Thursday, July 24, 2014

No mandamus from CAFC for Nokia in ITC case

Judge Newman, in dissent, in Nokia/ITC case:

My colleagues now state that their
words “may be raised ” by Nokia did not
mean that the Commission must permit the issue to be raised
by Nokia. If my colleagues did not intend these words to be understood as
permitting Nokia to raise the issue,
they should have been clear. Indeed, I understood this
court’s words in the same way as did Nokia
and the Commission’s staff attorneys

Nokia's request for a writ of mandamus was denied.


Eli Lilly not doing well in face of patent expirations

The Wall Street Journal notes in an article Eli Lilly Profit Falls 39% on Patent Expirations

The company said that patent expiration of the two treatments caused a 17% decline in volume during the quarter. Cymbalta sales fell 73% to $401.3 million in the quarter, and Evista sales dropped 61% to $108.3 million. Those declines drove a 30% drop in total U.S. revenue to $2.38 billion, the company said.

Uncertainty as to the new Unitary EU-wide Patent (UP) and the Unified Patent Court (UPC)

In 2002, Donald Rumsfeld stated:

Reports that say there's -- that something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things that we know that we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns, the ones we don't know we don't know.

In a post in 2014, concerning the new Unitary EU-wide Patent (UP) and the Unified Patent Court (UPC), Tim Hewson and Tom Burt utilize that quote to evoke uncertainties facing EP patent applicants in the coming regime. They note

Starting from sometime between about 2015 and about 2016 you will be facedwith new decisions when the EuropeanPatent Office grants your patents. Those decisions are therefore applicable to thepatent applications which you aredrafting and filing today.

Wednesday, July 23, 2014

Further issues from the plagiarism matter at Chicago State University

Note Chicago State official sues UIC, claims it violated privacy law by discussing plagiarism claim :

The lawsuit, filed Monday [July 21, 2014] by CSU Interim Provost and Senior Vice President Angela Henderson, claims UIC violated the Family Educational Rights and Privacy Act, commonly referred to as FERPA. The law bars schools from releasing private information on student academics without permission.

Teva's Copaxone: does the CAFC have to treat an expert's opinion as a fact under FRCP 52?

Scott Gottlieb's post FDA's Looming Decision On A Generic To Teva's Copaxone Reveals Drug Approval Woes has a nice discussion of the issues facing the FDA on analyzing/approving generic Copaxone.

Gottlieb stated:

FDA is widely known to be considering the approval of a generic version of Teva Pharmaceutical’s (NYSE:TEVA) blockbuster drug for multiple sclerosis, Copaxone.
The patents covering Copaxone for its 20mg/ml strength expired on May 24th. After patent expiration, FDA could approve generic copies of the drug at any time. But some of the same challenges that caused the agency to struggle with and sometimes stumble over its similar previous decisions still linger, and will color FDA’s decision concerning Copaxone.

Meanwhile, as to the Teva v. Sandoz business on US Patent No. 5,800,808 coming before the US Supreme Court, note the following.

Scotusblog defined the issue as

In the Teva case, the issue is the division of roles between a trial court — a U.S. district court — and the U.S. Court of Appeals for the Federal Circuit over the interpretation of the claims that an inventor makes for a product or process. While federal appeals courts normally are to review the factual conclusions drawn by a district court only to see if they were “clearly erroneous,” the Federal Circuit for more than fifteen years has followed the practice of construing the claims made by an inventor, using its own independent judgment (technically, de novo review). The issue the Justices will decide is whether to require the Federal Circuit to follow the customary approach.

From within Teva's opening brief:

While the patent did not expressly use the term “peak average molecular
weight,” it did indicate that the average molecular
weight should be determined using an analytical
technique called size exclusion chromatography (“SEC”).
Dr. Grant explained that the patent’s instruction to
determine the average molecular weight using SEC
technology would have indicated to a skilled artisan
that the intended measure was peak average, the on-
ly measure that can be read directly from an SEC
Peak average is the only expression of average mo-
lecular weight that can be derived directly from the
chromatogram. Determining either number average
or weight average molecular weight, by contrast, re-
quires additional calculations based on the underly-
ing chromatographic data. The patent does not spec-
ify any such further calculations.

The key point:

The district court credited Dr. Grant’s testimony
on this point, which was unrebutted, and found that
once a skilled artisan learned that “average molecu-
lar weight” would be determined using SEC, “the
presumed meaning” of “average molecular weight” to
that skilled artisan would have been peak

In context, Dr. Grant was rendering an opinion as an expert
witness, not stating a fact as a fact witness. Opinions are different from facts.
An opinion is a conclusion reached by someone after looking at the facts.

I myself have a Ph.D. in physical chemistry, and can say "the use
of size exclusion chromatography" would not cause me to presume "average
molecular weight" meant "peak average molecular weight."

The experimental approach to collect data (here, size exclusion
chromatography) is distinct from "how" the data from the experiment is analyzed.

Tuesday, July 22, 2014

Buzz on Apple's US Patent No. 8,787,006, issued July 22, 2014

The abstract of Apple's '006 patent states

Embodiments of electronic wristwatches are disclosed. According to one embodiment, an electronic wristband can provide additional electrical circuitry or devices that can be made available for use as or with an electronic device. In one embodiment, the electronic device can be a mobile electronic device that can be removably coupled to the electronic wristband which provides the additional circuitry or devices. Advantageously, the electronic device can utilize the additional electrical circuitry or devices provided within the electronic wristband to augment the capabilities of the electronic device. In another embodiment, the electronic device can be integrally formed with the electronic wristband which provides the additional circuitry or devices.

The first claim

An electronic wristband to be worn on a wrist of a user, the electronic wristband comprising: a central portion having a receptacle area configured to receive and electrically connect to a mobile electronic device, the mobile electronic device including a display and being independently useable apart from the electronic wristband to perform a first set of functions; and at least one band portion coupled to the central portion and suitable to assist with securing the electronic wristband to the wrist of the user, the at least one band portion including a wireless communication transceiver provided internal to the at least one band portion and operatively connected to the mobile electronic device when the mobile electronic device is received in the receptacle area, wherein the mobile electronic device, when received in the receptacle area, is operable to perform a second set of functions, the second set of functions including all of the first set of functions and further including wirelessly communicating user input received by the mobile electronic device to a second electronic device via the wireless communication transceiver.

Offer to license by Merck leads to to lawsuit

Offering a license deal can sometimes be hazardous, as Merck found out in the Sovaldi business. Separately, buying a company that had a previous research agreement with a third party can be problematic.

An article in the Wall Street Journal titled Hepatitis C Spurs Unusual Patent Wars Among Big Drug Makers includes the text

As for Merck, Gilead filed a preemptive lawsuit after receiving a phone call from a Merck executive who proposed licensing two Merck patents to Gilead in exchange for a 10% royalty on sales of all medicines including Sovaldi. Gilead called this a “prohibitive demand.” Merck later responded in court by claiming that Sovaldi infringes on its patents that cover compounds related to the active ingredient in Sovaldi.

Roche, meanwhile, claims it has rights to Sovaldi thanks to a decade-old research collaboration with Pharmasset, which developed the drug and was purchased by Gilead two years ago for more than $11 billion. Roche wants an exclusive license and claims Gilead infringed on its rights. A Roche spokeswoman tells the Journal that an arbitration decision is expected later this year.

Salacious headline in The Recorder leads into legalities of staying district court cases during PGR?

The article Donato Touches Patent Hot Spot in Sex-Toy Case
touches on the issue of district courts granting/not granting stays during post-grant review [PGR] proceedings.

There is a bit of a reference to the CAFC case in VirtualAgility wherein the CAFC reversed ED Texas decision NOT to grant a stay.

Contrary to the title of the Recorder article, there is not much discussion of "sex toys."

Gevo hitches its wagon to Teva on patent claim construction

Gevo filed an 8K on July 14, 2014 relating to a cert petition:

On July 11, 2014, the United States District Court for the District of Delaware (the "District Court") granted a motion by Gevo, Inc. (the "Company") to stay the patent litigation action brought by Butamax Advanced Biofuels, LLC (" Butamax") involving U.S. Patent Nos. 7,851,188 and 7,993,889. The District Court's decision postpones the trial in this action, which was scheduled to begin on July 21, 2014. The decision by the District Court was based on the status of the Company's petition for a writ of certiorari in the United States Supreme Court (the "Supreme Court"). The Supreme Court has neither granted nor denied the Company's petition, but appears to be holding the petition pending its decision in Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., a case that could change the Federal Circuit's standard of review of district court claim construction, and could ultimately negate any jury verdict obtained under the current interpretation of the patent claims.

Note that this relates to patent infringement cases brought by patentee Butamax against Gevo related to Butamax patents 7,851,188 and 7,993,889.

In the Teva case, patentee Teva seeks Supreme Court review of a CAFC decision finding claims of Teva patents invalid for indefiniteness. Note in Nautilus, Inc. v. Biosig Instruments, Inc., 134 S.Ct. 2120 (2014) the standard for negating patentability due to indefiniteness was lowered by the Supreme Court.

Depending upon the outcome of the Teva case, Gevo might obtain a GVR (grant-vacate-remand) from the Supreme Court.

link for 8K:

In terms of the '188 and '889 patents, Gevo described its win in the following way:

ENGLEWOOD, Colo. - March 21, 2013 - Gevo, Inc. (NASDAQ: GEVO), announced today that a judgment of non-infringement will be entered for Gevo following the acknowledgment by Butamax Advanced Biofuels LLC (Butamax) that Gevo does not infringe Butamax's asserted patents under the Court's construction of a key claim term in Butamax's Patent Nos. 7,851,188 and 7,993,889. As a result of this victory, a judgment of non-infringement will be entered in Gevo's favor and the trial scheduled for April 1st will no longer take place.


BUT, Butamax conceded infringement specifically to take the claim construction (which relates to NADPH dependent enzymes) to appeal to the CAFC, where Butamax won. The CAFC had earlier telegraphed its problems with the claim construction of D. Delaware, so the Butamax course of action was quite foreseeable. This history is significantly different from the Teva Sandoz matter. Any suggestion that the reversals by the CAFC in the Teva and Gevo cases are analogous is incorrect. [Separately, the reversal in Teva was as to invalidity; that in Gevo related to infringement.]

This was earlier discussed in IPBiz. See
The Court of Appeals for the Federal Circuit hands Gevo a big loss in the Butamax/Gevo patent wars

As to Gevo suing Butamax, note the IPBiz post
Overreaching in patent claims dooms Gevo in district court. No infringement because of estoppel and invalidity through lack of enablement.

Separately from American Banking:

Gevo (NASDAQ:GEVO) COO Christopher Michael Ryan unloaded 1,042 shares of Gevo stock in a transaction that occurred on Monday, July 21st. The shares were sold at an average price of $0.74, for a total transaction of $771.08. Following the completion of the transaction, the chief operating officer now directly owns 367,527 shares of the company’s stock, valued at approximately $271,970. The sale was disclosed in a filing with the SEC, which can be accessed through this link.

GEVO has been the subject of a number of recent research reports. Analysts at Cowen and Company cut their price target on shares of Gevo to $1.00 in a research note on Friday, May 16th. Analysts at Zacks downgraded shares of Gevo from an “outperform” rating to a “neutral” rating in a research note on Thursday, May 8th. They now have a $1.30 price target on the stock.

Gevo (NASDAQ:GEVO) opened at 0.7211 on Tuesday. Gevo has a one year low of $0.71 and a one year high of $2.18. The stock has a 50-day moving average of $0.86 and a 200-day moving average of $1.11. The company’s market cap is $48.9 million.

Monday, July 21, 2014

Catalyst from CATCHBIO

ChemistryViews wrote of CATCHBIO in 2012:

CatchBio is a consortium of 21 partners from industry and academia, partly financed by the Dutch ministeries of Economic Affairs and of Education, Culture and Science, and with the support office based at the Netherlands Organization for Scientific Research (NWO). It is an ambitious research program of eight years in the field of catalytic biomass conversion covering the whole spectrum of biofeed into fuels, chemicals, and pharmaceuticals in an integrated manner.

Within the text:

Bert Weckhuysen: Yeah, which is unusual for academic research. We have to make our academic researcher a bit familiar with this. Normally researchers are interested in publishing a nice paper in, let’s say, Angewandte and then if it gains enough interest, the research is successful.

From DailyFusion on 21 July 2014:

A new, simple catalyst, developed at the University of Twente, improves the quality of oil produced from biomass before it is even sent to the refinery.

This technology was selected from dozens of projects for the follow-up of CATCHBIO, the national research program that is helping to realize the European 2020 objective: 20% of fuel must come from renewable sources by 2020.


The catalyst developed by Prof. Leon Lefferts and Prof. Kulathuiyer Seshan’s group Catalytic Processes and Materials (MESA+ Institute for Nanotechnology/Green Energy Initiative) significantly improves the quality and energy content of the oil.

This is realized by heating the oil in nitrogen to 500 degrees Celsius and by applying a simple catalyst: sodium carbonate on a layer of alumina. By using this method, the energy content of the oil can be boosted from 20 to 33-37 megajoule per kilogram, which is better than crude oil and approximates the quality of diesel. The technology, recently defended by PhD candidate Masoud Zabeti, is already being tested by KIOR in Texas, USA, on a small industrial scale, with a production of 4,500 barrels of oil per day. The quality of the oil can be improved even more by adding the material caesium, as well as sodium carbonate. “By doing so, we can, for instance, also reduce the aromatics, which are harmful when inhaled”, says Prof. Seshan.

The technology is currently being further studied, in cooperation with the University of Groningen, the Energy research Center of the Netherlands (ECN) and Utrecht University, in a new CATCHBIO program of the Netherlands Organization for Scientific Research (NWO).

Note claim 3 of US 20140120596 .

US 2,210,204 to a Wall Cabinet

From US '204:

This invention relates to improvements in towel dispensing wall fixtures, and a principal object of the invention is to provide a dispensing cabinet of this class of generally improved structural and functional characteristics.


Another object of the invention is to provide a cabinet of the stated character which shall be substantially dustproof.

The first claim recites:

In a wall cabinet of the type set forth, an integral molded body comprising side, rear and forwardly converging top and bottom walls, and an open front the upper and lower edges of which are defined respectively by the forward edges 1 of said top and bottom walls, said rear wall terminating at top and bottom substantially in line with the said forward edges respectively of the top and bottom walls, and a panel joining the top of the rear wall to the forward edge of the top wall and constituting the effective upper wall of the interior chamber of the cabinet.

Inventor Burton E. Ebert, assigned to Scott Paper.

There are seven claims, none depending from one another. There are 12 figures.

The word "converging" appears only in the claims. The word "effective" appears only in claim 1.

This patent is cited 36 years later, within USD 240576 (1976)

US '204 available through Google patents.

Note also Index of Patents Issued From the United States Patent Office, 1940-1941

Sunday, July 20, 2014

CBS Sunday Morning on July 20, 2014

Lee Cowan, not Charles Osgood, did the stories for July 20, 2014. The big news was Malaysia 17, with Mark Phillips and Martha Teichner to do news stories. Cowan will do a story on actress Elaine Stritch. "What a Lady." Tracy Smith does an interview with Michael Douglas. Mo Rocca on the humor of Ronald Reagan. Don Daylor on Henry Thoreau. Steve Hartman.
45th anniversary of moon walk: interview with wives of astronauts.

Actor James Garner died. Star of Rockford Files and Maverick. He was 86. Hot air balloon crashed. Weather storms in middle. Nicest weather: coastal California.

First story up was Mark Phillip on shooting down of Malaysia 17. It's the world's biggest crime scene and the foxes are in charge of it. OSCE investigators were restricted. One mans tampering is another man's humanitarian gesture. Indignity has been piled on tragedy. Plenty of argument over who did it. The suspicion that somebody here has something to hide.
Martha Teichner. Samantha Power talking at the UN. Clip of Obama implicating separatists. Putin said US-backed Ukrainian government was responsible. Juan Sirate clip. Franz Timmermans of the Netherlands. International outrage. "We have just shot down a plane..."

July 20, 1965: Bob Dylan releases "Like a Rolling Stone." Between Help and California Girls on the charts. "Rolling Stone" mag rated it the number one rock song of all time.

Don Daylor "On the trail." Henry David Thoreau in the Maine woods. Moosehead Lake to Indian Island.

Lee Cowan on Elaine Stritch. Interviewed at age 89. The Colgate Comedy Hour. Sail Away and Bus Stop. Steven Sondheim. Emmy for NBC's Thirty Rock. Documentary "Shoot Me." "Success doesn't mean a damn thing." It's not the work, it's the stares. I think drinking is part of performing. I had to be entertaining the folks. I loved the escape of being another human being. Date with Marlon Brando. Previous interview with Charles Osgood in 1996: stopped drinking to see if I could really act. She was married to John Bay. [from wikipedia: She won an Emmy Award in 1993 for her guest role on Law & Order and another in 2004 for the television documentary of her one woman show. From 2007 to 2012, she had a recurring role as Jack Donaghy's mother, Colleen, on NBC's 30 Rock, a role that won her a third Emmy in 2007. ]

On July 17, 1980, Reagan gave his acceptance speech. But March 30, 1981, Hinckly. Reagan tells doctors: I hope you are all Republicans. Peter Sweeney: I hope you get well quick or you might have to make a speech in your pajamas. John Highbush: director of Reagan's library. Stack of index cards of 1-liners. Drew Carey looks at the jokes. Patti Davis: lifelong coping mechanism. Coating of humor. Impersonating Truman Capote. "Honey, I forgot to duck."

Steve Hartman on Fire Station One in Lansing, Michigan. Tony Tumminello [Recycled from a CBS News story July 6, 2012.]

Tracy Smith interviews Michael Douglas. The O'Neill Center Playhouse in Waterford, Connecticut. George White. It presents you with a compass. ONeills National Theater Institute. "It changed my life."

"The Astronaut's Wives Club" Proud thrilled and happy. Recycled from a cover story on June 16, 2013.

Week ahead. RoboCup 2014. Prince George birthday. World LUmberjack Competition. Most Wanted Male. National Dance Day.

Next week on Sunday Morning. Full up with hoarders.

Moment of nature. Virginia's Chincoteague Island.

Saturday, July 19, 2014

CAFC analyzes ITC rules in Align Technologies

CAFC and "any colorable imitation"

In Arlington v. Bridgeport the CAFC was faced with the topic of an admitted infringer being charged with making a "colorable imitation" of a patented product, similar to the earlier Entegris case. Here, Bridgeport's appeal was dismissed for lack of jurisdiction.

Wednesday, July 16, 2014

The popular press ridicules published US patent application 20140159444 to Airbus

There has been some buzz in the popular press in July 2014 over US Patent application 20140159444 to Airbus (published June 12, 2014 ), with abstract

A seating device with reduced bulk, for example for an aircraft. This seating device comprises a backrest which describes a circular translational movement towards the front and upwards of the device when the seating device is brought to the retracted configuration. A seating structure is provided comprising a bearing piece on which are fixed, side by side, a plurality of seating devices with reduced bulk. An aircraft is provided comprising a seating device with reduced bulk mounted in its cabin.

See the Los Angeles Times on July 13, 2014: Airbus seeks patent for bicycle-like airline seat including text

“Many, if not most, of these concepts will never be developed, but in case the future of commercial aviation makes one of our patents relevant, our work is protected,” said Airbus spokeswoman Mary Anne Greczyn. “Right now these patent filings are simply conceptual.”

From the Washington Post on July 14, 2014 Airbus wants to patent the most uncomfortable plane seats ever

Airbus openly acknowledges that packing more passengers on board is going to result in reduced comfort, and that the goal is basically to figure out how far they can go without inciting an airborne revolt.

From the New York Post, on July 14, 2014: Airbus patent could make your flight even worse including text

With no tray table, no headrest and very little legroom the design is supposed to reduce the bulk of traditional airline seats allowing more passengers to be squeezed on-board. Fastened to a vertical bar, the bicycle seats are designed to fold up when not in use.

Note also, to Airbus:



A toilet arrangement for a vehicle includes a first toilet compartment, an adjacent second toilet compartment and a partition wall situated between the first toilet compartment and the second toilet compartment, wherein the partition wall is movably supported and designed for being transferred into an open position, in which the partition between the first toilet compartment and the second toilet compartment is removed. This makes it possible to convert two relatively small toilet compartments into a larger toilet compartment that is suitable for use by persons with limited mobility.




A toilet area for an aircraft cabin comprising an access door and housing a toilet bowl. The toilet area also comprises an evacuation exit, the access door occupying a closed position in the toilet area in a toilet configuration and a folded position in the toilet area in an evacuation configuration. Usage in particular in a flying wing aircraft is provided.