Patent Owner Insists 'Integers' Do Not Include The Number One

from the patent-math dept

Patent trolls are a tax on innovation. The classic troll model doesn’t include transferring technology to create new products. Rather, trolls identify operating companies and demand payment for what companies are already doing. Data from Unified Patents shows that, for the first half of this year, patent trolls filed 90% of the patent cases against companies in the high-tech sector.

Core Wireless Licensing S.A.R.L. is one of the patent trolls attacking the high-tech sector. Core Wireless is incorporated in Luxemburg, and is a subsidiary of an even larger troll, Canada-based Conversant. It owns a number of patents that were originally filed by Nokia. It has been asserting some of these patents in the Eastern District of Texas. In one case, a jury recently found that Apple did not infringe five of Core Wireless’s patents. In another case, it is asserting eighteen patents against LG. One of its arguments in the LG case came to our attention as an example of what patent trolls think they can get away with.

In patent litigation, patent owners and alleged infringers often disagree about the meaning of words in patent claims and ask the court to resolve the differences (a process known as “claim construction”). In Core Wireless’ case against LG, the majority of the disputes seem like usual ones in terms of patent litigation.

Except for the dispute about “integer.”

You may have learned what an “integer” was in high school. It’s a common concept many teenagers learn about when they take algebra. In Ontario, Canada, for example (where Conversant is based), teachers discuss integers in the 9th and 10th grades. As defined in the Ontario Curriculum, an integer is: “Any one of the numbers . . . , –4, –3, –2, –1, 0, +1, +2, +3, +4, . . . ” Here’s a PBSMathClub video with a helpful explanation:

It’s pretty clear what an “integer” is. Here are a few more definitions from various sources, all confirming the same thing: “integers” are all of the whole numbers, whether positive or negative, including 0.

But Core Wireless, the patent owner, told the court that an “integer” is “a whole number greater than 1.” Core Wireless is saying that not only are negative numbers not integers, neither are 0 or 1.

This is preposterous.

As one mathematician told us:

The integers are the natural numbers (whole numbers greater than zero), their negatives, and the number zero (very important). So saying that the integers are all whole numbers greater than one is a bit like saying that sweet and sour chicken is just sour sauce because you’re missing its negative, and the chicken, which is very important. Or that a turducken is just turkey: we all know that the duck and the chicken are essential.

To be clear: the law allows patent applicants to redefine words if they want. But the law also says they have to be clear that they are doing that (and in any event, they shouldn’t be able to do it years after the patent issues, in the middle of litigation). In Core Wireless’ patent, there is no indication that it used the word “integer” to mean anything other than what we all learn in high school. (Importantly, the word “integer” doesn’t appear in the patent anywhere other than in the claims.)

It appears that Core Wireless is attempting to redefine a word—a word the patent applicant freely chose—because presumably otherwise its lawsuit will fail. The Supreme Court has long disapproved of this kind of game playing. Back in 1886, it wrote:

Some persons seem to suppose that a claim in a patent is like a nose of wax which may be turned and twisted in any direction, by merely referring to the specification, so as to make it include something more than, or something different from, what its words express.

Just last year, the Supreme Court issued an opinion in a case called Nautilus v. Biosig Instruments emphasizing that patent claims must describe the invention with “reasonable certainty.” Using a word with a well-known and precise definition, like “integer,” and then insisting that this word means something else entirely is the very antithesis of reasonable certainty.

We hope the district court applies long-standing Supreme Court law and doesn’t allow Core Wireless to invent a new meaning for “integer.” Patent claims are supposed to provide notice to public. The public should not be forced to guess what meaning the patent owner might later invent for the claims, on penalty of infringement damages.

Ultimately, this is just one baseless argument in a bigger case. But it reveals a deeper problem with the patent litigation system. A patent owner wouldn’t argue that “integer” doesn’t include the number one unless it thought it might get away with it. The Patent Office and lower courts need to diligently apply the Supreme Court’s requirement that claims be clear. We also need legislative reform to discourage parties from making frivolous arguments because they think they can get away with it. This should include venue reform to prevent trolls from clustering in the troll-friendly Eastern District of Texas.

Republished from the Electronic Frontier Foundation Deeplinks blog.



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Comments on “Patent Owner Insists 'Integers' Do Not Include The Number One”

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49 Comments
Groakersays:

Re: Re:

Like most fields there are multiple levels of understanding. As an example consider the proposition that 1+1=2. Probably learned by most children before they start kinder-garden. Yet its formal proof is usually not encountered until graduate levels in mathmatics. A fairly short proof (about 50 steps) of this can be found at:

http://tachyos.org/godel/1+1=2.html?=$tag?%3E

Anonymoussays:

It’s no secret that law school applicants rarely have a technical background, and are certainly not likely to learn anything more while in law school. So maybe they though it was “worth a shot” to try to slip this one by, because, who knows, judges are not unknown to rule in ways contrary to what most people with a decent understanding of the situation would think.

Wyrmsays:

Reading the argument...

… it’s actually not so much “the definition of an integer” that is in discussion, but the discussion of a variable “n” that is only defined as “an integer” while the context implies that n is actually “an integer greater (and not equal) to 1”.

I really don’t know how this is all relevant to the lawsuit, nor how much an “implied meaning” is worth in a trial, but the basic idea is that they don’t seem to say “an integer is a whole number greater than 1”, but “this specific value is an integer strictly greater than 1”.

It might be poorly worded in the patent application, but it’s not exactly wrong here. I really hope the whole suit doesn’t hang on this “definition”, otherwise I’d be pretty much siding with the troll, as much as I don’t like it.

Anonymoussays:

Re: Re: Reading the argument...

If Wyrm is correct on their interpretation then we are talking about an algebraic expression such as ‘n+1’. This is an answer whose question did not contain enough information to come up with a definate number, or integer, as a correct answer. This conflicts with a patent’s requirement for reasonable certainty, and thus should result in denial.

Dingledore the Flabberghastersays:

Re: Re: Reading the argument...

I agree. Their argument doesn’t appear to look to redefine the actual meaning of the word integer, only the variable description in their patent. They have described ‘n’ as an integer, and then said that values less than 2 won’t work or make sense. The variable is still an integer, even if it doesn’t accept any integer.

If LG have (re)created a system where values less than 2 do work (rather than just rejecting or modifying values under 2), then it is arguably a different system. If they haven’t, but are arguing the validity because of an overly abbreviated description, then I think they’re being unfairly picky. Spirit of the law vs the word, etc. (Not arguing in favour of the laws here).

Anonymoussays:

Re: Re: Re: Re: Reading the argument...

LG are arguing that integers less than 2 don’t make sense, so the claim is unclear and hence invalid.

All the troll is saying is that the expert in the field (who the patent is aimed at) would understand that anything less than 2 wouldn’t work, or contradicts other parts of the description, and would work it out for themselves. It doesn’t seem that unreasonable.

In the (understandable) rush to point and laugh at a troll, this post seems to me to be excessively one-sided in relation to the main point. It makes me wonder if I should be more skeptical about other posts here, but that would take effort.

Andrew Lopatasays:

Re: Re: Reading the argument...

Yes, in context, the argument is not ridiculous. But the relevant question is about claim construction and whether patent drafters must clearly an explicitly define the terms used within the patent if the meaning of the term is contrary to common usage. I think such a rule makes sense even if the way the term is used in context shows that it is highly likely (as it is here) that they meant something different than the usual definition. The less ambiguity in a patent, the better. This rule will (ideally) encourage narrower drafting and result in better patents.

Steerpikesays:

Patent attorneys have to have a technical background. They’re usually engineers, but are also chemists, biologists, physicists, etc. They know what integers are. This sounds like a legal argument that was thought up well after the fact to try to distinguish the language in the patent, and not a very good argument.

As noted in the post, you can define your own terms in a patent application. But you have to be explicit about what you’re doing, and that you’re not using the term in its ordinary sense. Also, you have to be explicit at the time you FILE the patent application, because the patent specification has to have a clear statement that you’re redefining a term. You can’t even do it a couple of months later when the patent is already pending.

Anonymoussays:

They're not integers

1 is not an integer. Neither is 0. 1 and 0 are Booleans instead. Booleans are of course covered by a separate patent.

Negative numbers aren’t integers either, because they don’t exist. Have you ever made a profit of -$50m? Of course not. And why not? Because negative numbers don’t exist. That is, instead of -$50m profit, you instead have a $50m loss. See? No negative numbers!
Corollary: A patent on negative numbers does exist.

Finally, positive numbers also aren’t integers. They’re interchangeably either numerals or digits. This distinction is important, because it meant a company could apply for one patent on numerals and one patent on digits, and sue competitors for infringing both patents.

Patent troll logic FTW!

TKnarrsays:

Reading what the lawyers actually said, it’s LG’s claim that ‘integer’ has the ordinary meaning that’s nonsense. The patent is talking about “an integer multiple of the transmission time interval”, symbolically “n * TTI”. While a negative multiple is mathematically possible, when dealing with data transmission it’s excluded (if you transmit packet 1 and then packet 2, packet 2 can’t be transmitted at a time prior to packet 1’s transmission). Similarly for a zero multipler, a device can’t normally transmit 2 packets at the same time (and if it can, that’s explicitly spelled out which it isn’t here). And as for n=1, the patent owner’s lawyers note that the exact phrase in the patent specification is “The MAC-e PDU is sent to the physical layer every n*TTI, instead of once every transmission time interval (TTI).”. That logically excludes n=1, since that would make the transmission once every TTI and the patent’s talking about sending it at some interval other than every TTI.

So yes, it’s clear from the language of the patent that they’re talking about an integer n where n is greater than 1.

Davidsays:

I don't think the EFF is being honest here

The patent text talked about using an integer multiple of a timeout value if I remember correctly. “integer” in this context is clearly nothing but math-speak and the omission of an n>1 qualifier is not intended to have mathematical significance. At best one could argue whether n=1 was supposed to be included but even that is pretty obvious from the context.

But arguing about n=0 and n

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