Monday, April 25, 2011

Ogma v. Apple: A Prior Art Odyssey

In an earlier post, I discussed the surprising breadth of one of the claims asserted by Ogma, LLC against Apple.  Claim 3 of the asserted '427 patent reads as follows:

3. An image display system for displaying a video image comprising:

a video screen having a substantially rectangular configuration forming an aspect ratio of the horizontal dimension of said video screen to the vertical dimension of said video screen, said aspect ratio being between 1.45:1 and 1.60:1.

It is simply a claim on an image display system with an aspect ratio between 1.45:1 and 1.60:1.

Invalidating a patent claim requires the identification of appropriate prior art.  The prior art must pre-date the filing of the patent application, possibly by as much as a year, and must be "enabling."

One of my favorite ways to explain enabling prior art is via Star Trek.  If brilliant physicists invented Star Trek's "transporter" technology, the illustration of transporter technology on the Star Trek television series would not be enabling prior art.  While the idea is demonstrated in the television program, there is no description of the technology that would enable a skilled practitioner to build a transporter.

What constitutes "enabling" prior art, however, when a claim is as broad as claim 3 of Ogma's '427?  For a very broad claim, could a mere picture be enabling for prior art purposes?  The Manual of Patent Examining Procedure (MPEP) says "yes." Section 2101.04 states:

2121.04 Apparatus and Articles - What Constitutes Enabling Prior Art

PICTURES MAY CONSTITUTE AN "ENABLING DISCLOSURE"

Pictures and drawings may be sufficiently enabling to put the public in the possession of the article pictured. Therefore, such an enabling picture may be used to reject claims to the article. However, the picture must show all the claimed structural features and how they are put together. Jockmus v. Leviton, 28 F.2d 812 (2d Cir. 1928).

For a claim with only one structural feature, a rectangular screen with an aspect ratio near 1.5:1, what would a picture need to show?  It would seem that merely showing a display with such an aspect ratio would be sufficient.

Screen shot 2011 04 25 at 7 56 38 AM

HAL: Just what do you think you're doing, Dave?

Dave: Eating condiments for breakfast and watching this awesome roughly-1.5-to-1 aspect ratio image display, HAL.

(image from 2001: A Space Odyssey, 1968)


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