have one of these meanings. Why not directly use that other word instead? After all, they allegedly can do so for the meaning "consisting". But they choose to leave it "comprising" when they mean "including"?

Are you really unable to see how silly that is? And how that is indeed obfuscating things? If a i read a text i expect the words to have the meanings they were given. In case of words that means different things i expect to be able to discern from the context which meaning is used. I do _not_ expect that such a word is artificially limited to only one of it's meanings, because that is obfuscating.

Still, your insistence on terms like "patent-bozo" is characteristic of the level of thought and study you're willing to give the system itself. Any student with even the most rudimentary patent background knows the "comprising / consisting" distinction. These are straightforward rules with easy logical underpinnings.

No, my use of the word "patent-bozo" is the result of the amount of thought and study i have spent on that system. And i came to the conclusion that it is broken beyond repair, and that people who constantly refuse to acknowledge what is wrong with it, and who think all is fine and dandy and just put their blinders on when it comes to criticism, can only be described as bozos.

Redefining the meaning, or limiting the meanings of words that can have multiple meanings is just absurd. Especially when one meaning is spelled out, but the other meaning still using that multiple-meaning-word instead. Defending that is silly, like a clown is silly, and bozo was a clown. Instead of blindly accepting that situation of word-distortion, it would behoove the people involved to see to it that it gets changed and cleared up. Instead they chose to make it messier and messier.

That's just beyond silly. But then, what to expect from a system that allows software patents in the first place. That's where the silliness already begun.

Greetings,

Chris

 

[WildCat]

People just like me? How do you figure?

I don't understand why people are personally attacking me here for actually being knowledgable about patent law and procedure.

I certainly have never prosecuted or issued an application for a perpetual motion machine, or any other technology that I did not believe would work. I would consider it dishonest to do so. So I really don't appreciate that implied insult.

Dude, you're claiming more expertise than the appellate court justices.

And patent experts working in the patent office have issued patents for perpetual motion machines, multiple times.

 

[John Albert]

Now, if all you really meant to say was, "Patent attorneys work with the assigned examiner, repeatedly amending patent claims until the application is allowed," then that's true. The patent application process involves making claim amendments.

Of course, that's very different that "re-submitting" an application to different examiners "until you luck out".

My point was that wealthy tech corporations have the money to pay teams of lawyers to draft up the sketchiest, most vague outline of a desired patent, then resubmit it over and over again, gradually narrowing it little by little with minor tweaks and revisions, until an examiner eventually approves it. That's how they get a patent on the broadest possible idea, sometimes one for which prior art would be obvious to any examiner with even a basic knowledge of the industry.

That's how Microsoft can get a patent on doubleclicking and the basic functionality of the Pg Up/Pg Dn keys, IBM can obtain a patent on using different colored fonts in emails in different countries, and Apple can get patents for automatic software updates and multitouch gestures on a touchscreen interface.

All these examples have been preceded by significant prior art; some are outrageous claims on fundamental computing principles that had been in common use for decades before the patent was applied for and granted.

By acquiring portfolios of thousands upon thousands of the broadest possible patents, the large corporations generate excessive leverage over broad areas of the industry, stifling innovation and extorting money from their competitors.

So what happens with these "bad patents"? One would expect that they won't stand up to scrutiny in a court of law, but just look at the developments of this Apple/Samsung case. Even with two industry leaders spending millions apiece to battle each other in court, the validity of these obviously crappy patents is still difficult to overturn. Now imagine the plight of the smaller competitor who can't even afford to walk into a courtroom against the Apples, Microsofts, and Samsungs of the world.

How can you deny that software patents are stifling to innovation?

 

[AvalonXQ]

If you can't understand why patent claims need to have very well-defined meaning for terms and very specific rules for construing claims, I don't know what else to tell you.

I would recommend that you look up MPEP 2111.03, where the patent office explains which transitional phrases are open-ended and which are exclusive. MPEP 2111 generally is a great primer on claim construction.

 

[WildCat]

If you can't understand why patent claims need to have very well-defined meaning for terms and very specific rules for construing claims, I don't know what else to tell you.

I would recommend that you look up MPEP 2111.03, where the patent office explains which transitional phrases are open-ended and which are exclusive. MPEP 2111 generally is a great primer on claim construction.

I'm fairly certain that the judicial branch of government has the final say on what the words mean, not some bureaucrat in the patent office who writes guidelines for the examiners based on prior court decisions. You're claiming the patent office has more expertise in interpreting legal precedent than the appellate court!

And I snickered when I saw the rule directly below the one you linked to: THE WORDS OF A CLAIM MUST BE GIVEN THEIR “PLAIN MEANING” UNLESS SUCH MEANING IS INCONSISTENT WITH THE SPECIFICATION

Compare/contrast to the patents at hand.

 

[AvalonXQ]

Dude, you're claiming more expertise than the appellate court justices.

I'm just ticked off that they got it wrong this time.

And patent experts working in the patent office have issued patents for perpetual motion machines, multiple times.

The examiners have, anyway (they're not really the "patent experts").

The problem that leads to the issuance of patents on perpetual motion machines, free energy devices, and other woo is not a lack of patent knowledge but rather a lack of technical knowledge. Applications have to be enabling, and of course a technology that doesn't work can't be enabling. But examiners are not generally expected to test out the ideas in a patent and make sure they work. Examiners are generally stuck trying to answer the question "has anyone put X, Y, and Z together before as described?" and not the question "will X, Y, and Z really have result Q when they put it together?"

I guess one fix would be to actually require applicants to submit a working model.

 

[WildCat]

My point was that wealthy tech corporations have the money to pay teams of lawyers to draft up the sketchiest, most vague outline of a desired patent, then resubmit it over and over again, gradually narrowing it little by little with minor tweaks and revisions, until an examiner eventually approves it. That's how they get a patent on the broadest possible idea, sometimes one for which prior art would be obvious to any examiner with even a basic knowledge of the industry.

That's how Microsoft can get a patent on doubleclicking and the basic functionality of the Pg Up/Pg Dn keys, IBM can obtain a patent on using different colored fonts in emails in different countries, and Apple can get patents for automatic software updates and multitouch gestures on a touchscreen interface.

All these examples have been preceded by significant prior art; some are outrageous claims on fundamental computing principles that had been in common use for decades before the patent was applied for and granted.

By acquiring portfolios of thousands upon thousands of the broadest possible patents, the large corporations generate excessive leverage over broad areas of the industry, stifling innovation and extorting money from their competitors.

So what happens with these "bad patents"? One would expect that they won't stand up to scrutiny in a court of law, but just look at the developments of this Apple/Samsung case. Even with two industry leaders spending millions apiece to battle each other in court, the validity of these obviously crappy patents is still difficult to overturn. Now imagine the plight of the smaller competitor who can't even afford to walk into a courtroom against the Apples, Microsofts, and Samsungs of the world.

How can you deny that software patents are stifling to innovation?

Well said!

Many of these are like patenting using a car to take to the store to buy groceries and haul them back home.

 

[AvalonXQ]

I'm fairly certain that the judicial branch of government has the final say on what the words mean, not some bureaucrat in the patent office who writes guidelines for the examiners based on prior court decisions.

That's true, but that doesn't mean a particular set of judges won't get it wrong -- and claim construction is something that a lot of judges get really do get wrong. It's a mess.

And I snickered when I saw the rule directly below the one you linked to: THE WORDS OF A CLAIM MUST BE GIVEN THEIR “PLAIN MEANING” UNLESS SUCH MEANING IS INCONSISTENT WITH THE SPECIFICATION

This is sort of a "default" for words that are not otherwise defined in the application itself. A well-written application will spell out what it means by various words it uses, so the above-rule doesn't actually come into play as much as the rule that the patent applicant is her own lexicographer.

 

[WildCat]

The problem that leads to the issuance of patents on perpetual motion machines, free energy devices, and other woo is not a lack of patent knowledge but rather a lack of technical knowledge.

And the problem of issuing patents for software to do what the hardware was designed to do in the first place also shows a lack of technical knowledge.

 

[Christian Klippel]

That's how Microsoft can get a patent on doubleclicking and the basic functionality of the Pg Up/Pg Dn keys, IBM can obtain a patent on using different colored fonts in emails in different countries, and Apple can get patents for automatic software updates and multitouch gestures on a touchscreen interface.

All these examples have been preceded by significant prior art; some are outrageous claims on fundamental computing principles that had been in common use for decades before the patent was applied for and granted.

Or the US patent 4197590. Including the XOR'ing of a cursor, a dead obvious method for inverting bits on a screen by a mask, so that it can be reverted back by simply applying the same operation again. Instead of having to save the old bits, paint the new bits, restore the old bits. After all that was at a time when memory was little, speed was slow, etc. So for everyone with even the slightest bit of programming knowledge it is darn obvious that this is the most efficient method to use on a very limited system.

I think it would help a great deal when the actual patent examiners would be required to have extensive training as well as sufficiently long job experience in the fields of the patents they examine. But of course it would be much better to get rid of these stupid software patents altogether.

Greetings,

Chris

 

[John Albert]

Here we have a perfect example of how vigorously a bureaucrat will fight to justify the existence of his own bureaucracy, even in the face of significant abject failures.

We're pointing out the failings of the system, citing examples of exactly where it's going wrong, and how it's causing significant detriment to the progress of the most innovative industries in the modern world, and the bureaucrat defends his bureaucracy by repeatedly citing the rules of his own broken system.

 

[AvalonXQ]

Here we have a perfect example of how vigorously a bureaucrat will fight to justify the existence of his own bureaucracy, even in the face of significant abject failures.

Here we have a perfect example of how vigorously someone will protect their own ignorance even in the face of repeated references to mistakes and opportunities to learn the actual facts.

I recognize, now, that you're not actually interested in being accurate about this. You have an agenda, and you're going to twist and mischaracterize and just generally lie if you have to in order to see that agenda served.

Not even once on this thread have I claimed that the patent system doesn't have problems. We all know that it does, and a lot of us are working hard to reform the system and fix them. But you can't properly identify or address the problems if you don't even understand the system.

And you don't. You're not familiar with the steps it takes to actually get a patent today, how to read a patent to understand what it looks says, or what's expected when it's presented in court. Without knowledge of any of these things, whether or not you're right that the system needs reform isn't relevant because you don't understand it.

And because you're not interested in addressing your own ignorance, there's not really any particular value in enaging you.

Crackpots come in all shapes and sizes, and it is a major characteristic of crackpots that they display basic ignorance about the areas where they spout their nonsense. When talking to crackpots, people actually knowledgable about the area are not listened to but are instead shouted down. And the only people on this thread who have expressed even rudimentary understanding of patent law have been subject to that exact fate.

So I think I'll leave you guys to your useless bloviating and ignorant lies. If anyone is interested in knowing the actual facts rather than the politicized, uninformed media spin, I've already given links to places you can go for those facts -- and if you want more, you know how to PM me.

 

[Christian Klippel]

Crackpots come in all shapes and sizes, and it is a major characteristic of crackpots that they display basic ignorance about the areas where they spout their nonsense. When talking to crackpots, people actually knowledgable about the area are not listened to but are instead shouted down.

You mean like crackpots who claim on the internet to have oh-so-much experience? These crackpots that always tell people how wrong they are? The crackpots who are so ignorant that they even call the people who decide over things day in and day out to be so often blatantly wrong about these very things?

Yea, i know those types of crackpots...

Greetings,

Chris

 

[John Albert]

Or the US patent 4197590. Including the XOR'ing of a cursor, a dead obvious method for inverting bits on a screen by a mask, so that it can be reverted back by simply applying the same operation again. Instead of having to save the old bits, paint the new bits, restore the old bits. After all that was at a time when memory was little, speed was slow, etc. So for everyone with even the slightest bit of programming knowledge it is darn obvious that this is the most efficient method to use on a very limited system.

...or this one for "a system and process for ensuring the smooth flow of electronic ink."

What is Microsoft's groundbreaking innovation for "ensuring the smooth flow of electronic ink" on a display screen?

It must have taken them a lot of hard work and inspiration to figure out that assigning the ink drawing process to a higher place in the execution priority queue would make the ink "flow" more "smoothly." I mean, who would have thought that executing a display output routine more frequently would result in the onscreen appearance of smoother rendering? How ingenious of them!

 

[Christian Klippel]

...or this one for "a system and process for ensuring the smooth flow of electronic ink."

What is Microsoft's groundbreaking innovation for "ensuring the smooth flow of electronic ink" on a display screen?

It must have taken them a lot of hard work and inspiration to figure out that assigning the ink drawing process to a higher place in the execution priority queue would make the ink "flow" more "smoothly." I mean, who would have thought that executing a display output routine more frequently would result in the onscreen appearance of smoother rendering? How ingenious of them!

Yea, well, you see ... You are just saying that now after you have read the patent. No surprise that it is obvious to you now! No one could ever think of that obvious thing before reading the patent!

At least that is basically what some self-proclaimed patent expert told me a while back.

Greetings,

Chris

 

[John Albert]

Here we have a perfect example of how vigorously someone will protect their own ignorance even in the face of repeated references to mistakes and opportunities to learn the actual facts.

Again with the ad hominem attacks, calling everybody ignorant and correcting them on niggling minutiae without addressing the substance of their arguments.

Not that I don't appreciate being corrected on my own mistakes, but you've been doing so with complete disregard for the substance of the arguments we've been making.

I recognize, now, that you're not actually interested in being accurate about this. You have an agenda, and you're going to twist and mischaracterize and just generally lie if you have to in order to see that agenda served.

Who's "twisting"?

What have I "mischaracterized"?

Where did I lie?

Not even once on this thread have I claimed that the patent system doesn't have problems. We all know that it does, and a lot of us are working hard to reform the system and fix them.

Really? Are you among that number?

What are you doing to reform the system? Because you certainly aren't coming off like any kind of a reformist in this or any other discussion involving patents. All I've ever seen you do is defend the current system by calling "ignorance" on its critics.

But you can't properly identify or address the problems if you don't even understand the system.

And you don't. You're not familiar with the steps it takes to actually get a patent today, how to read a patent to understand what it looks says, or what's expected when it's presented in court. Without knowledge of any of these things, whether or not you're right that the system needs reform isn't relevant because you don't understand it.

See, that right there is an example of you running right off the rails.

It's like saying nobody can tell if a person is sick unless they have an MD.

And because you're not interested in addressing your own ignorance, there's not really any particular value in enaging you.

"Addressing my own ignorance"?

I'm more than willing to learn. I'm eager to learn as much as possible.

However, I am quite unwilling to tolerate somebody calling me "ignorant" based on citation of technical minutiae that are largely irrelevant to the major issue at hand.

Crackpots come in all shapes and sizes, and it is a major characteristic of crackpots that they display basic ignorance about the areas where they spout their nonsense. When talking to crackpots, people actually knowledgable about the area are not listened to but are instead shouted down. And the only people on this thread who have expressed even rudimentary understanding of patent law have been subject to that exact fate.

More ad hominems, eh?

So I think I'll leave you guys to your useless bloviating and ignorant lies. If anyone is in terested in knowing the actual facts rather than the politicized, uninformed media spin, I've already given links to places you can go for those facts -- and if you want more, you know how to PM me.

Yeah, I don't think I'll bother. It's obvious you're steadfastly unwilling to address any of the actual issues we're raising, instead taking this discussion as an opportunity to pontificate on your own knowledge.

It's also obvious that your defense is to pass the buck from the examiners who actually issue the crappy patents on to the judges who get stuck with ruling on them.

There's one huge problem with that approach: for the vast majority of the victims of your broken patent system, the battle is lost by default. Most of the tech innovators who get run out of business by these huge corporations and patent trolls, never even get their day in court because they simply can't afford to.

That's how the system is broken. Instead of protecting innovation, it's so technically ignorant and vulnerable to manipulation that it's become a roadblock to innovation.

 

[John Albert]

Yea, well, you see ... You are just saying that now after you have read the patent. No surprise that it is obvious to you now! No one could ever think of that obvious thing before reading the patent!

At least that is basically what some self-proclaimed patent expert told me a while back.

Damn... I never should have read that patent abstract, because doing so has completely invalidated my argument!

 

[This is The End]

What a load of nonsense. So they actually redefine existing words that can have multiple meanings, to only have one of these meanings. Why not directly use that other word instead? After all, they allegedly can do so for the meaning "consisting". But they choose to leave it "comprising" when they mean "including"?

Are you really unable to see how silly that is? And how that is indeed obfuscating things? If a i read a text i expect the words to have the meanings they were given.

I agree. If I were the judge I would make a stand as well.

If I was dealing with a department that changed the word "yes" to "no" I would, as a judge, rule against them just to make a point that they need to fix their bloody terminology.

Or, as WildCat put it:

I'm fairly certain that the judicial branch of government has the final say on what the words mean, not some bureaucrat in the patent office who writes guidelines for the examiners based on prior court decisions.

Redefining the meaning, or limiting the meanings of words that can have multiple meanings is just absurd. Especially when one meaning is spelled out, but the other meaning still using that multiple-meaning-word instead. Defending that is silly, like a clown is silly, and bozo was a clown. Instead of blindly accepting that situation of word-distortion, it would behoove the people involved to see to it that it gets changed and cleared up. Instead they chose to make it messier and messier.

Well put. AvalonXQ could not have picked a worse (or better) example to supposedly prove the judge was the person being obtuse. It is also a good parallel to the entire argument in this thread.

My point was that wealthy tech corporations have the money to pay teams of lawyers to draft up the sketchiest, most vague outline of a desired patent, then resubmit it over and over again, gradually narrowing it little by little with minor tweaks and revisions, until an examiner eventually approves it. That's how they get a patent on the broadest possible idea, sometimes one for which prior art would be obvious to any examiner with even a basic knowledge of the industry.

Exactly, I don't know how anyone could suggest that that wouldn't eventually wear down a patent examiner. Even though it is their job.

And on top of that, the patent examiner would very likely not be an expert in the topic just by the very nature of the system as AvalonXQ admits:

The problem that leads to the issuance of patents on perpetual motion machines, free energy devices, and other woo is not a lack of patent knowledge but rather a lack of technical knowledge.

<snip>

But examiners are not generally expected to test out the ideas in a patent and make sure they work.

<snip>


I guess one fix would be to actually require applicants to submit a working model.

Or a better fix:

I think it would help a great deal when the actual patent examiners would be required to have extensive training as well as sufficiently long job experience in the fields of the patents they examine. But of course it would be much better to get rid of these stupid software patents altogether.

--------------

By acquiring portfolios of thousands upon thousands of the broadest possible patents, the large corporations generate excessive leverage over broad areas of the industry, stifling innovation and extorting money from their competitors.

Exactly. I don't think even AvalonXQ denies that they are being used as WMD.

--------

We're pointing out the failings of the system, citing examples of exactly where it's going wrong, and how it's causing significant detriment to the progress of the most innovative industries in the modern world, and the bureaucrat defends his bureaucracy by repeatedly citing the rules of his own broken system.

Well put. That is exactly what happened in many cases in this thread. Especially when the self titled experts were blind to the obvious exceptions to "obviousness". They get so entrenched in what they see 99% of the time that they forget to first look at the basics.

Yea, well, you see ... You are just saying that now after you have read the patent. No surprise that it is obvious to you now! No one could ever think of that obvious thing before reading the patent!

At least that is basically what some self-proclaimed patent expert told me a while back.

It would be funny if it wasn't true. More proof of what it is like for them to have blinders on.