Patent Application
20120131055
The FSTP (FSTP=Facts-Screening-and-Transforming-Processor) Expert System is capable of analyzing an emerging or already done “classical MoT”/green/health/business/ . . . invention and documents pertinent to it—patent(application)/prior art/skill/prosecution/litigation documents of a national patent system and its Highest Court's precedents, . . . —for facts INDICATING its nonobviousness (incl. novelty) over this prior art, i.e.: NOT DECIDING on these problems. For determining such indications, it supports using all meaningful interrelations between all fundamental information items disclosed by these documents. I.e., it firstly supports noticing all disclosed fundamental technical facts and secondly transforms them into the totally innovative technical secondary basic/semantic/creative (pragmatic) facts. It thereby determines all interrelations between these disclosures, the pertinent Highest Courts precedents, and their impacts on these indications. Thus, the FSTP Expert System enables to instantly reply to any query concerning these technical indications and their dependencies on fundamental disclosures (and vice versa). I.e., it focuses on these innovative technical secondary facts indicating an invention's (non)obviousness—i.e. it ignores the nontechnical secondary facts, which are completely independent of the former and not considered here.
It discloses the functionality of the FSTP Expert System and its technical architecture in an enabling way.
Dealing with patents is discussed in e.g. US 2008/0148143, US 2008/0178114, US 2010/0332285. Scientifically evaluating patents has been around for a long time. Sections I.F-G show that they all are only very remote to the FSTP—none of them mentions a patent/venture expert system of the above outlined capabilities.
Section I.J discloses how the FSTP resolves this technical problem of raw information acquiring, thereby facts' tachymetric screening/transforming, these facts relating to this raw information for instant query replies by combining existing systems—data base/communications/document indexing and mark-up/logic reasoning/document management/document presentation systems—in particular queries regarding an invention's “creative height” over prior art. Section I.K outlines the FSTP's potential to massively simplify the work of national PTOs. Section I.L hints at the FSTP's suitability for application to “business”/“green”/“health”/ . . . inventions/ventures. Section I.M discusses the automations needed, of the FSTP, to enable it to suggest chains of purely legal arguments, too.
a outlines the overall structure of the FSTP, while the
The functionalities to be executed during performing an FSTP analysis are identified by
I.A.1—Fundamentals of the FSTP The FSTP needs informal and formal descriptions of the technique teaching (“TT.p”) to be analyzed and its alleged prior art technique teachings (“TT.i's”). Here and below, this “formal” is not implying a mathematical notation (see Section I.A.3), but a TT description is called formal if it identifies
While the term “technique teaching, TT.p” of a patent (application) is well-known as being the functional description of the solution of this patent's problem to be solved, it here is used to denote also the functional description of any procedure solving a given venture's problem of whatsoever type.
Let us focus on a patent's TT.p—for similarly well-definable ventures see Section I.L—and denote by the:
The relevant elements/attributes of a PTR describe of its TTs only those properties needed in its FSTP analysis for discriminating between the TT.p and TT.i combinations14). Otherwise the number of properties to be described runs out of comprehensibility/manageability. The rule of thumb for a PTR analysis is to initially omit as many properties as possible—without making this PTR meaningless—and then to increase their number as such properties are noticed and recognized by the FSTP user to be relevant for the FSTP analysis. The selecting and refining of such relevant properties is elaborated on until Section I.E and in the FSTP Expert System Tutorial.
The first 4 of the preceding 5 square points and their notional structures are visualized by the
The fifth square point, the innovative technical secondary facts, is too complex for visualization. For a non-trivial PTR, determining “by hand” the technical secondary basic fact in full may already be error prone, extremely tedious, and incomplete—determining its technical secondary plcs-fact by hand is practically impossible (see Sections I.A.4-E). The FSTP is of significant help by supporting correctly and completely determining this PTR's technical secondary plcs- and pmgp-facts—including checking/achieving “plcs- and pmgp-independencies” (see Sections I.A.5). Both facts are a resp. pair “<Qxxxx, Qxxxx-PS>”, xxxx=plcs or =pmgp (see Section I.B.2), with):
Qxxxx is a number 0, 1, 2, 3, . . . called the xxxx-height of this PTR's TT.p over its RS, and
Qxxxx-PS is the set of all pairs <Qxxxx-AC, set of all Qxxxx-cMs such that Qxxxx-AC/mod(Qxxxx-cMs) ants TT.p>.
The technical secondary plcs-/pmgp-facts of a PTR are innovative indicators of (non)obviousness of much better indicativeness of this quality of its TT.p over its RS than this PTR's well-known Graham facts. They are independent of this TT.p's subject matter being technical or nontechnical (whatever meaning the term “technical” should have). A “PTR problem” is the problem of deriving them from this PTR.
The indicative power of these indicators increases with increasing values of Qpmgp(resp. already of Qplcs), but is also substantial for Qpmgp=0 and/or Qplcs=0 (see Sections I.B.2 and I.M).
I.o.w.: A value of Qpmgp≧1 of a PTR's pmgp-fact is an indication of its TT.p's patentability due to its “pushing back frontiers in some useful art by the distance of Qpmgp creative thoughts”—if patenting inventions is foreseen in this art. I.e.: The value of Qpmgp(≧ or ≦Qplcs) quantifies the creative-alias pmgp-height of this TT.p over this RS and thus determines also the indicative power of this indication (as justified in detail by the Qpmgp-PS).
I.A.2—The Need of the FSTP Expert System Already here it is clear: This patent application's innovation uses cutting edge knowledge engineering, linguistic, logics, and IT technology sciences for resolving PTR problems, i.e. for determining the innovative technical facts indicating a patent's (non)obviousness. These sophisticated facts are due to the notional/mental complexity inherent to the (non)obviousness problem even in “simple” cases14), though this intriguing complexity so far is not really being recognized. Mastering this challenge dependably today is impossible, also for the skilled person in the art of the PTR analyzed—unless the FSTP technology is used.
A nice example of this so far unavoidable naivety in dealing with the problem of determining facts indicating a TT.p's (non)obviousness is provided by the USPTO's MPEP, Section 2141. There the USPTO just recapitulates, what the Supreme Court had determined in its 1966 direction-pointing Graham vs. John Deere decision—without becoming aware that performing a (non)obviousness analysis correctly and completely this way, i.e. without additional technique and by using only natural language (of the skilled person), is epistemologically/linguistically/logically/IT-technologically impossible5),14),15). A recent update of this MPEP directive, its new Section 2141, has not reduced this problem (but eliminated the other important question as to the MoT test's exclusivity, see Section I.A.6).
I.A.3—The New Fundamental Terms/Notions of the FSTP Technology Using the FSTP Expert System requires reconsidering a whole series of key terms/notions known a long time, such as “TTs”, attributes “X).n” of the elements “X”, their “disclosures” in documents, and “concepts” referred to by attributes—even the notion of their “independencies” is known rudimentarily. The remainder of this Section I.A goes beyond that reconsideration and introduces additional terms/notions. As it often refers to notional elaborations in later sections, it is not fully comprehendible at first reading—though it provides a first survey about some of these fundamental new ideas.
The “analytic” alias “epistemological” ground laying terms/notions/functions of the FSTP Expert System—its “1. Center of knowledge transformation”—are disclosed/discussed/defined defined by the 6 Sections I.A-I.F.
Its “2. Center of knowledge transformation” deals with its “practical” ground laying terms/notions/functions, as disclosed by the 6 Sections I.G-M. Leveraging on the 1. Center, the 2. one embodies the FSTP's capabilities of instantly answering all reasonable queries about a PTR and all its contexts input to it, i.e. not only about its TTs but also about all their contextual interrelations. The 2. Center of knowledge transformation thus discloses a very specific integrated use of a variety of pre-existing and not-compatible but jointly to be used technical information/communications/storage/retrieval/presentation systems via their pre-existing technical interfaces.
Thus, the knowledge transformations of both centers are totally different from each other, and both are based on functionalities invented for this patent application, nowhere else presented or only considered until now.
The above said implies that the 1. Center of knowledge transformation of the FSTP Expert System deals, in its FSTP analysis of a PTR, with at least two kinds of descriptions of relevant properties of this PTR's TTs: The technical fundamental “informal” facts and the technical fundamental “formal” facts derived from the former ones and having the same meaning (see Sections I.C-E). While the informal facts are just quotations of disclosures of elements' properties (as required by precedents), the formal facts describe these properties as attributes being logic sums of simpler properties and thus deviate from the disclosures' wordings without changing their meanings—which is to be approved by the person of skill. The above attributes X).n/X.i).n are such formal expressions (not necessarily in mathematical notation) referring to “concepts”/“values” (see, see Sections I.A.4-5). Thus, in a PTR's FSTP analysis, one describes at least twice, namely informally and formally, the same relevant properties of all its relevant peer elements X/X.i. From epistemology5), often reconfirmed by IT system design15), it has been known for a long time: The indispensable preciseness of the description of all the properties of all the “relevant” functionalities “noticed” and being “independent” may dependably be achieved only iteratively.
Note: For the FSTP analysis of a PTR it is its TT.p that provides the basis for identifying all relevant X and their properties X).n, i.e. the terminological/notional “coordinate system” for this analysis. Thus, its TT.p prescribes the terms and notions to be used also when searching for and determining their peers in its TT.i's.
I.A.4—A PTR's Concepts and its D-/B-Levels of Facts Presentation of the FSTP Technology. A “concept” may represent anything, i.e. “xxxxx”, whatever “xxxxx” stands for—e.g. an attribute X.i).n5) or a “thought”5)—if there is only agreement that it is commonly understood5) (hence: “sufficiently simple”). A concept anytime has resp. evaluates to an “instantiation” alias “value”, has a set of values called its “universe”, and is called “binary” if this universe consists of T and F. Let “TT.0” denote TT.p and “universe, U(X.i).n)” the set of all values of concepts C.k to which X.i).n refers. Then any X.i).n may be viewed as a binary concept over U(X.i).n). The “truth set of X.i).n, TS(X.i).n)” is defined to be the subset of U(X.i).n) referred to by X.i).n in TT.i.
For a PTR, its concepts are identified by the FSTP user for his description of all properties of its TT.p's X's by their attributes i.e. X).n's—other concepts are inadmissible—i.e. are prerequisites of stating PTR's X.i).n's. Prior to stating these X.i).n's these properties are disclosed in natural language and/or graphics of the resp. document.i1).
The terms/notions used by these original disclosures are called the “disclosure level, D-level” of facts presentation and define the “D-attributes, D-X.i).n” referring to “D-concepts, D-C.k” values. The user has some flexibility in determining the D-level of facts presentation. We focus on PTRs, the D-X.i).n's of which are definable as conjunctions of simple attributes, i.e. any such summand refers to just one D-C.k (see Sections II.B and III).
Solving a PTR problem often requires an additional level of its facts presentation, called “B-level”10). It presents the TT.p's properties as binary attributes referring to only a single B-concept. I.e., solving the PTR problem often requires transforming “D-attributes, D-X.i).n” (referring to “D-concepts, D-C.k”) into “B-attributes, B-X.i).n”, being conjunctions of binary attributes, each referring to only one binary concept “B-concept, B-C.k”, and any B-C.k being referred to by only one such binary attribute. This then is called “B-summand” and equates B-C.k.
This transformation is here prescribed by the D-level presentation of the PTR, namely: Take as B-C.k's the summands of its D-X).n's10). It may leave some D-X.i).n and D-C.k unchanged and would just rename them10).
Any B-concept gets two names alias id's, as shown by
The epistemological difference between both levels is: The unavoidable D-level of a PTR is totally focused on first grasping correctly its TT.p (see Sect. II.A.1.1-2), while the B-level strives for the simplest and clearest presentation of all technical distinctions between fundamental facts of the TT.p's and of RS. I.e., the D-level focuses on matters, while the B-level focuses on the relations between these matters5).
The D- as well as the B-level lead to the notions of (D/B-) “plcs/pmgp-height of TT.p over RS”—though Section I.A.5 explains that the D-notions may come with several mental problems hidden in their natural language disclosures5) of D-X.i).n's, rendering its D-Qplcs/-Qpmgp questionable. I.e.: The B-level is superfluous, if it can be proven on the D-level already that these D-level problems don't exist there—in hindsight often possible.
Today only the D-level of facts presentation exists in a PTR's (non)obviousness analysis. Thus the Graham facts' informal presentations often are interpreted only very rudimentarily—which often is unavoidable if only the natural language is used5),15),16), notwithstanding its interpretation by pertinent skill (see Sections I.C-I.E). Namely: The mental intricacies of PTR's D-level presentation may remain not noticed, implying judicial defaults. These may be avoided by the FSTP's B-level of a PTR's facts presentation. It namely presents the PTR problem—instead over its D-level's plain natural language—over its B-level, where the natural language is extended by the just explained agreed-on TT.p specific terms/notions. Hence, these now can be chosen as the coordinate system for the PTR presentation, and additionally the attributes over them of the PTR's X's are conjunctions of B-summands—which dramatically simplifies this PTR's analysis (as shown in Section I.A.5).
For most PTRs, its attributes X.i).n—specifying only RELEVANT distinctions between its TT.p and TT.i combinations—are simple, as they describe these distinctions only. Thus X.i).n's need not describe the complete functionalities of machines realizing the TTs, but only those functionalities being distinct in the TT.p from TT.i combinations.
If the abstraction from this bulk of properties of the TTs irrelevant for the FSTP analysis is not performed—i.e. if one does not resist everybody's temptation to specify all elements/attributes of the TTs, which were necessary for building functioning TT.p-/TT.i-machines based on these X.i).n's, a here not existing objective—one is inevitably trapped by the sheer endless process (vastly being based on skill1), and not at all on the PTR documents' explicit disclosures2)) of determining such X.i).n's. This is dependably not manageable in plain natural language, as known from HW/SW system specification and also more fundamentally5)—and in the end often irrelevant anyway.
Therefore, these formal fundamental attributes MUST ignore the bulk of these TT-realizing machines' elements/properties/concepts—namely all those elements/attributes/concepts of the TTs of a PTR, which do not contribute to the minimal total number (over all ACs14)) of its plcs-based (D/B-) “not-anticipates” relations of its X.i).n's to peer X).n's: As they are irrelevant for the value of its (D/B-) Qplcs. This is explained in the following paragraphs.
Up-front: The outcomes of applying these plcs-based notions to a PTR may depend on the
For a PTR, a TT.p's property/X).n is called “potentially relevant”—up to plcs—iff its RS contains a TT.i
Six remarks as to the notion of relevance of an X).n (alias X.0).n) of TT.p (alias TT.0) in a PTR analysis:
has been already a potentially relevant but not yet noticed property of TT.p within the original PTR, and/or
limits TT.p as to one TT.i (of its original or expanded PTR) by TT.i not disclosing or even contradicting it.
For a PTR, a TT.p's property/X).n is called “noticed”—independent of its disclosure being ex- or implicit, i.e. of its being spoken out in the wording of document.p or not—as soon as the person of pertinent ordinary skill recognizes it to possibly be potentially relevant. Whether any one of TT.p's potentially relevant X).n's is noticed, in the FSTP analysis of a PTR, is decided by the FSTP user. Today the probably best way to assess this decision is to try out alternative wordings describing the distinctions between the TT.p and TT.i's, for discovering by this redundancy not yet noticed and possibly potentially relevant X).n's.
A potentially relevant X).n is called “actually relevant”—for short just “relevant”—iff X).n is not plcs-implied by at least one X′).n′ (see Section I.B.1). For a PTR, its set of all potentially relevant X).n's may contain different maximal sets of relevant X).n's (potentially automatically determinable by the FSTP analyzer). The resp. remaining X).n's then are irrelevant (see above). Here is of interest only that this plcs-implication problem of X).n's often is easily solved if the PTR is presentable on a B-level, as then any B-X).n equates to exactly one B-C.k (see above) and their independency of each other ought to be easily verifiable by the person of pertinent ordinary skill.
Note: The impact of a PTR's relevant X).n on its technical secondary creative fact may be all decisive, as not noticing it may—due to various pmgp reasons (see Section I.B.2)—render its TT.p obvious over its RS14).F and hence void its patent. Thus, if challenged, this patent's owner must strive for identifying and presenting the complete set of all its relevant facts. On the other side: A court's refusal to consider a relevant X).n would, in many countries, violate this owner's constitutional rights.
For a PTR its ANC matrix—just as an AC14) over the TT.i's of its RS—is called “plcs-independent”, iff all X).n's of its TT.p are relevant. I.e.: The plcs-independency of the ANC matrix and of any AC is here defined over the set of TT.p attributes—no attempt is made here to define their plcs-independency “as such”. As mentioned above, already, a PTR's plcs-independent ANC matrix need not be unique, neither on the D- nor on the B-level. Yet, over its finite number of plcs-independent ANC matrices, the value of Qplcs is by definition minimal14).
A PTR's B-level facilitates its analysis dramatically, in particular for very innovative TT.p's. It namely
I.o.w.: Ignoring pmgp and determining for a PTR first its technical plcs-fact provides an until now unknown insight into the structure of its obviousness problem: It namely exposes clearly that plcs identifies the necessary conditions for thoughts to indicate its (non)obviousness, and—on top of this indication—pmgp determines sufficient conditions for them to this end. The patent law literature until today does not know the so prescribed way of structuring the set of all reasonable arguments about a PTR, which enables the FSTP Expert System's functionality.
Five remarks to the above terms/notions, in particular to “plcs”/“pmgp” and “D-/B-level”, end Section I.A.5:
The contrary is true for the FSTP Expert System as to both decisions, the EU and the US one.
As to i): The FSTP Expert System practices a priori in its analysis of a (plcs-independent) PTR the “holistic approach” as understood by this opinion of the EPO—the FSTP's potential reduction of a PTR's plcs-fact to its pmgp-fact is explicitly confirming this holistic view, not the “contribution approach” view. The FSTP analyzer namely recognizes any plcs-independent whatsoever property of the TT.p, including an X).n being a conjunction of attributes X).n′ and X).n″, also if both are anted by prior art document.k′ and document.k″ (see Section I.A.5.ii)). As opposed to that, the contribution approach to analyzing a TT.p over its RS may omit, right from the beginning, this X).n (as being anted by RS), and then fail to identify X).n's both properties of TT.p as being relevant in this PTR.
The reason for this notional deficiency of the contribution approach to patent interpretation is that it mixes up the notions of plcs and (negative) pragmatics, pmgp−. It thus ends up with considering as legal to remove—right at the beginning of its patent interpretation—at least one of X).n's properties from its PTR's plcs-fact without any rational justification for this consideration. I.e., it falls back to before rationality took over control in arguing, by using (questionable) feelings concerning the creative values of isolated contributions to an invention, those by X).n being some of them. Admitting a priori feelings as to such isolated contributions is something definitively different from the clearly definable/defined pragmatics, which the patent law generates resp. is based on (see Section I.B.2).
I.e.: The contribution approach's not determining all relevant plcs properties of a TT.p over the prior art, first, invites the flaw to simply skip the necessity imposed by rationality of proving the existence of pmgp−, i.e. to abstain from deciding by vague feelings—which the FSTP test bars by its insisting in the holistic view of a problem.
As to ii): The FSTP Expert System's 2. center of knowledge transformation namely “ . . . instructs the use of this <FSTP> analysis technique to help establish some of the inputs into the equation (see page 3 and pp. 12-15)”, whereby this “abstract theory, described by a mathematical equation” is underlying the FSTP ES's 1. center of knowledge transformation. I.e.: It is impossible to reduce its functionality to only this “abstract theory”, as the functionality of its 2. center of knowledge transformation is brand-new and in no way related to pmgp.
But these reductions would be indispensable in the argument that the remaining functionality of the FSTP Expert System is just that of its 1. center of knowledge transformation. Its impossibility excludes stating that the FSTP ES is just an abstract theory, a mathematical “equation”, its TT.p's technical secondary creative fact. I.e.: The FSTP ES is eligible for patentability—not meaning, the functionality of the 1. center, as such, were not patentable.
This 1. center namely is a “tachymetric survey instrument (epistemologically comprising even some kind of creation processes)”, i.e. applicable not only to determining some point's elevation over its surrounding, as usual. But it is an HW/SW tachymetric survey instrument determining for a PTR's TT.p the semantic and creative elevation over its surrounding RS (see the middle of Section I.E), in that it transforms the verbal disclosures of the elevations of this PTR's TT.p over its RS's verbal disclosures of height into the values Qplcs and Qpmgp(describing the TT.p's semantic/pragmatic elevation over RS). It thus is a truly innovative tachymetric survey instrument, in that it also transforms these disclosures into all shortest paths leading from this PTR's RS+ to its TT.p, i.e. into all the Qplcs/Qpmgp-path-sets leading to the TT.p's semantic/pragmatic elevations—automatically resp. interactively.
I.e., as shown by
I.B.1—Mathematically Formalizing the D/B-ANC-Relation presented as D/B-ANC Matrix
In any NPS the basic notion is the “anticipates”-relation of the properties of a PTR's TT.i's to the properties of its TT.p, subsequently sometimes abbreviated by “ants-relation”. The not-ants- and contradicts-relations are evident logical consequences of the former relation, the latter being an amplification of the former one.
Fully leveraging on this “ants” notion requires two levels of information in a PTR presentation: The
Section I.B.1 defines the ants-relation mathematically for the D/B-level, i.e. models solely the elementary semantic construct the patent law is based on, hence called “patent-law-carrying-semantics, plcs”, by determining, for a PTR, specific relations
firstly, of its original X.i).n's to its X).n's—this part of the of the ants-relation is presented as ANC-matrix—and
secondly, of some elementary modifications (by 1-cMs) of these original X.i).n's to the same X).n's,
whereby this construct's components, in turn, are based on commonsense and elementary knowledge of sciences14).D only.
Thus, the ants-relation considers solely PTR-intrinsic1) properties (comprising prior art properties modified by sequences of 1-cMs), as understood by the person of ordinary skill. On top of the ants-relation, the Section I.B.2 then ads further considerations which are totally PTR-extrinsic1): It evaluates these sequences (of 0, 1, 2, 3, . . . 1-cMs of prior art properties) by patent-monopoly-granting pragmatics, pmgp, definable on top of this semantic construct.
In terms of the “use-hierarchy” well-known in system design, determining the technical facts indicating the (non)obviousness of a TT.p over some prior art deals with three notional layers: The notions of “patent-monopoly-granting pragmatics, pmgp”, which are not interpretable without the plc-semantic notions of the “ants-relation”, which are not interpretable without the notions of “commonsense and elementary knowledge of sciences, ceks”. I.e.: The pmgp layer uses the plcs layer, which uses the ceks layer.
A PTR's pmgp is legally as important as its plcs, as it is the socio/economic restriction, under which inventing of its TT.p is legally considered creative. Nevertheless, the invention of this TT.p must have been achieved first. Hence, the mathematical definition of the ANC-relation is given first—also as today dealing with solely plcs is a plainly mathematical activity, which does not yet apply to dealing with pmgp today.
Upfront two remarks/reminders (as to the D-/B-presentation levels of facts) are important:
The below definitions apply to the D- just as to the B-level (where they are particularly simple). They are based on a series of assumptions generally accepted in a (non)obvious analysis (though sometimes being problematic), such as: not considering time (i.e. a TS(X.i).n) does not change by itself in time) and/or limitations unavoidable in any embodiment of an AC (and hence making this limitation void as being part of skill). Not making them may require a more complex definition of the ANC relation, than the following simple one (see Section III):
These simple mathematical definitions may be straightforwardly expanded to apply also to TT.p and AC14), both taken as the resp. tupels of their attributes—AC being an element of RS+, i.e. comprising X.i).n's from one or several TT.i's—by the definitions14):
These mathematical definitions of the elements of the ANC matrix may look complicated only at the first glance: This is namely just elementary logics and set theory. Nevertheless, these formal definitions precisely represent the meaning, which anybody intuitively associates with the ANC relation between a PTR's prior art RS and its TT.p as determined by patent law and precedents. So far it seemingly was never stated that precisely14), but only in natural language, i.e. loaded by its intricacies5),15).
Next, the lingering question is clarified, whether the technique of FSTP analyzing a PTR might be put into jeopardy by pmg pragmatics, as it may “devaluate” Qplcs by pmgp−—an exemplary reason being that today pmgp and in particular pmgp− it is not yet definable mathematically as the plc semantics above, i.e. the ANC relation. After having stated already that for very innovative inventions there is no pmgp− at all, Section I.B.2 goes further in eliminating such concerns by showing that pmgp is nothing obscure but materially clearly structured. Section I.M finally outlines that determining the impacts of pmgp as a whole should eventually become definable mathematically and even automatable.
I.B.2—FSTP Support for Dealing with Potential pmgp-/pmgp−-Impacts on a PTR's plcs-Fact
Continuing the above: As to the US Supreme Court's Graham/Deere decision, and more explicitly articulated in a whole series of more recent German BGH decisions2), for a PTR the number Qplcs of not-ants or even contradicts plcs-relations between its prior art and its TT.p must be >=2, thus being a necessary indication for its TT.p's (non)obviousness over its RS1),14). Thus, Qplcs has been named, here, the “patent-law-carrying-semantic height” alias “plcs-height” of the PTR's TT.p over its RS, whereby the indicativeness (of this value of Qplcs) increases with increasing values of Qplcs.
But, this necessary (non)obviousness indication of a patent's TT.p is frequently not sufficient for granting it protection by patent law: There may be also “patent monopoly granting pragmatics, pmgp” indispensably to be taken into account. pmgp represents in any NPS the national socio/economic principles underlying the idea of “patent monopoly granting” to inventions/TT.p's—here assumed to be known. By recognizing pmgp, the resulting Qpmgp may become smaller than, equal to, or larger than the Qplcs.
The even further reaching jurisprudence aspects of pmgp are outlined in Section I.M, while this Section I.B.2 deals solely with the possible impacts of pmgp on a PTR's Qplcs. Its Sections I.B.2.a-d briefly elaborate on the 4 potential kinds a)-d) of pmgp, before Section I.B.2.e describes the FSTP Expert System's functionality enabling its user to get rid of any uncertainty as to any potential pmgp impacts in a PTR's FSTP analysis, though it does not show a kings' way out (as currently none exists).
One result of this Section I.B.2 will be: In a PTR's FSTP analysis pmgp always comes along with one or several 1-cMs, and hence any potential reason for a pmgp impact on its plcs-fact is detectable automatically by the FSTP and then may interactively be reduced or increased, depending on whether it is negative or favorable for the inventor of its TT.p (see Section III). This implies that—while still developing a PTR's TT.p—in its FSTP analysis any pmgp impact on its plcs-fact may be managed interactively by the FSTP user by creating additional plcs-properties of its TT.p potentially achieving an effect intended by him (see Section I.A.6.i)). Thus, the FSTP Expert System supports hedging patents at issue to a degree unthinkable so far, e.g. by making use of a copyright. In addition, potentially applicable items of negative pragmatics may be disguised as a further document.i expanding RS, thus making14) its impacts traceable automatically.
Section I.B.2 talks only about the potential pmgp impact on a PTR's technical secondary plcs fact. Yet this implies that this impact affects the technical secondary basic fact the same way—making extra comments obsolete.
The below wording “Potential Qplcs devaluation” is just another way of putting the above said as to the potential reduction of the indicativeness of a PTR's plcs-fact by pmgp−.
Finally: In the following the “NPS” or similar (see Section I.M) would often be boring and then is omitted.
I.B.2.a)—Potential Qplcs Reduction by Elementary Engineering/Natural-Law Fact(s)—No True pmgp There may be engineering and/or natural-law facts inherent to the problem to be solved by a PTR's TT.p and/or to the TT.p, which are neither TT.p-pertinent skill nor commonly known, but yet create plcs-dependencies between the properties/limitations disclosed for TT.p—e.g. implied by any one of TT.p's implementations or by limiting the use of the TT.p such that some natural law enforces at least one plcs-dependency between the properties/limitations disclosed for this TT.p.
A simple example of this kind of pmgp affecting a PTR's plcs-fact reads as follows: Its TT.p discloses a testing apparatus for drilling holes into the walls of old oak barrels for getting probes from their contents, the apparatus being heated externally—by some electro technical ad-on feature to its drill—such as to assure that the holes' borders are totally sterilized, while a barrel's external surface may be organically dangerously contaminated in a way making disinfection by a chemical substance unreliable. Though no similar electro technical ad-on feature to the drill of a testing device is known from testing devices of contents of old oak barrels, an attack on this invention could maintain that it is not new and the electro technical ad-on feature to the drill is just gimmick: Due to physics any drilling oak walls namely implies the drill would be heated up externally, and due to chemistry this would achieve the same sterilization of the hole's border.
Such trivial common-sense/engineering/natural-law insights here is part of determining the PTR's plcs-fact, i.e. establishes no risk by pmgp—hence it is not considered as pmgp, at all, i.e. not as “true pmgp”.
I.B.2.b)—Potential Qplcs Reduction by the NPS—Being True pmgp The regulations of an NPS (comprising a nation's patent laws and its Highest Courts' precedents) may be provided to the FSTP Expert System logically modeled as NPS ontology and then automatically control—under the supervision of the FSTP user—all decisions of the FSTP analyzer (see Section I.M). But national courts need not approve the FSTP's way of applying their resp. laws and/or their precedents (as modeled by this NPS ontology) and then deviate either from what this NPS ontology has modeled or from how the modeled NPS has been applied to the PTR at issue.
Initial NPS ontologies would model only few and simply to describe situations in a PTR's analysis. Therein this NPS-pmgp would enable the FSTP to automatically detect the risk of any pmgp-caused dependency between any of its ACs' ANC relation to its TT.p, i.e. the NPS-pmgp's potential impact on its Qplcs.
A simple example is that of an invented medical drink, as TT.p, which allows for the values of its “application temperature” common concept* only a tighter range, namely “substantially the applicant's body temperature”, than prior pertinent medical art's limitations of the truth set of this concept*, which is e.g. just “more than 10 and less than 50° C.”. Thus, in terms of plcs, the “TT.p's truth set of the concept*”, TS<TT.p-concept*>, is a subset its prior art truth set, i.e. “TS<prior-art-concept> and TS<TT.p-concept> are disjoint”, i.e. prior-art-concept* not-ants TT.p-concept*. This prior-art-range-attribute must be modified by a 1-cM (of its “application temperature”-concept) such as to change the just quoted N-relation into an A-relation, and therefore this TT.p-limitation on the “application temperature”-concept contributes to increasing this TT.p's Qplcs over prior art.
For this example any NPS precedents have set already the following: This pmgp says for the general case that just narrowing down a prior art's range to a therein included TT.p's smaller range, as such, represents a triviality but not a substantial innovation and consequently does not contribute to increasing this TT.p's Qpmgp over prior art. But if that document.p discloses together with TT.p a substantial advantage (occurring as a consequence of taking its drink at this application temperature), which does not occur when taking it outside this narrow interval, then TT.p's above N-relation may nevertheless contribute to increasing this TT.p's Qpmgp over prior art—in this case this 1-cM is pmgp-independent.
I.B.2.c)—Potential Qplcs Devaluation by Pertinent Skill—Being True pmgp Modeling documented skill pertinent to a PTR is quite similar to modeling prior art, i.e. is not a technical problem, just a mass problem. Hereby any NPS considers skill (of the resp. skilled person and/or of PTOs' examiners) as irrelevant if it is nonpertinent (i.e. non-TT.p-enabling) or nondocumented or nonpublic.
But problems arise from the uncertainty, whether pertinent and documented and enabling skill actually ants a TT.p, i.e. whether such an allegation is not only caused by language intricacies (see Section I.C).
An exemplary case of this problem is that some nontechnical source of information—e.g. the press releases database of some company (see Section II.C.3)—contains a marketing leaflet announcing in a layman's language a new product for the future, which would solve some problem in a fashion seemingly working similarly to the TT.p, whereby this announced solution were based on allegedly existing skill. This announcement in a layman's language may be taken by a lawyer of an attacker of the TT.p to alleging this marketing document proves the existence of pertinent technical skill anticipating the PTR's TT.p or at least makes it obvious—which then may be shared by a court, as it also uses this layman's language and thus refuses to notice the PTR's TT.p, as technically disclosed by document.p in the pertinent skilled person's language (see Sections I.D and II.A.1.2).
I.B.2.d)—Potential Qplcs Devaluation by Lack of TT.p Enabling Disclosure—No Additional True pmgp With this phenomenon of pmgp two quite different aspects have to be distinguished from each other.
The FSTP Expert System's user interface would model in a straightforward way this just disclosed checking a PTR's plcs-fact for and applying to it, on the basis of an underlying NLS, therein existing and agreed on pmgp. But, this user interface would also enable the FSTP user to intentionally/tentatively ignore and/or exaggerate to arbitrary degrees such agreed on pmgp allegedly being applicable to the PTR. As today it is, by and large, an examiner/expert and eventually a judicial question, which 1-cM paths of its Qplcs-PS are impacted by pmgp, this uncertainty will be reduced stepwise (see Section I.M). But, for figuring out what are the consequences of making what assumption on what part of some pmgp allegedly applicable to a PTR, and/or for respective training purposes of the FSTP user in handling the resulting situations, he is enabled to try out all possibilities at his discretion.
If the TT.p is still being created, this flexibility provides to its inventor all the guidance he needs to optimally hedge it against attacks by creating for it additional features, increasing its plcs- and pmgp-heights as needed.
A remark on this Section I.B.2 may be of interest: None of the practical PTRs analyzed so far (in particular all the precedents of the Highest Courts of the USA and of Germany of the last years for (non)obviousness decisions) shows a plcs-fact, which cannot immediately be qualified as pmgp-(in)dependent. All these inventions are by far too simple for complicating the FSTP analysis, as disclosed here. This holds, in particular, for the relatively complex '884 PTR analyzed in Sections II, underlying the cases Cisco vs. Teles (BGH, X. Panel1),2),3), Germany) and Teles vs. Cisco (Distr. Court of Delaware, 24.07.2010, US). In both cases holds: '884-plcs-fact='884-pmgp-fact, implying a large value of Qpmgp—this presently still being ignored by both courts' decisions.
Going back, to prior to the above said about identifying/defining a PTR's plcs- and pmgp-facts, the process of determining its TT.p's relevant D/B-attributes X).n and D/B-concepts C.k requires clarifications.
In a PTR any relevant disclosure/property/attribute X).n (see Section I.A.5),
Already this shows: Determining by the FSTP user for a PTR all relevant D/B-X).n's and their underlying D/B-concepts may be an activity all but trivial14)—and yet the FSTP thereby must often leave him on his own, as he must make use of the skill pertinent to a PTR (see Sections I.D-E for more explanations).
But: While currently no generally applicable user guidance is possible for performing this activity of identifying all pertinent technical skill based D-attributes X).n within the PTR's natural language documents—when starting to interpret a patent—an appropriate DSNL (=domain specific natural language) may support performing this task.
A critical side remark, first, on current such domain specifics: Any NPS has partitioned the total area being subject to its patent law by some categorization system, which identifies its various technical domains of application. This attempt to provide some overview of and orientation in this huge area is by today vastly outdated, misused, and confused. Consequently it has only little to do with the desirable features of any just mentioned advanced DSNL. Thus, the FSTP may operate completely independently of this attempt, though it also can provide the generally known terms matching between this categorization system and a PTR analyzed by it.
More important, as to this aspect, is: For a PTR in an appropriately limited natural language presentation, the FSTP Expert System has the optional capability of automatically translating the PTR's informal into formal attributes, and then semi-automatically stating the plcs-(ir)relevance and -(in)dependence of attributes X).n. See:
“The D/B-levels in the '884 PTR-Problem”, Technical Report #1, the FSTP-Project, and
“Aspects of Formalizing a Patent's Independent Facts”, in preparation by the FSTP-Project.
These papers discuss the translation of true natural language ex- and implicit skill based informal disclosures/properties/attributes—i.e. of informal fundamental facts, written in true natural language and relying on the readers' familiarity with pertinent skill (and then being rewritten in the restricted natural language ACE, “Attempt to Control English”, still being pertinent skill based)—into formal D/B-attributes X).n/X.i).n and their underlying D/B-concepts, i.e. logically absolutely equivalent fundamental formal facts, enabling the FSTP to automatically determine the ants-/not-ants-(/contradicts-)relations between TT.i's and the TT.p (see Section I.B.1). These ACE attributes are as close to their PTR's true natural language disclosures as today only possible, if their automatic translation into the formal X.).n's/X.i).n's is required. This automatic translation may enable the FSTP to determine automatically (at least much of) its above D/B-plcs-facts and potentially also its D/B-pmgp-facts determinations—thereby interactively cooperating with the FSTP user, if requested by him or by the FSTP, on any issue and at any time. This need arises unavoidably as even in a single PTR analysis, which concepts are controversial or not may change on both D/B-levels—in particular when starting to establish them both.
The preceding sections outlined already for a patent's disclosures, that their
In particular the latter transformation requires further clarification, as touched on already in Section I.C.(1): While there only the question has been addressed, what the implications are of disclosures being technical or non-technical, this Section I.D elaborates on the legally equally far reaching notional distinctions between the D- and B-presentation-levels of disclosures in patent descriptions, that were emphasized in Sections I.A.4-5, I.B-C and above—namely that the D-level notions are blurring as being PTR analysis non-specific, while the B-level notions are much sharper as being totally focused on analyzing the PTR problem at issue, all presentations being skill based.
The need of this clarification has nothing to do with any specifics of the FSTP, but belongs to specific fundamentals of patent interpretation. These are reiterated, here, as patent court cases sometimes
Understanding/overcoming properly this absolutely fundamental patent interpretation problem has nothing to do with using the FSTP for a PTR's analysis, but first of all with grasping correctly the PTR's TT.p and its TT.i's—before stating facts about the technical distinctions between the TT.p and prior art.
This problem is due to the fact that there are 3 different terminological/notional “levels of pertinent professionalism” inherent to any (true/restricted) natural language—enumerated by the subsequent 3 bullet points—whereby any NPS1),2) assumes any patent's disclosures are located on the skilled person's level: This language's
According to Highest Courts' precedents in any NPS the professionalism level of the natural language used in a patent is the one of the skill in the art pertinent to the patent's TT.p (e.g. in the USA recently reconfirmed by the CAFC in the case Telcordia vs. Cisco, Jun. 20, 2010, and by the Supreme Courts Bilski decision, quoted above). Consequently, when interpreting the specification and/or claims' wordings of a patent, the terms' notions of the skilled person's language level must be chosen, otherwise nonsense may arise—as shown by Section II.A.1.2.
I.e.: This precedent—emphasizing the need of understanding this distinction in patent interpretation and to use in it the skilled person's language—is sometimes ignored by a court in favor of using, in a patent interpretation, its own level of professionalism in interpreting the patent's natural language, i.e. the layman's natural language level. In other words, a court may feel so uncomfortable with the alleged artificiality of the “pertinent skilled person's natural language” that it simply ignores this legal problem—if it does not even explicitly claim that there were nothing technical with some term/notion of this patent's natural language, and hence no technical skill is needed for determining this term's notion/meaning (see Section 1.C (1)). This court then interprets this patent's claims/specification on the layman's professionalism level of this patent's natural language, or at best on some textbook's professionalism level of this natural language. And it sometimes proceeds this way even against its own certified technical expert's affidavit, which the court had requested from him by asking for his technical facts statements concerning terms' skill-based notions—which then indeed are based on the pertinent skill and hence explicitly state the contrary of the court's layman's opinion as to these technical facts (see Section II.A.1.2).
In telecommunications technology, there are well known examples of this alleged artificiality in the pertinent skilled person's natural language: E.g. a patent's natural language notional D-level term
While the layman might consider these meanings of the terms “connection”/“communications connection”/“call” to create an unnecessarily broad notion, many years of technical discussions in the above quoted international consensus making bodies have proven that these notions of these terms represent what is required by the skilled person in telecommunications. And as a matter of fact this notion of a “connection”/“communications connection”/“call” is not questioned by any person skilled in telecommunications technology—in particular not its subnotions of a connection/call first coming into existence before “initiating it”/“establishing it”/“setting it up”20).
This proves that, for a patent on some subject area, the pertinent technical skill and its terms/notions are absolutely indispensable20) for the derivation from its gross/amorphous D-level terms/notions much sharper—as focused on the PTR analysis at issue—its B-level terms/notions according to Sections I.A.4-I.E. Note in particular that these B-level terms/notions focused on the PTR analysis actually considered—here of skill in telecommunications technology (see Section II)—make them implicitly disclose1) a whole bunch of “patent extrinsic” B-attributes and B-concepts, as the preceding 3 bullet points just exemplified.
If in a court case on a patent's/claim's meaning and/or scope the court refuses to use the terms/notions of the “pertinent skilled person's natural language”, the court is likely to determine this patent's/claim's meaning and/or scope to be significantly different from its meaning/scope as described by the patent's inventor(s) by means of using the pertinent skill level of this patent's/claim's natural language. Impressive examples of the then resulting disaster are the cases Cisco vs. Teles, BGH, X. Panel, Apr. 15, 2010 in Germany and/or Teles vs. Cisco, Distr. Court of Delaware, Jul. 24, 2010 in the USA, as elaborated on in Section II.A.1.2.
Firstly, there is still another epistemological reason for repeated transforming and formalizing a PTR's presentation: Namely the hope to be able to identify and derive more insights into this PTR problem—i.e. its TT.p's (non)obviousness indication over its RS—than known before. This hope is due to an analogous beneficial phenomenon so achievable e.g. in many natural sciences: There it turned out repeatedly that analyzing a problem may be greatly fertilized by formalizing and transforming it to a presentation suitable for this analysis. This Section I.E explains this expectation concerning a PTR's FSTP analysis, as announced above (e.g. in Section I.A.5).
Achieving such new insights into the PTR's (non)obviousness indication problem—by transforming all potentially relevant PTR disclosures in plain natural language presentation (of the skilled person) into logically equivalent but more precise formal meanings (as confirmed by the skilled person) and eventually even from its presentation on this D-level to its B-level—is absolutely new in the sphere of patent law. As said already: In natural sciences and engineering their similar coordinate system transformations alias presentation transformations (see Section I.A.5.x)) are practiced ever since and lead to additional fundamental insights, e.g. in many
Here, too, fundamental advantages emanate from transforming the presentation of a PTR's (non)obviousness problem from its original informal plain natural language disclosures/description/presentation into its epistemologically equivalent formal plain natural language D-level presentation into its epistemologically equivalent formal “extended” natural language B-level presentation, whereby all presentations are assuming that their resp. terms/notions are used/interpreted by the skilled person (see Section I.D). Six examples are:
Grossly oversimplifying these fundamental advantages achievable by these coordinate transformations of the PTR problem, the former may be depicted by using the “tachymetric surveying instrument” metaphor once more (see the end of Section I.A). From the Webster dictionary follows that a tachymetric surveying instrument at some point enables its user to determine the elevation over this point of any other point visible to this system, e.g. of a mountain top surmounting them all. In a PTR's FSTP analysis, one may take—as analogon to all these various reachable points—the combinatorial hull of its prior art, RS+. The FSTP analyzer then enables its user to determine by the value of Qpmgp the creative elevation of its TT.p over this RS+ (and even better, by Qpmgp-PS also all the shortest paths leading from potentially different points of this PTR's RS+ to its TT.p). The various presentation levels in this FSTP's PTR analysis correspond, in a classic tachymetric surveying instrument, to its use of different lenses, stepwise zooming-in on analyzing the viability of the plcs- resp. pmgp-facts, which increasingly improve the “path sets” from RS+free to the TT.p14) (see Section I.M).
Finally: The FSTP's PTR analysis leverages, via the above transformations, on two fundamental and long-known insights from IT sciences, in particular from IT system design, namely:
Section I.F summarizes several decisive differences between the FSTP's “Highest Courts' precedents integrating” innovations as to a PTR's obviousness analysis versus other “no Highest Courts' precedents integrating” research on obviousness. It shows that none of these other academic researches only even recognizes a need of something similar to the FSTP innovations, not to speak of one of them having actually disclosed anything similar—see also Section I.G for further related research. None of all of these efforts aims at achieving an epistemology based real-time patent expert system, as is the FSTP Expert System disclosed in detail in Sections I.A-M. See e.g.:
“Recherche and Prüfung einer Erfindung auf Patentfähigkeit”, H. Beyer, GRUR 1986.
“Psychologists' Views on Nonobviousness—Are They Obvious?”, J. Davidson and N. Greenberg, 2008.
“The Inducement Standard of Patentability”, M. Abramowicz and J. D. Duffy, 2010.
The FSTP analysis takes a different approach to the PTR problem and elaborates on the Highest Court's vague hints at “the number q≧0 of independent10) thoughts indispensably required for getting to the TT.p, starting from prior art”. It thus creates the innovative notion of a “q-cM for counting such thoughts”, which leads to the innovative “technical secondary basic/semantic/creative facts”—comprising the innovative notions of “basic/semantic/creative height q≧0 of TT.p over a prior art RS” and of “Qbasic/Qsemantic/Qpmgp-path-sets”—which provide this (non)obviousness indication in a convincingly quantified and qualified manner (see Sections I.A-E).
I.e.: None of any other scientific efforts ever tried to invent for the PTR problem, what a creative idea could be for it, and hence could not become aware of the possibility of repeatedly applying the notion of a “creative idea” (alias “pmgp independent thought”) for determining PTR's “technical secondary creative fact”, such that its:
Hence, none of them had the faintest idea of the need or existence, for any PTR, of its FSTP B-level for presenting PTR's information (see Section I.A.5), as indispensably needed for making this fact unquestionable1),2).
In addition to the differences between the other scientific research explained in Section I.F and the “FSTP technology” explained in Sections I.A-I.E—characterized by the FSTP Expert System's innovative epistemological properties, i.e. by its 1. center of knowledge transformation—also a fundamental difference exists between this new FSTP technology and another kind of scientific research, which deals with patent issues as understood by knowledge engineering. The FSTP technology namely aims at solving the epistemological problems arising in determining specific semantical/creative facts within documented knowledge, while these other new technologies of academic research don't care for semantics/pragmatics whatsoever and deal with syntax driven ideas supposedly helping managing knowledge—modeled by ontologies—also if it is focused on the subject area of patents.
Outstanding surveys/papers from this ontology area and the management of their knowledge are:
U.S. Pat. No. 5,694,523, Wical, 1995: Oracle Corp., shows the patentability of such patent oriented inventions,
Patent Application US 2008/0021700 A1, Moitra, 2006: Lockheed Martin Corp.,
“A . . . . Platform for Invention Based on Ontology and Patent Document Analysis”, V. W. Soo, 2005: 9th ICCSCWD,
“Automatic Patent Document Summarization . . . ”, A. J. C. Trappey, 2009: J Syst Sci Syst Eng.
All 4 surveys/papers indicate that the FSTP's epistemological approach to the nonobviousness problem of a PTR accessible/usable in real-time is not even touched elsewhere: None of these ontology research activities would only have considered the specific type of problems arising on the “FSTP Expert System way of enabling the real-time use of all knowledge about a PTR's nonobviousness problem”—whereby this knowledge includes all epistemological insights into the PTR's facts as well as all the specific kinds of contexts providing support needed for resolving this problem dependably and internationally as well as all the interrelations between these epistemological insights and these contexts from which they are derived by the FSTP analyzer—not to speak of thinking about an actual technical resolution of this problem, as provided by the “FSTP Expert System” disclosed by Section I.
Notwithstanding the just explained fundamental differences between the functionalities known from other research and those of the FSTP Expert System, the results from ontology research are related to some practical problems arising also in the FSTP Expert System, which are dealt with by the functionalities of its 2. center of knowledge transformation. The state of ontology research makes it useful for recognizing the relevant disclosures in the PTR and all contexts by automatic textual analysis of all related documents. I.e.: The strong point of “ontology technology” is that it allows providing the global contexts to the FSTP needed by it, e.g. by automatically screening the huge amounts of potential/alleged prior art documents for informal fundamental facts. This allows reliably excluding the relevance of most of them in a patent case, resp. reliably assessing that within the maintained such documents any informal fundamental fact has been detected and properly taken into account. This research may long-term be developed so far that it eventually may make obsolete a good deal of the input the FSTP Expert System today requires to be provided by its user (see Section I.M).
Aspects of using ontologies by the FSTP Expert System are visualized primarily by the
a is supposed to show that the FSTP—whenever using it in creating/developing/analyzing/administrating/managing/ . . . a TT.p resp. its PTR at issue—semi-automatically permanently supports taking into account the impacts on this activity by in particular three contexts: The current global “national legal systems, NLS” context (consisting of their Highest Courts' precedents ontologies, including the resp. laws it is based on), the current global “subject areas of patentability, SAOP” context (consisting of models of the various subject matters, organized according to the
This presentation of context ontologies as separate entities should not be misunderstood as limiting their implementation structures: Their technical embodiments—obviously being database systems or subsystems thereof—may be vastly overlapping each other (i.e. be implemented as one single database) or may be split into even smaller functional entities, whereby each entity may contain only a certain type of ontologies as included in its “mother ontology” and may be implemented as separate database for any one of them. And this conglomeration or decomposition of functional entities respectively their “database engines” again does not imply any particular physically centralized or distributed implementation, as indicated by
Initially the global context ontologies of an FSTP Expert System would be incomplete, and would be built up stepwise over a period of several years. As opposed to that right at its beginning a specific PTR being FSTP-analyzed may be input completely by its user into its individual TT.p-ADMIN ontology within days, together with all the contextual knowledge about it. In any case, an FSTP embodiment would enable its user to browse through all the knowledge available to it as needed by him. All these activities would use the FSTP's various technical knowledge presentation functions as outlined by the
The current global context ontologies provide the determinants of the so defined creative height problem of a PTR at issue. The FSTP resolves it by deriving from them the above explained epistemological and practical results in facts screening and transforming processes, as visualized by the
There is no static use hierarchy between the ontologies. But, any use of the FSTP would stack them according to their sequence of evocation, thus implying dynamic hierarchies between them. E.g.: After initiating the work on e.g. a specific functional module in a specific TT.p-ADMIN, the FSTP user would be able to select at least one of the NLS's and at least one of the SAOPs module—if meaningful—which then would control the execution of the user's at least one immediately following or later occurring evocation of at least one function of this TT.p-ADMIN module (see
The corresponding also holds for all other invocation sequences performed by the FSTP user. Examples of such invocation sequences are further discussed in Section I.J: The user may arbitrarily toggle between arbitrary contexts anytime and work on them as needed, supported by “activity logs” and “resulting states” ontologies, keeping him informed about the current total status of a PTR's analysis and how it was derived—again by using the FSTP's appropriate presentation functions, specifically designed for “tracking reports” of their kinds.
One of the purposes of this overall specification of the functionality of the FSTP TT.p by the end of this Section I.G is to show, that the FSTP Expert System as such is designed/defined to be a “finite state automaton”. This implies: Its embodiment by an HW/SW system is straightforward for the person skilled in IT system design.
An intermediary summary of Section I thus would state that the FSTP Expert System is made up from two quite different finite state automata alias processors alias machines of knowledge transformation functionalities, which both may work highly interleaving with each other: Namely, its
The FSTP thus is a unique “patent/endeavor expert system”, in that it
To this end all these functionalities constituting the fundament of the FSTP—of its two centers and its presentation and WS management functionality—are indispensably required and highly interleavingly executable for enabling the FSTP to simply and efficiently manage all the knowledge related to a PTR problem.
Thus, the FSTP Expert System is unique, as until now
d and its preceding short description should not be misunderstood as limiting the flow of control while performing a PTR analysis (though its sequence of double arrows hints at frequently occurring such flows of control): But it shows one of many embodiments of grouping/clustering both functional centers of knowledge transformations and the presentation and WS management functionalities into functionally coherent modules of an FSTP Expert System's implementation as hosted by an FSTP Central System—further elaborated on in Section I.J.
Elaborating on the disclosures of Sections I.G-H, this Section I.J explains an embodiment of the FSTP's Central System (subsequently for short also only “FSTP”) implementing the FSTP TT.p, in particular its practical and epistemological functionalities it provides to the FSTP user by its technical architecture and its modules, as well as which kinds of problems these functionalities resolve for him in a PTR analysis, which includes showing,
Speaking quite generally, resolving the FSTP users' problems in his PTR analysis and using its results in real-time answering questions related to these problems—e.g. in a court hearing or an examiner interview or a meeting of the TT.p's inventor(s) or attacker(s) with his(their) patent attorney(s) or with potential clients interested in licensing/buying a TT.p conforming product or a public discussion about the TT.p or . . . —may require repeatedly
While such a “profile of user needs” would today be considered as futuristic for most complex expert systems, here the formal descriptions of the properties of the PTR's TTs (see Section I.A) and the finite number of finite contexts to be taken into account in any FSTP analysis limit the number of reasonable queries about a PTR to be finite—though these finite sets of reasonable queries may be different for different (groups of) users. I.e., the FSTP Expert System's applicability is restricted to such limitations—which may not be acceptable in analyzing more general endeavors—which guarantee automatically finding, by exhaustive searches, the solution to the finite problem established by a user's query about this finite state automaton established by the FSTP Expert System when analyzing a PTR. Thereby the FSTP user is assumed to be of judicial qualification/back-ground/focus/interest only and his queries to be of legal nature in general, but also technical as far as relevant properties of the PTR's TTs are analyzed—in any way limited to a finite set agreed on between the FSTP and its user (being expandable as specified above).
The subsequent examples of functions—provided by the FSTP to its user for meeting its needs—would be executed on his current WS via its Management+Accounting System. All these and subsequent elaborations refer to preferred embodiments and thus imply no limitations of the scopes of this patent application's claims:
Performing these operations by the FSTP requires its specific use of the techniques of existing and commonly known information presentation systems, database systems, communication systems, firewall systems, logging/monitoring/tracing/tracking/accounting/ . . . systems (=“SYSLOGs”), document indexing/marking-up/annotating systems, as well as of other advanced/research based such systems, being part of pertinent skill.
The big box of
These interactions between the Central System and the Customer Terminals using it resp. the External Databases used by it take place via the interfaces 1b.7-10 by means of the just identified physical information presentations in the Central System's temporary storages 1b.4-6.
b shows schematically also the internal functional structure and its main interfaces (depicted by arrows) of the Central System 1b.20: In addition to its Presentation System 1b.21—performing the just described transformations between the physical information presentations used by FSTP internally and by its various users and external data bases—the “working set, WS” Management+Accounting Systems 1b.22 of a PTR analysis individual WS in a Central System. These systems include managing this WS's access rights to the ontologies usable/used in this analysis (as exemplified in
I.e.: The WS consists of the Central System specific local copies of parts of—in this user's PTR-analysis involved—ontologies, whereby this information is augmented/updated by the FSTP's local processing activities for this analysis. This additional information is due to the two knowledge transformation functionalities performed by the FSTP on the WS on its user's request. Examples of parts of such WS-local transformations are: Performing the functionalities of information acquisition/separation (1b.29), of information screenings (1b.23), of various facts transformations (1b.24), of facts identification/documentation/verification (1b.25) and of facts integration/verification (1b.26), as outlined by the above bullet points.
c schematically shows other aspects of an example of the total “use structure” of the FSTP Expert System as a whole and its Central System's access capabilities by/to external systems, both via the Internet, in any PTR analysis. The FSTP users use the FSTP Expert System by FSTP's Customer Terminals 1c.1-5 (being some potentially augmented www browser) via an FSTP's www Server 1c.10 (e.g. on the basis of the Apache system), which acts as a first gatekeeper in accesses to the FSTP's Central Systems 1c.11-12 via their Presentation and WS Management Systems. The latter use external (i.e. non-FSTP) databases and/or knowledge base systems, such as those of the EPO, the BGH, the BPatG, JURIS, GRUR, DIN, BSI, AFNOR, . . . in Europe/Germany or of the Supreme Court, the CAFC, the USPTO, ANSI, WestLaw, . . . in the USA—all of them having proprietary information presentation systems/interfaces of their own (not elaborated on, here).
While the descriptions of
d exemplifies, by double headed arrows, possible control flows in processing in a WS some documented information (subsequently just “document”) by its functional modules and its RDB and IADB. This document—e.g. in PDF, doc, txt, xml, html, tiff or some other presentation—is input by the user via the GUI either directly by him or indirectly fetched by the FSTP on a WS user's request/command from an External Database. If this document presentation doesn't already consist of machine-readable characters as needed by advanced text analysis systems, e.g. if it is in a bitmap-based presentation, the FSTP might carry out optical character recognition (OCR) or something similar on it to generate this machine-processable presentation. Next, the document might be indexed by using e.g. the Apache Lucene or some other indexing tool, for performing e.g. full-text keyword identification/search and thesaurus generation. Next the FSTP might carry out some probabilistic text analysis, potentially being natural language syntax supported and/or potentially supported by a part-of-speech tagging (and analysis) POST(A) system, in order to facilitate the identification of key terms and related annotations—as far as not identified by the WS user—and semantical interrelations between these terms within the document. Next the knowledge about such keywords and interrelations within the document as such (i.e. its original and/or already FSTP-transformed presentation)—their totality in the WS establishing its “raw data base, RDB”—and their interrelations with other information in the WS are stored in the WS's “internal access data base, IADB”: The IADB provides the technical structure for highly organized short-cuts, in a PTR-analysis, in accessing all facts of all kinds, as well as all disclosures justifying them, as well as all steps of transforming all disclosures into formal fundamental facts, as well as all steps of transforming formal facts into other formal facts, as well as all steps of documenting/elaborating/verifying/consistency-checking/annotating/linking/displaying/ . . . such facts, as well as accessing all facts of all kinds in backward-tracking any such transformation and managing them just as these forward transformations (as disclosed more generally above).
The RDB and the IADB may be seen as separately stored (items of) information or as being stored over-lapping each other. Anyway, all these items of information are instantly deliverable to the WS-user at his request.
Finally it should be noted that in FIG. 1.d the
e provides a survey about the FSTP's SW functional architecture by showing the use hierarchy between the 1. and the 2. center of knowledge transformation. It thus discloses the fundamental architectural arrangement of the FSTP's patent/venture specific technical computer interfaces and their functional modules in the FSTP Expert System. Using these functional modules and their computer interfaces enables it—during analyzing a PTR and later on while using the result of this analysis under real-time conditions, both under its user's control—by
This Section outlines the FSTP Expert Systems potential of dramatically simplifying any patent authority's process of (re)examining patents and/or their applications.
Due to the above said, applications for patents for business and similar inventions—i.e. for patents dealing with intangible matter, which also holds for most patents on advanced technologies, as most of them will be model-based—will soon dramatically outnumber applications for MoT patents. This will change the job profile for any patent law pro: Then a sophisticated test becomes indispensable, which delivers for an invention a (non)obviousness indication of absolute trustworthiness. At the time being, only the FSTP test has this quality (see Sections I.A-B).
For a patent authority's process of (re)examining patents, this test (using the FSTP terms/notions):
A PTO's determination of the (non)novelty and/or (non)obviousness of a TT.p thus would
This change of the mode of operation of a patent authority would be nothing else but making it operate the same way as a building supervisory authority: This authority would not even think of determining on its own, whether a building is solidly constructed over its ground—but a priori leave providing this proof (that this construction is solid) to the future building's owner. I.e.: The building supervisory authority would just check and confirm his proof or not, i.e. grant the right to establish/maintain this building or refuse it.
The aforesaid may be summarized as follows. Until now it was impossible to submit to a PTO, together with an application for patenting a TT.p, a proof of the creative height of this TT.p over prior art, which could easily be rerun and completely understood by its examiner. The FSTP Expert System terminates this unfortunate situation. It enables an inventor to achieve this proof for his TT.p on his own, prior to submitting to the PTO: It does so by supporting the inventor to generate this proof by means .) of its FSTP analysis (requiring several internal semi-automatic checks for the correctness of its reasoning), and :) of its real-time query reply system. This proof then may be delivered to the PTO on a USB stick, executed on any PC, and thus checked and verified/rejected by the examiner, as easily as only imaginable. This check by the examiner only needs to verify the correctness of the inventor's transformation of his patent's disclosures into their presentation needed by the FSTP.
As to business inventions—just as to any model-based, i.e. any future technologies based invention—this reversal of proof of PTOs is without alternative. Due to the explosion of very sophisticated knowledge, on which these inventions leverage, it is absolutely unthinkable that the PTOs' human resources will be able to keep up with it, quantitatively as well as qualitatively. Their backlogs during the last 20 years prove it.
A final remark: For automatically translating patents—as just envisioned by the EU and Google—it is absolutely unavoidable to present them in the “FSTP analysis way”. Other fundamental changes in the patent business implied by this “way of FSTP thinking” are elaborated on in Section I.M.
The preceding sections nowhere were focused on the FSTP analysis of MoT PTRs—though MoT PTRs are the by far simplest formally precisely definable problems potentially being of enormous economical interest. Nevertheless, now the potentials of applying the FSTP analysis to the more complex business/green/health/copyright/trademark areas of innovation—for short: model-based instead of tangible matter based and consensus-requiring subject areas—of patent law are highlighted.
On top of treasures of the soil and of treasures of the industry, increasingly treasures of the knowledge fuel today's economies, in particular their wealth creation engines: their knowledge-based enterprises. Actually, many formerly industrial enterprises are undergoing a metamorphosis and become more and more knowledge-based enterprises, in car industry just as in chemistry just as in all other industries—their IPRs becoming one of their most significant tangibles, in particular their patent rights.
The consequence is an explosion of the number and of the complexity of patenting activities. The impact on PTOs: Unacceptable long periods of examination—on the average 5 years, by now.
While some claim this explosion were an indication of admitting too easily and quite generally patents as potential resources for wealth creation, others claim this explosion were caused by allowing the hopes behind business patents to fuel this gold rush. The latter concurs with the old and widespread feeling in Europe that running a business always is a triviality (as was always claimed by the yellow press, worldwide, and today is conveyed by many daily soaps). Therefore in Europe the opinion is prevailing, that only matters of “technicity” located beyond such awkwardness, should be patented—thus banning this trend towards alleged triviality and hence mass. In the US recently a somewhat similar attempt was launched by the CAFC: By postulating that inventions were eligible for patenting only if they would pass a “machine” or “transformation” test (MoT test).
But, nobody is able to define what “technicity” means or a “machine” or a “transformation” is. Also, no research is known promising that excluding from patenting “nontechnical” resp. “non-MoT” inventions would increase the quality level and/or the number of the remaining patent applications—already these completely swamp the EPO and USPTO. In the US this superstition has been terminated by the Supreme Court's Bilski decision, while in the EU the refusal of business patents is robustly alive and only occasionally questioned. All that happened there, along this line, was EPO's 2008/03 decision on software inventions, which confirms its earlier position as to that question: They are eligible for patentability, as they always are technicity-related (which the final part of the decision seems to try to put into jeopardy, again, see Section I.A.6)—but do not comprise business inventions.
Thus the US made it clear that its patent law should unfold its innovations stimulating potentials in all areas of the US economy, while in the EU the refusal of business patents prevails—without recognizing, what the impact on its economy may be of abstaining from using this stimulus for boosting its business's regenerations.
One kind of reasons for this resistance to patenting business inventions is that they deal with intangible matter, thus making their visualizations weak, if not empty. The particular problem with this feeling: It is intolerable, as it applies not only to business/green/health inventions, but also to technical inventions no longer dealing with tangible matter but with models of something (telecommunications, brain surgery, . . . , all advanced technologies). I.e.: These problems have already existed for a very long time, such as with coding techniques, but by and by e.g. coding and its models became so familiar that our intuition deals with them as if they were tangible matters.
As there are no long-time established business models, descriptions of business inventions cannot be based on them and thus add more uncertainties by remaining diffuse and even obscuring them—see the Bilski patent and in particular its defence. The reason being: Neither examiners nor lawyers nor judges have a really clear understanding of the (non)obviousness problem even with MoT technologies, but with business inventions they don't understand at all, what the substance is of the problem they are struggling with—not knowing that recognizing and describing it in an unquestionable manner is an epistemological challenge, which to clearly master on their own (without a commonly understood model for their thinking, e.g. a tangible embodiment of the invention at issue) they simply are not equipped for—as this requires very fundamental research (see Sections I.D-G).
As mentioned above, “obviousness” is the most crucial issue along this way of correctly qualifying inventions: In hindsight namely any innovation on an intangible subject matter inevitably is trivial, i.e. obvious. This is a matter of fact. While this problem often holds already for MoT inventions, it is a nightmare when dealing with a business invention, as likely similar businesses have been around before applying for patenting this one.
Eliminating this nightmare requires solving evergreen problems of patent law, i.e. also with MoT matter:
Patent language schism, namely
Any natural language's big problem: Lack of technical preciseness—to be overcome only by formalization.
None of the research efforts dealing with patenting is aware of these potentials of confusion, as just shown, due to quite different and ubiquitous language and preciseness problems—their main deficiencies being:
no epistemological basis of an obviousness problem solving technique, and
how to leverage on precedents and on needs of litigations in their “plainly syntax driven” thinking.
I.e., though being scientifically outstanding, they yet are short of thinking in terms of practical help.
Also, the important moves in patent legislation during the last weeks, in the US senate on Mar. 8, 2011 and in the EU on Mar. 9, 2011, though showing some convergence in the WTO's/WIPO's Substantial Patent Law Treaty (SPLT) environment, ignore these quite fundamental problems of patent-laws on both sides of the Atlantic, which require resolution for overcoming this business—and all model-based—patents' dilemma.
Thus, the best source of valuable suggestions for how to fix these key problems, which underlie the controversy about business inventions being patentable or not (only seemingly between the US and the EU, but in truth existing in both camps), are the Highest Courts' precedents and their implied suggestions, such as the KSR decision in the US (Justice Kennedy here is hinting at creativity to be the key issue) or the Spannschrauben (1996)/Gegenstandsträger(2008) decision in Germany (stating correctly that a meaningful patent/claim interpretation is possible only on the basis of absolutely clear terms/notions/technique-teachings, which is common knowledge in the IT sciences since the 70s, at the latest, and there called “lexical/syntactical/semantical/pragmatical” basis). These are the Highest Courts' decisive hints, that and how creativity/ingenuity may and must be made identifiable and measurable—thus asking for a technique also providing to business inventions a firm standing. The hope is that later this year within the G20 an activity may be launched, also taking up these hints.
Following them, the FSTP test (FSTP=Facts Screening and Transforming Processor) overcomes all these stumbling blocks on the way to establishing an unquestionable fact analysis also of a business invention—which applies also to all green/health/ . . . inventions, not just MoT inventions. It determines for an innovation—independently of its subject area—what its “creative height” is over its prior art at the time of its invention. Thereby the creative height of an innovation alias invention is defined to be the minimal number of independent ideas to be invested into creating it when starting from prior art, i.e. from any combination of pieces of prior art.
The FSTP method thus enables an indisputable determination of an invention's minimal creative height—measured in independent thoughts—in whatsoever subject area, e.g. in a business or green or health subject area.
I.e.: If a business invention is approved to be of a significant creative height, Qpmgp, over its prior art, this establishes for it the same strong indication of its being nonobvious, as if a MoT invention were approved of this Qpmgp value. In both cases this value is the number of creative ideas invested into finding the resp. invention. Then still maintaining, this business invention is not patentable as being trivial, is nothing else but a discrimination of the group of business inventors (unless they are violating law)—and hence unconstitutional in many countries.
Other considerations as to these more recently patents are equally important and briefly sketched next.
Setting a “technical” business/green/health/copyright/trademark/political problem to be solved means providing the sufficiently precise description (in natural language) of its business/green/health/copyright/trademark/political properties and of the TT.p sought for resolving it, such as to allow their transformation into formal attributes (see above). A TT.p of this kind—also being enabling for the person of pertinent ordinary skill—makes it a business/green/health/copy-right/trademark/political TT.p, and a product being an embodiment/implementation of this TT.p is a business/green/health/copyright/trademark/political technical product. And alleged TT.i's from a pertinent business/green/health/copy-right/trademark/political area are subject to the same limitation quoted above.
The purpose of FSTP analyzing a TT.p from one of these areas is not directed towards directly indicating the patentability of this TT.p, but towards trust creation into this TT.p, first of all. It is commonly known that selling highly innovative products of any kind may encounter massive reservations, frequently being fully justified—but also, because of their high degree of innovation they embody, which inevitably is accompanied by a certain feeling of foreignness of such products, which may significantly defer their broad acceptance by their markets. For avoiding such negative impacts on marketing highly innovative products—as they are well known to occur in particular with green/health/copy-right/trademark/political products—or at least for minimizing such impacts, it may be worthwhile to accelerate the trust creation in them that they are actually superior to the pertinent prior art products, namely as becomes possible by using the enlightenment idea of the FSTP Expert System (as outlined below).
Two simple examples of such “patent problem like” green/health/copyright/trademark/political problems show that a conventional smart marketing campaign's “terms dropping” alone cannot establish such trust, as such terms must immediately be linked to resp. supported by superior properties of the marketed product alias TT.p, as compared to the properties of the prior art products (alias TT.i's).
Let “EVERON” be the name of a new health product, a new brand of MS antidotes, claimed to be superior as to substantially reduce the well known MS symptoms, as compared to prior anti MS drugs, though avoiding most of their side-effects without generating another one. As just explained, today's usual isolated terms dropping (be they medically decent or just wishful) on EVERON's packaging are of little help to its consumer. Of much more importance would be an instantly and ubiquitously available access to the FSTP Expert System over the Internet to EVERON's FSTP analysis, proving EVERON's creative height—regarding composite impacts on MS symptoms, their reasons, and their interactions—over prior art MS drugs.
It is obvious: There are many such problems, in the green/health/copyright/trademark/political area.
A final remark on the FSTP's capability of “tracking back to the origins of claimed properties and their implications”: Providing this capability to querying users—in particular to potential buyers of such green/health/copyright/trademark/consensus-making products—will be appreciated not only by the latter, but also by the originators of these properties and hence rewarded by them.
Summarizing this: Business/Green/Health/Copyright/Trademark/Political innovations/inventions/TT.p's may be transformed by a publicly (not necessarily for free) accessible FSTP Expert System into this TT.p's promotion/marketing tool above any doubt by the FSTP Expert System's capability of a) identifying for TT.p b) all c) undeniable/unquestionable facts distinguishing it from all kinds of green/health/copyright/trademark/consensus-making prior art properties/facts by d) meticulously describing this TT.p's superiority of “pushing back by this TT.p's business/green/health/copy-right/trademark/consensus-making technology (i.e. by the TT.p's objective creative height Qpmgp≧1 over prior art) undesired frontiers so far inevitably encountered by society”.
This kind of promotion for such ventures is obviously impossible without the FSTP Expert System. Thereby this promotional use of the FSTP Expert System is
This Section I.M elaborates on the question, in which cases even the judicial solution of a PTR problem in an NPS may be determined how far automatically by the FSTP, not just the facts indicating this solution. To achieve at least some such progress, the sections a.-c. of the pmgp (see Section I.B.2)—in total denoted as “national normative judicial interpretation of facts, NNI”, although a. and c. are international—must be modeled formally for enabling the FSTP to automatically apply, to facts determined in one step of its PTR's FSTP analysis under this NNI, this NNI also for evaluating these facts up to its “final/nonaudited fact” (see below, whereby in one NPS any NNI application is based on the same plcs-option14) of anticipation/disclosure).
Up-front the below general remarks/reminders i)-v) sketch the principles to be applied for achieving such progress, provide some broad context for it, and hence make aware the “global frame” to be kept in mind when interpreting the below claims of this patent application concerning the FSTP Expert System:
a) definitively not this PTR's “plcslfree-fact”, as it is by definition NNI independent14),
b) potentially this PTR's “NNI-fact”—then it differs from this PTR's plcs/free-fact14)—and
c) most likely its “final/nonaudited fact”, as this part of NNI (i.e. evaluating its NNI fact) is politics pure.
The dependency of a PTR's FSTP analysis on a)-c) will be briefly discussed in Sections I.M.1-3.
To summarize: If with formalizing an NNI for a PTR all such missing links are eliminated, the FSTP can decide fully autonomously (i.e.: without any user interaction), whether a PTR's TT.p would be patentable over its RS: It then would be able to figure out this legal decision by itself and would insofar establish, in this NPS, legal certainty “by mathematical proof”—being subject to final legal approval by a court. I.e.: The FSTP analyzer then need no longer restrict itself to identifying, determining, and elaborating on only the plcs-/pmgp-facts indicating, for this PTR, its TT.p's (non)obviousness over its RS (and leave to a court's judicial decision the evaluation of these technical formal secondary plcs- and pmgp-fact)—but then the FSTP automaton would also determine, for this PTR problem, the today's precedents to be applied to it and how. It would formally derive, from this PTR's technical formal secondary NNI-fact, by means of the further on to be applied NNI in interpreting it, also the prefinal (as legally not yet audited by a court) fact.
I.M.1—No NNI Impact on a PTR's plcs/free-Fact This is trivially true by definition14). But: Questions may arise about the meanings of the PTR's technical fundamental facts when performing their skill-based translation into formal D/B-attributes/concepts (not about the PTR's technical primary or secondary formal fact(s) based on this translation). I.e.: Disputes may arise out of alleged ambiguities of the documents' disclosures by natural language wordings and/or their figures, as well as out of their precise modeling by means of formal D/B-attributes/-concepts—whereby both steps are to be guided by pertinent skill, see Sections I.A-E.
Such controversies are outside of the scope of this patent application, i.e. must be decided by courts (based on their own or an Expert's technical knowledge, see Section I.M.4). I.e.: For a PTR there may be different plcs/free-facts due to different courts' decisions on these skill-based translations—but not due to different NNI's.
I.M.2—Potential NNI Impact on a PTR's plcs/free-fact There are—for a PTR's FSTP analysis—3 different ways of how NNI may affect this PTR's plcs/free-fact: by imposing on its ACs i)“plcs-restrictions14)”, ii) “law restrictions”, and/or iii) “skill restrictions”. In Section I.B.2. the kinds i) and ii) of NNI restrictions are denoted as type “b. pmgp” restrictions, and the kind iii) as being of type “c. pmgp”. While determining an impact of type i) is a priori an evidently finite exercise14), determining an impact of type ii) and/or iii) may be made a finite exercise14) by restricting it to some maximal complexity. Thus, starting from I.M.1, the FSTP can always determine the PTR's NNI-fact14)—at least up to some maximally tolerated “NNI complexity14)”, as indicated by IBM's WATSON project.
And perhaps even more interesting is that for many PTR's (leaving aside the potential and always trivial plcs-restrictions i)) NNI may not have any impact at all on its plcs-fact—whereby also this may often be automatically determined by the FSTP (as explained below)—otherwise this must be figured out by the FSTP user “by hand/head” and input to the FSTP Analyzer (together with an appropriate documentation/justification).
An example of NNI independency of a PTR's TT.p is provided by the '884 patent, i.e. by its '884 TT.p over the '884-PTR's prior art RS. Subsequently the author is justifying this independency first “by hand/head” and then explains how the FSTP Analyzer would determine it automatically.
At the '884 priority date, the '884 TT.p namely has been absolutely unique—as compared to its prior art, and in particular as compared to the absolutely novel '884 problem setting of providing a substantially real-time Internet data transfer suitable for Internet telephony, both as disclosed in the '884 specification underlying its claims1),2)—e.g. with its (see Section II.A.1.2)
The precise modeling of these 6 (and some further) new features of the '884 TT.p (see Section II.A.2)
This '884 specific insight—as to the potential impact of NNI on a PTR's plcs-fact—allows a straightforward generalization: For a totally new TT.p its plcs-fact equals its pmgp-fact, otherwise the invention were not totally new, as then NNI anticipated it already partially. And the invented TT.p is totally new, if its alleged prior art does not at least KNOW ALL its concepts—which severalfold applies for both, the '884-TT.p10) and this FSTP-TT.p.
I.M.3—Potential NNI Impact on a PTR's Final/Nonaudited-Fact Just as with Section I.M.2, the final/nonaudited-fact need not be affected by NNI, i.e. need not further reduce the value determined there for QNNI. Thus, this problem—of automatically determining this impact—is different from the I.M.2 problem only in that its transformation of the PTR's technical secondary NNI-fact into its binary final/nonaudited-fact is “logically/technically” much simpler than all preceding transformations, but may be pragmatically delicate (see Section I.M.4).
There are three reasons for this delicateness. The simple reason being that cases may occur, in which the NNI-fact is not really conclusive/enforcing. The fundamental reason being that currently there is no universal national normative judicial interpretation, NNI′, of a PTR's NNI-fact, neither in all nations nor—much less—internationally—i.e. there are no broadly coherent rules concerning this particular transformation to be controlled by NNI′. Hence generally applicable NNI′-ontologies may be developed at best NPS- or only court-wise modeling its resp. view on this transformation. And the worst reason is: In any nation its courts might consider an attempt of such a formalization of its view by an NNI′-ontology (e.g. by the FSTP patent technique) as an assault on their independency and thus stimulate their adversarial reaction to accepting/practicing the FSTP technique—notwithstanding that the eventual aim of the science of jurisprudence is the ultimate reduction of courts' occasional vast freedoms as to determining and interpreting clear facts underlying their decisions.
On the long run, the FSTP patent technique aims at exactly this: at replacing or at least reducing in patent jurisdiction—which is to a much higher degree based on easily formalizeable logic and pragmatic insights than any other jurisdiction—the today's almost absolute discretion of courts by unambiguous rules (implied by its logics and pragmatics) of how to derive the facts inherent to any PTR and from them the potential courts' decisions, too.
Applying patent law this way (as presented in Section I.M) to a PTR problem would have a significant impact on the roles of these three groups of legal staff in any NPS: These roles then would consist primarily in legally checking and verifying the input provided to and the output produced by a PTR Analyzer. This input then would resemble a company's accounting documents, and this output then would resemble a company's profit/loss-statement and balance sheet. All three kinds of documentation—inputting all accounting documents, outputting the commented profit/loss-statement and balance sheet—then would have to be legally verified (and potentially complemented) up to some legal accounting standard (e.g. US GAAP or IFRS) by a legally certified auditor, who finally would testify the lawfulness of the company's operations. I.e.: The roles of these three groups of legal staff in any NPS would thus be changed to roles commonly known/accepted in other legal areas.
Two aspects of such formalized decision processes on a PTR problem are finally emphasized.
Concluding this Section I, the FSTP project is briefly highlighted: It is run by the author, out of Berlin, by currently 15 professors and 22 PhD students from 9 nations, which care for the design and implementation of the FSTP Expert System resp. investigate the FSTP method's use under the resp. NPS and its application to the resp. national landmark decisions of the resp. Highest Courts—2 professors and 6 PhD students being from India. One of its objectives is to develop a “patent law technology”, i.e. to upgrade patent law to a new epistemology of its own, quite similar to the sciences of physics and mathematics, but even more fundamental than both of them.
This Section II explains the working of an embodiment of the FSTP described in Section I.J: of this embodiment's 1. center of knowledge transformation—when completing a PTR analysis, here of the '884 claim 2 of the European “884 patent” (EP 0 929 884 B1) over the 16 documents.i3) as RS—as well as of its 2. center of knowledge transformation starting with performing the initial translations of the disclosures of the PTR's documents into fundamental facts of this PTR analysis (see Section I.H). These very first steps of an FSTP Analyzer embodiment start with determining the technical facts—indispensable for an indication of the (non)obviousness of a PTR's TT.p over its RS—in exactly the same way as the classic judicial procedure: On its
An embodiment of the FSTP analyzer thus supports avoiding, in a PTR analysis, the use of unthoughffully determined meanings of a claim's terms when interpreting it by repeatedly checking that these meanings would precisely reflect the TT.p underlying it1) and thus make these meanings contradiction-free alias consistent to the patent specification (see Sections II.A.1.1-2). While this sounds simple for a layman, on the D-level indeed difficulties are often unavoidable due to the intricacies of natural language and hence of disclosures of the PTR's documents using it5) (see also Sections I.A-E). An embodiment of the FSTP analyzer, which is aware of them, would support transforming these terms and the meanings/properties/attributes referring to them from the D-level of information presentation of the technical facts to the above B-level of information presentation of these technical facts—and also formalizing these meanings as far as possible5).
Section II.A describes the working of the embodiment of an FSTP analyzer as a whole. For clarity its document specific facts determinations are set out into Sections II.B and II.C. II.A Description of an Embodiment of the FSTP Analyzer as a Whole—Exemplified by the '884 PTR
As just outlined, Section II.A is split into the Sections II.A.1 and II.A.2, which explain the embodiments of the functionalities—by applying them to the '884 PTR—of the 1st resp. 2nd facts determination stages of the FSTP analyzer as a whole, leaving assessing these facts' plcs- and pmgp-independency to the FSTP user, as shown for the '884 case10) (though both may also be assessed automatically at least up to some limited pmgp complexity14)).
a shows these steps of invocations of functionalities of the 1. center of knowledge transformation in any FSTP analyzer embodiment in any PTR analysis. This embodiment's first steps (on the top in
Sections II.A.1.1-2 of this description of an FSTP Analyzer embodiment make aware—by means of the '884 patent example—that, also for the person of skill in the pertinent art, it is never trivial to grasp, for a PTR, correctly and completely all the relevant properties X).n of its TT.p's elements X (see Section I.A.5), i.e. all the meanings X).n of all the technical terms X used and disclosed ex- and implicitly1),2) in document.p for its TT.p. This is a crucial activity of greatest importance, if these terms are frequently used with quite differing meanings in a broad range of documents—as typically is the case with PTRs from communications technology (see below). Then it is indispensable to read the disclosures of these elements' properties repeatedly and compare them to each other meticulously: There is no other way of finding out, what precise meanings/properties of these terms alias elements X of its TT.p are actually disclosed in the specification of document.p—as compared/opposed to the meanings/properties of their peer elements X.1 of the TT.i's disclosed in the specification of the resp. prior art document.i. Hence the initial determination of these precise relevant properties X).n of the elements X takes place on the D-level of notion presentation and is based on the skilled person's understanding of these terms/notions/disclosures (see Sections I.A-E). I.e.: The B-level of notion presentation, with its even sharper attributes and concepts (see Sections I.D-E) is not needed for this initial determination, but would frequently be needed in a (sometimes necessary) refinement of it. Taking the example of the '884-PTR: Its TT.p is based—on both levels of notion presentation—on the 4 technical terms “switch”, “network”, “change over”, and “signal”, which therefore are chosen as TT.p's “elements X” with properties determined precisely in Section II.B, while the four peer terms/elements X.1 in any document.i/TT.i have significantly different meanings alias properties, as shown in detail in Section II.C.
Section II.A.1.3 elaborates on the relation between these 4 X's D-attributes X).n (determined in Section I.B) and X.i).n—the result being put together as the '884-D-ANC matrix of yet unclear plcs-/pmgp-dependencies.
Section II.A.1.4 shows refining the D- to its B-ANC matrix and the latter's plcs-/pmgp-independencies10).
The above 16 document i's are associating (sometimes totally) different from each other meanings to their resp. peer 4 X.i. The below '884-D/B-ANC matrices and Sections II.B-C will show that virtually no X.i).n comes close to its peer X).n of TT.p—nevertheless grasping precisely the many relevant properties of the '884-TT.p is facilitated by comparing them to the peer properties of that many TT.i's, even if they are quite different.
As restated above, grasping the relevant properties of a PTR's TT.p and its X's X).n's is a nontrivial activity to be performed by the skilled person in the art by carefully considering all the documents' disclosures concerning the TT.p and the TT.i's (see Sections I.A-E). The FSTP Analyzer would eventually help here by advanced means of automatic textual analysis of all documents (i.e. by indexing them, marking them up accordingly and/or hinting at some possible semantics for the constructs marked-up)—but the final responsibility for this step always remains with the FSTP user.
Frequently, it is not possible to precisely and/or completely terminate this first analytical activity concerning a patent's TT.p before having completed the subsequent application of the FSTP to its PTR, due to two reasons:
In total: Correctly grasping the TT.p's technical philosophy normally requires a highly iterative process—which to warrant is no problem for this embodiment of the '884-TT.p underlying the below independent claims. It would be started with a TT.p, which is technically incomplete or even incorrect—but which then would be elaborated on and inevitably fixed, as the iterations eventually arrive at double-checking and maximizing the values of Qplcs and Qpmgp, and to this end first verifying the plcs- and pmgp-independencies of its plcs-/pmgp-facts. I.e.: The FSTP technique of precisely grasping the PTR's TT.p trusts in the “learning by doing” philosophy—and there is no alternative for performing these repeated steps prolongating the initial phase of a PTR's FSTP analysis in order to get it launched correctly, as implemented by the TT.p's embodiment discussed here.
Going beyond the above discussion of the embodiment of the '884 TT.p, this section demonstrates the absolute need—also for a person skilled in the art (see Section I.D)—not to instantly jump at an alleged technique teaching of a patent at the first feeling of having grasped its working as it may arise from reading solely its claim's wording: Proceeding in this easy way already got two courts of very high reputation into the delicate situation of deciding in the '884 case against their earlier precedents, in Germany the Xth Panel of the Bundesgerichtshof3), BGH, and in the US the District Court of Delaware3) (both decisions currently being under review resp. on stay).
For a “claim's wording based TT.p” to be legal in the EU, it must additionally be confirmed for it that it does
i) resolve the problem put by the patent's specification to be solved by its TT.p (implied by EPC Article 69) and
ii) not contradict anywhere this patent's specification (see EPC Article 69),
otherwise this claim's interpretation—and hence this alleged TT.p is illegal and must be disposed of.
Only these confirmations make this alleged TT.p lawfull1),2)—and this excludes changing/ignoring this problem and/or some disclosure making this TT.p solve it.
The absolute need of this measure of precaution in determining a patent's TT.p is subsequently proven by means of the '884 demonstration: It clearly exposes the really dramatic discrepancy between
To begin with showing this dramatic discrepancy: The English wording of claims 1 and 2 of the '884 patent in cols. 20-21 contains the 4 elements/terms “switch”, “packet-switching network”, “change”, and “signal”, whereby their meanings are limited at least to:“ . . . transmitting data from a first switch to a second switch . . . ”, “ . . . packet-switching transmission of the data packets over the packet-switching network . . . ”, “ . . . checking whether there is a control signal for transfer to a line-switching connection to the second switch, whereby this signal is emitted by the user of an end device or a network management . . . ”, “ . . . changing to a line-switching data transmission . . . ”.
From these '884 claim limitations follows that the alleged '884 TT.p is a data transfer6) procedure between two switches over any pair of a packet and a line switching network18) (“procedure” often omitted for brevity). In addition, the '884 specification clearly states the “884 problem” to be resolved by the '884 TT.p: It namely has to be “ . . . a data transfer substantially in real time . . . particularly important for Internet telephony.” (col. 3:59-62), as confirmed by the '884 claim 8 and additionally by e.g. cols. 2:7-14, 3:13-14, 3:21-25, 4:1-2, 7:24-25, 8:5-9.
The skilled person instantly recognizes that the few limitations of the '884 claim-1 wording doesn't guarantee the real time7) quality of a data transfer limited only by them: It namely allows “non real time” data transfers, as the claim's wording nowhere enforces its signal being triggered, although e.g. the packet-switching network is jammed totally or one of the two switches detects it became unable of using the Internet8). Hence, such an “only '884 claim limitations enforced/enforcing” alleged '884 TT.p fails to meet the legal requirement to resolve the clearly stated '884 problem as just quoted from the '884 specification14), printed in bold.
This “only '884 claim limitations enforced/enforcing” alleged '884 TT.p also violates—due to the same reason—two further '884 disclosures describing in technical detail, how the '884 TRANSFER has to work, namely:
While this “only '884 claim limitations enforced/enforcing” alleged '884 TT.p does not work as required by all these quotations—as explained by the preceding paragraphs—both requirements of the EPC Article 69 are met by the legal1) '884 data transfer/TRANSFER (it resolves the '884 problem and works as specified), as it
I.e.: The above limitations (a)-(c)—additional to the limitations of solely the '884 claim-1 wording—are mandatory for the '884 TT.p to be lawful, as to the EPC1),2). Ignoring one of them is unlawful14).
That this lawful TT.p actually is an innovation, compared to the then prior art (being represented by the “only '884 claim limitations enforced/enforcing” and hence unlawful/alleged '884 TT.p)—technically both TTs are dramatically different from each other, anyway—is best explained by an analogy: The lawful '884 TT.p is related to the (unlawful) prior art data alleged TT.p exactly just as an airbag is related to a life vest. The lawful '884 TT.p proactively performs the above steps i)-ii) just as an air bag proactively generates automatically, at the latest 0.5 sec after having detected the risk of a crash, by itself the go-off-signal for inflation—i.e. even if afterwards no crash occurs—while the “only '884 claim limitations based”/unlawful alleged '884 TT.p, just as a life vest, does not automatically generate by itself the go-off-signal for inflation/change-over, but its resp. user must generate it (at his discretion and as considered reasonable by him/her), never at the risk it were not necessary, i.e. only at or even after the emergency case has actually occurred.
Wrapping up Sections II.A.1.1-2: Grasping and presenting correctly and completely all the properties of the TT.p in its PTR analysis—regardless whether they are presented in natural language or formalized (see the final part of Section I.C)—may be a big problem not only in this PTR's FSTP analysis but in any kind of lawful analysis of this PTR, i.e. also in its usual/classical analysis. While it would be a big misunderstanding to assume that the FSTP analysis of the PTR could guarantee to avoid presenting its TT.p incorrectly and/or incompletely, the FSTP yet substantially helps the user to actually avoid any misrepresentation of TT.p: The FSTP method namely forces him/her into that many double-checks of the relevance and completeness of the properties of the TT.p—during the course of the many initial iterations normally being inevitable (see the last paragraphs of Section II.A.1.1), but in particular when developing the redundant B-level presentation of the PTR problem14), introduced for enabling such double checking (among others)—that a non-detected/“residual” misrepresentation of one of these properties is extremely unlikely (provided orderly work is done).
Starting from the so provided technical fundamental formal/informal facts (see the preceding paragraph) the FSTP automatically resp. its user may determine this PTR's technical formal primary fact, i.e. its D-ANC matrix.
E.g., as shown in Section II.A.1.2, the wording of the '884 independent claims use 4—in communications technology very frequently used—key terms/elements, A≦X≦D. Namely: “switch” (X=A), “networks” (X=B), “change” (X=C), and “control signal” (X=D). The precise properties of these 4 '884 elements/terms, as disclosed by the '884 patent—and as understood by the skilled person in the light of prior art (as to their relevance, see Section I.A.5)—are described by 15 informal D-attributes X).n defined in Section II.B, A5X5D, n=1, 2, 3, . . . .
For providing an initial and quick overview of these meanings of these 15 technical fundamental facts alias '884 D-attributes X).n, they are outlined very vaguely/incompletely as follows:
D-A).1, as “Data transfer (DT) always between 2 '884-switches and change at '884 signal” switch attribute,
D-A).2, as “At potential fault/loss of real time DT quality” switch attribute,
D-A).3, as “Change only of this communications connection and also during call set-up” switch attribute,
D-A).4, as “Direct telephone connection possibility” switch attribute,
D-A).5, as “Anytime start of the call DT by call set-up via packet switching network (PSN)” switch attribute,
D-A).6, as “Permanent/Different accesses to PSN and line switching network (LSN)” switch attribute,
D-B).1, as “Comprises any pair of accessible LSN and PSN” networks attribute18),
D-C).1, as “PSN-independent LSN-connection establishment is possible” change attribute,
D-C).2, as “Retransmission-free user data PSN transfer is possible” change attribute,
D-C).3, as “Delay time≦0.5 seconds is possible” change attribute,
D-C).4, as “No initial consensus for PSN DT required” change attribute,
D-C).5, as “No later consensus for change to LSN DT required” change attribute,
D-D).1, as “External origin+2 causes or internal origin+many causes of generation” signal attribute,
D-D).2, as “Trigger of change-over never subject to LSN non-accessibility” signal attribute and
D-D).3, as “Trigger of change-over never subject to any user information or confirmation” signal attribute.
The notions used in these sketches of the precise D-X).n's show that the properties/meaning, which the skilled person associates with the terms A-D contain much more skill based information than the layman associates with them.
Rearranging the informal/formal results of Sections II.B and II.C leads to the D-ANC matrix3):
In the '884 case the attributes X.i).n's of document.i (see Section II.C) need no complete description, as the skilled person in telecommunications can ascertain immediately from the document.i disclosures, which of the D-ANC relations holds for their peer X).n's. Otherwise the X.i).n's may be described completely and formally, just as the X).n's—again: both as understood by the skilled person in the light of prior art (as to their relevance, see Section I.A.5)—in order to enable the FSTP to automatically determine the D-ANC matrix.
This D-ANC matrix shows that of the 15 '884 attributes D-X).n by the 16 prior art documents
only 4 are anted by a document.i, i.e. only for 4 columns there is an i with “D-X.i).n's ants D-X).n's”,
11 D-X).n's are not anted at all9), i.e. for 11 columns and all i's holds “D-X.i).n's not-ants D-X).n's”,
at least 7 D-X).n's are contradicted in each document.i, i.e. for any i at least 7 “D-X.i).n contradict D-X).n”.
Thus, these 3 lines about the '884 technical primary facts on the D-level seem to provide a first indication of the nonobviousness of the '884 TT.p over the prior art (represented by the '884 RS)—but nothing is said so far about the D-concepts' independence. The B-ANC matrix shows that this indication therefore is not yet conclusive.
Finally, a remark is in place on the admissibility of using formal attributes in this context, as practiced by the FSTP technology. Using formal attributes for precisely presenting the PTR's TT.p and its TT.i's, i.e. their terms' meanings—unusual hitherto in patent law contexts, not practising this preciseness in describing the substance of the PTR—is legitimized unrestrictedly by the transitivity law of logic in the form of:
Here, each of the 15 formal '884 attributes B is logically equal to its natural language/graphics '884 disclosures, A, in total being the respective “informal '884 attribute” (see Section II.B). Thus A=B
Let C.i denote A's peer “informal document.i attribute” consisting of the respective natural language/graphics disclosures in document.i. Section II.C then determines the D-ANC relation between the informal attribute c.i and the formal attribute B. Therefore the same D-ANC relation also holds—due to the above transitivity law—between the natural language/graphics document.i disclosure C.i and the natural language/graphics '884 disclosure A.
In other words: The formal attributes B are eliminable from the D-ANC relation between the aforementioned peer natural language/graphics disclosures in the document.i, 1≦i≦16 and the '884 patent—i.e. do not affect the D-ANC relation between them. Complementing the D-ANC matrix such that it also showed the underlying original natural language/graphics disclosures of the D-X).n's and the D-X.i).n's would require only to make it 3-dimensional by adding a tower to each of its entries, i.e. 15 such towers to each line, i.e. by adding to each of the 15 formal '884 attributes D-X).n its respective tower of its natural language/graphics '884 disclosure, and applying the same to each of the formal 15 D-X.i).n entries of each of the 16 document.i.
The 15 '884-D-attributes B (and the concepts they refer to) do not only create a more precise understanding of the '884 TT.p (than was possible without them) by compactifying and “pinning down to technical details” the mass of information of its natural language/graphics TT.i disclosures, but they also establish a uniform reference system for all of them: As to the determination of the aforementioned D-ANC relation between the '884 patent's natural language/graphics disclosures and the 16 documents.i, even more important for is B-attributes.
On the D-level it may be hard to figure out, whether a PTR's D-ANC matrix is complete and plcs-/pmgp-independent or not (see Sections I.A.5 and I.B.1). Therefore its FSTP analysis requires that it is presented on a B-level, thus increasing not only the likelihood of the completeness of the attributes/properties identified for it but also the capability to assessing the plcs- and pmgp-independency of the B-ANC matrix14).
In other words: Although 1-cMs of prior art D-attributes/concepts resp. the inventive thoughts10) underlying them exist already on the D-level, there these thoughts' plcs-/pmgp-independencies—as required by precedents—may be hard to prove, as D-attributes often share D-concepts. The B-level is supposed to remove this problem.
Such a set of plcs-/pmgp-independent and even binary B-attributes/concepts is derivable straightforward for the '884-PTR10)—in other cases this may be more difficult14). Note that this set of B-attributes/concepts is often not unique, i.e. there may be alternative B-attributes/concepts14).
The conceptualization of the '884 D-ANC matrix replaces the 15 D-X).n's by conjunctions of 28 B-X).n's. Thereby 4 D-X).n's—A).1, A).2, D).2 and D).3 needing a “conceptual decomposition”—are replaced by conjunctions of 17 B-X).n's. E.g.: The attribute D).2 (see Section II.B) is replaced by the conjunction of two B-level-attributes, i.e. “D).2=Y iff C.23=Y and C.24=Y”. These 4 D-X).n's are decomposed into several B-C.k's, as highlighted in the B-ANC matrix by bold horizontal lines. The other 11 D-X).n's are replaced by the resp. single 11 B-attributes/concepts B-X).12-22.
This B-ANC matrix shows that of the 28 '884 attributes B-X).k by the 16 prior art documents
only 19 are anted by a document.i, i.e. in only 19 columns holds for some i “B-X.i).k ants B-X).k”,
9 B-X).k's are not anted at all, i.e. for k=1, 7, 13, 14, 18, 19, 22, 23, 25 and all i “B-X.i).k not-ants B-X).k”,
each document.i contradicts at least 9 B-X).k's, i.e. for any i at least 9 “B-X.i).k contradicts B-X).k”.
This demonstrates—as explained in detail by the 3 square points at the end of Section II.A.2—the increased significance of the FSTP analysis if performed by means of the B-ANC matrix, as compared to its performance by means of the D-ANC matrix, which sometimes even is questionable.
The embodiment of the FSTP analyzer's 2nd facts determination stage is demonstrated for the skilled person by explaining its working when it supports deriving from a PTR's D/B-ANC matrices, its technical secondary basic and plcs D/B-fact.
Not all steps of this derivation are relevant for this FSTP patent application. Just as with the transformation of the PTR problem from its D- to its B-level presentation, Section II.A1.4 emphasized already that on the B-level
This fact is determined on the D/B-level by the “Second Basic FSTP Test” in the below boxes. I.e.: The “First Basic FSTP test” is provided here just for completion. Their wordings are slightly adapted to the '884 case.
Both tests mirror the Highest Courts' precedents (see Section I.F). The Second Basic FSTP test shows at a first glance at the '884 D/B-ANC matrix the non-existence of a free 0-AC, not to speak of an element-wise and/or contradiction-free O-AC14). I.e.: The determination of the '884 PTR's technical secondary basic D-/B-facts is trivial.
More precisely, applying the Second Basic FSTP test to the '884 D/B-ANC matrices shows for the '884 technical secondary basic fact: q=∞/∞ for the normal anticipation relation14), as both matrices exclude that any other D-element than B (of the 4 D-elements A-D)—i.e. all its D-attributes resp. B-attribute/concepts—is anticipated by a single D- or B-level 0-AC13). And even with the free anticipation relation (not allowed by any NPS) the q-value of the '884 PTR's technical secondary basic fact of the still is ∞/∞ on both levels14).
For the remainder of Section II.A the D-level is less important, due to its various problems explained above. Also, of the technical secondary B-fact of the '884 PTR only its Qplcs-/Qpmgp-value is derived and discussed—i.e. its semi-automatically determinable set of all shortest Qplcs-/Qpmgp-paths is left aside—which is a lower bound for the number of independent thoughts needed for inventing the '884 TT.p starting from the '884 RS's combinatorial B-hull14),10). The FSTP analyzer thereby determines this number on the B-level by repeatedly applying the ground laying precedents of the German BGH2) concerning the notion of independent thoughts (see Section I.F).
Repeating this application precisely is—due to its mental complexity—practically impossible without the precision and formalization of a PTR problem enforced by the terms/notions of its FSTP analysis. Using a natural language only is insufficient5): Any natural language meets many human requirements but not those of a facts determination problem in a clearly defined but complex legal case15), in particular a PTR problem16)—whereas this mental complexity is easily controlled in its FSTP analysis. It namely transforms the PTR problem into the finite exhaustive search problem of determining the minimal number q of independent 1-cMs for which there is a q-AC14).
In the '884 case the finite set of all ACs, RS+, consists of 164 (i.e. 65 536) quadruples, due to all combinations of elements14).B <A.i, B.j, C.k, D.l> with 1≦i, j, k, l≦16, the attributes of which may be combined in an anticipation combination AC. The 4 quadruple components of any quadruple alias AC consist of 6/1/5/3-resp. 15/1/5/7-tupels of the D/B-attributes underlying the entries of the D/B-ANC matrix.
The FSTP analyzer would determine by a finite exhaustive check of all ACs—which may e.g. be organized column-wise in the D/B-ANC matrix and/or check not all combinations or their quadruples or their attributes and/or check at least one combination or quadruple or attribute partially only and/or apply other efficiency increasing shortcuts when traversing RS+—that
Note, finally, that this example of the working of an FSTP analyzer embodiment explains an important phenomenon: Why an in hindsight allegedly obvious solution of a technical problem originally was nonobvious by any means over prior art. The PTR's secondary technical creativity fact namely shows that inventing this TT.p in truth then had needed recognizing a whole bunch of technical modifications of the then prior art (here: at least 17 independent 1-cMs10)) although these modifications then were totally unappealing, as any single one of them (i.e. of these 17 plcs- and pmgp-independent 1-cMs) seemed to be as such “inconspicuous”, “technically unusual”, “unimportant”, while at the same time also being “in its technical realization pretty complex and expensive”. In the '884 case this conglomerate of uncomfortable negligibilities blocked for years recognizing that their technical fixings are indispensable for meeting the market needs of Internet telephony—i.e. these seemingly marginal negligibilities.
As announced by the beginning of Section II.A, here the 15 D-attributes X).n of the 4 '884 elements of the '884 TT.p (i.e. of the '884 method claim) are determined by identifying their natural language/graphic '884 disclosures (=technical fundamental informal facts), in the specification and in the claims of the '884 patent, and translating them into these more precise “formal” '884 attributes. For reasons of efficiency, subsequently this identification of the natural language/graphic '884 disclosures takes place only per references, their D-concepts are not commented18), and future intermediary stages of any translation of these informal disclosures into these 15 formal '884 attributes are left out as well. Note that already these formal attributes are the results of many iterations in identifying such relevant disclosures, i.e. reprecising them repeatedly.
All subsequent definitions of the 15 '884 D-attributes, being results of these reiterations—including their references to explicit and implicit D-disclosures1)—are presented in a uniform scheme, which comprises recurring sentence fragments and acronyms supposed to mean:
Finally, as to the BGH precedents: The '884 TT.p is to be used for the interpretation of the '884 claims. This implies that for all '884 elements the limitations apply, which are indispensable for achieving the real-time quality of the data transfer for Internet telephony (as disclosed by the '884 specification, see Section II.A.1.2).
Note that prior to having invented the '884 TT.p none of these sophisticated 15 D-attributes was known10). This confirms the insight of Section II.A.2.2 why at the priority date the '884 invention was not obvious at all. As namely these 15 D-attributes of the TT.p were not known then, it also was impossible to do what can be done today by hindsight: namely performing an exhaustive search for the minimal number of 1-cMs of a combination of properties of prior art TT.i's such that this changed combination ants TT.p. Note that even today, this backwards-looking analysis by an exhaustive search for the minimal plcs-height—measured by the number of independent thoughts10) for inventing 1-cMs changing the prior art appropriately—of the '884 TT.p over its then prior art RS must be confirmed by the skill in telecommunications technology, in particular as its terms/notions originally had caused that much confusion that international agreements have been established for them20).
These therefore by skill confirmed '884 D-attributes nevertheless had to be refined into even more PTR problem oriented '884 B-attributes—which again are confirmed by the pertinent skill—such as to assess the independency requirement is met by the above determined D/B-QPIcs thoughts creating the '884 TT.p”).
The following Sections II.C.i determine20) “by hand” (i.e. by the author, not the FSTP analyzer) on the D-level for each of the 16 documents.i and for any of its relevant natural language disclosures—i.e. for this document i's 15 D-X.i).n's being peer to the D-X).n's—whether it not-ants or even contradicts D-X).n (which determines the D-ANC matrix's entries A or N or C). Determining the entries of the B-ANC matrix by hand works the same way, but is even more elaborate, and therefore is omitted here for brevity.
Below these ANC statements are underlined, followed by their brief justifications—unless these are trivial. The abbreviations/acronyms introduced at the beginning of Section II.B apply also below, of which the acronym “see CsoD-X).n” is permanently used.
Farese discloses a dynamic changing of the ISDN “access path”—between a USER TERMINAL 10 (=alleged first switch) via the ISDN SWITCH 35 and the HOST SITE 80 (alleged second switch), FIGS. 4 and 5—between a line-switched B-channel and a packet-switching D-channel connection during a “host session” running over this access path, controlled by instructions of the “host computer” in this session, in order to correspond to the respective “communication needs of the session”, col. 6:61-7:10. Its single network is an ISDN. From the document. 1 disclosures follow the 15 “not-ants”/“contradicts” relations:
II.C.2 YOSHIDA—Document.2/NK14
Yoshida discloses a “system for access to an ISDN from a packet data handling system”, col. 1:11-12—i.e. an “ISDN terminal adapter” (comprising all devices in FIG. 1 between the “LAN NT 16” and the “ISDN NT13”)—wherein the former system achieves that the transfer of data packets from the latter system “to a called party”, as a reaction to a “channel change signal” (caused by the increase of the data packet rate generated by the latter system), changes from using a packet-switching “virtual circuit” to a line-switched “virtual circuit” of an ISDN, without thereby interrupting the transfer of data packets, col. 2:9-14, ABSTRACT. Its sole network: an ISDN.
From the document.2 disclosures follow the 15 “not-ants”/“contradicts” relations:
The following 14 “not-ants”/“contradicts” relations result from document.3 disclosures:
Document.4 is content wise identical to document.12/NK37, analyzed in Section 11.0.7.
Matuskawa discloses an “ISDN terminal adapter 1” (e.g. FIG. 1 or claim 1), which automatically switches a “data communication” of the “transmitting DTE 2” from packet-switching to line-switching mode, according to the results of its “timer 14”, (e.g. col. 1: <claim 1> or col. 2: <0013> or col. 3: <0018>, 2nd sentence) stating “no reply” and “data delayed” with the packet-switching data transfer. Note that timer 14 according to col. 3: <0019> measures the time of the layer-3-data packets DTE-to-DTE delivery confirmation. Such packets are definitively not the '884 end-terminal-to-end-terminal packets of the '884 communications connection considered and therefore do not belong to the '884 data transfer. While they do may generate a “switching request” signal if a predetermined time is exceeded (ABSTRACT), this signal has nothing to do with an '884 signal. In addition: Its single network is an ISDN.
From the document.5 disclosures result 14 “not-ants”/“contradicts” relations.
Kimura discloses a “line* packet selection communication system” consisting of a “network control device 18” or “mesh control device 18” and “line terminating device 19” on the one side of a “subscriber's line 21” and on the other side of it a “communication mode switching device 20” (FIG. 3 and its description on page 281/282: bottom/top). Both these sides' units jointly switch the “mode to communicate” of a terminal 17 from packet-switching to line-switching service, by means of a corresponding request by the terminal or the “exchanger” (=one of the line-/packet-switching devices in the network, 13 or 14) being a “control signal” on 21—wherein 21 is the sole “subscriber's line” on which both network services are accessible (but not the networks as such providing these services). They execute this switch-over of 21 “per call or during call, according to communication form (conversational form or file transmission form, etc.), quantity of information for communication, and/or the other <party> of the communication, sharing the subscriber's line terminating device.”, page 281 last paragraph and page 286 first paragraph, whereby the term “during call” has a very specific meaning, as explained next.
Throughout a “call” real-time data transfer guarantee is neither required nor disclosed by Kimura—only the possibility of switching-over the “communication mode” of the terminal if its “communication form” changes. This is confirmed by the last/first lines on pages 285/286 in detail: that namely Kimura's change-over solely “ . . . has the effect of the user economically materializing the most suitable communication method according to the communication form (conversational form or file transmission form), quantity of information communicated and the other party of the communication, sharing the subscriber's line terminating device.”—with which he explicitly rules out that he executes his change during the “conversational communication form”, which is permanently maintained throughout the duration of a telephone call and in which all its data transfer takes place. I.e.: Kimura has not de-signed his change over for guaranteeing the real-time data transfer quality throughout a call, and he does not guarantee it.
I.e.: By means of Kimura's change over it is impossible to guarantee the real-time data transfer quality throughout a call, as there is no way of instantly reacting to a threatening and/or actual loss of this quality, e.g. due to fluctuations of service quality of the packet-switched network or detection of the non-availability of some resource within his devices 18/19 required for using the packet-switched network to this end.
Finally, Kimura not discloses/claims that switching-over 21 “during call”—while the communications form is not changed, as is the case in a telephone call—the current call can be continued. Rather in the only disclosures referring to switching over “during call”, in Case 3, absolutely nothing similar is disclosed. Instead, as in Case 1 and Case 2, Kimura assumes also here that the “incoming call” from line-switcher 13 considered in Case 3 (see page 284, right column, last paragraph) is an independent call (as the former call's “communications form” is not changed, if it is a telephone call, as in the '884 case), on detection of which—unless its acceptance is refused by the called terminal 17 (page 285, left column, first paragraph)—the ongoing “communication by packet exchange mode is ended” (see also page 285, left column, lower part, i.e. the '884 telephone call). I.e.: while the Kimura switching-over of 21 may occur also during an ongoing packet-switched call over it, this would be disrupted if it is due to a non-refused incoming call from line-switcher 13.
This corresponds precisely to the technical problem (economically important at that time), which Kimura wants to solve and explains in detail on page 281/282 last/first paragraphs: namely to offer on only a single subscriber line 21 to a user at terminal 17 at any time access to both the line- and packet-switching functionalities of networks. But this Kimura solution by far does not guarantee a real time data transfer in a telephone call over an arbitrary packet-switching network (e.g. the Internet) and line-switching, not to speak of providing access to two such separate networks. Kimura therefore nowhere claims its solution were suitable for guaranteeing real-time data transfers as required for telephone calls over any packet-switching network, if only also an ISDN/PSTN were accessible—but rules this out quite explicitly (see above) at the aforementioned references.
Kimura has accordingly nothing to do with the '884 change of a data transfer between two separate network accesses—quite the contrary: his sole aim is to replace these separate network accesses by a single access to both their services.
From the document.6 disclosures follow 12 “not-ants”/contradicts” relations:
The technical document.7 is equal to document.8/K3, see the next Section.
The document.8 discloses an IDB (=ISDN dial backup) system, which has access to an ISDN and thus can substitute network connections via modem-driven leased lines—in the event of the latter's breakdown—but does not consider, at all, substituting network connections via a packet-switching network, the use of which is based on techniques being dramatically different from those for using leased lines and modems. The establishment of a substituting network connection over the ISDN for the '884 communications connection by the IDB system is ruled out also by several other technical reasons. For example: The IDB system definitively is not capable of changing-over only a single telephone call or communications connection (as it does not even know this notion indispensably required by the '884 invention), and its establishing of its ISDN bypass of its modem-driven leased lines lasts 1-4 seconds (destroying the needed real-time quality of an ongoing telephone call or communications connection).
From the document.8 disclosures follow the 15 “not-ants”/“contradicts” relations:
Document.9 discloses only a number of aspects of service-integration in communications networks (always to be achieved within these networks). The quite different idea of an integrated use of separate accesses to a packet- and a line-switching network (not needing any support by these networks)—insofar being technically and organizationally dramatically different to the integrated use of packet—and line switching network services at a single network access—is not even mentioned by it, in particular not in a single communications connection. I.e., Malek clearly excludes the '884 switch with its separate access to each of these two types of separate networks.
From the document.9 disclosures follow 15 “not-ants”/“contradicts” relations:
Document 10 also considers, similar to document.8 and its IDB system, the use of network access integrated packet- and line-switching services of internally somehow interconnected networks, while it completely ignores the question of the integrated use of completely separate networks, as they frequently existed at the priority date and still exist today. The primary difference is: Its focus is on supporting direct LAN/LAN-modem-connections in case of their overload or failure or temporary replacement (as they then may be more expensive than ISDN connections), whereby now the IDB system of document.8 is replaced by a system consisting of an IA (=“ISDN adapter”) together with a suitable LAN/LAN router.
The document.10 disclosures imply 15 “not-ants”/“contradicts” relations:
Document.11 discloses the same technical teaching as document.8 and document.10, except that now the ISDN adapter and router are integrated and that the replacement alias backup circuits for e.g. modem direct connections are in the background and now remote connections are made primarily via the ISDN, whereby the at the time very popular NetWare MultiProtocolRouter was always used (so that practically all then important LAN and WAN protocols could be routed therewith, particularly IPX, TCP/IP, Apple Talk . . . ). These “network interoperability” aspects of data transfers have however nothing to do with their real-time quality (being an indispensable property in telephone calls). Consequently, the connection of a telephone to this AVM router is again technically ruled out, just as the monitoring of the quality of an individual communications connection and performing therein a dynamic change-over with it.
From the document.11 disclosures therefore result (as with document.8/10)15 “contradicts” relations
These elaborations are based on document.7/NK37, with identical content as document.4/NK23.
Tadamura's technique teaching is based on a COMMUNICATION CONTROL APPARATUS 200, a special “ISDN terminal adapter” (FIGS. 2 and 26), which switches a data communication over an ISDN from packet to line switching mode or vice versa, if the actual mode is proving inadequate, col. 1:11-44. From the description of the technical problem to be solved by it—by means of its target guidelines 1-4 in col. 2:24-62—and the description of the associated solution alias technique teaching according to the invention in col. 2:63-4:68, it is evident that he has designed his change-over not for the purpose of ensuring the real-time quality of a data transfer, e.g. to make it suitable for Internet telephony. Rather all these 4 problem descriptions and the solution provided by Tadamura—inter alia with its exclusion of change-over decisions by the network management, as is absolutely indispensable to this end—disclose that his technical solution explicitly excludes the real-time guarantee of its data transfer. In addition: It knows only a single network, namely an ISDN.
From the document.12 disclosures result 15 “not-ants”/“contradicts” relations:
Lee's technique teaching puts in practice a “dynamic connection management in integrated communication networks”, Abstract and FIG. 9—more precisely: in a single “connection-orientated integrated communication network”, col. 1:15-18, 2:52-54, not being ruled out by further developed future ISDNs, but today not yet realizable—which maintains for the duration of a “connection” its acceptable QOS (=quality of service). All its claims are actually pure method claims, worded in such a way that they know no switches at all, neither inside nor outside of this network. It recognizes at this network only two end users and an information transfer between them, col. 1:15-18. I.e.: It even does not disclose how these two users interact with this single communications network, but excludes that they each use 2 network accesses for this.
It states in a beautifully philosophical—but absolutely not-enabling—manner that the information transfer between them is achieved by means of network functions, which select network operating means for same and allocate these along a suitable path for same. The logical association between the communication end users he names “call”, the chain of network operating means supporting it at any time—along the above path—he names “connection” and by “connection management he means the network function which sets up, maintains and tears down connections”, col. 1:18-27. He supports a call taking place at various times through different connections.
From the document.13 disclosures result 15 “not-ants”/“contradicts” relations:
Noguchi's technique teaching is focused on the functional design of a “distributed processing ISDN switch” (see ABSTRACT or col. 3/4:44/12). The patent outlines the latter's structure, as to the invention, consisting of the switch-internal bus system functional units (60/61/62), and the functional units (10, 11) on the terminal side connected thereto, and the processing/exchanging/transferring side functional units (30, 40, 50) of the “voice/data” information coming in/going out from/to the DTEs, as well as the interactions of these groups of functional units. It thus has absolutely nothing to do with its use in a data transfer from one to another such distributed-operating ISDN switch and/or switching-over of this data transfer from the use of a packet switching network to the use of a line switching network, and therefore cannot address real-time quality features of thus (not existing) data transfers.
From the document.14 disclosures result 15 “not-ants”/contradicts” relations:
Archibald's technique teaching is based on a “data communications network” which uses a “leased line” 102, as “primary communications channel” and a “dial-up line” 101 of a “telephone network” 200 as “backup/secondary communications channel” between two modems 100 and 300, which in turn are connected to the two DTEs 50 and 450. When one of the two modems encounters a reduction of the “signal quality” on the rented line it automatically sets-up a dial line “data connection”.
From the document.15 disclosures result 15 “not-ants”/“contradicts” relations:
This alleged anticipation document is of particular interest concerning the question of identifying additional relevant properties/attributes/concepts, as discussed in Section I.B. These additional relevant properties/attributes/concepts were not at all needed in the FSTP analysis of the '884 PTR so far, but adding the TT.Vazvan to the '884 PTR's RS might have raised feelings of uneasiness about the question, how far it were anticipating the '884 TT.p—though it deals with a technical problem quite different from the one resolved by the '884 TT.p21).
In order to prove such feelings are without any foundation, this Section 11.C.16 shows the massive differences in the D-attributes—and even clearer in the B-attributes alias concepts—underlying both of them, the '884 TT.p and the TT.Vazvan (see the D-ANC and the B-ANC matrices in Section II.A.1.3-4), i.e. that not a single one of the D-attributes or B-attributes of the TT.Vazvan actually would disclose the peer D-attribute or B-attribute of the TT.p.
Of particular interest is here that these differences are caused also by '884 concepts introduced only when this alleged prior art document was presented (e.g. the “permanent” concept in C.15), which had not been noticed prior to having added the TT.Vazvan to the '884 PTR's RS—although these additional properties/attributes/concepts did exist prior to this addition (but then would be irrelevant, see Section I.A.5).
Vazvan's technique teaching deals with an integrated system of mobile terrestrial as well as satellite networks, which he calls MUMTS (=multimode universal mobile telecommunications system), connected also to fixed line networks (31, 33, 34, 44), which is used by so-called MMTs/DMTs (=multimode/dual mode terminals) terminals (43). While moving, a terminal of this kind may establish one “connection”—more precisely: one “data link”—after another to several networks, one at a time, by requesting access to the respective network and, after have received same, use the various services of the then “network connected”. An MMT/DMT may forward its connection (i.e. data link), as it moves from one network to another one between these, by “handover” alias “hand-off”, more precisely by “access (requested/granted) handover alias hand-off”. The handover decision for it always is based also on the quality of the connection—while an '884 change-over signal often ignores quality.
Note that VAZVAN's “connection” (it is a “data link” in internationally standardized telecommunications experts' language20)) is not the '884 end-terminal-to-end-terminal “communications connection” of a telephone call disclosed in the '884 specification. I.e.: In VAZVAN's patent
The aforementioned differences i)-x) show that VAZVAN and the '884 patent deal with totally different telecommunications configurations, totally different problems and hence totally different solutions.
Vazvan's TT is restricted per se to mobile networks and mobile terminals. Since its description at one point (page 9:29-31) is however vague and speaks also of fixed networks/telephone terminals, the preceding paragraph also allows the corresponding generalization—but this has no effect on the following relational facts.
From the document.16 disclosures result 15 “not-ants”/“contradicts” relations:
The meanings of the terms in the below claims' wordings are based on this patent application's TT.p1),2).
The TT.p disclosed comprises an IT architecture—i.e. any one of this TT.p's embodiments is a computer HW/SW system working time-efficiently together with many quite different.) HW/SW computer system interfaces and . . . ) information structures and their complex interrelations—allowing to overcome the hitherto technical barriers for a versatile real-time patent expert system, being capable:
“in its rehearsal/analysis mode”, of performing for any PTR its FSTP analysis and then
“in its real-time mode”, of replying instantly to any query concerning this PTR's FSTP analysis.
“Real-time” means that the FSTP Expert System is able to reply to any query for an information/item referring to this PTR's FSTP analysis within the period of time tolerable in a fluent real-life conversation about this information or item being queried—i.e. within at most 5 seconds.
Within a PTR's FSTP analysis underlying the below claims, the term “information” may denote (parts of) ontologies and/or somehow automatically and/or interactively as such identifiable and recognizable items of information. I.e.: The term “item” of information denotes one or several parts of this information being meaningful to the resp. skilled person—who holds a university diploma with focus on automatic language and/or knowledge translation and several years of practicing patents' technical analysis.
There are evident implications of this patent application's disclosures to be used in future claims:
1. In interpreting a patent's claim, the US precedents allow its specification to impose a “construct limitation” on a claim's meaning iff its wording refers to this construct by a “means plus function” clause (otherwise ignore its limitations as disclosed by its specification)—while the precedents of the BGH and Article 69 of the European Patent Convention (EPC) require first determining, from the patent's specification/figures/claims, the meanings of the claim's terms and the TT.p, the patent's claim is based on, for assessing they don't contradict each other (whereby the TT.p therein is supposed to be an enablingly disclosed2) resolution of the technical problem given by the patent and that it contains only one independent method and/or apparatus claim12)), and only then to perform the claim's interpretation based on the so determined meanings of the claim's terms (and hence of the TT.p underlying it, see Sections II.A.1.1-2).
Both national patent systems, “NPS's” (comprising the nation's patent law, patent precedents, patent authority's regulations, sworn-in technical experts, . . . ), also called “national legal systems, NLS's”—“national” here standing for US and EU—allow in a patent ex- and implicit disclosures of properties/facts, i.e. “patent intrinsic” resp. “patent extrinsic” disclosures, meaning that a TT.p's property is
“explicitly disclosed” iff it contains wordings and/or graphics explicitly representing this property's disclosure, and
“implicitly disclosed” iff there is no such wording/graphic, but
These definitions of ex-/implicit alias in-/extrinsic disclosures—as to a patent's/claim's (non)obviousness problem—apply also for any non-patent document and seemingly within any NPS (though coming here with different flavors). Both NPS's seem to share the same view as to the denial to a patent owner of his constitutional right to get a fair trial, if a court refuses to recognize his TT.p's X).n.
The great importance of such implicit alias extrinsic disclosures—then being skill-based (as in (a)) or logic-based (as in (b))—of a patent is discussed in Sections I.B-E, exemplified by Section II.A.1.2, and visualized by means of
None of these BGH decisions quite made it to the term “independent thought”, but they still used other terms representing less innovative notions by talking about such thoughts' consequences, such as quoting more than one “change of elements” or “change of their sequence of execution”. I.e.: These decisions did not yet recognize that such technical changes are depending on the inventors first having created the resp. “thoughts of change” controlling them—as recognized by the US Supreme Court's KSR decision—i.e. that such independent thoughts alias creative ideas are indispensably underlying such changes and hence expansions of prior art“).
Rationalizing these terms/notions, one sees that a thought of this kind of change is nothing else but a thought of change of a concept”) of prior art. Such a change of a concept of prior art is called, here, this prior art's “conceptual modification, 1-cM” of RS, more precisely14) a “1-cM of some AC from RS+”, more precisely a “1-cM of some attribute X.i).n in this AC” (also see Sections I.A.1 and I.A.4). The notion of “q-cM of some AC from RS+”, is then defined accordingly to consist of q 1-cMs and the result of its change to an AC is denoted by “AC/mod(q-cM)”, q=0, 1, 2, . . . .
Note that, for a PTR, a 1-cM of some attribute X.i).n of some AC at some times) may carry through to another reference to this concept in another X′.i′).n′ of AC, which may turn a potential NC-relation of X′.i).n′ into an A-relation. This is possible, in particular, if this concept is referred to twice, by X.i).n and by X′.i).n′, which to avoid on an appropriately defined facts presentation level of the PTR to be analyzed is one of the primary objectives of the FSTP method. 3 While in the '884 patent only its claims section is provided in English, its English specification is provided by the U.S. Pat. No. 6,954,453 B1, serving as the reference base in all subsequent quotations from the '884 specification. The 3 U.S. Pat. Nos. 7,145,902, 7,483,431 and 7,936,751 are divisionals of the '453 patent, i.e. have identical specifications. As they all disclose by their specification the same TT.p, only the US patents' “claims differentiation” is an issue—requiring to analyze claims one-by-one, the result of this FSTP analysis holding even stronger for the claims of 4 US patents of this patent family. As no “primate of claims' wordings” is known in the EPC, here the '884 patent is considered for simplicity.
The selection of these 16 documents—out of a total of ca. 50 allegedly prior art documents, submitted to the BGH in the nullification complaint against the '884 patent—is based on a decision by the BGH. These 16 are: doc.1=WO 90/12466, doc.2=U.S. Pat. No. 5,347,516, doc.3=Lucent, doc.4=doc.12, doc.5=JP7-154426, doc.6=JP57-159153, doc.7=doc.8, doc.8=IDB-64/2, doc.9=Malek, doc.10=Wacker, doc.11=AVM, doc.12=U.S. Pat. No. 5,517,662, doc.13=Lee, doc.14=U.S. Pat. No. 4,977,556, doc.15=U.S. Pat. No. 5,479,650, doc.16=WO 96/28947. Actually, only the first 13 of them were selected by the BGH, the remaining 3 were submitted by Cisco/Nokia later. The non-patent document i's are available from the author—the others from the respective databases.
The fact that 16 potential anticipation documents.i are considered goes against the trend in the US and EU to allow only the combination of a few TT.i's to anticipate TT.p. But, this large number has the charm of bringing up properties of the TT.p—presented subsequently—which may discourage future invalidity attacks on it right from the beginning. This is one of the explanations, why the German BGH court case is taken here, although the analogous case is pending also at the Delaware District Court. 4 In general, this derivation may be tedious, but it is trivial in the '884 case, as the '884 D/B-ANC matrices show at first sight.5 This is rooted in Wittgenstein's epistemological research on thinking in a natural language (see e.g. items 3 and 4 of his “Tractatus Logico-Philosophicus”). More recently this has been approved by Dijkstra15) and all the approaches to formal specification of systems. Already Kant had identified this fundamental deficiency of thinking in terms/notions of natural language by an even stronger statement, saying: “I maintain that in any special doctrine of nature only so much real science can be found, as there is mathematics found” (“Metaphysical Foundations of Natural Science”, Immanuel Kant, 1786). His early insight has, unknowingly, been the guiding theme in developing the FSTP test. It thus can be viewed as being the real science in the special doctrine of factual technical indication of (non)obviousness (in patent law)—which here is seen as a special doctrine of nature, due to its factuality (being meaningless otherwise).6 For not mixing-up this notion of “data transfer” alias TRANSFER7),8),20) with “transferring data” see footnote 20.7 The meaning of this “substantially in real-time” attribute of a data transfer/TRANSFER is that it takes place sufficiently synchronous to the real life process, to which it refers, e.g. to a telephone call process. Specifically as to this process and its data transfer/ TRANSFER, the '884 patent and all international telecommunications organizations require any lag time to be smaller than 0.5 sec. None of the above 16 document i's strains, its data transfer would achieve this real-time quality—probably being the main reason, why they completely refrain from claiming that it were suitable for a telephone call (they even don't mention telephony, at all)6),8),20).
Note: The synchrony property/attribute alias real-time property/attribute of the '884 specific data transfer/TRANSFER is not “absolute” but only “substantial”, and only as induced by the user expectations as to a telephone call. I.e.: Therein the tolerable lag time of the data transfer/TRANSFER during call set-up would be slightly longer than its tolerable lag time during speaking. But the '884-TT.p abstracts from this differentiation: Its monitoring of the telephone call's data transfer/TRANSFER and its detecting a delay—be it occurring during call set-up of this telephone call or later—makes it generate a signal which initiates a transfer (=change over) of this data transfer/TRANSFER from the PSN used to using the LSN (see Section II.A.1.3). 8 Such event of a time delay (implying a delay for ever and not regarding how the first switch becomes aware of it) may occur in various locations in the TRANSFER monitored (i.e. somewhere in the communications connection considered) and in a large number of situations. Examples of reasons and of places of their possible occurrences are: The first switch is running out of buffer space as needed (e.g. for packetizing the data incoming from a telephone set) when using the packet-switching network for outgoing data of the communications connection considered, or it ran out of other resources to this end (e.g. appropriate compression chip resources), or it cannot forward a packet to the packet-switching network (e.g. somebody has pulled the plug to it or it has encountered some internal management limitation), or it discovers—whereby the '884 TT.p need not explain to the skilled person, how to achieve this discovery—unacceptable delays/jitter on the data received by the second switch, or that the second switch has a similar problem as just identified for the first one, or . . . , whereby any of these events may occur as soon as the 1st switch has performed any activity in this communications connection, which has come into existence as the 1st switch has received from the calling end terminal the address of the end terminal to be called6),7),20).
It is trivial only by today—i.e. only in hindsight—that the automatic release of an '884 change-over signal at any occurrence of this event does guarantee the real time quality of the '884 communications connection considered, i.e. of its '884 TRANSFER monitored, thus meeting the above requirement of warranting its col. 3:59-62 real time quality. 9 These 11 '884 D-attributes are: A).1-A).6, C).2, C).3 and D).1-D).3.
But note another D-level problem arising here, in the general case of a q-AC/mod(q-cM) anticipating TT.p: For making each D-X).n be anticipated by this q-AC's resp. D-X.i).n/mod(q-cM), q 1-cMs must be invented10) one by one, as thinking is a sequential process. A sequence of performing them may contain a 1. or 2 . . . or qth 1-cM, which is technically barred due to at least one of the 1-cMs preceding it in this sequence, i.e. making it contradictory14).A. If this applies for any sequence, this value of q is just a lower bound for Qplcs. It is left for further study, whether there always is an appropriate B-level avoiding such questions. 10 For a PTR, D/B-concepts and their universes are terms and their sets of values/instantiations (see Section I.A.4), which model issues known by the person of pertinent skill and hence are assumed to be noncontroversial: They provide the D/B-fundaments for logical D/B-expressions/attributes (“referring” to these concepts' values), which describe the D/B-properties of the elements used by its TTs. No TT.i's attributes and no combination of them would anticipate all the TT.p's attributes—otherwise this TT.i resp. this combination would anticipate TT.p14). Note that any attribute may be viewed as binary concept, e.g. any D-attribute of TT.p (see below).
A “conceptual modification, 1-cM” of a X.i).n being NC-related to X).n, is defined to be a modification of this X.i).n's TS or U, aiming at making X.i).n/mod(1-cM) ants X).n (see14) Section I.A.4 and I.B.1). Thus, if a 1-cM is executed on a binary attribute X.i).n, its value is toggled. If a PTR's ANC matrix is plcs-independent (see Section I.A.5), also any 1-cM of any of its attributes X.i).n is called “plcs-independent”. Same arguments may lead to qualifying a 1-cM as “pmgp-independent”, too14).
AXIOM: Inventing a 1-cM of a TT.i's attribute requires creating at least one thought. Any such thought is called “1-cM supportive”.
Any 1-cM supportive thought is called “plcs- resp. pmgp-independent”, iff its 1-cM is plcs- resp. pmgp-independent. If a PTR's ANC matrix is plcs-/pmgp-independent (which is not known a priori, as then the TT.p was not known yet, hence also the ANC matrix) for any 1-cM belonging to a Qplcs/Qpmgp-path14) at least one supportive thought had to be created by the TT.p inventor on his way to the TT.p after starting from the prior art, and this thought was plcs-/pmgp-independent. This plcs-/pmcip-independent thought was indispensably required for finding the TT.p and had to be created by him. Thereby the plcs-/pmgp-independencies can be proven only after TT.p has been found.
Note: After the TT.p has been found, the prior art is definitively expanded by its X).n's—but nobody has ever postulated prior art were also expanded by the X.i).n/mod(q-cM) with the q-cMs belonging to Qplcs/Qpmgp-paths leading from RS to TT.p.
The notion of “independent thoughts” alias “creative ideas” used by the Supreme Courts2) cannot mean anything else but thoughts being independent from prior art and hence from each other as to patent law carrying semantics plcs and patent monopoly granting pragmatics pmgp, i.e. as to both norms (implicitly) controlling the resp. national patent law legislature/precedents (see Section I.B.2).
Next the above B-level for the '884 PTR is given. See also
Note that it is completely irrelevant, whether an additional relation exists between some of these concepts in a TT.i (making them plcs- or pmgp−-dependent there): Its absence from TT.p could be made another implicitly disclosed property of it, thus distinguishing it even further going from RS.
The above identifiers C.1-C.28 abbreviate the FSTP names of the B-concepts B-C.1-B-C.28, as well as the full names of the resp. B-attributes B-X).1, . . . , B-X).28 introduced in Section I.A.4. Some of these B-attributes/concepts B-X).n are identical to the above D-X).n, others are refinements (see the left margin, their initial names being A).1-D).3, i.e. without prefix “D”).
The two tables below show, firstly, the above table once more but using this just explained full notation (i.e. identifying by “B-X).n” the resp. B-attribute and, behind the “:”, by “B-C.n=T” the value of this B-concept for the TT.p), and secondly, the resp. table for document.1 in this full notation (e.g. identifying behind the “:”, by “B-C.n=T/F”, the value of this B-concept for the TT.1).
While the preceding table shows the B-level description of the '884 TT.p by means of the above B-concepts, the table below shows the B-level description of the TT.i (see Section 11.C.1, showing its D-level ANC relation, and the introduction to Section II.C).
In general the patent at issue and/or document.i might deal with several X).n's resp. X.i).n's, namely when disclosing several TT.p's resp. TT.i's. We here assume for simplicity, there is only one single such TT.p resp. TT.i, and hence X).n and X.i).n—as adapting the FSTP tests to the general case is straightforward.
One X).n column potentially may be removed by a “sub patent law” 1-cM of some X.i).n (see Sections I.B.2.b) and I.M), while the removal of 2X).n columns by 2 1-cMs would likely no longer be “sub patent law”, NNI support being indispensable anyway.
All these considerations only hold, if TT.p has been described completely—see II.A.1.2 for a counterexample.
For a plcs-independent ANC matrix of a PTR let denote by the terms (omitting the D/B-prefix, see Sections I.A.1-5):
A. “contradiction-free”, iff “q-AC/mod(q-cM) not-contradicts (TT.p or any TT.i involved in q-AC)” (see below).
B. “element integrity preserving”, iff its disclosures are “element-wise”, i.e. “element-by-element” (see below).
C. “free” resp. “normal”, iff it is subject to none resp. both limitations A and B (of the in total 4 “plcs options”).
This example also explains (together with “To E.”), which support is provided by the FSTP analyzer on this stage.
In all these cases, the disclosures resp. alleged anticipations of properties of TT.p/TT.i may be explicit or implicit1).
This holds in particular for any alleged anticipation document.i failing to disclose somehow (i.e. explicitly or implicitly1)) this '884 property of its TT.i or the TT.i of which even contradicts this '884 property. These are e.g. all documents.i focusing on the ISDN as providing both, an LSN as well as a PSN, and thus totally depending on a specific combination of both alleged networks.
Also: Such documents.i show independently of each other that their ISDN focus excludes anticipating the '884 invention:
Note: The OSI Reference Model as such is an international standard, and hence the meanings of its natural English language wordings are those provided on the level of professionalism (see Section I.D) of the person of pertinent skill. I.e., the terms/notions of the OSI Reference Model were not chosen to be immediately graspable by the layman, but to provide to the persons skilled in the art a commonly accepted/necessary notional basis.
Stating within the specification of a US telecommunications patent its use of the only existing internationally/nationally agreed on terminological/notional telecommunications Reference Model—i.e. for explaining its skill when using telecommunication terms/notions—would be as strange as stating in it the use of the “Webster's Unabridged Dictionary”. I.e.: The ISO OSI Reference Model's use in the '884 patent is self-explaining by skill.
Accordingly, their notion of “transfer” denotes the whole data transfer of a phone call—and should not be mixed-up with “transferring data” (in the communications connection considered (see Section II.A.1.2), which deals with details of this transfer. It is highlighted subsequently in this footnote, where appropriate, by capital letters for avoiding misunderstandings.
More precisely: This TRANSFER comprises much more than just the actual transferring of data, e.g. also the “change from packet switching to line switching . . . ” therein (see col. 9:43-52). Together with col. 9:37-41 this clarifies the tight notional relation between a TRANSFER and a communications connection, and also that this change of the monitored TRANSFER results from and affects only this communications connection considered (as otherwise the line-switching connection might be overloaded a priori, thus obviously not achieving its intended real time quality). See Section II.A.1.2 for further limitations on this TRANSFER.
As to the notion of the term “connection” used multiple times here: There is no universal meaning of this term. Its notion is always depending on this term's context identified by its prefix. In telecommunications, the term “communications connection” stands for an “abstract communications application association” (see the first pages of the above OSI Reference Model) of two communicating parties—hence its name. It belongs to the OSI layer 7 (=L7), i.e. it is an “abstract application connection” alias “L7-connection”. In case of a telephone call its communications connection is the abstract telephony association between the abstract models of the telephone sets of the caller and callee. It becomes “existing”—as an association between a caller's and a callee's phone model—exactly when on the caller's end terminal the address of the callee's end terminal is identified.
“Establishing” an existing connection denotes the process of performing its abstract technical realization which comprises activities possible only after it became existing. This first step of establishing alias “setting-up” a communications connection is colloquially denoted by the vague term “calling”. The skilled person knows about the technical details of abstract local resource requirements to be met and agreements to be achieved between the caller's/callee's terminals during a call set-up. A call resp. its communications connection may enter—after its “set-up phase”—into its “use phase” and eventually into its “termination phase”. In all phases a call requires performing, between its (resp. its communications connection's) end-terminals, some end-terminal-to-end-terminal data transfer, in total the above TRANSFER.
I.e.: A call's communications connection is an end-terminal-to-end-terminal connection, while its switch-to-switch segment may use a packet-switching or a line-switching so-called “network connection” (alias “L3-connection”). In telecommunications “tech talks” these prefixes—“L7”, “application”/“communications”, “network”/“L3”, “link”/“L2”, . . . —would frequently be omitted, as they are clear to the skilled telecommunications person anyway.
Accordingly: The event of a time delay (implying a delay for ever and abstracting from how the first switch becomes aware of it) may occur in a large number of situations and in several locations in the TRANSFER monitored resp. its communications connection—and need not be caused by the packet-switching network at all, but may be caused outside of it. Practical examples of reasons of possible such events are:
a is a block diagram of the overall technical structure of the FSTP;
b-1e are block diagrams showing the technical architecture of an exemplary hardware embodiment of technical FSTP functions;
a-2e, 3a-3b, and 4a-4j are diagrams showing subject matter and context ontologies of the FSTP;
a is a flow diagram showing functionalities executed during FSTP analysis; and
b is a flow diagram showing sequences of steps of executions of
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| 61352528 | Jun 2010 | US | |
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| Number | Date | Country | |
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| Parent | 13093682 | Apr 2011 | US |
| Child | 13229362 | US | |
| Parent | 12756254 | Apr 2010 | US |
| Child | 13093682 | US |
