Comments on: Some Heretical Thoughts on the Ariad Case: What Does “Any Person Skilled in the Art” Mean and Should It Apply to the “Written Description” Requirement? http://www.ipwatchdog.com/2009/12/02/some-heretical-thoughts-on-the-ariad-case-what-does-%e2%80%9cany-person-skilled-in-the-art%e2%80%9d-mean-and-should-it-apply-to-the-%e2%80%9cwritten-description%e2%80%9d-requirement/id=7550/ Patents, Software Patents, Patent Applications & Patent Law Thu, 09 Feb 2012 07:58:49 +0000 hourly 1 By: Not Losing the Forest for the Trees: Newman Concurs in Ariad | IPWatchdog.com | Patents & Patent Law http://www.ipwatchdog.com/2009/12/02/some-heretical-thoughts-on-the-ariad-case-what-does-%e2%80%9cany-person-skilled-in-the-art%e2%80%9d-mean-and-should-it-apply-to-the-%e2%80%9cwritten-description%e2%80%9d-requirement/id=7550/#comment-11899 Not Losing the Forest for the Trees: Newman Concurs in Ariad | IPWatchdog.com | Patents & Patent Law Tue, 23 Mar 2010 20:31:18 +0000 http://www.ipwatchdog.com/?p=7550#comment-11899 [...] distinct “written description” requirement in the first paragraph of 35 U.S.C. § 112.  See Some Heretical Thoughts on the Ariad Case: What Does “Any Person Skilled in the Art” Mean and Sh... Also not surprisingly, there were multiple concurring (and dissenting) opinions discussing this [...] [...] distinct “written description” requirement in the first paragraph of 35 U.S.C. § 112.  See Some Heretical Thoughts on the Ariad Case: What Does “Any Person Skilled in the Art” Mean and Sh… Also not surprisingly, there were multiple concurring (and dissenting) opinions discussing this [...]

]]> By: Noise above Law http://www.ipwatchdog.com/2009/12/02/some-heretical-thoughts-on-the-ariad-case-what-does-%e2%80%9cany-person-skilled-in-the-art%e2%80%9d-mean-and-should-it-apply-to-the-%e2%80%9cwritten-description%e2%80%9d-requirement/id=7550/#comment-9822 Noise above Law Thu, 10 Dec 2009 02:35:50 +0000 http://www.ipwatchdog.com/?p=7550#comment-9822 Rick, No. Please indulge yourself with a modicum of patent knowledge prior to posting on patent blogs. Otherwise you appear extremely foolish. Rick,

No.

Please indulge yourself with a modicum of patent knowledge prior to posting on patent blogs. Otherwise you appear extremely foolish.

]]> By: Rick Peterson http://www.ipwatchdog.com/2009/12/02/some-heretical-thoughts-on-the-ariad-case-what-does-%e2%80%9cany-person-skilled-in-the-art%e2%80%9d-mean-and-should-it-apply-to-the-%e2%80%9cwritten-description%e2%80%9d-requirement/id=7550/#comment-9802 Rick Peterson Wed, 09 Dec 2009 20:15:20 +0000 http://www.ipwatchdog.com/?p=7550#comment-9802 Oh yes, isn't KSR the case holding "could'a, would'a, should'a" is the new standard to obviate issued patents? Oh yes, isn’t KSR the case holding “could’a, would’a, should’a” is the new standard to obviate issued patents?

]]> By: Noise above Law http://www.ipwatchdog.com/2009/12/02/some-heretical-thoughts-on-the-ariad-case-what-does-%e2%80%9cany-person-skilled-in-the-art%e2%80%9d-mean-and-should-it-apply-to-the-%e2%80%9cwritten-description%e2%80%9d-requirement/id=7550/#comment-9787 Noise above Law Wed, 09 Dec 2009 12:44:48 +0000 http://www.ipwatchdog.com/?p=7550#comment-9787 "which seems the current trend." on which planet? Did the omniscience of KSR bypass you? “which seems the current trend.”

on which planet? Did the omniscience of KSR bypass you?

]]> By: Rick Peterson http://www.ipwatchdog.com/2009/12/02/some-heretical-thoughts-on-the-ariad-case-what-does-%e2%80%9cany-person-skilled-in-the-art%e2%80%9d-mean-and-should-it-apply-to-the-%e2%80%9cwritten-description%e2%80%9d-requirement/id=7550/#comment-9785 Rick Peterson Wed, 09 Dec 2009 03:31:15 +0000 http://www.ipwatchdog.com/?p=7550#comment-9785 One skilled in the art, is one who is above ordinary skill in the art. That person is not some dolt of minimal skill in the art. Patent law cannot be reduced to the lowest common denominator, which seems the current trend. One skilled in the art, is one who is above ordinary skill in the art. That person is not some dolt of minimal skill in the art. Patent law cannot be reduced to the lowest common denominator, which seems the current trend.

]]> By: Gerald Prettyman http://www.ipwatchdog.com/2009/12/02/some-heretical-thoughts-on-the-ariad-case-what-does-%e2%80%9cany-person-skilled-in-the-art%e2%80%9d-mean-and-should-it-apply-to-the-%e2%80%9cwritten-description%e2%80%9d-requirement/id=7550/#comment-9724 Gerald Prettyman Mon, 07 Dec 2009 14:37:15 +0000 http://www.ipwatchdog.com/?p=7550#comment-9724 Noise above Law - thank you for catching that. Noise above Law – thank you for catching that.

]]> By: Noise above Law http://www.ipwatchdog.com/2009/12/02/some-heretical-thoughts-on-the-ariad-case-what-does-%e2%80%9cany-person-skilled-in-the-art%e2%80%9d-mean-and-should-it-apply-to-the-%e2%80%9cwritten-description%e2%80%9d-requirement/id=7550/#comment-9722 Noise above Law Mon, 07 Dec 2009 12:52:43 +0000 http://www.ipwatchdog.com/?p=7550#comment-9722 Please note that the link above grabs the period after "pdf". Eliminate the period in the url to get to Gerald's article. Please note that the link above grabs the period after “pdf”. Eliminate the period in the url to get to Gerald’s article.

]]> By: Gerald Prettyman http://www.ipwatchdog.com/2009/12/02/some-heretical-thoughts-on-the-ariad-case-what-does-%e2%80%9cany-person-skilled-in-the-art%e2%80%9d-mean-and-should-it-apply-to-the-%e2%80%9cwritten-description%e2%80%9d-requirement/id=7550/#comment-9717 Gerald Prettyman Mon, 07 Dec 2009 00:46:55 +0000 http://www.ipwatchdog.com/?p=7550#comment-9717 Alas, we revisit another convolution of 'possession' and the "evolving written description doctrine." These are not going away anytime soon. I wrote almost 40 pages on this quagmire. See "The “Evolving Written Description Doctrine” and the Search for Specificity (A.K.A. Adequacy is the Matter of Invention.)," 1 J. Bus., Entrepreneurship & L. (2007). Also available at http://www.grpjrlaw.com/JBELv1p1-42.pdf. Alas, we revisit another convolution of ‘possession’ and the “evolving written description doctrine.” These are not going away anytime soon. I wrote almost 40 pages on this quagmire. See “The “Evolving Written Description Doctrine” and the Search for Specificity (A.K.A. Adequacy is the Matter of Invention.),” 1 J. Bus., Entrepreneurship & L. (2007). Also available at http://www.grpjrlaw.com/JBELv1p1-42.pdf.

]]> By: EG http://www.ipwatchdog.com/2009/12/02/some-heretical-thoughts-on-the-ariad-case-what-does-%e2%80%9cany-person-skilled-in-the-art%e2%80%9d-mean-and-should-it-apply-to-the-%e2%80%9cwritten-description%e2%80%9d-requirement/id=7550/#comment-9652 EG Fri, 04 Dec 2009 13:04:55 +0000 http://www.ipwatchdog.com/?p=7550#comment-9652 Noise above Law, Thanks for posting Ned Heller's comment here. Here was my reply Ned's second sentence in the first paragraph: "A very astute observation about the history of utility claims in the 19th Century. These old-style utility claims looked very much like modern-day design claims (e.g., "the device substantially as shown and described.") In other words, the patent specification took on even greater significance in the old days. Again, good comment.." Noise above Law,

Thanks for posting Ned Heller’s comment here. Here was my reply Ned’s second sentence in the first paragraph:

“A very astute observation about the history of utility claims in the 19th Century. These old-style utility claims looked very much like modern-day design claims (e.g., “the device substantially as shown and described.”) In other words, the patent specification took on even greater significance in the old days. Again, good comment..”

]]> By: Noise above Law http://www.ipwatchdog.com/2009/12/02/some-heretical-thoughts-on-the-ariad-case-what-does-%e2%80%9cany-person-skilled-in-the-art%e2%80%9d-mean-and-should-it-apply-to-the-%e2%80%9cwritten-description%e2%80%9d-requirement/id=7550/#comment-9622 Noise above Law Thu, 03 Dec 2009 22:17:06 +0000 http://www.ipwatchdog.com/?p=7550#comment-9622 I may not always agree with Ned, but he does attempt to cogently argue his points (most of the time), so with some liberty, I will repost a Patently-O item here: EG and Paul, "adequate description" seems more akin to the problem of claim 8 in O'Reilly v. Morse. It generally arises from functional claiming and involves whether the description enables one to make and use everything claimed. I think the "written description of the invention" prong of Section 112, p.1, was initially placed in the statute at a time when there were no claims in order to distinguish what the inventor invented from what was old. See. the Evans v. Eaton cased from 1822. It then andd presumably now had nothing to do with enablement. What may happen therefor is the Feds may limit the written description of invention requirement of Section 112, p.1 to what the Supremes always said it was and not to what it has become in the Fed. Cir. This may require Ariad to win. Posted by: Ned Heller | Dec 03, 2009 at 04:55 PM http://www.patentlyo.com/patent/2009/12/patently-o-bits-and-bytes-no-304.html I may not always agree with Ned, but he does attempt to cogently argue his points (most of the time), so with some liberty, I will repost a Patently-O item here:

EG and Paul, “adequate description” seems more akin to the problem of claim 8 in O’Reilly v. Morse. It generally arises from functional claiming and involves whether the description enables one to make and use everything claimed. I think the “written description of the invention” prong of Section 112, p.1, was initially placed in the statute at a time when there were no claims in order to distinguish what the inventor invented from what was old. See. the Evans v. Eaton cased from 1822. It then andd presumably now had nothing to do with enablement.

What may happen therefor is the Feds may limit the written description of invention requirement of Section 112, p.1 to what the Supremes always said it was and not to what it has become in the Fed. Cir. This may require Ariad to win.

Posted by: Ned Heller | Dec 03, 2009 at 04:55 PM
http://www.patentlyo.com/patent/2009/12/patently-o-bits-and-bytes-no-304.html

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