Monday, January 14, 2019

TTAB decision in Guild Mortgage vacated

The outcome:

Guild Mortgage Co. (“Guild”) appeals a decision of the
Trademark Trial and Appeal Board affirming the examiner’s
refusal to register the mark “GUILD MORTGAGE
COMPANY” and design shown below based on a likelihood of confusion
with the registered mark “GUILD
failed to consider relevant evidence and argument
directed to DuPont factor 8, we vacate and remand.

The prior analysis

The examiner concluded there was a likelihood of
confusion based on her findings that the marks, nature of
the services, and trade channels were similar. The Board
affirmed those findings, concluding that, on balance, those
factors outweighed the Board’s finding that consumers
“may exercise a certain degree of care in investing money,
if not perhaps in seeking a mortgage loan.” J.A. 10–11.
Guild appeals.

DuPont factor 8:

(8) The length of time during and conditions under which
there has been concurrent use without
evidence of actual confusion


“In every case turning on likelihood of confusion, it is
the duty of the examiner, the board and this court to find,
upon consideration of all the evidence, whether or not
confusion appears likely.” DuPont, 476 F.2d at 1362
(emphasis in original). “In discharging this duty, the
thirteen DuPont factors ‘must be considered’ ‘when [they]
are of record.’” In re Dixie Rests., Inc., 105 F.3d 1405,
1406 (Fed. Cir. 1997) (quoting DuPont, 476 F.2d at 1361).
This is true even though “not all of the DuPont factors are
relevant or of similar weight in every case.” Id. at 1406;
see also Hewlett-Packard Co. v. Packard Press, Inc., 281
F.3d 1261, 1265 (Fed. Cir. 2002) (noting the likelihood of
confusion analysis “considers all DuPont factors for which
there is evidence of record” but may focus on dispositive
The Board erred by failing to address Guild’s argument and evidence
related to DuPont factor 8, which
examines the “length of time during and conditions under
which there has been concurrent use without evidence of
actual confusion.” DuPont, 476 F.2d at 1361.


In its decision, the Board stated that it “consider[ed]
the DuPont factors for which there were arguments and
evidence” and considered the others to be neutral. J.A. 3.
The Board’s opinion, however, provides no indication that
it considered DuPont factor 8, for which there was argument and evidence.
The Board’s opinion does not mention
factor 8, let alone address Guild’s argument and evidence
directed to that factor. The Board erred in failing to
consider Guild’s arguments and evidence. Cf. Juice
Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1340
(Fed. Cir. 2015) (vacating and remanding where the
Board did not properly assess all relevant evidence);


The Board erred
in its analysis by failing to consider this evidence and
argument as to factor 8. Because this evidence weighs in
favor of no likelihood of confusion, we do not deem the
Board’s error harmless. We make no assessment as to the
evidentiary weight that should be given to Guild’s CEO’s
declaration and simply hold that it was error to not consider it.
We leave it to the Board to reconsider its likelihood of confusion
determination in the first instance in
light of all the evidence.

Separately, blawgsearch ranking on January 14, 2019:


AND for the week of January 14, 2019:

Tuesday, January 08, 2019

CRISPR to bring us a spicy tomato?

In a paper in Trends in Plant Science:

Capsicum belongs to the Solanaceae family, and recent completion of its full genome sequence
shows that inactive genes for the biosynthetic pathway of capsaicinoids are also present in tomato.
We propose that the use of state-of-the-art genome engineering techniques to activate capsaicinoid
biosynthesis in tomato is a suitable option to exploit these valuable secondary compounds.

NCIS does chlorine and Fritz Haber on January 8, 2019

In an episode first airing on 8 Jan. 2019, titled “Toil and Trouble,” Agent Leroy Gibbs (Mark Harmon) and his team are getting some negative, threatening commentary from United States Secretary of Defense Wynn Crawford (Mitch Pileggi), which episode concludes ominously with Crawford asking a CIA contact for information on Leon Vance.

In between, there is a plot line on chemical warfare agents, specifically chlorine. Chlorine has been around for a long time, and was named by Sir Humphry Davy around 1810. Chlorine is used in the manufacture of many products.

NCIS mistakenly asserted that chlorine was discovered by Fritz Haber in 1915.

Coincidentally, this NCIS episode of January 8, 2019 is eleven years after an episode on Law & Order, which also mentioned Fritz Haber and chemical warfare. As posted on IPBiz in Patents and Fritz Haber in Law & Order on 9 Jan 08 , Haber won the Nobel Prize in chemistry in 1918, three years after the use of chlorine in World War I, and Haber's wife committed suicide because of his work in chemical warfare.

Returning to "Wynn Crawford," the plotline suggested that Crawford owned stock in the company featured in the story, which company apparently had unaccounted stock of chlorine, and which had been getting contracts to destroy chemical warfare agents.

Going to "60 Minutes" on January 7, 2019, one recalls the parade of former cabinet secretaries who were backing Xyleco.

Monday, January 07, 2019

Lesley Stahl "at it" again in sad piece on biotech, Marshall Medoff, Xyleco

Back in 2014, Lesley Stahl of "60 Minutes" did a negative piece on cleantech, of which Slate wrote in a rebuttal piece titled --Clean Tech Is Not Dead --:

If this would-be exposé felt familiar, that’s because it was all over the media two years ago. Why 60 Minutes decided to drag it back into our living rooms in January 2014 is a mystery. By now, the Solyndra horse is so dead that even Fox News is tired of flogging it.

But there’s a more important reason you haven’t heard much about the “clean-tech crash” in the past couple of years: It turned out to be, in many ways, a myth. Yes, a lot of the alternative-energy startups that Silicon Valley investors flocked to five years ago have run into serious trouble. A few were among those that got government support. In the 60 Minutes segment, Stahl named nine failed or struggling companies in all—lumping in those that received government loans with some that didn’t—then declared herself “exhausted.” I guess it’s a good thing, then, that she didn’t try to name all the ones that succeeded: There are a lot more than nine of those.


Over the course of the segment, 60 Minutes got so many things wrong about clean technology that I don’t have room to refute them all here, though plenty of others have made valiant efforts. The Department of Energy ripped the show, calling it “flat wrong on the facts.” And on Tuesday, Vinod Khosla himself—the venture capitalist whom Stahl’s segment held up as the face of the “clean-tech bust”—published a scathing open letter to the show, disputing more than half a dozen key facts and comparing it to the National Enquirer. That’s an unfair comparison, of course: The National Enquirer could never hope to mislead as many Americans as 60 Minutes did.

It’s understandable that Khosla led his letter by taking issue with specific points of fact. But in doing so, he risks unintentionally obscuring the far greater sin of 60 Minutes’ journalism. It didn’t just botch the numbers. It utterly botched the underlying story.


Flash forward five years, and observe that Lesley Stahl has done a spin reversal, lionizing Marshall Medoff of Xyleco on January 6, 2019:

You never know who's gonna be the one with the big idea. History has shown it's not necessarily the person with the most impressive credentials.

A breakthrough can come from the least expected, perhaps like an 81-year-old eccentric from Massachusetts who toiled in isolation with no financial support for more than a decade.

His focus? A challenge that has stumped scientists for many years – how to transform inedible plant life into environmentally friendly transportation fuels in a clean and cost-effective way.

As to what was known about this technology five years ago, see for example Bak's paper titled: Process evaluation of electron beam irradiation-based biodegradation relevant to lignocellulose bioconversion.


George Shultz appeared as a Xyleco advocate. One might remember the appearance of Shultz in a different "60 Minutes" story on "high tech." Specifically, in May 2018, one had The Theranos Deception. Palo Alto online noted:

Former Secretaries of State George Shultz and Henry Kissinger served on the Theranos board, as did former Secretary of State William Perry and James Mattis, prior to his current appointment as Secretary of Defense. Investors included the founders of Walmart, media mogul Rupert Murdoch and Secretary of Education Betsy deVos, according to the Wall Street Journal.

Yes, Perry appeared on "60 Minutes" in the Xyleco segment.

AND, of lionizing a non-mainstream "scientist," recall Lesley Stahl's piece on Kanzius, as discussed in the IPBiz post

Fool born every minute? Lesley Stahl's shameful piece on Kanzius.

One will not find Mr. Kanzius (who also described an invention to burn water) in the "60 Minutes" piece on other "innovators" (people whose creations are celebrated, even if their names are not)


Sunday, January 06, 2019

CBS Sunday Morning on January 6, 2019

Jane Pauley hosted, and the first story presented was the interview by Pauley with House Speaker Nancy Pelosi, who among other things, said that Trump wanted to abolish Congress.

Of note was the interview by Mark Phillips of actor Michael Caine, which among other things pushed the book Blow the Bloody Doors Off. There was a quote from Caine:

You don't retire from movies. Movies retire you.

This brought to mind the quote attributed to Braves pitcher Warren Spahn:

“I didn’t retire from baseball. Baseball retired me.”


The first headline mentioned was the arrest of Eric Black in Houston. The theme of gruesome continued in the Almanac feature, which recalled the attack on skater Nancy Kerrigan on January 6, 1994. News also covered ice sculptures in China.

In a piece by Serena Altschule, Sunday Morning pushed the movie "At Eternity's Gate," done by CBS films. Of the performance by Willem Dafoe:

At 63, Dafoe is 26 years older than Van Gogh at the time of his death, but for director Julian Schnabel, he was destined for the role.

Altschul asked, "In your mind, it was Willem Dafoe?"

"It was always gonna be Willem," Schnabel said. "He became something else. I don't think it's a performance. He was the incarnation of something."

Note also a previous CBS piece: How Willem Dafoe unlocked Vincent Van Gogh for "At Eternity's Gate" ("CBS This Morning," 11/16/18)

There was a piece on the current "longest" non-stop flight, now 19 hours from New York to Singapore, which covers 9500 miles and passes over the north pole.

The "pulse" feature found a slight preference for car travel over air travel 44% to 43%.

There was a piece on King Tut, which included an allusion to re-writing history:

Perlov showed correspondent John Blackstone a 10-foot quartzite statue of King Tut that was found at his mortuary temple. "What's interesting about this is that right after King Tut passed away, his successor, Ay, tried to destroy all remnants of his rule, including erasing King Tut's name from the belt of that statue and putting his own name.

"But they failed miserably, because few people have heard of King Ay, and the name of King Tut is essentially immortal."

And yet, he was not a particularly significant king of Egypt. "No, he was not," said Dr. Hawass. "Actually, if his tomb was not found, maybe we'll write three lines about him."

One notes the patent system, in encouraging people to write things down, discourages this sort of revisionism.

The nature feature presented sperm whales at Sao Miguel in the Azores. Pico Island is also a good spot to catch the whales.
One recalls a recent story on Sunday Morning about the USS Scorpion, which ended up on the ocean floor near the Azores.

Saturday, January 05, 2019

"Martial Law" depicts an evil patent attorney

In a 2000 episode of "Martial Law" titled "Dog Day Afternoon," one has a bad guy patent attorney and a bad guy patent backer/investor.

The story unfolds with the shooting death of a man, whose body was found by Sammo and friends, underneath a howling dog.

After uncovering a patent application buried in the ground (with the help of the dog), Sammo interviews the relevant patent attorney, who does not remember the patent application of victim/inventor Mason Talbot but does remember that Talbot was fired by Caltech because Talbot had the attention span of a tsetse fly, moving from one invention to another. In fact, the patent attorney remembered this invention very well.

In particular, in the case of this literally "buried" invention, Talbot had reduced the invention to practice, re-wiring the nerves of a dog "Homer," who went from not able to walk to fully functioning dog. The patent attorney, without contacting Talbot, went to investor Zelliger, but the inventor Talbot refused to deal, because he considered Zelliger evil. The patent attorney himself then cut a deal with Zelliger, arguing he could get any resultant patent invalidated.

As shown in the opening, the evil Zelliger himself shot and killed Talbot and later, with henchman, spent a large part of the episode trying to capture Homer, presumably to take the dog apart to understand the "working" embodiment of the invention.

The patent attorney finally confesses his evil actions, and Sammo and friends arrive just in time to save Homer. Homer goes after Zelliger in the resultant fight scene.

There is some interesting dialog from the patent attorney about inventors who do not grasp the business side of things. We have an extreme result here, wherein the investor both kills the inventor and tries to steal the idea. Sammo recognizes that the inventor had given up his life to save the dog (and the invention).

The "feel good" ending here has the NIH being given all the relevant information.

The patent attorney "Carrington" is played by David Wells.


[There seems to be no relation to the 1975 movie of the same name.]

Saturday, December 29, 2018

Rolling the dice at the CAFC

A claim involved in the case:


A method of playing a dice game comprising:

providing a set of dice, the set of dice comprising a
first die, a second die, and a third die, wherein on-
ly a single face of the first die has a first die
ing, wherein only two faces of the second die have
an identical second die marking, and wherein only
three faces of the third die have an identical third
die marking;

placing at least one wager on at least one of the
following: that the first die marking on the first
die will appear face up, that the second
die mark-
ing on the second die will appear face up, that the
third die marking on the third die will appear face
up, or any combination thereof;
rolling the set of dice; and

paying a payout amount if the at least one wager

Organizing human activity?

In its brief, Appellant that the Patent Offi
ce uses a certain label —methods of organizing human activities—
as a “catch-all abstract idea” and expresses concern
that the Board has used the phrase improperly as an
“apparent shortcut.”

We agree that this phrase can be confusing
and potentially misused, since, after all, a
defined set of steps for combining particular
ingredients to create a drug formulation could be
categorized as a method of organizing human activity.

Judge Mayer, concurring:

I agree that the claims at issue here are patent in
eligible, but write separately to make two points. First,
subject matter eligibility under 35 U.S.C. § 101 is a pure
question of law, one that can, and should, be resolved at
the earliest stages of litigation. Second, claims directed to
dice, card, and board games can never meet the section
101 threshold because they endeavor to influence human
behavior rather than effect technological change.

Saturday, December 22, 2018

Trump reprising the fictionalized Aiken?

Within Slate one finds:

Trump seems to have taken a page from the late Sen. George Aiken,
who was widely (but somewhat misleadingly) quoted as saying in 1966,
as the Vietnam War was heating up, that we should
“declare victory and go home,” when in fact we hadn’t won at all.

As implied by the Slate text in parentheses, Aiken never said those words.

The interesting thing is the lack of discussion of the actual text of Aiken
giving rise to the pithy, quotable text falsely attributed to Aiken.