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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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'Bounce back' is irrelevant | 191 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
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
What I have observed here when various lawyers have posted
on a particular topic is a mirror of what seems to happen in
court. Many arguments and explainations are presented
which may or may not clear the murky waters, some even
providing more mud. If the answers were clear, there would
be no need for lawyers in the first place. Certainly their
viewpoints are welcome, but don't expect definitive clearcut
answers. Not even the courts seem to be able to provide
those.

[ Reply to This | Parent | # ]

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
Every time someone reminds us that common sense does not apply in patent law,
they also point out clearly that patent law itself is fundamentally broken, not
just it's application to specific domains.

Was that intended or the opposite of what you intended? It's not exactly obvious
to me.

[ Reply to This | Parent | # ]

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

Disclaimers: IANAL, IANAUSAC (I Am Not A United States of America Citizen). I'm just a coder from the other side of the pond

I believe that you're mixing two kinds of things: What the law is, and what we GL posters believe it should be. You make an effort to separate them on your discourse, but not on other people's posts. Most people's reactions are not based on what the law is, because most of us aren't lawyers, they are outrage at what is happening with (software) patents. You make good points though, because as discussion goes on and on (since this seems to be the lawsuit that never ends, there's a lot of that), it's easy to get the law and one's wishes mixed.

Part of the issue is that IMHO, the law doesn't grok the tech any more than the tech groks the law. The "software makes a general purpose computer into a new machine" is, for example, unsustainable from a technical point of view. So are many other legal fictions. Of course, like all models, legal models are wrong, the point is, is the legal model useful in any way? General opinion here, that I subscribe, is that it is only useful for patent lawyers and dying CEOs with ambitions of thermonuclear war.

Another issue is that legal language as used in patents is incomprehensible for us POSITA. It would not be so bad if it wasn't because patents are supposed to be a form of disclosure, aimed to make people reveal their trade secrets in exchange for a limited monopoly on them.

Finally, for us coders, there's the "show me the code" golden standard. Patents don't do this, and so we find them to be at least inneficient and at worst useless in revealing the trade secrets protected by the patent.

On the obviousness front, I understand that what the law calls obvious and what we coders call obvious are not the same thing. However, given that the law is infringing on our domain (code), we believe that it's the law that should change it's standards, not us. For example, the rangeCheck function in the Oracle vs. Google litigation is the sort of code that I would have been asked to write in my introductory programing course at the university. Give someone the detailed specs (including exception priority, or "if multiple checks fail, which one is notified") and I can guarantee that the code would not be much different, modulo line breaks. It's extremely obvious, and completely functional (I understand that I'm mixing copyright and patent law, bear with me). Identically, any pre-exiting method that is "improved" by being "on a computer" is obvious to us, given that a general purpose computer is a tool to execute any program.

TL:DR1 version, Patents fail to hold their part of the bargain to us coders. They are ovten vague, don't include the critical information, and even try to claim the problem instead of the solution. They are, for all our intents and purposes, badly broken.

1Too Long: Didn't Read, an abbreviation comon in many internet boards, just in case you were not familiar with it

[ Reply to This | Parent | # ]

  • 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
ยง112 demands that you point out, with specificity and full constructional
details, what you consider to be your invention and thus where the protected
inventive concept lies.

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | Parent | # ]

'Bounce back' is irrelevant
Authored by: Anonymous on Wednesday, April 03 2013 @ 12:10 PM EDT
Perhaps, by bounce back you mean Claim 16 that refers to elastically attached. As been said many times, it is Claim 19 that matters here. That claim is not about bounce back but how an electronic document is displayed. All those are in the Lira patent.

[ Reply to This | Parent | # ]

  • And all prior art - Authored by: Anonymous on Thursday, April 04 2013 @ 05:40 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: PJ on Thursday, April 04 2013 @ 11:30 AM EDT
Actually, what would be more helpful would be if you would stop trying to discourage people from searching for prior art. You are quite wrong that lawyers are needed for that. They are welcome to help, but they don't know code like programmers do, and they don't know the prior art. Why do you think the USPTO set up the Peer to Patent project, and is now asking for the community's help? Don't be daft. Thinking that lawyers can fix the problem is exactly what won't work. It surely hasn't so far. As to your other criticisms, we have done articles and provide resources on how to search for prior art. I suppose I could repeat them, but here's a sampling:
Our dedicated Paten ts Reference page.

There is a section on patent searching. Here's one article Groklaw published with a how to by the lawyer who heads up PubPat.

We've done the kind of articles that you suggest. For example, here's one on searching to invalidate the Acacia patent.

And when Acacia sued Red Hat as IP Innovation, we put out a call for prior art specifically with regard to that lawsuit, with instructions.

Groklaw found prior art for that case, actually.

And Red Hat and Novell prevailed, with all the patents invalidated. You're welcome, world.

There are references with links to others doing this type of work on that same Patents page, under the heading Patent Busting. And under the heading Patent Resources there are links to info on USPTO's rules re prior art, their manuals, and some EU, UK, Japan links.

Some more patent references are found on our Leg al Research page under the Patents heading.

So, you see, you come here to denigrate and find fault, for reasons that I don't fully understand, but the truth is, a lot of what you've been posting is inaccurate information, since you are not a lawyer either.

What is the purpose?

Here's what I suggest. You comment on things where you are an expert. If you'd come here when Groklaw first began, and left the critical comments, you might have a point. Who knew if it could work or not? But the fact that it did work ought to at least cause a humility check on your part, in that facts trump theories. Your theory has been disproven.

So, don't worry so much. And keep in mind that anyone in the world can comment on Groklaw. Some comments will be wrong. Some of yours are. But that has not prevented us from achieving our goals. If you would like to help, that's great. But you can't teach patent law. You are not a patent law professor. So, instead of pontificating, why not provide urls on what experts in the field have written about patent prior art searching? Fill the need that you feel it's urgent to fill, by all means. That would be a welcome aid.

However, if your purpose is to undermine, trust me when I say that it won't work. Groklaw's reputation was built without any lawyers involved, actually, except behind the scenes. I've always had friends I could ask to clarify things and help me get it right behind the scenes, and I still do. So putting Groklaw down for that is silly. I never want Groklaw to become establishment. Our goal is to change patent law, by the way, not become experts in its current malfunctioning.

And while you clearly do not value programmers, that's what Groklaw started out to be for, and it has grown to include others, including lawyers and CEOs of companies and journalists and many others, but the truth is, it will always be mainly programmers, because we're trying to help lawyers and judges get the tech right. They currently do not, and that's our special expertise here at Groklaw. You may find it non-useful, and perhaps you have the academician's disdain for non-academicians, but the truth is, you don't know programming the way the guys here do, because it's their area of special skill. And since software patents are about software, naturally their expertise is very valuable.

[ Reply to This | Parent | # ]

Points I have been attempting to make - in Ravicher audio
Authored by: macliam on Friday, April 05 2013 @ 09:48 AM EDT

If I do not have the legal qualifications to discuss here on Groklaw the points I have been trying to discuss in postings, are they more authoritative coming from Dan Ravicher?

A Prior Art How To (Groklaw article).

http://g roklaw.net/pdf/FindingPriorArt-PUBPAT-3to1-low-mono.mp3 is one of the audios by Dan Ravicher:

Ravicher at 7:12:

The claims of the patent are single-sentence paragraphs that define the scope of the patent, and patents can have numerous claims. Technically, neither the title, the abstract, the drawings, or any other part of the specification define what specifically the patent covers. Rather, it is only the claims themselves that define what is covered by the patent. So, for instance, if one were to look at the title of this patent, flipping back to the cover, one, if they didn't know that is the claims that define the patent, and not other parts of the patent. They might look at the title of this patent and be like, you know: “This patent says it covers dough for making baked goods. Well that can't be valid. People have been using dough to make baked goods forever.” But that person would be manifesting a lack of understanding that it is what is stated in the claims of the patent, and not anywhere else, that defines what is covered by the patent. Now having said that, the parts of the patent other than the claims are relevant to and can impact the scope of a patent, or in other words they can impact the interpretation of the claims or the definition of the claims, but they themselves, by definition, do not define the scope of the patent.

Ravicher at 42:30

Now, once you've found a reference that you think applies to a claim, you have confirmed that it can be classified as prior art under some section of 102, you have to go back to the claims and you have to find in the reference every single element of the claims.…

Ravicher at 43:15

But let's say you found a reference that had everything except that it was not free from particles. It had particles in it. You couldn't use it as pure 102 art.…. There is a difference between the claim and the prior art which I want to use to invalidate the claim, and that difference means that it doesn't seem like they deserved a patent. That is what 103 addresses. That is what 103 obviousness addresses.

And in summary, from the A Prior Art How To Groklaw article itself

PubPat's Executive Director Dan Ravicher explains the difference: “To be worthwhile, the prior art has to be exactly the same or any differences between it and the targeted patent have to fall within the judicially narrowed concept of obviousness that exists in patent law today, which is much, much less than what most reasonable technologists would consider obvious.”

This is precisely the point my postings have attempted to draw attention to. If I myself do not express the point clearly, is the above quote in error?

[I wrote the conclusion of the comment that this is attached to when I was very “tired and emotional”, especially after being told to “reexamine my own biases” etc.. Apologies (particularly to PJ) for posting. The parent did not appear where I expected, and I presumed that it had been deleted. I was not trying to disparage programmers etc., but simply trying to suggest that patent law is counter-intuitive and that the Patent Statute is applied in a different fashion to what people would naturally expect. Is that an offensive point to try to make? Because it seems that the same point is made by Ravicher.]

[ Reply to This | Parent | # ]

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