“9. It is for the court and not the witnesses to come to conclusions about what the claim means. Subject to the well known exception about technical terms with a special meaning, the construction of a patent is a question of law. So an expert report which seeks to parse the language of the claim, and opine that a particular ordinary English word can only in his opinion have a particular meaning is not admissible, or helpful. Both sides in the present case are guilty of adducing evidence of this kind. …. 11. None of the above requires the expert to go through the claim and give his definition (wide or narrow) of every word or phrase in it. The written evidence in the present case suffered from this excess. Some of the cross examination did as well. It sometimes takes longer to intervene and stop it than it does to let it happen. It should not start.”
“In a presently-used form of ADSL communications, sixty eight data frames and one synchronization frame form a "superframe" that is repeated throughout the transmission. The data frames carry the data that is to be transmitted; the synchronization or "sync" frame provides a known bit sequence that is used to synchronize the transmitting and receiving modems and that also facilitates determination of transmission subchannel characteristics such as signal-to-noise ratio ("SNR"), among others.”
“A superframe is 17 milliseconds in duration. A frame is effectively 250 microseconds in duration (or conversely, the frame rate is approximately 4 kHz) and is made up of a collection of bytes (with one byte corresponding to 8 bits).”
“provide a multicarrier communications system and method that overcome the aforesaid and/or other disadvantages and drawbacks of the prior art, and more specifically, to provide such a system and method wherein the overhead data transmission rate during a communications session may be changed and/or selected.”
“In the system and method of the present invention, the overhead data transmission rate may be changed and/or selected. More specifically, this rate may be selected during an initial negotiation process and/or during a steady state mode of operation.”
“Whereas in the prior art, the first byte in each frame is dedicated to overhead data regardless of whether there is a need to transport overhead data or not, in this embodiment of the present invention, the overhead data transmission rate is determined during start-up and can be modified during steady state mode.”
“[1] A method of controlling a transmission rate of overhead data bits [2] in a sequence of frames in a digital subscriber line communication [3] using multicarrier modulation, the method being characterized by: [4] programming the transmission rate between a minimum rate and a maximum rate [5] and selecting a value for a first parameter (nmax) that specifies which frames in the sequence of frames contain overhead bits and which frames in the sequence of frames do not contain overhead bits.”
“…because of the addition of FEC redundancy bytes and data interleaving, the data symbols (i.e. bit level data prior to constellation encoding) have different structural appearance at the three reference points through the transmitter.”
“10. What is both admissible and helpful expert evidence is something rather different: evidence about the technical interrelationship between rival claim meanings and the teaching of the specification. The expert is well able to assist the Court about the impact of different assumptions about the correct legal construction of the claim. It may be that it is only on one construction of the claim that general technical statements made in the body of the patent about what the invention achieves will hold good. It is perfectly legitimate for an expert to point that out, and to give a technical explanation of why, if the rival construction is adopted, the claim would extend to embodiments which would not achieve the patent’s technical objective.”
“There appears to be an issue with Claim 1 in that the “frames” in the preamble do not appear to be the same "frames" as referred to in the remainder of the claim. The skilled person would appreciate that the general disclosure of the patent uses the term “frame” sometimes to refer to what the skilled person would understand to be a mux data frame in ADSL (see, e.g., ¶ [0012]), and other times to refer to what the skilled person would understand to be the frames mapped to DMT symbols (see, e.g., ¶ [0009]). What matters is the apportionment between user data and overhead data within the overall transmission system. For my following comments, I shall assume that the references to “frames” must be interpreted with a certain amount of flexibility, as this is the only way that the claim can make any reasonable sense.”
“Q. If you look at paragraph 17, you see that the patent explains that the object of the invention is summarised, and it says it is to overcome the aforesaid disadvantages. A.Yes, I see that. Q. So, that disadvantage as we have just been talking about is the fixed mux data frame level overhead, the sync and fast bytes; yes? A. Pause: It seems to be focused on the fact that there is one sync or fast byte in each mux data frame. Q. Yes, that is the disadvantage it identifies that it says the invention overcomes. A. Correct. So there is too much of the bit rate consumed by the transmission of the fast and sync bytes.”
“Where the European patent application contains drawings including reference signs, the technical features specified in the claims shall preferably be followed by such reference signs relating to these features, placed in parentheses, if the intelligibility of the claim can thereby be increased. These reference signs shall not be construed as limiting the claim.”
“They help a real reader to orientate himself at the stage when he is trying to get the general notion of what the patent is about. He can see where in the specific embodiment a particular claim element is, but no more. Once one comes to construe the claim, it must be construed as if the numbers were not part of it. To give an analogy, the numbers help you get the map the right way up, they do not help you to read it to find out exactly where you are.”
“The G.DMT framing structure exhibits poor bandwidth efficiency when applied to the low bit rates required to provide service on the longest loops envisioned for G.Lite.” … Factors causing low efficiency: Factors causing low efficiency: • One sync byte per frame • At least one FEC overhead byte per frame…”
“The inventors have further realised that the requirement for one sync byte per frame is wasteful in many situations. The inventors provide an option to include a sync byte just once for several frames, rather than once per frame.”
“39. As with any consideration of obviousness, the technical results or effects must be shared by everything falling within the claim under attack. This follows from the fundamental principle of patent law, which underpins many of the grounds of objection to validity, that the extent of the monopoly conferred by a patent must be justified by the technical contribution to the art. If some of the products covered by a claim demonstrate a particular property, but others do not, then the technical problem cannot be formulated by reference to that property. Either the products which do not exhibit the property must be excised from the claim by amendment, or the problem must be formulated by reference to some other, perhaps more mundane, technical contribution common to the whole claim.”
“It follows from these considerations that a mere arbitrary choice from this host of possible solutions of such a "technical problem" cannot involve an inventive step (see also e.g. T 220/84 of18 March 1986 , No. 7 of the reasons). In other words, the Board holds that, in view of the underlying general legal principle set out in point 2.4.2 above, the selection of such compounds, in order to be patentable, must not be arbitrary but must be justified by a hitherto unknown technical effect which is caused by those structural features which distinguish the claimed compounds from the numerous other compounds.”
"Has the patentee made a novel non-obvious technical advance and provided sufficient justification for it to be credible? This is the basis of all the reasoning - see e.g. [2.4.2] of AgrEvo. A selection which makes a real technical advance in the art is patentable."
“i) Article 56 of the EPC is in part based on the underlying principle that the scope of the patent monopoly must be justified by the patentee's contribution to the art; ii) If the alleged contribution is a technical effect which is not common to substantially everything covered by a claim, it cannot be used to formulate the question for the purposes of judging obviousness; iii) In such circumstances the claim must either be restricted to the subject matter which makes good the technical contribution, or a different technical solution common to the whole claim must be found; iv) A selection from the prior art which is purely arbitrary and cannot be justified by some useful technical property is likely to be held to be obvious because it does not make a real technical advance;”
“This corresponds to approximately 30 per cent of computed CRCs being in error if the CRC is computed every 17 ms. The G.992.3 ADSL standard requires that the CRC is computed every 15 to 20 msecs. In ADSL 2 and ADSL 2 systems, the period of the CRC computation is called the period of the overhead channel (PERp). The G.992.3 standard requires that 15 ms <= PERp <= 20 ms.”
“Object (sic) of this invention relates to calculating and reporting communication errors and, more particularly, to a method or a module for calculating or reporting CRC anomalies in a consistent manner for all communication connections in a network independent of data rate or the CRC computation period (e.g. the PERp value) of each individual connection.”
“[0042]K=15 ms and PERp=10 ms: CRC computations are combined in groups of ceiling(15/10)=2 CRC computations. The first 2 CRC computations are the first group, the second 2 CRC computations are the second group, and so on. One or more CRC anomalies in a group are counted as 1 normalised CRC anomaly.”
“Q. So one can see that outside that window, one is getting the benefit of the normalisation because you have had the effect of scaling it so as to constrain any variation to be within in this case, 36 to 27, yes? A. That is right.”
“Each case will depend upon the description in the patent, but there is no basis in law or logic for including within the concept of “a person skilled in the art”, somebody who is not a person directly involved in producing the product described in the patent or in carrying out the process of production.” iii) The skilled addressee has practical knowledge and experience of the field in which the invention is intended to be applied. She or he reads the specification with the common general knowledge of persons skilled in the relevant art, and reads it knowing that its purpose is to disclose and claim an invention. iv) A patent may be addressed to a team of people with different skills. Each such addressee is unimaginative and has no inventive capacity. v) Although the skilled person/team is a hypothetical construct, its composition and mind-set is founded in reality. As Jacob LJ said in Schlumberger[2010] EWCA Civ 819 ;[2010] RPC 33 at [42]: “… The combined skills (and mindsets) of real research teams in the art is what matters when one is constructing the notional research team to whom the invention must be obvious if the patent is to be found invalid on this ground.”
“Of course any prior art document relied on must be deemed to be read properly and in that sense with interest. To conclude otherwise would deprive the public of their right to make anything which is an obvious modification of a published document. By ‘obvious’ it is meant that which would be obvious to the skilled person. The correct approach was set out by Oliver LJ in the Windsurfing case. He said at page 74 line 20: “We agree, of course, that one must not assume that the skilled man, casting his experienced eye over Darby [the prior art], would at once be fired with the knowledge that here was something which had a great commercial future which he must bend every effort to develop and improve, but he must at least be assumed to appreciate and understand the free-save concept taught by Darby and to consider, in the light of his knowledge and experience, whether it would work and how it will work”.” “We agree, of course, that one must not assume that the skilled man, casting his experienced eye over Darby [the prior art], would at once be fired with the knowledge that here was something which had a great commercial future which he must bend every effort to develop and improve, but he must at least be assumed to appreciate and understand the free-save concept taught by Darby and to consider, in the light of his knowledge and experience, whether it would work and how it will work”.”
“Q. Anything that is required, so it is given a capital letter "R", for example, and is thus mandatory, is something that any skilled person who was involved in error management, for example, in operating an ISP at the priority date, would need to be very familiar with? A. It would be a reasonable assumption for the kind of person you describe to pay particular attention to those parts.”
“for someone that intends to study and understand, implement, G.992.1 transceivers and, more precisely, wanting to understand the management functions of such transceivers, the G.997.1 document would indeed provide the detailed specification.”
“The logic that I applied, that I believe the skilled person applied would be first to see that number 18 and think, “Why 18” (because any time you see a constant, I think the skilled person wonders where the constant came from) and then, would look at ADSL and realise, based on the structure of the overhead channel and the fact that the CRC has transmitted once every 17 ms, then would work out “okay that is about 30%. I understand that is the traditional level to declare a severely errored second.”
“35. Moreover the PSA does not really cope well with cases where the invention involves perceiving that there is a problem, or in appreciating that a known problem, perhaps “put up with” for years, can be solved. Take for instance the “Anywayup Cup” case, Haberman v Jackel International[1999] FSR 683 . The invention was a baby's drinker cup fitted with a known kind of valve to prevent it leaking. Babies drinker cups had been known for years. Parents all over the world had put up with the fact that if they were dropped they leaked. No-one had thought to solve the problem. So when the patentee had the technically trivial idea of putting in a valve, there was an immediate success. The invention was held non-obvious, a conclusion with which most parents would agree. Yet fitting reasoning to uphold the patent into a PSA approach would not really work. For by identifying the problem as leakage and suggesting it can be solved, one is halfway to the answer – put in a valve.”
“I think that the immediate, let us say, concern of the immediate motivation of an individual that is working for an internet service provider and who is seeing that there is this new standard, ADSL2, which is now coming into the market and possibly equipment needs to be included in the network, would be to look at whether severely errored seconds are reported and whether they are available.”
“It generally only comes into play when one is considering the question "if it was obvious, why was it not done before?" That question itself can have many answers showing it was nothing to do with the invention, for instance that the prior art said to make the invention obvious was only published shortly before the date of the patent, or that the practical implementation of the patent required other technical developments. But once all other reasons have been discounted and the problem is shown to have been long-standing and solved by the invention, secondary evidence can and often does, play an important role. If a useful development was, in hindsight, seemingly obvious for years and the apparently straightforward technical step from the prior art simply was not taken, then there is likely to have been an invention.”