Thursday, March 05, 2015

Marshall feature enforcing US 6,886,750

Marshall Feature seems to be enforcing US 6,886,750, including against Wendy's.

• Marshall Feature Recognition LLC v Valpak Direct Marketing Systems Inc. Case No. 2:14-cv-00253-JRG-RSP
Plaintiff Marshall Feature Recognition is a Texas limited liability company with a place of business in Marshall.
The defendant is accused of infringing on U.S. Patent No. 6,886,750 issued May 3, 2005, for a Method and Apparatus for Accessing Electronic Data Via a Familiar Printed Medium.
MFR states it was assigned the ‘750 Patent by inventors Spencer Rathus, Lois Fichner-Rathus and Jeffrey Nevid
Defendant infringes the ‘750 patent by mobile smartphone devices using a barcode scanner application to communicate with a QR code featured within the defendant’s printed advertisements.
MFR is seeking injunctive relief, compensatory damages, interest, treble damages for willful infringement, attorneys’ fees, costs and other just and proper relief.
A jury trial is requested.
The plaintiff is represented by Austin Hansley of Dallas.


The above from the Southeast Texas Record.

USPTO drops the SAWS program ?

Yahoo News reported on March 3:


In a post on the USPTO’s website, the organization acknowledged that the program in question, named the Sensitive Application Warning System (SAWS), was outdated and unhelpful.
“Upon careful consideration, the USPTO has concluded that the SAWS program has only been marginally utilized and provides minimal benefit,” the post, which was published Monday night, reads. 
Part of the “minimal benefit” provided was a secretive and lengthy bureaucratic review process imposed upon independent inventors over the years, some of whom have filed legal action against the government organization for doing so.

Though SAWS was only applied to a few cases, its impact when applied was large:

Though only about .04 percent of all patent applications are thrown into SAWS purgatory, those that do take twice the average time to be approved and are also twice as likely to be rejected, according toinformation obtained via Freedom of Information Act requests made by the law firm Kilpatrick Townsend & Stockton LLP.

Need for consistent message on biofuel support

Biomass Magazine quotes the head of POET:

Jeff Lautt, CEO of Poet LLC, spoke about the synergies between first generation ethanol production and cellulosic development. He noted Poet’s cellulosic joint venture with Royal DSM established its cellulosic ethanol plant adjacent to an existing corn ethanol plant in Emmetsburg, Iowa. The two facilities share a great deal of infrastructure, including roads, utilities and ethanol storage. Lautt also stressed that the same farmers provide feedstock to both plants.
Lautt said his company sees enormous potential for colocated cellulosic production in the future. The U.S. EPA’s proposal last year to gut the RFS, however, has frozen investment in cellulosic capacity, he said, adding this bill would make the situation worse. “It will hurt the very people who are going to expand cellulosic ethanol capacity right here in the U.S.,” he said.
According to Lautt, the U.S. must stop sending signals to investors that our country is not committed to the promise of biofuels. Investors don’t trust policy when these see these kinds of attacks year after year, he said. If policy change stifle the market for cellulosic ethanol in the U.S, he said, Poet would be forced to look abroad for better opportunities to develop cellulosic technology.


Michelle Lee to be confirmed by Senate

TheHill predicts an easy confirmation vote for Michelle Lee in the US Senate. The post noted:

Lee, a former Google executive who has been leading the Patent Office on an acting basis since early 2014, has promised to continue the push to ensure that high quality patents are issued and to reduce the lingering backlog of thousands of applications. She has also pledged to prevent employees from abusing the office’s telework program.


Dispute over a patent deal in Dallas

An article in the Dallas Business Journal includes the text:

Dallas inventor Andrew Silver is suing Dallas-based TableTop Media LLC, doing business as Ziosk, for more than $3.5 million, claiming that the technology company breached a patent purchase agreement.
The suit is countering a lawsuit TableTop filed against Silver seven hours prior.
Silver filed the lawsuit March 2 in a District Court of Dallas County claiming that the company based its entire business around the Ziosk restaurant tabletop tablet, which he claims uses his technology. The devices have rolled out to more than 800 Chili's Grill & Bar, 40 Abuelo's restaurants and soon will head to 500 Red Robin Gourmet Burger locations.


There was a deal between Silver and TableTop if Silver's patent issued. The problem: although the patent did issue, the issued claims were not the same as the initially-filed claims.

The Bizjournal article by Danielle Abril.

More on the Minnesota plagiarism matter

In discussing the plagiarism issue as to two college presidents in Minnesota, Maura Lerner has text

The problem arises, says Anderson, when the wording is too close to the original. “You not only need to cite the [source], but you need to use the quotation marks when you’re using exact phrases,” she said. That’s not just common courtesy, she says; “there’s actually a federal policy on research misconduct” that covers plagiarism.


To be clear, there is no federal law making plagiarism actionable. Plagiarism and copyright infringement are distinct matters. And policies relating to federal grant recipients are generally not going to apply to writers of Ph.D. theses.

The Minnesota matter seems to have political overtones, as did the earlier Poshard matter at SIU.

Merely in passing, if Minnesota were to apply the standards used by U Va against Allison Routman, the presidents would likely be gone.

EFF opposes Coons' STRONG patent reform bill

Needless to say, EFF opposes the Coons bill, noting among other things:


First, it imposes standing requirements that would bar groups like EFF from challenging bad patents in the public interest. The bill states that you would only be able to challenge patents in an adversarial proceeding at the Patent Office (meaning you get to be there to argue back against what the patent owner says) if you have been sued or if you are "charged with infringement." A measure like this would have effectively stopped EFF from engaging in our Save Podcasting campaign against the patent troll Personal Audio.

This is bad. EFF, through sites like Trolling Effects and those who reach out to us, is in an important position to notice when a bunch of startups and end users are receiving particularly egregious demand letters or suits. Although we can’t challenge every awful patent we see (we simply don’t have the resources), the STRONG Patents Act would prevent us from stepping in to meaningfully challenge any bad patent. The ability for public interest groups like us to do so is critical—patent owners could otherwise craft their demands to make it less worthwhile or feasible for any one accused party to challenge a patent. Affected individuals—podcasters, for example—simply don't have the resources to dispute the patents themselves.

Wednesday, March 04, 2015

Plagiarism vs. copyright infringement

The article -- Providence Journal accused of plagiarism-- illustrates the difference between plagiarism and copyright infringement. One can have a right to reproduce text, but without attribution to the author, one can still plagiarize.

link to article by Benjamin Mullin:

Congressman Jeffries in San Jose Mercury News on patent reform

From the Mercury News:


In recent years, however, tech entrepreneurs, startups, small patent holders and more established companies throughout the nation have been threatened by bad actors abusing the system. A 2013 study from the U.S. Government Accountability Office estimated that the "total number of defendants sued by [Patent Monetization Entities] more than tripled from 834 in 2007 to 3,401 in 2011." Such entities are concentrating their efforts on small and medium sized business, including start-up companies in New York City's growing innovation economy. According to a 2011 American Intellectual Property Law Association study, the range of costs per patent case is between $650,000 in small cases to up to $5 million in large disputes.

For many startups, such as those I represent, such high costs are simply not an option, and many are forced into lawsuit settlements that perpetuate abusive behavior.

This is not to say that patent litigation is inherently problematic. On the contrary, patents are important property rights that owners have a right to buy, sell and enforce. The top technology companies could not have risen to their level of prominence without being able to fully apply their intellectual property. However, our civil litigation system should not be used as a vehicle to reward bad actors.


Congressman Hakeem Jeffries, who represents New York's Eighth District, will be visiting the San Jose Silicon Valley Chamber of Commerce on March 12 to discuss issues of intellectual property, immigration reform and workforce education

Tuesday, March 03, 2015

The Economist mentions George Selden in article on patent trolls

In "Why no one likes them," The Economist brings up George Selden:

Patent trolls are not new. In 1895 George Baldwin Selden (pictured), an American lawyer, was awarded a patent for an “improved road-engine”. The idea was not really his: he plaigiarised it from an exhibit at the 1872 Centennial Convention.

One notes that Selden did not file his application until 1879. [George Eastman was a witness on the patent.]
There was no "centennial" exhibition in 1872. Brayton exhibited his engine in Philadelphia in 1876.
Likely The Economist is not familiar with American centennials and dates thereof. That the
Selden patent disclosed only a Brayton engine was relevant in later patent litigation.

LBE covered the story in "Looking Backward" in Intellectual Property Today:

L. B. Ebert, Looking Backward, IPT, p. 20, June, 2001-->

Of Columbia Motor Car Co. v. C. A. Duerr, 184 F. 893 (CA 2 1911):

The logic of the Columbia opinion is not difficult to understand, even by the standards of 2001. The Selden patent disclosed a constant pressure engine, in which one had slow combustion without explosion. In contrast, Ford (and others) employed a constant volume engine, in which the piston moves by explosive action. n5 184 F. at 904. The engine of Selden required a constantly burning flame. 184 F. at 905. Of the doctrine of equivalents, the court seemed to cabin the scope because of the non-pioneering nature of the invention ("The patent as so construed necessarily permits only a very limited range of equivalent forms." 184 F. at 911; "In giving weight to dissimilarities -- in saying what are substantial and what relate merely to form -- we must consider the degree of invention shown in the patent . . . " 184 F. at 912.) One seems to have the rudiments of the Graver Tank tri-partite test: "[no equivalents] because the two engines do not perform the same functions in substantially the same way." 184 F. at 915.

The Second Circuit did NOT invalidate the Selden patent; it found that Ford did not infringe the patent.

See also Looking backward at licensing; deja vu all over again?

link to article in The Economist:

The CAFC determines that offering a service, without rendering the service, is insufficient to support trademark registration

In Couture v. Playdom, the CAFC affirmed the TTAB, which had cancelled Couture's "Playdom" mark because Couture had “merely posted a website advertising his readiness, willingness and ability to render said services,” and the
registration was therefore void ab initio. Merely placing a proposed mark on a website without actually rendering the service in commerce is not sufficient for registration.

The appellant Couture was pro se.

Background of Playdom case:

On May 30, 2008, appellant filed an application to register the service mark PLAYDOM pursuant to Lan- ham Act § 1(a), 15 U.S.C. § 1051(a). As a specimen show- ing use of the mark, appellant submitted a “[s]creen capture of [a] website offering Entertainment Services in commerce.” App. 39. Also on May 30, 2008, appellant had created the website, which was hosted at As of May 30, 2008, the website included only a single page, which stated: “[w]elcome to We are proud to offer writing and pro- duction services for motion picture film, television, and new media. Please feel free to contact us if you are inter- ested:” App. 45. The webpage included the notice: “Website Under Construction.” App. 45. No services under the mark were provided until 2010, well after the application was filed. The PLAYDOM mark was registered by the United States Patent and Trade- mark Office (“PTO”) on January 13, 2009, as registration no. 3,560,701.

On February 9, 2009, appellee filed an application to register the identical mark—PLAYDOM. Appellant’s registered mark was cited by the examining attorney as a ground for rejecting appellee’s application under Lanham Act § 2(d), 15 U.S.C. § 1052(d). On June 15, 2009, appellee filed a petition to cancel the registration of appellant’s mark, arguing, inter alia, that appellant’s registration was void ab initio because appellant had not used the mark in commerce as of the date of the application. On February 3, 2014, the Board granted the cancellation petition, stating that appellant “had not rendered his services as of the filing date of his application” because he had “merely posted a website advertising his readiness, willingness and ability to render said services,” and the
registration was therefore void ab initio. App. 10.


The issue in the case is "use in commerce":

To apply for registration under Lanham Act § 1(a), a mark must be “used in commerce.” 15 U.S.C. § 1051(a)(1). A mark is used in commerce
on services when [1] it is used or displayed in the sale or advertising of services and [2] the services are rendered in commerce, or the services are rendered in more than one State or in the United States and a foreign country and the person ren- dering the services is engaged in commerce in connection with the services.
Id. § 1127; Aycock Eng’g, Inc. v. Airflite, Inc., 560 F.3d 1350, 1357 (Fed. Cir. 2009) (quoting 15 U.S.C. § 1127). Use in commerce must be “as of the application filing date.” 37 C.F.R. § 2.34(a)(1)(i). “The registration of a mark that does not meet the use [in commerce] requirement is void ab initio.” Aycock, 560 F.3d at 1357 (citations omit- ted).


"Use" means real use in commerce:


“The term ‘use in commerce’ means the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark.” 15 U.S.C. § 1127; see Aycock, 560 F.3d at 1357. “[A]n applicant’s preparations to use a mark in commerce are insufficient to constitute use in commerce. Rather, the mark must be actually used in conjunction with the services described in the applica- tion for the mark.” Aycock, 560 F.3d at 1360. “Without question, advertising or publicizing a service that the
applicant intends to perform in the future will not support registration”; the advertising must instead “relate to an existing service which has already been offered to the public.” Id. at 1358 (internal quotation marks and cita- tions omitted) (emphasis added).
We have not previously had occasion to directly ad- dress whether the offering of a service, without the actual provision of a service, is sufficient to constitute use in commerce under Lanham Act § 45, 15 U.S.C. § 1127.1 In Aycock, we stated that, “[a]t the very least, in order for an applicant to meet the use requirement, there must be an open and notorious public offering of the services to those for whom the services are intended.” 560 F.3d at 1358 (internal quotation marks and citation omitted).


The CAFC mentions other circuits:

Other circuits have interpreted Lanham Act § 45 as requiring actual provision of services. For example, in International Bancorp, LLC v. Societe des Bains de Mer et du Cercle des Etrangers a Monaco, 329 F.3d 359, 361–66 (4th Cir. 2003), the Fourth Circuit held that, absent evidence of actual bookings made by a New York office for the Monte Carlo casino in Monaco, the activities of the New York office, including trade shows, advertising campaigns, partnering with charities, mail and telephone marketing, and soliciting media coverage, were insuffi- cient to establish use in commerce of the “Casino de Monte Carlo” service mark.


McCarthy is invoked:

The Board in this case and the leading treatise on trademarks also agree that rendering services requires actual provision of services. See McCarthy on Trademarks and Unfair Competition § 19:103 (4th ed. Supp. 2013) (“To qualify for registration, the Lanham Act requires that the mark be both used in the sale or advertising of services and that the services themselves have been rendered in interstate or foreign commerce.” (emphasis in original)).
Here, there is no evidence in the record showing that appellant rendered services to any customer before 2010, and the cancellation of appellant’s registration was ap- propriate.



CAFC limits Warsaw Orthopedic to "reasonable royalty"

From Warsaw v. Nuvasive

As to outcome:

We affirm the district court with respect to invalidity and infringement for the ’973, ’933, and ’236 patents. We vacate Warsaw’s damages award and remand for a new trial on damages consistent with this opinion. At the new trial, Warsaw will be limited to a reasonable royalty and cannot recover lost profits.


Nautilus is invoked:

NuVasive also argues that the asserted claims of the ’973 patent are indefinite because, given the relative nature of the claim limitations, one cannot know whether an implant infringes until it is selected for a particular patient. Under the Supreme Court’s decision in Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120 (2014), a claim is indefinite if “viewed in light of the specification and prosecution history,” it does not “inform those skilled in the art about the scope of the invention with reasona- ble clarity.” Id. at 2129. The relative nature of the claim does not itself make it indefinite, and NuVasive failed to establish, by clear and convincing evidence, that human anatomy varies so significantly that reliance on the well- known dimensions of human vertebrae makes the claims indefinite. See Howmedicia Osteonics Corp. v. Tranquil Prospects, Ltd., 401 F.3d 1367, 1371–73 (Fed. Cir. 2005). Indeed, the parties stipulated that “[t]he average dimen- sions of the human vertebrae are well-known, easily ascertainable, and well-documented in the literature.” J.A. 2882.


As to vitiation:

NuVasive argues that application of the doctrine of equivalents would result in claim vitiation. As we recently explained, vitiation is not a separate argument from insubstantiality. See Brilliant Instruments, Inc. v. GuideTech, LLC, 707 F.3d 1342, 1347 (Fed. Cir. 2013) (“‘Vitiation’ is not an exception to the doctrine of equiva- lents, but instead a legal determination that the evidence is such that no reasonable jury could determine two elements to be equivalent.” (quoting Deere & Co. v. Bush Hog, LLC, 703 F.3d 1349, 1356 (Fed. Cir. 2012))).


As to a non-practising patentee [PAE?]:

Although Warsaw owns the ’933 and ’973 patents, it does not practice the patented technologies. Rather, it (1) licenses the technologies to related companies Medtronic Sofamor Danek Deggendorf, GmBH (“Deggendorf”) and Medtronic Puerto Rico Operations Co. (“M Proc”), which manufacture and sell the patented products to MSD and pay royalties to Warsaw on those sales and (2) manufac- tures “fixations,”4 which it sells to MSD for profit. MSD packages the fixations and the patented products together into medical kits, which it sells to hospitals and surgeons.

Warsaw asserts it has three sources of income related to the patented technologies. First, it receives revenue from the sale of fixations to MSD, which it argues should be treated as convoyed sales; second, it receives royalty payments from M Proc and Deggendorf; third, it receives payments from MSD resulting from an inter-company transfer pricing agreement, which are characterized by Warsaw as “true-up” payments.


The CAFC gets into a lengthy discussion of damages:

Lost profits and reasonable royalties measure damag- es differently. Lost profits as a measure of damages is intended to make the party whole—to compensate the patent holder for profits lost as a result of the infringe- ment. It is not solely a “but for” test. Rite-Hite Corp. v. Kelley Co., Inc., 56 F.3d 1538, 1546 (Fed. Cir. 1995) (en banc).
A reasonable royalty, on the other hand, is intended to compensate the patentee for the value of what was taken from him—the patented technology. See Aqua Shield v. Inter Pool Cover Team, 774 F.3d 766, 770 (Fed. Cir. 2014) (“The ‘value of what was taken’—the value of
the use of the patented technology—measures the royal- ty.” (quoting Dowagiac Mfg. Co. v Minn. Moline Plow Co., 235 U.S. 641, 648 (1915))).

Under our case law a patentee may not claim, as its own damages, the lost profits of a related company. See Poly-America, L.P. v. GSE Lining Tech., Inc., 383 F.3d 1303, 1311 (Fed. Cir. 2004) (explaining that related companies “may not enjoy the advantages of their sepa- rate corporate structure and, at the same time, avoid the consequential limitations of that structure—in this case, the inability of the patent holder to claim the lost profits of its non-exclusive licensee”); see also Mars, Inc. v. Coin Acceptors, Inc., 527 F.3d 1359, 1365 (Fed. Cir. 2008) (refusing to award “lost profits” to the patent holder when its subsidiary corporation lost sales due to infringement), mandate recalled and amended on other grounds, 557 F.3d 1377 (Fed. Cir. 2009). Indeed, Warsaw admits it is not entitled to the lost profits of Deggendorf, M Proc, or MSD.


To be entitled to lost profits for convoyed sales, the re- lated products (e.g., the fixations) must be functionally related to the patented product and losses must be rea- sonably foreseeable. See Rite-Hite, 56 F.3d at 1546–50. Being sold together merely for “convenience or business advantage” is not enough. Am. Seating, 514 F.3d at 1268. If the convoyed sale has a use independent of the patent- ed device, that suggests a non-functional relationship. See, e.g., DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1333 (Fed. Cir. 2009).


This is the precise sort of conven- ience or business strategy excluded by American Seating. See Am. Seating, 514 F.3d at 1268 (“Our precedent has not extended liability to include items that have essential- ly no functional relationship to the patented invention and that may have been sold with an infringing device only as a matter of convenience or business advantage.” (quoting Rite-Hite, 56 F.3d at 1538)). Warsaw never presented testimony that the fixations it sold to MSD had no independent function—that is, that they would not work as well in other surgeries not involving the patented technologies. Therefore, the district court erred in deny- ing NuVasive’s JMOL motion on this issue.


To be entitled to lost profits, we have long recognized that the lost profits must come from the lost sales of a product or service the patentee itself was selling. As we explained in Rite-Hite, “[n]ormally, if the patentee is not selling a product, by definition there can be no lost prof- its.” 56 F.3d at 1548. Similarly, in Poly-America we noted, “the patentee needs to have been selling some item, the profits of which have been lost due to infringing sales, in order to claim damages consisting of lost profits.” 383 F.3d at 1311. Here, there is a failure of proof and as a result the revenue stream is not recoverable.


It is not immediately clear from Warsaw’s accounting witness’ testimony what the underlying transactions were that made the 95% true-up payments necessary. The true-up payments from MSD to Warsaw appear to result from a variety of transactions. Some are for royalty payments, suggesting an implied licensing agreement between MSD and Warsaw for the sale of various patent- ed technologies. Others, as suggested by spreadsheets in the record, are for other transactions—for example, management fees or implied licenses on other patents. See J.A. 23556–637; see also Medtronic Sofamor Danek USA, Inc. v. Globus Med., Inc., 637 F. Supp. 2d 290, 309 (E.D. Pa. 2009).


On standards of review:
We review denials of motions for judgment as a matter of law de novo. See Revolution Eyewear, Inc. v. Aspex Eye- wear, Inc., 563 F.3d 1358, 1370 (Fed. Cir. 2009); Janes v. Wal-Mart Stores, Inc., 279 F.3d 883, 886 (9th Cir. 2002). We review the district court’s claim construction under the standard set forth in Teva Pharm. USA, Inc. v. Sandoz, Inc., No. 13-854, slip op. at 13 (Jan. 20, 2015). We review underlying factual determinations concerning extrinsic evidence for clear error. Id. at 12. We review intrinsic evidence and the ultimate construction of the claim de novo. Id. Infringement is a question of fact, DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 469 F.3d 1005, 1013 (Fed. Cir. 2006), reviewed for substantial evidence. Transocean Offshore Deepwater Drilling, Inc. v. Maersk Drilling USA, Inc., 699 F.3d 1340, 1356–57 (Fed. Cir. 2012). We review damages determinations by the court for “an erroneous conclusion of law, clearly errone- ous factual findings, or a clear error of judgment amount- ing to an abuse of discretion.” Micro Chem., Inc. v. Lextron, Inc., 318 F.3d 1119, 1122 (Fed. Cir. 2003) (inter- nal quotation marks, citation omitted).



Tesla and the Connecticut Yankee

The bog 717madisonplace in discussing the Denver office of the USPTO has text


At the opening ceremonies for the Denver patent office, Denver’s mayor told the story of his first day on the job and receiving a call from a local patent attorney. The patent attorney was calling to recruit the mayor’s help in encouraging the USPTO to select Denver as one of the regional locations for the Patent Office. I forget if the mayor mentioned this or not; but, that has an uncanny parallel to Mark Twain’s A Connecticut Yankee in King Arthur’s Court:

That reminds me to remark, in passing, that the very first official thing I did in my administration — and it was on the very first day of it, too — was to start a patent office; for I knew that a country without a patent office and good patent laws was just a crab, and couldn’t travel any way but sideways or backways.

One recalls that Twain and Tesla were good friends and that Tesla may have inspired the Yankee character.

But was Tesla well-served by the patent system?

From the text of Justice Frankfurter in the 1943 case:


The inescapable fact is that Marconi in his basic patent hit upon something that had eluded the best brains of the time working on the problem of wireless communication--Clerk Maxwell and Sir Oliver Lodge and Nikola Tesla. Genius is a word that ought to be reserved for the rarest of gifts. I am not qualified to say whether Marconi was a genius. Certainly the great eminence of Clerk Maxwell and Sir Oliver Lodge and Nikola Tesla [320 U.S. 1, 63] in the field in which Marconi was working is not questioned. They were, I suppose, men of genius. The fact is that they did not have the 'flash' (a current term in patent opinions happily not used in this decision) that begot the idea in Marconi which he gave to the world through the invention embodying the idea. ... And yet, because a judge of unusual capacity for understanding scientific matters is able to demonstrate by a process of intricate ratiocination that anyone could have drawn precisely the inferences that Marconi drew and that Stone hinted at on paper, the Court finds that Marconi's patent was invalid although nobody except Marconi did in fact draw the right inferences that were embodied into a workable boon for mankind. For me, it speaks volumes that it should have taken forty years to reveal the fatal bearing of Stone's relation to Marconi's achievement by a retrospective reading of his application to mean this, rather than that.


Toyota US '089 patent on hybrid vehicle

The first claim:


A hybrid vehicle, comprising: an internal combustion engine including an in-cylinder injection valve that directly injects fuel into a combustion chamber, and a port injection valve that injects the fuel into an intake port that communicates with the combustion chamber; an electric motor; a power transmission mechanism that couples a drive shaft of the hybrid vehicle with the internal combustion engine so that torque can be transmitted therebetween, and couples the drive shaft with the electric motor so that torque can be transmitted therebetween; a driving force control unit that performs (i) normal operation to control output torque of the internal combustion engine and output torque of the electric motor so as to apply torque required to be applied to the drive shaft, which is determined according to an amount of accelerator operation by a user, to the drive shaft, and performs (ii) engine intermittent operation to stop operation of the internal combustion engine and control the output torque of the electric motor so that the required torque is applied to the drive shaft when determining that a given condition for stopping operation of the internal combustion engine is satisfied, and start the internal combustion engine when determining that a given condition for starting the internal combustion engine is satisfied; and an abnormality determining unit that makes an in-cylinder injection valve abnormality determination as to whether an abnormality occurs to the in-cylinder injection valve while causing a total amount of fuel included in an air-fuel mixture supplied to the internal combustion engine to be injected from the in-cylinder injection valve, and makes a port injection valve abnormality determination as to whether an abnormality occurs to the port injection valve while causing the total amount of fuel included in the air-fuel mixture to be injected from the port injection valve, wherein: the driving force control unit includes an intermittent operation inhibiting unit that inhibits execution of the engine intermittent operation and keeps operating the internal combustion engine when a given condition for inhibiting execution of the engine intermittent operation is satisfied, and an operation executing unit that operates the internal combustion engine so that a load of the internal combustion engine falls within a predetermined range, when at least one of the in-cylinder injection valve abnormality determination and the port injection valve abnormality determination has not been made, during a period in which execution of the engine intermittent operation is inhibited whereby the internal combustion engine is kept operating; and the abnormality determining unit makes the in-cylinder injection valve abnormality determination and the port injection valve abnormality determination, when the load of the internal combustion engine falls within the predetermined range.

US patent 8,969,251: mass spec for phenotype analysis

The abstract

A method for assaying phenotypic similarity or dissimilarity between organisms is disclosed in which a composite sample of admixed first and second samples is provided. The first, standard sample contains average concentrations of compounds of molecular mass less than about 1000 AMU present in the organism species. The second, assay sample contains compounds of having a similar molecular mass present in the organism whose phenotype is to be assayed. The constituents of both samples are (i) in a liquid medium and (ii) each compound of a sample has the same, first and second respective amounts of first and second stable isotopes of a first atom. The composite sample is mass spectroscopically analyzed for analytes, with the ratio of first to second isotope being determined for each analyte, along with a composite sample median ratio. The ratios for each analyte are compared to the median, with outlying ratios indicating dissimilarity.

--[ The assignee: Methabolic Analyses, Inc. (Chapel Hill, NC) ]

The '251 patent gives background on the use of stable isotope analysis:


The use of stable isotopes for the determination of biological information has a long and illustrious history [see, Hellerstein, Metabolic Engineering 6:85-100 (2004)]. The oldest and most frequent such usage is in studies probing metabolism wherein a stable isotope is incorporated into a specific molecule at a specific location. This isotopically-labeled molecule, or "precursor", is fed to an in vivo organism, in vitro cell system, or in vitro cell-free system for either a brief or extended period of time, after which the fate of the isotope is determined, either by use of NMR, mass spectrometry (MS), chemical degradation, or other detection technique.

In contrast to the use of radioactive isotopes, the use of stable isotopes is generally regarded as safe and free of regulation. Although in general, a study typically uses a single isotope incorporated into a specific location in order to achieve a precision in understanding the metabolic fate of a molecule, another embodiment of the use of stable isotopes utilizes wholly-labeled molecules (>99% of an atom is replaced with an isotopic equivalent), or universally-labeled (the isotope is universally distributed within the target molecule at less than saturation levels). There are many known studies in which more than one isotope is incorporated into a target molecule, and all of the isotopic fragments are examined for their differential fates. In all cases, these methods are targeted analyses; i.e., they seek the incorporation of a specific labeled atom into other specific molecules.

Yet another use of stable isotopically labeled compounds is as internal standards for their non-labeled counterparts. In such an experiment an isotopically enriched molecule is added to a sample or extract at a known concentration prior to an analysis, and the final measurement determines the exact concentration of the non-labeled material by comparison. In this type of study, it is not uncommon for a researcher to add more than one isotopically-distinct standard if more than one molecule is to be quantified. Indeed, there are extreme forms where one prepares an extremely complex mixture by growing a complex organism on an isotopically-defined feedstock such that the entire organism is heavily, if not entirely, composed of molecules consisting of only one isotope [Wu et al., Anal Biochem 336:164-171 (2005)]. In this situation, the same standard is introduced into all samples, but there is no information carried by the standard other than for purposes of relative quantitation; i.e., the standard has no relation to the experiment at hand. Historically, such standards are carefully constructed to differ from any other analyte by a specific mass difference.


One notes a technique which can involve stable isotope analysis is MIMS [from US Patent 6,320,101 [ Enhancing inorganic carbon fixation by photosynthetic organisms ] : The rates were assessed from measurements during steady state photosynthesis using a membrane inlet mass spectrometer (MIMS)]; See also Shevela, Front Plant Sci. 2013; 4: 473: Studying the oxidation of water to molecular oxygen in photosynthetic and artificial systems by time-resolved membrane-inlet mass spectrometry

Plagiarism charges against Minnesota. JC presidents continue

See the AP story titled

2 MnSCU College Presidents Reject Plagiarism Claims


A post by Maura Lerner in the StarTribune does give some examples of the alleged plagiarism.

Senator Coons introduces STRONG bill on patent reform

From, under the byline of Chris Coons:


Today I’m introducing legislation in the U.S. Senate that targets abuse in focused and effective ways while strengthening the patent system as a whole. It’s called the Support Technology and Research for Our Nation’s Growth (STRONG) Patents Act, and it focuses on achieving five things:

Crack down on abusive demand letters by empowering the Federal Trade Commission to target firms that abuse startups rather than invent anything.
Ensure that pleading standards for patent-infringement cases match the standards used for all other forms of civil actions, creating a significant barrier to frivolous lawsuits before any funds are spent on discovery.
Eliminate fee diversion from the U.S. Patent and Trademark Office so we can ensure that those who examine patents have adequate training and dependable funding.
Ensure balance in post-grant proceedings at the PTO, so that this expedited form of patent litigation is both fast and fair.
Analyze the impact that our patent system has on small businesses, both from the perspective of startups reliant on patents and those small businesses facing allegations of infringement.

IPBiz notes that the issue with "trolls" is not "who" is doing the litigating but with whethether or not the patent is valid.

Pleading standards are presently the same for patent litigation. As Professor Epstein
observed, the Innovation Act of Goodlatte would make pleading different for patent litigation.
Congress, and no one else, created the fee diversion problem.

TheHill spoke of the Coons bill:


CEA specifically cited the bill's silence on fee shifting, a reform that would force the losing party in patent litigation to pay the winner's legal fees if the suit was found to be frivolous. Sen. Orrin Hatch (R-Utah) on Tuesday called a fee shifting provision "critical." Without addressing Coons's bill directly, Hatch expressed confidence that another proposal with fee shifting included could pass the Senate, saying "there is no reason to have partisanship on this issue."

Coons's more modest reforms to patent demand letters and other changes at the U.S Patent and Trademark Office won support from the biotechnology and pharmaceutical industries as well as universities, which remain concerned that broad reform could discourage legitimate patent litigation. The Innovation Alliance and the National Venture Capital Association also signed on.

Hillary's emails: gone but not forgotten?

Fox News reported on Hillary Clinton not using a "work" email while serving as Secretary of State:

Clinton did not even have a government e-mail address during her tenure as America's top diplomat, which lasted from 2009 to 2013, and The Times reports that her aides took no action to preserve her emails on department servers, as required by the Federal Records Act.

Instead, the paper reports, Clinton's advisers selected which of her emails to turn over to the State Department for archival purposes after going through tens of thousands of pages of correspondence. The department said late Monday that it had received 55,000 pages of Clinton's emails as part of a request made to previous secretaries of state to turn over any official documents they may have had in their possession.

This might seem unusual; from Fox News


Jason Baron, a former director of litigation at the National Archives, told the paper he found it "very difficult to conceive of a scenario — short of nuclear winter — where an agency would be justified in allowing its cabinet-level head officer to solely use a private e-mail communications channel for the conduct of government business." Baron added that the use of private e-mail accounts is meant to be reserved only for emergencies, such as when a department's server is not working or compromised.

IPBiz notes one sometimes sees a different problem, wherein an employee uses a work email address for non- work matters. And the issue of company retention of emails on the company server.

Monday, March 02, 2015

Rohrabacher criticizes Innovation Act

Congr. Dana Rohrabacher speaks out against the Goodlatte Innovation bill in the Washington Times, including the text

Under the proposed bill, the pretrial discovery process — just one part of many dubious sections — tilts heavily against the small inventor, who of course must share his or her secrets with an opposing corporation’s well-armed legal team. In another era, I might have considered this an innocent, unintended consequence of ill-considered drafting. Not now.


Sunday, March 01, 2015

60 Minutes on Match 1, 2015

Sharon Alfonsee on the storm after the storm,on problems with insurance claims after hurricane Sandy. George Hernemsr was a structural engineer, US Forensic provided another report. Steve Moston a Houston lawyer took Bob Cable's case. Insurance companies don't pay for structural damage. Andrew Bron another engineer spoke of changed reports. Altered reports. Hi-Rise Engineering. Approximately 96% of the engineering reports were altered.
Insurance companies argue that they changed for peer review. HiRise Engineering is now being investigated.
These engineering companies are overseen by FEMA. FEMA learned in late 2013 of problems (signals). FEMA people have flown to Texas to talk to lawyer representing homeowners. NY and NJ senators have called for oversight hearings.

Anderson Cooper on Lumber a Liquidators. Denny Larsen. Global community monitor. Issue with formaldehyde. Philip Landregan. Formaldehyde is used in glued to bind wood particles. Tom Sulivan of LL was interviewed. Group of lawyers and short sellers underwrote tests. Whitney Tillson. Profit margins. $13 to $119 per share. Reduces costs by 10%. The Chinese mills are licensed by California. ChangZu in China. At the end of story, question of oversight of the Chinese mills.
Relevant to IP: the involvement of short-sellers.

"Fish in the dark". Larry David. Interviewed by Charlie Rose. Rose asks who are you?
No capacity to say no. You don't have the courage to be a jerk. Character Norman Drexall.
David was closest in structure to character George Costanza. Rose and David visit
David's old apt. Shellbank Jr a High. Didn't go; didn't know. Went to U Maryland.
Jerks make for great comedy. Like to watch tv.

CBS Sunday Morning for March 1, 2015

Charles Osgood introduced the stories for March 1, 2015, noting that spring was only 19 days away. Lee Cowan does the cover story on the Yellowstone winter keeper, Steve Fuller. Erin Moriarity on Anne Sinclair. Tracy Smith on Kelly Clarkson. John Blackstone on robots at the San Francisco Fine Art Museum. Jane Pauley on autism. Seth Doane on an American in Tokyo. Steve Hartman.

Headlines. People take to the streets in Moscow over murder. Venezuela detains American tourists. Rand Paul wins CPAC straw poll with 26%. Roof collapse in Canton, MASS.

Fuller's passion for solitude of the winter caretaker of Yellowstone. "Have you seen the Shining?" Fuller does not have a television. What do you think the value of solitude is? Steve Fuller has worked since the winter of 1973. Pay was 13.75 per day. A job that would suit a hermit. Shutdown starts first Monday in November. Animals re-take the territory. Flash freezing. Opening is around end of March. Great primate migration. Being a winterkeeper is a way of life.

Almanac. March 1, 1809. Robert Cornelius born in Philadelphia. Photographic self-portrait. Now, the selfie. The selfie-stick. Behold: all is vanity.

Pulse 69% have visited a National Park.

Blackstone on deYoung Museum. Henry Evans worked on touring by robot. MBA from Stanford, now confined because of stroke. If you want something, you look for options. Robots have opened the world for Evans. TedMidlantic.
A remarkable testament to Jane. Manipulates a drone. Rebecca Bradley is deYoung director of accessibility. Overall it is remarkable.

Wife of Dominique Strauss-Kahn, Anne Sinclair, interviewed by Erin Moriarity. "The Barbara Walters of France." Sinclair put up 6 million to bail out her husband. Couple divorced in 2013. Her father was Paul Rosenberg, exclusive dealer for art of Pablo Picasso. Rosenberg left France in 1940. Moriarity/Sinclair visit Frick Museum. Sinclair turned down a chance to be painted Picasso. In 1937, Hitler denounced modern art. Nazi's used Rosenberg's house for anti-Jewish propaganda. Sinclair was born in US. New York was for me an enchanted city. Moriarity asks Sinclair: if in France, how would you have covered this story. Anne Sinclair now runs the French edition of the Huffington Post.

In a nutshell. FCC vote 3-2 to uphold net neutrality. Internet is a public utility: no fast lane for anybody.

Seth Doane on Dave Spector in Japan. Came to Japan in 1984. "Foreign talent" on tv. Foreigners who could speak Japanese. TBS Sunday Japan. Fast paced. Screen is cluttered. Hamster on crystal meth. Like a whale consuming plankton. YOu can never have too many ties. The business of "Brand Spector".

Steve Hartman on fans in Gainesville, Texas: juvenile detention facility. At away games, no rooting section. But one school set up situation wherein Half the crowd to cheer for Gainesville. Recycled from CBS Evening News.

Tracy Smith on Kelly Clarkson, now 32.

Death of Leonard Nimoy. Live Long and Prosper.

Week ahead. Monday is 50th anniversary of Sound of Music. Tuesday: Israeli PM delivers address. Wed. Read aloud day. Thurs. Forbes best company. Fri. Paley-fest. Sat. national cereal day.

Jane Pauley on Curious Incident of the dog in the night-time. (Chrisotopher Boone played by Alex Sharp) Novel by Mark Haddon. Hill Top School in Philadelphia. 1 out 68 children on autism spectrum; boys 1 out of 42. Aversion to human touch.

Face the Nation has John Boehner. Next on Sunday Morning. Obama. History via HipHop.

Moment of nature. Spiriva. Winter stillness of Yellowstone National Park.

Saturday, February 28, 2015

Forbes on the economics of biofuel from algae

Forbes mentions AlgaePARC:

So instead, Wijffels is attempting to use algae to promote clumping. He has added flocculating strains of algae, such as Ankistrodesmus falcatus, to a reactor containing the oil-producing strain Chlorella vulgaris, and found the two types readily joined together in clumps.

“You can have co-cultures of microalgae, in which one of them is really good at oil accumulation and the other one is really good at sticking to the other algae,” he says. “The art, of course, is to have a large percentage of oil-producing algae and a very small percentage of those flocculating algae.”

To get a better insight into the financial and energy costs of production, Wijffels aims to test the technique at Wageningen University’s Algae Production and Research Centre. AlgaePARC was launched earlier this year and allows algae-production processes to be tested alongside each other under the same conditions. It is supported by companies including ExxonMobil, Total, and biologist Craig Venter’s firm Synthetic Genomics. It has an open pond and six outdoor bioreactors made from horizontal tubes, vertical tubes or flat panels.

Ultimately though, if algae biofuel is to be made financially and environmentally sustainable, we will need to make use of more than just the oil produced by the organisms, says Schlarb-Ridley, who authored a report earlier this year on research into algae for the UK’s Biotechnology and Biological Sciences Research Council.

“Even if you are able to produce algae on a mass scale, you still need to use the by-products as well as just the fuel,” she says. Fortunately, as well as being oil producers, algae are also a valuable source of protein for fish and animal feed.

In a similar way, algae can use the by-products of other industries, says Schlarb-Ridley. Algae reactors could be connected to farms or fisheries, to consume the nitrate-rich waste they produce. Algae can also mop up the CO2 from flue gases from nearby industrial plants.


Friday, February 27, 2015

EFF brief on Commil case

EFF submitted a brief in the Commil case:


In our brief, we argue that inducement requires intent to infringe and if you think you’re not infringing (because either the patent is invalid or because you don’t think the acts you cause are covered by the patent), you shouldn’t be considered an inducer.

A contrary ruling would encourage patent holders to avoid clearly describing their inventions in a patent which would exacerbate the problem we already have with vague and overbroad software patents. Patent applicants could hide the ball from the Patent Office (making it more difficult and time consuming to do a good job reviewing the application) and the public (who may not understand the rights claimed by the patent holder), and still claim someone should have known that what they were doing was causing other people to infringe.


See previous IPBiz post of 6 Dec 2014.

Ericsson goes after Apple in ED Texas and at ITC

PCWorld notes

The Swedish telecommunications equipment vendor filed nine lawsuits against Apple on Thursday, seven in the U.S. District Court for the Eastern District of Texas and two in the U.S. International Trade Commission, alleging infringement of a total of 41 of its patents, it said Friday.


See also

2:15-cv-289: Ericsson claims Apple infringed the following:
US patent 6,026,293: "System for Preventing Electronic Memory Tampering"
US patent 6,400,376: "Display Control for Hand-Held Data Processing Device"
US patent 6,857,068: "System and Method for Data Processing by Executing a Security Program Routine Initially Stored in a Protected Part of Irreversibly Blocked Memory Upon Start-Up"
US patent 6,901,251: "Portable Communication Apparatus Having a Man-Machine Interface and a Method for its Operation:
US letters patent RE43,931: "Radiotelephones Having Contact-Sensitive User Interfaces and Methods of Operating Same"
2:15-cv-290: Ericsson claims Apple infringed the following:
US patent 6,360,102: "System and Method for Defining A Subscriber Location Privacy Profile"
US patent 6,433,735: "Mobile Terminal and System and Method for Determining the Geographic Location of a Mobile Terminal"
US patent 6,535,815: "Position Updating Method for a Mobile Terminal Equipped with a Positioning Receiver"
US patent 6,553,236: "On Demand Location Function for Mobile Terminal"
US patent 6,993,325: "Method for Facilitating Electronic Communications"
US patent 7,149,534: "Peer to Peer Information Exchange for Mobile Communications Devices"
2:15-cv-291: Ericsson claims Apple infringed the following:
US patent 7,149,510: "Security Access Manager in Middleware"
US patent 7,286,823: "Mobile Multimedia Engine"
US patent 7,415,270: "Middleware Services Layer for Platform System for Mobile Terminals"
US patent 7,536,181: "Platform System for Mobile Terminals"
US patent 7,707,592: "Mobile Terminal Application Subsystem and Access Subsystem Architecture Method and System"
US patent 8,079,015: "Layered Architecture for Mobile Terminals"
2:15-cv-292: Ericsson claims Apple infringed the following:
US patent 6,433,512: "Power Consumption Reporting by an Accessory of an Electronic Device"
US patent 6,763,247: "Portable Telecommunication Apparatus for Controlling an Electronic Utility Device"
US patent 6,968,365: "Device and a Method for Operating an Electronic Utility Device From a Portable Telecommunication Apparatus"
US patent 8,170,472: "Arrangement and a Method in a Telephony System"
2:15-cv-293: Ericsson claims Apple infringed the following:
US patent 6,633,550: "Radio Transceiver on a Chip"
US patent 6,157,620: "Enhanced Radio Telephone for Use In Internet Telephony"
US patent 6,029,052: "Multiple-Mode Direct Conversion Receiver"
US patent 8,812,059: "Radiotelephones Having Contact-Sensitive User Interfaces and Methods of Operating Same"
US patent 6,291,966: "Method and an Apparatus For Storing and Communicating Battery Information"
US patent 6,122,263: "Internet Access For Cellular Networks"
2:15-cv-287: Ericsson claims Apple infringed the following:
US essential patent 8,102,805: "HARQ in Spatial Multiplexing MIMO System"
US essential patent 8,331,476: "Method for Detecting Transmission Mode in a System Using Multiple Antennas"
US essential patent 6,301,556: "Reducing Sparseness in Coded Speech Signals"
US essential patent 8,607,130: "Computationally Efficient Convolutional Coding With Rate-Matching"
US essential patent 8,717,996: "Uplink Scrambling During Random Access"
US essential patent 8,660,270: "Method and Arrangement in a Telecommunication System"
US essential patent 8,837,381: "Using an Uplink Grant as Trigger of First or Second Type of CQI Report"
US essential patent 6,058,359: "Speech Coding Including Soft Adaptability Feature"



Concerning Robin Thicke

ET Canada noted of the Robin Thicke copyright trial

Mind you, Robin's defense team unveiled an unusual strategy to help present its case. While on the witness stand, the 37-year-old singer performed a piano medley featuring several known songs: U2's With Or Without You, The Beatles' Let It Be, Alphaville's Forever Young, Bob Marley's No Woman No Cry, and Michael Jackson's Man In the Mirror.

Although musical interludes can liven up any legal proceeding, the medley was designed to show many songs share similar chords and melodies without copying each other. To further the point, Robin noted that Blurred Lines relies solely on A-major and E-major, while Got To Give It Up uses eight different chords.


Non-Europeans dominate European patent landscape

The Financial Times noted non-Europeans are dominating the European landscape:


In 2014, filings from the US, Japan and China accounted for 53 per cent of the 274,000 new patents in Europe, according to data from the European Patent Office. Samsung, the South Korean telecoms and technology group, was the most prolific single company, taking top spot with 2,541.


Within the article, the FT asserted Europe was a leader in biofuel technologies.

100th patent application for the Great Lakes Bioenergy Research Center

The Badger-herald reports


The Great Lakes Bioenergy Research Center recently filed its 100th patent application, a milestone for the center.

Tim Donohue, director for the GLBRC, said the mission of the research center is to generate knowledge needed to produce liquid transportation fuels and valuable chemicals from the non-edible, or cellulosic, part of plant biomedicine.

This milestone is especially significant because the GLBRC has reported 50 percent more inventions than expected for a research center given the funding level and size, Donohue said. He said he believed this was because of the way they have worked together as a facility to attack problems and solve issues.

“We have taken a team approach to solve very difficult problems around the growth of plant material,” Donohue said.

In 2007 the U.S. Department of Energy established the GLBRC. The University of Wisconsin leads the GLBRC, with Michigan State University as a major partner, and it receives funding from the DOE.

Donohue said there were more than 400 people working in the center, and almost 100 of them were undergraduate students. He said there are undergraduates who have their name on patents and, through the GLBRC, are able to do first rate science and research.


**Within the quote, the text -- This milestone is especially significant because the GLBRC has reported 50 percent more inventions than expected for a research center given the funding level and size, Donohue said. -- is of interest.

IPBiz notes that WARF does the patenting work for Great Lakes. WARF
handled the stem cell cases for UW, for which there was a recent
denial of cert. (favoring UW).