Wednesday, September 17, 2014

CAFC discusses laches and equitable estoppel in SCA Hygiene

The outcome of SCA Hygiene vs. First Baby Products

Accordingly, we affirm the district court’s grant of summary judgment
as to laches, reverse its grant of summary judgment
as to equitable estoppel, and remand
for further proceedings consistent
with this opinion


Congressman Frank Wolf asks US attorney to look into possible fraud at the US Patent Office

In a post GOP congressman seeks criminal prosecution of patent office cheating , Lisa Rein wrote

“There must be a zero-tolerance policy for fraud and abuse,” Wolf wrote Monday (Sept. 15, 2014) to U.S. Attorney Dana Boente, the top federal prosecutor for the Eastern District of Virginia, which encompasses Northern Virginia and the Richmond and Tidewater areas.

“I believe it is important for federal prosecutors to independently review these allegations for criminal wrongdoing,” Wolf wrote. “A clear message must be sent to anyone in the government that fraudulent activity is unacceptable and will be met with punishment.”

IPBiz notes that, although much of the buzz is about telecommuting, the underlying problem is about how the count system is implemented, not about "where" the examiners do their work. Examiners filing incomplete Office Actions to make counts is a problem.

See also Washington Post reports US Patent Office initiating review of telework in response to Congressional inquiry :

Fallout from CAFC decision in Apple/VirnetX case

In VirnetX to Vringo’s Lost Millions Show Patent Peril , Susan Decker noted that other patent licensing companies were impacted by the Virnetx/Apple CAFC decision of Sept. 16, 2014:

Other public companies that rely on patent licensing fell with VirnetX yesterday. Spherix Inc., (SPEX) which has sued Cisco Systems Inc. and Juniper Networks Inc. over patents it bought, dropped 9.5 percent. Marathon Patent Group Inc., Acacia Research Corp. and Itus Corp. fell about 4 percent before recovering.

As to the ongoing debate about "low quality" patents, one should note that the validity of the VirnetX claims was affirmed by the CAFC (text: we affirm the jury’s findings that none of the asserted claims are invalid ). The "big deal" was about the calculation used for damages, with the particular Nash Bargaining Solution firmly rejected.

See earlier IPBiz post Apple escapes the Nash Bargaining Solution in VIRNETX case

Jason Rantanen at PatentlyO discussed another issue:

Since the VirnetX’s expert relied on the iOS devices as the “‘smallest salable units,’ without attempting to apportion the value attributable to the VPN On Demand and Facetime features,” the legal error was not harmless. Put another way, VirnetX sought to have the jury use the sales price of an iPhone when calculating infringement of its patents that covered two specific components of that product, without demonstrating that those components drove customer demand for the phones.

Tuesday, September 16, 2014

Apple escapes the Nash Bargaining Solution in VIRNETX case

from VIRNETX v. Cisco and Apple :

For the reasons that follow, we affirm the jury’s findings
that none of the asserted claims are invalid and that
many of the asserted claims of the ’135 and ’151 patents
are infringed by Apple’s VPN On Demand product. We
also affirm the district court’s exclusion of evidence relating
to the reexamination of the patents-in-suit. However,
we reverse the jury’s finding that the VPN On Demand
product infringes claim 1 of the ’151 patent under the
doctrine of equivalents. We also reverse the district
court’s construction of the claim term “secure communication
link” in the ’504 and ’211 patents and remand for
further proceedings to determine whether the FaceTime
feature infringes those patents under the correct claim
construction. Finally, we vacate the jury’s damages
award and remand for further proceedings consistent
with this opinion.

Of the Nash bargaining solution:

For the reasons that follow, we agree with the courts
that have rejected invocations of the Nash theorem without
sufficiently establishing that the premises of the
theorem actually apply to the facts of the case at hand.
The use here was just such an inappropriate “rule of


Indeed, Weinstein’s thin attempts to
explain his 10% deviation from the 50/50 baseline in this
case demonstrates how this methodology is subject to
abuse. His only testimony on the matter was that although
he “considered other splits,” he ultimately determined
that a 10% deviation—resulting in a 45/55 split—
was appropriate “to reflect the fact that Apple would have
additional bargaining power over VirnetX back in . . .
2009.” JA. 1708–09. Such conclusory assertions cannot
form the basis of a jury’s verdict. See Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 146 (1997) (noting that where an
expert considers relevant material but fails to provide an
opinion explaining how that material leads to his conclusion,
“[a] court may conclude that there is simply too
great an analytical gap between the data and the opinion


Although the result of
that equation would be mathematically sound if properly
applied by the jury, there is concern that the high royalty
base would cause the jury to deviate upward from the
proper outcome. Id. Thus, in Uniloc, we noted that “[t]he
disclosure that a company has made $19 billion dollars in
revenue from an infringing product cannot help but skew
the damages horizon for the jury, regardless of the contribution
of the patented component to this revenue.” Id.
Similarly, here, the use of a 50/50 starting point—itself
unjustified by evidence about the particular facts—
provides a baseline from which juries might hesitate to
stray, even if the evidence supported a radically different

WILLIAM F. LEE of Wilmer Cutler Pickering Hale and
Dorr, LLP, of Boston, Massachusetts, argued for defendant-
appellant Apple.

**Reuters covered the CAFC decision as follows:

A federal appeals court on Tuesday [Sept. 16, 2014] threw out a jury order requiring Apple Inc to pay VirnetX Holding Corp $368.2 million in damages for infringing four patents concerning technology for providing security over the Internet.

Shares of VirnetX plunged as much as 59.8 percent after the U.S. Federal Circuit Court of Appeals in Washington ordered a new trial, and said the damages award was based on defective jury instructions.

VirnetX derives most of its revenue from patent licensing.

**In other news relating to Apple, from Apple's $100 million U2 debacle :

That leaves two lessons for Apple. One is never, never, never to let those over 40 decide what music they think younger consumers are bound to think is cool. The other is that, with $100 million in expense and 2 million downloads, $50 an album for a digital release is probably a bit much. Especially when you don't get the collector's version special cover art? Ah, well, Apple will weather this as it has other challenges and continue to rattle and hum along.

Sunday, September 14, 2014

Sunday morning on September 14, 2014

Charles Osgood introduced the stories for September 14, 2014. First, Scotland breaking away. Second, an interview with Jessica Chastain. Third, art on pets. Fourth, Anthony Mason on Questlove. John Blackstone. Steve Hartman on a gridiron star.

Headlines. ISIS shows the beheading of British citizen David Haines. Court in North Korea sentenced Matthew Miller.
Wildfire south of Los Angeles. Adrian Peterson booked and released. Skies ablaze in Baltimore related to Star Spangled Banner. Weather. Monsoonal storms coming in southwest.

Mark Phillips on Scotland voting to break away.

Saturday, September 13, 2014

Washington Post reports US Patent Office initiating review of telework in response to Congressional inquiry

In a post by Lisa Rein titled -- U.S. Patent office: ‘We are committed to taking any measures necessary’ to address telework fraud --, one learns that the USPTO will be hiring an outside consulting firm to look into the handling of bonuses:

Commerce and patent office officials told congressional investigators Friday [Sept. 12, 2014] they have launched an internal review of the telework program and are seeking an outside consulting firm to advise them on how managers can improve their monitoring of more than 8,000 patent examiners, according to a congressional aide familiar with the briefing before staff of the House Oversight and Government Reform Committee.

Among the issues the outside consultant will be asked to address is whether, in their zeal to increase the productivity of examiners in recent years to shrink a backlog of applications, patent office leaders were too quick to give employees bonuses for work they didn’t complete.

As to the telework program, some changes have already been implemented:

[Todd] Elmer said the patent office has now implemented “new requirements” for all teleworkers and given managers new tools to identity potential abuse “and take appropriate actions.” His statement did not give details of the changes, but patent office officials told congressional staff on Friday that they now require examiners who work remotely to log into the agency’s internal computer network so their bosses can communicate with them.

There was a dispute about the charge of end-loading:

More than 70 percent of the 80 managers interviewed told the internal review team that a “significant” number of examiners did not work for long periods, then rushed to get their reviews done at the end of each quarter. The supervisors were concerned that the practice negatively affected the quality of the work.

But on Friday, the officials said many examiners are actually working in the early weeks of the quarter, doing research or speaking with inventors applying for patents. This legwork does not show up in the computer that measures whether they are getting their work done, they told congressional investigators.

Friday, September 12, 2014

Facebook prevails in Pragmatus case

The bottom line in Facebook v. Pragmatus:

Because the Board erred in construing “addressing
information of [the] device,” as recited in each independent
claim, we vacate and remand.

The appellant Facebook (represented by Cooley) prevailed as to the appeal of re-exam 95/001,715.

New York Times on self-plagiarism

On self-plagiarism, see Slavoj Žižek On 'Self Plagiarism' in The New York Times: What's the Big Deal?.

Of an essay piece published in the New York Times that Žižek had sent, the Times noted

After this essay was published, a reader pointed out that several sections had originally appeared, in identical or substantially similar form, in Slavoj Zizek's 2008 book, "Violence: Six Sideways Reflections." The New York Times does not ordinarily reprint material that has been previously published; Op-Ed contributors are asked to affirm that their work is original, and exclusive to The Times. Had The Times known that portions of the essay were copied from an earlier work, it would not have accepted the essay for publication.

See IPbiz post
Self-plagiarism and the "repurposing" of research

Prior to the Poshard plagiarism matter at SIU, there was the Wendler self-plagiarism matter [Walter Wendler copied material he created while at Texas A&M into a proposal while he was employed at SIU ]. SIU gave self-plagiarism a pass.

Now, iParadigms has put out a white paper, "The Ethics of Self-Plagiarism.

Thursday, September 11, 2014

Mixed bag in Interval Licensing

Nautilus is cited:

With this lone example, a skilled artisan is still left to wonder what other
forms of display are unobtrusive and non-distracting.
What if a displayed image takes up 20% of the screen
space occupied by the primary application with which the user is interacting? Is
the image unobtrusive? The specification offers no
indication, thus leaving the skilled artisan to consult the “unpredictable vagaries of any one person’s
opinion.” See Datamize , 417 F.3d at 1350.
Such ambiguity falls within
“the innovation - discouraging ‘zone of uncertainty’ against
which [the Supreme Court] has warned.” Nautilus , 134 S. Ct. at 2130 (internal citation omitted).


Scientific Plastics at the CAFC: what can happen when there are mistakes in the specification

SPP argues that the Board improperly relied on the
inventors’ description of the problem solved
in order to find the solution obvious, an analytic procedure that relies
on hindsight by using the inventors’ own reasoning
against them.

SPP points out that the statement in
the patents that threaded connections are not used with
plastic LPLC cartridges was actually
, as evidenced by the Yamada
reference, which shows a plastic LPLC
cartridge with threaded connections.
SPP argues that a person of ordinary skill
would not have perceived
any need to improve such cartridges, and that only
through improper hindsight
was the Board able to
justify its finding of a known leakage problem.

Judge Moore dissented:

I dissent from the majority because this record does not
contain substantial evidence that one of skill in the rele-
vant art would have modified the chromatography car-
tridge in Yamada by replacing its sealing configuration
with that of a soda pop bottle. (...)

One of skill in the art would not have modified Yamada to fix a
leakage problem that never existed in the first place.
You wouldn’t seek to “improve [a] sealing arrangement” that
doesn’t leak. (...)

It is troubling that the majority and the
Board rely on the inventors’ disclosure
of the problem their inventions
solve as the primary basis for modifying the prior art.
This is hindsight of the worst kind, “wherein that which
only the invention taught is used against its teacher.” (...)

The Board’s failure to make this determination
is especially pernicious where the analogous art question is far
from clear. Soda pop bottles and methods for using chro-
matography cartridges are
clearly not in the same field of endeavor.


Sunday, September 07, 2014

CBS Sunday Morning on September 7, 2014

Charles Osgood introduced the stories for September 7, 2014. The cover story, on One-room schools, is covered by Barry Peterson. Then, discussion of World War I, wherein 8.5 million soldiers died between 1914 and 1918. Third, Tracy Smith interviews Steve Buscemi, who once worked as a fireman. Fourth, a tribute to Joan Rivers. Also, stories by Terrell Brown, Steve Hartman, and Joel Sartori.

Headlines. Obama does an about-face on immigration reform. US airstrikes targeting ISIS. Two day truce in Ukraine problematic. Lava flow in Hawaii. Nishitori wins at US Open. Weather: sunny and pleasant in most of US. Remnants of Hurricane Norbert in California.

Barry Peterson reports on the "one room schoolhouse," starting with the "Divide School" in district 4 in Montana. There are 200 one-room schools in the US.

Almanac. Sept. 7, 1921. 8 girls competed for the title of "Miss America." InterCity Beauty Contest. Not allowed. Margaret Gorman of Washington, DC won the first contest. Golden Mermaid. 1954, contest on television. Bert Parks singing. In 1945, Bess Myerson. In 1984, Vanessa Williams. Now, 10,000 compete.

Terrell Brown interviews Madeleine Peyroux, who has been likened to Billie Holiday. A little bit of pain. Peyroux grew up in Georgia. Mother moved to Paris when Madeleine was 11.
Deirdre Westgate. Wikipedia notes: Peyroux started singing at the age of fifteen, when she discovered street musicians in the Latin Quarter in Paris. Peyroux initially declined an offered record deal.

Martha Teichen on "The Great War." On Sept 7, 1914, 600 taxis shuttled 6000 re-enforcements to the battlefield at Marne. Two million men fought. In absolute numbers, WWI defies previous numbers. The lesson from the war: want to avoid war. On June 28, 1914, Franz-Ferdinand shot by Serbian nationalist. On July 28, Austria Hungary declared war on Serbia.
Real Patriots Keep Cool. Song in US: I didn't raise my boy to be a soldier. Stanford prof: Daivd Kennedy. Wilson re-elected in 1916: he kept us out of war. April 6, 1917: US declares war. Propaganda war. Shift from saying this was not our war. Persuading people.
Demonizing the enemy. US had 90 million people; 30 million were foreign born.
Joyce Kilmer's story. The Peacemaker. "to meet the fires of hell." Miriam Kilmer is his grand-daughter. In 1916, the first tanks. More than 2 million American soldiers. Kilmer was shot by a sniper in July 1918. "In Flanders field, the poppies grow." 8.5 million soldiers died. Deep disillusionment after WWI.

Joel Sartori on the passenger pigeon. "Martha," the last passenger pigeon, now stuffed in the Smithsonian, died Sept. 1, 1914. Scientists are using dan to insert into the band-tailed pigeon. "De-extinction." Should we be doing this? Will people think extinction is not a problem, because it is reversible? Relict darter is on brink of extinction. Test-tube menagerie?
Second chances are very rare things.

Richard Schlesinger on the life, and death, of Joan Rivers. Quote from Al Roker,introducing Joan: she's 78 years young. Her response, here's Al Roker, all 320 pounds. Another line:
My g-spot has been declared a historical landmark. Cardiac arrest on August 28. A quiet end to a life lived at full volume. Towels: his and herpes. Donate her body to Tupperware.
Scared that when she died, God won't recognize her. Degree from Barnard. Her career: this is what I am supposed to do. Success in February 1965; she was 31. In 1966, on Sammy Davis show. Became a fixture on Tonight Show for 20 years. Carson was not her friend; never invited to Tonight Christmas party. Rivers launched show on Fox; Carson never spoke to her again. Edgar Rosenberg committed suicide after Rivers' show cancelled. She later sold handbags, etc. Desparate for something to do. I had to find something fast. Go through every door. Rivers was great in the funny business. Too busy to retire. Rivers spoke to Mo Rocca: actual death easier than dying on stage. Why can't you be like your cousin Sheila.

Steve Hartman at Minnesota State Fair. Making dough. Martha Olson's cookies. Back to 1979: cookie booth at state fair. This year, grossed 2.4 million dollars. Sweet Martha's Cookie Jar. Serve them hot and serve a lot. A bucket of cookies for $15. Take home pail. Remember to smile.

Tracy Smith on Steve Buscemi, of Boardwalk Empire. Armageddon. Reservoir Dogs. The Wedding Singer. Con Air. Fargo. Sympathetic creepy guys. There has to be something Buscemi likes.
Father wanted all sons to take civil service exam. He was looking at for his sons. Engine 55 in Manhattan. Moonlighted as actor. Movie "Parting Glances." Nobody leaves job as fireman.
In 1985, cast as drug dealer in Miami Vice. Sleazy, seedy character. Spy Kids 2. Made the most of how I look. If you only fixed your teeth. Lives in Brooklyn townhouse. Cyanotype picture. When the curtain comes down. Met his wife when he was a firefighter. Married in 1987. When 9/11 happened, Buscemi volunteered for work at ground zero. Something about being there was very comforting. Documentary "A good job" premieres tomorrow night. Inside look at what it means to be a firefighter in NYC. Wife: he's my guy, my connection to this world.

Nancy Giles on "Enter Talking" by Joan Rivers. Her parents told her she was absolutely without talent. Pepper January. Comedy flowed from Joan Wollensky, the schlep. Her life began in 1965, on Tonight Show. Carson: you're going to be a star. She never lied about her cosmetic surgery. Rivers regularly sent thank you notes to co-workers. If you can see it, you can be it. We stand on her shoulders, gratefully.

Pulse. How likely is another world war in your lifetime? very likely 30% somewhat likely 37%

Week ahead. Monday: Snoopy gets fashion makeover. Tuesday: Apple unveils new products. iWatch? Wednesday: Guinness World Records. Thursday: Oskar Pistoriua. Friday: Hollywood Bowl has Simpsons. Saturday: FarmAid in Raleigh.

Bruce Morton died on Friday. With CBS for 29 years.

Next week. Actress Jessica Chastain.

Moment of nature. Gray seals off Cape Cod.