Your “example” is constructed with errors baked in, and the decision does not unfold as you suggest with the ranges (as you supply them) having obviousness overlaps. In short, what you postulate as an error is itself error in your setup. Your effort to set up a “tangential” results in NOT setting up the item AS a tangential (your ‘A Ha’ instead shows that it was not a tangential to begin with).

But that is, of course, the point. You can’t know what is tangential or not because the original fact-finder was never presented with the question. Just as the federal circuit doesn’t consider arguments that weren’t placed before the trial court, it doesn’t make a lot of sense for the federal circuit to come to what is essentially a fact determination (that a prior art is or is not directly relevant to a non-obvious scope) when the initial fact finder never passed on the issue.

A scope is presented for rejection or allowance. Then another scope is presented for rejection or allowance. You can’t conclude from those two data points whether any third scope is subject to a rejection or not, unless the third scope is more limited (in which case, we’re not talking about DoE). The only way to determine if the third scope is allowable is to (here’s a shocking concept) *examine* the third scope.

Further, your “set-up” begs the question with the assertion of no written support, but clearly, a “clever scriviners” CAN provide such written support with but a few lines in the specification providing for alternative embodiments of combinations. This is really easy in some of the Arts.

Again, this is a catch-22. It’s not a question of whether written support “can” be had, it’s a question of whether written support *is* made. If it *isn’t* then you shouldn’t be allowing the scope because it violates 112a. If it *is* then you shouldn’t be using the scope against the public, because the public is entitled to rely upon the concept of dedication to the public.

It’s real simple – The point of the claim is to define the boundaries of the right. DoE should only exist for people who expressly try and skirt that right using later-developed technology. It shouldn’t exist for people who read the spec and do the subject matter that is explicitly not claimed. If you post a speed limit of 60 mph, you don’t go arresting people travelling 58 mph because 58 is essentially equivalent to 60. People are entitled to rely upon the bright-line of 60 and not some nebulous concept that the drafter wanted to achieve some sort of vague end.

Overall, you are simply in too much of a hurry to deny patent protection, and your post here shows more of your tendency for confirmation bias than anything else.

It’s because of DoE that we have a whole branch of obviousness that deals with “non-critical limitations” which ultimately denies patents, so it’s just the opposite. Everyone is better served if the claims cover every limitation and just that. Instead you have the PTAB stating that some limitations are not given patentable weight precisely because they know that the federal circuit will ignore the same limitations in a DoE argument. It’d be better if limitations simply always counted on both sides.