I'm specifically interested in US 6873940 patent. The company that currently owns the patent is a company called Kamatani Cloud which is subsidiary of General Patent which some argue (1, 2, 3, 4) is a patent troll company. I'd like to know how classification narrows the patent interpretation and possible infringement for companies that provide cloud services like keylemon, betafaceapi, rekognition or similar cloud service companies that provide speaker identification, face detection or content classification in images, audio or video files etc. The patent is classified as U.S. 702/189; 709/217. In fact the class 709 scope has following clause: "This class is limited to digital data processing systems and functions for transferring unspecified data or instruction information and the processing thereof by digital data processing systems." In every case that I checked with said and similar cloud services all of them process specific data - images, audio files, video files...
More over said patent inventor during patent prosecution process after non-final rejection argued (2004-09-20 Applicant Arguments Remarks Made in an Amendment) that non-novelty based on prior art cited by examiner is not applicable because:
With the stand-alone measurement data input and processing system described in Alexander, there is no need to detect whether the measurement data can be measured by the digital oscilloscope
Since the ECUs associated with client computer device monitor the various vehicle components, there is no need to detect at Chou’s diagnostic server 201 whether the measurement data can be measured.
That is because inventor is arguing that when the data that is being processed is specific and there is no need to detect if server is capable of "measuring"/processing the data then the prior art is not applicable, consequently same logic should apply on evaluating if a, for instance, cloud service is infringing said patent. If one sends photos to process in the cloud and specifically indicates that photos are sent by specifying destination url like http://somecloudservice.com/api/recognizeface and for audio files it would be http://somecloudservice.com/api/recognizevoice then no "detecting whether the measurement data are capable of being measured" is needed. And because the patent in every independent claim requires server capability of detecting if data can be "measured" and notifying client if such capability exists then the patent shouldn't apply for cloud services as mentioned previously.
In Markman, the Federal Circuit held that a court should consider a patent’s prosecution history if it is in evidence, and explained that the prosecution history “is of primary significance in understanding the claims.” 52 F.3d at 980, aff’d, 64 U.S.L.W. 4263.
In Standard Oil Co. v. American Cyanamid Co., 774 F.2d 448 (Fed. Cir. 1985), the Federal Circuit stated that: [T]he prosecution history (sometimes called “file wrapper and contents’’) of the patent consists of the entire record of proceedings in the Patent and Trademark Office. This includes all express representations made by or on behalf of the applicant to the examiner to induce a patent grant, or, as here, to reissue a patent. Such representations include amendments to the claims and arguments made to convince the examiner that the claimed invention meets the statutory requirements of novelty, utility, and nonobviousness. Thus, the prosecution history (or file wrapper) limits the interpretation of claims so as to exclude any interpretation that may have been disclaimed or disavowed during prosecution in order to obtain claim allowance. 774 F.2d at 452 (emphasis added).
In order to obtain allowance of the claims of the ‘712 patent, arguments were made on behalf of the applicant to the Examiner during prosecution that served both to explain the claims in a clear manner and to disavow any other interpretation.
Moreover all independent patent claims except claim 32 clearly indicate that system performs modulation/demodulation, which is "the process of varying one or more properties of a periodic waveform, called the carrier signal" on a basic level. That is claims that use modulation/demodulation terminology automatically limit the possible claim interpretation to that where system in question performs electric or other signal modulation/demodulation in a manner consistent with the claims and term definition.
The claim 32 regardless of not being limited by modulation/demodulation terms has a clear indication of measuring instrument being a physical device:
Claim 32: <...> one of measurement instruments connected to the server computer <...>
In modern systems purpose built physical devices for processing data that are connected to the computer are rarely used if at all. It is an outdated system scheme. All processing nowadays is performed using software which is run by computer (NOT connected to it). One can analyze the patent and see that all explanations and examples use the physical device as a measuring instrument (see Fig. 3, Description) thus narrowing ability to apply this patent to cloud services.
Yet another aspect ow why cloud computing is not related to this patent is the use of "Web site" in patent claim 32
A measurement service method for connecting a server computer and a client computer through a Web site on the Internet (...) wherein applications for measurement services are accepted on the Web site (...)
From patent prosecution document Applicant Arguments/Remarks Made in an Amendment (09/20/2004) p.13 new paragraph
Nor is there any disclosure in the Rogers Patent of providing such an intermediate Web site for accepting applications for measurement services. Applicant respectfully submits that the Rogers passages (col. 9, lines 10-65) referenced by the Examiner at page 3 of the Office Action do not teach or disclose an intermediate Web site. In particular, these passages refer to the operation of the system shown in Figure 4 of the Rogers Patent, which depicts a data input controller 200 “which is similar to a Web browser” (col. 9, lines 15-17) and a networked controller 220 “which is similar to a Web server” (col. 9, lines 17-18), but these passages nowhere describe, suggest or even hint of inserting an intermediate Web site between the data input controller 200 and the networked controller 220 to service applications for measurement Services
can be seen that applicant defends novelty of the combination of original claims 36 and 39 (final claim 32, see final claim index) by underlining the difference between applicants claimed invention and and prior art patent (Rogers) being direct communication between client and server in Rogers and via Web site as in claimed invention. Contrary to using "intermediate Web site" cloud services using combination of REST/RESTful (HTTP) and for instance JSON as data format (which is currently a norm in tech world) are communicating directly to the server. One could also look at definitions of the following words: web site, web page, hypertext to understand the term Web site and it's difference in view of the patent from modern cloud services.
So to put it briefly:
a) is class scope in U.S. patent class 709 regarding "unspecified data" is applicable to cloud services where it is a normal practice to deal with specific data. How combinations of two patent classes 702/189; 709/217 work? Both must apply or only first or second when interpreting claims?
b) during US6873940 patent application inventor argued that known systems that receive known data and process it are different from patented system in that previous systems did not need to detect if received data is "measurable". Is this a strong argument protecting cloud services like those mentioned previously from said patent? Having in mind that there is no need to detect if data is "measurable" in case of image processing requests are directed to URL for processing images and in case of voice processing requests are directed to URL for processing voice. And some cloud services support just images for processing only faces or only classifying image contents...
c) All independent patent claims except for Claim 32 clearly indicate that system performs modulation/demodulation. Here modulation is "the process of varying one or more properties of a periodic waveform, called the carrier signal" thus limiting signal processing interpretation in claims by definition of said terms.
d) Wording in claims and explanation in patent description limit possible interpretations of a "measurement instrument" to be a physical device, especially in Claim 32.