Mood:
amorousNow Playing: Mumbling Mind - Things we all think but can't figure out (burlesque)
Topic: Announcements
Now that you have it mostly available in the original order as copied on RB VCSY at http://ragingbull.quote.com/mboard/boards.cgi?board=VCSY&read=214278 (see the social structure at work? Now, we have a copy of the original post to see on another site even though this site changes. Think how many times you're able to do that and you now have an audit trail available - pretty neat and simpe... and free$$$) I thought I would put this copy into context. All of it will be in black font so from here we can mark for nuances in replicated and derivative arguments.
A history of XMLhttp://www.itwriting.com/xmlintro.php
A Primer on XML
No magic
Now that XML is a buzzword, it is vulnerable to abuse by marketers who pretend that “save as xml” is a virtue in itself. The mere fact of a document being in XML is no guarantee of usefulness. For example, Microsoft Visio can save drawings as XML. These are large documents with hundreds of Visio-specific elements and attributes. Just because it is XML does not mean that AutoCAD or Adobe Illustrator can make sense of it. It might make it easier for other vendors to create an import filter; but the real benefit will come if and when Microsoft and other drawing application vendors sit down to thrash out an agreed XML standard for drawing documents. With XML, standards are everything.
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Calendar for VCSY v MSFT
Posted here and at RB VCSY 213898
A calendar, leading up to the construction hearing.
18
Accused Infringer files responsive claim construction brief
P.R. 4-5(b)
June 6, 2008
19
Patentee files reply brief on claim construction
P.R. 4-5(c)
June 20, 2008
20
ONLY WITH LEAVE OF COURT
Accused infringer files sur-reply brief on claim construction
June 27, 2008
21
Parties file Joint Claim Construction Chart
P.R. 4-5(d)
June 30, 2008
22
Pre-hearing Conference and technical tutorial if necessary
July 9, 2008
23
Claim Construction hearing
P.R. 4-6
July 10, 2008 at 9:00 am
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(Here is the Microsoft brief - this time without the smartass comments. )
Microsoft Brief for Claims Construction in VCSY v MSFT
Case 2:07-cv-00144-DF-CE Document 52 Filed 06/06/2008 38 pages
§ VERTICAL COMPUTER SYSTEMS, INC., Plaintiff, § CIVIL ACTION NO. 2:07-CV-144 (DF-CE) v. MICROSOFT CORPORATION, Defendant §
MICROSOFT’S BRIEF ON CLAIM CONSTRUCTION
PROPOSED CONSTRUCTIONS FOR THE ’744 PATENT.............................................9
A. “Arbitrary Object” / “Object” / “Arbitrary Name” ..................................................9
1. Microsoft’s Construction of “Arbitrary Object” Follows the
Consistent Usage of this Term in the ’744 Patent Specification ...............10
2. Microsoft’s Construction of “Arbitrary Name” Follows the
Consistent Usage of this Term in the ’744 Patent Specification ...............13
3. The Word “Object” Does Not Need To Be Defined Separately
from the Claim Term “Arbitrary Object” ..................................................14
B. “Arbitrary Object Framework”..............................................................................16
1. “Arbitrary Object Framework” as Used in the Preambles of the
Claims Is a Limitation................................................................................16
2. “Arbitrary Object Framework” Cannot Be Given Reasonable
Meaning, Rendering the Claims Fatally Indefinite....................................17
3. Microsoft’s Alternative Construction ........................................................20
C. “Content” / “Form” / “Functionality” ....................................................................21
1. “Content,” “Form,” and “Functionality” Do Not Require
Construction...............................................................................................21
2. Microsoft’s Alternative Constructions.......................................................22
a) “Content” .......................................................................................22
b) “Form” ...........................................................................................23
Case 2:07-cv-00144-DF-CE Document 52 Filed 06/06/2008 Page 2 of 38
MICROSOFT’S BRIEF ON CLAIM CONSTRUCTION – PAGE ii
c) “Functionality”...............................................................................24
D. “That Separates a Content of Said Computer Application …”..............................26
1. The Term “That Separates a Content of Said Computer
Application …” as Used in the Preambles of Claims 1 and 26 Is
Limiting......................................................................................................26
2. Microsoft’s Proposed Construction Is Consistent With the Intrinsic
Record........................................................................................................28
3. Applicant Disavowed Claim Scope that Would Allow
Combination of Any Two or More of Content, Form and Function .........29
IV. CONCLUSION..................................................................................................................30
How's that for a start? 30+ pages on what the words "arbitrary" and "content", "form", and "function" mean. Apparently it's important for Microsoft to know what the meaning of the word "is" is.
Case 2:07-cv-00144-DF-CE Document 52 Filed 06/06/2008 Page 5 of 38
MICROSOFT’S BRIEF ON CLAIM CONSTRUCTION – PAGE v
INDEX TO EXHIBITS
Exh. A Microsoft’s Comparison Chart of Parties’ Proposed Constructions for ’744 Patent
Exh. B Declaration of Brian Eutermoser
B.1 Jan. 28, 2003 Amendment and Response
B.2 Oct. 22, 2003 Response
B.3 April 30, 2004 Response
B.4 Excerpts from Adhesive Software web site describing WebOS
B.5 Small Adhesive Carries Big Stick, AUSTIN BUSINESS JOURNAL (Jan. 9, 1998)
The chart:
Claim Term Microsoft’s Proposed Construction / Vertical’s Proposed Construction
From Case 2:07-cv-00144-DF-CE Document 52 Filed 06/06/2008 I. INTRODUCTION
As the claim comparison chart shows, the parties have staked out markedly different claim construction positions. The differences in the parties’ proposed constructions derive principally from the parties’ fundamentally different claim construction methodologies. Because the Court is well familiar with the established principles and basic canons of claim construction, Microsoft limits its discussion of the law to the specific issues pertinent to the parties’ disputes.
Three areas of dispute permeate the parties’ respective claim constructions:
(1) whether claim terms should be construed in the context of the specification and the claims in which the terms are found (as Microsoft contends), or in an abstract context based principally on alleged “ordinary meaning” (as Vertical contends);
(2) whether a vague claim term that has no ordinary meaning nor adequate support in the patent’s written description renders the claims fatally indefinite; and
(3) whether preamble language that contains “essential features” of the claimed invention, provides antecedent basis for the body of the claims, and/or was also relied upon by the applicant to distinguish his purported invention from the prior art should be deprived of limiting effect, as Vertical contends.
The first of these disputes derives from the fact that Vertical seeks constructions that require this Court to disregard virtually every important statement in the specification and the prosecution history of the ’744 patent. A prime example of this is Vertical’s proposed construction of “arbitrary name.” Ignoring the relevant portions of the specification and claims, Vertical proposes that this term be construed as merely an “identifier assigned to an arbitrary object.” When viewed, however, in the required context of the specification and the claims themselves (as it must be),1 “arbitrary name” cannot be construed so broadly, but must be limited to what Vertical concedes is a “central feature” of its purported invention—specifically, being “all that is needed” to provide access to an arbitrary object. Similar reasoning applies to Vertical’s other revisionist constructions.
The second dispute involves the term “arbitrary object framework,” which Microsoft contends is indefinite and not susceptible of construction. A determination of indefiniteness is appropriate at the claim construction stage because the analysis of indefiniteness under section 112, ¶ 2 is a question of law that is “drawn from the court’s performance of its duty as the construer of patent claims.” Default Proof Credit Card Sys., Inc. v. Home Depot U.S.A., 412 F.3d 1291, 1298 (Fed. Cir. 2005) (quoting Atmel Corp. v. Information Storage Dev., Inc., 198 F.3d 1374, 1378 (Fed. Cir. 1999)). Where, as here, a claim term has no customary meaning, the Federal Circuit has instructed that “the specification usually supplies the best context for deciphering claim meaning.” Honeywell, 488 F.3d at 991. Far from providing adequate notice to the public, however, the ’744 patent specification merely describes functions that such an “arbitrary object framework” might perform, leaving open the questions of what this entity is or how it works. Under similar circumstances, the Federal Circuit has concluded that an inadequately defined claim term was “insolubly ambiguous,” rendering the patent claims fatally indefinite. Halliburton Energy Svcs., Inc. v. M-I LLC, 514 F.3d 1244, 1255 (Fed. Cir. 2008) (affirming the grant of summary judgment of indefiniteness of patent claims directed to a “method for conducting a drilling operation in a subterranean formation using a fragile gel drilling fluid …” because the specification provided only a vague functional description for the novel term “fragile gel” as used in the claim preamble, leaving the term “insolubly ambiguous”).Vertical’s attempt to construe this term in purely functional terms only underscores its indefiniteness, as Vertical’s proposed construction merely suggests functions that the framework “can” perform, and even then simply echoes other limitations already stated in the claims.
The third dispute centers on Vertical’s belated, litigation-inspired attempt to strip the limiting effect from the preambles of sole independent claims 1 and 26, contrary to the applicant’s reliance on the preambles during prosecution to attempt to differentiate over the prior art as well as contrary to the preambles’ reciting essential elements of the invention and providing necessary antecedent bases for the bodies of the claims. Vertical’s effort to evade the limiting effect of the claim preambles defies established Federal Circuit precedent. See, e.g., Bicon, Inc. v. The Straumann Co., 441 F.3d 945, 952-53 (Fed Cir. 2006) (concluding that preamble was limiting because it recited essential structural features of the invention); NTP, Inc. v. Research in Motion, Ltd., 418 F.3d 1282, 1305-06 (Fed. Cir. 2005) (concluding that preamble was limiting because it provided antecedent basis for limitations in the claim body); In re Cruciferous Sprout Litig., 301 F.3d 1343, 1347-48 (Fed. Cir. 2002) (holding that preamble was a limitation because of “clear reliance by the patentee on the preamble to persuade the Patent Office that the claimed invention is not anticipated by the prior art”), cert. denied sub nom Brassica Protection Products LLC v. Sunrise Farms, 538 U.S. 907 (2003). Application of these established principles requires treating the preambles of claims 1 and 26, including the terms “arbitrary object framework” and “that separates …,” as limiting.
For the reasons discussed herein, Microsoft respectfully requests that the Court adopt Microsoft’s proposed constructions of the disputed claim terms.
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VCSY View on previously submitted Microsoft Brief on Claims Construction VCSY v MSFT:
(HERE is a complete posting of the VCSY brief)
http://ragingbull.quote.com/mboard/boards.cgi?board=VCSY&read=214390
I. INTRODUCTION
Microsoft’s brief on claim construction is replete with misleading statements and misplaced arguments. It ignores material parts of Vertical’s definitions and the ‘744 patent itself. It provides an analysis that is purely result driven to either obtain claim constructions that would invalidate the claims of the ‘744 patent or allow Microsoft to avoid infringement of those claims. It incorrectly conducts a construction in light of the accused products and the prior art. Microsoft’s analysis is simply wrong.
The proof that Microsoft’s analysis is improperly result driven and out of context appears throughout Microsoft’s brief. On page 2, Microsoft alleges indefiniteness under 35 U.S. §112, paragraph 2. On pages 4-6, Microsoft appears to make another invalidity allegation, improperly suggesting that the invention of the ‘744 patent was on sale more than one year before the filing date of the application for the ‘744 patent. Both of these arguments not only fail because they do not have any legal or factual support, but they do not have any place in this analysis. Microsoft cannot evade the rules associated with summary judgment with these allegations.
In the first page of its brief, Microsoft appears to frame the issues of this claim construction while at the same time arguing that Vertical has construed the contested terms “in an abstract context based principally on alleged ‘ordinary meaning’ ….” Vertical has done no such thing. Vertical has supported its claim constructions exclusively with the intrinsic record -- the ‘744 patent itself, its words and its prosecution history. A simple review of Vertical’s opening brief on claim construction proves that Vertical followed the mandate of Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) and used the internal record; and that record firmly supports Vertical’s constructions.
VCSY's response to Microsoft's brief;
II. MICROSOFT PRESENTS AN INCORRECT
BACKGROUND FOR THE ‘744 PATENT
(VCSY response to Microsoft claims construction assertions)
Response - WebOS not '744
II. MICROSOFT PRESENTS AN INCORRECT
BACKGROUND FOR THE ‘744 PATENT
The discussion in Microsoft’s brief regarding the WebOS product, although misplaced, shows that Microsoft fails to appreciate just what the invention of the ‘744 patent is and how it differs from anything that preceded it. The prior art WebOS product is an example of procedural programming while the present invention is an advance on conventional object oriented programming developed a long time after the appearance of procedural programming.
Procedural programming, of which WebOS is an example, appeared in the 1950’s along with the appearance of computers. It is a rigorous approach to programming where the programmer writes the programming code in sequential steps, including subroutines that perform some function or provide some needed information. This type of programming proved unusable in many modern applications because as more people worked on a procedural program the sequence of steps became too long and unmanageable.
In the late 1980’s and early 1990’s, programmers developed a new way of programming called object oriented programming. This type of programming allowed programmers to separate the development process into modules called “objects” that interfaced with each other to provide the overall program. The program also could reuse the objects at various points in the program. But in this type of programming, the programmer still had to define the interface between a given object and the rest of the3 program. The programmer had to pass any variables that the object used or needed; and it had to pass them in a pre-determined order.
The invention of the ‘744 patent, as stated in Vertical’s opening brief, is an important advance in object oriented programming. It provides a smart connection or interface between an object and the rest of the program. The program need not pass any parameters that the object needs, because the object will determine those parameters on its own by using available information that it can obtain. If the programmer passes the parameters through the interface, an arbitrary object will use them; if he does not, it will determine them on its own with available information.
Microsoft seeks to improperly connect the WebOS product with the ‘744 patent by arguing that FIG. 5 of the ‘744 patent is “virtually identical” to an old WebOS diagram on another company’s website and by arguing that FIG. 5 shows an embodiment of the invention of the ‘744 patent. cont'd
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But WAIT!
There's more...
Continued:
II. MICROSOFT PRESENTS AN INCORRECT
BACKGROUND FOR THE ‘744 PATENT + III. MICROSOFT PRESENTS UNSUSTAINABLE CONSTRUCTIONS
But, FIG. 5 of the ‘744 patent, on its own, does not show or
disclose the invention of the claims of the ’744 patent. Also, the fact that the subject website used the word “object” does not, by itself, support any conclusion that WebOS was an object oriented product. The overwhelming evidence shows that WebOS was a procedural program that had absolutely nothing to do with object oriented programming or the invention of the ‘744 patent.
III. MICROSOFT PRESENTS UNSUSTAINABLE CONSTRUCTIONS
The ‘744 patent provides a large number of specific examples for elements such as “arbitrary objects,” “content,” “form,” “functionality,” etc. Rather than providing definitions for those terms, Microsoft does exactly what the Court of Appeals for the Federal Circuit admonishes against – it confines the terms and the associated claims to specific4 examples in the specification of the ‘744 patent. (See, Phillips, 415 F.3d at 1323). And, it does not use all the examples – just those that suit its purposes.
But, a person of ordinary skill in the art rarely confines his or her definitions of terms to the exact representations depicted in the examples and embodiments. Phillips, 415 F.3d at 1323. And, unless the patentee has demonstrated a clear intention to limit the claim scope using words or expressions of manifest exclusion or restriction, a court cannot confine the definitions to specific examples. Innova/Pure Water, Inc. v. Safari Water Filtration Systems, Inc., 381 F.3d 1111, 1120 (Fed. Cir. 2004).
The patentee of the ‘744 patent (Aubrey McAuley) not only did not demonstrate such an intention, he did the exact opposite. For example, with respect to “arbitrary objects,” the specification of the ‘744 patent states that “arbitrary objects”: “may include encapsulated legacy data…” (col. 2, lines 29-34, Exhibit A); “can include text file pointers..” (col. 3, lines 43-46, Exhibit A); and may include any combination of application logic and data desired by the developer.” (col. 4, lines 21-22, Exhibit A). This language clearly demonstrates an intent that “arbitrary objects” not be limited to the specific examples.
In fact, the most egregious example of where Microsoft took a permissive “can be” and turned it into a limiting definition is in its definition for “arbitrary objects” where it took the permissive sentence: “One arbitrary object can be easily replaced with another arbitrary object of another type” (col. 4, lines 40-41, Exhibit A) and turned it into the following restrictive expression: “that is interchangeable with another object of another type” in their definition (emphasis added).Microsoft has engaged in this type of gamesmanship throughout its claim constructions; and Vertical will outline those instances in the following text in the discussions for the specific terms. On page 22 of its brief, Microsoft coins its improper approach as “defining … by example.” Example, indeed.
(more at URL)
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A post by intheend with an article embedded:
Injunctive relief in this .Net infringement suit could have a pervasive effect, including mobile..
Mobile Developers Still Favor .Net and Java, But The Popularity Of Linux And Android Is Growing
Friday June 20, 2:08 pm ET
By Tricia Duryee
One way to look into the future to see which cell phones will be popular is by figuring out what platform developers are building applications for today. Developers tend to pick platforms that are easy to work with and present the biggest market opportunity. Likewise, if developers gravitate to particular platforms, consumers will be drawn to the same ones because they'll offer the greatest choice of applications. Today's favorites aren't surprising, according to Evans Data, which polled nearly 400 developers. The top phone manufacturer is Nokia (NYSE: NOK - News), while the top platforms, are Microsoft's (NasdaqGS: MSFT - News) .Net and Sun Microsystem's Java ME. This is interesting to note because the media is constantly writing about a handset war developing between RIM (NasdaqGS: RIMM - News) or Mac OS, which could indeed be brewing, but on a fairly small scale when you look at these developer figures. Still, it's worth noting that Linux, Android and Mac OS are all on the rise despite the fact that they are either still coming to market, or have relatively small market share.
Here's what the survey found:
-- Leading phone manufactures: 56 percent of respondents say they target Nokia devices, making it the leading handset manufacturer; Motorola (NYSE: MOT - News) and Sony (NYSE: SNE - News) Ericsson (NasdaqGS: ERIC - News) followed in popularity with 33 percent and 29 percent respectively.
-- Leading platforms: Microsoft's .Net Compact Framework and Sun Microsystem's Java ME are the top two platforms targeted by wireless developers today, garnering 42 percent each.
-- Other platforms: Also ranking in the survey were Windows Mobile 6.0 (31 percent); Linux, 25 percent; Nokia Series 80 (22 percent); Symbian (20 percent); Windows Mobile 5.0 (19 percent); Java (18 percent); Palm (NasdaqGS: PALM - News) OS (15 percent); RIM OS (14 percent); Mac OS 10 (8 percent); and Android (7 percent), according to InfoWorld.
-- On fragmentation: To be sure, one thing these figures confirm is that the market is very fragmented, but some platforms have such a large marketshare, it would be difficult for any to rise or fall through the ranks quickly. "Android is less than a year old, and interest in Mac OS for wireless only started with the iPhone, so those two platforms haven't had the same time in market as most," said John Andrews, Evan's CEO. "But both .Net Compact Framework and Java ME are very strong and well entrenched in the wireless development community, so it's hard to imagine any competing platform dislodging either of them any time soon."
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Did you follow that?
Some posts that tell me VCSY has a strong case and the other side knows:
214282 RB from tepe: I don't think they can afford an appeal if they lose. And they COULD lose.
