Saturday, February 28, 2009

IV and nuclear power

Commenting on the assault on IV by Matt Asay, IAM rolls out non-troll behavior by IV, as highlighted by MIT Tech Rev:

However, it may be an opinion that will be a little more difficult to sustain following a recently published article in the MIT Technology Review. In this, TerraPower - a new type of nuclear reactor which has been developed by IV scientists - was identified as one of the top 10 emerging technologies that could change the world.

In earlier times, the inventive aspects of IV were mentioned first, with the "troll" side a footnote. See for example:

Some of the patent applications in question are US published apps 20080123797 [Automated nuclear power reactor for long-term operation ] and 20080123795 [Controllable long term operation of a nuclear reactor ]. Both Myhrvold (a former Hertz Fellow] and former Hertz Foundation Prez Lowell Wood are listed inventors. [Roderick Hyde is also an inventor; CLARENCE "Casey" T. TEGREENE, the patent attorney). Long ago, Edward Teller discussed the advantages of the CANDU reactor.

See also

***Of the '795 case [ app 11/605,933 filed on 11-28-2006 ], there have been FOUR (4) distinct preliminary amendments. An IDS filed in Oct 08 mentioned nine distinct US patents. There is one PCT ( PCT/US07/24375 filed on 11-26-2007 ) and four distinct US apps claiming priority to 11/605,933. There has been no Office Action on 11/605,933. This is NOT an issued patent.

***Comment on continuing rules

Keywords: Glenn B. Foster, Dale Cook, Casey Tegreene, Steve Malaska

Cal State settles SDSU prof plagiarism case

The Union Tribune noted that the Cal State system agreed to pay $15K to settle a copyright suit related to copying by a SDSU university professor, Robert Rauch.

Of 11th Amendment issues:

But U.S. District Judge John Houston ruled last year that SDSU, as a state entity, had sovereign immunity from a copyright suit under the Eleventh Amendment. This ruling dismissed CSU from the suit, leaving Rauch as the lone defendant. However, CSU recently agreed to the settlement to end any possibility of appeal.

The subject matter evoked Baker's claims about Proposition 71:

Rauch's report found the 2004 Holiday Bowl produced a record $38.2 million impact on San Diego, up from $30.3 million in Casinelli's 2003 report. Such economic impact reports are used by the bowl to campaign for public funds given to tourism-related businesses. The Holiday Bowl said it stood by the numbers.

“The settlement vindicates my rights,” said Casinelli, whose company recently won the contract to do the impact report for the 2011 Super Bowl in Texas.

**Separately, of the Barney Gimbel matter, one commenter wrote:

I think he figured the operative word was "Dickensian." See, programmers sometimes place useless items in their code so they can tell when it's stolen. That way you can't produce an operating system called "Mirrors" if Microsoft can show you have plenty of their markers in there. Microsoft has a high percentage of useless code, it's well known. Anyhow, this Gimbel guy figured if he didn't use "Dickensian" they'd never catch him on the plagiarism ploy if he used every other word. That's smart figuring.

Doris Kearns-Goodwin said she just got her notes mixed up with the ones she'd taken down from her sources. Sort of the Madoff alibi. And she's still on the talk shows on teevee. Try that if you're caught.

IPBiz notes bogus stuff to snag copyists preceded Microsoft. Fake entries on maps and in phone books.

Also, Tim Russert loved to have copyists on "Meet the Press," including Kearns-Goodwin, who was once asked about someone else's copying!

Friday, February 27, 2009

Two children traded for one cockatoo?

SmokingGun reports the following:

A trio of Louisiana nitwits agreed to swap two young children for a $1500 cockatoo and $175, police charge. The deranged exchange was hatched after Donna Greenwell, a 51-year-old trucker, learned that the bird was being offered for sale by Brandy Romero, 27, and Paul Romero, 46. According to Evangeline Parish Sheriff's Office investigators, Brandy Romero told cops that Greenwell contacted her and said that while she could not afford the cockatoo's price tag, she did have children to trade (in a bid to sell the bird, the Romeros posted a flyer at a barn, where Greenwell spotted the notice, which included a photo of the cockatoo).

The accompanying picture indicated the cockatoo was of the sulfur-crested variety, as distinct from the more common umbrella cockatoo, which birds are frequently put up for adoption, mainly because they screech a lot if not given attention. [The screeching behavior, also manifested by Moluccan cockatoos, saved "Peaches" from death. Note also the story of Luna, in Trenton.]

TheTownTalk has pictures of the trio (which are worth viewing) and begins with the text:

Residents of the Pitkin area expressed shock and disgust Thursday [Feb. 26] of the news spreading about the area woman who was charged in connection with trading two children in exchange for a cockatoo.

Donna Louise Greenwell, 51, was charged with kidnapping and is still being held in the Evangeline Parish Jail, with bail set at $100,000.

Greenwell, who drives a semi-tractor trailer cross-country, lives on the edge of Rapides Parish, between Glenmora and Pitkin. The two children -- a 5-year-old boy and a 4-year-old girl -- weren't related to Greenwell, although they had been staying with her for some time, Evangeline Parish sheriff's officials said.

TheTownTalk was more detailed about the $175:

The next day, the exchange happened -- Greenwell dropped off the children and took the bird, authorities reported. She told the Romeros that she needed $175 more to pay an attorney to draw up adoption papers that she would drop off to them soon.

"Our investigation has revealed that in their mind, the Romeros didn't think they'd done anything wrong," Dupre said, pointing out that they told family and friends that they'd bought the two children. "They understand now that it was not a good idea, but they had good intentions, just bad judgment."

The talk of "good intentions" reminds one of various patent reformers, who may intend "good things" for the patent system, but who may achieve a result more like that of the Romeros.

A different cockatoo is on the video

"Unintentional" plagiarism at SIU, reprised

As a defense to the charge that an SIU committee lifted its definition of plagiarism from Indiana University without citation,

Lain Adkins of SIU said the incident was unintentional and thought the committee was clear of any wrongdoing,

presumably meaning they didn't intend to be caught.

Zemlin on Microsoft/TomTom

Jim Zemlin, executive director of the Linux Foundation, on Microsoft's allegations of patent infringement against TomTom: "Unfortunately, claims like these are a byproduct of our business and legal system today." IPBiz notes that here Microsoft is in the role of patent asserter.

Although Zemlin characterized this as "a private dispute" between Microsoft and TomTom, it could well be a trial run for later patent assertion strategy.

See also:

Thursday, February 26, 2009

CNET trashes Intellectual Ventures

Matt Asay wrote:

When I negotiate contracts with customers, intellectual-property indemnification is always the top legal concern. Always.
But it's not because of Microsoft and its recent TomTom patent lawsuit, or other such infringement suits between vendors. The concern is almost wholly related to patent trolls, and predominately because they have no vested interest in keeping customers happy, whereas vendors must...vend, and so can't afford to unduly upset customers.

Hence, while the open-source world is up in arms about Microsoft's TomTom patent suit, it should be far more worried about news that Intellectual Ventures has grabbed another 500 patents through a deal with Telcordia Technologies, as TechFlash reports. Intellectual Ventures, arguably the world's largest patent troll, is set up to do nothing more than license its intellectual property, which it has done to the tune of hundreds of millions of dollars.

Speaking of customers, IPBiz notes in the bad old days of the Selden patent, the patent holders used to threaten the car-buying customers of Henry Ford with ads along the lines "Don't buy a lawsuit." In the end, Ford won the lawsuit over the Selden patent, and observed what good advertising (for Ford) the Selden campaign had been.

Speaking of IV, one wonders what the stake of Microsoft in IV is?

CIRM spending lots of money on lawyers

Californiastemcellreport noted on Wed., Feb. 25:

Next Thursday, the Governance Subcommittee of the CIRM board of directors is expected to increase payments for its main outside counsel, Remcho, Johansen & Purcell, of San Leandro, Ca., and also for Nancy Koch, who deals with intellectual property issues.

According to the most recent document from CIRM, as of Nov. 30, 2008, Remcho had already been paid $237,545 out of its $450,000 contract for the 2008-09 fiscal year. Also as of Nov. 30, Koch had been paid $82,306 out of a $150,000 contract for this fiscal year.

Their contracts and possibly other legal assistance agreements are up for "amendment" at next Thursday's meeting. The use of that word generally means that CIRM needs authorization for more cash to pay the lawyers.

Californiastemcellreport did not mention that Nancy Koch is not a registered patent attorney.

See also:

TomTom denies Microsoft's patent infringement assertions

DowJones reported: Dutch navigations solutions company TomTom NV said Feb. 26 it rejects all Microsoft Corp.'s claims that it is infringing on eight of its patents.

Microsoft Corp. said Feb. 25 that it filed patent-infringement claims in a federal court for the Western District of Washington in the U.S., and with the International Trade Commission, against TomTom, Europe's largest maker of car-navigation devices.

TomTom spokesperson Taco Titulare told Dow Jones Newswires Thursday that TomTom rejects the Microsoft claims and that the firm will "vigorous defend" itself, without elaborating.

CNET noted that PART of the infringement assertion is related to TomTom's use of LINUX -->

While five of the patents relate to car navigation systems specifically, three of the claims pertain to TomTom's use of the Linux kernel in its products, Horacio Gutierrez said.

Gutierrez said Microsoft chose to include the open source claims alongside the proprietary GPS system claims because both related to TomTom. He characterized the suit as a dispute with TomTom as opposed to a new salvo against Linux.

This could in fact be an opening salvo against LINUX. If traction is obtained, look for more.

The Register was more specific about the threat to open source:

For those in the open-source community long skeptical of Microsoft’s increasing out reach, TomTom is their “told you so” moment.

Bradley Kuhn, Software Freedom Law Center policy analyst, told The Reg Wednesday evening: “It’s a good moment for people to take a step back and re-think how friendly Microsoft is to open source.”

To Kuhn, people should remember that whereas patents in software are antithetical to free and open source, they’re the bread and butter of Microsoft’s business model — a model that’s not changed.

Kuhn said he’s been “very troubled” by how much people in the free and open-source world have become accepting of Microsoft just because it’s given money to organizations like Apache Software Foundation (ASF), when just two years back chief executive Steve Ballmer threatened Linux over unspecified Microsoft patents in Linux and open source.

Thus, on the one hand Microsoft (and the Coalition for Patent Fairness) complain to Congress about patent infringement suits, but on the other hand Microsoft has gathered an arsenal of patents to inflict patent infringement suits on others.

TechFlash has posted the Microsoft complaint. Microsoft's patents in suit are: 6,175,789; 7,054,745; 6,704,032; 7,117,286; 6,202,008; 5,579,517; 5,758,352; and 6,256,642.

Microsoft does assert willful infringement (willful infringement is a hot topic in patent reform):

Defendants’ infringement of the Microsoft patents-in-suit constitutes willful and
deliberate infringement, entitling Microsoft to enhanced damages and reasonable attorney fees
and costs. Microsoft provided defendant TomTom N.V. notice of its infringement allegations in
a June 13, 2008 letter to Peter-Frans Pauwels, Chief Technical Officer of Defendant TomTom
N.V. Upon information and belief, Defendant TomTom, Inc. received notice of Microsoft’s
infringement allegations from its parent, TomTom N.V.

Some of the asserted patents had been re-examined, eg

Microsoft is the owner of all right, title, and interest in U.S. Patent No. 5,579,517
(“the ’517 patent”), entitled “Common Name Space for Long and Short Filenames,” duly and
properly issued by the U.S. Patent and Trademark Office on November 26, 1996. A
reexamination certificate was issued by the U.S. Patent and Trademark Office for the ‘517 patent
on November 28, 2006.

The law firm filing the complaint was Klarquist.

See also

Wednesday, February 25, 2009

Automobile not invented in America, but ...

SecuringInnovation bashed Obama for suggesting the automobile was invented by Americans.

But, then, there is this text on Securing Innovation -->

Steinmetz secured 200 patents in his lifetime and advocated the creation of an affordable electric automobile that would sell for less than $1,000 and could compete with gasoline powered cars like the Model T Ford and the costly Detroit Electric, an electric car created by the Anderson Electric Car Co. in Detroit in 1909. An early consumer advocate and environmentalist, Steinmetz said the electric car would be more economical and less polluting than the expensive and dirty gasoline powered cars.
In a paper Steinmetz authored on the electric car in March 1920, he wrote: "In general, in comparing the electric with the gasolene (sic) car, the advantages of the electric car are: 1) Very low cost of maintenance and repair; 2) Reliability and simplicity of operation and with the current gasoline prices, usually; 3) Lower cost of operation.

For a hint of the problem with the Securing Innovation text, see IPBiz, including:

Electric vehicles enjoyed success into the 1920s with production peaking in 1912. [See The History of Electric Vehicles.] That's one year after Henry Ford won his suit against the folks who controlled the Selden patent, who coincidentally were the electric car people. Hmmmm. The electric car people, unlike Henry Ford, were not working to drive down production costs. They controlled the Selden patent. The price of the less efficiently produced electric vehicles continued to rise. In 1912, an electric roadster sold for $1,750, while a gasoline car sold for $650. The discovery of Texas crude oil (Spindletop) reduced the price of gasoline so that it was affordable to the average consumer.

[; even more detail in IPT.]

Also, Obama's mistake is far more understandable than Lemley saying Gary Boone invented the integrated circuit. Obama was making a political statement; Lemley supposedly an academic one.

Further to the Securing Innovation post, one commenter wrote another IPBiz commenter the following text about IPBiz's 2007 text, with the commenter stating:

Most of this is marginally accurate or irrelevant. The Selden Patent had nothing to do with electric cars. George Selden designed an internal combustion powered vehicle and applied for a patent in 1879. The patent was granted in 1895 and broadly covered automotive vehicles. The Selden people, some of whom WERE electric car folk, tried to extract a fee from anyone building an automobile of any kind through a group called the A.L.A.M. (Association of Licensed Automobile Manufacturers). A working Selden vehicle was not built until 1905, and the opposition, led by Ford, won the lawsuit against the Selden group. Electric cars failed because of their limited range (the same reason they are not yet practical for general use today). Steam was also a viable alternative, but when internal combustion engines gained self-starting ability in 1912, the IC engine gained the position that it holds to this day. Cheap gasoline, instant starting, and long range made the IC engined car the obvious choice for almost everyone.

IPBiz never stated the Selden patent was about electric vehicles. As Securing Innovation correctly notes, Ford and the others LOST the case at trial, but won on appeal. Also, as LBE pointed out in IPT, the Selden patent was not invalidated; its scope was limited. Ford had tried to join ALAM, but was rejected as too minor a player.

The earlier post on Securing Innovation had stated:

In a paper Steinmetz authored on the electric car in March 1920, he wrote: "In general, in comparing the electric with the gasolene (sic) car, the advantages of the electric car are: 1) Very low cost of maintenance and repair; 2) Reliability and simplicity of operation and with the current gasoline prices, usually; 3) Lower cost of operation.

"The disadvantages of the electric car are: 1) Depending on a charging station or charging outfit; 2) Limited mileage of operation with a single charge and usually also; 3) Lower speed."

IPBiz notes that Thomas Edison said he was going to solve the battery problem, but never did. Nobody has.

Note also an article in Newweek, Now We’re Cooking With … Batteries
Electric storage is the weak link in a high-tech world. Fixing it could improve our lives—and the planet.
which includes text:

Today's cutting-edge lithium-ion batteries first showed up on Sony's brick-size cell phones in 1991. Lithium, the lightest metal on the periodic table, packs a lot of energy into a lightweight battery, but it has its downsides. Price is one of them: lithium-ion batteries currently cost twice as much as nickel-metal-hydride, which is why GM says its plug-in Chevy Volt could cost nearly $40,000 when it hits the streets in late 2010. Still, lithium-ion remains the hot new battery chemistry—maybe too hot. By generating so much voltage in a small space, lithium-ion's chemical reaction can overheat and create what the engineers call "thermal runaway"—a phenomenon consumers call a "small explosion."

The safety issues first gained notice two years ago, when laptops from Dell and other brands began catching fire. Thomas Forqueran, a gold miner in Kingman, Ariz., watched his laptop combust inside his pickup truck, igniting the truck's gas tank and the shotgun shells in his glove box. "We saw flames 5, 6, 10 feet shooting out of the passenger window," says Forqueran. Those safety problems led to recalls, so researchers are proceeding gingerly before installing next-gen batteries in devices we keep in our garages and pockets. "A couple bad accidents could give [new batteries] a black eye very easily," says J. B. Straubel, technology chief at Tesla, the electric-car company.


When she [Mary Ann Wright] arrived at Johnson Controls, she and some co-workers replaced its nickel-metal-hydride batteries with lithium-ion. The old batteries weighed 192 pounds versus 130 pounds for the new ones, which yield more power. The result: her jury-rigged Escape gets off-the-charts mileage. Prius owners who've done plug in lithium-ion conversions say they get 80mpg, and some analysts believe GM's Volt could break 100mpg.

There's groundbreaking research happening inside other U.S. companies as well. In Watertown, Mass., A123Systems has received $148 million in venture funding to create advanced batteries. It already makes rechargeable batteries for Black & Decker tools and is in the running to power GM's Volt. EnerDel, an Indianapolis startup, is supplying batteries to Think electric cars in Europe. The government plays a role too: both Argonne and Oak Ridge national laboratories have teams working on advanced batteries. Researchers are coming up with new chemistries and employing nanotechnology to make lithium-ion safer and more reliable. A123's battery, for example, employs nanophosphate technology that helps prevent thermal runaway and improve battery life. The trade-off: many of these alternative chemistries also lower the battery's voltage.




Tuesday, February 24, 2009

Lying, even when technically plagiarism, is still lying

A post on by Laura Smith-Proulx made a straightforward comment about copying from someone else's resume:

It happens all the time - your friend has the same job, and you swipe a few sentences from his resume. While this is technically plagiarism, there's worse news for anyone who does this: your friend's resume ISN'T about you.

Keep in mind that a resume is really a marketing document, and YOU are the product.

For unapparent reasons, the business about Biden's copying from Kinnock's speech devolved into a discussion about whether this was or was not plagiarism. That really wasn't the significant issue. The important point was Kinnock's facts, copied by Biden, didn't apply to Biden. The Biden/Kinnock incident was an odd story in which plagiarism was used to sugarcoat something worse.

See IPBiz post: -->

mediamatters obliquely referred to the FALSITY of the facts in Biden's copying:

Biden did appear to drop his own family something of a notch downward on the economic and social scale to appear more like Kinnock.

[IPBiz-->] Biden's father and grandfather were not coalminers, so there was nothing truthful in Biden's substituting himself into Kinnock's life story. Other members of Biden's family had gone to college, so there was nothing truthful in that aspect. One can only infer mediamatters doesn't really care about truth.



Lynn F. Jacobs and Jeremy S. Hyman write on US News in an article 9 Ways to Get on Your Professor's Bad Side:

9. Plagiarize in super obvious ways. No professor likes students who cheat. But worse even than plagiarism is copying in a way that's so transparent and obvious that anyone with half a brain could detect it. Like what happens when the professor enters the first few words of your paper into a Google search and finds, word for word, parts of your paper in the first entry. Look, professors think plagiarism is intellectual stealing, and, as the antilittering signs in New York say, "disgusting and filthy, so don't do it." But you add insult to injury when you copy in so obvious a way that your professor would have to be a moron to be unable to find your source.

Recall that Joe Biden, while at Syracuse Law, copied five pages of a law review article into his own paper, without citing the law review article. Joe Biden went on to become Vice-President. Jacobs and Hyman need to wake up.

***Also, under "meet the new boss, same as the old boss"


Reality check for Vice President Joe Biden

LATimes quotes Lemley in anti-Bilski piece

In a piece titled "Patent rules out of date," the LA Times wrote:

Neither the patent appeals board nor the federal court ruled that business methods can't be patented, but patent attorneys fear that will be the end result as few would pass the revised test.

"This is one of those rare times in over 200 years of the U.S. patent system that the courts have taken a very constricted view of what is patentable," said Wayne Sobon, founder of the website and director of intellectual property for Accenture, a global management consulting, technology services and outsourcing firm. "A lot of observers, including our company, view that as an undermining of the incentive the patent system was created to provide."

The biggest problem with the Bilski decision, said Stanford University law professor Mark A. Lemley, is that it has thrown into question all innovations that involve more mental than physical activity, not just those on business methods. That could jeopardize existing patents on some medical diagnostic procedures and scientific data evaluations, as well as withhold patents from future innovations.

"What does it mean to be tied to a machine? If you attach 'in a computer' to your application for a process patent, is that enough to pass the machine-or-transformation test? The patent office has been saying no, that you need to show a special machine has been built for this purpose," Lemley said.

The Supreme Court hasn't ruled on what is patentable since 1981, Lemley said, leaving the federal appeals courts to apply standards set in the infancy of the information age to complex modern innovations.

"The computer world has changed a lot since 1981. The courts have the power to adapt the law and keep it up with changing technologies, and they had been doing that. But Bilski is a step backward," Lemley said.


The Mercury News reported: Rambus won a major legal victory Monday [Feb 23] against four computer chip manufacturers when the U.S. Supreme Court refused to review a government claim that the Los Altos company had engaged in anti-competitive practices.

Monday, February 23, 2009

Former guv Locke pick for Commerce

WaPo reports: Former Washington governor Gary Locke is likely to be President Obama's choice to head the Commerce Department, according to several administration officials briefed on the decision.

WaPo did NOT mention the USPTO in its story, but did note:

The Commerce Department's stated mission is to promote U.S. economic growth, but Locke would face several other immediate challenges if confirmed, including the 2010 census. The administration's decision to move more oversight of the census into the White House was cited by Gregg as among the key factors in his decision to step aside as Obama's choice for the job.

Fast Company pushes peer-to-patent

FastCompany writes:

Researchers at the Center for Technology Assessment hope to use that insight to clear out the enormous blacklog of U.S. patent applications, which is stifling American innovation simply because inventors must wait so long to get their patents approved and be assured of their intellectual property.

They argue that a social network for patents—which allows select volunteers to discuss patents and group analogous innovations—could greatly simplify the patent office's most onerous task: Identifying so-called "prior art"—all the other inventions that inform and compete with any supposed new idea. Already, the researchers have launched the "Peer-to-Patent" pilot project, outlined in the upcoming issue of the International Journal of Technolgy Transfer and Commercialisation.

One commenter wrote:

Great article on the overall trend at O'Reilly:

See previous IPBiz post,

which includes the text:

I submitted 79 different examples of prior art on the GRMN study and had only a handful rejected as not relevant. The legal nuances of what constitutes prior art, and especially INVALIDATING prior art, are apparently subtle. The patent that was my personal favorite and that I thought would be totally invalidating apparently wasn’t, from a legal standpoint. Some of my patent submissions were deemed legally not relevant even when I couldn’t tell a difference from the patent I had submitted just before it. Ultimately I submitted tens of US Patents for consideration to AOP and none of them were the one that got me the GRMN prize. Only when I kept going and dug into WIPO patents did I come across the winner – and I didn’t even know it when I found it. It was just one more item in a batch submission I made one week.

Ranking of patent blogs

Back in 2006, IPBiz noted:

Returning to the central theme, bloggers are not evaluated on the accuracy of what they write, but who links to them. Linking may relate to approval at some level, but it is hardly analogous to peer review. Peer review, to first order, is about the plausibility of the logic, not about whether the underlying experiments are accurate. This deficiency was abundantly manifested in the evaluation of the work of Schon and Hwang (see for example 88 JPTOS 239).

Based on "who links to IPBiz," Technorati gives IPBiz a low authority number of 25.

Technorati Profile

Add to Technorati Favorites

Sunday, February 22, 2009

Facebook fiasco: overzealous lawyering?

The Consumerist blog wrote of Facebook: "Facebook's New Terms of Service: 'We Can Do Anything We Want With Your Content. Forever.' " [Facebook has since rolled back the changes]

ComputerWorld wrote: Was that what Facebook had in mind with the change in terms? Probably not. The new terms of use have the whiff of overzealous lawyering, combined with a hint of not-yet-announced business plans.

Remembering URochester and the COX-2 patent litigation

IPBiz got a chuckle out of post at Patent Baristas:

Mark Lemley, Professor of Law at Stanford Law School, seems to distinguish universities from trolls on the premise that universities (generally) do not lie in wait until an industry has developed around a technology and then demanding a disproportionate share of royalties based on irreversible investments. Having run a university technology transfer office, I can assure you that these offices generally are not even aware of how a technology is developing. This is not to slight universities, it’s just that universities can have inventions form a thousand different technology areas. No one could keep track of every industry.

Lemley also points to the fact that most university licenses give the licensee not just protection from lawsuits but also provide valuable know-how. He sums this up as “University patent owners aren’t trolls in my view when they contribute previously unknown technology to society, rather than just imposing costs on others by obtaining and asserting legal rights over inventions independently developed by others.”

These folks must have been sleeping when the University of Rochester, on the very day its COX-2 patent issued, sued Searle for patent infringement as to the commercial product Celebrex. What were Lemley and Albainy-Jenei thinking? Maybe they also should contemplate Ariad and Lilly. Lemley, separately, likely does not want to discuss the Metabolite case. And don't forget Columbia's Axel patents.

Masnick and Lemley-isms

In a post titled How Reporters Contribute To Misconceptions About Patent Lawsuits, Mike Masnick uses Joe Mullin as a cover for some previous fuzzy thinking by Lemley and Cotropia. Masnick should have at least credited Lemley and Cotropia for their idea.

Of course, the idea itself manifests a lack of understanding of patent law. Infringement of patent claims is a strict liability offense. It does not matter what the infringer thought or intended. Unless the patent owner is asserting willful infringement, there is simply no reason for the owner to assert the infringer "copied" the invention described in the claims. It's irrelevant. The question is simply: does the accused infringer's product or process fall within the scope of a claim of the asserted patent?

Nevertheless, Mike, not wanting to sound like the Harvard Business Review's "plagiarize with pride," tried to sugar-coat reality:

The truth is that it's very, very rare for a patent infringement lawsuit to actually involve a company that copied (or, as the patent system supporters would falsely claim, "stole") someone else's invention. Usually, it's about companies coming up with a similar offering independently.

Of course, "independent creation" is not a defense to infringement in US patent law.
It's irrelevant. Further, a lot of the "independent" creation in the IT industry arises because the bosses tell the researchers NOT to read patents. Nothing like re-discovering the wheel.

As is usually the case, Mike Masnick is clueless. Writing --patent lawsuits are almost never about the actual copying of inventions, despite what patent supporters and lazy reporters might tell you --, he should note that IPBiz is telling him that proof of "copying" is irrelevant. Further, patent law is designed to discourage people who disregard the published literature and "independently" create what already existed. The Masnick world is a wasteful world in which people are forever re-doing previous work.

***Separately, from Dave Mason-->

"Everything stems from plagiarism — you learn from somebody and then you evolve and adopt it to your own style to make it unique. There are still only 26 letters and 12 notes with so many variations or themes — you bring your own perceptions and life experiences and it gives it something unique."

CBS Sunday Morning on Feb. 22 on Shepard Fairey matter

On 22 Feb 09, CBS Sunday Morning had a piece on Shepard Fairey, including mention of the Obama Hope poster. CBS was way behind on its facts, neglecting to mention that Lemley's law firm had brought a DJ action on behalf of Shepard Fairey against AP. Also didn't mention issue of "who owns" the copyright in the picture.

CBS did mention Fairey's interaction with Andre the Giant. {Andre the Giant and his Posse, and the Obey theme).

There was mention of one Medvedow from Boston. There was an oblique reference to the mustashio'd Mona Lisa [Cross-reference: L.H.O.O.Q. (French slang -- "Elle a chaud au cul.") ]

See also

"Fire of genius" speech and Google Books

With the 200th anniversary of Lincoln's birth, there were a lot of articles on Lincoln in February 2009. One was "Presidents who value science," by James J. McCarthy, which appeared in 323 Science 853 (13 Feb. 09).

There was an allusion to Lincoln's "fire of genius" speech, well-known to patent attorneys and the inspiration for the name of a blog, which has the text:

"The patent system added the fuel of interest to the fire of genius, in the discovery and production of new and useful things." Abraham Lincoln, Second Lecture on Discoveries and Inventions (Feb. 11, 1859).

The article in Science gave the date for the speech as April 6, 1858, the date of the "first" lecture, which was before the Young Men's Association of Bloomington, Illinois. An internet website states: In the speech below, you will see the combined text of what was once believed to be two speeches. When the Collected Works of Abraham Lincoln was originally compiled, researchers did not know Lincoln had prepared only one.

IPBiz was going to check the text using a 1909 book that appears on Google books, and which IPBiz cited (and linked to) about one month ago, on 19 Jan. 2009, in the post
Obama and Lincoln. Surprise! The text of Lincoln's speech is gone. No longer available. Sikahema'd.

Returning to the Science article, which covered many points previously covered on Slashdot, one notes that Lincoln's speech did note:

Of all the forces of nature, I should think the wind contains the largest amount of motive power -- that is, power to move things. Take any given space of the earth's surface -- for instance, Illinois --; and all the power exerted by all the men, and beasts, and running-water, and steam, over and upon it, shall not equal the one hundredth part of what is exerted by the blowing of the wind over and upon the same space. And yet it has not, so far in the world's history, become proportionably valuable as a motive power. It is applied extensively, and advantageously, to sail-vessels in navigation. Add to this a few wind-mills, and pumps, and you have about all. That, as yet, no very successful mode of controlling, and directing the wind, has been discovered; and that, naturally, it moves by fits and starts -- now so gently as to scarcely stir a leaf, and now so roughly as to level a forest -- doubtless have been the insurmountable difficulties. As yet, the wind is an untamed, and unharnessed force; and quite possibly one of the greatest discoveries hereafter to be made, will be the taming, and harnessing of the wind. That the difficulties of controlling this power are very great is quite evident by the fact that they have already been perceived, and struggled with more than three thousand years; for that power was applied to sail-vessels, at least as early as the time of the prophet Isaiah.

The speech contains a "shoulders of giants" theme (in a context not unrelated to Biden's borrowing from Kinnock), in the same paragraph containing a reference to Mexican greasers:

But was this first inventor of the application of steam, wiser or more ingenious than those who had gone before him? Not at all. Had he not learned much of them, he never would have succeeded -- probably, never would have thought of making the attempt. To be fruitful in invention, it is indispensable to have a habit of observation and reflection; and this habit, our steam friend acquired, no doubt, from those who, to him, were old fogies. But for the difference in habit of observation, why did yankees, almost instantly, discover gold in California, which had been trodden upon, and over-looked by indians and Mexican greasers, for centuries?

There is an allusion to inventions in toys preceding full innovation:

The advantageous use of Steam-power is, unquestionably, a modern discovery.

And yet, as much as two thousand years ago the power of steam was not only observed, but an ingenius toy was actually made and put in motion by it, at Alexandria in Egypt.

What appears strange is, that neither the inventor of the toy, nor any one else, for so long a time afterwards, should perceive that steam would move useful machinery as well as a toy.

There was an allusion to invention, in the context of slavery:

still earlier, the invention of negroes, or, of the present mode of using them, in 1434.

Of patent law:

the first patent laws in 1624. (...)

At length printing came. It gave ten thousand copies of any written matter, quite as cheaply as then were given before; and consequently a thousand minds were brought into the field where there was but one before. This was a great gain; and history shows a great change corresponding to it, in point of time. I will venture to consider it, the true termination of that period called "the dark ages." Discoveries, inventions, and improvements followed rapidly, and have been increasing their rapidity ever since. The effects could not come, all at once. It required time to bring them out; and they are still coming. The capacity to read, could not be multiplied as fast as the means of reading. Spelling-books just began to go into the hands of the children; but the teachers were not very numerous, or very competent; so that it is safe to infer they did not advance so speedily as they do now-a-days. It is very probable -- almost certain -- that the great mass of men, at that time, were utterly unconscious, that their conditions, or their minds were capable of improvement. They not only looked upon the educated few as superior beings; but they supposed themselves to be naturally incapable of rising to equality. To immancipate the mind from this false and under estimate of itself, is the great task which printing came into the world to perform. It is difficult for us, now and here, to conceive how strong this slavery of the mind was; and how long it did, of necessity, take, to break it's [?]shackles, and to get a habit of freedom of thought, established. It is, in this connection, a curious fact that a new country is most favorable -- almost necessary -- to the immancipation of thought, and the consequent advancement of civilization and the arts. The human family originated as is thought, somewhere in Asia, and have worked their way princip[al]ly Westward. Just now, in civilization, and the arts, the people of Asia are entirely behind those of Europe; those of the East of Europe behind those of the West of it; while we, here in America, think we discover, and invent, and improve, faster than any of them. They may think this is arrogance; but they can not deny that Russia has called on us to show her how to build steam-boats and railroads -- while in the older parts of Asia, they scarcely know that such things as S.Bs & RR.s. exist. In anciently inhabited countries, the dust of ages -- a real downright old-fogyism -- seems to settle upon, and smother the intellects and energies of man. It is in this view that I have mentioned the discovery of America as an event greatly favoring and facilitating useful discoveries and inventions.

Next came the Patent laws. These began in England in 1624; and, in this country, with the adoption of our constitution. Before then [these?], any man might instantly use what another had invented; so that the inventor had no special advantage from his own invention. The patent system changed this; secured to the inventor, for a limited time, the exclusive use of his invention; and thereby added the fuel of interest to the fire of genius, in the discovery and production of new and useful things.

The Science article spoke of bringing telegraph to the White House [in fact, Lincoln went to the War Department office for telegraphed messages.] There was mention of the formation of the Dept of Agriculture in 1862 and of the NAS in 1863 (discussed on IPBiz). There was mention of improvement in weaponry (see story of Spencer rifle on IPBiz).

See also:

Agreements over genetically modified seeds limiting research?

Andrew Pollack in the NYT has a piece titled Crop Scientists Say Biotechnology Seed Companies Are Thwarting Research which includes the text:

“No truly independent research can be legally conducted on many critical questions,” the scientists wrote in a statement submitted to the Environmental Protection Agency. The E.P.A. is seeking public comments for scientific meetings it will hold next week on biotech crops.


The problem, the scientists say, is that farmers and other buyers of genetically engineered seeds have to sign an agreement meant to ensure that growers honor company patent rights and environmental regulations. But the agreements also prohibit growing the crops for research purposes.

Inventor John Kanzius dies

The inventor John Kanzius, made famous by an interview with Lesley Stahl on "60 Minutes," died on February 18, 2009.

See Colleague: Honor Kanzius by supporting research: Sharon McDonald calls Kanzius' radio frequency technology that destroys cancer cells without any significant side effects, one of the most remarkable breakthroughs in cancer treatment.

"He was a visionary, way ahead of his time, but he was also able to describe it and translate it so the scientists could take it and make it become a reality. He never lost sight of the fact that it really was not about him, it was about the amount of human suffering in the world because of cancer," she explained.

See Man Who Invented Machine That Turned Water Into Fire Dies

The Washington Observer-Reporter wrote:

The British have a tradition called the Gifted Amateur. The archetype is a civil servant who takes his pension to devote full time to his hobby of beekeeping and ends up writing a book that confounds experts in the field.

Such a man was John Kanzius.

Kanzius, who grew up in Washington, was a broadcasting executive with no medical training. After he contracted leukemia, he witnessed child patients undergoing chemotherapy and determined to develop an alternative cancer treatment. His brainchild was a machine that would use heat from radio waves to kill cancer cells without harming other cells.

He set up a crude laboratory in his home and tested his theory using his wife's pie plates and raw meat he bought from a local butcher. He was selected in 2008 by Discover Magazine as one of the world's 50 most prominent scientists, and researchers in Pittsburgh and Houston, Texas, are still working to perfect the device he invented.

Kanzius died last week, ironically of complications from chemotherapy treatments. Ideally, his legacy would be a way to treat cancer without drugs, surgery or side effects.

The hippest template for shameless plagiarism?

Speaking about the iriver spinn, Gizmodo writes:

Looks like the iriver Spinn is the hippest template for shameless plagiarism these days. Not one but two devices, a camera and a PMP, have popped up with obvious "inspiration" from iriver's '70s-influenced baby.

The Chinese take a hit:

The camera, a no-name little 5MP bugger from China, is more forgivable, since its spinning mechanism does serve a different purpose: turn the lens around and you can take self-portraits.

Lest we forget, it was an article in the Harvard Business Review (well east of Beijing) that proclaimed "plagiarize with pride"!

But Gizmodo continues:

But the PMP, a much less-crappy design by Myracer called the lisse t10, takes the awkward pointed chin of the T-Mobile G1 and pairs it with the sleek contours and, of course, the spinner, of the Spinn. For shame, nameless Chinese manufacturing drones. For shame.

Gizmodo had a link to a discussion of the Spinn, which link had text:

As they told me, they are looking into the past to get some inspiration for their products, bypassing the whole let's-copy-Apple theme that dominates the MP3 industry.

Hmmm, our inspiration comes from copying older things instead of copying newer things?

The spin uses AMOLED technology. Wikipedia notes: Active-matrix OLEDs (AMOLED) require a thin film transistor backplane to switch the individual pixel on or off, and can make higher resolution and larger size displays possible.

In passing, Wikipedia also writes: Alan J. Heeger, Alan G. MacDiarmid & Hideki Shirakawa received the 2000 Nobel Prize in Chemistry for "The discovery and development of conductive organic polymers". The Nobel citation made no reference to the earlier discoveries.

Hmmm, does not citing prior work foster shameless plagiarism?

One commenter wrote, effectively suggesting that the Nobel cite might have been for doped organic polymers with metallic conductivity. In metals, the electronic conductivity goes DOWN as temperature goes UP.

But see Chapter 3 of Handbook of Conducting Polymers suggesting that many doped polyacetylenes do NOT have metallic conductivity.

LBE was working on intercalation of graphite with electron acceptors. Oxidizing ("doping") graphite with oxidants enhanced conductivity of graphite.

Blogging as antidote to Sikahema effect?

In December 2008, there was a back-and-forth between Joe Mullin and Gary Odom (aka Patent Hawk) about Odom's patent infringement suit against Microsoft, then in ED Texas.

At the bottom of the Mullin post was the text:

Update: Gary Odom responds to this story.

Update II: Odom's response has been taken down, but was preserved by a commenter (below).

At IPBiz, we refer to such an instance as an example of the Sikahema effect. See for example:

In the science fraud area, Lucent (now part of Alcatel) removed the Beasley report on the Jan-Hendrik Schon matter from its website, but certain bloggers preserved it. Of course, with bloggers preserving key material, there might be questions of chain of custody and authenticity, but what can one do? Separately, what about spoofing, wherein a blogger might claim to have "preserved" something that never existed in the first place?

Part of the material preserved by the Mullin commenter included:

Joe Mullin penned a sagging saga of supposedly secret patenting in his entry about Odom v. Microsoft. The Joe Zone of the Unknown will shrink soon, as infringement contentions are due Friday.

Joe seemed mesmerized by Microsoft's bodacious brouhaha about long-expired contracts, flashed his claim construction IQ, and got some details wrong. But, hey, he's just a reporter for the mainstream press, working his beat.

It does seem that the original link is gone.

Query: if someone wanted to cite Odom for the great prose, who are they going to cite? The commenter on Mullin's website? Cite a secondary source for primary information, as does happen when law reviews cite blogs?

****At overlawyered-->

Patent lawyers often seem to be of a different stripe than other lawyers, and there is a similar patent-law-blogging community largely separate from the other law-bloggers. The commenters go mad at Crouch’s blog over the Frenkel revelation because Cisco is a strong patent reform supporter.

at bloglines



Thursday, February 19, 2009

Apotex and Olivieri

Patent lawyers are familiar with the name Apotex in a Hatch-Waxman context.

Another area concerns science fraud. From an abstract by Rhodes:

The Olivieri/Apotex affair is just another instance of academic medicine’s dereliction in a case of scientific fraud and misconduct. Instead of vigorously supporting their faculty member in her efforts to honestly communicate her findings and to protect patients from the risks associated with the use of the study drug, the University of Toronto collaborated with the Apotex company’s "stalling tactics," closed down Dr Olivieri’s laboratory, harassed her, and ultimately dismissed her.


Cloning in Korea. Hwang's patent applications back in business?

Still gun-shy from the Hwang Woo Suk fiasco, the South Korean government is moving slowly on a request by K. Y. Cha and affiliates. The Korea Times reported on Feb. 5, 2009:

After a lengthy meeting Thursday, the National Bioethics Committee decided to delay its decision over whether to allow the Seoul-based Cha Medical Center to conduct research on embryonic stem cells created from cloned human embryos.
Research on cloned human stem cells has been halted in Korea since 2006, when the bioethics committee banned Hwang from continuing his efforts after his landmark studies were exposed as fraudulent.
The Cha Medical Center had applied for approval on therapeutic cloning, claiming that the methods are crucial in developing more effective treatments for Parkinson's diseases, spinal injuries, diabetes, cardiovascular disorders and other difficult medical conditions.

In January 2009, the Korea Times had reported on Hwang's patent applications:

Disgraced gene scientist Hwang Woo-suk is getting a shot at redemption with his former employer, Seoul National University (SNU) transferring him ownership of his disputed work.

Hyun Sang-hwan, Hwang's colleague at the Sooam Biotech Research Center, confirmed that SNU had handed over the intellectual property rights for Hwang's claimed inventions in human stem cell research to H-Bion, a biotech com-pany Hwang established in May last year.

SNU announced last month on its decision to withdraw patent applications related to Hwang's work and said it would consider transferring the rights to local companies or institutions seeking to continue research.

The school's business foundation had applied for patents on Hwang's technologies in 11 countries, including the Untied States and Australia, in June and July of 2006. However, SNU fired Hwang later in the year after his studies on cloned human stem cells were deemed as fraudulent.

According to Korean law, intellectual property rights for inventions produced by employees of national universities belong to the state. Thus, the patents that had been reviewed by patent authorities overseas were filed under SNU's name, with Hwang listed as one of the 19 inventors, which put the university in the awkward position of representing someone it had expelled.
Monday's deal allows Hwang to keep the patent applications alive under the name of H-Bion. In selling the owner-ship of Hwang's work to H-Bion, SNU was paid 140 million won, identical to the amount of money spent by the school in applying for the patents, a source said.
Hwang reached a rare rock-star status for a scientist in 2005 by claiming to have created cloned embryos from pa-tient-specific embryonic stem cells. Although the study was later exposed as containing fake data, Hwang continues to insist that his technology is legitimate.
The patent application filed in the 11 countries relates to a human embryonic stem cell line, NT-1, that Hwang claimed to have generated through somatic cell nuclear transfer in a separate study in 2004. His work was published by peer-review journal Science.

Of the Australian case, see the previous IPBiz post:

See also

"Disruptive innovation" and lawyers don't mix

Jackie Hutter invokes buggy whips numerous times in a post about legal billing, including in text wherein a misplaced modifier relates Jackie to buggy whip manufacturers:

Like buggy whip manufacturers, I believe that many lawyers have become so entrenched in the law firm business that they have effectively forgotten that they are first legal services providers. As people charged with ensuring the continued vitality of the business, law firm lawyers often become primarily fee generators where the fees are obtained from billing clients by the hour for legal services. Care and feeding of the law firm and its partners by ensuring constant creation of billable hours therefore often takes precedence over the legal needs of clients. Also analogous to buggy whip manufactures, IP lawyers working in law firms have the ability to change to prevent obsolescence. Indeed, these lawyers possess the requisite skills to continue practicing their craft outside of the existing paradigm of the law firm. Still further akin to buggy whip manufacturers, lawyers also have the existing relationships with customers i.e., clients, which gives them a valuable head start over newcomers who wish to enter the IP legal service arena using innovative, but unfamiliar, client service models.

Of the text --Also analogous to buggy whip manufactures, IP lawyers working in law firms have the ability to change to prevent obsolescence --, one cannot help but remember the story of RCA, who placed the newly-formed transistor group under the direction of the vacuum tube division.

Jackie mentioned "disruptive innovation"-->

Some might contend that complaints about the billable hour model have abounded for many years, but no major changes have occurred to date, thus indicating that most clients may be all bluster and no action. While it is certainly true that clients exerted no real pressure on lawyers for change in the past, circumstances are markedly different today than before. Disruptive innovation is rocketing through society, and many formerly solid business models, such as newspapers and recorded music, are now teetering on the cusp of demise as a result.

Lawyers are about the furthest people on the planet from the concept of disruptive innovation.

See also:

Giants win SuperBowl; message for patent reform?

Of the background of "disruptive innovation", Wikipedia notes:

The term disruptive technology was coined by Clayton M. Christensen and introduced in his 1995 article Disruptive Technologies: Catching the Wave[2], which he coauthored with Joseph Bower. The article is aimed at managing executives who make the funding/purchasing decisions in companies rather than the research community. He describes the term further in his 1997 book The Innovator's Dilemma[3]. In his sequel, The Innovator's Solution[4], Christensen replaced disruptive technology with the term disruptive innovation because he recognized that few technologies are intrinsically disruptive or sustaining in character. It is the strategy or business model that the technology enables that creates the disruptive impact. The concept of disruptive technology continues a long tradition of the identification of radical technical change in the study of innovation by economists, and the development of tools for its management at a firm or policy level.

As I noted in an earlier paper, Christensen doesn't ever mention patents.

Wednesday, February 18, 2009

Google would rather "fight than settle" in patent litigation

Bloomberg reports:

Google Inc. is going on the offensive to fight patent claims, a strategy the Internet-search company says will deter frivolous lawsuits.

The number of patent challenges against Google rose to 14 last year, from 11 in 2007 and three in 2006. The company wants to curb that growth by fighting rather than settling lawsuits, said Catherine Lacavera, Google’s senior litigation counsel.

“I would love to say we’re seeing a leveling off of patent filings,” Lacavera said in an interview. “It’s our hope this will serve as a deterrent.”

Google, which currently has 24 patent cases pending, didn’t settle any patent challenges last year, after resolving cases in each of the previous four years, according to federal court dockets.

One recalls that Mark Lemley, who otherwise talks about the rise in patent litigation, is part of the law firm that filed a declaratory judgment against AP over the Obama Hope poster.

Are any of these patent reform folks "walkin like they're talkin"? As Emerson said, the louder he proclaimed his honor, the faster we counted our spoons. People who are serious about patent reform ought to do some spoon counting here.

Tuesday, February 17, 2009

High energy physics on race for Higgs boson

The BBC reported on the race to discover the Higgs boson:

Cern and Fermilab officials squared up at the American Association for the Advancement of Science (AAAS) annual meeting in Chicago.

Echoing themes in so-called races to patent, one had the quote:

"It's a race. Whoever is first is first."

See also:

Monday, February 16, 2009

Of boat rockers and mattresses

Sam Martin wrote on CNET:

I’m no patent expert, but it’s clear after a little research that patent laws were put into place for two reasons: 1) they want to encourage secretive inventors to stop stashing their cool ideas under a mattress somewhere and make them public and 2) they want to rock the boat.

Apple has never been accused of keeping new ideas under wraps, but by securing their new patent for “multifunction” touch technology like pinch, rotation, and swipe, they have certainly rocked the boat.

We won’t know how or if the boat will be righted until a few million dollars are spent on lawsuits, but those in the mobile and consumer electronics industry seem to be either ignoring the issue (using the lawsuit reasoning stated above) or they have the knee jerk reaction that Apple is ruining it for everyone – that the company is reverting to Pre-Open-Source, Big-Meany Corporate status.

And yet, isn’t Apple doing us a favor by rocking the boat? The reason behind the existence of patents is sound – to spur innovation and excite competition, the argument being that if there was no payoff for new products, services, or technologies there would be less incentive to push for change and improvement. Instead of ignoring the issue or getting angry about it, companies ought to be putting their energy and resources into coming up with something new. If Apple owns “touch,” what’s next?

People who study basic patent law are apt to run across the text:

We have among us men of great genius, apt to invent and discover ingenious devices... if provision were made for the works and devices discovered by such persons, so that others who may see them could not build them and take the inventor's honor away, more men would then apply their genius, would discover, and would build devices of great utility and benefit to our Commonwealth. Venetian Republic Patent Statute (1474), reprinted in PRINCIPLES OF PATENT LAW 10-11 (Donald S. Chisum et al. eds., 2d ed. 2001).

The problem is not inventors stashing ideas in mattresses but inventors, on disclosing ideas, getting ripped off.
Inventors want to rock the boat, with or without the patent system. Even WITH the patent system, outsiders don't always listen to boat rockers. Look at the story of Chester Carlson.

**In one variant (John F. Duffy, 71 U Chicago LR 439)-->

Seeking a better way to copy images, Chester Carlson, the eventual inventor of the xerographic process, decided to investigate electrostatic methods of copying because he knew that “a lot of big companies were deeply in-volved in research using chemical or photographic processes, and (in the inventor's words)--‘Who was I to compete against Eastman Kodak.”’ [FN97] Although today xerography is seen as a great invention of the twentieth century, that was not true even in 1959, nearly two decades after Carlson had received his first patent. Then, as Xerox was introducing its first plain-paper copier, the conventional wisdom was that the new machine would “find plenty of competition” in the “crowded field” of office copying, and that Xerox's business strategy was a “calculated risk” and a “gamble.” [FN98] (p. 464) That some such gambles pay off handsomely does nothing to demonstrate that rents are preserved, for the many less famous failures must be considered. [FN99] Any claim that competitive rivalry poses a diminished threat at some stage of technological development is speculation, supported by neither intuition nor empirical proof.

**Mark Lemley wrote in 58 Stanford LR 601:

Chester Carlson, a patent attorney, invented xerography in 1938. Being a patent attorney, he immediately patented his invention and proceeded to patent a series of improvements. Fascinating Facts About the Invention of Xerography by Chester Carlson in 1938, http:// (last visited Oct. 28, 2005). While one could dispute whether xerography is in fact an enabling technology in the sense I mean, it did open up a variety of fields and so is probably worth inclusion.
Notably, the patents in xerography were all held by Xerox, which effectively controlled the market for xerography for decades. Xerography is one of a very few inventions that was unambiguously made by the patent owner; no one else came close to developing a similar technology for well over a decade. Id. And even Xerox, Carlson's company, did not make a commercially successful copier until 1959, twenty-one years after his invention and the year his basic patent expired.

[IPBiz note: this is the paper that asserts Gary Boone invented the IC.]

Crock pots and energy

Crock pots seem to be coming back. The following contains some commentary:

**from green yahoo:

Save Energy

Crock-Pots, particularly today's models, are energy-sippers compared to most other cooking methods like a traditional oven, stove-top, or toaster oven. Slow cookers use just 100 watts of electricity, which means that if you use it once a week for eight hours at a time, it'll only cost you about TWENTY CENTS a month in electricity! [IPBiz: 0.1kW X 8 hr = 0.8 kW-hour. If 4 weeks per month, then 3.2 kW-hour. NJ is around $0.19/kW-hour, so this would be $0.61.]

Save on Groceries
Slow-cooking is the key to transforming inexpensive, sometimes tough cuts of meat into tender, fall-off-the-fork morsels. Chances are that the least expensive cuts of meat in your butcher's case are perfect for the Crock-Pot. And of course Crock-Pots are perfect for cooking beans and other legumes, among the healthiest and least expensive foods you can eat. Check out the 1,400 slow cooker recipes at

Save Time
Slow-cooking is even faster than fast food! Most Crock-Pot recipes involve only a few minutes of prep time — maybe chopping up a few veggies, stirring together some basic ingredients, and then turning on the slow cooker and forgetting about it. Forgetting about it, that is,until you return home after a hard day's work and you're greeted by that heavenly aroma of a home-cooked meal ready for the table.

Save on Dining Out
While you can cook smaller portions in a Crock-Pot, most of today's models hold anywhere from four to eight quarts. Cook a full pot, and even for a large family you're likely to have more than one meal's worth of a dish. Freeze the leftovers or serve them again later in the week, or package them in small containers for lunches.

Save Your Health
Because very few Crock-Pot recipes call for adding extra oil or using grease, most slow cooking dishes are relatively low in fat. Professional health writers Chet and Josh Day share some particularly healthy — and delectable — slow-cooking recipes.

*****Not everyone agrees on the 100 watts-->
Crock pots run at 120volts with low amps. If we cook with a crock pot that runs at 120v X 1.5amps = 180 watts (This is about medium heat). If we let the crock pot cook for 8 hours, you get 180 X 6 = 1080. [IPBiz: 0.18kW X 8 hour= 1.4 kW-hr]

If you cook that same pot roast in a crock pot for about 6 hours, you’ll be committing about 200 watts, or calculated roughly again, about 1.2 kWh for the same meal.

*****Volt-amps vs watts-->
Since watts is volts times amps, what is VA? VA (or volt-amps) is also volts times amps, the concept however has been extended to AC power. For DC current

VA = Watts (DC current).

In AC if the volts and amps are in phase (for example a resistive load) then the equation is also

VA=Watts (resistive load)

where V is the RMS voltage and A the RMS amperage.

In AC the volts and amps are not always in phase (meaning that the peak of the voltage curve is does not happen at the peak of the current curve). So in AC, if the volts and amps are not precisely in phase you have to calculate the watts by multiplying the volts times the amps at each moment in time and take the average over time. The ratio between the VA (i.e. rms volts time rms amps) and Watts is called the power factor PF.

from wikipedia
If a heater is rated at 1000 watts (1 kilowatt) and that heater is on for one hour then one kilowatt hour is used (equivalent to 3600 kilojoules).
Using a 60 watt light bulb for one hour consumes 0.06 kilowatt hours of electricity. Using a 60 watt light bulb for one thousand hours consumes 60 kilowatt hours of electricity.

Sunday, February 15, 2009

More on Suppes and Missouri

The Baltimore Sun ran, on Feb. 15, a version of an AP story on Galen Suppes that had circulated as early as February 7.

Neither variant gets into the issue that some of Galen Suppes' work, now at issue at Missouri, may have derived from work Suppes did at Kansas, and, as such, would be beyond the purview of Missouri's reach, barring an explicit assignment on the point.

There are some financial numbers in the story: Missouri says it is among those schools profiting from technology transfer. In the most recent fiscal year, the campus spent $1.4 million marketing intellectual property while earning $6.2 million in licensing income. IPBiz wonders if "marketing" includes the costs of patent application drafting and prosecution, or merely the costs of "advertising" the inventions to potential licensors. Bessen and Meurer were trying to tell people that even licensed patents were not making money, giving a strongly revisionistic picture of IBM.

Also check excite

Earthquake hits New Jersey on Valentine's Day

NBCNewYork reported: The latest earthquake, with a magnitude of 2.2, was recorded shortly before 5:30 p.m. Saturday [Feb. 14], said Scott DiGiralomo, a coordinator with the county's office of emergency management. He told The Star-Ledger of Newark that the quake's epicenter was about 6 miles north of Boonton, and it was felt in neighboring Montville.

An earthquake of magnitude 3.0 had rattled windows and alarmed residents of several Morris communities on Feb. 2. That quake was centered in Rockaway, Dover and Morris Plains.

Hmm, New Jersey is getting quakes on holidays in February....

See also

UPDATE on New Jersey news, 18 June 09, from AP:

The pilot of a Continental Airlines flight from Brussels to Newark died over the Atlantic Ocean on Thursday, but the jet landed safely with two co-pilots at the controls.
Flight 61 touched down on-time just before noon at Newark Liberty International Airport, authorities said. The Boeing 777 was carrying 247 passengers, said Kelly Cripe, a spokeswoman for the Houston-based airline.
Passengers weren't told of the pilot's death in flight. During the flight, an announcement was made asking if any doctors were aboard and several passengers approached the cockpit.

Query: should the passengers have been told?

Saturday, February 14, 2009

"Top 50" in biofuels according to Biofuels Digest

'The 50 Hottest Companies in Bioenergy' according to Biofuels Digest on 22 Dec 08:

1. Coskata

2. Sapphire Energy

3. Virent Energy Systems


5. Range Fuels

6. Solazyme

7. Amyris Biotechnologies

8. Mascoma

9. DuPont Danisco

10. UOP

11. ZeaChem

12. Aquaflow Bionomic

13. Bluefire Ethanol

14. Novozymes

15. Qteros

16. Petrobras

17. Cobalt Biofuels

18. Iogen

19. Synthetic Genomics

20. Abengoa Energy

21. KL Energy


23. GreenFuel

24. Vital Renewable Energy

25. LS9

26. Raven Biofuels

27. Gevo

28. St.1 Biofuels Oy

29. Primafuel

30. Taurus Energy

31. Ceres

32. Syngenta

33. Aurora Biofuels

34. Bionavitas

35. Algenol

36. Verenium

37. Simply Green

38. Carbon Green


40. Osage Bioenergy

41. Dynamotive

42. Sustainable Power

43. ETH Bioenergia

44. Choren

45. Origin Oil

46. Propel Fuels

47. GEM Biofuels

48. Lake Erie Biofuels

49. Cavitation Technologies

50. Lotus/Jaguar - Omnivore

Of "where are they in February?", note a Feb. 09 post at GreenLight:

It’s been tough times recently for companies seeking to make commercial quantities of “next-generation” ethanol made from non-food sources like wood chips, switch grass or municipal waste.

Irvine, Calif.-based BlueFire Ethanol recently postponed by six months its plans to start building a $130 million ethanol plant in Mecca, Calif. this year (see BlueFire Ethanol to Build $130M Plant in Mecca), saying it only had about $20 million of the plant’s projected $100 million cost in hand.

Cambridge, Mass.-based Verenium (NSDQ: VRNM), which announced last month that it was ready to build a 36 million gallon-per-year cellulosic ethanol plant in Florida for between $250 million and $300 million, faced delisting from the Nasdaq exchange in December, and reported a loss of $133.24 million in the third quarter of 2008, a big drop from a loss of $19.88 million in the same quarter of 2007 (see Verenium Plans Cellulosic Ethanol Plant in Florida).

And Warrenville, Ill.-based Coskata Inc. has said it might have to postpone from 2010 to 2011 its plans for a $100 million cellulosic ethanol plant. Still in the works is its exploration of building a $400 million, 100 million gallon-per-year plant in partnership with U.S. Sugar Corp. (see Coskata Lining Up Sugary Deal).

The slow going for cellulosic ethanol companies could stymie the federal government’s goal of getting 100 million gallons of the stuff by 2010, according to research firm ThinkEquity, which estimates that only 28.5 million gallons will be available by then (see Consumers to Pick Up Tab for Off-Target Cellulosic Ethanol Industry).

***Separately, bnet wrote:

Sapphire is worth keeping an eye on mainly because it recently drew so much attention from investors. The company hasn’t talked extensively about its technology, although it did tell me last year that it will grow exotic strains of algae in open ponds of otherwise unusable water.

Algenol, on the other hand, appears to be moving along at a faster clip. The company claimed last year that it would be able to produce a billion gallons a year of algal biofuel by 2012. After that sort of announcement, and given the history of boastful algae companies, it seemed far more likely the outfit would quietly disappear.

But the company just told Clean Technology Insight that it’s already ordering the bioreactors that it plans to grow its algae in, with plans to start production this year. It will place its first US plant in Florida or Texas, and already has one under development in Sonora, Mexico with a company called BioFields.

It’s hard to believe in algae given the fuel source’s history of failures — in fact, less than a month ago, one of the oldest companies in the space, Greenfuel Technologies, laid off over half its staff and pushed back deadlines. But with all the effort going into the sector, it wouldn’t be surprising to finally see a success, either.
[IPBiz: note GreenFuel is no. 23 on the Biofuels list.]

UPDATE. For some insight into Greenfuel's patent applications, see listing on ipexl.

UPDATE. from

Venice will be producing electricity from two types of algae that are brought in clinging to ships and regularly grow over the seaport. The algae will be cultivated and treated in laboratories to turn it into fuel. The fuel will then be used to power turbines in a new 40 MW power plant in the center of the city.

In order to make the new power plant truly carbon neutral, any CO2 produced by the process will be fed back to the algae.

The innovative project will cost the city $264 million and should be operating in two years.

[IPBiz post 4700]

UPDATE, 15 Sept 2011

Today, Woods continues to move ahead with plans to build a refining company headquartered in Bonita Springs that will use algae to generate ethanol for 85 cents per gallon, or about half the cost of petroleum today.

Big money is backing his efforts. Woods says an undisclosed Asian energy company recently pledged $100 million for Algenol to build out a 30-acre test facility in Bonita Springs in south Lee County. If the facility is as successful as Woods says it will be, that company might license the technology to build four large-scale facilities at a total cost of $3.4 billion.

Woods and his partners, including a Mexican heir to the Corona beer family, already have invested $70 million into Algenol. They’ve landed $10 million in incentives from Lee County and another $25 million grant from the federal government. Valero Energy Corp. is a partner.

Woods isn’t deterred by the fact that Algenol might not start making sales until 2013 because he says it takes years and huge financial resources to build refineries. Frozen capital markets and the federal government’s uncertain energy policies have hampered his efforts, he says.

Warner-Lambert and Listerine

Jeopardy on 14 Feb 09 seemed to suggest Listerine was invented at Johnson and Johnson. As wikipedia points out: First formulated by Dr. Joseph Lawrence and Jordan Wheat Lambert in 1879 as a surgical antiseptic, it was given to dentists for oral care in 1895 and it was the first over-the-counter mouthwash sold in the United States in 1914. The mouthwash was named in honor of Dr. Joseph Lister, a pioneer of antiseptic surgery.

Pfizer acquired Warner-Lambert to get Lipitor, but as wikipedia points out: [Listerine] is currently manufactured and distributed by Johnson and Johnson since that company's acquisition of Pfizer's consumer healthcare division in late December of 2006.
Pfizer closed down the Warner-Lambert Ann Arbor research facility. One of the developers of Lipitor was terminated.

Also on Jeopardy, a respondent on Chex cereals answered Ralston-Purina instead of General Mills.

Something in Nyce matter?

Internet searches on a new trial for Jonathan Nyce are making the rounds.

See also

"Post Issue Peer to Patent" involved in Red Hat matter

On Red Hat and IP Innovation, from OS News :

Back in 2007, IP Innovation filed a lawsuit against Red Hat and Novell. IP Innovation is a subsidiary of Acacia Technologies. You may have heard of them -- they're reported to be the most litigious patent troll in the USA, meaning they produce nothing of value other than money from those whom they sue (or threaten to sue) over patent issues. They're alleging infringement of patents on a user interface that has multiple workspaces. Hard to say just what they mean (which is often a problem in software patents), but it sounds a lot like functionality that pretty much all programmers and consumers use.
That patent was filed back on March 25, 1987 by some folks at Xerox/PARC, which means that prior art dated before that date is helpful -- and art dated before March 25, 1986 is the most useful. (That means art found in a Linux distribution may not help, seeing as how Linus Torvalds first began the Linux kernel in 1991.)

Red Hat has invited the community to join in the fight against the patent trolls by identifying prior art. They are coordinating efforts through the Post Issue Peer to Patent site, which is administered by the Center for Patent Innovations at the New York Law School, in conjunction with the US Patent and Trademark Office.

A noble goal, if you ask me. Patents should be a tool to foster competition - not one to just make money and consequently stifle innovation. I strongly believe that any filed patent should be accompanied by a working prototype (instead of just some vague drawing a la "warp drive goes here"), and that only that specific implementation as used by the prototype is covered by the patent. If that patent is not used in a product within, say, three years, the patent becomes void, allowing others to do a better job of doing so.

See also

More on Leapfrog and secondary considerations

From Leapfrog Enterprises, 485 F.3d 1157, 1162 (CAFC 2007):

Finally, we do not agree with Leapfrog that the court failed to give proper consideration to secondary considerations. The district court explicitly stated in its opinion that Leapfrog had provided substantial evidence of commercial success, praise, and long-felt need, but that, given the strength of the prima facie obviousness showing, the evidence on secondary considerations was inadequate to overcome a final conclusion that claim 25 would have been obvious. We have no basis to disagree with the district court's conclusion.

There is no citation to this proposition.

Previously, Lacks, 322 F.3d 1335:

The court found that the combination of three prior art references, all drawn to decorative wheel coverings, provided a prima facie case of obviousness and that Lacks' evidence of secondary considerations failed to rebut that prima facie case.

No cite.

Ruiz, 234 F.3d 654
The district court erred in failing to consider, or at least to discuss, evidence of secondary considerations. Our precedents clearly hold that secondary considerations, when present, must be considered in determining obviousness. See, e.g., Loctite, 781 F.2d at 873, 228 U.S.P.Q. (BNA) at 98 ("HN25 Secondary considerations . . .,when present, must be considered."); Simmons Fastener Corp. v. Ill. Tool Works, Inc., 739 F.2d 1573, 1575, 222 U.S.P.Q. (BNA) 744, 746 (Fed. Cir. 1984) Only after all evidence of nonobviousness has been considered can a conclusion on obviousness be reached."); Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 306, 227 U.S.P.Q. (BNA) 657, 662 (Fed. Cir. 1985) Just as it is legal error for a district court to fail to consider relevant evidence going to secondary considerations, it may be legal error for a district court to presuppose that all evidence relating to secondary considerations, when considered with the other Graham indicia relating to the obviousness/nonobviousness issue, cannot be of sufficient probative value to elevate the subject matter of the claimed invention to the level of patentable invention.").
From the district court opinion, we are unable to determine whether the district court considered these factors, and found them insufficient to rebut a strong prima facie case of obviousness, or whether the district court failed to consider them at all in its obviousness calculus. See In re Beattie, 974 F.2d at 1313, 24 U.S.P.Q.2D (BNA) at 1043. Nor can we tell whether the judge made implicit findings after hearing testimony. Accordingly, we urge the district court to make findings as to: 1) whether secondary considerations rebut a prima facie case of obviousness; and 2) if the evidence of secondary considerations is probative, whether there is a nexus between the claimed invention and commercial success. See Simmons, 739 F.2d at 1575, 222 U.S.P.Q. (BNA) at 746 ("HN32 A nexus between the merits of the claimed invention and evidence of secondary considerations is required in order for the evidence to be given substantial weight in an obviousness decision.").


Ecolab, 227 F.3d 1361

Given our earlier reliance on Ecolochem's concession of the prima facie obviousness of claim 20, which is binding as law of the case, we must treat claim 20 separately from the other claims held obvious in the decision appealed herein. We may only conclude that Ecolochem rebutted the prima facie case of obviousness with regard to claim 20 if the evidence of secondary considerations supports such a holding. See id.; In re Piasecki, 745 F.2d 1468, 1471, 223 U.S.P.Q. (BNA) 785, 787 (Fed. Cir. 1984). We therefore review the district court's findings on the evidence of secondary considerations, and, for purposes of completeness, address whether and how this evidence affects the adjudicated invalidity of all other asserted claims.
The idea that a patented invention might appear to be obvious given the excellent vision accorded by hindsight, but might not have been obvious at the time the invention was made, was discussed by the Supreme Court in Graham v. John Deere Co., 383 U.S. 1, 17-18, 15 L. Ed. 2d 545, 86 S. Ct. 684 (1966). In the intervening years since Graham a great deal of attention has been paid to the importance of secondary considerations. We discuss below many of the secondary considerations used by the courts in an effort to compensate for hindsight. The Supreme Court held that "such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonobviousness, these inquiries may have relevancy." 383 U.S. at 17-18 (internal citations omitted). While we review the district court's factual findings on the secondary considerations for clear error, we review the ultimate determination of obviousness de novo. See B.F. Goodrich Co. v. Aircraft Braking Sys. Corp., 72 F.3d 1577, 1582, 37 U.S.P.Q.2D (BNA) 1314, 1317-18 (Fed. Cir. 1996). We find clear error in the district court's findings on several of the secondary considerations as discussed below, but upon reviewing the obviousness conclusion de novo, hold that even if corrected, the findings respecting secondary considerations support the district court's holding of obviousness of claim 20 in the instant case. This conclusion has no effect on the obviousness of the inventions of claims 1, 3-13, 15,17, and 18, which we have already held would not have been obvious given the absence of any motivation to combine the teachings of the cited prior art references. Ecolochem has, however, failed to rebut the conceded prima facie case of obviousness with regard to claim 20. We therefore affirm the district court's conclusion that the invention of claim 20 would have been obvious.

[The matter of copying comes up.]

Another indicia of non-obviousness of a product is the acclamations it receives when it is released, and the copying that occurs. The district court found "that [although] Ecolochem's process was warmly received in the water treatment industry and was copied by at least two competitors, that copying did not result from the novelty of Ecolochem's invention and is of little weight in assessing obviousness." Ecolochem, slip op. at 77.

Ecolochem argues persuasively that its device was copied because it was significantly less expensive than vacuum degasifiers, the only alternative in the field. Furthermore, testimony from Edison indicates that Ecolochem's process was better than its competitors'. The district court gives little credit to Ecolochem's arguments, finding only that the process was not novel. It is a factual determination as to what the exact reason for the copying was, but here we hold that it was clear error on the district court's part to discount the copying because the court believed that the process was not novel. Therefore, this factor cuts against a conclusion of obviousness.
We note, however, that a showing of copying is only equivocal evidence of non-obviousness in the absence of more compelling objective indicia of other secondary considerations. See In re GPAC, 57 F.3d 1573, 1580, 35 U.S.P.Q.2D (BNA) 1116, 1122 (Fed. Cir. 1995) ("HN20 'More than the mere fact of copying by an accused infringer is needed to make that action significant to a determination of the obviousness issue.'") (quoting Cable Elec. Prods. v. Genmark, Inc., 770 F.2d 1015, 1028, 226 U.S.P.Q. (BNA) 881, 889 (Fed. Cir. 1985)). The reason is that the alleged copying "could have occurred out of a general lack of concern for patent property." See Cable Elec. Prods., 770 F.2d at 1028, 226 U.S.P.Q. (BNA) at 889. Consequently, even though the district court clearly erred in stating that the copying was not connected to the patented aspects of the invention, its error does not carry great weight in our evaluation of the obviousness of the invention of claim 20 in light of all the secondary considerations, combined with the other evidence and findings on the prior art.

Thursday, February 12, 2009

Financial guys and patents

From tradingmarkets:

David Stewart states in his report: "The software really is dynamic. But, again, the important thing is that it's also heavily patented and the patent has been so heavily infringed on that triple damages are now being sought. If the adage is true, if "imitation really is the sincerest form of flattery", then the same thing could probably be said of plagiarism or even the outright piracy of an intellectual property. My point being, if WordLogic's technology is good enough for Mercedes-Benz, it's probably very good technology!"


See also:

Governor Corzine, as a former chairman of Goldman, Sachs & Co. may have been a big wheel in the world of finance, but the bond vote shows that everyday people may have a better grasp on what will, and will not, likely make money. The projections on patent royalties resulting from the research, made both here and in California, are utter fantasy, and now we have a vote wherein everyday taxpayers recognized the snake oil for what it was. There was no quantifiable payback. Finance guys are NOT the ones to be lecturing others concerning the world of invention and innovation.


***Elsewhere, "Eleventh Hour" on 12 Feb 09 had Rachel doing a patent search for an invention lengthening telomeres (Pinocchio
Effect) in a show otherwise about human cloning and organ harvesting. The show definitely put a downbeat spin on SCNT.

***Separately, employee-inventors made out big in Britain. IAM reported:

The UK’s High Court has awarded two former employees of Amersham International (renamed GE Healthcare after its acquisition by GE in 2004) a total of £1.5 million. This after it found that as co-inventors of a radiopharmaceutical heart imaging agent called Myoview they were entitled to receive a proportion of the product’s value to the company.


Financial guys may not know much about patents, and, in the case of Jon Corzine, may not know much about running a state.
Shortly after Corzine was defeated in his re-election bid, New Jersey was listed as having one of the 10 worst economies in the US:

According to a Pew Center on the States' analysis released 11 Nov 09, the 10 most troubled states are: Arizona, California, Florida, Illinois, Michigan, Nevada, New Jersey, Oregon, Rhode Island and Wisconsin.


New Jersey: The Garden State, which has been plagued by years of fiscal mismanagement, spends more than it collects in revenue. The collapse of Wall Street, which supports about one-third of New Jersey's economy, has only made matters worse.

**UPDATE. On Goldman and Greece

The most stinging criticism last week came from Phil Angelides, chairman of the US financial crisis inquiry commission, who said he had been most struck so far in his probe by the way in which Goldman had been "creating and selling securities and then betting against them". In reference to Greece, he said the practice extended to the creation and selling of foreign debt instruments. "I find it troubling," he said.

Bailout for biotech?

Fierce Pharma has an opinion piece by Daniel J. Nevrivy, Ph.D. the founder of Nevrivy Patent Law Group, :

The global financial crisis and economic downturn has created a world of extraordinary government intervention in markets and industry, unthinkable even a year ago.

Mohammed El-Erian, CEO of the bond investor PIMCO, recently advised investors that they should position their portfolios predominantly under the umbrella of government support, in securities in sectors that the government will not allow to collapse.

But what industries and/or companies deserve to be saved, and which should be allowed to fend for themselves? Ask a half dozen officials and you are bound to get half a dozen different answers. The lack of uniformity and ad-hoc nature of the government's response to date have no doubt contributed to the uncertainty and volatility in markets. This is why, as El-Erian aptly points out, only a thin line separates courage from stupidity, and investors should follow the government's lead, and not try to anticipate their actions.

Educational background of Nevrivy:

J.D. George Mason University
Ph.D. Molecular and Cellular Biology, Oregon State University
B.S. Biology and B.A. Chemistry, Trinity University (TX)

Gregg gone at Commerce

Yahoo news noted:

Republican Sen. Judd Gregg of New Hampshire abruptly withdrew his nomination as commerce secretary Thursday [Feb 12], the third Cabinet-level pick scuttled. The move left President Barack Obama without a full team to lead the government.

Hard to pick USPTO director when the boss isn't known.

See also

Sun-Times on Lincoln on his 200th

On 12 Feb. 09, the Chicago Sun-Times had a story including the text:

A new book, Fighting Slavery in Chicago by Tom Campbell, recounts how Lincoln, in a couple of cases, represented slave owners as a young lawyer.

In one 1847 case, a man named Robert Matson brought a group of slaves, including Jane Bryant and her children, to Illinois from Kentucky to help plant crops. But when Matson planned to take them back south, the woman refused. Lincoln argued that the law of free state Illinois did not protect slaves "in transit," but the judge noted that the woman and her children had been in Illinois for two years and rejected Lincoln's case. The family went free.

Lincoln then represented Matson in an unsuccessful case against people who had helped Bryant.

Rob Stroud, writing for a smaller newspaper about an upcoming program on the incident, suggested more complexity to the matter:

Jane Bryant and her four children were among the slaves that Robert Matson of Kentucky brought to work his farm east of Newman. Her husband, Anthony Bryant, a freedman and an African-American Methodist lay minister, also lived and worked on the farm.

Robert Matson’s future wife, Mary Corbin, will be portrayed in the program. Henry said Corbin’s threat to send the Bryant children to the South for sale prompted the family to seek help to escape from Matson in 1847.

Gideon Ashmore and Dr. Hiram Rutherford, who also will be portrayed, came forward to shelter the family in Oakland and fund their legal defense. Lincoln agreed to be the lawyer for Matson, the only slave owner he ever represented during his legal career.

“This program will explore Lincoln’s possible motives and shed light on the complexity of the man,” said Traci Montgomery, one of the program planning committee members.

The Bryants won their freedom in court and ultimately emigrated to Liberia. Henry said Lucy Dupree, matriarch of the Brushy Fork free black community near today’s Oakland, will be portrayed and explain why Illinois “black laws” at the time put free African-Americans at risk.

The legal case was captioned Ashmore v. Matson.

The Matson case is briefly discussed in the book by Brian Dirck, Lincoln the Lawyer (University of Illinois Press, 2007). At page 148, Dirck writes: "Some of Lincoln's critics, on the other hand, highlight the Matson case, in which Lincoln represented the interests of a slaveholder named Robert Matson, who in 1845 brought five slaves from the slave soil of Kentucky onto the free soil of Illinois." Dirck makes reference to "dedicated Lincoln haters" Thomas DiLorenzo and Lerone Bennett. Footnote 30 of Dirck's book references the case as Matson v. Bryant, although the internet citation of Ashmore v. Matson may be more accurate.

In passing, at page 87, Dirck discusses Lincoln's patent cases. Dirck wrote:

Patent litigation was an obscure little corner of antebellum law. Blackstone devoted all of one sentence to the subject, observing in a parenthetical aside on the illegitimacy of monopolies that this was so "except as to patents, not exceeding the grant of fourteen years, to the authors of new inventions." (...) There wasn't much reliable commentary on patents in the existing legal literature of the day, the available case law was relatively rare and scattershot--addressing, for example, the question of whether foreigners could be granted American patents--

Dirck is apparently unfamiliar with what Justice Story wrote.

Curiously, Dirck utilizes the word "thicket" in his discussion: Take all this together, and patent litigation was a foreboding thicket into which an attorney might wander. There may well have been an unspoken professional convention that only more experienced lawyers should try to do so.

Dirck does write about how Edwin Stanton (a Democrat, but later Lincoln's Secretary of War after the corrupt Cameron was removed) treated Lincoln in the Manny / McCormick patent case. McCormick's attorny was Reverdy Johnson, who would also be of note during the Civil War. [Separately, Stanton defended Daniel Sickles in what would be a landmark case on the insanity defense.] Footnote 32 of Dirck's text observes that William Seward litigated patent cases.

Although Dirck at least briefly mentioned the Matson matter, remarkably a book entitled "Lincoln and Freedom," edited by Holzer and Gabbard (Southern Illinois University Press, 2007) makes no mention of the case. The Holzer/Gabbard book does make reference to Stanton and his order to Rufus Saxton to raise black troops in South Carolina. The book also mentions Jefferson Davis's counterpoint to the Emancipation Proclamation, that effective February 22, 1863, all free blacks in the South would be enslaved. Davis also issued a general order that captured Union black soldiers would be enslaved.

Note that in 1860, New Jersey still had slaves. In 1864, New Jersey gave its electoral votes to McClellan (not Lincoln), but Princeton (then College of New Jersey) gave Lincoln an honorary degree after the election.

***Slashdot on Lincolnn-->

"On the 200th anniversary of his birth, President Abraham Lincoln's popular image as a log-splitting bumpkin is being re-assessed as historians have discovered that Lincoln had an avid interest in cutting-edge technology and its applications. During the war, Lincoln haunted the telegraph office (which provided the instant-messaging of its day) for the latest news from the front; he encouraged weapons development and even tested some new rifles himself on the White House lawn; and he is the only US president to hold a patent (No. 6469, granted May 22, 1849). It was for a device to lift riverboats over shoals. 'He not only created his own invention but had ideas for other inventions, such as an agricultural steam plow and a naval steam ram, [and] was fascinated by patent cases as an attorney and also by new innovations during the Civil War,' says Jason Emerson, author of Lincoln the Inventor. But Lincoln's greatest contribution to the war effort was his use of the telegraph. When Lincoln took office the White House had no telegraph connection. Lincoln 'developed the modern electronic leadership model, says Tom Wheeler, author of Mr. Lincoln's T-Mails: The Untold Story of How Abraham Lincoln Used the Telegraph To Win the Civil War. At a time when electricity was a vague scientific concept and sending signals through wires was 'mind boggling,' Lincoln was fascinated by the telegraph and developed it into a political and military tool that allowed him to project himself to the front to monitor and track what was going on. 'If he were alive today, we'd call him an early adopter,' says Wheeler."

IPBiz notes that Lincoln went to the War Dept office to get telegraph messages (a review notes: Initially an intermittent user, Lincoln at times was so reliant on rapid communication that he spent nights at the War Department's telegraph office.) None of this is an "untold story." Also, patent litigation over the telegraph is legendary.