Monday, January 25, 2010

"Portable" means "removable" (Ex parte Fabritius)

Ex parte Fabritius
(Appeal 2008-0068; Appl. No. 10/449,707; Tech. Center 2100)
Decided: May 29, 2008

The claim at issue was to a "method for handling data in a fixed memory associated with a portable electronic communication device ... and an operation of storing data in said fixed memory comprises ..."

The reference disclosed an automobile radar system. The Applicant argued that the system was not a "portable communication electronic device." The Board first found that this phrase in the preamble was not limiting. The Board should have stopped there, because the only other Applicant argument was "non-analogous art," which the Board noted was irrelevant for anticipation.

But the Board continued on, and shot itself in the foot. Here is the Board's strained reasoning as to why the automobile radar system was "portable":
At least a portion of the communication device described by Woll is removable, and thus “portable” within some meaning urged by Appellants. RAM card 20 (Woll Fig. 2) may be removed from the system so that the data may be read by a personal computer 60 (Fig. 6).
What's going on here? Did the Board confused "movable" with "removable"? I can see that "movable" is a synonym for "portable", but not "removable". Also, even if there is some overlap between removable and portable, why is the entire thing portable simply because a portion of it is removable? Is my house portable because the door is removable?

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