More on that Angora cat

From the IPKat's old friend, the much-admired and highly original Mario Franzosi, comes this delicious little confection -- which has greatly amused him. The starting-point for this little essay is a dictum of Lord Justice Jacob (noted by the IPKat here) in European Central Bank v DSS [2008] EWCA Civ 192 to this effect:

"[This litigation] illustrates yet again the need for a one-stop patent shop (with a ground floor department for first instance and a first floor department for second instance) for those who have Europe-wide businesses. The case illustrates another point too: Kitchin J records at [88] that "the positions adopted by DSS before this Court and the CFI are radically different." As he went on to say:

This case therefore seems to me to be a very powerful illustration of why it is desirable to try infringement and validity issues together, where at all possible. If they are tried separately it is all too easy for the patentee to argue for a narrow interpretation of his claim when defending it but an expansive interpretation when asserting infringement.

Professor Mario Franzosi likens a patentee to an Angora cat. When validity is challenged, the patentee says his patent is very small: the cat with its fur smoothed down, cuddly and sleepy. But when the patentee goes on the attack, the fur bristles, the cat is twice the size with teeth bared and eyes ablaze".

Now, says Professor Franzosi,

"When a patent applicant is confronted with the objection of the office that the claim is too broad, he or she (he, once and for all) says that in reality, from the body of the patent, it is absolutely clear that the term has to be understood in a narrow sense. For instance the word "purified" means, he would argue, "purified at 95.33 x 100 or higher", as it appears from the description. So he is able to obtain the patent, with such a broad term.

When it comes to infringement, the patentee would attack a poor infringer (infringers are always poor, so they have all my sympathy) that purifies at 80 x 100, saying that one cannot read unnecessarily limitations into the claims. Since, as Neuberger (judge, as he was) said (I believe in the erythropoietin case, Kirin Amgen) that "life is too short to consider the file history", his argument may fly.

This is the same story that applies to Angora cats (hence, the title). This is the recipe:

1. Take an Angora cat, preferably female (hereinafter, "she-cat"), preferably white, aged 40 to 60 years or higher, colour of eyes: irrelevant (but, if available, one blue; the remaining 3 should be red, yellow and grey, and any combination thereof).

2. Measure the size of the she-cat (of course, in all 5 directions) with a Peabody width-caliber S 22 AA (once in Upssala an old professor in the audience interrupted me and said: "we do not have a Peabody S 22 AA". I replied: "nonsense! Do not create unnecessary difficulties! Use a Peabody S 22 B, instead!").

3. Drop the she-cat into a container that contains (if not, what is the use of containers?) 5 pints (litres, for some other countries) of water. Temperature of water, 22 degrees (I do not remember whether celsius or fahrenheit: one or the other. Preferably, both). If the water freezes, break ice with hammer toefl 66/3KK or equivalent. Keep she-cat in water for 43 seconds or longer. Extract (with a Mausolino manoeuvre).

4. Measure the wet she-cat with the same Peabody apparatus (Vorrichtung, in German: it is an indispensable word for patent people [the IPKat believes this to be the German for 'widget']. Germans have plenty of Vorrichtungen. If you do not have Vorrichtungen, change profession). Repeat the operation 2.6 times (or twice and a quarter).

5. Compare the figures you got under 2, above, with the figures you got under 4, above (by the way: if it is "under" why it is "above"?). You will see that the size of the she-cat as taken under 4 (above) is 35 x 100 (+/- 22 x 100) of the size under 2 (above).

The ANGORA CAT argument shows that a patent can be broad or narrow, depending - now you know!! -whether the patent is wet or dry.

P.S. I forgot to say. It is almost inevitable that you will be scratched when performing the operation under 3 (above, as usual). Don't panic: it is mostly curable. Deaths following infection are recorded in 37 x 100 of instances only (2002 Lancet 456, at 488, 489).

If you want to repeat the experiment more than once, perhaps you may want to wear gloves of the American standard EE33/6F1WW/gloves/R32656.sunflower".

Expanding cat here

Wet cat here
Angoraphobia here