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« Federal Circuit Denies Plaintiff(s)' Petition for Rehearing in AMP v. USPTO | Main | Webinar on Post-Grant Proceedings under Leahy-Smith America Invents Act »

September 15, 2011

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Comments

Very concise and thorough appraisal!

I am not aware of the USPTO having found any claims "obvious", but I could be wrong.

I would like to comment extensively on Judge Dyk's dissent, which I (not a legal professional, but know quite a bit about the law and have studied this case since its inception in 2001) believe is due to a misconception of just what "the controlled environment" is. (In fact, I'm not sure that everyone to do with the case hasn't lost sight of the ball on that matter.)
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I think it is clear that Judge Dyk’s dissent was based on a misunderstanding of the term “controlled environment” … thinking it to be, as I had been writing for months I feared would happen, “the curing barn”.

In fact, I believe that everyone connected with the case, to RJR’s advantage, has been horn-wrestled into the view favoring RJR’s case … that “the barn” is “the controlled environment”. IT IS NOT.

I have written several long writeups explaining this, but I will try to be very brief, and less explanatory, here and see if it works.

The patents’ claims carefully specify that “the controlled environment” is a SMALL VOLUME “around each plant portion” of the load of tobacco within the curing barn. They teach that the conditions IN THE BARN have to be manipulated so that ALL OF THOSE little “controlled environments” around each plant portion maintain an aerobic condition.

Thus the patents teach that one should control the variables temperature, humidity, air flow [both within the barn and between the barn and "ambient" air], and [in the specification] the arrangement of the tobacco leaves themselves within the barn overall such that each little “controlled environment” around each “plant portion” is at all times aerobic (meaning with characteristics, in terms of oxygenation, etc., equal to that of “ambient air” outside the vicinity of the curing barn).

One skilled in the art realizes that it is like a “weakest link in the chain” situation. He/she realizes that one must manipulate those variables (with)IN THE BARN so that the small “controlled environment” around the tobacco plant portion that is the LEAST WELL VENTILATED within the barn remains “aerobic”.

Seeing that, it is perfectly clear, it seems to me, what makes the Williams method “different from conventional curing”: THAT PROCESS.

In “conventional curing” it has never been suggested that one ensure (by manipulating barn parameters overall) that every “microenvironment” within a curing barn … around EACH PLANT PORTION … be maintained in an “aerobic state” in order to substantially prevent the formation of one or more tobacco specific nitrosamines (per the court’s construction of "substantially prevent"). Though a bit complex, the language seems appropriately concise, and completely explanatory when carefully read.

In fact, the (Judge) Michel panel in the first appeal, of the initial I.C. trial result ("Star I"), seemed to appreciate this process/concept MARVELOUSLY. Oddly, Judge Dyk was a part of that Michel panel, and I had counted on him to carry forward that understanding. It is strange (and a bit scary … a close call for Star) the way things work out some times.

I have to admit I like their little drawing.

izof_texas, ochart that was beautiful, standing up clapping hands really fast

Hey Guys!

I was one of the engineers who provided Sierra Mass Flow Meters to measure the mass flow rate, the 25,000 to 28,000 CFM of pai passing through the Barn or the "Controlled volume" which is under concern. I just mention it because it became clear that the mass flow rate of the air passing by the tobacco leaves was causal to the quality of the end product and the measure of the TNSA.

Fun stuff for a rather crazy industry indeed.. If YOU need to measure the mass flow rate of air in a process then take a look at the flow meters from Sierra yourself. They are easy to use and make controlling the environment easy in a feedback loop!

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