The Overly Broad Claim Slipped Through

For this post, I have to provide some evidence in the form of actual quotes.

Here's the Notice of Allowance (NoA) and the examiner's reasoning:

[Notice of Allowance]
Philips [sic — the examiner spelled my name wrong, oh well] fails to teach a vibration sensor subsystem for monitoring vibration of the at least one component of the downhole pumping system in three axes;
[Seriously, I had a figure showing a generic three-axis sensor and referred to it as an accelerometer. Did this examiner really not understand that accelerometers, by definition, are for measuring vibration? Or just not read the document (you see a trend here, right?). This figure is not my proudest drawing, but it's undeniably a three-axis vibration sensor commonly called an accelerometer (also I referred to this figure to illustrate a magnetometer and a gyroscope, all three sense in three axes)]
continuing sampling the rotational values through a second direction change of the at least one component of the downhole pumping system; and
ceasing sampling the rotational values at a third direction change of the at least one component of the downhole pumping system.

It is for this reason, Claim 1 and all of it [sic] dependencies are allowed.

Claim 13, 16 and 19 include analogous, though not necessarily coextensive, features in conjunction with Claim 1, an [sic] is, therefore, along with its dependencies, for similar rationale as disclosed above, allowed.

• Direct link to the Notice of Allowance
• And the Amended Claims (from the RCE)

I'll spare you the full text of Claims 1, 16, and 19, but here's the analogous text per the NoA:

[Their claim 1 (and 16, 19… but not 13)]
continuing sampling the rotational values through a second direction change of the at least one component of the downhole pumping system; and

ceasing sampling the rotational values at a third direction change of the at least one component of the downhole pumping system.

But for Claim 13, I need its full text (hint: look for the bit about the direction change or the bit about the vibration sensor that the examiner said were conditions for allowance):

[Their claim 13]
13. A sensor system for a downhole pumping system, comprising:

a sensor subsystem for detecting movement of at least one component of the downhole pumping system, the sensor subsystem comprising:

an axial motion sensor subsystem comprising an axial motion sensor, the axial motion sensor to be coupled to the at least one component of the downhole pumping system and to measure axial movement of the at least one component of the downhole pumping system based on variations detected by the axial motion sensor generated by movement of the at least one component of the downhole pumping system; and
["variation" - ok, analogous, though not necessarily coextensive… but still flawed. That's absolutely not what the examiner stated as allowable, and the applicant actually deleted the correct text in this amendment - but that's not even my issue with this claim]

a rotation sensor subsystem comprising a rotational sensor, the rotational sensor to be coupled to the at least one component of the downhole pumping system and to detect rotational movement of the at least one component of the downhole pumping system by sampling rotational values with the rotational sensor generated by rotation of the at least one component of the downhole pumping system; and

a processor subsystem to receive data from the axial motion sensor subsystem and the rotation sensor subsystem, the processor subsystem to:

verify the axial movement of the at least one component of the downhole pumping system with the axial motion sensor subsystem;

when the axial movement has been verified, detecting the rotational values with the rotation sensor subsystem during a current stroke of the downhole pumping system; and

comparing the rotational values with previously sensed rotational values detected by the rotation sensor subsystem during a previous stroke of the downhole pumping system to determine if rotation of the at least one component of the downhole pumping system has occurred.

Direct link to the Amended Claims

No “first”, no “second”, no “third” direction change. No direction change at all in claim 13.

The amendment actually deleted the "vibration sensor" terminology. Yeah, they took it out and the examiner didn't catch that. Seriously, double-check me on that one. See the Amended Claims.

Do you believe me when I say this examiner was asleep at the switch? This Claim 13 error (actually errors) should have been caught. It's so blatantly obvious.

Would I be infringing?

Here's the crazy part. The claim is so broad that, read literally, it reaches my own earlier work — the patented, published disclosure this patent is clearly based on, in both text and concept, all of it public before they filed. Sit with that: a claim that covers work already public before its filing date is, by definition, a claim that reads on the prior art — which is exactly why it's invalid, and exactly what this PGR is about. That's not me conceding I practice any valid claim — invalidity is a complete defense, but only once someone actually proves it; until then a patent is presumed valid and can still be waved around.^* Theirs is invalid; pointing that out is just a measure of how overbroad and improper this claim is. But again, that's not the point. The point was to not license my technology by quite literally using my own words against me to obtain a patent to then muddy the waters and justify ignoring me (remember, this is my opinion). And, more importantly, to sow confusion in the market. "See we have a patent, we're legit."

How is any of this fair? Is this legal jiu-jitsu? Did their attorney just do better? I don't think so, but there was a huge amount of luck… or something more suspicious (again, purely opinion on my part here).

I'll be picking apart this Notice of Allowance in a future post because this wasn't the only flaw by a long shot, but I hope you'll agree this one is a doozy.

* Again, there's no indication that's actually the case here — no one has waved this claim at me or accused me of anything. Heck, I'm not even selling a product. Remember how I got squeezed out of the market. I'm only saying that a claim this broad could be used that way. ↩

Related dispatches

• Dispatch No. 8 — Back From the Dead — the revival that let this broad claim through.
• Dispatch No. 10 — Post-Allowance, Preissuance — What could I do? — what I could do once this broad claim was allowed.
• Dispatch No. 11 — Suspicious Allowance Timing — the suspicious timing of that allowance.
• Dispatch No. 12 — A Private Conversation, Held in Public — how the misleading arguments piled up unanswered.
• Dispatch No. 13 — You Still Don't Believe Me About the Direction Change Thing? — why Claim 13 doesn't even contain the allowable language.
• Dispatch No. 16 — Claim 13 — Again — the Claim 13 misrepresentation, in full.
• Dispatch No. 29 — Independence Day — the Independence Day coda, revisiting this overly broad, unproofread claim.