Sunday, February 01, 2009

Polk Wagner, again confused on patent law?

IPBiz has commented on the bad scholarship of Polk Wagner in previous posts [
Bad cite check in U Penn Law Review
Gross error in the eBay brief to Supreme Court in MercExchange case

Gizmodo, nevertheless, went to Polk Wagner for insight on Apple's US Patent 7,479,949 [Touch screen device, method, and graphical user interface for determining commands by applying heuristics ] and here is the result:

To help guide us through, machete in hand, what is one of the more confusing jungles of U.S. law, we talked to R. Polk Wagner, a professor of patents law at the University of Pennsylvania Law School. He specializes in patents and intellectual property as it relates to technology, and teaches hundreds of Penn Law students every year how to decipher the Enigma-level encrypted language of patent filings. We couldn't have done it without him.


The patent we're referring to is #7,479,949, awarded on January 20 of this year. It has a list of 20 claims but as Prof. Wagner showed us, out of the 20, 17 are "dependent," which means they drill down more specifically into features of the invention/interface/device described in their parent claim. In our quick Patent Law 101 with Professor Wagner, we learned that to legally infringe upon a patent, you need to violate an entire independent claim, which means, if you rip off one of its dependents, you're OK, you just can't rip off all of them all together.

Hard to believe Wagner could be so wrong. Perhaps John Mahoney misunderstood. Of course, the error in Patent Portfolios, 154 U Penn L R 1 (Nov. 2005) was pretty bad. And, A. J. Sutter wrote: Clearly, one must apply a very critical eye before relying on any of Parchomovsky"s or Wagner's papers.


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