Giving Meaning to Silence (Claim Construction)

by Dennis Crouch

Seabed Geosolutions v. Magseis FF (Fed. Cir. 2021)

The Magseis invention here is fully enclosed single case seismometer.  The patent explains that “hundreds to thousands of receivers” might be deployed in order to conduct a seismic survey.  U.S. Pat. No. RE45,268. A key feature of a seismometer is the “geophone” that actually detects the vibrations.  Prior to this invention, seismometers were already known as were the geophones used.  The improvement here is the arrangement of all the components within the single case. Of importance to this case is that every claim requires the geophone to be “internally fixed” to either the housing or an internal compartment.

Magseis sued Seabed for infringement; Seabed turned around and petitioned for inter partes review (IPR).  Although the IPR was initiated, the PTAB eventually sided with the patentee and concluded that the claims had not been proven invalid.

The basic issue on appeal was a question of whether the prior art showing a “gimbaled” attachment counts as being “fixed.”  A gimbal is a mount mechanism that allows multiple degrees of freedom and are often an element of a camera tripod setup.  Gimbaling of the geophone was admittedly common in the art at the time of the invention.

The specification does discus the use of a gimbal, but only with reference to the internal clock.  Apparently clock performance can be slightly shifted by gravity and so the gimbaled clock can allow all of the seismometers to be on the same time.

The specification does not mention whether the geophone might or might not be gimbaled.  Likewise, the specification does not mention that the geophone is “fixed” except in claim language that was added after filing. Rather, the specification  describes the geophone as “internally mounted … and thus requires no external wiring or connection.”

Despite all of this, the PTAB still construed the “internally fixed” requirement to exclude a gimbaled connection.  For its conclusion, the Board relied upon extrinsic evidence that a person skilled in the art would give “fixed” a special meaning that included “not gimbaled.”

On appeal, the Federal Circuit has rejected that claim construction and vacated for reconsideration.  According to the opinion, the PTAB erred in delving into the extrinsic evidence since the intrinsic evidence was clear, even though entirely silent as to the gimbal issue.

Silence is golden; silence is violence; silence is complicity.  Silence has long been subject to an inferential debate over its meaning.  Here, the specification is silent as to whether the term “fixed” included a gimbaled connection.  The PTAB saw the silence as a lack of clarity and so reached-out to extrinsic evidence to see whether the term had meaning to someone skilled in the art.  But like a Zen master, the Federal Circuit found clarity in the silence.

The specification never mentions gimbaled or non-gimbaled geophones, nor does it provide a reason to exclude gimbals. That silence does not support reading the claims to exclude gimbaled geophones. . . Silence about gimbals does not evidence the absence of gimbals.

Slip Op. In its decision court notes that gimbaled geophones were known in the art at the time and so could have been easily excluded by the inventor — if that was part of the invention. Rather, the focus was on placing the geophone inside of the case along with the rest of the electronics.  The claims were construed here using the broadest reasonable interpretation (BRI) standard for claim construction, which could explain the result.  But the Federal Circuit does not rely upon BRI in its decision.  But the implication from this decision is that silence can typically lead to a broad interpretation.

Vacated. On remand, the PTAB will need to determine whether the broader claim scope now renders the claims invalid as obvious.

= = = =

Consider Dan Burk’s article: Dan L. Burk, Patent Silences, 69 Vanderbilt Law Review 1603 (2016) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol69/iss6/6

 

53 thoughts on “Giving Meaning to Silence (Claim Construction)

  1. 12

    I think I’ll come to regret jumping into this discussion substantively (as opposed to jokingly like earlier), but to me, at least in a vacuum, the POM of “fixed” is not just attached, but also not moving at all. A fixed interest rate doesn’t vary a little from time to time; it never changes for the life of the financial instrument.

    1. 12.1

      But, using the picture provided in the post as an example, I think it would be valid to say that the camera is fixed to the (presumed) tripod, even it is rotatably fixed (or whatever term you want to use).

            1. 12.1.1.1.1.2

              To be less glib, I do not think you are incorrect either. That is, through the discussions under this post, all or which take fairly reasonable approaches, show that the meaning was in fact not clear from the original claim language.

              1. 12.1.1.1.1.2.1

                To be less glib myself, it is clear that “fixed” and “rotatably fixed” DO have different meanings.

                I am sure that Random would agree that an improvement patent of a rotatably fixed object would not be covered by a prior invention of a mere fixed object.

  2. 11

    “internally fixed”

    As in “held within” or as in “held immobile in position within,” that is the question.

  3. 10

    US7931412

    “the motion replicating mechanism comprises one or more rigid mechanical connections causing the primary component masses to be fixed with respect to the secondary component masses with respect to rotation about one or more axes of rotation”

    1. 10.1

      So “fixed” is defined as fixed merely “with respect to rotation about one .. axes of rotation” in whatever phrase you are quoting here from that patent?

      1. 10.1.1

        “that patent” provides as its abstract:

        A support system used to orient and utilize equipment remotely positioned from an operator and supported in a stabilized manner. The support system includes a balance pole with a master end and a slave end. Master component masses are connected to and balanced at the balance pole master end on a master sled with a master gimbal apparatus, and slave component masses are connected to and balanced at the balance pole slave end on a support structure or slave sled with a slave gimbal apparatus. A tertiary gimbal is attached to the balance pole at its center of balance. The system includes a mechanism to replicate the motion of the master gimbal at the slave gimbal so the orientation of the master sled is mimicked by the slave sled.

        For comparison, the present item’s abstract provides:

        A seismic exploration method and unit comprised of continuous recording, self-contained wireless seismometer units or pods. The self-contained unit may include a tilt meter, a compass and a mechanically gimbaled clock platform. Upon retrieval, seismic data recorded by the unit can be extracted and the unit can be charged, tested, re-synchronized, and operation can be re-initiated without the need to open the unit’s case. The unit may include an additional geophone to mechanically vibrate the unit to gauge the degree of coupling between the unit and the earth. The unit may correct seismic data for the effects of crystal aging arising from the clock. Deployment location of the unit may be determined tracking linear and angular acceleration from an initial position. The unit may utilize multiple geophones angularly oriented to one another in order to redundantly measure seismic activity in a particular plane.

        Ben has not established any type of nexus from that reference to the object at point in this thread. Much like an examiner, it appears that “key word hit” suffices as opposed to actually establishing ANY type of Graham Factor analysis.

        1. 10.1.1.1

          Ben has not established any type of nexus from that reference to the object at point in this thread. Much like an examiner, it appears that “key word hit” suffices as opposed to actually establishing ANY type of Graham Factor analysis.
          The old examination-by-keyword-search after-the-fact rationalization routine. A time-honored classic at the USPTO.

  4. 9

    Here, the specification is silent as to whether the term “fixed” included a gimbaled connection
    I had a pretty good idea as to what a gimbal is but I looked it up and this is the first definition (from Wikipedia) that I could find:
    A gimbal is a pivoted support that permits rotation of an object about an axis.

    Permitting rotation of an object seems (at least to me) the antithesis of being “fixed.”

    The Board could have done this two ways. The way they chose, as characterized by the Federal Circuit, is the following:
    It found, based entirely on extrinsic evidence, that “fixed” had a special meaning in the relevant art at the time of the invention: “not gimbaled.”
    In other words, they made the claim construction do all of the heavy lifting. The alternative approach would have been to construe the term “fixed” as “not permitting movement” (or something to that effect) and then making the finding of fact that a gimbal does not meet that meaning.

    I noticed that the Federal Circuit made the following additional claim construction:
    The claims recite a “geophone internally fixed within [the] housing.” We conclude, based upon the intrinsic evidence, that the word fixed here carries its ordinary meaning, i.e., attached or fastened.
    I would say that this is an incorrect claim construction — or better stated, an incomplete claim construction. A more accurate claim construction is that “fixed” means “fastened securely in position” (a definition that was the first thing that popped up when I searched for the term). The second definition I found was the following “fastened, attached, or placed so as to be firm and not readily movable; firmly implanted; stationary; rigid.” To be fixed means to be fixed in place — i.e., stationary (“not relatively movable”) relative to the thing to which it is attached. In this instance, the geophone is stationary relative to the housing. The same CANNOT be said about a gimbal.

    The next step in my analysis is looking at the specification. Here is where the interesting stuff lies. There is no mention of being “fixed” in the specification — or any mention of something that would support the real meaning of the term “fixed.” The patent ultimately claims priority to US application 10/766,253. I looked at the claims there, and they don’t have any mention of the key limitation of “fixed” (i.e., the claims themselves could provide written support even if the specification did not).

    In conclusion, there are a number of errors here. First, the claim construction of “fixed” by the Federal Circuit is clearly wrong — it is overly broad. The proper meaning of “fixed” would exclude the gimbals of the prior art. However, the term “fixed” was added during prosecution and there does not appear to be any support in the specification for the properly-construed meaning of the term “fixed.” As such, this claim language should have been rejected under 112, 1st paragraph for lack of written descriptive support. However, that kind of rejection doesn’t get you in the door in an IPR.

    In the end, we have the Federal Circuit getting the right result but for the wrong reason. In so doing, they have created binding precedent — frankly, I’m not entirely sure what precisely constitutes the precedent they are making, but I’m not comfortable when them botching a claim construction to get there.

    In short, this is a result-based decision — not a decision based upon faithful application of the law to the facts.

    1. 9.1

      I am not sure which is worse: the amount of Ends Justifies the Means legal ‘thinking,’ or the seemingly nonchalance from so many in the patent community (not you, of course).

  5. 8

    The name of the game is the claim, or so I thought. Apparently, during prosecution, the Applicant amended the claim to further limit the scope such that the geophone is “internally fixed.” First, I would look to the specification to ascertain as to what the Applicant meant by the term “fixed.” If the spec is silent, then I would look to the Applicant’s admissions/comments and/or reasons (if any) for amending the term to “internally fixed” (perhaps to avoid the prior art). Finally, if no clarity is evident, I would use the ordinary and customary meaning of the term “fixed.” As one example, http://www.dictionary.com defines “fixed” as “fastened, attached, or placed so as to be firm and not readily movable; firmly implanted; stationary; rigid.” How can anyone reasonably understand that a “gimbal,” a structure that intentionally provides multiple degrees of mechanical freedom, is remotely within the scope of the clear and unambiguous claim term, “fixed” (stationary) as it pertains to the geophone within the case? Am I missing something?? Anonymous

    1. 8.1

      I think it is reasonably to say that the geophone is fixed internally using a gimbal as opposed to being free floating within the case without any mooring. The geophone has the ability to rotate in the gimbal but its absolute ability to move is fixed by the gimbal.

      1. 8.1.1

        The geophone has the ability to rotate in the gimbal but its absolute ability to move is fixed by the gimbal.
        No. The gimbal would allow the geophone to rotate within the housing. The language of “at least one geophone internally fixed within said housing” states that the geophone being fixed is relative to the housing, which it would not be if it was fixed via a gimbal.

        Regardless, the Federal Circuit got away from the real meaning of “fixed” by employing an overly-broad interpretation.

        1. 8.1.1.1

          I may of misread it but, where does it say ” the geophone being fixed is relative to the housing?”

          1. 8.1.1.1.1

            I may of misread it but, where does it say ” the geophone being fixed is relative to the housing?”
            A fair question but that is implied anytime someone uses the term “fixed” as it relates to position. If I’m driving in a car, I am fixed relative to the car seat, but I’m not fixed relative to the road. As I sit here talking, I am fixed relative to the seat as well as the building I’m in. I’m also fixed relative to the Earth (not accounting for small movements in the Earth’s crust) but I’m not positionally fixed relative to the moon, the sun, or other heavenly bodies. To something to be positionally “fixed,” it needs to be fixed relative to something.

            The claim language of “at least one geophone internally fixed within said housing” clearly identifies what the relative thing to which the geophone is fixed — specifically, the housing.

            Again, this is how the claim should have been interpreted using the broadest reasonable interpretation.

    2. 8.2

      Are the front wheels of a car fixed to the car? Oh noes, they turn! Are rocket engines fixed to their rockets? Oh noes, they gimbal! Is a drive shaft fixed to a vehicle? Oh noes, it moves in three dimensions….

      A gimble is a kind of attaching device. It fixes a component to a structure in such a way as the component’s attitude can be adjusted while remaining fixed to the structure.

      The hyperformalism of patent law is boundless.

      1. 8.2.1

        The hyperformalism of patent law is boundless.

        To paraphrase, that’s the name of the game.

          1. 8.2.1.1.1

            Meh, when in Rome (or as Sun Tzu would put it: understand the terrain upon which you would do battle)

  6. 7

    I suspect a deep-dive into the prosecution history and the several parent applications (there’s an abandoned child application) might shed some more light on the story to the discerning eye of a patent prosecutor with experience as an examiner. In accordance with the theme of this article, it’s not always about what is said during examination because what is unsaid during the examination can speak volumes.

  7. 6

    The odd aversion continues…

    Before MOORE, Chief Judge, LINN and CHEN, Circuit Judges.

    Moore, Chief Judge.

  8. 4

    As this Fed. Cir. decision notes: “For inter partes review petitions filed before November 13, 2018, the Board uses the broadest reasonable interpretation (BRI) standard to construe claim terms.”
    Since IPRs after that date are supposed to use normal patent litigation claim scope interpretation, given the normal and statutory speed of IPRs there should not be many more such pending IPRs using BRI.

  9. 3

    Here is an idea (from the reality side of the Looking Glass) – the USPTO could make up their mind BEFORE they grant the patent, and then just stick with THAT decision.

    This America Invents Act was a very dumb idea. How are we to compete with China when this is how we reward inventors?

    1. 3.1

      Interestingly, the America Invents Act did not change the legal status of presence and degree that a granted patent has in view of the presumption of validity.

      That is a critical stick in the bundle of patent property rights.

      Still.

      I have attempted to put a spotlight on the fact that the IPR institution decision — fully apart from any decision on the merits — constitutes a taking of at least the valuable stick in that bundle of the existence and level of that presumption. This is most assuredly a legislative taking.

  10. 1

    And what might patent prosecutors take from this? Perhaps that it is not free of risk, even in the USPTO, to import into the claim, during prosecution, claim language on which the application as filed is silent? I mean, look, the patent family member at the EPO, EP-A-1716435, is on its way to issue, with claims not only free of the problematic “internally fixed” language but also what strikes me as fearfully wide scope, and this despite the ferocious EPO attitude to the admissibility of prosecution amendments.

    When the EPO patent issues, given the scope of its claims, perhaps somebody will file an opposition. Or perhaps by then the Parties wil have settled.

    1. 1.1

      Thank you EPO Uber Alles shill. Are you still trying to have other people wear the spectacles that you have that work for you eyesight?

      Do you not remember the simple cultural differences and how our lack of ipsis verbis is NOT considered a detriment, that being (predominantly) monolingual has its impacts – this instance notwithstanding?

      1. 1.1.1

        Anon, I assume that you are aware of the connotations of “uber alles”.

        I assume that you know that when Deutschlandlied was restored as the anthem of (West) Germany in 1951, only the third verse was officially adopted, because of the shameful and offensive connotations the earlier verses had acquired.

        I therefore assume that your intent in using this phrase was principally to cause offense.

        I imagine Max is above allowing himself to be offended by such puerile behaviour. But it does tell me everything I need to know to confirm the view I have formed that engaging with you is a hiding to nothing.

        Respond if you wish, but you’ll be wasting your time ranting into the void. If you had anything genuinely worthwhile to say, you’d say it in plain English, and without punctuating it with abuse.

        1. 1.1.1.1

          Thank you, Mark. These days, I have time to spare, to post comments to this blog, and an inclination to compare and contrast the patent law and practice of several jurisdictions in order to stimulate critical thinking by other readers of America’s leading patent law blog.

          Europe harmonised its law of patentability back in 1973, and taking the best from the various national jurisdictions in Europe (DE, GB, NL included) has helped to improve quality. In my view, the more debate about the differences between jurisdictions, the better the quality of patent law, everywhere.

          A particular interest of mine is how to adjudicate the core problem issue of obviousness fairly, expeditiously and proportionately, in a way that engineers and scientists (whether they are in the camp of the patent owner or of the petitioner for revocation) can understand and support. Hence my support for the EPO’s Problem-Solution Approach. I really do care, that patent law is accepted, supported and approved of by business, and by all intelligent and well-informed observers who are not lawyers, and by the scientists and engineers on both sides of every patent validity dispute.

          Each time one of my posts produces a reaction from anon, I ask myself whether there would be any benefit in it for other readers, if I were to post a reply. Occasionally, I can see a benefit and then I reply, but with those other readers in mind, not anon. Otherwise, I choose not to reply.

          I agree with you, that it’s a waste of time to “engage” with anon. The consequence is to leave anon sulking, or boasting that he has “schooled” the poster and “won” the “debate”. But I dare say we can both accept that outcome with perfect equinamity.

          I look forward to more of your posts to this US patent law blog, from outside the jurisdiction.

            1. 1.1.1.1.1.1

              So much spin that a tornado warning has been issued.
              Is this your creation or did you borrow it from somebody else? Regardless, when I have the opportunity, I WILL be using it.

          1. 1.1.1.1.2

            Equinamity. What for a word is that then?

            Did I type it, above? It seems so. I amaze myself.

            1. 1.1.1.1.2.1

              You may view yourself with “equanimity,” the rest of the world views you with Dunning Kruger effect.

    2. 1.2

      Max, one of the [repeated] lessons of this case is that the Fed. Cir. is far more impressed by intrinsic [original spec and claims content] than extrinsic evidence [amendments and attorney arguments].
      BTW, if a part is gimbaled that allows it’s tilt relative to a plane but does not normally allow positional change horizontally or vertically.

      1. 1.2.1

        Paul, I’m sure you’re right about the difference between the judges at the Fed Ct and those at the PTO. But in that case, why do the PTO judges not change, to adjudicate more in line with the CAFC? Perhaps because of collective solidarity with the Examiner Corps, which all too easily follows the blandishments of the prosecution attorney, getting led by the nose all the way to issue? Does this mean that in the absence of a settlement, most every dispute has to be taken up to the CAFC?

        Not sure what you have in mind with your gimbal point. Am I to take it that gimballed is ample support for “fixed” or is it that “gimballed” fails to support “fixed”?

        1. 1.2.1.1

          which all too easily follows the blandishments of the prosecution attorney, getting led by the nose all the way to issue?

          LOL – you clearly are unfamiliar with US prosecution.

          But go ahead, continue to be you.

          1. 1.2.1.1.1

            LOL – you clearly are unfamiliar with US prosecution.
            Grossly unfamiliar with US prosecution I would wager.

            why do the PTO judges not change, to adjudicate more in line with the CAFC?
            Why? Hmmm, maybe because the CAFC has a lot of contradictory precedent by which one can pick and choose to arrive at any desired result. Or perhaps that the PTO judges know that the odds of them being appealed are fairly low so they can give lip service to the Federal Circuit. Or perhaps the PTO judges need be cognizant of what their boss wants — regardless of what the law says.

            If you looked at the average experience of an APJ at the Board, you would come away largely unimpressed. They are not mental giants of US patent law, I can assure you of that.

            1. 1.2.1.1.1.2

              WT, this discussion is about an amendment to the claims, during prosecution at the USPTO, and not about other matters such as, for example, USPTO practice under 35 USC 103. When I write that the PTO swallows the blandishments of the prosecution attorney, you should read that in the context of amendments to the claims during prosecution. I’m not saying that USPTO Examiners swallow efery argument a prosecuting attorney comes up with, in 101, 2 or 3 practice.

              I have been writing here for years that the advent of First to File will result in a tightening of WD requirements in the USA. But as of now, it has yet to dawn on those examining applications at the USPTO.

              How “grossly” unfamiliar I am, with practice at the USPTO, is a matter of opinion. But the more time I spend here, the more knowledge of it I gain.

              1. 1.2.1.1.1.2.1

                I have been writing here for years that the advent of First to File will result in a tightening of WD requirements in the USA. But as of now, it has yet to dawn on those examining applications at the USPTO.
                Because one (first to file) has nothing to do with the other (WD requirements).

                How “grossly” unfamiliar I am, with practice at the USPTO, is a matter of opinion.
                I have be reading your stuff (here and elsewhere) for well over a decade. You have a remarkable inability to recognize that we (i.e., the US) do stuff differently that the EU for our own reasons.

                When I write that the PTO swallows the blandishments of the prosecution attorney, you should read that in the context of amendments to the claims during prosecution.
                This could be prosecution’s Exhibit #1 in the trial regarding your unfamiliarity with US patent prosecution practice. Regardless, prosecution history estoppel is a very potent thing. These “blandishments” you speak can have a legal impact — in so far that they can limit the scope of the claimed invention.

                As I wrote elsewhere, the full meaning of the word “fixed” was not supported (as best as I tell searching the specification). I can only speculate as how the prosecuting attorneys used the term “fixed” or how the Examiner interpreted it.

                One thing you should be cognizant of is that the attorneys who litigate a patent (i.e., those that argue for a particular claim construction before the court) are very rarely the same attorneys who prosecuted the application before the USPTO. As such, I would never be surprised to see a litigation attorney propose a claim interpretation that is different than how that claim language was interpreted by the prosecution attorney. Along those lines, the attorney for the defendant will likely attempt to interpret the same language either narrowly or broadly depending upon whether the issue is infringement or invalidity.

                From my experience look at Federal Circuit decisions over the past couple of decades, claim construction is the easiest way for a Court to put their thumb on the scales of justice. The two biggest issues (infringement and invalidity) litigated in court oftentimes ride on a particular claim construction. As such, all a judge has to do, in order to get the desired result, is to construe the claim language in a manner that arrives at this result.

                Frankly, this is little different than how justice works elsewhere. Whether it is a statutory construction, construing the language of a contract, or construing the language of the constitution, Courts can arrive at the desired result merely by how they construe the language at issue.

                Ultimately, justice is not blind.

                1. Thanks, WT, for taking the time to work through what I posted. As you say, the prosecutor’s blandishments can have, post-issue, a serious claim-narrowing effect. Caveat emptor. Perhaps that is why the PTO is so carefree about allowing through to issue so many dubious claims, including the one here.

                  As you say, claim construction comes before adjudicating infringement and validity. As you say, any court can get to any desired result by construing the claim accordingly. As you say, the more freedom a court has to construe the claim as it pleases, the more opportunity it has to do justice between the parties. Conversely, the higher the level of uncertainty, between the parties, what that favoured construction will be. Litigation should be a last resort. What sort of a system is it, that requires a journey up the the CAFC, every time the parties need to close out a dispute about what the claim actually means?

                  This was the dilemma facing the experts who wrote the EPC in 1973. Do we go for German style central claiming, or English style peripheral claiming. The debate has raged all through my near half century of practice and shows no sign of diminishing in intensity, even now, in every jurisdiction where patents are important. As you say, each jurisdiction pursues its own path through the dilemma, and that makes blogs like this one so interesting, at least for me.

                  That you have been reading my stuff now for more than a decade is something I take as a compliment. Nobody’s forcing you to read it, let alone take so much time to reply. That you devote so much of your time to do so pleases me mightily, for your replies are also well worth reading and deserve a thoughtful reply.

                  As to WD and FtF, it’s early days yet. I have been involved in such priority struggles under FtF for several decades and I see strict WD as inevitable. But let’s see how it pans out in the monumental CRISPR-Cas9 priority struggle, when we get to those patents subject to AIA FtF law, at the Federal Circuit or even at SCOTUS.

            2. 1.2.1.1.1.3

              As I say. Do you have in the USA anything equivalent to the saying, well-known here in Germany, that a crow is not inclined to peck out the eyes of a fellow crow. It’s like that in any police force, and medical doctors are reluctant to criticise a fellow doctor. I daresay it is no different within the USPTO. For the PTAB to hold that a PTO Examiner erred requires, perhaps, a degree of courage, to find fault with a fellow public servant. In their group loyalty to each other, civil servants are, IMHO, no different from any other “band of brothers”. That would be one way to explain differences between the CAFC and the PTAB.

              After all, he observes with his tongue in his cheek, the PTAB is an administrative instance (rather than a judicial instance independent of administrative supervision and control) right?

              1. 1.2.1.1.1.3.1

                I daresay it is no different within the USPTO. For the PTAB to hold that a PTO Examiner erred requires, perhaps, a degree of courage, to find fault with a fellow public servant.
                Exhibit #2 in the trial regarding Max Drei’s unfamiliarity with US patent prosecution practice. Every US patent invalidated by the PTAB was issued by an Examiner, which means …. that they are implicitly criticizing a fellow public servant for issuing a patent that the PTAB would not have issued in the first place.

                That would be one way to explain differences between the CAFC and the PTAB.
                ??? I would love to see a study done over the last 3 or 4 years as to what percentage of patents that went to the Federal Circuit either from the USPTO or from the district courts and were determined to be invalid. My guess is that the Federal Circuit either affirms an invalidation (or reverses a holding of being valid) somewhere between 85-90% of the time. Actually, I wouldn’t be surprised if that number wasn’t higher.

                1. Notwithstanding ANY number of your exhibits, Maxdrie would no doubt:

                  … will still be amazed with himself.

                2. WT, you advise me that “every” duly issued US patent revoked by the PTAB is a criticism of a USPTO Examiner. Really? Do the petitioners for revocation never cite any further prior art then, never considered by the Examiner prior to issue? At the EPO, oppositions to duly issued patents are successful, about half the time. But rarely is there any criticism, express or implied, of the EPO Examining Division that issued the patent. Very often, it takes inter Partes proceedings to reveal what’s wrong with the issued claim.

                  Your Federal Circuit 85-90% estimate lumps together affirmances and reversals. What is your estimate of the likelihood of the Federal Circuit shifting to a claim construction different from that arrived at below? One case in a hundred, perhaps? One case in ten? I should like to read your estimate.

                  In Europe, there is currently much debate as to the extent to which the EPO President can control the EPO’s nominally-independent Boards of Appeal. That’s another reason for my interest in the relationship between the PTAB and the CAFC.

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