Thursday, July 31, 2008

Preliminary injunction denied in Novo Nordisk case

The CAFC noted: In this case, the district court denied the preliminary injunction because the
patentee failed to show a reasonable likelihood of success on the merits. (...) After reviewing
the intrinsic record, we cannot conclude that the district court
abused its discretion. The district court found that a question exists regarding whether
“the very character of the invention requires direct gearing and a non-rotatable piston
rod,” id. at 35, a finding which, at this stage of the proceedings and on this record, we
do not view to be clearly erroneous.

Tate Access was quoted: While it is true that many of the
substantial questions identified by the district court would ultimately be analyzed in the
context of construing the claims, some might more appropriately be analyzed in the
context of validity (i.e., written description and enablement). See, e.g., Tate Access
Floors, Inc. v. Interface Architectural Res., Inc., 279 F.3d 1357, 1372 (Fed. Cir. 2002)
(“[W]here claim language is clear we must accord it full breadth even if the result is a
claim that is clearly invalid.”).

PubPat still getting it wrong in its Tafas brief

Further to the IPBiz post PubPat, Consumer WatchDog get it wrong in Tafas brief, one commenter pointed to the illogic manifested in the Ravicher quotations of Lemley/Moore's "Ending Abuse":

Maybe its true that bad claims are allowed after multiple continuations, but does any patent examiner or patent prosecutor really think "wearing down" examiners really occurs? The count system encourages the opposite behavior. The hardest part of being an examiner is starting a new application. Continuations and RCEs are the easy counts.

For those who might not remember, Lemley and Moore argued a completely counterintuitive, and counter to fact, position in "Ending Abuse." As pointed out in LBE's comments to the USPTO on 30 April 2006:

Although there is an implication that continuing applications are fungible with
new applications, this is not the case.

From the just-n-examiner blog: Examiners have always told me they like
continuations (or RCEs) because they receive the same amount of counts as a
"new" application but without the requirements of conducting a search from
scratch or learning new technology. I would think limiting continuations would
hurt examiner productivity, as applicants will be unlikely to ever cancel claims to
expedite issuance, thereby further increasing the number of appeals (which seems
to be the intent of the USPTO lately).

From the POPA newsletter of March 2006: [Restriction of] second, and
subsequent, continuation applications, which examiners usually process more
quickly, would increase the number of tough cases per docket and decrease
examiners' action counts. Would disproportionately affect senior and primary
examiners. Junior examiners don't get cons till after about 18 months.

At footnote 40 of 84 B.U.L. Rev. 63, Lemley and Moore somewhat address the
issue of cons being easier: Some commentators have suggested to us that
examiners might actually prefer continuation applications, since they have already
learned the technology and can get disposal credits without having to do as much
work. The long delay associated with continuation applications belies that claim;
it scarcely seems credible that an examiner will remember enough about a case
nearly two years after she last dealt with it to result in a significant time savings.

Even in the time before RCEs, examiners typically had no trouble remembering
issues in a continuation case, because a continuation, filed to keep a case going,
focussed the issues. With RCEs, the "remember enough" argument seems silly at
best. If the examiners say second and subsequent continuing applications can be
processed more quickly, why look to indirect inferences of law professors?

Lemley and Moore's "inferences" are those of people unfamiliar with custom and practice
at the USPTO. Ravicher repeats these as if they were true.

One poster on Patently-O was even harsher:

Lawrence Ebert in IP Today wrote what we all know: that in the post-publication era continuations and RCE's are not a burden on the office and simply are not the source of perceived problems with the office. The statistics of pending applications compiled by Lemley and Moore in support of the proposition that continuations burden the office are simply wrong and fail to take into account how easy it is for an examiner to examine continuations and RCEs.

Absolute hogwash!

See also

Consumer Groups File CAFC Amicus Brief in Support of USPTO Rule Changes

PubPat, Consumer WatchDog get it wrong in Tafas brief

PubPat, Consumer WatchDog get it wrong in Tafas brief

The "public interest" amicus brief on the Tafas case includes citations to the Lemley/Moore law review in BULR ("Ending Abuse...")

page 12-->it is impossible for an
examiner to ever actually finally reject a patent application so
long as the applicant has sufficient financial resources to keep
paying for continuation applications. Final Rules at 46718-19
(citing Mark A. Lemley & Kimberly A. Moore, Ending Abuse of
Patent Continuations, 84 B. U. L. Rev. 63 (2004)). This results in
USPTO examiners who have repeatedly rejected an application
facing the possibility of an endless stream of continuation
applications being filed by the applicant that “may well succeed
in 'wearing down' the examiner, so that the applicant obtains a
(page 13)broad patent not because he deserves one, but because the
examiner has neither incentive nor will to hold out any longer.”
Lemley & Moore, 85 B. U. L. Rev. at 65. Such “wearing down” of
examiners is an abhorrent abuse of continuation applications.

page 13-->Applicants also abuse the continuation application process
in other ways. Some monitor commercial actors who attempt to
design around a previously issued patent and then submit claims
in a much later filed continuation application that are directed
specifically at those design-around efforts. Id. at 76-77.

IPBiz notes that the most abundant form of continuing application is the
RCE, and one can't do this in an RCE.

Page 22-->A recent study showed that about one third of patent
applications are continuations. Lemley & Moore, 85 B. U. L. Rev.
at 69. This not only provides opportunities for the
gamesmanship discussed above, but it also results in a
significant amount of rework by patent examiners, which adds
substantial inefficiency into the patent application process.

IPBiz notes that this is an irresponsible citation for the year 2008. About
one third of applications are CONTINUING applications, the most abundant of
which is an RCE, which is NOT a continuation. Ravicher simply does not
understand what he is talking about in the brief.

Page 25-->First, continuation applications, as compared with original
applications, are more likely to result in patents that are
undeserved. Lemley & Moore, 85 B. U. L. Rev. at 75.

***See also
[Much of what Ravicher said in the amicus brief is negated by the article
published in 88 JPTOS 743 (2006)]

which comment says:

Interestingly, Arti K. Rai, who wrote the Patently-O article as to why the district court judge was wrong to issue the preliminary injunction in the Tafas case, is on the Pubpat Board of Directors:

And we thought she was just giving us a scholarly, unbiased, administrative perspective. :-)

And, as IPBiz noted elsewhere, Mark Lemley received financial support from Cisco (and others) for a recent
law review article. Can we say "conflict of interest"?

Relenza as good as Tamiflu

Bloomberg reports on 31 July:

Daiichi Sankyo Co.'s longer-acting version of GlaxoSmithKline Plc's flu drug, Relenza, was as effective as a course of Tamiflu, a patient study found.

The safety and efficacy of a single dose of the inhaled medicine was ``statistically indistinguishable'' from a twice-a- day dose of Roche Holding AG's Tamiflu taken for five days, said Melbourne-based Biota Holdings Ltd., which is developing the drug with Japan's Daiichi Sankyo. The study, involving ``several hundred'' patients with seasonal flu, was the second of three stages of human trials usually needed for regulatory approval.

The companies plan to start final-stage tests in Japan, Taiwan, Hong Kong and South Korea by the Northern Hemisphere winter, Biota said in a statement today. If approved, the medicine could provide a new treatment for flu, a disease causing 250,000 to 500,000 deaths worldwide a year.

The muse strikes twice

Patently-O had a recent post on the "simultaneous invention" factor, which evoked the Lemley-ism found in the March 08 New York Times ("Edison"). Note text from Editor&Publisher in the recent [alleged] plagiarism case involving a political cartoon:

Jim Hope was accused, in a cartoon submitted July 22, of nearly copying a July 21 cartoon by Nate Beeler of the Washington Examiner. Both drawings showed bailed-out Fannie Mae and Freddie Mac tumbling from the sky as they ask a man on the ground labeled "taxpayers" to break their fall.

Hope, in denying the alleged plagiarism, was quoted as saying: "It just seems that the muse struck twice but at a different time and place.... I had no previous knowledge of Mr. Beeler's work till I was notified by the Star-Exponent.

"After locating Mr. Beeler's work, I was dumbfounded in the similarities. I contacted Mr. Beeler explaining to him the situation.... Mr. Beeler responded, stating, 'No worries, I'm surprised more people didn't use that image.'"

***Separately, a do-it-yourself infringement analysis

Doesn't That Song Sound Familiar? The Black Crowes Vs. Gretchen Wilson!

Of George Washington Carver:

"Henry Ford and Thomas Edison tried to lure him to their laboratories," Edgar A. Toppin wrote. "But Carver donated his discoveries to humanity, never seeking to patent, or profit from them." Related to the concept of obviousness, NOTE THE ASSERTION In his speeches and articles Carver blurred the distinction between creative discovery of new chemical syntheses and the production of items known to science or requiring no real scientific originality.

The issue of paying for human eggs to support SCNT

Californiastemcellreport has a post about an AP story on the issues related to payment to egg donors.

LBE made a comment:

To turn the guideline argument inside out, note that Hwang Woo Suk, in a footnote in his second paper in the journal Science, spoke of his compliance with the then-recently enacted guidelines in South Korea. But, he hadn't really complied, or created the stem cell lines, either.

The last words of the AP story:

Whatever the obstacles, at least one multinational pharmaceutical company is betting stem cells could be the source of the next blockbuster medicine. GlaxoSmithKline PLC, the world's second-largest drug maker, announced a $25 million collaboration with Harvard stem cell researchers last week.

"Give us the eggs. If we don't succeed, then be critical," said Sam Wood [of Stemagen]. "You have to give people the tools that are required to determine whether the methodology will work."

The AP story also noted: Last month, the California agency doled out $23 million in research grants but turned down all applications seeking funding for therapeutic cloning. Stemagen and at least one other biotech startup, Cascade Life Sciences Inc. of San Diego, were among the applicants whose proposals were denied.

IPBiz notes "therapeutic cloning" is SCNT.

Separately, InVitrogen licensed a stem cell line from Buck; MarketWatch reported:

The stem cell line, called BG01 Olig2-GFP, is engineered to track the Olig2 gene, a neural lineage marker. The Olig2 gene controls a protein that maintains a neural stem cell's ability to replicate early in brain development, and then directs it to form a particular type of neural cell.

"This line of stem cells adds to Invitrogen's expanding portfolio of engineered stem cells," said Joydeep Goswami, Invitrogen Vice President of Primary and Stem Cell Systems. "We plan to not only provide the line to customers, but also to further develop products from the line that will serve as valuable tools in neural stem cell research."


The Buck Institute will be holding the first annual Stem Cell Symposium on the Bay in Novato, Calif., on August 8, 2008. Invitrogen's Principal Scientist of Stem Cells and Regenerative Medicine, Mohan Vemuri, Ph.D., will be presenting on the propagation of human embryonic stem cells in serum-free, feeder-free and xeno-free conditions. Invitrogen's Vice President of Research and Development for Stem Cells and Regenerative Medicine, Dr. Mahendra Rao, is organizing the conference.

July 31, 1790: first US patent granted

July 31 is the anniversary of the first US patent, granted to Samuel Hopkins on July 31, 1790.

See also
What have non-technically trained lawyers contributed to IP law?

Wired reports:

Hopkins got his patent at New York City (then the national capital) July 31, complete with signature of President Washington. It covered a method of making potash and pearl ash by burning wood ashes a second time before dissolving them to extract potash. Potash and pearl ash were important ingredients in making glass, china, soap and fertilizer.

Wired also mentioned Senator Ruggles, who received what would be the first NUMBERED patent:

That's because the government issued 9,957 patents before starting a numbering system July 13, 1836. On that occasion, U.S. Patent No. 1 went to John Ruggles of Maine for a traction wheel for steam locomotives. Ruggles happened to be chairman of the Senate Committee on Patents. Two years later, the Senate investigated him for alleged corruption regarding a different patent case. He was exonerated.

An obstacle to examiners in referencing non-patent literature

In a 2004 report, WIPO had noted:

At previous sessions, the Working Group had considered copyright issues raised
by the international search and international preliminary examination procedure, in
particular, the possibility that the making and sending, by the International Searching
Authority, of copies of documents cited in the international search report, as provided
by Article20(3) and Rule44.3, could involve copyright infringement, in particular
where it involved non-patent literature and the first digitization of a document (see

As IPBiz noted in the post
Biofuels, land and fire
, a lot of science information in journals is NOT freely available.

Thus, while journals like Science present news pieces (such as those by Kintisch) and op-eds (such as those by
Loring) which criticize PATENT owners, Science is very restrictive as to its
protection under COPYRIGHT.

Wednesday, July 30, 2008

Reality check for California and CIRM

New York's Governor Paterson noted on 29 July: "Our state now faces increasingly harsh economic times. When I travel across the state, I see communities suffering. Everywhere I go I see people losing their jobs and their homes. My message to the Legislature is that next year's budget process starts now."

The NY Guv observed that the New York state budget deficit has gone up $1.4 billion in the last 90 days.

And that's without having something like the CIRM albatross hanging around the necks of New York taxpayers.

Meanwhile, californiastemcellreport worries about the perils of groupthink at CIRM. The problem is having CIRM at all.

ConsumerWatchDog and PubPat: they're back

Fresh from their stinging defeat in the WARF patent re-examinations, ConsumerWatchDog and PubPat are back with a brief advocating reversal of ED Va in Tafas v. Dudas. MarketWatch writes:

The groups joining in filing the Public Interest Amici brief are: The Public Patent Foundation ("PUBPAT"), AARPP, Computer & Communications Industry Association ("CCIA"), Consumer Watchdog (Formerly the Foundation for Taxpayer and Consumer Rights), Essential Action, Initiative for Medicines, Access & Knowledge ("I-MAK"), Prescription Access Litigation ("PAL"), Public Knowledge ("PK"), Research on Innovation ("ROI"), and Software Freedom Law Center ("SFLC").

"The public interest overwhelmingly supports the USPTO's Final Rules for at least two significant reasons," the brief said. "First, they will enable the USPTO to curtail abuses of the patent application process made by those patent applicants who seek to pervert the system to gain an unfair advantage. Second, the Final Rules will help the USPTO improve patent quality, which is a critical issue for ensuring the patent system benefits the American public."

The new rules were to have been implemented by the Patent Office on Nov. 1, 2007, but were blocked by suits brought by drug maker GlaxoSmithKline and inventor Triantafyllos Tafas.

Under current rules which allow unlimited continuations, USPTO examiners who have repeatedly rejected an application often face an endless stream of continuation applications that "may well succeed in 'wearing down the examiner', so that the applicant obtains a broad patent not because he deserves one, but because the examiner has neither the incentive nor will to hold out any longer," according to a study by Professor Mark A. Lemley of Stanford Law School and Kimberly A. Moore, now a Circuit Judge on the U.S. Court of Appeals for the Federal Circuit.
[obliquely referring to a law review article in BULR, "Ending Abuse...."]

And, patent lawyers are attacked:

The legal papers, available at or at, also noted that while briefs filed opposing the new rules claimed they were acting in the "public interest", in fact they represented the narrow interests of patent holders and patent attorneys.

See also

Margaret J.A. Peterlin leaving USPTO

A press release on 29 July from the USPTO notes: Margaret J.A. Peterlin, deputy under secretary of Commerce for Intellectual Property and deputy director of the United States Patent and Trademark Office (USPTO), has announced that she will be leaving the USPTO in August with plans to pursue employment opportunities in the private sector.

As an aside, if you ever wondered what Congressional staffers make in terms of income, you might want to visit
legistorm for a discussion of Peterlin's past remunerations.

Both Jon Dudas and Margaret Peterlin worked in the office of Dennis Hastert.

Tuesday, July 29, 2008

Does "culture of rejection" influence patent grant rates at USPTO?

Ocean Tomo people James Malackowski and Jonathan Barney made much of the declining grant rate at the USPTO, but made no comment on the "culture of rejection" at the USPTO.

An op-ed/blog in Genetic Engineering began with the words: Virtually all of the problems of the U.S. Patent system, including the high cost of obtaining a patent can be attributed to examiners issuing improper "bogus" rejections. (...) Currently a "culture of rejection" controls the operation of the PTO.

USPTO management can impact the patent grant rate.

Monday, July 28, 2008

Tamar Pachter quits CIRM

Californiastemcellreport notes that CIRM's general counsel has quit, and observed:

The agency has retained outside counsel, Remcho, Johansen & Purcell of San Leandro, Ca., since 2005 at a cost exceeding $1 million. CIRM has at least three other attorneys, not including Pachter and Chairman Klein, who wrote much of Prop. 71, the ballot measure that created the agency. None of those attorneys reported to Pachter, according to CIRM's organizational chart. Instead they come under Klein.


Frequently Pachter and James Harrison, Remcho's main CIRM representative, would attend the same CIRM public meetings. Often, Klein deferred to Harrison at those sessions. The Harrison/Remcho contract is due to be renewed on Wednesday for $450,000 for 2008-09 at rates up to $350 an hour.

IPBiz notes the stemcellreport did not even get into the muddled intellectual property policy of CIRM.

Endo sues Impax over oxymorphone HCl

The Philadelphia Business Journal reports:

Hayward, Calif.-based Impax has applied to make a generic form of the pain drug known as Opana ER. Endo (NASDAQ:ENDP) and Penwest Pharmaceuticals Co., which make and sell Opana ER, sued Impax based on an amendment to that application. The amendment added new dosages of the drug — 7.5 mg, 15 mg and 30 mg.

The St. Louis Business Journal reports:

Energizer Holdings Inc. said Monday [July 28] it filed a lawsuit against Spectrum Brands, alleging the company's lithium batteries infringe on two of its patents.

Judge Ward of ED Texas authors CAFC opinion

T. John Ward, of ED Texas and sitting by designation, wrote the nonprecedential opinion in In re Stauffer.

Although involving obviousness, and motivation to combine, the opinion relies on Dystar, 464 F.3d 1356, and not KSR. Substantial evidence comes up, and In re Jolley, 308 F.3d 1317, is cited.

The patent applicants lost at the Board and lost at the CAFC.

Sunday, July 27, 2008

Director of the University of Pittsburgh Cancer Institute confused?

In his post of 25 July 2008, Bob Park wrote:

By now everyone has heard the news frenzy over Ronald Herberman, Director of the University of Pittsburgh Cancer Institute, advising faculty and staff to limit cell phone use because there is no proof that it's not a cancer risk. Nonsense! All cancer agents act by disrupting chemical bonds. In a classic 2001 op-ed LBL physicist Robert Cahn explained that Einstein won the 1905 Nobel Prize in Physics for showing that cell phones can't cause cancer. The threshold energy of the photoelectric effect, for which Einstein won the prize, lies at the extreme blue end of the visible spectrum in the near ultraviolet. The same near-ultraviolet rays can also cause skin cancer. Red light is too weak to cause cancer. Cell-phone radiation is 10,000 times weaker.

Einstein won the 1921 Nobel for several discoveries in physics. The underlying data for the photoelectric effect concerned metals, which have different types of chemical bonds than do human beings. Einstein's work was PUBLISHED in 1905, in Annalen der Physik on March 17, 1905. Refer to a previous IPBiz post on the photoelectric effect. In a later post, Park stated: Why did Ron Herberman, a law abiding immunologist and administrator, who probably hasn't had a parking ticket in 20 years, decide to flout the conservation of energy, the most fundamental law of physics?

The idea that the energy of UV/visible radiation can disrupt chemical bonds and the energy of radiowaves cannot is generally correct, except in the western part of Pennsylvania. John Kanzius of course is splitting water with radiowaves, at least according to some. Bob Park has not fully connected all the dots on this one. Confusion in the Pittsburgh area is more rampant than Park realizes. Maybe it's because copper sulfate is a metal in western Pennsylvania? Separately, one notes that the radiowaves which might cause cancer according to Herberman are the same radiowaves used to cure cancer by Kanzius, all in western Pennsylvania. There is no word on whether Lesley Stahl has connected the dots, as she's still entranced with the "hot dog" experiment.

In passing, one wonders if the harm envisioned by Herberman tracks the Haber relation, in which case the intense radiowaves of Kanzius might indeed be harmful, if indeed there were harm in the first place.

See also

Breitbart wrote:

The warning from Dr. Ronald B. Herberman, director of the University of Pittsburgh Cancer Institute, was based on early, unpublished data and came despite numerous studies that haven't found a link between increased tumors and cell phone use. But it's struck a nerve among parents who already have other reasons to resist their children's entreaties.

C&E News lays into Taleyarkhan

The first two paragraphs of the 28 July C & E News story stated:

A Purdue University nuclear engineering professor, Rusi P. Taleyarkhan, who reported having achieved "tabletop" nuclear fusion by sonoluminescence, later falsely published claims that the study had been independently replicated, according to an academic committee investigating his research.

The committee stressed that its investigation did not address whether Taleyarkhan doctored his original data. Whether or not this is the case is "the truly important question that remains unanswered," says University of Illinois, Urbana-Champaign, chemistry professor Kenneth S. Suslick, a vocal critic of Taleyarkhan's work and whose lab has attempted to replicate it without success.

C & E N also stated:

Taleyarkhan could not be reached for comment, but according to a Purdue University statement, he has 30 days to respond to the committee's findings. even though Taleyarkhan had already appealed on 22 July.

C & E News, always a day late and a dollar short...

For a different perspective on the events surrounding Taleyarkhan.

The metric of cited references in patent "quality" discussions

Of the comment on IPBiz on the Ocean Tomo article asserting an increase in patent quality, the IAM blog wrote:

As far as I have seen, there have not been any other criticisms of the Malackowski and Barney piece yet; although – to be fair – there is a lot to digest in the article and a full critique will take time to produce.

IPBiz notes that criticism of the use of the metric of "cited references" in a US patent to make substantive inferences (here, more cited references indicate increased patent quality) did not originate in the July 2008 discussion.

More than a decade ago, we had the same discussion over things that CHI Research was doing. Been there, done that... Perhaps people are not writing about this because they wrote about it more than 10 years ago, or, more likely, they just don't care. The IP profs don't bother to respond to criticisms of their positions on patent reform, and most practicing IP lawyers don't have the time.

See also

Indian American Festival in Bridgewater in July 2008

The 9th Annual Indian American Festival was held in Bridgewater, NJ on 26-27 July 2008. It was sponsored by the Hindu Temple & Cultural Society of USA (Sri Venkateswara Temple (Balaji Mandir)).

Saturday, July 26, 2008

Update on Kanzius cancer research

The Erie Times News ( noted the following of research planning on the Kanzius effort:

Steven Curley, M.D., visited Erie on Wednesday (23 July 08) and toured the Regional Cancer Center, Hamot Medical Center and Saint Vincent Health Center.

The principal investigator for Kanzius’ cancer-killing device at M.D. Anderson Cancer Center in Houston asked detailed questions about the types of research done at each institution, and whether they could handle Phase II clinical trials.

Curley digested the information, and by evening he announced that Erie would host human trials, if the federal government approves them.

Curley was quoted: Things are going at a faster pace than I ever expected, but we are still two years away from human trials.

GoErie separately noted:

The U.S. Food and Drug Administration must OK the trials, for what would be Phase II of the research into John Kanzius' invention. The agency's approval will depend on test results on large animals and then on experiments on small groups of people. Those small experiments, Phase I of human trials, will be at M.D. Anderson Cancer Center in Houston, where Curley is principal investigator of the radio-frequency generator invented by Kanzius.

"We have to make sure the treatment doesn't hurt anyone," Curley said. "We will go through all the appropriate steps. It will take about two years."

The research outcomes are out of our hands. But we can help finger the money to drive that research.

Friday, July 25, 2008

"Playstation Wars", capacitors, and Lemley-isms

A story loosely titled "Playstation Wars" is making the rounds, suggesting that demand for Playstations has stoked a vicious war in the Democratic Republic of Congo. The concept is de-bunked in a post What's All This "PlayStation Wars" Business?

Most of the posts do not go into detail about what in Playstations is creating a demand from the metal tantalum, which can be refined from the ore coltan.

Among other things, tantalum gets used in electrolytic capacitors, which get used in a lot of current electronics, including cell phones.

There's an interesting patent story to electrolytic capacitors. The first attempt at a modern electrolytic capacitor was patented by Julius Lilienfeld in 1926. The Lilienfeld capacitor was not a big commercial success, and was displaced by the "Mershon Condenser" for uses in radio.

But wait... the name Julius Lilienfeld sounds familiar. Yes, he is the guy who also patented what would become the field effect transistor, more than twenty years later in time. Indeed, Lilienfeld's work is cited on the first Bell Labs transistor patents, and in fact caused a few Bell Labs transistor patent applications to be rejected.

Naturally, this brings us to a Lemley-ism. Back on 30 March 08, there was an article in the New York Times by Matt Richtel titled Edison ...Wasn’t He the Guy Who Invented Everything?, which included:

“It’s rare that you’ve got a major breakthrough that wasn’t developed by multiple people at about the same time,” said Mark Lemley, professor of intellectual property at Stanford Law School.

Or, for that matter, on the same day. Say, for instance, Feb. 14, 1876, when both Alexander Graham Bell and Elisha Gray filed papers with the United States Patent Office to register their competing telephone technologies. Years earlier, the Italian immigrant Antonio Meucci devised his own version of the telephone, but ultimately couldn’t afford the patent application process to defend his innovation.

History remembers Bell, while his rivals are footnotes known mostly by aficionados of intellectual-property trivia.

“It’s not that we wouldn’t have had the telephone. Not only would we have had it, we would have had it the same day,” Mr. Lemley said, adding: “The people who aren’t the winners in the historical dispute sort of fade into obscurity.”

Richtel apparently didn't bother to verify Lemley's interpretation of what Gray "had" in 1876, although it did come out in the lengthy telephone patent wars, wherein the established Western Union, along with Gray and Edison, went after Bell. In fact, Gray himself admitted he had not reduced anything to practice.

Bell Labs did not "invent" the concept of the field effect transistor in 1947; Lilienfeld invented (and patented) the concept nearly 20 years earlier. Lilienfeld was first on the scene with an electrolytic capacitor, the thing we are talking about in the context of Playstations in July 2008. Of course, a more significant negation of Lemley's It’s rare that you’ve got a major breakthrough that wasn’t developed by multiple people at about the same time is Chester Carlson's invention of xerography. After Carlson had invented xerography, in the absence of anyone else, IBM (among others) told him it was worthless. After Carlson's success in the 1960's, IBM spent the 1970's in a fruitless attempt to create their own version of the "worthless" invention, more than thirty years AFTER Carlson's initial patent.

*** See also -->

Page 196 mentions a letter written by Gray to Bell in March 1877: "I do not, however, claim even the credit of inventing it, as I do not believe in a mere description of an idea that has never been reduced to practice .. should be dignified with the name invention." In court, Gray confirmed the authenticity of the letter, and said to Western Union counsel: "I'll swear to it, and you can swear at it!" One wonders what Mark Lemley and the New York Times were thinking when they suggested Gray's invention was good to go.

And recall Lemley, in the Stanford Law Review, credited Gary Boone as the inventor of the integrated circuit. When one is confused about the invention itself, it is indeed difficult to work through multiple putative inventors.

Of the Times itself-->

The dominance of RCE's and the Lemley/Moore conjecture

The Patently-O blog presents data showing the growth in RCEs as a total fraction of all continuing applications.

The dominance of RCEs had been noted by LBE in a comment to the USPTO and in an article in JPTOS ["On the proposal to restrict continuing applications," 88 JPTOS 743 (2006)]

In arguing FOR limitations on continuations, Lemley and Moore had written in Ending
Abuse ..., 84 BULR 64, 65 (2004):

Continuation practice has a number of pernicious consequences, which we detail
in Part II. First, at a minimum, continuation practice introduces substantial delay
n4 and uncertainty into the lives of a patentee's competitors, who cannot know
whether a patent application is pending in most circumstances. [FALSE] Second, the
structure of the PTO suggests that continuations may well succeed in "wearing
down" the examiner, so that the applicant obtains a broad patent not because he
deserves one, but because the examiner has neither incentive nor will to hold out
any longer. [FALSE as to RCEs] Third, continuation practice can be - and has been -
used strategically to gain advantages over competitors by waiting to see what
product the competitor will make, and then drafting patent claims specifically
designed to cover that product. [FALSE as to RCEs] Finally, some patentees have used continuation
practice to delay the issuance of their patent precisely in order to
surprise a mature industry, a process known as "submarine patenting." [FALSE]

The fact that RCEs have become the most abundant form of continuing application severely
undercuts the conjecture of Lemley and Moore in the year 2004. [One notes the Patently-O post shows
RCEs were the most abundant form of continuing application in the year 2004 and in the year 2003.]
In an RCE, one cannot add new matter, and one cannot change claim structure to introduce a new invention,
so there is NO ABILITY to use an RCE strategically to gain advantage over competitors. One is not going to use an
RCE to broaden claim scope. Further, the impact of submarine patenting ended with rules changes in 1995, and
submarine patenting could not be done with RCEs.


Thursday, July 24, 2008

Taleyarkhan appeals

AP reports: Purdue spokesman Joseph L. Bennett said Rusi Taleyarkhan informed the school Tuesday [July 22] that he will challenge a panel's findings that he engaged in two instances of research misconduct.

See also
Purdue report on Taleyarkhan finds misconduct on the smaller issues

UPDATE: Purdue prof files misconduct appeal

IP issue between 50 Cent and Taco Bell

AP reports: 50 Cent has sued Taco Bell, claiming the fast-food restaurant chain is using his name without permission in advertising that asks him to call himself 99 Cent.

Lex Luther on Ocean Tomo "Patent Quality" paper

Lex Luther trying to understand the logic of Ocean Tomo arguments.

Lex Luther suggesting Ocean Tomo get to the point.

IAM comment

Luther, a macaw, is otherwise famous for his remark, in the context of HR 1908, that Howard Berman (D-Ca) was giving parrots a bad name. The meltdown of S.1145 demonstrated of Berman's alleged equal-handed approach to hearings:
there's no there, there.

In the Ocean Tomo context, Lex's's great memory (he is a parrot) allowed him to recall the earlier meltdown of the CHI methodology on "patent citations," and perceive this as a "been there, done that" moment.

When parrots have a better understanding of patent reform issues than certain people, it's time to start over. Either that, or Princeton University Press [publishers of Jaffe/Lerner and Bessen/Meurer] should give the macaw a book deal.

Of the Ocean Tomo remark on patent backlog, recall the text in the Washington Post on 8 Oct 2007:

If the agency could shut its doors to catch up on its work, its 5,500 patent examiners would take at least two years to clear the backlog of pending applications. When the agency reopened, there would be more than 1 million new applications piled up on the doorstep.

That's of course if the USPTO could keep all its examiners for two years; the Post also noted:

But the patent office is suffering from troublesome turnover. One patent examiner leaves for nearly every two the agency hires, according to a report from the Government Accountability Office, an arm of Congress.

USPTO issues warning about outsourcing patent applications

The PatentHawk blog noted:

The USPTO posted a warning in the Federal Register about using foreign patent prosecution companies. Under 15 CFR 730-744, technology exports are subject to government approval by the Bureau of Industry and Security (BIS) at the Department of Commerce. If caught sending your software patent application to a cut-rate prosecution shop in Bangalore, you will be spanked and your patent yanked.

IPBiz notes typically, the problem has been with the preparation, in India and elsewhere, of patent applications to be filed in the United States, which are subsequently signed by registered attorney/agents in the US. Whether or not this practice runs afoul of US law was debated on "Greedy IP" years ago. It is interesting that something finally appeared in the Federal Register in the year 2008, after India is running a land-office business.

Wednesday, July 23, 2008

The Patent Quality Arguments of Ocean Tomo

IPBiz mentioned the paper of Ocean Tomo personnel James Malackowski and Jonathan Barney in posts on Sunday, July 13 and on Friday, July 18.

The post of July 13 noted text by Joff Wild of IAM concerning an appropriate response to the Ocean Tomo paper from hypothetical critics-->

However, what the critics would be better off doing is to read through the whole article very carefully to work out whether the research that the two authors have done is flawed. If it is, they need to explain why and how the flaws distort the real picture. In other words, they need to address the message rather than the messengers.

While accepting the general premise that those advocating a decline in patent quality have not presented good arguments, IPBiz notes problems in the Ocean Tomo position advocating an increase in patent quality. In the following, IPBiz notes some deficiencies in the Ocean Tomo paper-->

The first sentence of “Patent Quality” states:

The question “What is Patent Quality?” is
one that has long been answered not by the
authors of this paper but by the marketplace

While IPBiz would agree with the general concept that arguments made by certain
legal academics of a lack of patent “quality” are flawed, IPBiz finds a lack of depth in
the arguments from the Ocean Tomo people.

A rather obvious and eye-catching flaw with the paper is the citation practice. While the authors make out well, in fact better than the US Supreme Court does, the shoddy worksmanship does attest to a lack of quality in the paper. Footnote 20, a self-citation to author Barney, illustrates that the authors are capable of doing a complete citation:

J. Barney, “A Study of Patent Mortality Rates: Using Statistical Survival Analysis to Rate and Value Patent Assets,” AIPLA Quarterly Journal, 30, no. 3, pp. 317—352 (2002).

However, one sees in footnote 10 that the Supreme Court does not fare as well:

KSR International Co. v. Teleflex, Inc. (04-1350), U.S.
Supreme Court (Decided April 30, 2007).

In July 2008, there is no excuse to cite the April 2007 KSR case in such a way. Academics are also victimized by the poor citation style of the authors:

Footnote 9: See, e.g., C. Shapiro, Navigating the Patent Thicket—Cross-
Licenses, Patent Pools and Standard-Setting, University of Cali-
fornia at Berkeley (March 2001).

Footnote 19: K. Moore, “Worthless Patents” (July 2004). George
Mason Law & Economics Research Paper No. 04-29

[Carelessness is also shown at the end, with the final section titled: Conclustion]

More problematic than the bad citing is the false citing. Of the patent allowance discussion,
initiated by Quillen and Webster, the authors paraphrase the Quillen and Webster argument without citing Quillen and Webster:

For one thing, it turns out that patent
allowance rates are devilishly difficult to define given
the common practice in the U.S. of filing multiple
continuation applications attempting to patent essen-
tially the same invention that may already have been
previously rejected by the Patent Office.

Aside from not crediting Quillen and Webster, the authors don’t discuss the various
papers showing that continuation applications are generally not multiple attempts to patent an already rejected invention. So, in this case, the authors are wrong on the cite and are wrong on the substance.

Of the patent quality debate itself, the authors identify two themes:

The first broad theme centers on the concept of an
overburdened patent office that is understaffed and
ill-equipped to maintain pace with burgeoning new
technologies and a perceived flood of new patent fil-
ings. This argument is usually heralded by a shocking,
if not amusing, parade of patent horribles—bogus,
dubious or outright wacky patents—which are of-
fered up as evidence of a patent system run amuck.
A particular parade favorite these days is the now
infamous ‘peanut-butter and jelly sandwich’ patent
(U.S. Pat. No. 6,004,596).

[The authors neglect to note that the peanut-butter and jelly sandwich died
as a result of re-examination.]

A more apt theme, addressed later on below, argues that the patentability
standards and/or applications of the patentability
standards by the Patent Office are too low, resulting
in the proliferation of many dubious patents on little
more than trivial improvements.

Of the first theme, the authors write:

This by now familiar rhetoric and anecdotal
evidence seems logical enough, even compelling at
times. But, several key underlying numerical and
statistical trends simply do not support the asserted
conclusion that the Patent Office is overburdened or
that quality of U.S. patent examination is flagging.
In fact, some of the statistical evidence we have
analyzed seems to suggest that patent examination
quality has either remained steady or has even im-
proved somewhat over the past five years.


The authors point out that current % increases in patent applications are comparable to some increases in past years. Of the pendency problem, the authors write:

In fact, a growing backlog of cases under peak
usage conditions is the expected and desired result
of a patent examination system that is maintaining
standards and quality controls at steady levels.

Of course, a growing backlog can arise for other reasons.

The authors note arguments that overburdened examiners may lead to
poor patent quality:

Examiners, the argument goes, being
highly pressed for time and resources, do not have
adequate opportunity to conduct sufficiently thor-
ough prior art .

The authors attempt to negate this by observing an increase in cited

While this significant growth in prior art citations
may not be conclusive evidence of increased search
thoroughness or search quality, it is certainly sug-
gestive evidence and is plainly inconsistent with
the notion that search thoroughness and search
quality have somehow declined in recent years.

The authors neglect to mention that cited art on an issued patent can
arise from two sources: the examiner (892 form) and the applicant (1449 form).
In the absence of knowing “which” source has created the “significant” growth, conclusions that examiners are conducting more thorough searches are unwarranted.

The authors address arguments asserting the granting of overly broad claims:

Examiners granting patents with overly broad
claims is another commonly cited anecdotal factor
in support of the flagging quality and overburdened-
patent-office argument.

The authors attempt to negate this by comparing the average word count in an
independent claim in 2007 (160.1) to the word count in 2003 (153.3). This increase in average
word count in 2007 is supposed to indicate that claims are becoming more complicated (less broad).
The validity of this correlation is not proved.

As to impact of KSR, the authors suggest that KSR caused the recent drop in patent allowance rate:

Patent allowance rates for the
first quarter of 2008 (the first post-KSR statistics
available) have dropped to a new low of 44 per-

But patent allowance rates had been dropping before KSR.

Speaking of KSR, the authors alluded to common sense:

Even common sense tells us that the most ubiquitously
available search tools today (e.g. Google®) can access
references that a decade ago would have remained
undiscovered. The statistical data appears consis-
tent with the conclusion that examination search
thoroughness and search quality is as good or better
today than it was five years ago.

In the sense that Google has increased access to 19th century
books, such as those on the U.S. Civil War, IPBiz would agree. However,
Google and Google Scholar have not really allowed access to 20th
century science papers that otherwise would have remained undiscovered.
There were plenty of science databases ten years ago, including CA and STN,
that permitted routine access to the scientific literature. So "common sense"
does not lead IPBiz to the conclusion of the Ocean Tomo authors. Further, in 2008,
searching the internet for science papers leads an investigator typically to a
request for payment, not directly to the publication. As IPBiz recently noted, the
journal Science requires people to pay to view mere "letters to the editor."
[See Biofuels, land and fire.]

There is another problem with internet searching. Information changes
{ Internet Publishing: Online Today, But What About Tomorrow Or Where Have You Gone, 406,302? } or simply vanishes [the Sikahema effect].

The Ocean Tomo authors have presented no convincing arguments to support
the proposition that examination search thoroughness and search quality is as good or better
today than it was five years ago.
At best, they have equated "more" with "better", and have
not even identified the source of "more."

There are flaws in the article which may distort the true picture.

Nokia beats Qualcomm in Germany

CNN reports:

Nokia Corp. on 23 July 08 said a German court has ruled Qualcomm's GSM patent suit against it is invalid.

This is the third court to conclude that Qualcomm's patent claims against Nokia are without merit, Nokia said.

The United Kingdom High Court, and the U.S. International Trade Commission, have also both ruled asserted Qualcomm's GSM patents to be invalid.

Nintendo loss in ED Texas

Bloomberg writes:

Nintendo Co., the world's biggest maker of handheld game machines, is facing a ban on U.S. sales of some controllers for its Wii and GameCube systems after it lost a bid to overturn a $21 million patent-infringement verdict.

U.S. District Judge Ron Clark in Lufkin, Texas, rejected Nintendo's request for a new trial in the case won by closely held Anascape Ltd. of Tyler, Texas. He said that he would stop sales of the Wii Classic Controller, WaveBird controller and Nintendo GameCube controller. His ban will be put on hold while Nintendo appeals the verdict to the U.S. Court of Appeals for the Federal Circuit, according to Anascape lawyer Doug Cawley.

The judge, scheduled to issue his ban order tomorrow, said Nintendo will have to post a bond or put royalties in an escrow account to avoid the halt, said Cawley, of McKool Smith in Dallas. The opinion denying a new trial was issued July 18, the same day as the hearing on Anascape's request for an order blocking sales of products found to infringe its patent.

Favre and the cell phone: plot line for a Law and Order?

From the Minneapolis Star-Tribune (via yahoonews):

...Bob McGinn of the Milwaukee Journal Sentinel had an interesting bit of information in a piece he wrote about the quarterback today.

McGinn writes that a source said Favre had continued to use a Packers-issued cell phone and that when the team checked the phone records it found “repeated calls to coach Brad Childress and offensive coordinator Darrell Bevell.”

One comment on the yahoo post:

With Judge/Jury/Executioner Goodell on the's probably enough to convict.

"Tissue of lies" patent litigation case tossed by SDNY

The 271blog discusses a problematic patent litigation under the headline: Patentee's Litigation Deemed "A Collosal Waste of Time"; Sanctions Granted with text from the decision:

In a brazen demonstration of willfulness, AMC proceeded to trial without an expert, empanelling a jury for three days without even the remotest possibility of success on its infringement claim. In short, AMC’s infringement claim was a colossal waste of time for everyone involved and it would be unfair to burden Romag with the costs of litigating this claim.

Spelling may not be 271's strength, but AMC is an instructive case. The 271blog provided a link to the decision.

Tuesday, July 22, 2008

Purdue report on Taleyarkhan finds misconduct on the smaller issues

A report in Nature authored by Eugenie Samuel Reich on the most recent Purdue investigation of Rusi Taleyarkhan did assert misconduct on two smaller charges; Reich wrote:

The report finds Taley­arkhan guilty of misconduct for citing a paper by junior researchers in his lab as if their work was an “independent” replication of his own findings. He is also found guilty of adding the name of a student who had not contributed to the paper as an author, apparently in order to counter a reviewer’s comment that the replication effort seemed to lack witnesses.

The report stresses that corroborative information should be conveyed honestly, because reproducibility of results by independent experimenters is a crucial component of the scientific method.

Reich also wrote: Two scientists told Nature last week that evidence they gave Purdue does not seem to have been considered either. Purdue has not released its charge to the committee; this is a key document that would reveal the questions officials asked investigators to examine. Curiously, Reich does not identify the scientists by name.

Reich's article began with ominous words suggesting falsification:

Nuclear engineer Rusi Taleyarkhan falsified the circumstances of high-profile experiments on bubble fusion, according to a Purdue University report released last week. The report by a Purdue committee that includes scientists from other institutes upheld two charges of research misconduct.

IPBiz suspects more information is needed on what actually happened here.

See also:

Appeal of Dr. Reddy's, Teva rejected in rabeprazole case

The CAFC affirmed the decision of SDNY in Eisai v. Dr. Reddy's and Teva, sending appellants Dr. Reddy's (represented by Budd Larner) and Teva (represented by Goodwin Procter) to the showers.

The drug concerned was rabeprazole, which is part of a class of drugs known as proton pump inhibitors, which suppress gastric acid production by inhibiting action of the enzyme H+K+ATPase. The patent was 5,045,552.

Teva argued before the district court and maintains on appeal that the ’552 patent is invalid for obviousness. Dr. Reddy's argued inequitable conduct, but not obviousness.

In re Dillon was cited, as was KSR:

Where, as here, the patent at issue claims a chemical compound, the analysis of
the third Graham factor (the differences between the claimed invention and the prior art)
often turns on the structural similarities and differences between the claimed compound
and the prior art compounds. See Eli Lilly & Co. v. Zenith Goldline Pharms., Inc., 471
F.3d 1369, 1377 (Fed. Cir. 2006) (noting that, for a chemical compound, a prima facie
case of obviousness requires “structural similarity between claimed and prior art subject
matter . . . where the prior art gives reason or motivation to make the claimed
compositions” (quoting In re Dillon, 919 F.2d 688, 692 (Fed. Cir. 1990) (en banc))).
Obviousness based on structural similarity thus can be proved by identification of some
motivation that would have led one of ordinary skill in the art to select and then modify a
known compound (i.e. a lead compound) in a particular way to achieve the claimed
compound. See Takeda Chem. Indus. v. Alphapharm Pty., Ltd., 492 F.3d 1350, 1356
(Fed. Cir. 2007). In keeping with the flexible nature of the obviousness inquiry, KSR
Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727, 1739 (2007), the requisite motivation can
come from any number of sources and need not necessarily be explicit in the art. See
Aventis Pharma Deutschland GmbH v. Lupin, Ltd., 499 F.3d 1293, 1301 (Fed. Cir.
2007). Rather “it is sufficient to show that the claimed and prior art compounds possess
a ‘sufficiently close relationship . . . to create an expectation,’ in light of the totality of the
prior art, that the new compound will have ‘similar properties’ to the old.” Id. (quoting
Dillon, 919 F.2d at 692).

Teva seemed to have trouble with its expert: The trial court specifically noted that Teva’s expert testified with respect to
the EP ’726 data that “[t]he level of acid secretion . . . from these [anti-ulcer] data . . .
cannot be determined.” (...) And Teva’s expert identified
a separate reference teaching that fluorine-substituted groups increase lipophilicity. Id.
The record, however, shows no discernible reason for a skilled artisan to begin with
lansoprazole only to drop the very feature, the fluorinated substituent, that gave this
advantageous property. Indeed, Teva’s pharmacology expert, Dr. John Forte, declined
to opine on lansoprazole’s relevance to an examiner assessing the patentability of
rabeprazole. J. A. at 14894. And Dr. Reddy’s pharmacology expert, Dr. Simmy Bank,
testified in deposition that “I thought [lansoprazole] had nothing to do with this trial.”

The CAFC seemed to think that Teva had a bad theory on obviousness, post-KSR:

In other words, post-KSR, a prima facie case of obviousness for a chemical
compound still, in general, begins with the reasoned identification of a lead compound.
Teva cannot create a genuine issue of material fact on obviousness through the
unsupported assertion that compounds other than lansoprazole might have served as
lead compounds. Further, the record contains no reasons a skilled artisan would have
considered modification of lansoprazole by removing the lipophilicity-conferring
fluorinated substituent as an identifiable, predictable solution. In sum, the district court
properly concluded that the record did not support a case of obviousness of the ’552
patent as a matter of law.

Of inequitable conduct:

Inequitable conduct in prosecuting a patent application before the United States
Patent & Trademark Office may take the form of an affirmative misrepresentation of
material fact, a failure to disclose material information, or the submission of false
material information, but in every case this false or misleading material communication
or failure to communicate must be coupled with an intent to deceive. Innogenetics, 512
F.3d at 1378 (citations omitted).

The CAFC rejected various contentions

failure to disclose a co-pending application
failure to disclose prior art
false and misleading affidavit
failure to disclose prior application for lansoprazole [The strongest evidence of some problem
was the passing comment of one Eisai “insider” that the similarity of lansoprazole and
rabeprazole “bothers me.”

The deck chairs on the Titanic CIRM

Commenting on a "rearranging deck chairs" post on californiastemcellreport, LBE submitted the following:

Although it is admirable that Mr. Simpson is concerned with the distinction between grant making (distributing the money of others) and grant receiving (using the money of others), the greater concern should be with "what is going to be done."

Going to a theme of aircraft, circa World War I (of some interest to Simpson), one recalls that Langley got $50,000 from the US government and the Wrights spent about $1000 of their own money. The Wrights' plane flew and Langley's did not. Nevertheless, the "good old boys" of that time created the "Langley Prize" and bestowed it on the Wrights. The benefit to society was a plane that flew, rather than the chattering of academics.

Separately, if one looks to the newspapers of that time, one can find the same arguments NOW used by Simpson against the patents of WARF were THEN used by Curtiss (invoking Langley) against the Wrights' patent. There is nothing new about what Simpson is saying in 2008. One does note that in the duration of time that CIRM has been around, the Wrights did their experiments and flew.

Of state public financing of scientific research on stem cells, the people of California said yes and the people of New Jersey said no. As ordinary people worry about their mortgages, getting to work, and simply getting food, one wonders how those votes would come out in mid-2008.

concerning The Perils of Group-Think at CIRM.

USPTO relies heavily on Chevron in its appeal brief in Tafas v. Dudas

Patently-O has a copy of the USPTO's appeal brief in Tafas v. Dudas.

Of statutory authority:

The USPTO’s principal source of patent rulemaking authority is 35 U.S.C.
§ 2(b)(2). Section 2(b)(2) authorizes the USPTO to “establish regulations, not
inconsistent with law, which shall govern the conduct of proceedings in the Office.”

Was humor intended in the following?

The Office gave notice, solicited public comments, and
conducted public meetings to discuss the proposed changes. After spending more than
one year analyzing the public comments, the Office modified its original proposals
and issued revised rules. See JA51-179 (72 Fed. Reg. 46717-46843 (Aug. 21, 2007)
(final rules)).

Of rationale:

Finally, when the patent application process can continue without end, “the
public is left with an uncertainty as to what the set of patents resulting from the initial
application will cover.” JA54 (72 Fed. Reg. 46718). Thus, the prior rules and their
abuse “impose a burden on innovation both by retarding the Office’s ability to
examine new applications and by undermining the function of claims to notify the
public as to what technology is or is not available for use.” Id. The misuse of
continued examination practices such as intentional delay “also prejudices the public
by keeping applications in pending status while awaiting developments in similar or
parallel technology and then later amending * * * applications to cover these
developments.” Id. at 46719.

Chevron does appear [a lot]:

In holding that the Final Rules are ultra vires, the court made no effort to
measure the Final Rules against the actual terms of Section 2(b)(2), nor did the court
give the USPTO's interpretation of that provision the deference required by Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and its
progeny. Instead, the court held that the Office is confined to issuing procedural rules
and that the Final Rules are impermissibly substantive.

Of one of the basic issues:

The district court held that Rules 78 and 114 conflict with Section 120 and
132(b), respectively, because the rules place “hard limits” on the number of
continuation applications and RCEs that an applicant may file, while the statutory
provisions entitle applicants to make an unlimited number of such filings. But the
rules do not in fact limit the number of continuation applications and RCEs that may
be filed; they simply require an applicant to show the need for further filings once a
threshold number of filings has been made.

Of standard of review:

This Court reviews a district court’s grant of summary judgment without
deference to the lower court, applying the same standard as the district court. Star
Fruits, S.N.C. v. United States, 393 F.3d 1277, 1281 (Fed. Cir. 2005); see also Florida
Light & Power Co. v. Lorion, 470 U.S. 729, 744 (1985) (court of appeals and district
court perform “identical task” in reviewing agency action under APA). The critical
question is thus the standard that the district court ought to have employed in
adjudicating the validity of the Final Rules.

Justice Scalia is cited:

More generally, “it is settled law that the rule of deference applies even to an
agency’s interpretation of its own statutory authority or jurisdiction.” Mississippi
Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354, 381 (1998) (Scalia, J.,
concurring) (collecting cases).

See also

Patent or perish?

LifeNews discusses ConsumerWatchDog's appeal of its loss at the USPTO:

Some say the battle over embryonic stem cell research funding is the main source of contention in the stem cell research debate. However, for scientists, it's about patents.

The consumer groups argue the patenting has driven some scientists overseas because they can't profit from any follow-up work. That say the patents have done more to damage stem cell research in the United States than any lack of state or federal government funding.

Bioethics observer Wesley J. Smith has said the fight over money illustrates a phenomenon that is too little understood.

"Science has become a commercial enterprise--even in the ivory covered walls of the university. The days of 'publish or perish' are over. The current mantra is patent or perish," he explained.

IPBiz notes that filing patent applications does not exclude submitting journal articles. The days of "publish or perish" are not over, and have not been replaced by "patent or perish."

There were some errors in the LifeNews post, corrections for which can be found.

Comment left on californiastemcellreport:

LifeNews wrote of ConsumerWatchdog and PubPat:

The consumer groups argue the patenting has driven some scientists overseas because they can't profit from any follow-up work. That say the patents have done more to damage stem cell research in the United States than any lack of state or federal government funding.

Again, if stem cell scientists are free to practice (and profit from) their work outside the US, one might expect all kinds of advances outside the US. This does not seem to be the case.

Monday, July 21, 2008

Patent transparency

In a post titled Transparency in the US Patent System, blogger Michael White starts with the WSJ piece by L. Gordon Crovitz, but quickly gets into defects in the way the USPTO organizes data.

Starting with Crovitz, IPBiz notes Crovitz was anything but transparent in suggesting Allied Security Trust was recently formed. As pointed out on IPBiz: The Trust was formed in March 2007, not exactly recent to July 2008. Crovitz got it wrong. Of course, the Trust itself was not exactly transparent in disclosing its formation, or in taking a vanilla-sounding, generic name.

White's blog notes: I believe that the dissemination of patent information is a public good and should be promoted, especially in the education of science and engineering students.

On a separate theme in transparency, californiastemcellreport still has not posted my comment on its post titled
WARF whacked again
UPDATE. Californiastemcellreport finally posted the comment later in the day on 21 July 2008.

Saswato R. Das on science fraud

The article contains the text:

I was at Bell Labs when the Schon misconduct unfolded. Schon was young and charismatic and seemed extremely bright and productive (a common description if one examines the personalities of scientific fraudsters). And he claimed to have performed experiments that were the envy of all, things people had been trying for years and had failed to get to work. He became known as the kid with golden hands.

When the fraud was discovered, an investigating committee found evidence of massive misconduct - whole data sets were reused in different experiments, and some of the data had been generated from equations.

Looking with hindsight at the Ninov and Schon affairs, both were exposed quickly. In the latter case, it was less than a year after Schon made his most spectacular claim that he found himself out of a job. There is a lesson in this: Most important scientific frauds are exposed quickly.

IPBiz would have to take issue with the idea that the Schon fraud was exposed quickly.

See also

The Das article had text of relevance to patents:

With most cases of fraud, one wonders: Why did the perpetrator do it? It may be that science has a winner-takes-all reward system - the first person to do a particular experiment or espouse a particular theory gets all the credit.

Pioneering patents represent a winner takes all reward.

WSJ article raises issues with Qualcomm patent policies

An article in the WSJ begins with the words "Are Qualcomm, Inc.'s patent royalties an unfair tax on cellphone makers?" There is also mention of Qualcomm's obligations to a European standard setting group, obligations not being fulfilled according to Nokia. A US trial between Qualcomm and Nokia begins on 23 July in the Delaware Court of Chancery, which hears business disputes.

This is a "big deal" case. InformationWeek notes that the case will be webcast:

Interest in the case -- which could involve hundreds of millions of dollars, even billions -- is so intense that the case will be televised by Courtroom View Network via Webcast. Sources said the service will be available at a charge beginning at $400 and that financial institutions including hedge funds have been signing up for the service. The proceedings will be available online for 30 days for subscribers.

Jaffe and Lerner, in Innovation and Its Discontents, praised the patent policies of Qualcomm. Since that time, Qualcomm Inc. was sanctioned and six of its former lawyers faced investigation by the State Bar of California for failing to turn over thousands of documents in a patent infringement trial against rival chip maker Broadcom Corp.

The evidence of the "reality disconnect" of Jaffe and Lerner on patent issues is mounting.

Qualcomm does have arguments, although not the kind depicted by Jaffe and Lerner. Reuters noted the following:

“If it was such a bad deal, why did they negotiate so hard to extend that deal?” Qualcomm Vice President Bill Davidson asked Reuters. “If it was a good deal when it was 50 patents, it's an awfully good deal now that we have 7,000 patents (to license).”

One analyst said Nokia faced an uphill battle in Delaware because other cell-phone makers had agreed to pay 5 percent of the cost of their cell phones to Qualcomm to use the technology.

“The difficulty Nokia has got is that 90 other members of the industry agreed to this. They have agreed to pay the 5 percent,” said Francis Morrison, a lawyer for Axinn Veltrop and Harkrider LLP.

See also

The Magnitude of the Jaffe/Lerner Patent Misunderstanding Examined

Qualcomm sanctioned $8.6M on 7 Jan 08; lawyers referred to State Bar

Sunday, July 20, 2008

He's back...on 60 Minutes

On July 20, "60 Minutes" brought back Kanzius and the hot dog, and included a fluorescent light.

Refer to
Fool born every minute? Lesley Stahl's shameful piece on Kanzius.

Note how the question about whether or not the adjoining tissue was damaged was answered.

The website noted:

This segment about John Kanzius, who invented a machine that kills cancer cells with radio waves, was a rerun. It originally aired in three months ago. But shortly after the show aired on the East Coast, there were so many searches for "John Kanzius," "John Kansas" and "Kanzius machine" that Google labeled the trend "volcanic."

IPBiz makes two points:

#1. Although the basic propositions of the July 20 show were previously presented in the April 13 show, the details of the presentation had changed somewhat.

#2. Although the searching trend on July 20 may have been volcanic, there was no upsurge of hits to IPBiz posts on Kanzius on July 20. If a site is on the 100th page of a Google search, few people will read the site. In this case, Google itself may have controlled the perceptions of what people have of the Kanzius work.

An IPBiz reader wrote of the 20 July show -->

I just saw the 60 Minutes. I just kept thinking:
a) in the hot dog experiment, he injects copper sulfate (ie, not a
metal), and then appears to insert a thermocouple into the solution-so
the thermocouple is being heated!!!
b) I have to wonder if he is heating the water, not just the
c) In SWNTs, there are metal and semiconducting versions...and
they are very difficult to separate. So many of the carbon tubes may
not be heating, because they are semiconducting. (Smalley would have
known this, and thus he was skeptical at first.)
d) And, the medical (liver cancer) guy shows a bogus video, "here is
how the gold nanoparticles with antibodies work", and shows the cells
dying, etc. At least at the end of this segment, he admitted it was
"science fiction" for now.

IPBiz notes that the "gold nanoparticles" used were actually simply colloidal gold,
which has been around for a long time. Nobody is going to be sticking carbon
nanotubes in humans any time in the near future.

See also

Will "60 Minutes" be selling a print edition at the supermarket checkout?

Comments due on paperwork burden of Appeal Rule by 9 Aug 2008

David Boundy passed along information about a request for public comment on the Patent Office's estimates for paperwork burdens for the Appeal Rule, which note began:

The Patent Office recently published a Federal Register notice that is not publicized on any of the PTO's lists of Federal Register Notices. This continues the trend, now about two years old, of the Patent Office minimizing public participation in various intra-executive branch rulemaking oversight reviews by failing to give prominent notice of the opportunity for public comment.

IPBiz was not impressed by one of the earlier OMB analyses on proposed burdens. IPBiz does find the coverage of the Boundy information by OTHER blogs of some interest:

Patently-O noted: The PTO is asking whether these numbers are accurate under the newly finalized Appeal Brief rules. (This will impact whether the Whitehouse allows the new rules to be implemented). Comments are due by August 9, 2008, to Susan Fawcett (, who will in turn be required to provide them to OMB. (...) (For some unknown reason, the USPTO did not post information about this request for information from the public).

The coverage at the Patent Hawk blog began:

A recently published UPSTO Federal Register Notice regarding paperwork burdens for the proposed appeals rule change is oddly missing from all PTO lists of Federal Register Notices. The wafting scent is that this is something more than oversight, instead, a continuation of a two-year trend of failing to give sufficient notice of opportunity for public comment.

Baker & MacKenzie goes after family over

The Baker & MacKenzie law firm claimed before WIPO that the Saville-Smith family had been using the domain in "bad faith" to make money, a suggestion which the family has rejected as ridiculous.

[See Scotland on Sunday]

Douglas Schoen on patent reform

An op-ed on patent reform by Douglas Schoen begins:

What if I told you that labor unions, small-business associations, drug companies, physicians' groups, prominent academics and the Bush administration were all lined up against a major piece of federal legislation currently winding its way through congress?

Although Schoen has a better understanding of the diversity of patent "reform" opponents than does Roy Mark of eWeek, one would certainly like to INCLUDE small inventors and university tech transfer offices TO the list and EXCLUDE most so-called IP academics FROM the list.

Academics like Jaffe and Lerner were testifying in favor of the reform legislation, in spite of their limited credentials in the area and their limited understanding. Lemley, not a registered patent attorney either, was flip-flopping all over the place, first endorsing the Quillen/Webster patent grant rate numbers over those of Clarke, and then back-tracking, even though no new data was created. Quillen and Webster had been wrong all along. But the Stanford professor who once wrote that Gary Boone invented the integrated circuit won't admit the error of his ways on Quillen and Webster.

Why some IP professors are so out of step with their tech transfer offices is an interesting question.

Although Schoen writes on 17 July 2008: [patent reform] "is currently under consideration in the Senate, " IPBiz notes that realistically S.1145 is more than 90 miles away and won't be of concern during this session. One can stick a fork in it.

Jailbreak for iPhone 3G

When the original iPhone appeared, there were almost no native third-party programs for the iPhone. There are now third-party programs. It remains true that iPhone buyers either sign a long-term contract with a carrier or pay a prohibitively high price for the phone.

Nevertheless, on 19 July 08, a team of programmers announced that the iPhone 3G had been “pwned” — hacker jargon for “controlled” or “compromised.” The jailbreak, if implemented through Pwnage 2.0, allows the iPhone to use programs not authorized by Apple, but it does not yet “unlock” it to run on unauthorized cellular networks. Interesting IP issues here, but that's another story.

[from Fortune/CNN]

Saturday, July 19, 2008

Story of intermittent wiper patent becomes a movie

The saga of Robert Kearns and the intermittent wiper patent is told in the movie "Flash of Genius", to be released 25 October 2008. Wonder what the"patent reformers" have to say about this?



Flash of Genius will star Greg Kinnear, who appeared in movies such as Little Miss Sunshine (2006), We were Soldiers (2002) and also played alongside of Jack Nicholson in As Good as It Gets (1997). The role of Phyllis Kearns, who watches her husband’s obsession with legal retribution suffocate their marriage and put a strain on their children, will be played by Lauren Graham, who was the main character in the TV show Gilmore Girls (2000-2007).

"Consumer Watchdog" gets it wrong, again

A press release states of the WARF patent re-exam: The PTO examiner narrowed WARF's patent after the two groups requested a re-examination of the patent in July 2006. This NEVER happened. WARF altered some of the claims, not the examiner. This misstatement reminds one of John M. Simpson talking about all those American fighter planes in World War I, planes that didn't exist.

The press release mentioned declarations presented in the re-exam: Joining the two consumer groups in the challenge from the beginning was Dr. Jeanne Loring, now director of the Center for Regenerative Medicine at the Scripps Institute. Later in the case Dr. Alan Trounson, then of Australia's Monash University and now president of the California Institute for Regenerative Medicine, Dr. Douglas Melton of Harvard and Dr. Chad Cowan of Harvard filed affidavits supporting the challenge. The press release NEGLECTED to mention that all the declarations were dismissed by the USPTO as being conclusionary. No substance!
The press release neglected to mention that the "prior art" cited by PubPat and FTCR was found not enabled by the USPTO.

The notice appeal concerning US 7,029,913 may be viewed. It does not mention the declarations.

Of a story by Terri Somers plumping the press release, one IPBiz reader wrote:

Gee, they just keep lying, hoping their fairy tale will come true.

An attempt at a post on californiastemcellreport was made -->

In the interest of a more complete discussion, please note that the "notice of appeal" pertains ONLY to the third WARF patent, US 7,029,913. There is no challenge on appeal to the other two.

The USPTO had determined that the prior art relied upon by FTCR ("ConsumerWatchdog") was not enabled and the declarations of the four scientists were conclusionary. The outcome, on appeal, of such a weak case is foreseeable.

There is a bit of a "house divided" component to the argument that WARF does not have corresponding patents outside the U.S. If people OUTSIDE of the U.S. are NOT impeded by patents, why has NO ONE been able to do the SCNT work falsely claimed by Hwang in 2005? Separately, ConsumerWatchdog and Loring are silent as to "why" the EPO (for example) has not granted the WARF application.

[UPDATE. As of 1pm (eastern) on July 21, californiastemcellreport has NOT posted the above-comment, AND does not show a link to this post. UPDATE. The comment was posted by 8pm.]


Of --two California organizations--, PubPat, which represents Consumer WatchDog (formerly FTCR), is located in New York (The Public Patent Foundation, Inc., 1375 Broadway, Suite 600, New York, New York 10018). In the re-examination actions before the USPTO, references relied upon by FTCR were found "not enabled" and the declarations of the four scientists were found to be "conclusionary." The arguments fashioned by PubPat were not relied upon by the USPTO. This is not a strong platform for a successful appeal. Of --slowing down stem-cell research--, Consumer Watchdog has repeatedly asserted that WARF's patents exist only in the U.S., but never explains why research outside of the U.S. [unhindered by the US patents] has not moved forward.

"Texas ratio"

Of predictions for future bank failures, the "Texas ratio" is entering the jargon. It's basically the ratio of bad loans to assets. In a post titled Texas Ratio Predictor of Bank Failure - Maybe - Maybe Not the mortgageinsider notes that it is the ratio of a bank’s non-performing loans, including those 90 days delinquent, to the company’s tangible equity capital plus money set aside for future loan losses.

The Texas Ratio was invented after the savings and loan collapse in the late 80s that hit Texas so hard. A bank with a Texas ratio over 100 may have problems.

Research Associates of America, non-profit in DC, has compiled a list of 10 more U.S. banks with a Texas Ratio of 100 per cent or more. RAA's expertise has been questioned.

Downey Savings and Loan in Newport Beach, Calif. is at 96.

The mortgageinsider suggests the "Texas ratio" is not a definitive predictor:

If a bank has a high Texas ratio due to heavy C & D lending and they lent at low LTVs, then the answer is “yes” [the bank is safe]. The projects in default will be foreclosed on, sold to new developers, and the assets returned to the bank with no loss.

See also

CBS News story of 19 July 08
IPBiz notes the Texas ratio is hardly a secret formula.

Honeybees on the New Jersey Turnpike

A beekeeper's beehive apparently fell beside the NJ Turnpike in Cherry Hill.

Biofuels, land and fire

The 11 July 08 issue of Science has a letter titled "Biofuels: Effects on Land and Fire" authored by Keith I. Kline and Virginia H. Dale, of the Environmental Sciences Division of Oak Ridge National Lab. [321 Science 199].

There is also a letter by Tom Wassenaar and Simon Kay titled "Biofuels: one of many claims to resources." [321 Science 201]

To read these "letters to the editor," one must belong to AAAS or pay for them. One might keep the policy of Science concerning its intellectual property in mind when reading the ramblings of Eli Kintisch on intellectual property which are published in Science. Self-consistent? Not really. It follows the third grade logic: my IP is good and yours is bad, logic already employed by CIRM against WARF.


More on the faulty coverage in Science of continuation applications

Note also Land Clearing and the Biofuel Carbon Debt

Friday, July 18, 2008

271Blog discusses patent quality

In a post titled --USPTO Patent Quality - It's Not As Bad As You Think --, the 271blog discusses the recent work by James Malackowski and Jonathan Barney from Ocean Tomo.

LBE has been discussing the bogus issues with patent quality for years in papers in JIP, JPTOS, and IPT. Been there, done that...

Thursday, July 17, 2008

IP matters associated with InBev takeover of Anheuser-Busch

from the WSJ: Czech state-owned brewery Budejovicky Budvar has Bud and Budweiser brand trademarks and appellations of origin registered in 28 European and 37 non-European countries. Anheuser sells Budweiser in 16 countries and the Bud brand in 15. Anheuser and Budvar have fought for solo control of the Budweiser brand and its various mutations for a century, though more so in the past decade as Budvar’s exports have increased. One way for InBev to solve the problem would be to buy Budvar, which produced 1.25 million hectoliters in 2007.

Trademark folks should note the following: Budvar was founded in 1895 in the Czech city Ceske Budejovice–called Budweis by the German-speaking people living among the Czechs at the time. Beer has been brewed there since 1265 and for most of that time was largely referred to generically as Budweiser, just as beer from the Czech city Pilsen has been called Pilsner.

Hmmm, Roquefort and champaign...

Blog Ranking on Blawgsearch

A recent blog ranking by Blawgsearch gave a relatively high ranking to IPBiz, followed by "patent troll tracker," which has not had a post since 25 March 2008 (and which cannot be accessed by the general public) -->

IP Thinktank [feed]
Covers intellectual property strategy around the world. By Duncan Bucknell.
Last Updated: July 16, 2008 - Rank Today: 9

IPBiz [feed]
Intellectual property news affecting business and everyday life. From patent lawyer Lawrence B. Ebert.
Last Updated: July 17, 2008 - Rank Today: 10

Patent Troll Tracker [feed]
Tracks patent litigation.
Last Updated: March 25, 2008 - Rank Today: 15
Seattle Trademark Lawyer [feed]
Covers trademark law developments from Seattle and beyond. By Michael Atkins.
Last Updated: July 17, 2008 - Rank Today: 41

Patent Docs [feed]
Covers biotech and pharma patent law and news. By McDonnell Boehnen Hulbert & Berghoff.
Last Updated: July 17, 2008 - Rank Today: 53

Los Angeles Intellectual Property Trademark Attorney Blog [feed]
Includes topics such as copyright litigation, licensing, patent litigation, TTAB, trademark applications, and trademark litigation. By Los Angeles, California intellectual property lawyer, Milord A. Keshishian.
Last Updated: July 16, 2008 - Rank Today: 54

IPKat [feed]
Covers copyright, patent, trade mark and privacy/confidentiality issues from a UK and European perspective.
Last Updated: July 17, 2008 - Rank Today: 65

The TTABlog [feed]
Covers the Trademark Trial and Appeal Board. By John L. Welch.
Last Updated: July 17, 2008 - Rank Today: 70

Patently-O [feed]
Covers patents, claim drafting tips, patent cases, patent legislation and patent prosecution. By Dennis Crouch.
Last Updated: July 17, 2008 - Rank Today: 71
Eastern District of Texas Federal Court Practice [feed]
Devoted to practice in the U.S. District Court for the Eastern District of Texas, with special emphasis on patent litigation. By Michael C. Smith.
Last Updated: July 15, 2008 - Rank Today: 76

Wednesday, July 16, 2008

Gas prices on the minds of voters

LBE got a phone call on 16 July which placed him on a sort of "conference call" with Congressman Rodney Frelinghuysen and a bunch of constituents.

Needless to say "gas prices" and energy were prime topics, although one Patricia from Raritan lamented the (public) closing of Duke Gardens.

One fellow complained about all the technology bought up and suppressed by oil companies, in a plot line right out of "The Formula" with George Scott. As an observation, when a patent application is filed these days, it is generally going to be published, and thus made public. One is free to study all the technology, for example, of BlackLight. Going back to the old days of "butyl rubber," Standard Oil didn't conceal the technology, which, as we learned later, wasn't that good anyway as to synthetic rubber tires. But it was a photo op for Harry Truman.

Contrary to what most IT guys seem to think, the major point about patents (and now patent applications) is the public disclosure aspect. Patents aren't secrets which can be suppressed.

Incidentally, Rodney Frelinghuysen (unlike Chris Smith) voted AGAINST H.R. 1908, suggesting he's seen through the scams being perpetrated in "patent reform."

"NBC Nightly News" showcases a foreclosure on 16 July 08

NBC Nightly News on 16 July 2008 took viewers through a foreclosure of a home adjacent to the Manassas (Bull Run) Civil War battlefield in Virginia. The former owner, face pixilated, placed the blame on himself, in an otherwise non-contentious eviction by the sheriff.

Flash back to "Roger and me," for the even more depressing Christmas time eviction from a Michigan home, wherein the Christmas tree and presents were placed curbside. {One can never forget the rabbits of "Roger and me."]

"Roger and me" was for effect. However, "NBC Nightly News" is getting sufficiently depressing that it should carry a warning on the front end.

The "Nightly News" also had a story on the success of the Atkins diet, based on an article published in NEJM. NBC made abundantly clear that the study was funded in part by the Atkins folks. There was an absolutely cryptic statement by the NBC correspondent about a comment from the researcher about the conflict issue with the funding source. It was to the effect that the researcher might get away with lying to the NBC guy, but the researcher's career would be in big trouble if he lied to Harvard or NEJM.

For those who remember the Darsee fraud, note that Darsee is alive and practicing medicine. Hwang Woo Suk is cloning dogs in South Korea, working for a US company. IPBiz would not be surprised to hear that Jan Hendrik Schon was in the science game somewhere; his ideas are still around. And, in the plagiarism game, Laurence Tribe is doing well at Harvard, as is Glenn Poshard at SIU. Big trouble? You have got to be kidding.

***UPDATE. 17 July -->

Nightly News did a piece on people losing their health insurance on July 17. Even had a fellow from Lucent.

Laches bars inventorship claim

Laches was successfully asserted against plaintiff SERDAREVIC in a case involving (otherwise well-known)

Of laches:

“[A] delay of more than six years after the omitted inventor knew or should have
known of the issuance of the patent will produce a rebuttable presumption of laches.”
Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc., 988 F.2d 1157, 1163
(Fed. Cir. 1993).


Once the presumption of laches has attached, “the defendants could have remained
utterly mute on the issue of prejudice and nonetheless prevailed.” Hall v. Aqua Queen
Mfg., Inc., 93 F.3d 1548, 1554 (Fed. Cir. 1996).

Of unclean hands:

Under the unclean hands doctrine, “[e]ven if unable to overcome the
presumption, a [plaintiff] may be able to preclude application of the laches defense with
proof that the [defendant] was itself guilty of misdeeds towards the [plaintiff].”
Aukerman, 960 F.2d 1038. To succeed in an unclean hands claim, a plaintiff is required
to show that the defendant has “engaged in particularly egregious conduct which would
change the equities significantly in plaintiff’s favor.” See id. at 1033 (citing Bott v. Four
Star Corp., 807 F.2d 1567, 1576 (Fed. Cir. 1986)). But it is not enough merely to show
misconduct. See Yeda Research & Dev. Co. v. ImClone Sys. Inc., 443 F. Supp. 2d
570, 629-30 (S.D.N.Y. 2006) (“Because we find that defendants’ hands are unclean,
i.e., they are responsible for plaintiff not finding out about their patent applications, the
laches defense is unavailable to defendants.”); see also Potash Co. of Am. v. Int’l
Minerals & Chem. Corp., 213 F.2d 153, 155 (10th Cir. 1954) (“If the party which
advances the defense of laches is responsible for the delay or contributes substantially
to it he cannot take advantage of it.”); Bound v. Spencer Gifts, Inc., No. Civ. A. 95-2216,
1996 WL 556657, at *4 (E.D. Pa. Oct. 1, 1996) (“The doctrine of ‘unclean hands’ applies
to cases of an exceptional character, such as where a defendant was responsible for
plaintiff’s delay or affirmatively allayed the plaintiff’s suspicions through deception.”).