Thursday, May 05, 2016

First woman to receive US Patent: May 5, 1809

Of "cinco de mayo" and patents, on May 5,1809, Mary Kies became the first woman to receive a U.S. patent, for a weaving technique.

The "cinco de mayo" holiday celebrates the victory of the Mexican army over the French at the Battle of Puebla on May 5, 1862. The French would later prevail and install Maximilian, who lasted until Queretaro in 1867.

There is a connection to the American Civil War. On May 17, 1865, about three years after "cinco de mayo", General Grant ordered General Sheridan, with 50,000 men, to Texas, manifestly to deal with Kirby-Smith but sub rosa to deal with the French and Maximilian. This unit was known as the Military Division of the Southwest. Additionally, Sheridan was to keep Confederates from crossing the border, from the U.S. into Mexico!

**In passing, IPBiz on blawgsearch on the day, and the week, of 5 May 2016:

Who invented Bitcoin?

From Ars Technica, on the evolving Craig Wright matter :

Of course, Craig Wright already said goodbye on Monday, telling the BBC his discussion would be the one and only television interview he would do. "I don't think I should have to be out there," he told the BBC. "There's nothing owed to the world... Why do I have to take credit for it? Why do I?"

"I want to work," he continued. "I don't work and invent and write papers and code by coming in front of TVs. I don't want money, I don't want fame, I don't want adoration, I just want to be left alone."

That's the persona Wright built—brilliant but incredibly sensitive and disdaining the limelight—even though he apparently hired a PR firm to put himself in the public eye. Since minute one, he has been certain to remind everyone that he's desperately concerned with his own privacy, to the point of being rude to the journalists sharing his story (the very same journalists he sought out.)

Real proof that a person or group of people is Satoshi Nakamoto, the moniker of the creator of Bitcoin, could be had within minutes. Moving around early bitcoin or creating a new signature with Satoshi's encryption keys would be enough.

Barring that, it looks like Wright will only be known as the first "cryptographically proven con artist," as security researcher Dan Kaminsky put it.


As we know, Thomas Edison was quite happy to take credit and be in the limelight.

Separately, one might contemplate an old episode of the Outer Limits. Sandkings (1995)

Wednesday, May 04, 2016

The CAFC and the case of the misleading ellipsis

From a footnote in the Rhoads case (lost by appellant Rhoads):

Rhoads uses a somewhat misleading ellipsis to
suggest that the Examiner conceded that Davis did not
transmit electronic information to the device to cause the
device to execute an instruction. See Appellant’s Br. at 22.
That is not accurate. The Examiner found that Davis did
disclose that function, but that Davis did not disclose
signaling to the user that an instruction had been successfully
performed. A123; see also Davis at ¶ 97 (“In applications
where the object is a machine, the object reference
may also facilitate remote control and remote updating of
control instructions for the machine.”).

general link:

Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. 12/498,709

Tuesday, May 03, 2016

Michelle Obama on NCIS

Per the previews, NCIS on 3 May 2016 discussed "Joining Forces" at the 24 minute mark, and Michelle Obama
appeared at the 53 minute mark. Character Gibbs said "Honor to serve ma'am".

The underlying issue was the lack of bar reciprocity between California and West Virginia.

Sadly, one of the malefactors in the story was a police officer in Harpers Ferry, WVa.

Texts that appeared in the episode were "We are on the same side." and #LivingRocks.

Washington Post not telling full story on Cuozzo/IPR?

From a Washington Post piece on the Cuozzo case, and the ambiguities left by Congress as to IPR in the AIA:

The problem: Congress never told the agency [USPTO] how it was supposed to review contested patents, so the Patent Office decided to use the same broad standards that it has always used to review applications, not the textual standards of the federal courts. This stacked the patent review process against patent-holders, the opposite of what would happen in a court trial. Over the past few years, inter partes review has canceled hundreds of patents, shooting down more than 80 percent of the existing patents subject to review in cases that weren’t settled.

Critics of inter partes review — mostly pharmaceutical and software start-up companies that rely heavily on their intellectual property to do business — have taken to calling the board governing the review the “Patent Death Squad.” They argue that the new system has upended intellectual property rights and stymied innovation in the United States.

Their opponents — generally bigger tech companies like Google and Apple (the common targets of patent litigation) — defend the Patent Office. For them, the new review process is doing what it was designed to do: weeding out bogus patent claims and offering a more efficient alternative years-long court battles.

The Supreme Court is now pitted between these two sets of industries and must decide what standards inter partes review should use. Should it act as an extension of the Patent Office’s application process, striking down most of the patents with a tough standard? Or should it act as a fast-track replacement for the court system, with a lower standard?

The Washington Post piece by Robert Gebelhoff did NOT get into the failure of applicants to obtain amendments in IPR. As pointed out by Judge Newman, amending claims is a key part of patent prosecution, and the absence of amendments makes IPR very UNLIKE conventional application review.

link to Gebelhoff article:

See for example: [ An issue raised by Judge Newman was that the use of the BRI standard was incommensurate with the unwillingness of PTAB to allow amendments. ]

Monday, May 02, 2016

Plagiarism incident at the Naval War College; result different from the Walsh affair at Army War College?

ForeignPolicy reports an incident of plagiarism at the Naval War College, which apparently ended differently
than the Walsh incident at the Army War College.

See How not to handle plagiarism: An example from the Naval War College

According to the article, either the college president, Rear Admiral P. Gardner Howe III, or the War College’s Provost, Dr. Lewis Duncan, rejected the recommendation that the student be given a zero. The article asserts: -- Word around the campus is that the student’s career was preserved because he is slated for a significant command. --

Nvidia, Samsung settle their patent infringement law suits

The Wall Street Journal reported on Monday, May 2, 2016:

Nvidia Corp. and Samsung Electronics Co. agreed to settle competing patent lawsuits between the two companies, the companies said Monday.

In the fall of 2014, Nvidia and Samsung filed lawsuits against each other alleging patent infringement and other misconduct.

Nvidia filed suit against Samsung over the use of infringing patents that cover graphics chips. In its own complaint, Samsung alleged that Nvidia infringed upon six patents while falsely advertising that one of its processors was the world’s fastest mobile processor, according to Nvidia’s regulatory filing at the time.


Sunday, May 01, 2016

TIME magazine finds Princeton, NJ is number one in patents per capita

From the story in TIME

When factoring in population size and number of patents over the last forty years, Princeton, N.J., is America’s most genius city, according to TIME’s exclusive ranking. It’s there that advancements ranging from color televisions to ultrasound and radar technology were made

TIME found Princeton had 15.5 patents per 10,000 people.


Jawbone loses to Fitbit and Flextronics at ITC

In an initial determination on April 27, 2016, the ITC in 337-TA-963 found that claims of Jawbone's US 8,961,413 and 8,073,707 were invalid under 35 USC 101.

link to WSJ article on matter:

Saturday, April 30, 2016

Proposal for unsuccessful patent applicants to pay higher fees?

In discussing PatCon6, the writtendescription blog has an interesting discussion about a proposal -- forcing unsuccessful patent applicants to pay higher application fees --:

For example, in his paper, "Loser Pays" in Patent Examination, Neel U. Sukhatme argues that we should create incentives for patent applicants themselves to improve the quality of their applications by forcing unsuccessful patent applicants to pay higher application fees, thereby subsidizing successful applicants. By importing the "loser pays" concept from litigation, Sukhatme argues, we can create "an efficiency-enhancing chilling effect that disincentives weak applications and improves application quality."

Sukhatme's project nicely compliments R. Polk Wagner's analysis several years ago in Understanding Patent-Quality Mechanisms. In Wagner's view circa 2009, bad incentives on the part of applicants (as well as PTO examiners) was a root cause of the problem of low patent quality. Low patent quality, Wagner wrote, "is supported by a series of powerful incentives, including incentives that encourage patentees to draft patent applications that effectively obscure the true scope of the invention and its relationship to the prior art." Sukhatme's suggestion to require applicants to pay for their drafting failures follows Wagner's advice for improving patent quality: ensure that patentees have "strong, unequivocal incentives to seek patents that clearly meet the standards of patentability, that are explained in the context of the prior art, and that draw clear and unambiguous lines around their subject matter[.]" So maybe we're making Progress.


This "discouragement" would only make sense if a large fraction of patent applicants were deliberately obfuscating their claim drafting.

Friday, April 29, 2016

Fluorosamine for myelin regeneration?

See Multiple sclerosis: Drug boosts myelin regeneration in mice raising hope of future treatments for MS

Note the paper -- Changes in chondroitin sulfate proteoglycans in experimental autoimmune encephalomyelitis -- in Journal of Neuroimmunology, Volume 275, Issues 1–2, 15 October 2014, Pages 175, with text

Multiple sclerosis (MS) is an inflammatory neurodegenerative disease of the central nervous system involving a profound destruction of myelin and oligodendrocytes that form focal areas of demyelination. MS also involves global changes in the extracellular matrix, including alterations in chondroitin sulfate proteoglycans (CSPGs). CSPGs may play detrimental roles in MS through their ability to reduce oligodendrocyte precursor cell recruitment, as well as promote local immune responses. However, the effects of CSPGs on MS pathology remain to be determined, as well as the role of specific CSPG members. (...)

Experimental autoimmune encephalomyelitis (EAE) was induced in C57Bl/6 mice, and animals were also treated with the glucosamine derivative fluorosamine that reduces CSPG production from cells in culture.


Treatment of mice with fluorosamine alleviated EAE clinical severity correspondent with decreased versican transcripts in the spinal cord. In active lesions of EAE as well as MS characterized by inflammatory perivascular cuffs, versican was detected on cellular and non-cellular profiles in the perivascular space.

The word "fluorosamine" appears in US Patent 4,621,059 : In this case, when luminol is used as the luminescent substance, iron ion is used for accelerating the luminescence. When the DNPO or TCPO is used as the luminescent substance, porphyrin, fluorosamine or dansyl compound may be used.

**Separately, from blawgsearch on 29 April 2016

Legal decisions must rest on factually accurate information

One takes note of the post at PatentDocs entitled
The Fantastical World of Justice Stephen Breyer

As a side comment to the text ["The tragedy, first explored by Stephen Jay Gould in "Carrie Buck's Daughter," The Flamingo's Smile (1985)..." ]. one notes that the 1961 movie Judgment at Nuremberg raised the issue
[wikipedia: He [Hans Rolfe (Maximilian Schell) ] also suggests that the United States has committed acts just as bad or worse as those the Nazis perpetrated. He raises several points in these arguments, such as: U.S. Supreme Court Justice Oliver Wendell Holmes, Jr.'s support for the first eugenics practices (see Buck v. Bell )]

As to the confusion of facts issue

Justice Holmes rendered his opinion based on this factual inaccuracy and, according to Mr. Cohen, his own prejudices about race and class as a Boston Brahmin of the turn of the 20th Century. While the Justice had more than adequate help in coming to the wrong conclusion, ultimately Mr. Cohen shows that the combination of predilection and factual error informed one of the cruelest aphorisms in American jurisprudence (which remains good law today).

It is easy for this example to come to mind when reading the questions and assertions from current Associate Justice Stephen Breyer, author of the Court's unanimous decision in Mayo v. Prometheus, regarding his understanding and concerns with the patent system and its discontents.

one also recalls a similar confusion of facts issue in the Dred Scott decision, as brought up by dissenting judge
Benjamin Curtis. Although Taney applied a "what was the status (of African Americans) at the time of the signing of the Constitution" to infer "not citizens then or now", Curtis pointed out, as a factual matter, this simply was not true.


see also, Lawrence B. Ebert, Obtaining Sure and Reliable Information, Intellectual Property Today (2000), which begins

"When invention is rife and rights so precarious as they now are under the administration of the patent office, every person ought to have some sure and reliable information in relation to his legal rights before he ventures upon application." n2 "There is scarcely any subject out of which grows more law-suits than that of patents. Every one therefore interested should know what to avoid and what to do." n3 Although words of contemporary wisdom, this advice was actually given about 150 years ago. The problem remains: where to get sure and reliable information?

endnote 2: From The United States Democratic review, Volume 29, Issue 158, page 192 (August 1851) reviewing Inventor's Manual: or Legal Principles, and Guide to the Patent Office by George Ticknor Curtis, brother of Benjamin Curtis, U.S. Supreme Court Justice who authored the opinion in Winans v. Deomead, which crystallized the "doctrine of equivalents."

CAFC addresses venue, personal jurisdiction in Heartland case

The issues:

Heartland argues that it is entitled to a writ of mandamus
based on two legal theories. First, it argues that it
does not “reside” in Delaware for venue purposes according
to 28 U.S.C. § 1400(b). Second, it argues that the
Delaware district court lacks specific personal jurisdiction
over it for this civil action. We conclude that a writ of
mandamus is not warranted. The arguments raised
regarding venue have been firmly resolved by VE Holding,
a settled precedent for over 25 years. The arguments
raised regarding personal jurisdiction have been definitively
resolved by Beverly Hills Fan, a settled precedent
for over 20 years. As a panel, we are bound by the prior
decisions of this court.

Of venue:

Heartland argues that the “law” otherwise defined corporate residence
for patent cases and therefore the statutory definition
found in § 1391(c) is no longer applicable to patent
cases. As Heartland itself acknowledges, “most special
venue statutes have not been held to encompass particular
rules about residency, and thus subsection (c) can
apply to such statutes wherever they are found in the
U.S. Code.” Pet. 7–8. The patent venue statute, 28
U.S.C. § 1400(b), provides in its entirety: “Any civil action
for patent infringement may be brought in the judicial
district where the defendant resides, or where the defendant
has committed acts of infringement and has a regular
and established place of business.” It is undisputed that
the patent venue statute itself does not define corporate
residence and thus there is no statutory “law” that would
satisfy Heartland’s claim that Congress intended in 2011
to render § 1391(c)’s definition of corporate residence
inapplicable to venue for patent cases.


In VE Holding, we found that
the Supreme Court’s decision in Fourco with regard to the
appropriate definition of corporate residence for patent
cases in the absence of an applicable statute to be no
longer the law because in the 1988 amendments Congress
had made the definition of corporate residence applicable
to patent cases. 28 U.S.C. § 1391(c) (1988) (“For the
purposes of venue under this chapter”). In 1988, the
common law definition of corporate residence for patent
cases was superseded by a Congressional one. Thus, in
2011, there was no established governing Supreme Court
common law ruling which Congress could even arguably
have been codifying in the language “except otherwise
provided by law.”

Heartland cites to a single sentence in a footnote in
the Supreme Court’s decision in Atlantic Marine Construction
Co. v. United States District Court for the Western
District of Texas, 134 S. Ct. 568, 577 n.2 (2013), to
argue “the Supreme Court showed its belief that § 1391 is
not applicable to patent cases, and § 1400 is.” Reply 9.
Heartland’s argument misses its mark. The Supreme
Court’s footnote states in its entirety: “Section 1391
governs ‘venue generally,’ that is, in cases where a more
specific venue provision does not apply. Cf., e.g., § 1400
(identifying proper venue for copyright and patent suits).”
Atl. Marine Constr. Co., 134 S. Ct. at 577 n.2. It is undisputed
that § 1400 is a specific venue provision pertaining
to patent infringement suits. But what Heartland
overlooks, and what Atlantic Marine does not address, is
that § 1400(b) states that venue is appropriate for a
patent infringement suit “where the defendant resides”
without defining what “resides” means when the defendant
is a corporation.

Of personal jurisdiction

Heartland’s argument regarding personal jurisdiction
in this case is, as the Magistrate Judge noted, difficult to
follow.3 Heartland appears to be arguing that 1) the
Supreme Court’s recent decision in Walden v. Fiore, 134
S. Ct. 1115, 1121 n.6 (2014), makes clear that specific
personal jurisdiction can only arise from activities or
occurrences taking place in the forum state, and
2) Federal Circuit case law makes clear that each act of
patent infringement gives rise to a separate cause of
action, such that 3) the logical combination of these two
points of law means that the Delaware district court has
specific personal jurisdiction over Heartland for allegedly
infringing acts that occurred in Delaware only, not those
occurring in other states.4 Applied to the facts of record,
under Heartland’s argument, the Delaware district court
would only have specific personal jurisdiction over the
approximately 2% of Heartland’s 2013 sales of the accused
product (i.e., 44,707 cases of the accused product
that generated at least $331,000 in revenue) that Heartland
shipped into Delaware. Thus, to resolve nationwide
the same issues as in this Delaware infringement suit,
Kraft would have to bring separate suits in all other
states in which Heartland’s allegedly infringing products
are found. Alternatively, under Heartland’s argument,
Kraft could opt to bring one suit against Heartland in
Heartland’s state of incorporation.5


Heartland’s arguments are foreclosed by our decision
in Beverly Hills Fan. In that case, we held that the due
process requirement that a defendant have sufficient
minimum contacts with the forum was met where a nonresident
defendant purposefully shipped accused products
into the forum through an established distribution channel
and the cause of action for patent infringement was
alleged to arise out of those activities. Beverly Hills Fan,
21 F.3d at 1565; see also Acorda Therapeutics Inc. v.
Mylan Pharm. Inc., Nos. 2015-1456, 2015-1460, 2016 WL
1077048, at *7 (Fed. Cir. Mar. 18, 2016) (determining that
the minimum contacts requirement was met where a
defendant contracted with a network of independent
wholesalers and distributors to market the accused product
in Delaware, the forum state). Such is the case here.
Heartland admits that it shipped orders of the accused
products directly to Delaware under contracts with what
it characterizes as “two national accounts” that are headquartered
outside of Delaware. And Heartland does not
dispute that Kraft’s patent infringement claims arise out
of or relate to these shipments. This is sufficient for
minimum contacts.

general link:

The Register wrote of the venue issue:

The court denied the appeal, reaffirming a 1990 ruling that allows a company doing business nationally in America to be sued in any US district court. This, in turn, means that plaintiffs can hand-pick the courts they use to bring forward patent infringement suits – and they usually pick the courts that back those alleging infringement.

The case has been closely followed by technology companies due to the precedent TC Heartland would have set had its appeal been successful. Intellectual property law reformers hoped that a ruling in Heartland's favor would restrict the practice of "patent trolling" by preventing IP-holding firms from using plaintiff-friendly courts (such as the Eastern Texas District Court) to file infringement claims in hopes of winning a decision or striking a settlement.


The CAFC had written that
VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574 (Fed. Cir. 1990)
remained good law after the 2011 Congressional amendments.

In VE Holding, this court held that the
definition of corporate residence
in the general venue statute, § 1391(c), applied to the patent venue statute, 28
U.S.C. §1400. The 2011 amendments
to the general venue statute relevant to
this appeal were minor.