Sunday, December 31, 2006

Lawsuits filed in the matter involving shooting of patent attorney McKenna

The Chicago Tribune notes the filing of law suits in the McKenna/Jackson matter, based on certain facts which were NOT reported at the time of the incident.

The Trib noted on Dec. 30: Security guards had turned disgruntled inventor Joe Jackson away from the front entrance of a West Loop high-rise before he found his way in through a loading dock and killed three people this month, victims' families alleged in three lawsuits filed Dec. 29.

Previous news accounts had NOT mentioned that shooter Jackson gained access to the attorneys by going through the loading dock, an approach not surprising for someone who was a truck driver. There had been some irregularities in the reporting about how a guard escorted Jackson to the 38th floor.

The Trib noted: Larry Rogers' law firm filed lawsuits in Cook County Circuit Court on behalf of the families of attorneys Michael McKenna and Allen Hoover, both of whom were killed in the shooting, and legal assistant Ruth Zak Leib, who was shot in the foot and survived.

Named as defendants in the lawsuits are AlliedBarton Security Services, MB Real Estate Services, General Electric Asset Management Inc. and other alleged owners or operators of the building.

The Trib also noted the position of the guards:

A spokesman for the Citigroup Center said this month that the building's security guards were in a tough position because Jackson had a gun and they were not armed.

"What can you do?" spokesman David Hooks said. "Even if the guard had been armed, which he wasn't, a guy walks in like that, what are you supposed to do?"

Friday, December 29, 2006

Law Professors on Parade?

This picture reminds me of certain law professors endorsing the need for patent reform. Various professors accept the grant rate numbers of Quillen and Webster without mentioning that the QW methodology produces grant rates in excess of 100%. Is the repetition of a fabricated and untrue problem suggestive of a group of parrots all lined up in a row babbling about anything they hear?

The researchoninnovation website has the following text from Mickey Davis of Cleveland State:

Under U.S. procedures, a patent application may be temporarily abandoned and then continued at a later date [IPBiz: false]. Applicants often make use of this system because U.S. law grants patent rights based on the initial filing date [IPBiz: false. See for example 88 JPTOS 743.]. The PTO cannot dismiss an application as long as proper continuation procedures are followed, unless it actually grants a patent [IPBiz: false]. Quillen and Webster point out that according to the rules, applicants can refile to "ensnare innovations commercialized by others after the filing date of the original application." [IPBiz: an inventor with a PENDING application can file another application with claims covering someone else's commercialized embodiment, PROVIDED THAT there is written description and enablement for the new claims, which would mean that the embodiment "commercialized by others" was NOT an innovation.]

Davis also writes: If a rigorous system is undesirable, the authors argue, the present grant rate of 97 percent may be appropriate, but in this case, the PTO should admit that it issues a patent "for virtually every original application."

Perhaps the law professors should admit that there is no such thing as "the present grant rate of 97%."

Note that various issues in patent reform, including the "patent grant rate" confusion and the "plagiarize with pride" platform of the Harvard Business Review, are covered in an article to be published in the Dec. 2006 issue of JPTOS.

Look here and also here.

IPBiz already received some feedback:

why are you giving parrots a bad name? Comparing law school profs to
parrots-shame on you.

Hey, this really holds for most academics.....parroting about minor
points, subtleties and slights, but never making major insights, but
buffing up the resumes.

Of the comment about "minor points," the law professors in the "patent grant rate" saga are expounding major, FALSE points. Ironically, the same professors who criticize patent examiners for such things as the peanut butter and jelly sandwich patent are unable to recognize that a method which yields a grant rate greater than 100% must be incorrect. The USPTO at least tries to correct its errors, but the fingers of a professor grasping a bad idea remain attached forever.

CAFC reverses noninfringement finding in Ventana case

On Dec. 29, the CAFC overturned a lower court's finding that rival BioGenex Laboratories Inc. had not infringed on a patent held by Ventana Medical Systems Inc.

This was a "claim construction" case, with the sole issue the meaning of the word --dispensing.-- The district court required "direct" dispensing FROM a reagent bottle ONTO a microscope slide. The district court found a disclaimer of "sip and spit" dispensing.

Yes, Phillips v. AWH, 415 F.3d 1303, is cited. Through Phillips, the CAFC cites to Innova v. Safari, for a bedrock proposition of patent law which negates arguments made by Quillen and Webster and others about patent grant rate: the claims define the invention.

The CAFC gets into prosecution disclaimer and cites the Invitrogen case. There is much discussion of the effect of statements made in continuation applications (eg, Microsoft v. Multi-Tech).

TIME suggests OJ book coming back

TIME notes: With the exception of some copies pilfered from warehouses, the entire 400,000 print run of If I Did It — in which Simpson "hypothesized" how he would have killed his ex-wife Nicole and her friend Ron Goldman — was slated to be destroyed. As with most celebrity tell-all tales, however, Simpson's rights to the material will eventually revert back to him. Though the exact contractual language has not been made public, a source close to Simpson tells TIME that O.J. gets certain rights returned 12 months after the original publication date — which means he should be in a position to re-sell his book before next Christmas.

And, yes, there is an intellectual property [IP] angle--> Fred Goldman's attorney, Jonathan Polak: "We're seeking to unwind all the transactions, including the transfer of the intellectual property." Goldman filed a lawsuit last week against both Simpson and Lorraine Brooke Associates.

Of the falsified resume by Donald Trump's mortgage chief, one blog wrote: From the "I'm going to call Rosie O'Donnell fat to keep this mess out of the news" department. Of course, there is some irony in having the head guy of a company that is supposed to "clean up" an area be guilty of such transparent misrepresentations.

***Separately -->

The death of Gerald Ford marks the last link to the Warren Commission.

The Bismark Tribune noted:

With his passing, the last link to the Warren Commission joins the historical roll. Himself the target of two assassination attempts, he was the last living participant in the investigation into the assassination of President Kennedy, so long ago.

Ford's actions in this controversial area remain a bit puzzling, especially as to the placement of the back/neck wound on President Kennedy. An account of this issue can be found here.The general area spawned various "false advertising" law suits, including those related to Mark Lane.

In 1963, Democratic president Lyndon B. Johnson appointed Ford to the Warren commission set up to investigate the assassination of president John F. Kennedy. Johnson remarked of Ford (a graduate of the University of Michigan AND of Yale Law School) that he couldn't fart and chew gum at the same time. In 1965, Ford co-wrote, with John R. Stiles, a book about the findings of the commission, Portrait of the Assassin.

Ford often said that he had "many adversaries but not one enemy" on Capitol Hill. He always managed to avoid offending opponents by force of personality, adopting the adage of "disagreeing without being disagreeable".

Rutgers beats Kansas State in Texas Bowl

The 2006 saga of Rutgers football ended with Rutgers trouncing Kansas State 37-10 on Dec. 28 in the Texas Bowl.

AP noted:

"To win the first bowl game after 137 years of playing, to say we're excited would be an understatement," Rutgers coach Greg Schiano said.

Rice topped 100 yards for the 10th time this season and the 15th time in 25 career games. The 5-foot-9, 195-pound sophomore went over 150 yards for the fifth time this season.

The Scarlet Knights' seventh-ranked defense manhandled Kansas State's offense, holding the Wildcats to 162 total yards and six first downs. Freshman quarterback Josh Freeman was 10-for-21 for 129 yards with two interceptions.

Kansas State (7-6) mustered only 85 yards after Frierson's return of Freeman's first interception put Rutgers up 24-10 just 33 seconds out of halftime.

"I think they were really hungry because they felt like they got left out of a BCS game," Freeman said of Rutgers. "They were out there to prove something and we weren't able to respond."

Of disappointment, recall that during the 1998 season, Kansas State posted an undefeated 11-0 regular season and earned its first ever Number 1 ranking in the national polls, but ended up playing in the Alamo Bowl (losing to Purdue).

Still looking for Vai Sikahema's op-ed entitled "Rutgers is Wrong."


Also relevant to the points raised by Vai Sikahema in "Rutgers is Wrong" is the victory of Boise State over Oklahoma. Sikahema acted as if it were all right for Ohio State, et al., to spend big dollars on football, but not Rutgers. Although the wisdom of spending big bucks on football programs might be questioned, there is no reason for Vai to give a pass to some programs, and not others. "Sikahema is Wrong"

Of Boise State on January 1, 2007:
First Downs 16 23
Passing 10 10
Rushing 6 9
Penalty 0 4
Third Down Efficiency 4-14 2-10
Fourth Down Efficiency 2-2 0-0
Total Plays 65 70
Average Gain Per Play 5.8 5.8
Rushes 35 38
Average Per Rush 3.1 4.6
Completions-Attempts 20-30 19-32
Yards Per Pass Play 8.9 7.3
Times Sacked 3 2
Yards Lost to Sacks 16 13
Had Intercepted 1 3

Wednesday, December 27, 2006

CAFC uses an American Lawyer article as 102(b) art

Following the use of an article in "Poultry Science" as a prior art reference in Kemin, the CAFC utilized an article in The American Lawyer, as well as a UPI article, as 102(b) art in the case Engate v. Esquire Deposition.

Not much law is cited in this non-precedential opinion. There is a cite to SmithKline Beecham v. Apotex, 403 F.3d 1331. Guess that is the SECOND CAFC take on the Apotex matter.

Not cited is In re Klopfenstein, 380 F.3d 1345 (Fed. Cir. 2004), which is a case about prior art.

Missing Philly's Channel 57

Missing Channel 57?

Channel 57 (WPSG) in Philadelphia has been off the air since Saturday, December 23.

The website notes:

The CW Philly, is currently experiencing technical difficulties with our antenna. Our engineers are working to correct the problem as soon as possible. We will update our website when more information is available. We apologize for any disruption.

Channel 57 does broadcast reruns of South Park and does not suggest putting pure nitrogen in your tires.

On Dec. 31, Philly Inquirer Columnist Michael Klein wrote:

By the time you read this, WPSG (Channel 57) expects to be back on the air. CW Philly's main antenna in Roxborough went on the fritz Dec. 23; satellite and cable subscribers were mainly unaffected. A standby antenna is being installed, says general manager Michael Colleran.

Although there is "some" signal at channel 57, it's basically not viewable (via antenna) up here in New Jersey in Jan. 07. Not to worry, only 8% of 57's audience access it via old-fashioned air-wave broadcast. Channel 57's "air wave" future may be extended to other channels. And perhaps Time magazine shares a similar fate.

Plagiarism charges against president of Korea University

Plagiarism charges have been leveled against Lee Pil-sang, newly elected president of Korea University. Apart from the charges themselves, the coverage by the Korea Times is interesting:

The revelation itself may not be surprising as plagiarism has been a rampant practice in our academic society.

What comes first to our mind is that the accusation cannot be overlooked with the excuse that this is a customary practice.

The summation by the Korea Times is also interesting:

Lee is alleged to have published two research papers in 1988 that were almost identical in content to theses written by his former students. Another dissertation he published in an academic magazine in 2005 is also said to be almost same as a doctoral thesis by one of his students. But Lee denied the allegation, saying that he drafted the research papers though the students wrote them.

The Korea Times concludes:

It is outright violation of the research ethics to announce the theses of his students as his because the basic idea came from him.

IPBiz has previously discussed the difference between copyright infringement and plagiarism. The rules of copyright infringement are not intended to a address a problem such as that involving Lee. Further, at the end of the day, when copyrighted work enters the public domain, the Supreme Court made clear in Dastar that anyone may assert authorship of any public domain work without incurring copyright (or trademark/Landham Act) liability. Plagiarism is more an issue for academics, who wish to assign proper credit, than for the intellectual property people, who want to apportion financial reward. If the Korea Times is correct that plagiarism has been a rampant practice in our academic society, then plagiarism is not going to be such a big deal, except perhaps to graduates of mechanical engineering at Ohio University and certain adjunct professors. The plagiarism charges against Jimmy Carter are all but forgotten, as were the problems of Laurence Tribe. The "take it and make it your own" philosphy of the Harvard Business Review is more the order of the day. As the Review said: Plagiarize with pride!

[Some of the issues with the impact of the Harvard Business Review philosophy on intellectual property rights are addressed in a coming article by me in JPTOS.]

In Antidote International Films, Inc. v. Bloomsbury Publishing, PLC, -- F.Supp.2d --, 2006 WL 3822484 (S.D.N.Y.), the court relied on DaStar for the proposition that 'origin', as used by the Lanham Act, doesn't refer to the source of ideas, concepts or communications. The Lanham Act does NOT protect the public against plagiarists.

Meanwhile, back at Ohio University:

Nine former graduate students accused of plagiarism will argue their defense to a university committee and hope to avoid sanctions that could include revocation of degrees.

The Academic Honesty Hearing Committee, charged with examining 34 former master’s student theses suspected of plagiarism, has reviewed 16 cases so far, Ohio University President Roderick McDavis said Wednesday [Jan. 3, 2007] in his first press conference of the quarter.

[Sean Gaffney, The Post]

Tuesday, December 26, 2006

Jimmy Wales/Wikipedia target the weakness of Google's PageRank

BusinessWeek notes:

People can contribute to Wikiasari [of Jimmy Wales] in one of two ways. The first is by enabling ordinary computer users to rerank search results. When a user performs a search on Wikiasari, the engine will return results based on a formula akin to Google's own Page-Rank system, which determines relevance by counting the number of times other Web pages link to a specific page, among other things. Unlike Google, however, users will then be able to reorder the results based on which links they find most useful by selecting an edit function. Wikiasari's servers will then store the new results along with the original query. When the same query is made in the future, Wikiasari will return the results in the order saved by most users.

IPBiz has noted some of the goofiness of Google's ranking system.

BusinessWeek continued: "I wish I could write a Google-killing project in three months, but it is going to take a little bit longer than that," says Wales. "We will have something up in '07, but it won't be very good or interesting. It will be a starting point for people to play with."

Resume of Trump's E.J. Ridings questioned

Stephen Gandel of Money reports of Trump's E. J. Ridings:

In interviews with Money and on his company's Web site, Ridings has made a number of false or misleading claims about his professional experience. Last week, following inquiries by Money into Ridings' background, Trump Mortgage altered its Web site, removing some of the claims it contained about Ridings' past employment.

Money identifies three basic problems:

First, Ridings' initial bio stated that before joining the company he was "a top executive at one of Wall Street's most prestigious investment banks."

Second, the bio had said that Ridings was an "established leader" at one of New York's leading mortgage boutiques.

Third, the bio said he had 15 years of experience in the financial industry.

All three claims appear to be false, according to regulatory documents obtained by Money and interviews with former colleagues of Ridings.

Ridings, 42, has never been a top professional on Wall Street. Ridings, in an interview with Money in September, said the "top-executive" reference in his bio refers to an 18-month period in which he was a retail stock broker at Morgan Stanley.

IPBiz notes that there were similar issues about the resume of former FEMA Director Michael Brown. Of course, Brown was removed, and Ridings is still around.

In the past, Lana Nguyen tricked officials at the University of Regina by claiming her husband's Ph.D. as her own. She obtained a job in the university's engineering faculty and thousands of dollars in research grants.

One also recalls how the University of Montreal was duped by fraudster Eric Poehlman.

***Separately, at Quincy University

Eugene Kole resigned after the Board of Trustees learned he had misrepresented himself on his resume when applying for the position in 1997. Kole did not earn a master of science degree in counseling from Canisius College in Buffalo, N.Y., in 1979 as he reported, nor did he earn a master of arts degree in psychology and counseling from LaSalle University in Philadelphia in 1985.

Instead he received a master of arts degree in psychology and counseling from LaSalle University in Mandeville, La., a correspondence school founded in 1986. In 1996, the founder of the school pleaded guilty to fraud and was sentenced to prison. Kole had earned a legitimate doctoral degree. [from Quincy Herald Whig]

LaSalle University (Louisiana) also comes up in a scandal brewing in Vermont:

Willon has declined to answer questions about his resume and did not return phone calls last week. He did, however, e-mail a letter to the editor to the Eagle Times on Friday. In it, Willon says he was unaware the school was bogus when a move to Kansas forced him to leave a degree program he had started in Maryland.

"As for La Salle University in Louisiana, I enrolled in that college believing it was a credible institution and had no idea that the individual in charge of the school would end up involved in an investigation," he wrote.

Willon, of Owego, N.Y., is still considered one of two finalists for the top job in the Windsor Southwest Supervisory Union. John Poljacik of Rutland, Vt., is the other. Poljacik did not return a call seeking comment Friday night.

One poster commented on the situation:

How ironic, a fake educational credential in education. If he's willing to crassly lie about his education, what does that say about his moral character? Run this fraudster out of town on his ear. Too bad there are unsuspecting districts out there that will eventually hire him or his kind. Nice catch Ms. Martin!

IPBiz notes that it is about time that courts in the US lower the boom on so-called "handwriting experts" from the diploma mill the American Board of Forensic Examiners [ABFE].


Lee Bienstock, a runner-up in the 5th season of The Apprentice, is an associate VP at Trump Mortgage (of which E. J. Ridings is CEO and President).


Lilly's Zyprexa patent upheld at CAFC

Those who predicted Lilly's Zyprexa patent (US 5,229,382) would be upheld at the CAFC proved correct. Bloomberg reported:

The U.S. Court of Appeals for the Federal Circuit Dec. 26 affirmed a lower court decision that the patent is valid. The Ivax unit of Teva Pharmaceutical Industries Ltd. and Dr. Reddy's Laboratories Ltd. had claimed a U.S. judge was mistaken in ruling the drug was protected until Indianapolis-based Lilly's patent expires in 2011.

In addition, "Lilly did not fail to disclose information" to the patent office, as its rivals suggested, the judges said in their 21-page opinion released today.

The losing defendants were represented by Lerner, David; Kenyon & Kenyon; and Budd Larner.

The CAFC noted that the patentability of a compound does not depend only on structural similarity, citing Deutsche Gold and Silver, 397 F.2d 656. In re Lalu, 747 F.2d 703 was also cited. The CAFC analogized the case to Yamanouchi v. Danbury, 231 F.3d 1339.

Of relevance to the pending KSR v. Teleflex case on obviousness, the CAFC delves into motivation, and does cite In re Kahn, 441 F.3d 977, in turn citing In re Rouffet, 149 F.3d 1330. The CAFC also rejected the bracketing concept advanced by IVAX based on In re Payne, 606 F.2d 303.

The CAFC also got into the public use issue with olanzapine, based on FDA-required tests. The CAFC concluded that Lilly maintained confidentiality during the tests.

The CAFC rejected several different inequitable conduct arguments.

In summary, the CAFC affirmed the trial court on issues of anticipation, obviousness, and public use. The legal conclusions on inequitable conduct were affirmed. A complete victory for Lilly as to the '382 patent.

IPBiz notes that Judge Rader wrote this opinion. One thinks back to an earlier opinion, reviewing Judge Posner sitting by designation, that reached somewhat different conclusions as to public use and FDA testing.

A press release on the Lilly victory stated:

On April 14, 2005, in the case of Eli Lilly and Company v. Zenith Goldline Pharmaceuticals et al., the U.S. District Court for the Southern District of Indiana ruled in favor of Lilly on all of the generic companies' patent challenges, including obviousness, double patenting, inequitable conduct, anticipation, and public use.

"Today's appeals court ruling not only affirms the validity of our patent, but upholds patent law that helps enable the significant investments required to develop the next generation of revolutionary medicines for the patients who need them," said Sidney Taurel, Lilly chairman and chief executive officer.

The New York Times included other aspects of the Zyprexa saga:

Lilly is also defending its marketing of Zyprexa in lawsuits filed by the attorneys general of Mississippi, Louisiana, West Virginia and Alaska alleging the company promoted the drug for unapproved uses and hid the risks of weight gain and diabetes.

Sales of Zyprexa dropped 16 percent and fell behind AstraZeneca’s Seroquel as America’s best-selling antipsychotic in 2005, according to IMS Health, which provides data on drug sales.

Worldwide sales of Zyprexa dropped 4.9 percent to $4.2 billion last year and accounted for about 29 percent of Lilly’s revenue.

Blogs: light on substance?

SeekingAlpha notes: I sure don’t want to say anything bad about anyone else, but I find a lot of blog posts are light on substance, just a rehash of what is said elsewhere, a link to and back, so when I see a nice meaty piece, I can’t help but tip my hat. I sometimes feel guilty when I blast out a 1,000+ word post on something, or a long analysis on a given topic, but when I see Kennedy’s style, I realize that this is exactly why blogging has an interesting place in the future of publishing, news, commentary, analysis and reporting.

In context, Seekingalpha was writing about the two patent applications by Microsoft relating to RSS, and referring to a post by Niall Kennedy.

Talking about US published application 2006/0288329, Kennedy concludes:

I believe parts of Microsoft's patent application are new and interesting (and possible inventions), but the main areas of the patent, centralized subscription list and feed data normalization, existed long before Internet Explorer awoke from its slumber. The content syndication platform patent was filed three days before the Internet Explorer team announced support announced RSS support. What other "inventions" are yet to be unveiled as the patent system's 18-month privacy window rolls forward?

after establishing the scope of his post: This post is an attempt to document the novelty and non-obviousness needed for Microsoft's patent application to receive legal approval.

The first claim of US 20060288329 is to a system:

A system comprising:

one or more computer-readable media;
computer-readable instructions on the one or more computer-readable media which, when executed, implement: an RSS platform that is configured to receive and process RSS data in one or more formats; and
code means configured to enable different types of applications to access RSS data that has been received and processed by the RSS platform.

This claim is far broader than indicated in the details provided by Kennedy. There are no limitations concerning centralized subscription list and feed data normalization.

Claim 10 states:

A system comprising:

one or more computer-readable media;
a set of APIs embodied on the computer-readable media, the set of APIs comprising one or more methods that enable at least one application to access RSS data that has been processed and stored in a feed store; and wherein said at least one application does not understand an RSS format in which the RSS data was originally embodied.

The first paragraph of the Background section of the '329 application states:

RSS, which stands for Really Simple Syndication, is one type of web content syndication format. RSS web feeds have become more and more popular on the web and numerous software applications with RSS support are being developed. These numerous applications can have many varied features and can lead users to install several different RSS-enabled applications. Each RSS application will typically have its own list of subscriptions. When the list of subscriptions is small, it is fairly easy for a user to enter and manage those subscriptions across the different applications. As the list of subscriptions grows, however, management of the subscriptions in connection with each of these different RSS-enabled applications becomes very difficult. Thus, it is very easy for subscription lists to become unsynchronized.

The first paragraph of the Summary section of the '329 application states:

A content syndication platform, such as a web content syndication platform, manages, organizes and makes available for consumption content that is acquired from a source, such as the Internet, an intranet, a private network or other computing device, to name just a few. In some embodiments, the platform can acquire and organize web content, and make such content available for consumption by many different types of applications. These applications may or may not necessarily understand the particular syndication format. An application program interface (API) exposes an object model which allows applications and users to easily accomplish many different tasks such as creating, reading, updating, deleting feeds and the like.

In the cited post, Kennedy did not discuss the published application (20060288011)US 11/158911, filed on June 21, 2005. The first claim thereof is

A computer-implemented method comprising:

presenting a user interface having a subscription control to enable a user to subscribe to a feed;

receiving, via the user interface, a user selection of the subscription control;

and responsive to receiving the user's selection, initiating a feed subscription process.

Sunday, December 24, 2006

Fortune says Hwang: "the biggest case of scientific fraud in history"

Cynthia Fox of Fortune analyzed the fraud of Hwang Woo Suk in the area of embryonic stem cells: A conspiracy involving at least 17 people had allegedly gone on for nearly three years, making it, by number of active fabricators, the biggest case of scientific fraud in history.

Fox asked: How did such a gargantuan fraud go undetected for so long? In part, the answer is Korea itself. Interviews with co-conspirators, stem-cell scientists and Korea watchers suggest that government, media and business are uncomfortably entwined. The President's science advisor was a Hwang co-author. Hwang's former lawyer headed a government committee investigating him. (Both resigned their posts.) And Korea's ethics laws were made as stem-cell research progressed, not before.

Of the first paper in Science, Fox wrote: Hwang says he believed his team created the first cloned human embryonic stem cells early in 2003. But when one of his underlings, Kim Sun-jong, couldn't produce any DNA from the cells, the fraud allegedly began. Instead of starting over, according to the prosecutor's report, Hwang told another researcher to get DNA from two adult cells belonging to their "cloned" person, then send the DNA for testing to a friend of a colleague so it could be passed off as an adult and its cloned stem cell. (It's hard to tell just by looking at DNA.)

Fox has an interesting take on the outcome: History's worst case of scientific fraud has had unanticipated consequences. It shook scientists, especially the many who had sought to collaborate with Hwang. And it prompted Science to consider new rules for reviewing papers. [IPBiz: an oblique reference to the report by John I. Brauman.]

But far from discrediting the field of stem-cell research, the scandal has juiced up the race for cloning patents and helped make California the vortex of research in the area. Ron Green, advisor to Advanced Cell Technology, a U.S. stem-cell company, says that it has "given people a glimpse of what might be possible." It has also pushed businesses like Advanced Cell Technology to find less controversial alternatives to cloning. [IPBiz: an oblique reference to ACT's controversial disclosure earlier in 2006.]

Fox did not refer to any conclusions from 88 JPTOS 239 (March 2006).


acsblog notes:

A report by the General Accounting Office concludes that current patent law discourages drug companies from developing new drugs by allowing them to make excessive profits through minor changes to existing pharmaceuticals. While pharmaceutical research and development expenses have increased by 147% since 1993, applications for approval of "new molecular entity" (NME) drugs, or drugs which differ significantly from others already on the market, have risen only 7%. According to the report, the majority of newly developed medicines are so-called "me-too" drugs, which are substantially similar to existing drugs, are less risky than NMEs drugs to develop, and which "offer little in the way of therapeutic breakthroughs."

(..) One commenter noted:

People are foolish to buy a drug merely because they've seen a woman on TV, walking a dog through a field of wheat, allergy-free. Can we please concentrate on fixing the (many, actual) problems with IP law, rather than using this as a platform for attacking an industry we don't like? [IPBiz: and maybe stop talking about 97% patent grant rates?]

[IPBiz post 2300]

Iowa State invention on lead-free solder a big money maker

The Des Moines Register notes: Since the Iowa State University Research Foundation first patented Iver Anderson's lead-free solder in 1996, and repatented it in 2001, the licensing rights from sales have brought in more than $10 million to the foundation, said Kenneth Kirkland, executive director of the foundation.

The Register also noted two other big money makers for ISU:

One involved the fax machine. In 1973, David Nicholas, an electrical engineering graduate student at ISU, invented a way to compress data that made the fax machine what it is today. That patent brought in $36 million in royalty income before the agreements expired in 1997. [IPBiz notes: the fax machine, per se, was invented prior to 1900. For example, look here.

The No. 2 moneymaker involves the inventions of ISU chemistry professor Edward Yeung. His work resulted in the creation of a company called CombiSep. The business makes machines that use high-voltage and ultraviolet light to quickly identify the chemical composition and properties of samples created by drug and biotechnology companies.

Kirkland won't say how much income Yeung's inventions have generated for ISU since the first patent was issued in 1998, other than to acknowledge it's somewhere between $10 million and $36 million. The reason he won't say, Kirkland explained, is because the dollar total is the equivalent of a trade secret. The pharmaceutical research industry that buys CombiSep machines has only a handful of players who are highly competitive. Those businesses could do some quick math and figure who is doing what, if CombiSep sales became public, he said.

Can you spot the turkey?

Can you see the turkey, in flight, in this picture taken south of the Princeton Battlefield?

Can you spot the turkeys written in the area of patent reform?

Friday, December 22, 2006

Fear in blogosphere that Microsoft wants to patent RSS

BetaNews: According to patent applications recently made public, it now appears that shortly before Microsoft publicly announced integrated RSS support within Internet Explorer and Windows Vista, it filed for two patents with the US Patent and Trademark Office surrounding Web-based feed readers.

The first patent application covers technologies that will find and consume feeds into a web browser. It will also provide ways to allow a user to organize and view web feeds through an API, as well as methods to discover new feeds.

The first published application (20060288011)is US 11/158911, filed on June 21, 2005. The first claim thereof is

A computer-implemented method comprising:

presenting a user interface having a subscription control to enable a user to subscribe to a feed;

receiving, via the user interface, a user selection of the subscription control;

and responsive to receiving the user's selection, initiating a feed subscription process.

Wired blogs reported:

Microsoft has filed separate patent applications involving RSS technology. The patent applications were originally filed 18 months ago, just days before the company announced RSS support for IE7, but were only released to the public yesterday [via the routine process of publication of filed applications].

Public outcry quickly followed since Microsoft had little if anything to do with the development of RSS. Dave Winer, the self-described inventor of RSS, lashed out via his blog claiming, “presumably they’re eventually going to charge us to use it.”

Jack Schofield at a blog at the Guardian has a more conservative position on Microsoft's efforts:

It's worth a quick scan just to remove the notion that Microsoft "is attempting to patent RSS". It isn't. However, that will probably become the common currency in the echo-chamber of the web, where "the stupidity of crowds" meme generally operates.

There are plenty of things wrong with the US patent system, and there are plenty of things wrong with software patents: some of us think they shouldn't be alowed, and we've given Richard Stallman plenty of space to argue that case in print. There are, goodness knows, plenty of things wrong with Microsoft. However, distorting the facts is not an honest way to attack either of them.

IPBiz notes of Schofield's text -->However, distorting the facts is not an honest way to attack either of them<-- that patent reformers have routinely distorted the facts about a 97% patent grant rate in the US.

The "patenting RSS" folks probably don't pay a lot of attention to "who" writes the applications.

Some recent posts on Lee & Hayes from a board:

One caveat - at Lee and Hayes, independent contractors have the title "associate."


All of the "associates" (i.e. indepedent contractors) at Lee and Hayes sign a statement indicating that they will not divulge their compensation arrangements to anyone, so you will have to contact Lee or Hayes.

The most loved legal doctrine at Lee and Hayes is "employment at will" so beware.

Don't forget to tell Lee and Hayes that you want to become a partner.


Spokane law firm Lee & Hayes has helped launch a 20-person consulting company in India that will provide patent-related services to companies developing new products in that country.

The new firm, called Bluefile, will offer clients a suite of services including analyzing and refining patent applications and reviewing current patents.

Bluefile's staff won't include lawyers, said Lewis Lee, co-founder of Lee & Hayes. The group will mostly be technology specialists and scientists.

Lee & Hayes, which has 28 attorneys in Spokane and about a dozen in offices in Denver and Seattle, is a full-service intellectual property law firm. Its clients include Microsoft, Hewlett-Packard [of pretexting fame], Intel and Texas Instruments.

The new company is being funded in association with Lakshmi Kumaran & Sridharan, a law firm based in India, said Lee.

Based in New Delhi, Bluefile will provide services primarily to companies working in India, using Indian researchers to develop new products.

"We want Bluefile to be known as the one-stop intellectual property solutions office in India," said Mukundan Seshadri, the CEO of Bluefile.

When a U.S. company considers using some innovation developed at a technology research office in India, Bluefile could perform a number of services, Lee said. One is to "map" the patent law area to see how many similar patents have been awarded or which firms are the most active.

Further retractions of papers published in the journal Science

Further to the retraction by Science of papers by Hwang Woo Suk (and retractions by other related people), there have been further retractions of Science papers.

The San Diego UNION-TRIBUNE reported on Dec. 22:

A biologist at The Scripps Research Institute in La Jolla today retracted three papers published in the journal Science, a step he said was needed to correct a misinterpretation of data.

Geoffrey Chang's retractions appear in the print edition of Science. In addition, he is working to retract two papers published in the Proceedings of the National Academy of Sciences and the Journal of Molecular Biology.


The protein molecule Chang studies is called MsbA. It carries lipids, the fat molecules where most drugs congregate, out of cells. By doing so, MsbA reduces the amount of a drug that collects inside a cell's walls.

This may be why some forms of bacteria and cancer become resistant to drug treatments.

Once scientists outline the structure of MsbA and how it changes its shape as it ejects lipid molecules, they can try to design drugs to disable it.

The expected result would be that more of a drug stays in the cell, whether it's a bacterial cell causing an infection or a rapidly reproducing cancer cell.

A computer program error caused Chang to misinterpret the shape of the molecule so that resulting images were inverted.

Thursday, December 21, 2006

Ranbaxy beats Pfizer over Lipitor in Australia

According to an official release issued by the company to the BSE [Business Standard] on Dec. 21, 2006, Justice Neil Young ruled that Pfizer's Australian patent 628198 is invalid for false suggestion and misrepresentation in obtaining the grant, however, it said Ranbaxy's atorvastatin product infringes another Pfizer patent.

The invalidity of Pfizer’s Australian patent 628198 was principally based on Pfizer’s representation to the Australian Patent Office that the potency of R-enantiomer (atorvastatin) in relation to its ability to inhibit production of cholesterol was unexpectedly 10-fold more than that of the corresponding racemic material. This representation was held to be "false and misleading", the release said.

Jay Deshmukh, senior VP (global intellectual property) of Ranbaxy, said: "We are pleased with this decision as it stands, as it advances the entry of Ranbaxy’s generic atorvastatin in Australia to May 18, 2012."

[from the Business Standard]

IPBiz notes this as another downside in the chiral switch.

Discover Magazine has 100 stories summarizing the Year in Science 2006

Discover has the "Year in Science 2006" with a lead story of "Alternative Energy" (by Eli Kintisch) which includes the line "so that cars can run on hydrogen produced by renewable non carbon-emitting power sources." The story includes text on MIT's ultracapacitors, which are supposed to replace batteries.

Story #36 is "nano risks worry scientists," about potential problems with nanotechnology.

Story #44 is "stem cells reverse Parkinson's," on the work of Steven Goldman at the University of Rochester.

Story #63 is on Fischer-Tropsch.

Not one of the hundred stories discussed the retraction in Janury 2006 by the journal Science of the two papers by Hwang Woo Suk on SCNT.

Kintisch presented a misleading picture of continuation applications in the July 28 issue of Science. Another deceptive area in the "patent reform" discussion is that of patent grant rates.

A recent board post is relevant:

[Patent examiners] only get bad press for issuing patents which are taken to task by powerful groups. They never get bad press for failing to issue patents, whether those unissued patents would be "good" or "bad".

On hydrogen storage, US 5,653,951 of Nelly Rodriguez and R.T.K. (Terry) Baker has a first claim:

A composition comprised of:

(a) a solid layered nanostructure comprised of: (i) crystalline regions; (ii) interstices within said crystalline regions which interstices are from about 0.335 nm to 0.67 nm, and (iii) surfaces of said nanostructure which define said interstices, which surfaces have chemisorption properties with respect to hydrogen; and

(b) hydrogen stored within said interstices.

The '951 patent was assigned to Catalytic Materials Limited (Mansfield, MA).

The '951 patent has been cited by 41 US patents. Most recently, it has been cited within US 7,094,276, entitled Hydrogen storage material and hydrogen storage apparatus. The first claim of the '276 states: A hydrogen storage apparatus comprising a hydrogen absorbing material comprising a porous carbon material with a specific surface area of 1,000 m.sup.2/g or more, and a hydrogen absorbing alloy wherein the hydrogen storage apparatus includes a container and the hydrogen absorbing material accommodated in the container.

US 6,834,508 to Nanomix also cites the '951 patent. The first claim of the '508 states: A hydrogen storage and supply system comprising: a first hydrogen storage tank; a second hydrogen storage tank containing an inlet configured to receive hydrogen from the first tank; a porous medium in the second hydrogen storage tank, including at least one compound selected from the group consisting of Li, Be, B, C, N, O, F, Na, Mg, Al, Si, P, S, and Cl, wherein the medium includes at least one compound selected from the group consisting of boron oxide and its derivatives; and an outlet on the second hydrogen storage tank configured to release hydrogen.

Wednesday, December 20, 2006

Parthenogenesis in Komodo dragons

Remember the FIRST Hwang paper in Science, wherein what Hwang claimed to be human SCNT was labeled parthenogenesis?

Parthenogenesis is in the news again:

Genetic tests conducted at the University of Liverpool have proved that all four baby dragons born to a female Komodo called Sungai were conceived by parthenogenesis, a form of asexual reproduction that is known to take place in lizards but never documented in this species before.

Parthenogenesis, which is derived from the Greek words for virgin birth, occurs when an egg spontaneously begins dividing as if it were an embryo, without being fertilised by sperm. It is known to have produced live young in about 70 vertebrate species, mostly reptiles and fish, and is thought to be encouraged when females are separated from males.

In humans, females have two X chromosomes and males one X and one Y chromosome. Komodo dragons and other species of the Varanus genus have W and Z chromosomes instead, and dissimilar chromosomes always produce a female.

When parthenogenesis takes place, the egg originally carries just one chromosome, either W or Z, which is duplicated. This means that all offspring are male, and able then to breed with their mothers.

from timesonline

Google patents on "Oltville Wright"

As of December 20, 2006, Google patents still lists the inventor of US 821,393 as one "Oltville Wright," as distinct from Orville Wright.

Google does recognize that one of the inventors of US 1,011,106 is Glenn H. Curtiss. Note that the '106 patent does NOT reference the basic Wright patent, the '393. The Curtiss patent does illustrate a problem in nomenclature, as the Curtiss folk preferred the name aerodrome to aeroplane.

***Further thought

One notes that a co-inventor on the '106 patent is Thomas Selfridge, who died in September 1908, prior to the filing of the application for the '106. IPBiz has wondered how Selfridge, an employee of the US Army, was named a co-inventor of a patent for a private group (which included Alexander Graham Bell and Glenn Curtiss). The patent was within the scope of the work Selfridge did for the Army.

Recall an earlier post on IPBiz:

Willie Higinbotham did not file patents on the game, because he was a government employee and would achieve no direct benefit. [remember this theme in the history of radio patents, wherein one of the pioneers was an employee of the U.S. weather service and lost out big time?] Higinbotham did have US patents in other areas.

More on New Jersey's funding of embryonic stem cell research

The IHT (through AP) reports:

State officials announced plans December 18, 2006 to invest $7 million (€5.4 million) next year in federally restricted embryonic stem cell research and $3 million (€2.3 million) for less controversial research into adult stem cells.

Gov. Jon S. Corzine called the grants and recently passed legislation to spend $270 million (€206.2 million) on stem cell research facilities in the state "a serious and vital investment in this live-saving research."

The $7 million (€5.4 million) is to be awarded through two or three grants ranging from $1 million (€760,000) to $3 million (€2.3 million) to help establish embryonic stem cell research facilities in New Jersey. The $3 million (€2.3 million) is to be distributed in grants to academic, nonprofit and for-profit institutions.

Radio station WINS carried the same AP story in the following manner:

New Jersey pushed forward Monday with plans to invest in federally restricted embryonic stem cell research, announcing it will dole out $7 million next year in a bid to find new medical treatments and potentially boost the state's economy.

The state also said it planned to offer $3 million in grants for less controversial research into adult stem cells.

"These grants, combined with the recently passed stem cell legislation, represent a serious and vital investment in this live-saving research," Gov. Jon S. Corzine said. "In the absence of support at the federal level, New Jersey's commitment will ensure our continuing status as the medicine chest to the nation and the world."

Embryonic stem cells are created in the first days after conception and give rise to all the organs and tissues in the human body. The microscopic embryos are days old and usually donated by fertility clinics.

Nobody commented on whether the $7 million, in the form of two to three grants, was earmarked. One suspects that the $7 million will go directly to the new state research centers being set up, and thus is earmarked research support.

Tuesday, December 19, 2006

Thirteen states sue EPA over soot

Thirteen states filed in the U.S. Court of Appeals for the District of Columbia Circuit, asserting that the EPA ignored the advice of its own scientists. They recommended that it should lower the acceptable level for airborne soot -- known as fine particulate matter -- to 13 or 14 micrograms per cubic meter of air from the 15-microgram level that took effect on Monday.

Soot from diesel engines has been discussed in the recent past.

Stem cells in San Diego

In an article entitled Stem cell research no dream for California, Terri Somers quotes Tom Okarma, chief executive of Geron: "Proposition 71 is supposed to help the economy by creating jobs first, then new tools and treatments, but until it really gets moving it's just an old Jag in the garage."

Of the San Diego connection: In San Diego, the four research institutions on the Torrey Pines Mesa – UC San Diego, the Burnham Institute for Medical Research, the Salk Institute for Biological Studies and The Scripps Research Institute – did not wait for Proposition 71 money to begin making changes. They pushed aside egos and bureaucracy to form a consortium under which they will share grant money and scientific expertise.

The work will be done in a new building the consortium hopes to construct near the Torrey Pines Gliderport.

The article did not mention the words "patent" or "intellectual property." The article did mention New Jersey: On Friday, New Jersey's legislature approved borrowing $270 million to fund stem cell research. IPBiz notes that the $270 million in New Jersey is to build and equip stem cell research facilities. See Trentonian, Dec. 18, 2006 and and New York Times, Dec. 14 ["the General Assembly authorized borrowing $270 million to build the state’s first stem-cell research centers in New Brunswick, Newark and Camden."]

The Union Tribune article did allude to potential problems: What's still lacking in the United States is a vehicle to link initiatives such as Harvard's and California's. Bureaucracy and egos play a role in keeping that from happening, Hall said, but so does the patchwork of state policies on stem cell research.

Suppose someone funded by California's stem cell institute develops a therapy for a specific disease and the best place in the country for treating it is the Mayo Clinic in Rochester, Minn. There would have to be different sources of funding, Hall said, and there also would be concerns about conflicting laws in each state.

“It's yet another impediment to American science,” Zon said. “Scientists like to know that they are working in an area of research that is condoned and people feel good about moving it forward.”

On Somers, see also here.

Roger Noll wrote in 21 Berkeley Tech. L.J. 1143:

States probably should be more willing to take such risks than individual institutions for three reasons. First, a state that successfully takes
more risks will obtain more research output per dollar spent, and thereby be
more likely to achieve both the scientific and economic objectives of the
state program. Because the state, but not research institutions, values the
economic spillover effect of the research program
, it will place more value on
accepting risks. Second, the state is not likely to view some federal funds at
stake in undertaking state-sponsored hESC work as having the same economic
spillover benefits as hESC research. If so, the state will place less
significance in the continuation of this support than will the institutions that receive this support, and be more willing to risk losing it. Third, the state
presumably will support projects in a portfolio of institutions, not all of which are likely to be found to be out of compliance - especially at the same time. This
portfolio effect will cause the state to perceive the average risk per project to
be lower than the risk of a state-supported project that a research institution


At first glance, CIRM appears to be especially susceptible to the
influence of distributive politics, partly because its goal is to develop commercial
and partly because CIRM was created by a ballot initiative. Because
initiatives are costly, well-organized interests are the primary source of ballot
measures. These sponsors are likely to take advantage of a policy vacuum from a
slow-to-respond legislature to place measures on the ballot that, from
the perspective of a majority of the voters, are better than the status
quo, but still far from the policies that centrist voters would prefer and would
vote for if given the opportunity. n49 Plausibly some beneficiaries of the
program - biotechnology firms, university researchers in biological sciences, and
venture capitalists who specialize in [p. 1166] biotechnology - were the forces
behind the proposition and designed CIRM as a program to enrich themselves. In
reality, this did not occur.

Noll talked about New Jersey: By contrast, the New Jersey hESC program establishes a new state research institution, jointly operated by two state universities, to undertake the research. n57 The New Jersey structure likely will be more responsive
to legislative priorities, for better or for worse, because the entity
that undertakes the research is government-owned. Federal laboratories, even
if they are managed by universities, often are more responsive to legislative
priorities than other university funded research facilities and other independent
research organizations.


from californiastemcellreport -->

Since all of you out there are looking at your schedule for the coming spring, be sure to reserve a spot for The Stem Cell Meeting in San Francisco.

Produced by Burrill & Company, the two-day session promises a host of provocative discussions and a broad range of international speakers. Topics range from “Stem Cell Argonauts: Brain Circulation in a Global Economy” to
“The Un-United States: Cell Lines, Border Lines, and the Law.”

According to the preliminary agenda for the March 12-13 event, the keynote speaker will be Ian "Dolly" Wilmut of the University of Edinburgh, whose topic is “Continental Drift: Where Will Stem Cells Take Us?”

So far no speakers from CIRM are on the agenda, but are likely to be there. No speakers from WARF are listed at this point. Beth Donley, then WARF general counsel, served notice at last year's session that CIRM would have to pony up fees to Wisconsin for use of WARF ESC patents.

We caught two days of last year's session. Hundreds of others attended. It was definitely worth taking in.

Early reservations (before Jan. 26) mean a $500 cut in the $1495 registration fee. The conference also offers an academic, government and nonprofit rate of $495. If you want to get more bang for your buck, double up with the CIRM Oversight Committee meeting on March 15 and 16 in Los Angeles. That session is free.

IPBiz asks: does the concept of "regulatory capture" apply to blogs? Separately, of the reference to Beth Donley, the context for her statement was the assertion by CIRM of requiring payment of royalties for use of CIRM patents; ergo, WARF was saying if CIRM is MAKING MONEY, we WARF want a piece of the action. As mentioned many many times by IPBiz, and as published in 88 JPTOS 239 (March 2006), WARF would be unlikely to attempt to charge, much less collect, royalties from academics for PURELY research activities. Refer to 35 USC 271(e)(1) and Merck v. Integra (which in an alternative universe might have been captioned in terms of two competing California research institutes, Scripps and Burnham). The irony here is drenching.

EPO revokes Astra-Zeneca's patent on Nexium; chiral switch failure?

Reuters reported: The European Patent Office [EPO] has revoked a key patent on AstraZeneca Plc's top-selling drug Nexium, the organization said on December 19.

The decision follows an appeal from German generic manufacturer Ratiopharm against substance-of-matter patent, which protects the heartburn and antiulcerant pill from cheap generic copies.

This key European patent was not due to expire until 2014.

AstraZeneca said it was disappointed with the patent office decision but it still had confidence in the intellectual property portfolio protecting Nexium.

Nexium/Prilosec is an example of the separate patenting of an enantiomer/racemate, sometimes referred to as a chiral switch. This decision could be quite important in the chiral area.

***Entirely separately-->

Carlos Alvarez, a professor at Florida International University, was accused of spying for decades on Cuban-American exile groups and prominent individuals in Miami, as well as reporting on U.S. political affairs. His wife, also a university employee, was implicated to a lesser degree in the alleged spying. Alvarez and his wife pleaded guilty Dec. 19 to reduced federal charges in a case involving allegations that both had spied for the Cuban government for decades.

CSIRO wins transfer of ND Cal WiFi case to ED Texas

CSIRO won a transfer of a significant WiFi case to ED Texas, where it previously prevailed against Buffalo Technologies.

Courier-Mail-->In a David and Goliath fight, the Australian government research agency is battling a group of industry heavyweights including Microsoft, Hewlett-Packard, Intel, Apple and Netgear in a patent case over its Wireless Local Area Network technology.

The CSIRO was granted a US patent for the technology in 1996, which has since been widely adopted by computer companies.

Last week a federal court in California agreed that the upcoming patent cases brought against CSIRO should be heard in Texas – by the same court that last month found in favour of the Australian agency against a company called Buffalo Technology.

**from a press release**

n its ruling, the California court [ND Cal] agreed with CSIRO that the Eastern District of Texas is the proper venue to decide on the declaratory judgment case because the Texas court is already familiar with the case and has ruled on the key issues.

"We are gratified by the Northern District's decision in this case and hope that it will set the groundwork for a final ruling in favor of our client," remarked Townsend and Townsend and Crew LLP partner Daniel Furniss. "The Eastern District has already recognized the validity of CSIRO's patents and we are confident that we can effectively argue the applicability of those patents to Intel, Dell, Microsoft and others."

According to CSIRO, the Texas court's ruling in the Buffalo case will apply to all 802.11a and g wireless devices. The amount of patent damages in the Buffalo case, based on a "reasonable royalty," will likely be decided early next year.

Monday, December 18, 2006

Peerflix acquires US 6,847,938, Method of exchanging goods over the internet

Peerflix acquired US 6,847,938 from mother/inventor Donna Moore, of Danbury, Conn.

The first claim states:

A method for coordinating an exchange of items between individuals over a communications network, said method comprising:

providing, maintaining, and updating a preexisting list of like items being offered for exchange,

wherein the steps of providing, maintaining, and updating are performed by a third party; receiving a first data entry identifying a first offered item being offered for exchange by a first user,

wherein the first data entry comprises the first user's selection of the first offered item from the preexisting list of like items being offered for exchange; receiving first search criteria identifying a first desired item to be received in exchange for the first item by the first user,

wherein the first search criteria is generated by the first user's selection of the first desired item from the preexisting list of like items being offered for exchange; storing the first data entry and the first search criteria in a database component of a central computer system; receiving a second data entry identifying a second offered item being offered for exchange by a second user,

wherein the second data entry comprises the second user's selection of a second offered item from the preexisting list of like items being offered for exchange; receiving second search criteria identifying a second desired item to be received in exchange for the second item by the second user,

wherein the second search criteria comprises the second user's selection of the second desired item from the preexisting list of like items being offered for exchange; searching the database in accordance with the second search criteria and the second data entry; generating a match if the first data entry satisfies the second search criteria and if the second data entry satisfies the first search criteria; informing the second user whether a match has been generated; and storing the second data entry and the second search criteria in the database if no match has been generated.

One notes that this business method claim is hardly a model of clear draftsmanship. The application for the '938 was filed in 1999 and the patent issued January 25, 2005. The '938 patent has been cited by ONE OTHER U.S. patent: 7,024,391, to Kraft Foods Holdings, Inc.

AP reported:

Although it doesn't apply to online retailers or Internet auctions that account for a big chunk of e-commerce, the patent may provide Peerflix with a legal lever to ward off direct competition in DVD trading, as well as stake a claim on other Web sites that broker the trading or sale of everything from event tickets to video games.

While Peerflix hasn't gone to court yet to enforce the patent, the Palo Alto-based company already is rattling its saber.

"There would be no reason to own the patent unless we intended to flex our muscles around it," said Billy McNair, Peerflix's chief executive. McNair, who also is a lawyer, believes the patent will cut a broad swath, particularly as more peer-to-peer networks are formed online to swap goods and services.

"We view this (patent) as an offensive weapon that adds to the value of our enterprise," McNair said.

Sunday, December 17, 2006

New Jersey provides money for stem cell research

In another installment of the New Jersey stem cell saga, AP reports that Governor Corzine plans to announce on Dec. 18 that $10 million dollars in grants will be made available for stem cell research. A senior NJ administration official said $7 million of the $10 million would go toward embryonic stem cell research not [well] supported by federal funding.

LifeNews reported that the New Jersey legislature has finalized approval of a bill that would have the state spend $270 million on new stem cell research centers.

The New York Times (David W. Chen) noted: When completed, the projects could generate about $1 billion in economic activity and create thousands of jobs, according to a recent study from Rutgers University.

IPBiz notes that Chen and Rutgers might want to review the paper by Roger G. Noll of Stanford University.

Back in South Korea, Lee Byeong-chun, a veterinary professor of Seoul National University and collaborator of Hwang Woo Suk, announced the successful cloning of a female Afghan hound. This research is more in the area of reproductive cloning than in therapeutic cloning. "We knew that this was possible because we cloned a male dog, but it was necessary to prove that," Lee told The Associated Press. "This was a process that must be done to see if a cloned dog has reproduction capabilities."

The news release is related to publication of the work; the dog itself was born June 18, 2006. Lee said his paper on cloning the female dogs appeared on the Web site of academic journal Theriogenology last week.

[from AP.]

Californiastemcellreport discussed a Terri Somers piece on embryonic stem cell work which appeared on Sunday, Dec. 17. This included:

"'Here we are again, sitting on the beginning of another revolution, a possible way to provide cures rather than treatments," said Chris Mason, a stem cell researcher at University College London. 'The U.K., Singapore and other countries realize what might be within their grasp if they spend the money on the front end, and they don't want to miss it.'

"The United States, long the world leader in biomedical research and commercialization, is getting a taste of being the underdog."

You can almost here him say: now there you go again.

Californiastemcellreport also talk about the greenlining report:

"...(R)esearchers and firms that obtain patents on health care technology, such as stem cell advancements, have virtually no incentive or authorization to ensure fair access to innovations in medical treatment. Without an adjustment in patent law, the cost of patent licenses in the stem cell industry will impact costs of any potential products. Because researchers have to recoup the costs of licenses, prices are driven up, with the greatest burden ultimately falling on disadvantaged communities of color. The CIRM currently includes provisions for affordability in their intellectual property policies that may be used as models for future state-funded research programs."

"Conference participants also voiced their concerns over how the tens of thousands of employment opportunities to be created with the state’s investment into stem cell research will be distributed fairly among all Californians. These jobs take the form of research positions, CIRM career staff, and supplier contracts. In his presentation, Joe Tayag from the Greenlining Institute showed that there were over 60 different types of supplier services used by a large biotech company. These jobs range from advertising, to catering, to furniture manufacturing.

Does Zyprexa cause diabetes-related adverse events?

In another chapter in the legal issues concerning Lilly's Zyprexa, the New York Times has publicly disclosed documents provided to the newspaper by a lawyer for patients suing the drugmaker, which suggest that the company told sales representatives to minimize its own published data, which show that 30% of Zyprexa users gain 22 pounds or more after a year on the drug. A few gained 100 pounds or more.

In a statement published Dec. 17 on Lilly's website, Steven Paul, the company's executive vice president of science and technology, said the documents, which include e-mails, scientific reports and marketing materials, "do not accurately portray Lilly's conduct."

The FDA has said using atypical anti-psychotics — the class of drugs that includes Zyprexa — is associated with an increased risk of high blood sugar, but it has stopped short of saying they cause diabetes.

[through USAToday]

As pointed out earlier on IPBiz,

In the context of continuing medical education (CME), lecturing doctors can answer questions about off-label uses, although they cannot initiate discussion of off-label uses. Thus, in the past, if someone asked about using modafinil for ADHD, the lecturing doctor could respond.

Wecht reveals ABFE as a diploma mill

In a law review article (34 Duq. L. Rev. 797), Cyril H. Wecht (M.D., J.D.) wrote of the American Board of Forensic Examiners [ABFE]:

There is a group called the American Board of Forensic Examiners that has recently flooded the mails. I think if I had what they've paid in postage in their solicitation campaign, I could retire. You'll have these people coming into your courts and they are going to testify that they are members of the American Board of
Forensic Examiners. There is no prerequisite test or educational requirement to
become a member. Nothing but payment of dues. Just fill out an application and submit your check. I looked at their literature and there wasn't one name that
I had ever heard of in the forensic scientific field.

District Court infringement determination vacated in L&W v. Shertech

The CAFC found, contrary to the district court, that L&W had not acknowledged embossments separate the layers of its heat shields.

There was an issue of inconsistent jury verdicts, and the CAFC cited Minn. Min. v. Chemque, 303 F.3d 1294. Perkin-Elmer v. ComputerVision, 732 F.2d 888, is also cited.

Planet Bingo v. Gametech

In the CAFC decision in Planet Bingo, one has the interesting line:

The district court found, contrary to Planet Bingo's assertion, that "after" and "before" are very different.

On an anticipation question, the CAFC cited Schering v. Geneva, 339 F.3d 1373.

Amazon strikes back at IBM in ED Texas

Amazon, accused in Oct. 2006 of infringing claims of five IBM patents, has filed a countersuit.

In countersuits filed Thursday, Dec. 14, in federal court in Texas (ED Tex), Amazon says IBM's previous legal claims of patent infringement are a meritless and misleading attempt to cash in on its vast patent holdings and Amazon's success.

"IBM's broad allegations of infringement amount to a claim that IBM invented the Internet," Amazon's lawyers wrote in the filings.

IBM is the world's leading patent holder, spending $6 billion a year in research and development and earning about $1 billion a year in royalties. Although IBM has a reputation for NOT filing patent infringement suits, the Amazon case suggests a changed posture.

[material from]

Jackson contacted a Pittsburgh invention promotion company in 1996

The Chicago Sun-Times added another fact in the McKenna - Jackson saga:

In 1996, six years before seeking advice from West Loop attorney Michael McKenna, would-be portable toilet inventor Joe Jackson sent away for a package from a Pittsburgh invention promotion company.

Ten years later, with no takers for his truck toilet, an armed Jackson burst into McKenna's office and, believing his idea had been stolen, killed McKenna and two others before police shot him to death. The McKenna family says there's no truth to Jackson's theft claim.

The Sun-Times continued:

"I tell people that it's probably less than one in 100 who are going to make money on an invention," said Chris Bischoff, an Evanston attorney who specializes in patents, copyrights and trademarks.

Once a week, the U.S. Patent and Trademark Office issues about 3,000 new patents, and perhaps 100 of those will lead to sales of any kind, says Robert Fieseler, a Chicago patent lawyer.

Attorneys tread a fine line between being upfront with clients and killing their dreams.

"If everyone took a negative attitude, if they said, 'It's too hard, or it will take too long,' then where would our society be?" said Paul Juettner, another patent attorney. "Then Thomas Edison wouldn't have done the things he did -- or the Wright brothers."

IPBiz notes that the Wright Brothers wrote their own patent application, months BEFORE the flight at Kitty Hawk in December 1903. Edison didn't invent the light bulb; he improved upon already existing technology AND he bought the rights of the previous patent holder.

On promoting innovation, look here.

A blog, MyShingle , noted the following about the Sun-Times story:

In patent law, as in other fields, attorneys must act as the bearers of bad news, the ones who put a damper on expectations. It's probably one of the worst parts of being an attorney, but if we don't occasionally tell our clients "no," or at least ask them to consider a variety of different options, who will?

All true, but that may not be the ENTIRE scope of the Jackson - McKenna incident.

The Chicago Tribune had previously reported:

-->George Jackson remembers his uncle's excitement about the prospect of marketing his invention and telling him that the lawyer said he'd call back in six weeks.

After six weeks came and went, he called again and was told "his idea wouldn't fly."

Later, George Jackson said his uncle saw a similar invention being sold on the Internet and became convinced the attorney to whom he had given his savings had patented his idea without giving him credit.<--


Sparks said Jackson told him the lawyer had discovered a patent under the name of a woman the lawyer believed was related to the attorney Jackson was suing. The patent, for an invention similar to Jackson's truck toilet, was obtained a few days after Jackson's first meeting with the patent attorney, Sparks said.

IPBiz notes that what may have bothered Jackson are events that happened AFTER the bad news given to Jackson by McKenna in March 2002.

In passing, note there was a famous IP case involving portable toilets: Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983) wherein Johnny Carson sought damages and an injunction against Here's Johnny Portable Toilets, Inc., from using the phrase, "Here's Johnny" as a corporate name in connection with the sale or rental of portable toilets. The defendant indicated that he coupled the hrase, "Here 's Johnny," with a second phrase, "The World's Foremost Commodian."


Office Rampage: 1 Year Later

Toilet Invention?

Yonhap on Brauman panel investigating fraudulent work of Hwang Woo Suk

On Nov. 28, Yonhap began a story about the Brauman panel investigating the Hwang fraud: An external committee [Brauman panel] investigating the handling of fraudulent papers by a South Korean scientist [Hwang] concluded Tuesday that the journal that published the papers would have been able to detect the fraud if it exercised due scrutiny.

In its reporting, Yonhap emphasized text from the Brauman panel about what the journal Science could have done:

"Some additional procedures would have detected this fraud," the
committee report said.

"In retrospect, even within the existing procedures, we suggest
that the reviewers and editors should have given more attention to some of the
incomplete answers, both experimental and administrative, provided by
the authors," it said.

Yonhap noted that Science editors were aware of problems:

The editors were aware of major potential flaws in both papers,
specifically the repeated photos of the stem cells, it said, "This possibility
should have been pursued and eliminated."

[from Global News Wire - Asia Africa Intelligence Wire Yonhap]

A Dec. 6 article in Investor's Business Daily did not mention the impact of the Hwang fraud on stem cell research. However, it did observe the following:

Public money is no better than private money in reaching a
medical cure for AIDS, Alzheimer's disease and lupus. The only difference is, the
private sector has an obligation to use its cash efficiently, and show results --
something no government institute is obliged to do. [IPBiz: what obligation did the journal Science have to its readers, or to the scientific community?]

Moral qualms aside, stem cell research is worthwhile only if it
shows meaningful results.

To date, the private sector has spent only $120 million on this
research. Virtually all of it has gone into adult and umbilical-cord stem-cell
research. Bill Gates, for instance, has spent only $2 million on it, and all of
it in China.

Yet 72 treatments have emerged from adult and umbilical stem-cell
research -- and none from embryonic stem-cell research -- showing the market's

[The article concluded -->]

Boondoggles: Californians were promised wonder cures if they
passed Proposition 71 to fund stem-cell research in 2004. Turns out they have
bought a $3 billion jug of snake oil.

In 88 J. Pat. & Trademark Off. Soc'y [JPTOS] 239 (March 2006), I noted at page 255:

The failure of editors and referees of the journal Science to detect
the fraud in manuscripts of Woo Suk Hwang prior to publication, and the
widespread acceptance of the work after publication, illustrates some difficulties
in relying on peer review to authenticate the validity of scientific work.
Neither journals nor the USPTO have the resources to perform experiments or
even to rigorously review the authenticity of data. Under existing review
protocols, fraudulent science or even bad science can pass review. An increase in
the amount of time spent in review could enable the discovery of errors
such as duplicated figures or graphs, but would likely be ineffective against a
dedicated advocate of fraud.

States wishing to fund research in the area of embyronic cell
transfer, or in any area of cutting-edge research, will be well advised to note the
difficulty in assessing the validity of work at early stages. Further, states
should also note that the probability of securing money from patent royalties from
patents on early stage work is not high. Further, in the area of work regulated
by the FDA, the broad scope of protection from patent infringement offered by
35 USC 271(e)(1) may render early patents in a developing area of low economic

Papers from Boalt Conference on "California's Stem Cell Initiative"

Articles arising from the "California's Stem Cell Initiative" Conference at Boalt Hall [University of California/Berkeley] from March 2-4, 2006 have been published in the Berkeley Technology Law Journal. One notes that by March 2006, the scandal involving the fraudulent work of Hwang Woo Suk in embryonic stem cell research had been fully disclosed, and both of Hwang's papers in the journal Science had been retracted.

POLICY CHALLENGES: Bioethics and Stem Cell Banking in California by David E. Winickoff [21 Berkeley Tech. L.J. 1067] did mention the Hwang matter in footnote 14: It should be noted, however, that an efficient human cloning
technique is further away than previously imagined in the wake of the discovery that
Dr. Hwang's stunning cloning efficiency in South Korea was a fraud. David
Cyranoski & Erika Check, Koreans Admit Disguising Stem-Cell Lines, 441 Nature 790

Generally, the punchline of the article was about cell banking:

The new insight in this Article is that the CSCB [California Stem Cell
Biorepository] would help address some of the inadequacies in the governance regime for stem cell research addressed above. First, as a threshold matter, maintaining a public hESC repository in California would reduce the number of egg donors required to support an expanded program of research. Because of the significant risks of donating, such a policy has distinct ethical advantages over maintaining decentralized stem cell banks at each research institution.


In sum, if set up properly, such institutions could help improve the
consent process for donors and the system of ethical oversight. Overall, they
would help correct the power asymmetries towards egg donors established in the
currently proposed regime. This idea of using stem cell banks to drive governance
should not replace the development of binding regulations subjecting human
embryonic stem cell research to institutional review board oversight and other

Significantly, an article CALIFORNIA'S STEM CELL INITIATIVE: CONVERTING THE LEGAL AND POLICY CHALLENGES: Designing an Effective Program of State-Sponsored Human
Embryonic Stem Cell Research by Roger G. Noll of Stanford [21 Berkeley Tech. L.J. 1143] did not mention Hwang at all. Even more significantly, Noll's article, which tells California taxpayers NOT to expect significant royalties from patents on state-sponsored research on embryonic stem cells, does not mention assertions by Stanford professor Laurence Baker that there WILL BE significant royalties available to taxpayers. Thus, to get taxpayers to fund Proposition 71, one Stanford professor says "royalties" and when the taxpayers seek to collect after Proposition 71 is passed a different Stanford professor says "no royalties" [and does NOT mention the first Stanford professor.]

Although Noll did not mention the substantive difficulties presented by the Hwang fraud, Noll did mention patents:

The purposes for enacting state-sponsored hESC research programs are
diverse. Most obvious is a philosophical disagreement with the President.
Another motive is the practical objective of seeking effective treatments for several important and heretofore incurable diseases. These programs also create an
opportunity for a state to gain strategic advantage for its higher education and
biotech industries, to obtain royalties from patents arising from the research,
and to reduce state spending on medical care.


This Article has three main conclusions. First, to avoid inefficiencies arising from the politicization of grants, agencies that implement research programs must base their decisions on merits as determined by competitive peer review. The California program is well designed in this regard. Second, intense political polarization over the legitimacy of hESC research inevitably slows implementation and increases the costs of these programs, as exemplified by CIRM. Third, in designing an intellectual
property regime for hESC research programs, some political leaders have vastly
overestimated the potential revenue from licensing research results, and as a
result have proposed licensing rules that may undermine the viability of the
research program. California is no exception. State legislators have proposed
rules for licensing patents from CIRM's projects that make grants from
CIRM substantially less attractive to leading research institutions than
grants from the federal government and private foundations. Because state-sponsored
hESC research programs will account for a small fraction of all biomedical
genetics research, states cannot realistically expect to receive substantially
more favorable licensing arrangements than those available from other
sources. [IPBiz: but a major issue is that there is little federal money available for hESC research, so why does Noll talk about "grants from the federal government?"]


Strong IP protection also can inhibit innovation for technologies in
which innovations are sequential - that is, some useful applications of one
piece of knowledge depend upon the creation of other knowledge. n16 For example,
a British report on patent policy examined the use of genetic information
to create effective new malaria drugs.

Both IP policy and subsidy programs also have significant
implementation costs. One cost arises from the process of evaluating the novelty of
the creator 's idea, as in determining whether an innovation deserves a patent or
whether a grant proposal is meritorious. Another is the cost of enforcement.
[p. 1151] For IP, enforcement costs arise from using courts to penalize infringers.
For grants, enforcement costs arise from complex accounting rules that
assure accountability in spending public funds. n19

Whether the benefits of stronger IP rights offset the costs is an
empirical question that turns on, among other things, the responsiveness of
innovative efforts to prospective financial rewards. IP protection is most likely
to produce net social benefits if: (1) innovative effort is highly
sensitive to financial rewards; (2) multiple complementary but independent
innovations are not likely to be needed to create a valuable commercial product; (3)
the nature and scope of IP rights are relatively transparent, thereby minimizing
the need for costly litigation to resolve disputes; and (4) the social payoff
for innovation is high.

[IPBiz notes the following, controversial commentary]

Notwithstanding all of these arguments, the Bayh-Dole Act has not
had much of an effect on universities. First, the Act has not caused a change in
the allocation of research among science and engineering disciplines
[p. 1153] and, within disciplines, research priorities among fields of research. The most important factor affecting the allocation of faculty across research
areas is the federal budget for basic research. n23 Second, although the Act
created a new financial incentive to find commercial applications of university
research, it has had no significant effect on the extent to which universities
commercialize research outputs. In most industries, patents and
licenses are not regarded as important in the innovative process
. n24 Publications, conferences, consultancies, student employment, and informal contacts with faculty account for most technology transfer, with patents and licenses being
relatively unimportant. n25 Third, while over 200 universities have technology
transfer offices, n26 in most cases these offices have had little impact.
Technology transfer offices in leading research universities have licensed
hundreds of patents that are a major source of income.


These facts should give pause to state officials who see a potential financial bonanza in the IP arising from state-sponsored hESC research. Judging from recent royalty data, the licensing income from patents derived from stem cell research is likely to be a small fraction - less [p. 1172] than five percent - of the costs of that research. Moreover, because these projects are likely to have a long gestation period, the revenue from licensing is not likely to be substantial for many years.

IPBiz notes that Noll did not discuss that hESC, in light of the Hwang fraud, is even further back than Noll thinks.

Noll also does not discuss unrealistic expectations in the embryonic stem cell area.

***Separately, one well-known biotech patent attorney

Dr. Rochelle Seide joined Arent Fox in 2005 as a partner in the Intellectual Property Group. Rochelle represents clients in all facets of patent law. She has obtained patents in the areas of biotechnology, chemistry, and pharmaceuticals for a variety of clients. Rochelle also counsels clients on legal issues relating to biotechnology and pharmaceutical patents, including patent enforcement, validity and infringement, licensing and business development. She has experience in transactional matters for biotechnology and pharmaceutical clients.

Rochelle currently chairs the Practicing Law Institute’s yearly conference on Patent Opinions of Counsel in New York and is a member of the National Academy of Sciences’ Committee on Intellectual Property in Genomic and Protein Research and Innovation. She is also a member of the USPTO Biotechnology/Customer Partnership; the Association of the Bar of the City of New York; the Biotechnology Industrial Organization Intellectual Property Committee; and the National Academy of Sciences Committee on Intellectual Property in Genomic and Protein Research and Innovation. Rochelle also previously served as chair of the American Intellectual Property Law Association Biotechnology Committee; chair of the New York Intellectual Property Law Association Public Information and Education Committee; and as a charter member of the advisory council to the University of Akron School of Law’s Center for Intellectual Property Law.

Friday, December 15, 2006

The hostage taken by Jackson in McKenna shooting identified

An AP report on Dec. 12 identified the hostage taken by Joe Jackson in the shootings within the law office of Wood, Phillips, Katz, Clark & Mortimer:

Morris J. Danzig was in a conference room Friday going over paperwork on a patent with his attorney, Michael R. McKenna, when his attorney was called out of the room. Within seconds, McKenna was shot and lay dying, and Danzig -- a Word War II veteran -- was at his side to try to stop the bleeding.

And before Danzig knew it, he was being held hostage.

"The shooting was quick. When I went to McKenna's aid, I heard at least three other shots. Very shortly thereafter, (the gunman) was behind me."


"I had a conversation with him -- a long one. He was going to shoot me, and I talked him out of it," Danzig said.

The AP report also talked about Scott Watson, an attorney at a different law firm:

Watson, a labor and employment attorney, said he spent a lot of time this weekend thinking about all the cases he has worked on.

"I just thought a lot about people who I have come into contact with in my 12 years of practicing law, and I thought about anyone who could turn out to be a Mr. Jackson," he said.

Separately, CBS2 reported:

On Wednesday [Dec. 13], McKenna, 58, was remembered as a kind and considerate man. Those who knew him said he lived his life well, and because of that, his family asked that his funeral not be a day of mourning.

Instead, they wanted it to be a day of celebration of his life and legacy.


"This day is according to the family's wishes, a day of celebration of a life well-lived by Michael and his friends and his family," said Thomas Kinsella, a friend of McKenna's.

"I know Michael was a very honorable man," Kinsella added. "He was a very intelligent man; very fair. He lived life well and fully."

Kinsella also said McKenna was a moral compass and spiritual companion for many who knew him. In honor of that, and McKenna's life, his church is reaching out to everyone touched by his tragedy, including the family of the gunman.

"We hope that people can just come together and look for some type of solution to keep the senseless violence from happening again to anybody," Kinsella said.

More than 300 people attended the funeral, including McKenna's wounded paralegal, Ruth Zak Leib. About 2,400 mourners attended the wake.

Mayor Richard M. Daley and his wife, Maggie, also attended the service.

***As an update

note McKenna McGovern Burkhart

Thursday, December 14, 2006

Judge Sand denies Nordisk's request for PI against Pfizer's Exubera

Pfizer prevailed against Novo Nordisk in convincing a judge in the United States District Court for the Southern District of New York [SDNY] to deny a request by Novo Nordisk A/S to preliminarily enjoin Pfizer's launch of Exubera®. Standards for a preliminary injunction are distinct from those for a permanent injunction, at issue in the eBay case.

Pfizer included an argument that Exubera® operates by traditional breathing, something that cannot be patented. Pfizer asserts that this drug delivery system, the first of its kind ever approved by the FDA, provides an alternative method of administering insulin, an important feature to over twenty million people that have the disease.

Reuters noted Judge Leonard Sand said Novo's claims that its sales would be hurt are "speculative" and that halting Exubera's sales would be "contrary to the public interest."

In his 13-page ruling, Sand said determination of the validity and infringement of these patents "will be best served through closer inspection at trial."


Separately, Wireless HealthCare reports bioMETRX, a developer and supplier of biometric solutions, says it has acquired the patent that encompasses biometric security and retrieval of electronic medical records. The original system designed around the patent was engineered in 1997 with contributions from Computer Associates, Kodak and Hewlett Packard.

The report quoted Lorraine Yarde: Our smartSTIK-MD product is a biometrically protected portable medical data storage device, which falls squarely in the patent that bioMETRX has just obtained.”