Takeaway: In an anticipation rejection of a claim to an electrical circuit, the Examiner relied on a circuit diagram and asserted it to be equivalent to the diagram used in the reference. The Applicant appealed and argued that the Examiner's reliance on this figure was improper. The Board affirmed the anticipation rejection after finding that the Examiner's diagram was equivalent and disclosed the claim limitation at issue. (Ex parte Cogdill, PTAB 2010.)
Details:
Ex parte Cogdill
Appeal 2010005510; Appl. No. 10/655,964; Tech. Center 2800
Decide June 27, 2010
The application was directed to circuitry for memory modules. A representative claim on appeal read:
1. A circuit for a memory module address bus comprising:The Examiner rejected the originally filed claims as anticipated by Figure 3 of the Johnson reference (shown below).
a transmission line comprising a dampening impedance between a driver and a branch point of said transmission line; and
a parallel termination impedance having one end coupled to said transmission line between said series dampening impedance and said branch point,
wherein said parallel termination impedance is on the same side of any memory module as said driver;
said transmission line having branches from said branch point,
wherein ones of said branches are coupled to at least one memory module interface.
(Emphasis added.)
 |
| Johnson Fig. 3 |
In response, the Applicant amended to further describe the two claimed impedance element as "series" and "parallel" and also added the "same side" limitation. The Applicant argued that Fig. 3 of Johnson did not disclose the parallel impedance as claimed.
The Examiner maintained the rejection in a Final Office Action, and provided a "Fig. 3b" (shown below) which the Examiner described as an "equivalent circuit."
 |
| "Fig. 3B" |
The parallel termination impedance (326) is between the series dampening impedance and the branch point (star node) and the parallel termination impedance (326 - where 326 is parallel in reference to Vtt and star node) is on the same side (below memory modules 302-308) as the driver (312).The Applicant appealed. In the Appeal Brief, the Applicant acknowledged that the rejection was based on the Examiner's "Fig 3b," allegedly an equivalent circuit. But the Applicant's argument addressed only Johnson's Fig. 3.
More specifically, the Applicant argued that Johnson's Fig. 3 disclosed a termination impedance that was NOT located as claimed, since that diagram showed "a parallel terminal impedance 326 having one end coupled to a branch point, while the other end is coupled to the termination voltage" (emphasis in original). In contrast, the Applicant argued, the appealed claim required the parallel termination impedance to have "one end coupled to a transmission line between said series dampening impedance and said branch point, wherein said parallel termination impedance is on the same side of any memory module as said driver" (emphasis in original).
In the Answer, the Examiner maintained his position. He also noted that the rejection relied on the Fig. 3b equivalent circuit rather than Fig. 3 in Johnson.
The Applicant filed a Reply Brief. In the Reply Brief, the Applicant argued that the Fig. 3b used by the Examiner was not part of the Johnson reference, and was also missing lead-in transmission line 314. The Applicant also pointed to statements in Johnson about an advantage of the relative position of the series impedance and the terminating impedance's branch point. The Applicant then argued that the configuration in the Examiner's Fig. 3b would defeat Johnson's objective.
The Board affirmed the rejection, based on a finding that the Examiner's reliance on the "equivalent circuit" of Fig. 3b was appropriate.
We agree with the Ex that this depiction of Johnson's Fig 3 is electrically equivalent to Johnson's description. Appellant's argument that Fig. 3b is not part of Johnson's disclosure may be literally accurate but is not relevant. Fig 3b is merely another way of drawing the components of Johnson's invention, electrically connected identically to the manner shown in Johsnon Fig 3. Electrical circuit diagrams are intended to illustrate the manner in which electrical and electronic components are connected to one another. They are not necessarily intended as an exact, to-scale representaiton of the layout of the actual circuit.My two cents: I haven't run across this sort of "drawing equivalence" before. I have run across plenty of cases where the Examiner has annotated a drawing, but that's usually about further explaining what's already in the drawing, e.g., by adding the text "lever" to show that reference number 42 allegedly corresponds to the claimed lever. I've seen a few cases where the Examiner draws a box around something in the drawing in order to explain that, e.g., the components within the box allegedly correspond to claimed assembly 42.
Maybe what happened here with the "equivalent" drawing is more like an Examiner asserting that the "lever" in the reference corresponds to the "member" in the claim. It well-settled law that the reference doesn't have to use the same terminology as the claim in order to anticipate. Is redrawing the circuit diagram much different than substituting the term "lever" in the reference with the word "member"? That sounds weird, because Examiners don't literally introduce paragraph [0043B] with the substituted text in order to make this point. Instead, the Examiner writes something like
Johnson anticipates claim 1 as follows: a member (lever 42 in FIG. 1); ...
Was the Examiner's made up Fig. 3B just a way for him to better explain how he was reading Johnson's Fig. 3?
In the end, the Applicant here didn't hit the Examiner's findings/assertions head on, and would have been better served by clearly taking one of three positions. One, argue that, as a point of law, the Examiner is not allowed to introduce his own "equivalent" drawing. Two, explain why the Examiner's figure was not in fact equivalent. Three, argue why the equivalent circuit did not teach the claimed element. Not hitting the Examiner's position head on was a fatal mistake here.
Perhaps the Applicant's argument in the Reply Brief about Johnson's objective was meant to be an argument against equivalence. If so, the Applicant should have made that more clear, because an argument about objectives of the reference may go to non-obviousness, but is irrelevant to an anticipation rejection.
OK … I've got a few problems with this Decision.
ReplyDeleteFirst, when is the Examiner allowed to create prior art? Fig. 3B was a creation of the Examiner – not the prior art.
Additionally, when is equivalent structure capable of being anticipatory? Anticipation requires identical disclosure – not equivalent disclosure. If equivalent disclosure is not enough for 35 USC 103 (see MPEP 2144.06), then how could it be OK for 35 USC 102?
Finally, Fig. 3B is not the same as Fig. 3A (merely rewritten). In Fig. 3B, 324 and 326 are on the same side of the "star node," whereas in Fig. 3A, they are on opposite sides of the node. I'm not a EE, so I don't know the significance, but the Examiner has clearly taken liberties in redrawing the prior art and it was evident to someone not skilled in the art after about 30 seconds of looking.
The Examiner apparently wrote "the parallel termination impedance (326 - where 326 is parallel in reference to Vtt and star node) is on the same side (below memory modules 302-308) as the driver (312)." While that may apply to Fig. 3B, that same statement cannot be made about 3A. Hence, circuits are not the same.
>Finally, Fig. 3B is not the same as Fig. 3A (merely rewritten).
DeleteMaybe some circuit guys here can weigh in on this question of fact. Was the Examiner's circuit diagram equivalent?
And I don't mean just in function, but in *claimed* structure. For example, I'm not a EE, but I'm certain that if you draw a circuit that includes a load connected to a battery, it doesn't matter whether the load is depicted on the left of the battery or on the right. So if if the load-on-left circuit anticipates, then so does the load-on-right circuit. Correct?
Is the issue here that the Examiner introduced a drawing of an equivalent circuit and that's simply not allowed by law? Or is the issue that the Examiner's drawing was *not* equivalent?
Just to satisfy my own curiousity, here's another question for the EEs. Were the two drawings equivalent in some respects -- e.g. branch point position -- but not others -- e.g. same side of memory module?
The examiner's diagram is exactly equivalent. Nodes dont have "sides," they're just connections. And the PTAB is right that electrical diagrams are not meant to show arrangement. You might as well argue that two flow charts are not identical because one is drawn horizontally and the other is drawn vertically.
DeleteThe real issue here in my view is indefiniteness. You can't determine whether a component is in series or parallel without knowing where both ends of the element connect. The claim only recites where one end of the "parallel" component connects. Indefinite.
I'm also suspicious of "on the same side of any memory module as said driver." Maybe the spec makes this clear, but from the claim alone I would say its indefinite; what is the "same side" in the context of a circuit diagram? What is the "other side"? No idea. Again, it's like arguing over "sides" of a flow chart.
To all the commenters below, please take a circuits class.
-EE examiner
The real issue here in my view is indefiniteness.
DeleteExcept that the Examiner here and the PTAB (apparently) understood what was going on -- nothing like consistency as the USPTO.
To all the commenters below, please take a circuits class.
To all the Examiners/APJs ... please provide better explanations. Your decision is supposedly capable of being reviewed by the Federal Circuit – technology generalists at best. Far too many rejections/opinions out of the USPTO rely upon unstated assumptions. Perhaps these assumptions are correct … oftentimes they are not. However, your analysis cannot be properly evaluated (by applicant or a Federal Circuit judge) when the written record does not reflect all of your findings.
If I'm on the Federal Circuit and I'm told that in Fig. 3B, 324 and 326 are on the same side of the "star node," whereas in Fig. 3A, they are on opposite sides of the node, I'm going to say that these are not the same circuits. The USPTO's solicitor may argue that nodes don't have sides – they are just connections so it doesn't matter. However, I'm going to ask the solicitor where is that stated in the written record and where is the USPTO's evidence to support that argument. I can see the difference with my eyes so when the solicitor comes back to me with the shrug of the shoulder, this case is pretty much closed.
For all my circuit ignorance you may be correct. However, I need evidence that these circuits are identical – this was not supplied.
As an aside and intuitively, a pair of circuits arranged in parallel are different from the same pair of elements arranged in series. As such, the arrangement of the elements within a circuit appears to have some importance – even if the elements are the same.
"Is the issue here that the Examiner introduced a drawing of an equivalent circuit and that's simply not allowed by law?"
DeleteKaren, ask yourself: Is Figure 3(b), concocted by the examiner after reading the application, and after the applicant amended the claim specifically to define around Johnson et al., evidence? Is Figure 3(b) prior art? And if so, please explain under what paragraph of section 102 Figure 3(b) and how it qualifies as prior art.
"To all the commenters below, please take a circuits class."
DeleteAnd to all of the examiners above, please take an evidence class. And then take a remedial, and I mean back to square one, patent-law-for-dummies, class in section 102.
Figure 3(b) is not evidence. It is not prior art under any paragraph of section 102. It is the examiner's hindsight reconstruction of an "equivalent" circuit of what is disclosed by Johnson et al. Furthermore, as has been pointed out to you by Just Saying, and by me, numerous times, the factual question to be answered in a case of anticipation is: does the prior art describe the identical invention in as much detail as recited in the claim. The question is NOT: can the examiner, with full hindsight knowledge of applicant's disclosure and applicant's amended claim language, pull out of his/her a$$ an "equivalent" of the prior art reference to meet the claim.
"And the PTAB is right that electrical diagrams are not meant to show arrangement." But APJ Hoff is dead wrong that Figure 3(b)'s magical appearance, not in the Johnson et al. reference, but in the final rejection in response to applicant's amendment, is irrelevant. It is highly relevant. It is so relevant that it is dispositive.
Figure 3(b) is not evidence. It is not prior art under any paragraph of section 102. Figure 3(b) is complete and utter bullsh!t.
This is why it is so important that you argue your case as a lawyer, and not some rube patent prosecutor. The attorney argued, "Figure 3(b) does not appear in Johnson" and APJ Hoff, in his infinite ignorance, said, "That's irrelevant."
If the attorney had argued, "Figure 3(b) is not evidence, and it is not prior art under any paragraph of section 102. And if the examiner maintains the rejection and/or the Board affirms the rejection, then they had better d#mn well explain how Figure 3(b) is prior art under section 102" then this POS rejection/decision probably would have gone away.
The lifer APJ's, and they are still about 1/2 the PTAB, are exceedingly ignorant of concepts like burden, evidence, administrative law, etc. You can't just make arguments like "Figure 3(b) is not in Johnson et al." and expect them to go, "Hm, you know, I think this guy's trying to argue that Figure 3(b) is not prior art. Let me help him out and rephrase the argument for him." You're not going to get that level of service from affirm-at-all-cost-lifer-APJ's.
So, a rejection for anticipation may fail due to impermissible hindsight. Please provide some (any) kind of support for that in Federal Circuit/Supreme Court law.
Delete"So, a rejection for anticipation may fail due to impermissible hindsight. Please provide some (any) kind of support for that in Federal Circuit/Supreme Court law."
DeleteI'm gonna give you the benefit of the doubt and assume that you're being deliberately obtuse, because nobody could actually be that stupid.
I'll ask again: Under what paragraph of section 102 is the hindsight-concocted-bullshit-Figure 3(b) prior art?
Here's section 102 for your edification:
A person shall be entitled to a patent unless —
(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or
(c) he has abandoned the invention, or
(d) the invention was first patented or caused to be patented, or was the subject of an inventor’s certificate, by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application for patent or inventor’s certificate filed more than twelve months before the filing of the application in the United States, or
(e) the invention was described in — (1) an application for patent, published under section 122(b), by another filed in the United States before the invention by the applicant for patent or (2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, except that an international application filed under the treaty defined in section 351(a) shall have the effects for the purposes of this subsection of an application filed in the United States only if the international application designated the United States and was published under Article 21(2) of such treaty in the English language; or
(f) he did not himself invent the subject matter sought to be patented, or
(g)(1) during the course of an interference conducted under section 135 or section 291 , another inventor involved therein establishes, to the extent permitted in section 104, that before such person’s invention thereof the invention was made by such other inventor and not abandoned, suppressed, or concealed, or (2) before such person’s invention thereof, the invention was made in this country by another inventor who had not abandoned, suppressed, or concealed it. In determining priority of invention under this subsection, there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.
Now please explain how Figure 3(b) qualifies as prior art under any paragraph of that, f#cktard.
"To all the Examiners/APJs ... please provide better explanations."
DeletePoint well taken, it's an agency problem and we all know that. But in this case I think the PTAB did a fine job explaining that the examiner's diagram was the same as the prior art diagram. As far as Federal Circuit review, I'm no attorney but I'm pretty sure the PTO gets deference on highly technical matters like whether two circuits are the same. If you just stand up and say nuh-uh I don't see how that's going to be a winner. Apparently HP didn't either.
You're right about series/parallel referring to different connective arrangements with different results btw. I should have said circuit diagrams don't establish positioning. My comment was indefinite :P
"And to all of the examiners above, please take an evidence class."
Again, not an attorney, but can you explain why it's not evidence. All of the info in the examiner's figure is taken from the prior art. Can't an excerpt be evidence?
Or how about this: http://en.wikipedia.org/wiki/Demonstrative_evidence
I know, it's wikipedia, not reliable blah blah, but it says a graph can be evidence if it "fairly and accurately" represents a real object. Is this article wrong? If not, well the PTAB said the examiner's diagram was a fair and accurate representation of the prior art. I'm not qualified here so please tell me if that's wrong.
"as has been pointed out to you numerous times..."
I don't know who you are. I've never posted on this blog before my previous post.
-EE examiner
PS Sorry my first comment was a bit flippant but the comments about the APJ were just way over the top. Some of you guys are unnecessarily hostile.
"I'll ask again: Under what paragraph of section 102 is the hindsight-concocted-bullshit-Figure 3(b) prior art?"
DeleteHuh?
I'll restate.
Please provide some (any) kind of support in Federal Circuit/Supreme Court law for the superstition that a rejection for anticipation may fail due to impermissible hindsight. As in, one case citation. One.
"As far as Federal Circuit review, I'm no attorney but I'm pretty sure the PTO gets deference on highly technical matters like whether two circuits are the same."
DeleteYour insistence on missing the point is admirable (I'm sure that's well covered in the Patent Training Academy, and drilled into the heads of the examining corps over and over and over and over ad infinitum). Whether Figure 3(b) is "equivalent" to Figure 3 of Johnson et al. (the figure that actually does appear in the Johnson et al. patent) or to the claimed invention is not the issue in an anticipation rejection. The factual question to be answered in an anticipation rejection is: does the prior art describe the invention in as much detail as recited in the claim?
BTW, the standard of review for PTO factual determinations by the Fed. Cir. is substantial evidence, a fairly deferential standard. In essence, the standard is: the PTO's findings of fact will be affirmed if the evidence relied upon is such that a reasonable mind could accept it as adequate to support a conclusion. That other conclusions were also reasonable is not sufficient to overturn the PTO's findings. On legal determinations, the standard of review is de novo (i.e. the PTAB's legal determinations/conclusions get no deference).
"If you just stand up and say nuh-uh I don't see how that's going to be a winner."
Could not agree more. Even discussing the equivalancy or non-equivalency of Figure 3(b) was a complete and total waste of time. Epic fail as the kids would say. The argument that should have been made is: Figure 3(b) is not prior art under any paragraph of section 102 and may not be used as a basis for rejecting the claim.
"Apparently HP didn't either."
True dat. They suck. They are using the absolute lowest cost providers that they can get to agree to their cut rate fees. I worked at a firm that drafted apps for them for $3,500. They are getting exactly what they are paying for. Unfortunately, so are the rest of us.
"Again, not an attorney, but can you explain why it's not evidence."
I have. Several times now. Section 102 describes the type of evidence that can be used to establish that a claimed invention lacks novelty. I have asked several times for somebody, anybody, to explain under what paragraph of section 102 Figure 3(b) would qualify, and how. No answers yet.
"All of the info in the examiner's figure is taken from the prior art. Can't an excerpt be evidence?"
How is Figure 3(b) an "excerpt" of the Johnson et al. patent? An excerpt is a passage or segment taken from a longer work. Figure 3(b) is neither a passage or a segment of the Johnson et al. patent.
If Figure 3 of Johnson et al. (the figure that was actually in the patent) and its corresponding description described the identical invention in as much detail as recited in the claim, then the examiner should have explained why. If it didn't, but the examiner felt there was sufficient evidence to establish facts that would support a conclusion that the claim was obvious, then the examiner should have explained that. The examiner did neither. Instead, the examiner made up Figure 3(b), and then alleged that it was "equivalent" to actual Figure 3. That's not anticipation for all of the reasons I've pointed out.
Your reliance on Wikipedia is as worthless as you seem to recognize that it is.
"...the comments about the APJ were just way over the top."
Unfortunately, no they were not. They were entirely appropriate. He demonstrated a shocking ignorance of the most basic aspects of the law. Go read 35 USC 6(a).
"Please provide some (any) kind of support in Federal Circuit/Supreme Court law for the superstition [sic] that a rejection for anticipation may fail due to impermissible hindsight. As in, one case citation. One."
DeleteClassic examiner tactic. Completely misstate/mischaracterize/misrepresent the argument made, and then respond to that misstatement/mischaracterization/misrepresentation.
I never argued that "a rejection for anticipation may fail due to impermissible hindsight." I used the word "hindsight" to describe the way in which the examiner generated Figure 3(b) and you come running in alleging that I argued that "a rejection for anticipation may fail due to impermissible hindsight."
I didn't. I argued that the rejection fails because Figure 3(b) is not evidence and is not prior art under any paragraph of section 102. And then I asked you to explain which paragraph of section 102 Figure 3(b) qualifies under, and to explain why. And you have not. And you can not.
I would say "nice try" but it wasn't. It was the usual horsesh!t we see from examiners every day.
"Please provide some (any) kind of support in Federal Circuit/Supreme Court law for the superstition that a rejection for anticipation may fail due to impermissible hindsight. As in, one case citation. One."
Delete"Classic examiner tactic. [blah, blah, blah, yada yada yada. You got me. I can't produce a single case.]"
Here you go, fucktard:
Delete"We did not intend our Petering opinion or decision to become a precedent for the mechanistic dissection and recombination of the components of the specific illustrative compounds in every chemical reference containing them, to create hindsight anticipations with the guidance of an applicant's disclosures, on the theory that such reconstructed disclosures describe specific compounds within the meaning of section 102."
343 F.2d 965, 974 (CCPA 1965).
Anytime you want to answer my questions, feel free. But you know you can't.
"Here you go, fucktard:"
DeleteMy, what a gracious person.
Now be a dear and cite the case (just one) that supports the superstition that a rejection for anticipation may fail due to impermissible hindsight.
" I'm not a EE, so I don't know the significance, "
DeleteIf you were an EE you'd know there is no significance. Which the applicant here also knew, but wasn't arguing about.
"My, what a gracious person."
DeleteThanks. I wish I could say the same of you, but unfortunately you're just another trolling examinertard adding nothing to the conversation and trying to play silly semantic games to appear clever.
Now be a dear and answer just one of my questions. Any one.
You think it's "silly semantic games" to challenge an unfounded assertion by asking for some kind of support in the case law? Regardless, I'll try to help you out.
Delete"Now be a dear and answer just one of my questions. Any one."
When a mommy and a daddy love each other very much, the daddy plants a seed in the mommy's tummy. Then they go to the hospital and a doctor takes the baby out of the mommy's tummy.
Ponderous. F#cking ponderous.
Delete"Appellant's argument that Fig. 3b is not part of Johnson's disclosure may be literally accurate, but is not relevant."
ReplyDeleteThis APJ should be fired. Immediately. And that saddens me to say because I know him personally and thought he had at least half a brain in his head. Sorry to find out that he does not. Even sorrier to see how incredibly ignorant of the law he actually is.
A number of APJs seem to be ignorant of the law and, even worse, make up law as they please.
ReplyDeleteThat's why you have to educate them. When the applicant's attorney got this sh!tty decision back and saw that "Well, yeah, Figure 3(b) was totally made up by the examiner, but so what?" portion of the decision he should have requested rehearing and "state[d] with particularity the points believed to have been misapprehended or overlooked by the Board." Those points being, of course, THE LAW.
ReplyDeleteSad.
"Ignoring the Examiner's findings was a fatal error here."
ReplyDeleteThere were no "findings." The examiner made it (Fig. 3(b)) up. Pulled it straight out of his/her a$$.
Anticipation is a question of fact. The standard of anticipation is identity of invention, i.e. the prior art reference describes the claimed invnetion in as much detail as is recited in the claim. The burden of proof on the examiner for establishing unpatentability is a preponderance.
The only evidence to reject the claim was the Johnson et al. reference. How the examiner, or one of ordinary skill in the art, or even Einstein himself, could redraw Fig. 3 of Johnson et al. into an "equivalent" circuit is not evidence. It's totally made up bullsh!t.
Thanks HP for getting a sh!tty, egregiously wrong BPAI decision, and then just abandoning the case so that idiot examiners and APJ's think that rejections like this POS travesty are proper. Thank you for making it just that much harder for those of us who actually know what we're doing.
You suck, HP.
There is so much that went wrong in this prosecution (just like every prosecution that Karen manages to dredge up) that it literally is not worth my time to sort through it all.
ReplyDelete"For all my circuit ignorance you may be correct. However, I need evidence that these circuits are identical – this was not supplied."
ReplyDeleteNo, what you need, and what all prosecutors and the office needs, is to stop being a tar d and to stop letting technically incompetent tar ds prosecute applications. For instance, this application is simple as f to prosecute and yet the attorney did his client a sever disservice by taking it on.
No, what you need, and what all prosecutors and the office needs, is to stop being a tar d and to stop letting technically incompetent tar ds prosecute applications. For instance, this application is simple as f to prosecute and yet the attorney did his client a sever disservice by taking it on.
DeleteFirst, let's welcome back 6 ... the 13 year old masquerading as an examiner. Do you get your jollies when you write "tard"? Do you laugh maniacally when you type it out? Does it make you flush?
Second, I admitted my ignorance regarding how to interpret circuits, and I would never prosecute an application that required extensive knowledge of circuits. As such your comments as to what I "need" is off-base.
BTW … since this case was so simple, I'm sure you'll be able to give us a quick EE lesson as to why the circuits are equivalent. I'll be waiting … but I won't be holding my breath.
Also, if you thought this case was "simple as f to prosecute," why don't you explain us how you would have done so. Again, I'll be waiting but I won't be holding my breath.
I'm normally not on the side of any examiner, but on this one the Office was correct. All the posters here that are railing against the examiner are clearly not competent in EE, so here is an analogy.
ReplyDeleteThe claims recite: 1 + 2 = 3
The examiner found art that taught 2 + 1 = 3, and then went on the explain that 1 + 2 = 2 + 1 = 3
>explain that 1 + 2 = 2 + 1 = 3
DeleteI'd say the Examiner *asserted* that 1+2=2+1=3. The Examiner didn't give much of an explanation as to why the diagrams were equivalent, other than to say "connections/nodes are the same". Maybe that's enough of an explanation given the simplicity of the circuit -- and the fact that the Applicant didn't really challenge the equivalence.
Lifer APJ's regard bald face conclusory assertions by examiners to be "findings of fact."
Delete"...but on this one the Office was correct."
DeleteWrong.
"The examiner found art that taught 2 + 1 = 3, and then went on the explain that 1 + 2 = 2 + 1 = 3"
Wrong again.
If Fig. 3 of Johnson et al. (the drawing that was actually in the reference) disclosed the identical invention in as much detail as was recited in the amended claim, then the examiner could have explained how Johnson et al. still anticipated the claim, without resorting to making sh!t up (i.e. Fig. 3(b)).
The circuits are functionally equivalent. That really doesn't go far enough though. The structural differences are so small and trivial, but yes there are differences. Inductive coupling will be different depending on how parallel termination impedance is arranged. It's not going to effect how the system operates, but it would be different. Examiner should have saved everyone the headache and done an easy 103. Right result for the wrong reasons.
ReplyDelete"Examiner should have saved everyone the headache and done an easy 103."
ReplyDeleteAnd the articulated reasoning with rational underpinning for modifying Figure 3 of Johnson et al. into Figure 3(b) would have been...?