Friday, January 24, 2020

Impeachment and the Civil War

Greg Jarrett has a piece titled Under Dems’ Trump impeachment justification, Lincoln would’ve been impeached which includes a reference to Doris Kearns-Goodwin's book "A Team of Rivals":

I recently read historian Doris Kearns Goodwin’s brilliant book “Team of Rivals.” In Chapter 24, she recounts how Republican President Lincoln utilized the powers of his office to ensure that Union soldiers in the field, who vigorously supported Lincoln’s reelection in 1864, were given the chance to cast their ballots for him. Most states permitted absentee ballots for troops. But the crucial state of Indiana did not.

So Lincoln wrote General William T. Sherman encouraging him to grant his men leave to return briefly to the northern state of Indiana. “Any thing you can safely do to let … soldiers, or any part of them, go home and vote at the State election, will be greatly in point,” wrote the president. Despite the risk that this might compromise his troop strength, Sherman consented.

That issue goes to obtaining political benefit from an action.

However, the more interesting Civil War era impeachment issue was the impeachment in February 1868 of Andrew Johnson, a Democrat, for, among other things, violating the Tenure in Office Act, which prohibited the President from removing from office, without the concurrence of the Senate, those officials whose appointment required Senate approval.

See also

the post by JONATHAN TURLEY at

The Tenure in Office Act was repealed about twenty years later, and effectively declared unconstitutional in the Myers case.

As to allowing soldiers to vote, one might want to know "why" active soldiers would vote Union/Republican. The Union/Republican platform included a plank for soldier benefits, which was later somewhat adopted by the Democrats, almost as an afterthought. In the pre-August 1864 time period, Lincoln thought he was going to lose, because of the apparent candidacy of Fremont and the horrific Union casualties. Lincoln removed Blair from the cabinet, facilitating the withdrawal of Fremont. And Sherman took Atlanta. Curiously, Lincoln did not carry his birth state of Kentucky in either 1860 or 1864 (and Kentucky soldiers (unlike those of other states) voted Democrat. The governor of Kentucky backed McClellan in 1864.

See also the article by L. Ebert, Benjamin Curtis, Equivalents, And Impeachment, Intellectual Property Today, page 33 (March 1999) [available LEXIS], which includes the text:

Andrew Johnson, a Democrat and former Senator and war-time governor from Tennessee, was elected Vice-President to Abraham Lincoln on the Union ticket in 1864. Assuming the presidency only six weeks after inauguration, Johnson ultimately clashed in policy with Radical Republicans in Congress. In 1867, Congress passed the Tenure in Office Act, which although intended primarily to protect lower level patronage functionaries, barred the removal, without Senate approval, of Cabinet members during the term of the President who had appointed them.
Secretary of War Stanton, formerly a successful lawyer in Washington, D.C. n3, was serving as a conduit of infor-mation to the Radical Republicans, and Johnson wanted to remove him. Taking advantage of a provision in the Ten-ure in Office Act that allowed suspension of Stanton while Congress was not in session, Johnson replaced Stanton with Grant. However, on reconvening, the Senate refused to concur in Stanton's removal, and Johnson, on February 21, 1868, removed Stanton n4, at least on paper. Congress was quick to act.

n3 Stanton was a lead defense attorney in the trial of Congressman Daniel Sickles, accused of murdering his wife's lover. Stanton successfully utilized a defense of temporary insanity. Sickles was later a corps commander at Gettysburg (making an un-fortunate decision to advance downhill toward the Peach Orchard), and later would be involved in Reconstruction as a district military commander.
n4 Ironically, Johnson was encouraged to do this by the FAILURE of a vote on impeachment introduced by Ohio Congressman James M. Ashley. The next vote on impeachment would succeed. Separately, Grant returned the keys to the office to Stanton, and Stanton, to ensure his permanence in office, barricaded himself in the war department office. In literally living at his work-place, Stanton became the prototype for New York associates. See also, "New Lures for Burned-Out Lawyers," Wall St. Jour. (Feb. 2, 1999), B1).

In response to Andrew Johnson's impeachment on February 22, 1868 n5, a team of defense attorneys including Ben-jamin Curtis, Attorney General Stanbery, Jeremiah Black, William Evarts, and T. A. R. Nelson was formed.

n5 Congress stopped the clock to ensure the impeachment would be on Washington's birthday.

The actual trial began on March 30, 1868, with Ben Butler announcing that impeachment was a political, not a legal, proceeding. Curtis opened the case for the defense on April 9, and narrowed the eleven charges down to two: John-son's removal of Stanton and an omnibus grouping of other charges. Curtis argued that Stanton was not covered by the Tenure of Office Act, because he was appointed by Lincoln before the act was passed. If the law did apply to Stanton, then Johnson had tried and failed. In any event Johnson was within his rights because the act was certainly unconstitutional (as the Supreme Court did later find n6 ). If the act were constitutional, the House would still have to present proof that Johnson willfully intended to misconstrue and violate the act.

n6 This sub-plot is in itself interesting. The Tenure in Office Act was repealed, at the request of President Cleveland, on March 3, 1887. During the lifetime of the Tenure in Office Act, a law was passed in 1876 which covered postmasters. This law was at issue in Myers v. United States, 272 U.S. 52 (1926). The majority opinion of Chief Justice Taft discussed the Tenure in Office Act (272 US at 166-177) and found that the Tenure in Office Act of 1867 was invalid (272 US at 176). Both Justices Holmes and Brandeis dissented in Myers. An issue at stake in Myers was the general acquiescence by the Executive in the power of Congress to forbid the president alone to remove executive officers. The pending Zurko case has an issue of acquiescence by the PTO in the "clearly erroneous" standard of review.
A historian, reviewing the legal arguments, seemed uncomfortable with the concept of "argument in the alternative:"
The defense case, however, had its own weaknesses, notably that its arguments seemed patently contradictory. On the one hand, Johnson's attorneys argued that since the Tenure of Office Act did not apply to Stanton, his removal was perfectly legal, although in that case it was hard to explain why in 1867 the President had followed the letter of the law by suspending the Secretary and informing the Senate of his reasons. On the other hand, they contended that Johnson had violated the statute in order to allow the Supreme Court to rule on its constitutionality, an argument that would have allowed the President to determine which laws he was required to obey. n7

n7 Eric Foner, Reconstruction: America's Unfinished Revolution, Harper & Row, 1988, pp. 335-336.
The final vote came in mid-May, with only 35 senators voting for conviction, one short of the required two-thirds ma-jority. Seven Republicans voted for Johnson, although it was understood that a number of others would have voted for Johnson if necessary to secure acquittal. A number of these senators, as well as certain northern financial interests, were distrustful of Johnson's would-be successor, Senator Ben Wade, Senate President protem. n8 Much has been said of the vote of Kansas Republican Edmund G. Ross. However, it should be noted that there seem to be varying opin-ions on this matter, n9 with the possibility raised that Ross secured patronage posts for his friends. n10

n8 In spite of the conflict of interest, Wade voted on Johnson's impeachment.
n9 Note that there are a number of articles, of varying positions, on the Johnson impeachment, available through the internet. This observation underscores the reality that the internet features diversity as distinct from the uniformity of television. Trade-mark practitioners seeking to attract Generation Y should note this well.
n10 Mark A. Plummer, "Profile in Courage? Edmund G. Ross and the Impeachment Trial," Midwest Quarterly, (Autumn 1985), 27, 39-46; Ralph J. Roske, "The Seven Martyrs?" AHR, (January 1959), 66, 323-329.

What happened next? Johnson got the second highest number of votes in the first two rounds of the Democratic convention. Seymour was nominated by the Democrats, but lost to Grant. Johnson was later elected to the U.S. Senate from Tennessee. Stanton resigned as Secretary of War in 1868 and returned to private practice; he got the U.S. Supreme Court position he coveted, but died before serving.

Explosion rocks Houston

In covering the large explosion in Houston which happened on 24 January 2020, click2 reported:

Authorities gave an update Friday morning and said that the chemical that is coming from the explosion site is called polypropylene, which is lighter than air and will dissipate. Officials said they have been monitoring air quality and have not picked up any hazards.

Houston Police Chief Art Acevedo said that one employee is unaccounted for. The family is on the scene, but crews cannot focus on searching for the person until they have closed the valves that are still feeding the chemical compound into the damaged area.


According to Meteorologist with the Harris County Flood Control District, Jeff Lindner, the explosion was so strong it was caught on radar.

Explosion in NW Houston...radar picked up a return near the location at the same time #houwx #hounews

1 employee unaccounted for following massive explosion, chief says

keywords: Watson Grinding, Gessner Road

Thursday, January 23, 2020

Warren gets ripped in Iowa over student loan forgiveness; a need to re-do a law review article?

From the post Elizabeth Warren clashes with Iowa father who calls her student loan policy unfair :

Having waited patiently in line for a photo, he said:
“I just wanted to ask one question. My daughter is getting out of school.
I've saved all my money. She doesn't have any student loans. Am I going to get my money back?”

“Of course not,” Senator Warren replied.

“So you're going to pay for people who didn't save any money and those of us
who did the right thing get screwed,” replied the man in an infuriated tone.

Recall the debate between Biden and Warren about bankruptcy. Then compare comments made
concerning the above yahoo post such as

[Warren] does not realize that there are more people that worked hard through
college or their parents worked hard so they have no student loans than
the people that just went to party and now can not pay their debts.
Also it is part time professors like her teaching 1 class a semester while making 350K that are the problem with high tuition

with the text about the Biden/Warren debate:

To Warren, bankruptcy is fundamentally about bad luck rather than irresponsible behavior. The changes were mostly unnecessary additional burdens for struggling families that would enrich powerful special interests. Supporters of the changes, like Biden, believed that too many people were filing for bankruptcy — often people with more ability to repay their debts — a problem that was costly not just to creditors but to ordinary nonbankrupt consumers.


See also

The "deliverance" theory of Northern motivation in the American Civil War

From the post Varon: Union Forces Sought South’s Salvation in U.S. Civil War :

Varon shares the modern scholarly consensus that the Confederacy was formed to defend slavery. At the same time, she wanted to explain why the Union forces fought. Scholars have disagreed on Northern war aims, with some emphasizing that Northerners wanted to preserve the nation, while other scholars assert that the North fought to abolish slavery. Varon notes that U.S. President Abraham Lincoln, a Republican, was able to mobilize a broad coalition of Northerners and anti-Confederate Southerners, including African Americans, around a theme of “deliverance.”

“‘Deliverance’ was a key word in 19th-century Northern wartime discourse that you find appearing again and again, in all these firsthand sources,” Varon said. “Northerners believed they were fighting a war to deliver the Southern masses from the dominance of an elite slaveholding oligarchy – a ‘slave power conspiracy’ as Northerners put it, that had retarded the South’s moral and material progress.”

According to this Northern theory, elite slaveholders – who were a tiny minority of the Southern population, but held the overwhelming balance of power and wealth – terrorized, seduced and duped Southerners into seceding against their best interests.

Varon points out that Northerners underestimated how deeply white Southerners were invested in slavery, how deeply even non-slaveholders had bought into the idea that slavery was a system of social control and of economic gain that was central to their way of life.

“My challenge in the book became to explain in a sense why Northerners bought in so tenaciously to the idea that they could save the South even in the face of massive evidence that the Confederates didn’t want to be saved,” Varon said. “In a sense, the book is about a war of ideas and ideologies. I tried to explain how deliverance rhetoric fulfilled political needs, spiritual needs and emotional needs, and thereby helped Northerners sustain their morale and momentum.”


William & Mary archaeologists find Civil War-era jug believed to be rare ‘witch bottle’ on I-64

CAFC reverses SDNY in Mirror Worlds v. Facebook

The outcome in Mirror Worlds v. Facebook was that Facebook lost:

We agree with Mirror Worlds that the district court’s
judgment must be reversed. The district court relied for its
decision on an erroneous conclusion that there is no genuine dispute about certain facts.
Facebook defends the summary judgment on alternative grounds. We will not affirm
on those alternative grounds. We reverse the court’s judgment and remand for further proceedings.

As to Facebook:

Facebook provides a popular social networking service.
Several features of Facebook’s service are relevant to this
appeal. According to Facebook’s description in this case,
the “News Feed” for a Facebook user displays a variety of
items that Facebook has “deemed to be relevant” to that
user. J.A. 1104. “Timeline,” Facebook says, “focuse[s] on a
particular Facebook user,” showing “basic information
about that user, as well as actions taken on Facebook by or
directed toward that user.” Id. And “Activity Log” provides
“a list of activities that occurred on Facebook that pertain
to a particular user.” J.A. 1106.2

Generally, the content Facebook users see is an amalgamation of “objects” and “associations,” which are two
classes of data. Users, pictures, and comments are types of
objects, while associations describe the relationship between objects. For example, if user “Alice” posts a comment
on Facebook, an “authorship” association would connect Alice and the comment.

In providing content to users, both News Feed and
Timeline rely on certain “front-end” hardware and software. The evidence—when understood most favorably to
Mirror Worlds, as required when considering summary
judgment—indicates that these front-end components
include a user’s desktop computer, smartphone, or comparable device and its resident software, together with certain “web” technologies, including a PHP layer. See, e.g.,
J.A. 1483–85, 1488, 1550, 2117–18, 2132, 2422, 2599. The
two services also rely on certain “back-end” computing
equipment and associated software to which the user’s device is connected over a network such as the Internet. The
back-end infrastructure for News Feed is called “Multifeed.” The “Timeline back-end system” supports both the
Timeline and Activity Log features. In the summary-judgment proceedings, Mirror Worlds asserted that those two
back-end systems were the “computer system[s]” for purposes of the claims.


Fact discovery was not due to close until September
2018. See J.A. 1045–46, 1057, 1061. But in April 2018,
after completion of the briefing on claim construction—but
before significant expert or other factual discovery had occurred—Facebook filed a letter with the court, asking permission to file a motion for summary judgment. J.A. 1015–
17. At a status conference, Facebook argued that it had a
simple, case-ending point to make, while Mirror Worlds asserted that contention interrogatories cannot be filed under
local rules until the close of fact discovery, that it was not
accusing Facebook as a whole but had identified the two
back-end systems separately from TAO, and that the record did not even include expert disclosures or depositions.
The court granted Facebook leave to file a motion for summary judgment and set out a schedule for responses, while
allowing discovery to continue. J.A. 1065–66.

The error by the district court:

We conclude that, on the current record evidence, the
district court erred in concluding that a reasonable jury
would have to find that the Multifeed Aggregator receives
data from TAO that is not in Leaves. That erroneous conclusion was the sole basis
for the grant of summary judgment as to News Feed.

Of other matters:

First, citing Celotex Corp. v. Catrett, 477 U.S. 317
(1986), Facebook argues that it is entitled to summary
judgment under Federal Rule of Civil Procedure 56 on the
ground that Mirror Worlds failed to provide evidence that
would permit a jury to find that Leaves or TimelineDB contains every data unit received or generated by, respectively,
Multifeed or the Timeline back-end system. The Second
Circuit has explained that “when a defendant moves for
summary judgment, it is the defendant who must show entitlement to judgment, notwithstanding that, at trial, the
plaintiff will have the burden of proving every element of
its claim.” Nick’s Garage, Inc. v. Progressive Casualty Ins.
Co., 875 F.3d 107, 115 (2d Cir. 2017). “The mere assertion
by a defendant moving for summary judgment that the
plaintiff ‘has not produced any evidence’ to support an essential element of the plaintiff’s claim does not satisfy the
burden that Rule 56(a) imposes.” Id. “[U]nless the moving
defendant cites portions of the record that show its entitlement to judgment, an assertion by the defendant that the
plaintiff ‘has not produced any evidence,’ without more,
does not show that the plaintiff has insufficient evidence.”
Id. at 115–16.

Facebook, in its summary-judgment motion, did not
show that Mirror Worlds “cannot produce admissible evidence to carry
its burden” to show that Leaves or TimelineDB contains every data unit. Fed. R. Civ. P. 56(c)
advisory committee’s note to 2010 amendment. “A plaintiff
is under no obligation to ‘produce’ its evidence prior to trial,
unless such an obligation arose in response to a discovery
demand (or a court order) requiring the plaintiff to set forth
the evidence supporting its claim.” Nick’s Garage, 875 F.3d
at 115. As far as we have been shown, Facebook has not
made a discovery demand that Mirror Worlds identify all
its evidence for the “every data unit” limitation. Given that
discovery is still open, Mirror Worlds may still muster evidence to prove its claim. Facebook has not otherwise
shown that sufficient evidence cannot be produced.

Tuesday, January 21, 2020

Another list of best Civil War films

Around 19 Jan 2020, Jordan Light posted The Nine Greatest Civil War Movies of All-Time , with the movie "Glory" being number 1.

Yes, "The Good, the Bad, and the Ugly" makes number 8, just ahead of "Gone with the Wind," (7) and "The Horse Soldiers" (5).

Missing from the list was Buster Keaton's 1926 film "The General," considered by some to be Buster Keaton's best film. Also missing was "The Great Locomotive Chase" (1956), with Fess Parker as James Andrews. Also missing is "Lincoln," with Daniel Day Lewis, as well as two other Eastwood movies, The Beguiled and The Outlaw Josey Wales. Yes, The Birth of a Nation (1915) was also missing.

Algentech's U.S. patent number 10457950 related to homologous recombination


Algentech's invention optimizes the cellular process known as homologous recombination. In order to precisely insert or modify a genetic sequence, existing technologies use nucleases that introduce specific breaks in the target DNA and then rely on the cellular machinery to complete the editing process. The mechanism is simple: the DNA fragment (donor DNA) carrying the genetic modification or sequence to be inserted has at its ends sequences homologous to the DNA strand to be modified. This similarity around the cutting site is recognized by the cellular machinery: the strands assemble. The natural DNA repair process then repairs the cut zone, using the donor DNA fragment as a matrix, inserting it into the target DNA. However, the effectiveness of homologous recombination repair remains low.


ALGENTECH's invention significantly increases the efficiency of the homologous recombination process by producing two modules: (1) a multi-domain protein capable of binding to the fragment to be inserted and to the target DNA; (2) a donor DNA amplification vector that relies on a viral replication system. The technique produces a large amount of donor DNA strands, thus multiplying the efficiency of modifications introduced: a technological leap that finds applications in crop improvement, gene therapy and synthetic biology.

Virnetx loses appeal on Jan. 21, 2020 in 2019-1043 via Rule 36 Judgment

Virnetx lost its Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. 95/001,746.


Sunday, January 19, 2020

The Vicksburg Campaign of the Civil War in January 1863

On Jan. 20, 1863, the 69th Indiana regiment of the Union Army that trained in Richmond, Indiana first laid siege to Vicksburg in the Civil War.

From the diary of Private John C. Kitselman :

"The latter part of the winter of 1862 and 1863 may truthfully be called the ‘winter of our discontent.’ Rebellion and treason were running at the high-water mark. From the 20th of January to the 31st of March, the 69th passed through what was in my opinion the most soul-trying experience of its history, though during that time we never fired a shot at the enemy. But there were other battles to be fought rather than those of musketry and canon. Each of us had to fight a battle within his own breast against discouragement, and I might say death, for death was sure to come, and soon, if one gave up to the influences which at that time surrounded and imperiled us.

Disease was a bigger problem than the Confederates:

The 69th Indiana, one of six regiments formed in Richmond and composed mostly of Wayne County volunteers, by war’s end had casualties of three officers and 77 enlisted men killed and mortally wounded, and three officers and 248 enlisted men dead from disease. This was one-third of total initial enlistment.)


Strictly speaking, the siege of Vicksburg, as distinct from other military operations, did not begin until May 25, 1863 when Lt. Col. John A. Rawlins issued Special Orders No. 140 for Grant. writes

On May 25th, Grant decided to besiege the city. With no reinforcements coming, food and supplies nearly gone, and after holding out for more than forty days, Pemberton finally surrendered on July 4th. Grant's Vicksburg campaign was one of the most brilliant of the war.

When was the first crossover in live action television?

In a 9 Jan 2020 post on Style Our Life titled Fun Facts About the 1960s "Batman" Series You Probably Didn't Know, there is an assertion that the first "live action" crossover involved the Green Hornet appearing in an episode of Batman:

Crossovers in the film industry usually include putting two or more fictional characters,
universes, or contexts into one story. This can be presented and organized in many ways.

But what’s really cool is that the Batman TV series was the first time this had been done in the
history of live-action television shows.

The episode in question was "The Spell of Tut," which had cameos from Van Williams and
Bruce Lee as the Green Hornet and Kato from the '60s TV show Green Hornet.

This assertion is untrue.

First, as to a definition of "live action" : Live action is a form of cinematography or videography that uses photography instead of animation.

Second, as to "fictional" characters, one must distinguish a cross-over in which there is an appearance of an actor, who plays a fictional character, in his identity as an actor, rather than in his identity as the fictional character. An example of the former is the appearance by George Reeves, as the actor who plays Superman, in Lucy and Superman, which first aired on January 14, 1957. Another example is "The Kookie Caper" episode of "77 Sunset Strip," which first aired October 9, 1959, in which Will Hutchens ("Sugarfoot") appears as the actor who plays Sugarfoot.

In the Batman episode referenced by "style our life," which is "The Spell of Tut" [first aired Sept. 28, 1966] the Green Hornet and Kato appear as fictional characters. The real star of the Tut episodes was the over-the-top acting of Victor Buono. As to "The Spell of Tut," one reviewer wrote:

The episode's Batclimb is a surprising twofer, Van Williams as The Green Hornet and Bruce Lee as Kato, eventually to receive an entire two part crossover, "A Piece of the Action"/"Batman's Satisfaction," but best of all is Robin's reaction to seeing such odd looking characters in Gotham City: "gosh Batman, what are they dressed like that for?"

However, cross-overs of fictional characters in live action TV had appeared long before 1966. In an episode of The Bob Cummings Show which aired March 21, 1957 titled "Bob Meets the Mortons," fictional character Bob Collins meets fictional character Blanche Morton of The Burns and Allen Show. [In fact, Bob deals with Gracie Allen and Blanche Morton; on June 3, 1958, in the episode Colonel Goldbrick, the fictional Bob Collins meets the real person Clarence Shoop, who portrays a major general, even though at the time Shoop was a one star general. Fictional or real character?]

Someone named joe_538 had compiled a list on imdb
TV Crossovers

These include, but are not limited to:

"Lucy makes room for Danny" (1958)
"Price on his head" (1958 episode of "Sugarfoot" with the character "Bart Maverick")
"Malihini Holiday" (1959 episode of "Hawaiian Eye" with the character "Stu Bailey" of "77 Sunset Strip.")
"Hadley's Hunters" (1960 episode of "Maverick" with both Cheyenne and Sugarfoot)

"Four Feet in the Morning" (1963 "double" cross-over between "Dr. Kildare and "The Eleventh Hour"). Of "The Eleventh Hour," the two seasons [1962-1964] featured Jack Ging as Dr. Paul Graham, a younger psychologist, working under the direction of elder psychiatrists - first played by Wendell Corey, and later Ralph Bellamy. The first year focused on Dr. Theodore Bassett [Corey] and court cases. A darker "Eleventh Hour" appeared on television in 2008-2009, with Dr. Jacob Hood (played by Rufus Sewell) saving the world from deadly scientific experiments, poisoners, rare diseases, and environmental hazards. One notes the differences in focus between 1963 and 2008.

IPBiz had commented on one episode of the Sewell series
"Eleventh Hour" depicts evil university/industry cabal in biotech

Of relevance to that episode, note the headlines at The Tampa Bay Times on 19 January 2020:

Report: Moffitt doctors failed to disclose ties

The "Thousand Talents Program" deposited money into their personal accounts in China


[researchers] would steal ideas from peer-reviewed proposals that originated in the U.S. and were
funded by U.S. agencies.


[a quote by Daniel Sullivan]: "Lawyers make you anxious. That is their job."


Thursday, January 16, 2020

The TODAY show of NBC began on January 14, 1952

The Today show on NBC, hosted by Dave Garroway, first was shown on television on Monday, January 14, 1952.
The first variant had poor ratings, but on February 3, 1953, Garroway's "co-host" became a chimpanzee named
J. Fred Muggs.

MAD Magazine in issue No. 26, published November 1955, did a parody, in which the Garroway character [ "Garrowunway" ] is
finally replaced by the chimpanzee character ["Gluggs"]. Muggs literally painted the cover of Mad No. 38 published March 1958.

In terms of legal issues, when the contract of Muggs was terminated, his handlers, Mennella and Waldron, sued an employee of NBC, for ruining the chimps career. As to the appellate disposition of this case, see: Muggs Associates v. Auerbach, Appellate Division of the Supreme Court of New York, First Department, Feb 6, 1962 15 A.D.2d 743 (N.Y. App. Div. 1962)

The problem between Muggs Associates and Auerbach arose because Auerbach was warning potential investors in Muggs Associates that NBC/Auerbach held a copyright and proprietary interest in certain works involving J. Fred Muggs.

Procedurally, Muggs Associates filed a complaint in New York Supreme Court, New York County, Special Term, part I, seeking among other things, a declaratory judgment that Auerbach had no intellectual property interest in certain (proposed) films involving J. Fred Muggs. Auerbach moved to dismiss the complaint but the Special Term judge denied the motion and scheduled trial. Auerbach appealed.

The appellate brief for Auerbach/NBC, done by Albert Brodkin in December 1961, reveals some interesting intellectual property issues. The copyright matters in this case were under common law, not under federal statutory copyright law. Brodkin relied heavily on Palmer v. DeWitt, 47 N.Y. 532. There is a quote of Justice Holmes and a reference to a Mark Twain case. An important factual issue was that the complaint never stated, as a matter of fact, that Brodkin had no intellectual property interest.

Auerbach prevailed on appeal. The reported decision states:

However, there is no allegation that the defendant [Auerbach] does not have such a copyright and proprietary interest.
While the complaint does allege that the plaintiff is the "owner" of the proposed series of shows,
such allegation is not the equivalent of an allegation that the defendant has no "copyright or proprietary interest" therein.
Absent such an allegation the complaint must fall.

By the time of the appellate decision, both Muggs and Garroway (who left TODAY on June 16, 1961) were no longer on TODAY. Garroway did appear on the 30th anniversary show of TODAY, on January 14, 1982

As to the time period, on Tuesday, February 6, 1962, the national news slots for both Cronkite and Huntley/Brinkley were 15 minutes long, beginning at 7:15pm. CBS ruled Tuesday night television, with Red Skelton, Jack Benny, and Gary Moore. ["The Beverly Hillbillies" was the number one show.] John Glenn would become the first US astronaut to orbit the earth, two weeks later, on February 20, 1962.

Also, the classic episode of The Twilight Zone "The Shelter" first aired on September 29, 1961. Construction of the Berlin Wall began August 13, 1961.

See also 7 AD2d 633:

Carmine Mennella et al., as Copartners Doing Business under the Name of J. Fred Muggs Enterprises, Respondents, v. Dave Garroway et al., Appellants

Appellate Division of the Supreme Court of the State of New York, First Department.

November 25, 1958

Order unanimously affirmed, with $20 costs and disbursements to the respondents.

No opinion.

AND 8 A.D.2d 800 (1959)

Mixed outcome in Lego v. Zuru

The result:

We find that the district court did not abuse its discretion in entering a preliminary injunction with respect to
the ZURU Action Figures for their alleged infringement of
LEGO’s Minifigure Copyrights. However, we find that the
district court abused its discretion in entering preliminary
injunctions with respect to the Max Build More Bricks and
MAYKA Toy Tape after incorrectly determining, on the record before it, that LEGO would likely suffer irreparable
harm. Accordingly, the order granting a preliminary injunction is


Of the problematic decision by the district court:, which was
vacated by the CAFC:

ZURU alleges that the district court abused its discretion
in finding that LEGO would likely suffer irreparable
harm because: (1) there is no evidence that the MAYKA
Toy Tape is lacking in quality or in any way inferior to
LEGO products; (2) the LEGO witness testimony and one
customer comment on which the court relied was not directed
to the MAYKA Toy Tape; and (3) LEGO does not sell
a product similar to the MAYKA Toy Tape. We agree.

Monday, January 13, 2020

Judge Newman issues stirring dissent in Biodelivery Sciences

On 13 January 2020, the CAFC denied a petition for en banc review in Biodelivery v. Aquestive:

The petition for panel rehearing is denied.
The petition for rehearing en banc is denied.
The mandate of the court will be issued on January 21,

From the beginning of Judge Newman's dissent:

The court has declined to rehear this appeal en banc. I
write because of the significance of the balance of agency
and judicial authority, and the rules of procedural law in
the administrative state.

From the end of Judge Newman's dissent:

Of further concern is the PTAB’s contravention of the
purpose of the America Invents Act, to provide agency expertise
to resolution of patentability issues. See H.R. Rep.
No. 112–98, pt. 1, at 48 (2011) (“[T]he purpose of the [postgrant
review proceedings is to] provid[e] quick and cost effective alternatives to litigation.”); 157 Cong. Rec. S1352
(daily ed. Mar. 8, 2011) (statement of Sen. Udall) (“These
proceedings are intended to serve as a less-expensive alternative to courtroom litigation and provide additional access
to the expertise of the Patent Office on questions of patentability.”). On this background, the PTAB’s explanation of
agency efficiency and cost is curious, as litigation cost was
a primary concern of the America Invents Act.

ARM loses at the CAFC; judicial disagreement over imputation of a negative claim limitation


This case involved each party suing the other for infringement of the patent of the party.

On one side, ARM owns "the ’320 patent [US 8,720,320], which describes an adaptor
device for use with Keurig® single-brew coffee machines or
similar brewers. The ’320 patent describes single-brew coffee machines
as generally accepting one of two cartridge
formats: “pods,” which are “small, flattened disk-shaped filter packages of beverage extract” and “larger cup-shaped
beverage filter cartridges.” ’320 patent, col. 1, ll. 17–21. "

The jury found that claims 8 and 19
of the ’320 patent were invalid for obviousness, and the CAFC,
by a 2-1 vote, affirmed.

The key point in the split vote was over the construction of the term "passageway," and, within this,
was the adoption by the majority of a negative limitation.

Judge Reyna began his partial dissent:

The district court erred in its construction of “passageway”
by rewriting the claims, including adding a negative
limitation that is unsupported by the specification
. The
district court further erred when it granted summary
judgement of noninfringement and an award of attorney’s
fees based on its erroneous construction. I would vacate
the district court’s grant of summary judgement, reverse
the award of attorney’s fees, and remand for further proceedings.

Judge Reyna:

The district court construed the term “passageway” as
“a narrow space of some depth or length connecting one
place to another.” J.A. 12. This construction is not supported by the specification.
The district court also interpreted “passageway” to exclude a receptacle “that utilized
a broad, thin mesh.” Id. This exclusion was raised sua
sponte by the court and not argued by either party. As
shown below, the district court relied on its construction of
passageway to base, erroneously, its grant of summary
judgment and attorney’s fees.
To properly determine the meaning of a claim limitation, a court must consider the claim term in view of the
specification. Phillips v. AWH Corp., 415 F.3d 1303, 1315
(Fed. Cir. 2005) (en banc) (quoting Markman v. Westview
Instruments, Inc., 52 F.3d 967, 979 (1996)). A claim term
carries its ordinary meaning “unless the patentee unequivocally imparted” a new or different meaning or “expressly
relinquished claim scope during prosecution.” Omega
Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1322-23 (Fed.
Cir. 2003) (citing Teleflex, Inc. v. Ficosa N. Am. Corp., 299
F.3d 1313, 1325–26, 63 USPQ2d 1374, 1380–81 (Fed.
Cir. 2002)).

Here, the district court’s construction of “passageway”
to mean a “narrow space of some depth or length connecting one place to another” is
not supported by the specification. Unlike other portions of its claim construction order
where the district court refers to the claims, written description, figures, and prosecution
history to support it construction (see, e.g., J.A. 7-8, 9-11), the district court fails to
identify any support for its construction of “passageway.”
Instead, the district court construed “passageway” “in light
of the intrinsic evidence.” J.A. 12. Neither the claims nor
the written description, however, impose dimensional limitations (i.e., narrowness, length, or depth)
on “passageway.” While the specification describes a “passageway” on
sixteen occasions, it only twice describes exemplary diameter and length parameters. ’320 patent col. 4 ll. 37-39,
col. 5 ll. 28-30. Those examples alone cannot limit the
claimed invention as a whole. See, e.g., ScriptPro LLC v.
Innovation Assocs., Inc., 833 F.3d 1336, 1341 (Fed. Cir.
2016) (“[A] specification’s focus on one particular embodiment or purpose cannot limit the described invention
where that specification expressly contemplates other embodiments or purposes.”). On this basis alone, the district
court’s construction of “passageway” is erroneous.

Of the "negative limitation" issue:

The district court also erred by interpreting “passageway” to exclude a receptacle
“that utilized a broad, thin mesh.” This
aspect of the district court’s construction constitutes a negative claim limitation
that is unsupported by the specification.
Negative limitations added during claim construction
must find support either in the specification or the prosecution history.
Omega Eng’g, Inc., 334 F.3d at 1322-23. A
specification adequately supports the addition of a negative
limitation where the limitation is expressly disclaimed or
where “independent lexicography in the written description” justifies adding it. Id.
In Omega Eng’g, Inc., the district court construed “periphery” to mean “projection of the
laser light toward the surface,” but the court added that
periphery “does not encompass light striking the center or
interior portion of the energy zone.” Id. at 1321. On appeal, we rejected that negative limitation, reasoning that
there was no “express disclaimer or independent lexicography in the written description that would justify adding
[it].” Id. at 1322-23. We concluded that the negative limitation was not inherent to the claim term by relying on its
dictionary definition. Id. at 1322. We also concluded that
the negative limitation had no support in the prosecution
history. Id.; see also id. at 1327. In Linear Tech. Corp. v.
Int’l Trade Comm’n, we similarly reversed a claim construction that
incorporated an unsupported negative limitation. 566 F.3d 1049, 1059-60 (Fed. Cir. 2009).
The Administrative Judge (“AJ”) construed the phrase
“monitoring the current” to exclude “monitoring voltage.” See id.
at 1059. We found that the AJ erred by adding the negative
limitation because the specification provided no support for
it. Id. at 1060 (citing Omega Eng’g, Inc., 334 F.3d at 1323).

Here, the district court’s exclusion of “a broad, thin
mesh” from the meaning of “passageway” writes into the
claim an unsupported negative limitation. Neither the
claims nor the written description of the ’320 patent mention a mesh, let alone a broad, thin mesh, and there is no
express disclaimer supporting the negative limitation.
There also is no independent lexicography in the written
description upholding the negative limitation. The ’320 patent includes
no definition of “passageway.” And the dictionary definition of “passage”—“a way of exit or entrance:
a road, path, channel, or course by which something
passes”1—does not inherently require the exclusion of a
broad, thin mesh. Nor is there any record evidence to suggest that
the prosecution history supports the exclusion.
The only record evidence, or mention of “broad, thin mesh”
is in relation to Eko Brands’ accused product.

Footnote 1 of the dissent:

See Merriam-Webster’s Collegiate Dictionary
(11th ed. 2003) (defining “passageway” as “a way that allows passage”).

Footnote 6 of the majority:

We note that a legally erroneous jury instruction
can only be harmless error if it “could not have changed the
result.” Verizon, 503 F.3d at 1307 n.7 (quoting Ecolab, Inc.
v. Paraclipse, Inc., 285 F.3d 1362, 1374 (Fed. Cir. 2002)).

Friday, January 10, 2020

Personal Audio loses at the CAFC

The outcome:

Personal Audio appeals. To the extent that Personal
Audio challenges the Board’s final written decision, the district court lacked jurisdiction to consider the challenges,
and we have no jurisdiction to review them on appeal from
the district court’s judgment. The exclusive avenue for review was a direct appeal from the final written decision.
To the extent that Personal Audio challenges the district
court’s determination of the consequences of the affirmed
final written decision for the proper disposition of this case,
Personal Audio conceded that governing precedent required judgment for CBS. We therefore affirm the district
court’s judgment.

Of note:

Personal Audio does not challenge the IPR scheme or
even a particular provision of that scheme, or regulation
under the scheme, on its face. It alleges injury only from
the particular final written decision of the Board that ruled
claims 31−35 of its ’504 patent unpatentable. Personal Audio presents challenges of two types involving the Board
decision, while invoking four constitutional bases and one
non-constitutional basis. First, Personal Audio presents
various challenges to the lawfulness of the Board’s final
written decision itself. Second, Personal Audio challenges
the district court’s ruling on the consequence of the
affirmed Board decision for this case—namely, that termination of Personal Audio’s assertion of the patent claims in
this still-live patent case is a required result of the affirmed
Board decision, even though the jury rendered a verdict in
Personal Audio’s favor.

We do not have jurisdiction to hear challenges of the
first type, which squarely attack the validity of the Board’s
final written decision. The exclusive vehicle for bringing
such challenges is a direct appeal to this court from the final written decision. As to challenges of the second type,
Personal Audio forfeited any argument that existing precedent allows this panel to do anything but reject them. We
therefore affirm the district court’s judgment for CBS.