Last month, the Board weighed in on what it means to be human in a rare decision granting a motion to amend claims in an IPR (IPR2015-00208). The owner of U.S. Patent No. 6,681,897 (which covers a method of handling a wheel of an elevated vehicle to avoid injury) proposed claims in its motion to amend that narrowed the original claims in a number of ways. One addition was to explicitly use the term “human” in referring to who performs the steps of the claims, an addition that may not have been intended to invite deep philosophical discourse. Rather, the patent owner apparently intended to distinguish from the art by excluding methods in which the weight of the wheel is partially supported by a non-human entity, like a hoist, during a carrying step.
Invite philosophical discourse it did, however, as the petitioner insisted that the specification lacks written description support for “human” because only a “worker” is described performing the steps of the claims. According to the petitioner, the motion to amend thus failed to meet 37 C.F.R. 42.121(b)(1), which requires that a motion to amend claims set forth support in the original disclosure of the patent for each claim that is added or amended. The petitioner went on to argue that the patent owner had broadened the claims to include unsupported species of the “human” genus, such as “newborns, toddlers, children, disabled people, and decrepit people”—all seemingly lacking the strength to lift a wheel.
Unfortunately for the petitioner, the Board found this interpretation unreasonable. It pointed out that the specification expressly describes “individuals” and “persons” performing the steps of the claims. According to the Board, describing “individuals” and “persons” provides clear support for using the term “human” in the claims, at least for this patent. The Board did not directly opine on the petitioner’s argument that workers, newborns, and so on are species of the “human” genus and only some of them are supported—a type of argument that has carried the day in many other situations.