EFF is being smartass here. I don't know the merits of the case, but the EFF is intentionally mischaracterizing it.
The original patent used "integer" in a place where the mathematician's Z can't possibly be what they meant, and the dispute is over whether the patent covers the "n=1" case or only the "n>1" case.
From the legal files:
> Here, the “integer multiple of transmission time interval” (or “n times TTI”)
describes the interval of time between subsequent new transmissions of packets (called “MAC-e PDUs” in the patent).
> An interval of time between transmissions cannot be negative (which would nonsensically put the subsequent transmission in the past);
> nor can it be zero (which would nonsensically make the transmissions occur simultaneously and instantaneously).
> According to the patent, “The MAC-e PDU is sent to the physical layer every
n times TTI, instead of once every transmission time interval (TTI).”
> If the integer were to be 1, the MAC-e PDU would be sent to the physical layer once every TTI, which is expressly excluded by the specification.”
hi there! no intentional mischaracterization at all. I posted below but I'll mention it again. The patent owner actually originally, at the outset of the litigation, included "1" in their definition of "integer." Later, they changed it to be only "n>=2."
I've seen this before (on BOTH sidees, to be clear): someone changes a plain meaning of a term to avoid losing. Not sure that's what's happening here, but it looks like it.
edit to add: Because of some confusion about the purpose of this post. It is to point out the flaws with the current system.
Words in patents are twisted "like a nose of wax" in order to arrive at a particular outcome (and as I mentioned, both patent owners and alleged infringers do this on occasion). A patent system that allows this then completely undermines the public notice function of patents. A patent should tell the public not only what the patent owner claims to own, but also what is free for others to use.
That failed here. Someone who wants to avoid infringement, on reading this patent, can't tell what they can and cannot do.
In the end, parties are spending thousands (likely millions) of dollars to figure out what "integer" means. Why? Because the patent owner, who was in the best position to tell the world what she invented, used a word that has a very precise meaning when other words could have avoided all of this.
If they changed their position, that seems more telling to me than the "hurr, durr, they think integers start at 2" tone of this article. (Although it may simply have been that it wasn't given much thought initially.)
In any case, the EFF loses credibility when it overstates the position to make someone look more ridiculous than is warranted.
Thanks for clarifying. The point that matters here is, word games aside, what is the legal difference between "the integer can be 1, 4, ..." and "the integer can be 4,..." (excluding 1)
As someone who has ordinary skill in mathematics, (and cperciva above, who has extraordinary skill in mathematics, agrees), I see the use of "integer multiple" here not as a unambigious plain meaning at all. It's akin to saying "This patent covers the use of lasers in blah blah" -- did the patent intend to include a case where exactly one laser is used? The answer depends on context -- real lawyering, not language-lawyering.
Yes, as you'll see in the post, we note that patent owners can redefine words, and that's ok.
But where the issue comes up is if that's not clear. Patents are supposed to put people on notice of what is--and conversely, what is not--free for others to use. Here, by using the word "integer", which has a very precise and definite meaning in math and science, that conveys certain information.
Part of the problem with the current state of our patent laws is that claims are not clear and the public isn't on notice of what the patent owners are claiming. This discussion is a good example of that. If the patent owner was clear in what they meant, would we be having this discussion. Would the patent owner itself have claimed that "n=1" infringes if it was clear that n>=2?
Mathematics precisely defines the term "integer." Mathematics also provides quick and easy ways to exclude "1". None of that was done here, to the detriment of the public's notice of when they were infringing.
Patents, despite how esoteric they have become, are ostensibly written for those with skill in the art. If we're all having problems understanding what, exactly, the patent owner meant (including the patent owner!) there's a problem.
> Yes, as you'll see in the post, we note that patent owners can redefine words, and that's ok.
They can do that in this case if their only use of the word "integer" in the entire spec is in reference to this parameter, and if it has been otherwise clear all along (at least "to someone skilled in the art") that it doesn't make sense for the parameter to be less than two.
If I write a spec in which some number occurs that can only be 1, 2, 3 or 4, and it is the only integer, and the constraint to those four values is clear all along, there is no harm with later adding a glossary item which says "integer: in this specification, a noun denoting one of the values 1, 2, 3 or 4". It just reflects the fact: the only use of integer in the spec is in reference to a value which is one of these four.
If the 3 case infringes on some other patent, but the 1, 2 and 4 cases do not, what's wrong with reducing the scope of the patent by removing 3, and adjusting the glossary item?
Of course, patent holders shouldn't have infinite latitude in remotely manipulating the meaning of the text at will by means of shifting glossary entries.
> there is no harm with later adding a glossary item
When are you adding this? If you do that when obtaining the patent, all is well and good.
If you do that in court, after saying otherwise, as has been done here, there's quite a lot of harm. People have a right to know what is and is not patent infringement, as they're on the hook for big money.
If you can just change what your patent does and does not cover, on a whim, when fishing for money in court, there's quite a lot of harm in that. Millions of dollars worth of harm. Nobody had any way of knowing what idiosyncratic definitions of words you were using and yet everybody else was responsible for not infringing upon your patent.
OK, it does sound like CW misunderstood their own patent in an earlier filing. And maybe that technically makes them lose the point.
But CW's current filing contains this:
According to the patent, “The MAC-e PDU is sent to the physical layer every
n*TTI, instead of once every transmission time interval (TTI).” If the integer were to be 1,
the MAC-e PDU would be sent to the physical layer once every TTI, which is expressly
excluded by the specification.”
In other words, the specification excludes the n=1 case, and the n<1 cases are nonsensical.
Exactly. They're not redefining "integer", they're saying that in the context of talking about an "integer multiple" of a time period it should be obvious that they mean double, triple, or higher integer multiples.
This is actually pretty scary. It's as if they are stretching the truth for their own political purposes. Kind of like politicians do all of the time. Kind of like Rolling Stone does when playing loose and fast with the facts. It's unfortunate (assuming you and the gp comment are correct I didn't read the documents) that EFF is doing this type of thing.
Out of context? Sure. But given this amount of context, while I still feel inclined to disagree with their reading that n > 1, in my mind it's now gone from completely preposterous to a reasonable discussion.
The part that really bothers me in all this is that, reading the EFF article, I was wondering why they kept going on about how absurd it is to argue that 1 isn't an integer, but then never specified how the patent trolls came to make that claim. It's now pretty clear to me: because if they had explained it, people might actually have thought it to be a reasonable argument.
I held the EFF in pretty high regard before. After this? I'm not so sure any more.
Well, the thing about that is that the patent holder first said it covers N=1 and then that it doesn't cover that.
N=1 is hardly an unreasonable multiple to choose for a time interval. If they meant something other than the mathematical definition, they should have properly defined it.
We would never say that the compiler should have known from context that I obviously meant unsigned int when I wrote signed int. Patents are also written in formal language.
No one should have to guess about what they might or might not cover when there are huge financial penalties for being wrong, or even being close enough to being wrong to wind up in court.
So is it obvious that n=1 is included or excluded by this context? The patent holder believed that it obviously was patented by them until they realized that would be problematic.
Then they decided that it obviously was not covered by their patent.
I don't think the courts should play this game any more than your compiler should simply decide it can figure out what you really meant whenever your program contains an error.
Words used in patent claims are always defined by how they are used in the context of the patent description.
You can't read the claims and think you understand what they cover, without reading the description. A thesaurus doesn't matter, wikipedia doesn't matter, the opinion of an math professor doesn't matter. Patent description.
That doesn't explain whether or not the N=1 case is covered by an "integer" multiple of time steps. I'm not aware of a definition any definition of the term integer which does not include 1, which is what the EFF is mocking here.
Even the patent holder said N=1 was obviously included... until that presented a problem and they decided it was obviously not what they intended.
Why is it the case that people believe that the public, who did not write this patent, should have to guess regarding what it may or may not cover when they're also at threat of millions of dollars in penalties should they guess wrong? And that's neglecting court costs & attorney's fees, which are almost always a sunk cost--you pay them merely for getting sued and you have essentially no chance of recovering any of that, even if you're right, unless they essentially get laughed out of court because it's your burden to prove that the case was exceptionally bad... even though you did nothing wrong.
Sounds like they had to exclude n=1 due to prior art. (In a patent, "Do Y instead of X" sounds like there's prior art for X, and Y is what's different with this patent.)
They phrased it somewhat confusingly though. They could have just said that while "an integer multiple" technically includes the case 1, 0, -1, etc. those cases are clearly excluded by the rest of the patent. There's no need to change the definition of the word "integer".
This is quite exaggerated; looking at the actual document [1], it's clear that they're claiming that in the context of the specification, "integer multiple of transmission time interval" doesn't include negative multiples, or 0 or even 1 * transmission time interval. As much as I don't like patent trolls, I see pretty clearly that the intent is 2, 3, 4, etc. times the transmission time interval.
Thanks for the comment. While I agree that the negatives and zero would not make sense, the interesting case is "1" in particular.
Although it's not in the post, the patent owner actually originally accused n=1 as being part of the infringing apparatus/method. I don't know when/why that changed, but presumably it was because they realized they wouldn't win if that was true. It is this sort of game playing that is problematic. https://twitter.com/vranieri/status/647179711563431940
"Integer" has a defined meaning. They chose that word, but it seems that they don't like the implications of that word.
There are lots and lots of ridiculous patent and patent claims occurring in the US. I'm glad that the EFF is fighting against them.
But this particular paragraph in this particular claim is by no means an abuse of patent law. The patent is about an "integer multiple" of a time period, which obviously excludes 0 and negatives, and arguably excludes 1.
If there's something else going on here, then please add it to the article. But otherwise, consider that when you stretch the truth to support an honorable cause, you are making that cause less honorable.
I don't think it's obvious that an "integer multiple" of a quantity necessarily excludes 0 or 1. I could accept that it excludes zero if from the context that would make no sense. But to presume that it excludes 1 is a bit too much.
I'm not sure if I agree with the EFF's position completely, but I see where they're coming from.
Let's say that I was implementing linear backoff. I do this by multiplying my base delay time by an iterator i, where i starts at zero and count upwards. Sleep time = delay + delay * i. So after the first failure, we sleep "delay", and after the second failure we sleep "2 * delay", and so on. If I was describing this in words, I might say that I was multiplying the delay constant by the integer multiple i. In this context, it clarifies that the number is a whole number as opposed to a fraction.
When a patent covers X, Y, and Z, (or, 1,2, and 3) and it turns out that X (=1) is unpatentable, would that make Y and Z unpatentable?
Anyway, EFF does a disservice by through flame on the issue instead of explaining it clearly. I still have no idea who is suing over over what, and why it matters what "integer means".
Suppose the word integer weren't used at all -- what would it mean if the patent had originally stated explicitly "integer greater than 1" vs "integer greater than 0" ?
Please advance the conversation forward, don't muddy it up with grandstanding rhetoric.
In a patent, what matters are the claims at the end. These are what defines what the inventor claims to have a right to exclude others from doing.
If a patent claim covers X, Y, or Z and it turns out that yes, X was known in the art, then yes, the patent will be invalid.
In plain English: Suppose someone claims to have invented doing a thing once, twice, or three times. That patent would give them the right to exclude anyone from doing that thing once, twice, or three times. But if people have been doing that thing once for years, the patent owner is attempting to exclude people from doing things that people already do. That's invalid. The court will not rewrite the claim to save it to being only 2 or 3 times--there may be other ways to do it, but the court is not that way.
It seems clear that they used the word "integer" to clarify that only whole number multiples were allowed, and not 1.5, 2.7, etc. As to whether 1 is allowed, that's not determined one way or the other by the use of the word "integer".
As to the patent owner originally accusing n=1 being part of the infringing apparatus/method, I agree that they shouldn't have done this if n=1 doesn't make sense in the context of their patent. That's more likely the mistake then the current CC.
Yes, the problem is for whether 1 is allowed or not -- do you infringe if integer includes 1?
The point of the article is to show how words--even words with very well understood meanings--are often not clear. This is a problem for someone who reads this patent. How can they be sure whether what they do is in or out side of reach of the patent claims?
The patent owner, if they intended to only claim {n>=2 |n e N}, could have easily and precisely done so. It is problematic that it is not until expensive litigation and thousands of lawyer hours will we know whether n>=1 or n>=2 or even something else or nothing at all.
The problem is that people aren't willing to pay very much for a patent application, and so the drafter doesn't really have enough time to scrutinize every single word.
It's not at all uncommon to spend 100 times as many lawyer-hours litigating a patent as you spend drafting it.
If the usual meaning of "integer" clearly doesn't make sense in this context, then we're already into the territory of coming up with a non-standard definition (unless it's just indefinite at that point). So in that case, why is {1, 2, 3, ...} OBVIOUSLY more sensible than {2, 3, ...}?
> why is {1, 2, 3, ...} OBVIOUSLY more sensible than {2, 3, ...}?
Because that's the definition the patent holder originally asserted when suing, only to suddenly change their tune when there turned out to be prior art for n=1.
People spend a lot of time making sure that all the words in a patent are exactly so. You'd think they'd have made it a tiny bit clearer on exactly which set of numbers they were including (or not including), as they patent actually says they've patented even negative multiples of a time interval when that's self-evident nonsense.
We can sorta figure out what they probably meant, but that's a really bad idea for essentially the same reason that having a compiler that decides "I really think you meant to put a semicolon there" is a bad idea.
When we all know that a sane compiler should reject all garbage input. If you don't say what you actually mean, nobody actually knows what has been patented any more than we can claim to know the results of undefined behavior in a C program for all possible systems.
And these are comparable situations because they both involve the errors inherent in trying to interpret incorrectly written statements in a formal language.
> Because that's the definition the patent holder originally asserted when suing, only to suddenly change their tune when there turned out to be prior art for n=1.
That seems not only legitimate, but outright necessary. If the n=1 case corresponds to someone else's patent, but the n>1 cases don't, then the n=1 case must be excluded, right?
> Essentially the same reason that having a compiler that decides "I really think you meant to put a semicolon there" is a bad idea.
Compilers do exactly that sort of thing, so they can continue parsing and hopefully give you more diagnostics. (Correct, useful diagnostics, needless to say.) It's called error recovery and sometimes involves inserting tokens into the parse stream.
Error recovery was hugely important in the era when programmers submitted decks of punched cards to some clerk behind a window. But even today, we are still greedy for shorter edit-compile-run cycles, no matter how short they are. If I made four syntax errors, I'd rather fix them in one go than to invoke the rebuild four times and fix one at a time.
> That seems not only legitimate, but outright necessary. If the n=1 case corresponds to someone else's patent, but the n>1 cases don't, then the n=1 case must be excluded, right?
The patentee can amend his claims while a patent application is still pending, but a court isn't going to do it for him post-issuance just because of prior art.
Yes, but they issue a list of errors that need fixing, rather than a broken binary (assuming your compiler isn't broken, anyhow).
As mentioned below, it's their responsibility to write the patent correctly. Once it has been issued, it's too late to modify it, though they often try this with creative interpretation.
Similar to what was said to Humpty Dumpty, there's a question of whether they can have it mean N=1 and N>1 at the same time.
But exclude n=1 from the patent just reduces the scope of the claims. The n=1 case turned out to be infringing on something, right?
If a patent has some parameter space, and some values of that space infringe on something, where others do not appear to, then it makes sense to exclude those values.
> They chose that word, but it seems that they don't like the implications of that word.
But, out of context, the word has implications of denoting 0, -1, -2, ... those were present and clear when they initially chose the word.
Anyway, how about that C language, redefining integers to be between INT_MIN and INT_MAX! And what to make of these "unsigned integers". That's a total oxymoron; I mean the C constant 5U is positive. Positive is a sign. So, not unsigned! :)
Article is a complete strawman. The patent troll's arguments are that a specific integer parameter in question cannot be less than two, not that all integers are not less than two. I.e. that in some specific narrow context, because of other features of the specification, it is to be understood that even though the number is referred to as an integer, that just rules out fractions and real values, and doesn't mean other constraints on the value have gone out the window.
Evidently there is a history of some waffling in that 1 had been included previously (probably because the 1 case turned out to infringe on something, so they wanted to exclude it). Regardless, they had excluded zero and the negative values from the beginning, it appears.
So sick of patent trolls. But at the same time I am very angry with big companies who managed to pull through lawsuits when they got sued. They should strike back and crush those low-lifes to pieces.
This sentiment is quite common, but the reality is that patents trolls are simply a few pieces of paper (IP, Articles of Incorporation, Short term contracts for rent and consultants) and thus a difficult target. If you were to challenge and destroy their IP in court, you would prove it worthless and they would disband, recapitalize, acquire more IP and reincorporate.
The original patent used "integer" in a place where the mathematician's Z can't possibly be what they meant, and the dispute is over whether the patent covers the "n=1" case or only the "n>1" case.
From the legal files:
> Here, the “integer multiple of transmission time interval” (or “n times TTI”) describes the interval of time between subsequent new transmissions of packets (called “MAC-e PDUs” in the patent).
> An interval of time between transmissions cannot be negative (which would nonsensically put the subsequent transmission in the past);
> nor can it be zero (which would nonsensically make the transmissions occur simultaneously and instantaneously).
> According to the patent, “The MAC-e PDU is sent to the physical layer every n times TTI, instead of once every transmission time interval (TTI).”
> If the integer were to be 1, the MAC-e PDU would be sent to the physical layer once every TTI, which is expressly excluded by the specification.”