Saturday, June 27, 2015

Stare decisis and the Spider-Man case (Kimble v. Marvel)


As a flashback, concerning the Supreme Court's refusal to overturn Brulotte v. Thys, contemplate the following from Monell, 436 U.S. 658, 695 (1978) :


Although we have stated that stare decisis has more force in statutory analysis than in constitutional adjudication because, in the former situation, Congress can correct our mistakes through legislation, see, e. g., Edelman v. Jordan, 415 U.S. 651, 671, and n. 14 (1974), we have never applied stare decisis mechanically to prohibit overruling our earlier decisions determining the meaning of statutes. See, e. g., Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 47-49 (1977); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 n. 1 (1932) (Brandeis, J., dissenting) (collecting cases). Nor is this a case where we should "place on the shoulders of Congress the burden of the Court's own error." Girouard v. United States, 328 U.S. 61, 70 (1946).



Recall the New York Times discussion:


The lesson, Justice Kagan wrote, is that the Supreme Court should use its power cautiously when it is asked to overrule a precedent. “What we can decide, we can undecide,” she wrote. “But stare decisis” — Latin for “to stand by things decided” — “teaches that we should exercise that authority sparingly.”

(...)

She said the Brulotte decision might be based on an outdated understanding of economics that hinders competition and innovations. But, she added, “respecting stare decisis means sticking to some wrong decisions.”

That is especially true, she said, when the decision in question did not involve the Constitution, about which the court has the last word, but rather the interpretation of a statute, which may be altered by Congress. “As against this superpowered form of stare decisis,” she wrote, “we would need a superspecial justification to warrant reversing Brulotte.”



link: http://www.nytimes.com/2015/06/23/business/in-spider-man-toy-patent-case-supreme-court-stands-by-past-decision.html?_r=0

Friday, June 26, 2015

Trade secrets as a solution to the Brulotte issue?

Note How a trade secret could have saved a running royalty from a nearly invincible law



Amazingly, both parties later professed that they knew not of the seminal Brulotte case when they entered into the agreement. But Marvel ultimately “stumbled across” it, and thus ensued a DJ action that Marvel could cease paying upon conclusion of the patent’s story-arc.

(...)

Easier is the situation where there are trade secrets involved in the transaction, and know-how, show-how and who-doesn’t-know-what-how is so very often part of the deal. The so-called hybrid license. As Justice Kagan put it, “[t]hat means, for example, that a license involving both a patent and a trade secret can set a 5% royalty during the patent period (as compensation for the two combined) and a 4% royalty afterward (as payment for the trade secret alone).”

Frankly, that is a bit too much of a simplistic example, as the allocation between patent and trade secrets has implications, such as the impact on other just pure patent royalty deals to be had and valuation of the patent rights, just to name two. Further, savvy licensees are not likely to accept a deal that leaves the trade secret part of the arrangement running forever. But it can happen.

Mixed result at CAFC in GAYMAR INDUSTRIES case



The CAFC noted:



In assessing the totality of the circumstances,
the district court relied on several instances of
defendant CSZ’s purported litigation misconduct
as a basis for finding that the case was not exceptional.
We affirm the district court’s finding of a lack
of objective baselessness.
We reverse the exceptional case finding
insofar as it was
based on CSZ’s
purported
misconduct, and remand.



link: http://www.cafc.uscourts.gov/images/stories/opinions-orders/14-1174.Opinion.6-23-2015.1.PDF

CAFC affirms district court in MOHSENZADEH case concerning 35 USC 154






The patent term adjustment statute, 35 U.S.C. §154,
has two provisions restoring patent term
to patentees for delays
attributable to the PTO
that occur prior to the
issuance of a patent.
“A Delay” refers to the PTO’s failure to
timely take certain actions or provide certain notices to
the patentee. 35 U.S.C. §154(b)(1)(A).
“B Delay” refers to the PTO’s failure to issue a patent within three years of
the actual filing date of the application.
Id. § 154(b)(1)(B).
The statute requires the agency to extend the term of the
patent by one day for each day the issuance of a patent is
delayed under either section 154(b)(1)(A) or (B)


The decision of the district court is affirmed by the CAFC:



The language of the provision of the patent term ad-
justment statute at issue, 35 U.S.C. §
154(b)(1)(A), clearly
shows that Congress intended
delay in the prosecution of
an application to be restored to a single patent, the
patent issuing directly
from that application. In other words, the
term of any patent arising from a
continuing
application
is not restored for delay in the prosecution of the parent
patent’s application.



link: http://www.cafc.uscourts.gov/images/stories/opinions-orders/14-1499.Opinion.6-23-2015.1.PDF

Celgene fishing for [Kyle] Bass?

In a post titled Celgene May Seek Sanctions Against Kyle Bass Over Patent Challenges , the Wall Street Journal notes of Bass's IPR against claims of Celgene patents (including one patent related to a drug for alleviating problems caused by MS, the patent relating to Tecfidera, a multiple sclerosis drug that had $2.9 billion in sales last year.}:


In response to a patent challenge filed by the hedge-fund manager, Celgene recently won permission from the U.S. Patent and Trademark Office to file a motion seeking sanctions against a Bass entity for allegedly abusing the process for reviewing patents.

Although Celgene has not yet filed a motion, the development is being closely watched because it raises the possibility that patent officials may put an end to a tactic Bass has used to challenge valuable patents held by drug makers and biotechs.

Thursday, June 25, 2015

Prism wins against Sprint

Ars Techica notes:


Patent troll wins $30M verdict against Sprint, has more trials on the way
Changes in case law didn't stop Prism Technologies from winning big.



A Nebraska jury has ordered Sprint to pay $30 million to Prism Technologies, a patent-holding company that has sued the five largest cell phone carriers.

US legislation coming on the "patent box"?

The problem for the US is that the US cannot compete with single-digit tax rates some companies can now achieve abroad, so there is some thought in Congress for a "tax break" related to intellectual property.


From investmentnews:


The idea — known as a patent box or innovation box — would grant a lower tax rate on income generated from patents and other intellectual property housed in the U.S. This would aid technology and pharmaceutical companies trying to maintain low tax rates that they've achieved by booking income in overseas tax havens.

The so-called innovation box also is attractive to lawmakers in both parties worried that companies can easily move income outside the U.S. and chase low tax rates around the world. The break could help preserve the domestic tax base threatened by tax inversions and takeovers by foreign companies, said Representative Charles Boustany, a Louisiana Republican who is working on innovation box legislation.



link: http://www.investmentnews.com/article/20150624/FREE/150629962/lawmakers-consider-lower-tax-rate-for-intellectual-property-housed

Apple's US application 20150178542: FINGER BIOMETRIC SENSOR INCLUDING DRIVE SIGNAL LEVEL UPDATING AND RELATED METHODS

From the specification:


0003] A particularly advantageous approach to fingerprint sensing is disclosed in U.S. Pat. No. 5,963,679 to Setlak and assigned to the assignee of the present invention. The fingerprint sensor is an integrated circuit sensor that drives the user's finger with an electric field signal and senses the electric field with an array of electric field sensing pixels on the integrated circuit substrate. Such sensors are used to control access for many different types of electronic devices such as computers, cell phones, personal digital assistants (PDA's), and the like. In particular, fingerprint sensors are used because they may have a small footprint, are relatively easy for a user to use and they provide reasonable authentication capabilities.

[0004] In some recent applications, the sensor may desirably capture images of fingerprint patterns from fingers that are farther away from the sensor array than is typical with today's technologies. Unfortunately, as the finger gets farther away from the sensor array (for example when a relatively thick dielectric lies between the sensor array and the finger), the spatial field strength variations that represent the fingerprint pattern become weaker. One way to compensate for this loss of spatial pattern strength is to increase the voltage of the signals that generate the field between the finger and the sensor array, also known as the drive signal. The fingerprint spatial pattern strength increases proportionately.

[0005] However, the detected signals generated from the sensor array and based upon placement of the user's finger adjacent the sensor array are relatively small compared to the drive signal. Thus, these relatively small detected signals may be increasingly difficult to process along with the relatively high drive signal, limiting measurement resolution of the detected signals, for example. Amplifier and processing stages that read and process the detected signals may add additional noise. Another source of noise may be fixed pattern noise from the sensor array, which also may make it increasingly difficult to measure the detected signals.



First claim of published application:


A finger biometric sensor comprising: an array of finger biometric sensing pixels; and processing circuitry coupled to the array of finger biometric sensing pixels and capable of acquiring initial data from the array of finger biometric sensing pixels based upon an initial drive signal level and with a finger positioned adjacent the array of finger biometric sensing pixels, determining an updated drive signal level based upon the initial data, and acquiring finger biometric data from the array of finger biometric sensing pixels based upon the updated drive signal level and with the finger positioned adjacent the array of finger biometric sensing pixels.

US patent application 20150173302 with inventor Lowell Wood: REFLECTIVE ARTICLES AND METHODS FOR INCREASING PHOTOSYNTHESIS


The first published claim:


A reflective article comprising: a reflecting material configured to diffusely reflect at least 80% of incident sunlight that is photosynthetically active; and a retro-reflecting material configured to retro-reflect at least 80% of incident sunlight that is non-photosynthetically active; wherein: sunlight that is photosynthetically active corresponds to wavelengths from 400 nm to 750 nm; and the article is configured for placement under, around, or in the proximity of a plant.



The application is assigned to Elwha.

Note the inventors of US 20130268756 (also assigned to Elwha):

Marc E. Davis, Matthew G. Dyor, William Gates, Xuedong Huang, Roderick A. Hyde, Edward K.Y. Jung, Jordin T. Kare, Royce A. Levien, Richard T. Lord, Robert W. Lord, Qi Lu, Mark A. Malamud, Nathan P. Myhrvold, Satya Nadella, Danny Allen Reed, Harry Shum, Clarence T. Tegreene, Lowell L. Wood, JR.

US patent application 20150176033 to Joule Unlimited: REACTIVE OXYGEN SPECIES-RESISTANT MICROORGANISMS


The first twelve claims of the published patent application:



1. A method to produce a carbon-based product of interest, comprising culturing an engineered cyanobacterial cell in a cell culture in the presence of CO.sub.2 and light under conditions suitable to produce a carbon-based product of interest, wherein said engineered cyanobacterial cell comprises a recombinant nucleic acid encoding an enzyme classified under an Enzyme Commission number selected from EC 1.11.1.6, EC 1.11.1.7, and EC 1.11.1.21.

2. The method of claim 1, wherein said enzyme has catalase activity.

3. The method of claim 1, wherein said enzyme has peroxidase activity.

4. The method of claim 1, wherein said enzyme is selected from KatG and KatE.

5. The method of claim 1, wherein said enzyme comprises an amino acid sequence at least 90% identical to SEQ ID NO: 3.

6. The method of claim 1, wherein said enzyme comprises an amino acid sequence at least 90% identical to SEQ ID NO: 4.

7. The method of claim 1, wherein said cell culture further comprises hydrogen peroxide.

8. The method of claim 7, wherein said hydrogen peroxide is at a concentration of 0.1 to 50 mM in said cell culture.

9. The method of claim 1, wherein said cell culture comprises a reagent to mitigate contamination of said cell culture.

10. The method of claim 1, wherein said cell culture is exposed to diurnal light conditions.

11. The method of claim 1, wherein said engineered cyanobacterial cell has the same or a higher rate of ethanol production in said cell culture than an otherwise identical cyanobacterial cell lacking said recombinant nucleic acid.

12. The method of claim 1, wherein the production rate of ethanol of a culture of said engineered cyanobacterial cells is greater than a rate selected from: 50, 100, 150, 200, 250, 300, 350, and 400 mg*L.sup.-1*day.sup.-1, or wherein the production rate of ethanol of a culture of said engineered byanobacterial cells is greater than a rate selected from: 13, 14, 15, and 16 mg*L.sup.-1*h.sup.-1, or wherein the mass of ethanol produced by a culture of said engineered cyanobacterial cells per volume of said culture is greater than an amount selected from: 1.5, 2, 2.5, 3, 3.5, 4, 4.5, 5, 5.5, 6, 6.5, 7, 7.5, and 8 g/L, or wherein said ethanol is produced during up to 30 days of culture.



The US case is related to PCT/US2012/071250, for which the written opinion of May 2013 was unfavorable.

Wednesday, June 24, 2015

Innovation in baseball: the axe bat (and US Patent 8,801,551)


Yahoo.sports has a piece on the axe bat now used by Dustin Pedroia.

Yes, there is mention of a patent:


In 2006, a New Yorker named Steve Leinert obtained a patent on the axe handle for a baseball bat, a concept Ted Williams hit on decades earlier in his book "The Science of Hitting," in which he compared a baseball swing to that of an axe. "Try it for yourself," Williams wrote. "Get a bat and swing it against a telephone pole. I do this with doubting young Washington players. Where is the wrist position at point of impact? Square and unbroken, that's where, just as when you hit a tree with an ax."

The axe handle felt more comfortable to Leinert, and he shopped it around to manufacturers. He met rejection after rejection, companies frightened off by something so novel, until Baden, whose main products to that point were balls, fell in love with the Axe Bat and agreed to license it for 20 years starting in 2009.






Note the text which shows a New Jersey connection:


It took five years for MLB to climb onboard, and even now Baden isn't making the bats for Pedroia because it doesn't have a license from the league. Victus Sports, a small New Jersey-based company, produces the axe-handle bats for major league players, something Pedroia learned by happy accident.



Link to article in yahoo.sports: http://sports.yahoo.com/news/why-dustin-pedroia-uses-the-axe-bat--which-may-make-the-round-handle-obsolete-013113798.html

One of the relevant patents is US 8,801,551, with first claim:


. A bat comprising: a body, comprising a first material, the body defining an exterior surface with a top end and a bottom end; a barrel portion having a barrel cross-section with a substantially circular perimeter that defines a center point; the barrel cross-section defining a longitudinal axis substantially perpendicular to the barrel cross-section, the longitudinal axis intersecting the barrel cross-section at approximately the center point, the longitudinal axis intersecting and extending through the exterior surface, near the top and bottom ends, at respective upper and lower intersection points, and otherwise within the exterior surface; a handle portion that includes the bottom end, the handle portion having a separately formed handle component comprising a second material; the handle portion defining a maximum forward distance, measured along a first line perpendicular to the longitudinal axis, from a first point on the longitudinal axis to a first location on the exterior surface of the handle portion that is farthest forward of the longitudinal axis; the handle portion defining a maximum rearward distance, measured along a second line perpendicular to the longitudinal axis, from a second point on the longitudinal axis to a second location on the exterior surface of the handle portion that is farthest rearward of the longitudinal axis; the handle portion also having an asymmetrically flared region extending from an upper boundary to a lower boundary, the upper boundary being more proximate the top end and the lower boundary being more proximate the bottom end; the asymmetrically flared region defining a non-circular cross-section perpendicular to the longitudinal axis, the non-circular cross-section having a major axis, wherein the major axis increases continuously throughout the asymmetrically flared region, from the upper boundary to the lower boundary; and portions of the exterior surface, in the asymmetrically flared region, defining a front edge and a rear edge, wherein the distance from the longitudinal axis to the front edge, measured along respective lines perpendicular to the longitudinal axis, is greater than the distance from the longitudinal axis to the rear edge, for each point of the longitudinal axis throughout the asymmetrically flared region.




And, yes, Ted Williams is cited in the patent:

Williams, Ted & Underwood, John, "The Science of Hitting," (New York: Simon & Schuster, Inc., 1986; 1st ed. 1970)

***Text in the yahoo.sports article

He met rejection after rejection, companies frightened off by something so novel, until Baden, whose main products to that point were balls, fell in love with the Axe Bat and agreed to license it for 20 years starting in 2009.

sounds in "Chester Carlson" and is highly relevant to the patent reform discussion. Yes, there still are individual inventors who may have a big impact.

Google suffers setback at the US Supreme Court in Vederi case related to Google Street View



--
The Supreme Court's decision not to grant certiorari leaves intact a March 2014 decision by the U.S. Court of Appeals for the Federal Circuit [CAFC], which threw out a district judge’s finding that Google had not infringed on four different patents of Vederi LLC. The case will now return to lower courts for further proceedings.

--

link: http://recode.net/2015/06/22/u-s-supreme-court-rejects-google-patent-appeal-over-street-view/

--

The March 2014 decision by then-CJ Rader had noted:


However, the district court erred
in construing “substantially elevations”
without sufficiently considering the
intrinsic evidence in this case.
In this case, the claim language is a
critical part of the record that shows the
error in the trial court’s reading of the claims. T
he opera-
tive language in this case is “substantially
elevations.” The district court’s construction
requiring elevation, and “elevation” alone
in the strict sense,
gives no effect to the “substantially” modifier
contained in the claims.
“A claim construction that gives meaning to all the terms of the
claim is preferred over one that does not do so.”
Merck & Co., Inc. v. Teva Pharm. USA, Inc., 395 F.3d 1364, 1372
(Fed. Cir. 2005).
By effectively reading “substantially” out the claims, the district court erred



This was a "claim construction" case, not a "doctrine of equivalents" case:


Accordingly, in view of the foregoing, this
court reverses the district court’s claim construction
,
vacates its judgment of non-
infringement and remands for further proceedings
consistent with this opinion.



From the past

--from 2011
So things don’t look very promising for Vederi, but we’ll see.

--

link: http://ipjournal.law.wfu.edu/2011/04/google-street-view-v-vederi-llc-a-lesson-on-provisional-patent-applications/

--from Oct. 2014

In November 2011, U.S. Circuit Judge Alex Kozinski, who sat by designation in district court, adopted a claim construction for the patents proposed by Google, ruling that Vederi’s patents cover “vertical flat” images rather than curved images like those used in Google Street View.

Largely as a result of that claim construction, the judge ruled in September 2012 that Google had not infringed Vederi’s patents, which he said covered stitched-together flat images rather than spherical ones.

The Federal Circuit held in March that Judge Kozinski had been too strict in his construction of a patent claim that defined Vederi’s images as “substantially elevations,” which is an architectural term for a flat, typically illustrated image of a building.

The Federal Circuit found that the inclusion of the word “substantially” meant that Vederi’s patent claims were not exclusively limited to flat images, and that the trial court had erred by ignoring the word.


link: http://www.law360.com/articles/590402/google-asks-high-court-to-take-up-street-view-patent-fight

--

from 2015

http://www.patentlyapple.com/patently-apple/2015/06/will-googles-patent-battle-over-street-view-mapping-eventually-spill-over-to-apple-maps.html

Does a former employee have to "forget" past information to avoid trade secret litigation?

See Ron Sokol's post Can trade secret laws be used to intimidate? including


You are not required to “forget” what you learned. Go over your nondisclosure agreement. Chances are it prohibits certain use and disclosure by you of an actual trade secret.



Sokol alludes to a certain trade secret case, which was Cypress v. Maxim, discussed on another blog in the following way:


Cypress Semiconductor Corp. v. Maxim Integrated Products, Inc., H038555 (Apr. 28, 2015). Cypress sued Maxim for trade secret misappropriation, alleging Maxim was attempting to hire its employees in violation of California law. Cypress pled two theories: (1) the names of its employees were trade secrets and Maxim wrongly obtained and exploited a list of its employees, and (2) Cypress was seeking to hire its employees to misappropriate their knowledge of Cypress’ touchscreen technology. The trial court denied Cypress’ requests for preliminary relief, finding Cypress had no evidence to support its claims. One piece of telling evidence the court noted was a declaration submitted by Maxim’s attorney demonstrating she learned the name of nearly every Cypress employee who worked on touchscreen technology by spending an afternoon perusing LinkedIn. Facing an upcoming hearing on Maxim’s demurrer to its first amended complaint, Cypress voluntarily dismissed its lawsuit without prejudice. Maxim thereafter sought and was awarded $180,817.50 in sanctions on the ground Cypress had brought its suit in bad faith, which under California law has two prongs: (1) objective speciousness of the claim, and (2) subjective bad faith in bringing or maintaining the action, i.e., for an improper purpose.



link: http://www.noncompetereport.com/2015/05/06/cases-are-easier-to-start-than-they-are-to-finish-california-court-awards-180000-in-sanctions-for-meritless-trade-secret-misappropriation-lawsuit-brought-in-bad-faith/

Plagiarism hidden because of collusive ties between literary critics and major publishers?

The New York Times has covered the plagiarism charges against Korean author Shin Kyung-sook in the post
South Korean Novelist Apologizes in Wake of Plagiarism Accusation

Within the NYT post is the text


Over the past week, Ms. Shin has come under increasing pressure to respond to the plagiarism accusation, which was made by the novelist Lee Eung-jun in an online commentary. Mr. Lee and others have argued that instances of plagiarism by best-selling authors such as Ms. Shin go largely unnoticed because of collusive ties between literary critics and major publishers.



One notes that in the famous Harvard plagiarism case involving Kaavya Viswanathan, plagiarism was "caught" not by publishers or by book critics but rather by readers. IPBiz wrote in 2006:

authors such as Viswanathan or Laurence Tribe borrow freely from previously-written works, and there is little if any penalty. In the case of Viswanathan, plagiarism was caught not by sophisticated anti-plagiarism software, frequently advertised on the internet, or by the copyright "police," but rather by customers (ie, book buyers) who noticed the similarities.

[Note IPBiz posts:


Boston Globe on plagiarism by Viswanathan



Baltimore Sun out of touch on Harvard plagiarism? ]


See also


Plagiarism charges against professor's Civil War book


And from Levin's CivilWarMemory:


UT is going to have to take a look at its peer review process and try to figure out how this one got through.



link: http://cwmemory.com/2006/11/14/university-of-tennessee-press-embroiled-in-plagiarism-allegations/

Predictions on Congressional action on patent reform

In the post --The PATENT Act: Be Careful What You Wish For --, one has the following "prediction"


Most Congressional observers believe that the change in control of the United States Senate presages approval of the PATENT Act, the Innovation Act or some form of those bills in the 114th Congress. To that end, the House continues to amend the Innovation Act, recently adding new venue provisions that would make it more difficult for non-practicing entities to bring their suits in the Eastern District of Texas. Moreover, the White House previously has signaled its intention to support and sign patent reform legislation. On the other hand, opposition to these bills is mounting from small businesses and individual inventors who sincerely believe that these changes will make it harder for them to protect their patent rights, thereby enabling larger companies to infringe their patents with impunity, as well as from those who benefit from the current system. In the end, it appears likely that Congress will amend the Patent Act during this session.






link: http://www.natlawreview.com/article/patent-act-be-careful-what-you-wish

One notes that pharma and university interests have strongly opposed the Innovation Act. Among other things, "loser pays" is opposed by many.

See also the post The anti –innovation Patent Act of 2015 which includes


Now, Congress is on the verge of passing major revisions to the Patent Act, which, if enacted, would be a blunder of historical proportions and would pose a threat to American innovation. Large corporations have been able to convince Congress and the public, through a well-funded, organized and misleading PR campaign, that innovation is being threatened by patent trolls, entities that abuse the system by extorting settlements and by bringing frivolous lawsuits.

(...)

Both of the bills also would alter the “American rule” that attorney’s fees should be borne by the respective parties absent exceptional circumstances and ignore the recent Supreme Court decisions giving district courts greater discretion to award attorney’s fees. Indeed, courts have recently begun to grant more motions seeking attorney’s fees. Fee shifting will likely deter legitimate owners of enforcing their patent rights by making the risk of enforcement prohibitively high.

Smaller companies also will be less able to enforce their patent rights by making it harder to obtain litigation funding.

Tuesday, June 23, 2015

What is the "conservative" IP position?


In the Spider-Man case with a Supreme Court vote of 6-3, Justice Scalia (and Justice Kennedy) aligned with the "liberal" judges. Justices Thomas, Alito, and CJ Roberts made up the dissent of three justices.

In the Cisco case at the Supreme Court, Justice Alito aligned with the "liberals," and Justice Thomas partially so. CJ Roberts and Scalia were in the dissent.

Recall the IPBiz post [ http://ipbiz.blogspot.com/2015/05/cisco-loses-at-supreme-court-in-case.html ] on the Cisco case:

***In terms of the conservatives of the court, Justice Alito aligned
with the majority; Justice Thomas joined only parts II-B and III, and Justice
Scalia dissented.

If hypothetically the conservatives Thomas and Alito had aligned with Scalia, the vote would have been 4 to 4, and the decision of the CAFC would have stood.

***
link to Supreme Court text for Cisco: http://www.supremecourt.gov/opinions/14pdf/13-896_l53m.pdf


***
One notes that Scalia and Alito voted in opposite ways on both cases, basically the same for Scalia and Thomas.
Scalia voted with Roberts in one case (Cisco); against in the other.

***
The coverage of Kimble/Marvel by the New York Times
In Spider-Man Toy Patent Case, Supreme Court Stands by Past Decision

***
In terms of "big guy" vs. "little guy," the little guy/patentee Kimble was the loser of the Spider-Man case.
In Cisco, the decision made life a bit tougher for accused infringers who believe the asserted patents are invalid, so arguably that decision was pro-little guy-patentee.

So, using only this one lens, Alito/Thomas/Roberts favored the position of the little guy in Spider-Man.

Monday, June 22, 2015

Supreme Court decides Spider-Man case; Brulotte still lives.

By a 6-3 vote, with the four court "liberals" joined by Justices Antonin Scalia and Anthony Kennedy, the Supreme Court decided to maintain the rule of Brulotte v. Thys. Marvel wins. Kimble loses.


USA Today: Supreme Court cuts the string on Spider-Man toy inventor's patent

Slate notes:




Then Kagan actually references the Spider-Man comic books:


What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider-Man,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”).

A comic book fanatic colleague of mine—who insisted I not use his name in this piece—lauds Kagan for correctly citing to Amazing Fantasy, the name of the issue that introduced Spider-Man. However, he notes that she did make one error: The story in that issue introduced a character named Spider-Man!, with an exclamation mark which Kagan omits. The authors of the Bluebook would be disappointed.





link: http://www.slate.com/blogs/the_slatest/2015/06/22/spider_man_supreme_court_case_kagan_cites_the_comic_book.html

The Wall Street Journal noted:


Justice Kagan said that if the Supreme Court’s earlier interpretation of patent law was problematic, Congress was the branch of government best suited to change patent policy. She also said parties have other ways to craft business arrangements that allow for deferred payments after a patent expires.

Justice Samuel Alito, joined by Chief Justice John Roberts and Justice Clarence Thomas, dissented and would have overruled the 1964 decision, a ruling that Justice Alito called an “obvious mistake.”



http://blogs.wsj.com/law/2015/06/22/supreme-court-sticks-to-precedent-in-spider-man-toy-case/

Sunday, June 21, 2015

CBS Sunday Morning on June 21, 2015

Charles Osgood introduced the stories for Father's Day, June 21, 2015. Lee Cowan does the cover story on family leave.
Second, Tracy Smith interviews Pat Boone. Third, Barry Petersen on small businesses in Viet Nam. Fourth, Anthony Mason on"Little Big Town." Fifth, Bill Geist; Steve Hartman; Jim Gaffigan. Headlines: Sunday services at Emanuel AME Church in Charleston, SC. Manhunt in New Orleans. NY State police look for escapees in Allegheny County. June 21 is longest day of year. Yogathon. Weather: cool in northeast; rainstorms.

Martha Teichner mentions Denmark Vesey. [Wikipedia: in 1818 he was among the founders of an AME Church in the city, which later became Emanuel African Methodist Episcopal Church. The first independent black denomination in the nation, it had recently been organized in Philadelphia, Pennsylvania.] Poll says 61% of people think race relations are bad.

Lee Cowan on parental leave. Example of six week leave for father to be with adopted child. Price Waterhouse has policy of six weeks leave. The US has no law on paid leave. FMLA has 12 weeks of unpaid leave. A study shows dads take an average of two weeks. National Partnership for Women and Families. Poll : 80% favor paid leave for parents.
"Family Act" offers three months at 66% salary. Videoclip of Dan Rather on Cal. paid leave law in 2002.

Pulse: In 1960, 70% of households, only dad works.

Almanac. June 21, 1921. Jane Russell born. Movie: "The Outlaw." Adoption group: WAIF. Died in 2011. Publicity can be terrible, but only if you don't have any.

Anthony Mason on "Little Big Town"'s Girl Crush. We are a walking breathing country song.

Bill Geist on cat circus. Samantha Msrtin's Acro-cats. 17 cats.

Barry Petersen's postcard from Vietnam. "The floating market."

Speed the tortoise died at San Diego Zoo.

Ringing church bells in Charleston.

Steve Hartman on 1053 Malcolm Road in Toledo. Built in 1955. Selling of the family home.

Pat Boone. April love. Pat turned 81 last month. The issue of covering songs initially done by black artists. Ain't that a shame. 1957: Chevy variety show, Class of 1958 at Columbia University. Raised in Nashville/
Contract to sell Beatles pictures. In 1997: heavy metal album. Shirley Foley. I'd like to be loved by everybody, but nobody is.

Brannigan on Father's Day. Dads are the human equivalent of cargo shorts. Without the comparison to dads, moms would look horrible.

Week ahead. Monday: 5th annual, sings for pride. Tuesday: Shatner journey Wed. sentencing in Boston Thurs. Grammy museum on Supremes. Friday: take your dog to work Sat.: Grateful Dead.

Video from Charleston. Church bell ringing.

Next week. "Heart and soul" Capture love in a photograph?

Moment of nature, Spiriva. Elks in Rocky Mountain National Park.

Some aspects of Teva's US 5,800,808 (related to Copaxone)

The first claim of US 5,800,808 states:


A method of manufacturing copolymer-1, comprising reacting protected copolymer-1 with hydrobromic acid to form trifluoroacetyl copolymer-1, treating said trifluoroacetyl copolymer-1 with aqueous piperidine solution to form copolymer-1, and purifying said copolymer-1, to result in copolymer-1 having a molecular weight of about 5 to 9 kilodaltons.



The claim refers to "molecular weight" and does not refer to "average molecular weight." That might suggest that the term "copolymer-1" refers to an individual molecule, not a collection of polymers, each individual one of which might have a different molecular weight.

The "background" section states:


Copolymer-1 is a synthetic polypeptide analog of myelin basic protein (MBP), which is a natural component of the myelin sheath. It has been suggested as a potential therapeutic agent for multiple sclerosis (Eur. J. Immunol. [1971] 1:242; and J. Neurol. Sci. [1977] 31:433). All references cited herein are hereby incorporated by reference in their entirety. Interest in copolymer-1 as an immunotherapy for multiple sclerosis stems from observations first made in the 1950's that myelin components such as MBP prevent or arrest experimental autoimmune encephalomyelitis (EAE). EAE is a disease resembling multiple sclerosis that can be induced in susceptible animals.

Copolymer-1 was developed by Drs. Sela, Arnon, and their co-workers at the Weizmann Institute (Rehovot, Israel). It was shown to suppress EAE (Eur. J. Immunol. [1971] 1:242; U.S. Pat. No. 3,849,550). More recently, copolymer-1 was shown to be beneficial for patients with the exacerbating-remitting form of multiple sclerosis (N. Engl. J. Med. [1987] 317:408). Patients treated with daily injections of copolymer-1 had fewer exacerbations and smaller increases in their disability status than the control patients.

Copolymer-1 is a mixture of polypeptides composed of alanine, glutamic acid, lysine, and tyrosine in a molar ratio of approximately 6:2:5:1, respectively. It is synthesized by chemically polymerizing the four amino acids forming products with average molecular weights of 23,000 daltons (U.S. Pat. No. 3,849,550).

It is an object of the present invention to provide an improved composition of copolymer-1.



The first three sentences of the "summary" do suggest the term "copolymer-1" refers to a collection of molecules:


The present invention relates to a composition of copolymer-1 substantially free of species of copolymer-1 having a molecular weight of over 40 kilodaltons (KDa).

The invention further relates to a copolymer-1 having over 75% of its molar fraction within the molecular weight range from about 2 KDa to about 20 KDa.

In addition, the invention relates to a copolymer-1 having an average molecular weight of about 4 to about 8.6 KDa.



As the courts have noted, the patent does not discuss "how" average molecular weight is to be measured; claim 1 does not use the term "average molecular weight."

Examples 3 and 4 are written in the PRESENT tense:


EXAMPLE 3

Preparation of Trifluoroacetyl-Copolymer-1

Protected copolymer-1 is prepared as described by Teitelbaum et al. Eur. J. Immun. Vol. 1 p. 242 (1971) from the N-carboxyanhydrides of tyrosine (18 g), alanine (50 g), y-benzyl glutamate (35 g) and trifluoroacetyllysine (83 g) dissolved in 3.5 liters of dioxane.

The polymerization process is initiated by the addition of 0.01-0.02% diethylamine. The reaction mixture is stirred at room temperature for 24 hours and then poured into 10 liters water. The product (protected copolymer-1) is filtered, washed with water and dried. The removal of the gamma-benzyl blocking groups from the glutamate residue is carried out by treating the protected copolymer-1 with 33% hydrobromic acid in glacial acetic acid at room temperature for 6-12 hours with stirring. The product is poured into excess water, filtered, washed and dried, yielding the trifluoroacetyl-copolymer-1.

EXAMPLE 4

Preparation of Trifluoroacetyl-Copolymer-1

Protected copolymer-1 is prepared as described by Teitelbaum et al. Eur. J. Immun. Vol. 1 p. 242 (1971) from the N-carboxyanhydrides of tyrosine (18 g), alanine (50 g), .tau.-benzyl glutamate (35 g) and trifluoroacetyllysine (83 g) dissolved in 3.5 liters of dioxane.

The polymerization process is initiated by the addition of 0.01-0.02% diethylamine. The reaction mixture is stirred at room temperature for 24 hours and then poured into 10 liters water. The product (protected copolymer-1) is filtered, washed with water and dried.

Protected copolymer-1 is treated with 33% HBr in acetic acid which removes the omega benzyl protecting group from the 5-carboxylate of the glutamate residue and cleaves the polymer to smaller polypeptides. The time needed for obtaining copolymer-1 of molecular weight 7,000.+-.2,000 Da depends on the reaction temperature and the size of protected copolymer-1. At temperatures of between 20.degree.-28.degree. C. a test reaction is performed on every batch at different time periods for example, from 10-50 hours.

The results concerning the molecular weights of these small scale reactions are calculated and a curve of molecular weight against time is drawn. The time needed for obtaining molecular weight 7,000.+-.2,000 Da is calculated from the curve and performed on larger scale reaction. On average, working at 26.degree. C. the time period is 17 hours. The product is poured into excess water, filtered, washed and dried, yielding the trifluoroacetyl-copolymer-1.

Preparation of low-toxicity copolymer-1

20 g of trifluoroacetyl-copolymer-1 are dispersed in 1 liter of water to which 100 g piperidine are added. The mixture is stirred for 24 hours at room temperature and filtered. The solution of crude copolymer-1 is distributed into dialysis bags and dialyzed at 10.degree.-20.degree. C. against water until a pH=8 is attained. It is then dialyzed against about 0.3% acetic acid and again water until a pH=5.5-6.0 is obtained. This solution is then concentrated and lyophilized to dryness.



The application leading to the '808 patent was filed May 22, 1995.

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See also United States Patent Application 20090237078