Thursday, February 14, 2013

Color Drawing Petitions, Part II

My last post (When are color drawings acceptable? ) discussed a few Decisions on Color Drawing Petitions. Today I'll discuss a few more.

13/143,209 - Color Drawings Petition DENIED: In Jul. 2011, the Applicant filed a Petition for Color Drawings in 13/143, 209 ("Electromagnetic Radiation Mapping System"). The Petition stated:
Applicant asserts that the color found in the attached Figures is significant to the understanding of the invention. The necessity for the Color Drawings is to clearly show the maps and graphs of the figures.
In Mar. 2012, before an Art Unit was assigned, the Petition was Decided by a Petitions Examiner in the Office of Petitions. The Petition was denied, and the decision summarily stated that "the Office has determined that color drawings and photographs are not necessary for an understanding of the invention."

13/031,293 - Color Drawings Petition DENIED: In Feb. 2011, the Applicant for 13/031,293 ("Method and System for Detecting Light") filed the application and a Color Drawings Petition.The petition included the following explanation:
Applicant asserts that the color found in the attached Figures is significant to the understanding of the invention. The necessity for the Color Drawings is to distinguish the different lines.

In Mar. 2012, after being assigned to an Art Unit (1735) but before being docketed to an Examiner, a Petitions Attorney in the Office of Petitions denied the petition. The Decision explained as follows:
The Office has determined that color drawings or photographs are not the only practical medium by which to disclose in a printed utility patent the subject matter to be patented. As such, color drawings or photographs are not necessary for an understanding of the invention sought to be patented.
13/200,784 - Color Drawings Petition GRANTED: In Aug. 2007, the Applicant filed application 13/200,784 ("Method And System For Dynamic, Three-dimensional Geological Interpretation And Modeling"). The specification described one of the drawings, FIG. 16, as "exhibit[ing] integrating stratigraphic erosional rules into the present geological interpretation system."

The Applicant filed a Petition for Color Drawings two years later, though before the application was docketed to an Examiner. The Petition stated:
Applicant believes the detail contained within the drawings cannot be fully captured using black and white drawings ... The present disclosure allows the analyzing and interpreting of geological information associated with a geologic region [and] creation of three-dimensional graphic displays [of the information]. Accordingly, the color figures support properly conveying the form of the graphical displays.
At Notice of Allowance, the Petition was undecided. After the issue fee was paid, the Petition was granted by a Quality Control Specialist in the Publications Branch. The Decision indicated that "the petition was accompanied by all of the required fees and drawings" and "the specification contains the appropriate language."

13/200,784 - Color Drawings Petition GRANTED: The Applicant for 13/200,784 ("Interferometric Modulation Devices Having Triangular Subpixels") filed the application and a Color Drawings Petition in Sep. 2011. The petition included the following explanation:
The color drawings are believed to be the most practical method (and may be the only practical method) of accurately illustrating the different subpixel colors, groupings of subpixel colors, etc. Some of these drawings (Figs. 11A through 11C) not only depict different subpixel colors and groupings of subpixel layers, but also depict different groupings of subpixel colors underneath an "M1" layer.
In Feb. 2012, after being assigned to an Art Unit (2873) but before being docketed to an Examiner, a Senior Petitions Attorney in the Office of Petitions granted the petition. The Decision did not comment on the Applicant's explanation, but noted that the petition was accompanied "by all of the required fees and drawings" and that the specification included "the appropriate language."

My two cents: I'm not surprised to see Applicants filing Color Petitions for graphs and charts. The use of color can certainly make complicated graphs and charts easier to understand. However, color isn't the only way to convey that information. For example, I've seen black and white charts that use different types of dashed lines for different data series, or Xs and Os for the data points, etc.

Maybe this was the reason why the Petition in the first and second xamples above were denied. Hard to say, as no explanation was given.

The third example would be a little harder to do in black and white, but you could still use different types of fill instead of color. I think the last example comes closest to "only practical medium" standard set out in the CFR. Yes, you could distinguish the subpixels with different type of fill. But this particular drawing has a lot of different regions close together, so that would probably be a mess. So, color makes sense.

However, as I read the Petition Decision on this subpixels application, the Petition wasn't really granted on the merits. That is, the Petition doesn't say "the Office has determined that color is necessary." It just says the Applicant checked all the right boxes.

These eight Color Drawing Petition Decisions (this post and the last) are such a tiny sample size that it's hard to draw any real conclusions about what it takes to get Color Drawings accepted. That said, I wonder if one factor is the branch of the PTO that looks at the Petition. A Petitions Examiner looked at 3 of these 8 Petitions, and 2 of those 3 were denied. And the single one granted by a Petitions Examiner was the drawing with the most persuasive reason for color. In contrast, all 5 of the Petitions processed by something other than the Petitions Office were granted with virtually no explanation.

5 comments:

  1. Ah ... the randomness of the USTPO.

    Perhaps they need a mixer "hello right hand, this is your left hand, perhaps you two should talk."

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  2. This is one of the reasons why the PTO makes finding petition decisions so difficult: the whole world would be able to see the completely arbirary and capricious manner in which they decide them.

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  3. Unless color drawings are truly essential, I think it's a dis-service to the client to include color drawings (or color photos or even B&W photos). When the application is published, often the distinguishing details are lost. I once reviewed an application with ten sheets of drawings that were essentially just solid black. I've done applications concerning color medical imaging; I converted them to line drawings with distinguishing line shapes and cross-hatching. I even labelled certain regions by color (red, green, blue, ....).

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  4. >I think it's a dis-service to the client to include
    >color drawings (or color photos or even B&W
    >photos). When the application is published,
    >often the distinguishing details are lost.

    Absolutely agree that the details are lost ... just look at the examples in my post, taken from the published apps!

    But can you elaborate on the "dis-service to the client" aspect? The color drawings are indeed a part of the file history, and are available to the Examiner. So I don't see how the client is harmed during examination by having ugly drawings in the published version.

    Now, maybe your point is instead that the client may be unhappy about the ugliness of the published version. You could handle that by warning the client.

    I definitely don't think you should file drawings as color simply because your client gave you drawings which happened to be in color. The practitioner should determine whether color is warranted and file color if Yes, or advise the client on the pros/cons and let the client make an informed decision.

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    Replies
    1. Oh, I didn't mean specifically during examination. Assuming the invention is useful and potentially of commercial value, you would hope that someone at some point would actually be interested in reading the published application or issued patent. Someone might come acrosss it and be interested in a license, for example. It would be great to have a published application or issued patent that is intelligible. Not sure how many people would go through the time and expsense of ordering copies of the color drawings (assuming they even knew they were available). The published application or issued patent could also serve as a prior-art reference against another application -- if it were intelligible.

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