i find this article very interesting with regard to prior art.
http://tech.fortune.cnn.com/2013/08/08/whats-going-on-with-apple-and-the-itc/
if you recall, the ALJ ruled the `970 patent infringement on 9 claims but then ruled it invalid. If you further recall, the patent deals with how the handset allocated bandwidth over cellular and wlan networks.
Looking at the slapdown by the "higher authority" in the apple case:
"We are troubled by the ITC's obviousness analysis," the appeals court wrote in a stinging repudiation of the ITC's work on the case. "We have repeatedly held that evidence relating to all four Graham factors -- including objective evidence of secondary considerations -- must be considered."
- the graham factor says the following:
The Court held that obviousness should be determined by examining:
The scope and content of the prior art
The level of ordinary skill in the art
The differences between the claimed invention and the prior art, and
Objective evidence of nonobviousness.
The 970 patent was ruled invalid b/c the the ALJ said that in prior art, or prior standards, it was the base station that allocated bandwidth and not the handset. Furthermore, it is the base station that is doing all the heavy work, ie. assign/allocate channels and then handset transmits the data... ie.. the decision for the handset was already made (i want the data, give it to me)
however, (ruled infringed claims 1-9)
http://www.google.com/patents/US7616970
never states anything about the base station. It clearly says the subscriber unit in the patent and reduces the scope down to the handset
in current standards, the base station assigns the channels, but it is the handset that decides(allocates) when to use it.
So the ALJ ruled that the invention is not doing anything new from the old standards, and ruled it invalid due to prior art.
IDCC is also arguing that the ALJ ruled infringement due to the handset allocating the physical channel but then in his validity determination, he reversed course and ruled that the base station is doing it. There is clearly a difference between the patent and the prior art, or one of the 4 graham factors. I am hopeful that the Commission will see the recent CAFC Apple/Mot prior art slapdown carefully and avoid another similar mistake. In addition, the should also review the 613 cafc remand on claims constructions and then take the stance that the have screwed IDCC long enough and then right a wrong.
Similar to the previous ITC investigation, we are battling the basestation vs handset argument on who is doing what... but I am very encouraged should the Commission announce the review of the ALJ findings, especially in light of the infringement rulings already in place should the patent be valid.
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