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| Apple's Claim 19 of '381 Patent Rejected by USPTO in Final Office Action: Impact on Apple v. Samsung Damages Can Be Huge ~pj |
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Tuesday, April 02 2013 @ 12:13 PM EDT
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The claim 19 of the '381 patent that Apple relied upon so heavily against Samsung at trial, the bounce back patent, has now been finally rejected by the USPTO, as it ruled there is prior art that anticipated the '381 patent (Lira, PCT Publication No. WO 03/081458 by Luigi Lira; and Ording, US Patent No. 7,786,975). The jury in Apple v Samsung didn't credit any prior art offered, but it looks like it should have. This impacts the damages award by that jury, as Samsung puts it in
a notice [PDF] to the court:
This Final Office Action by the USPTO is relevant because it finally
rejects multiple claims of the ‘381 patent as being anticipated under 35
U.S.C. §102 by PCT Publication No. WO 03/081458 to Lira. This final
rejection includes claim 19, which is the only claim of the ‘381 patent
at issue in this action. The jury found at trial that 21 accused Samsung
products infringed claim 19 of the ‘381 patent—specifically, the
Captivate, Continuum, Droid Charge, Epic 4G, Exhibit 4G, Fascinate,
Galaxy Ace, Galaxy Prevail, Galaxy S, Galaxy S 4G, Galaxy S II (AT&T),
Galaxy S II (i9100), Galaxy Tab, Galaxy Tab 10.1 (WiFi), Gem, Indulge,
Infuse 4G, Mesmerize, Nexus S 4G, Replenish, and Vibrant. The jury
awarded damages as to 18 of these products. Some, but not all, of these
damages awards have been vacated for new trial. Apple's case keeps getting smaller and smaller. This is a final office action, and happily for Samsung, it was ruled on while Apple v. Samsung has not yet been completed. The judge gets the final say on how much this will matter in the immediate, but longterm, this is huge.
Note: Exhibit A [PDF] to the Statement of Recent Decision, below, is the final office action, and it is 112 pages long. Here's the jury's
verdict form [PDF], the amended one, after it fixed the first of the many math problems that plagued this jury. Notice that claim 19 is the only part of the '381 patent at issue in this litigation, see page 2. And here's the
'381 patent [PDF]. The USPTO
preliminarily rejected this patent's claim 19 back in October, if you recall. And do you remember the juror Manuel Ilaga,
interviewed by the respected reporter Greg Sandoval, then at CNET, who related that one of the biggest debates was over the '381 patent, and it was the jury foreman who convinced the others that the prior art didn't invalidate this patent: "It didn't dawn on us [that we agreed that Samsung had infringed] on the first day," Ilagan said. "We were debating heavily, especially about the patents on bounce-back and pinch-to-zoom. Apple said they owned patents, but we were debating about the prior art [about similar technology that Samsung said existed before the iPhone debuted]. [Velvin] Hogan was jury foreman. He had experience. He owned patents himself...so he took us through his experience. After that it was easier. After we debated that first patent -- what was prior art --because we had a hard time believing there was no prior art."
"In fact we skipped that one," Ilagan continued, "so we could go on faster. It was bogging us down."...
"Once you determine that Samsung violated the patents," Ilagan said, "it's easy to just go down those different [Samsung] products, because it was all the same. Like the trade dress -- once you determine Samsung violated the trade dress, the flat screen with the bezel...then you go down the products to see if it had a bezel. But we took our time. We didn't rush. We had a debate before we made a decision. Sometimes it was getting heated." It was easy, but it was wrong. And so another jury decision by this jury is shown to have been totally wrong. The judge, by the way, could have done something about this mistake, but she did not.
The filing:
04/01/2013 - 2291 -
STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d re Final
Office Action by the USPTO Rejecting U.S. Patent No. 7,469,381 filed
bySamsung Electronics Co. Ltd.. (Attachments: # 1 Exhibit
A)(Related document(s) 2281 ) (Maroulis, Victoria) (Filed on
4/1/2013) (Entered: 04/01/2013)
04/01/2013 - 2292 -Administrative Motion to File Under Seal re Court's
March 17, 2013 Order filed by Samsung Electronics America, Inc.(a New
York corporation), Samsung Electronics Co. Ltd., Samsung
Telecommunications America, LLC. (Attachments: # 1 Proposed Order
Granting Samsung's Renewed Administrative Motion to File Documents Under
Seal)(Maroulis, Victoria) (Filed on 4/1/2013) (Entered: 04/01/2013)
Meanwhile, Samsung had to go to the expense and trouble of coming up with a
workaround for the bounce back patent, so as to avoid Apple getting an injunction against it. On that same linked page, you'll find an excerpt from Apple's expert testimony by Dr. Balakrishnan, opining for the jury that all Samsung's products infringed claim 19 of the '381 patent, and that there was no prior art. But the inventor of the Apple '381 patent, Bas Ording, also invented the earlier prior art. So somebody knew. It's not just the jury and the judge to blame in this picture. In Apple's trial brief, filed just before the trial began, it spoke of its '381 patent, and notice all the rulings by the two judges that may have impacted the jury's ultimate, but misguided, decision: B. Samsung Infringes Apple's User-Interface Software Patents
Apple will prove at trial that Samsung is infringing three patents directed to innovative
features of its multi-touch user interface: the '381 "rubberbanding" [redacted] patent, the '163 "tap-to-zoom" patent, and the '915 "scroll vs. gesture" patent. Infringement is clear from using the Samsung products and reviewing the source code, as Apple's experts Ravin Balakrishnan and Karan Singh will explain. Apple will also present evidence that Samsung deliberately copied Apple's features.
The Court's claim construction rulings leave Samsung with only a few scattered non-infringement arguments that plainly lack merit. Samsung's own expert conceded that Samsung infringes the '163 patent. Samsung's original non-infringement defense to the '915 patent cannot survive the Court's construction of "invokes" in rejecting Samsung' motion for summary judgment. (Dkt. No. 1158 at 18-20.) Samsung has an alternative argument that a few of its products do not infringe the '915 patent because they can be made to perform what Samsung's expert calls "two-finger scrolling" (i.e., a combination of translating and minimal or imperceptible zooming). But Samsung's argument fails because it adds a new limitation that is not part of the claim, namely that scrolling and scaling are mutually exclusive.
As to the '381 patent, this Court has already found likely infringement, rejecting the claim constructions that were the basis for Samsung's non-infringement defenses. (Dkt. No. 452 at 52-56; Dkt. No. 1266.) Samsung apparently continues to argue that it does not infringe because "first direction" requires the human finger to move with single-pixel precision, even though the Court has rejected that argument. (See Dkt. No. 452 at 55 ("because the term 'first direction' does not require linear movement, Samsung's devices do infringe").) Samsung may also assert that some of its products do not infringe the '381 patent because they can be manipulated to avoid rubberbanding, by making slow and minimal finger movements. But the Accused Products do "rubberband" in normal operation and thus necessarily include the instructions for performing the claimed method, which is all that asserted claim 19 requires.
9
Lacking any plausible non-infringement argument, Samsung has no choice but to argue invalidity. Samsung cannot overcome the presumption of validity with clear and convincing evidence. Samsung's prior art references fail to disclose key limitations of Apple's inventions, as Apple's experts will explain. Samsung's deliberate copying and the iPhone's and iPad's commercial success reinforce the conclusion that Apple's inventions were far from obvious. Moreover, Judge Grewal struck prior art references to the '915 patent cited by Samsung's expert Stephen Gray, as well as references cited by Andries Van Dam (except as technical background to the '381 patent). (Dkt. No. 1144 at 3, 5.) Samsung cannot rely on these references as prior art.
Finally, Judge Grewal's rulings preclude Samsung from presenting evidence of any efforts to design around Apple's software patents. On May 4, 2012, Judge Grewal ruled that as a sanction for Samsung's unjustified failure to produce "design-around" source code for Samsung's products until long after the Court-ordered deadline, Samsung "shall be precluded from offering any evidence of its design-around efforts for the '381 . . . and '163 patents. . . ." (Dkt. No. 898 at 9.) In response to Samsung's motion for "clarification," Judge Grewal confirmed that his order meant what it said: during the jury trial, Samsung could not offer "any evidence of its design-arounds," meaning "no source code evidence, no non-source code evidence, no evidence of any kind, whether for liability or any other purpose." (Dkt. No. 1106 at 3-4.) Samsung did not file a timely objection to Judge Grewal's June 19 Order. (Dkt. 1274-2, at 3.)
See what I mean? Samsung intends to appeal the way it was treated at trial, and can anyone now say that it has no basis to complain? It almost had to pay megabucks on a bogus patent claim, as each decision left it less and less room to make its case. And perhaps the jury picked up on that mood from the judges. Who knows? Patent law favors the patent holder, but when it's not a valid patent, how unfair it all becomes. Software patents are the real problem, and Samsung's tale of woe dealing with this one, now finally overturned regarding this patent's claim 19, is just one small corner of this sad and toxic upside-down and anti-competitive patent game. And don't forget that this impacts more than just Samsung. The Japanese equivalent to the '381 US patent is the heart of the dispute there, as well. And Samsung told the court earlier that Apple was calling around, warning other companies about the '381 patent. Apple told the appeals court in its pending appeal of Judge Lucy Koh's refusal to order an injunction against Samsung just how important the '381 patent is in Apple's estimation:
Because they protect key designs and functionalities that have fueled the iPhone's and iPad's overwhelming success, the D'677, D'087, D'305, '381, '915, and '163 patents as well as Apple's iPhone trade dress are crown jewels of Apple's "unique user experience" IP portfolio. Well, one of the crown jewels turns out to be costume jewelry, and it surely caused a lot of unnecessary trouble before it was revealed as bogus. Patent trolls are decidedly not the only problem with US patent law. Patent invalidity needs to be addressed before a defendant has to spend millions to get its rights established. This claim in this patent should never have issued in the first place. And the problem is, once a patent issues, the courts treat it like it came down on stone tablets from above. That is what Samsung faced. Apple called it a copycat, but all its aspersions now boomerang, at least with respects to this claim. You know, when all the geeks at Groklaw tell you a patent is stupid, you should take it seriously.
Claim 19 is the one that matters for the Apple v. Samsung litigation, but more than just claim 19 were found invalid as anticipated or obvious. From the final office action document: The following rejections are utilized by the Examiner below, referencing the proposed prior art listed on pages 23-85 of the Request:Rejection A: Claims 1-6, 8-12, 16, and 20 as being anticipated by Lira
Rejection B: Claims 7, 13, and, 15 as being obvious over Lira
Rejection D: Claims 1-5, 7-13, and 15-20 as being anticipated by Ording '975 (since removed over the 1.131 declaration) So claims 14, 17, and 18 survived, see pages 21-23, after Apple provided more info in response to the earlier preliminary rejection, which you can read about in more detail beginning on page 23. But none of those claims matter to Samsung in Apple v. Samsung, although they could matter elsewhere.
But look at what Samsung has been put through. Imagine you are Samsung. Or worse, imagine you are a startup or an app developer and Apple or some other deep-pocket company comes after you with a patent like this. You don't have millions to defend yourself with. See the problem? Surely we can devise a better system than this.
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| Authored by: ukjaybrat on Tuesday, April 02 2013 @ 12:29 PM EDT |
Correction in title please.
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IANAL[ Reply to This | # ]
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| Authored by: ukjaybrat on Tuesday, April 02 2013 @ 12:33 PM EDT |
Include a link to article, please.
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IANAL[ Reply to This | # ]
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| Authored by: ukjaybrat on Tuesday, April 02 2013 @ 12:34 PM EDT |
Comes goes here.
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IANAL[ Reply to This | # ]
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| Authored by: ukjaybrat on Tuesday, April 02 2013 @ 12:36 PM EDT |
On topic posts will not be tolerated !!! ;)
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IANAL[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 02 2013 @ 12:53 PM EDT |
1) The action can be appealed.
2) The finality might be premature.
3) The claims can be amended and a Request for Continued Examination can be
filed.
4) The applicant can submit persuasive arguments pointing out errors in the
final rejections.
5) A continuation with different claims can be filed.
Its best to look at the substance of the rejections before declaring a
"final rejection" huge.
I haven't done a study, but I think I'd bet that a large fraction of issued
patents have a "final rejection" in their file history.[ Reply to This | # ]
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| Authored by: tyche on Tuesday, April 02 2013 @ 12:53 PM EDT |
What are the chances of Samsung recouping some of the costs of the trial - legal
fees and court costs at least - if Apple finally loses on the whole thing?
Craig
Tyche
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"The Truth shall Make Ye Fret"
"TRUTH", Terry Pratchett[ Reply to This | # ]
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| Authored by: macliam on Tuesday, April 02 2013 @ 01:03 PM EDT |
The Lira patent used as prior art to invalidate Apple's bounce-back patent is
a European patent, available from Espacenet here.
The page is headed:
Original
document: WO03081458 (A1) ― 2003-10-02
Espacenet
appears to be part of the website of the European Patent Office (EPO). [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 02 2013 @ 01:07 PM EDT |
| Does anyone have the serial number assigned to the re-exam? [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 02 2013 @ 02:06 PM EDT |
Claims 14, 17 and 18 were found patentable and/or confirmed. Therefore, the
Patent was not "rejected". At a minimum it was allowed in part and
rejected in part.
In any event, prosecution is not over. The applicant gets to ebut the examiners
reasoning in a response or amendment after final.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 02 2013 @ 03:26 PM EDT |
How can Claims 17 and 18 still stand? According to Rejection D, they should
have been invalidated, as falling in the range of claims 15 - 20.[ Reply to This | # ]
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| Authored by: macliam on Tuesday, April 02 2013 @ 05:01 PM EDT |
I hope you will excuse me for pointing this out. The patent may well be
“stupid”. But, it took a lot of effort on the part of the examiner,
and on the part of those who submitted the Lira reference to invalidate these
claims! And then the examiner had to sustain the rejection against vociferous
objections from Apple. Credit needs to be given where credit is due. Claim 1
of the Apple reads as follows:
1. A computer-implemented
method, comprising:
at a device with a touch screen
display:
displaying a first portion of an electronic
document;
detecting a movement of an object on or near the
touch screen display;
in response to detecting the movement,
translating the electronic document displayed on the touch screen display in a
first direction to display a second portion of the electronic document, wherein
the second portion is different from the first portion;
in
response to an edge of the electronic document being reached while translating
the electronic document in the first direction while the object is still
detected on or near the touch screen display:
displaying an area
beyond the edge of the document, and
displaying a third portion
of the electronic document, wherein the third portion is smaller than the first
portion; and
in response to detecting that the object is no
longer on or near the touch screen display, translating the electronic document
in a second direction until the area beyond the edge of the electronic document
is no longer displayed to display a fourth portion of the electronic document,
wherein the fourth portion is different from the first
portion.
The patent used to invalidate this claim, the
Lira patent, concerned a totally different method for displaying a web page,
making it easier to view on a PDA (portable digital assistant) or cellphone,
involving completely re-formatting the content newspaper-style into three
columns when the finger, mouse, stylus was not in use, and displaying content
from a particular column. On the other hand, when scrolling around, the columns
would break up to allow navigation, then snap into place once scrolling has
finished. The behaviour of this method of displaying the web page on the PDA or
cellphone probably bears only a passing resemblance to the bounce-back feature
on Apple's devices. Nevertheless the examiner had to prove that every single
word and phrase of the claim reproduced above read on some behaviour of the
web-page viewer existing only on paper in Lira's patent (or in some European
repository), and that each and every requirement of the claim corresponded
exactly to some behaviour of Lira's web page viewer as one scrolled
around the HTML document. In particular the examiner had to argue that the
columns produced under formatting could be treated as separate documents in
their own right.
The “geeks” at Groklaw might say that the
patent was ‘stupid’, but one would have to be a experienced expert
at patent prosecution or patent examination to give a reasoned judgement as to
whether or not the patent claim would prove to be invalid over Lira. [ Reply to This | # ]
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- Invalidating claim 1 - Authored by: Anonymous on Tuesday, April 02 2013 @ 05:14 PM EDT
- To live by illusion must be interesting - Authored by: Anonymous on Tuesday, April 02 2013 @ 05:35 PM EDT
- Invalidating claim 1 - Authored by: PJ on Tuesday, April 02 2013 @ 05:38 PM EDT
- Invalidating claim 1 - Authored by: macliam on Tuesday, April 02 2013 @ 07:34 PM EDT
- Invalidating claim 1 - Authored by: Anonymous on Tuesday, April 02 2013 @ 09:55 PM EDT
- Invalidating claim 1 - Authored by: PJ on Tuesday, April 02 2013 @ 11:49 PM EDT
- Business people? ROFL - Authored by: Anonymous on Wednesday, April 03 2013 @ 12:46 AM EDT
- simple = obvious - Authored by: Anonymous on Wednesday, April 03 2013 @ 12:58 AM EDT
- Um, excuse me? - Authored by: OpenSourceFTW on Wednesday, April 03 2013 @ 02:06 AM EDT
- Invalidating claim 1 - Authored by: Anonymous on Wednesday, April 03 2013 @ 05:22 AM EDT
- Answering the question - what is different about claims to response to gestures - Authored by: macliam on Saturday, April 06 2013 @ 03:50 PM EDT
- P.S., 'skilled artisan' used in patent law for skilled technologists. Not pejorative.-n/t - Authored by: macliam on Sunday, April 07 2013 @ 04:47 AM EDT
- It seems you actually can patent data... - Authored by: Anonymous on Wednesday, April 03 2013 @ 02:15 AM EDT
- State Street - Authored by: Ian Al on Wednesday, April 03 2013 @ 03:57 AM EDT
- State Street - Authored by: Anonymous on Wednesday, April 03 2013 @ 08:38 AM EDT
- State Street - Authored by: macliam on Wednesday, April 03 2013 @ 06:31 PM EDT
- Thanks for the contamination, by the way - Authored by: cjk fossman on Wednesday, April 03 2013 @ 06:24 AM EDT
- Excessive breadth of patents on responses of touch-screen devices to gestures - Authored by: macliam on Wednesday, April 03 2013 @ 03:31 PM EDT
- Claim 19 of the Apple's US 7,469,381 patent - [PATENT QUOTED] - Authored by: macliam on Wednesday, April 03 2013 @ 03:46 PM EDT
- Device potentially infringing Claim 19 - [PATENT QUOTED] - Authored by: macliam on Wednesday, April 03 2013 @ 04:16 PM EDT
- Another potentially infringing device - [PATENT QUOTED] - Authored by: macliam on Wednesday, April 03 2013 @ 04:43 PM EDT
- Excessive breadth of patents on responses of touch-screen devices to gestures - Authored by: macliam on Wednesday, April 03 2013 @ 05:31 PM EDT
- A Fourth potentially infringing device - [PATENT QUOTED] - Authored by: macliam on Wednesday, April 03 2013 @ 05:44 PM EDT
- Comments and Lessons to be learned. - Authored by: macliam on Wednesday, April 03 2013 @ 05:57 PM EDT
- Does this not cut both ways? - Authored by: Ian Al on Thursday, April 04 2013 @ 01:57 AM EDT
- Note use of 'includes' in claim 19 of '381 patent - Authored by: macliam on Thursday, April 04 2013 @ 05:10 AM EDT
- Excessive breadth of patents on responses of touch-screen devices to gestures - Authored by: PJ on Thursday, April 04 2013 @ 10:42 AM EDT
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| Authored by: Gringo_ on Tuesday, April 02 2013 @ 06:27 PM EDT |
..for the accusations of copying this
patent and all the pain and expense
Samsung suffered because of Apple's
false accusations?[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 02 2013 @ 11:51 PM EDT |
Software patents are the real problem, and Samsung's tale of
woe
dealing with this one, now finally overturned regarding this patent's claim
19, is
just one small corner of this sad and toxic upside-down and
anti-competitive
patent game.
The same issues that led to
this patent being issued have led to patents on:
1) Human
Genes
2) Existing Seeds
3) Reactionless Spaceship Drives
4)
Hyperspace Radios
5) Nitrogen Dioxide Generators
And a wide
variety of other things. Oh, software is one
area that is impacted, but it is
hardly the only one, nor is it necessarily the worst
damaged.
It is
however more noticeable to the average Groklaw
user.
Waynehttp://madhatter.ca
[ Reply to This | # ]
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| Authored by: Ian Al on Wednesday, April 03 2013 @ 04:34 AM EDT |
Another patent containing 20 or more inventions (including the mobile phone),
any of which can be independently infringed.
§112 (emboldened by
me):(a) In General.— The specification shall contain a written
description of the invention, and of the manner and process of making and
using it, in such full, clear, concise, and exact terms as to enable any
person skilled in the art to which it pertains, or with which it is most nearly
connected, to make and use the same, and shall set forth the best mode
contemplated by the inventor or joint inventor of carrying out the
invention.
(b) Conclusion.— The specification shall conclude with
one or more claims particularly pointing out and distinctly claiming the
subject matter which the inventor or a joint inventor regards as the
invention.
So, the law says that there is only one invention and
that the invention must be distinctly pointed out by the necessary
number of claims.
Infringing on one claim is not enough
to infringe on the single invention, distinctly pointed
out.---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | # ]
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| Authored by: macliam on Wednesday, April 03 2013 @ 07:59 AM EDT |
We have at issue here a single patent claim, namely claim 19 of . We also have a prior
art patent application by Lira. The question that was before the
court in Apple v. Samsung is whether this specific prior art
reference invalidates that patent claim.
First there is the
question under section 101. And whether some prior art reference teaches
bounce-back as a concept in itself is of little relevance in determining whether
claim 19 of the '381 patent reads on the prior art.
Looking at claim 19,
the alleged prior art, must be a device with a touch screen display, one or more
processors, memory and one or more programs. Thus, for example, if your prior
art does not have a touch screen, but is a more traditional desktop with a
mouse, then it cannot be prior art invalidating the patent under section 102.
(If the alleged prior art teaches all other claim limitations, but has a mouse
rather than a touch screen, you might have a case for “obviousness”
under section 103. However, as pointed out by the PTO examiner, the Lira
specification explicitly mentions the possibility of a device with a touch
screen.) But, in questions of whether alleged prior art invalidates the patent,
it simply does not matter whether the prior art teaches “bounce-back as a
concept”. Because neither the courts nor the PTO assess patent claims for
validity on that basis. That is not to say that, in an ideal world, courts and
patent offices wouldn't or shouldn't consider such things. But, in considering
the outcome of ongoing litigation, what matter is not how patent law
should operate, but how the law is currently applied on the basis
of the statute and a mass of current case law that determine, in very specific
detail, how courts should deal with pleadings of patent
infringement.
What matters, for invalidation, is not whether the prior
art teaches the concept of bounce back, but whether it explicitly teaches all
the specifics of the patent claim.
These include in particular the
following:
instructions for displaying an area beyond an edge
of the electronic document and displaying a third portion of the electronic
document, wherein the third portion is smaller than the first portion, in
response to the edge of the electronic document being reached while translating
the electronic document in the first direction while the object is still
detected on or near the touch screen display;
For the Lira
reference to teach the above, there has to exist an area beyond the edge of
the electronic document.
Have you seen how the examiner shows that
the Lira reference teaches this? The Lira reference teaches taking an HTML page
such as the old AOL portal, and breaking it up into two or more columns, like a
newspaper page. In the diagrams, the page content is typically represented in
three columns. Let us therefore suppose that there are three columns on the
reformatted webpage. Now the PTO examiner (and apparently Judge Koh,
independently) adopted a claim construct that allowed each of the three
columns of the webpage to be considered as a document in its own right.
Therefore, if you are taking the center column as a document in its own
right, then everything in the right-hand column lies in the area beyond
the edge of the electronic document. But that is not all, because the
examiner has to explain exactly why the third portion is smaller than the
first portion which he duly does.
The examiner has to defend his
construction of the term electronic document so as to apply the term
electric document to just the central column of an HTML page against a
vigorous response from Apple. This he does in section II.A of the Final
Rejection, from page 35 onwards.
The PTO examiner has also to
demonstrate in detail the following claim
limitation:
instructions for translating the electronic
document in a second direction until the area beyond the edge of the electronic
document is no longer displayed to display a fourth portion of the electronic
document, wherein the fourth portion is different from the first portion, in
response to detecting that the object is no longer on or near the touch screen
display.
The PTO examiner explains in detail how the Lira
reference teaches all these steps and claim limitations, in couple of paragraphs
of the Final Rejection, on pages 9 and 10.
Obviously there are Groklaw
members who believe that, for prior art to invalidate a bounce-back patent, it
is suffience that the prior art document explain the concept of bounce-back.
And that, if the subject-matter of the patent can be implemented in 15 minutes
or so, then the subject matter is “obvious” and that patent is
invalid under the law as currently applied. But if anyone can countenance, for
a second or so, that the requirements of patent law are not necessarily what
their gut-instinct suggests they are, then maybe such people can ask themselves,
why is the PTO examiner going through all the above rigmarole, when all it
takes to invalidate a patent is to show that, once the invention has been made,
a programmer can implement the invention in 15 minutes or so? Also ask
why is there no discussion of coding details, or assessment of whether the
invention is easy or difficult to implement? Because maybe if people were
to ask themselves such questions, it might occur to them that maybe there is
more going on here than meets the eye.
___
The meaning of
“statutory obviousness” under section 102 is a big story in its own
right. The meaning of “obviousness” in patent law is determined by
the wording of Section 102 of Title 35 of the USC, and by decades of case law
that includes, in particular, the Supreme Court cases of Graham v. John Deere and KSR v. Teleflex. An
invention is not “obvious” because a programmer can implement it in
15 minutes or so. Would that it were! (The patent law associations drafted the
statute.)
Standard disclaimer: IANAL.
___
One of the
co-editors of Groklaw may be an authority on patent law. But he makes
postings very rarely indeed these days! It would clearly benefit Groklaw
if it carried more postings written by lawyers with real understanding of the
law as applied, which explain how the peripheral claiming system works,
what the requirements are to demonstrate that alleged prior art invalidates a
patent claim, or that a device or method infringes a patent claim. Because what
seems of come over loud and clear is that people here know what terms like
infringement and prior art mean as the law is currently applied
today in the courts and at the PTO. And any suggestion that the law may be
more complicated and subtle, and things are not as simple as they might appear,
seems to be met with a torrent of abuse and disdainful comment that seems to
suggest that all those involved in Groklaw have a detailed understanding of all
the subtleties and nuances of Patent Law and regard any suggestion that there is
anything in the cases being followed, and the cases collected, that might
suggest that the law in its application is more complex than one might at first
think is to insult the collective intelligence of Groklaw. And I
suggest, with respect, that this is a pity. Because if there were rational
discussion as to how the the current law is applied in determining questions of
prior art, infringement, and statutory obviousness under section 102 (and in
particular how to combine prior art references to establish
“obviousness”, then members of Groklaw would understand better
what to look for an assessing potential prior art and assessing
whether it could be used, by itself, or in common with other prior art
references in order to invalidate patents. Therefore I believe that
rational discussion of the current law would be useful on Groklaw. But there
appears to be an intention that no such discussion should take place, and that
the editorial direction of Groklaw perhaps inadvertently fosters an
inadequate and arguably misleading understanding of what current patent law
requires, based on people's gut instinct of what the law ought to be,
rather than on what the law actually is, as currently applied by the courts
and the PTO. And, regretfully, perpetuating misconceptions on how the law
is applied might not fully serve the interests of the community who read
Groklaw on a regular basis. [ Reply to This | # ]
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- Apple's Claim 19 of '381 Patent Rejected by USPTO in Final Office Action: Impact on Apple v. Samsung Damages Can Be Huge ~pj - Authored by: Anonymous on Wednesday, April 03 2013 @ 08:11 AM EDT
- Apple's Claim 19 of '381 Patent Rejected by USPTO in Final Office Action: Impact on Apple v. Samsung Damages Can Be Huge ~pj - Authored by: Anonymous on Wednesday, April 03 2013 @ 08:20 AM EDT
- Apple's Claim 19 of '381 Patent Rejected by USPTO in Final Office Action: Impact on Apple v. Samsung Damages Can Be Huge ~pj - Authored by: kuroshima on Wednesday, April 03 2013 @ 09:27 AM EDT
- Legal Fictions - Authored by: Anonymous on Wednesday, April 03 2013 @ 10:22 AM EDT
- Legal Fictions - Authored by: Anonymous on Wednesday, April 03 2013 @ 10:30 AM EDT
- Legal Fictions - Authored by: PJ on Wednesday, April 03 2013 @ 11:21 AM EDT
- Legal Fictions - Authored by: Anonymous on Wednesday, April 03 2013 @ 12:27 PM EDT
- Legal Fictions - Authored by: Anonymous on Wednesday, April 03 2013 @ 01:04 PM EDT
- Inventive concepts are non-statutory - Authored by: Ian Al on Wednesday, April 03 2013 @ 11:14 AM EDT
- 'Bounce back' is irrelevant - Authored by: Anonymous on Wednesday, April 03 2013 @ 12:10 PM EDT
- Apple's Claim 19 of '381 Patent Rejected by USPTO in Final Office Action: Impact on Apple v. Samsung Damages Can Be Huge ~pj - Authored by: PJ on Thursday, April 04 2013 @ 11:30 AM EDT
- Points I have been attempting to make - in Ravicher audio - Authored by: macliam on Friday, April 05 2013 @ 09:48 AM EDT
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| Authored by: Anonymous on Wednesday, April 03 2013 @ 08:59 AM EDT |
My issue with patterns like this, is there is no novelty!
The concept of alerting the user that they are about to
scroll beyond the screen is nothing new it's been around on
Pc's for years - making this happen on a devise with a touch
screen in many cases would only require the code to be
recompiled, if the application listened for standard X
events.
It's just plain irrational that you can write S/W that works
on a PC under Linux with a standard screen and mouse and
then not be able to cross-compile and run the same programme
on a smart phone or tablet because of pattern like this.
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