20080228

Linguistic Modals Used in Patents

The linguistic constructions collectively called "modals" have a limited, but important, place in the written portion of patents. Modals are generally found in the background and brief description of the invention (e.g., objectives of the invention) portions of the patent specification, but not generally in claim recitations.

Modals include verbs and adverbs that express the concepts of possibility, probability, necessity, obligation, and permission. Core verbs (i.e., "auxiliary verbs") expressing modality are: may, might, can, could, will, would, shall, should and must ["Adverbs and Modality in English", Hoye, 1997, 058221535-8].

Modals can also be described as showing emotion (e.g., imperatives) and, in some cases, predicting the future (e.g., probability and possibility). In the Background portion of patents, the application writer describes a general "need" for the invention and how this need "will" be fulfilled. Here are a few examples:

There has been a long standing need for ..., which this invention fulfills.
An objective of this invention is to be able to ....
This invention will ....

By contrast with predicting a future possibility or probability, patents describe actual inventions, i.e., a concept that has been (supposedly) reduced to practice and is expected to work as described in the detailed portion of the specification, including any necessary experimentation within the capability of someone of ordinary skill in the art.

In the detailed description of the invention, a general modal expression can be used to describe the possibility of using alternatives in an invention. This sentence/paragraph construction should be included to avoid overly limiting the legal protection only to the known embodiments described in the specification. Here are examples:
The device can include alternative .... (features, materials, arrangements, etc.)
The material can be modified by substituting ... with ... (features, materials, etc.)

In the one-sentence recitation of a patent claim, words describing a probability or possibility should be avoided, since they can render the claims as being unclear or indefinite under 35 U.S.C. 112.

Francis Lorin
siberkhem.com

20080224

Factors and Orders of Magnitude

Numerical ranges are a very important part of many patent claim recitations, and they can be pivotal in the determination of non-obviousness, one of the three requirements of patentability (see Graham v. Deere and 35 U.S.C. 103, 383 U.S. 1, 148 USPQ 459 (1966)).

However, factors and orders of magnitude express extreme ranges of numerical values.

A "factor" is a numerical multiplier of a subject numerical value. For example, a factor of 2 implies a doubling, a factor of 3 implies a tripling, and a factor of 10 implies an increase of ten times the subject value.

Also, an increase by a "factor of 10" implies an increase of an "order of magnitude". A factor of 100 increase implies two orders of magnitude. Thus, orders of magnitude are expressed by that are exponential powers of 10.

To bring orders of magnitude into some perspective, let us compare the size of nuclei to the size of atoms. This calculation has implications in various nuclear, chemical, biological, electronic, and physical fields. The size of atoms vary according to their atomic and molecular surroundings, i.e., their interactions with neighboring and nearby atomic and nuclear entities. Atoms can be in a state of bonding, e.g., ionic or covalent bonding, which can affect the atom size when compared to a ground or nonbonded state. Also, varying pressure or temperature can affect the size of atoms, e.g., states at the critical point of a material differ from those at supercritical or subcritical conditions, perhaps even if only a small amount.

By contrast, the size of the nucleus remains substantially constant regardless of chemical bonding or physical conditions of the surrounding. This is because the nucleus is surrounded by an atmospherical "blanketing" layer of electrons rotating and spinning around the nucleus. Chemical reactions have essentially no effect on the nuclei.

The sizes of atoms range 32pm for the smallest, He or Helium (a noble gas), to 225pm for Ce or Cesium (an alkali-metal). A picometer, pm, is 10E-12 m or one-trillionth of a meter. The corresponding nuclear sizes are 4fm and 12.8fm, based on the formula d=2.5(nuclear mass)(E(1/3)) [wikipedia.org, "nuclear size"]. A femtometer, fm, is 10E-15 or one-thousand-trillionth of a meter.

Thus, the relative sizes of atom to nucleus for He and Ce, are 8000:1 and 2000:1. Similarly, for the heaviest atom, U or Uranium, the corresponding atomic and nuclear sizes are 175pm and 30fm for a relative atom-to-nuclear size of 6000:1.

In order to better visualize these relative sizes, one might use a 100m soccer field as a comparative diameter (a "metaphor", say) for the atom, a relative order of magnitude of 3, equal to 1000:1 relative size, corresponds to a nuclear size of 10cm. For He, Ce and U, the relative nuclear sizes in this metaphor are 1.2cm, 5cm and 1.7cm!


Comparing results in terms of factors, or especially or orders of magnitude differences, when arguing unexpected results to support unobviousness of an invention, is quite difficult for a patent examiner or administrative judge to ignore and dismiss.

Other comparisons might be made with the sizes of leptons, such as electrons, or of neutrinos, or of quarks, or even of macro-objects such as galaxies or other celestial or astronomical groups. However, the electrons and neutrinos represent a size that might be beyond comparison with current technology.

If not already, then perhaps the concepts of factors and orders of magnitude should be added to students Standards of Learning (SOLs) for eighth graders in the U.S.? Also, adequate metaphors should be applied as well to enable the students to adequately visualize these kinds of relationships. Consider the trillion dollar U.S. Budget, terabyte and petabyte storage drives, the 10-100 trillion cells in a human adult, etc as further examples for new comparisons and metaphors. Or is it already so? At least one book has already been published that gives plenty of such comparisons for teaching school students.

Francis "Fran" Lorin
siberkhem.com

20080223

FORTRAN, IBM360/370, Carnegie-Mellon University (memories)

Back during my freshman and sophomore years at Carnegie-Mellon University (CMU, not to be confused with Central Michigan University), one of the undergraduate requirements was a course called "Introduction to Computing" (or something very close to it) - it was a basic computer course for anyone entering the colleges of engineering (Carnegie Institute of Technology) or science (Mellon Institute of Science).

The computer classes were held in Science Hall (now called Wean Hall) [http://www.flickr.com/photos/coffeelab/9639385/], where the computers were also located. The computer language was FORTRAN-WATFOR. The advanced computer classes that were offered included ALGOL, PL/1, APL, LISP and BASIC, and my local Explorer Club in Forest Hills borough (near Churchill, where I lived) at a Westinghouse payroll processing facility next to Route 376 (on Edgewood Road, off Brinton Road), was teaching COBOL to any junior and high school students who attended the meetings. A "borough" is a municipality in Pennsylvania (and a few other states) somewhat similar to a township. The various boroughs and townships throughout Pittsburgh had somewhat distinct characteristics resulting from the combination of architecture, topography, roadways, culture, cuisine, history, etc., that collectively give this city its own special charm.

Anyway, the IBM 360/370 mainframe computer could be seen behind a large glass window in the computer center from the area where the multipage perforated printouts were delivered with the recipient's computer name on the first page. The computer printouts were placed on shelves next to many Hollerith card punch machines. Each Hollerith card held one FORTRAN statement of up to 80 characters. We used rubber bands for small programs and show boxes for large ones. Once in a while someone would drop a box and find out this it could take almost as long to reorder the cards (especially if they were not numbered sequentially, which was optional at the time of coding) as it was to retype the entire program. That was always an expensive mistake!

Initially there was one card reader, then two, in the printout/card puncher room. After the stack of cards were read, we generally waited about an hour or more for the printout. In the late 1970's, a DEC PDP-10 and/or 11 minicomputer with tape reels was added to the repertoire, which added the programming language CP/M.

Later, in my junior and senior years, 1978-1980, a new room was built to house the new terminals that initially only provided a paper printout, then some terminals with small orange-text-only CRT monitors with no mice, and, after I graduated, large full-color LED monitors.

It took a second computer course (as a technical elective) called "Fundamentals of Computer Design" which used PASCAL. I absolutely loved PASCAL, especially since it used the BEGIN and END statements to make a program block, whereas in FORTRAN, incessant GOTOs and labels were always needed that made the FORTRAN outputs very difficult to read and complicated to debug.

When I took my third computer course, a required chemical engineering problem solving course called "Analysis, Synthesis and Evaluation II", I used PASCAL instead of FORTRAN, which all my classmates used. I used far less time to write and debug my programs, which included using Newton's Approximation Method in differential analysis.

One unique feature the FORTRAN offers, which is not found in other programming languages, even today (yes, FORTRAN is still alive and well!), is the use of the COMPLEX data type. This feature makes many mathematical calculation involving complex equations possible (e.g., optics analysis, alternating circuit analysis, etc.).

Ah, those were the days..

later, more about computing, including supercomputers, software, semiconductor processing, networks, interface devices and systems, and related patents, etc.

Francis "Fran" Lorin
siberkhem.com

20080213

Metaphor, Significance and Heirarchy in Patent Analysis

Three essential general characteristics must be considered when analyzing an inventive concept (to prepare a patent search or an application) or a patent (to prepare a validity search): metaphor, significance and heirarchy.

Metaphor: in linguistics, a metaphor is the comparison or substitution of a word having a representation in one subject area or environment, with a word from a different subject area or environment. One kind of metaphor that is commonly used in France (and elsewhere in Europe) is to describe something enjoyable as "delicious" regardless of whether any taste is actually involved, as in the expression: "That movie was simply delicious".

Thus, a "metaphor" is use of a word denoting a concept in one setting in another setting. This sets up a comparison between the two settings. For example, in the use of the word "delicious", one might extend the comparison between a taste experience and a non-taste experience, by describing an experience or situation as being "spicy" or "bland", thereby comparing the taste and non-taste experiences.

In patent analysis, the usual corresponding term for a metaphor is "analogy", leading to the comparative term "analogous". This term is frequently used to compare subject matter that has some similarity. For example, in a major court case in the early to mid 1800s, two patent holders had claims reciting the same invention! The invention was a still, or boiler, involved in the production of a liquid food product for consumption. One of the patents was for producing milk while the other was for producing beer. Although I do not have the citation for this court case (I am still looking for it), it was very important in that the US Patent Office was chastized by the court for failing to prevent this situation from occurring.

The response by the US Patent Office was to make sure that patent examiners considered analogous art areas in their search for the inventive concept. This also led to the creation of US Patent Classes directed to function-based rather than industry-based subject areas. For example, Class 99 (added in those early days in response to this court case) is directed to Foods and Beverages: Apparatus. Thus patent examiners were then instructed to search this class rather than the previously segregated classes directed to dairy and to beer production.

Significance: in determining patentability, an examiner seeks a significant feature, element or relationship on which to base their reasons for allowance of a patent application. The word "significant" is not actually used, but it is directly related to the concept of a "flash of genius" or "inventive feature". The significant feature and the field of application of the feature determine the search areas for the inventive concept.

Heirarchy: when comparing somewhat unrelated subjects or elements or features, the US Classification System has established an arbitrary heirarchy that ensures that a patent application goes to the most qualified patent examiner for examination, and that the issued patent is placed in the "correct" classification area according to heirarchy. A patent searcher can find this heirarchy given in the uspto.gov website. Thus, when an inventive concept applies to more than one subject matter or to different technical fields, the heirarchy should guide the searcher to the most appropriate classification areas to consider.

Francis "Fran" Lorin
siberkhem.com

20080210

Cross-Refences in Patent Documents

Patent documents are cross-referenced in the following ways:

1) U.S. Patents (since about 1971) provides a list of document citations on the front page; U.S. Patents earlier than 1971 (but after about 1950) list the cited documents on the last page; prior to about 1950, no single collection of cited documents is provided, but the text of the document can contain citations almost anywhere;

2) elsewhere in the U.S. Patent, particularly in the Background portion of the document (at the beginning of the text) various "prior art" are described, but other portions of the disclosure can cite documents, e.g., patents, application serial numbers, and technical papers as well;

3) in a foreign Patent document, prior art, e.g., patent documents, are usually found in the Background or first portion of the text of the document, but may be found anywhere in the text; and,

4) in WO Search Reports.

The espacenet.com website of the EPO provides a list of cited documents for any given patent document hit; as well as a link to a list of referencing documents (i.e., documents that contain a cite to the "hit"). The USPTO website search engine gives links for all front page US patent document citations (when the document is viewed in TEXT mode) and provides the field index "ref/" to use in the query box to list referencing US Patents.


Francis "Fran" Lorin
siberkhem.com

Patent Claim Analysis

Patent claim analysis is particularly important for determining the scope of patent protection. It is also necessary in performing validity and infringement (or "clearance" or "right-to-use", etc.) searches.

The best way to visualize the elements of a claim is to convert the rather bland claim text into a visually modified script, using various fonts, font and background colors, and text modifiers, such as using bold, italic, and underline.

The text of the claim can be obtain by scanning the claims of the documents (or obtained directly for US Patents and Published Applications from the uspto.gov Patent Search webpage using copy-and-paste). If the text is pasted into MS Word, the text can be modified using the "Find All" feature to locate all occurrences of a claim element in the claim recitations. Then the highlighted elements can be modified, e.g., bu changing the font color to red, or to both red and bold, etc.

This is a useful technique for more easily locating elements throughout the claim recitations.

The modified claim recitations can be printed using a color printer to scan to "character" of the claims, e.g., locating such essential words and phrases as "such as ", "whereby", "wherein", and "in order to".

Francis "Fran" Lorin
siberkhem.com

Two-phase Patent Search Process

The overall patent search process can be described as a two-phase procedure.

Phase I collects documents deemed to be related to the inventive concept being sought, using text and field queries obtained from the search requester, including keywords and keyphrases taken from the inventive description, and classification indices (i.e., subclasses in the USCS, subgroups in ECLA, or theme/facets in JPCS). This produces an initial document set.

Phase II extracts information from the initial document set to meet previously established confidence requirements for the search results. This phase includes performing verification and adequacy evaluations of the initial keywords/terms used, the initial classifications, cross-references, results of published search reports, prosecution histories, examiner search, and NPL search. This phase can result in a search of documents in newly identified classification areas. This phase results in a final document set ready for review and consideration in a search report.

The writer of the search report will provide the information and data necessary for anyone to be able repeat the search in its entirety and obtain the same or substantially equivalent results. The report should include at least these essential elements: a) an explanation in English (or the appropriate language for the search requester) describing the inventive concept as provided by the requester in sufficient detail to encompass the general technical field and all searchable features and elements; b) a list of the documents uncovered that appear to correspond to the inventive concept or parts thereof; c) an explanation of how the uncovered documents correspond to the inventive concept; and d) all search parameters and databases/engines used to obtain the uncovered documents, e.g., classifications, keywords/terms, inventor names, etc.

Francis "Fran" Lorin
siberkhem.com
siberkhem.blogspot.com

20080207

Regular Expressions - Regex, POSIX

A regular expression in computing is a way of describing in a concise and accurate manner, the presence of particular characters, words, phrases, and other textual information [wikipedia.org: "regular expression"].

Various symbols found on US-English keyboards, are used to describe the presence or absence of certain text characters in a given text string. The following are examples of the use of these symbols and what they mean:

vertical bar (or "pipe"), | : means the item on either side is an alternative, e.g., [flavor | flavour] means that EITHER "flavor" or "flavour" occur in thi subject text string

parentheses, ( ) : can be used to more particularly specify the alternatives by grouping the changes, e.g., [flav(o|ou)r] represents "flavor" or "flavour"

question mark, ? : indicates zero or one of the previous text element, e.g., [flavou?r], again, represents "flavor" or "flavour"

asterisk, * : indicates zero or more of the preceding element, e.g., [flavou*r] represents "flavor", "flavour", "flavouur", "flavouuur", etc. - note that this particular construction produces non-sensical words

plus sign, + : indicates one or more of the preceding element, e.g., [flavou+r] represents "flavour", "flavouur", "flavouuur", etc. - again, non-sensical words can be produced in this particular construction.

These constructions (see Regular Expression books and literature) are an inherent aspect of the mathematical field of Set Theory. For example, instead of using a vertical bar for alternation, a regular expression can list the intended query items with quoted items separated by commas, e.g., ["flavor", "flavour"] represents "flavor" or "flavour". Alternatively, the mathematical symbol for a union of sets can be used: e.g., {"flavor"} U {"flavour"} represents the same expression.

Thanks to the early efforts of Stephen Cole Kleene and Ken Thompson in the 1950s and later, various computer languagees were developed to handle pattern matching and searching a given text for particular text string, e.g., SNOBOL. Various text editors were created that had built-in capability for searching "regular expressions", e.g., QED, grep, expr, AWK, Emacs, vi, and lex. Computer languages such as Perl and Tcl used regular expressions from a library written by Henry Spencer. More recently, PHP and Apache HTTP Server have regular expression functionality, especially in handling database queries, the primary software engine for patent and other online searches.

Even more recently, DTD syntax and XML are using regular expression functionality for consistency and for data specification and location.


In place of Regular Expressions, "Nondeterministic Finite Automata" or NFAs, can be used, but this format does not appear to have the same general support in existing software systems.

Finally, POSIX Basic Regular Expressions (or "BRE") and Extended Regular Expression (or "ERE") are defined by IEEE as standards.


Francis "Fran" Lorin
siberkhem.com