This law firm is big (400 lawyers), they have experience (they have a patent litigation group) and they have technology clients (such as Real Networks). I can buy their assertion that the "point of sale" could be any where including the home. Where they are stretching is in the area of real time delivery. If they fail to prove that this patent intended to cover real time delivery, very few, if any companies will be found to have been infringing on the patent.
While the lawyers cited many cases regarding federal law precedent (they are on the money in serveral regards) as it relates to claim construction, a simple review of the cases they have cited will bear the differences. Many of these cases had far more complex, yet far less vauge patents on more specific areas than a "delivery or production method". This is more a concept invention, while the cases cited are often on tangible and working inventions or processes.
This claim is written in vauge language (material object and information manufacturing machine?). Computers existed at the time, yet they are never mentioned. While strict claim construction precedent says computers wouldn't have to be mentioned, the body of the patent itself (specification, prosecution history and claims) to anyone who reads it clearly describes a kiosk type machine located at retail for records, software and printed materials, etc. The court over the last few years in response to technology patent infringements (intellectual property and patents) has become stricter in the reading and interpretation of patent claims, especially ones with broad ramifications, as is such with the instant case.
The lawyers have made good points (that is what they are paid to do), but the fact that this patent uses ambiguity in its terms and construction and offers examples and solutions to problems that deal with retail sales, production and shipment of products, it is a difficult stretch to make this apply to internet commerce. Nobody (any lawyer that passed the bar) has read this patent and said it is well written and clearly aimed at internet commerce. It is a stretch beyond what the courts have ben inclined to allow.
Even if the judge were to reconsider and even reverse her opinion as to both "point of sale" and "real time delivery", you are still faced with patent busting prior art issues and a court that will scrutinize how this patent would apply to each companied sued (likely using small differences or technicalities to rule the patent is not being infringed upon).
Looking for more answers or opinions as to wether this patent can be upheld and then successfully applied to prosecute patent infringing companies. |
