Re: development snapshot

[Robert T. Short]

Judd Storrs wrote:
> One thing that I don't think has been satisfactorily resolved in our 
> discussions is whether statements that certain things are "impossible" 
> in the supporting text affect the scope of the claims? Maybe SFLC can 
> help clairify that.
>
> If octave's implementation fundamentally relies on "doing the 
> impossible" as described in the supporting text can it possibly infringe?

This is a question I have asked attorneys for year after year and never 
had an answer.  My interpretation is that you won't know until you face 
a judge.

> --judd
>
>
> For me the problem is that if you restrict your reading to the claims 
> alone it is unclear what "at the first point" means and you could 
> possibly read it as meaning

When interpreting the claims, the patent body serves as a dictionary.  
So if a term is not clear, e.g. "at the first point", you refer to the 
patent body to clarify.  If the patent body doesn't adequately clarify, 
then you refer to "standard practice" whatever the h&*l that means.  
There are a number of terms in the claims that this pertains to.  For 
example, the concept of a "dynamically typed language" really needs the 
patent body to interpret.  There is the concept of direct infringement 
vs. the "Doctrine of Equivalents" and things just get messy from there.

> (1) At any time between handle creation and handle evaluation, or
> (2) Specifically at the time/scope that the handle is created
>
> If you then read the supporting text it seems that (2) is what was 
> meant. I don't really understand what influence the supporting text 
> has over the claims (if any). It seem reasonable to me that the 
> supporting text is meant to clarify the claims, but IANAL.
>
> According to the supporting text it is "impossible" to correctly 
> resolve the handle unless the data structure is created at the same 
> time and/or in the same scope that the handle was created. To me this 
> indicates that reading (2) of the claims is correct.
>
> Under reading (1) you get the massively expansive claims that could 
> cover closures, possibly most of symbolic computation, among other 
> things (all of which have prior art). I just don't think the USPTO 
> could possibly have granted the patent under such a broad reading of 
> the claims.

I don't think there is any question that claim 1 and possibly other 
claims would be rejected if a validity lawsuit was brought against the 
Mathworks.  There are two serious questions.  First, how far down the 
list of claims would you have to go before things got more intelligent?  
Second, who is going to pay for all of this?

The second is really the more important.  We can argue about validity 
all day, but the patent is presumed valid until a judge (or jury) rules 
otherwise and that costs money.  I am fairly sure that there is plenty 
of prior art (in fact, I think maybe Python could serve as prior art).  
Still, unless you get someone with money to back you up it isn't really 
relevant.  One thing to keep in mind is that infringement is not really 
a technical thing (although technical experts are listened to very 
seriously in the courtroom and in the pretrial briefs) but is a legal 
thing.  The judge and jury are rarely technical and THEY will make the 
judgment.

Bob
---
Robert T. Short, Ph.D.
PhaseLocked Systems