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Authored by: Ian Al on Thursday, September 27 2012 @ 04:22 AM EDT |
Fonar Corp. v, General Electric:As a general rule, where software
constitutes part of a best mode of carrying out an invention, description of
such a best mode is satisfied by a disclosure of the functions of the software.
This is because, normally, writing code for such software is within the skill of
the art, not requiring undue experimentation, once its functions have been
disclosed. It is well established that what is within the skill of the art need
not be disclosed to satisfy the best mode requirement as long as that mode is
described. Stating the functions of the best mode software satisfies that
description test. We have so held previously and we so hold
today.
Where a patent does not disclose anything more than the
functions of the software, any aspect of writing the code or the instructions
used by the processor are irrelevant to considering infringement on the
functions in the claims.
In fact, if the patents were of the sort that
follow the general rule then, by introducing software facts, the lawyers, judges
and jury members are wilfully introducing facts which have no bearing on the
case.
I don't disagree with the Fonar opinion. I have explained why
with my computer controlled gearbox example. The USPTO, the courts and the
lawyers ignore the key phrase 'where software constitutes part of a best
mode of carrying out an invention'.
--- Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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Authored by: dobbo on Thursday, September 27 2012 @ 08:58 AM EDT |
This begs the question: Where is the dividing line
between "real world
experience" and "expertise"?
Programming skills are reasonably common, I
would
suggest. Many universities here in the UK have programming
courses, and
I suspect the same is true of most universities
world wide. There are so many
programmable devices these
days that the ability to produce software engineers
has
never really met demand.
But that isn't really the whole story is
it? Many people
can
cook, but not all are chiefs. There is more to
programming
that just being able to read code. One has to understand
the
environment that the code will run in to understand why
things
are done they
way they are.
On one project I worked I developed a device driver to
interface with some hardware we had built. The project used
good programming
techniques including peer review. During
the
review of my code the two coders
that reviewed both stated
that they didn't understand it, both had more
experience and
better academic qualifications that me, but neither had
written
a device driver before on Sun Solaris.
As we know from Hogan himself he
employed a
programmer
to
write code for him, so it is not unreasonable to
assume that
he does not consider himself to be a programmer - just
someone
who can read code. So I doubt if he is capable of making an
expert evaluation
of whether code on two different but
similar
platforms was were equivalent in
terms of the algorithm they
implement.
I've written Unix code for years.
And I've worked in
teams
where the project has supported both the Unix and
Windows
platforms. Window's code still looks strange to me and is
difficult
to read. Even though Windows and Unix do the same
job in very much the same
way.
So if I were a juror trying to determine if two different
implementations on two different platforms were similar
enough for a patent
infringement claim to be upheld I would
not use source code similarities to do
it. [ Reply to This | Parent | # ]
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Authored by: Anonymous on Thursday, September 27 2012 @ 09:46 AM EDT |
What you just identified had been previously pointed to in other
threads.
Not just the fact that he presented himself as an expert
evidence presenter in the Court Room but also of the fact that the logic of his
evidence was not equally applied:
The prior art does not apply because you
can't just drop the code into place
It doesn't matter that you can't
just drop the code into place, Samsung infringes
Plus a few other things -
like the fact that the Law does not describe prior art application as Mr. Hogan
seems to believe in my humble non-legal opinion - but the two above are directly
related to the quote you noticed :)
RAS[ Reply to This | Parent | # ]
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Authored by: Anonymous on Thursday, September 27 2012 @ 04:45 PM EDT |
The two methods being different would be a factor in a copyright case, but with
a patent, that can still be infringing.
So, as previously noted, he applied one standard to the prior art, but a
different standard to the actual product.[ Reply to This | Parent | # ]
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Authored by: albert on Friday, September 28 2012 @ 12:53 PM EDT |
{:-)> [ Reply to This | Parent | # ]
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