Sunday, March 29, 2015

Debate over intellectual property rights at Ohio State University

The background presumption in academic environments is that invention rights belong to the university but IP in scholarly works belongs to the professor. Now, that presumption may be changing.

From "Inside Higher Ed":

Earlier this month, an ad hoc, faculty-led committee charged with updating Ohio State’s 14-year-old intellectual property policy presented a draft to the Faculty Council. According to a copy obtained by Inside Higher Ed, “All rights, title and interests in intellectual property (I.P.) are the sole property of the university” if the faculty, staff or student creators were “acting within the scope of their employment,” using “funding, equipment or infrastructure provided by or through the university,” or carrying out the research at any university facility. (The language mimics state code on the matter.)

The draft policy says that faculty members and others “acknowledge that they are bound by this policy by accepting or continuing university employment or by using university resources or facilities and acknowledge and agree that they hereby irrevocably assign all rights, title and interests in such I.P. to the university.”


The problem:

Ulrich Heinz, a professor of physics at Ohio State and a member of the University Senate, said the policy’s biggest flaw lies in its failure to differentiate innovations from scholarly work up front. That the policy names the university as the default owner of all intellectual property -- and then grants some rights to scholarly work back to the creator -- is highly problematic, Heinz said.

“They start from the presumption -- which I think is completely wrong -- that all intellectual property is owned by the university,” Heinz said, “and from that premise, scholarly works such as books and other copyright are reassigned by the university to the faculty.”

Instead, he said, the policy should be “putting things into two different pots to begin with, to make sure that everything that has been true in the past remains true.”


The previous understanding at Ohio State University:


Currently, Ohio State’s Policy on Patents and Copyrights requires that researchers report only inventions to the university, which may claim rights to products involving “significant use” of university facilities or resources. “Works of authorship,” such as most books, papers and artistic works, belong to their creators.



Copying without citation asserted in religious academic environment

Plagiarism charges have been leveled against the incoming president of Virginia Wesleyan College.


Michael Jackson's US Patent 5255452 : Method and means for creating anti-gravity illusion

The first claim of Michael Jackson's US patent was to a system:

A system for engaging shoes with a hitch mans to permit a person standing on a stage surface to lean forwardly beyond his or her center of gravity, comprising:
at least one shoe having a heel with a first engagement means, said first engagement means comprising a recess formed in a heel of said shoe covered with a heel slot plane located at a bottom region of said heel, said heel slot plate having a slot formed therein with a relatively wide opening at a leading edge of said heel and a narrower terminal end rearward of said leading edge, said recess being larger in size above said terminal end of said slot than is said terminal end of said slot; and
a second engagement means, detachably engageable with said first engagement means, comprising a hitch member having an enlarged head portion connected by a narrower shank portion to a means for raising and lowering said head of said hitch member above and substantially level with or below said stage surface, said head portion being larger in size than said terminal end of said slot and said shank portion being narrower than said terminal end of said slot, wherein said hitch member can be moved through apertures in said stage surface between a projecting position raised above said stage surface and a retracted position at or below the stage surface, and when said head portion of said hitch member is raised above said stage surface, said first engagement means can be detachably engaged with said projecting hitch member, thereby allowing a person wearing the shoes to lean forwardly with his or her normal center of gravity beyond a front region of said shoes, and maintain said forward lean.

The patent expired on Dec 20, 2005 for failure to pay maintenance fees.

The Jackson patent was cited by Northrop Grumman Corporation in US patent 5498161 .

Separately from on trade secrets, a lawsuit by Nike.

The lawsuit alleges former designers Denis Dekovic , Marc Dolce and Mark Miner "conspired" to steal trade secrets, strategic plans and product designs and convinced Adidas to hire them to build a facsimile of Nike's famed innovation lab, known as the Kitchen

CBS Sunday Morning on 29 March 2015

Charles Osgood introduced the stories for March 29, 2015. First, Legends on Frank Sinatra. Second, Tracy Smith on Jeff Hansen. Third, Jon Cryer interviewed by Ben Tracey. Seth Doane on railroading in India. Scott Simon on Brian Grazier. Steve Hartman on a math teacher.

News: Pope Francis at Vatican on Palm Sunday. News of the German pilot involved in the Airbus crash. NCAA: Kentucky and Wisconsin win. Earth Hour. Weather: 40s in Northeast.

Fact: As to airplane crashes. One could fly for everyday for 123,000 days before being involved in a crach

Elizabeth Palmer began the substantive show with a news account of the airplane crash in France, on flight from Barcelona to Dusseldorf.

Scott Simon interviews Brian Grazer. What is a producer? Generates idea; creates team and has a creative and fiscal vision

Almanac. March 29, 1962. The night Jack Paar retired from the Tonight Show. He had begun in 1957. Kennedy, Nixon, Zsa Zsa Gabor. Jack Paar's walkout; return three weeks later. There must be a better way of making a living than this.
Paar died in 2004 at the age of 85.

Best decade in American life, 1980s (20%), 1990s (19%)

Tracy Smith interviews Jeff Hansen in piece Inner Vision. Paintings of vibrant colors. Hampton is blind. Lives in Kansas City. Neurofiber mitosis. Jeff started to create paintings on notecards. Plastic goop put on canvas; feels contours. Jeff Hansen original goes for $4000. At charity auctions, sell for $20,000 or more.

Now 425 recordings in national audio registry. Johnny Mercer. Ernie Ford: 16 Tons. Joan Baez, first solo album. The Doors in 1967. Steve Martin. ben e king: stand by me. Lauryn Hill is among 25 new entries. Blind Lemon Jefferson.
[Background: Under the terms of the National Recording Preservation Act of 2000, the Librarian, with advice from the Library’s National Recording Preservation Board (NRPB), is tasked with annually selecting 25 recordings that are "culturally, historically, or aesthetically significant" and are at least 10 years old. The selections for the 2014 registry bring the total number of recordings on the registry to 425, a small part of the Library’s vast recorded-sound collection of nearly 3 million items. ]

Last week in stocks briefly shown.

Ben Tracy does Sunday Profile on Jon Cryer. Jewish gay Matthew Broderick? Alan Harper. Show ended February 2015. Thirty years in show business; now a book. All that weirdness came back. Both of Jon's parents were actors.
Spent summers at theater camp. 1983: debut in Brighton Beach Memories. Cryer was a theater geek at a science geek high school. Ringwald had wanted Robert Downey Jr. as Ducky. Effeminate heterosexual dork. SuperMan IV: Lex Luther's nephew. Newsweek: Cryer as a show killer. In 2003, Two and a Half Men. Les Moonves did not want Cryer.
Eight years into run, Sheen's meltdown. Winning. Cryer was scared that Charlie would be dead. Cryer: a troll a traitor and a turncoat. Would you work with him again? I don't know. We'll see. Lisa Joiner.

Steve Hartman on Jim O'Connor, California school teacher. Archbishop Jose Gomez. St. Francis High School.
71 year old Viet Nam vet. You can't make school fun. An alter ego. Cuddling sick babies. The epitome of a man of service.

Mo Rocca on Frank Sinatra, who would be 100 this year. Walter Cronkite: an appealing enthusiasm for the life he has lived. 1966 special with Nancy Sinatra. Home in Palm Springs. Nancy interviewed by Mo Rocca. Frank was delivered with forceps, leaving a scar. Sinatra wanted to be better than Bing. Tina Sinatra: Frank Sinatra Hall at USC.
Appeal to both men and women. Left Nancy in 1950 for Ava Gardner. Frank wanted to be on the fast track. Movie: From Here to Eternity. Ava was pals with Harry Cohn. Got Sinatra role of Maggio. Signed deal with Capitol Records.
Studio A. Agony of lost love. Nelson Riddle. The magic word was truth. Sammy Davis, Jr. suffered at hands of Kennedys because of Mae Britt. Issue of mob ties. Sinatra singing Girl from Ipanema.

Seth Doane in New Delhi. Train transports tourists through time. Campbell family from Baltimore on Maharaja's Express. Sir Mark Tully. British were building railroads across India. Up to 23 coaches/88 passengers. Train from Delhi to Agra. John Stone is on-board chef. Stone visits each and every table. Maha means big and raja means king.
Elephant polo in Jipore. Cabin for a week is $5000. Presidential suite is $23,000 per week. Typical Indian train experience is different.

Golden anniversary of Black Rock, which opened in 1965. Eero Saarinen. CBS Tower has black granite. Black Rock remains as distinctive as the day it opened.

Week ahead. Monday: BrianFest on Brian Wilson. Tuesday: 42nd Emmies. Wednesday: April Fools. Thursday: Children book. Friday: Good Friday. Saturday: Final Four in NCAA. Friday is also beginning of Passover.

Next week: Jane Pauley interviews Candace Bergen.

Moment of nature. Viking River Cruises. Sea Lions on Galapagos Islands.

Saturday, March 28, 2015

Schumer to put his imprint on patent reform, immigration matters?

Related to the announced departure of Harry Reid, TheHill has a story Schumer’s rise could boost tech industry which includes

In particular, Schumer has been one of the Senate’s biggest supporters of broad reforms to the nation’s patent laws.


Schumer was also a vocal backer of immigration reform, which tech companies say is critical to supply them with a vibrant workforce.


Unlike Schumer, Durbin has been much more skeptical of broad patent reform measures, which he has said could limit scientists and inventors to break new bold ground.


**As to Schumer's position in 2014, note the fee-shifting provision in the Cornyn-Schumer compromise bill of 2014 was less extreme than that of the Goodlatte Innovation bill:

Fee shifting: The draft language, rather than making fee-shifting presumptive, would simply lower the current burden from “exceptional case” to “objectively unreasonable.” The prevailing party would have to move the court to award fees at the end of the case and prove that the conduct or positions of the losing party were not objectively reasonable. The court would also have discretion to deny such a motion under “special circumstances” even if the conduct/positions were not objectively reasonable. This is probably the most significant and positive change in the draft compromise, as it avoids the many problems associated with presumptively awarding fees to the winning party. Cornyn and Schumer nicely capture this balanced spirit in their introductory “Sense of Congress” language, where they proclaim their intention to “strike a more appropriate balance between protecting the right of a patent holder to enforce his patent, including through litigation, on the one hand, and deterring abusive patent litigation and abusive threats thereof on the other -


**As to immigration reform and H1B visas, IPBiz

--> had discussed IBM's controversial patent application on outsourcing which came out right at the time of a major IBM layoff in Schumer's state of New York:


IAM on IBM's Kappos, not touching the political or patent pulse?

including text:

IAM made no mention of the IBM meltdown surrounding published US application 20090083107, titled METHOD AND SYSTEM FOR STRATEGIC GLOBAL RESOURCE SOURCING, which is a business method patent about outsourcing nor mention of the flap over IBM's recent termination of numerous US workers. A NBC Nightly News story on 3 April 09 discussed how an IBM Fishkill employee [Frederic (Rick) Clark] was offered the opportunity to keep his job, in India at the prevailing salary in India [20 to 25% of US].

On the layoffs themselves, from the Times Herald-Record online:

IBM fired some 5,000 U.S. workers Thursday [26 March 09] — including employees at IBM Sterling Forest in Tuxedo and IBM Poughkeepsie.

One by one, thousands of IBM workers entered managers' offices with a sense of dread to learn if they'd get the ax.

At Sterling Forest, which had been spared from a wave of firings earlier this year, an employee described the mood as grim and the building whisper quiet.

Big Blue is shifting work to India, where labor and production costs are significantly lower.

Thus, the "timing" of the patent application was incredibly poor, apart from the lack of quality in this business method application, all problems which have to placed at Kappos' door.

While Joff Wild was writing on 3 April 09 that IBM's concerns about patent quality have Kappos's fingerprints all over them, Joff neglected to mention the story by Christine Young titled IBM drops patent application for outsourcing offshore jobs


See also

What's in your skill set in this knowledge economy?


-->and IPBiz had previously written about statements by former Congressman Michael Grimm (of New York), who had suggested American workers were turning down $150,000 per year jobs (below).

As a "set-up" to the Grimm statement, from an ABC News story, which suggests $150K is a problematic salary for American employers:

“The No. 1 issue in the tech world is as people get older, they generally become more expensive,” said Vivek Wadhwa, an adviser to start-ups and an entrepreneurship scholar affiliated with Duke University. “So if you’re an employer who can hire a worker fresh out of college who is making $60,000 versus an older worker whose making $150,000, and the younger worker has skills that are fresher, who would you hire?”

Are Americans Losing High-Skilled Jobs to Foreigners?

But Grimm actually suggested American workers were turning down $150K per year jobs because they could make more.

Previous IPBiz posts

Chasing purple squirrels

The comment about Grimm was posted on Thursday, June 07, 2012, which includes a link to the audio of Grimm's remarks:

Startup Act 2.0: are you turning up your nose at $150K/year jobs?, including the text:

--Of a separate matter, related to a case brought before the Department of Labor:

In that particular case, a large U.S. corporation had terminated 50% of its scientists in its basic research laboratory, but denied several of them the opportunity to compete with a foreign worker for a single position in one of its applied laboratories.

Friday, March 27, 2015

Comment on IEEE policy on standards patents

CEO of Inerdigital comments on IEEE policy:


Here’s where patents come in. When an organization does something to improve the standard, they have to commit to negotiate licenses for any patents they have on that technology on reasonable, non-discriminatory terms.  What exactly was reasonable and how royalties were to be calculated was left to individual negotiations, which occurred without fanfare for 20 years. That system worked very well and the performance of Wi-Fi grew by leaps and bounds.
This year, the IEEE voted to change its patent licensing policy. Rather than leave it to the parties to decide how royalties would be calculated, the IEEE endorses a calculation based on the value of the chip inside the device, even if many other aspects of the device benefit from or use the contributed technology. 
This move could slash revenues for standards developers. The IEEE also wants to make it pretty near impossible to stop someone from shipping products even if they refuse to pay a license -- and that refusal will become more commonplace if there are limited means to enforce patents.
So in a nutshell, they don’t want developers to be paid much, and they’ve also made it as hard as possible for them to get paid at all. It’s all very one-sided, and so was the process that led to the decision.  


From EETimes

Ford wins patent / trade secret case involving Eagle Harbor Holdings

From Reuters:

DETROIT (Reuters) -- A jury has found that Ford Motor Co. did not infringe on four patents owned by a Washington state company in its onboard computer systems, clearing the company in a $240 million lawsuit.
The jury in federal court in Tacoma, Wash., also found in Ford's favor on its claim that the patents' owner, Eagle Harbor Holdings, stole Ford's trade secrets, Ford said Friday. [March 27].


Loser pays: disincentive for trolls?

From an opinion piece by Stan Sorkin, president of the Connecticut Food Association :

Patent litigation reform legislation should also include a “fee shifting” provision. If a troll knows an adverse outcome will make him responsible for all legal costs if it loses in court, there will be a considerable disincentive to pursue frivolous claims.


In a loser-pays world, as distinct from the present world wherein "exceptional cases" are established by evidence, the loser pays, including those cases won by so-called trolls.  Be careful what you wish for.

Plagiarism not such a big deal anymore

Plagiarism is not necessarily a career killer.  Laurence Tribe is still at Harvard.  Glenn Poshard is still at SIU.

More recently, from Politico:


In further evidence that plagiarism is no longer a career-ender, Jared Keller, the former Mic news director who was fired for plagiarism, has published at least six items in publications like The Atlantic, Pacific Standard and Daily Dot, Talking Points Memo reported on Thursday. 
Keller was fired from Mic last month after allegations of some 20 instances of plagiarism were published by Gawker.
Atlantic spokeswoman Anna Bross told TPM that the publication was well aware of Keller's past and "worked with Jared based on the merits of his pitch, as this piece shows." Bross said that, as with any writer, The Atlantic would hold him "to the highest standards of what we do."


Innovation Act commentary

Margaret Hosteler on the Innovation Act:

On February 5, 2015, the House Judiciary Chairman, Rep. Bob Goodlatte (R-VA), flanked by a bipartisan group of his peers, reintroduced his “Innovation Act” (H.R. 9). The bill is the second time in as many years that the Republican-controlled House has introduced legislation aimed at curtailing the excesses of patent protection litigation. In mid-2014, the first incarnation of the “Innovation Act” (H.R. 3309) passed the House but died in the Democratic-controlled Senate. This time, however, the Republican majority extends into the Senate.
In his statement, Rep. Goodlatte pitched the bill as “commonsense reform” aimed at “curb[ing] abusive patent litigation.”[1] The Act’s major provisions include significantly heightened pleading and demand letter requirements, an attorney’s fee shift to the non-prevailing party, discovery limits, plaintiff patent ownership transparency, and stays of litigation against end users. These reforms are aimed ostensibly at protecting emerging and innovative market enterprises. Rep. Darrell Issa (R-CA), another of the bill’s supporters, explained that “increasingly, Americans find innovation obstructed, with attempts to enter the marketplace frequently shut down by well-funded patent trolls who exploit loopholes in the patent system.”[2] But if this is really the Act’s intent, something may have gone awry. The companies lining up in support of the Innovation Act include Apple, Google, and Broadcom – not exactly average garage start-ups. Meanwhile, those who should be cheering legislation aimed at making it easier for start-ups to enter the marketplace are urging caution.
Six higher education associations, including the American Council on Education and the Association of American Universities, criticize the Act for debilitating the U.S. patent system and “discouraging the private sector from turning a university’s research discoveries into the innovations that improve our nation’s economy, health, and quality of life.”[3] Also, in a January 21 letter to the House Judiciary Committee, a host of 250 companies, start-ups, and known innovators — including Qualcomm Inc., Merck & Co., and Monsanto Co. — objected to the bill, claiming congressional action was unnecessary in the wake of legal measures that have reined in the worst patent litigation abuses.[4]
Whether a GOP Senate will spell a different fate for the Innovation Act remains to be seen, but it is worth revisiting the major provisions in the proposed legislation.


Troll situation worsening?

Andrew Langer at TownHall on trolls


Clearly the situation is worsening. Trolls are targeting a variety of industries, with retailers, car companies and financial institutions among their favorite prey. About half of patent trolling victims are small businesses and entrepreneurs, who make for easy targets because many would rather seek a settlement than spend more money in court. And they are targeted by trolls for allegedly violating patents with common practices, such as running a wireless internet router in their store or having their information show up on a search engine map.
I have an intense personal reason for being deeply troubled by this – I do a weekly podcast on politics, policy and society, and podcasters have become a favorite target. Much in the same way that video programming has moved towards time-shifted and on-demand viewership, the same transformation is taking place in the audio world, and patent trolls have targeted a number of podcasters. We do not want to be next!

Thursday, March 26, 2015


Outcome:  Because the Board incorrectly construed the term at issue, and its rejections are not supported under the proper construction, we reverse and remand.

The meaning of the word "indicative" was at issue:

“Indicative” is a common word with a well-known meaning. “Indicative” means “serving to indicate,” and the PTO agrees that “indicate” means “to be a sign, symptom, or index.” Appellee’s Br. 13. It would be inconsistent with the plain meaning of the term “indicative” to conclude that a given value is “indicative” of another value where an entirely separate set of information, not transmitted by the card issuer, is necessary to determine that other value. Mr. Bookstaff used the term “indicative” consistent with this plain meaning throughout the specification.


CAFC in Exela v. Lee: PTO revival rulings are not subject to third party collateral challenge; Judge Newman: we must try harder

The CAFC in Exela addressed third party challenges to PTO revival rulings.


The issue addressed:

This appeal presents the question of whether a third party has the right to challenge, by way of the Administrative Procedure Act (APA), a ruling of the Patent and Trademark Office reviving a patent application that had become abandoned by failure to meet a filing schedule established by the Patent Cooperation Treaty and its implementing statute. The challengers are Exela Pharma Sciences, LLC; Exela Pharmsci, Inc.; and Exela Holdings, Inc. (collectively “Exela”).

Exela petitioned the PTO to “reconsider and withdraw” its revival of the national stage
application and to cancel the issued patent. The patent is United States Patent No. 6,992,218 (“the ’218 patent”), assigned to SCR Pharmatop. The PTO declined to consider Exela’s petition, stating that no law or regulation authorizes non-party challenge to a PTO ruling to accept a tardy filing. Exela then brought suit under the APA in the United States District Court for the Eastern District of Virginia, arguing that the PTO’s action was ultra vires and that Exela’s petition should have been considered and favorably decided. The PTO moved to dismiss Exela’s complaint on several grounds.

The district court initially held that Exela was entitled to challenge the PTO’s decision under the APA, but on reconsideration and in view of new Fourth Circuit precedent, the district court dismissed Exela’s complaint for failing to meet the statute of limitations for claims filed against the United States, including APA claims.1 We affirm the dismissal, on the ground that PTO revival rulings are not subject to third party collateral challenge, thereby precluding review regardless of whether Exela’s claims were time-barred


The nub of the debate:

The PTO responds that there is no authority for third parties to collaterally challenge the correctness of PTO revival rulings. Thus the PTO contends that the merits should be decided in its favor, even if dismissal is not appropriate on limitations grounds.

Exela argues that although such third party action is not explicitly authorized by statute or regulation, it is available under the APA. Exela cites the Court’s statement in Block v. Community Nutrition Institute that “where substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling.” 467 U.S. 340, 350–51 (1984).


The issue here is whether a third party may collaterally challenge and obtain judicial review of a PTO revival ruling concerning an unrelated patent application. The Patent Act’s “intricate scheme for administrative and judicial review of PTO patentability determinations,” and “the Patent Act’s careful framework for judicial review at the behest of particular persons through particular procedures” demonstrate that third party challenge of PTO revival rulings under the APA is not legislatively intended. Pregis Corp. v. Kappos, 700 F.3d 1348, 1357 (Fed. Cir. 2012) (“[A] third party cannot sue the PTO under the APA to challenge a PTO decision to issue a patent.”). We conclude that PTO revival actions are not subject to third party challenge under the APA. On this ground, the dismissal of the Exela complaint is affirmed

There is a separate issue in the concurring opinions.

Judge Newman wrote

I write separately to address the concerns raised in Judge Dyk’s concurring opinion, in which he criticizes the court’s ruling in Aristocrat Technologies Australia Pty Ltd. v. International Game Technology, 543 F.3d 657 (Fed. Cir. 2008). With all respect to my colleague, I do not share the view that Aristocrat was wrongly decided.


With all respect, my colleague errs in stating that such major substantive issues, each of which is a traditional defense, “cannot be so easily distinguished” from an excuse for a missed filing date. Conc. Op. at 5. If judges cannot easily distinguish the significance of antitrust violation from a missed date, we must try harder.

Sun completes merger with Ranbaxy

And note:  Daiichi Sankyo becomes the second largest shareholder in Sun Pharma.


Fortune piece favorable to Goodlatte Innovation bill; "loser pays" part glossed over

Jeff Roberts of a Fortune presents a piece favorable to the Innovation bill of Goodlatte in the post

CEOs tell Congress: Patent trolls are giving us the shakedown


Curiously, Roberts did not focus on the controversy about fee-shifting:


One of these measures would require patent plaintiffs to spell out how exactly a company is infringing their invention. Currently, trolls operate by sending out generic complaints that do little more than list the patent and say that a company’s products are infringing it. Oftentimes, the defendant must wade into costly legal quicksand simply to find out what the troll is talking about.
Other reform measures would put time or cost limits on discovery, which is the legal process in which parties to a lawsuit furnish documents and testimony, as well as make it easier for a successful defendant to recoup legal fees from a troll.
Another part of the Innovation Act would make it easier for companies to shield downstream customers from troll attacks. This would be a change from current rules that let patent owners sue anyone in the supply chain – meaning that they can sue not only a manufacturer of an infringing product, but any retail shop or end user too.


As to -- make it easier for a successful defendant to recoup legal fees from a troll. --, one notes

#1.  Current law provides fee-shifting for exceptional (i.e., unreasonable) lawsuits, but the default
in the absence of such showing is that each side pays its own fees.

#2.  The proposed Innovation Act provides a default that loser pays UNLESS loser shows not unreasonable.  This provision is NOT specific to entities that might be deemed trolls, but covers all "losers," which might in some cases include universities and small businesses.  The provision is not specifically tailored to the troll problem and will impact many "innocent bystanders," thereby creating much collateral damage.   The "loser pays" provision is NOT in the STRONG bill of Senator Coons (D-Del).

Intellectual Ventures scores victory over Motorola for patent infringement in D. Del.

In Intellectual Ventures I Llc et al. v. Motorola Mobility Llc, No. 11-cv-908, in the U.S. District Court for the District of Delaware, IV obtained a favorable jury verdict against Motorola.


The first three claims of Apple's application ELECTRONIC COMPONENT EMBEDDED IN CERAMIC MATERIAL 


1. An electronic device, comprising: a housing; a cover glass affixed to the housing; and an electronic component embedded within the cover glass.

2. The electronic device of claim 1, wherein: a trench is defined within the cover glass; the electronic component is located within the trench; and a retention element occupies a remainder of the trench, thereby embedding the electronic component with the cover glass.

3. The electronic device of claim 2, wherein: the cover glass is formed from sapphire; and the retention element is formed from one of sapphire or alumina.

4. The electronic device of claim 3, wherein the retention element is molecularly bonded to the cover glass. 



Patent application on selecting algae strains for robustness

Joe Weissman of ExxonMobil has a patent application titled.   METHODS OF SELECTING ALGAE STRAINS FOR PRODUCTIVITY AND ROBUSTNESS  With first claim


1. A method for selecting a strain of algal cells for biomass accumulation in photosynthetic culture, the method comprising: (a) co-culturing at least two different strains of algal cells; (b) exposing the algal cells to an illumination profile, wherein the illumination profile comprises light conditions that influence growth rate of at least one strain of algal cells; and (c) selecting a strain of algal cells for biomass accumulation based on a photosynthetic efficiency characteristic displayed by the selected strain of algal cells. 

US application  tel:20150087014

US application to a research photobioreactor

Celldeg of Berlin has the '049 application to a rearch photobioreactor:


1. Research photobioreactor for the warranty of the photoautotrophic growth of cyanobacteria and microalgae under axenic conditions at extremely high photoautotrophic activities with small losses of CO.sub.2 and water to the atmosphere, comprising a horizontally orientated basis chamber 1 that can be closed from the atmosphere and fixed on a shaking desk, wherein a CO.sub.2 concentration above 1% (vol/vol) can be maintained, at least one horizontally extended reaction chamber 2 for inclusion of the cell suspension that is fixed on the upper board of the basis chamber, the volume of which persists in gaseous exchange with the basis chamber exclusively through a horizontally orientated planar, microporous and hydrophobic first membrane 3, whereat the critical pressure of this membrane for infiltration by water in the air-saturated state surpasses 100 kPa and its permeability for air at atmospheric pressure surpasses 10 mm.sup.3 cm.sup.-2 s.sup.-1, a porous hydrophobic gas-permeable second membrane 4 with a critical pressure for infiltration with water in the air-saturated state of more than 100 kPa and a permeability to air at atmospheric pressure of more than 10 mm.sup.3 cm.sup.-2 s.sup.-1 kPa.sup.-1, separating the reaction volume 5 from a gas exchange volume 6, as well as at least one channel 7 connecting the gas exchange volume with the outer atmosphere having a width of at least 0.01 cm whereat the common gas diffusion resistance of all channels surpasses several times that of the second gas-permeable membrane and the surface area A of the reaction chamber exposed to light, whereat the length L.sub.n and the cross sectional area Q.sub.n of each channel are chosen in such limits, that the geometry factor F=A/.SIGMA.(Q.sub.nL.sub.n.sup.-1) is a value between 20 and 1000 cm.


Wednesday, March 25, 2015

CAFC affirms PTAB in Kennametal

In Kennametal v. Ingersoll, the CAFC notes that anticipation does not necessarily imply obviousness, citing Cohesive v. Waters. In the present case, however, anticipation did indicate obviousness.

The PTAB decision is affirmed.

Manny Schecter writes on patent quality

From TheHill by Manny Schecter:

A strong patent system, supported by quality patents, also boosts American competitiveness. The U.S. must set the standard for patent quality to ensure other countries both respect U.S. patents and seek to raise quality themselves. Maintaining high quality patents also helps U.S. companies to invest in innovation, enabling them to compete in the world marketplace.

With concern over the quality of patents raised in the patent reform and patent litigation discussion, it is imperative that the U.S. demonstrate its commitment to patent quality. The USPTO is doing just that with its current patent quality proposals. The proposals will seed brainstorming in important areas such as improving quality metrics, enhancing examiner/applicant communication, and harnessing innovation to enhance patent examination.

Robust patent examination improves the efficiency of the patent system by addressing issues early in the patent lifecycle. Early action to address poor quality applications avoids unnecessary design around or other defensive measures by businesses as they attempt to develop and commercialize products and services.

Amidst ongoing debate about the patent system we must not forget the critical role patents play in promoting and protecting the business of innovators. We commend the USPTO for its willingness to explore new ideas, evaluate the use of new technologies, and consider community feedback that can improve the quality of patents, strengthen our patent system, and ensure that it remains at the forefront of the global IP system.


Apple's US patent 8,989,773: tracking people

The first claim


1. A method comprising: on a first device executing a first instance of a location application, receiving first location data describing a path traveled by the first device, the first location data received from a location system of the first device, and the first location data including a plurality of locations of the first device; receiving destination data describing a destination specified by a user of the first device; receiving a request for a second device to receive the first location data describing the bath traveled by the first device; receiving second location data indicating a location of the second device, the second location data enabling the display, on a user interface of the first device, of the location of the second device; after the location of the second device has been displayed on the user interface of the first device, receiving an authorization to transmit the first location data to the second device, the authorization being based on data specified by the user of the first device; and transmitting the location data and destination data in a form usable to enable a user interface of a second instance of a location application executing on a second device to indicate the path traveled by the first device and to indicate directions to the destination specified by the user of the first
Inventors: Sandel; Eran (Kiryat Ono, IL), Harush; Elad (Tel-Aviv, IL), Guy; Roman (Ashkelon, IL)

--(from Israel)

Tuesday, March 24, 2015

Apple's US '564 camera patent

The first claim

1. A digital camera device comprising a device housing in which the following are integrated: a light splitter cube having an entrance face to receive incident light from a camera scene, the incident light from the camera scene entering the housing through a face of the housing, a depth from the face to an opposite side of the housing being shorter than length and width of the face, the light splitter cube to split the incident light into red, green, and blue, second, and third color components that emerge from the light splitter cube through a first exit face, a second exit face, and a third exit face of the light splitter cube, respectively, wherein the light splitter cube comprises first, second, third and fourth transparent polyhedrons, each of the transparent polyhedrons having a right isosceles triangular base, a right isosceles triangular top, and three faces joining corresponding sides of the triangular base and top, wherein the first transparent polyhedron adjoins the second transparent polyhedron at a first dichroic interface and the first transparent polyhedron adjoins the fourth transparent polyhedron at a second dichroic interface, wherein the first dichroic interface reflects red light and passes blue and green lights, wherein the second dichroic interface reflects blue light and passes green and red lights; first, second and third image sensors, each being positioned to receive a respective one of the color components that emerge from the first, second and third exit faces of the light splitter cube; a deflector positioned to deflect the incident light from the camera scene towards the light splitter cube; and a zoom lens system positioned entirely in a path of the deflected incident light between the deflector and the entrance face of the light splitter cube, wherein the zoom lens system comprises more than two moveable lens elements.

Nicholas Eckelberry obtains US patent 8,986,531

The abstract states:

A system includes an ionic exchange conduit through which a flow of photosynthetic biomass is drawn capturing an electrical charge which is used to alternately power a photonic activated reservoir housing a living photosynthetic biomass suspended in a flowing liquid medium which self generates an electrical charge as it migrates towards and through a cathode separated from an anode by a membrane. Upon electrical transfer through the circuit an electrolysis process begins and releases hydrogen and oxygen into enclosed atmosphere chambers where these separated gases can be captured for use in a fuel cell.


The first claim

A apparatus comprising: a reservoir for storing a fluid containing a photosynthesis living biomass, the reservoir being configured to allow sunlight to illuminate the fluid to allow photonic energy in the form of electrons to be captured within cells of the photosynthesis living biomass; an electrically-conductive primary conduit connected to the reservoir to allow the fluid to flow through the primary conduit, the primary conduit having a length and with a first terminal electrically connected thereto; an electrically-conductive secondary conduit having a length similar to the length of the primary conduit, being disposed substantially entirely within the primary conduit such that the fluid flows between the primary and secondary conduit, and having a second terminal electrically connected thereto; an electrical circuit or device electrically connected to the first and second terminals and configured to capture energy from a voltage difference existing at the first and second terminals, the voltage difference being generated by the release of the electrons from the cells of the photosynthesis living biomass caused by a change in an oxygen reduction potential of the fluid as it flows between the primary and secondary conduits.


James Weifu Lee obtains US 8,986,963 titled Designer calvin-cycle-channeled production of butanol and related higher alcohols

The text of the first claim:

1. A method for photobiological production of butanol and related higher alcohols comprising: introducing a transgenic photosynthetic organism into a photobiological reactor system, the transgenic photosynthetic organism comprising transgenes coding for a set of enzymes configured to act on certain intermediate products of the Calvin cycle selected from the group consisting of glyceraldehyde 3-phosphate, 3-phosphoglycerate, fructose-1,6-diphosphate and fructose-6-phosphate and to convert the intermediate product into a higher alcohol comprising at least four carbon atoms; using photosynthetically generated NADPH and energy ATP associated with the transgenic photosynthetic organism acquired from photosynthetic water splitting and proton gradient coupled electron transport process in the photobiological reactor to synthesize the higher alcohol from carbon dioxide and water; and using a product separation process to harvest the synthesized alcohol from the photobioreactor, wherein the transgenes coding for a set of enzymes comprises at least one of the designer Calvin-cycle-channeled pathway genes exemplified with exemplary designer DNA constructs of SEQ ID NOS. 58-70 shown in the sequence listings.


The priority chain:

This application is a continuation-in-part of co-pending U.S. patent application Ser. No. 12/918,784 filed on Aug. 20, 2010, which is the National Stage of International Application No. PCT/US2009/034801 filed on Feb. 21, 2009, which claims the benefit of U.S. Provisional Application No. 61/066,845 filed on Feb. 23, 2008, and U.S. Provisional Application No. 61/066,835 filed on Feb. 23, 2008. This application also claims the benefit of U.S. Provisional Application No. 61/426,147 filed on Dec. 22, 2010. The entire disclosures of all of these applications are incorporated herein by reference


There was an interview with the examiner on 22 Sept. 2014. A variety of rejections had been made in an Office Action of April 2014.

Robert Nelsen and Hans Bishop suggest compromise in patent reform as to fee-shifting

The idea for a compromise on "fee-shifting" from Nelson and Bishop:

Some of the most onerous provisions of the bill–paradoxically called the Innovation Act–would create a system in which startups would need to spend tens of millions of dollars on litigation expenses defending themselves from large companies, most likely going bankrupt if they lose to the “big guy”. (...)

Some in Congress are evidently unaware that by inserting a “loser pays” requirement into our legal system, they will be sacrificing our world-leading biotech industry in the process. Let us be clear: investments in the biotech industry are based entirely on patents. Without strong patents, we cannot raise money to find cures for disease.

Why would “big tech” do this? They have a genuine concern about harassment by non-operating “patent trolls” frivolously suing them. So we have a challenge for them. If their motivation is simply to reduce trolls, and not to suppress innovation, then they should have no problem agreeing to provide small, innovative companies safe harbor from the onerous provisions in this bill. Backers should embrace carving out universities and emerging growth companies defined by Title I of the Jumpstart Our Business Startups (JOBS) Act. True patent trolls who buy their patents and cause real damage are not operating companies would still be covered under the provisions of the Innovation Act.

Small innovators are truly operating companies, not trolls, so let us give these American innovators the benefit of the doubt. There is precedent for this kind of exception. The Patent Act itself creates a safe harbor to protect drugs under clinical development from infringement litigation. Why not extend that protection to all start-ups and inventors, giving them a chance to be successful? This simple fix solves the troll problem and protects startups until they are big.



New Patent Law Would Trash Disease Cures


See also IPBiz post relating to comments of Richard Epstein:

Reasons for denial of IPRs: insufficient evidence, insufficient reasoning, and failure to timely file the petition


As of the two-year anniversary of IPR and CBM proceedings, parties have filed over 2,000, surpassing even ambitious expectations for the program--and representing [p. 142] a sea change in patent law. Many have merited institution; many have not. While cases were instituted in over 75% of all proceedings, n172 that percentage might fall, as certain patents survive review, others are held unpatentable, and the Board faces more patents and patent families already challenged under IPR or CBM. n173 As some practitioners conjecture, perhaps the "low-hanging fruit" of particularly problematic patents may grow scarce in years to come, further depressing these percentages. n174 And as battle-tested patents emerge from the Board largely immune to further validity challenges, certain petitions may be denied under § 325(d) as presenting art and arguments substantially similar to those previously considered by the Office. n175

IPR and CBM proceedings, if used effectively, can lead to efficient outcomes, where good patents strengthen and poor patents return from issue. This Article seeks to help, to "improve patent quality and limit unnecessary and counterproductive litigation costs," n176 through discussing the main factors contributing to the denial of petitions for CBM review and IPR.

Reviewing all decisions to deny petitions to institute CBM review demonstrated that the standing factors--such as the "financial product" test--have not accounted for the denial of such petitions, but rather that the petitions have been denied on the basis of the challenged claims. Reviewing the first 100 denials of institution for IPRs illustrates that three primary factors resulting in denial: insufficient evidence, insufficient reasoning, and failure to timely file the petition.

This Article demonstrates that the primary factor, with increasing relevance, is the petitioner's insufficiently articulated arguments. Fortunately, this highlights the control experienced petitioners have in increasing the likelihood petitions for IPR will be instituted. If practitioners consider the foregoing, we look forward to a more complete, just, and efficient implementation of Article I, Section 8 of the Constitution.

See earlier post on IPBiz:

Can one copyright a tatoo?


The conclusion by David M. Cummings:

"It is difficult to do much better than to state apodictically that a body, even as augmented, simply is not subject to copyright protection." n322 The preceding quote, asserted by Professor Nimmer, implicitly communicates the virtually universal social values regarding individual autonomy and control of the person. It implies that there is no reasoning required, and no formula necessary, for society to simply know that humans are not to be owned in this, or any, manner. It is the utmost priority ingrained in this culture as a fact of our existence that is not up for debate.

What are we to do, then, with the unfortunate artist who chooses [p. 318] the human form as her canvas of choice? Does she not deserve some degree of protection for the works that she creates? The above Resolution reconciles the interests of a burgeoning and increasingly respected art form with the most basic and essential human interests. It does this by examining a body of law that was likely never anticipated to apply to humans in the first place. But, as the parties in Whitmill demonstrated, the actual need to apply the law in this fashion is not impossible, nor is it farfetched.

By balancing important social policy goals, the artist-recipient relationship, and the text of the law, a compromise that protects human rights while supporting tattoos as an artistic genre is indeed possible. By applying the above Resolution with a constant eye towards preserving individual autonomy, the tattoo community will grow in coming years to experience the same "promot[ion of] the Progress of ... useful Arts" guaranteed by the Constitution to other types of artists for over two centuries. n323

Yes, work-for-hire does come up:

In regards to this section, the [p. 288] Act specifically limits the application of works made for hire to nine categories of works. n70 It is not enough, however, that a work simply falls into one of these categories - the language of the Act specifically requires that the parties agree in writing that they intend the work to be designated a work made for hire. n71 Importantly, both parties must sign this written agreement. n72 Nonetheless, courts are split as to whether this agreement must be in writing before the work is created; the only consensus being that some form of agreement - oral, written, or implied - must have occurred before the commission of the work, with a writing being established at a later date. n73

Conopco at PTAB: 'follow-on' second petitions in order to 'correct deficiencies noted' by the Board in decisions that deny a first petition

"[The petitioner] does not show that we misapplied § 325(d) in assessing whether 'the same or substantially the same prior art or arguments' were raised in the first and second petitions. . . . Our authority is grounded not only in § 325(d), but also in the broader discretion to deny a petition under § 314(a). . . . [The petitioner] argues that the Board should not have considered whether any new prior art or arguments raised in the second petition were known or available to [the petitioner] at the time of filing the first petition. . . . [The petitioner] advances a bright-line approach that would allow petitioners to file 'follow-on' second petitions in order to 'correct deficiencies noted' by the Board in decisions that deny a first petition. That bright-line approach would allow petitioners to unveil strategically their best prior art and arguments in serial petitions, using our decisions on institution as a roadmap, until a ground is advanced that results in review—a practice that would tax Board resources, and force patent owners to defend multiple attacks. We did not err by adopting a more flexible approach that assesses each case on its particular facts to achieve a result that promotes the efficient and economical use of Board and party resources, and reduces the opportunity for abuse of the administrative process."

Petition for Inter Partes Review by Conopco, Inc., IPR2014-00628 (PTAB March 20, 2015, Order) (Obermann, APJ)


For a general discussion, see "Second Bites At the Post-Grant Apple?" in the National Law Review.

The Board has considered redundancy under § 325(d) in the context of multiple IPR/CBM petitions on approximately 40 occasions, and denied the subsequent petition approximately 62% of the time, often criticizing Petitioner’s subsequent petition as a “second bite at the apple.” See e.g., Medtronic Vascular, Inc. v. Endotach LLC, Case IPR2014-00695 (PTAB Sept. 25, 2014) (denying Petitioner’s second petition as an inappropriate “second bite at the apple” where Petitioner failed to present “argument or evidence to explain why the grounds of unpatentability asserted in the [second] Petition could not have been asserted in the [first Petition]”).

When denying a subsequent petition under §325(d), the Board frequently faults the Petitioner for failing to explain why the subsequent petition should be instituted over “the same or substantially the same prior art or arguments” that were presented in previous petitions. See Medtronic, Inc. v. Nuvasive, Inc., IPR2014-00487 (PTAB Sept. 11, 2014) (denying Petitioner’s third petition as “essentially a duplicate of the previously denied petitions” where Petitioner failed to provide any reasoning as to why the third petition should be instituted over similar prior art or arguments contained in prior petitions); Biodelivery Sciences Int’l. v. RB Pharma. Ltd., IPR2014-00998 (PTAB Dec. 19, 2014) (denying Petitioner’s second petition that merely “recycled previous art and arguments”).

The Board’s decisions to institute (or not institute) subsequent petitions filed to correct errors in previous petitions are somewhat inconsistent. For example, in Butamax Advanced Biofuels, Inc. v. Gevo, Inc., IPR2014-00581 (PTAB Oct. 14, 2014), the Board denied Petitioner’s second IPR petition, which sought to correct an error identified by the Board in the earlier petition.


Yeast/biofuel advance at UTexas/Austin



Beyond biofuels, the new yeast strain could be used in biochemical production to produce oleochemicals, chemicals traditionally derived from plant and animal fats and petroleum, which are used to make a variety of household products.
Hal Alper, associate professor in the McKetta Department of Chemical Engineering, and his team have engineered a special type of yeast cell, Yarrowia lipolytica, and significantly enhanced its ability to convert simple sugars into oils and fats, known as lipids, that can then be used in place of petroleum-derived products. Alper's discovery aligns with the U.S. Department of Energy's efforts to develop renewable and cost-competitive biofuels from nonfood biomass materials.
"Our re-engineered strain serves as a stepping stone toward sustainable and renewable production of fuels such as biodiesel," Alper said. "Moreover, this work contributes to the overall goal of reaching energy independence."
Previously, the Alper team successfully combined genetically engineered yeast cells with ordinary table sugar to produce what Alper described as "a renewable version of sweet crude," the premium form of petroleum. Building upon this approach, the team used a combination of evolutionary engineering strategies to create the new, mutant strain of Yarrowia that produces 1.6 times as many lipids as their previous strain in a shorter time, reaching levels of 40 grams per liter, a concentration that could make yeast cells a viable platform in the creation of biofuels. The strain's high lipid yield makes it one of the most efficient organisms for turning sugar into lipids. In addition, the resulting cells produced these lipids at a rate that was more than 2.5 times as fast as the previous strain.



US patent 8,989,922 on a modular drone

The first claim of US '922:

1. A drone comprising: a navigation unit configured to determine the location of the drone and navigate the drone to designated locations within a warehouse, wherein the designated locations form a first flight path that traverses the warehouse to pass within range of a plurality of inventory objects located inside the warehouse; a radio frequency identification (RFID) reader configured to read RFID tag information from RFID tags associated with the inventory objects located inside the warehouse, wherein the RFID tag information comprises identifiers associated with the inventory objects located inside the warehouse; and a wireless network transceiver configured to: periodically transmit the location of the drone and RFID tag information including the identifiers associated with the inventory objects located inside the warehouse to an inventory management system, and receive a second flight path comprising a set of search locations indicating one or more locations to where a missing inventory object might have been moved, wherein the navigation unit is further configured to, after the wireless network transceiver receives the second flight path, navigate through the set of search locations to locate the missing inventory object using the RFID reader.

Apple's US patent 8,990,598 on power management

The first claim of US '598:


1. A method affecting a power state transition at a computer having a plurality of component devices, the method comprising: at a power manager of the computer: receiving an input power requirement for at least one device of the plurality of component devices from a power management client; storing a value associated with the received input power requirement; determining when the stored value is different from a current power state value for the at least one device maintained by the power manager; and in response to determining, setting the current power state value for the at least one device maintained by the power manager to the stored value.


Ron Katznelson criticizes the "patent troll narrative"

See the paper at

Greg Stobbs at SXSW

ExtremeTech mentioned statements of Stobbs:

In a session that was part of this year’s SXSW Intellectual Property track, Greg Stobbs, an IP attorney with long experience in software patents and emerging technology, discussed a history of patents and how they predicted future innovative products. For example, patents issued in the 1860s in the U.S. covered such things as carburetors, rapid-fire guns, and the vacuum cleaner. These inventions did not see wide use in real products until the early 20th century.

What future tech is getting patented today? Stobbs sees mesh networks, Blockchain, and quantum dots as some of the next tech coming from IP. Mesh networks are not new, and they exist in such evolving standards as Zigbee for home automation solutions. But combining mesh networking with Blockchain, the sequential transaction technology used by Bitcoin, and quantum dots (semiconductor nanocrystals with unique properties, including the ability to emit light at very specific wavelengths) could create vast networks of interconnected tiny computers for all manner of secure payment systems, ecommerce transactions, data gathering, and more. IBM’s recently unveiled Adept protocol is one such technology for putting this together. You can bet IBM has filed patents around everything it could on this, as the company was issued over 6,000 patents in 2013 alone, and is one of the top patent holding entities in the world.


Monday, March 23, 2015

Bold predictions for biofuel production by Joule Unlimited published in BiofuelsDigest on 23 March 2015

BiofuelsDigest ran a story on 23 March 2015 titled Joule says “will go commercial in 2017″: solar fuels on the way.

With the story is the text

The company has previously indicated that it could produce up to 15,000 gallons of diesel fuels, per acre per year, and as much as 25,000 gallons per acre per year of ethanol — so think in terms of 15 million to 25 million gallons for this first commercial facility, as an ultimate nameplate capacity.

The significance of this resides in the meaning ascribed to the word "could." Of relevance to this point is the text in the BiofuelsDigest post:

It comes down to the production efficiency of the organism — a set of cyanobacteria that directly produce alcohols and alkanes, rather than producing an entire plant of which only a fraction is converted to ethanol. Plus, the photosynthetic efficiency of the Joule process. As we reported in 2011 from a peer-reviewed article in Photosynthesis Research:

“The solar-to-product conversion efficiency of Joule’s direct, continuous process for producing diesel, ethanol and chemicals is between 5 and 50 times greater than any biomass-dependent process, and gains additional efficiencies by avoiding downstream refining…Joule’s combined advances in genome engineering, solar capture and bioprocessing result in photosynthetic conversion efficiency of more than 7% relative to available yearly solar energy striking the ground.”

The referenced paper by Joule Unlimited A new dawn for industrial photosynthesis assumes a photosynthetic efficiency [7.2%] and then calculates the energy equivalent of C17 produced at that energy efficiency. There is no experimental data showing actual formation of C17 in an amount 15,000 gallons C17 per (acre-year).

See the IPBiz post
Steven Chu to Scientific American on biofuels on 7 March 2012

One notes that the ratio of the heats of combustion nC17/ethanol which is 47.2 to 29.7 or 1.6 is comparable to the ratio of the areal yields 25/15 or 1.7. If one has fixed yield by assuming a certain energy conversion, one requires more gallons of ethanol than gallons of nC17, because of ethanol's lower enthalpy of combustion. Thus, one might infer the 25,000 gallon per acre year number arises from assuming one can convert the energy of the 7.2% efficiency entirely into the energy of combustion of ethanol, and the 15,000 number corresponding to the conversion to the energy of combustion of n-C17.

IPBiz links:

Followup on 3/24/15:

Note Joule's US patent 8,986,964 with first claim


1. A method for production of ethanol, comprising: culturing an engineered cyanobacterium in a culture medium in the presence of light and inorganic carbon, wherein said engineered cyanobacterium comprising a recombinant pyruvate decarboxylase nucleic acid sequence encoding a pyruvate decarboxylase having EC and a plurality of recombinant alcohol dehydrogenase nucleic acid sequences encoding an alcohol dehydrogenase having EC or EC, wherein the expression level the alcohol dehydrogenase and the expression level of the pyruvate decarboxylase are regulated by separate promoters, wherein the expression level of alcohol dehydrogenase in the engineered cyanobacterium is greater than the expression level of alcohol dehydrogenase in a control engineered cyanobacterium comprising a recombinant alcohol dehydrogenase nucleic acid sequence and a recombinant pyruvate decarboxylase nucleic acid sequence regulated together by a single promoter, and wherein the engineered cyanobacterium produces ethanol in an amount greater than a non-engineered cyanobacterium, when cultured under identical conditions.

See also Example 3.

University of Buckingham handling of 10% plagiarism rate in the course "Legal Skills and Procedure" found improper

The Quality Assurance Agency for Higher Education (QAA) issued a report on "how" the University of Buckingham handled the plagiarism in the "legal skills" class.


CAFC affirms D. Del. in Cadence v. Exela in case related to acetaminophen

Teva v. Sandoz is mentioned in Cadence v. Exela:

In reviewing questions of claim construction
and obviousness,
we review underlying factual determinations for
clear error and ultimate determinations
de novo. Teva Pharm. USA, Inc. v. Sandoz, Inc.,
135 S. Ct. 831,841 (2015)
(claim construction);
Allergan, Inc. v. Apotex Inc.,
754 F.3d 952, 961 (Fed. Cir. 2014) (citing
Novo Nordisk A/S v. Caraco Pharm. Labs., Ltd.
, 719 F.3d 1346, 1354 (Fed. Cir.
2013)) (obviousness).
Because the district court’s claim constructions were based solely on the
intrinsic record, the Supreme Court’s recent
decision in Teva does not require us to review the district court’s
claim construction any differently than under the
de novo standard we have long applied.
Fenner Invs., Ltd. v. Cellco P’ship, ---
F.3d ---- , ---- , available at
2015 WL 570730 (Fed. Cir. Feb. 12,
2015) (“When the district court
reviews only evidence intrinsic to the patent. ., the
judge ’s determination will amount solely to a determina-
tion of law, and [we]
review that construction de novo .”)
(quoting Teva, 135 S. Ct. at 841)
(internal citations re-

[ Fenner, 2015 U.S. App. LEXIS 2203; 113 U.S.P.Q.2D (BNA) 1770, states
We review de novo the ultimate question of the proper construction of patent claims and the evidence intrinsic to the patent. Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841, 190 L. Ed. 2d 719 (2015); id. ("[W]hen the district court reviews only evidence intrinsic to the patent (the patent claims and specifications, along with the patent's prosecution history), the judge's determination will amount solely to a determination of law, and the Court of Appeals will review that construction de novo."). The district court's determination of subsidiary facts based on extrinsic evidence is reviewed for clear error. Id. at 835, 841. ]

As to importing limitations from the spec to the claims:

even if “all of the embodiments dis-
cussed in the patent ” included a specific limitation, it
would not be “proper to import from the patent’s written description limitations
that are not found in the claims
themselves.” Flo Healthcare Solutions, LLC v. Kappos,
697 F.3d 1367, 1375 (Fed. Cir. 2012) (citing
Silicon Graphics, Inc. v. ATI Techs., Inc., 607 F.3d 784, 792 (Fed. Cir. 2010)).
Moreover, the fact that during prosecution
applicants added the term “buffering agent” in response
to a rejection does not show that the phrase requires a
minimum concentration or resistance to material change.
The addition of that phrase shows only
that a buffering agent is necessary

Planet Bingo is cited:

It maintains that the facts here are analogous to
Planet Bingo, LLC v. Gam-
eTech International, Inc., where we held
that determining a winning combination after a game started could not be
equivalent to a claim that recited “a predetermined win-
ning combination.” 472 F.3d 1338, 1345 (Fed. Cir. 2006).

Exela fundamentally misunderstands
the doctrine of claim vitiation.
“Vitiation” is not an exception
or thresh-
old determination that forecloses
resort to the doctrine of
equivalents, but is
instead a legal conclusion of
a lack of equivalence based on the evidence
presented and the theory of equivalence asserted

Graver Tank (Mn as an alkaline metal) is mentioned,
as is Moore: Moore U.S.A., Inc. v. Standard Register Co., 229 F.3d
1091, 1106 (Fed. Cir.2000)(“it would defy logic to con-
clude that a minority—the very antithesis of a majority
—could be insubstantially different from a claim limitation
requiring a majority, and no reasonable juror could find

[IPBiz: Bolsheviks and Menshiviks? From urbandisctionary:
Lenin gave his group the name "Bolshevik", which means majority-class.
His opponents were called "Mensheviks", which means minority-class,
although, at the congress in Brussels, there were more Mensheviks than Bolsheviks. ]

OF the USPTO note:

the Patent Office is “‘pre-
sumed to have properly done its job’
” when it ultimately allowed the ’218 patent.
PowerOasis, Inc. v. T-Mobile USA, Inc.
, 522 F.3d 1299, 1304 (Fed. Cir. 2008)
(quoting Am. Hoist & Derrick Co. v. Sowa & Sons, Inc.
, 725 F.2d 1350, 1360 (Fed. Cir. 1984)). Second, patents are pre-
sumed to be valid, 35 U.S.C. § 282, so defendants must
prove invalidity by clear and convincing evidence. Mi-
crosoft Corp. v. i4i Ltd. P’ship, 131 S. Ct. 2238, 2242
Third, we will only overturn the district court’s
underlying factual determinations if we believe they are
clearly erroneous.


CAFC invokes first Seagate prong to reverse WD Mich in Stryker v. Zimmer

The outcome in Stryker v. Zimmer:

Zimmer, Inc., Zimmer Surgical, Inc., and Zimmer Orthopaedic Surgical
Products (collectively “Zimmer”) appeal
from the final judgment of the United States District
Court for the Western District of Michigan that U.S. Patent Nos. 6,022,329
(“’329 patent”), 6,179,807 (“’807 patent”), and 7,144,383 (“
’383 patent”) were valid and willfully infringed. For the reasons stated below, we
affirm the jury’s findings that the patents were valid and
infringed, and the jury’s award of damages to plaintiff-
appellees Stryker Corporation, Stryker Puerto Rico, Ltd.,
and Stryker Sales Corporation (collectively “Stryker”).
However, we reverse the district court’s judgment that
Zimmer’s infringement was willful, and, accordingly, we
vacate its award of treble damages.
Finally, we vacate and remand the district court’s finding of exceptional case
and its award of
attorneys’ fees.

As to the appeal of the denial of JMOL:

On the issues of infringement and validity that the jury decided,
Zimmer appeals the district court’s denials of
its motion for JMOL.
Generally, a district court grants
JMOL and sets aside the jury’s verdict if it “finds that a
reasonable jury would not have a legally sufficient eviden-
tiary basis to find for the party
on that issue.” Fed. R. Civ. P. 50(a).

The basic determination here: the patents were valid and
infringed, but Zimmer's defense was not unreasonable, so no

For the reasons stated below, we affirm the district
court’s judgment on the various defenses of non-
infringement and invalidity that Zimmer raises across the
three asserted patents. However, we also find that each
of these defenses was not unreasonable.


As to differences in standards between courts and the USPTO,
note the text:

While persuasive, the examiner’s
proffered rejection is not on its own dispositive, in large
part because the U.S. Patent and Trademark Office (“PTO”)
and district courts “take different approaches in
determining invalidity and on the same evidence could
quite correctly come to different conclusions.”
Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1428 (Fed. Cir. 1988).

Seagate is mentioned:

To establish willful infringement, the patentee has
the burden of showing “by clear and convincing evidence
that the infringer acted despite an objectively high likeli-
hood that its actions constituted infringement of a valid
patent.” In re Seagate Tech., LLC, 497 F.3d 1360, 1371
(Fed. Cir. 2007) (en banc). “The state of mind of the
accused infringer is not relevant to this objective inquiry.” Id.
Only if the patentee establishes this “threshold objec-
tive standard” does the inquiry then move on to whether
“this objectively-defined risk (determined by the record
developed in the infringement proceeding) was either
known or so obvious that it should have been known to
the accused infringer.” Id

The CAFC noted the failure of the district court:

The district court failed to undertake an objective as-
sessment of Zimmer’s specific defenses to Stryker’s
claims. Instead, the district court’s analysis of objective
reasonableness summarily asserted that the “jury heard
testimony” that Zimmer “all but instructed its design
team to copy Stryker’s products.” Post-Verdict Order at 23.

The district court further concluded that
the “pioneering” nature of Stryker’s inventions
and the secondary considerations of non-
obviousness “made it dramatically less likely that
Zimmer’s invalidity arguments were reasonable.”
An objective assessment of the case shows that Zim-
mer presented reasonable defenses to all of the asserted
claims of Stryker’s patents.

Lawyers copying other lawyers: plus ça change, plus c'est la même chose

More than ten years ago, in the context of defending Professor Laurence Tribe against charges of plagiarism, Professor Alan Dershowitz made his famous "cultural difference" observation.  As recounted on Dean Velvel's blog in September 2004:


According to The Crimson, Dershowitz said that there is a "‘cultural difference’" between sourcing in the legal profession and in other academic disciplines. With the rest of the sentence being The Crimson’s words, albeit reflecting Dershowitz’s ideas, The Crimson wrote that "He said that judges frequently rely on lawyers’ briefs and clerks’ memoranda in drafting opinions. This results in a ‘cultural difference’ between sourcing in the legal profession and other academic disciplines, Dershowitz said."
The Globe wrote the following:
Dershowitz said yesterday that law and academia sometimes have different standards, and Harvard Law School would benefit from establishing a committee to lay out clear guidelines on attribution and the use of assistants. ‘Particularly in law schools, the rules are not clear, because there is a culture of judges and lawyers relying on the work of assistants,’ he said.
Wow! A "‘cultural difference’" between law and other academic fields. You mean, Professor Dershowitz, that because of this "‘cultural difference’" it is not okay for other professors to plagiarize, but it is okay for law professors to plagiarize? At least if they are Harvard law professors? You mean that because there is a culture of judges and lawyers using assistants’ work without attribution -- some might say they in effect steal their assistants’ work -- it is therefore okay for law professors to plagiarize from others when writing a book? You mean that because judges and lawyers use assistants’ work without attribution, the rules therefore "are not clear" for law professors when writing a book? Do you really mean these things, Professor Dershowitz? You don’t really mean them, do you? -- "Say it ain’t so, Joe." Because if it is so, you are spewing unvarnished "bovine excrement," to use a euphemism from a recent Sports Illustrated article (a euphemism which, if memory serves, was used previously by Norman Schwarzkopf)

About five years ago, there was a curious plagiarism flap between lawyers in Vermont. As recounted by IPBiz in the post
Plagiarism flap among lawyers in Vermont

During the discussion of the plagiarism by Laurence Tribe of work by a professor at the University of Virginia, fellow Harvard Law professor Allan Dershowitz presented a defense, maintaining there was a “cultural difference” between sourcing in the legal profession and other academic disciplines. That is, there was custom and practice of NOT attributing sources of copied material.

Fast forward to the year 2010, and there is an issue with the unattributed copying by one lawyer, Sarah Hofmann, the director for public advocacy of Vermont Public Service Department of text from the filing of another lawyer, David Mullett, an attorney for the Vermont Electric Cooperative and municipal electric departments.

A businessweek story quoted Brian Porto, an associate professor in the legal writing program at Vermont Law School: "If you're taking someone else's idea and not citing the person, and you're falsely suggesting that those ideas are your own, certainly within the definition of plagiarism that comes within it." One wonders why businessweek did not discuss the matter with Professor Dershowitz of Harvard Law.

Now, in March 2015, Law360 discusses another lawyer plagiarism matter.

An administrative law judge has reprimanded two Jackson Lewis PC attorneys for allegedly ripping off a large portion of a position statement filed in a case accusing their client of discriminating against noncitizen workers from a U.S. Citizenship and Immigration Services document, saying the attorneys committed “a blatant act of plagiarism.”

**See also the 2008 post on IPBiz
Do law schools promote a culture of copying?

Buzz surrounding Boeing's US 8,981,261

CNET notes:


The patent is for a shockwave attenuation system, which consists of a sensor capable of detecting a shockwave-generating explosion and an arc generator that receives the signal from the sensor to ionise a small region, producing a plasma field between the target and the explosion using lasers, electricity and microwaves.


Patent to Boeing:

US 8,981,261 B1

Scott Kieff speaks at UPenn

From a press release

On March 19, the Penn Intellectual Property Group featured a symposium on design patents and the convergence of existing intellectual property regimes. The event kicked off with keynote speaker Commissioner F. Scott Kieff L’94 of the U.S. International Trade Commission and featured a panel discussion about the past and future of design patents.