Wednesday, February 28, 2007

Badger, impede and stall?

Californiastemcellreport quoted Justice Stuart Pollak and further stated of the Appellate decision on Proposition 71 of Monday, Feb. 26, 2007:

Monday's decision does not mean that CIRM is out of the legal woods. Given the fever pitch of ESC research opponents, they are certain to come at the agency again but on different grounds. Their objective is to badger, impede and stall.

Reminds one of the behavior of certain malpractice defendants in New Jersey Superior Court.

See also Increased publicity of ethics complaints against lawyers in New Jersey.

Tuesday, February 27, 2007

Pfizer beats Mylan in case over cardiovascular drug Norvasc

Pfizer prevailed over Mylan in theNorvasc litigation. Mylan acknowledged infringing on the patent, but claimed the patent was unenforceable. Mylan also contended the patent contained the incorrect formula for the drug and is therefore not valid. On Feb. 27, Judge Terrence F. McVerry of the Western District of Pennsylvania ruled that the patent covering amlodipine besylate is valid and enforceable and that a competing Mylan product would infringe upon it.

Celebrities put their mark on merchandise

In the trademark area, IPKitten had a post about the rock group Queen:

The IPKat has come across a victory for the rock group Queen before the Trade Marks Registry. Julia Ruhnke made a Madrid Protocol application to register the term QUEEN FOR A DAY for clothing. The surviving members of the rock group Queen opposed the application based, inter alia, on their registration of the word QUEEN for the same goods. Since the goods were identical, the issue came down to whether there was a likelihood of confusion taking the similarity between the marks into account.


Queen is undoubtedly a well-known band, and bands undoubtedly often produce merchandise, such as t-shirts, but they are (according to the Registry) not viewed as the source of that merchandise by consumers.

On Feb. 25, 2007, CBS Sunday Morning ran a story, Celebrities Cash In On Their Names, which included the text:

Marshall Cohen, chief industry analyst for the NPD Group, which tracks retail sales, says consumers will pay up to 25 percent more for celebrity branded products, and fashion is where you'll often find them.


Sean "P Diddy" Combs' scent, "Unforgivable," was the fastest-growing fragrance of 2006. But that’s only part of his success. Combs’ Sean Jean clothing line raked in more than $400 million in retail sales last year. He's the poster boy for the latest star-powered trend, the celebrity business.

Actress and singer Beyoncé Knowles is just getting her start. The star of the Oscar-nominated film "Dreamgirls" has gone into business with her mother, Tina Knowles, to form the House of Dereon.


The week before CBS Sunday Morning ran The Man Who Owns Elvis, concerning Bob Sillerman, who bought Elvis's name and likeness, for $114 million. That's what his company, CKX, paid for Elvis Presley enterprises two years ago.

Berman claims pharma/Republican connection

Congr. Berman is discussed on the 271blog:

Berman also claimed the pharmaceutical industry relied on its strong ties to the Republican leadership to reject changes to patent law.

IPBiz asks: if Republican leadership is so adverse to changes in patent law, why did Bush nominate Kimberly Moore to the CAFC?

Patent reform may be partisan, but it would be so in a very unusual way.


PC World discussed quotes by Mark Lemley:

"Patents are not a driver of innovation, they are an impediment to innovation," said Mark Lemley, a professor of law at Stanford University Law School, speaking at the summit.

"Everyone has an example of silly patents, such as the cat exerciser laser pen," Lemley said, but the problems with the patent law are more serious than that. Often, one company asserts a patent right against another company and forces that company to stop production until the patent issue is resolved.

"The patent holdup forces the company to settle for more money than the patent is worth," Lemley said.

Generics to fight use of "authorized generic"

To counter the opportunity given to generics when proprietary drugs go "off patent", the branded companies have come up with new ways to salvage as much of their business as possible. One is through the pathway of the authorized generic / branded generic. Generic companies argue this direct competition is only possible because of a legal loophole that allows their branded rivals to launch cheaper versions of drugs just as they lose patent protection -- a loophole they hope to close with help from lawmakers.

Some policy analysts say generic drug makers face an uphill battle in changing the patent law to foreclose authorized generics, and separately that they must prepare for a fight on another front: proposed regulatory fees for their drug applications.
Under President Bush's budget released this month, generic drug makers would pay a fee each time they submit a new product for review. The Food and Drug Administration hopes to raise nearly $16 million through the program in fiscal 2008. Given that the FDA has a backlog of more than 1,200 generic drug applications, policymakers say user fees are worth considering. Lobbyists for the generic manufacturers are using the issue of the proposed fees to draw attention back to the patent-law loophole on authorized generics they say must be fixed.

In terms of the next battlegrounds, consider Schering Plough's allergy treatment Clarinex, Merck's osteoporosis drug Fosamax and Pfizer's hypertension drug Norvasc.

[from AP article: Generic drug firms fight patent loophole]

On patent reform, see post on IPFrontline-->

and previous post on IPBiz-->

On generics, see the IPBiz post: How will generic Zocor affect patented Lipitor?

Monday, February 26, 2007

Conflicts of interest at the FDA

CJ Roberts owns Microsoft stock, and CJ Roberts won't be participating in Microsoft v. Alcatel/Lucent. At the FDA, it's different. GoozNews reports in the post CSPI: FDA Failing to Find Advisers Without Conflicts of Interest:

In a report sent to Capitol Hill on Jan. 31, FDA Commissioner Andrew von Eschenbach reported that 24 percent of advisers to the agency’s seven centers and offices received conflict-of-interest waivers between November 2005 and January 2007. The Center for Drug Evaluation and Research (CDER) had the worst performance, with 146 of 417 advisers, or 35 percent, requiring waivers because they owned stock in, consulted for, or served on the speakers' bureaus of firms with products up for approval or their competitors.

The agency's ability to identify advisers without conflicts of interest has not budged since Congress acted. Although the agency says it reviewed the resumés of 724 candidates to fill the 175 open slots on its committees, its ratio of waivers per meeting was nearly identical over the period. For instance, CDER granted 42 waivers for the 8 meetings in the first quarter of last year compared to 30 waivers for 6 meetings in the fourth quarter.

Sunday, February 25, 2007

Another MP3 case

Further to the Los Angeles Times flaming the patent system over Alcatel/Lucent v. Microsoft, keep an eye on Texas MP3 Technologies Ltd. and US 7,065,417, the first claim of which is

A portable audio device suitable for reproducing MPEG encoded data, the portable audio device comprising: a plurality of inputs, including a forward input, a reverse input, a play control input, and a random input; a non-removable data storage to store compressed digitized audio data; a display; an audio output; at least one processor, responsive to selection of at least one of the plurality of inputs, to convert selected compressed digitized audio data stored in the non-removable data storage for reproduction by the audio output and to provide information to the display; a battery; and wherein, when a first selection of compressed digitized audio data is being reproduced, the display provides at least one of the first selection's title, type, remaining playtime, and reproduction time; wherein, when a second selection of compressed digitized audio data is being reproduced and in response to selection of the forward input for a first amount of time, the portable audio device advances to another selection of compressed digitized audio data; wherein, when a third selection of compressed digitized audio data is being reproduced, in response to selection of the reverse input for a second amount of time, the portable audio device begins playing the third selection from a beginning of the third selection of compressed digitized audio data; wherein, when a fourth selection of compressed digitized audio data is being reproduced, in response to selection of the play control input, the portable audio device stops playing the fourth selection of compressed digitized audio data; wherein, in response to selection of the random input, the portable audio device reproduces selections of the compressed digitized audio data stored in the non-removable data storage in a random order; and wherein, when the portable audio device is in a selected mode of operation and a voltage of the battery falls below a selected level, the display provides an indication relating to a power level of the battery.

Stanford prof helps Gore in Oscar quest?

Steven Schneider of Stanford, who suggested a link between the warm temperatures in the Northeast in Jan. 07 and global warming, may have helped Al Gore in his quest for an Oscar. A report by Patrick J. Michaels notes:

Nowhere in the traditionally refereed scientific literature do we find any support for Gore’s hypothesis. Instead, there’s an unrefereed editorial by NASA climate firebrand James E. Hansen, in the journal Climate Change — edited by Steven Schneider, of Stanford University, who said in 1989 that scientists had to choose "the right balance between being effective and honest" about global warming — and a paper in the Proceedings of the National Academy of Sciences that was only reviewed by one person, chosen by the author, again Dr. Hansen.

A different Stanford professor, Laurence Baker, co-authored an article BEFORE the vote on Proposition 71, which article suggested that California voters would receive significant patent royalties from their $3 billion investment. Now, it seems that prediction has become inoperative.

Ad campaign for California's Proposition 71 as a bait and switch?

In October 2006, IPBiz had a post which included the text:

Of "bait and switch advertising," the Federal Trade Commission [FTC] says: It's illegal to advertise a product when the company has no intention of selling that item, but instead plans to sell a consumer something else, usually at a higher price. For more information, ask the FTC for its Guides Against Bait Advertising.

Thus, it's a bit troubling to note text in the San Francisco Chronicle:

Now, leaders of the California Institute for Regenerative Medicine [CIRM],
created to implement the initiative, are warning voters not to expect that any
new treatment will be finished with clinical trials with the $350
million-a-year, roughly decade-long effort envisioned by Prop. 71.

In February 2007, californiastemcellreport has a post which includes the words:

Jesse Reynolds, project director on biotechnology accountability for the Oakland-based Center for Genetics and Society, welcomed the measure, declaring,

"If a biotech company is making billions of dollars of profit from state-financed research, the people should receive a fair return on their investment, as well as access to any therapies."

Reynolds said the leadership of the stem cell agency has tried to "back out" of Prop. 71 campaign promises of huge economic returns to the state. He said,

"This would have been a billion-dollar bait and switch. The bill will make significant steps toward fulfilling these promises."

On Feb. 23, Terri Somers wrote in the San Diego Union-Tribune:

During the campaign for the $3 billion taxpayer-funded stem cell research initiative Proposition 71, the public was told California could realize as much as $500 million to $1 billion in revenue from the patenting and licensing of discoveries that contribute to new therapies. [Somers did not mention the Baker-Deal report by name.]

However, a report issued in 2005 by a group of academics and biotechnology industry executives said the most likely return to the state will come from jobs that are fueled by stem cell research and savings that therapies contribute to the health care system. [Thus, the patent royalty angle becomes inoperative.]


The California Institute for Regenerative Medicine, which is implementing the stem cell initiative, has been working on two policies that would govern ownership and financial return on scientific discoveries made from its grants.

One policy deals with discoveries, called intellectual property, coming out of nonprofit research institutions. After a year, the administrative process for that policy still is not complete. [Somers did not get into the issue that if the state demands royalties from the grantees (and/or their partners), then funding by tax-exempt bonds cannot be used. The use of taxable bonds would be expected to double the interest paid by California taxpayers. The real hosing of the taxpayers comes if royalties are demanded, but no actual product is forthcoming. Paying more and getting less?]

The second policy, which the institute started working on later, would govern how companies give a cut of their profits back to the state if they take institute grants.

Kuehl pointed out that both policies have softened after being criticized by executives from biotechnology companies, which hope to use the state-funded science to make therapies. [No surprise here.]


californiastemcellreport writes: Sen. George Runner, R-Antelope Valley, co-author of the measure, said it ensures that the campaign was not a "bait-and-switch" effort.

IPBiz further notes that Terri Somers in a later article in the San Diego Union Tribune

1. failed to mention that Thomson did cite (and distinguish) the work of Bongso in his '780 patent,

2. failed to mention that Loring submitted to the USPTO a patent application in 1998 with a broad claim covering human stem cells, and

3. failed to mention that Loring did NOT cite the work of Bongso in her 1998 patent application.

IPBiz notes, once again, that what one does NOT say is sometimes most telling.

Saturday, February 24, 2007

The Los Angeles Times flames the patent system

A Los Angeles Times editorial on 24 Feb. 07 begins with the text: The patent system in the United States is so dysfunctional that it can even generate sympathy for Microsoft.

The editorial includes the text:

The purpose of patents, like copyrights, is to promote innovation by giving inventors exclusive rights to use and distribute their creations for a limited time. There's no requirement that a patent holder create products based on the invention; to do so would give big companies an unfair advantage over small players with good ideas. But lately there's been a trend in the opposite direction: Patent holders stay on the sidelines while large companies build the market for a technology, then the patent holders claim that their rights have been infringed and demand compensation.

As noted in an earlier IPBiz post: On the issue of whether the purpose of the patent system is to promote innovation (as distinct from promoting the disclosure of information), one might review Edward C. Walterscheid, The Nature of The Intellectual Property Clause: A Study in Historical Perspective (Part 1), 83 J. Pat. & Trademark Off. Soc'y 763:

Yet on its face the purpose of the clause is to promote the public interest through an increase of the public domain or commons of intellectual ideas and thought.

In the patent system, the public gets disclosure of information and the patent holder gets a right to exclude for a limited time. The patent holder takes his right to exclude into the free market and businessmen conduct business. It's the free market, not the patent system, which is in charge of innovation.

The LA Times also wrote:

High-tech products typically involve multiple patented ideas, many of them combined into technologies that are industry standards. As new standards emerge, the companies holding the underlying patents often form pools to simplify licensing and encourage use. But lately, a growing number of patent holders have stayed out of these pools, waited for the standards to gain popularity, then launched their claims for royalties. As a result, manufacturers can't be sure that they've obtained all the necessary licenses before bringing a product to market.

Lucent and Bell Labs worked on audio compression technology in the 1990s, but their focus wasn't MP3. Instead, two other patent holders, Fraunhofer Institute and Thomson, promoted the technology to standards bodies, then sold licenses starting in the mid-1990s. It wasn't until well after MP3 had become the compression technology of choice that Lucent started claiming that its patents applied to MP3 software. And the royalties that Alcatel-Lucent sought — about $5.50 per computer — are far above what the market has already established MP3 technology to be worth (Microsoft's MP3 licensing agreement with Thomson cost $16 million, not $1.5 billion).

The threat posed by this trend is that technology companies will limit their products' capabilities to minimize unexpected patent claims. That's the exact opposite of what patent law was designed to do.

**Separately -->

In the Qualcomm Broadcom patent saga, which had, in part, been misreported by the Los Angeles Times, the Times (through Bloomberg) stated on 24 Feb. 07:

Qualcomm Inc. and Irvine-based Broadcom Corp. agreed to drop some patent claims over their mobile-phone chips, helping them avoid two jury trials that were scheduled for later this year.

The agreement dismisses one lawsuit from each company against the other for patent infringement, including one that was scheduled to begin trial March 5.

Adult stem cell study described as "significantly flawed"

The University of Minnesota, doing well with the bioceutical Lepitrim, may have some problems in the adult stem cell area.

McClatchy Newspapers reported the the Univerity of Minnesota took the step of conducting an inquiry into a 2002 study by Dr. Catherine Verfaillie after questions were raised by a British magazine, New Scientist, about some of the published data. New Scientist disclosed the incident in an article published last week. An expert panel convened by the university concluded that a process used to identify the cells was "significantly flawed, and that the interpretations based on these data, expressed in the manuscript, are potentially incorrect."

Verfaillie's work had cemented the reputation of the University of Minnesota as a major force in the world of stem cell research. Verfaillie, 49, ran the university's stem cell institute from 1999-2006 and now heads stem cell research at Catholic University in Leuven, Belgium, while remaining on the University of Minnesota faculty.

An AP report included a discussion of the multiple use of data, something that had been a red flag in the Hwang Woo Suk matter:

Her research was scrutinized after staffers for New Scientist noticed that some data from the original 2002 article in the London-based scientific journal Nature duplicated data in a second paper by Verfaillie around the same time in a different journal, even though they supposedly referred to different cells.

About a year ago, Peter Aldhous, the San Francisco bureau chief of New Scientist, decided to take a closer look at Verfaillie's work. At the time, he was writing about problems plaguing stem cell research.

Aldhous said he was intrigued with Verfaillie's 2002 study published in Nature, because “it was a remarkable and exciting finding.”

He said he wondered why no one else had been able to duplicate her results.

Aldhous and a colleague started combing through Verfaillie's published studies. And, he said, they found that she had published some of the same data twice, labeled differently, in two scientific journals.

“I wrote to Catherine saying that we'd noticed these duplications and asking if she was able to explain them,” Aldhous said in a telephone interview.

Verfaillie told the Star Tribune that the duplication was an oversight and said she notified the University of Minnesota, which convened the panel to take a closer look at the research.

One notes that the journal involved here, Nature, wasn't saying much:

The editor of Nature said in a statement: “We are in touch with the author and investigating the problems that have been mentioned. We have no further comment.”

Friday, February 23, 2007

Intellectual honesty?

Further to the Rogerio Lobo affair at Columbia, the following comment was submitted to The Scientist:

Of the title of the article --How About Some Intellectual Honesty? It's time for scientists to speak up when something's not right--, two more relevant topics have arisen.

#1. Of a certain article in the Journal of Reproductive Medicine by researchers at Columbia, Bob Park's WN of 23 Feb. 07 notes:

The editor of JRM still refused to retract the article. This week, the remaining author, a businessman who owns fertility clinics in Los Angeles and Seoul, was charged by the editor of Fertility and Sterility with plagiarizing the work of a student in Korea on a different paper. The avenging angel was Bruce Flamm, M.D., UC Irvine, who has hounded the authors, Columbia, and JRM relentlessly since the paper was published.

IPBiz had an earlier post which included the text:

The Journal of Reproductive Medicine (JRM), which published the study (K.Y. Cha, D.P. Wirth, and R.A. Lobo, "Does prayer influence the success of in vitro fertilization-embryo transfer?" 46:781-787, 2001), not only refused to publish letters critical of it, they refused to even acknowledge their receipt. As months went by the JRM steadfastly refused to respond to e-mails, calls, or letters about the study.

#2. In the area of patent reform, a topic of interest to Congress in the month of February 2007, there has been much discussion of the poor quality of patents being issued by the US Patent Office. Certain economics professors have spoken of "a torrent of poorly reviewed patents, pouring out onto a legal landscape in which even trivial patents can be wielded as potent litigation threats." In addition to the economics professors, authorities cited include the FTC and the NAS. The difficulty is that the underlying evidence for all groups is the same, a study utilizing a model in which the patent grant rate could (and in some cases did) exceed 100%. One can't have perpetual motion machines and one can't have a "grant rate" in excess of 100%. Something's not right here, but no one is speaking up.

For reference, see also:

Lawrence B. Ebert
Feb. 23, 2007

Of the first point, one really has to question "how many" people have the stamina to hound anyone relentlessly, especially about something the science of which many people might question anyway.

Of the second point, I had contacted two New Jersey Congressmen about issues in the patent reform debate. One, Chris Smith, responded with a form email, and another, Rush Holt (who holds a Ph.D. in the sciences), didn't bother to respond at all.

In the past few years, a description of Congressional reaction to patent reform might have been captured by text in the article by ROBERT A. ARMITAGE, The Conundrum Confronting Congress: The Patent System Must Be Left Untouched
While Being Radically Reformed, 5 J. Marshall Rev. Intell. Prop. L. 267:

Should we look to a limitless sky by simply having the
wisdom to leave the patent system untouched, or are we
standing under a falling or fallen sky that only
radical reforms can repair? With the stark dichotomy
between the limitless sky and the falling or fallen
sky, it should surprise no one that when patent
lobbyists visit Capitol Hill, they inevitably leave
our legislators and their staffs perplexed.
Congressional leaders can only scratch their heads at
the disparate views on the patent system that they are

ABOUT IT 20-21 (Princeton Univ. Press 2004).

One gets the idea that in 2007 patent reform is going to be "Damn the torpedoes! Full speed ahead." [In the present context, one might paraphrase a different theme from the Civil War: "It is well that patent reform is so terrible. We should grow too fond of it." (Similar words might have been come up at Mobile if ships in addition to the USS Tecumseh had been blown up by the mines.)]

Of the Jaffe/Lerner business, a couple of additional points, to be developed later:


Although Professor Field suggested that other IP professors might criticize the work of Jaffe and Lerner, in fact other IP professors are USING the work of Jaffe and Lerner:

The fundamental problem is the assumption that the
grant of the patent actually promotes innovation.
Certainly, the theoretical and policy justifications
for a patent system are to promote innovation. 77

Footnote 77: See, e.g., Adam B. Jaffe & Josh Lerner,
Innovation and Its Discontents: How Our Broken Patent
System Is Endangering Innovation and Progress, and
What To Do About It 23-24 (2004).

On the issue of whether the purpose of the patent system is to promote innovation (as distinct from promoting the disclosure of information), one might review
Edward C. Walterscheid, The Nature of The Intellectual Property Clause: A Study in
Historical Perspective (Part 1), 83 J. Pat. & Trademark Off. Soc'y 763:

Yet on its face the purpose of the clause is to promote the public interest through an increase of the public domain or commons of intellectual ideas and thought.


One also has the text:

For example, noted economists Adam Jaffe
and Josh Lerner, both of whom have published
extensively on various aspects of patent incentives,
also recently delivered a detailed analysis of the
problems in the U.S. system. See generally, Adam B.
Jaffe & Josh Lerner, Innovation and Its Discontents

Thursday, February 22, 2007

Microsoft loses to Alcatel/Lucent

Microsoft Corp. lost a patent infringement lawsuit over violating two patents related to digital music, a federal jury determined on Feb. 22.

From Toronto Daily News:

Microsoft now must pay $1.5 billion in damages to telecommunications equipment maker Alcatel-Lucent SA who said the patents in question govern the conversion of audio into the digital MP3 file format on personal computers.

"We think this verdict is completely unsupported by the law or the facts," said Tom Burt, a Microsoft deputy general counsel, "We believe that we properly licensed MP3 technology from its industry recognized licenser — Fraunhofer. The damages award seems particularly outrageous when you consider we paid Fraunhofer only $16 million to license this technology."

Wednesday, February 21, 2007

Oral arguments in Microsoft v. AT&T on Feb. 21

Oral arguments in Microsoft v. AT&T heard on Feb. 21, 2007 were not favorable to the AT&T position.

The transcript of the oral argument may be found here.

On page 3 of the transcript (the first page of actual dialog), Justice Scalia makes the first remark, concerning rumors that a stipulation has already been reached between the parties. Sadly, the transcript refers to this as a "muteness" [sic: mootness] problem. Both Justice Scalia and Justice Kennedy were concerned about this issue. [See also page 51.]

Justice Stevens tried to crystallize the issue: "whether the software is really being copied when it's transferred from the golden disk to the new manufacturer, or whether it's actually being supplied?"

Microsoft's position is that the master disk is NOT a component of the final computers.

In the vicinity of page 10 of the transcript, Mr. Olson is evasive in not answering direct questions. On page 13, Mr. Olson has the memorable line: two plus two equals four can't be patented.

On page 14, Justice Ginsburg referred to the CAFC opinion as ambiguous.

On page 15, Justice Alito suggested Olson's point was an artificial distinction.

Mr. Joseffer explained the limited scope the US government assigns to 271(f). He made clear that 271(f) does not apply to the acts of copying AND selling abroad. He made the point that NO foreign country currently applies its laws in the way AT&T is proposing to apply US law (271(f)) abroad. He also made the point that a foreign country might not grant a patent on something that the US did grant a patent upon [this topic has come up in the patent quality debate.]

At pages 19-20, Justice Breyer chimed in to answer an IP question: Copyright, copyright.

At page 22, the issue of the patentability of software per se arises.

There is an interesting assertion/question on page 24 by Justice Alito: "...the component is the electrons in the hard drive?" [At some point, one might want to review principles of magnetism. The ferromagnetic material in a hard drive gives rise to the ability to store binary information (1's and 0's), and the ferromagnetic material obtains its properties from domains, which do get their magnetism from "electron spin" (electrons have magnetic moments). However, only a fraction of all electrons in the hard drive would relate to the relevant "component." Justice Alito was not on the Supreme Court when Festo was decided, wherein the key technical issue was the magnetizable sleeve, and no justice wanted to talk about the scientific underpinnings of "magnetizable." ]

At page 27, Justice Stevens asks if software is patentable.

At page 30, Justice Breyer refers to the US as having stolen technology for "weaving machines and cotton spinners" from England.

At page 32, one has a discussion of a stream of photons going under the land and under the Atlantic Ocean.

At page 37, one has the statement by Justice Breyer about "I don't see how to decide for you." Justice Breyer is talking about the blueprint/transmitting a patent text analogy.

There's a great line on page 40 about "golden disk"/ Scheherazade. [But see page 51.]

On page 41, the previous "photons" under the Atlantic have become "protons" under the Atlantic.

On page 44, "nobody is paying billions of dollars from an idea."

Patently-O has a discussion of the oral arguments.

One comment of interest to IPBiz was:

First, both sides appear to agree that exporting the Golden Disk is “supplying” under 35 USC 271(f). However, I have to agree with Microsoft, if the Golden Master is never used in a computer then it is not assembled into the invention and thus non-infringing, “standing alone”.

Second, does replication fit the meaning of "or causing to be supplied"? My understanding is that without the Golden Disk, the replication could not occur. Further, the requested replication appears caused by the supplier of the Golden Disk, and the resulting physical object is practically an identical functional copy of the Golden Master. Additionally, no significant transformation occurs since the Golden Master and the Copy are functionally identical.

On the second question I have to agree with ATT, because the ultimately assembled components are functional replicas of the supplied Golden Master, who’s [sic] sole purpose is to make replicated components, (because as Microsoft asserts, “never used in a computer”). Moreover, since the Golden Master has only one purpose, then the supply of the ultimately assembled components was caused by Microsoft.

A recap in light of 35 USC 271(f) (2); “Whoever without authority supplies or causes to be supplied in or from the United States any component of a patented invention that is especially made or especially adapted for use in the invention and not a staple article or commodity of commerce suitable for substantial non-infringing use,

where such component is uncombined in whole or in part,

knowing that such component is so made or adapted and intending that such component will be combined outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.” [separated at commas for clarity]

I [ee4law] would argue that the result of exporting the asserted single purpose Golden Master and causing replication for assembly is pertinent to the last clause of 271(f)(2), that of “knowing” the Golden Disk is “adapted and” [Microsoft] “intending that such component will be combined”

I rely here on “combined” to incorporate the aspects of replication that have been the focal point for many. Microsoft argues that the replication is part of the assembly process, then based on Microsoft’s assertion “combining’ the Golden Master in the same way within the U.S. would have resulted in infringement. The Golden Master replication would occur first, then replicas assembled into the patented invention.

Therefore, based on Microsoft’s own position, and in light of 271(f)(2), the ATT position appears more persuasive.

post by ee4law

Boston Globe duped by music hoax?

In Oct. 06, the Boston Globe discussed the Rainville plagiarism incident and in Nov. 06, the Oak Ridge science fraud incident. Now it seems that the Boston Globe has been tricked.

The Register notes Gramophone magazine has unearthed what one sound recording expert describes as "the biggest attempt at recording theft ever." Of the "villain" (Joyce Hatto), the Boston Globe had described her as "the greatest living pianist that almost no one has heard of". In a statement destined to haunt the Globe, a Globe critic wrote: "Best of all is her musical imagination, which finds original things to say about the most familiar music."

The Register reported: Sound engineer Andrew Rose of Pristine Audio, who performed an analysis of Hatto's recordings on behalf of Gramophone, says every one of the CDs he has analysed can be attributed to another artist. "We have yet to investigate a Hatto recording that has not proved to be a hoax," concludes Rose. In several cases, says Rose, the original sound recording had been manipulated to disguise the source.

There's a message for "accuracy on the internet:" Hatto's belated fame owes much to the internet, notes Rose. "It's a reputation that spread through the backwaters of the internet, thanks to online reviews and comments, message boards, and particularly on Usenet, ultimately resulting in the first major article in Gramophone magazine only a year ago. It's a reputation that was built online."

Bitsofnews reported:

The critic who claimed to have discovered her CDs said it was "like finding the Holy Grail". Hatto was described as "one of the greatest pianists Britain has ever produced", who mastered the most difficult pieces ever written for the instrument with "awesome" and "astonishing" skill.

But at the same time as the cult of Hatto was burgeoning, there were persistent rumours on the internet as to the true origins of the recordings, according to the classical music magazine Gramophone.

How, wondered the doubters, could one woman – especially one who had battled cancer for many years – have mastered a range of repertoire and recorded a catalogue that arguably makes her more prolific than even the Richters and the Ashkenazys.

The story of fraud really "caught fire" when a Gramophone critic decided to listen to a Hatto Liszt CD, of the 12 Transcendental Studies, and discovered that his computer's player identified the disc as the Liszts, but not a Hatto recording. Instead, his display suggested that the disc was a recording of the pianist Lászlo Simon.

The music magazine then sent the Hatto and the Simon Liszt recordings to an audio expert, Pristine Audio’s Andrew Rose, who scientifically checked the sound waves of each recording. They matched. “Without a shadow of a doubt,” reported Rose, “10 of the tracks on the Liszt disc are identical to those on the Simon.” Of the remaining two, he now feels that he has identified a further one – which he identified as being, again “without a shadow of a doubt” from a CD entitled “Nojima Plays Liszt”, a 1993 release from Reference Recordings.

As a separate, but related, matter, recall the one poster in the Andersonville plagiarism incident who blamed the readers of the later book for not recognizing plagiarism from the earlier book?

USPTO gives final rejection in re-exam of Cabilly patent, US 6,331,415

Further to the re-examination of US 6,331,415, Genentech Inc. said on February 21, 2007 the U.S. Patent Office rejected its claims to a lucrative antibody patent that was the focus of a January 2007 U.S. Supreme Court decision. This is a final Office Action in the re-examination, and "Genentech plans to respond to the final Office action within the next several months and, if necessary, appeal the decision through all appropriate means of review within the Patent Office and the courts." The loss of rights to the so-called Cabilly patent could cost Genentech a large portion of royalty revenue.

Although some legal academics point to the lack of use of the re-examination mechanism, this is another example in which the re-examination procedure was used, and, here, produced a finding of INVALIDITY.

Recall also that the Smucker peanut-butter-and-jelly sandwich patent, much maligned by patent reformers such as Adam Jaffe, also went down the shoots in re-examination.

Tuesday, February 20, 2007

More on Taleyarkhan: vindication and verification?

Further to the clearing of Rusi Taleyarkhan by Purdue, the New Scientist has an article on 19 Feb. 07 including the text:

However, on 7 February, Purdue absolved Taleyarkhan's group of any misconduct. The verdict follows independent verification of Taleyarkhan's results by Edward Forringer of LeTourneau University in Texas and his colleagues last November (Transactions of the American Nuclear Society, vol 95, p 736).

Taleyarkhan says he has been "vindicated".

Judge Seidlin in Anna Nicole Smith case

FoxNews reported on Feb. 20:

Citing unidentified sources, celebrity gossip Web site published a report Tuesday — while the proceedings over who should get Smith's body and where she should be buried were under way — that Broward County Circuit Court Judge Larry Seidlin is angling for his own television program.

The Fox report noted that Judge Seidlin was --even making broad, bold declarations like "I am the trier of fact" and "We are here on a search for the truth, and we will continue."--

Fox News reported on Feb. 16:

[Larry] Seidlin, 56, grew up in the Pelham Parkway section of the Bronx. In 1972, he graduated from Hunter College. He spent two years at St. John's University Law School, then moved to Florida in 1974. He got his law degree from the University of Miami.

The Guardian wrote on Feb. 17:

Larry Seidlin has sat in the crowded circuit court all week, encircled by the warring parties. He used to be a New York taxi driver, and it has shown in the many interjections he has made at crucial points in the proceedings. When the question of paternity arose, the parties squabbled over whether Smith's body should be released or held for further DNA tests. Judge Seidlin's response? "The body belongs to me now," and "that baby is in a cold, cold storage room". Later, after a post-hearing massage, the judge conceded to the South Florida Sun-Sentinel that he might have used more measured language. "I should have just said 'the body is under the jurisdiction of the court now'," he said. Yesterday was the third day in a row he heard legal argument over the fate of the body, the burial, the DNA tests and paternity suits. Amid it all, Judge Seidlin has kept his eye on the bigger picture, even adopting a Middle East peace metaphor to describe the issue over the burial. "I want you to give me a road map of where I go here," he said yesterday.

**AP on Judge Seidlin:

Roy Black, said of the circus-like scene in Seidlin's courtroom: "I sort of think it gives circuses a bad name." AND FURTHER-->

"I thought he was one of the most entertaining things I had ever seen. He could be a TV judge. He could be a stand-up comic. However, I think he makes a horrible judge," Black said. "He doesn't follow any of the rules or procedures."

Who invented the hamburger?

Further to the difficulties of being a patent examiner, ABCNews had a story on Feb. 20, 2007 about disputes on "who" invented the hamburger.

The ABC story noted:

Who invented the hamburger? You might think there is an easy answer. There is not.

The story in Texas is that Fletcher Davis invented burgers in Athens, TX and brought his invention to the World's Fair in St. Louis in 1904, where the invention took off and became an American icon.

People in Connecticut credit Louis Lassen. First, the Library of Congress agrees it was Louis Lassen who invented the burger when he put scraps of ground between slices of bread for fast, easy eating. And second, Lassen's burgers are still served at Louis Lunch, a small hamburger shack in New Haven where Jeff Lassen is the fourth generation proprietor.

If ABC News can't resolve the question of one invention, think about the tough job of the USPTO which has to handle hundreds of thousands of such questions every year.

***On the food topic -->

Cookies comprising dietary fiber gel, United States Application 20060182864


According to the present invention, fat and caloric content of cookies can be reduced by the replacement of a portion fat content normally found in cookies with an amount of dietary fiber. The result is that fat and caloric content of cookies can be manipulated with minimal effect on taste and texture. Furthermore, the cookies can further comprise functional foods that increase health and nutritional benefits of the cookies. The functional foods can be added individually, and in any combination thereof. Hence, in addition to reducing fat and caloric content of cookies by replacing a portion of fat with dietary fiber gel, additional health benefits can be achieved with compositions that include functional foods.

Charlie Rose had an interview on 12 Feb. 07 with David Mamet which had some interesting comments on invention.

The Better Burger Battle

Key trial on VoIP to begin Feb. 21

Vonage of Edison, New Jersey and one of the best-known brands in the Internet phone world, could be in big trouble if its loses an infringement trial beginning Feb. 21, 2007.

Brooke Schulz, a Vonage spokeswoman, said Feb. 19 that Verizon's assertions are baseless. "This is about Verizon trying to stifle competition. We have not infringed on [claims of] their patents, period."

As for the prospect of Vonage shutting down, Schulz says, customers shouldn't worry. "We're working on a redesign plan."

Internet telephony, also known as VoIP, for Voice over Internet Protocol, is a Web-based phone service that closely mimics traditional phone service but sends calls over the Internet. VoIP costs only about $20 a month - though it requires an existing high-speed Internet connection - compared with $40 to $60 a month for regular phone service. [from KARE11 via USA TODAY]

See an earlier IPBiz post.

More on the WARF/Thomson patents

The re-examination numbers of the Thomson patents are:


In the '102 re-exam, attorney Kathyrn Doyle of Drinker, Biddle (Philadelphia, PA) mailed a letter on November 15, 2006 waiving the opportunity to file an owner's statement under Rule 1.530. The file was forwarded to the examiner on January 10, 2007. [The initial re-exam request was received on July 17, 2006.]

The parent application is 08/376,327, filed January 20, 1995. US 5,843,780 is based on a cip of the '327 application.

IPBiz discussed the obviousness arguments in the re-exam request of the '780 patent in the post: On the obviousness challenge to WARF's '780 by PubPat.

Monday, February 19, 2007

Nightmare on Interstate 78 on Feb. 14

For those who may have missed it, some motorists were stranded on Interstate 78 for more than 24 hours.

Interstate 78 was jammed by 6 p.m. Wednesday evening [Feb. 14, 2007], and the first signs of help didn't come until 2 a.m. Thursday, leaving thousands of drivers stranded in the freezing cold overnight. The "good news" was that by Thursday night that stranded motorists and vehicles were finally off the highway. Paul Watson of Glasgow, Ky., was hauling a trailer full of shoes from Nashville to New Jersey and spent 25 hours by the side of the road.

At its worst, traffic along I-78 was backed up from just west of Allentown all of the way to the I-81 split in Lebanon County.

National Guardsmen and volunteers ferried food, fuel and baby supplies to drivers along a 50-mile stretch of I-78. Anyone impacted by the incident is encouraged to email their comments to

AMTonline reported:

In Pennsylvania, the last of hundreds of motorists stranded on a 50-mile stretch of Interstate 78 were freed Friday, but several other highways remained shut as crews struggled to clear ice and snow following the monster storm that was blamed for at least 24 deaths in the Northeast and Midwest.

Pennsylvania Gov. Ed Rendell apologized for the state's "totally unacceptable" handling of the storm and the I-78 tie-up, where some motorists were stranded for as long as 24 hours. He blamed an "almost total breakdown in communication" among state agencies.

One would have thought that in the year 2007, state officials who close an Interstate would think to close the on-ramps to the interstate, but they didn't. One would think that state officials managing research programs would know about 35 USC 271(e)(1), but they don't. One would think state officials in the embryonic stem cell area would understand the significance that no one in the world has come close to doing what Hwang Woo Suk claimed to do in human SCNT. If they do know, they sure aren't talking about it.

Patent attorney disciplinary rules case

See Andrew v. Beverly, 415 F.Supp.2d 919, 79 USPQ2d 1824 (N.D. Ill. 2006)

Microsoft v. AT&T oral argument coming soon

MSNBC/FT report on Microsoft v.AT&T: The Supreme Court will on Wednesday test the global reach of US patent law, in a case that could have big implications for new technology industries such as software and biotechnology. The case concerns whether Microsoft should be liable for damages overseas for infringing a software patent owned by AT&T for the manufacture of synthetic speech. It will test the extraterritorial application of US patent law in the information age at a time when courts around the world are struggling to apply national laws to increasingly globalised economic activity.

Although not explicitly mentioned in the MSNBC report, what is coming up is oral argument, not a decision.

Blogger problems

Californiastemcellreport has noted some recent issues with blogger, and IPBiz has noted some problems which began on or about Feb. 12, concerning both indexing and access.

On the brighter side, Philly's Channel 57 seems to be back up with its antenna, such that people in New Jersey can see it. It was not viewable (here) for nearly two months.

Litigation, not patent quality, is the real driver of patent reform

The Patent Prospector presents some litigation figures:

Here's the top tech dogs in 2006 courtroom patent brawling, including number of lawsuits involved, regardless of plaintiff or defendent:

1. Microsoft = 19
2. Verizon = 16
3. Apple = 12
4. HP = 11
5. Intel; Dell = 9
7. AT&T = 8
8. Adobe; Broadcom; CA; Motorola; Orace = 7

This "high frequency" of patent litigation is why the likes of Microsoft, HP, and Intel are pushing for patent reform, rather than patent quality per se. The Coalition for Patent Fairness was headed by Doug Comer, who is also Intel's director of legal affairs and technology policy.

The Patent Prospector also notes:

Chris Carraway, patent litigation head at Klarquist Sparkman: "These days I bet a majority of patent cases do not involved [sic] competitors, but non-practicing patent owners over damages."

This is the patent troll story of non-makers of things holding up those who do make things. It can involve both damages and the threat of a permanent injunction.

Competitors who make things tend to make deals, possibly involving cross-licensing of patents. Within limits, competitors try to "get along." This is one reason why Professor Jaffe's idea that competitors will fork over relevant prior art in a pre-grant context is misguided. A competitor who will cross-license, post-grant, is not likely to stir up the pot and start a range war, pre-grant. However, a large entity may go after a smaller entity, pre-grant, to nip a POTENTIAL competitor, IF the smaller guy has a really threatening idea. Nobody is apt to go after [weak] ideas, pre-grant, as Professor Dreyfuss noted in her UMich LR review of the Jaffe/Lerner book.

There is a long thread at Patently-O, which includes some text:

-->Mr. Ravicher's statistics that 85% of all original applications end up getting patented (whether through one round of prosecution, or through two or more via RCE's and continuations) are just plain wrong. The PTO's own statistics clearly refute his claim. The studies he cites are also flawed in their analysis. [IPBiz: the 85% number comes from the second paper of Quillen and Webster, which was endorsed by Lemley and Moore as the "best number" we have. Of course, it isn't correct.]

-->Jaffe's entire thesis is based on some fairly weak and reed thin presumptions. I have yet to find a good definition of a "bad" patent or a "trivial" patent except one that an infringer didn't want to pay royalties on.

-->It is unimportant that Jaffe, an economics professor, has all his numbers wrong.

He has already succeeded in planting his Thought Terminating Termites in the Temporal Lobes of his listners' brains. [IPBiz: perception becomes reality.]

Don't believe me? What's that grinding sound we hear in the background? Yup. It's the sand in the gearbox.

-->What I learned about post-grant opposition, however is that once its available everyone will use it. Especially, the big bullies. Since it is designed to be a lower cost alternative to litigation, the big companies love it since they can get more bang for thier buck and shake out the suckers prior to litigation, while learning much about the case prior to brining it to court.


One more thing. When a book on patents "Innovation and Its Discontents:How Our Broken Patent System..." is labeled "provocative" you know something is wrong.

Even the title has the kind of unsupported presumptions found throughout the book. Jaffe does not title his book "Innovation and Its Discontents: Is Our Patent System Broken?" He has already made that conclusion and wants you to buy into his premise.

I don't think the patent system needs a Dr. Phil or an Oprah. Again, any book on patents that purports to be "provocative" should immediately be suspect as originating from a deconstructionist.

I can see the headlines five years from now "China posts record manufacturing gains, while U.S. trade deficits mount. Many believe patent harmonization led by patent system deconstructors is largely to blame. U.S. Trade Rep Jaffe cannot be reached for comment"

The only way to flush the sand out of everyone's mental gearboxes and to safely transport them out of the image implant zone, is to do a full dissection on Jaffe and to demonstrate that he has sand and sawdust in his skull. He is a scare crow puppet working on behalf of the dark forces, the hidden ones who have 'coallitioned' themselves against independent innovation. Fair is foul as Shakespeare has oft warned us. So beware of the "Coallition for Patent *Fairness*". (It would be foul Dennis not to allow me to demonstrate where the real battle is ongoing --for the hearts and minds of the voting public. It is no accident that Congressman Berman had such a one-sided "hearing".)

OK with that done, show us the numbers again John. Show us every point where sawdust Jaffe fabricates falsities on behalf of the dark coallition instead of sticking to the truth. The truth is that the USPTO is working hard to destroy the American innovator. The truth is that the Protection [Racket] Act of 1999 did not go far enough in so far as the Dark Forces of the Coallition are concerned. That is why they bring us the Quality Choir of 2007 this year. If you are "truly" about quality, you would have your numbers right. Does Jaffe have all his numbers right? If you are "truly" about quality, you would have examiners who know technology and law. Does the USPTO? Ask yourself these hard hard questions. A glimmer of truth may appear from out of the void.

Sunday, February 18, 2007

Press release on PatentMonkey

From a transworld press release: Get two patent searches at once while performing free patent reviews at While most patent search systems provide referrals to patent Maintenance and PAIR information, is the only free online search engine that displays a patent’s status information on every patent detail page. is a free and open patent search and document downloading site built with smart user focused features and tools for the average user and the most experienced patent searchers. Users can quickly scan front pages, build a list of patents to save and download, and then choose free single patent downloads or bulk downloads for a fee. has a fully searchable data base of US issued patents with timely data updates as well as a patent and business blog.

IPBiz checked out the peanut-butter-and-jelly sandwich patent, US 6,004,596. Not sure we see referral for PAIR information on this page.

In any event, there has been re-exam activity on US 6,004,596. The BPAI reversed the re-examiner in appeal number 2006-1664 filed September 14, 2006! In a sequence of events only a patent attorney could fully appreciate, even though the examiner who found invalidity was reversed, the peanut butter and jelly patent died anyway. All those professors, including Adam Jaffe, should not be using the '596 as a whipping boy any longer.

On page 2 of the BPAI decision of September 14, "This invention relates to a sealed crustless peanut butter and jelly sandwich." Yes, this is the "right" patent.

On page 4, the references are identified as Sollerud, US 3,782,270 and Meli, US 5,112,632, and two technical publications. The rejections were for obviousness.

Here's the rub. The BPAI did not sustain the standing rejection under 103 of claims 41-51 BECAUSE the scope of the claims is unclear. The BPAI cited In re Steele, 305 F.2d 859 (CCPA 1962). Thus, the BPAI didn't rule on the art because the scope of the claims was indefinite. Likewise, the BPAI would not sustain a rejection under 35 USC 112 P1, also because the claims were indefinite.

The BPAI entered new rejections pursuant to 37 CFR 41.50(b) under 35 USC 112 P2, for indefiniteness. The BPAI cited In re Johnson, 558 F.2d 1008, 1015 (CCPA 1977). Claims 41-50 were also rejected under 35 USC 112 P1 for lack of written description. The BPAI cited In re Kaslow, 707 F.2d 1366.

Page 13 includes mention of a scanning problem at the USPTO.

Page 14 of the decision notes that the appellant must either reopen prosecution or request rehearing within 2 months.

In an action filed December 8, 2006, the PTO noted that the appellant had not filed a response within the two month window. Claims 41-51 have been canceled. The action was signed by primary examiner Kiley Stoner on December 5, 2006.

[Look here for USPTO entries on the re-exam.]

There are previous posts on IPBiz of relevance:

Smucker's US 6,004,596 is under re-examination

Return of the peanut butter and jelly sandwich patent? , which included text:

We have mentioned the so-called "peanut butter and jelly" patent both in this blog (Nov. 2004) and in IPT (e.g., "It's bound to scare you boy," IPT (March 2003)).

Autism/neurexin link found

The largest study of the genetics of autism ever conducted, involving DNA from almost 1,200 affected families worldwide, has already yielded two important clues to the poorly understood disorder.

Discoveries in two areas of the genome -- a region on chromosome 11 suspected of having links to autism, and aberrations in a brain-development gene called neurexin 1 -- could spur more targeted research, the experts noted.

"That's the real promise here," said Autism Genome Project co-researcher Dr. Stephen Scherer, director of the Center for Applied Genomics at The Hospital for Sick Children in Toronto. "When you identify certain genes, you can then develop genetic tests -- in some cases prenatal and in some cases postnatal -- because early diagnosis is crucial here."

[from HealthDay Reporter]

Dr. Stanley Nelson of UCLA noted that there might be dozens, or even hundreds, of relevant genes. Autism disorders are at a level of 1 in every 150 children.

Meanwhile, "60 Minutes" did a story on autism on 18 Feb. 2007 about research including that of Sally Rogers at UC/Davis. Her theory is that early treatment to create new connections in the brain is useful. She noted that there is a huge range in reactions to such treatment. There was an interesting story about a grandmother who diagnosed autism in a child, even when the mother and doctors did not.
There was discussion of work by Ozonoff, who found at 6 months, normal children respond to their name (but only half the children who didn't respond had autism).

There has been a claim of a 60 fold increase in autism. This was disputed by Goodman at Johns Hopkins, who noted that the definition was broadened in the 1990's. One theory had involved mercury in childhood vaccines. Goodman did not think this was viable to explain autism.

"60 Minutes" did not mention the neurexin etc. work disclosed on Feb. 18.

Somers on CIRM grants of Feb. 16

Terri Somers' article began: "California's groundbreaking stem cell institute [CIRM] approved its first round of research grants yesterday [Feb. 16], directing about $45 million to 72 human embryonic stem cell research projects around the state."

Somers got into the human side: When asked about his decision to break with Bush on the issue of human embryonic stem cell research, the Republican governor [Schwarzenegger] said his decision was about helping those who are desperate for cures, including his father-in-law Sargent Shriver, who suffers from Alzheimer's disease. [The probability of Sargent Shriver being treated with a cure arising out of Proposition 71-funded research is epsilon close to zero; however, there is some utility in doing research that may accelerate development, years from now.]

Somers second paragraph was as follows:

In one day, the first state-taxpayer-funded initiative for human embryonic stem cell research awarded funding that surpassed the total amount the National Institutes of Health directed toward the science last year for the entire country.

An immediate implication is that federal funding is less than $45 million per year. Federal support is right around that number. A separate question is whether California's $45 million is all being distributed in one year, which, if not so, would suggest that the figure $45 million is not the right benchmark.

A previous IPBiz post had noted that the NIH had allocated $40 million to human embryonic stem cell in the year 2005. ["In 2005, the NIH allocated roughly $40 million for 154 projects related to human embryonic stem cells, Battey testified at the hearing."] It is separately true that the federal government allocates funding to other areas of human stem cell research. CIRM itself had noted significant funding in OTHER COUNTRIES: China appears to have the largest annual program with a total as high as $249 million with the United Kingdom following at about $193 million, although it is not clear that all of the UK funding is available. Likewise, China's spending may be less. Australia comes in at about $47 million, Singapore at $25 million, Korea at $18 million, (...)

Some in New Jersey might note that the issue of the "first state taxpayer funded initiative" is a bit tricky as New Jersey taxpayers may have funded stem cell research already, although not through the initiative mechanism. It's not exactly clear how the past New Jersey money was authorized, but New Jersey voters did not vote on it.

For anyone who might want to comment on the Somers article, her email is -->

Cuba honors Herbert Matthews, the man who "invented" Fidel Castro

In 2005, IPBiz had a post: In 1975, Newsweek ran a story which included the sentence-- Back in 1959, National Review magazine ran a cartoon of Fidel Castro sitting on a map of Cuba and proclaiming, "I got my job through The New York Times." One does not hear much these days about how Herbert Matthews, a New York Times correspondent whose published 1957 interview with Castro in his Sierra Maestra redoubt assured the world that Fidel was not a Communist. The assertion of Matthews wasn't true in 1957, 1975, or 2005.

Fast forward to a release by Reuters on 17 Feb. 2007: Cuba unveiled a marble plaque on Saturday [Feb. 17] commemorating the interview 50 years ago by New York Times reporter Herbert Matthews that helped build the legend of Fidel Castro, the state news agency Prensa Latina reported.


The [Cuban] government had claimed Castro was dead. Matthews' article, published by The New York Times on Feb 24, 1957, showed Castro was still alive and fighting. It immediately made the 30-year-old firebrand an international figure.

In that glowing article Matthews wrote: "The personality of the man (Castro) is overpowering. It was easy to see that his men adored him and also to see why he has caught the imagination of the youth of Cuba all over the island. Here was an educated, dedicated fanatic, a man of ideals, of courage and of remarkable qualities of leadership."

Reuters also noted a recent book "The Man Who Invented Fidel," by Anthony DePalma.

Curious juxtaposition in patent reform

In a telephone press conference on February 5, 2007, Steve Pinkos, deputy under secretary of Commerce for Intellectual Property, noted among other things:

-->Patent examiners completed 332,000 patent applications in 2006, the largest number ever, while achieving the lowest patent allowance error rate -- 3.5% -- in over 20 years. At 54%, the patent allowance rate also was the lowest on record. <--

Meanwhile, on February 15, 2007, Adam Jaffe testified before Congress:

-->Ironically, the only aspect of the patent process that has become more certain is the application process itself, as the ultimate granting of some patent from each original application has become almost a sure thing!<--

Although Jaffe didn't give a reference for his assertion, one presumes he is relying on the studies of Quillen and Webster, the model for which allows a grant rate in excess of 100%. One hopes Justice Scalia (and Congress) can recognize gobbledeygook when it presents itself.

Registration of Obama bin Laden mark denied

The AP discussed the rejection of the proposed Obama bin Laden trademark:

"The examining attorney refuses registration because the mark consists of or comprises matter which may falsely suggest a connection with the individuals Osama bin Laden and Barack Obama," Karen Bush wrote in a Feb. 6 application response.

Batlle, who paid $325 for the application, continues to sell T-shirts and mugs with the name "Obama bin Laden" on his Web site. He's expecting sales to pick up if Obama wins the 2008 presidential election.

East Bay Times: will New Jersey stem cell voters be treated with respect?

The punch line of the East Bay Times includes a reference to New Jersey voters:

Yeah, well, so is democracy. But apparently, the people who asked us to finance one of the most ambitious projects in the history of science didn't trust us to make an informed decision. The states of New York, New Jersey, and Connecticut are all about to embark upon their own stem-cell projects, each of which will involve millions in public cash. Perhaps they might treat their voters with a little more respect.

The East Bay Times did not mention that New Jersey citizens have already been exposed to something similar to the Baker report, in the form of a report from Rutgers. And Baker gave a talk at Princeton.

New Jersey voters are more likely to be hosed on the stem cell issue.

East Bay Times on Gilbert criticizing Baker over Prop 71 patent royalties

On January 14, IPBiz had a post "Berkeley's Gilbert challenges Baker's forecast of large Proposition 71 patent royalties," within which it was noted that "The East Bay Times may be doing an article about Gilbert's material."

Chris Thompson indeed published an article on January 24, 2007 entitled A Penny on the Dollar, which included the text:

Back in 2004, the initiative's supporters repeatedly promised that the public subsidy — estimated at the time as $6 billion, including interest — would be substantially offset by a fortune in royalties from treatments that would inevitably spring from such research. One week before the election, Robert Klein, the real-estate mogul who spearheaded the campaign, went on The NewsHour with Jim Lehrer and promised, "The state of California will gain new jobs, new tax revenues, and intellectual property revenues to pay back the taxpayers."

Thompson got directly to the report by Stanford professor Baker:

The rebuttal to the no-on-71 argument read in part, "Studies led by a Stanford University economist project that 71 will generate millions in new state revenues from royalties."

But Thompson didn't get Gilbert's criticism of Baker exactly right. Thompson wrote:

According to Gilbert's study, the Baker-Deal report estimated that new therapies inspired by stem-cell research would bring in $9 billion in revenue, of which the state's cut would be at least $204 million. Since these therapies would take about ten years to develop, inflation would boost the value of the royalties to between $537 million and $1.1 billion, depending on the profit-sharing terms.

Gilbert claims that while Baker and Deal inflated the value of these procedures over time, they neglected to mention that all the associated costs would rise as well. "A dollar of revenue earned ten years in the future does not have the same value to the state as a dollar of revenue earned in the present," Gilbert wrote. "The study accounts for inflation in health-care costs, but does not discount future revenue flows."

Even assuming the Baker-Deal model is correct, the state would get no more than about 35 percent of what they estimated. But their model is wrong, Gilbert says. In its place, he compared the money spent on research and development by universities, hospitals, and research institutes with the cash they got back in licensing income. For every dollar spent, he estimates, these institutions received 6.6 cents in return. Ten years of inflation would reduce that considerably, and the state will have to share the windfall with its private partners.

Thompson neglected to mention the following Gilbert text after the sentence about "dollar of revenue." Gilbert wrote: "A correct value calculation should discount future revenue flows by the time value of money. While reasonable people may disagree over the appropriate choice of a discount rate, a number at the low end of the range is the rate of interest paid by ten-year treasury bonds." If one talks about getting $100 ten years from now, that is not the same as having $100 now. The $100 in ten years has to be discounted by what one could have earned in between. [Inflation is a separate issue; the time value of money is an issue EVEN IF there is ZERO inflation.]

To visualize in terms of a more familiar topic, consider the lottery. There has been recent discussion of lottery winners in Oregon: "A couple who won a $2.6 million lottery jackpot and spoke of helping young people fight drug addiction and alcohol abuse are facing a lawsuit alleging they held four months of parties with public sex, fights and signs of drug dealing." When one speaks of a $2.6 million dollar lottery jackpot, that refers to a payout over time, similar to alleged projected patent royalties from Proposition 71, which would be received over time, NOT ALL NOW. In fact, the Oregon couple did NOT take the $2.6 million paid over time; they took a payout paid in the present. Specifically, the couple accepted a lump-sum payment of $871,000 from the Oregon Lottery in October 2005. The $2.6 million in the future became $871,000 because of the time value of money, not because of inflation.

Thompson wrote --Lawrence Baker, one of the Prop. 71 report coauthors, hasn't read Gilbert's study, but acknowledges that his numbers shouldn't be taken as gospel.-- but Thompson neglected to mention the Symposium at Princeton, who was at the symposium, and what Baker wrote in the paper at the Symposium.


On the lottery example, note that David Sneath's prize of $136 million amounted to $84.3 million when taken as an immediate
lump sum. See Jackpot winner to boss: I'm out of here. One would have thought academics would correct for such things, but they didn't. Shoddy work.

Saturday, February 17, 2007

HFEA set to approve payment of £250 for eggs

In a move that will impact stem cell research, Britain's Human Fertility and Embryology Authority (HFEA), the government regulator of this highly sensitive area, is expected to approve a policy of payment for eggs when it meets on Wednesday (Feb. 21). At present, clinics are not allowed to accept eggs donated for scientific research unless they are a byproduct of either IVF treatment or sterilisation.

The HFEA's influential Ethics and Law Committee has already privately recommended the controversial switch, and the authority is expected to follow this recommendation. The committee based its opinion on a 64-page report, seen by The Observer, summarising the arguments. 'The potential scientific gains outweigh the objections,' said one source closely involved in the decision.

Re-writing history

A post on publiuxtx begins with the text: The Houston Chronicle has changed the online story that is now referenced by the following post, effectively whitewashing the journalistic sins of columnist Rick Casey with NO INDICATION they've done so. The date stamp on the current version backs up my assertion, as the original column appeared days before the stamp that column is carrying. Of course, I did keep a copy of the original column, which is quoted extensively in the post that follows, and I can share it with any interested party. I felt the need to add this note because I didn't want someone coming back later and saying my blockquotes didn't match the story.

One recalls a different re-write in the patent area: Internet Publishing: Online Today, But What About Tomorrow Or Where Have You Gone, 406,302?

Separately, various professors are re-writing the story of the Wright Brothers and of Thomas Edison.

Stuff like this is going to making future searching for prior art by patent examiners a true nightmare.

More on the Lovenox case

The Orange County Business Journal gives some insights into the Lovenox case:

The Amphastar Pharmaceuticals Inc. team’s defense took a turn in 2004 when the lawyers said they found that Sanofi may have failed to disclose information about dosage sizes in the data submitted to patent examiners.

In 2005, U.S. District Judge Robert J. Timlin in Riverside dismissed the case after deciding Sanofi misled patent examiners to believe Lovenox lasted 250% longer than other drugs without disclosing the drugs were tested at different dosages.

A federal appeals court sent the case back to trial in 2006 to determine whether Sanofi intended to mislead patent examiners.

Amphastar and Teva showed “clear and convincing evidence” that Sanofi intentionally deceived patent examiners for financial gain, Judge Pfaelzer said, rejecting the notion that Sanofi withheld information through negligence.

The company’s intentions were “too egregious, too obvious and too consistently committed over too long a period of time,” Pfaelzer said.

One of the biggest challenges was to prevent Sanofi’s attorneys from slowing the case, the Stradling lawyers said.

"We tried to not let the case get bogged down with the brand company trying to convince the judge and the jury that the case was too complex or scientific to examine," Hanle said.

The lawyers said they benefited from the other side’s “memory loss.”

"The lawyers made the mistake of letting their clients have amnesia during the deposition and that really hurt them," Trusso said.

Discretion in permanent injunctions at issue in Insmed case

The case of Tercica v. Insmed offers an interesting test of the discretion given to district courts in granting (or not granting) permanent injunctions in the post-eBay world.

The New York Times reports: The manufacturer of Iplex, a company called Insmed, has been found to infringe patents licensed by Tercica, the maker of a rival drug. Tercica is now trying to get a federal judge to ban sales of Iplex. Although Tercica’s drug will be available, it requires two injections a day instead of one. And some doctors say it may be less safe. Insmed has submitted to the court letters from more than 20 doctors from around the world urging that Iplex continue to be made available. The letters say Iplex might be useful in treating not only growth deficiency, but also Lou Gehrig’s disease, burns, eye diseases, adult muscular dystrophy and the side effects of H.I.V. medications.

The Times also noted: Patent lawyers said it would be highly unusual for a drug to be taken off the market for patent infringement because judges, in considering any sort of injunction request, must consider the public interest, not just those of the parties involved.

But the Times also noted: Genentech [the patentee and licensor to Tercica], as was its right, refused to license the patent rights to Insmed over a period of 10 years. But they say Insmed continued to develop its drug in a calculated gamble that even if the company were found to have infringed on the patents, it would have to pay only monetary damages.

The Times story ended with the words: Dr. Desrosiers, who has been an adviser to Tercica but favors Insmed’s drug, said he wished the dispute would go away. "I wish they wouldn’t eat each other, whoever wins," he said.

From an IPBiz post in December 2006:

Separately, a jury in federal court in ND Cal (Oakland) awarded San Francisco-based Genentech and Brisbane, Calif.-based Tercica $7.5 million in damages and a percentage of future sales of the treatment against Insmed's Iplex. Tercica has a product Increlex, a growth drug used to treat about 6,000 short children. (from Bloomberg News)

Mummified body found before blaring television set

A key question in this "mummy before blaring TV story": Officials could not explain why the electricity had not been turned off [in February 2007], considering Ricardo had not been heard from since December 2005.

Stanford, Illinois, and Indians

Of the use of the name "Indian" at Stanford University, Stanford officially adopted the Indian nickname on Nov. 25, 1930 after a unanimous vote by the Executive Committee for the Associated Students. The Indian had long been considered the symbol of Stanford before the official vote, although its origins are only speculation.

The resolution that was passed read: "Whereas the Indian has long been unofficially recognized as the symbol of Stanford and its spirit, and whereas there has never been any official designation of a Stanford symbol, be it hereby resolved that the Executive Committee adopt the Indian as the symbol of Stanford."

The Indian symbol was eventually dropped in 1972 following meetings between Stanford native American students and President Richard Lyman. The 55 students, supported by the other 358 American Indians enrolled in California colleges, felt the mascot was an insult to their culture and heritage. As a result of these talks and the ensuing publicity, the Stanford Student Senate voted 18-4 to drop the Indian symbol, and Lyman agreed.

The first student referendum on the issue was held in May, 1972, and it resulted in a vote of 1,755 for and 1,298 against restoring the Indian. The second vote, on Dec. 3-4, 1975, was 885 for and 1,915 against.

There was a move to reinstate the Indian as the school mascot in 1975. The debate was put to vote along with new suggestions: Robber Barons, Sequoias, Trees, Cardinals, Railroaders, Spikes, and Huns. None of the suggestions were accepted. [This text is taken directly from the Stanford Athletics Website.]

Of the matter at University of Illinois, AP reported:

American Indian groups and others complained for years that the mascot [Chief Illiniwek], used since 1926, is demeaning. Supporters of the mascot say it honors the contributions of American Indians to Illinois.

The NCAA in 2005 deemed the buckskin-clad Illiniwek an offensive use of American Indian imagery and barred the university from hosting postseason events.

The University of Illinois will retire its 81-year-old American Indian mascot, Chief Illiniwek, following the last men's home basketball game of the season on Wednesday {Feb. 21, 2007, 35 years after Stanford retired the Indian name).

The AP report noted: On Friday [Feb. 16, 2007], a Champaign County Circuit Court judge rejected two students' request for a court order banning the university from "capitulating to the NCAA by announcing the retirement of Chief Illiniwek."

Of some relevance is the essay "Indians" and Animals: A Comparative Essay." Recall there once were the Dartmouth Indians and there still are the Florida State Seminoles (and Chief Osceola).

Friday, February 16, 2007

Ex parte Bilski

Patently-O wrote of Ex parte Bilski:

The only 2006 opinion on the BPAI informative opinion list is Ex Parte Bilski. Bilski is a business method patentable subject matter decision that again flips Ex Parte Lundgren.

The Board held in Lundgren that the "technical arts" test is not a separate and distinct test for statutory subject matter. Although commentators have read this as eliminating a "technology" requirement for patents, this is not what was stated or intended.

The blog Patently Unobvious also wrote about Bilski, as did the 271blog.

Meanwhile, Professor Jaffe was talking to Congress about such patent applications (patents) on 15 Feb.

Waxman writes Novartis chairman

As background, Novartis has been refused a patent for a cancer medicine, Gleevec, on the grounds that the medicine was simply a new form of an old medicine with a trivial change, something which cannot be patented under Indian law. Novartis is not only seeking to overturn this decision but also to challenge the law itself and the way in which India has implemented international trade rules on intellectual property. (see Indian Catholic).

According to a post in business-standard, Henry Waxman wrote Novartis about its patent actions in India:

Waxman, in a letter to Novartis Chairman Daniel Vasella, said that while he did not dispute Novartis’s right to apply for a patent or appeal against patent denial, he was concerned about the company’s attempt to influence a domestic Indian law that could have a severe impact on world-wide access to medicines.

"India’s robust generics market supplies affordable, essential drugs to its citizens as well as to poor nations around the world. Its law contains safeguards designed to preserve a balance between protecting innovation and promoting public health.

"If India is pressured to make its patent laws more stringent than its obligations under the International Trade Law, this crucial supply of medicines could be threatened," he said.

Novartis has reiterated that the company was denied a patent on its anti-cancer drug Glivec [Gleevec] in India because its laws do not comply with the intellectual property rights standards drafted by the World Trade Organisation.


About one year ago (February 28, 2006), Merrill Goozner published "Innovation in Biomedicine: Can Stem Cell Research Lead the Way to Affordability?" in
PLoS Med 3(5).

The second sentence in the paper stated: "Campaign organizers also claimed the state would receive royalties from new therapies, economic development in the form of jobs and taxes, and access to cheaper medicines." and referenced Baker L, Deal B (2004) Economic impact analysis: Proposition 71 California Stem Cell Research and Cures Initiative. New York: Analysis Group. Available:

Of course, the Baker - Deal report has come under recent criticism. One curious angle was that any new stem cell based treatments might raise (not lower) health care costs.

Among other things, the Goozner paper recommended a patent pool for stem cell patents arising from funding under Proposition 71:

CIRM and other stem cell funders can become catalysts for cutting through this patent thicket. They can require that all grant recipients agree to donate the exclusive license to any insights, materials, and technologies that they patent to a common patent pool supervised by a new, nonprofit organization set up for that purpose. A patent pool serves as a one-stop shop where investigators can obtain no-cost or low-cost licenses for subsequent research. Patent pools have been successfully used in other high-technology industries such as consumer electronics and software to facilitate the development of new technologies that either require common standards or rest on a common base of basic research. Several patent law firms and close observers of medical research have suggested that patent pools can work in biomedicine.

Can anyone say 35 USC 271(e)(1)? See 88 JPTOS 239, published in March 2006 concerning stem cell research and 35 USC 271(e)(1).

Thursday, February 15, 2007

On Crichton and Jaffe

Further to commentary on one op-ed by Michael Crichton in the New York Times, note commentary on a different op-ed by Crichton by Kevin Noonan.

Noonan notes: Dr. Crichton chooses an easy target as "bad guys" in his fiction: the oft-maligned patent examiners that he holds responsible for gene patenting. (...)
Dr. Crichton's attack is political, as is the bill introduced on Friday by Representatives Becerra of California and Weldon of Florida, which would ban gene patenting.


of the analysis of thoughts by Adam Jaffe on patent law which appears in IPFrontline, one IP professor wrote of Innovation and Its Discontents:

It's a polemical book; and, because written for lay people, somewhat over-simplified and over-stated. But the authors do state what many people think, especially those in the IT field.

Hmmm, we believe in the truth as we perceive it to be?

A problem with cheating at the Air Force Academy

Back in October 2006, IPBiz noted that a Bloomberg article on plagiarism had apparent amnesia over a West Point cheating scandal which occurred despite the presence of an honor code. Fast forward to February 2007, and we have a major cheating scandal at the Air Force Academy which also has an honor code: The Air Force Academy said Feb. 15, 2007 that 24 freshman cadets have now admitted cheating on a test and 12 others are under investigation but have denied wrongdoing. (...) The cadet honor code forbids lying, stealing and cheating and tolerating anyone who does. Punishment for violating the code can include expulsion. [from yahoo]

Recall a different IPBiz post in October 2006:

Further to academic cheating, a study by the Academy of Management Learning and Education of 5,300 students in the U.S. and Canada placed MBA students at the top of the cheater list:

56% of M.B.A. candidates say they cheated in the past year. For the study, cheating was defined as plagiarizing, copying other students' work and bringing prohibited materials into exams.

In a discipline which has "plagiarize with pride" as a mantra ...

On honor codes at universities, see Do the Honors by Emma M. Lind in the Harvard Crimson.

The first paragraph of this May 5, 2006 editorial is:

Harvard’s little red book, the Handbook for Students, is four hundred and twenty five pages long. Of those pages, two are devoted to student-run businesses, one details the “care of furnishings and personal property,” and seven are reserved for information about Harvard’s libraries. Only one miniscule section is reserved for “honesty”—about the same amount of space allotted to the section on “Nonpayment of Telephone Bills.”

Prepared testimony of Adam Jaffe for 15 Feb. 07

The prepared testimony of Professor Jaffe for the hearing at 2pm today (Feb. 15, 2007) is available at

In terms of provocative statements -->

At page 2, we have: "In the last two decades, however, the role of patents in the U.S. innovation system has changed from fuel for the engine to sand in the gears."

At page 6, we have: "The first step to understanding why greatly increasing the resources for examination is not the best solution to the problem is to understand that most patents are, and always will be, worthless and unimportant."

Otherwise -->

On February 15, Professor Jaffe gave prepared testimony before the Judiciary Subcommittee on the Courts, the Internet, and Intellectual Property which testimony touched on topics discussed in the IPFrontline article.

Professor Jaffe noted at page 3 of his prepared testimony that the topic for the hearing on 15 Feb 07 was the case for patent reform, not the (proposed) details of such reform. The text which followed mirrored text in Innovation and Its Discontents, including the line about the creation of the CAFC/changes in USPTO: "It is now apparent that these seemingly mundane procedural changes, taken together, have resulted in the most profound changes in US patent policy and practice since 1836."

Following a discussion of the rate of growth of applications and of issued patents, Jaffe asserted at page 4: "While some of this increase appears to reflect real growth in innovation, it is clear that a large part of the increase is a response to the increased laxity of the PTO, which grants a significantly larger fraction of the applications it receives than do its counterparts in Europe and Japan." Thus, the case for reform would seem to rest on a difference in patent grant rates between the US on one hand and Europe/Japan on the other hand.

Also on page 4, Jaffe identifies a deeper fundamental problem: "The incentives in the [patent] system now encourage frivolous applications, cursory review of those applications by the PTO, and indiscriminant filing of patent infringement suits as a generic competition weapon."

Under the heading of "reduce uncertainty" on page 5, Jaffe has the text: "Ironically, the only aspect of the patent process that has become more certain is the application process itself, as the ultimate granting of some patent from each original application has become almost a sure thing!

Also, on page 5, Jaffe states: "Fortunately, it is also not necessary to expend the resources necessary to provide very reliable examination for all patents applications."

At this point in Jaffe's prepared testimony one has the jump to "rational ignorance," much as discussed in Innovation and Its Discontents. As in the book, Jaffe states: "I agree with Lemley that it would be inefficient to provide thorough examination for all applications at the current rate of patent application. I disagree, however, that the current situation is acceptably efficient." In the prepared testimony, Jaffe mentions three areas in which to depart from the current situation:

--Inventors respond to how the patent office behaves. [This is not a suggested proposal for change but a suggested outcome if quality is improved: if the PTO consistently rejected applications for bad patents, then people would understand applying for bad patents is a waste of money. This of course begs the question of what a bad patent is or how to deal with one. In this, the proposal reminds one of the University of Rochester patent on COX-2 inhibitors.]

--Get information to flow into the PTO. Jaffe suggests much relevant information on whether or not the patent should issue is in the hands of competitors and not with the PTO. Jaffe could have concluded one sentence in the following matter: If a competitor of mine has filed a patent application, the last thing I want to see is for them to be issued a patent. In terms of the past, Jaffe's suggestion evokes the image of the use by Curtiss of the Aerodrome against the Wright Brothers.

--Potential litigants respond to how the courts behave. What this has to do with examination of applications is not clear.

Thus, Jaffe's proposals reduce to the one suggestion to allow competitors to get information to the PTO. There is a re-examination procedure already in place. Building a case for reform might have discussed inadequacies with the current method of getting prior art before the USPTO, especially in a pre-grant context. And, one might have wanted to ask the Wright Brothers about the prior art that competitors present.

[For those who don't remember, competitor Glenn Curtiss resurrected the pre-Wright Langley Aerodrome as prior art against the Wrights. Sadly, it had been refitted and improved with post-Wright advancements. Issues surrounding this use of "prior art" caused the Wright Flyer to be outside the United States until after Orville Wright's death in 1948.]

Some discussion of the hearing on 15 Feb. 07 may be found at:

Wired News .

See also Techdirt:

Congress created the Court of Appeals for the Federal Circuit (CAFC) which handles all patent-related appeals. Seems like a good idea, right? Except that by establishing such a specialized court, it didn't take long for the court to be dominated by former patent attorneys who view the patent system in a very different way than its originally intended purpose. They tend to prefer a much broader scope of patents -- and, indeed, CAFC helped make it okay for business models and software to be patented.

Plagiarism flap over Korea University president Lee Phil-sang

Following a favorable "confidence" vote, Korea University president Lee Phil-sang has offered to resign over plagiarism charges against him. Although Lee had won a confidence vote among professors Feb. 14, only 478 of the 1,219 faculty members participated in the voting. About 20 percent of the professors declared a boycott of the poll, contending that plagiarism allegations should not be resolved by a vote.

Lee graduated from Seoul National University in engineering [SNU is the school where Hwang Woo Suk was during the stem cell fraud] and received a Ph.D. from Columbia University in the United States. He has been at Korea University since 1982. It was the first time that a non-Korea University graduate was named to head the school.

The Korea Times reported:

The new president of Korea University has expressed his intention to step down over plagiarism allegations, school officials announced Thursday. The announcement came one day after Korea University President Lee Phil-sang survived a vote of confidence by the school's faculty members.

The Times also noted:

>>The allegations have it that he plagiarized his students’ theses in the 1980s and 90s, while serving as an economics and finance professor at the university.

After a peer review panel concluded that five of Lee's papers were "almost certain" to have been plagiarized, Lee proposed holding the vote of confidence and vowed to step down if he failed to win support from a majority of the faculty.<<

Now, IPBiz has a question for Richard Posner. Given that the Harvard Business Review tells one to "plagiarize with pride," should Lee Phil-sang get a walk because he was merely following the custom and practice of his area, just as Posner gave a walk to certain members of the legal profession?

Paul Greenberg had an article at Town Hall which expressed similar sentiments:

When caught red-handed with my hands on somebody else's words, the best defense I can frame is, of course, in somebody else's words. Namely, Tom Lehrer's. Specifically, his ditty in honor of the great mathematician Lobachevsky.

For the full effect, Professor Lehrer's aria needs to be sung off-key after a couple of cold ones to the accompaniment of a tinny piano and a loud, vigorous Hey! at the end of each chorus, complete with a stage Russian accent:

"I am never forget the day I first meet the great Lobachevsky. In one word he told me secret of success in mathematics: Plagiarize!"

And on to the verse: "Plagiarize! / Let no one else's work evade your eyes, / Remember why the good Lord made your eyes, / So don't shade your eyes, / But plagiarize, plagiarize, plagiarize - / Only be sure always to call it, please . . . Research!" Hey!


If and when the slip is noticed, always call it "Accidental" -- ("Gosh, I must have copied that in my research and forgotten it wasn't mine.") See the excuses offered by historians Doris Kearns Goodwin and the late, sainted Stephen Ambrose, both of whom were caught sounding entirely too much like someone else.

Harvard Law School is well represented in these distinguished ranks with Lawrence Tribe and Charles J. Ogletree, professors whose words bore a striking similarity to those written by others. The trend starts early at Harvard: An undergraduate there turned out a novel that contained all-too-familiar passages - and got a $500,000 advance for it.

Now a federal judge, the prolific Richard A. Posner, would simplify matters by exempting lawyers and judges from charges of plagiarism. What, not newspaper columnists?

IPBiz notes the earlier post: The businessman view of IP: Plagiarize, don't shade your eyes?