tag:blogger.com,1999:blog-6733236595417664807.post978179906474961185..comments2024-03-05T06:00:22.338-05:00Comments on All Things Pros: BPAI broadly interprets "hardware error" as "error related to hardware" rather than "error in hardware"Karen G. Hazzahhttp://www.blogger.com/profile/14864564225463528630noreply@blogger.comBlogger17125tag:blogger.com,1999:blog-6733236595417664807.post-54116019710502627182011-11-03T14:39:12.770-04:002011-11-03T14:39:12.770-04:00" then how would you express the distinction?..." then how would you express the distinction?"<br /><br />A hardware failure? <br /><br />"6 is like a food critic that has never attempted to cook a meal. "<br /><br />It wasn't me that made the comment in this thread. Nor was it me that made this construction. <br /><br />Although I actually know very well how to do it.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-63208263579853178462011-10-14T20:40:02.778-04:002011-10-14T20:40:02.778-04:00"Or is it inexpressible in your world?"
..."Or is it inexpressible in your world?"<br /><br />6 is like a food critic that has never attempted to cook a meal. He thinks everything could be make better but doesn't understand how to do it.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-89324332987782499622011-10-14T20:38:37.575-04:002011-10-14T20:38:37.575-04:00"This could also be a software error if poorl..."This could also be a software error if poorly coded but the fact remains it can be a result of limitations in hardware, hence hardware error."<br /><br />A flat-head screw is halfway into a board. A user takes out a philips-head screwdriver, and attempts to finish screwing in the screw ... he fails. You say it is a hardware error because it is a result in the limitations of the hardware. I say it is a user error because it is a result in the failure of the user. The hardware was perfectly functional -- it was only being used improperly.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-56449470977096810542011-10-14T17:08:18.724-04:002011-10-14T17:08:18.724-04:00As a former OS and hardware engineer, I can opine ...As a former OS and hardware engineer, I can opine as one of ordinary skill: "hardware error" means malfunctioning hardware.<br /><br />Without reading the reference, a memory-related "system freeze" is almost certainly a software error. The operating system's memory management system erred by allowing itself to run out of physical memory.<br /><br />Requiring a defintion would be absurd. "Hardware error" is a term of art. The law can't seriously be that an applicant has to define every term in the claims, no matter how well established -- that's just a crazy thought.<br /><br />The applicant should request reconsideration. In light of Leithem and Stepan, this is clearly a "new ground." The Board itself has held that a new claim construction is a "new ground." See my comments at http://www.uspto.gov/ip/boards/bpai/procedures/rules/rule_comment_nov2010_boundy.pdf at page 17.<br /><br />As part of the reconsideration, the applicant can adduce new dictionary definitions -- both the Supreme Court and Federal Circuit have held that a court (and therefore presumably the Board) can *always* take judicial notice of dictionary definitions. See my comment letter at <br /><br />http://www.uspto.gov/ip/boards/bpai/procedures/rules/rule_comment_nov2010_boundy2.pdfDavid Boundynoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-38529546832272039872011-10-14T15:59:09.477-04:002011-10-14T15:59:09.477-04:00>Applicants wanted to distinguish hardware
>...>Applicants wanted to distinguish hardware <br />>error from software error.<br /><br />Who thinks that changing the claim to "error in hardware" captures the distinction? I think "hardware error" MEANS "error in hardware" -- but I think a claim that reads "error in hardware" BETTER captures the distinction. <br /><br />To those that say "software runs on hardware, therefore even a software error is a hardware error at its core" -- then how would you express the distinction? Or is it inexpressible in your world?Karen G. Hazzahhttps://www.blogger.com/profile/14864564225463528630noreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-1956121213673304272011-10-14T15:56:05.733-04:002011-10-14T15:56:05.733-04:00>Running out of memory may very well be a
>...>Running out of memory may very well be a <br />>hardware error as a program may be coded to <br />>use a certain amount, but the system simply <br />>doesn't have enough (physical) resources. <br /><br />Disagree (strongly). This scenario is not hardware error because it is not an error *in the hardware*. The hardware is not malfunctioning. <br /><br />You suggest that it's a "software error" only if the program didn't *handle* the error properly. <br /><br />Disagree. An error code returned by malloc/OS-specific alloc/etc. is a "software error". Regardless of whether the program *handled* the error invisibly (so that user never knew), gracefully (error message), or not at all (system crash).Karen G. Hazzahhttps://www.blogger.com/profile/14864564225463528630noreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-28503021963560843342011-10-14T15:35:47.781-04:002011-10-14T15:35:47.781-04:00"If you think the BPAI's interpretation i..."If you think the BPAI's interpretation is OK, then explain to me what is a software error versus what is a hardware error. Do so while distinguishing a hardware error from a software error."<br /><br />2ez<br /><br />a software error is something like bugs, glitches, etc. It is not based on a limitation of the hardware - the hardware works as intended but improper instructions for the use thereof produce unintended results. Ex. hardware is perfectly capable of calculating 1+1 or 1+2, if you programmed 1+1 but wanted 1+2 that is a software error. Running out of memory may very well be a hardware error as a program may be coded to use a certain amount, but the system simply doesn't have enough (physical) resources. This could also be a software error if poorly coded but the fact remains it can be a result of limitations in hardware, hence hardware error.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-90242617648515897152011-10-14T15:10:53.637-04:002011-10-14T15:10:53.637-04:00"Herein lies the problem. Applicants wanted t..."Herein lies the problem. Applicants wanted to distinguish hardware error from software error."<br /><br />They wanted to but failed to? Meh, happens all the time. We can't just go around being easy on applicant's now can we?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-43597621862362916862011-10-14T12:21:02.890-04:002011-10-14T12:21:02.890-04:00"every software error is based on hardware.&q..."every software error is based on hardware."<br /><br />Herein lies the problem. Applicants wanted to distinguish hardware error from software error. However, the BPAI simply rewrites the term to just "error." In essense, they ignored claim limitations as a result of their interpretation -- which it why I believe the BPAI's interpretation is unreasonable.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-60205220551676055532011-10-14T01:59:25.666-04:002011-10-14T01:59:25.666-04:00Basically software is based hardware. Software cod...Basically software is based hardware. Software code stored in memory, processed using processor , etc. So, every software error is based on hardware. Simply, i put a code that will perform a division by 0, then i caould say that the code is right - but my processor can't do this operation, so this is not a software error.<br /><br />We need clear definition of terms "software error" and "hardware error".Dmitryhttps://www.blogger.com/profile/18179306011439322874noreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-5529332251024162011-10-13T15:19:08.928-04:002011-10-13T15:19:08.928-04:00"so the board's interpretation of this be..."so the board's interpretation of this being an 'error' is not so far out there."<br /><br />If you think the BPAI's interpretation is OK, then explain to me what is a software error versus what is a hardware error. Do so while distinguishing a hardware error from a software error.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-27541867213778089002011-10-13T12:55:21.743-04:002011-10-13T12:55:21.743-04:00note that the claim never said anything being brok...note that the claim never said anything being broken, if the system is out of memory, that is not a software problem per se but may be a physical limitation ("error") of the hardware, and so the board's interpretation of this being an "error" is not so far out thereAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-61196136149570127752011-10-13T08:17:34.457-04:002011-10-13T08:17:34.457-04:00"If i suddenly turn off scanner during work o..."If i suddenly turn off scanner during work of this software - it will be a 'hardware error'."<br /><br />No ... even the software crashes, then it is a software error. The hardware didn't fail (i.e., there wasn't an error in the hardware).<br /><br />If the hardware shut down because it was broken, then that is a hardware error.<br /><br />If there was a hardware error, and the software didn't know how to handle the scanner shutting down, then there is both a hardware error and a software error.<br /><br />You have to be able to distinguish a hardware error from a software error. Otherwise, nobody will know what you are talking about.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-4851949478520830772011-10-13T03:19:30.705-04:002011-10-13T03:19:30.705-04:00I think that there can several "hardware erro...I think that there can several "hardware error" types - in hardware, caused by hardware etc.<br />Also, there are a numerous types of "software error" - error is source code, infinite loops, etc. <br />Software products work with different types of hardware - memory, processor, scanner, etc. So, if my software don't work, it can be due to "software error" and/or "hardware error". For example, i have a software that use scanner to get image to the HDD. If i suddenly turn off scanner during work of this software - it will be a "hardware error".<br /><br />So i don't think that the Board got this wrong.Dmitryhttps://www.blogger.com/profile/18179306011439322874noreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-9582093370511921082011-10-12T13:04:36.668-04:002011-10-12T13:04:36.668-04:00Given the Examiner's position switch in the An...Given the Examiner's position switch in the Answer, I think the Applicant had a window of opportunity to submit a declaration from "one of ordinary skill" that undermined the Examiner's interpretation and bolstered the Applicant's. As I understand it, while the declaration would have been "new" evidence, the rules would still allow it to be submitted based on the justification that the Examiner had switched positions in the Answer and brought up a new interpretation.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-85200887110610271522011-10-11T08:43:14.817-04:002011-10-11T08:43:14.817-04:00A couple things. First, although I haven't re...A couple things. First, although I haven't read the opinion, my guess is that the new Federal Circuit cases about new grounds of rejection apply -- as I am highly doubtful that the Examiner presented this claim construction during examination.<br /><br />Second, I've seen these games played before by the BPAI and this game in particular. The interpretation of "hardware error" as "error related to hardware" essentially reads the term "hardware" out of the claim. I assume that the term "hardware error" was used to distinguish from "software error." However, any software error is, in some (even very minor) respects, related to hardware. As such, what the BPAI did was transform the term "hardware error" into "error."<br /><br />The practice tip out of this is to make sure to define, within the specification, any important term that you believe is open to interpretation. I know patent prosecutors don't like to define terms because they are limited (and therefore narrowed). However, broad claims/terms are worthless if the Examiner/BPAI plays the broadest (un)reasonable interpretation game and you don't get allowed claims.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-55538767625679969062011-10-10T23:49:56.196-04:002011-10-10T23:49:56.196-04:00I agree with you, Karen. The examiner's defin...I agree with you, Karen. The examiner's definition here is unreasonably broad.Anonymousnoreply@blogger.com