Tablet computers and virtual teapots were on the Federal Circuit’s list of topics last week. Let’s see what happened!
The Calm Before the Storm
Typhoon Touch Technologies, Inc. v. Dell, Inc., No. 2009-1589 (Fed. Cir. Nov. 4, 2011) (Chief Judge Rader, Circuit Judges Newman and Prost)
After losing at the district court on both infringement and validity contentions, Typhoon hoped to take its competitors by storm at the Federal Circuit. Instead, the court rained on Typhoon’s infringement parade. But the court put a little of the wind back into Typhoon’s validity sails.
Typhoon accused 8 major computer technology companies, including Dell, Toshiba, and Apple, of infringing its patents covering portable touch screen computers—essentially tablet computers like Toshiba’s Thrive® and Apple’s iPad®. Based on its construction of several claim terms, the district court found that Dell and the other defendants didn’t infringe Typhoon’s patents. The district court also said one of the claims is invalid for indefiniteness (meaning the claim is too vague for a computer programmer to understand).
At the Federal Circuit, Typhoon argued that the district court’s claim constructions were wrong. The district court’s constructions required the tablet computers to actually do what the claims say they do. Typhoon argued that its competitors’ tablets only need to be able to be programmed to do what the patent claims say they do. Relying on the patent’s specification and the prosecution history, the Federal Circuit sided with the district court and said that “could” isn’t good enough for these claims. The court said that, in this case, an infringing device “would” be able to perform the claimed functions without being modified or adapted. These devices, however, don’t meet that requirement. So the Federal Circuit kept the district court’s ruling that the defendants’ tablets don’t infringe.
The Federal Circuit came out the other way on the invalidity question, though. The invalidated claim uses the phrase “means for cross-referencing,” referring to the way the device matches up answers to questions with information stored in data libraries. The district court said “means for cross-referencing” is too vague to be valid because the patent doesn’t divulge the exact algorithm that Typhoon uses.
The Federal Circuit said “means for cross-referencing” is clear enough. The court said that the patent doesn’t have to disclose the computer code to be a defined algorithm. The patent only has to “identify a step-by-step procedure for accomplishing a given result.” (See page 16.) The patent can describe the process using words, charts, formulas, or any way that explains all the steps of a process. In other words, an algorithm doesn’t have to be a literal “algorithm” to be sufficiently clear for validity purposes. (Whether the New Kids on the Block’s “Step By Step” procedure for getting to a girl would qualify is an open question.)
The court said that Typhoon’s patent specification describes a four-step method of cross-referencing that is detailed enough that a computer programmer would understand how to follow it. So, the Federal Circuit decided that the “means of cross-referencing” claim is valid.
Can you forecast the outcome of other indefiniteness cases from the Typhoon opinion?
Tea with Bilski
Fuzzysharp Technologies Inc. v. 3DLabs Inc., Ltd., No. 2010-1160 (Fed. Cir. Nov. 4, 2011) (Judges Bryson, O’Malley, and Reyna) (per curiam) (nonprecedential)
When you look at a teapot from the side, how much can you see? Probably the spout, the side, and the handle. How about if you look at the teapot from the back? Can you still see the spout?
Now, if you were going to make a computer-generated, 3-D image of the teapot, how do you calculate what to show? Well, it depends on the angle. You might show the handle; you might show the spout. Have I gotten “I’m a Little Teapot” stuck in your head yet?
The Federal Circuit used the teapot example to explain the technology in this case: a method for 3-D computer graphics to simplify how many computations a computer needs to run. The method is based on the parts that are visible when you look at an object, like a teapot, from a particular angle.
The district court found, in December of 2009, that the method didn’t qualify for a patent under the first section of the Patent Act, which covers what can be patented. The district court applied the “machine-or-transformation” test from the Federal Circuit’s 2008 decision, In re Bilski. This test requires patent method claims (claims that cover how to do something) to either (1) be tied to a particular machine or (2) transform something from its current state into a different state. The district court said that Fuzzysharp’s patent only required a general computer, and that wasn’t good enough to get a patent under the machine-or-transformation test.
Fast forward to June 2010. The Supreme Court issued its decision in Bilski v. Kappos, which said that the machine-or-transformation test is too narrow. According to the Supreme Court, that test can be helpful, but it shouldn’t be the only tool courts use to evaluate whether certain methods can be patented. (The Court didn’t give much guidance on what other tests or tools courts should use, though.)
Because the Supreme Court’s decision changed the law, the Federal Circuit sent the case back to the district court to determine if the patent is valid under the new “machine-or-transformation-PLUS” test.
Trying to apply the Supreme Court’s Bilksi decision could feel like having tea with the Mad Hatter. Hopefully the district court can sanely follow Bilksi when it sees this case again.
Read the tea leaves in the Fuzzysharp decision.