Wednesday, July 25, 2012

BPAI interprets "length along time bar" to cover a direction transverse to time bar

Takeaway: In an appeal of claims to a media file manager, the Applicant argued the limitation "length along the time bar that depends upon the amount of media files associated with the respective segment of unit time." The Applicant argued that the reference time bar was horizontal and the histogram bins that allegedly corresponded to "length" were vertical. Thus, according to the Applicant, the reference taught a length that was transverse to the time bar rather than along the time bar. The Board interpreted "along the time bar" more broadly, finding that the phrase covered "any relative position with respect to the time bar (whether vertically or horizontally)." The Board then affirmed the obviousness rejection. (Ex parte Metsatahti et al., BPAI 2011.)

Details:

Ex parte Metsatahti et al.
Appeal 2009012027; Serial. No. 10/715,162; Tech. Center 2100
Decided:  August 28, 2011

The application on appeal was a computer application for managing media file storage. The claim limitation at issue related to the program's generation of a timeline view: "a time bar that divides time into segments of unit time, each segment of unit time having a respective length along the time bar that depends upon the amount of media files associated with the respective segment of unit time." (Emphasis added.)

The Examiner rejected the claim as obvious over the media file viewers taught in Rothmuller and Parker.
Rothmuller's viewer (shown below) included a timeline 250 showing the number of photos taken as a function of time. The user selected the time period by adjusting time bands 251.
Rothmuller, FIG. 3
According to the Examiner,  Rothmuller's viewer included "segments of time and their size depends upon the amount of files for that time segment."

The Examiner relied on Parker's viewer for teaching a media viewer depicting media files as a histogram, with a horizontal bar "divided into segments of unit time" as recited in the claim.
Parker, FIG. 6G (color added to better show histogram bins)
According to the Examiner, Parker's viewer uses a "timeline ... divided into units of time as being days, months, or years."

Finally, the Examiner acknowledged that neither reference disclosed "segments of time having length along time bar (horizontally)" (emphasis added). However, the Examiner concluded that since the references showed vertical bars that represent the amount of media files associated with that time unit, it would have been obvious to "modify the vertical graphs for a specific time segment to horizontal graph along the time bar" (emphasis added). The Examiner cited In re Stevens (101 USPQ 284 (CCPA 1954)) for the proposition that adjustability involves only routine skill in the art.

The Applicant appealed, and argued in the Brief that the claimed time bar was not disclosed by the asserted combination. In particular, the Applicant argued that the combination did not teach a "length along the time bar that depends upon the amount of media files associated with the respective segment of unit time." The Applicant explained that, depending on how "segment" was interpreted, Rothmuller's timeline was either divided into segments of equal size (six months), or the segment size was independently chosen by a user through adjusting time bands 251. The Applicant further explained that Parker taught histogram bins that are uniformly spaced, where the number of bins depends on the screen resolution.

In the Answer, the Examiner responded to Applicant's arguments and further explained his position. The bar graph [in FIG. 3 of Rothmuller] "represented for certain segments of time show respective length/height, which is along the time bar for that segment of time and this respective length/height represents the amount of media/photos associated with that time segment." (Emphasis added.) Parker's FIG. 6B showed "may 6th as segment of time and may 6th as having respective length (sideways or horizontal) which depends on the number of thumbnails associated with may 6th." (Emphasis added.)

The Applicant filed a Reply Brief and argued the specific limitation "along the time bar." The Applicant noted that the "vertical bar graphs shown in Fig. 3 of Rothmuller have respective lengths transverse to the timeline that depend upon the amount of media files associated with the respective bar graph." (Emphasis added.) The Applicant made the same point with respect to FIG. 6C of Parker: "The graphs of Parker (i, e., the bars rising vertically from each of the boxes numbered 1,2,3.. .) are not "along the time bar" as asserted by the Examiner, but are transverse to the histogram timeline shown in the figure, as is typical for a conventional histogram timeline as disclosed by Parker."


The Board affirmed the obviousness rejection. However, the Board found that the combination was not necessary, since the appealed claim was obvious over either Parker or Rothmuller.

The Board's conclusion was based on claim construction of the phrase "length along the time bar that depends upon the amount." In response to the Examiner's admission that the time bars in the references were horizontal, the Applicant had argued that the histogram bins (claimed "amount") were vertical, and thus transverse to the timeline rather than "along the time bar" as claimed. The Board noted that the horizontal aspect was not "commensurate in scope with the specific language of claim 1," since claim 1 did not recite "such 'horizontally' oriented time bars." The Board interpreted the length phrase as follows:

Claim 1 does not place any limitation on what "along the time bar" mean, includes, or presents. Thus, we give this claim limitation its broadest reasonable interpretation as any relative position with respect to the time bar (whether vertically or horizontally), as specifically defined in claim 1.
(Emphasis added.)
The Board then applied this claim interpretation to each of the references in turn:

     [W]e find that the bar widths [in Rothmuller] represent the segments of unit time having a respective length (bar height) which is in a relative position with respect to the time bar since the bars are connected to the timeline and spaced along the timeline. ... We find the timeline along the horizontal axis [in Parker] to be the time bar that is divided into segments of time. We find further that the bar heights of the bars represent the "length" that "depends upon the amount of media files" since the bar height is indicative of the number of digital multimedia objects.
     In view of our claim interpretation above, we find that disclosure from either reference, Rothmuller or Parker, teaches and would have suggested providing "a time bar that divides time into segments of unit time, each segment of unit time having a respective length along the time bar that depends upon the amount of media files associated with the respective segment of unit time," as specifically required by claim 1.
(Internal citations omitted, emphasis added.)
My two cents: The Board got the claim construction on this one way wrong. The Board's interpretation of "along the time bar" completely ignored the ordinary meaning of "along." In this context, "along" implies a specific positional relationship which is not captured by the Board's interpretation of "any relative relationship."

The Board's discussion suggested that the Applicant relied on the time bar being horizontal, but this was misleading. The Applicant's actual argument did not rely on a specific orientation for the time bars or histogram bins, but instead (correctly) focused on the positional relationship: the histograms in the references (the claimed "amount") were transverse to, rather than along, the time bar.


The Examiner's rejection was on the right track because it didn't rely on an erroneous claim interpretation. The Examiner admitted that each of two references did not meet the "along the time bar" limitation and relied on an "obvious to adjust vertical to horizontal" rationale.

I think the Applicant wins even under this rationale. I see the switch from vertical histogram bins to a horizontal arrangements to be counterintuitive. That is, a histogram graph is expected to use different axes for the bin size and the time (or whatever grouping arrangement is used). So a POSITA would not find it obvious to flip the bins from a vertical arrangement to a horizontal arrangement. Ideally, the Applicant would argue this point, rather than leaving a hole in the attack on obviousness by not addressing the Examiner's rationale.

In my view, this decision merits a request for rehearing by the Board. Such rehearings are strictly limited to arguments already on the record, but here the Applicant has everything it needs to argue "the points believed to have been misapprehended or overlooked by the Board" (the standard for rehearing).

Postscript: After losing at the BPAI, the Applicant filed an RCE and amended the claims to recite "a time bar extending in a predefined direction ... each segment of unit time having a respective width, as measured in the predefined direction." The Examiner rejected using essentially the same rationale as before (obvious to switch vertical to horizontal), though he cited different case law (In re Einstein, mere reversal is obvious).

85 comments:

  1. "The Board got the claim construction on this one way wrong. The Board's interpretation of 'along the time bar' completely ignored the ordinary meaning of 'along.' In this context, 'along' implies a specific positional relationship which is not captured by the Board's interpretation of 'any relative relationship.'"

    Although I've been (occasionally) critical of you in the past Karen, you nailed it on this one. This is classic BPAI butchery. APJ Dang needs to open up a dictionary. The "broadest reasonable interpretation" isn't "any f---ing definition I want to give it." However, this appears to be Ms. Dang's approach. There is no citation to any evidence – external or internal – for this interpretation. It is simply pulled out of thin air. Moreover, I would be willing to wager that this "interpretation" (i.e., hack job) was never presented by the Examiner and as a result constitutes a new grounds of rejection. Notably, the BPAI did not indicate this in the Decision.

    One definition I found for "along" is "in a line matching the length or direction of ." This is entirely consistent with Appellants' claim construction and inconsistent with Dang's construction.

    Interestingly enough, this isn't the first time Dang's (sloppy) work product has been commented upon in this blog.

    http://allthingspros.blogspot.com/2011/06/bpai-obviousness-generic-benefit-not.html

    As Karen wrote then, "I don't have an opinion on the overall conclusion of obviousness. But I think the Board was completely offbase in using this generic motivation to combine as a grounds for affirmation."

    "In my view, this decision merits a request for rehearing by the Board."
    You would argue two things. First, you argue new grounds of rejection. Second, you argue that the BPAI's (newly presented) "claim construction" has no basis in fact and/or analysis. The root of the word "reasonable" is "reason" yet the BPAI presents no reason for their claim construction. Because you are arguing a new grounds, you can slip in some dictionary definitions to support your arguments under the guise that since this is a new grounds of rejection, you didn't have the opportunity to respond to this clearly erroneous and unsupported claim construction. For the heck of it, I would challenge the BPAI to present an example, from any form of literature they choose, of the term "along" being used in the manner proposed by the BPAI accompanied by the statement that "if the BPAI is unable to find a single instance of the term 'along' being used in the manner suggested by the BPAI, then the BPAI's claim construction is unreasonable."

    The real lesson here (and one I learned a long time ago – not 'along time') is that if you are going to the BPAI on a claim construction issue, don't rely upon the BPAI giving you a reasonable interpretation. In my experience, unreasonable claim constructions are the #1 most used technique by the BPAI to f--k an Appellant. As such, what you need to do (particularly if you know if the decision is going to hinge upon a claim construction issue) is to present as many definitions that you can (i.e., evidence) that support your position. You also need to spend at least a paragraph or two explaining why the Examiner's claim construction (explicit or implicit) is wrong and/or inconsistent with the specification.

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    1. I agree with your points on winning claim construction. I make claim construction a central part of the argument in most of my responses. And before committing to appeal, I prefer to submit evidence supporting my interpretation.

      However, not all clients like to have definitions on the record, and I've gone to appeal arguing BRI without evidence plenty of times. We'll see how those turn out. If the Examiner's interpretation is just ridiculous, I see a good chance of winning even without definitions.

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    2. "not all clients like to have definitions on the record, and I've gone to appeal arguing BRI without evidence plenty of times."

      They must be clients that like to pay attorney bills instead of getting patents. Broad interpretations = easy rejections.

      I understand that all clients like broad language once they've gotten their patent and are looking to enforce it. However, you need to teach them that issued patents are ALWAYS better than a rejected application. You can always file a continuation and try for broader language later.

      "If the Examiner's interpretation is just ridiculous, I see a good chance of winning even without definitions."
      You'll learn grasshopper -- the BPAI will teach you some hard lessons on what the BPAI thinks is ridiculous.

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    3. >BPAI will teach you some hard
      >lessons on what the BPAI thinks
      >is ridiculous.

      I didn't mean to suggest I think I'll win all those cases. But I am well aware of how broadly the BPAI interprets claims, as evidenced by the many posts that I write on this very subject.

      >you need to teach [your clients]

      I certainly don't agree with your blanket statement about what I should do with my clients.

      Many of the clients I work for have their own inhouse patent counsel. I let them know what I think, and let them make an informed decision. With this particular issue (submitting evidence as to claim construction), as with most others, I believe there is room for reasonable minds to differ on what approach to take.

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    4. The inhouse counsel (who I consider quite sophisticated) are typically too busy to give much thought about the tradeoffs between claim language with a finer edge and one with fuzzy edges.

      Let's revisit this subject in 2-3 years when you get a few of those decisions back.

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    5. "the BPAI will teach you some hard lessons on what the BPAI thinks is ridiculous."

      If the BPAI wasn't ridiculous, the Federal Circuit wouldn't overturn them so much.

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    6. Table 26 of the USPTO annual report for 2011 shows that the for ex parte and inter parte cases before the CAFC, the BPAI was affirmed in 30 cases and reversed in 3.
      In 2010,it was 27 affirmed, 1 reversed, in 2009, it was 29 affirmed and 2 reversed.
      If you look at the CAFC website, it indicates that in 2011, the USPTO had a 14% reversal rate (close to the USPTO annual report number of 10%), which is the same rate as that of district courts and better than some other courts like the court of federal claims.

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    7. Those numbers are misleading. Going to the CAFC costs $$$$$ whereas filing a RCE and submiting an amendment costs $. Also, do those numbes take into account appeals that were filed but not decided, because the USPTO withdrew the rejection?

      Finally, most appeals to the BPAI are not set up to go the CAFC. They are poorly argued with little consideration of the administrative law issues that the CAFC will address when considering to affirm or reverse. The CAFC will rarely consider issues not raised at the BPAI or consider new evidence, and unless you frame the issue correctly at the time of the Appeal Brief, you are dead to rights before you even hit the CAFC.

      If you want to win at the BPAI or CAFC, you need to make the right arguments in the right way. However, I would wager less than 10% of all attorneys make arguments in an appeal brief that would be persuasive at the CAFC.

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    8. The numbers include all appeals, particularly the Fed. Cir. numbers.

      The argument that appeals are not set up to go to the CAFC has no relevance to whether the BPAI is "ridiculous", but rather whether the appellants are "ridiculous". That is, if fewer than 10% of attorneys make persuasive arguments (which I can't believe since the BPAI itself reverses about half of the appeals), it is not the fault of the USPTO or BPAI, but rather the attorneys, themselves.

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    9. "The argument that appeals are not set up to go to the CAFC has no relevance to whether the BPAI is 'ridiculous', but rather whether the appellants are 'ridiculous'."

      No ... you just don't understand. As a general matter, prosecution before Examiners and the BPAI is mostly a hack job by everybody involved -- including the attorneys. This is understandable because the stakes are relatively low per matter.

      It is a different story when you get to the Federal Circuit. They are going to require quality arguments and quality evidence. As such, what may pass for a good argument at the Patent Office just isn't goign to fly at the CAFC. It has nothing to do with the underlying positions -- it has much more to do with whether or not your arguments properly characterize the Patent Office's burden, as an administrative agency, and how the Patent Office failed to meet that burden. In addition, you had better have evidenced to support your positions or you are out of luck. Good positions argued badly are losers at the CAFC.

      "it is not the fault of the USPTO or BPAI, but rather the attorneys, themselves."
      I didn't say it wasn't. In fact, I think condemned many attorneys. However, the fact that attorneys make bad arguments doesn't mean that their underlying positions were bad -- just badly argued.

      For example, take this application, unless you have arguments on record as to how "along" should be construed, you are going to have a hard time introducing those arguments at the CAFC, and without those arguments, you are going nowhere. You would have much better luck arguing that the BPAI's decision contained a new grounds of rejection.

      Finally, just because attorneys made bad arguments doesn't mean the Patent Office made a good rejection.

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    10. The numbers are also misleading because when the Fed. Cir. reverses the BPAI in part and affirms in part, the USPTO simply counts that as an "affirmance." It is also notable that the BPAI typically only uses the term "affirmed in part" while ignoring the term "reversed in part" whereas the Fed. Cir. tends to use both terms to more accurately describe the decision.

      Thus, in how many of those 30 cases for 2011 was the BPAI fully affirmed by the Fed. Cir. and not merely affirmed in part? In 2010, in how many of those 27 cases, was the BPAI fully affirmed instead of affirmed only in part. Likewise, for those 29 "affirmed" cases in 2009?

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  2. My two cents is that the examiner should have applied a WMD and blown the f out of this 103.

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  3. Interesting discussion about "time bars," but not a limitation of the claim.

    1. A computer program product comprising...

    first instructions configured, when exectued, to generate a media view that provides access to digital media files... [and]

    second instructions configured, when exectuted, [to display printed matter, useful and intelligible only to the human mind].

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    1. Oh ... one of those guys. Let me guess, you examine in the 3600 tech center (i.e., the tech center, beyond all others, that has taken it upon themself to ignore Federal Circuit law (in many respects) and ignore claim limitations.)

      Let me acquaint you with In re Lowry -- the most abused Federal Circuit decision at the USPTO. The time bars are data structures, which are not analogous to printed matter. As such, "[t]he Board is not at liberty to ignore such limitations." Moreover, these data structures are intelligble by computers (contrary to your supposition that it is "useful and intelligible only to the human mind.")

      It is quite obvious to me that most Examiners (and even APJs) don't bother to read the cases they cite.

      I these cr@p rejections all the time from the 3600 tech center. All it takes is an appeal to get most examiners to tuck their tail and run. The 3600 tech center is, by far and away, the worst collection of examiners at the USPTO.

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    2. The "time bar" is a "data structure?" Interesting. How, exactly, does a "data structure" have a "length," other than measured by the number of bits, bytes, or words that make up the data structure?

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    3. Examples of different types of data structures incluce a MP3 file and .wav file. Are you saying that these data structures don't have a length ("other than measured by the number bits, bytes, or words that make up the data structure") either?

      That is what I loooove about the 3600 tech center crowd -- examiners who have no f'n clue.

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    4. If we assume that an MP3 or a .wav file is a "data structure," and in a computer memory (i.e., is statutory per Warmerdam and given patentable weight per Lowry), then yes, I'm saying that the "length" is measured by the number of bits, bytes, or words that make up the data structure.

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    5. "then yes, I'm saying that the 'length' is measured by the number of bits, bytes, or words that make up the data structure"

      Hello????? Did you lose track of what you were trying to argue? You asked "[h]ow, exactly, does a 'data structure' have a 'length,' OTHER THAN measured by the number of bits, bytes, or words that make up the data structure?" Did you forget that?

      Wow ... big assumption regarding whether or not a MP3 or .wav file is a data structure -- did you go to school at the University of Elbonia? I would bet my last dollar you are from the 3600 group or if not currently there, spent some time there.

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    6. Anonymous, you will need to state the point you're trying to make in some other way.

      Anyhow, so what is the "length" of an MP3 or .wav _file_ when the _file_ is in computer memory?

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    7. I'm late to the conversation, but I have a question for Anonymous July 25, 2012 2:47 PM:

      >time bars are data structures,

      But seems to me the claim discussed in my post isn't a claim *to* a data structure. In re Lowry dealt with a claim *to* a data structure. So is In re Lowry the most relevant case law?

      >which are not analogous to printed
      >matter.

      No need to get into printed matter, is there? Isn't the more relevant doctrine "Non-functional descriptive material"? Isn't NFDM what we should be discussing?

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    8. "Anyhow, so what is the 'length' of an MP3 or .wav _file_ when the _file_ is in computer memory?"

      Really????? Why don't you open up your digitial music player ... it will tell you the length of the file right there.

      Let me give you a hint, it won't be measured by the number of bits, bytes, or words that make up the data structure.

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    9. Anon., you are confusing the file -- "data structure" -- with the rendering process that makes the contents of the file useful and intelligible to the human mind. The "length" you're talking about is the time it takes to play the file at 1X. What if it's played at 2X, or 1/2X? Does the length of the file -- "data structure" -- change?

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    10. Why not?

      Most stop signs are red. However, that depends upon who reads it. Some people cannot perceive red. Do you have a problem with saying that a stop sign is red because some people don't perceive it as red? I don't.

      Just because a .wav file could be played in 10 minutes at 2X speed, I would speculate that the vast majority of people would feel very comfortable saying that the .wav file is 20 minutes long.

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  4. "Isn't the more relevant doctrine 'Non-functional descriptive material'?"
    Do you know of any on point Federal Circuit case law discussing non-functional descriptive material in the context of a computer program/data structure?

    Anybody know where this quote came from:
    "In this context, 'functional descriptive material' consists of data structures and computer programs which impart functionality when employed as a computer component."

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    1. Anon., "printed matter" and "non-functional descriptive material" are the same thing. It's just easier to say "printed matter" when the NFDM consists of mere words or pictures on a display, which are not functionally related to the substrate (e.g., electronic display).

      For "Federal Circuit case law," read the Board precedential decision of Ex parte Nehls, which discusses Federal Circuit cases and published Board decisions that were Rule 36 affirmed at the Court. Read Lowry again (all the way through). Listen to the Federal Circuit oral arguments in In re Curry. Then we can talk.

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    2. "the Board precedential decision of Ex parte Nehls"
      precedential decision by the BPAI on substantive law mean nothing to me. The USPTO (and hence the BPAI) has not ability to make substantive law. Regardless, ex parte Nehls is so far afield from data structures that it is easy to distinguish.

      Maybe I'll start with Nehls itself which states "Here, the descriptive material (SEQ ID NOs) recited in the claims is not functional material like the data structures in Lowry."

      I've read Lowry ... at least a couple dozen times ... the Federal Circuit made it crystal clear that data structures are not analogous to printed matter (and hence "non-functional descriptive material"). In case you didn't figure it out, my quote comes from the MPEP.

      FYI -- the "functionally related to the substrate" is from printed matter jurisprudence. It has no bearing on claim language related to a "data structure." Although the Federal Circuit discussed it within Lowry, that discussion was in the context of describing the holding of Gulack. Notably, Lowry did not rely upon the "functionally related to the substrate" in their holding. Albeit not using the exact language, the Federal Circuit also referred to it in the paragraph starting "assuming, arguendo that data objects and data structures are analogous to printed matter …". However, this passage is dicta since the Federal Circuit already held that data structures are NOT analogous to printed matter. Therefore, the "functionally related to the substrate" requirement is ONLY for printed matter. Thus, an argument that a data structure is non-functional descriptive material (albeit used by both Examiners and APJs alike from time to time) is easy to overcome.

      However, if you have another interpretation of Lowry, I would be curious to hear it.

      As for oral arguments ... this makes it clear that you are not an attorney (e.g., an APJ) ... because oral arguments have ZERO persuasiveness.

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    3. One last thing ... what you (and many of your cohorts at the USPTO) are attempting to do is to wipe out broad swathes of patent subject matter. For example, a claim to creating a GUI is all about displaying data structures, which you would argue is non-functional descriptive material. I'm sorry to inform you that GUIs have long been patentable subject matter and will remain so for the foreseeable future. Mind you, there are some attorneys who get hoodwinked by some of the arguments I see put out by certain Examiners/APJs in this regard. Moreover, there are probably many Examiners/APJs who really believe that this is the state of the law and that "they get it" while many other Examiners/APJs don't. They are fooling themselves, and I'm more than happy to set them straight.

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    4. (sigh)

      Anon., too many missed points to list. Please understand this one simple concept -- I have not argued, indicated, or suggested that a DATA STRUCTURE resident in computer memory (as in Lowry) is non-functional descriptive material.

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    5. d0c87888...said:
      >I have not argued ... that a DATA
      >STRUCTURE resident in computer
      >memory (as in Lowry) is NFDM

      d0c87888, you did say that the time bar language in the the CRM claim was NFDM.

      So is it your position that a CRM/memory claim reciting the time bar itself -- as a data structure stored on CRM/in memory -- would be instead Functional-DM ?

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    6. It was Anon. who floated the idea that the "time bar" is a data structure and thus entitled to patentable weight. If the "time bar" were indeed a data structure in computer memory then the "time bar" would be functional descriptive material. As you pointed out, however, the claim at issue is not directed to a data structure.

      The output of the second step of the claim -- "time bar" -- is not a data structure but mere data. The "time bar" is non-functional descriptive material whether output to an electronic display or resident in computer memory. In neither case is the data functionally related to the underlying substrate (electronic display or computer memory).

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    7. "The 'time bar' is non-functional descriptive material whether output to an electronic display or resident in computer memory."

      Here we go ... the underlying error in your analysis. What is the time bar then? A figment of somebody's imagination that magically appears?

      Where does the time bar after it is used/manipulated? Where does it come from? The one thing I hate about 3600 examiners is that although they are dealing with computer-related inventions (in many instances) they have no firm background in how computers works. The "time bar" is a collection of data structured in a particular manner and a representation of that data is displayed. It is a data structure -- plain and simple. As claimed, the time bar includes data representing: (i) time segments and (ii) the amount of media files associated with a segment of unit time. Moreover, this data is structured in a particular manner. Hence, it is a data structure.

      According to Wikipedia, "In computer science, a data structure is a particular way of storing and organizing data in a computer so that it can be used efficiently." How is a time bar not a manner of storing and organizing data?

      When the claims refer to a time bar, they are referring to a data structure. Of course, to acknowledge this would require an examiner (in TC3600) to actually examine the application on the merits instead of finding any old reference while ignoring 80% of the limitations. I've come across this too many times to count in TC3600. Again, an appeal usually cures this affliction as their SPE/primary explains to them that while "the goal of the TC3600 is to reject all applications all of the time, you have to do a little better than that." As you can see (and from my experience), the examiners in TC2100 actually examine all the limitations of the claims whereas in TC3600, the examiners try to ignore as many limitations as possible. This has been going on for years and years.

      "In neither case is the data functionally related to the underlying substrate."
      Printed matter jurisprudence -- not relevant to a data structure.

      "The output of the second step of the claim -- "time bar" -- is not a data structure but mere data."
      No mere data is: 2001, 50, 2002, 34, 2003, 88, 2004, 89. You need to take a walk over to TC2100 and talk to somebody with a computer science degree. The MP3, for example, is a patented data structure. However, you cannot get a patent on the MP3 version of "My Heart Will Go On" by Celine Dion because the "My Heart Will Go On" is nonfunctional descriptive material.

      Don't worry … I won't hold any of this against you. You've been brainwashed by the Dudas regime to reject all applications in any manner possible. I have had this conversation before many times with examiners – they do what they are told and most don't question it.

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    8. Seems Anon. is getting there. Admits there's such a thing as NFDM. Next step is to realize that just as the music content of an mp3 file is NFDM, so goes the time bar. Useful and intelligible only to the human mind.

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    9. "Seems Anon. is getting there. Admits there's such a thing as NFDM."
      I know the difference between non-functional descriptive material and functional descriptive material. You do not.

      "Next step is to realize that just as the music content of an mp3 file is NFDM, so goes the time bar. Useful and intelligible only to the human mind."
      Wrong . A computer is capable of interpreting the data structure of a time bar. Do you know how we know this? ... because the computer was able to generate a graph when what was stored was not a graph but a collection of data structured in a particular way. Hence, the time bar was intelligible to the computer and the computer was able to efficiently manipulate this data structure and create a visual representation of the data structure.

      As I said before, go visit TC2100 and find yourself with a computer science degree and try to learn something.

      Of course, if your view of how claim language should be interpreted was correct, most patents out of the 2100 group would have never issued. Just another example of the typical 3600 examiner -- cover your eyes to evidence that unambiguously shows that you are dead wrong while putting your fingers in your ears and chanting "nanananananananananananan .... I can't hear you .... nananananananananannannana."

      Lesson over today class. You can go home for the weekend.

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    10. Stop now trying to explain why the time bar is entitled to patentable weight. Please. Now you're describing patent in eligible subject matter.

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    11. "Stop now trying to explain why the time bar is entitled to patentable weight. Please. Now you're describing patent in eligible subject matter."

      Grammar fail; analysis fail.

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    12. "out of the 2100 group would have never issued"

      Should have never issued according to the law.

      Them being ta rds in 2100 doesn't make one bit of difference as to what should have happened according to the law. I can argue those tar ds up into their own ars ehole regarding their misbegotten "beliefs" about computers that they got from CS training. The reason is that they don't really have a f king clue as to what is going on underneath all their jargon. When confronted with what is actually happening in the computer they relent, quickly, to avoid looking stup ider than they already did at the outset.

      The boys in 2100 are just trying to justify their own existence. The same way all bureaucracy hooligans do. Athough they have the distinction of using their quasi-mystical beliefs derived from their CS training to bolster their nonsensical justification for their own existence.

      Not to mention that they're avoiding the difficult task of pointing out what is and is not functional discriptive matter in a given application where the drafter gleefully skips around from one to the next in every other sentence in every single f king app. A task that never should have even existed if not for Rich and his tomschemery.

      Btw, I'm not the poster you've been talking to. Also, you can find the correct interpretation of Lowry posted over at PO under my posts several times over if you're determined.

      6

      Delete
    13. 6, the coatings expert and failed attorney wannabe, weighs in.

      However, when looking at the scales, I see that they haven't moved. Oh wait, a dust particle landed on the other side and that balanced out 6's statements.

      I haven't read your comments on Lowry. However, if they are anything like your other comments, I presume that they are misplaced.

      Lowry is pretty simple. Data structures are not printed matter. They are to be given patentable weight. Moreover, there is no requirement that they have to be "functionally related" to the substrate/memory (whatever that means in the context of computers). This is a requirement related to printed matter rejections and does not apply.

      Of course, if you want trot out your analysis, I'll be more than happy to tear them apart.

      "A task that never should have even existed if not for Rich and his tomschemery."
      Boohoo

      "Btw, I'm not the poster you've been talking to"
      No sht ... although I disagree with the other poster, at least he/she tries to make cogent arguments -- something you rarely do.

      "When confronted with what is actually happening in the computer they relent, quickly, to avoid looking stup ider than they already did at the outset."
      You mean how the computer "magically" works. You see, when you tell them that the computer is a magical device that channels spirits that make all the things on the computer screen appear, the reason they look down is to avoid having you see them laughing at you.

      Delete
    14. "coatings expert"

      /bow

      "Data structures are not printed matter."

      And what were the "data structures" in Lowry? Be specific. Read the patent at issue if need be. Tell us in a way that makes sense to you, so that I might better guide you. I will hold your hand from there.

      "make cogent arguments"

      There is no need to make "arguments", cogent or otherwise. You simply need hand holding.

      "You mean how the computer "magically" works. You see, when you tell them that the computer is a magical device that channels spirits that make all the things on the computer screen appear, the reason they look down is to avoid having you see them laughing at you."

      Nah bro, I mean when I point out for them that according to their lingo and jargon what is actually occuring, according to them, is magic. When I take the time to explain to them what is actually occuring, they look down in shame and often expressely admit that they were ignorant. Which is rather funny to observe, but even after they note their own ignorance you know they'll be back in the saddle the next day peddling their ignorant horse sht. It's all they know and I don't have the time to hold their hand through an entire engineering curriculum.

      6

      Delete
    15. 20 bucks says Anon will go nowhere near describing the actual "data structures" in Lowry (and their relationship to real, physical, tangible,non-transitory electronic memory).

      Delete
    16. "And what were the 'data structures' in Lowry?"

      The Federal Circuit in Lowry states "Nor are the data structures analogous to printed matter." As such, whatever the data structures are, they are not printed matter.

      "You simply need hand holding."
      Flapping your gums is not hand holding. That may work in at the USPTO, but if you want to convince a lawyer, you had better cite some case law.

      "When I take the time to explain to them what is actually occuring, they look down in shame and often expressely admit that they were ignorant."
      6 -- I finally found you on the internet: http://www.youtube.com/watch?v=pkYNBwCEeH4

      Delete
    17. "20 bucks says Anon will go nowhere near describing the actual "data structures" in Lowry (and their relationship to real, physical, tangible,non-transitory electronic memory)."

      Non-transitory electronic memory? Excluding DRAM are we?

      As for the relationship to the memory, that is Gulack (i.e., printed matter) jurisprudence. Why cannot you get through your head that Lowry swept that aside?

      I understand a few rogue examiners/APJs use it from time to time on unsuspecting (and unsophisticated) applicants. However, the FACT that there are certain examiners/APJs who like to bend the law in order to reject/affirm rejections doesn't make that bent law the real law.

      Regardless, the patent office issues hundreds of patents each Tuesday that rely upon my interpretation of the law. If you have a problem with that, you need to take that up with your bosses.

      Delete
    18. "whatever the data structures are"

      So what were they? The claim is right in the decision bro. The Federal Circuit even states what they are in that case. Go ahead and let us know, in language that makes sense to you, when you're ready.

      "you had better cite some case law."

      There is some already cited, the case under discussion is In re Lowry. Now, when you're ready, we can proceed.

      "If you have a problem with that, you need to take that up with your bosses."

      I have, but we cannot stop the actual "rogue" ones that are issuing this nonsense. Really though they aren't so much "rogue" as simply ignorant of the law or too lazy to discern what is and is not printed matter. Some likely would not make no.'s if they actually bothered to do that. They are under different bosses and I haven't had time to reach them all yet. Don't worry, I will. My indoctrination spreads by the day. It will spread to you as soon as you are ready.

      6

      Delete
    19. 6 -- try not to confuse dicta with the hold.

      A further explanation of the particular data structure in Lowry doesn't convert that "further explanation" into a requirement. This is the difference between a lawyer (i.e., me) and a non-lawyer (i.e., you). I know the difference between the holding and dicta.

      The Federal Circuit wrote "Nor are the data structures analogous to printed matter." They did not write "Nor are the data structures having X, Y, and Z characteristics analogous to printed matter."

      The Federal Circuit wrote "Nor are the data structures analogous to printed matter" without any qualifiers. Figure that out, and you'll figure out why 90-95% of the USPTO gets it right and 5-10% of it gets it wrong.

      "Easiest 20 ever made."
      Now that is an abstract idea if I ever saw one.

      Delete
    20. Who is confused about what is a holding and what is dicta? "Nor are the data structures analogous to printed matter." Tell us about "the" data structures.

      Delete
    21. I'm not confusing any dicta with any holdings brosensky. All I'm asking is that you tell me what the particular data structures were in that case so that you may, eventually, bring yourself to a better understanding of the case under my tutelage. If you so desire. I will not force it upon you. I'm willing to help you understand, if you so desire to. If you do not, then simply state you do not so desire.

      When you're ready we can proceed. Or not, if you do not so desire.

      Delete
    22. However, just as a matter of good sentence analysis, the qualifier in the sentence you quoted is "the". That is antecedently based on something, and I'm simply asking you what that something was in that case so that I may help you with your understanding of the case.

      Delete
    23. "That is antecedently based on something, and I'm simply asking you what that something was in that case so that I may help you with your understanding of the case."

      Decisions are not claims -- don't get hung up on antecedent basis.

      "Despite this cautioning, the Board erroneously extended a printed matter rejection under sections 102 and 103 to a new field in this case, which involves information stored in a memory."
      Information stored in a memory -- sounds like a data structure to me without any of these messy qualifications that either of you want to import into the definition of data structure.

      Delete
    24. Ok, so to you, the data structures at issue are information stored in a memory? I just want to be clear, so that I might help you proceed.

      Delete
    25. No, that can't be it, because a while ago Anon admitted that music (the audio portion of an mp3 file -- information stored in a memory -- ) is non-functional descriptive material.

      Delete
    26. "No, that can't be it"
      The problem is that you cannot read. There is a difference to a claim to a type of data structure (e.g., an audio file such as MP3) and underlying data (e.g., a recording of the Star Spangled Banner). A claim in which "receiving a MP3" is recited has the "MP3" portion given patentable weight. A claim in which "receiving a MP3 of the Star Spangled Banner" has the "MP3" portion given patentable weight and the "Star Spangled Banner" not given patentable weight. The "Star Spangled Banner" is non-functional desciptive material while the MP3 is a data structure.

      "the data structures at issue are information stored in a memory?"
      Assuming that the answer to that question is "yes," then it isn't going to help you. Of course, I would like to see you try, but the hammer is cocked and ready to come down on you hard.

      Delete
    27. So, apparently, Anon has established that the audio portion of an mp3 file -- the "underlying data" -- is not information stored in memory. Wow. Must be a CS. Or more likely Liberal Arts.

      Delete
    28. d0c writes "[barely intelligible gibberish]."

      Way to entirely misrepresent what I wrote. Work at it hard enough and soon you'll be derided out of hand like 6.

      There is a difference between a data structure and the underlying data. I gave this lesson 7 days ago and you forgot it already. As I wrote then:
      Whereas a time bar is a data structure, "mere data is: 2001, 50, 2002, 34, 2003, 88, 2004, 89."

      As MOST examiner's ALREADY interpret the law, there is a patentable difference between all of the following data structures: MP3 file, password, time bar, request, response. All of them characterize (i.e., structure) the data that is contained within these data structures. This is consistent with the MPEP stating "[t]he definition of 'data structure' is 'a physical or logical relationship among data elements, designed to support specific data manipulation functions.'" Hence, the claim limitation of "receiving a request" is not identically disclosed by "receiving a response."

      On the other hand, the underlying data is not given patentable weight. For example, the claim of "receiving a MP3 with the Star Spangled Banner" should not be (patentably) distinguishable over "receiving a MP3 with America the Beautiful" or even "receiving a MP3."

      Delete
    29. Now I begin to understand your problem. Computers are not magic but real-world machines. Calling any and every arrangement of positive and negative charges in electronic memory a "data structure" does not make the arrangement a "data structure." Just as in the rest of the real world, calling a banana an orange does not make the banana an orange.

      Delete
    30. So let's try it this way. An mp3 is not some kind of magic music. The file consists of a header (info about content and encoding) and data (bits representative of a compressed audio signal). Let's call the file a "data structure." Heck, let's call the header a "data structure." But nobody skilled in the art would call the data portion of the file a "data structure." Although, obviously, a patent attorney might.

      Delete
    31. "The "Star Spangled Banner" is non-functional desciptive material while the MP3 is a data structure."

      I see, so as long as you claim the genus (mp3 files in general), rather than the specific species (an mp3 of the star spangled banner), then you avoid the fact that your claim is to nothing more than some written matter. Amazing work there draftsman! Not.

      But here, tell you what, let's set that nonsense aside for a sec while we continue our Lowry hand-held journey.

      "then it isn't going to help you"

      How about letting the teacher decide what will help him teach the pupil?

      Ahem, now, let us presume that you do answer in the affirmative, since you are reticent to simply help yourself by answering whichever way you truly fancy to.

      Let us proceed. Tell me whether or not there is, in a way that makes sense to you, anything out of the ordinary about what the information stored in memory DOES in Lowry. Anything at all?

      Delete
    32. "Calling any and every arrangement of positive and negative charges in electronic memory a 'data structure' does not make the arrangement a 'data structure.'"
      And what are they then, magical pixie dust? Perhaps you can tell me the difference between a data structure and a non-data structure? You can use examples if you would like. Also, try to cite to some case law (i.e., real case law – BPAI doesn't count).

      "But nobody skilled in the art would call the data portion of the file a "data structure." Although, obviously, a patent attorney might."
      The problem with your strawman is that nobody claims the "data portion of the file." They claim a MP3 … they don't claim the Star Spangled Banner as a MP3. If I claim "receiving a password," then the teaching of "receiving an account balance" doesn't identically disclose that limitation even if both the password and the account balance happen to be the number "123456." As I have been saying all the time, the underlying data (i.e., the "123456") isn't given any patentable weight. However, a password is patentably different than an account balance. Do you agree or disagree?

      "I see, so as long as you claim the genus (mp3 files in general), rather than the specific species (an mp3 of the star spangled banner), then you avoid the fact that your claim is to nothing more than some written matter. Amazing work there draftsman! Not."
      Try to tell anybody a MP3 is "some written matter" and they'll think you go by the name of "6" (FYI – that is not a complement). Only a delusional patent examiner would think that a MP3 file is "written matter." Then again, the species of delusional patent examiners is a fairly large subset of the genus patent examiners.

      "Let us proceed. Tell me whether or not there is, in a way that makes sense to you, anything out of the ordinary about what the information stored in memory DOES in Lowry. Anything at all?"
      Dicta.
      The holdings of "The printed matter cases have no factual relevance where 'the invention as defined by the claims requires that the information be processed not by the mind but by a machine, the computer'" and "[n]or are the data structures analogous to printed matter" place no restrictions on the data structures. Personally, I don't care what Lowry's data structures do – they are data structures, and that is all that matters with regard to the holdings.

      However, if you are feeling up to it, explain why the time bar at issue here is different that the data structures described by Lowry such that the time bar limitation should not be given patentable weight.

      Delete
    33. I've already cited "real" case law that explains the difference between a data structure and data. From your basic misunderstanding of a case as simple as Lowry, I'd say don't bother reading them. Just argue.

      Nobody claims the data portion of a file? BS, sir or madam.

      And yes, for the mere step of "receiving" data, there's no difference between calling the data a password, an account balance, an orange, or a banana. The computer (or the person) receives the data the same way, regardless of the name you give it.

      Delete
    34. "I've already cited 'real' case law that explains the difference between a data structure and data."
      Refresh my recollection. By the way, citing case law isn't just mentioning the name of a case– you need to actually cite the holding within the case. Did they teach you that in examiner school?

      "Nobody claims the data portion of a file? BS, sir or madam."
      Got an application number you want to cite? I haven't seen it done, and I've seen thousands of sets of claims.

      "And yes, for the mere step of 'receiving' data, there's no difference between calling the data a password, an account balance, an orange, or a banana. The computer (or the person) receives the data the same way, regardless of the name you give it."
      The question is not: "does it receive it the same way?" The question is: "is it identical?" Regardless, they do not receive the same data structure. Next time you log onto your ATM and it asks for your password, enter in a time bar. Tell me how that works out for you. Did you see any difference?

      Your arguments are the tired old cr@p I sometimes get out of TC3600 which attempts to devolve any computer related method claim into any combination of these steps:
      receiving data
      manipulating data
      outputting data.

      FYI – when I appeal on this, these examiners ALWAYS back down.

      Nice aspiration but sorry, it isn't the law. If it was, the Federal Circuit could easily sweep away vast swaths of patents. "Wait," you say, "the district court judges haven't figured this one out yet and that's why these issues don't go the Federal Circuit." Yeah right … so you are saying sophisticated attorneys getting paid lots of money (and who will throw any argument against the wall to see if it will stick) have for years and year and years overlooked this argument? Yeah … and a few tools over in TC3600 have figured it out but cannot get anybody to listen to them.

      It must be heart breaking … to see so many patents issued year after year after year (thousands … probably hundreds of thousands) that could easily be invalidated if people just saw things your way. I must hurt to see everybody else doing it wrong while you know the right way to do things. You and 6 must close the bars over in Alexandria drinking away your sorrows … telling one another "don't worry, somebody will eventually listen to us and we'll be vindicated … they'll carry us on their shoulders at the patent office and we'll both elevated to the BPAI – perhaps even the Federal Circuit for our intellectual brilliance."

      Delete
    35. (sigh)

      Thought maybe you'd know the difference between receiving and processing.

      I give up. You win. You're the winner. I am not.

      We have a saying in the real world. "Never try to teach a pig to sing. It's a waste of time, and it annoys the pig."

      Delete
    36. "I give up. You win. You're the winner. I am not."

      No -- you haven't given up. You'll trot those tired arguments to unsuspecting applicants who were unfortunate to have their applications examined in TC3600. Because the level of attorney work is generally pretty low, you'll be able to sneak those past many of them.

      FYI -- I'm working on putting together a presentation for my clients on how to avoid having their application be examined in TC3600. After working with other TCs, when I first started working with TC2100, I thought those were the worst examiners out there. I shortly found out that they cannot hold a candle against TC3600 examiners when it comes to blatant misrepresentation of the law.

      A final word of advice as we head into the weekend -- avoid TC3600 at all costs.

      "Thought maybe you'd know the difference between receiving and processing."
      FYI -- try putting a square peg into a round hole. The hole is doing nothing but receiving, but even in receiving, the hole can reject the peg.
      Under the BRI (you know that "claim construction thang" you guys like to trot out all the time), "receiving" typically means much more than simply accepting data bits.

      Delete
    37. I'm enjoying you beating up 6tard and our bitter friend who still hasn't gotten over losing Zurko IV ("It's an illegal panel decision! Whaaaaaaaa!!!!"), but you're wrong: the examiners in TC 3700 are by far the worst. Their middle (mis)management is also by far the worst. If you figure out a way to avoid those idiots, please tell me. Thanks in advance.

      Delete
    38. What we've learned thus far --

      When a computer receives "1234," the process of receiving "1234" -- the process before passing the string to an application program -- is not identical depending on whatever the program is that will be receiving the string. Why? Because a square peg will not fit into a round hole.

      Excellent argument. If computers were made of wood.

      Explain why the processes are not identical. Be as specific as you can be.

      Delete
    39. "the examiners in TC 3700 are by far the worst."
      I can hardly believe that. Almost all the examiners in the mechanical arts are better than those in the computer arts (TC3600 includes business methods). I've practiced in both areas. They are typically more experienced and they don't have to address the issue of 35 USC 101. Put frankly, many of them have a poor understanding of English, have a poor understanding of the law, and have a poor understanding of the technology. Besides that, they are great.

      Delete
    40. "Explain why the processes are not identical. Be as specific as you can be."
      Sorry, not playing that game anymore. I've asked a whole host of questions that have yet to be answered. Until someone on your side can answer those questions, I through playing these little games.

      However, I will share this with you. I catch a baseball three ways: with a glove, a fishing net, and with a strainer. Are the three ways identical?

      Delete
    41. "I catch a baseball three ways."

      Excellent analogy. If data were round, stitched, and made of horsehide.

      I'll simplify. An application program in the computer makes an operating system call to fetch ASCII characters entered at the keyboard. A human being enters "1234" at the keyboard. The hardware and the operating system, SOMEHOW, receives the "1234" from the keyboard in a different way depending on whether the application program intends to process the "1234" as a password or as a database entry.

      Why? Be as specific as you can be. Explain without reference to wood or baseballs. Draw on your knowledge of how digital computers operate.

      Delete
    42. "A human being enters '1234' at the keyboard."

      Have you forgotten that the law says that the underlying data (i.e., the specific digits entered into the computer) isn't given any patentable weight. As such, your hypothetical fails before it even gets off the ground.

      "whether the application program intends to process the '1234' as a password or as a database entry."
      Another bad example. A password can be a database entry (and in most instances is a database entry). As such, you have described two data structures in which one can identically disclose the other.

      Try my example. Tell me what happens when your ATM asks for your password and you attempt to enter in a JPEG of your new puppy (let's assume for sake of the example that it is possible for you to enter in a JPEG of your new puppy into the ATM). If would like, perhaps you can enter in a time bar instead. Draw on your knowledge of how digital computers operate to explain the result.

      You see, in a "digital computer" all that is being sent back and forth is a bunch of digital "0s and 1s." However, unless you a dealing with noise, these "0s and 1s" are structured in a particular manner (hence, a "data structure"). A cast iron engine block contains the same building block (i.e., cast iron) as a cast iron anchor. However, they differ because how the iron is structured.

      I imagine you could use an engine block as an anchor. However, the question of claim interpretation is viewed through the eyes of one skilled in the art – not the eyes of an examiner looking to make a silk purse out of a sow's ear. As such, while an engine block could be used as an anchor, one skilled in the relevant art would not consider an engine block to be an anchor.

      People put different names to different data structures because they are used differently consistent with their structure. Sure, they are made out of the same building blocks (i.e., "0s and 1s"). However, those skilled in the art recognize that they are different. BTW, in case you missed it, most of the USPTO does as well.

      Delete
    43. At last you're getting it. What you call the "underlying data" ("the specific digits entered into the computer") is not given any patentable weight. (Admission.) Just as mere "underlying data" output to a display is given no patentable weight.

      But try not to repeat the mistake of jumping past "receiving" the "underlying data" and into the realm of using it.

      No one would try to use a JPEG as a password if an ATM has nothing more than a numeric keyboard. You're confusing computers with baseballs, wood, cast iron, engine blocks, and anchors. My fault. I neglected to ask for an explanation without reference to engine blocks or anchors.

      But suppose I enter "1234" at a numeric keyboard when my ATM password is actually "4321." The ATM application program does not recognize "1234" as a password. However, the "underlying data" is received the same way from the keyboard, even if you call one string a password and one a database entry or a random sequence of numbers. The "structure" of 1234 is no different from the "structure" of 4321, so far as the step of "receiving" is concerned. At that point, there's no difference between a "password" and a random sequence of bits. They are both received the same way. Identically.

      It matters not one wit what the human being is thinking when he/she enters "1234" at the keyboard, the name somebody has given the "underlying data," or what some application software will do with the "underlying data" in the future.

      Why? Because that's the way digital computers operate.

      Delete
    44. "At last you're getting it."
      Dude ... I've been saying the "underlying data" is not given any patentable weight for quite some time. See the post dated 8:17PM on July 26th. Please try to keep up.

      "You're confusing computers with baseballs, wood, cast iron, engine blocks, and anchors."
      You do not know how to argue by analogy. It is something that they stress in law school. Apparently, you are not a lawyer.

      "It matters not one wit what the human being is thinking when he/she enters '1234' at the keyboard, the name somebody has given the 'underlying data,' or what some application software will do with the 'underlying data' in the future."
      Wrongo. If the computer is expecting ASCII characters for a password and you give it "a random sequence of bits," then the computer is likely going say "invalid input" (or react in some manner consistent with an invalid input).

      Regardless, you are losing track of what matters. In patents, the prime question to be answered is whether or not the prior art anticipates or renders obvious the claimed invention. If I claim "receiving a password, manipulating the password in a particular manner to obtain a result, and then manipulating the result in another particular manner to obtain a second result," the relevant question becomes "is that claim anticipated by or rendered obvious by the applied prior art? If the prior art teaches "receiving a JPEG" and assuming there is no evidence in the record that a JPEG acts as a password, then without the need to look any further, we can answer the relevant question with "NO."

      Your simplistic example refers to situations in which the two different types of data could contain the same exact same "payload." However, that is the exception. Moreover, the fact that the same data structures have the same payload does not mean that they are identical. When computers talk to one another, the payload is typically "wrapped" with another structure that identifies the payload. As such, to one skilled in the art, the receipt of the password typically contains not only the payload but also the wrapper, which together constitutes the data structure of a password.

      Put differently, when a computer is receiving untold millions of data packets, it needs to know what is in each one. Otherwise, the computer doesn't know what to do with it. As such, it DOES MATTER the name (or better yet, "the identity") someone has given the underlying data because it is that identity (and how the computer recognizes a data structure with that identity) that informs the computer how to manipulate the data it receives. Why? Because that's the way digital computers operate.

      Delete
    45. So it seems we are in agreement. A step of "receiving a password" is anticipated by a reference that describes receiving data.

      Delete
    46. "So it seems we are in agreement. A step of 'receiving a password' is anticipated by a reference that describes receiving data."

      No. Not all data is inherently a password and/or would be recognized by a computer as a password.

      Try again.

      Delete
    47. Beg pardon. I just assumed somebody pontificating on a patent blog would know what anticipation means.

      Anticipation does not mean that everything within the scope of the claim must be in the prior art. All that's required is that the claim "reads on" an embodiment in a reference, which is often the simplest embodiment. Anticipation does not care about wrappers and "millions of data packets" when the wrappers and "millions of data packets" are unclaimed. Further, anticipation just loves "simplistic" examples. That's because anticipation itself is quite simple. All you do is apply Occam's Razor. (Forget the Razor part for now. It's a little advanced.)

      Anticipation (and, for that matter, Obviousness) also does not care about anchors or baseballs or what not. I appreciate that those types of "analogy" arguments served you well in law school (hey, congrats!). But a practice tip: I hesitate to let you in on this, because you can be oblivious but still put your kids through college with the shirty "analogous" type arguments, because they work often enough on newby examiners. But if you stay in the business for any length of time, you'll find that those types of arguments rarely work in District Court or at the BPAI, and never, ever, ever, (ever), work at the Fed. Cir. or at the Supremes.

      Anyhow, now you know everything you need to know about anticipation. Look back on your admissions about passwords and "underlying data" and notice that you added a lot of steps and other dross beyond "receiving" data to make whatever point you were trying to make. You'll see that we are in complete agreement.

      Unfortunately, many patent applications where the novelty is in the software come with claims in the form of --

      "A method comprising:
      receiving a password; and
      drawing a bunch of squiggly lines on a display."

      Notice that the "password" in the invention has nothing to do with drawing a bunch of squiggly lines, and nothing to do with the rest of the invention except being "received." The "password" is what you call "underlying data" and what the rest of the world calls "non-functional descriptive material." And remember patentable weight and our new friend anticipation?

      Delete
    48. First off, your reading comprehension skills STINK.

      "But a practice tip: I hesitate to let you in on this, because you can be oblivious but still put your kids through college with the shirty 'analogous' type arguments, because they work often enough on newby examiners."
      I said "argue by analogy," not that the prior art isn't "analogous." What I was referring to is explained here: http://en.wikipedia.org/wiki/Argument_from_analogy. The issue of "analogous" prior art is discussed here: http://www.uspto.gov/web/offices/pac/mpep/documents/2100_2141_01_a.htm. Two entirely different concepts. Try to keep up …
      Oh … if you don't think SCOTUS doesn't work with arguments by analogy, go back in listen to the oral arguments. One of the Justices trotted out an analogy for the attorneys to work through.

      OK, after blowing your intellectual wad addressing an issue that I didn't raise (if we haven't established you were an examiner before, this certainly should be evidence enough in itself), let's address your "anticipation" analysis. The term "reads on" is something out of the USPTO. The law requires "identical invention" in as much detail as recited in the claim. A claim limitation of "receiving a password" is NOT identically disclosed by either "receiving a first name of a user" or "receiving data."

      "That's because anticipation itself is quite simple."
      It can be (in theory), but anticipation requires claim constructions, which are RARELY ever explicitly made by examiners. Also, claim constructions are hard – just ask the Federal Circuit who cannot give us a bright line test as to how to construe language. The problem you face when it comes to claim construction is that claim construction is based upon ordinary and customary meaning given to the term by those skilled in the art. This wipes out your attempt to 'reinterpret' the language to read the distinctiveness out of the limitations. In essence, that is what you are doing … reinterpreting "receiving a password" as "receiving data." As such, the real issue has little to do with anticipation and much more to do with claim construction.

      "Notice that the 'password' in the invention has nothing to do with drawing a bunch of squiggly lines, and nothing to do with the rest of the invention except being 'received.'" Nice strawman you concocted.

      "The 'password' is what you call 'underlying data' and what the rest of the world calls 'non functional descriptive material.'"
      Wrong on all counts. The underlying data is "123456." The password is the name of the data structure. Moreover, a password is functional – try telling anybody outside that USPTO that "a computer password is nonfunctional." If you aren’t outright laughed at, a likely response will be "sure, when I forget it." Regardless, the likes of a "password" is NOT treated as non-functional descriptive material at the USPTO. I can show you hundreds/thousands of issued patents each Tuesday that show you are wrong.

      That last sentence is something you have yet to address. If your view of how patent claims should be construed were correct, then these patents would not be issuing. Moreover, if you were correct, the Federal Circuit would be upholding the invalidation of these types of patents left and right. What is happening? Why isn't the USPTO (mostly) and the Federal Circuit not acting consistent with your interpretations? What is your explanation? Inquiring minds want to know.

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    49. insert "of KSR" after "listen to the oral arguments."

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    50. Analogous art? Talk about reading comprehension. Where did that come from?

      And yeah, the Supremes like to present analogies, hypotheticals, and parades of horribles to counsel at oral arguments. And your point is?

      Your gibberish does touch on a real issue -- claim interpretation. I knew all these concepts were new to you when you pontificated:

      "Under the BRI (you know that 'claim construction thang' you guys like to trot out all the time), 'receiving' typically means much more than simply accepting data bits."

      You described the exact opposite of BRI. Under BRI (which, by the way is not optional), details not required by the literal language of the claim are not normally read into the claim from the disclosure.

      A "password" can be lots of things but it can also be as simple as "1234." When you are taught the concept of BRI over the next few years (assuming you're cut out for this kind of work, notwithstanding the evidence to the contrary), you'll see that the BRI of "password" in the model claim I provided is data consisting of non-functional descriptive material. Oh, sorry, that's "underlying data" to you.

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    51. Newby Anon gibbered: "The term 'reads on' is something out of the USPTO."

      "Assuming that a reference is properly 'prior art,' it is only necessary that the claims under attack, as construed by the court, 'read on' something disclosed in the reference, i.e., all limitations of the claim are found in the reference, or 'fully met' by it." Kalman v. Kimberly-Clark Corp.,713 F.2d 760, 772(Fed. Cir. 1983).

      It's probably best if you stop now.

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    52. "Analogous art? Talk about reading comprehension. Where did that come from?"
      Your use of the word "analogous." Since "analogous," as far as I know," is only used in a single context within patent law, I assumed that is how you were using it. If you were using it in a different context, you should explain what that context was. When discussing patent law, there are certain words that you should use carefully of which "obvious," "analogous," and "inherent" are examples. They are "terms of art" in the art of patent law.

      "Your gibberish does touch on a real issue -- claim interpretation."
      Hello???? The first post (drafted by me) in this blog was ALL ABOUT claim interpretation – that was 2 weeks ago. Try to keep up, will you!!!!

      "You described the exact opposite of BRI. Under BRI (which, by the way is not optional), details not required by the literal language of the claim are not normally read into the claim from the disclosure.'
      You see … that is "examiner interpretation" – not the interpretation of the language of the claims by one of ordinary skill in the art, which is the basis of BRI. What I discovered a long time ago is that examiners will interpret a claim any way possible to have bad prior art read on the claim limitations (i.e., "broadest unreasonable interpretation"). The fact that you can make up a interpretation that fits a round peg into a square hole doesn't make "reasonable." FYI, "reasonable" in the middle word of BRI. Anyway, the upshot is that many examiners fail to recognize many of the nuances in the English language that distinguishes one word from another and causes one phrase to mean different things in different contexts.


      "you'll see that the BRI of 'password' in the model claim I provided is data consisting of non-functional descriptive material."
      Still confused over the difference between underlying data and a functional data structure? "1234" is the underlying data. A password is a FUNCTIONAL data structure. The difference being that a claim reciting "receiving data including '1234'" doesn't give patentable weight to the "1234" whereas a claim receiving "receiving data including a password" gives patentable weight to the "password." Of course, if you don't believe me, just walk over and talk to the examiners in TC2100, TC2400, and TC2600. Something you continue to refuse to acknowledge.

      BTW – let's work with a more complicated example of a data structure: an html page. Perhaps you can explain to me how an html page is non-functional descriptive material.

      FYI – you need to understand case law a little better. The problem with examiners is that they see some words (i.e., "read on"), latch on it, and don't understand the context in which the terminology is used. An extensive technical dictionary (or perhaps a programming guide) probably "reads on" quite a bit of claim language. However, neither would not be considered anticipatory art for much of that claim language – I'll let you figure out why on your own time. As such, the phrase "read on" is a poor characterization of the law regarding anticipation.

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    53. After all the free help, Anon still does not know the difference between receiving and processing?

      The phrase "read on" is a poor characterization of the law regarding anticipation? Right. You need to take that up with Giles S. Rich.

      A couple practice tips. It's called claim construction, not "claim constructions." Prior art does not "read on" claim limitations. Claims read on disclosures. Start with Kalman v. Kimberly Clark to "understand case law a little better."

      Come on. I know you can do it. "Strangers in the night, exchanging glances, strangers in the night, what were the chances. . ."

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    54. Anon, you're going to have a rough time of it until you understand what BRI means. Obviously, the examiners are not as incompetent as you think. Learn from them.

      (Obviously? Oops, sorry, didn't mean to confuse you. Just to clarify, there's no need to start pontificating about Section 103.)

      First of all, new attorneys seem not to appreciate the weight that is given to an allegation of what a term means to "one skilled in the art" without citation to any evidence. If you want to see how effective such a statement is, go down to the pond, stick your finger in the water, pull it out, then consider the hole your finger left in the water.

      You want to talk about html pages? Jeez. We haven't gotten past something as simple as a password.

      This abstract give and take about passwords does not seem to be getting anywhere. So let's suppose application X was filed in 2004 and claims the step of "receiving a password." Let's further suppose that the specification does not provide a limiting definition for the word in controversy, which is true about 99.99% of the time.

      Newton's Telecom. Dictionary (2001) defines "password" as "A word or string of characters recognized by automatic means permitting a user access to a place or to protected storage, files or input or output devices." Microsoft Computer Dictionary, Fifth Ed. (2002) defines a password as "The string of characters entered by a user to verify his or her identity to the network."

      That should be the end of the matter, since you've already admitted that a string of characters (e.g., 1234) is not entitled to patentable weight. In any event, you may now provide evidence tending to show that one of ordinary skill in the art in 2004 considered a "password" to be be limited to a "FUNCTIONAL data structure."

      20 bucks says you cannot provide such evidence. Funny thing is, even if you did, guess which of our competing definitions would win? The answer is found in the "B" part of "BRI."

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  5. "too many missed points to list"
    Well ... it seems to me that you need to make your points instead of dancing around them like you have done so here and in other instances.

    "I have not argued, indicated, or suggested that a DATA STRUCTURE resident in computer memory (as in Lowry) is non-functional descriptive material."
    Then what are you trying to argue? Because you do not want to explicitly state your points (classic examiner tactic), I have to atttempt to infer from your statement what you really mean to say. Don't worry, I have had lots of practice doing this because because most examiners don't like to explicitly state their analysis.

    That being said, computer data structures, BY THEIR VERY NATURE, reside on a computer (in some sort of storage, e.g., memory). I say COMPUTER data structures because that is what we are really talking about -- not data structures in the abstract. When the claim here talks about the time bar, one having ordinary skill in the art would recognize that this is a data structures that is necessarily resident in a compute hardware system.

    There is no requiement that a claim actually recite that the data structure is resident in computer memory -- as you seem to imply. Although the Federal Circuit observed that the data structures were resident in memory -- this was an observation about the nature of data structures (as would be recognized by those skilled in the art), not an explicit requirement of the claim.

    Now if your point is that the time bar is not a data structure, then please state the reasoning that allegedly supports that point.

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  6. lol software claims

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    1. They've been patentable before you were born and will be patentable after you die. Get used to it.

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  7. "I can hardly believe that."

    Go look at the BPAI decisions by TC, you will find TC 3700's reversal rate is much higher than TC 3600's.

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  8. "Go look at the BPAI decisions by TC, you will find TC 3700's reversal rate is much higher than TC 3600's."

    Not quite an apple to apple comparison. TC3600 is a hodge-podge of art units -- some of which are completely unreleated to business methods.

    Also, reversal rates merely describe the difference between what the APJs handling that TC considerable is patentable versus what the examiner's think is patentable.

    Anyway, to really know the difference, you have to practice in a variety of different TCs and discen the differences on a first hand basis. I've practiced extensively in just about every TC (save biotech and hardcore chemistry) and the examiners in TC3600 are hands down the worst.

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  9. I agree, not exactly apple to apple. I have practiced, and do practice, extensively in both TC 3600 and TC 3700. They're both sh!tty, no doubt. But from my personal experience, TC 3700 wins the prize for sh!ttiest TC. TC 3600 is running a very close second, but they're less sh!tty.

    TC 1700 is the best. Orders of magnitude better than either TC 3700 or TC 3600.

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