• House Aviation Subcommittee Holds Hearing on Unmanned Aerial Systems (UAS), Flying Cars and Passenger Drones

    The development of UAS vehicles for delivering packages or passengers could go a long way in alleviating issues of congestion occurring along the nation’s roadways. Aviation subcommittee ranking member Rep. Rick Larsen (D-WA) spoke to these possibilities, citing a recent industry scorecard which found that U.S. drivers spent 40 hours each year stuck in traffic during peak hours, leading to an economic loss of $300 billion in lost productivity. Larsen noted that there were currently more than 50…

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  • ParkerVision loses appeal of PTAB decision at CAFC

    The outcome:

    ParkerVision, Inc. (“ParkerVision”) appeals from
    three final written decisions of the U.S. Patent Trial and
    Appeal Board (“Board”) in related inter partes review
    proceedings, in which the Board held certain claims of
    U.S. Patent No. 6,091,940 (“the ’940 patent”) unpatentable
    as obvious under 35 U.S.C. § 103(a).1 Qualcomm Inc.
    and Qualcomm Atheros, Inc. (together, “Qualcomm”)
    cross-appeal from the Board’s determination that Qualcomm
    failed to prove by a preponderance of the evidence
    that certain other claims of the ’940 patent are unpatentable.
    We affirm.

    The appealed matter:

    ParkerVision argues on appeal that the Board erred
    in holding the apparatus claims challenged in the Nozawa
    IPRs unpatentable, while Qualcomm contends in its crossappeal
    that the Board erred in upholding the patentability
    of the challenged method claims. We address these
    arguments in turn.

    The CAFC noted

    We explained long ago that “[a]pparatus claims cover
    what a device is, not what a device does.” HewlettPackard
    Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1468
    (Fed. Cir. 1990). As a result, “[a]n invention need not
    operate differently than the prior art to be patentable, but
    need only be different”—or, rather, “unobviously different.”
    Id. at 1464 & n.2 (citations omitted). A corollary of
    these principles is that an apparatus that is “capable of”
    performing certain functions may be anticipated by or
    obvious in view of a prior art apparatus that can likewise
    perform these functions. See Finjan, Inc. v. Secure Computing
    Corp., 626 F.3d 1197, 1204 (Fed. Cir. 2010) (explaining
    “that, to infringe a claim that recites capability
    and not actual operation, an accused device ‘need only be
    capable of operating’ in the described mode.” (quoting
    Intel Corp. v. U.S. Int’l Trade Comm’n, 946 F.2d 821, 832
    (Fed. Cir. 1991))). Indeed, “depending on the claims, ‘an
    accused device may be found to infringe if it is reasonably
    capable of satisfying the claim limitations, even though it
    may also be capable of noninfringing modes of operation.’”
    Id. (citations omitted). Similarly, a prior art
    reference may anticipate or render obvious an apparatus
    claim—depending on the claim language—if the reference
    discloses an apparatus that is reasonably capable of
    operating so as to meet the claim limitations, even if it
    does not meet the claim limitations in all modes of operation.


    Here, the apparatus claims are most similar to those
    in Ericsson and are fundamentally dissimilar to those in
    Ball Aerosol. The ’940 patent’s apparatus claims are
    drawn to “[a]n apparatus for frequency up-conversion”
    (claim 4) or “[a]n apparatus for communicating” (claim
    22), all of which comprise “a switch module to receive” an
    oscillating signal and a bias signal, wherein the oscillating
    signal “causes said switch module to gate said bias
    signal and thereby generate a periodic signal having a
    plurality of harmonics.” ’940 patent, col. 67, ll. 25–33
    (emphases added); id. col. 69, ll. 19–32 (emphases added).
    Accordingly, just as D-Link’s products only required a
    component that was reasonably capable of “arranging
    information for transmission . . . which identifies a type of
    payload information . . . ,” Ericsson, 773 F.3d at 1217,
    Nozawa’s circuit requires only an oscillating signal that is
    reasonably capable of gating the bias signal in a manner
    that generates a periodic signal having a plurality of
    harmonics. And, unlike in Ball Aerosol, the claims here
    recite no structural limitations that would preclude a
    prior art reference that discloses a different structure
    from performing the claimed function.

    But Qualcomm loses the cross-appeal

    The method claims present a different story, however.
    While Qualcomm was only required to identify a prior art
    reference that discloses an apparatus “capable of” performing
    the recited functions to prove that the apparatus
    claims would have been obvious, more was required with
    respect to the method claims. Specifically, Qualcomm
    needed to present evidence and argument that a person of
    ordinary skill would have been motivated to operate
    Nozawa in a manner that satisfied the “plurality of harmonics”
    limitation. See InTouch Techs., Inc. v. VGO
    Commc’ns, Inc., 751 F.3d 1327, 1346–47 (Fed. Cir. 2014)
    (explaining that a party seeking to invalidate method
    claims on obviousness grounds must “demonstrate . . .
    ‘that a skilled artisan would have been motivated to
    combine the teachings of the prior art references to
    achieve the claimed invention, and that the skilled artisan
    would have had a reasonable expectation of success in
    doing so’”). Qualcomm failed to do so.

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  • 撮影



    (CAPTURE IMAGE etc.)
    $$ Because the sensor comprises an array of photodetectors it can also be used to capture an image of the intruder. / センサは光検知器のアレイを備えているので、センサは侵入者の画像を撮影するためにも使用可能である。(USP8354928)

    $$ The above example showed the invention in use in a still, digital camera; naturally it could also be applied to a video camera that captures moving pictures. / 上記の例は、本発明を、スチル・デジタル・カメラでの使用において示した。当然ながら、本発明は、動画を撮影するビデオ・カメラにも適用されることが可能である。(USP8040428)

    $$ Thus, FIG. 11 illustrates an original partial image as captured by a thermal imaging camera. / 図11は、熱撮像カメラによって撮影されたときの元々の部分的な画像を示す。(USP7029172)

    (TAKE IMAGE etc.)
    $$ Accordingly, at step 152, the readhead 4 takes an image of what is placed under its reading window. / したがって、ステップ152で、リードヘッド4は、その読取り窓の下にある画像を撮影する。(USP8742956)

    $$ It could be applied to a camera that takes photographs on conventional film, or any optical device that focuses a real image: / 本発明は、従来のフィルム上に写真を撮影するカメラ、または実像に焦点を合わせるあらゆる光学装置に適用されることが可能である。(USP8040428)

    $$ In a typical scenario, a user has electronic files such as digital photographs taken during a holiday, for example. / 典型的なシナリオでは、ユーザは例えば休暇中に撮影されたデジタル写真などの電子ファイルを有する。(USP7578441)

    $$ The currently available methods of assessing bone quality are based primarily on radiography and, in particular, dual energy X-ray absorptiometry (DEXA). / 現在利用可能な骨質評価の方法は主として、放射線写真撮影、および特に二重エネルギX線吸収測定法(DEXA)に基づく。(USP8243269)

    $$ The invention may be applied to framing cameras for permitting photography of high or ultra high speed events which typically occur over time scales in the order of nanoseconds to milliseconds. / この発明は、典型的にはナノ秒からミリ秒のオーダで起こる高速の事象の写真撮影を可能にするフレーミングカメラに応用され得る。(USP6157409): ~graphy

    $$ Such information can be obtained using known tomographic methods such as that described in U.S. Pat. No. 4,730,350. / このような情報は、米国特許第4,730,350号に開示されたような既知の断層撮影方法を用いて得ることができる。(USP6122344): ~graphy

    $$ Referring to FIG. 1, a face detection and tracking system 6 includes an image acquisition device 8, such as a still camera or a video camera. / 図1を参照する。顔の検出及び追跡システム6は、スチルカメラ又はビデオカメラのような画像撮影装置8を含んでいる。(USP6148092): acquire image

    $$ A Canon EOS 300D camera was used to photograph the same scene whilst focusing at different distances, from 11 cm to 39 cm, as shown In FIG. 4. / 図4に示されているように、キャノンEOS 300Dカメラが用いられて同じシーンを相違する距離11cmから39cmで焦点合わせしながら撮影した。(USP8040428): photograph

    $$ By varying the selected planes from the 3D volume, any region within the imaging field can be interrogated. / 3D容積から選択された平面を変えることによって、画像撮影フィールド内における任意の領域を、検索することができる。(USP7643670): image

    $$ A grating made in this way which exhibited similar tilt angles in the low tilt configuration was snapped along the direction perpendicular to the grating grooves and characterised using SEM. / 低チルト構成(low tilt configuration)で類似の傾き角度を示した、この方法で作られた格子は、格子溝に垂直な方向に沿って撮影され、SEMを用いて特徴付けられた(characterised)。(USP7053975): snap

    $$ …which renders it suitable for use as a publicity shot or "stills"… / これは宣伝目的の撮影や静止撮影に好適である (USP5313281): shot/still


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  • The Federal Circuit Strides Forward with No-Opinion-Judgments

    The Federal Circuit Strides Forward with No-Opinion-Judgments

    by Dennis Crouch

    Capella Photonics, Inc., v. Cisco Systems, Inc., SCT Docket No. 18-304 (Supreme Court 2018) (on petition for writ of certiorari)

    Capella Photonics has asserted its patents covering wavelength-separating technology using array of “fiber collimators” in at least ten separate infringement lawsuits, including a still pending action against Cisco filed in 2014.  After being sued, Cisco reached-out to the USPTO seeking an inter partes review of two patents.  RE42,678 and RE42368.  The USPTO complied and issued final decisions finding the claims obvious. The PTAB’s decision particularly found the use of collimators to be obvious based upon the use of prior art circulators.  On appeal, Capella argued that the Board had erred as a matter of law in both its claim construction and obviousness conclusions (issues to be reviewed de novo on appeal).

    For its part, the Federal Circuit heard oral arguments in the case on February 8, 2018 and allowed one business day to pass before issuing its judgment on February 12, 2018: AFFIRMED WITHOUT OPINION R. 36.  [Appendix of Decisions in the Case]

    The Federal Circuit has repeatedly vacated District Court and PTAB decisions when the lower tribunal failed to explain the basis for its decision. 

    Continue reading The Federal Circuit Strides Forward with No-Opinion-Judgments at Patently-O.

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  • Intellectual Ventures v. T-Mobile: Summary Judgment of Non-Infringement Vacated Due to Incorrect Claim Construction

    In claim construction analyses, the plain and ordinary meaning of a claim term will not be narrowed by statements in the prosecution history, unless those statements clearly and explicitly evidence the patentee’s intent to depart from the full scope of the claim. If a dependent claim includes the purportedly disclaimed subject matter and was added at the time of the purportedly disavowing statements, a finding of disavowal is unlikely. Furthermore, a means-plus-function term should clearly and…

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  • From Around the Blogs

    1.  Mark Cohen published a post on the ChinaIPR Blog about the upcoming conference at the University of Nevada-Las Vegas on Intellectual Property Rights Enforcement at Trade Shows, at which I also will be participating.  I’m looking forward t…

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  • Conflicting Canons of Claim Construction

    Conflicting Canons of Claim Construction

    Blackbird Tech LLC v. ELB Electronics, Inc. (Fed. Cir. 2018)

    In a short order, the Federal Circuit has denied ELB’s petition for en banc rehearing in this case — the petition had raised particular issues regarding the proper methodology for construing patent claims.

    1. Construing claim terms in the context of the specification and preamble; and
    2. Construing claim terms in a way that provides a scope commensurate with the disclosure.

    In the original Federal Circuit opinion from July 2018 the Federal Circuit vacated a lower court judgment of non-infringement after finding that the District Court had improperly read a limitation from a disclosed embodiment into the claim.

    Blackbird Tech’s US patent at issue (7,086,747) is directed to an LED light fixture designed to retro-fit to the space of old tubular fluorescent light fixture having a ballast cover.  The claims particularly require a “housing having an attachment surface.”

    Although not required expressly by the claims, the district court concluded that the attachment surface must include a fastener to connect the attachment surface to the ballast cover — since that was the only way shown by the patent. 

    Continue reading Conflicting Canons of Claim Construction at Patently-O.

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