Thursday, July 31, 2008

Claim language skimps on words but projects scope-grabbing power

comprising is used only once in each claim. Only in the preamble is it not exclusive.

(The preamble is a legally non-binding part of a claim, by the way:

2. The channel system containing a converter and a hashing module, the system associated with said external display device....

The channel system containing a converter and a hashing module, the system

is a preamble, the rest is the body of the claim)

Instead of is we use including or having

(For example:

...said display device is a liquid crystal display...

should be

...said device having a liquid crystal display...)

As a matter of principle, any language used in a claim should be non-restrictive because you a patent examiner is free to interpret each word as limiting, hence is may restrict the device to be the liquid display only, and contain nothing else.

The term means is used as as little as possible.

It is indefinite and implies a potential and not a structural element.

designed and configured to…is for device claims:

..the device having the means for said lever...

should be

...the device designed and configured to attach said lever...

– in method claims instead of means, we use for [action]

the device provided with means for registration of...

should be

the device provided for registering...

notice that registering is consistent with the method language, which requires action verbs(registering, associating, calculating, opening, admitting) and not abstract nouns (registration).

Isn't this easy?

Wednesday, July 30, 2008

Patent specification calls for strategically streamlined synonyms

Fore example, in the technical specification section of a patent, these rules, almost taken for granted, are to be obeyed at all times:

For- use

Wherein the claims section, one might say

said lever for actuating said valve

in the specification the same message, centered on use is to be written as

operator uses lever to open or close the valve

Novel- innovative

in the background section, the novel is fine, but in the specification section innovative is a must. The reason? Novel is abstract, in a colloquial, literary sense, while innovative implies an inventive direction, indicating that the invention is truly an innovation, and not a stretch of an idea that must be called novel. The same holds for non-obvious, which is an indirect way of saying new, and is better served by innovative.

consisting of , including, containing

consisting of , including, containing, are all fine in the technical description, but when it is required to stipulate that consisting of , including, containing exclusively A, B, C

it is to be reworded as comprising at least A, B and C

in all other instances the concepts can be modified using words such as exclusively, solely, directly

plurality is great for the claims section, but in the specification it is more than one

and so is multiplicity - which must be many, at least one

Experiments in past tense always, rest in present:

Never admit any prior art unless you are certain that it exists.

A treasure trove of WP templates makes me think of migrating

It has been months that this blog used a default theme, and had no logo. It has gotten to the point where I do double takes when seeing the blog on other computers, and I need to look closer at the blog title to understand that it is my own. I think may bloggers are in this situation. I have looked for a new theme allover the blogosphere for something picturesque while representative of the inventive and ingenious spirit that is the topic of my blog. I need a bright, orange-ish, tropical, neogeometry shape and sleek Euro design. I have looked all over the EC and the blogosphere in general, and found this theme a great theme based on an office chair with a hint of art and inventive spiritit is fresh, and so inspiring with the chair that is so representative of furniture in patent (or law) offices' reception areas. On the same site I have found this theme that looks like a hint of my EC widget: a tropical spirit and open-minded office furniture theme Next thing I need to worry about is how to incorporate a theme like these into my blog. I have read that it is possible on Blogger through templates. The themes I found on a dedicated, wordpress templates site. If I were to move to WP I probably use them right away, since they have an on-the-site support service, easy-to-follow installation guide (there is always a glitch with my blog's global HTML settings), and the pertinent news, which all make the site feel up-to-date and live. Check it out if you are a Wordpress blogger.

First quarter in 30 years without Silicon Valley IPO's

A recent edition of the National Law Journal reports that in the first quarter of this year, for the first time in 30 years, there were no venture-backed companies going public. Since this is one hopeful route for startups with patents, the slowdown is worth knowing about.

Tuesday, July 29, 2008

A bunch of bad jokes from the world of patents

A metallurgist is an expert who can look at a platinum blonde and tell whether she is virgin metal or a common ore. From the Sacramento law firm Downey Brand: What do you get when you cross the Godfather with a Lawyer? An offer you can't understand. From the US Patent Office U.S. Patent 6,578,299 Ice fishing hole simulator system

Chinese patent law undergoes revision

iStockAnalyst has a nice brief article on changes in Chinese patent law ( es_of_Changes_in.html) One comment from the article: Based on the pre-drafting research reported early this year, the revision of the Chinese patent rules will be concentrated on the following examination-related areas: Preliminary examination, substantive examination, reexamination and invalidation, electronic filing system, patent fees and process, revival procedure, search reports, source of genetic resources, design patents, PCT applications, secrecy and foreign filing, and distribution and use of patent information; and the following areas not related to regular patent examination: Ownership of inventions sponsored by the state, rewards on employment-related inventions, compulsory licenses, and administrative patent enforcement. In other words, due to the globalization and domination of world gadget markets by China, its government has no choice but to make its patenting system more professional.

Monday, July 28, 2008

Ingenuity of debt management

Ingenuity is useful in personal finance as well in business. Anyone with complicated personal financial situation must face the fact and come up with a contingency plan to resolve problems and move ahead. Just like a business seeking out unique way of financing, fore example, asset-based borrowing, an individual, whether a homeowner or not, can find just as many sources of wholesome financing as ways of getting into debt. I remember my own situation, when I started my own business while still working for someone else. It all seemed fine and working out swimmingly. My employer was a small, moderately successful business. My own business was somewhat successful, enough to provide an extra dispensable income, which afforded me and my family a chance to invest or buy quality luxuries. Everything was fine until the takeover craze came on scene. A large, international beer company with no experience in running industrial operation leveraged a hostile takeover of my employer, and merged it with other two small outfits into the beer company's newly formed automotive products division. Just as unexpectedly most people were fired. I had rather tough time, since my supervisor was a laid off and seeking jobs through the same headhunter. That meant my references were suddenly unimpressive. I had bills to pay, two car notes, family expenses, and, not to forget my business, debt incurred through the line of credit. That was the start of the black streak. publications, and always talked to my creditors' The time was immediately before the advent of Internet. I searched for any ways, and any information on broadening my possibilities. I used all sorts of newsletters, inside knowledgecollections departments and it was from them that I learned a lot about financial solutions. I learned and used debt consolidation, loan re-issue, credit card rollover centralization, and payment rescheduling on all of my outstanding debts. Through straightforward communication and taking responsibility I was able to ask for repayment on my own terms, that means that the periodicity and the amount of payment I set myself. With my mortgage company, I was able to delay the start of repayment. After a year or two, unnoticed, my mortgage company had problems of their own and got bought out and I found myself with a mortgage refinanced at even better terms. All things considered, things worked themselves out. I could have saved myself a lot of grief, worry-filled nights and on telephone bills if Internet was on the scene and there was a site that had all the information and paths to solution within a click. I could think of one site that is like that, which I found to check the state of my finances, where I ran the Bills IQ test on my current situation. The test is fun and interactive. On one page I accessed all the info I once spent months gathering: mortgage solutions, debt help, insurance, bill consolidation, loans and credit solutions. The site is

Sunday, July 27, 2008

Codex Sinaiticus - an oldest prior art reference goes online

Newswires report that a group of libraries led by the University of Leipzig, over the next year, will be making high resolution images of the Codex Sinaiticus, written in Greek, one of the oldest copies of the New Testament (it is more than 1600 years old). The images will be available at: As the Bible has been used as a prior art reference, I argue that it is the oldest prior art reference.

Saturday, July 26, 2008

The last of the real steam-paddle boats retires

The "Delta Queen", the last operating proper steam-paddle boat in the U.S., is to go retire - sad news for historians of technology and boat lovers. The boat owners are unable to get a Congressional exemption from some of the navigation rules that apply to both river-going and ocean-going ships (the Delta Queen has some inherent structural problems due to its wooden superstructure). The Delta Queen has a modern fire sprinkler system, and has never caught on fire. Since 1904, Congress has been ignorant of developments in boat safety .

Friday, July 25, 2008

RFID company sues college researchers for exposing defects

This another ugly trend in big business: 9109139 Chip maker sues to quash research on RFID smart card security flaws Researcher says chip hack could crack open 2 billion cards, By Sharon Gaudin July 10, 2008 (Computerworld) A semiconductor company is suing a Dutch university to keep its researchers from publishing information about security flaws in the RFID chips used in up to 2 billion smart cards. The cards are used to open doors in corporate and government buildings and to board public transportation systems. NXP Semiconductors filed suit in Court Arnhem in The Netherlands against Radboud University Nijmegen. The company is pushing the courts to keep university researchers from publishing a paper about reported security flaws in the MiFare Classic, an RFID chip manufactured by NXP Semiconductors. The paper is slated to be presented at the Esorics security conference in Malaga, Spain, this October, according to Karsten Nohl, a graduate student who was part of a research group that originally broke the encryption last year. Nohl told Computerworld on Thursday that he gave his research to the Dutch university so it could build on what he had done, and he has been closely following its progress. "I think it's crucial that it's published in an academic conference where researchers can work on solutions," said Nohl. "I don't think there's any good outcome for NXP. Say they were to win. They'd be keeping information away from the academics who might come up with solutions." NXP declined to be interviewed for this story but said in an e-mailed statement, "We cannot give further comments at this time, as it is in the hands of the court and the court has given a confidentiality order." Representatives from the university did not respond before deadline. Call out the military Nohl said the problem lies in what he calls weak encryption in the MiFare Classic smart card. In March, he said that once he had broken the encryption, he would need only a laptop, a scanner and a few minutes to get the cryptographic key to an RFID door lock and create a duplicate card to open it at will. Since the MiFare Classic smart cards use a radio chip, Nohl said he easily can scan them for information. If someone came out of a building carrying a smart card door key, he could walk past them with a laptop and scanner in a backpack or bag and skim data from their card. He also could walk past the door and scan for data captured to the reader. Once he's captured information from a smart card and/or the card reader on the door, he would have enough information to find the cryptographic key and duplicate a smart card with the necessary encryption information to open the door. He said the whole process would take him less than two minutes. And that, according to Ken van Wyk, principal consultant at KRvW Associates, is a big security problem. "It turns out it's a pretty huge deal," said van Wyk in a previous interview. "There are a lot of these things floating around out there. Using it for building locks is the biggy, especially when it's used in sensitive government facilities -- and I know for a fact it's being used in sensitive government facilities." Van Wyk noted in March that one European country had deployed soldiers to guard some government facilities that used the MiFare Classic chip in their smart door key cards. "Deploying guards to facilities like that is not done lightly," he said. "They recognize that they have a huge exposure. Deploying guards is expensive. They're not doing it because it's fun. They're safeguarding their systems." Van Wyk declined to identify the European country under discussion. Vintage technology Manuel Albers, a spokesman for NXP Semiconductors, said previously that the company had confirmed some of Nohl's findings. However, he said there are no plans to take the popular chip off the market. "The MiFare chip was first introduced in 1994. At the time, the security level was very high," he said in an interview. "The 48-bit key length for encryption was state of the art." In an earlier interview Albers noted that NXP recently released MiFare Plus, which is backward-compatible with the MiFare Classic while offering better security. He said the company did not release the updated chip because of Nohl's findings, but it did use some of his information when designing it. In a statement on its Web site, the university notes that Mifare smart cards are widely used to control access to buildings and facilities. "All this means that the flaw has a broad impact," according to the release. "Because some cards can be cloned, it is in principle possible to access buildings and facilities with a stolen identity. This has been demonstrated on an actual system. In many situations where these cards are used, there will be additional security measures; it is advisable to strengthen these where possible." The university added that this past March, its researchers informed its government, the Dutch Signals Security Bureau of the General Intelligence and Security Service, and NXP Semiconductor about their findings. In an interview on Thursday, van Wyk said publishing security research is a common pursuit, but it's a bit harder to deal with for a hardware company. "You have an RFID chip deployed by the millions," said van Wyk. "Switching that around is extremely costly and won't happen very quickly. It could be it will take them months or a year to do that." Van Wyk added that it's a "scary" situation for the companies and organizations using these smart cards. "If they're using that for access control to buildings, they'd have to make major changes to their whole access system," he said.

Thursday, July 24, 2008

Texas Republicans issue a platform statement

A recent addition to the Texas Republican Party Platform: American Patent Rights We support protecting our inventors, enforcing our patent laws, and strengthening penalties for patent law violations by foreign entities. Democrats outright clamor that this resolution of the Texas Republican Party is in marked contrast to the position of several Republican members of the Texas Congressional Delegation. The self-styled Patent Reform Act of 2007 was a $6.5T direct attack on the constitution and economy as well as the inventive minds of the USA. Perhaps this platform plank will serve as a gentle admonition to the Texas Delegation. Their actions regarding this vital political issue were fatally flawed. They have some fence mending to do back home.

Germany invalidates Qualcomm's GSM patent

News agencies report that the German Federal Patent Court, following in the footsteps of the U.S. International Trade Commission and the UK High Court, has ruled that a Qualcomm GSM patent being asserted against Nokia is invalid. It looks like a new definition for patent opinion asserting a patent that has been multiply-declared is to be invalidated.

Patent attorney's WSJ letter defends current patent system

Patents Aid Innovation Most Times (Wall Street Journal, Letter to the Editor, July 21, 2008; Page A12) In "Patent Gridlock Suppresses Innovation" (Information Age, July 14), L. Gordon Crovitz asserts "that for most industries today's patent system does more harm than good." He paints with too broad a brush. The "most industries" he refers to are those heavily involved with software, e.g., Verizon, Cisco ,Google, RIM and HP, which he cites. Such companies have indeed suffered grief because of patents on software and so-called "methods of doing business," like double-clicking something to place an order. Some nonsense follows. Much of this grief has been self-inflicted - these companies holding basic tenets of the patent system in contempt. In contrast to companies heavily involved in software, those that make physical "things", e.g., pharmaceuticals, 3M, Corning, and others, see no need for drastic reform. Mr. Crovitz also laments that patent litigation costs are "huge". Others have made that observation, e.g., Wilbur and Orville Wright, Glenn Curtiss, Samuel Morse, Alexander Graham Bell, Henry Bessemer and Dr. Edwin Land, to name a few. Yet those folks and others have endured the cost because, if you've invented an industry and appropriately are making some money (not a bad thing), someone will always try to take a piece of the action. As some have said, "it's cheaper to litigate than to do basic R&D." In sum, the patent system has been and is now the greatest motivator for the development of new technology. If it is to be tinkered with, the tinkering should be limited to solving the real problem. A.L. Michaelsen Patent Attorney Hammondsport, N.Y.

Wednesday, July 23, 2008

A short profile on a little known THC expert

Little do people know that the test for the use of marijuana has been fine-tuned by a humble and unknown professor at the University of Illinois. Roger Adams, 1889-1971, Boston-born Harvard graduate and a Ph. D. recipient, taught chemistry at the University of Illinois. Together with Sir Alexander T, he succeeded in elucidating the exact structure of tetrahydrocannabinol, THC, the active ingredient in marijuana plants. Adams exposed the inaccuracy of the common test for THC administered by the Federal Bureau of Narcotics, due to the test detecting a non-narcotic material.

The psychotic ad-in-bread patent kills itself by flying into infinity

Here's a gem of a patent and claim language: US Patent 6,421,986 (Method of advertising by distributing targeted promotional materials inside packages of bread) c. placing a packet, which contains one or more pieces of the promotional materials, inside each said package at the bread-making facility based on one or more factors selected FROM THE GROUP CONSISTING OF THE SPECIFIC TYPE OF BREAD TO BE PACKAGED AND A RETAIL DESTINATION OF SAID PACKAGE OF BREAD, is indefinite, and self-limiting, all at the same time: Section 112 of the US Patent Law requires that a patent claim specifically point out and distinctly claim what the applicant regards as the invention. In bygone days, there was jurisprudence supporting the proposition that the word "or" created an ambiguity in the claim that prevented it from being specific and definite. To avoid that infirmity, somebody invented a way to get around the "no-no" of saying red, green, orange, blue, brown, gold, yellow OR purple. Then somebody started writing claims saying: SELECTED FROM THE GROUP CONSISTING OF red, green, orange, blue, brown, gold, yellow AND purple. It means the same thing but avoids using the forbidden word OR. This practice was judicially affirmed in the Ex parte Markush case, a decision by Asst. Patent Commissioner Kinan in 1924. Eventually, wise folks discovered that the word OR really isn't so bad if it is used correctly. See In re Harnisch, 631 F.2d 716 (CCPA 1980). These days most patent examiners and courts won't consider a claim defective merely because it contains a recitation using the term OR. It's sorta like what happened when the CAFC finally came out with the decision in State Street Bank that merely because a claim recites a method of doing business, it isn't automatically outside of the patent statute. But old habits die hard, so even though there are a lot of patent claims issuing that contain the word OR, we're still dutifully taught to write Markush Groups, if only to avoid the possibility of encountering an old examiner who hasn't read Harnisch and would write an "indefiniteness" rejection just because he finds an "or" in the claim. The claim you cite would read a lot simpler if the draftsman had just used an OR to join the two alternatives. Whether either of the two alternatives themselves introduces indefiniteness into the claim is another question, which it is appropriate to raise, regardless of whether the conjunction was the word OR or the Markush litany. The answer would probably be found by looking to the specification and deciding if something specific and definite was described for each of the alternatives. Yes, it is jarring to encounter a claim that includes the "overkill" of a Markush group joining just a pair of alternatives, while it looks to you as if one or both of the alternatives themselves might not survive an inquiry as to their definiteness. Another aspect of Markush claiming, as it relates to chemical practice, is that there is supposed to be a common characteristic among the recited elements so that there is unity of invention. But that's another story. The Markush group in the ad-in-bread claim as being applicable to the class of factors used in selecting the materials to be placed inside the bread packages. I see two classes of selection factors: bread type, and bread destination. The use of "consisting of" closes the set. That seems explicit, even though the domains of possible bread types and destinations are not enumerated. According to the MPEP (Sec 2173.05(h)), "[t]he materials set forth in the Markush group ordinarily must belong to a recognized physical or chemical class or to an art-recognized class." A factor is not a "material", but current practices do not seem to exclude factors from use in Markush groups. A selection factor is probably an "art-recognized class," where "type" and "destination" are each a kind of selection factor. Kindly check out 6,202,053, (Method and apparatus for generating segmentation scorecards for evaluating credit risk of bank card applicants) examiners Stamber and Kazimi. It uses something similar, using the term "factor group" in two places (steps a. and b.): 1. A computer implemented method for evaluating credit risk of bank card applicants comprising the steps of: a) dividing a population of bank card applicants into a plurality of sub-populations using a processing unit, based on a first factor selected from a factor group consisting of length of credit history, number of reported trades, reported delinquency, bank card utilization, and revolving balance acceleration; b) dividing at least one of said sub-populations into additional sub-populations based on a second factor selected from the factor group, the second factor being different from the first factor selected from the factor group; c) developing a scorecard for each of said plurality of sub-populations and additional sub-populations; d) applying one of said scorecards to a bank card application; and e) scoring said application, based on said applied scorecard. Thus in the 986 bread promotional material distribution method patent, the kinds of selection factors are fixed and explicit (bread type or bread destination), although, yes, the range of outcomes (type may be white, wheat, rye, 2-grain, ..., n-grain, ... ; destination may be Kroger, Meijer, Wal-Mart, ...) is much larger. In this case, I don't think that enumerating each bread type and each destination into two Markush groups is as enabling as defining the classes of factors. I like the term "factor group" better than just "factor." As you pointed out, this is further complicated by claiming "one or more" of such factors. I read this to mean that the selection path may be by bread type, bread destination, or both. Some materials my go into 3-grain bread, regardless of destination. Some materials may go to all Kroger stores, regardless of bread type. Some packets may go only into 5-grain bread packages destined for Wal-Mart. From an enabling point of view (have not read the patent), I could build something from the 986 language in Claim 1. No novelty and all obviousness. No comment. Maybe some comment: The Markush part appears OK, but the claim is unclear. I don't have a problem with this type of Markush either, since it is the "factors" that are being delineated and not the type of bread of destination. There is no need for further detail. As you've pointed out, however, the claim is vague in describing "one or more factors". Hopefully, it is defined in the specification. Another problem is that the claim is unclear in what the phrase "based on one or more..." is referring to. There are at least three meanings that I could think of: 1. Does it mean that the act of "placing a packet" depends on the type of bread or its destination? So, if the bread is whole wheat, then no placing of a packet occurs? If its going to Miami, then they get a packet? 2. Or, does it mean the promotional materials themselves are different depending on the type or destination of the bread? Raisin bread gets scratch-and-sniff cards? Rye bread gets coupons for fiber supplements? 3. Or, does it mean the number of pieces of promotional materials depend on the type or destination of the bread? Loafs headed to Alaska get multiple mail-order catalogs? Those to New York get a single copy? No comment on the above confusion. I am sure, though, that it is completely explained in the specification, but not enjoying the protection of corresponding claims.

Tuesday, July 22, 2008

Obama's IP thinktank just as childish as McCains

I think Obama (in addition to this review of his platform) might be unfit as well, if you are worried about having a president who understands enough about technology to oversee an overhauling of the Patent Office. The AeA held a Q&A session on Monday last week for the sci and tech community, featuring Obama's science advisers. They spent lots of time talking about innovation and competitiveness; the poor preparedness of our kids when it comes to math and science education; the fact that we don't invest in basic research, etc. It all sounded good, if at times also a bit hollow and full of empty promises. They never really answered questions directly and repeated the same old rhetoric that we've heard for the last couple of years. Obama's staff said that he promises a strategic plan within 90 days - maybe within 6 months, its was too soon for them to make any promises - that will ensure a strong knowledge based economy. They also didn't miss a chance to get in some digs at the poor science record of the Bush administration. For all of their pablum about the importance of remaining competitive in the world and beefing up our commitment to science and technology, I stopped listening when someone asked, "Is the protection of intellectual property on the radar? Is it important?" And Karen Kornbluh - one of the panelists - said, "I don't know. Can I check and get back to you on that?" This is not promising for reform of the PTO, when both presidential candidates treat technology and innovation so cavalierly.

Monday, July 21, 2008

To see 20/20

I forgot to take care of my eyes. Searching online for good deals soon become a futile exercise in learning how far I can drive in order to find a good prescription and frames. Then I found They sell aesthetically pleasing prescription glasses online, starting from $8.
There is a huge selection of frames, with single vision , sunlight-sensitive, or photochromic , tinted sunglasses , bifocal lens and progressive lens. The secret to Zenni’s low prices is that they manufacture exclusively themselves and sell direct to the customer, with no middlemen and virtually no advertising budget. This is a unique business idea, and affords the eye-glass customers great deals. I see that they can have you seeing 20-20 for under $20. All is needed is a prescription by an optometrist or ophthalmologist. This is Zenni on Fox

Phobia-inspired patent language

I recently came across the following patent claim: (United States Patent 6,344,906, Universal document scanner controller) 14. A scanner controller according to claim 1, further comprising an image compression unit connected to the internal bus, the image compression unit being capable of performing image compression implementing at least one of public algorithms, licensed algorithms, derived algorithms and specially developed algorithms. besides derived and specially developed already falling into the scope of public and licensed, the language of the claim serves to preserve the fragile subconscious of both the feebly writing paralegal and the inventor's liaison working with the paralegal. This is another one of those shoot-yourself in the foot overlimiting writing.

Sunday, July 20, 2008

Ingenuity of technicalities

Some more of the masterfully crafted caveats, for the patent examiner as well as a potential infringer may be more enjoyable to read than a lease on a condominium:

Such concerns and their solutions are conventional and well documented in the background art which a person skilled in the art will be conversant.

Elements not specifically shown or described herein may be selected from those known in the art. accordance with principles commonly known to those of ordinary skill in the art to which this invention pertains

The particular components shown are not necessarily exhaustive of the components contained therein, which any other components are generally known in the art.

The present invention contemplates substitutes of the components shown that are capable of carrying out substantially the same functions. - this statement carefully navigates the message of relating the simplicity of the invention, while staying safe.

A second embodiment of the present invention is shown in Figure 5 and includes substantially

While not wishing to be held to any theory, it is believed the above described effects (inhibiting atherogenic progression and stabilizing plaque), preferably occur through inhibition of the recruitment of inflammatory cells by directly controlling the expression of a gene - here, the setting the condition (not wishing...), the verbiage of ...believed..., ...preferably... occur serves as a professional CYA.

The accompanying drawing in which like reference numerals refer to like parts throughout the figures and the drawings.

The principles and operation of a system according to the present invention may be better understood with reference to the drawings and the accompanying description. Before turning to details of the present invention, it should be appreciated that the present invention provides two sets of features, each of which may be used alone, or which may be combined to provide a particularly useful and efficient system. The first feature relates to the use of zzzz. The second feature relates to zzzz.

It is believed that one skilled in the art can, based on the description herein, utilize the present invention to its fullest extent. The following specific embodiments are to be construed as merely illustrative and not limitative of the remainder of the disclosure in any way whatsoever.

Saturday, July 19, 2008

McCain's technology advisers are unfortunately detrimental

McCain's technology adviser is Carly Fiorina. Remember her? She is the one who was instrumental in driving the price of Lucent stock from $80 to $0.80. Then she went on to really screw up HP - and send much of the technology development for that once great company offshore. Like any good follower of Phil Graham, she dismissed objections by saying "There is no job that is America's god-given right anymore." So when McCain says "I have to tell you that the innovation and the technology and the entrepreneurship of the world still lies in the United States." someone ought to remind him that his own key economic adviser played a pivotal role in making him wrong.

Deutchland uber professors

Rummaging through the back issues of (8 November 2002!) Science magazine ( I see a nice article on new patent rules for German professors. A new law was enacted in Germany in February 2002. University professors no longer will have exclusive IP rights to their inventions, with the universities gaining more control of the rights to such inventions. In return, professors (or university scientists) will receive 30% of all revenues generated through the exploitation of the invention. Nothing new. Germany, just like any other socialist government, wants total control of intellectual property.

Friday, July 18, 2008

The trickiness of the technical description phraseology

Very often an text from another patent must be inserted into a patent application, almost verbatim. This practice would equal an implicit admission of a prior art anticipating (rendering non-novel) the application, had the application not used this standard verbiage

The …which is incorporated by reference for all purposes as if fully set forth herein

Very often the language of the technical description within the patent application must be technically correct, though not necessarily precise in engineering terms, while enabling, by teaching a literate technical person to manufacture the invention:

The angular divergence of gimbal roll axis 64 from platform roll axis 68 in Figures 3A-3C has been exaggerated for illustrational clarity.

the line drawings in patent submissions may be surprisingly simple, sometimes hand-drawn, though neat, in their black-and-white monotony. They do not need to be precise, nor truly representative. A propeller blade, the turboprop engine and the unique hub may look as if drawn by a tidy elementary school pupil.

More of the cautionary, self-protective CYA verbiage:

It is to be understood that the...descriptions below are illustrative, and are not intended to…

does not restrict the present invention to the specific details set forth below…

It will be recognized by those with skill in the art that…

...known in the art

At the end of the introductory section, there must be an formula that proves the application's compliance with the US Patent laws' Paragraph 101, that the invention is presents a solution to the public need due to the disadvantages of the existing prior art:

...a widely recognized need for... which would overcome the disadvantages of presently known

Isn't it easy?

Thursday, July 17, 2008

On the importance of turbocompressors

Once I had to write a patent on a high tech, high-octane gasoline which was about 30 numbers above Turbo Blue, the usual mainstay of all dragracers, motorcycle aficionados and derivatives thereof. I remember that most engines, no matter how souped up or customized could take a gulp of energy-packed aromatic hydrocarbon, high-entropy fuel. Only few of turbochargers survived the racetrack test. Guys who usually like to refer to turbochargers as angry snails were the guys whose engine blew up first. When someone's engine is turbocharged, the turbocharger becomes the real heart of the heart of the car. It is of utmost importance that the engine is matched to the turbocharger. The most delusional, if I can say that, were VW and Audi owners who wanted to tinker with their street-legal cars and somehow give themselves more horsepower for passing everyone else during an ego trip while returning from a hockey game. The utterly important part of turbocharging these German automobiles is making sure that their engines receive the genuine, native turbochargers. In US these state-of the-art turbocompressors can be obtained from this vw turbocharger outlet. They have an extensive selection of turbochargers for almost any make of VW and Audi. If you own one, that's where you are better off ordering.


Globe and Mail ( reports that the Canadian Supreme Court has ruled 5-4 that the Harvard oncomouse cannot be patented. The majority decision written by Justice Michel Bastarache says: "The Canadian federal Patent Act] in its current form fails to address many of the unique concerns that are raised by the patenting of higher life forms.", and that the oncomouse does not fit the definition of invention written into the federal Patent Act in the 19th century. Activists are happy - the industry unhappy - with the decision. I guess we are to think that the oncomouse is all things but it is not a result of a technical process.

TrendMicro - Barracuda: fang and claw

For your fun with IP, another case of patent hypocrisy. Network World magazine has an article on the patent squabble between TrendMicro and Barracuda. Barracuda is asking for help in busting the evil Trendmicro virus scanning patents, but begs the OS community not to bust the slimy firewall patents that Barracuda bought from IBM. All you need is some junk food and a yellow soft drink (or a sushi lunch) to enjoy the laughs. As usual, the three patents Barracuda bought from IBM are the usual crap IBM filings - little to no non-patent prior art for post-2000 filings in areas where there is tons of prior art - more examples of the "high quality" patents issuing under the current USPTO czar Dudas. We need to reform the judicial system so that, in some cases, both sides lose.

Presidential candidates on intellectual property: BARACK OBAMA

Having looked into John McCain's IP platform, Obama's platform can be glimpsed at, which contains the following: REFORM THE PATENT SYSTEM: A system that produces timely, high-quality patents is essential for global competitiveness in the 21st century. By improving predictability and clarity in our patent system, we will help foster an environment that encourages innovation. So far, trite babble - timely, high-quality patents -no patent can be timely enough, due to the the IP explosion, the inefficacy of the globalized IP database and patent approval agencies. Giving the Patent and Trademark Office (PTO) the resources to improve patent quality and opening up the patent process to citizen review will reduce the uncertainty and wasteful litigation that is currently a significant drag on innovation. peer review is a sub-optimal logistic solution to the problem of prior art handling at the Patent Office. That Obama starts off his solutions with something that most experts in prior art handling dismiss, is an indication that Obama is not challenging his academic advisors, but rather cutting-and-pasting what they are supplying him. Not a good sign for serious reform. With better informational resources, the Patent and Trademark Office could offer patent applicants who know they have significant inventions the option of a rigorous and public peer review that would produce a 'gold-plated' patent much less vulnerable to court challenge. Three sentences of solutions (these two, and one more), and Obama wastes them on public peer review to provide the PTO with more prior art. Nothing about stiffening Rule 56 so that applicants are required to do more searching, nothing about supplying examiners with better internal resources and tools to do better searches, etc. He is not being serious about patent reform. Where dubious patents are being asserted, the PTO could conduct low-cost, timely administrative proceedings to determine patent validity. I think he is referring to post-grant review. He is being silly here - timely administrative proceedings - that would be a first. And there were many legitimate complaints about post-grant review, which is why Congress couldn't find consensus in this year's patent reform bill. As president, Barack Obama will ensure that our patent laws protect legitimate rights while not stifling innovation and collaboration. three sentences of mostly rejected solutions to some of the PTO's problems. Nothing about healing examiner/management relations - something you think a Democrat would easily embrace and is a big problem at the PTO. Nothing about reforming PTO management, such as prohibiting future illegal appointments. Nothing about independent reviews of PTO performance in areas of quality and timeliness, etc. In short, Obama's position on patent reform is election-year pablum - sounds good while being of little promise to the future. Obama should find new advisors on patent policy, if this is the academic crap they are currently advising him with. I can't believe any practicing patent lawyers would suggest such ineffectual solutions.

Presidential candidates on intellectual property: JOHN MCCAIN

There is nothing on the John McCain website regarding patents. Using the search query: returned three items, only one of which is a speech of McCain's that has any relevance to patents, in which he briefly mention patents in ways that Democrats usually argue. 1) On April 28, 2008, McCain gave a talk at the Miami's Children Hospital, mostly on health care issues. At one point, he spoke as follows: "Pharmaceutical companies must worry less about squeezing additional profits from old medicines by copying the last successful drug and insisting on additional patent protections and focus more on new and innovative medicine." Something Ted Kennedy would say. Other than that, there is nothing on the Web site of McCain's presidential campaign dealing with patent policy. While I don't like Obama's ideas, at least he has something. McCain's apathy is somewhat confirmed by other accounts. For example, a May 29th blog on a talk McCain gave at the digital conference "D" ( the blogger printed a response of McCain's to a question on patents asked by Walt Mossberg of the Wall Street Journal: "... However, when Mossberg said that many people think that U.S. patent law is allowing companies to patent existing ideas, and asked McCain if this was a problem on his radar screen, McCain gave such a firm "No!" that it prompted audience laughter. 'I want to focus on the big things.', he said." With this attitude, forget about any serious patent reform under McCain. Indeed, I am not sure if McCain really understands the economics of innovation (or economics in general). His one technology solution for the energy crisis is a $300 million dollar prize for a breakthrough in battery technology at least an order of magnitude better than what is available now: "I further propose we inspire the ingenuity and resolve of the American people.", Mr. McCain said, "by offering a $300 million prize for the development of a battery package that has the size, capacity, cost and power to leapfrog the commercially available plug-in hybrids or electric cars." However, as many blogs pointed out, this is an idiotic idea. One blog about this is at: llion-challenge-is-interesting.html Why is this an idiotic idea? Anyone smart enough to invent such a battery (which is an incredibly complex problem to solve - billions have already been thrown at it) - anyone that smart is going to be smart enough to realize that a patent on such a battery would be worth BILLIONS and BILLIONS of dollars. So unless the prize includes retention of patent rights, this is an idiotic innovation idea of McCain's. It will take at least a hundred million dollars to solve this problem. With that level of money, IP lawyers will be involved. And any IP lawyer who doesn't advise his clients to file lots of patent applications on such breakthrough battery technology should be disbarred. Who's advising McCain to spout this nonsense? One advisor is lawyer Ed Reines of Weil Gotshal, who generally holds the public in contempt when it comes to patent policy (only lawyers and judges can talk about such issues), law professor Michael Abramowicz who apparently recently proposed an auction system for extending patent terms (which is an interesting idea, but mostly a secondary problem compared to bigger problems plaguing the patent system), and law professor Eugene Volokh, who has never heard of Due Process constitutional law (IP law suffers bigtime from Due Process vagueness, apparently beyond the notice of Volokh), and some other lawyers. With McCain's attitudes, they are wasting their time.

Wednesday, July 16, 2008

Tactical, classic and fun

I never thought military fashion or police gear store would be so worldly popular till I saw the videos at, a classic, traditional site free from the flashy Flash of web 2.0 widgetry. People who shop there do get around - I saw them flash the name of the site in the pictures from Antarctica, Iraq, Afghanistan and greener countries. The videos are a unique collection of rare clips that might not have had the chance of being worn out on Youtube. The site is a virtual extension of a Los Angeles store which also carries a wide variety of tactical gear for real police departments. I checked out the clothing and supplies, and it all looks like an impressive combination of high fashion and rugged functionality required by urban law enforcement. They have an impressive array of hi-tech flashlights, knives, sunglasses and even children's wear.

Tuesday, July 15, 2008

A (silly) comic book law from California

California Business and Professions Code Section 16603 (illegal to require purchase of horror comic book as condition to other purchases): 16603. Every person who, as a condition to a sale or consignment of any magazine, book, or other publication requires that the purchaser or consignee purchase or receive for sale any horror comic book, is guilty of a misdemeanor, punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both. This section is not intended to prohibit an agreement requiring a person to purchase or accept on consignment a minimum number of copies of a single edition or issue of a magazine or of a particular book or other particular publication. As used in this section "horror comic book" means any book or booklet in which an account of the commission or attempted commission of the crime of arson, assault with caustic chemicals, assault with a deadly weapon, burglary, kid.napping, mayhem, mur.der, r.ape, robbery, theft, or voluntary man.slaughter is set forth by means of a series of five or more drawings or photographs in sequence, which are accompanied by either narrative writing or words represented as spoken by a pictured character, whether such narrative words appear in balloons, captions or on or immediately adjacent to the photograph or drawing. (good definition of comics - must have been written by a decent patent attorney) Why isn't "filing a frivolous patent infringement lawsuit" in this list of possible crime horrors?

Monday, July 14, 2008

Another silly patent

US Patent 6,513,042 Internet test-making method What is claimed is: 1. A method of making a test and posting the test on-line for potential test-takers, said method comprising the steps of: providing a host system and a plurality of remote terminals operatively coupled to the Internet; inputting questions at one of the remote terminals; compiling the questions at the host system to make a compiled test; posting the test on-line for potential test-takers; wherein a test-taker is required to pay to take the compiled test; and wherein the test-maker and the proprietor of the host system share the revenues generated by the test-taker taking the test. Granted, this is another arrogant business method, but required? Their patent writer (or drafter, or a paralegal) should have maintained the claiming style and written: wherein a presenting a test taker with... to take the test - the phrase fits the technical description and an example therefrom. It should say, albeit in legalese doublespeak, but as a stronger claim wherein a presenting a test taker with ...for participating in the test... and share - hasn't it been discussed by hundreds of patent examiners as ambiguous? Because share in method claims is better represented by dividing that's all. It's very simple.

Sunday, July 13, 2008

State Department seeks out the web savvy

I got hold of the State Department's Foreign Service Exam. It is of 4 parts - but the first part which contains 90 questions on general information, all multiple choice, such as naming Tunisia's two neighboring countries, is the most interesting. Each question had 4 possible answers. There were several questions about computers and the Internet. The first question was really tough. They wanted to know what else you needed to successfully login to your computer with besides your username. Maybe a password? The second question was right up there with the first. They wanted to know what the full name of the symbol was that goes between the username and the domain name in an e-mail address. The third question demanded to know what the acronym ISP meant. One of the choices was Internet Senior Professional! That would be you, I guess. They also had a challenging question asking us to identify the one item from the list that was not a device for storing data. The choices were Zip Drive, Disk Drive, Hard Drive, and CPU. The next question asked us if we knew what "html" was. Finally, the last question wanted to know if we understood the concept of "bookmarking" a website. Thus 6 of 90 questions about high technology and internet and you wonder why the State Department and USofA in general is so behind in technology, and, furthermore, on the recieving end of foreign and industrial espionage implementation.

Saturday, July 12, 2008

Stem cells can be extracted from baby teeth

I found the following article by browsing back issues of Scientific American. The discovery significantly alleviates the stem cell controversy. However, I do not see it recieve enough news coverage. On April 23, 2003, the magazine reported that a seven-year-old's baby tooth may be worth a lot more than the quarter the tooth fairy left under the pillow. Scientists have discovered that the pulp inside deciduous teeth is a treasure trove of fast-growing stem cells. Naturally-shed choppers could thus provide an easily accessible new source of these sought-after cells for clinical studies of stem-cell transplantation and tissue engineering. When his six-year-old daughter pulled out her baby tooth, Songtao Shi of the National Institute of Dental and Craniofacial Research in Bethesda, Md., washed it off to prepare it for the tooth fairy. Holding his daughter's partial tooth, the stem cell researcher noticed living tissue inside and wondered whether it might contain relatively young stem cells. Shi took the tooth to his lab and found that he was indeed able to isolate such cells from the tooth pulp left in the crown. Extracting more stem cells from the lost baby teeth of seven- and eight-year-olds, Shi called the new group of cells SHED (stem cells from human exfoliated deciduous teeth). In the lab, the cultured cells grew quickly, forming sphere-like clusters indicative of a fast rate of proliferation not observed in stem cells isolated from bone marrow or adult teeth. Not only did they grow rapidly, but when implanted under the skin of immunocompromised mice, SHED induced bone formation -- a feat that stem cells extracted from adult wisdom teeth could not accomplish. SHED cells also triggered neural cell formation in the brain and fat cell growth; stem cells from adult teeth, on the other hand, are not as good at neural cell generation and cannot trigger fat cell growth at all. A report describing these findings was published online this week by the Proceedings of the National Academy of Sciences. One of the challenges of stem cell research is that nobody quite knows the extent to which they can be used to induce growth in tissues other than that from which they were extracted. In that regard, SHED cells could potentially work better than other types of stem cells because of their youth (and thus fast proliferation) and their demonstrated ability to induce the growth of several types of cells. "When kids' teeth fall out we can save them," Shi remarks. "If they need [the stem cells from] them in 20 years, there will be no immunorejection." Just what those needs might be, Shi cannot say. But considering that other researchers are already freezing stem cells from umbilical cords, he muses, "Why don't we save this one?"

Thursday, July 10, 2008

vacation: a drive up from Florida

Once again I hear interesting vacation stories. This time I decided to try the drive across the country myself as a vacation idea, and I turned to the Advantage Rent A Car, after a colleague recommended it as a straightforward, no-complication rental service. I am going to drive up from Miami to Chicago, check out the Chi Town, and meet up with my friends who know the famous jazz bars. I did find the Florida-to-Chicago car rental opportunity on their home page. I liked the simplicity and down-to-business layout: very easy-to-use, side-by-side menus helped me arrange the pickup, the car and the drop off. What's interesting, the drive from Florida to Chicago cost only $1 a day. On the same page there are many interesting deals and programs, like frequent rental, state of Texas and Colorado rentals (where I always have dinner at the El Rancho restaurant). There is also the Starlink Rental management system, which is great for extremely busy executives. The company news is found on the same home page, where the corporate headquarters offers the latest info on franchise opportunities. At Advantage they are also running an offer of up to a 50% discount on Luxury and Convertible car rentals. That's another reason I got interested in driving up from Florida in style and comfort. I also found these great offers, wherein I can also visit my friends and relatives in Texas.

Who is watching Motorola's threat to the music industry?

What seems to be a long time ago (Computer Shopper, January 2003) this interesting article educated us about a new set of chips from Motorola call the Symphony Digital Radio Chipset. The radio industry is supposed to be shifting to a digital format, but can't agree on standards. Digital radio should lead to higher quality signals and reception. Sensing an opportunity, Motorola developed the SDRC chip set, which takes in the current analog radio signals and digitizes the signal at the radio wave level. Nothing big in doing this (except maybe for doing so and having a reasonably priced chip set), but the chip set also has circuitry to clean up the signal (for example, interference noise you get with all radio signals, and reliably boosting weak signals, etc.). Thus much of the benefits of digital radio can be achieved with the current radio system. The article predicts two effects. First, sales of radios using Motorola's chip set could negatively impact the satellite radio industry, for which signal quality was an important selling feature. Second, there will be people selling plug-in boards to personal computers which make use of the Motorola chip set, so you can turn your PC into an ever better radio receiver. And of course, it will be easy to capture, store and burn songs being broadcasted by the radio stations. No need for P2P for the popular songs that the music industry really cares about (and for which the P2P advocates are really interested in stealing). Some interesting technology, and a host of legal implications to track.

Unique stem cell preservation method enables future therapies

There is always a possibility that someone will face a life threatening disease. I am sure that none of us wants to face that eventuality, but, unfortunately, it is a reality of our lives and of our society. You, however, have the power to do something about it that could potentially save your life, or the life of a close one. You as a woman, get this opportunity monthly.

Research has shown that life-saving stem cells are found in a woman’s menstrual blood. What does that mean for you?

C’elle is a company that develop a method for women to harvest those stem cells and making a difference in their future. And the method is easy, painless and non-invasive. You can visit their site and order the C’elle kit. The kit is used in the privacy of you own home. The the cells are processed and preserved for potential use in the future to treat such diseases as osteoporosis, heart disease, stroke, Alzheimer’s disease, and Parkinson’s disease. This solution is a definite lifesaver. If you’re still not completely convinced of the simplicity of the idea, you can get more information at the C’elle Client Testimonial.

What's more to the news is that C’elle is running a “Caring is Sharing” promotion where you can buy for yourself and get another kit free for a loved one. This means that you could literally give the gift of life. All you have to do is when you order your kit, enter Promotion Code 241. Make sure you take advantage of this great offer. Just by ordering this kit, you could make a difference in your own future and the futures of your loved ones!

C’elle has also announced their science break through of a product in this press release: Taking Control: Future Therapies for a Host of Serious Diseases May Be Found in Women's Menstrual Blood (also here CNNMoney) July 07, 2008: 01:28 PM EST OLDSMAR, Fla., July 7 /PRNewswire-FirstCall/ -- With today’s hectic lifestyle, where most women are juggling careers, family, relationships, and a host of activities, the idea of possibly facing a serious illness in the future is not something that readily comes to mind -- especially when a woman is in the prime of her life. But what most women don’t know, is that the key to treating a number of possibly life-threatening diseases that she, a parent, a sibling or even her children may face in later years, such as osteoporosis, heart disease, stroke, Alzheimer’s and Parkinson’s disease, may be found within her own body -- in vital stem cells, which can now be harvested from her own menstrual blood. Now, thanks to the revolutionary research and technology of C’elle, a service dedicated to providing women with a safe and easy method of collecting and preserving stem cells found in her menstrual fluid each month, even the busiest woman can take control of her future, right in the privacy of her own home. With C’elle’s non-invasive collection process, menstrual cells are processed and cryo-preserved (stored at a very low temperature) for potential cellular therapies that may be used in the future. These self-renewing cells one day may even be used for sports medicine or cosmeceutical treatments, such as anti-aging therapies. "C’elle enables and empowers a woman to take control of her future health, and possibly of those genetically closest to her, in a fast, painless and stress free way," said Michelle Kay, Marketing and Sales Manager for C’elle. "We live in exciting times, as science and technology are discovering how extremely valuable menstrual blood stem cells really are, and the enormous treatment potential they represent for future therapies. C’elle’s ongoing research is supporting these promising findings." For more information about C’elle, please call 1-877-892-3553 or visit

Blurry boundaries between hardware and software

The following patent application is a good example of the equivalences and blurry boundaries of patenting hardware and software. The patent application in general is claiming methods for designing communication data flow systems. Let's look at the claims, with a few extra claims I have written as an exercise:
United States Patent Application 20020178285 1. A method of modeling a dataflow architecture comprising the steps of: storing in a memory indicia representative of a dataflow architecture having components responsive to intercommunication protocols; and processing conversions among the intercommunication protocols to determine control structures required to implement said dataflow architecture. 2. A method as recited in claim 1, wherein the indicia stored in memory and the control structures are translated into a description of an implementation of said dataflow architecture.
At this point, we just have a claim for some software to design a system. Now some might object to software patent claims such as these, preferring instead something physical to be patented, which indeed is what some of the next claims are claiming.
6. A method as recited in claim 2, where the description of an implementation is further translated into a physical implementation of the dataflow architecture.
Here is the "hardware" claim, since protecting the translation of something into a physical implementation is little different from protecting the physical implementation (though broader since there can be multiple translations from one description - this type of claim just avoids having to explicitly claim every such translation). Given the long history of patenting hardware, i.e., something "physical", I don't think anyone will object to claim 6.
7. A method as recited in claim 6, wherein the physical implementation is configuration data for a FPGA. 8. A method as recited in claim 6, wherein the physical implementation is a layout for an Application Specific Integrated Circuit (ASIC).
Certainly FPGAs and ASICs are as physical an object as you can get and therefore patentable as devices. Again, protecting the configuration data of a physical implementation is little different from protecting the physical implementation itself. Now there are multiple "FPGAs" and "ASICs" from companies such as Xilink and Altera, so do we want to waste time and money having inventors claim every specific form of physical implementation? I think not. Thus these general claims. That we are concerned about physical devices is seen in claim 10:
10. An apparatus resulting from the method recited in claim 2.
Claims 6, 7, 8 and 10, then, are claims for groups of hardware, with claim 10 being the smallest group, and claim 6 being the broadest group with subsets claims 7 and claim 8. Hard to see why any one of these claims shouldn't be allowed if any of the others are allowed. Patentability shouldn't rise or fall on how many boring variations of claims an inventor is willing to pay for.
Now, in the circuit design world, much money is made selling and licensing hardware descriptions in EDIF/VHDL/Verilog, often as much profit as selling the physical implementation. Seems foolish to protect one form and not the other, if they are equally economically valuable and require the same amount of design and manufacturing effort to produce (that is, given the EDIF/VHDL/Verilog, you push a button to get the hardware). Which leads to claims 3, 4 and 5:
3. A method as recited in claim 2, where the description of an implementation is the EDIF netlisting language. 4. A method as recited in claim 2, where the description of an implementation is structural VHDL. 5. A method as recited in claim 2, where the description of an implementation is structural Verilog.
EDIF/VHDL/Verilog are hardware description languages, which some might not think of as programming languages for which such descriptions would be software. But SystemC is an up-and-coming hardware description language very similar to the programming language C, and Ada is a programming language very similar to VHDL, while C can be used as a hardware description language in that there are tools for converting C directly into digital circuit specifications. Assuming so, one more claim can be automatically derived:
5.' A method as recited in claim 2, where the description of an implementation is System C, C or ADA. To allow the patenting of any of these is to have to allow the patenting of all of them.
However, claims 3, 4, 5 and 6 form an equivalence class, the members being the phrases that start after the phrase "... where the description of an implementation ...", an equivalence class of things that have equal economic value, have equal production requirements, etc. Not surprising that the inventors choose to claim them equally. Now claim 6 is mostly "hardware-ish", claims 3, 4, and 5 are mostly "software-ish". Yet the inventors are putting them together in an equivalence class, a combination that seems quite reasonable. The next claim to consider is where all of the boundaries get blurred:
9. A method as recited in claim 6, wherein the physical implementation is object code for a general-purpose processor.
The inventors are creating another equivalence class here, comprising the a) physical implementation of an FPGA, b) the physical implementation of an ASIC, and c) the object code for a general-purpose processor. But this equivalence class has both hardware-hardware (FPGAs and ASICs) and some sort of software - the object code. However "object code" in this context pretty much implies the existence of a processor, and ignoring (as we can in most implementations) the specific structure of the processor (its speed, word widths in bits, cache memory, etc.), we simplify claim 9 to:
9'. A method as recited in claim 6, wherein the physical implementation is object code.
This might appear objectionable language, "object code isn't physical", but not to modern Landauer-ish physicists, to whom information is physical, and certainly object code is information. Now object code is compiled source code, and given that "source code" implies something to be compiled, and not wanting to see a long and boring list of source code compilers (".. object code derived from a C compiler running on a Pentium .. object code derived from a Fortran compiler running on a Forth chip, etc.), we can simplify claim 9' to:
9'. A method as recited in claim 6, wherein the physical implementation is source code.
I.e., software. Software/source code - both information - both physical, making the transition to claim 9' quite reasonable in the chain of all of these transformations. Software descriptions that are not novel, obvious to a toadstool, and/or not enabled? Fine, deny the patent - I will be the first to support not granting patents for such specifications (and I wish it was done a lot more often). But don't deny the patent on a software description by pretending you can draw the line in the above claims (at least while sober).

Wednesday, July 9, 2008


While several people writing in to you have offered explanations for the poor examination work being done at the PTO, one explanation that I haven't heard is this: many examiners can't speak English. My last two patent examiners have been unable to speak English. And by that, I mean that they literally could not pronounce basic English words and could not handle elementary syntactical rules, such as subject-verb agreement. To offer some examples: I had to explain to one them the meaning of a very basic sentence that she was misreading and to which real legal significance was attached. I thought, "here I am, explaining to a U.S. patent examiner the difference between 'rotate' and 'slide'." Another of them pronounces the "g" in "sign" and pronounces the "i" as though it were short. Thus, "sign" rhymes with "riggin". He pronounces "assigned" so that it rhymes with "a rig need." As far as I can tell, he uses basically no conjuctions (and, or) and no articles (a, the). I cannot even discuss the case with the latter examiner on the phone because it's basically pointless: I cannot understand him. The legal import of a patent lies in the claims, and claims consists of WORDS. Words that happen, in this country, to be ENGLISH words. Why in the world would the gatekeepers of the claims, upon which 100-million dollar questions sometimes turn, be people who have not got a sixth-grader's command of vocabulary, syntax, and pronunciation? I think the patent examiner requirements are completely backwards. The very first threshold requirement should be that an examiner have command of the English language at the level of at least a college graduate with a degree in English. Absent such a command, his or her opinion on what a spec supposedly enables is meaningless. But instead, a technical degree is required. That makes a lot of sense. Einstein himself would have been worthless as a patent examiner in a language he didn't speak. Moreover, what has a technical degree got to do with a business method? There's your answer as to why all the ridiculous biz meth patents issue. Again, the most essential and functional nature of a patent is LINGUISTIC. Language is what the question of infringement turns on. How can a person who can't read tell what "reads on"? As long as people who don't speak English hold the keys to patent claims in English based on specifications in English, the U.S. patent system will be inherently laughable. The same holds equally true for other patent systems that use other languages, so I'm not being ethnocentric here.

Tuesday, July 8, 2008

Patent case law: decisions and implications from 19th Century

WHITTEMORE v. CUTTER (29 F. Cas. 1120 [May 1813]): Experimental use of a patented invention for scientific ["philosophical"] research purposes is exempt from patent infringement - a fair use. WHEATON v. PETERS (33 U.S. 591 [January 1834]) Question: "In what respect does the right of an author differ from that of an individual who has invented a most useful and valuable machine? The result of their labours may be equally beneficial to society, and in their respective spheres they may be alike distinguished for mental vigour." If there isn't a difference, Answer: "It would seem therefore that the existence of a principle [term of protection] which operates so unequally, may well be doubted." Dissent: The "and" of "authors and inventors" is distributive, the subjects distinct in the mind of Congress. JACOBS v. BAKER (74 U.S. 295 [December 1868]): Novel architectural plans could be patentable or copyrightable. COCHRANE v. DEENER (94 U.S. 780 [March 1877]): Process is as patentable as machinery, independent of form of instruments used, if new and useful. MACHINE CO. v. MURPHY (97 U.S. 120 [October 1877]): Two devices doing the same work in the same way with the same results, are the same, even if they differ in name, form or shape. BAKER v. SELDEN (101 U.S. 99 [October 1879]): Methods (of bookkeeping) not copyrightable, but potentially patentable. Artistic methods potentially patentable. TELEPHONE CASES (AMERICAN BELL TELEPHONE) (126 U.S. 1, 533 [March 1888]): An art - a process which is useful, is as patentable as a machine, manufacture, or composition of matter. Descriptions of means in the patent is only necessary to show that the process can be used. BRISTOL v. EQUITABLE LIFE ASSURANCE SOCIETY (5 N.Y.S. 131 [March 1889]): Method of soliciting insurance neither patentable nor copyrightable as idea.

Monday, July 7, 2008

Olive oil inspired inventive thoughts:

The Wall Street Journal of June 7, 2007, and New York Times, had two major articles on patent reform. The problem is that the reporters don't know enough about patent practices to realize a lot of what they are being told (and then reporting), especially from PTO management, is nonsense. The Wall Street Journal article started out with "U.S. patent law, already shaken up by a Supreme Court ruling this spring, ...". I assume he is referring to KSR, but did the KSR decision, with its bad semantics, really shake up much about obviousness? Or was it just a tweak, a papal reminder to the CAFC of who has the real authority. Interestingly, an article in the food section of the New York Times has a good example of a non-obvious discovery. The article is titled "Extra virgin anti-inflammatories" (NY Times, 6 June 2007, D3), and reports on annual tastings of extra virgin olive oils. But it includes a mention of a scientific discovery, as follows:
At the 1999 international workshop on molecular and physical gastronomy [in Sicily], ... the physicists Ugo and Beatrice Palma brought along [olive] oil freshly pressed from their own trees. Dr. Gary Beauchamp [director of the Monell Chemical Senses Center in Philadelphia] tasted the oil and felt his throat burn, as did I and all the other attendees [a side effect of very aromatic virgin olive oils]. But he was the only one who immediately thought of ibuprofen. Not an obvious thought? Dr. Beauchamp happened to be an ibuprofen connoisseur. He and a Monell colleague, Dr. Paul Breslin, had been trying to help a manufacturer replace acetaminophen with ibuprofen in its liquid cold and flu medicine. The medicine tasted fine until it was swallowed. Consumer panels described the unpleasant sensation as bitterness, but Dr. Beauchamp recognized it as an irritation akin to the pungency of black pepper and chilies, strangely localized to the back of the throat. And he recognized it again in Sicily. "The moment I felt that burn from Ugo and Beatrice's oil, I saw the whole picture in my head.", Dr. Beauchamp recalled last week. "There's a natural analogue of ibuprofen in olive oil, and it could have anti-inflammatory properties too." He, Dr. Breslin and several collaborators confirmed that the pungent substance in olive oil is a phenolic chemical, which they name oleocanthal. And they showed that oleocanthal is even more effective than ibuprofen at inhibiting enzymes in the body that create inflammation. ... [In a 2005 Nature article], they suggested that the oleocanthol in pungent olive oils might be one of the things that make traditional Mediterranean diets so healthful. A deliciously non-obvious discovery!

Mis-nostalgia for dot coms

For all the talk about the Northern/Southern California corporate rivalries (Hollywood versus Silicon Valley), Northern California has its rivalry between Silicon Valley and San Francisco (the centers of which are separated by a one hour automobile drive). January 3-ish 2000, Los Angeles Times Magazine had a bunch of articles on the past and future of Silicon Valley. One article had the following quote from a San Francisco lawyer, which is one sentiment about the Northern California rivalry:
"I can't stand it", cries a lawyer in San Francisco at the mere mention of "the Peninsula", as people in the Bay Area call the valley to the south. "The tech bubble nearly caused the disintegration of our law firm. We had to relocate out of Menlo Park when our lease came up for renewal because E-Trade offered the landlord three times what we were paying. We'd been in that office, never missing a payment, for 14 years, and the landlord met with us for five minutes and then said, 'I don't know why I'm even talking to you.'" "I lost three really promising associates to dot-coms in those years.", he says. "I'd try to talk them into staying and, to a person, they sat across the desk laughing at me. It was all, 'You just don't get it!' And I didn't get it. There were all these 20-year-olds all over the place, going on about 'eyeballs' and 'mindshare' and riding their stupid scooters back and forth to their offices, and I was simultaneously wanting to puke and jealous as hell. It was a complete lack of common sense, and I'm telling you, you talk to those people for more than five minutes, and it's obvious that they haven't changed a bit."