CAFC Chronicles: Costly Tales of Claim Construction Fails

The difference between getting claim construction right and getting it wrong is the difference between a valid patent and an invalid patent – and the difference between millions of dollars awarded from infringement decisions vs. ending up with a worthless piece of paper.

In this month’s episode, Dr. David Jackrel, President of Jackrel Consulting, leads a discussion into three real-world applications for patent claim construction, as tested and decided upon by the United States Court of Appeals for the Federal Circuit. This is the highest court in the land under the Supreme Court for handling intellectual property disputes – and establishes much of the legal precedent the patent world has to go on … for better and for worse. The panel dissects the claims for each case, discusses the court’s analysis, and provides tips and strategies for more effective claim drafting in light of the strengths and weaknesses of the litigated patents.

Dave is joined today by our always exceptional group, including:

⦿ Dr. Ashley Sloat, President and Director of Patent Strategy at Aurora
⦿ Kristen Hansen, Patent Strategy Specialist at Aurora
⦿ Ty Davis, Patent Strategy Associate at Aurora

** Mossoff Minute **

In this month's Mossoff Minute, Professor Adam Mossoff discusses the ill-advised price control mania presently sweeping the globe and its predictable impacts on free markets and innovation if we continue down the current path we’re precariously walking.

** Discussed Links **

⦿ Aurora hiring links: https://www.aurorapatents.com/careers.html
⦿ Claim Strategies Episode (Part 1): https://www.aurorapatents.com/blog/patent-claims-the-name-of-the-game
⦿ Claim Construction Episode (Part 2): https://www.aurorapatents.com/blog/claim-construction
⦿ Patent Anatomy Episode: https://www.aurorapatents.com/blog/new-podcast-patent-anatomy
⦿ Patent Anatomy Blog Post: https://www.aurorapatents.com/blog/patent-anatomy-whats-in-a-patent

** Follow Aurora Patents **

⦿ Home: https://www.aurorapatents.com/
⦿ Twitter: https://twitter.com/AuroraPatents
⦿ LinkedIn: https://www.linkedin.com/company/aurora-cg/
⦿ Facebook: https://www.facebook.com/aurorapatents/
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⦿ TikTok: https://www.tiktok.com/@aurorapatents
⦿ YouTube: https://www.youtube.com/@aurorapatents/

Thanks for listening! 

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Note: The contents of this podcast do not constitute legal advice.

Transcript

[00:00:00] Josh: G'day and welcome to the Patently Strategic Podcast, where we discuss all things at the intersection of business, technology, and patents. This podcast is a monthly discussion amongst experts in the field of patenting. It is for inventors, founders, and IP professionals alike, established or aspiring. And in today's episode, We're talking about Costly Tales of Claim Construction Fails.

This is the final episode in a three part series focused on the fundamentals of patent claims and claim construction. Part 1 discussed the basics of claims and claim strategies. Part 2 laid down the essentials around claim construction. And this final episode in the arc is a very practical application of it all, illustrative Federal Circuit Court of Appeals patent cases that are chock full of actionable claim drafting insights.

As you'll hear today, the difference between getting this right and getting it wrong is the difference between a valid patent and an invalid patent, and millions of dollars awarded from infringement decisions versus ending up with a worthless piece of [00:01:00] paper. Life is too short and legal bills are too costly to make all of your own mistakes, so fortunately for us and future selves, we get to learn these legal lessons vicariously.

In this month's episode, Dr. David Jackerel, President of Jackerel Consulting, leads a discussion into three real world applications for patent claim construction, as tested and decided upon by the United States Court of Appeals for the Federal Circuit, or CAFC for short. This appeals court is the highest court in the land under the Supreme Court for handling intellectual property disputes and establishes much of the legal precedent the patent world has to go on, for better and for worse.

The panel dissects the claims for each discusses the court's analysis, and provides tips and strategies for more effective claim drafting in light of the strengths and weaknesses of the litigated patents. Dave is joined today by our always exceptional group of patent experts including Dr. Ashley Sloat, President and Director of Patent Strategy at Aurora, Kristen Hanson, Patent Strategy Specialist at Aurora, and Ty Davis, Patent Strategy Associate, also here at Aurora.

I mentioned earlier that this episode is the final [00:02:00] act in our three part series focused on claims. As such, it builds on a lot of foundation laid down in those earlier episodes. If you haven't listened to them yet, we highly recommend that you do. I'll be sure to include links in the show notes. That said, especially for those newer to patenting, I do want to provide a quick primer with additional context around some of the critical terms that come up in the panel discussion.

First of all, claims. Claims are the fundamental building block of a patent application. Like the property boundaries in a deed, patent claims map out the boundaries of the invention that the inventor believes she's entitled to protect. Building on that, claim construction The primary focus of this episode is a process in which courts attempt to interpret the meaning and scope of the claims of a patent.

It's effectively reconstructing what an inventor and their practitioner meant way back when they drafted the patent application. Oftentimes, we think and talk mostly about the patent office and examiners as a primary audience for your patent. But at some point down the line, your patent may be tested in courts and interpreted by attorneys, judges, and juries, and sometimes surprising and highly [00:03:00] nuanced language specific decisions made in context traps either set or avoided while drafting now will make all the difference later.

Another important piece of patent anatomy that comes up in the conversation is the written description. We've talked about this a lot on the podcast, but the fundamental deal of the patent system is trading and enabling public disclosure for your exclusive rights. The written description and drawings are meant to fulfill the enablement requirement by aiding in understanding the invention.

Aimed at enabling someone skilled in the art to practice the invention without undue effort. This is as close as it comes to the recipe of a patent application. And speaking of someone skilled in the art, that's another important concept to grok for today's conversation. Often referred to as a fazida, FAUCETA, or POCETA, depending on who you ask, is essentially a term used to describe an imaginary person who serves as a legal standard audience in terms of the enablement and obviousness requirements for patentability.

In other words, when you're describing how to make and use the invention, not just anyone in the public would be expected to understand that description and put the invention to [00:04:00] practice. Instead, the audience for the requirement is a person having ordinary skill in the art, or sort of your average competent person in a given domain.

It's also a requirement that the invention would not be considered obvious by this hypothetical person. And if you'd like to dig into even more context around how all this maps out and how things like claims and the specification work together in the patent document itself, please check out our Season 1 episode or long form blog post on Patent Anatomy.

Links are in the show notes. It's impossible to overstate the significance of these concepts in terms of crafting valuable, assertable, and defendable intellectual property rights. So much so that while this episode marks the final installment of our focus directly on claims, in the coming months we will be building on the framework laid down by this arc to go much deeper and wider on what it means to create quality patents and how the decisions you're making now could play out later on, not just in Article III courts like the CAFC, also in venues like the PTAB and International Trade Commission when asserting or defending your claimed property rights.

Now, speaking of property rights, that's a great segue to the [00:05:00] property rights guru himself Professor Adam Mossoff in the next installment of the Mossoff Minute, a monthly segment that builds on our Pet and Wars episode and features short conversations with Professor Adam Mossoff providing updates and quick takes on movements in patent reform, significant court rulings, innovation policy happenings, and occasional Star Wars references.

In this month's Minute, Adam discusses the ill advised price control mania presently sweeping the globe and its predictable impacts on free markets and innovation if we continue down the current path we're precariously walking. 

[00:05:29] Adam Mossoff: As many people know who watched President Biden's State of the Union address, he has become incredibly interested in prices and price controls actually have been a hot topic for the innovation industries and the creative industries for the past year.

There have been explicit proposals to impose price controls on patented drugs, um, through multiple statutes and regulatory measures. There have been price controls that have been proposed to be imposed on the deployment of books and other works in digital format at the state level. And the European Union is proposing to impose price [00:06:00]controls on our telecommunications technologies that we use in our mobile devices.

This is really important. Because economists have long recognized price controls disrupt the ability of innovators and creators to deploy assets in the marketplace efficiently, lowering prices and bringing even more products and services, especially the new products and services to consumers that drive economic growth and create a flourishing society.

In fact, it's been a key part of the United States approach to intellectual property that we've recognized. Intellectual assets and creative works and in new technologies as property rights that can be freely deployed in the marketplace, both for economic reasons, as well as moral and legal reasons, you have a right to your property, you have a right to contract with it just like every other person in society.

And this has been a key feature that has driven the US innovation economy for the past 200 years, and has made our IP system a model for the rest of the world. And our economy as well, a model for what is possible for the entire global innovation economy. [00:07:00]

[00:07:00] Josh: Thanks, Adam. We're also publishing clips from the Mossoff Minute as short form videos on Instagram Reels, YouTube Shorts, and TikTok.

Well, at least for now. You can check out these shorts and follow us and Aurora Paddons on all three platforms. And one final but very exciting announcement before handing things off to Dave, Aurora is hiring. Do you want to work where you want, when you want, with a great team, on cutting edge innovations, and even get the opportunity to join us on this podcast?

Then please listen up. We're hiring for not one, but two very important positions right now. A biomedical sciences patent agent to help with patent portfolio management, application drafting, prosecution, and strategy, and a position for what we're calling our patent paralegal and remote office hero.

Someone who can help with patent portfolio and deadline management, patent application and prosecution filings, and business administration. These are salaried, fully remote positions with flexible work weeks and benefits. In a time when so many employers are calling their workforce back into the office for hybrid setups, there's no better time to fully break the office chains and join a team that has [00:08:00] been and always will be fully distributed.

Learn more and apply at aurorapatents. com forward slash careers. We'll also include that link in the show notes. And now without further ado, take it away, Dave. 

[00:08:11] Dave: Today, I'm going to talk about some recent CAFC appeal board case law. Uh, these are all cases that the, uh, CAFC looked at in 2022 and they had some aspect that was related to claim construction, not, it wasn't necessarily always like sort of like the main point, but I thought they all had some interesting.

Um, information about how the board is looking at claim construction, you know, in, in, in recent times, and they're all from like the last year. So the first one is Michael Kaufman versus Microsoft. And, um, this 9 8 1 patent had a 2, 000 priority date. Kauffman sued Microsoft for infringement and was awarded 7 million in damages.

So, uh, [00:09:00] you know, um, both parties, uh, not surprisingly, appealed. Um, and, but on appeal, the infringement was affirmed. So, what did Michael Kauffman do so well in his patent? How, how, we can, let's, let's see. Let's see how, how this, how this, Patent was crafted so well that it got him 7 million in damages from Microsoft.

Um, Yes, but what were 

[00:09:22] Kristen: his legal fees? What's the net of that? 

[00:09:25] Dave: Sorry, um, Kaufman claims Uh, a method in this case for automatically generating an end user interface for a database using a server. Um, it's interesting though that the term automatic only appears in the preamble. So that's kind of a sticking point.

We'll talk about that a little bit more. And, um, the main claim construction issue was actually discussed at the district court level. And it was quote unquote resolved. But on appeal, Microsoft argued [00:10:00] that the claim construction should have been better resolved, but the appeal board, the federal circuit refused to hear the argument because they said Microsoft preserved to fail, failed to preserve that issue, um, uh, throughout the process.

So it wasn't actually talked about an appeal, but we'll talk about what their arguments were and how that came down at the district level. Um, but kind of the first thing, which was the main point on the appeal was that. Microsoft argued that its product required substantial user input and therefore was not automatic.

Um, the federal circuit though found that the claim language permitted some human actions. So it's a long claim, but um, it's a method for operating a server comprising a processor for automatically generating an end user interface. And then there's these steps A, B, and C. Um, the word automatic doesn't turn, doesn't show up in those, uh, um, um, any other clause of the claim, [00:11:00] um, in the description in, in discussion of the, uh, from the, from the court, um, the opinion.

The description they felt made it clear that yes, it's the phrase automatically generating does not require every single step of that to be done automatically, there can be some user input, such as prompts and things like that, that then cause this in this, um, And user interface to be generated. And that still counts quote unquote as automatic.

So that was kind of the main thing. That's why the, uh, infringement was upheld. Um, but what were the plan construction issues in this case? So at the district level, um, Microsoft argued that it didn't infringe because its product has modes that do not include all of the processes recited. So the claims actually say that this method, this This thing, um, has a set of [00:12:00] modes for interacting with a database.

And the modes include create, retrieve, update, and delete modes. And what's interesting here, and this is sort of the big takeaway, What the district court found and, you know, the CAFC, uh, didn't, didn't consider the argument, what the district court came down on and said was that in this case and can include, or so even though they said it has to include, create, retrieve, update, and delete modes, really what that.

Really judging by all of the information we have, that could mean create, retrieve, update, or delete modes, which is kind of interesting. And, you know, we'll talk about, well, we'll, we'll get into the nitty gritty here, but I think this is a really good example about how you can take like a top line conclusion from a cord case and, and, and.

It would be incorrect to apply that across the board in every situation. So and doesn't always [00:13:00] possibly include or, but I think what it's proper to say is that and can sometimes include or and why so what why did they say that in this case? Well, um, the CAFC Says that the spec repeatedly used the word and in ways that clearly included or and this is like I think a really big part of it is that the sole embodiment, the only working embodiment described in this patent does not include all four of those modes.

So what the district court said is that we evaluate the claim language with a strong presumption that it encompasses the situation where a mode display integrates some, but not all of the enumerated processes. And they go on to say that we held that we were not required to interpret. Um, according to its most common usage in the dictionary, rather, we must interpret the term to give [00:14:00] proper meaning to the claim in light of the language and intrinsic evidence.

So they're saying, while Microsoft has noted that software could be written to include all these processes in display mode, even a process that has no sensible place in a particular mode, um. They're saying the court is saying that any skilled artisan would find such inclusion nonsensical, and that Microsoft didn't provide any arguments that said that would be sensible, and therefore, they say a plausible reading of the claim language, especially when so interpreted the language would only read it.

Uh, would read out. Sorry. The only embodiment. So Microsoft was trying to argue that no, this is and it has to be. And this thing has to have all four display modes. And the court says, doesn't really make sense. It's nonsensical to have all of those modes in all of these different options. And the only working embodiment.

doesn't have all of them, so we disagree. We don't think that the [00:15:00] term and should be interpreted as and. We think the term and should be interpreted as or. It's very strange. I feel like it's Not something I would promote relying on all the time. Um, but it's, it's an interesting, um, reminder about how important the embodiments are and the specification and the written description support.

And, you know, maybe in prosecution, this should have gotten a one 12 or should have, it should have come up, um, or something, you know, but, um, in this case, yeah, you know, this is this, it led to this interesting conclusion. 

[00:15:35] Kristen: So how would we fix this? Do we go back? I mean, you can't fix it after the fact, but how would you fix this to not have this happen to you?

Do you, could you fix this by making sure when you're describing your embodiments, you've copy pasted a claim in there so that you get everything in that embodiment in, everything from that claim in that embodiment? You know, it's so interesting that you 

[00:15:59] Dave: ask about [00:16:00] what should you do? 

[00:16:02] Kristen: Yeah. I 

[00:16:02] Dave: mean, yes. I mean, so wait, let's let me just back up a second because in this case, it kind of saved them that they didn't do that properly.

I mean, Microsoft 

[00:16:17] Ashley: properly, right, they might have, you know, I guess I would love to know, like, When was this language added? You know, was it added during prosecution or was it just in there from the beginning? You know, because you presumably if they added in the representing, navigating and managing or retrieve Yeah.

Retrieve if they, and delete during prosecution, presumably that would've been construed more narrowly. 

[00:16:39] Dave: Agreed. Exactly. That was my, I, I dunno for sure, but that's what I was assuming that, yeah, it must not have been 

[00:16:44] Kristen: right. Bounced entirely. It would be bounced entirely in Europe because your main and only soul embodiment doesn't cover everything you've tried to claim and they won't allow the amendment.

[00:16:57] Dave: Right. I think it's really interesting. I mean, [00:17:00] what, what would we be saying right now? If the court invalidated this patent for lack of support, because it says you have to have these for display modes and, um, it's not supported by your specification. You don't describe how you would do that. It's nonsensical, uh, et cetera, et cetera.

I, I, I, I think that could have been a reasonable thing for the court to do, but I think in this, I don't know if they were being Kind, that might not be the right word, but they were being a little bit liberal, maybe, with um, claim construction, with how to construe the word and. 

[00:17:35] Ashley: Yeah, I mean, the part that concerns me about this, because I actually think, whether being kind, like you said, or not, I don't know if it was the right decision, because I don't know, but it also concerns me, this, I understand that, you know, claim construction depends on, you know, one of skill near the time of filing and the, um, you know, the dictionary word and what the term meant at the time and what the specs, you know, it's all these factors, [00:18:00] right?

That what does the term mean? But, you know, you have clients where their client, their technology changes over time. And in theory, claims are supposed to be given their broadest reasonable interpretation, you know, in light of all these things, right? And so as practitioners, we sometimes reach, we're just literally talking to a client about this.

Different times you reach back into a specification and say, yes, your technology has become this. But there's some broader prevailing themes here that we can pull on to get you a claim that covers this later thing, even though it's not exactly what was here. But, you know, that was kind of the beauty of the claim, the patent world.

Right? But now they're kind of saying, because what if. What if in their minds, obviously they didn't write this down cause it never came up in discovery, but what if at some point they said, you know, our future goal of the product, even if it's nonsensical, a future goal was to have something that creates retrieves updates and deletes and represents navigates and manages, [00:19:00] like that's what we want to cover, something we didn't deserve, 

[00:19:06] Dave: you know, I don't know.

I think that's a really key question. And I think that kind of, In a way is the, is how I would answer Kristen. Your original question is what, what should the patent practitioner have done here? I think they should have clarified with the inventors. What actually is the invention? Like, do you really intend to have all four of these modes in everything here?

And if not, then this and word isn't capturing what you really intended. So the claim is not drafted properly to capture the actual invention, which is what the court, how the court interpreted it. In the end, right? Um, so, uh, but yeah, exactly what wording to use. I'm not sure it would depend on what the real invention was intended to be.

[00:19:50] Kristen: Yeah, I mean, one of the pieces that strikes me here as just problematic is putting a list together like this in a claim and [00:20:00] or in a spec. If you really. Are hinging your innovation on the fact that it has create, retrieve, update, and delete modules, or even if it's four, you need to. Embodiments that say, then you have a create module in some implementations and a create module is this, then you have a retrieve module in some implementations and that does this, and you cover them separately by putting them together in this list, you are making them less important, you are, you are making the reader and the examiner assume these are just a random rattled off list of things that may or may not be true, right?

So you kind of have to be careful when you draft that way. only do this in pieces that aren't all that important that you would not pull a claim content piece from, right? If it's a bunch of shapes and you literally just want to list shapes because it could be something, shapes are differentiated enough that maybe you could get away with that.

[00:20:59] Dave: Right. [00:21:00] But totally agree. Yeah. 

[00:21:02] Ashley: I think you kind of go back to the European, you know, I think you need to have a European mindset a little bit too, where if you have, if you have more than one list, Don't assume you can cherry pick elements from each list and combine them. Right. Right. It's fine. Like, to Kirsten's point, if you have a list, it's probably fine to cherry pick one out of that and say, oh, it's this.

But if you start trying to say, I'm going to cherry pick this and from this list, cherry pick this other thing from this other list, and I'm going to say, that's my new combo. If that conceivably, if that combination conceivably is important in another 5 years, you should say, oh, in some embodiments, A is combined with B, or A having a list of these things is combined with one thing, B.

Right, to kind of show some of the optionality. 

[00:21:52] Dave: And I like, you know, I think there can be some value, I think, doing that in dependent claims. You know, um, uh, [00:22:00] Kristen, I'm curious, you were just talking about those lists, and I totally agree. There's like, Problems with just rattling off big lists that you don't back up in any, you know, significant way, um, in a, in a dependent claim.

I'm curious to get your thoughts on, you know, because this happened. I see this, um, where inventors have some main invention, but then there's a lot of different like materials. Let's say you could use for this thing, or there's a lot of different, um, Configurations or shapes or geometries, and they just want to put this really long list in a dependent claim, or they want to claim it somehow.

And so I'm always sort of like, feel like there's pros and cons of putting big long lists like that in dependent claims. Kristen, what do you think about, about that? 

[00:22:41] Kristen: So I can give you two sides of that. The first side is from an examiner standpoint, and that examiner only needs to find one thing in that list to kill that claim.

And from the other side, yes, you are covering maybe that your piece in your independent claim [00:23:00] could be any one of these materials, but you are not covering all of those materials all of the time. So, from an infringement standpoint, you could get into trouble because you've listed all these things, and if, if you, if, If you infringe somebody with your claim one, and then it's part of your material in claim two, and they want to come after you, you'll end up having to line through that and, you know, fix that.

But from the other side of it, why not pick your most important, most likely scenarios for your claims, for your materials, and put everything else in the specification to pull from later if you need it. Um, it just seems. Like, it doesn't buy you enough to just list it in a claim that way. And maybe three of them are, right?

Maybe, maybe there's like a limit where you can say, Okay, it's reasonable to do these three materials. 

[00:23:58] Dave: That's exactly what I was thinking. Because I, you [00:24:00] mentioned in prosecution, an examiner only has to find one. In litigation, like, that whole claim could be invalidated, and they only need to find one of those materials.

So there, I think there's even risks, 

[00:24:10] All: you 

[00:24:10] Dave: know what I mean, after issuing. Thank you. 

[00:24:14] All: Yeah, 

[00:24:14] Dave: okay. Um, thanks. I think that was good, um, discussion. It was a weird case, a little bit of a weird decision, so it's interesting to talk about that. The next one is this Best Medical vs. Electa. Uh, 096 Patton had a 99 priority date.

And the PTAB found it unpatentable, and these were interparte reviews. So, um, the main kind of issue that came up here is the issue of a, who, who really is a person having ordinary skill in the art? Who is a faceta? And, um, What it came down to is, um, the expert, the expert opinions during the [00:25:00] proceedings were, um, um, um, some were taken more seriously than others, um, due to this positive question.

Um, so petitioner elect does expert had. this relevant programming experience, but best medicals, uh, expert did not. So the CAFC, um, dismissed the appeal of claim one for lack of jurisdiction, but all the other claims, um, it affirmed what the PTAB said as them being obvious and therefore unpatentable. And the, the patent owner, BMI's expert was not considered a FOSITA.

So all of the Arguments that he made were really sort of discounted by, by the board. 

[00:25:42] Ashley: Dave, since 

[00:25:43] Dave: you 

[00:25:44] Ashley: do expert witnessing sometimes, what's, what's like the process that like a company says, are you a positive, you know what I mean? Like what's there, like, how does that, 

[00:25:55] Dave: this is kind of strange. I know what you mean.

This is kind of strange. Usually that's like the very [00:26:00] first question, you know, are they technically capable of, you know, um, of understanding and being an expert in this area. Are they truly an expert? I have not done a lot of expert witness work. So I, I, I'm not, I'm not that familiar with that process, but I mean, I know very often you have people who are like professors or people who are not only just an expert, like well beyond a faucet, someone who is like a well known name in the field, for instance, or a professor at a well known institution.

Because, yeah, they want people who, who, the board, who, whoever, the court is going to, you know, trust as an expert. Um, 

[00:26:41] Kristen: Yeah, that's, that's my, my understanding, too, is, is they, you know, attorneys and people who file these expert affidavits and, and declarations, they, Make sure and they overstep the ability of who they're choosing, right?

They say, let's get [00:27:00] somebody who's even higher than a faceta, maybe. But they make sure that the credentials will stick because They're likely going to craft a lot of this expert statement, work with the expert, expert will have some content in there, but it will be the legal mind that's crafting how it's put together.

They will sign that, then that will make them the expert in the case, and as you see here, it's, it's the court who's going to say, nah, that you weren't an expert, or who's going to make these decisions, but that can be challenged by the other side, who can make the judge think. that okay, maybe this person isn't an expert.

So you have to be kind of careful that you're choosing people who do have the background you need. 

[00:27:44] Ashley: Yeah, I feel like I need to read this one now and be like, we're going to fall apart for this poor expert guy that apparently wasn't an expert, but he apparently thought 

[00:27:51] Dave: it. No, and it sounds sort of obvious, right?

We're talking about it, but this case is a good example of how like, uh, it's a lot of patents, especially these [00:28:00]multidisciplinary, you know? And so this case, For instance, you know, it's determining an optimized radiation beam arrangement for applying radiation to a tumor target, so medical kind of application, but it requires a computer to computationally obtain a proposed radiation beam arrangement and change this arrangement iteratively.

And what, what Elekta, the third party, argued is that a phositor, In this technology would need computer programming experience where best medicals expert, I believe, was a radiologist was a medical tumor radiation expert and was not a computer program. So, um, it, it. You know, hindsight's 20 20. It does make sense.

If this is all about computer programming, you should have your expert be computer. But you can kind of see how best medical might think, Oh, this is a radiation tumor targeting invention are our [00:29:00] experts and is an expert in that. So we're okay. But basically what the Said is that, um, BMI is expert does not have the requisite computer programming experience and the board therefore considered but discounted his testimony in the obviousness analysis.

Um, this is a little bit of a, you know, uh, a background if you will, and aside about what what is a foster. So what what are these, uh, levels of, um, requisite experience that are necessary for a positive? Thank you very much. And these are the standard ones. You have the education level of the inventor, types and problems encountered in the art, prior art solutions and those problems, the rapidity with which invent innovations are made, the sophistication of the technology and the educational level of the active workers in the field.

And in this case, um, elect, uh, Asserted that a faucet would need two plus years of computer [00:30:00] programming experience to understand and implement the inventions and that all of the named inventors had such experience. So that was pretty important, I think, and then the BMI expert just didn't have strong arguments for why computer programming experience was not important and therefore.

The board relied on the entire trial record, including the patent teachers as a whole, to conclude that the formal programming experience was actually required. So, because of that, and, which we'll talk about next, because it gets into the claim construction stuff, there's other Graham factors that they also considered, um, in addition to this, and they said they found no error in the board's claim and they upheld the, um, unpatentable opinion.

[00:30:43] Kristen: If I could interject here, this is a bit of a, this is a bit of a travesty to me because this indicates this case indicates that because you do not know how to craft computer code and programs, you [00:31:00] wouldn't know how to put an algorithm together. And that's not true. There are many people, especially the expert in this field, who would know which radiation pattern was needed, who would know exactly what needed to be targeted, who may know even how often or the timing or any of the things that would go into that computer algorithm.

This person would presumably know that algorithm inside and out enough to write pseudo code to say, this is what needs to happen. And the person that implemented it is just a programmer. 

[00:31:34] Ashley: Yeah, 

[00:31:35] Kristen: though, it's very strange. You should have been on the 

[00:31:37] Dave: team defending BMI, Kristen. I don't know. I mean, it's a great point.

It could be true. But I mean, like, you know, if you go back to these, the factors of what makes a positive types of problems encountered or, um, prior art solutions. And, um, if you're not, If, if you abstractly [00:32:00] understand the algorithms, but don't know how to actually make it work in a computer, I'm not sure, maybe there are important things that you wouldn't, that were being argued and discussed that the, that the, that expert wouldn't be able to, you know, talk about.

[00:32:13] Kristen: Well, think about it this way. If I created the algorithm to do this procedure, and I did it by hand, and somebody comes along and automates it. That person, unless they're relying on the automation piece and they're getting the patent on the automation concept, if they're doing the same thing I am doing, the only difference is they may get a 101 rejection.

[00:32:37] Ashley: I was going to say, it's a 

[00:32:39] Kristen: whole 101 thing. Yeah. But, but it's the same concept, just. Put into computer programming code and in this case, it doesn't even seem like something that would be so complex. It had to be in a computer program. It could maybe be slowly performed by hand to prove it and [00:33:00] then sped up to make it comfortable for the patient or to make it more effective, right?

But anyway, 

[00:33:08] Dave: it's a great question. I'm gonna say I have the on the neck. We're about to talk about the claim construction issues. So there the claim is here. Um, it's tough. It's tough to tell from just the claim. I have to really look. A little bit more deeper to try to see if maybe like, um, if those arguments were presented to the court, if they might've came up with a different, uh, conclusion or if, um, yeah, there really was something in there that was required, some sophisticated computer knowledge that this expert didn't have.

Uh, it's, it's a good question. Really is. 

[00:33:42] Kristen: But also would, would that be the crux of the invention, that piece that the expert didn't have? I don't think so. You know, unless it's a quantum computer for some chip that guy made, you know, I don't know, 

[00:33:54] Dave: like the question I have. So here's the claim, right? Um, a method for determining this optimized [00:34:00] radiation beam arrangement.

And then the first step of the method is using a computer to computationally, computationally obtain a proposed radiation beam arrangement. And then again, you know, use the computer to computationally change the proposed radiation beam arrangement iteratively. 

[00:34:21] Kristen: Okay, so that says computers there, iteratively is typically not by hand.

[00:34:27] Dave: Right, and maybe there's something, um, tricky about that, that the, uh, BMI's expert didn't, you know, Appreciate or wouldn't know how to implement. I know what you mean, Kristen. It does seem bit harsh to discount all of their expert testimony just because they don't know certain things. But, um, 

[00:34:49] Kristen: I want to take it from the other side too.

Can the computer programmer do put the algorithm together without the other guy? Because, yeah, he could code all day long, but does [00:35:00] he know how that has to happen and how that has to work? 

[00:35:03] Dave: Good question. I know. I mean, and was Electa's expert, uh, versed, well versed in both? Possibly, you know? 

[00:35:11] Kristen: Could be. But just because I'm well versed in, like, computer code and programming does not mean I could sit down and apply it to specific problems in different industries, right?

[00:35:23] Dave: Right. Right. Exactly. Right. You'd need to have that industry experience, too. 

[00:35:28] Ashley: When I think some of the concern that this raises that, you know, even from a thing about the, like, robotics industry, you know, a lot of what's happening with roboticized medicine. Is to take manual procedures and be able to to perform them in a kind of way.

So from an expert, you know, perspective, the expert in the room is the interventionalist, the physician who knows exactly how things need to be driven and work to whatever to get the best outcomes [00:36:00] for their patient. And to Kristen's point, not that there isn't some, I don't want to minimize the coding that's happening either, but you can't, you can't do the procedure with robot without really having somebody there that says, ABCD need to happen to have a good outcome for this patient.

You know what I mean? To be able to reach the end goal. Yes, that's, yeah, I know. Interesting. 

[00:36:25] Dave: Yeah. Well, if you think that is sticky, wait until you hear this, uh, decision that they made. Um, so the, the main kind of, uh, takeaway here, or Issue at play is that claims are going to be interpreted in light of plain language and the written description.

We all know that claim one talks about using a computer to computationally attain this thing, and then using a computer. Not the computer, right? It says a computer and then a computer to computationally change [00:37:00] proposed or rain radiation beam arrangements. Okay. So already right there, there's an antecedent, uh, issue that should have gotten a one 12.

That's unclear, right? But it gets worse in dependent claims. They talk about the method where, um, the predetermined die desire dose prescription is computationally constructed by the computer based on partial volume data associated with. This dose prescription entered into the computer. So what the board, the board's decision was that it does not need to be the same computer that does the computationally obtain obtaining the radiation beam arrangement and the changing it iteratively.

It doesn't have to be the same computer as the one that can, that, um, preterm predetermines a desired. Um, prescription computationally by a computer. So it's very strange because claim [00:38:00] one has a and then a, and then the dependent claim says the computer, which should go back to one of those computers, but there could be two different computers in claim one.

It's kind of odd. What the, what the board says is that based on the plain claim language and the written description, that the claims broadly allow for a set of computers to perform these actions. 

[00:38:23] Kristen: That's strange. And on top of it, that's just a divided infringement problem to, you know, I mean, this is the easiest claim to design around ever.

[00:38:32] Dave: It's, uh, it's, it's got several problems. Yeah. 

[00:38:37] Ashley: The last one in this one are both like practitioner errors that were either in the favor or not in favor. 

[00:38:45] All: Yeah. 

[00:38:46] Ashley: Nowhere. 

[00:38:47] Dave: Right. 

[00:38:48] Ashley: Because, yeah. Strange. 

[00:38:50] Dave: It is kind of strange. I mean, but, you know, the takeaway, it's like, okay, a computer and the computer can be a set of computers, you [00:39:00] know, if the, we all try to write our claims of proper antecedent basis and, you know, and do it all right.

But, um, if there is ambiguity, I guess, um, because there is, I think in these claims here in this issued patent, doesn't always necessarily mean that it's going to be invalidated for, for, um, 112 issues. It sometimes means that, well, you know, we're going to interpret this in light of plain language and the written description for what we believe was the intent.

[00:39:29] Kristen: And remember your errors get determined in litigations, right? Your errors get construed. Because their errors or that they are incorrect or inaccurate or just not clear. So it's really good to pay attention and write a claim, you know, with claim checking software. Or another set of eyes or both, you know, that could help you.

[00:39:56] Ashley: What's concerning me here though too is there was another recent case, I couldn't tell you [00:40:00]what it was or who it was, but where they had a processor in their claims and I think it was, Held that it was not where, oh, yeah, it was a recent case where, um, whoever was infringing or whatever, or, you know, was supposed to allegedly infringing used more than one processor and because they use a processor and then the processor.

It was construed as it had to be one processor, just one. And so then they weren't infringing. And it's like, since when, you know, that's the whole, I actually have it in my inbox to read in more detail. Like, and I think I may have sent it to somebody. I can't remember, but just, you know, I thought, uh, usually meant that, you know, kind of.

If you, if you can do it on one, then like, is it really that much of a leap to do it on more than one? Probably not, right? It kind of goes to the opposite, though, because now they're saying, well, a computer can be a set of computers. It's like, well, Yeah, that's strange. Yeah, I was always taught. [00:41:00] I have a written description.

Or is it just one? Yeah, 

[00:41:03] Dave: I know. In the written description, I think, The written description, I think, for, for some of these, Issues, of course, you know, we, we want to do the claim drafting properly, but, um, you know, the written description, if it never disclosed the idea of using more than one processor, if it always talked about one processor, every figure had one processor, they always said a processor and then the processor.

Maybe they, maybe, maybe they thought of it. They just didn't write it down. And so you can't like say, oh, you anticipated that. Would that really be non obvious? I don't know. But, um, yeah. Yeah, written description I think is important. 

[00:41:41] Ashley: Yeah, I just think it's within a, you know, just like, I mean, I don't necessarily disagree the fact that a computer could be aesthetic because I feel like it's within, very much within one of skill and the art.

To take one processor and do it on many, to do one computer and do it on many, right? So 

[00:41:58] Kristen: this is fixed, this is fixed with [00:42:00] one paragraph of boilerplate typically, and the boilerplate has to add a piece that says the embodiments in figures blah through blah could apply to this one processor in this paragraph I'm talking about, right?

So you have to tie those two things together. You need the boilerplate, but you need to tie the embodiments to the boilerplate somehow. 

[00:42:19] Dave: Right? Right. Right. And, um, this was a little more straightforward, but, um, just a good reminder that on the flip side, claims are also not defined or limited by preferred embodiments necessarily.

So, um, there's this term in one of these, this is another independent claim in this case, uh, in this patent where there's a, uh, conformality control factors are recited. And, um, what the, um, I think Elekto is saying that, um, these conformality control factors need to be [00:43:00] mathematically defined parameters.

Bord says is that they're not persuaded because nothing in the plain language in the claims limits the claims, that claim term, phrase, to mathematically defined parameters. There is a citation to a passage from the written description citing a specific embodiment. That supports, oh, because this was BMI's proposed construction that these factors are mathematically defined parameters and the board said no, just because you had one specific embodiment that had that doesn't mean that the claim term should always be interpreted as having that limitation that was described in one particular embodiment, which I think makes sense.

[00:43:40] Kristen: Yeah. So how do you fix that? Do you say, as used herein, and then you put a definition to make that definitely read into your spec the right way? 

[00:43:52] Dave: Yeah, I mean, if you always want it to, or you add those words in a dependent claim, you know, if you want to cover that, or independent [00:44:00] claim, whatever, if you want to cover that case specifically, right?

[00:44:04] Kristen: Yeah, interesting. 

[00:44:07] Dave: Um, so that is, uh, that case. There's some interesting stuff in there. Um, the last one is Finjan versus Iset. And, um, this is an interesting one, a little bit of a different type of claim construction issue. Finjan filed suit against Iset, um, asserting that Iset infringed these four Different patents and these four patents are part of a of a big family.

I think there might have been 15 20 patents in that family. Um, or or either in the family or were related by being incorporated by reference. And that's what really this comes down to. So, um, What these, this patent family is about are systems and methods for detecting computer viruses in a downloadable and they're using downloadable as a noun here, just for clarity, because as I'm as I [00:45:00] was reading this, and as I'm going through these things, every time I got to downloadable, I'm thinking of it as an adjective, but it's, it's a thing.

It's an applet. It's a, it's something you download. It rather than being on your computer already, I guess a downloadable thing. Um, and so the district court found that the inserted patents were indefinite because they, in the construction of this word downloadable, they were, they inserted the word small.

It had to be a small applet or a small piece of code that was downloadable. And they said it based on that claim construction, they found the claims to be indefinite. But the board, the CAFC, reversed the district court's claim construction, vacating the decision for indefiniteness, and they remanded for further proceedings.

So, um, there's a lot of patents here, so I'll try to, um, give you a lay of the land and let you know what happened, but the main takeaway There's a really good quote in here is that incorporation by [00:46:00] reference of patent A into patent B does not convert the invention of patent A into the invention of patent B.

Which is interesting. And so there's more, there's a bunch of quotes here, I think, to explain to it. But, um, you know, let me just say off at the, at the outset, this is an interesting quirk of us patent law, because we can do these incorporation by reference and all other places around the world, which don't have incorporation by reference would never have these issues.

So this is like pretty much a us only specific issue, but, um, In This 639 patent, they define downloadable as an executable application program automatically downloaded from a source computer and run on a destination computer. So an example of a downloadable is an applet designed for use in Java. A non assertive patent, the 520 patent, and another patent, 962, defines downloadable differently.

Defines it as an applet as a small executable [00:47:00] or interpretable application program downloaded from a source computer. And two of the other asserted patents incorporate that 520 patent by reference. But they define downloadable differently, broader. They define downloadable as just an executable application program, not and omitted this word small.

Which actually turns out to be pretty important that they emitted that that term small was omitted intentionally And that is okay You're allowed to do that You're allowed to broaden out something even if you're incorporating something by reference that had a narrower kind of scope Um, so the three asserted patents the other asserted patents out of the four do not include a definition of downloadable But also did this incorporation by reference?

Um the district court 

[00:47:45] Ashley: incorporated by reference which Which does that from the list of definitions 

[00:47:52] Dave: that the 521 called it and 962 called it small. 

[00:47:57] Ashley: Okay. And the other one, the other one didn't. So, okay. So, once the [00:48:00] other one did it, so it 

[00:48:01] Dave: incorporated, right, it could incorporate by reference different patents with different definitions.

[00:48:06] All: Okay. 

[00:48:06] Dave: And one of them actually had a definition in it that was different from a definition that was incorporated by record.

And so, um, Just in general, this is a little background and for us to all, as a reminder, a claim is invalid for indefiniteness under 112 if its language, when read in light of the specification and process history, prosecution history, fails to inform the skilled artisan about the scope of the invention with reasonable certainty.

So it includes any patents incorporated by reference because they are effectively part of the host patent. Um, but incorporation by reference does not convert. The invention of the incorporated patent into the invention of the host patent, and the disclosures of related patents may inform the construction of claim terms common across patents, but it is erroneous to assume that the [00:49:00] scope of the invention is the same such that disclaimers of scope necessarily apply across patents.

[00:49:07] Ashley: I like that. Yeah. So that's a good strong statement for, uh, Claimscope that this is going to be different. It just doesn't matter. 

[00:49:17] Dave: Exactly, exactly. And that'll just, it's really just sort of drive this point home. Um, the district court there, the, the, the CAFC says that the district court erred. Because it viewed the differing definitions throughout the patent family as competing, and then they tried to limit it to the most restrictive definition.

But they, the board disagreed. They said the use of a restrictive term in an earlier application does not reinstate that term in a later patent. That purposely deletes the term, even if it's incorporated by reference. And so, um, this 520 patent, That talked to that defined downloadable at small was actually focused on small applets.

That was like the [00:50:00] point of that application in that family. So they changed the definition, they narrowed it, had it be almost like an different embodiment than some of the other ones. Um, but, um, as we were just saying, Other patents have defined it differently to, um, remove that size, uh, constraint and that these two definitions can exist in harmony within the patent family.

And that, um, There are examples in some of the asserted patents that were not small, executable, you know, the downloadables were not small, and, um, the other patents don't actually even, um, have a defin an explicit definition, so it's also improper to just cherry pick One definition that makes your point when multiple definitions are all incorporated by reference sort of equally.

Um, so they, uh, yeah, they reversed the district court's claim construction and they didn't, um, they didn't review anything else. They just remanded it back [00:51:00] for them to re reconsider the case with the new claim construction. 

[00:51:04] Kristen: So, this, this is interesting. I, I agree with all of this. I think, I think it would be nice if we had a solution in the U.

S. like the rest of the world has, where you change a, a claim term and you go back to the specification and you line through it or you add it, Uh, where it needs to be, right? Where you're trying to get literal support from your claims into your spec, but it also clarifies your specification, right? So, if we had a process like that, I think it would be more clear to, to how these guys interpreted the Finian case, where you would understand that it was, meant this way and because it was meant this way in this pattern, right?

Maybe it was not meant small. Maybe it was meant broader that we go and we remove the term small from the areas and embodiments that that claim covers. 

[00:51:59] Ashley: Yep. 

[00:51:59] Kristen: [00:52:00] Interesting. But we don't, we don't have that. 

[00:52:06] Ashley: In the U. S. the spec was almost held to this, like, you know, like gold plate, you know what I mean? Like you can't, it's set like every time, like, you know, if you find like, oh shoot, like we, we missed one.

Reference number and, oh shoot, we have to add it in . You know, you're like, Mm-Hmm, . I hope the examiner's okay with us adding this one number that's clearly in the figures, and I now need to put it in the spec. And you're like ringing your hands about everything 

[00:52:31] Kristen: and you're like, but they let you do it. But yes, you 

[00:52:33] Ashley: always wonder, like as a practitioner, you know, there's this thing, this is not new matter and I need to like, you're like, Hmm mm-Hmm , we hold our specs to this like untouchable, you know, like you can't.

It's there and it's, you know, it's done. 

[00:52:50] Dave: Yeah. The incorporation by reference, there's some peculiarities about U. S. patent law that I like and I think that work for [00:53:00] inventors sometimes, you know, like our whole incorporation by reference and like CIPs and things like that, um, but yeah, it, um, a lot of the cases we talked about today had to do with just sort of vague Thank you.

unclear, um, claim language that or, and that the specification didn't totally line up with, and it's left to the courts to try to figure out like, what did we really mean here? So I know what you mean, Kristen, I think that that process where you, um, the explicit written description support is, is, is very, you know, strict, much stricter, I'll say, in other parts, in other jurisdictions outside the US and it does.

Makes some sense in some ways, for sure. 

[00:53:45] Ashley: Yeah. And for the incorporation by reference, you know, it does, it is nice for other countries where you do just have to take the chunks that you like and put them in, you know, like when you start to go and I, I can see a world where getting rid of that in the U S makes sense [00:54:00] where, okay, I like these chunks from these other patents, like I'm just going to go through the work to grab them and dump them in, and that's probably not a bad practice as practitioners anyways, to not.

Where possible, not do the incorporation of reference and just take the chunks you want, plop them in. That's what I do. That's what 

[00:54:19] Kristen: I do. I'm perfectly comfortable if you feel you need to do an incorporation by reference or if it allays some fear that your inventor might have that something isn't covered.

But when it comes to my specifications, I usually go to the incorporated documents, pull that content in, reframe it, re describe it for my use. And then also leave it as is, right, just in case, because I might need it as is. But I, but I don't do it very often. I can tell you that. I don't incorporate by reference very often.

[00:54:53] Dave: And you have to actually pull in the, if you want to claim anything, 

[00:54:57] Ashley: you 

[00:54:58] Dave: have to pull it into the [00:55:00] specification, right? Yeah. 

[00:55:02] Ashley: But it does allow you to reach back. Like, we had a really strange case where we had picked up a, um, a case that, We hadn't drafted and the provisional was quite weak, like the description, but the claims in the provisional were actually the meat that the inventor wanted.

But that language wasn't in the stack that a practitioner had incorporated by reference the provisional. Luckily, because we, because the meat also wasn't in. The conversion so we are able to reach back into through like an obscure MPP thing and grab those claims and like basically verbatim put them into the spec for claiming.

Right? You had support thing that the client really needed. Right? So, um, there are ways to like reach back and grab it, but yeah, I mean, it's better to not have to do that at all. Right. [00:56:00] Um, 

[00:56:01] Dave: Yeah, we always do that. That's a great, that's a great point. We always do that in our related apps paragraph in the front.

Um, you know, uh, claims prior claims, the benefit of this provisional, which is incorporated by reference for, you know, just the, yeah, yeah, I can see why, especially from the provisional to non provisional, if there's been lots of changes or the figures have been formalized or something like that. It's just like, it's safe.

Right. Yeah. 

[00:56:24] Kristen: And I should clarify, I, I do do that for sure. Um, but within the specification, I don't often incorporate by reference other documents, even if they're outside the family, inside the family, whatever. 

[00:56:37] Ashley: If it matters, put it in. I was curious, going back to Kauffman and Microsoft, um, as far as, you know, as practitioners, we can define our own terms.

Is there any way that we could, Define our own conjunctions or invent our own. [00:57:00]

[00:57:00] Kristen: You can put it in boilerplate and you can define it any way you want to. But I do not know how a court will interpret that or rely on that. 

[00:57:08] Ashley: Cause I find myself like, yeah, that and, or would be so nice to use. In the, in your, and it'd be nice to make you just invent one.

New conjugation, and or. There are people. Star Wars reference. 

[00:57:23] Kristen: There are people who use and or in a claim. And that is not, that's a big no no in the U. S. But people get away with it. But I think that's the most unclear thing you could do. From a claim standpoint. 

[00:57:37] Ashley: Yeah, but in this instance, man, it's so 

[00:57:40] Kristen: nice 

[00:57:40] Ashley: to work with you, boy.

Up here, like, you know, what's and or mean is, you know, it's any combination of this list of things, and I feel like that's no less confusing than us, because, you know, I know, like, the typical is, like, one or more of, and then list, right? And it's like, 

[00:57:58] Dave: There was, [00:58:00] um, I'm trying to remember when the context, I believe if I'm remembering right, there was a recent case that, uh, came to that, that described and or, or that had to rule on that.

And they said it was clear. They said that and or is a, is something that is known what it means and therefore it's clear. But. I don't remember all the details, so I'll have to, I'll maybe try to look that one up. 

[00:58:21] Kristen: Yeah, I do. Well, and one, I'll throw another one at you. If you had that list and you said one or more of create, retrieve, update, and, or delete, I think that means one or more of all four of those or all of those.

But if you say, as it's written, including create, retrieve, update, and, or delete, do you mean, and, or only applies to update and, or delete, or does it apply to the whole list? Right. You know, 

[00:58:50] Dave: another reason I always like to put commas there 

[00:58:52] Ashley: for coming.

That was the case. There was, [00:59:00] it was like the milk people, right? It was. Yeah. 

[00:59:03] Dave: Yeah. Yeah. I know. 

[00:59:06] Ashley: I said we had the whole conversation on articles in patent law. What do they mean? I bet, I bet we could come up with just as many things where that made sense. That didn't make sense in terms of what they mean.

[00:59:18] Dave: Well, we all try, I mean, you know, you have a very limited real estate in a claim and you're trying to be efficient with the wording and we try to make it as clear as you can. But again, you know, if you're clear in your written description, when you say, you know, create, retrieve, update, and or delete. And by that we mean, and here's an example, and then it's clear.

If it's clear and if it's clearly described in the description, it's clear. It kind of answers your question away, Ty. Like. Maybe you're not inventing a new conjunction or defining it, but however you use it, if you explain what you mean, and it does, that doesn't take 10 pages, you know what I mean? It takes a few sentences, right?

To clarify. Well, maybe with all the examples it might, but, um, yeah, I know the written [01:00:00] description. Yeah, it's important. Go figure. 

[01:00:04] Ashley: Probably the main, largest part of the patent application.

Well, this is good. This is good stuff. This is the next little, good smattering of some interesting stuff. I mean, I tried to try to 

[01:00:19] Dave: find a theme. They were sort of related, somewhat related. 

[01:00:23] Ashley: Well, maybe it was interesting cases where potentially maybe council or federal circuit made patent law more confusing in some ways.

But that's the anthem of, you know, last decade, I guess, anyway, so. Perfect. But you made it very clear. I don't want to, like, you made it very clear what all went down. I'm just not sure I fully get their reasoning on all of the fronts. Thank you, sir. Anybody else have any? No, thanks. 

[01:00:52] Dave: That was really interesting.

Thank you. Sure, thanks. Thanks for all the good discussion. 

[01:00:56] Kristen: It's good when you have an easy, it's [01:01:00] easy when you throw us those kinds of arguments. 

[01:01:02] Dave: Nice. Yeah. This is terrible. It's helpful. 

[01:01:05] Kristen: Yeah. 

[01:01:05] Dave: I like talking about stuff. I like talking through things like that. I feel like, you know, you had a weird case, but then it makes you really think through what does this, what does claim construction mean?

What does this all really mean? And yeah. 

[01:01:17] Ashley: Pay attention to your lists. I feel like that's been like a theme for, we've had a few times where it's like, yeah, Lists matter, but you gotta be careful with lists. Lists are okay, but you have to be careful with lists. 

[01:01:27] Kristen: You know, when I write them, I have bad, bad feelings, and then I'm like, Nope, I think this is okay in this situation.

And I might be wrong, right? I maybe shouldn't be doing that. Right. 

[01:01:37] Ashley: Thinking, feeling. Mm hmm. Bye, everyone. Have a good one. All right. Thank you. 

[01:01:44] Josh: Alright, that's all for today, folks. Thanks for listening and remember to check us out at aurorapatents. com for more great podcasts, blogs, and videos covering all things patent strategy.

And if you're an agent or attorney and would like to be part of the discussion or an inventor with a topic you'd like to hear discussed, email us [01:02:00] at podcast at aurorapatents. com. Do remember that this podcast does not constitute legal advice and until next time, keep calm and patent on.