Thus, even if sending a password in pieces is not sending a password (which is not entirely clear), one can infer that the drafter intended the claim to cover a situation in which the password is received even though it was somehow not sent as a password.

In the password encryption art, that can be precisely the point – to send the password in pieces or to send something from which the password is constructed (or encrypting and sending the password in some other instead of sending the password itself), so that a usable unecrypted form of the password, as such, is never “sent by the user,” but is nonetheless is “received from the user” (as a result of being assembled from the messages sent by the user). See link to en.wikipedia.org, as an example of such a method of exchanging keys without actually sending the keys (the same can be done for passwords).

Consequently, perhaps it is a bit of a stretch to say,

“I wouldn’t put it so much as excluding. I think the claim language simply doesn’t cover it on its face.”

Note that following this logic (depending on specification, wording of the claims, and prosecution history), if Bob sends an encrypted password to Alice, and then Alice simply decrypts the encrypted password to arrive at a usable version of the password, Bob did not “send the password to Alice” and Alice did not “receive the password from Bob” (no matter how simple or complex the encryption is) – that embodiment is dedicated to the public (if disclosed in the specification but not expressly allowed for in the claim).

In the context of the password encryption art, that would seem a bit strange, because often those working in the password encryption art say sending the password but actually mean sending the encrypted password – but, yet, that would seem to be precisely what this case was about.

Oh well… I guess we are stuck with this decision for now.

“colorable imitation” has rarely been cited by the CAFC, and when it was, no standards were set forth for determining it. And there’s no ordinary observer there, so who makes the determination? Is is the same, different, broader, narrower than “substantially the same”?

The tell that the Gorham test is creeping towards the trademark infringement test is this sentence: “The opinion added that “one could mix samples of the two products randomly and have no trouble attributing them to the correct source.” Design patent infringement has nothing to do with source, it focusses on comparing the two designs. Also see the Berry Sterling case which, at the end, in dicta, the court listed functionality factors lifted almost entirely from the functionality test for trademarks.

Re design patent claims, did 35 U.S.C. § 289 or any equivalent statute contain the same apparent design patent infringement-broadening language of “or any colorable imitation thereof” at the time of Gorham v. White? Do controlling CAFC design patent cases define or rely on Not finding “any colorable imitation” in decisions finding a “plainly dissimilar” test from Egyptian Goddess?