To All:
Here is my take on CompuServe's (CS) brief.
Short version -- They make some good points, but each point could
be rebutted by a well written reply. I have not yet obtained
copies of the reply, but will do so after all papers have been
filed. Anyone who wants copies and is willing to share the cost of
obtaining them please let me know. Nothing I read has prompted me
to stop accumulating shares in GIFT.
Long version (I suggest you get a copy of the patent for this
version):
CS stressed that the only valid claim interpretation is the one CS
proposes. They repeatedly said that if the Judge agrees with GIFT
on interpretation, then the claims are invalid because they are so
broad they cover the prior art. The prior art most interesting is
U.S Patents 3,934,079 and 3,718,906, and prior use by CS on the
Softex System 19. Is anyone familiar with this system? Is the
description in the brief accurate?
I am getting copies of the two patents and will comment on them in
a few days (or maybe next week).
The cited art does not appear to be as strong as CS argues it to
be. Even if it shows everything CS claims, I don't see it
invalidating the patent if the authorization code includes packet
switched data transfer.
CS discusses three claim features.
First, they claim that the limitation of "providing from a source
remotely located with respect to the information manufacturing
machine the information to be reproduced to the information
manufacturing machine, each information being uniquely identified
by a catalog code;" requires the data to be "predelivered" and then
stored by the PC receiving the data. This excludes real-time data
transfer.
Generally, CS says that the word "provide" means "store," and that
the claim should be interpreted that way. This is contrary to
patent law. Words mean what they normally mean unless clearly
defined otherwise in the patent. The patent repeatedly uses both
words, but clearly acknowledges their different meaning. Thus, the
plain meaning of "provide" favors GIFT, not CS.
CS argues that the patent teaches and is limited to storing. The
patent certainly describes that as the preferred way of doing
things. But the patent also acknowledges other ways, including
real-time transfer, of performing the method. Undesirable
alternatives are still alternatives. Also, even in the preferred
way of storing the patent describes the initial transfer. The Judge is interpreting the claims, and by law cannot import
limitations from the preferred embodiment into the claims. This is
exactly what CS wants the Judge to do.
CS also argues that GIFt's Canadian patent changes the word
"providing" to "storing," and that this means the two have the same
meaning. I think that fact proves the opposite. Clearly they have
different meanings, or else why change the word. I think GIFT
should say this over and over to the Judge. Different words,
different meanings.
CS ignores one well know rule of patent law, something called the
doctrine of claim differentiation. This boils down to a rule that
a specific limitations of a dependent claim should not be read into
a non-specific limitation of an independent claim. Thus, if a
dependent claim says step A (of a former claim) includes xyz,
then step A in the former claim cannot be limited to only xyz.
Claim 17 says that the step of "providing" to the PC (from claim 1) further includes the step of "storing" in the PC. Thus, the step of "providing" (in claim 1) must not be limited to require storing. This is what CS wants, and is contrary to this often used doctrine.
I think that the arguments CS makes fall short. They do not
convince me. I am anxious to see GIFTs reply, to make sure they
dealt with each argument.
Second, CS also mentions the authorization code. They claim that
there are two separate codes - an authorization code and a location
code (called an IMM code in the patent). CS argues that one code
cannot serve both purposes, and that the claim should be limited to
two codes. However, the patent states that the authorization code
includes the IMM (location) code. "The information file unit 28
provides the authorization code (the encoded catalog decipher
program and the encoded IMM code) on the signal path 44." Thus,
the IMM code is not a separate code from the authorization code, it
is part of it. I hope GIFT points that out to the Judge.
Third, CS barely mentions the point of sale argument (can a PC in
a home be a point of sale). They refer to another party's brief,
which I do no yet have a copy of. I think this argument is very
weak for the defendants. Point of sale is just used to distinguish
the location of the PC from the main computer.
GRC |
