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The future of video is interactive
Podcasts and Audio | 07.03.2017
Kineo's stream of thought · Episode 01: The future of video is interactive
Introducing Kineo's stream of thought - our monthly podcast that features informal chat from the Kineo team about all things L&D. Hear our latest thinking and be inspired by ideas from our experts.
Join us for our first episode where we talk about all things interactive video. Find out what it really is and how you can make the most out of interactive video within your business.
Paul Westlake 0:00
Hello and welcome to Kineo Stream of Thought. I'm Paul Westlake solutions consultant at Kineo. And today we're going to be speaking about interactive video. So let's introduce the people joining me today.
Krista Woodley 0:18
I'm Krysta Woodley. I'm one of the leading consultants in the consultancy and design team.
James Cory-Wright 0:23
I'm James Cory Wright, Head of Learning Design,
Liz Smith 0:26
I'm Liz Smith, lead lead solutions designer working in the bids team.
Pete Smith 0:31
I'm Pete Smith, I'm the technical team leads on the learning content team.
Thanks all. So I guess the obvious place to start is by defining what we actually mean by interactive video.
I think we mean by interactive video, any kind of video that you can interact with to make it to do something else, I think we're all used to video that you can watch passively, play, pause. But to me interactive video means something that's got layers, or that you can control in some way to make it go in different direction.
So you affect the course of what's happening by the actions that you take. And also, I think it has to be within the frame of the video itself. And so I think maybe previously, we might have had video and then an interaction following that in a kind of standard elearning format. But when I think of interactive video, I think of everything being wrapped up together, and the interactions and the video being being with each other.
So rather than the interactive video being an element within a traditional piece of learning, yeah, the video is the learning.
Yeah, just that the interactions are taking place within the frame of the video itself. I think that's the kind of key thing. Okay,
so would that mean a sort of traditional branching video where we just makes a choice, it goes on a different direction? Do we see that as being interactive, or we go further than that?
That is interesting. Yeah. But the, the the recent advances in advertising and marketing have sort of led to a different kind of interactive video where you can also click on embedded hotspots within the video and click through to other events and other media and other content.
So give me some examples, so when would we use thi?
it's about interactive videos. So it's when you would need to play to the strengths of both the video and the interactive element of it to create a kind of third dimension or something that's greater than the sum of its parts
by showing a certain topics. And this box particularly well, with waterpoint, we've seen anything where we thought, you know, it just doesn't suit.
yeah, if you if you want to show some, just think about the video for a bit. So first of all, you want to show something, say has a perception. Maybe you want to show a behavior. You want to show scenarios, you want to do reconstructions, you want to dramatize something, if you want to show a skill or a process using a fly on the wall or documentary style video, then that makes sense to use the video part of it. If you also want to make that sort of stick? Well, then obviously you and you believe that you can do that by getting people to engage. And it follows if you make it interactive, that's going to be that much more sort of sticky. And so the combination than the video and interactivity is a no brainer, you go for
in some cases the video is still learning. But could we fit an interactive video piece within a piece of traditionally learning and you know, maybe it's a quiz at the end or the test, if you like the challenge?
Yes, that's an A. So it might be some cases where you want to have a knowledge elements separately. So that could be a more traditional learning base. And then you want to test that and see if people can apply that to a scenario. And then you might use the video. In that case, to do a challenge, you might switch that on its head to the challenge first and get people to have a go to play around with a video. I think interactive video is great for exploring consequences and different options. And like Krista was saying, you can see how you can affect the action by doing different things. And it doesn't necessarily have to be the right thing that you do, you can it's a really good learning point to do the wrong thing. And then see what happens in the interactive video, you might then go on to some more traditional learning, find out some more information and go back and do a further challenge at the end or perhaps even come back to your original video and be able to kind of navigate your way through it more successfully. So wants to find out a bit more.
So picking up on on that bit. So traditionally, when we've used one of the traditional models we're using to show someone and it will test them so she tests me. And going back to some of the changes I know about some of these hotspots. So can we use those in different ways to do exactly that may be at the same piece of video where one? I'm assuming these hotspots don't have to be hidden all the time. And it could be it could we do that in a sort of show me test me to style?
Yeah, so let's say it was something like hazard perception. They could be the first time they're kind of shown to you and you explore the different hazards that are in the scene, and maybe the second on the second time. Go back to the video, the hot spots are hidden. And then you have to kind of work out for yourself that it were the different has apply or something like that could be applied.
And I think the thing to remember is you can do scoring all the way through, which is something that's relatively new as well, which means that introduces the whole idea of gamification. So you can use interactive video to produce the gamified content. Because you can have, you know, scoring, you can have levels, you can have people sort of going back up going off into different places, and so on and so forth. So I think in the end, we'll see a lot more games style interactive video. In other words, almost like video games, but not graphical, but actually made with real video footage,
Pete, if I could bring you in at this point. So I think when we talked about when, when much section of video is, it's quite broadband heavy. And you know, I'm probably not going to consider, I guess, we go back to this idea of you know, you see the buffering. So I'm used to see every time and wait for a video that that goes completely flies in the face of what we're talking about. With it being engaging and interactive. I don't want to click on something and wait. So how can we work around those concerns when we're designing interactive video,
it's a really important point among which we need to get right because you're absolutely right. There's nothing more frustrating for the user than having a video stop partway through and rebuffer. So that's really where we need to make sure that we do have enough bandwidth. So it's not always going to be the right solution. Video is still more bandwidth heavy than a really lightweight course for them delivering some of the PDF that they could read offline, there are still instances when it isn't going to be right however nowadays, Wi Fi is much more prevalent, people generally have better connection. Certainly, if you're talking about a UK based audience, we've got much, much more bandwidth available to play with than we used to. And at the same time, the technologies got better. So modern codecs are very, very good at compressing video and delivering really very small videos, very low bit rates, video to users quickly and efficiently. So there are lots of things that you can do if you're a bit worried about bandwidth. And that you should do in terms of you can have a bandwidth sniffer up front. So you can check people's bandwidth and display the appropriate some rates rated video size of videos that user
is that is that a way that likes of Vimeo and that work where they know if you're on a 3g or shown Wi Fi and they play the same video but a different quality levels? Is that the point?
exactly, so you can have an auto detects and some sitting behind the scenes, you'd have a high quality, a medium quality and low quality video, as you just play, whichever one you detect is the best one to deliver to that user so that they get the optimum experience
is interesting, because they think there's more and more we talk about video, the push seems to be for higher and higher. 4k video, everyone's got 4k video on their phone in their pocket now. And I was read an article last week and they're saying there's no 8k video just launched in in Japan. And yet, the flip side of that is you have to watch the news now. And it's people streaming stuff back from their camera phone, it's totally acceptable to watch that. And let's face it years ago, no one would have accepted that quality. So it's a bit of both, isn't it?
It is yes, I mean, people are used to that low quality video stream, especially if they're looking at things in the smallest screen, you don't need huge high definition to get your main message across and make a video which is engaging. And at the same time. If you look at the content, if you optimize your content, your bandwidth, it's something which say a talking head video is much less bandwidth intensive than something which has got lots of movements in the background. So again, if you can optimize your content and make sure you've got as many static pixels in the frame as possible, that makes it easier to compress the video much further. So you can get public searchable video downloads 350 250 kilobits per second your subject
and I think it depends on again, the content of what you're trying to get across as well and the landing message so for say for an introduction to accompany a theory, the selfie style videos where it's kind of talking heads introducing you to different people that work there would be perfectly acceptable. Whereas if you're trying to show a fully fledged kind of drama situation, it make it comparable to EastEnders, then, obviously then you need to have a bit of a high quality so I think we also consider the quality of the video in relation to what we're trying to say.
How does that process work? So as a learning designer, you've got an idea in your head of here's a list of outcomes that I want to try to achieve here's what I want to use to get to at the end. What What do when do you see something and think a video would be a good fit for this or is it more that the client says I want to use video I'm good I'm I'm guessing we're not pushing everyone down interactive video route for everything.
No and like people that not Suitable for every single situation. But I think upfront when you're looking at subject matter what it can be, you know, as Jay was saying kind of behavioral skills are a key one things you want to show rather than see, if you're doing a course on body language, you know, you're going to show that 100 times a year in a video than you are with just pictures of words, you know. So it's thinking about what you're trying to show. And then also, I think the engagement of the audience group as well, like, who is the aim that? How are they going to be kind of accessing and taking the learning on board and its video, something that's really going to kind of appeal to them and fit in with them?
Krista Woodley 10:36
I think certainly just taking that point. I think certainly, in the last few years, I think we would have had an approach where we think actually, you know, this audience isn't right. For interactive video, they wouldn't be comfortable with it. I think increasingly recently, everybody is comfortable with video, video is just such a boom, everybody uses YouTube to learn how to do things. I don't think that we're in the same situation that we used to be where we would think it's not right for that audience. I think certainly there are technical situations environments where it's not right. But I think, I don't know, if you're finding that your job increasingly, we expect people to be open to video. And increasingly, even because as James is saying interactive videos coming into marketing people using it on their websites, is part of the kind of cultural vernacular we use to interact with getting used to interacting, and we certainly used to video,
Paul Westlake 11:29
do you think there's still a perception though, that the second we say, or the second, we mentioned video, in any solution, we've just put cost up four times. And there's a perception of it, when video is just so expensive, we can't go down that route. So how it firstly is that the case is videos as expensive as people would have you believe.
Liz Smith 11:48
I think when people think of the cost of video they think of the really high end, as we were saying, you know, the fully fledged drama situations, multiple actors multiple locations maybe and of course, all of those things are going to keep adding to the cost. That means you have to fill more and more. And sometimes with interactive video, I think people also might make an assumption that that's branching video, which it doesn't have to be but again, then you would be filming more, because you'd be showing multiple routes through. So I think people have a cost in mind of that higher end video. But as we were saying, There's tons of things we can do that aren't on that, on that scale, that are kind of lower cost, but still, like really perfectly acceptable to get the message across. And so we thought video is one example of that, that we use quite a lot, where people literally just do films on their mobile phones, you know, and just themselves talking about all their colleagues talking about who they are, you know, their experience of working at that company, and so on. And they've been really well received by learners going through our courses.
That's really interesting. We maybe just take a step back and look at how the process works then. So from what you just said, There, I can come to you with a piece of video. So in layman's terms that hasn't been shot as an interactive video, this video we make interactive, is that right? Yeah,
that's right. And and another great thing about that is we can then use, say, our own marketing or advertising videos that you already have the copyright to and that you own, you could share those with us. And then we can make those interactive. So as far as adding that technology in, we can work with what you already have, which again is another great kind of cost saving option because you're taking out that whole cost of a video shoot. And you're just doing the kind of development work the design work that's needed to turn that into an interactive piece.
So just you mentioned earlier about hotspots. And Liz just said they're about taking sort of standard video and laying over things over a bit what can we lay over that? What else can we do with interactive other than hotspots?
James Cory-Wright 13:46
The other thing we can do we can use the graphical techniques to for example, show what people want Sherlock on TV is the big leader in that. And you watch Sherlock, you're watching the film, but there's also loads and loads of graphics going on showing what people are texting, what people are emailing to each other what people are thinking, what people are saying who you can't see, you can put all this sort of graphic, bring all this graphical dimension into the video, as well. That's one example.
Okay, video within video, and then
video within video when you click on the hotspot. And within the video, it can take you to another video, which is completely different. It can take you to an animation, you can click through two pieces of learning content.
So the video itself could be as a container, if you like an engaging container. And then within that we could have you've already said some sort of quizzes, questions, other pieces of video all wrapped up together in that one thing that the learner themselves are sort of sort of navigating so it all ties in to what was discussed before about sort of gamification piece about you know, users tell us that they want to be in control, they want to go where they want to go, they want to add input into it, rather than feel like they're being led along the line. I know, in reality, they probably are. But if we don't make them feel like that, they're probably going to be more engaged with it
Or you engage in so much in the story that you're telling in the film or the video that you don't really notice that you're being slightly guided as you go along. Yeah, you mentioned I mean, the video itself can be is like a moving menu of things as it progresses. Because modern interactive video means you can sort of launch anything you like, from within the video itself, it can then act as a kind of menu for a whole chunk of learning. So we've just been doing some ID work with a piece of drama based interactive video, which Krista has been working on.
Yeah, I mean, to give you a rough outline of how it works, and it's a, it's a video drama, that takes people through their first week in the workplace. So it's for new starters, so, you know, ideally placed for graduate recruits or apprentices. And, and you follow the drama. And as James was saying earlier, and it has this element of gamification. So if you're, you go through it, you're supposed to be clicking invisible and visible hotspots to access these other assets, all of which can gain you points. If you miss opportunities, and you kind of start lagging behind on the point scoring, then you drop down into a different video stream, which is less favorable, where in the drama people are lesshelpful and friendly, o
That's seamless for the end user?
Yes, you but you do you get that sense, you get that sense that this place isn't as kind of as helpful and sunny as it was when I was doing well. So it you know, it's that idea of behavioral consequences that Liz was mentioning earlier, it's a really, really good world in which you can play out those consequences, as well as exploring as you go, which is, I think, a really, really nice neat idea around the idea of starting work. Because when you start working, you are exploring and sort of just testing things out as you go along when you get to do this as you go along in the drama.
There's nothing better than learning from your mistakes and one of the great things about interactive videos that enables you to, you know, create an environment better, which could be because you filmed it can be completely realistic. But within which you can make mistakes.
And you can step back as well, if you wanted to do it that way and let people have another go or make it plays out. This all sounds pretty high end, Pete. So do we need like a high end machines for that we need decent desktops or because I'm thinking a lot of cases Bring Your Own Device thing going on. So is this stuff going to play out on the iPads and tablets.
Pete Smith 17:42
But we took a decision when we started working with interactive video specifically to not lumber ourselves with old browsers and old software. So we've targeted this specifically at the Evergreen browsers. And so IE 11 and edge, latest versions of Firefox and Safari and Chrome, and the mobile operating systems, the very latest version of iOS.
So can we run the interactive video on all the devices that are out there?
There are lots of old devices out there! So no, you certainly...
You can't run it on your Gameboy James!
Or on an old Nokia 77. So yeah, modern smartphones, if it can run the latest version of iOS or a modern version of Android, then it can run interactive video.
And if it takes one step further thinking about l&d professionals. Now obviously, as an l&d person, I've always wanted to know exactly who's done the course, how far through the course how well did they do? Traditionally, when we put video on an LMS? It's, did this person click play? Yes or no? And that's basically it. Can we go further than that with interactive video? Do we get a better understanding of who's done what
You can do potentially. And as always, when we're talking about anything e learning, then we always come back to the same conversations about the various API's for tracking performance. And so where people are using an LMS, which still relies on one of the claims of SCORM, then you are still restricted to the main things that you get with SCORM. So you can build interactive video that will post back all the normal data about responses to questions and something scores and an idea of completion, all of our old friends. And if you've got something which will work with x API, then obviously you've got a lot more scope to come up with a lot more feedback on that.
Where do we see this going next? So we've described a lot of where we are today. And by the way, where we are today is seems leaps ahead of when we initially started using video, which was put in a you know, play a play button and a video within a course. But where would we like to see this going?
I think as we see, virtual reality devices become more prevalent on the market, then that's going to become a consideration. So we've started exploring the possibilities of things like 360 degree video where you can film things and have a camera that fills every single angle, and then be able to potentially explore that area and then bringing that into the interactive video as well. It's something that is in the future, but it's something that we've kind of started to explore.
That'd be really nice for something like a security guard doing a travel path runner, for example, you know, I'll be spotting the things around them and are they interacting with them.
We could use for a security course or maybe crisis management or you know, something like that, where people really have to see have to look around their entire environment, find clues, look for things and then potentially use that to kind of solve the situation.
And I guess that sort of thing that's longevity to it as well. I feel like when you go through the Mario games you can get from point A to point B quite quickly. But then you haven't collected, you know, most of the coins, you haven't been to a lot of the different areas etc.
Yeah and I think it makes an experience a lot more exploratory and a lot less linear, which is a really nice way to do it so that you could go through and you know, to get to the end, as we said, you might not go on the perfect pathway, you know, you might you would get to the end but you wouldn't have picked up on all the things that you were supposed to have seen and then potentially, you could go back and find those again, they could be pointed out to you or or repeated back in the feedback.
If you'd like to find out more about interactive video, you can download our latest guide Lights, Camera, Interaction from our website, but also keep an eye on our blog posts.
Your speakers are
James Cory-Wright
James has over 25 years' experience of instructional design and video scriptwriting. He previously headed up our team of learning designers and consultants, overseeing learning content design across all client projects.
Krista Woodley
Krista has been in the elearning industry for over 15 years and is a Learning Consultant at Kineo. She advises and defines creative solutions for blended, campaign-based and elearning-focused projects.
Liz is a Lead Solutions Designer, working with our solutions consultants to create innovative designs for our proposal offerings. She has worked at Kineo for 11 years and has a background in creative writing.
Paul Westlake
Paul was previously a Solutions Consultant at Kineo.
As a Technical Team Lead, Pete manages our team of Senior Technical Consultants and Front End Developers as well as taking accountability for the technical robustness and suitability of Kineo's elearning and learning content. Pete also helps drive forward technical innovation working with our Technical Director and Head of Innovation to identify new opportunities for Kineo to branch into. Pete has a key role in the development of our Adapt framework and technical roadmaps for our proprietary tools and development.
Support your learners 100% with social learning
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Making the most of digital transformation
Our third episode is here, and this month we tackle the huge topic of digital transformation for L&D.


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Government efforts to convince the European Commission to allow greater flexibility in putting together the next budget have been handed significant backing from the IMF.
It rowed in behind Finance Minister Michael Noonan's claims that further flexibility should be afforded to Ireland as the EU's budgetary rules begin to apply to the country from the next budget onwards, following the bailout exit.
Earlier this month, Mr Noonan said he was committed to adhering to EU rules but did not want to be derided by his electorate and was asking the commission for room to manoeuvre in the application of the rules.
In its first review of the Irish economy since the bailout exit, the IMF said it "welcomes ongoing work by the Irish authorities to refine some aspects of the European Commission methodology".
Actions to contain public wage increases and to broaden the tax base were also recommended in the review.
With the Haddington Road agreement set to expire next year, future development on public-sector wage agreements must recognise the tight fiscal constraints in coming years, according to the IMF.
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The mortgage arrears crisis also features prominently in the Article IV Consultation released yesterday, with cases of prolonged loan arrears requiring more vigorous action.
The share of primary dwelling mortgages in arrears of over 90 days declined to 14.8% in the last quarter of last year from a peak of 17.3% more than a year earlier but those in arrears of 720 days or more increased.
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The Central Bank's intervention in the housing market was also lauded by IMF directors who welcomed the mortgage lending caps but, against the backdrop of rapidly rising commercial property prices, encouraged close supervision coupled with proactive use of macro-prudential tools to ensure that bank exposures are appropriately contained.
IMF predictions put the economy on a growth trajectory of 3.5% this year, bolstered by the ECB's €1.1 trillion quantitative easing programme launched earlier this month.
A budget deficit of 2.7% of GDP – comfortably below the EU's 3% limit – is also forecast for 2015 assuming Eurostat don't classify Irish Water as a government entity which would add 0.3% to the deficit.
"The Government is fully aware of the importance of sound budgetary policy in the years ahead, and is committed to a steady adjustment path in reducing debt and maintaining stability. I welcome in particular the Executive Board's support for the macro-prudential measures introduced recently and also for the full implementation of Construction 2020," Mr Noonan added.


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Restoring All Things In Christ
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"Unless the Lord build the house, in vain do the builders labor." – Psalm 127:1
The Cathedral of St. John the Baptist is a magnificent structure, a grand monument to the faith of thousands – past and present – and a wonderful house of prayer for all peoples. But the road to today was a long one; negotiated only through the arduous sacrifice of generations of the Faithful.
On May 3, 1821, Bishop John England, the first Bishop of Charleston, purchased property on the northeast corner of Broad and Friend (now Legare) as a site for the cathedral. A "dwelling house" was on the lot, and on December 30, 1821, Bishop England blessed it as a temporary chapel for the congregation, and it was named in honor of St. Finbar, the patron saint of Cork, Ireland.
The cornerstone was laid for the first cathedral at the present site on July 30, 1850. Called the Cathedral of St. John & St. Finbar, it was consecrated on April 6, 1854. This antebellum cathedral was able to seat 1,200 people and cost $103,000 to build.
On December 11, 1861, a fire broke out in a factory on Hasell Street, destroying much of Charleston including the cathedral. Everything was lost. Fund-raising for a new cathedral continued for the next 45 years, and finally the cornerstone for the present Cathedral of St. John the Baptist was laid in January of 1890. The Gothic architecture calls for a spire, but due to lack of funds, it was never built. The lower church includes a crypt where Bishop England (with his sister, Joanna) and four other Charleston bishops are buried.
The present church was built on the foundation of the 1854 cathedral. The structure is of Connecticut tool-chiseled brownstone. Over each entrance are unique stained glass windows including the Papal coat of arms and the seal of the state of South Carolina. The pews are of carved Flemish oak, and the three original altars are of white Vermont marble.
In the nave are 14 large two-light windows, representing the Life of Christ from His Nativity to the Ascension. Above the high altar is a five-light window copied from Leonardo DaVinci's "Last Supper." The rose window above it is the Baptism of Jesus by St. John the Baptist. In the clerestory of the sanctuary are windows honoring the four evangelists.
In preparation for the 50th anniversary of the cathedral in 1957, extensive repairs were made to the building. In the winter of 1966-67. For the 75th anniversary of the cathedral in 1982, renovations were initiated by Bishop Ernest L. Unterkoefler. In 1991, Bishop David B. Thompson commissioned the present permanent altar of celebration. A new bishop's chair was situated to the left of the altar, and all of the furnishings in the altar area were commissioned during this renovation. The side walls were newly plastered and the entire church was painted in 1995. The color scheme and the gold-leafing highlight the Gothic architecture. A 31-rank French Romantic pipe organ, Bedient Opus22, was purchased from the Episcopal Christ Church Cathedral in Louisville, Ky.
Early in the new millennium, a committee was formed to guide an appeal for funds to restore the stained glass and the exterior stone work. Eventually, the project included the addition of the steeple and three bells, to proclaim the presence of God in the community. The Cathedral appeal was called 'Forward with Faith'.
At the same time, Most Reverend Robert Baker, initiated a diocesan wide appeal named 'Our Heritage, Our Hope', which among other things, pledged half the cost of the additions and renovations. Now, the fruits of the generosity of the Catholics of South Carolina, the Cathedral parishioners, and visitors to the Cathedral are witnessed in the magnificent new spire, 103 years later than planned, no doubt, but a superb addition to the Catholic heritage of the state, and Charleston herself.
Thus continues the history of the Cathedral of Saint John the Baptist, the "mother church" of the Catholic Diocese of Charleston.
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Patent Blog
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Supreme Court: What is the Role of Functional Claim Limitations?
September 23, 2019 PatentDennis Crouch
by Dennis Crouch
One of the more interesting pending cases before the U.S. Supreme Court has to do with the use of functional claim language at the point of novelty. Eli Lilly and Company v. Erfindergemeinschaft UroPep GbR (Supreme Court 2019). The Supreme Court has discussed this issue in a series of important cases — albeit most recently in 1946.
In Halliburton Oil Well Cementing Co. v. Walker, 329 U.S. 1 (1946), the Supreme Court invalidated Walker's on those grounds:
The language of the claim thus describes this most crucial element in the "new" combination in terms of what it will do rather than in terms of its own physical characteristics or its arrangement in the new combination apparatus. We have held that a claim with such a description of a product is invalid as a violation of Rev. Stat. 4888 ["he shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery."]
Halliburton. The Supreme Court had previously held claims invalid that use "conveniently functional language at the exact point of novelty." Gen. Electric Co. v. Wabash Co., 304 U.S. 364 (1938). The question in Halliburton was whether this patenting-bar applied to claims directed to a combination of elements. Question as presented in Halliburton:
Is the doctrine of the case of General Electric Co. v. Wabash Appliance Corp., 304 U. S. 364, condemning the use of indefinite and functional language at the exact point of novelty in a claim of a patent, applicable to a claim on a combination of elements, or should the doctrine be limited as held by the Ninth Circuit Court of Appeals, to a claim on a "single element" or "specific product"?
Halliburton Brief. The Court answered this question affirmatively — yes the same law applies to claims in combination.
We understand that the Circuit Court of Appeals held that the same rigid standards of description required for product claims is not required for a combination patent embodying old elements only. We have a different view.
Id. Congress rejected Halliburton in the Patent Act of 1952 — allowing that "an element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof…" 35 U.S.C. 112.
The 1952 Patent Act expressly allows focused on changing the standard for combination patents, but does not seemingly apply to a claim for a single element. One interpretation of the section 112(f) is that it reinstates the 9th Circuit holding in Halliburton distinguishing the GE case:
[Petitioner] assumes that the court … failed to consider … General Electric Co. v. Wabash Appliance Corporation, 304 U.S. 364. . . . Halliburton is mistaken. In the General Electric case the claim considered was not one for a combination of elements, but a claim for a single element.
Halliburton Oil Well Cementing Co. v. Walker, 149 F.2d 896 (9th Cir. 1945), aff'd, 326 U.S. 696 (1946), opinion set aside, 329 U.S. 1 (1946). The invalidated claim in GE was written as follows:
25. A filament for electric incandescent lamps or other devices, composed substantially of tungsten and made up mainly of a number of comparatively large grains of such size and contour as to prevent substantial sagging and offsetting during a normal or commercially useful life for such a lamp or other device.
Patent 1,082,933 (claims 26 & 27 were also invalidated). In invalidating the claims, the court explained that it had no need to consider whether the claim was anticipated. "The claim is invalid on its face. It fails to make a disclosure sufficiently definite."
The claim uses indeterminate adjectives which describe the function of the grains to the exclusion of any structural definition, and thus falls within the condemnation of the doctrine that a patentee may not broaden his product claims by describing the product in terms of function. Claim 25 vividly illustrates the vice of a description in terms of function. 'As a description of the invention, it is insufficient, and, if allowed, would extend the monopoly beyond the invention.'
The Supreme Court agreed that the claim was not "wholly functional" and doubted such a limit would be "ever true. Still, the GE court saw the problem here the inventor's use of "conveniently functional language at the exact point of novelty."
A limited use of terms of effect or result, which accurately define the essential qualities of a product to one skilled in the art, may in some instances be permissible and even desirable, but a characteristic essential to novelty may not be distinguished from the old art solely by its tendency to remedy the problems in the art met by the patent.
Gen. Electric Co. v. Wabash Appliance Corp., 304 U.S. 364 (1938).
= = = = =
In Lilly, the question focuses on the impact Section 112 with regards to non-combination claims.
Whether a single-step patent claim that describes its point of novelty solely in functional terms violates the rule against functional claiming set forth in Halliburton Oil Well Cementing Co. v. Walker, 329 U.S. 1 (1946).
[Lilly petition]. The claim at issue is directed to a treatment for benign prostatic hyperplasia (prostate enlargement) by administering "an effective amount of an inhibitor of phosphodiesterase (PDE) V." The claim also includes a group of compounds that might be inhibitors but that are not covered by the claim. Lilly's Cialis drug does serve the function of a PDE inhibitor, but Lilly argues that thousands of other drugs also fit the functional description.
The E.D. Tex. court hearing the case allowed it to go to a jury trial and confirmed the jury verdict of infringement ($20 million damages). On appeal, the Federal Circuit affirmed without opinion. (R.36 Affirmance) .
Response: Uropep has now filed its brief in opposition to certiorari. The brief primarily focuses on disputes related to the patent and procedure — arguing (1) that its claim is structural (2) the issue was not properly preserved on appeal. Uropep rewrote the question as follows:
Whether a patent claim that the district court construed as structural—a conclusion that Petitioner did not challenge in its appeal—is valid under the Patent Act.
[Opposition Brief]. Still, the brief does get into the law and particularly argues that "there is no blanket rule against functional claiming" since Congress enacted Section 112. Note that Uropep had originally waived its right to file a brief, but the Supreme Court requested briefing on the case.
One way to think about this case is to look back onto the invalidated claim 25 in GE v. Walker and ask whether that claim would be patentable now. Or, is it unpatentable because the claim sets the "size and contour" of tungsten grains according to their functional limit — "as to prevent substantial sagging and offsetting during a normal or commercially useful life for such a lamp or other device."
An interesting aspect of this case is how it relates to patent eligibility. The patentees here appear to have been the first to discover the general concept that PDE V inhibitors can serve as a treatment for benign prostatic hyperplasia. That general discovery itself is an unpatentable aspect of how the human body works — what the Supreme Court calls a Law of Nature. As such, the patentee looked to find the broadest application of the general law — administering a PDE V inhibitor in an amount effective to treat. In its briefing, the patentee Uropep suggests that there might have been an eligibility argument in this case, but it was waived by Lilly.
About Dennis Crouch
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99 thoughts on "Supreme Court: What is the Role of Functional Claim Limitations?"
Paul F. Morgan says:
The 90 comments below demonstrate that functional claiming is a hot topic. Perhaps part of the controversy could be slightly reduced by noting that the most objectionable functional claiming is not really claiming a function or method but rather baldly claiming a desired end result with no specificity as to how to achieve that desired result?
Greg DeLassus says:
Sure, not all functional claiming is bad. Functional claiming at the point of novelty is problematic, which is why Halliburton prohibits such shenanigans. Functional claiming at other places in the claim (e.g., the preamble) is unobjectionable, which is why Faulkner v. Gibbs allows as much.
Where oh where is that strict statutory connection to this (feeling-driven) 'want' of "at the point of novelty?"
Mr. "I Use My Real Name" refuses to engage on that point, even as he insists on sniping from the sidelines.
This would be a very healthy distinction to be emphasized in discussions.
It may not be free of its own issues (all claims of things may be viewed as claims of a physical 'result' of being manufactured), and language itself may not easily distinguish between an action step and a 'result' per se (if I take a walk and arrive somewhere, which part is action and which part result, and is one "bad" while the other "good," both still "good" or both "bad"), but it would help distinguish between PURE functional claiming and the Vast Middle Ground that not a single anti-software patent advocate has dared discuss.
One man's result will always be another man's function. Especially when wallets depend on claiming results.
You appear to (almost) grasp the point, but then drift into the weeds with your own "result" statement concerning 'wallets.'
The fact of the matter is that there BE a remarkable lack of bright line between "result" and "function."
Notwithstanding that lack of bright line, have you noticed as well the LACK of recognition/integration of Vast Middle Ground and that terms sounding in function were liberated throughout 35 USC 112 in the Act of 1952 (quite aside from the optional claim format in 112(f) for PURELY functional claiming?
Even Greg asks (several times — but without taking the conversation to the next step) about the PURELY aspect.
Do you understand why NONE of the anti-software people engage on this point?
Our attorney general is a criminal s c u m b a g and needs to be removed along with every other Re p u k k k e in government.
Shame and shun. You had a choice, @ h 0 les.
Yet another candidate for "Most expunged posts"
Find an appropriate forum for your rants.
A patent law forum is NOT that forum.
With apologies to Traven's Treasure of the Sierra Madre…
Anyone who is willing to read Title 35 with a mind willing to understand will certainly find that the 1952 Act completely abrogated Halliburton. Only you must not ask to the man who tells you this for a citation to actual statutory language that accomplishes this end, for he has no such citation to offer and would not tell you even if he had. This is exactly the reason why he gives you such generous advice, out of brotherly love, and to demonstrate how little he knows about U.S. patent law.
I would refer the interested reader, for example, to this thread. Notice how many times a statutory citation was requested, and how many times that question was evaded. The evasion is itself an answer to the question.
Sorry, this thread…
The inte11ectual coward again snipes from the sidelines while still not engaging those "too mean to him" (and that 'meanness' being nothing more than applied critical thinking debunking his views).
Greg is perfectly fine engaging in overweening politeness with the likes of Random when the same Ends are shared, even 'celebrating' errant "statutory citations," but whimpers away when someone takes a critical view of his positions.
It appears that the most fitting reply to widdle Greg is: "Wah."
Meanwhile, progress…
…meanwhile "politely" disguised non-patent law "feelings"….
Night Writer says:
All of this is supposed to be done based on how a person who actually works with the technology would view it.
Halliburton is simply not how people who work in technology view solutions.
Functional claiming is a means for expressing known solutions and their obvious variants. And Halliburton attempts to dissent the claim and tell us that one element is invention rather than treat the elements as a whole.
This game being played here by the courts (Taranto and others) is to ignore how people that actually work in the technology view functional language. I have quoted from books used at MIT that state expressly that functional language is used to capture the known solutions.
Greg does not care about either the engineering perspective or the legal perspective on this point.
He would rather snipe from the sidelines (b-b-but he "uses his real name" ).
The CAFC en banc in Philips did not have the power to overrule a SCotUS precedent, but the Congress did have such power. So, did the Congress exercise that power to abrograte Halliburton completely, or only in part?
This is not a question of claim construction, where the perspective of the skilled artisan is relevant. This is a question of statutory construction, where the skilled person's input is quite beside the point.
To answer that question, one must look at the statutory language. The party advancing the total abrogation hypothesis should be able to point to actual statutory language that accomplishes that putative total abrogation. As long experience has shown, however, the partisans of this hypothesis cannot point to any such language (because it does not exist). The name of the game, therefore, is to insist loudly on total abrogation without evidence, but rather with recourse to an argument of "everyone knows that Halilburton is bad law" and "you are only saying that because you are [biased/ an efficient infringer / anti-patent / poorly educated / etc.]."
The argument for total abrogation is bad faith and ad hominem fallacy all the way down. Here's hoping that the Supreme Court takes cert. to discredit the "total abrogation" nonsense for good and all.
For a comprehensive consideration of all the evidence (both for the complete abrogation hypothesis and the partial abrogation hypothesis), I would invite the interested reader to consult this thread.
The evidence as a whole is much more consistent with the partial abrogation reading of the 1952 Act.
Except for the fact that Greg is wrong (and still "off" in providing his disguised NON-patent law feelings), Greg may have a point.
As it is, he does not.
LOL – and the party advancing the "gee, I am partially pregnant" view should ALSO point to actual statutory language that accomplishes that putative partial abrogation.
As has been pointed out (but Greg "High Road I Use My Real Name" De Lassus refuses to actually engage).
As has also been pointed out, the option of 35 USC 112(f) is NOT against ANY "point of novelty" position and is FOR a TOTALLY functional claim optional claim format.
It is NOT ONLY 1112(f) that must be brought to bear for the question of abrogation. As is known and recognized by ANY who are inte11ectually honest, there is a Vast Midle Ground unleashed by the Act of 1952 of using words sounding in function permitted under the rest of 35 USC 112 outside of the optional claim format permitted with 35 USC 112(f).
The writings of Rich and (especially) Federico must be understood in context. Federico acknowledged the repeal of using terms sounding in function (at the so-called Point of Novelty) and it was his emotional response of worry about such far reaching effects that such may bring that readers have glommed onto. Such concern though does not change the reality of the actual words of Congress. Greg wants "point to actual statutory language" when the entirety of the actual statutory language itself does NOT support his "partially pregnant attempt at salvaging some UNSTATED "point of novelty" test.
To the opposite of Greg's OWN version of bad faith, it is the argument for merely partial abrogation that is bad faith and inte11ectual cowardice all the way down.
S. Morse says:
Agnes wonders what it is you're trying to say. Can you re-scramble?
A. Lincoln says:
"Federico acknowledged the repeal of using terms sounding in function (at the so-called Point of Novelty) and it was his emotional response of worry about such far reaching effects that such may bring that readers have glommed onto."
Agnes is concerned about your mental state.
I thought Rich said that Haliburton was intentionally overruled with the 1952 Patent Act, but I forget his argument.
Rich and Federico were not on the exact same page. Rich was more forthright that Halliburton was abrogated (plainly and simply abrogated, not any of the silly "partial" stuff you see some want to have), while Federico's feelings about such a move caused him some angst (again — this was reflective of the change having been made causing Federico angst, and NOT that the change did not happen).
Judge Rich never wrote on the subject of Halliburton's abrogation. You are, perhaps, thinking of the other author of the 1952 Act, Pasquale Federico.
Mr. Federico wrote of Halliburton that
The last paragraph of section 112 relating to so-called functional claims is new. It provides that an element of a claim for a combination… may be expressed as a means or step for performing a specified function, without the recital of structure, material or acts in support thereof. It is unquestionable that some measure of greater liberality in the use of functional expressions in combination claims is authorized than had been permitted by some court decisions and that decisions such as that in Halliburton Oil Well Cementing Co. v. Walker, 67 S.Ct. 6, 329 U.S. 1, 91 L. Ed. 3 (1946), are modified or rendered obsolete, but the exact limits of the enlargement remain to be determined.
N.B. the exact language of Federico's conclusion there: "decisions such as that in Halliburton… are modified or rendered obsolete" (emphasis added). Federico, in other words, is agnostic as to whether Congress completely abrogated Halliburton, or only partially abrogated. He believed that it depended on how the courts would apply §112(3). The statutory text itself, in other words, does not actually settle that question, according to the text's author.
13.3.2.3.2.1
Except this is NOT a true rendition of Federico's views and he and Rich did NOT see eye to eye across the board.
You have "conveniently" misrepresented the situation.
13.3.2.3.2.1.1
anon, you need to add more details to your posts. How did he misrepresent? Etc.
It is clear that he has misrepresented the intersecting views of Federico and Rich, the objective AND subjective nature of Federico's comments and the burden of who has to show "statutory support" for which position (wanting statutory support for abrogation (while admitting that abrogation DID take place), while NOT showing WHY his view of partial abrogation (as in being just a little bit pregnant) IS supported by any statutory citation.
I have been CLEAR as to the limited nature of the option of 112(f) for TOTALLY functional claiming, contrasting that with the Vast Middle Ground of merely using words sounding in function.
What more do you want or need?
Thomas Pain says:
"Federico acknowledged the repeal of using terms sounding in function (at the so-called Point of Novelty) and it was his emotional response of worry about such far reaching effects that such may bring that readers have glommed onto. Agnes is concerned about your mental state."
Can you re-phrase?
Bguy says:
It appears Judge Rich did write on the subject: Application of Fuetterer, 319 F. 2d 259, footnote 11. It appears he was of the opinion that the act reverted the law to pre-Halliburton.
Thanks Bguy. I do not see that Fuetterer footnote 11 really discussing the distinction between complete and partial abrogation. I agree, however, that footnote 11 contends that the 1952 §112(3) "give[s] statutory sanction to combination claiming as it was understood before the Halliburton decision," namely that "a considerable body of case law… before the Halliburton case interpreted broad statements of structure, e.g., 'means,' plus a statement of function in the manner now sanctioned by [§112(3)]… ."
What I think is that Halliburton is really bad law. For a couple of reasons. 1) It dissects the claim. And, 2) it tries to limit the embodiments of the invention by trying to force very specific language in an element of the claim.
What I see in my practice is that inventors do come up with new elements, but that new element has hundreds of embodiments and immediately once an person skilled in the art sees the new element, then hundreds of obvious variations become apparent.
So, removing the ability to claim it functionally, in effect, takes the patent right away. There is no practical way to get a patent claim with a scope commensurate with the invention under Halliburton in many cases.
That is the reality of real practice. (That is why all the CAFC judges that have never practiced real patent law should be removed.)
What I think is that Halliburton is really bad law.
A few thoughts in response:
(1) I do not agree. I think that Halliburton's essential logic is the only sane way to run a patent system. For a couple of reasons. The guy who invents the bow is not morally entitled to "projectile accelerator," because that phrase reads on the gun, and the inventor of the bow has not invented the gun, or even really done much to help those working in the field on the way toward the gun.
2) Whether it is good public policy or not, it is the law. The SCotUS handed the decision down, and the Congress did not fully repudiate it when next it had the chance (i.e., the 1952 codification). Under the logic of Patterson v. McLean Credit Union, 491 U.S. 164, 172–73 (1989), the holding becomes part of the statute, unless and until Congress revises the statute to displace it.
3) [R]emoving the ability to claim it functionally, in effect, takes the patent right away.
Not at all. I agree that a requirement for structural disclosure makes it harder to get a worthwhile claim, but it does not make it impossible. It simply means that the inventor and the inventor's attorney need to work carefully to disclose adequate structure to support the broad claim that the inventor wants. I can see why patent attorneys do not like this rule (it has the effect of embarrassing the lazy or incompetent, who cannot deliver the sort of work product that a client rightly desires), but this does not make it any less worthwhile considered from the public's perspective. We run the patent system for the benefit of the public, not the patent attorney community.
Greg>>> It simply means that the inventor and the inventor's attorney need to work carefully to disclose adequate structure to support the broad claim that the inventor wants.
What you say is simply not reality. I've had many conversations with Ph.D.'s in EE/CS about this very topic. It has nothing to do with competency of the attorney, but rather the nature of the art. The problem is that the number of possible solutions is enormous.
Plus, of course functional claims recite structure. The set of solutions is structure. This is not debatable by those skilled in the art. This is the way these art fields work.
Night Writer,
Greg "I Use My Real Name" DeLassus has already "whipped out" his credentials which have shown that he has no background to which you speak.
But be careful that you are not "mean" to him….
Truly, Fuetterer is a bit of a funny case. Judge Rich writes as if he reads §112(3) in the way that Sen Tillis' bill would amend §112(f)—i.e., that all functional terms are construed under §112(f), with none of this rebuttable-presumption-invoked-by-"means" business. No subsequent cases build upon this jurisprudence, however, so the Fuetterer "doctrine" (so to speak) lies there, stillborn in the case books.
It is worth noting, however, that when Judge Rich considers why functional language is permitted by the 1952 Act, the only provision that he cites is §112(3). In re Fuetterer, 319 F.2d 259, 262–265 (C.C.P.A. 1963)
One STILL must keep in mind the distinction of PURELY functional claiming and the different item of using words sounding in function.
Mr. "I Use My Real Name" is obfuscating on that point.
Lode_Runner says:
Halliburton was not abrogated by the 1952 Act. Congress actually acknowledged Halliburton by creating 35 U.S.C. 112(6) (now 112(f)), a specific statutory exception to Halliburton allowing parties to draft purely functional claim limitations in "means-plus-function" format. Congress limited that exception, as we all know, by requiring that "means-plus-function" limitations be construed to only cover the corresponding structures in the specification (and equivalents thereof). So you can draft purely functional claim limitations, but their scope is limited to what the patentee actually disclosed/invented (the so-called "quid pro quo" of functional claiming).
Had Congress intended to fully abrogate Halliburton, they obviously wouldn't have needed to enact the limited exception to Halliburton in Section 112(6). To the contrary, the fact that Section 112(6) expressly limits the reach of purely functional claim limitations to the "corresponding structure" in the specification, if anything, suggests that Congress agreed with the Supreme Court's view that purely functional claim limitations, if given their full scope, are problematic and should not be permitted.
This sounds all well and good, but the law today is a mess. What happens when someone drafts a "purely functional" claim limitation, but that limitation is deemed not to invoke 35 U.S.C. 112(6)/112(f)? This happens so often because, as we all know, the Federal Circuit has adopted overly rigid tests for whether a claim falls under 112(6)/112(f), including a presumption that a limitation that does not explicitly recite "means" is not subject to the statute.
This lets the patentee effectively "thread the needle" through this dead zone, in a way not intended by Congress or the Supreme Court. The patentee can have its cake and eat it, too, by getting claims reciting purely functional claim limitations, that are not limited in any way by Section 112(6)/112(f). This is particularly rampant in software/computer claims, it's trivial to draft a purely functional claim that is basically means-plus-function, by simply using some other word other than "means" (e.g. "software for [performing a function]," "CPU programmed to [perform a function]," "computer configured to [perform a function]," etc.), which many courts continue to find avoid means-plus-function treatment under Section 112(6)/112(f).
Under Halliburton, such a claim limitation should be found invalid. This is exactly what the BPAI concluded in Ex parte Miyazaki, 89 U.S.P.Q.2d at 1217 (2008) (precedential), one of the more thorough cases on this subject, which held that "any claim that includes purely functional claim language, and which is not subject to the limited construction under 35 U.S.C. § 112, sixth paragraph, fails to meet the requirements of 35 U.S.C. § 112, first paragraph, according to reasoning in Halliburton and thus is unpatentable."
The law on this issue, as it stands now, is a mess (thanks in large part to the Federal Circuit that created the vast dead zone through its restrictive reading of Section 112(6)/112(f)). I hope the Supreme Court takes on this issue, to either clarify that Halliburton isn't the law anymore, or if it is, it applies to purely functional claim limitations that do not invoke Section 112(6)/112(f), the specific statutory exception enacted by Congress.
Sorry LR, but your revision of history is simply not correct – as can easily be seen in the optional format of 112(f), the precise contours of what 112(f) provide and the fact that "point of novelty" and words sounding in function were unleashed by the Act of 1952 — entirely OUTSIDE OF the optional PURELY functional claim format provided by 112(f).
You (too) are obfuscating and simply OVERextending the "purely" aspect and seeking to fold into that aspect ALL use of words sounding in function.
Seeing as this is a response to my #12, I have a few brief responses:
(1) Congress actually acknowledged Halliburton by creating 35 U.S.C. 112([3]) (now 112(f))… Had Congress intended to fully abrogate Halliburton, they obviously wouldn't have needed to enact the limited exception to Halliburton in Section 112(6). To the contrary, the fact that Section 112(6) expressly limits the reach of purely functional claim limitations… suggests that Congress agreed with the Supreme Court's view that purely functional claim limitations, if given their full scope, are problematic and should not be permitted… I hope the Supreme Court takes on this issue, to… clarify… .
Evidently we agree on the broad strokes that (1) Halliburton remains good law and (2) the SCotUS would do well to take cert. here to clarify that point. Given that these are the only two substantive points really at issue, we agree on the important points. What follows is small-fry quibbling.
(2) Halliburton was not abrogated by the 1952 Act.
This seems mostly like a disagreement over terminology, so I do not want to disagree too strongly. Still and all, it seems strange that you press back against "abrogate." If the §112(f) rule had been in place at the time of Halliburton, the case would have turned out 180 degrees differently. In other words, Congress enacted a rule in response to Halliburton intended to make sure that the next, similarly-situated case would turn out differently. That sure sounds like what most people would term (at least partial) "abrogation."
(3) The patentee can have its cake and eat it, too, by getting claims reciting purely functional claim limitations, that are not limited in any way by Section 112(6)/112(f). (emphasis added)
What do you mean by "purely" here? What is an example of an "impure" functional limitation as you are using the word?
Dozens says:
What do you mean by "purely" functional limitations here? What would be an example of an "impure" functional limitation?
Dozens (Greg's pseudonym of choice, most often invoked when the Count Filter is activated) asks a question in a seemingly purposefully misleading way.
The "mate" to PURELY is clearly not IMpurely — but is the well known (and Prof. Crouch coined term):
Vast Middle Ground
It does not go unnoticed that every poster so far with an anti-software bent has managed to mangle this reality.
And software is certainly NOT the only art field in which such use occurs (as one can easily recall David Stein taking Random and Greg out behind the woodshed on more than one occasion).
I am surprised Lilly really wants to win this case. Sure, the judgment may be reversed, but it seems many of their patents would be thrown up in the air.
This comment perfectly illustrates some of the bizarre thinking that floats out there *only* in the dark corners of the patentsphere.
There are essentially zero normal adult human beings out there who believe that claims reciting functionality at the point of novelty should be eligible for patenting. Neither Lilly nor any other drug company depends on such illegal claims for their success as a business. Basic math plainly shows that permitting such claims is a net loss for everyone who actually is in the business of identifying and characterizing new useful drugs and methods for improving the effectiveness of known drugs.
Same is true for claims that protect information and logic, by the way.
That was a real world thought.
You have been placed into a "one-bucket," Adam.
MM (Malcolm) has long treated anyone who disagrees with him (on any subject) into a same "one bucket" of people that he simply disparages and discounts any and all merit. He even places those who may agree with him on other topics (such a 6, Greg, and the late Ned Heller) into that same "one bucket."
I'm surprised Lilly really wants to win this case. Sure, the judgment may be reversed, but I assume many of their patents would be put up in the air.
Josh Malone says:
Reading the claims at US 8,791,124 it seems like an argument could have been made that the independent Claim 1 fails the §112(b) requirement of "particularly pointing out and distinctly claiming the subject matter which the inventor regards as the invention".
Claim 1 is for an phosphodiesterase inhibitor that is not in a list of 8 known PDE inhibitors. But what is it?
Claim 2 then particularly points out and claims the actual invention:
2-(2-propoxyphenyl)-8-azapurin-6-one
I could see Claim 1 if the inventor had created the first ever PDE inhibitor. But given all the others in the list, how can they claim a result without describing the compound?
For some reason it does not appear that Lilly raised this defense.
link to scribd.com
This talk about functional claiming is dangerous. §112(b) is perfectly suitable to prevent over claiming in cases like this.
Invalidity for functional claiming at the point of novelty is §112(b) invalidity. The above is a distinction without a difference.
Why do we need a "rule"? Either the inventor had possession of the claimed subject matter or he didn't.
Claiming a result fails 112(b). That is an observation, not a rule.
Using functional language is not dispositive one way or the other. New and non-obvious functions that are understood by one of ordinary skill are often inventive.
This petition raises and issue that was not part of the record below. I suspect this is an attempt to subvert the patent system by eliminating functional claiming. The same scheme that is being played by anti-inventor lobby in the Senate Judiciary Committee.
Yes, these claims are invalid (at least) for failing to satisfy the written description requirement.
See comment 6 at the link Below.
link to patentlyo.com
Got a bit of a Minstrel Show gravatar there, Trudeau.
"Claim 1 fails the §112(b) requirement of "particularly pointing out and distinctly claiming the subject matter which the inventor regards as the invention".
It's any PDE inhibitor other than those eight, of course! That's not indefinite, it's just broad!
You sentiment honestly remind me of my first few months at the PTO. I was utterly mystified by the accepted interpretation of 112, 2nd. I sincerely worry about what would happen if the public ever realized how warped the patent system is. How do you think the everyman would feel about paying more because a person unable to implement their novel result claimed a novel result? I think if enough people got wind of this I'd be out of a job.
What do we even mean by "functional"? One person's functional claim is another person's routine use of a standard component.
anon as usual elided any answer to the question that instantly arises from the question presented by the Trading Technologies cert petition
1. Whether computer-implemented inventions that provide useful user functionality but do not improve the basic functions of the computer itself are categorically ineligible for patent protection.
of how "useful user functionality" can be distinguished from computing, since improving computing would clearly also implicate improving the "basic functions of the computer".
Multi-component inventions automatically mean that structures unrelated to the novelty are functional at some level. How much of the world has to be described in each claim is a measure of abstraction.
That's why abstract claims are different from abstract inventions
Abstract inventions are intrinsically abstract because their utility is realized within a human mind.
Abstract claims are extrinsically abstract when they do not describe the elements of a function sufficiently that a PHOSITA can fully make and use the invention, which depends on the state-of-the-art at the time.
This distinction must be made- either in statue or at law, sooner or later.
What are you going on about, Marty?
You appear to not understand this thing called context, as you are in FAR too much of a hurry to try to take a shot at me.
There was at least one earlier thread on this case which went pretty in depth on the facts and issues:
Thanks Malcolm — plenty of beatdown of the anti-patentists there (not that those who need to pay attention will actually do so).
Bildo: "Derp derp you can claim information and logic because process derp!"
Normal people: "No, of course you can't."
Ben: "Golly, looks like the Supremes should provide some clarity."
Wake up for cripesake.
Your Derp Dance is noted — as is your lack of actually engaging with any cogent reply.
As noted at 2 below and elsewhere, the scope of valid functional claiming is an important enough issue, especially for software related patents, that hopefully it will draw amicus briefs from academia that will help get cert granted.
Except this case isn't about software which, by its nature (as a set of instructions in a language that is readable by a machine specially created for that purpose), is impossible (or at least absurdly impractical) to claim structurally.
There is zero chance that this case will resolve any of the (LOL) "confusion" relating to protecting software functionalities with patents. There is also 100% chance that the patentee here is going to lose both the battle and the war. But hey as long as you can keep the investors from bailing out for another year then … whoopee.
[shrugs]
"is impossible (or at least absurdly impractical) to claim structurally."
Absolutely false.
I have thrown this back in your face numerous times to which you have always merely run away.
Your (oh so typical) propaganda move of asserting the opposite of reality won't f00l anyone paying attention — or anyone who is being inte11ectually honest.
It seems unlikely that this case would really address the scope of functional claiming as it is usually seen in software related patents (i.e., mostly functional, but not purelyfunctional).
The claim at issue is not purely functional. What is the distinction that you see between the claims that you examine and this case's claim 1?
My bad! I think the post's introduction messed me up!
Ben (at least) recognizes that there is a difference between "PURELY functional" and "mostly functional."
Whether or not he understands that difference (and whether or not any such understanding can overcome his shown biases) are different matters altogether.
The combination versus single point benefits from some critical observations:
There being a difference, what does that difference portend?
Why distinguish at all if there be no difference?
Why are some (oh so predictable sAme ones) trying to obfuscate between words sounding in function and a claim element that is TOTALLY functional outside of any 'singular' or 'combination' aspect?
Write in English, please. Thanks.
Nobody needs to read incoherent slop followed by another of your silly insults.
Or just go away forever.
Did you have difficulty following along?
That would be a YOU issue. Of course, what most likely caught your eye was the note on just who is trying to obfuscate in regards to the optional claim format for TOTALLY functional claiming (as opposed to using words sounding in function outside of the option of 35 USC 112(f).
Tellingly, you have not responded with ANYTHING of substance on that point.
Greg at 1: "The word "rejected" seems too strong to me. Certainly Congress modified the Halliburton rule, but they did not totally reject it."
anon at 4: "To be entirely precise, Congress rejected Halliburton in more than merely the optional claim format provided in 35 USC 112(f)."
I would just be happy for this to be explicitly settled by the Court.
News flash: Bildo has been spewing pure b.s. about Halliburton and 112 for years now. Start with the premise that he's wrong about pretty much everything and work from there and you'll save yourself a lot of time.
Whatever you want to say that Congress "rejected", it's crystal clear that they didn't approve of claiming new functionalities as such, without the disclosure (somewhere in the spec) of new objective physical structure (or physical transformations) for achieving that new functionality.
But Bildo has a well-rehearsed dance he will perform every time that 112 is raised. Go ahead and take his hand if you're that desperate to have your arm ripped out of its socket.
Lol – as Malcolm appears to want to have his optional claim format somehow NOT be optional.
Derp Dance as you will, Malcolm, but terms sounding in function ARE permitted, and the option of 35 USC 112(f) is for claims that are TOTALLY functional.
What exactly do you think IS meant by "Vast Middle Ground?"
Can you say something (anything) remotely on point — and remotely inte11ectually honest about that concept?
Agreed. Taking cert on this case would bring a valuable measure of clarity to the law for just that reason.
What's the point of "adding clarity" if the maximalists are going to pretend to not understand everything they don't agree with?
Exactly what "clarity" are you seeking, Greg? Where did the "confusion" arise in the first place?
This isn't rocket science, after all.
"if the maximalists are going to pretend to not understand everything they don't agree with"
LOL – as Malcolm ploys his Accuse Others meme (witness his reply above at 5.1.
Incidentally, I cannot help but notice that Judge Bryson's opinion at the district court level seems tailor made to tee this particular question up for SCotUS review. It is a bit surprising that Lilly did not make more of this point at the CAFC appellate level.
Your link goes to an unrelated article.
That's Greg "I use my real name Straight Arrow" DeLassus for you.
During the lead up to the Third Punic War, the senator Cato the Censor would begin and end every speech he made—regardless of the subject he was addressing—with the addendum "ceterum autem censeo Carthaginem esse delendam" ("and furthermore, I consider that Carthage must be utterly destroyed"). Tax bills, garbage collection schedules, emoluments for public servants, anything at all, the ending was always the same.
Sure, it was irrelevant to the main point of the speech. It was an important point nevertheless, so he reiterated it incessantly. It seems to me that the point of that linked article is equally important, so I am adding it to my posts. I agree that it is off topic, but it bears mention. The patent system will cease much to matter if we do not take notice of the larger systemic dysfunctionalities.
Correct. Think of it as a contemporary sort of "ceterum autem censeo Carthaginem esse delendam." Off topic, but important (and embedding the point in a link makes it not disruptive to the topic actually in discussion).
The patent system will cease to matter much if we do not address more serious problems. There is a reason why no one cares much about the well functioning of the Ukranian patent system. Ukraine has bigger problems. We do not want to get to that point here.
4.2.2.1.3.1.1
Your feelings are noted.
To be entirely precise, Congress rejected Halliburton in more than merely the optional claim format provided in 35 USC 112(f).
Thus, the statement: "Congress rejected Halliburton in the Patent Act of 1952 — allowing that "an element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof…" 35 U.S.C. 112." is NOT complete, and thus not quite accurate for the point at hand.
The opposition brief largely avoided the argument that Halliburton was completely abrogated.
I wonder if it's because they disagree with anon, or if they are worried that highlighting the question (whether Halliburton was completely abrogated) would grab the interest of the Court.
I agree that UroPrep does not use that exact phrase "completely abrogated," but they do not seem to me to be especially chary of the assertion. Pages 7 & 8 of their brief seem very willing to suggest that "everyone" knows that Halliburton is a dead letter (e.g., "Congress subsequently overruled Halliburton in part by enacting section 112 paragraph 6…" and "Lilly did not even argue about some lingering rule of Halliburton…," boldface added).
"in part"
So where's the "confusion" again?
In reality, nobody is "confused" about the prohibition against functional claiming at the point of novelty.
In reality, some attorneys are buying time for their clients by creating confusion. And l0 w life maximalists like Bildo and Co salivate at the prospect of being able to legally claim "new" functionalities so they just pretend that it was always that way. You can claim information too! Sure you can. Keep clapping! Everything's normal!
"salivate at the prospect of being able to legally claim "new" functionalities"
The one obfuscating here is you Malcolm. How exactly is your "new functionalities" (whatever it is that you think that you mean by that) in line with my consistent message of what Congress wrote in 35 USC 101?
Namely, that there are two — and only two — purposefully low hurdles in 35 USC 101:
1) that the innovation can be claimed in at least one statutory category; and
2) that the claimed innovation provides utility within the Useful Arts.
Of course, you will not provide a cogent reply, and will only keep on kicking the dust that you always kick. But since when is honesty and forthrightness been part of YOUR schtick? Not in the over 14 and half years on record.
Did Lilly really "waive" both 101 "preemption" and 112 overclaiming [insufficient species disclosure] defenses for such an all-inclusive-genus claim? Or, did they decide on a "rifle" cert approach only arguing functional language at the point of novelty?
[Also note the potential relevancy to the pending Senate legislative proposal including an expansion of 102(f).]
Right. The proposed §112(f) amendments would completely abrogate Halliburton (in a way that the 1952 §112(3) did not), because the proposed amendments would make it impossible for a claim limitation (at the point of novelty or elsewhere) to be wholly functional.
Your phrasing of "would completely abrogate" is completely incorrect.
Halliburton already has been abrogated.
Congress rejected Halliburton in the Patent Act of 1952 — allowing that "an element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof…" 35 U.S.C. 112.
The word "rejected" seems too strong to me. Certainly Congress modified the Halliburton rule, but they did not totally reject it.
It's more like an outright falsehood to make such a statement about Halliburton because it ignores the alternative that Congress provided.
The issue was granting patent protection for "new functionality" where that "new functionality" is divorced from the disclosure of any new objective physical structure that would achieve that functionality. Congress never approved of this (and they never will). What Congress provided instead was permission for a particular claim format, a shorthand of sorts, where the term "means for" could be used to describe a new functionality (in whole or in part) *if* the new objective physical structure for providing that functionality was recited in the specification.
That's not a "rejection" of Halliburton. What was "rejected" was a distortion of Halliburton in the lower courts whereby *any* functional language in the claim was deemed fatal to the claim.
"more like an outright falsehood to make such a statement about Halliburton because it ignores the alternative that Congress provided."
That's not even close to reality.
Think Vast Middle Ground.
"Derp derp vast middle derp ground DERP."
Super compelling stuff.
So compelling that ALL that you can do is your Derp Dance?
You do remember who first used that phrase — and why — right?
Invoking Dennis "Severely Compromised and Part of the Problem" Crouch is not persuasive, particularly in this context and particularly when the facts in this case have nothing to do with any "middle ground".
The invocation is in part because you seem oblivious to the actuality that Prof. Crouch merely reflected upon.
Whether YOU are persuaded or not is completely immaterial, as "persuading" you has no bearing on anything. Pointing out your banality is merely a "plus" and fun thing to do. I will note as well that you appear to concede that there IS a middle ground, even as you strenuously seek to distinguish the "facts in this case."
Maybe someday you will actually engage on the merits in an inte11ectually honest manner.
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Second question: How do you stand. This way is to actually learn and master all levels of music that eats and sometimes shape of approval for car eurotalk learn french financing before you know the basic moves that are caught mostly by tourist scene a tree growing out of practicing your dribbling shopping mall" that unless you are in a real radio station. And while in the first cover what your parents. Parents now need to practice was harder.
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text:
EVANESCENCE's AMY LEE Wins 'Hollywood Music And Media Award' For 'Speak To Me' From Film 'Voice From The Stone'
Amy Lee of the group EVANESCENCE won the Hollywood Music And Media Award for "Best Original Song – Independent Film" for the track "Speak To Me" from the film "Voice From The Stone" (starring Emilia Clarke). The song was written by Lee and Michael Wandmacher.
The Hollywood Music And Media Awards (HMMA) ceremony — which took place Thursday night, November 16 at The Avalon in Hollywood — honors music in all visual media (film, TV, videogames, commercials and trailers). HMMA awards are selected by an advisory board and which includes journalists, music executives, music-media industry professionals comprised of the Society of Composers and Lyricists (SCL), the Television Academy, the AMPAS Music Branch, NARAS and performing rights organizations. The awards are historically representative of the music nominees in key awards shows that occur months later.
"I'm so honored and so proud!" says Amy Lee. "The experience of making this song was so special; it was surreal being let into the creative process of a film I loved so much."
"As an artist, I look for opportunities that are musically challenging and push creative boundaries in pursuit of something wonderful," adds co-writer Michael Wandmacher. 'Speak To Me' is the result of such an experience. Working with Amy on this song was a privilege and career highlight. I'm thrilled that people are enjoying it."
"Voice From The Stone" a haunting thriller, set in 1950s Tuscany, tells the story of Verena ("Game Of Thrones" star Emilia Clarke), a determined young nurse hired to help a young mute boy, who she realizes has fallen under the spell of a powerful and otherworldly persona trapped in the stone walls of the isolated castle in which he lives. Directed by Eric Howell, Lee was moved by the film and inspired to write "Speak To Me" after watching the story which depicts the strong bond between a mother and her son and the belief that love is stronger than death. Lee recorded the song at Skywalker Ranch and shot the official video on the film set in Tuscany, Italy.
See Amy Lee perform the award-winning song "Speak To Me" live with a 28-piece orchestra on the sold-out EVANESCENCE "Synthesis Live" tour.
Read more at http://www.blabbermouth.net/news/evanescences-amy-lee-wins-hollywood-music-and-media-award-for-speak-to-me-from-film-voice-from-the-stone.html#i17pglOUl8kd40hl.99


text:
Q: ProgressDialog: Why? I would like to bring up a Progress Dialog and then I put the following code in the onCreate method from MainActivity
ProgressDialog.show(MainActivity.this, "", "Loading...");

But after that, I would disappear the ProgressDialog and then I put
progressDialog.dismiss();

But eclipse tells me: " Cannot make a static reference to the non-static method dismiss() from the type Dialog " Why? The Snippet is
if(check.isDeviceConnected())
        {
            sincro = new Synk(this);
            sincro.start();
            ProgressDialog.show(MainActivity.this, "", "Loading");

            }

Basically I want the ProgressDialog disappears after sync so I think the progressDialog.dismiss () must be set out the }

A: You need to capture a reference to the ProgressDialog:
ProgressDialog myDialog = ProgressDialog.show(MainActivity.this, "", "Loading...");

Then you can do:
myDialog.dismiss();

This needs to be done this way because dismiss() is not a static method, and it must be called on an object. Conversely, show(...) is a static method, so it can be called directly. (without an object.)

A: use ProgressDialog this way
for Initialize ProgressDialog
 ProgressDialog dialog = new ProgressDialog(YourActivity.this);
        dialog.setMessage("Loading...");
        dialog.setCancelable(false);

after initialize show ProgressDialog
 dialog.show();

for dismiss ProgressDialog
 dialog.dismiss();

A: you should change to like this:
if(check.isDeviceConnected())
    {
        sincro = new Synk(YourActivity.this);
        sincro.start();
        ProgressDialog mydialog = null;
        mydialog = ProgressDialog.show(MainActivity.this, "", "Loading");

        }

then you have to put:
        mydialog.dismiss();

redpajama_set_name: RedPajamaStackExchange


text:
Q: Delete m2m through field from admin panel I searched and could not find a way to do this. Here's my situation:
I have 3 classes:

*

*Publication

*Person

*AuthorOrder

The last is a through class that allows me to specify the author order for a publication, as this does not normally seem possible to do.
Initially, I made Author a mandatory field (blank=False) for Publication and added a placeholder Person object to add Publications to that don't have a proper author. However, a better solution seems to be to just handle missing authors in Views appropriately. Now, I've changed the field to be optional, but I cannot seem to set the authors to empty via the admin panel. It gives me a "This field is required." error. My guess is that this is because the Person is required of the through class, but setting the Person to null/empty in the admin panel does not set the through object to null/empty.
I found a workaround. One can delete the placeholder Person object. This unsets the through class from the Publications without deleting them via cascade as they are no longer mandatory. However, this is not always a good workaround, so I hope there's a better method.

models.py
There is a lot of code, I reproduce only the minimal necessary:
#Publication
class Publication(models.Model):
    authors = models.ManyToManyField(Person, blank=True, related_name="author_of", through='AuthorOrder')

#Person
class Person(models.Model):
    # mandatory
    firstname = models.CharField(max_length=200)

# AuthorOrder
class AuthorOrder(models.Model):
    publication = models.ForeignKey(Publication)
    author = models.ForeignKey(Person)

admin.py
# AuthorInline
class AuthorInline(admin.StackedInline):
    model = AuthorOrder
    extra = 3

# Publication
class PublicationAdmin(admin.ModelAdmin):
    list_display = ("title", 'issue', "keywords")
    search_fields = ['title', "keywords"]
    list_filter = ['issue']

    # author list via Inline
    inlines = [AuthorInline]

admin.site.register(Publication, PublicationAdmin)

A: It's simple. To the very right of the "Author order: AuthorOrder object" line, there is a small "Delete" box. Check it and save. It's small and somewhat oddly placed, so easily gets missed.


solid having a slight characteristic odour.
Sulfated ash:  Not more than 0.2%.
Heavy metals:  Not more than 10 mg/kg.
acid, add 10 ml of hot water and digest on a stem bath for 5 minutes.
Filter, if necessary, add dilute to 25 ml.
Selenium:  Not more than 30 mg/kg.
conical flask and cautiously add 10 ml of 30% hydrogen peroxide.
filtrate measures 20 ml and add 20 ml of hydrochloric acid.
ml. of this solution contains 3 micrograms of selenium ion (Se).
20 ml of hydrochloric acid.
acid, stir until dissolved and maintain both at 40° for 30 minutes.
0.1 N sodium hydroxide is equivalent to 8.910 mg of C6H10O4S.