He failed to post the last sentence in the response from the USPTO
"Rose does not qualify as prior art under U.S.C 102(e)"
U.S.C. 102(e) states that:
(e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or on an international application by another who has fulfilled the requirements of paragraphs (1), (2), and (4) of section 371(c) of this title before the invention thereof by the applicant for patent.
Revised 35 U.S.C. 102(e), as amended by the American Inventors Protection Act of 1999 (AIPA) (Pub. L. 106-113, 113 Stat. 1501 (1999)), and as further amended by the Intellectual Property and High Technology Technical Amendments Act of 2002 (Pub. L. 107-273, 116 Stat. 1758 (2002)), applies in the examination of all applications, whenever filed, and the reexamination of, or other proceedings to contest, all patents. Thus, the filing date of the application being examined is no longer relevant in determining what version of 35 U.S.C. 102(e) to apply in determining the patentability of that application, or the patent resulting from that application.
U.S.C. 102(b) (where the USPTO suggests that Rose qualifies as prior art) states that:
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.
Since this is an issue of novelty, this hurdle will be easy for Lang to clear by either (a) amending the claims in his patent, arguing successfully that his claims are distinguishable from Rose, or showing evidence of "experimental use" - one word LYCOS
Why is it that a patent attorney/blogger would leave out that very significant detail?
Sentiment: Strong Buy
Because of the limited scope of the reexam, the USPTO decision even if it is positive for Google will NOT change the jury finding's of infringement (remember, the the jury found Google infringed an ALL claims).
Because of the limited scope of the reexam, the ONLY potential benefit for Google in the reexam process is in the work-around solution. Google most likely (or cannot according to few observers) will not be able to come up with work-around that is as EFFECTIVE or as GOOD as Vringo patented process if ALL claims are deem valid upon the reexam. Howver, only ONE claim is considered questionalble and its validity is to be determined by the USPTO, can google develop a work-around that is as effective as Vringo's patented process assuming the remaining claim is reversed by the patent office? If the answer is yes and since time is Google is worst enemy, Google should ASSUME or anticipate the remaing the claim construction will be ruled in its favor and IMMEDIATELY code and deploy a work-around process as the only way to avoid paying future royalty.
It is pretty obvious why. It is also pretty obvious that ole danny boy heard the pipes were piping but they were not going to be piped on SA anymore. So now he has his instablog an can publish any #$%$ he wants depending on how he is playing the market at the time. I might be wrong but if he had the opportunity I would have at least expected this bs to be on SA. Good job on spotting this detail that was left out. Wow, for a patent attorney he is getting a little sloppy!
Sentiment: Strong Buy