by Dennis Crouch
Disney v. Rea (Fed. Cir. 2013)
Disney's Patent No. 5,963,915 covers an internet purchase method. The patent was filed by Steve Kirsch and originally owned by his company InfoSeek that was purchased by Disney as part of what Wikipedia calls the "expensive failure" of Go.com.
The patent issued on October 5, 1999. On October 4, 2001 (less than two years later), the patentee filed a broadening re-issue application that claimed a one-click purchase method to rival that of Jeff Bezos. Over the next eleven yars, the patentee argued back-and-forth with the PTO examiners over a variety of patentability issues. In due course, the patentee kept the application alive by filing three requests for continued examination (RCEs) and one administrative Appeal along with more than 100 different patent claims. After losing at the BPAI, Disney then filed a civil action under 35 U.S.C. 145, asking the district court to order the USPTO to issue the patent. However, Federal Judge Brinkema sided with the USPTO and found that the claims as presented were invalid. Disney then appealed to the Federal Circuit.
Now, Disney and the USPTO have settled the appeal with the agreement that Disney will drop its appeal of pending claims so long as the USPTO (1) allows Disney to file another RCE in the case and (2) considers amended claims presented by Disney in a manner "consistent with the district court's decision" and considering the evidence presented at trial. As part of the settlement, Disney also agrees that it is not entitled to a patent on the claims that were currently on appeal and agreed to pay the ~ $100,000 in appellate costs spent by the US Government.
In a joint brief, the parties suggest that Disney could still file a broadening continuation reissue application (while the civil action and related appeals are still pending) but could not file an RCE unless the case was remanded to the PTO. It is unclear to me what actual benefit Disney receives here from the remand/RCE instead of filing of a continuation.
The settlement document is not yet publicly available.
Over at Gene’s echo chamber, the redoubtable Eric Guttag posts:Joe has also correctly noted that we in the “real†IP world need to do a better job at turning this “anti-patent†PR game around. Many of the anti-patent forces are very devious in spouting their anti-patent rhetoric, and hoping/expecting the general public to blip over the lack of factual support for this rhetoric ….Gee, that sounds a lot like the Republican party’s position regarding, e.g., banning gay marriage, destroying social security and dismantling every attempt to reduce healthcare costs for citizens: “We need to figure out some clever ways to convince people to buy what we’re selling.”Good luck with that, Eric. You’re going to need it. As you’ve been informed many times, the efforts to fix this broken system are not going to be disappear. They are growing and they are going to continue to grow until the patent system is substantially changed for the better. You’ll know we’re getting close when the number of patents granted and the number of applications being filed starts to plummet. Until then, well: just enjoy the present state of affairs while it lasts. Or scream at the sky. Your choice.
Actually, I agree with you to a great degree MM on all points. I just would paint all Republicans with such a broad brush. There are some libertarians among them, as well as some social liberals. Moreover, Republicans as a whole are in favor of reducing medical costs. They just do not believe that the O-man’s approach of instituting a government monopoly will achieve that without the side effect of rationing. Just look to Canada, England or such. Rationing is part and parcel.
They just do not believe that the O-man’s approach of instituting a government monopoly will achieve that without the side effect of rationing.Question: So what do they believe?Answer: More pain and suffering for everyone who isn’t rich like them. Because “side effects.”Once you digest this basic fact, you can explain pretty much every Republican policy position.
Well, MM, to the extent any of them do want to inflict pain and suffering because that is a good thing to them, I would agree with you. But I think that most of them believe that a rising tide raises all boats and the best policy to promote policies that promote growth while protecting those who simply cannot protect themselves. They also suffer by constantly nominating businessmen who by nature may be good at running things but who also by nature may not fully understand the plight of the less fortunate.
most of them believe that a rising tide raises all boatsThat’s great, if everyone has a boat. But everyone doesn’t have a boat. Only very few people have boats.The Republicans have no interest in creating “rising tides” that lift everyone. A rising tide that lifted everyone would take the shape of a helicopter drop of money, say, $5,000, into the hands of everybody, no strings attached. That is the exact opposite of what Republicans want. Republicans want the money to be given to their rich friends. Then (according to the discredited theory), their rich friends will “create jobs.” Or instead of money you can give them more patents. That works, too. Just hand out more patents and the jobs will magically appear. Sure they will. the best policy to promote policies that promote growth while protecting those who simply cannot protect themselvesTo the extent that any Republicans believe this, they are a virtually silent and irrelevant minority. This is not a Republican policy. And it never will be unless there are radical changes. That’s not what the modern party is about.
MM, I simply cannot believe that most R’s are as callous and greedy as you make them out to be. Some, of course. Most?That said, people do tend to vote their interests. If R’s are well off, then they will oppose anything that threatens that. In contrast, D’s seem to think of the less fortunate first. But that does not mean their policies are going to work as opposed to causing harm. Good intentions are not enough.
https://scontent-a-ord.xx.fbcd…
Oh, how cute! Our resident troll thinks he’s one of the “reasonable people” because all government leaders are equally bad.Tell you what, TB: just let me know when Obama starts a pointless war that kills hundreds of thousands of people based on “intelligence” that half the population can see is cooked-up nonsense.Also let me know when Obama starts appointing anti-science Bible-thumpers to key science posts.And by all means let me know when Obama starts advocating for dismantling social security and basic services for poor people because it’s better to give the money to super rich people and let it “trickle down”.Then we can talk about your silly “they’re all the same” nonsense. In the meantime, you might want to find a better source of information that the puke funnel your using now.
war: Starts…? or continues? appointments: you are kidding right? (NWPA, please update Malcolm)Another Malcolm FAIL.
Why are you QQ ing about a different site here?Especially as all that you ever do Malcolm is provide your own self-contained echo chamber. I’ve invited you to comment on the law and learned treatise writers in several threads now and all that you want to do is your mindless blathering QQ.Highlighting added since Malcolm has difficulty reading.
I’ve invited you to comment on the lawLOL.
Typical vacuous post Malcolm.@ta boy.
That’s some pretty devious anti-patent rhetoric there, MM. Nice work.
Off topic, just a bit. Proposition, all functional claims must be construed to cover the corresponding structure, etc. … and equivalents.Authority: Fn. 11 of Application of Fuetterer, 319 F. 2d 259 – Court of Customs and Patent Appeals 1963. That note said 112(f) was intended to restore the law regarding functional claims, “means” being just an example, to its state prior to Halliburton. What state was that? It cited Westinghouse. Westinghouse construed functional claims just so — to cover the corresponding structure, etc. Note, that the claim under consideration in Westinghouse was not in MPF form. Also note, that the rule of construction applied where the novelty lay in the one element, not in old elements.
You guys are relentless. We’ll give you a patent let us just make it worthless. Let’s be clear. If a patent application had to include all the different possible embodiments for information processing, then the application would be 1000’s of pages long. That isn’t the point of a patent application. Those skilled in the art know the metes and bounds of the functional claims. The functional claims convey structure. LizardTech explains well how to police the scope of claims.You guys are relentless.
Hey NWPA, did you hear the news about your brosef Turing? He got pardoned, officially, for his gayness a couple of weeks ago.
When I read that Turing had been pardoned for being convicted of homosexuality, I was appalled at his original conviction. The man was critically important to the Allied war effort against the Third Reich. We may not have won the war but for this man. What a black mark on British history. Black. Almost as black the Roman church excommunicating Galileo for suggesting the sun did not rotate about the earth.Imagine if our president were to persecute such a hero, a man that perhaps had exposed unconstitutional spying on the American people.
Ned, earlier you scoffed at me when I told you the story of Turning. But, aside from that, you should read about the Church-Turing Thesis. And, information and physics. You would not be able to hold your views but for your ignorance.
It is a purposefully chosen ignorance at that.Just like Ned’s ignorance of copyright law and what that law entails as to what software is: a manufacture and machine component in its own right. Somehow Ned always seems to think that software somehow magically appears anytime you have a physical computer already present – as if the computer alone is the invention, that the part of the statue (101: any improvement thereof) does not exist, and that all improvements by way of software are somehow void or subsumed into the original invention of the computer (the vacuous and debunked ‘House’/Morse view).He steadfastly (and inexplicably) refuses to even acknowledge the bridge created by the exceptions to printed matter doctrine that is the legal mechanism that makes the printings of software – functionally related as they are – a manufacture in the patent sense of the word.
Anon, you have my thinking on programmed computers exactly backwards. The computer itself is generic and not new. Stored programmed computers generically were invented circa 1946. Changing the program does not change the computer, which remain a bunch of circuits connected to each other.The program can exist anywhere but essentially is described as a series of steps — a method. The infringer is the one who perform all the steps, e.g., the person who executes the program.I do agree that a computer with new programming permanently made part of the machine defines a new machine.
“Changing the program does not change the computer”Wrong in fact.Wrong in law.See Alappat.And Ned – why is it that you completely disappear when I ask you about the exceptions to the printed mater doctrine?I mean, like you completely leave the scene and exit the discussion. Do you not understand the controlling law? Or is it that you simply have no answer to that controlling law?Add: “Stored programmed computers generically were invented circa 1946.” – that’s like saying all chemistry was invented with electrons, protons and neutrons in the first few minutes of the universe. The ‘House’/Morse banality continues.
Ned states: “I do agree that a computer with new programming permanently made part of the machine defines a new machine.”Well besides your non-legal insertion of ‘permanently’ (Ununpentium anyone), you are at least taking a baby step in the right direction.Now if we can get you to realize the analogy to rivets, tires and bullets as manufactures and fully patent eligible in their own right, and get you to realize the exceptions to the printed matter doctrine that provides the legal bridge for software to be a manufacture, we will be getting you closer to being intellectually honest.After all, it is still an unassailable FACT that software is equivalent to firmware and is equivalent to hardware.
I guess there are at least two anti-gay gay bashing haters that are hating on his pardon. Pity.
I think it is very good news that he did. Shameful the way the British treated one of the greats in science and math. Shameful.
You act like it was just the brits, mericans did the same iirc.And people in other parts of the world would have simply killed him and been done with it. So meh. Putting him in jail, all said, might have been the most civilized response he could get anywhere in the world at the time.
The functional claims convey structure.Don’t forget to click your ruby slippers together.
” ‘Configured to’ is structural language”I know a certain person that volunteered that admission against interest…
I know a certain person that volunteered that admission against interest…Right, just like when you volunteered to your probation officer that you like to sit in the bushes near the elementary school and take pictures for your “research project.”Fun game. You’ll start the next round as usual, TB?
Speaking off-topic a bit more, MM, what do you thing of the NY Times recommending a pardon for Snowden?
That’s not what the NY Times recommended, Ned.
True, but unless he gets a deal with the prosecutors that effectively is the same thing, he will not return.
what do you thing of the NY Times recommending a pardon for Snowden?I agree with the NYT that Snowden is (or should be considered to be) a bona fide whistleblower and not some sort of “traitor” deserving of 20+ years in prison. We should be thankful he did what he did, when he did, so we could start taking some reasonable steps to curb the madness.Ten or fifteen thousand fewer NSA employees and a couple hundred more patent examiners would be a great start.
Agreed.
I heard that.
link to theverge.com…Because Big Data says this kind of stuff should not be protected by patents.
Around the merry-go-round yet again with you. Note the difference though about my merely noting what you have actually said and what you make up to say about me.Let’s try to be just a little intellectually honest Malcolm, m’OK?
Computer programmed to do X is really a method claim.
Just a note, what we are talking about with functional claims are combination claims to real structure where the structure or material is claimed in terms of the result it achieves or what it does. While 112(f) layers in method claims, it is hard to imagine exactly how 112(f) applies to a method claim that are inherently functional and must by their nature describe actions. I have never seen, ever, 112(f) being applied to a method claim. Has anyone?
Try Step Plus claims.(lol – I update Ned and he thanks someone else who later gives the same info – nice job Ned)
I’ve seen “step plus function” claims on a few occasions, but at least in the computer-related arts, the claimed steps generally provide their own acts sufficient to perform the function, and so 112(f) is not invoked. I could only assume that this is more of an issue in, e.g., the chemical arts, where you might recite only the outcome of the step and thereby invoke 112(f).
ApoTu, thanks. I can see that if one simply states the result of a process in a claim step that one might invoke 112(f). But I have never seen 112(f) invoked in any Federal Circuit opinion or for that matter CCPA. It would be interesting to see just how they would handle it.
Once again, Ned, you purposefully ignore the law. See Alapppat.
I’m sorry, anon, but a majority of the Federal Circuit en banc held in Alice that programmed computer claims were effectively method claims. And this is good as methods can be claimed functionally with no problem under 112(f) that I can see.
Alice?Try again Ned – read the impact from Alice per the Chief Judge…add: in Alice(let me know if you need that reference that you supplied on how NOT to create law from dicta)Add: Sorry Tony, Prof. Chao (with his obvious bias) is merely kicking up dust with his rendition of the Marks Rule. The clearest meaning of that rule is exactly as Chief Judge Rader noted in the decision when he said the decision other than the judgment (precisely because it is the judgement itself that is the narrowest grounds) has any precedential weight.
From Accenture v. Guideware, majority, No. 2011-1486, Sept. 5, 2013 reported at link to scholar.google.com…Although CLS Bank issued as a plurality opinion, in that case a majority of the court held that system claims that closely track method claims and are grounded by the same meaningful limitations will generally rise and fall together. Id. at 1274 n.1 (Lourie, Dyk, Prost, Reyna, & Wallach, JJ., plurality opinion) (“[E]ight judges, a majority, have concluded that the particular method, medium, and system claims at issue in this case should rise or fall together in the § 101 analysis.”). Those judges came to that conclusion because the method and system claims were so closely related that the system claim essentially implemented the process of the method claim on a general purpose computer. See id. at 1291 (“Despite minor differences in terminology . . . the asserted method and system claims require performance of the same basic process. Although the system claim associates certain computer components with some of the method steps, none of the recited hardware offers a meaningful limitation beyond generally linking `the use of the [method] to a particular technological environment,’ that is, implementation via computers.”
Anon,Not sure it’s that simple. Read this post – link to patentlyo.com…. “Ironically, under the so called Marks rule, Judge Rader may not just be wrong, his opinion could be considered the holding of the court.”
Can I ask you a pragmatic question with respect to Lizardtech, because I think that should be the standard too, but let me ask about two hypotheticals:1) Applicant states how to achieve a function, doing steps A, B and C. But Applicant then claims the entire function as a scope. Let’s say the Examiner posits that different steps X, Y and Z could achieve the function. Applicant hasn’t shown he’s in possession of X, Y and Z, so a 112, 1st is proper, correct? Does simply raising that X, Y and Z could achieve the function enough to sustain the 112, 1st? Must Examiner even mention X, Y and Z or can he simply state that Applicant has provided no proof that he has filled the scope? Must Examiner provide proof that X, Y and Z can do it? If he must provide proof, doesn’t that effectively neuter 112, 1st since it would be a 103 to prove it anyway? If Examiner need not provide proof, what is the basis by which Applicant can overcome the 112, 1st, and won’t that just invite every case to the Board?2) The Applicant states his computer can do a function and claims the function in a limitation. Applicant provides no steps further describing the function. Is a 112, 1st rejection proper? If so, can it be overcome? By what standard, keeping in mind the only thing the specification says is that applicant possesses the function.
In the computer-arts, every function is fully enabled and possessed upon description of the function, unless that function is described in the prior art. If the function is described in the prior art, then it’s just “science fiction” that nobody could have implemented (otherwise they surely would have implemented it because look at how many people are doing this fifteen years after the application was filed). Typically, the prior art isn’t enabled because even though the “technology” necessary to achieve the recited functionality existed or was readily understood to be attainable at the time of filing, other people (sometimes known as “potential defendants) hadn’t spent the money to build and/or market the infrastructure and/or devices which would make the actual implementation of the invention (and the inevitable lawsuit) commercially feasible.
Must you soil every post.
“Must you soil every post”That’s what he does. – But you will notice how he avoids substantive discussions on actual points of law (or fact). He is a QQ-‘policy’ machine, spewing the worn rhetoric at every opportunity. It is the same old CRP-runaway from counter points-CRP again routine that he engaged in forever and a day.As I have explained in the past, the bane of low quality posting is exemplified by Malcolm – no change in software will suffice to remove that bane.
Exactly right. Computer algorithm inventions are enabled per se. As you have often put, you as a 14-year old already had the skill to program any and all computer algorithms put to you.Saying there is something wrong with computer algorithm claims under 112(a) or (b) is almost ludicrous.
Ned, you realize of course that Malcolm’s statements regarding 14-year olds are meant derisively only, and that he believes that it takes a Flash of Genius in order to earn a ‘true’ patent (no matter what the law actually says, and no matter what our founding fathers wanted our patent system to be), right?
Malcolm’s statements regarding 14-year olds are meant derisively onlyNo, they are meant to to illustrate the contradictory and hypocritical positions adopted by the softie woftie patent teabaggers whenever anyone attempts to discuss their junk claims with them.
LOL,Well, there you go again…You Accuse-Others gambit highlights your own contradictory and hypocritical position about just who can invent (and what fields of art legitimate inventions can inhabit), as you merely throw out ad hominem name calling at the particular art field most aligned with the type of group that the founding fathers most wanted the patent system available to.Sad thing is, I think you do know this, and yet cannot help yourself.
I haven’t been on the board long but I really don’t understand the downvotes for asking the question. He says apply Lizardtech. I’d like to know how Lizardtech should be applied.With respect to me, NWPA’s statement that it would take 1000s of pages is a strawman. There does, believe it or not, exist a happy medium between having to explain each and every possible embodiment and asking for more than a single sentence. Nor does “those skilled in the art know the metes and bounds of the application” help. Indefiniteness and written description are separate rejections. It doesn’t help to particularly define the bounds if you’re going to ignore enablement and written description, since that would just allow anyone to transform a patent wish into a patent monopoly with no work.Let’s start with the premise that proving that you are the first person to do a function (that could be achieved in a multitude of ways) in one particular way does not entitle you to every way of achieving the function. Now, either you have a quibble with that premise, in which case we can have a legal debate, or you have to explain to me how you would go about differentiating them ex-ante, rather than ex-post (which the court in Lizardtech had the benefit of). NWPA seems to agree with me on the premise. Please explain how you handle the implementation of Lizardtech pre-issuance.
The premise is said wrong. You are entitled to the scope of enablement.
Akin to the claim of a manufacture: You are the first to claim a nail. Let’s say for argument’s sake the nail meets 102/103/112 and the rest of the statute.Your patent is good against all other makers of nails – no matter if they invent a completely new way of making that nail (even though you may have only provided one enabling way of making). The scope of the material item is not limited by new ways of making. If someone does invent a new way of making a nail, great – they can get a patent for the new method. But they are still bound by your patent for the item.It appears that, like Ned, you have a problem with method claims in general, and wish to constrain method claims to be some odd subset of the material claims (the other statutory categories). No doubt you are (overly) influenced by Justice Story and some of the anti-method claim bias that permeates some of the pre-1952 patent leanings.
Anon, in your example you are only claiming one structure. It is true that if you describe a nail that surpasses 102/103/112 you have defined a structure with apparently enough particularity to differentiate it as something new and you own the structure. But the situations is not the same for a standard computer function claim. In a computer, the “structure” you have made is the ordered processing of computer commands (or expanding it outward, a CRM containing or a processor executing them). If you disclose your structure (i.e. either the code or the algorithm that the code produces) you can claim it and have protection for it. Of this I have no doubt. But most applicants go further – they create the structure of steps A, B and C. But because their structure causes a broad end-result (“function D”) they seek to claim the entirety of the end result. This, without more, I cannot square with Lizardtech or 112, 1st.Even though this example works with a nail (since a nail has multiple structural limitations) let me instead substitute a spaceship for clarity’s sake. If you define the structure of your spaceship, you should get protection for YOUR spaceship. What you can’t get protection for is ALL spaceships. The range of “all spaceships” covers a multitude of structure which you do not have possession of. Similarly you have a computer which is storing particular code and executing steps in a particular manner. You can’t claim all structures (i.e. all sets of code or all possible algorithm steps) which just happen to give you the same end result. When you do that you’re not so much claiming a structure as claiming “all solutions to this problem”. But you’re not in possession of all solutions to the problem. You’re in possession of one solution to a problem, so under what basis should you be given the broader scope?Let’s say that you buy a brand new computer and only modify it by adding code that does steps A, B and C to cause function D to occur. I buy the same computer and modify it by adding code to do steps X, Y and Z to cause function D to occur. What you and I have is two different structures with the same intended use, like two differently shaped nails that can both be used to hang pictures. There are two different inventions and neither party is entitled to a scope that would cover the other, correct? I simply don’t see how this is akin to a product by process claim.
Once again, your tendency to (only accepting) picture claiming is your downfall.Add: you want to cling to ‘one structure’ without realizing that the ladders of abstraction provide you with more than just a picture claim of ‘one’ structure.This is like trying to explain a three-dimensional world to a two-dimensional being. You are trapped in a circle and merely need to step over that circle to escape, but you seem incapable of recognizing what ‘step over’ means.
You said you’re entitled to a structure regardless of the method of producing it. I agree.I argue that computers are different from the nail because the statement “I claim function D” covers a *broad range of structures which are distinct* from each other.I claim a motor vehicle that achieves the function of getting me from Chicago to St. Louis without having to stop for gas. You would agree (and certainly argue, post-issuance) that there are dozens, hundreds of possible structures that achieve that function. Is it your argument that the first person to build the first of those cars is entitled to a scope that reads not only his car, but on the other cars, motorcycles, trucks, busses and semis? Certainly you can claim your car, and you can claim similar cars, but you can’t claim the completely distinct other vehicles. How is this different from computers? You can claim your code, and similar codes, but not all of the codes. How is this picture claiming? If it is, clearly the mechanical people are doing it wrong, since the next person to push the art forward in making ONE novel efficient engine can write a functional scope that freezes EVERY OTHER ENGINE, regardless of how distinct, under that efficiency for the next 20 years. According to you, if someone came along tomorrow and invented an engine powered by giraffe spit and unobtainium they would be prevented from practicing it because the gas engine of the patent would make them infringing. Clearly that’s not the case, right?Similarly, its not enough to to give ONE means of achieving a function and then pretend that every other means of achieving it is both enabled and described by the applicant. Or does the picture claiming doctrine remove the 112 rejection completely?
Once again, you raise ‘distinction’ without a difference. That’s because you simply don’t appear to understand what the ladders of abstraction mean – happens with some people who only write picture claims.
This is the second time you’ve brought up ladders of abstraction and you seem to be fundamentally mistaken about them. Ladders of abstraction don’t allow you to avoid statutory requirements, they simply give the applicant the freedom to define his invention with multiple scopes. You’re just mistaken to try and counter a 112 rejection by saying “but, but ladders of abstraction…”If claim 1 is directed to “all machines” that do X and claim 2 is directed to a subset of those machines that do X, enablement and proper description of the dependent claim 2 does not inherently make claim 1 enabled or described and ladders of abstraction does not even assert to make that the case. If an infringer or the office can show why the enablement or description of the expanded scope wouldn’t be made, it is subject to rejection. (The opposite, that possession of a broad scope doesnt inherently enable or describe the limited scope, is likewise true. It is the cause of new matter rejections, I assume you’ve heard of those.) Fact: the applicant must show possession and enablement of all scopes they claim.
In principle I agree. But when a claim is to a method, it is substantially irrelevant what the apparatus is. As decided en banc in Alice, claims to programmed computers that recite a series of steps and where the computer parts are generic are treated as method claims.That does not mean that if the computer is being used in a larger apparatus or system or process, that one can simply claim a computer programmed to produce a result X, where X is an effect in that larger system, apparatus or process.See my other posts on this topic.
Ned, there are two different things in your statement. If the description and the claim is to method steps, then sure you can include computers and processors and CRMs and turn what was a method into an apparatus or system with no problem, as all the physical embodiments are old and within the art. That is what the Alice court held and even common sense would say its correct – that the form of claims that otherwise have a common scope is irrelevant.But to then go further and say you can claim anything that produces the result is incorrect, since now you’ve made a scope change – and there may be other methods that achieve the result in a superior, or at least patentably distinct, manner.
I hope I made it clear that the result being claimed had to be in the larger system or apparatus or material or larger process. E.g., Computer programmed to drive a car weighing Y pounds from point A to B while consuming less than X gallons of gasoline. Now, this claims a result in the larger world or process. The claim is functional.
Sorry Random, it is not I that is fundamentally mistaken, it is thee.
Then you’ll have no problem pointing to a case where a 112, 1st rejection is overcome by the doctrine of ladders of abstraction?
Nice strawman – you pose a non sequitur, as I can point you to any number of literally thousands of valid patents that employ the ladders of abstraction, that have no 112, 1st rejection to be overcome (your strawman) and that are more than picture claims.
I can point to millions of patents that use ladders of abstraction. That’s not what I said. I said point to a case where a 112 rejection is made, and ladders of abstraction are a defense to the rejection. If you can’t, then you still need to answer how a scope that is undescribed is somehow made valid because you cry “picture claiming” or “ladders of abstraction”.