Arnold Information Technology (ArnoldIT) places Google patents on CD

Arnold Information Technology (ArnoldIT) announced on October 31, 2005 that it is offering a CD-ROM (for $50) with more than 120 patents that help create a roadmap of Google's future.

Stephen E. Arnold: "Among the important patents included in this collection are the Google patent for individualizing search results, the patent for the use of time as a factor in PageRank relevance [based on my study of patent reform, currency is not much of a factor in Google searches], and a 'de-duplication' patent for eliminating redundancy.[based on my study of patent reform, with the numerous references to the same article, redundancy has hardly been eliminated]."

More on Googling +"patent reform" +2795

At 10pm on Oct. 31, the search +"patent reform" +2795 returned 669 hits, continuing a downward trend since we started the search.

The hit for IPBiz on continuations appears on page 3. A different hit for IPBiz on litigation (Sept 05) appears on page 7. Page 12 has a hit about IPBiz [kinja.com/user/nip: Searching for "patent reform" on Google. IPBiz — The number of hits for +"patent reform" +2795 dropped to 673 on October 30 at about 8:30am, although the IPBiz entry itself is NOT indexed.] Page 16 has a blinkbits hit for Lawrence B. Ebert referencing the NJLJ article and a hit for "Imagine: no more indecision in intellectual property cases [Intellectual Property Today]. The previous hit for IPBiz [Scott Cleere] does not appear in the first 25 pages, so it has gone from nowhere to page 3 to page 6 and back to nowhere.

An article from Science appears on page 6. Page 12 contains the position of IBM on patent reform.

By page 19, things are thinning out considerably. Thus, a hit to AIEA (cached version only) is on the level: I would urge everyone to take a critical look at HR 2795: The Patent Reform Act of 2005. Let me be clear in saying that this bill has some good material in it. Page 20 has a reference from an abbreviated cv of Professor Thomas Field [2005 -- H.R. 2795 (a patent reform bill) (statement concerning provisions in the bill, with Professor Joshua D. Sarnoff and others)] By page 21, we have hits in Japanese [www.bekkoame.ne.jp/~yabz/index022702.htm]. By page 23, we have entered the barely relevant [ blog.newmyths.org/archives/2005_08.html ;From the “something useful from Slashdot?” department, there's an article on possible patent reform in Congress (house bill 2795 for the curious). Worth keeping an eye on...

In October 2005, a relatively quiet time for "new" hits on H.R. 2795, one sees that the hierarchy for hits for the search +"patent reform" +2795 dramatically changes day-by-day. What one learns from Google about the topic depends strongly on "when" the search is done.

***On Google's PageRank, see webworkshop.

ITC reversed by CAFC in Sorensen case

The CAFC cited Middleton v. Minn. Mining, 311 F.3d 1384, and Omega, 334 F.3d 1314 on the subject of disavowing (disavowal) of claim scope.

Callicrate wins over Wadsworth; D. Montana reversed

In an infringement suit over patents for castrating large animals, patentee Callicrate prevailed on appeal against Wadsworth. The patents involved were US 5,236,434, 5,997,553, and 5,681,329.

A jury had found asserted claims anticipated, obvious, and not infringed, and D. Montana denied Callicrate's request for JMOL.

Defendant Wadsworth had argued that the '553 and '329 patents were anticipated by Wadsworth's 5,425,736. However, the '553 and '329 claimed priority to the '434, filed before the '736. Wadsworth argued the '434 did not satisfy 35 USC 112 P 1, written description. The CAFC addressed issues under 35 USC 112 P 1, enablement, and concluded there was enablement, citing Micro Chem, 194 F.3d at 1259 and Telectronics, 857 F2d 778.

Separately, the CAFC did not find substantial evidence to sustain the jury verdict of noninfringment.

The CAFC remanded for a determination of damages.

Michael T. Burr on patent reform

The article talks about Brandon Shalton who has dedicated hundreds of hours of work to researching examples of prior art that would invalidate abusive patents. Although Shalton has provided this information for free to companies facing infringement notices from patent trolls and launched the Web site fightthepatent.com, only a few have had the resources to take the battle to court.

Of H.R. 2795, Shalton says: "It won't stop patent trolls. The patent office is an institution that some people believe exists to serve their purposes. A system that was intended to protect the 'little guy' from larger companies stealing their ideas is turning into a system that serves large companies who can just
patent anything."

Robert Armitage is quoted: "Any issue that goes to a fundamental feature of the patent system will have difficulty garnering the diversity of support needed to enact it into law."

Michael T. Burr stated: In fact the Patent Act of 2005 actually
might see a House floor vote this year.

Burr only obliquely mentioned fee diversion at the end of the article:
...does nothing to fix the basic problem of fee
diversion. Fortunately, anti-fee diversion legislation has gained momentum in Congress.


Funding did come up:
"It isn't going to work unless the PTO gets the funding," says Don
Martens, of counsel with Knobbe Martens Olson & Bear in Irvine, Calif. "I'm optimistic that it will get worked out, because everyone realizes the PTO needs financial resources."

from Michael T. Burr, Corporate Legal Times, October 2005.

The New Jersey Bartender

The New Jersey Bartender website asks, "Can we trust a lawyer-run
government agency to hold other lawyers accountable?" Of concealed disciplinary complaints, John Paff says: "This is something that needs to be changed. So let's take every bit of public information that you can get about the system and let's put it on the internet, where it's really public."

History of the Kearns plagiarism matter

History News Network has a "history" of the plagiarism incident involving Doris Kearns Goodwin, including an update in October 2005.

Illinois Tools Works before Roberts court

James Dey says of Illinois Tool Works: The question for the Roberts Court boils down to deciding who has the burden of proof. Do first market manufacturers, like Illinois Tool Works, have to prove that they do not have market power if they want to enter such "tying" agreements even though a non-patent holder would not have to, or do the secondary market players, like those who want to supply ink for ITW printers, have to incur the substantial expense of proving that the manufacturer is likely to monopolize the secondary market? The answer to this narrow legal question will likely have a profound impact on the balance between first market product manufacturers and secondary market rivals.

The money issue is that a patentee (here, Illinois Tool Works) would like to require customers who purchase its patented product (here, printers) to agree to use only its non-patented products (here, ink). Competitive ink sellers contend that this arrangement is an abuse of Illinois Tool Works' printer patents that extends them to dominate the "market" for compatible ink.

Dey did not discuss the issue that the CAFC felt bound to follow precedent, which the CAFC may not have agreed with.

The Oct. 28 article also states:

The Senate has debated and confirmed John Roberts as the new Chief Justice of the United States and is now debating the nomination of Harriet Miers to fill Justice Sandra Day O'Connor's seat.

On Oct. 31, Samuel Alito was nominated to fill Justice O'Connor's seat. Alito noted: I argued my first case before the Supreme Court in 1982, and I still vividly recall that day. I remember the sense of awe that I felt when I stepped up to the lectern, and I also remember the relief that I felt when Justice O'Connor, sensing, I think, that I was a rookie, made sure that first question that I was asked was a kind one. He also said: Federal judges have the duty to interpret the Constitution and the laws faithfully and fairly, to protect the constitutional rights of all Americans, and to do these things with care and with restraint, always keeping in mind the limited role that the courts play in our constitutional system.


Also from James Dey:

For example, the Federal Trade Commission recently filed a petition to have the Supreme Court hear its challenge to a settlement agreement between patented drug maker Schering-Plough and the maker of a generic equivalent that had contested the validity of Schering-Plough's patents. In the agreement, Schering-Plough agreed to pay the generic drug manufacturer, which in turn agreed to stay out of the market for a specified period of time and to drop its effort to have Schering-Plough's patents declared invalid. The FTC argued that Schering-Plough was buying off competition and preserving otherwise invalid patents unlawfully. The Eleventh Circuit Court of Appeal disagreed and overruled the FTC's order invalidating the settlement agreement. Assuming the Court takes up this case, it will not only impact agreements between brand-named and generic drug makers, but will likely add to the body of law that has begun to shape the boundaries of permissible settlement agreements.

Boston Globe reprints van Gelder story on Tamiflu

The Boston Globe reprinted the story by Alec van Gelder on the avian flu/Tamiflu, complete with all the mistakes of the first version. No learning curve at the Boston Globe.

For example,

That medicine, Tamiflu, was developed by the Switzerland-based pharmaceutical company Roche, which owns the patent.

Actually, the drug was developed by Gilead, who owns the patent.

UPDATE.

The PromoteTheProgress blog praised the Boston Globe [van Gelder] article without noting the errors or the fact that it was a reprint.

Buchanan highlighted the text:

"But the most important role for government is to uphold private property rights and ensure that the rule of law applies -- which means protecting rather than breaking patents. The alternative -- the rule of the mob -- would truly be devastating."

The "rule of the mob", at least in the U.S., would be the government taking the patented product and the patentee suing the government in the Court of Claims.

One notes that in the case of CIPRO, the government jaw-boned Bayer for a lower price than Bayer wanted, without ever reaching the rule of the mob.

In the old days, the government created a patent pool of aviation patents, which adversely affected the Wright Brothers; forced Marconi out of the U.S., and forced Bell Labs to license (which it was already doing with the transistor patents, having seen the writing on the wall.)

Sorry, but the (reprinted) Boston Globe op-ed is not "most coherent and well-structured argument" that has been presented, and, no, Roche does not own the patent in question.

IBM, Google team up on enterprise search technology

-->
Dave Girouard, general manager, Google Enterprise, said, "Google Desktop for Enterprise helps users navigate the growing sea of information on their PC, including their overflowing inbox, documents, presentations, PDF files, and web pages they've visited. We're pleased IBM is integrating its search solution with Google Desktop for Enterprise, enabling its customers to use multiple software solutions to reach a broader set of enterprise data sources."

Jon Prial, vice president - content management and discovery, IBM, said, "With this announcement, we are providing IBM enterprise search customers, additional tools to help them more easily find information wherever it is, now including the desktop. WebSphere Information Integrator OmniFind Edition is the first mainstream, enterprise scale solution that enables users to search, based on concepts and facts, not just keywords, to find the exact information they are looking for across the enterprise. This, coupled with Google Desktop for Enterprise, creates a powerful search combination across the desktop and a variety of enterprise sources."

Google Desktop for Enterprise is available for download, at no cost, from http://desktop.google.com/enterprise; IBM WebSphere Information Integrator OmniFind Edition Plug-In for Google Desktop for Enterprise, can be downloaded free of cost, from the IBM DeveloperWorks site.

India finds 2001 Roche patent application for Tamiflu?

from businessstandard: A high-level committee’s decision not to circumvent the pending patent application of Roche, filed in 2001, will delay but not deny the launch of the domestic version of the drug, as the Indian companies will now have to wait for a licence from the patent-holder.

(...)

DG Shah, secretary-general, Indian Pharmaceutical Alliance, thinks it is heartening that the government has recognised the emergency, but feels it should have been more proactive by invoking Section 92 (provision of compulsory licence issue) to expedite domestic production. Roche’s Indian executives were unavailable for comments.

“Marketing authorisation is a good thing but the provision for a compulsory licence should have been invoked. Now, the launch of the generic version by Indian companies like Ranbaxy and Cipla will be delayed as the licencer will take time in responding to them. After that happens, there will be negotiations on the royalty rate,” explains Shah.

Searching for "patent reform" on Google

The number of hits for +"patent reform" +2795 dropped to 673 on October 30 at about 8:30am.

To review the first few pages-->

First page of hits:
thomas.loc.gov (2)
abanet.org
patentlaw.typepad.com (blog entry for June 2005)
publicknowledge.org (2)
govtrack.us
law.com
ipo.org
vcexperts.com

Second page of hits:
promotetheprogress (2)(blog)
smalltimes.com
arentfox.com (law firm entry)
house.gov
townsend.com (2)(law firm entry)
patentbaristas.com (blog)
jonesday.com (law firm entry)
wikipedia.org

Third page of hits:
moneycentral.groups.msn.com
bakerbotts.com (law firm entry)
4ipt.com (2)
ipfrontline.com
releases.usnewswire.com
ipbiz.blogspot.com (blog; entry on continuations)
govtrack.us
blackenterprise.com
ipo.org

Fourth page of hits:
patentlaw.typepad.com (blog, July 05 entry)
fr.com (law firm entry)
boston.bizjournals.com
acenet.edu
nyls.blogs.com
autm.net
gbpatent2.com (law firm entry)
cio.com (citing NJLJ article)
arentfox.com (law firm entry)
smalltimes.com

The entry for IPBiz on Cleere appears on the 6th page of hits.

There is an entry on page 8 for RIPLA which is a link to a pdf document prepared by the IPO. The only "hit" was for the link, not for a substantive paper. At the link, one finds a three page chart which compares certain features among H.R. 2795 (as introduced on June 8, 2005), the substitute H.R. 2795 presented July 26, 2005, and the industry "redline" (Sept. 1, 2005).

From a question of search strategy, this comparison chart might be a more useful piece of information than most of the hits in the earlier pages of the Google search results.

There was a reference to my "Patent Reform 2005: Sound and Fury" paper on page 16, but a link to the actual paper certainly was not in the first 16 pages. In the first 16 pages, there is a lot more fluff about patent reform than substance.

Nobel Laureate Richard Smalley of buckyball fame dies on Oct. 28, 2005

Richard Smalley, who shared the 1996 Nobel Prize in chemistry with Sir Harold Kroto and Richard Curl, died on Friday, Oct. 28, 2005 from his fight with lymphoma.

Scientific American reported:

Nobel laureate Richard E. Smalley, one of the co-discoverers of "buckyballs" and other fullerenes, died on Friday after years of intermittent struggle with non-Hodgkin's lymphoma. Those of us who had a chance to work with him over the years, however briefly, are left saddened; he seemed like a good man. As his autobiographical entry for the Nobel Prize organization makes clear, he enjoyed a brilliant career long even before buckyballs and carbon nanotubes made him one of the most famous chemists of our time.

Scientific American quoted Smalley about his fight with lymphoma:

Let me give you just one, personal, example: cancer. I sit before you today with very little hair on my head. It fell out a few weeks ago as a result of the chemotherapy I've been undergoing to treat a type of non-Hodgkin's lymphoma -- the same sort that recently killed King Hussein of Jordan. While I am very optimistic, this chemotherapy is a very blunt tool. It consists of small molecules which are toxic -- they kill cells in my body. Although they are meant to kill only the cancer cells, they kill hair cells too, and cause all sorts of other havoc.

Now, I'm not complaining. Twenty years ago, without even this crude chemotherapy I would already be dead. But twenty years from now, I am confident we will no longer have to use this blunt tool. By then nanotechnology will have given us specially engineered drugs which are nanoscale cancer-seeking missiles, a molecular technology that specifically targets just the mutant cancer cells in the human body, and leaves everything else blissfully alone. To do this these drug molecules will have to be big enough -- thousands of atoms -- so that we can code the information into them of where they should go and what they should kill. They will be examples of an exquisite, human-made nanotechnology of the future. I may not live to see it. But, with your help, I am confident it will happen.

The journal Small Times reported On Oct. 28:

Rick Smalley died today after a long battle with non-Hodgkin’s lymphoma. He was a good friend to many people in the nanotechnology community, including Small Times. In 2001, he agreed to make himself accessible for three days to be profiled in the inaugural issue of Small Times magazine. The company then had no name recognition, no print publications and only a few online readers.

He remained a stalwart advocate for this publication and for efforts by many others who he felt shared his dedication toward furthering nanotechnology. He also could be a biting critic of those whose views he found scientifically objectionable.

Rick Smalley will be remembered for his scientific genius, his relentless drive and commitment to achieving the best – the traits that make him a giant. Hopefully history will also recognize his other attributes: his great sense of humor, generous spirit and endless curiosity.

Patti Glaza had written in Small Times on October 11:

I'm sure I wasn't the only person attending a recent conference in California who saw the irony in Eric Drexler giving the plenary talk in place of the International Society of Optical Engineering's 2005 Visionary Award winner, Richard Smalley. Unfortunately, Smalley faced travel restrictions because of a cancer treatment he was undergoing. Needing to find a replacement quickly, conference organizers selected Drexler to lead off their nano session.

(...)

Smalley won a Nobel Prize for his part in discovering buckminsterfullerenes. Deciding that nanotubes had more application promise than buckyballs, Smalley has been actively driving research in "buckytubes" at Rice University. He is also an entrepreneur, starting Carbon Nanotechnologies Inc., a Texas-based supplier of – what else – carbon nanotubes.

Mylan ready to make Tamiflu?

"We have the ability to produce very large quantities" of the vaccine, Robert Coury (CEO of Mylan) said. "Not everybody has our capacity." He said later that if it receives the nod from Roche, Mylan would make Tamiflu in its Morgantown, W.Va., production plant.

However, note the creator of the active ingredient of Tamiflu is Gilead, not Roche.

Of the Gilead connection, note the relationship of the Tamiflu business to Donald Rumsfeld; from AP:

In a memo released October 28, 2005, Rumsfeld repeated his ongoing plan to recuse himself from any decision that involves Gillead Sciences, Inc., in which he has long had a financial interest. He disclosed his interest when he became secretary and said he would not take part in any matters that could affect that interest.

Specifically, Rumsfeld said he would not participate in any way in the development and acquisition by the government of vaccines and treatments for bird flu. But he said he will participate in issues involving possible quarantines and use of military personnel in any outbreak, as well as the delivery of humanitarian assistance by the military.

The AP article also states:

Tamiflu was invented in 1996 by scientists at Gilead, which quickly sold all commercial rights and manufacturing responsibility to the Swiss giant Roche Holding AG, in exchange for annual royalties.

Actually, Gilead gave an exclusive license to Roche. There are conditions under which Gilead could reclaim its interest, and Gilead has been asserting these conditions since July 2005.

Too late to "break" Gilead patent/Roche license?

from thebusiness: But with the demand for Tamiflu outstripping supply, the world waits to see whether its assurance of “patents [not] standing in the way of producing the drug for mankind” is acted on without economic discrimination. Patents for drugs can be broken by governments in the interest of national security and while this has yet to happen, if it were it is unlikely it would come in time.

CAFC affirms descriptive label in Stereotaxis case

In a trademark case, the CAFC cited In re Bed and Breakfast Registry, 791 F.2d 157 and In re Abcor, 588 F.2d 811.

RIM takes license on Forgent's '672 patent as to JPEG

RIM has licensed the JPEG patent, No. 4,698,672 ("the '672 patent") from Forgent.
The one-time perpetual licence covers all of Waterloo, Ontario-based RIM's BlackBerry devices and its BlackBerry Connect messaging service, which allows wireless always-on access to e-mail and corporate data on portable devices. Financial terms of the agreement were not disclosed.

Short for "Joint Photographic Experts Group," JPEG is a lossy compression technique for color images and widely used for displaying photographs and graphics on Web sites. In a patent portfolio acquired from Compression Labs in 1997, Forgent discovered a patent it alleged covered JPEG, the popular compression standard.

Another district court claim construction reversed: Dane v. Ameritek

In a nonprecedential decision, the CAFC reversed a claim construction of the District of Minnesota. The patents at issue were 6,220,379 and 5,934,694. The CAFC found the district court was correct about assignor estoppel. Of the latter, the CAFC cited Diamond Scientific, 848 F.2d 1220 and Pandrol v. Airboss. There was a lurking issue of inequitable conduct.

Google base, ultimate database?

from news.com:

Google is testing a new service that would allow consumers to post and make searchable any type of content, the company confirmed this week. [LBE note: hope their searching hierarchy is better than Google itself! See earlier posts on "patent reform."]

Screenshots of the "Google Base" service surfaced this week, immediately prompting speculation that the search giant was getting ready to take one...someone.

Was the new offering the precursor to a new e-commerce site that could wipe eBay and Craigslist off the map? Or maybe Google was developing a massive information storage service?

For its part, a Google spokeswoman stated that the site was merely experimenting with a way to "provide content owners an easy way to give us access to their content."

Isn't the Bayh-Dole Act supposed to help American companies?

Hmmm, wasn't the Bayh-Dole Act supposed to help small American companies in the face of challenges from Japan circa 1980? Ironically, we now have technology from the University of Michigan going to a Japanese company (Aisin Seiki) to make products in Kariya, Japan? Sublimely ironic.

-->As part of a program to provide customer support in precision materials processing applications, Imra America Inc. has secured micromachining patent rights from the University of Michigan; both are located in Ann Arbor. Through the license agreement, Imra can extend the use of patented processes to end users and system integrators that purchase its laser products as part of a femtosecond-laser-based micromachining station or setup. The patent covers a method for producing micron-scale features in a variety of materials without inducing thermal damage to surrounding material, using ultrashort laser pulses.<--

IMRA, "Institut Minoru de Recherche Avancée", and now IMRA Europe S.A. - first opened in Valbonne/Nice, France, in 1986. The Femtolite™ ultrafast fiber laser series, the first IMRA America product line, is manufactured in Kariya, Japan, at a facility close to the headquarters of IMRA's parent company, Aisin Seiki.

Australian law professor says break the Tamiflu patent

from UPI:

Public health specialist Dr. Buddhi Lokuge and Professor Peter Drahos, an Australian National University law professor and head of the Regulatory Institutions Network, called on Australia to begin replenishing avian flu antiviral stocks.

They said Australia can't get more of the antivirals because of the patents held by companies who aren't producing enough.

They say governments have the obligation to help their citizens despite patents, and giving generic manufacturers the rights would enable a cheap, mass produced product to be on the health system's shelves if needed in a flu outbreak.

Of course, here, the actual patent holder Gilead is also complaining about the lack of production by the exclusive licensee, Roche Holdings, a fact overlooked by law professor Drahos.

***
A starting material in the synthesis of Tamiflu (shikimic acid, 3,4,5-Trihydroxy-1-Cyclohexene-1-Carboxylic Acid; 3,4,5-Trihydroxy-1- cyclohexene carboxylic acid) can be derived from the star anise plant.

from US 5,763,483 to Bischofberger et al. of Gilead:

Other aspects of the invention are directed to methods of using shikimic acid to prepare compound 270 shown as A in Schemes 36, methods of using compound 270 to prepare compound 271 shown as B in Schemes 36, methods of using compound 271 to prepare compound 272 shown as C in Schemes 36, methods of using compound 272 to prepare compound 273 shown as D in Schemes 36, ...

Epoxy alcohol 1: Prepared from shikimic acid by the procedure of McGowan and Berchtold, "J. Org. Chem.", 46:2381 (1981).


The '483 patent cites:
Ganem, Bruce, "Tetrahedron Report Number 59. From Glucose to Aromatics: Recent Developments in Natural Products of the Shikimic Acid Pathway," Tetrahedron 34:3353-3383 (1978).

Miers withdraws

from AP, Oct. 27, 05: Harriet Miers withdrew her nomination to be a Supreme Court justice Thursday [Oct. 27] in the face of stiff opposition and mounting criticism about her qualifications.

I found the earlier comment about Miers needing a crash course in constitutional law interesting. In light of the recent NJ Supreme Court decision in R.M. v. New Jersey Supreme Court, 2005 N.J. LEXIS 1140, do the New Jersey Professional Responsibility Rules Committee
(PRRC) and the New Jersey State Bar Association need a crash course in First Amendment law?

The Bar Association wanted to protect the reputation of lawyers charged, but not found guilty, of infractions. In New Jersey, most lawyers escape. According to the Office of Attorney Ethics, there were 1,703 grievances docketed and investigated in 2003. Formal complaints -- the point at which the process now is opened -- totaled 196. That same year, there were 193 discipline
sanctions imposed and 51 matters diverted from the system with guilt
admitted to minor infractions in exchange for avoiding public discipline.

I'll be discussing the general issue in the November 2005 issue of Intellectual Property Today. It does seem that a lot of real problems are swept under the rug.

R.M. v. Supreme Court of New Jersey, 2005 N.J. LEXIS 1140

In R.M. v. Supreme Court of New Jersey, 2005 N.J. LEXIS 1140, R.M. won.

As written and as applied, Rule 1:20-9 violates the First
Amendment because it is not narrowly tailored to serve a compelling interest. A grievant may discuss publicly the fact that he or she has filed a grievance, the content of that grievance, and the result of the process.

The New Jersey Supreme Court cited Roth:

Far from safeguarding only profound statements on topics of great import, the First Amendment protects "all ideas having even the slightest redeeming social importance." Roth v. United States,
354 U.S. 476, 484, 77 S. Ct. 1304, 1309, 1 L. Ed. 2d 1498, 1507 (1957).

Additionally,

To sustain government proscription of the publication of truthful speech, the State has the burden of demonstrating that the law furthers a compelling interest. First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S. Ct. 1407, 1421, 55 L. Ed. 2d 707, 724 (1978). Moreover, even if the regulation of speech
advances a compelling interest, the State must also show that the
regulation is narrowly tailored to achieve that interest. Shelton v. Tucker, 364 U.S. 479, 488, 81 S. Ct. 247, 252, 5 L. Ed. 2d 231, 237 (1960).

Importantly,

Shielding dismissed grievances behind a permanent wall
of silence does less to "enhance respect" for the legal profession and the ethics process than it does to "engender resentment, suspicion, and contempt." Landmark, supra, 435 U.S. at 842, 98 S. Ct. at 1543, 56 L. Ed. 2d at 12 (quoting Bridges, supra, 314 U.S. at 270-71, 62 S. Ct. at 197, 86 L. Ed. at 207). We conclude, therefore, that even when the ethics authorities deem a grievance to
be meritless, the grievant has the constitutional right to discuss and disagree with the determination of those authorities.

UPDATE. Oct. 30

from MyShingle :

This article, Lawyer Fights Back from Disbarment, NYT (10/30/2005) reports on former solo David Dean who 15 years ago was earning seven figure income as a successful plaintiffs' attorney.

UPDATE. Dec. 7

Lawyers rate low in a Gallup Poll on honesty:

Here are the rankings, with the percentage giving each group a high or very high ranking:

Nurses 82
Druggists/Pharmacists 67
Medical doctors 65
High school teachers 64
Policemen 61
Clergy 54
Funeral directors 44
Bankers 41
Accountants 39
Journalists 28
Real estate agents 20
Building contractors 20
Lawyers 18
Labor union leaders 16
Senators 16
Business executives 16
Stockbrokers 16
Congressmen 14
Advertising practitioners 11
Car salesmen 8
Telemarketers 7

India to produce Tamiflu?

Prior to changes in the law this year, India only granted patents on methods to make drugs, not on the underlying composition of mattter. With Tamiflu, there seems to be a debate on whether Roche (Gilead?) applied. Recall that it is Gilead, not Roche, who owns the U.S. patent on the composition! Thus, in the report below, one wonders how a person at Roche could say they have applied for a patent in India.

-->from swissinfo-->
The Indian government has given the go-ahead for production of a generic version of the antiviral drug, the Times of India reported on October 25, 2005. Thailand and Argentina are said to be considering a similar move.

The Indian newspaper report said firms in the country could start production straight away without Roche's approval because the Basel-based pharmaceutical company had not applied for a patent in India.

The announcement prompted a swift and unambiguous response from Roche. "We have applied for a patent," a spokeswoman said.

The World Health Organization has warned of a possible pandemic of the fatal H5N1 bird-flu virus. Since the disease first emerged in 2003, occasional outbreaks among humans have killed more than 60 people in southeast Asia.

Stockpiling

Tamiflu is considered one of the few drugs likely to be effective against the spread of the disease among humans. Since the latest outbreak, countries around the world have rushed to stockpile the antiviral drug prompting concerns that Roche will be unable to keep up with demand.

Roche said last week it was ready to share production of Tamiflu with rival firms but ruled out relinquishing the patent for the drug.

The Indian generic drugs maker, Cipla, was among the first companies to announce it wanted permission to produce a version of Tamiflu. According to the Times of India, both Cipla and another manufacturer, Ranbaxy, wrote to Roche requesting permission to make the drug under a licence agreement but received no response.

"For us, the problem is not the patent but the capacity for Tamiflu production," the Roche spokeswoman said in comments reported on Thursday. "We have ten years' experience and we would like to be consulted as this is a long, complex process."

**
from Indianexpress:

When it comes to India, Swiss pharma giant Roche does not have a ‘‘product patent’’ for Tamiflu, its highly prized anti-influenza drug, the only one known to be effective against bird flu. Roche has a patent in most countries [?] valid until 2016 but has been a bit slow tapping the Indian market.

This means Indian companies can now manufacture generic versions of the drug for Indian markets but cannot export these products.

Confirming this to The Indian Express, Dr Ashwani Kumar, Drug Controller General of India, said: ‘‘Roche does not have a product patent in India and international patent is not enough according to Indian patent laws. The companies can manufacture generic versions of the drug medicine by filing a licensing application with the government.’’

But the government hasn’t received any applications from Indian companies yet.

Speaking to The Indian Express from Basel, Switzerland, spokesperson for Roche Martina Rupp said the firm had a patent pending in India. ‘‘This is not about patents but it is about manufacturing capacity. Our doors are open for companies to come and have a fact-based discussion with us,’’ she said. ‘‘The manufacturing of Tamiflu is lengthy and expensive and we have a lot of experience in it.’’

Ranbaxy, which is talking to Roche, says it’s not just looking at the Indian market.

‘‘We have approached Roche for a non-exclusive license for all countries. The issue cannot be looked at country wise,’’ said Ramesh L. Adige, ED for Corporate Affairs.

According to him, however, drugs for India should not be a problem.

‘‘We are willing to manufacture the drugs with cooperation with the government of India,’’ he added.

Speaking to The Indian Express, Amar Lulla, Joint Managing Director of Cipla—which said it would be ready with a generic version by early next year—agreed that manufacturing in India should not be a problem under the new scenario.

Last week Ranbaxy and Cipla both wrote to Roche expressing their desire to manufacture Tamiflu’s generic version. Roche had earlier said it wants to remain the drug’s lone manufacturer but has shown flexibility following international pressure.

In a statement last week, it said it’s ready to license the drug to generic companies across the world.

***

From Yaron Brook:

Instead of threatening Roche, we should be praising it for having the foresight to license and manufacture Tamiflu, the drug that appears to be the most effective treatment for the current strand of avian flu.

***
Alec Van Gelder in Patent Nonsense And Avian Flu repeats many of the mistakes of past writers.

So far only one medicine has proved effective in treating human cases of H5N1. That medicine, Tamiflu, was developed by pharmaceutical company Roche, which owns the patent. Because of the pressure to "do something", politicians are considering breaking Roche's patent on the populist premise that this will increase the availability of Tamiflu. Tamiflu was developed by Gilead, who owns the patent. No one is talking about breaking "Roche's patent."

First, the raw ingredients for Tamiflu come from a Chinese herb which is in short supply. Unless production of the herb is increased, it will be impossible to increase production of Tamiflu. In this case, breaking the patent would have no impact on availability of the drug. Tamiflu can be made without the use of star anise.

Second, Tamiflu is difficult to manufacture. Since Roche has developed the manufacturing expertise, it seems sensible to encourage Roche to increase production and/or to help other companies produce the drug under a voluntary licence. Breaking the patent through a compulsory license would actively discourage Roche from either producing the drug or lending its expertise, which would be directly counterproductive. There is more than one way to make Tamiflu, and Indian companies have already developed expertise and are ready to go.

It would be helpful if Alec Van Gelder got his facts straight. Van Gelder does conclude:

But the most important role for government is to uphold private property rights and ensure that the rule of law applies - which means protecting rather than breaking patents. The alternative - the rule of the mob - would truly be devastating.

Conference on avian flu in Ottawa, 24-25 Oct

Some officials at the opening Oct. 24, 2005 of a two-day conference on battling a potential flu pandemic discussed whether they might have to break international patent regulations to produce generic versions of Tamiflu — one of the only drugs effective against the virus — if it came down to saving their civilians.

The USAToday article erroneously referred to Roche as the patent holder of the patent on Tamiflu: A Taiwan scientist holds a generic version of Tamiflu Friday, though patent-holder Roche has warned against producing it.

"A suggestion that's being made by some countries is that there are countries that have the capacity to manufacture the vaccine, that we actually need to assist them with technology transfers," Canada's Health Minister Ujjal Dosanjh told a news conference. He said technology transfers was "a euphemism for loosening the patent laws."

He was referring to India, whose health officials are weighing whether there is enough risk of bird flu spreading in their impoverished nation to invoke a licensing clause to lift Swiss pharmaceutical company Roche's patent of Tamiflu. The drug is one of only two believed to be effective against the H5N1 strain of bird flu, which has already killed more than 60 people in Asia since 2003.

Officials insisted the obsession with Tamiflu must not overshadow preventing the H5N1 strain from mutating into a human strain that could kill millions worldwide.

The USAToday article continued:

On Tuesday, Mexico's health minister Julio Frenk was expected to call on wealthier nations to set aside 10% of their stores of anti-virals for the developing ones.

"Just imagine the ethical, political and security implications of a world where only rich countries have access to lifesaving drugs or vaccines, and the rest of the world stands while they march toward death," Frenk told The Canadian Press. "That is an unsustainable scenario."

World Health Organization Director General Lee Jong-Wook said some countries were suggesting that devoting 5% of their stores was more in line with reality, but conceded some countries likely would horde drugs in the face of a true pandemic.

"In time, when there's a real need for Tamiflu, the basic instinct will be, 'This is for our people,' and it's an unnatural act to share this precious small quantity of medicines with others," Lee said. That is why, he said: "It makes a lot of sense to try and put out the fire out there, rather than waiting for this wave to reach you."

***
A photograph in the story shows a bottle of "generic" Tamiflu in the hand of a Taiwanese scientist. One sees a cyclohexene ring with substituents -COOEt, -NH2H3PO4, =NHAc. The formula weight appears to be 319.

Tamiflu patent to Gilead; licensed to Roche

etopiamedia:

While there may be some controversy and some dispute about who, under which laws, is entitled to manufacture the anti-viral medication oseltamivir (now being produced and marketed by Roche Pharmaceuticals as "Tamiflu®") for the purpose of rapidly accumulating national or local stockpiles as a possible means of mitigating the effect of a potential global avian influenza ("bird flu") pandemic, or for other, more mundane individual treatment of the flu, there can be no doubt about who owns the patent on oseltamivir.

A quick visit to the page on the United States Patent and Trademark Office (USPTO) web site that contains the "Patent Assignment Abstract of Title" for Patent #5763483 (for oseltamivir) clearly shows that Gilead Sciences, Inc., located at 353 Lakeside Drive, Foster City, California 94404, is the patent holder, having been assigned it by the five named researchers who invented this particular "carbocyclic compound."

This patent having been filed, as shown on this page, on December 27, 1996, and with U.S. patents running for 20 years from the date of filing, Gilead Sciences' patent on oseltamivir will not expire until December 26, 2016.

***
The patent claims priority only to a provisional:
This application claims priority from U.S. Provisional Application Ser. No. 60/009,306, filed Dec. 29, 1995, was filed December 27, 1996, and issued June 9, 1998. The patent has been cited by 16 US patents.

A later patent (6,605,302) states:

A new class of specific anti-influenza agents, the neuraminidase inhibitors, has demonstrated potent inhibition of both influenza A and B viruses. Oseltamivir (OS, GS4104, EN 241104, RO 64-0796, oseltamivir phosphate, an antiviral neuraminidase inhibitor) is used for the treatment of viral infections; however, it does not treat nasal congestion. Oseltamivir is the ethyl ester prodrug of the carbocyclic transition state sialic acid analog RO 64-0802 (GS4071), a potent and selective inhibitor of influenza A and B virus neuraminidases. Oral oseltamivir was approved for treatment of acute influenza in the United States in 1999. It has demonstrated efficacy both in treating and preventing influenza illness.

Oseltamivir phosphate (Ro64-0796, GS4104) is a prodrug of oseltamivir carboxylate (Ro64-0802, GS4071), a potent and selective inhibitor of the neuraminidase glycoprotein essential for replication of influenza A and B viruses. Oseltamivir (Tamiflu.RTM.) is available from Roche Pharma.TM. AG (Switzerland). Alternatively, oseltamivir can be prepared according to the methods described in U.S. Pat. No. 5,763,483 to Bischofberger et al and U.S. Pat. No. 5,866,601 to Lew et al., the disclosures of which are hereby incorporated by reference.

MicroUnity gets $300 million from Intel in settlement

The San Jose Mercury reports that Intel has agreed to pay MicroUnity $300 million to settle a 17 year old patent suit. Hmmm....

John Moussouris said of MicroUnity: ``People think we're a dormant company. We've been quietly working all this time. The lawsuit is one element.''

The same story (by John Takahashi) also contains:

Compiled by Peter Hirshberg, an executive vice president at Technorati, the blog search engine, one funny snippet was the first ``product placement.'' CBS News had a Univac computer on the set to help call the 1952 presidential election. But Hirshberg noted CBS didn't listen to its on-site pundit. Instead, the network called Adlai Stevenson the winner, who ended up losing to Dwight Eisenhower in a landslide.

I mentioned part of this story in Intellectual Property Today. I am not sure about the "on the set" part; however, CBS (specifically in coverage by Walter Cronkite) was relying on the pollsters (including Gallup) who were not using computers in 1952.

My point in IPT was related to the "transistor only for hearing aid" story advanced by Mark Lemley. In 1952, when neither Walter Cronkite nor the pollsters believed in the power of computers, AT&T/Bell Labs already had a contract to develop a computer, using (point contact) transistors, to fly on an airplane. If the Hirschberg story of "life in 1952" is amusing, the "transistor only for hearing aid" story in 2005 is even funnier.

Taiwan to go ahead with Tamiflu, with or without permission of patent holder

Taiwan says it is making its own version of the best-selling antiviral drug Tamiflu, whether its original manufacturers agree or not.

The authorities say they still hope talks with the exclusive licensee, Swiss-based pharmaceutical giant Roche will bear fruit, but that the priority is to protect the public from the worst effects of bird flu.

The BBC reports that the proposed product in Taiwan is not identical to Tamiflu:

A generic version of the drug produced by the island's National Health Institute is said to be 99% akin to the Tamiflu produced by Roche.

Officials say they can make their version of the drug more quickly - and at a lower cost - than Roche does.

Although Taiwan has not had a serious outbreak, the virus has killed thousands of poultry - and scores of people who came into contact with the birds - in nearby countries.

Tamiflu is a chemical compound. There is no such thing as a generic version of a compound which is only 99% "akin" to the compound. Thus, it is not clear what is going on here.

Tamiflu is hard to synthesize, and, separately, it is not even clear that Tamiflu will be effective, even if taken within 48 hours of exposure.

AP on HR 2795, Oct. 22: "The Wright Brothers -- two slobs in Dayton"

The article begins with quotes from small inventor George Margolin who fears his ability to create is threatened by the legislation of HR 2795 which he says would yank patent protections from little guys like him in favor of big corporations like Microsoft.

The article mentions U.S. Patent No. 5,443,036, issued for a method of using a laser pointer "in an irregular way fascinating to cats" so the animal gets aerobic exercise, which although odd, can hardly be accused of blocking innovation.

The last paragraph: But Margolin and his group, the Professional Inventors Alliance, say the changes would allow big companies to endlessly contest legitimate patents and patent applications. They say the bill would protect corporations with the means to rush to file their applications first over small inventors who actually come up with the ideas, and make it unreasonably difficult for individual patent-holders to pursue legitimate lawsuits against companies that steal their inventions.

The article does not mention fee diversion. The article covers oppositions in a confusing way: the bill includes provisions allowing patents to be challenged for nine months after they are issued, and allowing third parties to present evidence to the patent office related to pending patent applications.

The unfortunate incentives for splogging

Ranking in searches using Google was based loosely on an academic model of citations. In academics, the more frequently something is cited, the "better" or "more valuable" it is deemed to be. On the internet, this can translate into the more "other sites" link to a given site, the "better" or "more valuable" the given site is, and it will be ranked higher in a Google search. When one has thousands of hits for a search, it is likely that the searcher is only going to look at the first few, so that high ranking on a Google search is critical to a given site being viewed. Splogging was an unfortunate response to the way Google ranks things.

To take a specific example of a search, consider
+"patent reform" +2795

At about 6am on Oct. 22, this returns 686 hits.

On the first page, we have
thomas.loc.gov (2)
ieeeusa.gov
patentlaw.typepad.com (blog, from June 2005)
publicknowledge.org (2)(brief undated, unsigned article)
govtrack.us
law.com (an article on the bill by Peter Geier written 8-19-05)
ipo.org
smalltimes.com (an article by Greg Mayer written 10-3-05)

On the second page, we have
vcexperts.com (synopis of a seminar by John T. Johnson, undated)
house.gov
townsend.com (2)(from a law firm)
promotetheprogress.com (2) (blog, from June 2005)
jones.com (law firm, press update, from June 2005)
wikipedia.org
usnewswire.com (release from Prof. Inventor Alliance, 8-17-05)
bakerbotts.com (law firm, dated Oct. 05)

On the third page, we have
govtrack.us
blackenterprise.com (republication of article in Idaho Business Review)
patentlaw.typepad.com (blog, from July 05)
acenet.edu
cio.com (Aug. 18 reference to my article in July 18 issue of NJLJ)
boston.bizjournals.com
fr.com (law firm, July 26 article)
patentbaristas.com (blog, Aug. 29 guest blog post by Lee Thomason)


I could go on, but one sees this appears like a random mix of entries, random in date, random in origin, random in content, but somehow "ranked."

Of the cio.com entry, it is interesting to note that an entry talking about an article appears before the article itself.

On page 4 of the search, we find the same smalltimes.com article that appears of page 1 of the search. Exactly the same content leads to a ranking on page 1 and on page 4. Huh?

At about 6:40pm on Oct 22, the search returned 685 hits:

The changes in the first page were the omission of one of the two publicknowledge hits, and the insertion between ipo and smalltimes of a reference to IPBiz.blogspot (the text about Scott Cleere; new to page 1).

On the second page, the second publicknowledge hit appeared in front of vcexperts. There were two promotetheprogress hits, followed by
house.gov
patentbaristas.com
townsend (2)
jonesday
wikipedia

On the third page
releasesusnewswire.com (press release of Professional Inventors Alliance)
moneycentral.groups.msn (New to page 3)
bakerbotts
IPBiz.blogspot (about continuations, new to page 3)
4ipt.coom (2; New to page 3)
ipfrontline.com
govtrack.us
blackenterprise.com
patentlaw.typepad.com (July 2005)

The hit to cio moved to page 4. The second hit to smalltimes remained on page 4.
On page 15 we have a hit from the Aug 05 EEJD blog and a hit to the IPT article "Imagine: No more indecision in intellectual property cases."

Through page 25 (the last displayed) my article in the New Jersey Law Journal, which was explicitly about patent reform in HR 2795 was not included in the hits.

At about 9:20am on Oct. 23, the same search returned 685 hits.

First page:
thomas.loc.gov (2)
ieee.org
patentlaw.typepad.com (blog entry from June 2005)
govtrack.us
publicknowledge.org
law.com (article by Peter Geier of Aug. 19, 2005)
ipo.org
smalltimes.com
vcexperts.com

Second page:
publicknowledge.org
house.gov
townsend.com (2) (law firm entry)
promotetheprogress.com (2)(blog)
jonesday.com (law firm entry)
wikipedia.org
usnewswire.org (press release)
bakerbotts.com (law firm entry)

Third page:
govtrack.us
blackenterprise.com
patentlaw.typepad.com (blog, entry from July 2005)
cio.com (referring to July 2005 NJLJ)
boston.bizjournals.com
acenet.edu
fr.com (law firm entry)
patentbaristas.com (blog, entry Aug. 29, 2005)
arentfox.com (law firm entry)

Fourth page:
autm.net
smalltimes.com
steptoe.com (law firm entry)
fr.com (law firm entry)
bio.org
bayoubuzz.com
ipfrontline.com
foley.com
acenet.edu
strafford.pub.com

Fifth page:
strafford.pub.com
judiciary.senate.gov
foley.com (law firm entry)
aau.edu (2)
bna.com
newsfactor.com
sciencemag.org
law.washington.edu
mainelaw.maine.edu

Sixth page:
moneycentral.groups.msn.com
ip-watch.org
ucf.edu (republication of article by Molly Laas in FDC reports)
piug.derwent.co.uk
4ipt.com (2)
piausa.org
bakernet.com (law firm entry)
corante.com
managingup.com

(The IPT article "Imagine" appears on page 15; the entry for IPBiz (Cleere) had moved to page 22; the entry for IPBiz (continuations) had moved to page 23).

The results of a search clearly depend on "when" a search is made. In the result sequence, a hit can move over twenty pages in less than one day.

Search results 12 noon on Oct. 25:

First page:
thomas.loc.gov (2)
ieee.usa
patentlaw.typepad.com (blog entry June 2005)
publicknowledge.org
govtrack.us
law.com
ipo.org
ipbiz.blogspot.com (blog entry, Cleere, Oct. 2005)
smalltimes.com

Second page:
publicknowledge.org
vcexperts.com
promotetheprogress.com (2)(blog entry June 2005)
house.gov
patentbaristas.com (blog entry)
townsend.com (2)(law firm entry)
jonesday.com (law firm entry)
wikipedia.org

Third page:
releases.usnewswire.com
moneycentral.groups.msn.com
bakerbotts.com (law firm entry)
ipbiz.blogspot.com (blog, continuations)
4ipt.com (2)
ipfrontline.com
govtrack.us
blackenterprise.com
patentlaw.typepad.com (blog entry July 05)

Fourth page:
cio.com
boston.bizjournals.com
acenet.edu
nyls.blogs.com
fr.com (law firm entry)
gbpatent2.com (law firm entry)
arentfox.com (law firm entry)
autm.net
smalltimes.com
piausa.org

Fifth page:
steptoe.com (law firm entry)
fr.com (law firm entry)
bio.org
ipfrontline.com
straffordpub.com (2)
bayoubuzz.com
foley.com (law firm entry)
acenet.edu
piausa.org

****
from hankyoreh-->

Kim Cheol-su (not his real name), the operator of a popular blog, recently had a disconcerting experience. A writing of his that he had not even posted appeared on a portal site as a popular piece. When he investigated it, he found that someone was operating a “phantom blog,” presenting Kim’s blog writings intact as if they were that person’s own work. He visited the blog and left a message protesting this, but there was no response. This was an example of what is being called a “splog,” or a “spam blog,” which raises advertising revenues by presenting content from famous blogs.

Scientigo to sue over XML uses?

The patents pertain to data in neutral forms.

From David Berlind at zdnet:

CEO of Scientigo has plans to extract royalties from those who have implemented the XML specification including Microsoft, Oracle, and Amazon (actually, he could probably sue everybody), I asked the man credited with co-inventing XML — Sun's Tim Bray — what he thought of the news. Wrote Bray:

The notion that an application filed in January 1997 can cover a technology whose first public draft was in November 1996, and which was based on a then-ten-year-old ISO standard, seems ridiculous on the face of it. So one assumes that they're not trying to put a tollboth on XML itself, it must be some particular B2B application of it or some such. There are no specifics of what they're claiming on their Web site.

The then-ten-year-old ISO standard to which Bray is referring is SGML. According to Bray, XML "is just (SGML - 80%) + URIs for external references + Unicode." Given that Scientigo CEO Doyal Bryant specifically mentioned Amazon as a potential target for royalty extraction, Bray could be right about the e-commerce angle. To the extent that vendors like Oracle and Microsoft have platforms that may facilitate potentially infringing e-commerce applications, they could be targets too.

To figure out what's going on, it would be helpful to look at the claims of the patents!

***
US 5,842,213, Method for modeling, storing, and transferring data in neutral form, issued November 24, 1998

Claim 1:

1. A method of organizing and storing a set of information in neutral form in a computer based environment comprising the steps of:

a) organizing the set of information into instance data sets;

b) defining a time basis for the collection of instance data sets;

c) organizing each instance data set into an instance cluster comprised of data instance nodes;

d) assigning to each data instance node in an instance cluster a distinguishing structural tag comprising the following three components:

a data reference;

a data type;

a data organization;

e) defining the components of the structural tag for each data value in each instance cluster;

f) assigning properties of the data value to each structural tag;

g) storing the names of all of the structural tag elements together with their respective definitions and properties in a suitable format;

h) combining each data value and its respective structural tag to form a neutral form expression of the data; and

i) storing the resultant neutral form expression of the data value.

(patent cited by 12 US patents)

**
US 6,393,426 (based on PCT Filed: January 28, 1998. This application is a 371 of PCTUS98/01630 filed on Jan. 28, 1998 and is a continuation of U.S. application Ser. No. 08/789,860 now U.S. Pat. No. 5,842,213, filed Jan. 28, 1997.)

Claim 1:
1. A method of modeling a set of information for storage in neutral form in a computer based environment, comprising the steps of:

a) modeling the set of information into instance data sets, each composed of an instance cluster comprised of data instance nodes, each data instance node in an instance cluster containing an assigned distinguishing structural tag comprising:

(1) a data reference

(2) a data type

(3) a data organization; and

b) each structural tag having defined components for each data value in each instance cluster.

(This is referenced by zero patents.)

No stay for RIM in BlackBerry case

On October 21, 2005, the U.S. Court of Appeals for the Federal Circuit denied RIM's motion to suspend the case pending RIM's request for a U.S. Supreme Court review.

NTP said on Friday it will ask that the injunction be confirmed. The closely held firm said the injunction would not affect BlackBerry products used by U.S. federal, state, or local governments, where the wireless email device has become increasingly popular.

RIM said it believed an injunction was inappropriate but added: "It ultimately will be up to the courts to decide these matters and there can never be an assurance of a favorable outcome in any litigation."

What ever happened to the settlement in this case?

MPEP (Aug. 2005 version) available

Go to
http://www.uspto.gov/web/offices/pac/mpep/#Availability%20of%20MPEP%20in%20Paper%20Form%20and%20Other

Does the patent problem of software companies come from a lack of patent tradition?

Philip S. Johnson of J&J on complaints from software people about patents: "They don't have a tradition of working in a patented area."

Elsewhere in the Philadelphia Inquirer article:

The law now grants the patent to the first inventor. The proposed bill would grant the patent to the first-to-file. Kelly says that provision would penalize the more disorganized individual inventor in favor of corporations, which support their innovators with attorneys and secretaries.

"If we do things to discourage the independent inventor, then we strike at the very heart of what this nation is about," said Kelly. "Virtually every important invention you can think of was created by people working on their own in garages, basements and attics."

Herbert Wamsley, executive director of the Intellectual Property Owners Association, a trade group for large corporate inventors, argues the other side.

"We do support first-to-file," he said. "It simplifies patent law and reduces uncertainty. And it will have the effect of paving the way for more harmonization with the patent laws in other countries." The United States, he said, is the only nation granting patents to the first-to-invent.

One provision in the proposed bill would direct more resources to the patent office, so examiners could conduct more thorough patent reviews, Wamsley said. His members are not satisfied with the quality of patent review. When reviews are incomplete, they are more easily challenged in court, causing uncertainty and delay.

Elsewhere:

A partner in Freedom Wireless, the Arizona company that won the $128 million lawsuit against Boston Communications, says he's no troll.

"The cause of the lawsuit is not that we are patent trolls," said Larry Day, according to the Wall Street Journal. "The cause of the lawsuit is that these defendants used our patented technology to make over $1.5 billion in revenue."

Two other Freedom partners had held an unused patent involving prepaid cell-phone minutes that the jury found similar to technology used by Boston Communications.

The biggest complaints on patent trolls come from software firms. That's partly because one high-tech device such as a BlackBerry might contain technology based on dozens of patents. A suit challenging one patent could halt production on an entire device.

Software firms are pushing for stronger measures to deter what they describe as speculative lawsuits.

Patents and health emergencies: the take from Financial Times

Correcting some misinformation from the Financial Times, the relevant patent is owned by Gilead, and licensed to Roche, and, although extract from the star anise plan can be used as a precursor, a synthetic route (not involving anise) has been devised.

From Financial Times:

This problem concerns wealthy and poor nations as Roche has a backlog of orders even at the current price. Encouragingly, Roche said this week that it would consider granting other companies licences to make Tamiflu.

And so it should. If bird flu becomes a national emergency, any country can legally invoke compulsory licences and manufacture generic Tamiflu. But by the time the emergency occurs, it may be too late. Moreover, Tamiflu is complex to manufacture and - as shown by the agreements for Aids drugs - companies with voluntary licences can benefit from the licensor's manufacturing expertise. Another advantage of voluntary licences is co-ordinated sourcing of the active ingredient - extracted from a Chinese plant that is already in short supply. Generics companies will help no one if they make Tamiflu to the detriment of existing production.

Roche can defend its [sic] patent but must remain open to proposals for increasing production, and these may best be co-ordinated by an international organisation. Patents were created to encourage innovation for the public good. It is in Roche's best interests to ensure that they live up to this promise.

Also-->

Roche has already donated 3m courses of Tamiflu to the World Health Organisation but it needs to do more to make it accessible. In particular, it should use tiered pricing, a system that has greatly increased access to Aids drugs, to make it affordable for developing countries. Tiered pricing makes economic and ethical sense: drugs are sold at the price that each market can afford, but not below the cost of production. It also reduces the incentive for counterfeiting and the risk that the poorest countries will resort to buying inferior quality drugs from less reputable manufacturers.

***
Ironically, some of the people in Mumbai seem to have a better grasp on the patent ownership issue than does the Financial Times-->

from SIFY:

As the world watches how Roche supplies its anti-flu medicine Tamiflu to countries faced with the bird-flu problem, a patent twist threatens to add to the existing controversy around the drug and its availability.

Gilead Sciences, the developer of Tamiflu, is believed to have terminated its agreement with Roche, which has the exclusive marketing right on the drug. And generic manufacturers like Cipla, looking to make similar versions of Tamiflu, are now taking a close look at the intricacies of who indeed holds the patent on the drug.

According to a note from Gilead Sciences Inc, dated June 2005, the company has "delivered a notice of termination to F. Hoffmann-La Roche Ltd (Roche) for material breach of the parties' 1996 Development and Licence Agreement for Tamiflu (oseltamivir phosphate), an antiviral pill for the treatment and prevention of influenza. Through this action, Gilead is seeking to terminate the 1996 agreement, which would result in the rights to Tamiflu held by Roche reverting to Gilead."

The Cipla Joint Managing Director, Amar Lulla, told Business Line: "It is a complex issue. We have asked our lawyers to look at whether Roche has a valid licence on the drug. It is a fundamental question."

Roche top-brass in India, when contacted by Business Line, did not clarify on the issue.

Increased publicity of ethics complaints against lawyers in New Jersey

In a ruling by the New Jersey Supreme Court, clients who file grievances about their attorneys are now free to publicly discuss the grievances prior to review by an ethics grievance committee. Only the grievance committee can file a formal complaint, and in 9 out of 10 cases, no formal complaint is filed. In freeing clients to talk about complaints, the New Jersey Supreme Court declared one of its own rules unconstitutional.

Justice James Zazzali wrote: Protecting the reputations of attorneys and the bar does not justify restricting a grievant's speech, and, in fact, such restrictions breed resentment rather than respect.

Previously, in New Jersey, clients complaining about attorneys were told they could not publicly disclose their grievances until an ethics committee had reviewed them and determined they warranted a formal complaint. Among 70 regulated occupations in New Jersey, only lawyers enjoyed this freedom from disclosure.

The specific case involved the right of Randee Massler of Basking Ridge, to disclose that she had filed an ethics complaint in 2001 against Warren lawyer Michele D'Onofrio for her handling of Massler's divorce. D'Onofrio did not return calls to her office. According to the ruling, D'Onofrio, identified only as "Jane Doe," admitted "specific acts of misconduct" that the ethics committee chairman found were "minor." Accordingly, D'Onofrio was allowed to enter "diversion" and Massler was told she could never disclose her complaint. Massler decided to fight the gag order and hired Richard Gutman of Montclair, who specializes in free speech and open records cases. The ruling has only prospective impact; those clients who filed against their attorneys, which filing did not lead to a formal complaint, are still preventing from disclosing.

In the November 2005 issue of Intellectual Property Today, I write about ethics rules in Oregon. I take issue with Professor Tom Lininger who in 39 Willamette L. Rev. 1031 (2003) noted that “the public has become disillusioned efficacy of lawyers’ self-regulation” [true] but that “our state [Oregon] may place a higher premium on honesty than other states [false].

In the New Jersey matter, John Paff, who runs "The New Jersey Bartender," a Web site on disciplined lawyers, said he expects the ruling to shed light on whether ethics committees routinely downgrade serious charges to minor ones.

"We're going to be able to see if the ethics system is actually working as advertised," Paff said.

The Oregon system does not work as advertised.

***
One way around "unauthorized practice of law" complaints has been to invoke RPC 5.5 which states in pertinent part

A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that

(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;

Note however Birbrower et al. v Superior Court of Santa Clara, 949 P.2d 1 (1998) about New York lawyers in California.

John McGuckin Jr. wrote an article about Birbrower which included text:

Under Birbrower, a New York lawyer who attends a meeting in San Francisco for a California client (and probably a non-California client as well), and faxes or e-mails an opinion letter or form to a California client (or even gives oral advice to a California client by phone) is probably engaging in the unauthorized practice of law.

The Birbrower analysis has a broad implication for any lawyer with a mobile, multi-state practice. If other states follow the Birbrower rule (and Oregon already has), a New York attorney who responds to an e-mail from a Boston client has committed UPL in Massachusetts. A Philadelphia estate planner who answers e-mails on her laptop at Chicago's O'Hare airport, enroute to Santa Fe to meet with a client may be committing UPL both in Illinois and in New Mexico. A Washington, D.C., patent lawyer or Atlanta employment expert who builds up a national practice may be committing UPL in other states every time she provides legal services to her clients.

In the California decision, Justice Ming Chin went on to describe how engaging in the unauthorized practice of law did not necessarily depend on the unlicensed lawyer’s physical presence in California. "Physical presence here is one factor we may consider in deciding whether the unlicensed lawyer has violated Section 6125, but it is by no means exclusive," Chin wrote. "For example, one may practice law in the state ... although not physically present here by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer or other modern technological means." See Birbrower, 17 Cal.4th 119, 128-129.

In part, the California case relied on a North Dakota decision. In Ranta v. McCarney, 391 N.W. 2d 161, 164 (N.D. 1986), the North Dakota Supreme Court held that a Minnesota lawyer could not recover any fees for legal work performed in North Dakota.

**UPDATE

A different RIchard Gutman (of Exxon):

Richard E. Gutman
Co–Chair Committee on Corporate Counsel

Also

The Business Law Section of the New York State Bar Association appreciates the Commission's invitation in Release No. 33-8150 (the "Release") to comment on proposed rules (the "Proposed Rules") to implement § 307 of the Sarbanes-Oxley Act of 2002 (the "Act").

(...)

The definition of "appearing and practicing before the Commission" should be confined to attorneys who provide legal services related to an issuer's compliance with the securities laws

The definition of "appearing and practicing before the Commission" in §205.2(a) is vastly broader than the definition in existing Rule 102(f) of the Commission's Rules of Practice and sweeps in, intentionally or unintentionally, any person who happens to have a law degree and has any contact, no matter how remote or immaterial, with the registration or disclosure process. When read in conjunction with other provisions of the rules, the definition of "appearing and practicing" sweeps in a company's patent attorney whose firm has been requested by securities counsel to review one section of a business description contained in a registration statement or periodic report because it has represented the company in areas of patent applications.
richard.e.gutman@exxonmobil.com

Roche to meet with generics about making of Tamiflu

Oct. 21, 2005: Roche has agreed to meet with four generic drug companies to discuss allowing them to manufacture Tamiflu, which countries have stockpiled to prepare for a possible pandemic arising from avian flu. (NY Times)

The bottleneck on Tamiflu has basically been broken," Sen. Charles Schumer (D-N.Y.), said after meeting with George Abercrombie, head of Roche Pharmaceuticals in North America. Abercrombie did not talk with reporters, but he said in a statement that Roche had agreed to enter into discussions with other companies. Abercrombie met yesterday with Schumer and Sen. Lindsey Graham (R-S.C.).

Generic manufacturers cannot legally sell the patented drug in the West and parts of Asia. Roche holds an exclusive license to the patent (Gilead holds the patent.) Companies would need permission from Roche - and government approval - to make the drug.

**from UPI

Sens. Charles Schumer, D-N.Y., and Lindsey Graham, R-S.C., said they had received assurances from Roche that it would meet with Teva Pharmaceuticals, Barr Laboratories, Mylan Laboratories and Ranbaxy Pharmaceuticals in the coming days to determine how to boost production of Tamiflu, which is in high demand as a potential treatment to prevent infection by the avian-flu virus.

Roche has agreed to issue manufacturing sub-licenses for the companies, "who demonstrate appropriate capabilities to manufacture Tamiflu in order to accelerate product supply," Schumer and Graham said in a news release issued prior to a meeting with reporters on Capitol Hill.

H5N1, as this avian-flu virus strain is known, first began infecting humans in 1997 in Southeast Asia. Since then it has infected 120 people, most of whom have had close contact with birds.

Roche CEO says patents will not bar patients from getting Tamiflu

Franz Humer, CEO of Roche: "Patents will not stand in the way of producing the drug [Tamiflu] for mankind." One notes that the patent in question belongs to Gilead; Roche Holdings is the exclusive licensee. Gilead and Roche are having some discussions about the license agreement.

***
The Swiss pharmaceutical company Roche saw its share price touch an all-time high yesterday as strong sales of its cancer treatments and bird flu drug, Tamiflu, boosted third-quarter revenues.
The day after the company said it would consider allowing other companies to produce Tamiflu to meet soaring demand, it announced group sales for the third quarter had risen by 20% to Sfr8.82bn (£3.9bn) from Sfr7.37bn for the same period last year.

The World Health Organisation fears that the bird flu virus could mutate into a form that could kill thousands and is recommending that governments stockpile drugs like Tamiflu. If the disease spreads among the population, it should be treated aggressively with drugs to reduce the number of deaths, says the WHO.

***
Professor Thomas G. Field wrote the
following text:

Since then, Tamiflu, patented and manufactured by the Swiss company, Roche Holding AG, has received much attention. Although manufacturing capacity has been doubled and redoubled within the past two years, Roche remains unable to cope with global demand.

Inadequate supplies and Roche's reported refusal to license Tamiflu patents to other firms have caused widespread concern. Now, Cipla, India's third-largest pharmaceutical manufacturer vows to produce a generic copy of Tamiflu despite substantial risk of patent infringement.

Of course, Roche did NOT patent the composition covering Tamiflu; Gilead did. Part of the current interest in this story is in the way Roche and Gilead are interacting. Professor Field's October 18 article is in error about Roche patenting Tamiflu and misses the interesting license issue between Roche and Gilead. Separately, Roche is entertaining [sub-]licensing proposals.

BioGenex wins noninfringement decision against Ventana

BioGenex prevailed in a patent infringement case after more than two-and-a-half years of litigation in federal court against Ventana Medical Systems. The United States District Court for the District of Arizona recently entered the ruling in favor of BioGenex in a patent infringement litigation between the two companies. Judge Raner C. Collins of the District Court in Tucson ruled that the BioGenex automated staining systems do not infringe Ventana's US Patent No. 6,352,861 (the '861 Patent) issued in March 2002. The '861 Patent to Ventana contains claims for a method of dispensing of reagents onto a slide; the first claim recites:

A method of dispensing reagents onto a slide, the method comprising the steps of:

providing at least one reagent container;

providing at least one slide on a slide support;

automatically identifying the reagent container using a computer;

automatically determining whether reagent in the reagent container should be dispensed onto the slide; and

dispensing the reagent in the reagent container onto the slide based on the determination of whether the reagent in the reagent container should be dispensed onto the slide,

wherein the step of automatically determining whether reagent in the reagent container should be dispensed onto the slide includes the steps of:

providing a bar code reader;

reading a slide bar code placed on the slide using the bar code reader thereby acquiring slide information, the slide information indicating reagents to be applied to the slide; and

sending the slide information to the computer.

The '861 patent claims earlier priority: This is a continuation of application Ser. No. 08/906,678, filed Aug. 5, 1997, pending, which is a continuation of application Ser. No. 08/479,415, filed Jun. 6, 1995, U.S. Pat. No. 5,654,200, which is a division of application Ser. No. 08/352,966, filed Dec. 9, 1994, U.S. Pat. No. 5,595,707, which is a continuation of application Ser. No. 07/924,052, filed Aug. 31, 1992, abandoned, which is a continuation-in-part of application Ser. No. 07/488,601, filed Mar. 2, 1990, abandoned.

The '861 patent has been cited by ten (10) US patents. The '861 was prepared by McDonnell Boehnen Hulbert & Berghoff.

Reacting to unexpected and perhaps uncomfortable situations

Forbes talks with Brenda Greene, author of You've Got the Interview: Now What?, scheduled to be published in November, 2005. In an interview, an interviewer tries to learn (among other things) how a candidate reacts to unexpected and perhaps uncomfortable situations.

However, the seven interviewing mistakes mentioned by Forbes don't offer much in the way of profundity. If you are prone to rambling, criticizing others, or being dishonest in an interview, you've probably already learned the consequences.

Forbes mentions bringing extra copies of your resume, but be prepared for surprises when you learn that "your" resume is not the same as the one the recruiter sent. Long ago, a potential employer commented on my misspelling of "Qualitex" on my resume. I asked to see the resume, which was quite different from the one given the recruiter.

Gilead's US 5,952,375 covering Tamiflu (oseltamivir)

Tamiflu (oseltamivir)is covered by US 5,952,375, filed February 26, 1996 and issued September 14, 1999. The application does claim priority. The '624 application is a continuation-in-part application of U.S. patent application Ser. No. 08/580,567, filed Dec. 29, 1995, abandoned which was a continuation-in-part application of U.S. patent application Ser. No. 08/476,946, filed Jun. 6, 1995, now U.S. Pat. No. 5,866,601 which was a continuation-in-part application of U.S. patent application Ser. No. 08/395,245, filed Feb. 27, 1995, abandoned all of which are now pending and are incorporated herein by reference in their entirety.

The '375 patent states:

A principal object of the invention is inhibition of viruses, in particular influenza viruses. In particular, an object is inhibition of glycolytic enzymes such as neuraminidase, in particular the selective inhibition of viral or bacterial neuraminidases. inhibitors that have a retarded rate of urinary excretion, that enter into nasal or pulmonary secretions from the systemic circulation, that have sufficient oral bioavailability to be therapeutically effective, that possess elevated potency, that exhibit clinically acceptable toxicity profiles and have other desirable pharmacologic properties.

The patent does not mention the word "anise" or "star anise."

The patent is assigned to Gilead but exclusively licensed to Roche. On October 18, Roche Holding AG said that it is building a new plant in the United States to boost production of its Tamiflu drug amid fears about bird flu, and is ready to seek help from other companies to meet surging demand. Tamiflu is made from an acid produced from the Chinese star anise plant, which is in limited supply because it is grown in only four provinces in China and is harvested between March and May. In the past year, however, Roche has developed a method for making the acid without the plant.

The Indian drug company Cipla Ltd. said Oct. 18 that it would ask for permission to produce the drug. "We will approach Roche for a license," Amar Lulla, joint managing director of Cipla, told Dow Jones Newswires. Cipla said last week that it planned to bring a generic version of Tamiflu to market early next year based on its own research into the antiviral oseltamivir.

Daniel Piller, a Roche spokesman, said the company had yet to receive any notification from Cipla. "If we receive a request, we will be open to discussions," Piller told The Associated Press. While no company has approached Roche directly, Reddy said, Roche "would welcome any company that made such a request to produce Tamiflu under license." He warned against companies seeking to break Gilead's patent, however, saying that it could take over two years to develop Tamiflu from scratch. Roche says there are 10 complex steps involved in making the drug.

Internet auction site eBay pulled the sale of Roche Holding AG's Tamiflu from its Web site on Oct. 18, after prices topped 100 pounds ($174) on growing fears about the spread of bird flu.

from the AP on Tamiflu:

Gilead made $44.6 million on royalty revenues from Tamiflu in 2004 but is on pace to more than double that in 2005, having made $48.1 million in the first six months of the year.

In June, 2005, Gilead charged Roche with failing to adequately promote and produce Tamiflu and invoked a contract clause to demand the return of all commercial and manufacturing rights.

Roche denied the charges and the issue appears headed to an arbitrator.

“We are confident we fulfilled our obligations under the licensing agreement,” Roche spokesman Terry Hurley said.

If Gilead were to win, Roche would still manufacture Tamiflu for two years while Gilead ramped up its factory.

“We believe this is an opportunistic move on Gilead’s part given that Tamiflu is entering a period of heightened demand,” analysts at Credit Suisse First Boston wrote in a note to investors last week.

Gilead spokeswoman Amy Flood declined to comment, but executives of both companies have repeatedly said, including in testimony to Congress, that Tamiflu production won’t be affected by the spat.

***
Separately, think back to the patent discussions surrounding CIPRO. See Lawrence B. Ebert, Where Have You Gone, Richard K. Lyon? Intellectual Property Today, December 2001.

Patent upheld on grounds of obviousness and anticipation??

Great line in Forbes: In a mixed ruling, a British judge invalidated one Pfizer patent regarding atorvastatin, the active component of Lipitor, but upheld another, on the grounds of "obviousness and anticipation," according to CSFB. With statements like this, can you believe:

"While extrapolating to the U.S. case is risky, legal expert feedback on this ruling suggests that lack of ambiguity in interpreting claims of the racemic patent bodes well for the U.S. racemic patent..." The research firm said a possible repeat of the U.K. court ruling could be reached in the U.S. trial, expected to be decided by the end of the year. UBS maintained a $34 price target on Pfizer shares. "We reiterate our confidence on the outcome of the U.S ruling and view the likelihood of Pfizer defending at least one of the two patents at 85%, based on a consolidated view from legal experts," the firm said.

Ranbaxy challenges AstraZeneca's Nexium

Of the recent Ranbaxy challenge to AstraZeneca's Nexium, Colin McLean, of SVC Asset management said: "I don't think it's a major problem. Investors are increasingly dismissing this sort of threat." Investors would be well-advised to contemplate the contents of paragraph iv submissions under Hatch-Waxman before routinely dismissing them.

Nexium is the company's top-seller, bringing in revenue of $3.8 billion in 2004. AstraZeneca, the U.K.'s No. 2 drugmaker, is already fighting a challenge to Nexium from Hyderabad, India-based Dr. Reddy's Laboratories Ltd. Nexium was introduced to replace Losec [Prilosec], once the world's best-selling drug before its patent protection expired in October 2001.

Ranbaxy asked the U.S. Food and Drug Administration to allow it to sell 20 milligram and 40 milligram capsules, whose patents expire in 2018, London-based AstraZeneca said Oct. 18.

[Ranbaxy is also challenging Pfizer over the patent to its anti-cholesterol drug Lipitor, the world's best-selling prescription medicine. A decision by the district court in this case is expected soon.]

At the end of September, Astra stated that Teva Pharmaceuticals, an Israel based drugs firm was challenging its patent rights to Seroquel, another of its blockbuster drugs which notched up sales of $2 billion last year. Teva filed an abbreviated new drug application (ANDA) in the US as a challenge to Seroquel, giving Astra a 45-day period in which to file a legal claim against it. Astra maintained in this case as well, that it had "full confidence" in its ownership of the intellectual property rights to the drug.

Are fuel-cell-powered bicycles in our future?

A press release from Manhattan Scientifics suggests fuel cell-driven electric bikes may become a solution to the increasing cost of personal transportation in the U.S. Americans are not generally considered to be a bicycle-dependent nation, but an Oct. 9, 2005 article in the New York Times, "Gas Math: Subtract Two Wheels," described the growing trend toward two-wheel vehicles in America.

Manhattan Scientifics has two fuel cell technologies.

Barr challenges Janssen Pharmaceutica over Risperdal

Barr filed an Abbreviated New Drug Application (ANDA) for Risperidone Orally Disintegrating Tablets, 0.5mg, 1mg & 2mg containing a paragraph IV certification with the U.S. Food & Drug Administration (FDA) in March 2005 and received notification of the application's acceptance for filing in August 2005. Following receipt of the notice from the FDA, Barr notified Janssen Pharmaceutica, the New Drug Application (NDA) holder and patent owner. On October 3, 2005, Janssen filed suit in the U.S. District Court of New Jersey to prevent Barr from proceeding with the commercialization of its product. This action formally initiates the patent challenge process under the Hatch-Waxman Act.

Risperdal is indicated for the treatment of schizophrenia, and the short-term treatment of acute manic or mixed episodes associated with Bipolar I Disorder. The product had annual sales of approximately $67 million for the twelve months ended August 2005, based on IMS sales data.

Adelphi Charter group calls for patent reform

The Adelphi Charter on Creativity, Innovation and Intellectual Property describes the current patent system as "out of touch with reality", [Gee, what about academics who talk about a 97% patent grant rate?] and has called on governments to take more account of the public good when granting patents.

The group has also called for much shorter intellectual property ownership periods, and for developing nations to receive more attention over controlling patent information.

"The excessive use of intellectual property laws is working against the public interest, and any changes to the intellectual property legal framework should be held to a public interest test," said the organisation in a statement.

Supreme Court rejects Merck's appeal on Fosamax case

The U.S. Supreme Court said on Oct. 17 that it rejected Merck & Co.'s appeal of a ruling that the patent on its blockbuster, once-weekly osteoporosis drug Fosamax will expire a decade earlier than expected. Chief Justice John Roberts and Justices Sandra Day O'Connor and Stephen Breyer did not take part in the case. That typically happens when a justice owns a company's stock. [One recalls the earlier confusion between Merck & Co. and Merck KGaA in the Merck v. Integra case.]

The problem for Merck in the Fosamax case was claim drafting that was somewhat unclear. Merck in its petition for cert said the Supreme Court should consider the practice by the appeals court of using its review of legal issues to reweigh evidence and to substitute its views for the factual findings of the district court judge.

***
Update on August 20, 2006.

In a search on Fosamax patent on Google, one will not find any entries for IPBiz in the first 10 pages (who looks at 10 pages (or more) of Google results anyway?) but you will find hits for PatentBaristas and PatentProspector on page 1. Is it the content or is it the linking? Just thinking about the impact of PageRank.

New business model for Wi-Fi in rural areas?

In rural Oregon, large providers such as local phone company Qwest Communications International Inc. saw little profit potential for Wi-Fi. So wireless entrepreneur Fred Ziari drew no resistance for his proposed wireless network, enabling him to quickly build the $5 million cloud at his own expense.

While his service is free to the general public, Ziari is recovering the investment through contracts with more than 30 city and county agencies, as well as big farms such as Hale's, whose onion empire supplies over two-thirds of the red onions used by the Subway sandwich chain. Morrow County, for instance, pays $180,000 a year for Ziari's service.

Each client pays not only for yearly access to the cloud but also for specialized applications such as a program that allows local officials to check parking meters remotely.

"Internet service is only a small part of it. The same wireless system is used for surveillance, for intelligent traffic system, for intelligent transportation, for telemedicine and for distance education," said Ziari, who immigrated to the United States from the tiny Iranian town of Shahi on the Caspian Sea.

It's revolutionizing the way business is conducted in this former frontier town.

"Outside the cloud, I can't even get DSL," said Hale. "When I'm inside it, I can take a picture of one of my onions, plug it into my laptop and send it to the Subway guys in San Diego and say, 'Here's a picture of my crop.'"

Even as the number of Wi-Fi hotspots continues to mushroom, with 72,140 now registered globally, only a handful of cities have managed to blanket their entire urban core with wireless Internet access.

Hundreds of cities from San Francisco to Philadelphia have announced plans to throw a wireless tarp over their communities, and a few smaller ones such as Chaska, Minn., have succeeded. But only Ziari appears to have pinned down such a large area.

The wireless network uses both short-range Wi-Fi signals and a version of a related, longer-range technology known as WiMax. While Wi-Fi and WiMax antennas typically connect with the Internet over a physical cable, the transmitters in this network act as wireless relay points, passing the signal along through a technique known as "meshing."

Ziara's company built the towers to match the topography. They are as close as a quarter-of-a-mile apart inside towns like Hermiston, and as far apart as several miles in the high-desert wilderness.

Patent analysis software from NTT?

-->
NTT Data Corporation has developed a system that reportedly analyses patent documents, utilising its proprietary natural language processing technology, in a way that allows complicated sentence structures to be understood more easily.

The company's "pattern - matching technology", by which to find out morpheme (the smallest meaningful unit of a language) characteristics of sentence structures, such as articles, descriptions, and type of characters used, is applied to search for unique patterns described in complicated structures of patent documents through multiple pattern matching.

Splogbomb at blogspot?

from blog maverick (Oct. 16):

Do a search for HDNet on Icerocket.com or any of the other engines and look at all the Splogs there are. And they have URLs like this So google, at least for the time being, we shut out adding new blogspot posts to our index until we clean all the bullshit you dumped on us out of our indexes. We will turn them on once our filters are in place, which hopefully will be tomorrow So google, at least for the time being, we shut out adding new blogspot posts to our index until we clean all the bullshit you dumped on us out of our indexes. We will turn them on once we update our filters to resolve this fine mess you got us into , which hopefully will be tomorrow

I apologize in advance to real bloggers whose post might not make it in as quickly as before. We wont lose your posts. They are just going to be delayed.

I also apologize in advance if someones blog or posts got filtered out in our effort to deal with Splogs.

So please Google. Add a challenge system. Dump the flag you tried. It was a nice try, but doesnt get the job done. Its not an imposition to ask a blog poster to confirm their post with a link inside an email, or a word confirmation. It may not eradicate the problem, but it will improve the quality of information available in the blogosphere considerably.

***Splogs-->

Spam blogs, sometimes referred to by the Neologism splogs, are Web Log (or "blog") sites which the author uses only for promoting affiliated websites. The purpose is to increase the PageRank of the affiliated sites and/or get ad impressions from visitors. Content is often nonsense or text stolen from other websites with an unusually high number of links to sites associated with the splog creator which are often disreputable or otherwise useless Web sites.

Splogs have become a major problem on free blog hosts such as Google's Blogger service. These fake blogs waste valuable disk space, bandwidth, and pollute search engine results.

The term splog was popularized around mid August 2005 when it was first used by some high profile bloggers but appears to have been used a few times before for describing spam blogs going back to at least 2003.

Several splog reporting services have been created for good willed users to report splog with plans of offering these splog URLs to search engines so that they can be excluded from search results.

(from Wikipedia)

****

ZDNet on splogging:


The attacker, or splogger, used automated tools to manipulate the Blogger-BlogSpot service and create thousands of fake blogs loaded with links to specific Web sites (home mortgage, poker and tobacco sites among them). The move was designed to doctor search results and boost traffic to those sites by fooling the search-engine spiders that crawl the Web looking for commonly linked-to destinations.

"It's been going on for months," said Matt Haughey, who runs the MetaFilter community Weblog and has blogged about the splog menace. "Over the weekend there was one guy's gigantic explosion. Someone basically scripted a bot to be able to (create) thousands of (fake) sites."

Unlike e-mail programs, blogging services don't have the capability to easily detect and filter out spam, said Bob Wyman, chief technology officer at blog search and tracking service PubSub.


Some affected bloggers complained that Google was to blame. "Google: Kill BlogSpot Already!" Pirillo wrote in his blog Monday.

"BlogSpot has become nothing but a crapfarm, and your brand is going to go down with it," he wrote. "If your motto truly is to do no evil, then you need to start putting some resources behind an effort to curb this train wreck."

****

blog maverick had a favorable comment about google's response on splogging and then launched into a promo for IceRocket. One response was the following:

Comment by Anonymous Loser

The problem is that IceRocket is not innovative in the least. It deceptively lists Overture sponsored results in the unsponsored results pane for web searches (try a web search for "search engine" on Icerocket and then on Overture). This violates the Yahoo/Overture syndication guidelines and the FTC guidelines for sponsored link disclosure.

The blog trends tracking feature is blatently copied from BlogPulse.com. Blog search results take longer to be indexed than on Technorati (which allows you to add searches to your watchlist to keep track of updates). Blogdigger.com allows you to subscribe to search results and also seems to be indexed more frequently.

When IceRocket.com develops a truly innovative feature, I won't mind you shilling for them in your blog. Until then, try to make your self-promotion a little less blatent.

Nobel prize-winner Sir John Sulston calls for patent reform

Sir John Sulston, winner of the Nobel prize for medicine for his work on the human genome, said on Oct. 14, 2005, that patent laws were an obstacle to faster and wider access to Tamiflu, a potentially life-saving antiviral flu drug.

Intellectual property legislation gives Tamiflu's manufacturer, Roche, a monopoly on sales and marketing of the drug, which is now in huge and urgent demand around the world as the threat of an avian flu pandemic is perceived to be increasing.

Britain has ordered more than 14m courses, but so far has 2.5m and delivery of the rest will not be completed for another year. The drug is not a cure for flu, but reduces the severity of a bout as long as it is taken within the first 48 hours of the onset of symptoms, and could therefore save lives.

"A major problem in the decision-making processes of governments is that drugs are very highly priced. This is because of the way the intellectual property system works," he said on BBC Radio 4. The system rewarded companies for the investment they made in creating drugs by allowing manufacturers to set high prices without competition, but it did not help get universal access to needed medicines.

"I think that if we can reform intellectual property so as to separate the creative process of research and development from the production of drugs, thereby making them cheaper, we will be a great deal better off," he said.

***
An article in the San Francisco Chronicle discusses other aspects of the tamiflu matter:

Tamiflu, a pricey antiviral pill invented in a Bay Area lab and made in part from a spice used in Chinese cookery, has emerged as the world's first line of defense against bird flu should the deadly strain begin its feared spread among human beings.

As nations begin to stockpile the drug in anticipation of a flu pandemic, calls are mounting for countries to sidestep patents on the drug -- as Brazil first did for AIDS medications -- and make their own generic versions.

But Swiss pharmaceuticals giant Roche, which acquired rights to the drug from Gilead Sciences Inc. of Foster City in 1996, said Wednesday it had no intention of letting others make it.

"Roche ... fully intends to remain the sole manufacturer of Tamiflu,'' said company spokesman Terry Hurley.

The immediate problem is not the cost of Tamiflu, which runs about $60 for a 10-pill course of treatment, but a staggering gap between the sudden demand for it and the capacity of its sole manufacturer to produce it.

Although Roche has increased production of Tamiflu eightfold in the past two years, it will take $16 billion and 10 years to make enough of the drug for 20 percent of the world's population, said Klaus Stohr, director of the World Health Organization's Global Influenza Program, in comments to reporters in San Francisco last week.

"Something has to be done,'' said Ira Longini, an Emory University professor whose computer model of a potential avian flu pandemic shows that an outbreak could be snuffed out within a month by rushing antiviral drugs to the place where it started. "When you think of the potential damage a pandemic flu could do, and how little drug we have, the situation is quite absurd.

"It makes sense to do something along the lines of what was done with AIDS drugs.''

James Love, director of the Consumer Project on Technology in Washington, D.C., said that during the anthrax bioterrorism scare in 2001, both the United States and Canada had threatened to bypass the patent of Bayer Corp.'s antibiotic Cipro to assure a sufficient supply of the drug. The Tamiflu problem is similar.

"The WHO should buy stockpiles from generic suppliers,'' he said. "If patents are in the way, the WHO should ask the manufacturing country to issue the appropriate compulsory licenses. The patent owner will receive royalties, but we will have the stockpiles."

U.N. Secretary-General Kofi Annan has signaled a willingness to consider generic production of flu drugs and vaccines. During remarks at the World Health Organization headquarters in Geneva last week, he said drug companies should be "helpful" by not letting their patent claims interfere with access to medicines. "I wouldn't want to hear the kind of debate we got into when it came to the HIV anti-retrovirals,'' he said.

Roche will not release its Tamiflu production figures, deeming it "commercially sensitive" information, said Hurley, the company spokesman. However, he said the company produced "many hundreds of millions" of the pills annually. In response to WHO concerns about bird flu this summer, the company agreed to donate enough Tamiflu to treat 3 million people.

Although public awareness of the pandemic threat posed by the bird flu has blossomed in recent weeks, scientists have been warning since 1997 that the rogue influenza strain known as H5N1 could be the one that triggers a pandemic rivaling the devastating Spanish flu of 1918 -- which killed 50 million.

Tests on laboratory mice strongly suggest that Tamiflu -- and a lesser-known inhaled antiviral, Relenza -- are the only medications that can treat infection with the H5N1 strain.

Tamiflu has not been effective in the treatment of the small number of people who've contracted the H5N1 virus in Asia. Of 116 people infected since 2003, half have died. However, most of those patients were admitted to hospitals days or weeks after they became ill. Tamiflu is thought to work best within 36 hours of symptoms.

"Late treatment is clearly ineffective,'' said Dr. Frederick Hayden, a University of Virginia expert on flu drugs.

As a treatment for ordinary flu, Tamiflu has been effective, but in a Japanese study of children treated with the drug, about 1 in 6 patients developed strains of flu resistant to the drug, though the new flu strains were much weaker, causing less illness.

The U.S. appetite for Tamiflu, however, may quickly outstrip the capacity of any one company to make it. A draft proposal by the National Vaccine Advisory Committee, charged with developing a federal response plan to a pandemic, envisions distribution of nearly 90 million courses of antiviral drugs. The pills would be rationed according to need, with hospital patients and health care workers who treat them at the top of the list.

In addition, Stohr said, the starter ingredient for Tamiflu is a Chinese spice called star anise, whose seeds are used in flavorings, medicines and cooking oils. Most of the world production of star anise is located in four provinces of China, and the supply of it has been back ordered, primarily for drug production.

Meanwhile, the shortage of Tamiflu has begun to trickle down to American hospitals, which normally keep small quantities of the drug to treat garden variety influenza each winter.

Dr. Roger Baxter, director of Kaiser Permanente's flu surveillance program in Northern California, said the health care giant had stopped prescribing the drug to patients who wanted it for their own personal stockpiles, or sought it for travel abroad.

"Kaiser has a very small supply,'' he said. "We don't have a stockpile that would cope with a major outbreak.''

Only patients with so-called B-strains of influenza -- which like H5N1 do not respond to older line flu drugs -- and those who are hospitalized will be considered for Tamiflu, he said.

*****
Shares of BioCryst Pharmaceuticals surged more than 43% the week of Oct. 11, 2005 amid escalating concerns regarding a potential avian flu pandemic. Investors are betting on the company's flu treatment, peramivir, as a potential government stockpiling candidate. The small-molecule drug was previously co-developed by Johnson & Johnson.


"We can't get a large amount of oseltamivir for stockpiling, even if we wanted to,'' he said.