[veraEFF]

hi there! no intentional mischaracterization at all. I posted below but I'll mention it again. The patent owner actually originally, at the outset of the litigation, included "1" in their definition of "integer." Later, they changed it to be only "n>=2."

https://twitter.com/vranieri/status/647179711563431940

I've seen this before (on BOTH sidees, to be clear): someone changes a plain meaning of a term to avoid losing. Not sure that's what's happening here, but it looks like it.

edit to add: Because of some confusion about the purpose of this post. It is to point out the flaws with the current system.

Words in patents are twisted "like a nose of wax" in order to arrive at a particular outcome (and as I mentioned, both patent owners and alleged infringers do this on occasion). A patent system that allows this then completely undermines the public notice function of patents. A patent should tell the public not only what the patent owner claims to own, but also what is free for others to use.

That failed here. Someone who wants to avoid infringement, on reading this patent, can't tell what they can and cannot do.

In the end, parties are spending thousands (likely millions) of dollars to figure out what "integer" means. Why? Because the patent owner, who was in the best position to tell the world what she invented, used a word that has a very precise meaning when other words could have avoided all of this.

[monochromatic]

If they changed their position, that seems more telling to me than the "hurr, durr, they think integers start at 2" tone of this article. (Although it may simply have been that it wasn't given much thought initially.)

In any case, the EFF loses credibility when it overstates the position to make someone look more ridiculous than is warranted.

[voltagex_]

Whoever's writing the articles over there has been doing that more and more recently.

The EFF does great work, but they need to dial the clickbait-o-meter down a bit.

[gohrt]

Thanks for clarifying. The point that matters here is, word games aside, what is the legal difference between "the integer can be 1, 4, ..." and "the integer can be 4,..." (excluding 1)

As someone who has ordinary skill in mathematics, (and cperciva above, who has extraordinary skill in mathematics, agrees), I see the use of "integer multiple" here not as a unambigious plain meaning at all. It's akin to saying "This patent covers the use of lasers in blah blah" -- did the patent intend to include a case where exactly one laser is used? The answer depends on context -- real lawyering, not language-lawyering.

[veraEFF]

Yes, as you'll see in the post, we note that patent owners can redefine words, and that's ok.

But where the issue comes up is if that's not clear. Patents are supposed to put people on notice of what is--and conversely, what is not--free for others to use. Here, by using the word "integer", which has a very precise and definite meaning in math and science, that conveys certain information.

Part of the problem with the current state of our patent laws is that claims are not clear and the public isn't on notice of what the patent owners are claiming. This discussion is a good example of that. If the patent owner was clear in what they meant, would we be having this discussion. Would the patent owner itself have claimed that "n=1" infringes if it was clear that n>=2?

Mathematics precisely defines the term "integer." Mathematics also provides quick and easy ways to exclude "1". None of that was done here, to the detriment of the public's notice of when they were infringing.

Patents, despite how esoteric they have become, are ostensibly written for those with skill in the art. If we're all having problems understanding what, exactly, the patent owner meant (including the patent owner!) there's a problem.

*edited for clarity

[kazinator]

> Yes, as you'll see in the post, we note that patent owners can redefine words, and that's ok.

They can do that in this case if their only use of the word "integer" in the entire spec is in reference to this parameter, and if it has been otherwise clear all along (at least "to someone skilled in the art") that it doesn't make sense for the parameter to be less than two.

If I write a spec in which some number occurs that can only be 1, 2, 3 or 4, and it is the only integer, and the constraint to those four values is clear all along, there is no harm with later adding a glossary item which says "integer: in this specification, a noun denoting one of the values 1, 2, 3 or 4". It just reflects the fact: the only use of integer in the spec is in reference to a value which is one of these four.

If the 3 case infringes on some other patent, but the 1, 2 and 4 cases do not, what's wrong with reducing the scope of the patent by removing 3, and adjusting the glossary item?

Of course, patent holders shouldn't have infinite latitude in remotely manipulating the meaning of the text at will by means of shifting glossary entries.

[Natsu]

> there is no harm with later adding a glossary item

When are you adding this? If you do that when obtaining the patent, all is well and good.

If you do that in court, after saying otherwise, as has been done here, there's quite a lot of harm. People have a right to know what is and is not patent infringement, as they're on the hook for big money.

If you can just change what your patent does and does not cover, on a whim, when fishing for money in court, there's quite a lot of harm in that. Millions of dollars worth of harm. Nobody had any way of knowing what idiosyncratic definitions of words you were using and yet everybody else was responsible for not infringing upon your patent.

[crucini]

OK, it does sound like CW misunderstood their own patent in an earlier filing. And maybe that technically makes them lose the point.

But CW's current filing contains this:

According to the patent, “The MAC-e PDU is sent to the physical layer every n*TTI, instead of once every transmission time interval (TTI).” If the integer were to be 1, the MAC-e PDU would be sent to the physical layer once every TTI, which is expressly excluded by the specification.”

In other words, the specification excludes the n=1 case, and the n<1 cases are nonsensical.