Cool idea, But No Patent

by Dennis Crouch

Gabara v. Facebook, Inc. (Supreme Court 2022)

Thad Gabara is a former Bell Labs engineer and is a prolific inventor with 100+ patents in his name.  Along the way, Gabara also became a patent agent and personally prosecuted many of his recent patents, including the Sliding Window patents asserted here. U.S. Patent Nos. 8,930,131; 8,620,545; 8,836,698; 8,706,400; and 9,299,348.

Gabara’s Sliding Window patents cover various aspects of a map display for a mobile device. The problem: device screens are small and a user can only see a portion of an actual map at any one time.  Gabara’s solution is something he calls a “sliding window.”  Basically, the system has a data structure for the whole map, but the screen just provides a small window.  The view window then slides around as you move the phone about.  Figures 10(a) and 10(b) compare the prior art with Gabara’s invention.

Gabara sued Facebook for patent infringement.  Facebook responded with petitions for inter partes review (denied) and a motion to dismiss on eligibility (granted).  Judge Cote (SDNY) dismissed the case for failure to state a claim upon which relief could be granted (12(b)(6)).  The district court concluded the claims were directed to an unpatentable abstract idea of “Moving the device to change one’s view of the image instead of scrolling on the device to change the view.”  On appeal, the Federal Circuit affirmed without opinion.   Now, Gabara has petitioned to the U.S. Supreme Court for review.  Although Gabara’s petition is unique, it also ties its hopes to the pending petition in American Axle. That case is awaiting the views of the Solicitor General.

The Sliding Windows patents cover a novel data structure—a “background image of a stationary map”—that allows users to navigate large images on a smartphone by moving the phone itself. This data structure is required by the patents’ claims, emphasized as the key to the invention throughout the patents’ specifications, and was the explicit basis on which the PTAB relied to distinguish the patents over prior art. In ruling that the patents were invalid under 35 U.S.C § 101 for claiming an abstract idea, however, the court below did not consider this claimed data structure, excluded this express requirement from the patent claims from the court’s characterization of what the claims were “directed to,” and refused to consider the fact that because this claim limitation distinguished prior art, the Sliding Windows patents did not risk preemption of any abstract idea.

The questions presented are:

What is the appropriate standard for determining whether a patent claim is “directed to” a patent-ineligible concept under step 1 of the Court’s two-step framework for determining whether an invention is eligible for patenting under 35 U.S.C § 101?

Whether, and to what extent, a court may ignore the “claimed advance” that distinguishes a patented invention over the prior art in its determination of what a claim is directed to under step 1 of the Court’s two step framework for determining patent eligibility under 35 U.S.C. § 101?

Whether, and to what extent, a court may consider whether a patent claim provides sufficient disclosure regarding how the claimed invention may be made or used to determine whether a patent claim is eligible for patenting under 35 U.S.C. § 101, or whether that improperly conflates § 101 and § 112?

Whether preemption is a consideration that the lower courts must consider in determining whether a claimed invention is directed to patent-eligible subject matter under Section 101, or whether it can be properly ignored if not raised by the patent-challenger

Gabara v Facebook PetitionforWrit.  Note here that Gabara initially pursued the case pro se.  For the appeal and petition, he linked-up with Timothy Gilman’s team at Stroock.

= = =

Claim 1 of the ‘400 Patent:

1. A method of moving a portable unit to search for a new location comprising the steps of:

displaying an image on a screen of the portable unit matched and superimposed to a corresponding portion of a background image of a stationary map;

mapping a first point of the display image located in a center of the screen of the portable  unit to a corresponding reference point in the background image of the stationary map;

moving the portable unit to display a new portion of the background image of the stationary map on the screen;

identifying a new location in the new portion of the background image;

determining a first vector between the center of the screen of the portable unit and the new location; and

moving the center of the screen of the portable unit to the new location as determined by the first vector.

 

99 thoughts on “Cool idea, But No Patent

  1. 11

    “moving the portable unit to display a new portion of the background image of the stationary map on the screen;”

    They should have drafted that part tighter, that was the big oppsie here. Should have said “moving the portable unit to cause the display to display a new [another?] portion of the background image of the stationary map on the screen”

    Oppsie

      1. 11.1.1

        If you think it was intentional then so be it. But I would think it was unintentional and they didn’t intend to violate 101.

        1. 11.1.1.1

          There is as little doubt that it was not intentional as there is of the court buggering up another case.

  2. 10

    You err in thinking that only humans can host “abstractions” as you seek to use the word, as any sentient being may do so at varying degrees

    I’ll just bump this up since its such a compact slug of your word salad. No human mind, no abstraction

    Prove otherwise and win a Nobel Prize.

    ab·strac·tion
    /abˈstrakSH(ə)n/
    noun: abstraction
    1.
    the quality of dealing with ideas rather than events.
    “topics will vary in degrees of abstraction”
    something which exists only as an idea.
    plural noun: abstractions
    “the question can no longer be treated as an academic abstraction”
    Similar:
    concept
    idea
    notion
    thought
    generality
    generalization
    theory
    theorem
    formula
    hypothesis
    speculation
    conjecture
    supposition
    presumption

    2.
    freedom from representational qualities in art.
    “geometric abstraction has been a mainstay in her work”
    an abstract work of art.
    “critics sought the meaning of O’Keeffe’s abstractions”
    3.
    the process of considering something independently of its associations, attributes, or concrete accompaniments.
    “duty is no longer determined in abstraction from the consequences”

    4.
    the process of removing something, especially water from a river or other source.
    “the abstraction of water from springs and wells”
    Similar:
    extraction
    removal
    separation
    detachment
    Origin

    late Middle English: from Latin abstractio(n- ), from the verb abstrahere ‘draw away’ (see abstract).

      1. 10.1.1

        It’s ‘amazing’ what Greg can see with his eyes clenched tight.

        Pssst, Greg, this is not a good look for you – and ‘encouraging’ marty with his delusions in the weeds is not doing him, or anyone else, any favors.

    1. 10.2

      No Nobel prize necessary, as a feature of sentience is abstraction – look at various animals and their use of tools, dolphins and primates communications and the like.

      You are simply out of your league marty

  3. 9

    Even if this were eligible subject matter, how is actually novel? Or perhaps I should say how is it non-obvious?

    Prioirty here appears to date to late 2011. But since at least 2008, Star Walk has used the same basic mechanism to present a map of the sky: you move your phone around, and it shows you a map of the stars and other objects in the sky, in order to identify them.

    This is the “sliding window” concept.

    If using the same sliding window to display a different kind of map, just because it’s a different kid of map, is actually deemed novel, it’s hard to see how it isn’t obvious.

    1. 9.1

      The Ends do not justify the Means.

      Your point is an excellent one – and one that should help deflate the nonsense of 101 being a nose of wax obliterated out of shape.

      Alas, the distinction is refused to be grasped.

    2. 9.2

      Don’t you know the rule is that unless you map out every limitation to a reference, you’re not allowed to suggest that a claim is obvious?

      It’s only fair because a lifetime of patent prosecution has rendered these people incapable of arguing in favor of an invention without a counter-arguement to nitpick.

      1. 9.2.1

        Don’t you know the rule is that unless you map out every limitation to a reference, you’re not allowed to suggest that a claim is obvious?
        That IS the law. A claim is not obvious just because you got 95% of the way there. People who do this for a living (and are good it at) make sure every single word counts. There should be no extraneous words in claims — bad things can happen when there are. Consequently, words shouldn’t be ignored.

        I know it is frustrating for an Examiner to find most of the limitations yet get stuck on just one or two. I know the temptation is just to fudge that last limitation by BRI’ing it out of existence or handwaving to a couple of paragraphs in the cited art. I see this ALL THE TIME. I’ve seen this going back 25+ years.

        Close is good enough for horseshoes and hand grenades — close is not good enough for claims.

        1. 9.2.1.1

          “That IS the law.”

          You’re conflating legal proceedings with a conversation regarding the law on a blog.

          Yes, every element is necessary for a claim to be obvious. No, someone asserting a claim to be obvious does not have to present a prima facie case of that obviousness.

          I know it’s frustrating for a patent prosecutor to leave that cozy bed where the other side must present a prima facie case before they need lift a finger, but that’s not how conversations work.

          1. 9.2.1.1.1

            Ben,

            You are the one being confused. This IS a blog about patent law. That YOU may want to be
            L
            A
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            Y
            and rest on colloquialisms just won’t cut it.

            (And the view of “prima facie” is inapposite to this discussion).

    3. 9.3

      If using the same sliding window to display a different kind of map, just because it’s a different kid of map, is actually deemed novel, it’s hard to see how it isn’t obvious.
      It is “obvious” to many because many don’t look at the claims. Rather, they think the invention is nothing more than some else’s broad generalization of the claims. The claims define the invention — not someone else’s broad generalization.

      Facebook filed an IPR against Gabara, and Facebook is no neophyte when it comes to invalidating patents. That IPR was not instituted. I’m going to go out on a very strong limb and presume that Facebook probably found prior art at least as good as what you are describing. If so, then the PTAB disagrees with you that the claimed invention is obvious.

      Unfortunately, much of the outside world’s impression of patents come from people who don’t understand patents or patent claims. They (intentionally or not) mispresent what is being claimed, and because of that misrepresentation, they put the patent system in a bad light (intentionally or not). You can see examples of this every day on this blog.

      1. 9.3.1

        Sadly, this:

        Unfortunately, much of the outside world’s impression of patents come from people who don’t understand patents or patent claims.

        describes many of the Anti’s here (including those that should know better).

        Those that should know better (but post anyway) mislead the “colloquial” such as “marty,” who thinks it fine to (continue) to invest in weed-infested fantasies.

        1. 9.3.1.1

          … add in Ben as well, as he would deign to misuse the legal meanings of words “in order to have a conversation.”

  4. 7

    >>The district court concluded the claims were directed to an unpatentable abstract idea of “Moving the device to change one’s view of the image instead of scrolling on the device to change the view.”

    OK. Sure that is one of those abstract ideas that is notoriously well known. Not.

        1. 7.1.1.1

          When the utility arises in someone’s mind.

          No human mind= no abstraction

          A deeper hole, a sharper knife, a brighter display, an improved automation are useful regardless of what someone thinks about them.

          A better stock trade, a new way of looking at a shopping mall directory, a diagnostic correlation, an easier way to book a hotel room are not useful without someone thinking about them.

          1. 7.1.1.1.2

            Martin, the problem with your arguments are many. I think some of what you are asserting is interesting and helpful. But saying that, for example, that a better stock trade is abstract because the utility is in the human mind is conflating abstraction with utility.

            The better stock trade has real structure and does things in terms of information process, i.e., uses power, time, and space, to present information differently. That is happening regardless of human perception.

            1. 7.1.1.1.2.1

              marty reminds me of Narcissus – and would drown embracing his own visage in but a shallow pool of water.

            2. 7.1.1.1.2.2

              I’m not saying that the better stock trade doesn’t have real structure or lacks novelty or is not useful.

              The problem with abstraction in inventions is when the utility itself is abstract.

              Abstract means (literally the Latin root) “to draw” as in, to draw meaning. For policy and moral reasons, we should not (and in many instances) do not allow IP protection for thoughts- and when utility arises directly from thoughts, it’s an abstract form of usefulness that ought not to be eligible.

              Abstraction in a patent claim is a completely different problem. That’s a problem with the words used to represent an invention- so that people can’t appropriately draw meaning from the words to legally ground a claim. Those are 112 and 103 problems, not fundamental eligibility problems. “Do it on a computer” problems and inventions described too generally or without specificity of the novelty or difference from prior art. Alice is a reasonable compact test in those cases.

              That’s the conflation that is causing much of the confusion- the downright befuddlement- of legislators, judges, lawyers and inventors regarding the meaning of “abstract”.

              1. 7.1.1.1.2.2.1

                You remain untethered to the terrain of patent law with your attempt to introduce TWO forms of “abstract.”

          2. 7.1.1.1.3

            A better stock trade, a new way of looking at a shopping mall directory, a diagnostic correlation, an easier way to book a hotel room are not useful without someone thinking about them.
            Clearly, what you are advocating for finds no support in either the language of the statute or the congressional record. With this is mind, what is your policy justification? You are testifying before Congress — trying to get them to buy into how 35 USC 101 should be rewritten — how do you convince them to implement this approach?

            BTW, you also do realize that deeper, sharper, brighter (i.e., improved) are not requirements for patentability?

            a diagnostic correlation … [is] not useful without someone thinking about them
            But a diagnostic correlation combined with a treatment would be useful. With that in mind, if I claim an improved widget that needs to be installed as part of a thingamabob in order to operate, can I claim the widget alone or do I have to claim it as part of the thingamabob? Claimed alone, it doesn’t have any utility — somewhat like a diagnostic correlation.

            1. 7.1.1.1.3.1

              I convince Congress that abstraction is the nexus of the problem, because abstraction is the frontier between the outside world and the inside universe of human experience.

              New and useful information used by non-human actors cannot be abstract, because it must be a machine component, while new and useful information used by humans for human purposes can only be abstract, and should not be limited by law for reasons of liberty, practicality, justiciability and the progress of human culture.

          3. 7.1.1.1.4

            Imagine, Martin, a heating system. One could say the only utility is that the person perceives of being warm in the winter.

            Does that make it abstract? What about a laser that cuts out cancer?

            1. 7.1.1.1.4.1

              Night, being warm or cold is not an abstraction. Sensory perceptions are not thoughts- they are not creations of a human mind. All information processed by a human brain is not abstract. A fish or a worm responds to hot and cold. A person in a coma would benefit from an improved heating system. There is no abstraction in that utility.

              A laser that cuts out cancer is entirely eligible- what part of that utility arises only in the human mind?

              1. 7.1.1.1.4.1.1

                Temperature is not an abstraction.

                “Being” warm or cold IS an abstraction.

                I am “warm” in my office with a temperature of 68 degrees Fahrenheit. My wife walks in and she is “cold” at that same temperature.

                1. A fish or a turtle can be cold, and cannot host an abstraction.

                  The body temperature of an animal can be measured objectively and could presumably be an element of a patent claim.

                  A subjective feeling of cold or warmth is not protectable by a patent nor definite enough to be in a claim. How could it be?

                2. Caught in filter…

                  Your comment is awaiting moderation.

                  February 18, 2022 at 3:20 pm

                  You remind me of a slow-boiling frog, perfectly content with the incremental raises to temperature without the ‘abstraction’ of sense of “hot.”

                  You err in thinking that only humans can host “abstractions” as you seek to use the word, as any sentient being may do so at varying degrees.

          4. 7.1.1.1.5

            >a diagnostic correlation

            Unfortunately true, but that rule needs to be changed on humanitarian grounds, stat. The creation of new diagnostic tests is up there with antibiotics in preventing/mitigating human misery.

          5. 7.1.1.1.6

            marty’s quip of “no human mind” meets the immediate trashing of his “pet,” as utility in the patent sense requires a human mind to pass judgement.

            This is why he
            F
            A
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            L
            S
            with the simple example of a traffic light.

            ANY item of manufacture divorced from the human mind’s understanding of what the utility is for does not have any utility.

            A big blob of metal with multi-colored blinky lights has zero utility (without the human mind by which utility is understood).

            He has also in the past
            F
            A
            I
            L
            E
            D
            with his example of a sharp knife, even as I have led him by the hand to recognize that “sharp” alone is not what presents utility, but the fact that “knife” is present is what signals the human mind to recognize utility.

            On the legal basis, a world without humans simply would be a world without patents.

            ALL of his attempts to distill “only in the mind” or “First Amendment,” or “Liberty” or “culture” are debunked from his “pet.”

            As to “culture,” I even pointed out to him the difference of playing a Stradivarius violin (outside of the Useful Arts) with a method of making a Stradivarius violin.

            He simply chooses to disappear (and appear later gurging his same nonsense).

            1. 7.1.1.1.6.1

              What

              F
              A
              I
              L
              S

              is the current patent law.

              You have nothing to say about that but to scream in your bor ing and endless posts that everything is just fine with the law as written and everyone who thinks otherwise is just wrong.

              Meanwhile, everyone whose job it is to build and protect and adjudicate the system. among them many learned and experienced people, all recognize a major problem but can’t come up with a workable way out of it.

              Those people don’t recognize that the problem is fundamentally one of information.

              Before the information age, kluges like the printed matter doctrine and rare cases like Morse could finesse it, but once major economic value started to attach to innovation that was purely new and useful information, that was no longer viable.

              And here we are.

              1. 7.1.1.1.6.1.1

                You double down in your errors, as I merely seek to have the law as is properly recognized, and the problem is that there are those perfectly willing to PER VERT the law to arrive at their desired Ends.

                I am perfectly content with a proper change through proper Means to correct any cognitive change as would be reflected in the proper Means.

                Bluntly put — we are NOT where YOU think we are, and mainly so, as you have simply not taken the time to understand the terrain. You only (ever) see the reflection of yourself in that shallow puddle, and set yourself to drown in that puddle.

  5. 5

    From our li’l genius’s brief:

    “because this claim limitation distinguished prior art, the Sliding Windows patents did not risk preemption of any abstract idea.”

    This is totally NOT how it works and, as written, is so far off the mark of the law that sanctions would be totally appropriate.

    1. 5.2

      IDK. SCOTUS itself seemed to base Alice/Mayo on preemption. And, the (here-admitted) presence of alternatives would seem to be decent factual evidence against there being such a risk.

      I’ll acknowledge that the USPTO ignores this concept and the FedCir only gives it lip service. But…this is a cert petition arguing that the USPTO/FedCir aren’t following SCOTUS precedent.

      1. 5.2.1

        Preemption is a red herring (no matter what the Supreme Court scrivined).

        ALL claims preempt.

        That is what they do.

  6. 4

    “novel data structure”

    Ha ha ha. Oh but wait — Marty has an “analysis” that “explains” why this non-structural “structure” is patent eligible subject matter. I’m sure it’ll be really compelling.

    1. 4.1

      A “background image of a stationary map” is a novel data structure as opposed to a foreground image of a dynamic map, or an image (foreground or background) of a topographical feature that is clearly marked “not for use in mapping”.

  7. 3

    Is it fair to conclude that this guy is self-aware enough to realize his “contribution” is only applying existing techniques to particular information based on his claiming that application rather than claiming the underlying techniques in isolation?

    20050212749.

    1. 3.1

      Is it fair to conclude that this guy is self-aware enough to realize his “contribution” is only applying existing techniques to particular information“

      Yes but this is on a computer which was just invented yesterday as far as the PTO knows. Changes EVERYTHING!

    2. 3.2

      I (briefly!) searched only for the motion based image display translation, but on further review the above reference actually applies those techniques to a map display!

      I’m not going to map out the limitations (i.e., do my job for free), but this looks like a possible 102 or extremely solid primary reference for a 103. It also seems much more apt than the Kim reference of the FB petition. If anyone is curious, paragraphs 69 and 63 are good places to start.

      1. 3.2.1

        Para 63 seems like some deadly prior art – the language itself suggesting that using device movement translation for map focus is what PHOSITA would consider an obvious application….

        Facebook should send you a check, if anybody actually used these comments for anything other than ranting….

  8. 2

    Hmmm I’ll just apply my test, as usual.

    Is it a claimed as a process? Yes

    Is the useful result of the process an item of information? Yes

    Does the utility of the information arise in the mind of a human being? No- the utility is achieved without regard to the human meaning of the information. The method is a means of better displaying information without regard to the meaning of the displayed information.

    This invention could be used to scan a large spreadsheet or graph or photo, not just a map. So it should be eligible.

    Is the invention obvious under 103?

    I’d say so. Map devices move in vehicles every day, and in that movement direct a background map display to move as the vehicle moves. Removing the vehicle and allowing movement by hand (or walking etc.) to change the background display would be obvious to PHOSITA.

    Using 101 for this purpose is just a bad idea, as we see in case after case after case. Alice is a useful compact 103/112 test. I can’t see it any other way.

    1. 2.1

      I’d say so. Map devices move in vehicles every day, and in that movement direct a background map display to move as the vehicle moves. Removing the vehicle and allowing movement by hand (or walking etc.) to change the background display would be obvious to PHOSITA.
      The ‘400 Patent only has a priority date of 2011. What you described exist as prior art existed well before then. I have little doubt that this was considered as prior art and the examiner determined that the invention was not obvious.

      I suspect that you’ve overlooked some aspect (or multiple aspects) of the invention.

      1. 2.1.1

        “I have little doubt that this was considered as prior art and the examiner determined that the invention was not obvious.”

        I have significant doubt given the First Action allowance identifies “mapping a first point of the display image located in a center of the screen of the portable unit to a corresponding reference point in the background image of the stationary map” as the deficiency in the prior art.

        1. 2.1.1.1

          “Wherein X is on a mobile device” used to pull a lot of weight at the PTO, much as “artificial intelligence” does today. Certain buzz words just send tingles up the legs of the deep thinkers there.

          Portable device, you say? The computer is in there? Oh but some stuff takes place remotely? Nobody could have predicted that one could process data on such a thing. In any case, they didn’t use the words you are using so congratulations

        2. 2.1.1.2

          Perhaps you didn’t notice that this application was a Continuation of a Continuation. First Action allowances are quite common in these instances because the identification of the elements that the Examiner finds to distinguish over the prior art is done earlier (i.e., in the parent applications).

          In this instance, it was the grandparent that included prior art rejections — a 102 rejection based upon USP 7714880. The arguments involved the limitations associated with the displacing a first location of the image using a vector having an approximately known angle and a known distance. Without closing reviewing both the claims and the patent, I’m not sure as to the patentable difference.

          You above mentioned 20050212749. In quickly looking at that, while close, I can see the difference. The movement of the device is sensed and equates to a particular function. However, it is a different function. Maybe there is more to the reference that what I read, but you’ve give us little to work with beyond a naked citation.

          This is a common problem I see all the time. Someone looks at a claim and says to themselves — “I’ve seen this before. This is just like XYZ.” However, they tend to overlook small yet significant differences. It is far more common by those who aren’t in the profession. However, it is a problem that still afflicts those in the procession.

          1. 2.1.1.2.1

            “Perhaps you didn’t notice that this application was a Continuation of a Continuation.”

            I’ll admit that I didn’t, but I don’t think that addresses how the provided reason for allowance makes it sound like the examiner hadn’t considered navigation aides.

            1. 2.1.1.2.1.1

              As I noted below, these navigational aides have been in the prior art for at least 20 years prior to the priority date of this application. I highly doubt the Examiner happened to miss them.

      2. 2.1.2

        Without a formal construction of the invention, we can’t really even reasonably decide who PHOSITA should be- nor necessarily could the examiner- which is a procedural gap in dealing with information inventions that is currently unsolved.

        Litigation tests claims in ways that prosecution cannot, regardless of current procedure.

        Is it the portable device arts?

        the mapping arts?

        the computer display arts?

        the portable navigation arts?

        hmmmm

          1. 2.1.2.1.1

            This invention seems pretty obvious within the math with vectors arts…

            If the law could even explain how doing math with vectors is, or is not, a “process” which can be an invention patentable without resorting to unwritten norms and incoherent invocations of “printed matter” or “abstract ideas” or “natural laws”….

            1. 2.1.2.1.1.1

              FWIW, both Facebook and the patentee agreed (denial of institution decision for 8,930,131, pg. 9) that the PHOSITA would “possess at least a bachelor’s degree in software engineering, computer science, computer engineering, or electrical engineering with at least two years of experience with software application development, including experience developing software and systems for portable devices that can manipulate and render digital images, such as maps.”

              1. 2.1.2.1.1.1.1

                In other words, both parties are incredibly high on software patent crack because absolutely none of those things is needed to understand what is being claimed. All you need to understand is some advanced high school math. Beyond that, you need to understand that portable computers with both display screens and location detection sensors were in the prior art.

                No need to have any computer-related degree or any specific training whatsover in “computing.” It’s a high school math problem plus elementary school level history.

                1. Lol. You know what else was in the prior art? Electrons, protons and neutrons.

                  Here, I have a big box of them — according to your “logic” Malcolm, EVERYTHING is now obvious.

            2. 2.1.2.1.1.2

              As to “incoherent invocations,”

              marty — your are doing that projection thing again. Incoherent to you ONLY means that YOU do not grasp it.

              Believe it or not, the world does not turn on how you grasp things.

          2. 2.1.2.1.2

            “Doing math”….

            You have:
            math
            applied math (read that as engineering); and
            Math(S)

            We have only been over this for a decade or so, Malcolm.

    2. 2.2

      Nice catch, the cited claim 1 does not distinguish between moving a map background display device by hand movement or moving it by car movement [or military airplane movement]. And I agree with Ben that this might be missed by an examiner just during a computer word search. Also, what specific enablements for display position sensing and other necessary electronics for a coordinated map movement was provided in this spec?

      1. 2.2.1

        Neve mind the Examiner. The PTAB denied institution, even with FB’s best lawyers on the case. So are you telling me the Examiner and the PTAB (with the help of FB lawyers) missed how obvious this is?

        This invention is neither obvious nor anticipated according to the USPTO, but a judge on a 12(b)6 motion can determine the claims fail 101? Before I get the scolding lectures on how the analysis of 102/3 and 101 are separate, it still seems like a unartful or unintelligent way for the courts to dismiss a patent suit.

          1. 2.2.1.1.1

            So a denial of IPR institution (presumably not because the APJs weren’t too busy) is primae facie evidence that the claims are non-obvious.
            Perhaps you were unaware that issued patents are presumed valid (i.e., non-obvious).

            If the claims were as obvious as the peanut gallery thinks they are, Facebook’s attorneys would have gotten the IPR instituted.

              1. 2.2.1.1.1.1.1

                odd edit….

                Our peanut gallery of patent attorneys (like Greg 71,695), non-patent attorneys (like Paul, who relinquished his USPTO registration number), foreign non-patent ‘attorneys’ (like MaxDrei), and non-attorneys (including examiners like Ben and Random, as well as “make things up out of whole cloth – don’t care about the terrain of patent law” self-interested narcissists like marty) each cling fervently to their respective Peaks of Mount S.

        1. 2.2.1.2

          “ it still seems like a unartful or unintelligent way for the courts to dismiss a patent suit.”

          Seems way less intelligent to pretend that a “data structure” is an objectively defined physical object that is distinguished from the prior art in that manner.

          But little rich kids love to pretend! Especially with their fancy toy armies and such.

          1. 2.2.1.2.1

            I do not practice in these arts. I look to cases like this to educate myself as to how the law is applied in an art that is not in my wheelhouse to see if the court’s analysis may creep into my domain. When a case is dismissed on an 12(b)(6) motion and affirmed without comment after the PTAB did not institute an IPR, I would have hoped the court would realize the cases uniqueness and draft a robust and thorough opinion to explain their holding.

            I was being polite with my unintelligent or unartful adjectives to describe hoe the court disposed of the case. It seems more like laziness upon further thought. I wonder if Dennis would post the district court opinion?

        2. 2.2.1.3

          Good question as to why the IPR petition here was denied? Was it perhaps a Fintiv denial because the 12(b)(6) 101-exception motion was already considered by the SDNY judge? But also note that a moving car map display reference for claim 1 above, even if a 102, is not a patent or publication reference that can be used in an IPR

          1. 2.2.1.3.1

            Per Greg, it need not even be a Fintiv denial. It could be that the available APJ’s were just all booked up that week.

            Not-reviewable. Any reason or no reason. That’s where it stands.

            Also: if patents are presumed valid (which I understand the statue says they are) then why litigate at all?

            1. 2.2.1.3.1.1

              Also: if patents are presumed valid (which I understand the statue says they are) then why litigate at all?
              You do understand what a presumption means, legally? Let me help you out.

              This is from Black’s Law Dictionary:
              An inference in favor of a particular fact. A presumption is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted.

              a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption.

              The last statement mirrors Rule 301 of the Federal Rules of Evidence (i.e., “has the burden of producing evidence to rebut the presumption”). This provides another example as to why the Federal Circuits Rule 12b6 jurisprudence does not comport with the law. A Rule 12b6 motion is prior to evidence being submitted. However, the defendant in a patent infringement case must submit evidence to rebut the presumption of validity in order to invalidate a patent. This begs the question of: where is the evidence to invalidate a patent when a 12b6 motion happens before evidence is submitted?

              The Federal Circuit dances around this by asserting that the patent itself is the evidence because it is part of the complaint. Assuming this to be true, the plaintiff (i.e., the patent owner) should still have the opportunity to present additional evidence. As stated by the Supreme Court in Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), when “the federal court reviews the sufficiency of a complaint … [t]he issue is not whether the plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims.”

            2. 2.2.1.3.1.2

              [I]f patents are presumed valid (which I understand the statue says they are) then why litigate at all?

              Good question, and the answer gets at what is meant by “presumption” in federal law. As the Court explains in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 n.8 (1981), “[t]he word ‘presumption\ properly used refers only to a device for allocating the production burden.” In other words, when one says that patents are presumed valid, all that means is that the challenger has to come up with some sort of evidence of invalidity before a court can declare the patent invalid (just as a patentee must come up with some sort of evidence of infringement before a court can rule for the patentee).

              However, once the patent challenger meets this burden of production, the presumption drops out of the case. Id. at n.10. In the colloquial parlance of the law of evidence, the “bubble bursts,” at which point the trier of fact is simply supposed to weigh all evidence in the record and assess invalidity. A tie goes to the patentee*—that is to say, if the court, after weighing all of the evidence, is in equipoise about validity vel non, then the court should rule that the claim is valid. Otherwise, however, the “presumption” has no further application in the analysis after the defendant has brought for at least some legally admissible evidence of invalidity.

              * That which qualifies as a “tie” is different between the “preponderance of evidence” standard used by the PTAB and the “clear and convincing” standard used by U.S. district courts when assessing validity.

              1. 2.2.1.3.1.2.1

                Greg is in plain legal error with his “some.”

                Presence and level of presumption are important.

                Ask i4i.

                As to Greg’s misrepresentations, this notion was long before him well before he became huffy and put forth his feigned umbrage in order to not read all of the responses, so this is a purposeful error on his part.

          2. 2.2.1.3.2

            But also note that a moving car map display reference for claim 1 above, even if a 102, is not a patent or publication reference that can be used in an IPR
            SMH.

            USP Patent No. 5,171,886, which has a priority date of January 11, 1990. From that patent:
            The microprocessor generates successive perspective images with a frequency of approximately 1 image per second when all topographic information of the area selected from the memory is displayed. Thus, every second a new image which has been adapted to the current position and direction of the vehicle appears on the display screen of the user.

            In other words, the direction of vehicle (and hence the screen in the vehicle) determines the perspective of the image. To repeat what I wrote above, the invention is more than this. If the invention was just this, the application would have never been allowed.

          3. 2.2.1.3.3

            Not a Fintiv denial. The PTAB panel considered that Facebook had not established that the claims were more likely invalid than not. I am not the right person to assess the obviousness of these claims, but I agree with Xian that one has to question how clearly “obvious” these claims are—even in view of citations like Ben’s—if Facebook was unable to convince the PTAB that it was more likely than not to prevail on either a novelty or an obviousness theory of invalidity.

        3. 2.2.1.4

          “So are you telling me the Examiner and the PTAB (with the help of FB lawyers) missed how obvious this is?”

          I agree it’s appropriate to update your probabilities based on FB’s failure.

          I also think further updates are due based on how inapt the petition’s reference is. PTAB did not merely disagree with a motivation to combine, or disagreed about the presence of some minor element… they effective disagreed whether the Kim reference was in the ballpark of the claim. The very concept of Kim was off.

          If anything, we should be concluding that FB did not use their best attorneys for this IPR.

          1. 2.2.1.4.1

            Evidently it is time for you to quit your PTO gig and go hang a shingle in front of Meta’s offices. I feel quite certain that Meta would have been willing to pay you much more than the PTO is if you could have achieved a better result for them. 😉

  9. 1

    The district court concluded the claims were directed to an unpatentable abstract idea of “Moving the device to change one’s view of the image instead of scrolling on the device to change the view.”
    How is that in any way, shape, or form an abstract idea?

    And people wonder why the likes of Google and Facebook have become so wealthy and powerful (with the power following the wealth). They don’t have to pay for technology developed by others anymore with federal districts courts and the Federal Circuit declaring that this technology is free for anyone to use.

    Take from the poor to give to the rich — that is the way of the Federal Circuit. Its an embarrassment to the patent system.

    1. 1.1

      +1

      Yet another abhorrent abdication of the CAFC’s sworn duty to make right that which is wrong.

      Will the rain of shame never end?

      1. 1.1.1

        Who were the horrid CAFC judges who found the claims not patent eligible? Dyk? Reyna? Oh, for the days of Judge Rich and Judge Lynn.

          1. 1.1.1.1.1

            With Reyna and Hughes on the panel, this case was dead In arrival. Surprised Moore joined, but she has become a major disappointment lately. Like a poor man’s Kagan (where are those hundreds of thousands of kids dying of COVID?), and that is not a compliment!

            1. 1.1.1.1.1.1

              There have been almost 1,000 children who died of covid, many more than from the flu the last several years. 307 from 0-4, 663 from 5-18.

              link to data.cdc.gov

              Not quite thousands, but getting there.

              By the way, MIS-C is also an issue, and this tends to be at least somewhat genetic.

              1. 1.1.1.1.1.1.1

                Not quite thousands, but getting there.

                The phrase was hundreds of thousands, and we are NOT ‘getting there.’

                Why bring that Kool-Aid here?

    2. 1.2

      “Moving the device to change one’s view of the image”

      I mean, it seems a bit abstract.

      ” They don’t have to pay for technology developed by others anymore with federal districts courts and the Federal Circuit declaring that this technology is free for anyone to use.”

      You mean they don’t have to pay for tech deved by others because lawlyers have to describe that tech in abstract ways in order to “protect it”. That’s not the fault of the fed circ bro.

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