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24 Claims of Lodsys '565 Patent Rejected

groklaw.net

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Re: 24 Claims of Lodsys '565 Patent Rejected

#11

There is an interesting question in the comments...one of the patent claims specifies incrementing a counter - so is decrementing the counter instead a valid workaround? EDIT: thinking more about this, what if you pushed/popped them with a stack, or FIFO'd them with a queue. Seems there are various ways around the increment semantics.

Semantics. Are you decrementing the counter by a positive number, or incrementing it by a negative number?

Re: 24 Claims of Lodsys '565 Patent Rejected

#12
post #11

There is an interesting question in the comments...one of the patent claims specifies incrementing a counter - so is decrementing the counter instead a valid workaround? EDIT: thinking more about this, what if you pushed/popped them with a stack, or FIFO'd them with a queue. Seems there are various ways around the increment semantics.

Semantics. Are you decrementing the counter by a positive number, or incrementing it by a negative number?

Yeah that's the point. Sometimes semantics distinctions matter to the law. So can you just decrement by a negative number to get around it, legally?

Re: 24 Claims of Lodsys '565 Patent Rejected

#13
post #11

There is an interesting question in the comments...one of the patent claims specifies incrementing a counter - so is decrementing the counter instead a valid workaround? EDIT: thinking more about this, what if you pushed/popped them with a stack, or FIFO'd them with a queue. Seems there are various ways around the increment semantics.

Semantics. Are you decrementing the counter by a positive number, or incrementing it by a negative number?

I would interpret the 'increment' in the claim to mean increase (by a positive amount). The proposed workaround would start at the end and decrease the counter.

Re: 24 Claims of Lodsys '565 Patent Rejected

#14
post #10

Can someone explain dependent and independent claims to me?

An independent claim stands alone. For example, if you had invented the bicycle, an independent claim might look something like this: 1. A device for transportation consisting of two wheels joined by a frame on which one or more passengers sit. A dependent claim depends on an another claim. Here's an example that depends on the above independent claim: 2. The device of claim 1 where one of the wheels is in the front…

The important part being I could still have a patent on the steering even if the first 2 claims are denied.

It's very common in patents to only really have invented the last claim - all the previous claims are thrown out but the last one stands. It's partly an easy way of getting all your points across logically and partly a tactic of having some ground to give up in a legal battle

Re: 24 Claims of Lodsys '565 Patent Rejected

#15

There is an interesting question in the comments...one of the patent claims specifies incrementing a counter - so is decrementing the counter instead a valid workaround? EDIT: thinking more about this, what if you pushed/popped them with a stack, or FIFO'd them with a queue. Seems there are various ways around the increment semantics.

There is a doctrine in patent law called the "doctrine of equivalents." [1] In short, it limits the ways you can use obvious work-arounds. In practice, it's very complex because there are often good reasons why they specified an "incrementing" counter rather than "any counter," but the idea is that you can't make a trivial change to get around the bulk of a patent.*

[1] http://en.wikipedia.org/wiki/Doctrine_of_equivalents

* I am not your lawyer, get a lawyer, etc.

Re: 24 Claims of Lodsys '565 Patent Rejected

#16
post #11

Earlier quoted context omitted.

Semantics. Are you decrementing the counter by a positive number, or incrementing it by a negative number?

Yeah that's the point. Sometimes semantics distinctions matter to the law. So can you just decrement by a negative number to get around it, legally?

[deleted]

Re: 24 Claims of Lodsys '565 Patent Rejected

#17
post #11

Earlier quoted context omitted.

Semantics. Are you decrementing the counter by a positive number, or incrementing it by a negative number?

Yeah that's the point. Sometimes semantics distinctions matter to the law. So can you just decrement by a negative number to get around it, legally?

Semantics especially matter in patents. There is a famous historical case where a patent specified a horizontal beam - since you can never have a perfect horizontal beam in a real machine everyone was free to break it.

It's why every second word in a patent is "substantially"

Re: 24 Claims of Lodsys '565 Patent Rejected

#18

There is an interesting question in the comments...one of the patent claims specifies incrementing a counter - so is decrementing the counter instead a valid workaround? EDIT: thinking more about this, what if you pushed/popped them with a stack, or FIFO'd them with a queue. Seems there are various ways around the increment semantics.

There is a doctrine in patent law called the "doctrine of equivalents." [1] In short, it limits the ways you can use obvious work-arounds. In practice, it's very complex because there are often good reasons why they specified an "incrementing" counter rather than "any counter," but the idea is that you can't make a trivial change to get around the bulk of a patent.* [1] http://en.wikipedia.org/wiki/Doctrine_of_equiva…

If the "obvious" in "obvious work-arounds" matches the "obvious" used to determine patentability in the first place, we're safe.

Re: 24 Claims of Lodsys '565 Patent Rejected

#20

There is an interesting question in the comments...one of the patent claims specifies incrementing a counter - so is decrementing the counter instead a valid workaround? EDIT: thinking more about this, what if you pushed/popped them with a stack, or FIFO'd them with a queue. Seems there are various ways around the increment semantics.

Any workaround would help going forward but there's still the issue of past infringement. Invalidating the patents fixes both those problems.
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