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| sci.optics | Discussion relating to the science of op | 12,750 messages |
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| Message 11,575 of 12,750 |
| Phil Hobbs to haiticare2011@gmail.com |
| Re: Patent Claims -"You know what I mean |
| 21 Jan 14 11:14:17 |
From: pcdhSpamMeSenseless@electrooptical.net On 01/21/2014 08:18 AM, haiticare2011@gmail.com wrote: > On Monday, January 20, 2014 5:10:33 PM UTC-5, Phil Hobbs wrote: >> On 01/20/2014 01:05 PM, haiticmail.com wrote: >> >>> One source of technical information is to read patents. Now that >>> we >> >>> are on "first to file," rather than "first to invent," the >>> patent >> >>> record gives a pretty good account of where the technology >>> stands in >> >>> various practical areas. (I'm adding a few pointers at the end >>> to >> >>> search techniques.) >> >>> >> >>> My question is the following. In non-invasive blood testers, it >>> is >> >>> common to modulate the blood flow or track the heart beat to get >>> a >> >>> signal. This ac signal can be detected from the background noise >>> via >> >>> locking on to it. >> >>> >> >>> So I saw this language in a patent: (roughly) "For a narrow >>> spectral >> >>> band, the extinction coefficient varies with the blood flow >> >>> changes." >> >> >> >> Well, if this is a pulse ox or something like that, the extinction >> of >> >> the tissue as a whole does go up and down. Part of that effect >> will be >> >> due to the average extinction coefficient of the tissue (there's >> more >> >> blood there at some times than others) and some to the mechanical >> >> expansion and contraction due to the pulse. >> >> >> >>> >> >>> A physicist inside me said, "No it doesn't, unless you have >> >>> non-linear optics. The extinction coefficient is an inherent >>> property >> >>> of a substance in solution. I think the patent lawyer meant "The >> >>> extinction varies." >> >>> >> >>> So if I am right, we have a situation where the wording of the >>> claim >> >>> is scientifically unsound, but from the description, the >>> inventors >> >>> can say, "Well, you know what I mean." >> >>> >> >>> Huh? I have been trained that the claims are the legal heart of >>> the >> >>> patent, and if the claim is not worded in a sound scientific >>> manner, >> >>> does this invalidate the patent? >> >> >> >> Patents are legal documents, like contracts, and they grant the >> patentee >> >> a very strong property right: the ability to prohibit anyone else >> from >> >> practicing the patent in the USA. Once issued, there's a very >> strong >> >> presumption in law that the patent is valid. Killing one isn't at >> all >> >> impossible, but there's a definite tilt in the playing field once >> the >> >> examiner signs off on it. That's one reason that the first >> avenue of >> >> attack is often to ask for the patent to be reexamined. >> >> >> >> Until recently, reexams were inexpensive and more like patent >> >> prosecution, but I'm told that they're now more like litigation. >> (I've >> >> just finished the third of three reexams in a case involving the >> user >> >> interface of the Nintendo Wii, so I'm sort of up on this.) >> >>> >> >>> Of course, as a scientist or whatever I am, I would say yes. But >>> when >> >>> lawyers are afoot, anything can happen. >> >>> >> >>> As a thought experiment, suppose you shoot a patent torpedo at >>> this >> >>> claim and claim a device whose "extinction" varies, unlike >>> another >> >>> patent whose "extinction coefficient" varies? >> >>> >> >>> I seem to remember, on tests in school, if I gave the wrong >>> answer, I >> >>> could not say, "Well you know what I meant." >> >> >> >> The whole issue of claim construction is involved. It turns out >> that >> >> the meaning of claim terms is also a matter of law. >> >> >> >>> >> >>> To make this more confusing, the patent writer conflates >>> extinction >> >>> coefficient in the description text by saying he means >>> essentially >> >>> "extinction" or absorption. >> >>> >> >>> ??? How would you rule? JB >> >> >> >> It's pretty clear that what's in view is total extinction, but a >> minor error in the mechanism probably won't invalidate the claim. >> >> Besides, the patentee can always file a continuation, and get new >> claims on the same old specification. But I'm not a lawyer. >> > > Thanks Phil. Yes, they can file a continuation, as long as new > inventors haven't worked on the invention. (or so I understand.) I > believe you are right in the main. Yet, when we say the moon is made > from blue cheese, then we might hit a limit at some point? If I have > the time, I may call the examiner and get his opinion, if he is still > available. What you ay about the specific languaging of claims I will > bring up. I bet every art class has their terminology, and it's > probably embedded in the art class definition as well as issued > patents. Say, you are able to maneuver concepts around pretty well, > maybe you missed your calling? :) jb > Nah, the wife and I raised three lawyers of the barrack-room variety, and we're all argued out. ;) I have five or six expert witness cases going at the moment, and that's enough for anybody, I think. They use a different part of the brain from engineering, and pay a bit better as well, but not enough for me to want them as an exclusive diet. I had to turn down a case at the International Trade Commission last fall. It would have been interesting from a legal point of view, but the technology was boring and it would have eaten me alive for nine months or a year. (ITC cases have been described as "a district court on |
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