tag:blogger.com,1999:blog-6733236595417664807.post7377854785488189788..comments2024-03-05T06:00:22.338-05:00Comments on All Things Pros: Board explains that when functional language is coupled with program structure, prior art structure be capable of performing the function without further programmingKaren G. Hazzahhttp://www.blogger.com/profile/14864564225463528630noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-6733236595417664807.post-76519195525450831102014-01-22T17:58:48.773-05:002014-01-22T17:58:48.773-05:00"The Examiner appears to interpret these limi..."The Examiner appears to interpret these limitations as encompassing computers that could be programmed to perform the recited functions."<br /><br />The crucial mistake made by the examiner. Instead, he should make the applicant take that position. And then, should the applicant take such a position, simply ask just what structure is implied by a computer that has a structure which has been programmed, in the past (note the implicit process limitation due to the having occured in the past thus now making the claim product by process), to perform such a function. <br /><br />The examiner should not have taken that position from the outset, but rather taken the position that the claim was purely structural. Thereby avodiing the functional nonsense all together until the applicant wishes to bring it in. At which point, note that they're attempting to distinguish their claim in terms of function not solely structure any longer and decline to interpret an apparatus claim thusly in the first place. Finally, put a caveat that even if the claim should be interpreted to involve a structure that must be able to perform a function without further modification, the proposed structure (make the applicant propose the "programmed to" implicit language) is distinguished in terms of a method step having been performed in the past, programmed, i.e. programming that has already happened to the structure. And then note that it is not clear just what structure would necessarily result from such programming. From there, take your pick, anticipation based on the structure before the office with the burden now shifted to the applicant to show his structure is different, or indefinitness, WD etc. etc. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-11154235728225619712014-01-22T17:34:09.492-05:002014-01-22T17:34:09.492-05:00"When the functional language is associated w..."When the functional language is associated with programming or some other structure required to perform the function, that programming or structure must be present in order to meet the claim limitation. Id. While in some circumstances generic structural disclosures may be sufficient to meet the requirements of a “controller,”"<br /><br />Mayhap and mayhap not. But in either event, you're going to need to draw out that structure for me. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-41684083503998680982014-01-22T17:31:43.723-05:002014-01-22T17:31:43.723-05:00"The Examiner’s analysis appears to be based ..."The Examiner’s analysis appears to be based upon a finding that Hanawa’s controller would have been capable of performing the claimed functions upon further modification, such as the installation of software (Ans. 17, 18)."<br /><br />It probably wasn't based on that, but the board probably read that into the examiner's position because they're not capable of understanding the actual position taken. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-29839151732908889322014-01-22T17:29:58.995-05:002014-01-22T17:29:58.995-05:00" just ran across a Decision dated within the..." just ran across a Decision dated within the last couple of days that still gets it wrong"<br /><br />You mean they did it right?????? For a change? lol please post us up this roast!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-66980530784342171902014-01-22T17:29:17.218-05:002014-01-22T17:29:17.218-05:00"however, the prior art apparatus as disclose..."however, the prior art apparatus as disclosed must be capable of performing the claimed function. "<br /><br />Not if you trick the applicant into stating for the record that they only meant to convey structure and specifically not function. <br /><br />he he he. <br /><br />These people can chase their tails around all they like. I will hunt them down and pin them to a position eventually and rend them limb from limb. It's either structure or function. Or both. they can take their pick of positions but I'm going to win either way. There are board decisions dealing with either or of the positions, but pinning them to one or the other on the record leaves them open to different methods of attack on the other. <br /><br /><br /><br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-37937047799449751772013-12-24T09:07:32.752-05:002013-12-24T09:07:32.752-05:00I just ran across a Decision dated within the last...I just ran across a Decision dated within the last couple of days that still gets it wrong.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-28534722573113665342013-12-19T21:56:26.931-05:002013-12-19T21:56:26.931-05:00What is sad is that there are still APJs that don&...What is sad is that there are still APJs that don't "get" this case law.Anonymousnoreply@blogger.com