• Phonetic Symbol System Not Patent Eligible

    Phonetic Symbol System Not Patent Eligible

    In re Wang (Fed. Cir. 2018) (nonprecedential)

    In a non-precedential decision, the Federal Circuit has rejected George Wang’s pro se appeal — affirming the PTAB judgment that Wang’s claimed phonetic symbol system lacks eligibility under Section 101.

    The baseline here is that the written english language is only quasi-phonetic.  Every rule of spelling or pronunciation has layers of exceptions.  Linguists have developed a phonetic pronunciation guides, but those use quirky non-english letters.  Wang’s invention here offers a one-to-one system tying each vowel and consonant sound to a single phonetic symbol, and uses only English letters for the phonetic symbols. Table 1 below comes from Wang’s patent application and offers an example embodiment of his system:

    The claim (slightly edited for clarity):

    A phonetic symbol system comprising:

    a plurality of phonetic symbols,

    wherein each of said phonetic symbols is defined by one (or more than one) letter of English alphabet, the case or the style of said letter does not affect the sounds of said phonetic symbols,

    [said phonetic symbols include] vowel phonetic symbols and consonant phonetic symbols . . . ,

    each vowel [sound] is distinctively represented by one of said vowel phonetic symbols, and each consonant [sound] is distinctively represented by one of said consonant phonetic symbols.

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  • Helping Understand The Internet Phenomenon: Interview With New ISOC CEO Andrew Sullivan

    Starting 1 September, Andrew Sullivan takes on the role as CEO and President of the Internet Society. Selected by the ISOC Board of Trustees, Sullivan looks like an apt bridge builder between the world of internet technology and the world of policymakers. Equipped with experience in developing technology at Dyn, a DNS company recently acquired by Oracle, and a tenure as Chair of the Internet Architecture Board, a peer body of the standards body Internet Engineering Task Force, Sullivan has a degree in philosophy and is no stranger to public sphere theorist Juergen Habermas. After the heavy attack on Dyns DNS network, via low-cost cameras – the so-called Mirai attack – the Canadian warned against knee-jerk attempts for regulation, but acknowledged that technological solutions might need some assistance from policymakers. Answering questions with journalist Monika Ermert in writing from the meeting of the ISOC Board of Trustees in Panama, Sullivan diplomatically underlined that collaboration is key for everything on the internet. In his new position, Sullivan follows Kathy Brown, a former AT&T manager.

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  • 検査

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    検査

    (CHECK)
    $$ Having verified the signature, the server can then check the customers claim for a refund using the data contained in the receipt. / サインを確認すると、サーバは、受取りに含まれるデータを使用して払戻しに対する顧客の請求を検査することができる。(USP6996722)

    $$ If a CD carries a program, that program could be used to check that it was loaded from a bona fide, original CD. / CDがプログラムを担うなら、そのプログラムは真正オリジナルCDからロードされたものであることの検査をするのに使用できる。(USP6560176)

    $$ The HDLC frame ends with a cyclic redundancy check CRC. / HDLCフレームの最後には、巡回冗長検査CRCがおかれている。(USP6278696)

    $$ The error correction data can be cyclic redundancy check data (CRC). / エラー訂正データはサイクリック冗長性検査データ(CRC)でよい。(USP6044086)

    $$ After copying the file, the backup application can use the operating system to check if any modifications were made during the copy operation. / ファイルのコピー後に、このバックアップアプリケーションは何らかの変更 がコピー作業中に発生したかどうかを検査するためにオペレーティングシステ ムを使用することができる。(USP5675725)

    (EXAMINE)
    $$ The maximum amount of blurring may be found empirically by examining several partial images with blurred areas. / ぼやけの最大量は、ぼやけた領域を有するいくつかの部分的な画像を検査することによって、経験的に見出されることができる。(USP7029172)

    $$ This is followed by (FIGS. 11A-11D) examination of the phoneme list created by the process illustrated in FIG. 10 element by element. / 次に要素毎に図10に示したプロセスで作られたフォニームリストの検査が続く(図11A-11D)。(USP6208356)

    $$ The value of Yn on the digital line 10 is examined by a data slicer 22, which then determines the ideal sample value. / デジタル線10上のYnはデータスライサ22によって検査され、ここで 理想サンプル値が検出される。(USP6114879)

    (INSPECT)
    $$ This arrangement is particularly useful on pipeline inspection vehicles, and is suitable for both transmission and reception of ultrasound. / この配置は特にパイプライン検査車両上で有益であり、かつ超音波の移送および受領の双方のために好適である。(USP7024935)

    $$ Many systems which utilise X-rays have been developed for the inspection of containers such as baggage and parcels. / 手荷物や小包のような容器を検査するために、X線を利用した多数のシステムが開発されている。(USP6122344)

    $$ This invention relates to an optical apparatus for use as an endoscope or borescope for inspection of inaccessible objects. / 本発明はアクセスできない対象物を検査するために内視鏡(endoscope)又はボアスコープ(borescope)として用いるための光学装置に関する。(USP5418645)

    (TEST)
    $$ FIG. 14 is a simplified schematic showing a meter 900 interfacing with a test strip. / 図14は、検査ストリップとインターフェイスする測定器900を示す簡易模式図である。(USP7653492)

    $$ After 5 hours with occasional stirring, ninhydrin tests showed that the coupling was complete. / 時々攪拌しながら5時間後、ニンヒドリン検査は、結合が完了したことを示した。(USP6797699)

    $$ Box G tests whether the "foot on" condition exists (using the output from sensor 19a or an additional switch). / ステップGでは、(センサ19a又は別のスイッチからの出力を用いて)「踏み込み」状態が存在するか検査される。(USP5738609)

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  • Fairchild’s appeal against Power Integrations. Infringement affirmed; damages vacated

    The outcome: infringement affirmed, damages under the “entire market value rule” vacated:


    We affirm the district court’s judgments of infringement.
    We conclude that the entire market value rule
    cannot be used here to calculate damages. We vacate the
    damages award and remand for further proceedings.

    Fairchild tried to attack the jury verdict on infringement:


    Fairchild argues that the jury verdict is not supported
    by substantial evidence because none of the Fairchild
    products has a “fixed switching frequency” according to
    the language of the claims or a “non-varying frequency”
    under the district court’s claim construction, because even
    during “fixed” frequency mode, the products operate with
    5% to 15% variance in frequency. This variance is due to
    operating conditions, such as temperature and input
    voltage. The question is whether this variability renders
    the products non-infringing.

    The CAFC determined that “fixed frequency” did not mean
    absolutely fixed at one value:


    Fairchild’s argument is unpersuasive. The district
    court’s construction of “fixed switching frequency” as
    “non-varying” does not exclude the possibility of natural
    variation because doing so would impermissibly render
    the claims inoperable. See Ecolabs, Inc. v. FMC Corp., 569
    F.3d 1335, 1345 (Fed. Cir. 2009) (finding that where claim
    language permits an operable construction, the inoperable
    construction is wrong).5 Here, the parties offered expert
    testimony to address the knowledge of persons of ordinary
    skill in the art. The expert testimony demonstrated that
    no real-world power supply controllers could operate with
    an absolutely fixed, or non-varying, frequency. Indeed,
    Fairchild seems to concede that there is always some
    variation in frequency due to operating conditions. Moreover,
    technical marketing documents from products sold
    by Fairchild, Power Integrations, and third parties label
    these controllers as “fixed frequency” products despite the
    undisputed, minor variations in frequency. Since the term
    “fixed” is not unambiguously defined in the claims, the
    fact that power supply controllers cannot operate without
    any variation supports that the plain and ordinary meaning
    of “fixed” encompasses minor environmental variations.

    Thus, the jury could have properly concluded that the
    terms “fixed frequency” and “non-varying” left open the
    possibility for minor frequency variations due to operating
    conditions. A reasonable jury could have found that the
    accused products have a “fixed” or “non-varying” frequency
    despite slight variance due to operating conditions.

    Of issue waiver:

    Power Integrations argues that because Fairchild did
    not seek additional claim construction at the district court
    and chose to litigate this issue as a factual dispute about
    infringement, Fairchild has waived its “per second” claim
    construction argument. Fairchild responds that it did not
    waive its claim construction argument because the claim
    construction it proposes now is the same as the claim
    construction it proposed during the Markman hearing,
    which did not contain the “per second” limitation.
    We have held that a party does not waive a claim construction
    argument by failing to object during trial when
    the construction proposed on appeal is the same as the
    construction proposed in a Markman hearing. O2 Micro
    Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351,
    1359 (Fed. Cir. 2008); see also D’Agostino v. Mastercard
    Int’l Inc., 844 F.3d 945, 950 (Fed. Cir. 2016); In re Pabst
    Licensing Dig. Camera Patent Litig., 778 F.3d 1255, 1266
    (Fed. Cir. 2015). “When the claim construction is resolved
    pre-trial, and the patentee presented the same position in
    the Markman proceeding as is now pressed, a further
    objection to the district court’s pre-trial ruling may indeed
    have been not only futile, but unnecessary.” Cardiac
    Pacemakers, Inc. v. St. Jude Med., Inc., 381 F.3d 1371,
    1381 (Fed. Cir. 2004). However, this rule only applies
    when “issues were fully litigated and decided at the
    Markman stage of the litigation.” O2 Micro, 521 F.3d at
    1359.

    The problem for Fairchild is that the issue of the appropriate
    time interval over which to measure frequency
    was not fully litigated—or even raised as an issue in
    dispute—at the Markman stage of this proceeding. During
    the Markman proceedings, there was no dispute about
    the time interval. Neither Fairchild nor Power Integrations
    proposed a construction with the “per second” limitation.
    The district court added this limitation to the
    construction on its own without providing a clear explanation.
    Because the district court had not specifically addressed
    this issue in its claim construction order, in order
    to preserve an objection to the district court’s claim construction,
    Fairchild was required to raise the issue before
    submission to the jury. Yet even when this dispute arose
    at trial, Fairchild did not ask the district court to modify
    or clarify its claim construction with regard to “per second,”
    nor did it object to the jury instructions. Instead,
    Fairchild waited until this appeal to argue that the district
    court’s claim construction was erroneous.
    It is well-settled that a party cannot reserve a new
    claim-construction argument for the post-trial motion
    stage of litigation. Lazare Kaplan Int’l, Inc. v. Photoscribe
    Techs., Inc., 628 F.3d 1359, 1376 (Fed. Cir. 2010);
    Broadcom Corp. v. Qualcomm Inc., 543 F.3d 683, 694
    (Fed. Cir. 2008); Hewlett-Packard Co. v. Mustek Sys., Inc.,
    340 F.3d 1314, 1320 (Fed. Cir. 2003).

    (…)

    By failing either to request
    that the district court modify or clarify its claim construction
    earlier in the litigation proceedings or to object to the
    jury instructions, Fairchild has waived this new claimconstruction
    argument.

    Because Fairchild has waived its “per second” claim construction
    objection, we only review whether substantial
    evidence supported the jury verdict under the court’s
    construction. See Lazare, 628 F.3d at 1376; HewlettPackard,
    340 F.3d at 1320.

    **As to the ‘908 patent:

    Prosecution-history estoppel limits the application of
    the doctrine of equivalents. If a patentee surrenders
    certain subject matter during prosecution, the patentee is
    then barred from using the doctrine of equivalents to
    recover for infringement based on that same subject
    matter. Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki
    Co., 535 U.S. 722, 733–34 (2002). Prosecution-history
    estoppel can occur either when the patentee makes a
    narrowing amendment to the claim or surrenders claim
    scope through argument to the patent examiner. Conoco,
    Inc. v. Energy & Envtl. Int’l, L.C., 460 F.3d 1349, 1363
    (Fed. Cir. 2006). Here there was no claim amendment, so
    Fairchild relies on argument-based estoppel. To invoke
    argument-based estoppel, the prosecution history must
    evince a “clear and unmistakable surrender of the subject
    matter.” Id. at 1364. The application of prosecutionhistory
    estoppel is a question of law that we review de
    novo. Intendis GMBH v. Glenmark Pharm. Inc., USA, 822
    F.3d 1355, 1365 (Fed. Cir. 2016)

    Of damages:


    In its JMOL motion, Fairchild argued that the evidence
    presented by Power Integrations was insufficient as
    a matter of law to invoke the entire market value rule,
    pointing to our decision in LaserDynamics. The district
    court noted that three prior cases relied on evidence that
    “LaserDynamics . . . arguably would find inadequate to
    support EMVR,” and that the evidence presented by
    Power Integrations was comparable to the evidence in the
    prior cases. J.A. 26; see Bose Corp. v. JBL, Inc., 274 F.3d
    1354, 1361 (Fed. Cir. 2001); Tec Air, Inc. v. Denso Mfg.
    Mich. Inc., 192 F.3d 1353, 1362 (Fed. Cir. 1999); Fonar
    Corp. v. Gen. Elec. Co., 107 F.3d 1543, 1552–53 (Fed. Cir.
    1997).

    Despite the district court’s suggestion to the contrary,
    there is no conflict between LaserDynamics and these
    earlier cases, and subsequent cases have relied on LaserDynamics.
    See VirnetX, 767 F.3d at 1326–27; Commonwealth
    Sci. & Indus. Research Org. v. Cisco Sys., Inc.,
    809 F.3d 1295, 1301–02 (Fed. Cir. 2015); Versata Software,
    Inc. v. SAP Am., Inc., 717 F.3d 1255, 1268 (Fed. Cir.
    2013). L

    (…)

    As LaserDynamics, Versata, and VirnetX held, the entire
    market value rule is appropriate only when the
    patented feature is the sole driver of customer demand or
    substantially creates the value of the component parts.
    LaserDynamics, 694 F.3d at 67; Versata, 717 F.3d at
    1268; VirnetX, 767 F.3d at 1326. The burden of proof in
    this respect is on the patent holder. LaserDynamics, 694
    F.3d at 67. The question is whether the accused product,
    compared to other products in the same field, has features
    that would cause consumers to purchase the products
    beyond the patented feature, i.e., valuable features.
    Where the accused infringer presents evidence that its
    accused product has other valuable features beyond the
    patented feature, the patent holder must establish that
    these features are not relevant to consumer choice. A
    patentee may do this by showing that the patented feature
    “alone motivates customers to purchase [the infringing
    product]” in the first place. See id. at 69. But when the
    product contains multiple valuable features, it is not
    enough to merely show that the patented feature is
    viewed as essential, that a product would not be commer-
    cially viable without the patented feature, or that consumers
    would not purchase the product without the
    patented feature. Id. at 68. When the product contains
    other valuable features, the patentee must prove that
    those other features did not influence purchasing decisions.
    Here, the power supply controllers had other valuable
    features, such as jittering. The district court noted that
    “there is evidence in the record that other features are
    important and are highlighted by the respective parties”
    and that “there is no question that . . . there are other
    valuable features.”6 J.A. 1764. In fact, Power Integrations
    sought infringement damages from Fairchild on the
    jittering feature in these same products in a separate
    lawsuit based on different patents, and we affirmed the
    judgment of infringement. See Power Integrations, Inc. v.
    Fairchild Semiconductor Int’l, Inc., 843 F.3d 1315 (Fed.
    Cir. 2016). Moreover, many of Fairchild’s technical marketing
    documents specifically mention the jittering feature
    and other features in addition to the ’079 patented
    feature. There is no proof that these features, including
    jittering, did not affect consumer demand. Without such
    proof, Power Integrations did not meet its burden to show
    that the patented feature was the sole driver of consumer
    demand, i.e., that it alone motivated consumers to buy the
    accused products.7

    (…)

    Because the evidence presented by Power Integrations
    was insufficient as a matter of law to invoke the
    entire market value rule, we vacate the award of damages
    and remand for a new trial. In light of this disposition, we
    need not address Fairchild’s other arguments about the
    sufficiency of the reasonable-royalty evidence.

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