Tuesday, May 31, 2016

Innovative Wireless Solutions loses appeal at CAFC

The outcome of the Ruckus Wireless case:

Innovative Wireless Solutions (“IWS”) appeals the final
judgment of non-infringement of the district court in
the Western District of Texas. IWS challenges the district
court’s conclusion that the asserted patent claims are
limited to wired rather than wireless communications.
Because we find no error in the district court’s construction,
we affirm.


The canons of claim construction provide additional
reason to limit the scope of the claims to wired communication.
If, after applying all other available tools of claim
construction, a claim is ambiguous, it should be construed
to preserve its validity. Phillips, 415 F.3d at 1327. Because
the specification makes no mention of wireless
communications, construing the instant claims to encompass
that subject matter would likely render the claims
invalid for lack of written description. See Gentry Gallery,
Inc. v. Berkline Corp., 134 F.3d 1473, 1480 (Fed. Cir.
1998) (holding that a claim “may be no broader than the
supporting disclosure”). The canon favoring constructions
that preserve claim validity therefore counsels against
construing “communications path” to include wireless

We conclude that no intrinsic or extrinsic evidence
suggests that “communications path” encompasses wireless
communications. Accordingly, we affirm the district
court’s claim constructions and final judgment of noninfringement
based thereon.

Monday, May 30, 2016

Caltech sues Apple!

See the post pat Appleinsider: Caltech sues Apple & Broadcom over alleged Wi-Fi patent infringements

link: http://appleinsider.com/articles/16/05/30/caltech-sues-apple-broadcom-over-alleged-wi-fi-patent-infringements

There is a New Jersey connection. The first named inventor [Hui Jin] of Caltech's 7,116,710 has a listed address in Glen Gardner, NJ.

Of the '710 patent, note: The U.S. Government has a paid-up license in this invention and the right in limited circumstances to require the patent owner to license others on reasonable terms as provided for by the terms of Grant No. CCR-9804793 awarded by the National Science Foundation.

As to related cases: This application claims priority to U.S. Provisional Application Ser. No. 60/205,095, filed on May 18, 2000, and to U.S. application Ser. No. 09/922,852, filed on Aug. 18, 2000 and entitled Interleaved Serial Concatenation Forming Turbo-Like Codes.

The "background" of '710 states:

Properties of a channel affect the amount of data that can be handled by the channel. The so-called "Shannon limit" defines the theoretical limit of the amount of data that a channel can carry.

Different techniques have been used to increase the data rate that can be handled by a channel. "Near Shannon Limit Error-Correcting Coding and Decoding: Turbo Codes," by Berrou et al. ICC, pp 1064 1070, (1993), described a new "turbo code" technique that has revolutionized the field of error correcting codes. Turbo codes have sufficient randomness to allow reliable communication over the channel at a high data rate near capacity. However, they still retain sufficient structure to allow practical encoding and decoding algorithms. Still, the technique for encoding and decoding turbo codes can be relatively complex.

A standard turbo coder 100 is shown in FIG. 1. A block of k information bits is input directly to a first coder 102. A k bit interleaver 106 also receives the k bits and interleaves them prior to applying them to a second coder 104. The second coder produces an output that has more bits than its input, that is, it is a coder with rate that is less than 1. The coders 102, 104 are typically recursive convolutional coders.

Three different items are sent over the channel 150: the original k bits, first encoded bits 110, and second encoded bits 112. At the decoding end, two decoders are used: a first constituent decoder 160 and a second constituent decoder 162. Each receives both the original k bits, and one of the encoded portions 110, 112. Each decoder sends likelihood estimates of the decoded bits to the other decoders. The estimates are used to decode the uncoded information bits as corrupted by the noisy channel.

Sunday, May 29, 2016

Hickenlooper on Face the Nation: an inaccurate (and Whiggish) view of the cola wars?

Back in the year 2012, Colorado governor John Hickenlooper, in the context of a Presidential debate at the University of Denver, stated

“I think the attack ads, the just beating each other to a pulp, that gets put aside and that’s good. You never see it in private industry. Coke doesn’t do attack ads against Pepsi because then Pepsi would attack Coke and then Coke would counter attack and then people were buy fewer soft drinks. You dminish the product category. What we’re doing is diminishing the product category of democracy,” said Hickenlooper. “People don’t watch the news, they don’t read the newspaper and they don’t vote. This is our great experiement, the world’s great experiment, democracy. We’ve got to make sure we don’t turn people off.”

link: http://denver.cbslocal.com/2012/10/03/gov-hickenlooper-says-debate-will-define-denver/

Note also the 2014 post: John Hickenlooper remains silent as attack ads boost campaign
link: http://blogs.denverpost.com/thespot/2014/10/02/hickenlooper-remains-silent-negative-ads-boosting-campaign/113403/

Fast forward to May 29, 2016, and Hickenlooper brings up the same Coke/Pepsi story on "Face the Nation."

One wonders if Hickenlooper was around for the "The Pepsi Challenge," the "New Coke" story and Roger Enrico's book: The Other Guy Blinked: How Pepsi Won the Cola Wars.

Or, the 1996 article in Fortune: How Coke is Kicking Pepsi's Can.

Or the "cheatin' heart" Pepsi commercial:

Whether attack ads are good or bad is one thing, but to say "private industry" never does attack ads is simply wrong. Attack ads
existed in the cola wars (and elsewhere in private industry) and there is no evidence of an inevitable progression and improvement.

**Just as a point on the power of advertising, from a post about the "Twentieth Century Limited" vs. the "Broadway Limited":

Why this difference?

It certainly is not due to superior equipment because the equipment is identically the same. It is not due to greater comfort, for if anything, it is more comfortable to travel on the Broadway because it is not crowded. You do not have to fight your way through a crowd to get into the diner, nor walk through an endless maze of sleepers to reach the observation car, only to find every seat taken. On the Broadway there is always plenty of room in the library car and it is seldom that you cannot get a seat on the observation platform.

Then why is it?

The answer is ADVERTISING.

The Century has been advertised from hill to hamlet the country over.

When the Century leaves the station in every seat there is a stamped, colored postcard of the “Finest Train in the World,” ready for you to mail to one of your friends, and you may be sure that nine-tenths of them are mailed. You can always think of some excuse to let some one know that you making the trip to New York on the Century.

The Pennsylvania Railroad crosses the AIIegheny Mountains. The New York Central travels along the valleys of the Hudson and Mohawk Rivers, but even such virtues as are attributed to the road-bed of the latter, because of the “sea-level route,” are largely imaginary and the result of advertising

link: http://cs.trains.com/ctr/f/3/t/256171.aspx

CBS Sunday Morning on May 29, 2016: Memorial Day weekend

Charles Osgood introduced stories, noting Memorial Day weekend was well underway. Chris van Cleve did the cover story on road rage.1 in 3 people engage in road rage. Anthony Mason on the Monkees. Lee Cowan on reconciliation and return as to Japanese/World War II. Rita Braver on Jane Krakowski. Second Banana. Conor at Zion National Park. Headlines: Tropical Depression Bonnie--lots of rain. Heavy rain between Austin and Houston. Weather: 80s in northeast.

The road rage clip starts with an incident in Houston, Texas. AAA finds that half drivers think aggressive driving a problem. 1739 deaths. Mike McClosky is a professor at Temple University. Not like in grocery store, when someone cuts in express. 33.9 million Americans will hit the road this weekend. One in three drivers engage in some form of road rage. Examples with bicycle riders. In LA, ego is attached to vehicle. Blog: "L.A. Can't Drive" by Mike Chen. A lot of anger out there. To avoid rage: give yourself enough time to get to destination. Take a deep breath. Stevie van Arsdale works with ROARR (reaching out against road rage.

Second, Zion National Park. 1901, Muir's essay on national parks. 305 million saw national parks in 2015. Jeff Brady Bob at Zion National Park. Last five years 35$. Five national parks in Utah. The parks have become bucket list destinations. Last Memorial Day, Arches entrance shut down for two hours. Carrie Cahill of park service planning division. Possibility of permits or timed entry reservations.

Pulse: use of atomic bomb on Japan. 2015. 43% approve 44% disapprove

Almanac. May 29, 1914. Liner Empress of Ireland crashed in the St. Lawrence River. Empress sank in just 14 minutes. 1012 people lost their lives. Timewise, sandwiched between the Titanic and Lusitania disasters. Wikipedia notes: The ship reached Pointe-au-Père, Quebec (or Father Point) near the town of Rimouski in the early hours of 29 May 1914, where the pilot disembarked. Empress of Ireland resumed a normal outward bound course of about N76E, and soon sighted the masthead lights of Storstad, a Norwegian collier, on her starboard bow at several miles distant.

Rita Braver interviews Jane Krakowski. She even roller skates. 1963 show revival of "She Loves Me." She is now 47. Unbreakable Kimmy Schmidt ( Jacqueline White, ). The Barn Theater near Parsippany, NJ. Played "Tiny Tim." At 14, famous line in Vacation. Jane prides herself on her "Jersey Moxie." Played in Starlight Express. In 1997, Ally McBeal (Elaine Vassal ). The face bra.

Osgood on lifeguards. Our superheros by the shore. 95,000 rescues last year. Headley and Jeffries first lifeguards in 1893.

Osgood notes Obama visit to Japan. Lee Cowan talks about return of flags. Glenn Stockdale of Billings, Montana. His son Terry went through his footlocker, and found Japanese flags. Send flags back to Japan. Father Glenn said no. Leland Bud Lewis. 41st infantry division. Returning the flags as closure; you can't keep hating people. Keko in Washington, obone. So far, re-united about 60 flags. Yosoguso Kishi was owner of a Stockdale flag. Terry wanted to deliver flag personally in Japan. "Their father coming home."

Steve Hartman on Viet Nam veteran. John Colone. February 19, 1968. Shot three times and put in body bag. Curtis Washington. Tested the plantar reflex. John Cologne came back from the dead. 8 soldiers in platoon died that day. Now, John is asking others to adopt a Viet Nam veteran.

Anthony Mason on the Monkees. Peter Tork heard about audition from Stephen Stills, who was passed over. Brought the force of their characters. Monkees butted heads with Don Kirschner. This is the record; we don't need you. Fans wanted to see the Monkees live.
Third album, Headquarters, was their own. The pre-fab four. Like Leonard Nimoy really becoming a Vulcan. Nesmith started his own band. Tork did so in Connecticut. Dolenz and Tork are on tour for the 50th anniversary. New record is called "Good Times." Davy was the youngest, and went first. Daydream Believer. We'll tour until one of us drops, and then the other will tour as the Monkee.

Jan Crawford on Mitch McConnell. The face of obstruction? Book: "The Long Game." For most of us, success is the long road.
Had polio as a child. At age 13, moved to Louisville. "McConnell for President." Forty years in elective office. Alma mater: University of Louisville. Married Chao in 1993 on Ronald Reagan's birthday. McConnell says: This is no where near the most divisive period in American history. There are constraints. McConnell has warm words for Biden. Of Obama, it is grating to be lectured to. McConnell will not budge on Garland nomination. McConnell is now 74 years old. America is full of stories like mine. America is full of opportunities for those who don't quit.

David Edelstein on Alice, a big nothingburger. Movie: Weiner, on his mayoral bid. More like the Titanic. It's horrible, but you have got to watch. He is not a confident liar. Oscar Wilde: gossip made tedious by morality. "Really creepy."

Tuesday: Villanova basketball team at White House. Friday: Matt Damon gives commencement address at MIT.

Next week: James Patterson.

Moment of nature not mentioned, but we leave you at Marietta National Cemetery

One recalls another May 29 anniversary:

On May 29, 1922, the United States Supreme Court ruled that organized baseball was not a business, but rather a sport, and thus did not violate antitrust laws.

In terms of issues about "venue selection," the plaintiff Federal League selected the court of Judge Kenesaw Mountain Landis, because of his reputation as a trust buster, but not considering that Landis was a big fan of the Chicago Cubs.

Also, on May 29, 1894, the guitar-zither was patented as US 520651.

Anton Karas used a concert zither for the theme in the 1949 movie The Third Man.

**Of something that happened on May 29, 2016

Vice President Joe Biden and former House Speaker John Boehner were both present at Notre Dame University's commencement ceremony on May 29 during which they shared the 2016 Laetare Medal.

Saturday, May 28, 2016

Pooley on the Gurry matter at WIPO

From Fox News:

“It's past time for all this craziness to stop,” declared James Pooley, a U.S. patent attorney and former top WIPO official who launched a formal complaint against Gurry last year, which led to the WIPO director general’s investigation.

“WIPO is an agency owned by the Member States who created it,” Pooley added in a statement to Fox News. “They are Mr. Gurry's employer, entitled to know the facts of his behavior so that they can make an informed decision about what to do. For the sake of the witnesses, of the decent and dedicated WIPO staff, and of WIPO's integrity as an institution, the Member States need to act now to regain control.”

The fact is, however, that Gurry’s ability to surprise, outmaneuver and stonewall WIPO’s supposed nation-state owners over the past several years has provided numerous examples of the profound lack of control exercised by countries over supposedly subordinate U.N. institutions—and the ability of U.N. bureaucrats to make up their own rules and methods of behavior.

link: http://www.foxnews.com/politics/2016/05/27/patent-scandal-us-outmaneuvered-on-un-agency-investigation.html

Chronicle of Higher Education: "Another reason for the chronic plagiarism is the attitude that it doesn't matter"

Vincent Moore writing Playing Dirty in the War on Plagiarism states

Another reason for the chronic plagiarism is the attitude that it doesn't matter. I've been told by employees of the local copy shop that more than one student has had a paper faxed to them by their friends or parents. I asked the copy shop workers, who were also students at the college, why they didn't report this breach of the honor code, and they said they didn't know it was wrong and they certainly didn't think it was their responsibility. In other situations, students have said that they knew it was wrong, but insisted that it wasn't so bad and that, besides, everyone is doing it, and they'll never do it again. Right.

One observes that Joe Biden was caught plagiarizing a paper as a 1L at Syracuse Law School, given an F, and forced to re-take the course. Biden went on to become a U.S. Senator and then Vice-President.

As to --the attitude that it doesn't matter -- such attitude has existed for a LONG time.

Separately, from blawgsearch on 28 May 2016:

Friday, May 27, 2016

ARUNACHALAM case informs practitioners of "what to do" following a new ground of rejection

Dr. Lakshmi Arunachalam owns U.S. Patent No.
5,778,178, which has been undergoing reexamination
since November 2008. In September 2014, the Patent
Trial and Appeal Board affirmed the rejection of claims 9–
16, but designated a new ground of rejection for claim 16.
Dr. Arunachalam elected to reopen prosecution of the
claims, after which the examiner issued a final rejection
in June 2015. Rather than appeal the examiner’s final
rejection to the Board, Dr. Arunachalam filed the instant
appeal. Because we lack jurisdiction to consider non-final
appeals from the Patent Office, we dismiss for lack of

As to "practice pointers"

“We have held that § 1295(a)(4) should be read to incorporate
a finality requirement.” Loughlin v. Ling, 684 F.3d
1289, 1292 (Fed. Cir. 2012) (citing Copelands’ Enters., Inc.
v. CNV, Inc., 887 F.2d 1065, 1067–68 (Fed. Cir. 1989) (en
banc)). Our adoption of a finality rule “finds strong support
both in the tradition of the federal courts system and
in sound public policy.” Copelands’ Enters., 887 F.3d at
1067 (citations omitted). “As indicated by the Supreme
Court, requiring a party to await a final decision and to
raise all claims of error in a single appeal ‘emphasizes the
deference that appellate courts owe to the trial judge,’
‘avoid[s] the obstruction to just claims that would come
from permitting the harassment and cost of a succession
of separate appeals,’ and ‘promot[es] efficient judicial
administration.’” Id. (quoting Firestone Tire & Rubber
Co. v. Risjord, 449 U.S 368, 374 (1981)). Thus, we lack
jurisdiction to hear a non-final appeal from the Patent
Here, there can be no doubt that the Patent Office’s
actions are non-final for the purposes of judicial review
and that Dr. Arunachalam’s appeal is premature. A
patent owner dissatisfied with an examiner’s rejection of
a claim in reexamination may proceed with a two-step
appeals process. First, pursuant to 35 U.S.C. § 134(b)
(2002), “[a] patent owner in any reexamination proceeding
may appeal from the final rejection of any claim by the
primary examiner to [the Board] . . . .” Second, if the
patent owner is dissatisfied with the Board’s final decision,
the patent owner may appeal the decision to this
court. 35 U.S.C. § 141 (2002) (“A patent owner . . . who is
in any reexamination proceeding dissatisfied with the
final decision in an appeal to the Board . . . under section
134 may appeal the decision only to the United States
Court of Appeals for the Federal Circuit.”).

A new ground of rejection, however, is not a final decision
for the purposes of judicial review. See 37 C.F.R.
§ 41.50. After a new ground of rejection, the patent owner
can either (1) reopen prosecution and, if the rejection
cannot be traversed, again appeal to the Board or (2)
pursue rehearing at the Board, after which an appeal to
this court may be filed. See id. Here, Dr. Arunachalam
elected to reopen prosecution and the examiner issued a
final rejection. Pursuant to § 134(b), Dr. Arunachalam
may appeal the examiner’s decision to the Board. And
only after the Board issues a final decision can we exercise
jurisdiction to review the Board’s decision.

Netzer Consulting appeal to CAFC re: summary judgment fails; what is "fractionation"?

Netzer lost his appeal to the CAFC of an adverse summary judgment of non-infringement in favor of Shell Oil:

David Netzer Consulting Engineer LLC (“Netzer”)*
appeals from the decision of the United States District
Court for the Southern District of Texas granting summary
judgment of noninfringement of the asserted claims
of U.S. Patent 6,677,496 (“the ’496 patent”). David Netzer
Consulting Eng’r LLC v. Shell Oil Co., No. 4:14-cv-00166,
ECF No. 45 (S.D. Tex. Aug. 26, 2015) (“Decision”). For the
reasons that follow, we affirm.

The relevant claim was to process for the coproduction of ethylene and
purified benzene and a relevant claim element was:

fractionating the pyrolysis gasoline to form a
purified benzene product comprising at least
about 80 wt % benzene.

In the absence of anything else, one might think "fractionating" would
include ANY process to create fractions. Here, that argument did NOT

Shell argued that the term “fractionating”
should be construed to mean “conventional distillation,
i.e., separating compounds based on difference in their
boiling points,” which excludes extraction, i.e., separating
compounds based on solubility differences. Shell argued
that the patentee disclaimed extraction in the specification
and prosecution history. According to Shell, its
accused process does not meet the fractionating step
because it uses extraction—more specifically, the Sulfolane
process developed by Shell in the 1960s—to form a
benzene product with 99.9% purity. Netzer responded
that “fractionating” should be construed to mean “separating
a chemical mixture into fractions, no matter the
process units used.”


We agree with Shell that the claim term “fractionating”
in this patent
means separating compounds based on
differences in boiling points, i.e., distillation, which excludes
extraction, such as in the Sulfolane process. The
specification repeatedly and consistently uses “fractionating”
or “fractionation” to describe separating petrochemicals
based on boiling point differentials. Moreover,
importantly, the patentee made clear and unmistakable
statements in the intrinsic record, distinguishing the
claimed invention from and disclaiming conventional
extraction methods that produce 99.9% pure benzene.

Wednesday, May 25, 2016

CAFC addresses IPR amendment procedure in Aqua Products; PTAB's approach upheld

The outcome of the appeal of an IPR decision in Aqua Products:

Aqua Products, Inc. (“Aqua”) appeals from the final written decision of the Patent Trial and Appeal Board (“Board”) in an inter partes review (“IPR”) of U.S. Patent No. 8,273,183 (“’183 patent”). The Board denied Aqua’s motion to substitute claims 22–24. Aqua challenges the Board’s amendment procedures, which require the patentee to demonstrate that the amended claims would be patentable over the art of record. We affirm.

The issue in the case concerned amending the claims:

In its motion to amend, Aqua argued that the combination of Henkin and Myers does not render the substitute claims obvious because it does not suggest the vector limitation. J.A. 2289–91. Although Aqua referenced the other added limitations, it did not argue that those other limitations would have been non-obvious in light of Henkin and Myers. Regarding objective indicia, Aqua characterized its commercial embodiments as “successful” and it implied that Zodiac may have copied the design, but Aqua did not argue that these objective indicia were tied to the vector limitation or that they otherwise demonstrated that the vector limitation was non-obvious. J.A. 2288. The Board denied Aqua’s motion to amend. It reasoned that the vector limitation would have been obvious because Henkin teaches positioning the jet at an angle that satisfies the vector limitation.

The appeal

Aqua appeals the Board’s denial of its motion to amend. Aqua argues that Board regulations requiring the patentee to demonstrate that an amended claim is patentable over the art of record are unsupported by statute, and that the Board’s interpretation of those regulations impermissibly places the burden on the patentee to show non-obviousness. Moreover, Aqua argues that the Board abused its discretion by denying the motion to amend without considering all the new limitations and the objective indicia of non-obviousness, as would be required for invalidating an original claim.

Aqua's statutory argument was dead on arrival and the abuse of discretion argument also failed

Our precedent has upheld the Board’s approach of allocating to the patentee the burden of showing that its proposed amendments would overcome the art of record. In Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1307−08 (Fed. Cir. 2015), we upheld the Board’s interpretation of its regulations, requiring the patentee to establish that proposed amendments would overcome the art of record. See also Prolitec, Inc. v. ScentAir Techs., Inc., 807 F.3d 1353, 1363 (Fed. Cir. 2015). In Nike, Inc. v. Adidas AG, 812 F.3d 1326, 1333−34 (Fed. Cir. 2016), we further held that the Board’s regulations concerning motions to amend and its interpretation thereof are consistent with the AIA’s statutory framework, even though the framework generally places the burden of proving unpatentability on the IPR petitioner. Given our precedent, this panel cannot revisit the question of whether the Board may require the patentee to demonstrate the patentability of substitute claims over the art of record. The only issue left open for our consideration is whether the Board abused its discretion by failing to evaluate objective indicia of non-obviousness and various new limitations in the proposed claims, even though Aqua did not argue that those indicia and limitations distinguish the proposed claims over the combination of Henkin and Myers. We find no abuse of discretion.

Monday, May 23, 2016

Nova obtains a "win" on supplemental damages in the Dow case

The US Supreme Court declined to hear the Dow case, which left intact the decision of the Federal Circuit on
supplemental damages.

Reuters reported:

At issue were $28 million in supplemental damages plus interest that a federal judge awarded to Dow for Nova's infringement of its patents from January 2010 to October 2011, when the patents expired.

The court's action does not affect the $61 million in damages that a jury in 2010 awarded to Dow for Nova's infringement of the patents prior to 2010. Dow is in the process of merging with Dupont

link: http://www.reuters.com/article/us-usa-court-dow-idUSKCN0YE1QK

** A relevant part of the CAFC decision, as to "how" the supplemental damage award
could be reviewed:

But the exception of course does not apply
if the proceeding has reached the stage of final judgment.
See Mendenhall, 26 F.3d at 1582 (Fed. Cir. 1994). Here,
the supplemental damages proceeding had not been
concluded at the time of Nautilus.


The change in law exception applies whether the
change in law occurs while the case is before the district
court or while the case is on appeal. See Spiegla, 481 F.3d
at 964 (7th Cir. 2007) (holding that defendants had not
waived challenge to holding in first appeal where issue
not raised on remand in district court or initial briefing
because intervening decision was issued after appellate
briefing); Mendenhall, 26 F.3d at 1583 (law of the case did
not apply where new decision issued while case on appeal);
Morris v. Am. Nat’l Can Corp., 988 F.2d 50, 51–53
(8th Cir. 1993) (law of the case did not apply where, after
first appeal and decision on remand by district court,
Supreme Court case changed prevailing law); Wilson, 791
F.2d at 154, 157 (exception to issue preclusion applied
where intervening decision issued while case pending
before this court).

It was the "supplemental damages" that had not reached the stage of
final judgment, and the CAFC found Dow's claims invalid for indefiniteness,
so the supplemental damages evaporated.

Sadly, for Nova, Nautilus came too late as to the initial decision:

Third, as we now discuss, our original decision would
have been different under the new Nautilus standard.

As to the impact of Nautilus on this case:

The question is whether the existence of multiple
methods leading to different results without guidance in
the patent or the prosecution history as to which method
should be used renders the claims indefinite. Before
Nautilus, a claim was not indefinite if someone skilled in
the art could arrive at a method and practice that method.
Exxon, 265 F.3d at 1379. In our previous opinion, relying
on this standard, we held that the claims were not indefinite,
holding that “the mere fact that the slope may be
measured in more than one way does not make the claims
of the patent invalid.” Dow, 458 F. App’x at 920. This was
so because Dow’s expert Dr. Hsiao, a person skilled in the
art, had developed a method for measuring maximum
slope. See id. at 919–20.

Under Nautilus this is no longer sufficient.