Tuesday, July 31, 2007

Research fraud at University of Missouri--Columbia

Page 450 of the July 27 Science carried a retraction of a paper published in 311 Science 992 (2006); one has at 317 Science 450 the text:

The corresponding author takes responsibility for placing excessive trust in his co-worker and for not assuring that a complete set of raw data existed at the time the questions first arose about the paper. (...) The first author resigned from MU (University of Missouri -- Columbia) shortly after the allegations of research misconduct were received and could not be found to sign the retraction.

The same issue of Science carries a book review of "Six Impossible Things Before Breakfast" (317 Science 456) as well as a review "Search Technologies for the Internet) (317 Science 468).

Is falsifying information the cardinal sin of academia?

IPBiz notes the irony in text from the Coloradoan:

Churchill was charged with multiple counts of falsifying and fabricating information, improper research and plagiarism, the cardinal sin of academia. All students are well aware of the seriousness of plagiarism. Academic integrity and honesty is just as much of a part of academic freedom as free speech. Any violation or dishonest deed can lead to a student's expulsion from school. Why should professors feel as if they are exempt? As a tenured faculty member, Churchill was well aware of the rules set forth by the regents of the university regarding his responsibility to uphold academic integrity. Discrediting and misrepresenting someone else's work does not constitute support for these standards.

Recall an earlier IPBiz post: The commission consists of various well-reputed men and women of letters, including Doris Kearns Goodwin -- the Pulitzer Prize-winning author hired as the Commission's historical advisor, who publicly apologized in 2002 for plagiarizing some of her colleague's work. Perhaps this reveals the quickness with which some at the University discard standards of honor when it becomes convenient to do so.



Do the published applications of 2001 tell us about patent grant rate?

(17 Fordham Intell. Prop. Media & Ent. L. J. 875 (2007)), Professor John R. Thomas states:

Well, in response to that--it is a great question, but my response is what I think our group of academics is opposed to is the "teaching, suggestion, motivation" requirement. We are not opposed to that being relevant, we are not opposed to that being the epitome of obviousness, but we think that that blunt approach, which boils down to you have to have prior-art journal articles describing each and every step of the claimed invention and how to put them together, simply means that there are too many errors of patents being granted that should not be, because there are other sources of knowledge that will not necessarily be before that tribunal and there are, again, artisanal skills that simply cannot be accounted for.

So certainly, in terms of the finding of fact of ordinary skill, these will be questions that will be left to the trier of facts, as so many other similar style questions are--what is a reasonable person; how does a reasonable person behave? You cannot tell me that in tort cases that you have to have a journal article proving how a reasonable person would behave when she crosses the street. *904 I think, similarly, the level of proof has been so elevated, it is basically impossible for the Patent Office to reject an application.

As you know, right now the U.S. Patent Office claims a roughly seventy percent grant rate. [FN80] But, in fact, that is an Enron-style accounting statistic, because what that really counts is the number of final rejections that come out every year. Now, of course, thirty percent of those rejected will be re-filed the next year under the continuation strategy. [FN81] So the actual corrected grant rate we do not really know, because the Patent Office will not count them, but it is probably on the order of ninety-five percent. In fact, someone did a study of the first one hundred published applications after the 1999 amendments, and something like ninety-two of them had become issued patents, which was a little embarrassing. [FN82]

Footnote 82 is to Dennis Crouch, Statistical Interlude: First 100 Published Applications, Patently-O, Aug. 23, 2006, http://www.patentlyo.com/ patent/2006/08/interesting_sid.html. Although not noted by Professor Thomas, there were some caveats to Crouch's analysis that were pointed out by commenters to the blog post. One commenter correctly noted that the group of "published applications" is not representative of all applications, because patent applicants have the opportunity to opt out of the publishing procedure. Those who do opt out are likely to be most concerned about the consequences of the publication of an ultimately rejected application. This would be an issue of underinclusion. Another commenter pointed out that the proper focus should be on the final state of the allowed claims, rather than on the percentage of allowed applications. This is related to a theme raised by LBE in 88 JPTOS 1068 (2006) and papers cited therein.

There is another issue. The first 100 or so published applications may be systematically non-representative. Although Professor Thomas incorrectly stated Now, of course, thirty percent of those rejected will be re-filed the next year under the continuation strategy, it is correct that approximately 30% of patent applications are CONTINUING applications which include cons, divs, cips, and RCEs, with RCEs (which merely continue prosecution) the most abundant. Of the first twenty applications published on March 15, 2001, three did not lead to issued patents. Curiously, of the remaining 17 published applications, 13 were divisional applications related to an already issued patent and 4 were continuation applications related to an already issued patent. Not one of the 17 published applications that yielded an issued patent was a first-filed case. Given that 70% of U.S. applications are NOT continuing applications, one can see that the first 100 or so published applications in the year 2001 were not statistically random. Unless perhaps you think it is likely that something with a 30% probability is going to come up 17 times in a row.

The idea that there is a 92% patent grant rate based upon the published applications of 2001 (as suggested by Thomas' statement: In fact, someone did a study of the first one hundred published applications after the 1999 amendments, and something like ninety-two of them had become issued patents, which was a little embarrassing.) is without merit.

This would not be the first time that Professor Thomas has misrepresented patent grant rate statistics. As pointed out in an IPBiz post on April 15:

In turn, footnote 202 states: John R. Thomas, The Responsibility of the Rulemaker: Comparative Approaches to Patent Administration Reform, 17 Berkeley Tech. L.J. 727, 754 (2002).

The interesting part is that Thomas says something about the 97% patent grant rate that Quillen and Webster didn't really say. As seen in the 2006 paper by Quillen and Webster, the paper in 11 Fed. Cir. B.J. 1 established upper and lower bounds for patent grant rate. By 2002, Quillen and Webster had adjusted these bounds; by 2003, Clarke had criticized the formalism of 11 Fed. Cir. B.J. 1 and by 2004, LBE had criticized the adjusted formalism. The viability of the 97% number had been strongly questioned before the year 2007. Further, given the information within footnote 17 of 11 Fed. Cir. B.J. 1, the lack of validity of the 97% number was apparent at the time of the writing of 11 Fed. Cir. B.J. 1.

Statistical Interlude: First 100 Published Applications


The problem with the use by Thomas of the work by Crouch is the following: The first 100 published applications like all the applications published in the first 18 months had to have earlier filed applications to be eligible for publication. Every application filed on or after November 29, 2000, that had a benefit/priority claim which went back more than 18 months was immediately eligible for publication.

The first 100 published applications were by no means statistically random. There were earlier filed applications in their "patent family history." This is not true of patent applications generally (only about 30% of applications are continuing applications). Thus, the statement by Thomas: In fact, someone did a study of the first one hundred published applications after the 1999 amendments, and something like ninety-two of them had become issued patents, which was a little embarrassing. is misleading to the extent it suggests that 92% of all patent applications lead to issued patents.

Monday, July 30, 2007

The critics of the WARF patents have conflicts of interest

In a post on June 15, 2007, IPBiz alerted readers to the fact that californiastemcellreport declined to discuss the stem cell patent applications of Jeanne Loring, who presented a declaration against the Thomson stem cell patents. It was indeed puzzling to see Loring suggest that the Thomson patent claims were too broad when she had attempted to get broader claims.

WARF has filed an IDS with the USPTO noting the inconsistency with Loring and Trounson filing declarations saying the Thomson work was obvious when, at earlier times, in their own patent applications, they had asserted that similar work was worthy of patents (meaning NOT anticipated and NOT obvious). The IDS is available on the internet.

In a June 30 post on wired, Steven Edwards discusses WARF's recent action, pointing out the conflicts that Loring has. Edwards considers the issues:

Are the patents too broad?
Are the patents hindering embryonic stem-cell research in the U.S.?

With the July 2007 decision of the CAFC in Merck v. Integra (which involved both Burnham and Scripps), the answer to the second question is clearly "no."

Of the first question, the issues in the re-exams are whether the claims in Thomson's patents are anticipated or obvious.

The WARF press release is available, which discusses aspects of an IDS filed with the USPTO on July 24, 2007.

See also


One notes that californiastemcellreport still is not covering this issue.


Re-exam 90/008102 pertains to Thomson's 5,843,780
Re-exam 90/008139 pertains to 6,200,806 and
inter partes re-exam 95/000154 pertains to 7,029,913

The filing of 7/24/07 is available on Public PAIR, as is a filing of 6/29/07 by the third party requester (FTCR/PubPat) which includes some interesting assertions:

p. 3: not a single scientist tried and failed to achieve what is covered by the pending claims

p. 3: public acclaim is not a secondary consideration relevant to the obviousness inquiry unless it is bestowed by those of skill in the art

p. 4: simply because a scientific accomplishment was important does not necessarily mean it was an advance worthy of patenting

p. 4: there is a quote to KSR, the results of ordinary innovation are not the subject of exclusive rights under the patent laws.

Sunday, July 29, 2007

Letters to WSJ Online dispute Intel position on patent reform

Further to the commentary by Sewell (Sewall) of Intel in the Wall Street Journal, the WSJ Online carried two letters on July 28.

One by David P. Vandagriff, Vice President Intellectual Property, Helius, Inc., Lindon, Utah included the text:

In fact, this reform bill is the brainchild of a small group of very large computer technology companies, including Microsoft, Intel and Oracle. It is not coincidental that each of these companies has been a defendant in an antitrust suit. They rely upon market power to maintain their dominant positions and are serial patent infringers.

The other letter (by James F. McKeown) included the text:

To justify his concerns, Mr. Sewell points to a tripling of patent suits between 1991 and 2004. This seems a bit disingenuous as recent statistics from the Administrative Office of the U.S. Courts show that patent suits increased by only 34% over the past 10 years. So can't we just as well conclude that this was a problem of the 1990s and the worst may be behind us in court filings? Perhaps rational economic forces have already addressed the lawsuit problem.

Of comparable inaccuracy to the Intel assertions is the law review article by Susan Walmsley Graf titled IMPROVING PATENT QUALITY THROUGH IDENTIFICATION OF RELEVANT PRIOR ART: APPROACHES TO INCREASE INFORMATION FLOW TO THE PATENT OFFICE. Although citing certain portions of the NAS/STEP report, Graf somehow neglected to mention what's on page 3 of the NAS/STEP report. As LBE noted at "Spring Seminar 2007," Careful reading of the National Academy of Sciences/STEP report reveals a lack of firmness in the "patent quality" conclusion. At page 3, one reads: "The claim that quality has deteriorated in a broad and systematic way could be, but has not been, empirically tested. Therefore, conclusions must remain tentative." At page 48, one has the statement: "Nevertheless, the claim that quality has deteriorated in a broad and systematic way has not been empirically tested." To paraphrase Emerson, the louder they talked of a crisis in patent quality, the more I wondered "whose crisis." In the patent examination business, Graf's approach is called "picking and choosing."

Of picking and choosing, Graf cited Jaffe and Lerner's Innovation and Its Discontents, but did NOT cite On Patent Quality and Patent Reform, 88 JPTOS 1068 (2006) OR papers of Quillen and Webster.

The boilerplate for obviousness at the BPAI post-KSR

In a post titled Chilling Invention at the PTO, patenthawk gives boilerplate language for a post-KSR obviousness rejection at the BPAI.

Language includes:

However, “the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” Id.


Where, as here, art is silent on the capabilities or function of any particular item, that is not teaching away from its use. Further, the Court in KSR noted that “[a] person of ordinary skill is also a person of ordinary creativity, not an automaton.” 127 S.Ct. at 1742, 82 USPQ2d at 1397.


As noted by KSR:

Common sense teaches, however, that familiar items may have obvious uses beyond their primary purposes, and in many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle.

KSR, 127 S.Ct. at 1742, 82 USPQ2d at 1397.

Hal Wegner is mentioned:

Kubin is highly significant in two critical areas of biotechnology patent law. The opinion –

(a) repudiates Deuel, keyed to language taken from the Supreme Court KSR decision as well as the Federal Circuit Kahn opinion that preceded KSR; and

(b) adopts the controversial Enzo line of “written description” biotechnology case law as the position of the PTO Board (p. 15).

Integra loses on remand from Supreme Court

Of the possible extension of 35 USC 271(e)(1) to research tool patents, the majority in the July 2007 CAFC decision in Merck v. Integra clearly state:

Contrary to the position of our colleague in dissent, the Court's ruling and our application thereof casts no "large shadow" on the subject of "research tools." On remand to this court, the parties emphatically confirmed that research tools were not at issue. See, e.g., Letter from Mauricio A. Flores, Counsel for Integra, to the panel (June 13, 2006) ("Integra agrees with Merck that this is not an appropriate case in which to make new law on the issue of whether patent claims to research tools (however that term may be defined) are excluded from the ambit of Section 271(e)(1). The Supreme Court has ruled that this case does not raise that issue. Hence, its resolution is outside the Supreme Court's mandate. Integra has never argued, and does not now contend, that any of its claims at issue belong to a class of patent claims outside the reach of that statutory exemption."). There is no "devastating impact on research tool inventions," dissent at 5; indeed, the issue is not present, and the criticism inapt.

Merck won on the contested issue: The challenged experiments, all of which were conducted after discovery of the anti-angiogenesis property of the experimental RGD peptide provided by Merck, meet the criteria of being reasonably related to research that, if successful, would be appropriate to include in a submission to the FDA. This statutory construction both recognizes the nature of the scientific process and implements the legislative purpose of encouraging the development of new drugs. On application of the law of 35 U.S.C. § 271(e)(1), no reasonable jury could find other than that the challenged experiments are within the FDA Exemption. The district court's judgment of infringement is reversed.

Separately, of another matter that californiastemcellreport will not discuss, one notes the full caption of this case:

Integra, Burnham, and Telios (plaintiffs)


Merck, Scripps, and Cheresh (defendants)

Effectively, one had one California research institute (Burnham) suing another California research institute (Scripps).

[refer to 2007 WL 2142878 (Fed. Cir.)]

See also prior IPBiz posts:





Saturday, July 28, 2007

New Jersey will have $450 million stem cell bond issue on next ballot

Governor Corzine signed a bill on July 26 which will allow inclusion on the November ballot a measure that would allow the state to borrow $450 million over 10 years to fund stem cell research.

Jeffrey Gold of AP wrote: "This is an investment that has a very clear payback," Corzine said before signing the bond measure.

Gold also noted that opponents argue borrowing money to fund the research would "likely" increase property taxes. A non-partisan legislative analysis estimates the stem cell borrowing would increase state debt by as much as $37 million per year.

The Bond Buyer noted on July 27:

New Jersey Gov. Jon Corzine yesterday signed off on $450 million of general obligation borrowing for stem cell research, an initiative that will bring the state's total stem -cell bonding capacity to $720 million if passed by voters in the upcoming November election.

The state would then issue the bonds, with proceeds supporting stem cell research grants at higher educational institutions and biomedical laboratories throughout the state. The New Jersey Commission on Science and Technology will allocate the funds.


"New Jersey continues to forge ahead as a pioneer in stem cell research and discovery," Corzine said in a statement. "This ballot initiative represents a landmark economic investment that will create new jobs and spur new business ventures while bringing the potential of revolutionary life-saving treatments and cures to millions afflicted by some of the most devastating diseases and injuries."

The Bond Buyer discussed issues not mentioned in the AP report:

With the state already carrying overall outstanding debt of more than $30 billion, the stem cell bill requires the state treasurer to determine, before going to market, whether New Jersey has the ongoing revenue sources to cover debt service payments on the bonds.

"No bonds shall be issued pursuant to this act unless the state treasurer first certifies that recurring revenues of the state would be available annually in an amount equal to the sum necessary to satisfy the annual debt service obligations related to such bonds," according to the bill.

More on Carhart's "Lost Triumph"

Perusing old newspaper records, IPBiz came across an article "Pickett's Charge: a blot on Lee's Military Record?" which appeared in the Kansas City Star in the year 1913 (specifically at page 12 of volume 33, issue 289, dated July 3, 1913), which is 50 years after Pickett's Charge (and East Cavalry Field) and 92 years before Carhart's book. The relevant text is as follows:

Another phase of Lee's assault failed unexpectedly. Stuart with his cavalry was supposed to get in the rear of the Union forces and harry their lines of communication. Union cavalry under Gregg met Stuart and gave him a decisive defeat, north and east of the main battle.

See also



Friday, July 27, 2007

More Mashelkar

India's The Economic Times brings back the past in an article titled: Remember the Mashelkar panel report? and points to current issues over the resignation of R. A. Mashelkar.

The article states: Government officials say they are waiting for him to correct “inaccuracies” (plagiarism) before they consider the report. Dr Mashelkar, who has not responded to repeated reminders from the government, says it is no more his responsibility to re-submit the report.

The article also states: The report had lifted three paragraphs in its conclusion from a 2005 paper authored by a research scholar Shamnad Basheer. Basheer’s work was commissioned by UK-based Intellectual Property Institute and financed by Interpat, a Swiss association of major European, Japanese and US research-based pharmaceutical companies, including Novartis.

Faced with charges of plagiarism and pro-MNC recommendations, Dr Mashelkar resigned from the committee in March. Government, however, insists it is Dr Mashelkar’s responsibility to re-submit the report. “Once the report was submitted, it doesn’t make any sense for him to resign. That’s why we didn’t even take cognisance of that. Since he says report contains technical inaccuracies, he should correct that and re-submit the report,” says a senior government official.

Controversial Ward Churchill fired over plagiarism accusations

One could not escape a feeling of "deja vu all over again" in seeing the facts about the Ward Churchill plagiarism.

William Lin of the Ottawa Citizen began his article: A 1972 Canadian pamphlet designed by a now-defunct environmental group was cited in the firing of a University of Colorado professor, who once sparked controversy by comparing some 9/11 victims to a Nazi war criminal.

Lin continued: A university investigative committee alleged Mr. Churchill deliberately plagiarized a pamphlet from the Canadian Dam the Dams Campaign. The pamphlet, entitled The Water Plot, has been linked to four works by Mr. Churchill from 1989 to 2002, the university's committee alleged.

Citing a 1972-era water diversion scheme in northwestern Ontario, the pamphlet questions whether Canada's waters should be diverted south to supply U.S. demand.

In 1989, an essay titled The Water Plot: Hydrological Rape in Northern Canada was published in a volume edited by the professor, the university said. In that instance, the article was attributed to the Canadian group.

Four years later, an essay in a collection with the same name was credited only to Mr. Churchill, the committee alleges. And that same year, an article called The Water Plot in Z Magazine was also published with only his name.

Mr. Churchill has said the magazine's editor removed the group's name without telling him.

By 2002, a revised version of the same essay had grown larger than the original work, the committee said.

One recalls in the Cha matter that the work of Kim, as it appeared in Kim's Ph.D. thesis authored by Kim, later appeared in a Korean journal (KJOG by KSOG) without Cha as a co-author, and then appeared in a US journal (Fertility and Sterility) with Cha as the first author. This was determined NOT to be plagiarism.

See also

what californiastemcellreport isn't talking about [to which one can now add the report by Science about ESI]

The Cha/Fertility & Sterility/re-publication matter isn't over

Pepsi found not to infringe Coke patent on bag-in-box container

Coca-Cola, once sued by Procter & Gamble over patents relating to fruit drinks, failed to prevail as a plaintiff in patent litigation against arch-rival Pepsi.

Of the suit before Judge Richard Story in Atlanta (ND Ga) concerning a collapsible bag that dispenses syrup for fountain sodas, AP reported:

"It confirmed what we knew all along, that there was no infringement," PepsiCo spokesman Dave DeCecco said.

Coca-Cola was reviewing the decision and an appeal may be forthcoming, said spokesman Dana Bolden. The company has 30 days to decide.

Earthtimes noted:

The law firm of Kilpatrick Stockton moved for summary judgment that the bag-in-box container used by Pepsi did not infringe Coca-Cola's patent, arguing, among other things, that Judge Story's interpretation of the Coca-Cola patent in a prior case precluded a finding of infringement in this case. Judge Story agreed, granted the motion and dismissed the case.

Thursday, July 26, 2007

More on the ESI retreat from embryonic stem cell research

Further to an earlier post about a "3 billion dollar jug of snake oil," the recent retreat by ESI, covered by Science, has produced some harsh statements:

The Courier Mail (Australia) had text:

EMBRYONIC stem cell research has suffered a major blow with a
major Singaporean/Australian company abandoning work on therapies due to lack
of success and soaring costs.(...)

But making well-functioning, insulin-producing cells ''proved
really difficult'', Professor Colman said, as both therapies would have needed
at least a billion cells for each dose and producing them at such numbers was
prohibitively expensive.

Australia's leading adult stem cell scientist, Professor Alan
Mackay-Sim, director of the National Centre for Adult Stem Cell Research at
Griffith University, said he was not surprised.

''If you go to stem cell meetings people are saying that scaling
up to the required number is a real problem with embryonic stem cells as are the
problems of immune rejection and tumour formation,'' he said.

The article also noted: The company, which had raised $24 million in investment, is a commercial partner of the Australian Stem Cell Centre and has claims to the
intellectual property rights of Monash University stem cell researchers as well as
those of universities in Singapore, Holland and Israel.

IPBiz asks: could this be the same Monash University of which a certain professor recently criticized the patent rights of James Thomson and WARF?

See the IPBiz post of July 4 which contains the text:

Declarations from three other scientists also were filed with the patent office Friday and released by the challengers Monday. Those scientists are Chad Cowan of Harvard, Jeanne Loring of the Burnham Institute for Medical Research in San Diego, and Alan Trounson of Monash University in Australia.

Patent reform as a gift to the IT business?

Stephen Wren has an article in the California Chronicle titled Patent Reform Act Proposal: Real Reform or Gift to Big Business which begins:

All this talk of a need for patent “deform” is but a red herring fabricated by a handful of large tech firms as a diversion away from the real issue...that they have no valid defense against charges they are using other parties' technologies without permission. The objective of these large firms is not to fix the patent system, but to destroy it or pervert it so only they may obtain and defend patents; to make it a sport of kings. Patents are a threat against their market dominance. They would rather use their size alone to secure their market position. Patents of others, especially small entities, jeopardize that. For example, the proposed change to eliminate the use of injunctions would only further encourage blatant infringement. Any large company would merely force you to make them take a license. They would have little to lose. Everything would be litigated to death -if a small entity can come up with the cash to pursue. That's what these large multinationals are betting against. This legislation in regressive, not progressive.

Sadly, some legislators and other parties have been duped by these slick firms and their well greased lawyers, lobbyists (some disguised as trade or public interest groups), and stealth PR firms. Don't be surprised to find the Washington lobbyist scandal spreading into the patent deform proceedings.

Hmmm, IPBiz does recall the warning given by Jaffe and Lerner about lawyers improperly influencing the patent system.

Here's Wren's conclusion:

Even worse; not only is there no need for reform, but the proposed changes will actually damage our functional system. The proposed changes:

1) Increase the costs to small entity patent holders, often by at least an order of magnitude.

2) Shift costs from large corporate infringers to the small entity.

3) Open new causes for large entities to litigate.

4) Open our patent system to a multitude of patent system abuses common in Japan which very much favors big companies.

5) Delay the possibility of start-ups obtaining investment capital by effectively increasing pendency.

6) Increase the power and potential abuse of such power by the USPTO which has become increasingly politicized.

7) Lowers the potential recovery for a patentee by at least one to two orders of magnitude.

8) Will not decrease the role of attorneys or litigation, but rather will increase their role and legal expenses in a multitude of ways. [IPBiz notes the irony of Jaffe and Lerner advocating post-grant opposition, which will indeed INCREASE the role of lawyers in the patent process.]

9) Will lead to much higher filing rates for patents which will further bog down the USPTO.

When corporate America agrees to not use our inventions without consent, American inventors and small entities will agree to stop suing them.

GSK, Ranbaxy settle over Valtrex

In another chapter in the Valtrex case, Ranbaxy and Glaxo have reached an agreement in which Ranbaxy will introduce its generic copies of Valtrex (valacyclovir) in the U.S. in the latter part of 2009 and will have 180 days of exclusivity to sell the product there.

The International Herald Tribune separately noted: Earlier this year, GlaxoSmithKline approved further development of a respiratory drug by Ranbaxy under a research and development collaboration pact between the two companies.

Under that pact, Ranbaxy could receive up to US$100 million in milestone payments from GSK if any of jointly developed drugs makes it to the market. It also retains the right to co-commercialize the products in India and earn royalties on overseas sales.

ESI wants a return on its present IP assets

Further to the IPBiz post Singapore's ESI halting work on human embryonic stem cell therapies, Chen Huifen wrote in The Business Times Singapore:

But a recent article in Science magazine gave the impression it
had dropped its research focus for commercialisation work to achieve quicker

Ms Chu clarified that the decision is, in fact, to 'balance the
company's business model with short and long-term returns'.

'It is widely recognised that the life cycle of the discovery and
development process for stem cell therapy is long,' she said.

'ESI will therefore balance its business model with short and
long-term returns. Hence the current strategy to focus ESI on commercialising its
IP assets and technology platform is in line with its evolution.'

In other words, ESI is trying to get some revenue from the intellectual property assets it already has, and won't be researching therapeutic areas in the future (as Science noted: Investors lost interest because "the likelihood of having products in the clinic in the short term was vanishingly small.")

One sees from the Business Times article that ESI scientists have gone into the public sector:

[ESI] will continue to have an interest in research through
arrangements with external partners such as Singapore Stem Cell Consortium (SSCC), now headed by ESI's former CEO Alan Colman. SSCC has taken in 20 scientists from ESI.

NewsAsia had reported on July 6: Internationally-renowned expert Dr Alan Colman has joined A*STAR (Agency for Science, Technology and Research) to head its stem cell research efforts. (...) Dr Colman has now been appointed Executive Director of the Singapore Stem Cell Consortium (SSCC).

Elsewhere, the Business Times article observed: ESI owns six of the 21 human embryonic stem cell lines - or cell populations - approved by the US National Institute of Health.

One notes that one won't be reading this information at californiastemcellreport.

Wednesday, July 25, 2007

Was H.B. McClellan at East Cavalry Field on July 3, 1863?

Further to the discussion of Jason Bell's book review of Carhart's book, Lost Triumph (see IPBiz, Still more on Jason Bell's review of Carhart's "Lost Triumph"), LBE went to the library to track down the correct page for Bell's cite in footnote 8.

It may be page 253, at which point Carhart acknowledges at the end of his book that a few other historians have mentioned almost in passing that Stuart may have been trying to reach and attack the Union rear. Carhart cites Wellman, Longacre, and Coddington, but does NOT mention Walker's book, which presages Carhart's theme. To Carhart, these three are considered to be guesses without foundation in the record, although one is hard pressed to distinguish Carhart's guesses from the others (mentioned and unmentioned by Carhart).

Coddington, like Carhart, relies on the writings of H.B. McClellan. McClellan states that the mysterious cannon shots were fired by Griffin's battery, as do Carhart and Coddington who derive from McClellan. However, this may not be correct.
As noted on IPBiz, at page 456 of Trudeau's book "Gettysburg" one has a footnote:

In his writings, McClellan would consistently misidentify this unit as Captain William H. Griffin's 2nd Baltimore Maryland Artillery, which was back at Gettysburg by this time.

Trudeau gives credit for the shots to Captain Thomas A. Jackson's Charlottesville Horse Battery.

This assertion by Trudeau is consistent with the monument folks, who are proposing a monument to Griffin's people on Confederate Avenue 330 yards north of Mummasburg Road. One notes at the site


Confederate Avenue 330 yards north of Mummasburg Road.

Army of Northern Virginia . Stuart's Horse Artillery. Beckham's
Battalion. Griffin 's Battery . Four 10 pounder Parrotts.
July 2. Arrived on the field and took position here.
July 3. Held this position until about 4 P.M. when was ordered to
withdraw to the rear.
July 4. Rejoined Jenkins' Brigade and moved to the southwest towards
Hagerstown .
Losses not reported.

This marker would be located at the position held by the battery
from the evening of July 2 until 4 P.M. on July 3, when it withdrew from
the battlefield proper. During the early part of the campaign, the battery
served with Jenkins' cavalry brigade. Shortly before the battle it was
assigned to Rodes' command. It rejoined Jenkins' brigade on July 4.
battery had a battle strength of about 106.1
Several sources place this battery with Jenkins' brigade on the East
Cavalry Battlefield during the fighting there on July 3.2 However,
several eye witness accounts place the battery on Oak Hill on July 2
and 3.3 Perhaps the battery thought to be Griffin's on the East Cavalry
Battlefield was actually Jackson's newly organized Virginia Battery.4
The battery had a battle strength of about 106.5

If these people are correct about the location of Griffin's battery near the Mummasburg Road on July 3, 1863, then McClellan isn't right. If McClellan isn't right, it's hard to believe he was at East Cavalry Field on July 3, 1863, observing a battery that wasn't there making the cannon shots that underscore Carhart's theory.

****Of Coddington's text:

Edwin B. Coddington, The Gettysburg Campaign: a study in command, Scribner’s Sons, NY, 1968, 1979

p. 520

He [Stuart] and Lee worked out a schemeto put Stuart’s entire cavalry force in a postion from which he could separate the Union cavalry from the main body of the army and at the proper moment swoop down onto its rear. Taking the three brigades of his command and Jenkins’ troopers, he rode out in the morning on the York road for about two and a half miles beyond Gettysburg before turning off on a crossroad to the right , which led him to Cress Ridge a mile away. (…)

If Lee should achieve his purpose in the Pickett-Pettigrew assault, Stuart knew he would be “in precisely the right position to discover it and improve the opportunity,” by spreading confusion in the Union rear and rounding up fleeing soldiers. [IPBiz notes Coddington is placing Stuart's action CONDITIONALLY on the success of Pickett, which is NOT what Carhart is arguing.]

p. 521
Stuart himself was also guilty of clumsiness in his attempts at deception, for reasons that his faithful assistant adjutant general, Major McClellealn could never fathom to his satisfaction.

Stuart pushed one gun of Captain W. H. Griffin's 2nd Maryland Battery to the edge of the woods and personally ordered it to fire a number of “random shots in different directions.”

See notes at page 801-802

Footnote 156 mentions spencer rifles

Footnote 158 notes the debate about who defeated whom, which is abundantly illustrated in the arguments between McClellan and Brooke-Rawle. But now it seems that Brooke-Rawle may have a point about questioning McClellan's presence at East Cavalry Field.


Merely for reference, IPBiz includes some pertinent text from Jeffry D. Wert's Gettysburg: Day 3 -->

p. 258: Stuart had reported personally to Lee sometime between noon and 1pm on July 2. Stuart probably arrived unaccompanied...

p. 260: Stuart's misjudgment in his interpretation of Lee's orders has remained one of the campaign's most heated controversies. (footnote 14)

p. 260: During the night, Stuart received orders from Lee for the cavalry to operate beyond Ewell's left flank. What Lee intended for Stuart to accomplish is unclear... In all, Stuart counted slightly more than five thousand officers and men, supported by thirteen cannon of horse artillery (footnote 18)

p. 260-1 When on the morning of July 3 the Confederate cavalry began the march is uncertain.

p. 261: Stuart brought up the 34th Virginia Battalion of Ferguson's brigade on foot. Armed with Enfield riflse with only ten rounds of ammunition for each man, the Virginians advanced to the Rummel farm buildings. Lieutenant Colonel Vincent A. Witcher deployed the five companies behind a stone wall that ran from the springouse through a meadow. (...) A handful of men from the 14th Virginia trailed Witcher's troopers ... when behind them two cannon from Cress Ridge opened fire. For reasons he never explained, Stuart had decided to test the Federals, bringing forward a section of the Louisiana Guard Artillery, a Second Corps unit temporarily attached to the cavalry. Captain Charles A. Green's gunners unlimbered their pair of ten-pound Parrotts and hurled shells toward the Low Dutch Road--Hanover Road intersection. It was not yet noon when the Louisianas pulled on the lanyards. (footnote 22).

The contents of Wert's footnote 22 (which appears on page 385) are complex:

Ferguson Brigade Line, 14th Virigina Cavalry File, GNMP (Gettysburg National Military Park)
OR (Offical Records), 27, 2, pp. 497, 697
Ladd and Ladd,eds., BP (Bachelder Papers) 2, pp. 1170, 1170n; 3, pp. 1380, 1381, 1384.

On page 262, Wert notes that "The Confederate artillery discharges stirred up Custer and the Michiganders." (...) "Pennington's horse artillerists rolled their six three-inch Ordnance riles onto a slight rise north of Hanover Road... Setting the guns at a give-dgree elevation, the Federals opened fire on the pair of Confederate cannon. A few rounds from Penninton's pieces caused Stuart to pull them back from the crest. The Union artillery fire also sent the foragers from the 14th Virginia Cavalry in a scurry to the rear. (footnote 24).

IPBiz notes that the text "for reasons he never explained" sounds much like the mysterious cannon shots described by McClellan as arising from Griffin's battery, and being either to probe Union forces OR to signal Lee. Further, they were answered by Pennington's battery. A key point here is that Wert has placed the shots in time before noon on July 3, related them to Pennington, AND corroborated the shots with actions taken by another group (the 14th Virginia).

Let's switch to Carhart's book. Page 204 indicates Stuart was surveying the scene around noon and that men of Jenkin's brigade were settling into the woods. At page 205, Carhart quotes McClellan on the cannon shots from Griffin's guns. Carhart states on page 205: "No one understood this action. Stuart volunteered no explanation and even McClellan was mystified [Carhart then quotes McClellan--"I have ben somewhat perplexed to account for Stuart's conduct in firing those shots;..." "In the meantime, Lieutenant Colonel Vincent Witcher's battalion of Jenkin's brigade, was dismounted and sent forward to hold the Rummel barn and a line of fence on its right."

IPBiz notes that Carhart is placing the mysterious cannon shots and Witcher's dismounted men at the Rummel barn at about the same. time.

Also at page 205, Carhart notes that "Some have said that these cannon shots were aimed at Custer's unit and they brought on his return fire from Pennington, which destroyed the two Confederate cannon." IPBiz notes that Carhart's conjecture is compound. It might be that the shots were not aimed at Custer, but that they did bring return fire. McClellan said they brought "no immediate reply" but McClellan does note, later on in his piece, that Pennington did fire back. McClellan also misidentified Stuart's shots as being from Griffin's battery, which simply is not true. Wert's other citations would go a long way to discrediting the "no immediate reply" assertion.

One notes that footnote 21 of Carhart's Chapter 14 cites to OR, vol. 27, part 2, p. 697, a reference made also by Wert.

As a separate matter, p. 253 of Carhart's book states:

A few other historians have also mentioned almost in passing that Stuart may have been trying to reach and attack the Union rear (footnote 16). But none of these authors has presented convincing arguments or even any evidence to support their claims, nor have they researched or developed that them in any detail whatever. And since no compelling evidence is presented to support these statements, they appear to be nothing more than guesses, of cource, but no more than that. It has therefor not required much reflection on the part of thier readers, both laymen and academics, before their suppositions that Stuart intended to attack the Union rear have been rejected rather uniformly. And clearly, in additon to the lack of evidence persented in support of those claims, one of the most important reaons for these rejections is the samll number of sacualties suffered by both sides in the cavalry battle on East Cavalry field.

footnote 16 notes: Wellman, Giant in Gray, 121 [Morningstar 1988]; Longacre, The Cavalry at Gettysburg, 221; Coddington, The Gettysburg Campaign, 520-1.
[IPBiz notes there is no mention of Walker's book.]

Carhart's book ends at page 269 with the words:

Gettysburg has since been remembered as the turning point in the Civil War, a moment when Lee was finally outthought, outfought, and outgeneraled by a Yankee commander. This crushing Confederate defeat, therefore, has beome widely accepted as having been brought about aby Lee's faulty decsion making on July 3, 1863.
But was it really?


As to obtaining vintage materials on the internet, a post on civilwarcavalry on August 2 discusses Microsoft live book search, Internet Archive, and Google book search.

The book "The Annals of War" published in 1879 (a compilation of articles in the Philadelphia Weekly Times) has the after-battle report of JEB Stuart, which does NOT mention the firing of the cannon in different directions. Significantly, the Stuart report mentions the withdrawal of Confederate cannon from the ridge, NOT because they were fired upon, but because they were of shorter range than the Union cannon. See page 530 of Annals which states: "Our artillery, however, had left the crest, which it was essential for it to occupy, on account of being too short range to compete with the longer range guns of the enemy; but I sent orders for its return."

Separately, "Pennsylvania at Gettysburg" published in 1914 at page 819 has the text:

"Their object was to gain the rear of our army, capture our ammunition and supply trains, and create consternation, and perhaps rout our forces, and this at the same time and in co-operation with the charge of Pickett's Division on the center."

Separately, see pages 405 ff of "The Great Invasion of 1863" by Jacob Hoke (1887).

Separately, p. 274 of "Between the Lines" by Charles King: "darts in to carry out his share of the well-planned combination."

Tuesday, July 24, 2007

Cell of Cells

The July 20 issue of Science has a review by M. Ian Phillips of the book "Cell of Cells" by Cynthia Fox.

The first footnote in the review is to J.A. Thomson, Science, 281, 1145 (1998) and the third is to W.S. Hwang, Science, 308, 1777 (2005).

Apparently, the last chapter is titled "The Fall of Seoul and the Rise of San Francisco".

See also the July 5 post on IPBiz: More bad reporting in stem cell area...

Singapore's ESI halting work on human embryonic stem cell therapies

The journal Science reported in the 20 July issue (317 Science 305):

In a sign that hopes for quick medical benefits from stem cells are fading, ES Cell International (ESI)--a company established with much fanfare in Singapore 7 years ago--is halting work on human embryonic stem (hES) cell therapies. Investors lost interest because "the likelihood of having products in the clinic in the short term was vanishingly small," says Alan Colman, a stem cell pioneer who until last month was ESI's chief executive.

Elsewhere in the article: "ESI's setback need not cast a pall on the field...Alan Trounson, a Monash University stem cell scientist says he is "profoundly disappointed." Irving Weissman is quoted: "ES cell research is, for the most part, still scientific discovery research."

Colman is quoted to admitting to a "tinge of disappointment that the field is moving more slowly than I had hoped."

Monday, July 23, 2007

More on East Cavalry Field

Spencer carbine at Camp Olden, 22 July 07

J.H. Kidd's "Personal Recollections of a Cavalryman" (973.781) does mention the tendency to waste ammunition when using a Spencer. Kidd also mentions Stuart's cannon shots (p. 143) and the terrific cannonading that preceded Pickett's Charge, which was heard by the folks at East Cavalry Field (p. 145).

Of East Cavalry Field/Gettysburg Day 3, IPBiz has been perplexed by the comments made by Brooke-Rawle about H.B. McClellan:

[from Carhart book reviewed in North & South]: Page 5 of the Rawle book refers to Major H.B. McClellan. The text of Rawle's book as to McClellan is puzzling. "It has been insinuated by [McClellan] who indeed if he were present, might be presumed to have been in a position to judge correctly, that the cavalry operations on the right flank at Gettysburg resulted victoriously for his cause. That this was not the case will be shown conclusively."

A factor to consider is McClellan's repeated reference to the mysterious cannon shots as having been fired by Griffen's battery:

On the plain below, and not more than three hundred yards from the foot of the hill, stood a large frame barn, known as the Rummel Barn. A glance satisfied Stuart that he had gained the position he wanted. The roads leading from the rear of the Federal line of battle were under his eye and could be reached by the prolongation of the road by which he had approached. Moreover, the open fields, although intersected by many fences, admitted of movement in any direction. When Stuart first reached this place the scene was as peaceful as if no war existed. The extension of the ridge on his right hid from view the lines of the contending armies, and not a living creature was visible on the plain below. While carefully concealing Jenkins' and Chambliss' brigades from view, Stuart pushed one of Griffin's guns to the edge of the woods and fired a number of random shots in different directions, himself giving orders to the gun. This, quite as much as the subsequent appearance of Hampton and Fitz Lee in the open ground to the left, announced his position to the enemy's cavalry; for General Gregg tells us that about noon he had received notice from army headquarters that a large body of cavalry had been observed moving toward the Confederate left. He was, therefore, on the alert before Stuart's arrival.

At page 456 of Trudeau's book "Gettysburg" one has a footnote:

In his writings, McClellan would consistenly misidentify this unit as Captain William H. Griffen's 2nd Baltimore Maryland Artillery, which was back at Gettysburg by this time.

Trudeau gives credit for the shots to Captain Thomas A. Jackson's Charlottesville Horse Battery.

One also notes http://www.echoesofgettysburg.com/id44.html:

Stuart then ordered a single cannon to fire in each direction of the compass. The reasons for this are unclear, some speculate that it was to cause stir among Union troopers and perhaps discover their position while some say it was most likely to try and get Gregg to attack first and create an ambush for Gregg's troopers who would be pounced on by Stuart's concealed troopers. However Union troopers from Custer's 6th Michigan detected the deployment of Jenkin's and Chambliss' brigades around the Rummel Farm. Custer ordered Lt. Pennington's artillery battery to open fire on the Confederate artillery (Jackson's battery- that exposed itself when firing that single shot). Pennington's six guns were positioned four north of the Hanover Road and two south of the road. Pennington's battery was more accurate and soon silenced Jackson's battery.

At page 261 of Wert's book "Gettysburg Day 3" one has the text:

For reasons he never explained, Stuart had decided to test the Federals, bringing forward a section of the Louisiana Guard Artillery, a Second Corps unit temporarily attached to the cavalry. Captain Charles A. Green's gunners unlimbered their pair of ten pount Parrotts and hurled shells toward the Low Dutch Road-Hanover Road interesection. It was not yet noon when the Louisianans pulled on the lanyards.

Page 459 of Sears' book merely states "At about 11 a.m. Jeb Stuart had fired off his four-round artillery salvo to inform General Lee that he was behing the Yankee army."

***There is a marker for the Louisiana Guard Artillery at East Cavalry Field. East Cavalry Battlefield, east of Rummel Woods. ARMY OF NORTHERN VIRGINIA
Two 10 Pounder Parrotts Two 3 Inch Rifles

July 3. After taking part in the fighting on the previous two days at Gettysburg and Hunterstown this Battery being detached from its Battalion brought its Parrott guns here and rendered important service in the cavalry battle not withdrawing until after dark.

***Brooke-Rawle's account "The Right Flank" does not mention the Stuart cannon shots but does mention that the Union forces on East Cavalry Field were aware of the artillery firing which preceded Pickett's Charge. [see page 16.]



Boston Globe: fundamental patent problem is inadequate staffing at USPTO

The next-to-last paragraph of a July 23 Boston Globe editorial gets to the heart of current problems at the USPTO:

Yet the bill is silent on what both sides agree is a fundamental problem: the inadequate staffing of the patent office, which can lead to approval of undeserving patents. There is now a backlog of 600,000 applications, and an examiner has just 19 hours on average to spend on each application.

Current bills do NOT address what the real problem is.

To see this theme, look elsewhere on IPBiz, including



Elsewhere, the Boston Globe notes:

The strongest advocates for changing the law are high-tech firms that often find themselves sued by patent holders who contend that their inventions are being used without license. Lawyers for the high-tech companies have taken to calling these patent holders "patent trolls" and accuse them of bringing suit in federal courts in places like eastern Texas, which has a reputation for favoring plaintiffs in these cases. The high-tech firms want to limit this venue-shopping by patent holders and the damages they can get if their claims are upheld. The firms also want more opportunity to challenge new patents after they have been approved.

Recently, someone did a search on the text "world without patents."

The first hit Google returned was:


Finally, I would like to ask you to imagine a world without patents. Do you think large corporations have too much power as it is now? Imagine what would happen to small inventors *without* the legal protection of patents. Scary.

I agree with all of JPL's comments but the last. In practice, if a large corporation steels an idea from an individual inventor with a patent, it is that inventor's responsibility to sue that corporation. His/her chances of success are small.

One also got a hit to a BusinessWeek article which included text:

BusinessWeek: The solution isn't a world without patents and copyrights. Critics of the strengthening of intellectual-property rights simply want to reverse some recent changes. They say shorter patents, granted less often, will promote more innovation by forcing technology sharing. They also say traditional industries, such as music, would be better off making the Internet their partner rather than their enemy.

One even got a hit to IPBiz, although the words were those of Mike at TechDirt:

IPBiz: http://ipbiz.blogspot.com/2006/05/do-patents-tend-to-harm-inventors-part.html

Sunday, July 22, 2007

Bruce Sewall boosting patent reform in Arizona

Following his "Patent Nonsense" in the Wall Street Journal, Bruce Sewall of Intel has Patent reform important for progress, innovation in the Arizona Republic.

Not totally subtle is the text: While such an arcane issue as intellectual property might seem far from the core of Arizona's interest, nothing could be further from the truth. Right here in our backyard in Chandler, Intel has more than 10,000 employees who depend on intellectual property to protect their ideas andallow them the flexibility to find the next great discovery.

Moreover, Intel plans to invest another $3 billion in new local operations this year in the Valley. Patent reform will encourage innovation and growth within companies like Intel that serve as the backbone of Arizona's thriving technology industry.

Sewall does note mention those patent applications outsourced to intellevate, or the "out-of-country" employees of Intel.

Even though the NAS/STEP report found no evidence on the patent quality issue, Sewall wrote: As a result, a rising number of poor-quality patents are being issued.

Also, the patent system has unnecessarily become a burden on our courts with growing number of lengthy and expensive lawsuits. The number of patent lawsuits nearly tripled from 1991 to 2004, and the number of cases from 2001 to 2005 grew nearly 20 percent.

xconomy has a post

I believe the proposed patent reform act would stifle innovation, which already has many hurdles to overcome, particularly in the earliest stages (when foundational patents are filed). To arbitrarily limit damages and to make it easier to challenge patents shifts the balance further in favor of large companies and lowers the incentive of innovators and technology licensing offices at universities to file and support patents that could have an impact on healthcare, the environment and quality of life. I have heard that there are different views between biotech and information technology “innovators” on this subject and am curious if anyone from the technology (start-up or academic innovator) side can give his/her perspective. I understand how this could be helpful to large companies but how is this helpful to innovation?

Syscon has an article: US Patent Reform Bill Moves Out of Committee

Camp Olden in Hamilton, July 21-22, 2007

Another July and it's Camp Olden in Hamilton.

LBE did get to hold a Spencer carbine, and talk to some people about East Cavalry Field at Gettysburg in July 1863.

New Jerseyans should recall that the First Brigade commanded by Col. John B. McIntosh included the 3rd Pennsylvania Cavalry Regiment (Miller and Brooke-Rawle) AND the 1st New Jersey Cavalry Regiment. The 1st NJ held the skirmish line at Brinkerhoff's Ridge on the night of July 2. Just before 1pm on July 3, the 1st New Jersey was ordered to take the position of the 5th Michigan and the 1st Maryland was sent to the area northwest of the Lott house. A few minutes after these events started, the tremendous artillery firing started on Seminary Ridge preceeding "Pickett's Charge" and was heard by all the Union troopers. Shortly after the Michigan Brigade began to move to the left flank, the units started to receive fire from Confederate artillery on Cress Ridge. [see http://www.geocities.com/heartland/hills/7117/ECavFld.html] In action later in the afternoon of July 3, the geocities account gives credit to the 1st NJ for the wounding of Wade-Hampton: Captain James Hart of the 1st New Jersey, posted along the Low Dutch Road, also charged into the Rebels. It was one of his troopers that engaged Gen. Hampton in a saber duel, which resulted in a serious wound to the General's head, causing him to leave the field.

Geocities summarizes the significance of East Cavalry Field:

For those who say Gen. Stuart's attack was too late to have helped "Pickett's Charge" it must be stated that Gen. Gregg's forces was the cause of Gen. Stuart not being in the rear of the Union Army when he planned to arrive there. The skirmishers of the 1st New Jersey Cavalry, the 3rd Pennsylvania Cavalry, and the 5th and 6th Michigan; and the charges of the 7th Michigan and 1st Michigan were the reason that Gen. Stuart was delayed.

Coincidentally, the beginning of "Pickett's Charge" and the charge of Hampton's and Fitz Lee's men were only minutes apart at 3:30 p.m., what is known as the "HIGH WATER MARK OF THE CONFEDERACY."

For a different account, see

Wikipedia has an account:

InternetNews screws up on "second window" of post-grant review

On July 20, InternetNews screwed up commentary on the "second window" of post-grant review:

The bill would also open a "second window" for reviewing patents once the U.S. Patent and Trademark (PTO) issue them by instituting a post-grant review in hopes of weeding our bad patents.

The term "second window" in patent reform has been used to denote a SECOND time period during which post-grant review could occur. In fact, the controversial "second window" provision was ELIMINATED from the House bill. Look at IPBiz post of July 18.

InternetNews also discussed words of Howard Berman:

House Judiciary Chairman Howard Berman (D-Calif.) admitted the legislation was controversial and complex, but stressed the current patent system is "badly in need" of reform.

"Naturally, the magnitude of changes contemplated by this act has given pause to many users of the patent system, but fear of change is no reason not to fix the obviously serious problems in the patent system," Berman said.

Berman added that a number of "divergent interests" still be need to be addressed. He promised to continue working on the bill before it goes before the full House for a vote.

"Past attempts at achieving comprehensive patent reform have met with stiff resistance," Berman noted. "However, the time to reform the system is way past due."

There was no elaboration of the "obviously serious problems." While the "backlog" is a problem, there is no hint of how Berman's remedies will address this. And "patent quality" is NOT an obviously serious problem, as page 3 of the NAS/STEP report admits.

Saturday, July 21, 2007

Suit filed in D.D.C. to remove Margaret Peterlin

Further to an earlier IPBiz post on Margaret Peterlin, Gregory Aharonian, David Lentini, David Pressman, and Steve Morsa filed suit in D.D.C. on Monday, July 9, 2007 seeking the court to order Secretary of Commerce Carlos Gutierrez to dismiss Peterlin immediately and establish rules to assess what qualifies as a professional background and experience in patent or trademark law.

The basis of the suit is a 1999 amendment to the Patent Act that required that the Director and Deputy Director of the USPTO each have "professional experience and background in patent or trademark law."

A July 11 story on DowJones/Morningstar gives details of the matter. One thing that one will NOT find in the Morningstar story is the SIMILARITY in backgrounds between Dudas and Peterlin (e.g., Univ. of Chicago Law School, Hastert, not patent attorney).

The Morningstar story DOES mention that the four suit-filers did NOT get a response about an earlier letter about Peterlin (see As of July 9, the date the suit was filed, the plaintiffs have not received a response, the suit said.). IPBiz notes: Gambling in Casablanca? I'm shocked. Recall, Mark Lemley is not a patent attorney, either, but newspapers write otherwise, without correction.

The Morningstar story DOES get into patent quality, in an odd way: The poor quality of patent examinations harms Aharonian and Morsa by forcing them to pay from thousands to tens of thousands of dollars in fees to argue " spurious rejections" of their patent applications, the suit said. Thus, in this universe, patent applications are NOT sailing through; they are being improperly rejected. This is quite a contrast to the 97% grant rate of Quillen and Webster, as endorsed by non-patent-attorney Lemley in the Northwestern Law Review (on rational ignorance).

Note the following posts on IPBiz:




Friday, July 20, 2007

Verizon does deal with Broadcom to avoid Qualcomm problem

There have been developments in the Qualcomm/Broadcom matter.

#1. The CAFC dismissed Qualcomm's appeal of the ITC order. Reuters reported:

The U.S. Court of Appeals for the Federal Circuit said it dismissed the appeal because it lacked jurisdiction over the June 21 order by the International Trade Commission (ITC). "An ITC determination does not become final for purposes of judicial review until the president has either approved of the determination or failed to disapprove within 60 days," the court said.

#2. Verizon did a deal with Broadcom.

InformationWeek reported the matter in the following way:

Not that it [Verizon] had much choice in the matter. With the ITC's ban on importing 3G chips from Qualcomm mere weeks from taking effect, Verizon needed to take steps to ensure it could continue to sell new phones. So it struck a licensing deal with Qualcomm competitor Broadcom.

Verizon Wireless will pay Broadcom $6.00 for each 1xEV-DO handset, PDA or data card sold after the effective date, subject to a maximum payment of $40 million per calendar quarter and a lifetime maximum payment of $200 million. The agreement provides Verizon a license to the six Broadcom patents currently being litigated between Broadcom and Qualcomm. Broadcom offered Qualcomm this same $6-per-chip deal, but Qualcomm turned Broadcom down.

The move was certainly unexpected. Verizon had initially voiced support for Qualcomm, which lost a patent infringement case to competing wireless chipmaker Broadcom. The U.S. International Trade Commission eventually banned Qualcomm from importing the infringing chips, which contain technology related to power consumption. The ban would effectively prevent Verizon (and Sprint and Alltel) from selling any new models that contain the 3G chips in question. Obviously this wouldn't be the best thing in the world for Verizon. So it had petitioned the ITC, along with other corporations, to overturn the ban.

The Los Angeles Times noted:

Stepping out of a raging dispute between two Southern California chip makers, Verizon Wireless said Thursday it would pay licensing fees to Broadcom Corp. to avoid a ban on importing new mobile phones.

Irvine-based Broadcom will receive $6 per handset — up to $200 million over the life of the agreement, the companies said — so that Verizon can continue selling phones laden with the latest technology.

The deal was announced just before Broadcom released second-quarter results that included a 68% drop in net income and a 4.6% fall in revenue, both roughly in line with what analysts expected.

The agreement puts more pressure on San Diego-based Qualcomm Inc. to settle a series of patent violations alleged by Broadcom.

**See also


Thursday, July 19, 2007

Fuzzy thinking at ZDNet?

IPBiz noted the following comment on ZDNet:

Your point in this first section isn't clear. Are you denying that patents were originally supposed to be for innovations, or are you simply stating the obvious: that the patent office no longer applies that standard consistently, or are you pleading the technicality that filing an application isn't the same as having the patent awarded?

I expect that most of us who complain about patents/patent applications on the obvious have some familiarity with all of that. What we are hoping is that consistent public scorn will contribute to the patent office eventually cleaning up its act.

Having technically knowledgeable people present these iffy applications with a completely straight face and then accuse the complainers of ignorance is not the way to fix things.

IPBiz notes that patents were NEVER (originally or otherwise) supposed to be for innovations. Patents are for disclosure of inventions that conform to the requirements of patent law. The difference between innovation and invention is discussed in many places, including at Getting the Patent Reform Wars on Track . It's not clear that the folks at ZDNet know the difference.

Separately, even the NAS/STEP report acknowledges that there is no systematic evidence for a lack of quality at the USPTO. See for example page 3 of the NAS/STEP report.

Also, given that the patent grant rate is no where near 90% (and is in fact between 50 and 60%), the distinction between a pubished application and an issued patent is hardly a technicality.

The origins of low quality patents?

IPBiz noted the following July 18 comment on Patently-O:

Yeah, I just saw my costs per application going up and my fee cap staying the same.
The Intel/HP model of $3.5k attorney fees per application was bad enough (bad enough that we fired clients like that), but now I have to spend time doing a prior art search and EXPLAINING it to the PTO. Bugger that!
Landon (from a very quick scan of their site) charges $110/hr to search. Whereas I charge $250/hr to write the App. So for every 2 hrs of searching I give up 1 hour of writing time. Which means I am 1 hour closer to a malpractice claim.

One wonders "how good" a patent application one gets for $3,500?

Separately, of continuation "abuse," recall an interesting list of continuations by Intel.

Peer-to-patent: 1078 reviewers produced 32 pieces of prior art

IPJur notes that "1078 People Have Signed Up To Be Reviewers" for peer-to-patent and asks Should this figure be seen as a disappointing turnout or are roughly a thousand reviewers at the end of the first month of regular operation of the peertopatent.org website a sign of growing success? IPBiz says, why not take a look at the quality of the comments made by the reviewers?

A statistics page notes that there are now seven applications up, and 32 pieces of prior art have been cited. The statistics page notes two apps by Intel: 11/291378 and 11/286585.

IPBiz notes that the '378 app (published app 20070130448) was filed by CAVEN & AGHEVLI; c/o INTELLEVATE. The first claim of the '378 states: A method comprising: monitoring an access to a stack pointer to update a stack tracker structure; using information stored in the stack tracker structure to generate a distance value corresponding to a relative distance between a load instruction and a previous store instruction within a store buffer; and using the distance value to provide source data for the load instruction.

IPBiz notes that the '585 app (published app 20070118696) was filed by INTEL CORPORATION;c/o INTELLEVATE, LLC. The first claim of the '585 states: An apparatus comprising: a register tracker to generate a pre-computation slice; and a pre-computation engine to execute the pre-computation slice.

For those unfamiliar with intellevate, Intellevate is a leader in software and outsourcing services helping the intellectual property community. Based in Minneapolis and with offices in India, Intellevate employs 85 employees. Its subsidiaries include: FoundationIP, PortfolioIP, and Intellevate India.

Thus, Intel might be using peer-to-patent to evaluate the quality of outsourced patent applications.

IPBiz finds eight (8) applications up as of July 19. The GE application still leads the commentary.

See also

Bringing Peer Review to Patents

Inadvertent Argument Against Peer-to-Patent

Wall Street Journal on Judiciary Committee vote on patent reform

The Wall Street Journal article begins: The House Judiciary Committee passed a sweeping overhaul of U.S. patent laws, a move long sought by technology companies eager to streamline the process and reduce the costs of patent-infringement lawsuits.

Although there is mention of amendments made on July 18, the WSJ does not mention that the second window of post-grant review was eliminated. The WSJ quotes Congressman Berman:

"This legislation is designed to improve patent quality, deter abusive practices by patent holders, provide meaningful, low-cost alternatives to litigation for challenging the patent validity and harmonize U.S. patent law with the patent law of most other countries," Mr. Berman said in a statement.

IPBiz observes that the first two items mentioned by Berman are "patent quality" and "abusive practices by patent holders."

Of the text "low-cost alternatives to litigation for challenging the patent validity", with the "second window" gone, the low-cost alternative will be available to people who identify a patent to challenge within a certain time frame after patent issuance and have money (estimated at $100,000 to 200,000) to mount the challenge. One can easily see that the small inventor or university inventor is far more likely to be the target, than the initiator, of this sort of challenge.

The coverage by Stephen Heuser of the Boston Globe is more detailed as to the opposing players. His article begins:

Biotech and high technology, two key Massachusetts industries, are often seen as allies -- innovation-driven businesses that depend on a highly educated workforce. But this week they're on opposite sides of a fight playing out in Washington: How to overhaul the nation's patent system.

Sadly, however, Heuser screws up what happened on the post-grant review matter. Heuser incorrectly writes:

The biotech industry appears to have prevailed, at least partly, in a significant early battle.

Yesterday the House judiciary committee completed its mark-up of the bill and eliminated the new avenue to challenge patents, according to an analysis by Hans Sauer, an intellectual-property lawyer for the Biotech Industry Organization in Washington.

Only the "second window" of post-grant review was removed in the House bill. The "first window", which can be effectively used by challengers who BOTH monitor issued patents AND have $100K or so to spend on challenges, is still available. Smaller entities who do NOT have $100K to defend such challenges are the big losers. The current route to challenges, re-examination, imposes less cost on challenged patentees.

See also the IPBiz post of July 18: http://ipbiz.blogspot.com/2007/07/press-release-by-coalition-for-patent.html


Getting the Patent Reform Wars Back on Track


Post-Grant Opposition: a Bad Idea

Lack of details in coverage of Judiciary Committee vote of July 18

Reuters began its coverage on the House Judiciary vote of July 18: A bill designed to overhaul the U.S. patent system by weeding out bad patents and reining in excessive litigation was endorsed by the U.S. House of Representatives Judiciary Committee on Wednesday [July 18].

Coverage in the Wall Street Journal article began: The House Judiciary Committee passed a sweeping overhaul of U.S. patent laws, a move long sought by technology companies eager to streamline the process and reduce the costs of patent-infringement lawsuits.

Neither Reuters nor the WSJ got into what actally happened with post-grant review, the portion of the bill designed to "weed out bad patents."

Similar fluffy coverage is found in computer business review.

Wednesday, July 18, 2007

New article on peer-to-patent?

Photograph of a turkey buzzard. Bridgewater, New Jersey.

LBE was contacted by one Matthew Swibel of Forbes about peer-to-patent. Although LBE didn't get a chance to make comments, one suspects an article might be in the works.

Of Swibel, from American University [AU]:

Matthew Swibel is associate editor in the Washington bureau of Forbes magazine, where he has written about international business, personal finance and government regulation since 2002. For the past five years, he has served as a key contributor to the Forbes World Billionaires issue. In 2005, he was honored by the Overseas Press Club for his reporting from abroad. Swibel, an AU alumnus, previously wrote for the Washington Business Journal, where he earned awards from the MD-Del-DC Press Association and the Virginia Press Association. He is a frequent contributor to Rotarian magazine and member of the National Press Club.

LBE had written Inadvertent Argument Against Peer-to-Patent .

PatentHawk had a post on peer-to-patent entitled Turkey Vulture.

An article by Swibel is cited within United States Patent 7085745 (Swibel, Matthew, "Pay Up!," Forbes.com, Jul. 7, 2003. cited by other .)

Swibel wrote on KSR v. Teleflex:

A possibly better alternative, she says, "is to make it easier to strike down [a patent] in litigation." That’s what the big corporate patent holders are suggesting: Let a company that doesn't want to pay what it considers undue royalties win a patent challenge if it can show by "a preponderance of the evidence" that the invention was so obvious it should never have won a patent. In other words, make this area of the law more like other areas of civil litigation.

For its part, IBM wants to shift the burden-of-proof standard by asserting that the courts should presume an invention is obvious if it's used in a similar field and leave it to patent holders to prove that it wasn't obvious.

Of course, the standard of proof for invalidity was NOT at issue in KSR v. Teleflex and was NOT changed by the Supreme Court in KSR.

Maybe Swibel can look into The origins of low quality patents?, such as applications written by folks in India on behalf of U.S. companies.

F. A. Cotton's mediocre mid-level remark reprised?

As noted in a comment to an IPBiz post, Congressman Issa was the subject of some unflattering text on californiastemcellreport.

See earlier post on IPBiz.

Still more on Jason Bell's review of Carhart's "Lost Triumph"

Further to an IPBiz post (More on Jason Bell's review of Carhart's book), LBE emailed the technical editor of The Army Lawyer (Charles J. Strong):

I believe the book review by Jason M. Bell contains an error in footnote 8 in citing to page 23 of Carhart's book, which page offers no support for Bell's contention.

See also

Lawrence B. Ebert
July 18, 2007

There was no immediate response.

Apart from the error in footnote 8, there is a more intriguing issue. Bell criticized Carhart for failing to note the account of Captain William E. Miller. There are at least two problems here.

First, Carhart cited to Miller, so Carhart knew about Miller’s account but did not mention the portion brought up by Bell.

Second, if Miller’s account is credited, then Carhart’s theory is not truly novel. Bell can't have it both ways. Additionally, one notes Carhart cited portions of Brooke-Rawle’s account; as noted previously on IPBiz (and on civilwarcavalry), the Brooke-Rawle account would also undercut the claim of novelty.

Of course, as pre-saged by the "derriere" post, the next thing we will be arguing about is the exact scope of Carhart's argument. It's different from Miller/Brooke-Rawle because ....; it's different from Stackpole because ....; it's different from Paul Walker because ..... Of course, in good scholarship, those arguments should have been placed IN THE CARHART BOOK IN THE FIRST PLACE. Apart from Bell screwing up his own footnote 8, Bell also misses the bigger picture that all of this should have been discussed in detail already. This is but a different variation of Jorge Santayana's prediction.

Merely as an aside, note Books of tricks. [Publishers failed to spot plagiarised versions of some Jane Austen classics sent out by a disgruntled author. But what does it prove?]

Rationality in patent litigation? Probably not...

Further to an earlier IPBiz post on the July 2007 decision in the Festo saga (The July 2007 installment of Festo v. SMC), one commenter at Patently-O had noted:

If $4 million is what was really at issue here, I'll bet that each side has spent a lot more than that over the course of 20 years of patent litigation.

IPBiz notes that the idea that patent litigants behave in a rational matter as to the value of litigation may be questioned. One can certainly question decisions in the course of the Festo saga. HOWEVER, an even more interesting story is that of Exxon v. U.S., involving a Fischer-Tropsch catalyst and method (with Fischer-Tropsch not being a commercially-viable process at the time of the litigation, and, notwithstanding comments of the current Montana governor (Schweitzer) likely not commercially-viable at present; however, many people peg the "break-even" point at $30/barrel, which has been exceeded.)

One can find a basic discussion of Fischer-Tropsch at wikipedia. When talking about COAL as a Fischer-Tropsch source, one has to note that the source has an H/C ratio below 1, but the products have a much higher H/C ratio, above 2 for alkanes. That means there is a lot of CARBON that does NOT end up in the produced fuel.

As background, the CAFC wrote in 265 F.3d 1371 (describing the conversion of natural gas (not coal) to liquid hydrocarbons:

The '705 and '982 patents relate to improvements in what is known
as the Fischer-Tropsch process for converting natural gas to liquid
hydrocarbon products. As the process is described in the patents, natural gas is
first broken down to produce synthesis gas (carbon monoxide and hydrogen).
The synthesis gas is then introduced into a slurry bubble column where it
undergoes the Fischer-Tropsch reaction. In the slurry bubble column, catalytic
particles are suspended in liquid hydrocarbons. Gas phase reactants,
including the synthesis gas, are then bubbled through the reactor. As the gas bubbles rise, the reactants are absorbed into the liquid and diffuse to the catalyst
where they are converted to liquid hydrocarbon products.

In Festo Briefs: Which Future for 21st Century Patent Law?, (IPT, p. 20 (Nov. 2001)), LBE wrote about the case Exxon Research and Engineering Co. v. United States 54 USPQ2d 1519, 1530 (Ct. Cl. 2000).

In Johnson & Johnston: Disclosed, Never Claimed, Public Domain, (IPT, p. 44 (May 2002)), LBE wrote

On April 11, [2002] the Associated Press reported that the federal
government has admitted infringing an Exxon Mobil Corp. petroleum patent and agreed to pay the oil company $ 2,583. The AP report noted that Justice Department spokesman Charles Miller said Exxon Mobil had claimed that the patent was worth hundreds of millions of dollars and quoted Miller that the settlement amount, which was disclosed by the government but not by Exxon Mobil, "speaks for itself." The litigation was reported at 54 USPQ2d 1519 (Ct. Cl. 2000), reversed by the Federal Circuit at 265 F.3d 1371, 60 USPQ2d 1272 (CAFC 2001). n7

In the Exxon case, one notes BOTH the disparity between settlement value and litigation costs AND the disparity between settlement value ($2,583) and asserted value (hundreds of millions).

A different Patently-O commenter wrote:

There are VERY few actual individual inventors that invented something of value without the R&D of the evil "big business." Those that garage inventors are proudest of are not good inventors, but wise investors. Lemelson, Katz, Ballard, and whoever Ray Niro is financially backing these days are people who decided to sink their money into patents, rather than R&D. Lemelson sunk more money into patent prosecution over the years than R&D, a move that was doubtlessly a wise investment. But you are fooling yourself to think that these people are "inventors" of products; if anything they invented a novel way to make money. Perhaps respect is due for this reason alone, and the purpose of this post is not to kick the beehive of Lemelson supporters who think that he walked on water and healed the sick.

Make no mistake, however, the days of Edison and Ford are long gone. Much of this is due to where the real progress is being made; it's damned hard to do pharma work or semiconductor wafer processing in your garage. True mechanical innovation, which is by far the easiest for an unfunded inventor, is dwindling.

As noted before, Edison's light bulb/electrical system work was backed by J.P. Morgan and the Vanderbilts BEFORE Edison has discovered the filament made from carbonized bamboo. Ford opposed patents and was victimized by the Selden patent AND borrowed the assembly line idea from Olds (with the assembly line idea in any event borrowed from meat packing plants). What days of Edison and Ford?

As a different point, the CAFC decision in Exxon informs one of the state of the law in indefiniteness. IPBiz is willing to bet that Bessen did not cover this in his upcoming book by Princeton University Press.

As a separate point, IPBiz found the following text from MN1 staff writer Andrew Weinman of some interest:

[Peter] Michaels [CEO of Hop-on] was confident about pursuing these patents to the full extent of the law.

"I have unlimited resources to fight it," Michaels said. "We could take on any major company, any major corporation. I have the best litigators in the country. We have guys signed on who don't lose [cases.]"

However, Michaels wanted to make it clear that he wasn't intent on focusing on his lawsuits or patents alone.

"We're not patent trolls," Michaels said. "But I have to protect our shareholders and I'll go after folks or companies that are violating our patents."

In fact, Michaels mentioned that his companies [sic] new text-to-win cell phone campaign - where users would text in to win up to $100,000 in a phone-only contest - was slated to start soon, and that Hop-On would soon introduce a phone to the U.S. market.

Novo Nordisk sues over Sanofi's Solostar

Forbes reports "Sanofi-Aventis said it will 'vigorously' defend its rights to ensure the availability of its products after Danish drug company Novo Nordisk said it is suing the French pharmaceutical group over patent infrigement relating to Solostar, its insulin-delivery pen."

In the federal court system, service of a complaint can occur well after the filing of the complaint. Forbes noted: "Sanofi-Aventis has not yet been served with a complaint by Novo and our understanding of Novo's allegation is very preliminary,' a spokesman for Sanofi-Aventis told Thomson Financial."

The case was apparently filed in the Trenton vicinage of DNJ.

Press Release by Coalition for Patent Fairness of July 18

The Coalition for Patent Fairness issued a press release on July 18 containing the text:

Legislation that would represent the most fundamental patent reform in decades today was unanimously approved by the U.S. House Judiciary Committee. The bill would foster greater innovation by American companies and enhance U.S. competitiveness. It now heads to the floor of the U.S. House of Representatives for a vote.

"Today's successful mark-up demonstrates Congress’ seriousness in dealing with the overwhelming need for balanced and comprehensive reform," said Jonathan Yarowsky, counsel to the Coalition for Patent Fairness. "Chairman Conyers, Ranking Member Smith and Representative Berman have clearly demonstrated that they are leaders on patent reform. We look forward to working with all members for swift passage on the House floor.”

The full committee mark-up follows a successful Judiciary Subcommittee on Courts, the Internet and Intellectual Property mark-up in May where the bill was considered and passed by voice vote one month after its introduction.

A broad and diverse cross-section of U.S. businesses, leading legal scholars, economists and policymakers has recognized the need for patent reform. Leading legal scholars and economists have spoken out about how urgent the need is for patent reform and opinion-leading publications, including The Wall Street Journal, The New York Times and The Washington Post, have editorialized in support of passing patent reform legislation without delay.

Moreover, the U.S. Supreme Court recently has found it necessary to review an unusual number of patent-related cases in order to correct – often with unanimous rulings – imbalances in the judicial interpretation of core principles of patent law and procedure. However, only Congress can implement the comprehensive reform needed to restore balance in a number of areas of the patent system. The Patent Reform Act of 2007 will do just that.

The Coalition for Patent Fairness supports patent reform legislation that:

· Balance the apportionment of damages. The standard for calculating damages should be based on the fair share of the patent’s contribution to the value of a product, and not on the value of a whole product that has many other components.

· Establish fair standards for punitive damages. Awarding punitive, triple damages for “willful” patent infringement should be reserved for cases of the most egregious conduct, as required by the U.S. Supreme Court for virtually all other punitive damages.

· Restrict forum shopping. Cases should be brought in courts with some reasonable connection to the case and not, by gaming the system, in courts solely because they historically favor patent claims.

· Improve patent quality. The system should promote quality patents by providing a meaningful second chance for the experts at the PTO to review potentially problematic patents in a timely manner, and should promote sharing of information with the PTO to improve the process and increase innovation.

For an earlier, relevant post on IPBiz, see Dell's Peterman needs to check his facts. Dell is a member of the Coalition for Patent Fairness.

A story in Forbes (from the AP) includes relevant facts not in the press release of the Coalition for Patent Fairness:

--> the second window of post-grant opposition has been removed. Forbes writes:
One of the biggest changes, proposed by Berman, alters the post-grant review process by eliminating a provision that allowed open-ended challenges to a patent's validity. The bill now largely limits such challenges to the first 12 months.

--> the apportionment of damages provision has been altered. Forbes writes: The committee also amended a controversial provision regarding how courts can calculate damages in patent suits. The original bill required courts to more closely tie damages to the actual value of the patented technology, rather than the value of larger goods that include the patented item as a component. The committee amended the bill to allow judges to choose between those and other methods, depending on the facts of the case.

Tuesday, July 17, 2007

Gore's "Inconvenient Truth" reviewed in Science by Rush Holt

At page 198 of the July 13 issue of Science (317 Science 198), Congressman Rush Holt (D-NJ-12th) begins "Scientists can learn much from An Inconvenient Truth....

Holt concludes: "Through An Inconvenient Truth, Gore has personalized the climate change debate and made it accessible..."