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back to article Trolls and victims watch Supremes for definition of meaningless patents

A patent dispute over a fitness technology running in the US Supreme Court will decide just how vague a patent has to be before it becomes meaningless. The long-running lawsuit (it was first filed in 2004) is between iron-pumping-powerhouse Nautilus and bio-monitoring specialist Biosig. Biosig's original complaint was that …

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Dear Reg editors:

Can we please stop calling the USSC "Supremes"? Much as I'd like to see a judgement delivered by Diana Ross, this is just raising unreasonable expectations.

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Re: Dear Reg editors:

Yeah, what's wrong with "SCOTUS"? I always that that had an interesting ring to it.

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Coat

Re: Dear Reg editors:

What's wrong with SCOTUS? ... well, if I don't have my reading glasses on, I tend to read it as "scrotums" ...

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It can be black or white or any colour, it will be multi shaped with wires that may or may not run through, around, over or past it. It is multi-functional and may or may not have attachments. It also has many purposes yet to be defined.

Patent number 2947654/235/23-89164.

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Re: Dear Reg editors:

If it's good enough for "The West Wing", it's gotta be good enough for El Reg.

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Happy

@Old Handle

SCOTUS is an American term, just as the equally inane POTUS - sounds like something that needs squeezing.

El Reg is based in the UK, uses English spelling and therefore should follow English practice as laid out in the OECD.

Whose damn language is it anyway?

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Thumb Up

Re: therefore should follow English practice as laid out in the OECD.

Which clearly states you should use the name "Supremes" when talking about the US Supreme Court!

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Re: @JaitcH

Whose damn language is it anyway?

Following the usual level of due diligence carried out by the US Patent Office, they were unable to find any prior art.

Accordingly they have issued a patent on the language assigning ownership to the 'merkins.

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Joke

Diana Ross & The Supremes

Best judgement on this would be 'Stop in the name of Love'

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Anonymous Coward

LarsG / Gray Ham

"if I don't have my reading glasses on, I tend to read it as "scrotums" ..."

"... can be black or white or any colour, .... multi shaped with wires that may or may not run through, around, over or past it. It is multi-functional and may or may not have attachments. It also has many purposes yet to be defined."

Someone needs a doctor.

Quite soon.

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Anonymous Coward

Re: tend to read it as "scrotums" ...

And the problem with that is???

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Re: Dear Reg editors:

I don't know about that, given some of the Supreme courts decisions lately, I think a reasonable expectation is that they are more likely to receive a more sensible judgement by the "Supremes" of the Diana Ross variety.

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Meh

I only know from what this article said, but in my opinion, it would be a mistake to specify the separation if different separations would also work. If you specify a separation of x, then another company can come out with a device using a separation of x+delta and claim the patent isn't valid for this different separation.

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x+delta

In the end, judges are the last people in America still sometimes allowed to apply common sense. If the patent said something like "separated by approximately one hundredth of a cubit" the judge could rule as a matter of common sense whether, say, a device with a separation of 0.03 cubits infringed. In other words, the patent could have been written as an *implementable* specification without allowing an x+delta imitation to squeak through. On that basis, I think Mary Wilson and her colleagues could easily strike down the vague patent with the observation that it didn't need to be *that* vague. (BTW, it's the original patent examiner who blew it.)

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Having to specify the separation is indeed ridiculous - if you say "separation of 6.543mm then someone else can build something otherwise identical with a separation of 6.542mm. But you should have to specify in detail how the pulse measurement is taken. There are plenty of ways to monitor pulse, and you shouldn't be able to take out a general patent on the concept of taking a pulse in a workout machine.

To allow that is the whole problem of the 80s "<existing patent> xxx, but with a computer", the 90s "xxx, but on the internet" and 2000s "xxx, but with a mobile device". Before long look for patents of "xxx in an unmanned drone aircraft" and "xxx in a self driving car".

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You missed one: 2010s' "xxx but in the Cloud".

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Re: x+delta

Clearly they are unaware of the British legal maxim de minimis non curat lex (obviously no translation needed for intelligent El Reg readers!).

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Trollface

Re: x+delta

Oh, you mean the law forbidding gnomes to become curators? Of course we know about that one...

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Coat

Re: x+delta

I thought it meant "The midgets don't fix a Lexus"

;-)

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Re: x+delta

de minimis non curat lex

Apparently, "The law does not concern itself with trifles".

Good. Everyone should be allowed to make trifles the way they want, and not have the plod sticking their noses in!

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Anonymous Coward

Re: x+delta

sometimes - very occassionally - the plod really should stick their noses in trifles ...

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Joke

Re: x+delta

"Oh, you mean the law forbidding gnomes to become curators? Of course we know about that one..."

Don't be ridiculous, next you will suggest Feegles become lawyers!

Ya wee scunner!!! Bigjobs!

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Re: x+delta

"In the end, judges are the last people in America still sometimes allowed to apply common sense."

'Sometimes' and 'apply common sense' being the terms which allow one of them to decide unilaterally, that his domain covers the entire world - clearly this is not one of those times.

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@DougS

The patent does say how the pulse is taken, essentially they use a "difference amplifier" to filter EMG from ECG and time the ECG. Of course the "difference amplifier" is purposefully vague because of the myriad ways of making such a thing.

It's always nice to have a preferred embodiment but the patent is a bit silly since the spacing could be fifty feet which I doubt would allow it to function. Simple testing might reveal that too small a spacing results in sweat creating a short circuit or difficult to manufacture and at some point it becomes impractical so putting in some numbers to specify a spacing range would avoid all of this. At this point it's a question of whether this was purposefully vague or simply lazy.

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Re: @DougS

"The patent does say how the pulse is taken, essentially they use a "difference amplifier" to filter EMG from ECG and time the ECG."

Well that can't be relevant because using a difference circuit to extract a small signal from a large background has prior art going all the way back to the early 19th century.

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How long are these patents good for?

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Happy

Were they ever good for anything?

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Unreasonable and limiting to competition

The notion that anyone with the money to go through the now fairly expensive process of patenting can patent a vague idea or concept is totally wrong.

A catch all description of some vague airy idea should not be enough to grant a patent, while it is reasonable to have enough leeway to prevent copying of an item in all senses but for one small adjustment to protect a patent holder, the current qualifications for patenting are absurd and only encourage patent trolls.

The whole system needs overhauling with the idea of fair trade in mind, though how to achieve that needs better minds than mine.

At the moment the system is stacked in favour of avaricious big businesses with large legal departments who subsequently go on to use their patents as a means to prevent competition and control markets to the detriment of the public.

As for patent trolls, any that bring an action for some spurious claim should be heavily penalised when they fail, in order to discourage the practice.

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Re: how to achieve that needs better minds than mine.

And that's the problem. Without proof I'll grant you being above the median on that front. so your ideas are better than at least 50% of the other ideas out there. By testing they tell me I'm in the top 2%. I'm not smart enough to figure it out either. Which pretty much guarantees nobody in Congress is either.

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Perhaps spacing isn't relevant.

Perhaps the idea is trivial, obvious or can be easily developed by anyone skilled in the Art. Any of which are supposed to kill a patent application.

Novelty needs to be in it, but novelty alone nor lack of prior art isn't sufficient.

The USPO doesn't even apply their own rules properly,

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Trollface

Patents and trolls aren't a problem

Here is a complete list of troll patents:

0ne: Club

Two: Hit other troll over head wid der club

Many: Hit man over head wid der club

Lots: Hit dwarf over head wid der club

Infringements currently policed by sgt. Detritus

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> That decision has kept the case bouncing around and dragging on, with the original decision reversed by a Federal Court decision on the grounds that the patent wasn't so ambiguous that the product couldn't be built.

Not quiet sure I understand the point of the ruling.

Surely, the more ambiguous the patent, the easier it is to build a relevant product, not harder.

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Boffin

Patent purpose

The purpose of a patent is to protect an invention, allow a monopoly for a limited time in which the inventor can profit from his invention … and document the exact thing being patented so that anyone can build the invention themselves. During the patent's validity, anyone building the patented product has to pay the patent holder a fee, to be set by said patent holder. Once the patent expires, the invention is fully documented as to be useful to the rest of the world.

Vague patents are thus useless in this sense. They must be struck down.

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"the more ambiguous the patent, the easier it is to build a relevant product"

So, if I understand you correctly, the only thing keeping us from having a functional hyperdrive is the fact that nobody has filed the patent yet ?

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Re: Patent purpose

> The purpose of a patent is to protect an invention

Bzzzt. Wrong. The grant of the limited time monopoly is the *incentive* that the state offers to the inventor in order to publish his invention. When everyone can see how the novel mechanism is constructed, then progress is promoted, because other inventors can build on the idea. It's the progress of technology that is the purpose of a patent regime.

Thus it follows that a patent must be drafted to *teach* a practitioner in the relevant field how to build the patented device. If it's too vague, then the state is not getting the quid pro quo of the monopoly deal, and the courts will invalidate the patent.

In my opinion, the USPTO is improperly incentivized. As an agency, it gets more revenue the more patents it grants; that's not going to produce the correct result, as any fool can see with a moment's thought.

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