Wednesday, August 27, 2014

Hot peppers deterring insects and but encouraging anti-patent crowd-funding?

In an article in "Intellectual Property Today" in June 2003 titled "Good Night Gracie," LBE noted

On May 12, [2003] the New York Times discussed U.S. 6,523,298, n16 which claims the use of hot pepper extract (capsicum) in water solution to kill ants and termites. Jim Johnson of Seedman of Gautier, Mississippi has been selling powder from capsicum annum for dilution in water to kill insects for about ten years. n17

Endnote 16: Figure 1 of the '298 patent has an error in chemical formula similar to the methylene tribromide error of the Schon/Lucent patent applications. The principal active ingredient of hot peppers is capsaicin (trans-8-methyl-N-vanillyl-noneamidc, C18H27NO3, CAS 404-86-4), which is practically insoluble in cold water. With a side chain comprising 10 carbons, capsaicin is soluble in organics, and a "hot pepper wax" is commercially marketed for use on insects (e.g., Bonide Products; Jerry Baker; separately NIT/NouGuard). Also, capsaicin is a topic of current interest in the medical literature: E. Prescott, Science, 2003, 300, 1284; "Spicing Up Medicine," Science, 2003, 299, 1289; H. Rashid, et al., J. Pharmacology Exp. Therapeutics, 2003, 304, 940

Endnote 17: On his website, Jim teaches using 4 tablespoons of pepper powder, 1 tablespoon of dishwashing detergent with one gallon of water, steeping overnight, straining and spraying on insects. The Pacific Northwest District of the American Rose Society also notes that hot pepper sprays are insecticides and there has been experimental research on extract of capsicum frutescens as a natural insecticide in Natal, Botswana and Zambia and traditional uses in Zimbabwe, Kenya, and Uganda. Separately, there is a report that Grady Glen, of Texas A&M, used Habaneros on wood to deter termites.

IPKat has a post in August 2014: "Cultivated capsicums!" Peppers resist insect, breeders resist patent

which includes the text

This Kat has received information concerning the publication in a national Dutch newspaper of a double page item calling for crowd-funding of opposition proceedings against a European patent. The patent in question, granted last year to Syngenta, relates to EP2140023 relating to insect-repellent pepper plants.

Separately, Endnote 11 of "Good Night Gracie" includes the text:

John P. Walsh and Wei Hong, "Secrecy is increasing in step with competition," Nature, 2003, 422, 801-802. In a cross-section of biologists, mathematicians, and physicists, the authors noted that willingness to talk about research had gone from 50% in 1966 to 26% in 1998. One notes that the Rosalind Franklin/DNA episode had already occurred by 1966. The authors suggested that focus on commercialization [of academic work] as the cause of secrecy is misplaced. While I would agree that informal industry/academic collaborations actually foster greater openness, I would suggest that industrially-sponsored academic programs do enhance secrecy, although the data indicate separately that there is already a high baseline of secrecy created by intra-academic competition. See L. B. Ebert, Implicitly Zurko, Intellectual Property Today, p. 22, July 1999. As one footnote, note that the pivotal "research exemption" case of Madey v. Duke University, 307 F.3d 1351 (CAFC 2002), arose from intra-academic competition and disagreement, although the legal decision may impact industrial/academic interaction. See also, Rebecca Eisenberg, "Patent Swords and Shields," Science, 2003, 299, 1018 ["As universities have become increasingly aggressive as patent owners, they have compromised their claim to disinterested stewardship of knowledge in the public interest."] and John P. Walsh, Wesley M. Cohen and A. Arora, "Working through the Patent Problem," Science, 2003, 299, 1021. Separately, note that Genentech sued Columbia University in April 2003. See Paul Elias, AP, Suit Against Columbia University Highlights Issues of University Patents, April 28, 2003. Separately, note the issues with the Ponikau/Mayo patents such as US 6,207,703 as discussed in Peter Landau, Critics Turn Up Noses at Mayo's patent for inflamed sinus cure, Wall St. Journal, May 1, 2003.

Recall an argument made more than 50 years earlier, as discussed by IPBiz:

In that 1945 period, physicist Philip Morrison noted that the desire to patent results would spread from industrial labs to the universities and destroy the traditional free cooperation of science, an argument re-cycled into the 21st century.

Citing "Good Night Gracie" is

Nitrogen-starvation of algae to produce more lipids

A post in Inhabitat titled 14-Year-Old's Biofuel Breakthrough Boosts Algae Production 500% includes the text

“The purpose of this experiment is to explore the possibility of naturally depleting the nitrogen of algae’s media to boost its lipid yields,” said Gregory. “This is an improvement of the normal methods that involve harvesting the algae and physically transferring it into a nitrogen depleted environment. With my technique it should be possible to bypass the transferring step and grow the culture in a single media. This reduces the labor and material costs of growing algae for its lipid.”

Natural nitrogen depletion is a process where nitrogen is depleted naturally through the algae’s consumption. This method allows the algae to stay in one media while consuming the nitrogen, eventually depleting it. This process is an improvement over normal methods because it improves lipid content – and thus the amount of biofuel that can be produced. These higher lipid yields are expected because nitrogen depletion has already been proven to increase the lipid in algae – and this is an improved way of doing it.

As noted in the text, the idea that depletion of nitrogen nutrients causes an increase in lipid content is known.

For example, from K.K. Sharma, High Lipid Induction in Microalgae for Biodiesel Production, Energies 2012, 5, 1532-1553; :

Nitrogen is the single most critical nutrient affecting lipid metabolism in algae. A general trend
towards accumulation of lipids, particularly TAG, in response to nitrogen deficiency has been
observed in numerous species or strains of various microalgae [24–26]. Hu et al. [27] conducted a
study on nitrogen stress responses of several green microalgae, diatoms and cyanobacteria and all
tested species showed a significant rise in lipid production. A detailed and large-scale model of lipid induction by nutrient starvation (nitrogen, phosphorus) on several diatoms, green algae, red algae, prymnesiophytes and eustimatophytes is presented in a study carried out by Rodolfi et al. [28].

A problem is that nitrogen starvation can lead to the production of less biomass; from published US patent application 20120322157 (to Sapphire):

[0006] Much research has been conducted over the last few decades regarding using microalgae as an alternative and renewable source of lipid-rich biomass feedstock for bio fuels. Microalgae are an attractive model in that they are capable of producing substantial amounts of lipids such as TAGs and DAGs under stress conditions, such as nitrogen starvation. However, a decrease in growth of the microalgae under nitrogen starvation makes it harder to use microalgae in the large scale production of biofuels.

Bryan Willson noted in US 20080160591 :

In other cases, the algae may be subjected to environmental stress conditions designed to enhance lipid production, such as nitrogen starvation or other nutrient deficient conditions. The amount of nitrogen in depleted media may vary from 0 to 75% of the normal amount, depending on the medium used and the type of algae to be stressed.

As to amounts, from US 20140162330 :

[0003] Under optimal growth conditions, diatoms and other microalgae synthesize fatty acids primarily for esterification into glycerol-based membrane lipids, which constitute about 5-20% of their dry cell weight. However, under unfavorable environmental conditions, such as during nitrogen deprivation, many algae shift their lipid profile towards the formation and accumulation of neutral lipids, principally in the form of triacylglycerol. Under such unfavorable growth conditions, the total lipid composition of certain microalgae can increase to above 50% of the algae's dry cell weight.

One issue is that the desired target is increasing total lipid produced (say per unit time and/or per surface area), not simply increasing lipid per biomass. Another issue is that the organic phase from the biomass (obtained for example through hydrothermal liquefaction) still contains nitrogen, which is undesirable for biofuels.

The intersection of anti-SLAPP and patent re-examination requests

Note the discussion of the Landmark Technologies/eBay matter at Techdirt in the post
Patent Troll Sues eBay For Daring To Ask Patent Office For Patent Re-Exam

Here, eBay is using a Texas anti-SLAPP statute to shield it from litigation from Landmark arising from eBay's re-examination request.

Note that IPBiz had covered an anti-SLAPP matter in Judge to hear anti-SLAPP arguments in Cha/Flamm matter on Nov. 20

CAFC in Ferring v. Watson: " but silence does not answer the question of infringement "

There was good news and bad news for Ferring in the case involving Watson concerning Lysteda® .
The good news: the claims were not obvious. The bad news: Watson did not infringe.

The determination of non-obviousness was direct.

In this case, the cited prior art references neither set
forth the limitations
required by the asserted claims, nor
provided any reason or motivation to combine those
teachings to derive the claimed formulations
with specific dissolution profiles. Accordingly, the asserted claims
have not been shown to be invalid under §103.

As to infringement, the filing of an ANDA alone does not mean that
a produced product infringes.

The [ANDA] filing only constituted a technical act of infringement for juri
sdictional purposes. J.A. 2192–93, 2248–56, 2316.
As we have explained, once jurisdiction is established,
the ultimate infringement inquiry provoked by such filing is
focused on a comparison of the asserted patent claims
against the product that is likely to be sold following
ANDA approval and determined by traditional patent law
principles. Warner - Lambert Co. v. Apotex Corp., 316 F.3d
1348, 1365 (Fed. Cir. 2003); Abbott Labs. v. TorPharm, Inc.
, 300 F.3d 1367, 1373 (Fed. Cir. 2002); Bristol - Myers
Squibb Co. v. Royce Labs., Inc. , 69 F.3d 1130, 1135 (Fed.
Cir. 1995)

Ferring relied on experimental outliers for infringement.

We accordingly do not agree
with Ferring or the district court
that reliance on such anomalies proves infringement by a
preponderance of the evidence in this case.

Link to case:

As to dependent claims:

Becton Dickinson & Co. v. C.R. Bard, Inc.
, 922 F.2d 792, 798 (Fed. Cir. 1990);
Wahpeton Canvas Co. v. Frontier, Inc., 870
F.2d 1546, 1552 n.9 (Fed. Cir. 1989) (“One who does not infringe an
independent claim cannot infringe a claim dependent (and
thus containing all the limitations of) that claim.”).

Planet Bingo is Alice'd by CAFC

Planet Bingo lost under 35 USC 101 both before and after Alice v. CLS, 134 S. Ct. 2347.
See Planet Bingo v. VKGS

In the case, no difference was found between method and system claims.

As a preliminary matter, we agree with the district
court that there is no meaningful distinction between the
method and system claims or between the independent
and dependent claims. See Planet Bingo, 961 F. Supp. 2d
at 854, 857.

As to "abstract ideas,"

Abstract ideas may still be patent-eligible if
they contain an “‘inventive concept’ sufficient to ‘
transform’ the claimed abstract idea into a patent-
eligible application .” Alice , 134 S. Ct. at 2357 (quoting
Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S.
Ct. 1289,1294,1298 (2012)).

Monday, August 25, 2014

Scientific American discusses the lithium batteries of Sakti3,

Within a post titled Secretive Company Claims Battery Breakthrough , one finds text about trade secrets:

Avestor used a polymer separator to replace the electrolyte in its batteries. We don’t know what Sakti3 is using—that’s a trade secret. The composition of the positive electrode also remains a secret; Sastry says it is nothing unusual—“a very well understood electrochemistry.” We do know that, like most of the promising post-lithium-ion battery chemistries identified so far, the Sakti3 battery has a metallic-lithium anode, or negative electrode.

But in the comments section, one has

Looks like they have substantial investment in patent protection. They seem to have plenty of resources. It would be interesting to know what level of vacuum is needed. Manufacturing under vacuum would reduce contamination. Since they are not resource limited, designing to manufacture in a vacuum chamber shouldn't be a deal breaker. Sounds like they might pull it off.

In fact, there are 24 published US applications including the word --Sakti3 --.

In US 20120058380 , there is discussion of an electrolyte material:

[0015] In a specific embodiment, the solid-state glassy electrolyte of this electrochemical cell device comprises amorphous lithiated oxynitride phosphorus with ionic conductivity ranging from 10.sup.-5 to 10.sup.-4 S/m. The ionic conductivity of glassy electrolyte can be tuned by the nitrogen concentration and evaporation process conditions. This glassy electrolyte material can be configured as an electrolyte overlying the cathode electrode material. This glassy electrolyte material is capable of shuttling lithium ions during a charge process and a discharge process, and is characterized with layer thickness between about 0.1 and about 1 micrometers.

US 20140072837 mentions ceramic separators:

[0031] The results of the invention are a solid state battery that has energy density above 300 Wh/L. Although this has been achieved using some battery systems that are designed with liquid or gel electrolytes, no solid state batteries with ceramic electrolytes have come close to achieving this level of energy density. Furthermore, the ceramic electrolytes and the design that is employed by Sakti3 eliminates the occurrence of lithium dendrites and other undesirable side reactions that occurs between the liquid or gel electrolyte and the battery materials in conventional wound lithium-ion batteries. Additionally, the solid ceramic electrolyte that is utilized in this invention also eliminates the occurrence of internal short circuits that are a major failure mechanism in lithium-ion battery cells that utilize a polymer separator.

[0054] The potential benefits of solid state batteries with ceramic separators have been discussed for over a decade, but to date few have truly commercialized this product. One challenge that plagued the commercialization of this product is the development of product design parameters with high levels of performance. Another challenge that has not been previously overcome is the development of a roll-to-roll production process that is required to make larger format-sized (greater than 1/ amp-hour) solid state batteries and winding them and packaging them in a format that can power products that require greater than a micro-amp of electrical current.

New York Times editorial encourages Congressman Issa to look into USPTO

In a piece by its editorial board titled Questions for the Patent Office , the New York Times concludes:

It’s important that Mr. Issa take a hard look at how the office is being managed.

Sunday, August 24, 2014

"Sunday Morning" on August 24, 2014: "by design" show

The opening is in Santa Fe, with a special edition from Charles Osgoode. Anthony Mason does the cover story. Living Large. Second, mobile homes. Third, Rita Braver interviews Venus Williams. Fourth, Serena Alschul on the mysteries of duck tape. Fifth, John Blackstone. Lee Cowan. Tracy Smith.
Don Daylor in the newsroom for headlines. 6.0 earthquake near American Canyon, near Napa, CA. Obama orders a review of programs on used military gear to police. On Staten Island, march about Eric Garner.
Israel pounds Gaza. Joshua Houston helps Chicago beat Las Vegas. Weather: hot and humid in west.

Luminous landscape in northern New Mexico. La Luz. In 1610, Santa Fe established. Oldest state capitol city in US. The Kline residence. Anthony Mason and Mark Strassman. Woolworth Skyscraper in NYC. to be made into 34 condos. Alchemy Properties. Tierre des Fon. Ultra luxury market is booming. Robert A. M. Stern. New York's Perry Street. Richard Meyeer architect. The Surf Club in Miami BEach. Price is $35 million. Number of billionaires is increasing. Competition for better units is fierce. Copper domed cupola of Woolworth will be five story penthouse.

Atocha Mobile Home Park owned by Eduardo Ramirez in Santa Fe. Trailer trash, but hardworking.
There are 8.5 million mobile homes in US. 97% of mobile homes never move again. Mike Bustamente is mobile home guy in Santa Fe. Jennifer Siegel innovator in mobile design. The future of what the trailer can become. Paradise Mobile Home in Malibu, CA. 7 figure prices. Homeowners rent land which can be $3000 per month. Sense of community in Paradise Cove. Marty King is a contractor.

Georgia O'Keefe art museum.

Lee Cowan on Ra Paulette. Man-made caves of art. Wilderness shrines. Tree of human kindness. Film: Cave Digger. Realtor: Tom Abrams, selling caves. "Magnum Opus" . linke:

Santa Fe's historic plaze; Osgood's tie made of duck tape. Serena Alschul. Prom clothers from 42 rolles of cuk tape. How to paint a pictue with duct tape. Duck brand duct tape from Avon, Ohio. Scott Summers. Move duct tape from hardware stores craft shops. Permicell Division of J&J: tape for coverning ammunition. Housing boom of 1950's: duct tape.

Maria Benitez and Joaquin Gallegos. Santa Fe Opera.

John Blackstone. Coaxing music from unlikely instruments. Emeryville. Johnnyrandom. Dorito crunch sound.

Martin DuBois, architect. Richard Schlesinger. Thatcher Wine on bookcover design. Custom design libraries. Juniper Books in Boulder, Colorado. Bespoke Libraries. Custom library for $750 per foot.
Used law books for "picture window" design. Don't want people to use them. Cool and practical.

Mo Rocca. There are no words. On Emoticons. Sept. 1982. Scott Fahlman at Carnegie Mellon. 19Sept1982. Imogees. Matt Weinberg; Vector Media Group in NYC. Custom Emoticons. A personal emoticon.

Tracy Smith on transportation. Nashville as source of skateboards. Salemtown board company.
Will Anderson makes skateboards. I am selling July in every month. $200 per board. Jacob Henley started company to teach discipline and dedication. It's a lot harder to teach. Not about shaping boards, but about shaping lives. Pride in good work. When you have a job you really like, it don't seem like a job. AND

Klein House in Santa Fe. Seth Doane goes to Bali. Houses of bamboo. Laura Hardy. Jewelry designer John Hardy. The Green School: think about impact on environment. Inspiring magical place. Ibuku brand. Peter Barge. Sharma Springs.

Rita Braver on Venus Williams. Jupiter, Florida studio.

Jeannie and Michael Klein. Allan Pizzi in Italy. Castille d'Brolio in Tuscany. In sight of Siena. Corned gunpowder. Dining room: family shows wealth and power. The "Iron Baron." Design of Chianti. 3 million bottles of Chianti per year. Colledila. From passiionatefoodie: stablished in 1141, it may be the oldest winery in Italy, the second oldest in the world. In 1141, the family of Barone Ricasoli was granted the Brolio Castle and it became a powerful stronghold for Florence, later helping defend the land against Siena

Mo Rocca on "treadmill desks." Joanna Coles: sitting is the new smoking. By the 1800s chairs were everywhere. Joanna does 2 miles per hour. Steelcase is largest maker of office furniture. LifeSpan.
Never go on it when you are drunk.

Next week: Christopher Cross.

Moment of nature. spiriva. Red rocks near Abiquiú, New Mexico. This is location where the opening shot of the Kingdom of the Crystal Skull was shot, as well as parts of "Red Dawn" (which nominally was supposed to be in Colorado).

Saturday, August 23, 2014

Mformation Techs., Inc. v. Research in Motion Ltd.; RIM wins

Research-in-Motion wins in Mformation Techs., Inc. v. Research in Motion Ltd. :

This appeal concerns Mformation’s challenges to the
district court’s grant of JMOL of no infringement

Because the district court correctly found that there was
no legally sufficient evidentiary basis on which a reasona-
ble jury could have found that BlackBerry infringes the
asserted claims of the ’917 patent, we affirm.

The expert gets bashed

Mformation’s expert based his infringement opinion on his
understanding that the claims do not require a connection
to be established between the server and the wireless
device before transmission.

Based on his mistaken view, Mformation’s expert testified that (...)

Order of steps within a method claim arises

We now turn to the issue of whether claim 1 of
the ’917 patent requires that a connection be completely
established before transmission.
As a general rule, “[u]nless the steps of a method [claim] actually recite an
order, the steps are not ordinarily construed to require one.”
Interactive Gift Express , Inc. v. Compuserve Inc.,
256 F.3d 1323, 1342 (Fed. Cir. 2001)(citation omitted).
However, a claim “requires an ordering of steps when the
claim language, as a matter of logic or grammar, requires
that the steps be performed in the order written, or the
specification directly or implicitly requires” an order of
steps. TALtech Ltd. v. Esquel Apparel, Inc., 279 F. App’x974, 978 (Fed. Cir. 2008);
see also Function Media, LLC v. Google, Inc., 708 F.3d 1310, 1320 (Fed. Cir. 2013)

Thursday, August 21, 2014

CAFC explores double-patenting in Abbvie v. Kennedy Institute; Kennedy loses.

In Abbvie v. Kennedy Institute;, Judge Dyk gives an expansive review of double-patenting.

We now make explicit what was implicit in Gilead:

the doctrine of obviousness-type double patenting contin-
ues to apply where two patents that claim the same invention
have different expiration dates.
We hold that Kennedy is not entitled to an extra six
years of monopoly solely because it filed a
separate application unless the
two inventions are patentably distinct.

The concept of a dominating patent arose:

To be sure, obviousness is not demonstrated merely
by showing that an earlier expiring patent dominates
a later expiring patent. Nor do we think that the district
court here relied on any such principle.
It is well -settled that a narrow species can be non-
obvious and patent eligible despite a patent on
its genus. See Eli Lilly & Co.
v. Bd. of Regents of Univ. of Wash.
, 334 F.3d 1264, 12 70 (Fed. Cir. 2003) ;
In re Kaplan, 789 F.2d 1574, 1577 78
(Fed. Cir. 1986); In re Sarett
, 327 F.2d 1005, 1014 (CCPA 1964); 3A
Donald S. Chisum, Chisum on Patents § 9.0 3

But not every species of a patented genus is separate-
ly patentable.

First, when a “genus is so limited that a person of
ordinary skill in the art can ‘at once envisage each member of this limit
ed class,’ . . .a reference describ-
ing the genus anticipates every species within the genus.”
In re Gleave, 560 F.3d 1331, 1337-38 (Fed. Cir. 2009)
(quoting Eli Lilly & Co. v. Zenith Goldline Pharms
., Inc.,471 F.3d 1369, 1376 (Fed. Cir. 2006),and citing
Perricone v. Medicis Pharm. Corp.
, 432 F.3d 1368, 1377 (Fed. Cir. 2005));
see also Bristol-Myers Squibb Co. v. Ben Venue
Labs., Inc., 246 F.3d 1368, 1380 (Fed. Cir. 2001)

Bottom line: Kennedy loses.

we conclude that the ’442 patent is invalid for
obviousness-type double patenting in light of the ’766

Wednesday, August 20, 2014

What is a reasonable interpretation of the teachings of the prior art?

PatentDocs, in discussing the recent Apotex case on inequitable conduct, wrote

The opinion did draw an important distinction:

To be clear, we agree with Apotex that Dr. Sherman had no duty to disclose his own suspicions or beliefs regarding the prior art. There is nothing wrong with advocating, in good faith, a reasonable interpretation of the teachings of the prior art. The misconduct at issue, however, goes beyond failing to disclose a personal belief or alternative interpretations of the prior art; here, Dr. Sherman affirmatively and knowingly misrepresented material facts regarding the prior art.

As to intent, the Federal Circuit states that "[Dr. Sherman] knew enough to recognize that he was crossing the line from legitimate advocacy to genuine misrepresentation of material facts."

Finally, the Federal Circuit did not reach the "egregious misconduct" determination because the evidence of materiality and intent were sufficient and thus the District Court's inequitable conduct determination was not an abuse of discretion.

As to the point about "advocating," IPBiz notes the CAFC cited Rothman v. Target Corp.
, 556 F.3d 1310, 1328–29 (Fed. Cir. 2009). That case was an appeal from the United States District Court for the District of New Jersey, Garrett E. Brown, Jr., with the decison written by CJ Rader. Note the outcome: Because the district court erred in upholding the jury's inequitable conduct finding, this court affirms-in-part and reverses-in-part. The relevant text is:

The boundaries on a patent attorney's conduct are not so narrow, however. While the law prohibits genuine misrepresentations of material fact, a prosecuting attorney is free to present argument in favor of patentability without fear of committing (p. 1329) inequitable conduct. See Young v. Lumenis, Inc., 492 F.3d 1336, 1348 (Fed. Cir. 2007) ("We therefore fail to see how the statements . . . which consist of attorney argument and an interpretation of what the prior art discloses, constitute affirmative misrepresentations of material fact."). This court has little basis to find deceptive intent in the routine back and forth between examiner and applicant. Moreover, this court recognizes that the Patent Act gives the examiner the discretion to reject or accept an applicant's arguments based on the examiner's own conclusions regarding the prosecution record.
In any event, this type of conclusory analysis betrays no intent to deceive the PTO and obtain a patent with objectively false information. Rather, it is an attempt to characterize the prior art in a manner favorable to the attorney's client — far from deception. No reasonable jury could rely on Mr. Jacobson's statements as clear and convincing proof of inequitable conduct.

See also IPBiz post
CAFC affirms inequitable conduct against Apotex in Moexipril case

and earlier post
CAFC: "Apotex’s conduct in this case is particularly egregious"

Forbes criticizing Forbes on patents; one poseur dumping on another poseur?

A definition of a poseur is a person who pretends to be what he or she is not. Writers at Forbes pretend to be knowledgeable about patents. Criticizing an earlier Forbes piece [covered in IPBiz as Forbes dipping into yellow journalism on patent reform? ], Tim Worstall Tim Worstall in Forbes notes:

OK, I’ve no doubt that the problem itself occurs. But I’d hesitate hugely before accepting the actual numbers on offer. Because the paper doesn’t make a crucial sitinction: that between a Non-Practicing Entity and a patent troll. The second is a subset of the first but we cannot term all of the first as being the second. But that, sadly, is what the paper itself does: (...)

Worstall has a revelation in 2014 that universities might be deemed NPEs, even though they should not be labelled trolls:

Patent trolls exist, yes, patent trolls are largely non-proactising entities, yes, but it does not therefore follow that all NPEs are patent trolls. Let me take a hypothetical example. We have a university (we might call it “Harvard” for example) where professors and students create a new drug with interesting properties. They patent it. This is actually the sort of thing that happens quite a lot actually, small research organisations (whether universities or not) find something of interest. They’ve absolutely no intention whatsoever of trying to take that drug to market though.

Gene Quinn wrote in 2010: I hate the term patent troll because it has over time become synonymous with “non-practicing entity.” Not all non-practicing entities are bad though. For example, universities are non-practicing entities but the research they do is fundamentally important to our economy.

Note also the 2008 post on IPBiz:

And see the IPBiz post
Patent law academics make troll studies a growth industry

Worstall's punch line:

Harvard, or the little corporation Harvard sets up, are clearly an NPE here. But they’re in no manner a patent troll if they do end up suing someone for breaching their patent. And that’s where I spot the error in this paper.

Perhaps Worstall needs to review the Ariad/Lilly and Rochester/Searle cases to see the error in Worstall's thinking.

And then Universities licensing to patent trolls?

And recall: "It is as reasonable to represent one kind of imprisonment by another, as it is to represent anything that really exists by that which exists not." –Daniel Defoe

Zakaria plagiarism issue revived?

Renewed charges of plagiarism against Zakaria made by Our Bad Media include lifting full paragraphs and copying a single sentence and copying facts and figures produced by the research of others.

In a post Columnist Fareed Zakaria faces new accusations of plagiarism , the Washington Post discusses new charges against Zakaria and includes the text

The Post’s editorial page editor, Fred Hiatt, said the Post column alleged by Our Bad Media to contain plagiarism or failure to use attribution did not constitute any journalistic offense.

But Newbusters points to a different example of Zakaria plagiarism:

The Washington Free Beacon liked this one (#1):

Of the 500 big companies in the well-known Standard & Poor’s stock index, 115 paid a total corporate tax rate — both federal and otherwise — of less than 20 percent over the last five years, according to an analysis of company reports done for The New York Times by Capital IQ, a research firm. Thirty-nine of those companies paid a rate less than 10 percent. – David Leonhardt, New York Times, February 1, 2011.

Cain's second 9 is a 9% rate for corporate taxes, except that it's not really a corporate tax but a business-transaction tax. Still, the basic idea has value. The U.S. today has the second highest corporate tax rate in the industrialized world. And yet, of the 500 big companies in the Standard & Poor's stock index, 115 paid a total corporate tax rate--both federal and otherwise--of less than 20% over the past five years. Thirty-nine of those companies paid a rate of less than 10%. – Fareed Zakaria, “Complexity Equals Corruption," October 31, 2011 Time.

Read more:

Breitbart. Fareed Zakaria Faces New Plagiarism Accusations

Huffington Post Fareed Zakaria Accused Of Plagiarism... Again (UPDATE) Hiatt is quoted:
There's no lifting of language, and I'm sure I could find the same data in a dozen other reports. I honestly think it is reckless even to suggest this is plagiarism.

Tuesday, August 19, 2014

CAFC affirms inequitable conduct against Apotex in Moexipril case

The CAFC affirmed the district court (SD Fl) holding of inequitable conduct
against Apotex as to the prosecution of US '556 in
Apotex v. UCB
. Judge Reyna authored the precedential opinion,
which is a useful guide for understanding "inequitable conduct" post-Therasense.

The drug at issue is Moexipril, an ACE inhibitor, and is available
from Schwarz Pharma under the trade name Univasc.

During prosecution before the U.S. Patent and
Trademark Office (“PTO”)the ’556 patent
received three obviousness rejections.

First, the Examiner rejected the claims
based on the combination of the ’450 patent and
U.S. Patent No. 4,344,949, which discloses using
moexipril tablets to treat hypertension

The problem for Apotex and Dr. Sherman began at the point where
they argued "combination was not reaction" in the case of Univasc®:

In response, Dr. Sherman’s counsel argued that
the cited prior art did not disclose a reaction,
but disclosed only combining moexipril
hydrochloride and an alkaline magnesium compound

Thus, Apotex argued Univasc includes magnesium oxide “unreacted but com-

In all, the Examiner made three rejections, and Apotex appealed to the Board.
Apotex also submitted the expert declaration of Dr. Michael Lipp who asserted the
magnesium compound was a stabilizer, which by the meaning of a stabilizer, was

In view of this, an agreement was reached with claim 1 including
a limitation requiring “greater than 80%” conver-
sion of the moexipril or moexipril acid addition salt to
moexipril magnesium.

The CAFC appeal related to a lawsuit filed by Apotex against UCB on April 20, 2012.

The district court had found inequitable conduct on the part of Apotex.
Among other things:

Lastly , the district court found that Dr.
Sherman lied in the ’556 patent
application by including certain examples
of experiments that were never conduct-
ed. The court noted that each example is written in the
past tense as if it had occurred, but
Dr. Sherman admit-
ted at trial that the experiments
were made up in his head

Also, a relevant PCT application of Apotex was not disclosed during
the prosecution of the '556 case.

the district court found that Dr. Sherman would
have known about the ’560 PCT and understood
its rele-
vance to the prosecution of the ‘556 patent.
The ’560 PCT , however, was never disclosed to the Examiner handling
the prosecution of the ’556 patent.

The district court found Dr. Sherman's action met the "but-for" standard
of Therasense, but further noted:

In the alternative, the district court found that a find-
ing of but-for materiality was not necessary because Dr.
Sherman engaged in egregious misconduct during prose-
cution of the ’556 patent application

The CAFC affirmed the but-for determination, but did not explicitly reach the
consequences of the past-tense use or of not citing the PCT.

District court decision: Apotex, Inc. v. UCB, Inc. ,
970 F. Supp. 2d 1297 (S.D. Fla. 2013)

As to ACE inhibitors, increased levels of bradykinin stimulate in the
production of prostaglandin E2 (PGE2) [13] and nitric oxide (NO).

Lauren Cohen et al. go after "patent trolls"

The abstract for Patent Trolls... states

We provide theoretical and empirical evidence on the evolution and impact of
non-practicing entities (NPEs) in the intellectual property space. Heterogeneity in
innovation, given a cost of commercialization, results in NPEs that choose to act as
\patent trolls" that chase operating rms' innovations even if those innovations are not
clearly infringing on the NPEs' patents. We support these predictions using a novel,
large dataset of patents targeted by NPEs. We show that NPEs on average target rms
that are ush with cash (or have just had large positive cash shocks). Furthermore,
NPEs target rm pro ts arising from exogenous cash shocks unrelated to the allegedly
infringing patents. We next show that NPEs target rms irrespective of the closeness of
those rms' patents to the NPEs', and that NPEs typically target rms that are busy
with other (non-IP related) lawsuits or are likely to settle. Lastly, we show that NPE
litigation has a negative real impact on the future innovative activity of targeted rms.

The first paragraph shows that the authors are confused about what a patent right is:

Clearly defined property rights are essential for well-functioning markets. In the case of
intellectual property (IP), however, property rights are complex to define; unlike ownership
of physical assets, the space of ideas is di cult to clearly delineate. A solution employed
by the United States and many other countries is the patent, a property right allowing an
idea's owner sole commercialization rights for a period of time.

As the ancient diode/triode saga illustrates, having a patent does NOT give one a sole commercialization

Yes, the first person mentioned in the acknowledgements on the first page is "Jim Bessen," and the first footnote
is --Bessen et al. (2011) estimate that from 2007 to 2010, these litigation (and settlement) losses averaged
over $83 billion per year in 2010 dollars (just summing over the losses to publicly traded rms). This is
equivalent to over 25% of annual United States industrial R&D investment --

Of the supporting data: -- Using proprietary data, we provide strong empirical evidence for the model's main
predictions. --