> and repeatedly rejected until the PTO folded under seven continued amended petitions in 2010
Also called "prosecution". This is, literally, how every patent is prosecuted at the USPTO: the applicants file claims as broad as they dare, examiners reject using prior art (or other statutory reasons), after which the applicants amend claims to sidestep cited reasons, and rinse-and-repeat, until the applicant finally presents a set of claims that the examiner cannot reject. It is not "folding", it is being procedurally unable to issue a rejection.
The only catch is that examiner time is not free, so each attempt costs some thousand USD, and gives you one non-final rejection followed by a final rejection -- which is, of course, not final, because the applicant can just pay the requisite fees to continue examination. It's not like the applicant gets multiple bites at the apple for free.
> Applicants are encouraged to reword claims to cover technology invented by others since the original application.
Funny, but no. The examiner would like nothing more than getting rid of a case for once and for all, and they can't make frivolous allowances either. (Which is why you get cases like the one above where the applicant had to try seven times to get an allowance.) They can very much make frivolous rejections, though, and they do. There really is no feasible recourse for those other than coughing up more fees and forging on.
The reality of continuations is, applicants have the right to reword claims as long as the original supports the claims, and many applicants exercise that right. Because, if they find something out there that is described in their patent but sidesteps their claims, they'd be outta luck. The Doctrine of Equivalents goes only so far, especially when juries are involved.
Continuations can be abused, but it does not mean they always are. Unless new matter is added, the new claims must still be constrained by the spec of the original patent. (If the new claims refer any new material, their priority dates effectively change to the date the new matter was introduced, automatically bring into play all the new prior art introduced in the meantime as well.) So the claims in continuations are still judged in context of the prior art present at the time the spec was filed.
>The '462 patent ... It does not describe how to build such a device, of course, just that one could exist
I dunno, the figures look pretty descriptive to me:
I agree, however, that it is very instructive to read through the claim construction arguments, just to get an idea of how these things shake out. It is all technical and reasonably easy to grasp, so if you have a few minutes free, go through a few pages of this. (Any more and you run the risk of dozing off.) I couldn't find examples of "abuse of software and networks", though.
Also called "prosecution". This is, literally, how every patent is prosecuted at the USPTO: the applicants file claims as broad as they dare, examiners reject using prior art (or other statutory reasons), after which the applicants amend claims to sidestep cited reasons, and rinse-and-repeat, until the applicant finally presents a set of claims that the examiner cannot reject. It is not "folding", it is being procedurally unable to issue a rejection.
The only catch is that examiner time is not free, so each attempt costs some thousand USD, and gives you one non-final rejection followed by a final rejection -- which is, of course, not final, because the applicant can just pay the requisite fees to continue examination. It's not like the applicant gets multiple bites at the apple for free.
> Applicants are encouraged to reword claims to cover technology invented by others since the original application.
Funny, but no. The examiner would like nothing more than getting rid of a case for once and for all, and they can't make frivolous allowances either. (Which is why you get cases like the one above where the applicant had to try seven times to get an allowance.) They can very much make frivolous rejections, though, and they do. There really is no feasible recourse for those other than coughing up more fees and forging on.
The reality of continuations is, applicants have the right to reword claims as long as the original supports the claims, and many applicants exercise that right. Because, if they find something out there that is described in their patent but sidesteps their claims, they'd be outta luck. The Doctrine of Equivalents goes only so far, especially when juries are involved.
Continuations can be abused, but it does not mean they always are. Unless new matter is added, the new claims must still be constrained by the spec of the original patent. (If the new claims refer any new material, their priority dates effectively change to the date the new matter was introduced, automatically bring into play all the new prior art introduced in the meantime as well.) So the claims in continuations are still judged in context of the prior art present at the time the spec was filed.
>The '462 patent ... It does not describe how to build such a device, of course, just that one could exist
I dunno, the figures look pretty descriptive to me:
http://patentimages.storage.googleapis.com/US7120462B2/US071...
http://patentimages.storage.googleapis.com/US7120462B2/US071...
I agree, however, that it is very instructive to read through the claim construction arguments, just to get an idea of how these things shake out. It is all technical and reasonably easy to grasp, so if you have a few minutes free, go through a few pages of this. (Any more and you run the risk of dozing off.) I couldn't find examples of "abuse of software and networks", though.