Alice as the Devil’s Advocate

As some other outlets have reported, Dr. Arogyaswami Paulraj was recently inducted into the National Inventors Hall of Fame in part based on his invention described US 5,345,599 which relates to a data transmission approach critical to numerous communication protocols. I challenge anyone who remembers the days of hunting for a pay phone to say that this technology has not changed the world.

But when reviewing the claims of US 5,345,599, I wondered how they might fair under an Alice attack, such as if the patent somehow fell into the hands of a patent assertion entity. Oh wait, the patent is assigned to Standford.

Anyway, here is one of the issued claims:

A method of transmitting an information signal to a receiver in a frequency channel having a bandwidth less than the bandwidth of said information signal and receiving said information signal at said receiver, said method comprising the steps of:

splitting said information signal into a plurality of information sub-signals, each sub-signal having a bandwidth no greater than said bandwidth of said frequency channel,

transmitting in said frequency channel each of said information sub-signals to said receiver from a plurality of dispersed transmitters with each transmitter transmitting one of said information sub-signals,

receiving and processing said information sub-signals with receiving means wherein said information sub-signals are retrieved, and

combining said information sub-signals to reconstruct said information signal.

Looking to sample rejections from the USPTO recently in technology center 2600, it seems such a claim would be rather easy to reject.

For example, an Examiner could argue that signals, as well as sub-signals, are themselves not patentable subject matter (in re Nuijten). What is left is the mere abstract idea of dividing information into subsections and transmitting information, receiving information, processing information, and then recombining the information. Electric Power makes clear that such actions are abstract ideas and not patentable. Further, the idea of using one or more transmitters and/or a receiver are merely conventional operations, even back in 1992. There is nothing more to consider, as any benefits of such an approach in the real world are not sufficient to transform the abstract idea into something more.

This took me less than 5 minutes.

But, such a rejection would never hold up on appeal, would it? Well, the PTAB is affirming Alice rejections at an extremely high rate. Read through some recent PTAB decisions and you will see that a rejection such as the above is likely to be convincing. The only issue now, under Berkheimer, is that the Examiner would need some evidence in the record that transmitters and receivers were common in 1992 - not hard to find.

So maybe the rejection would take 10 minutes. It would then cost the inventor a lot of money and 4+ years to prosecute the case through an appeal they are very likely to lose.

At least Dr. Paulraj was around before Alice was decided.