Thursday, April 30, 2009

Apparent Schizophrenia Redux

In a post titled Microsoft sends mixed patent message , Dana Blankenhorn talks about the mixed signals Microsoft sends on its patent policy.

Perhaps Blankenhorn should read up on IBM's apparent patent schizophrenia.

See for example:

IBM patent policy: apparent schizophrenia?

IBM's "apparent schizophrenia" on patent policy revisited

Further query: do we need an "apparent schizophrenic" as USPTO director?

**Returning to Microsoft, IAM notes a bit of a dust-up in the Microsoft/TomTom settlement:

Speaking in a session based on the EPO's Scenarios for the Future project, [Keith] Bergelt [of OIN] explained that under Dutch law, a company only has to reveal how much it has paid to settle a dispute if the amount exceeds a certain percentage of its market capitalisation. According to Bergelt, in TomTom's case the sum would have had to have been over $500,000. As TomTom has not made any figures public, Bergelt claimed, the settlement amount must have fallen below the threshold.

In response, Horacio Gutierrez of Microsoft:

“The terms of the contract are confidential and therefore we cannot comment on the amount of the settlement payment. However, Mr Bergelt is wrong. Mr Bergelt’s speculation is based on an incorrect understanding of Dutch law and therefore cannot be relied upon as a basis for interpreting the amount of the settlement payment to Microsoft. If people would like to know the real financial terms of the agreement, Microsoft has no objection to that if TomTom wishes to waive the confidentiality of those terms.”

Separately, of the FAT patents invoked against TomTom, it was noted:

On Monday OIN announced it was inviting people to provide prior art that might lead to the invalidation of the three Microsoft patents. Since that time it has already received a "significant response"

BusinessWeek presents Leahy (pro)/Rohrabacher (con) on patent reform

In "The Debate Room", BusinessWeek gave pro/con commentary on the proposition: The Patent Reform Act Means Progress
The current U.S. patent system is broken. It stifles innovation. Congress needs to pass the Patent Reform Act now. Pro or con?

On the pro-side, Senator Leahy wrote: Patent reform is about economic development. It is about American jobs, it is about innovation, and it is about consumers. We need a system that produces high-quality patents, limits counterproductive litigation over those patents, and makes the system more streamlined and efficient.

On the con-side, Congressman Rohrabacher wrote: Contrary to its title, the patent legislation now going through the Senate is not reform, but instead changes the law to benefit a narrow sector of the electronics industry, and trial lawyers. It does not maintain protection for the innovators and inventors but instead undermines their position against foreign and domestic infringers.

Neither Leahy nor Rohrabacher wrote about "copying" or "stealing." Curiously, Rohrabacher wrote about inventors but Leahy never mentioned inventors or invention.

Leahy mentioned "quality" twice. LBE has questioned the "absence of patent quality" arguments of Quillen and Webster, several times, including in the law review articles:



In recent patent reform proposals made by the Federal Trade Commission [FTC] and the
National Academy of Sciences [NAS], there has been discussion that the United States
Patent and Trademark Office [USPTO] might have a high grant rate of patents compared
to rates of other industrialized countries, including Japan and European countries. This
discussion began with papers of Quillen and Webster that suggested that the grant rate
might be as high as 97% and more reasonably is at least 85%. Clarke suggested that the
issue rate is closer to 75%. While Quillen and Webster based grant rate on applications
"allowed," Clarke based his studies on applications "issued." In this paper, we use data
from the USPTO to show that the difference between "allowed" and "issued" applications
is not the reason for the divergence in grant rates. Instead, we suggest that Quillen and
Webster's elevated grant rates arise from a flawed numerical approach.

Perhaps Senator Leahy might take notice that the "patent quality" issue rests on shaky

Wednesday, April 29, 2009

Bob Park says CBS has altered "60 Minutes" story on cold fusion

In his 24 April 09 "What's New," Bob Park says that CBS has Sikahema'd part of the "60 Minutes" piece on cold fusion:

Last Sunday's edition of the CBS News program 60 Minutes was titled "Race to Fusion." It was 1989, Fleischmann and Pons are shown with the "cold fusion" test tube that would have killed them had they been right. Because they lived, the race was called off. Michael McKubre of SRI apparently didn't get the memo; he just kept doing it over and over for 20 years. Lucky for him there's still no fusion, but he says he does get heat – except when he doesn't. How does it work? He hasn't a clue, but he showed a video cartoon of deuterium defusing through palladium and said it might be fusion. In fact McKubre called it "the most powerful source of energy known to man." Whew! But wait, Dick Garwin did a fusion experiment 60 years ago; it worked all too well. Garwin thinks McKubre is mistaken. Just about every physicist agrees, so the American Physical Society was asked to name an independent scientist to examine the claims of Energetics Technology, according to 60 Min correspondent Scott Pelley. An APS statement issued Wed. says this is totally false, and the APS does not endorse the cold fusion claims on 60 Min. (Aside: This morning I thought I should watch the video on the 60 Min web site one more time. Drat! CBS took it off. No matter, there's a full transcript. Uh oh! The part where CBS says the APS picked Rob Duncan to look into the ET SuperWave is gone. CBS can change history? My God, time travel! Now that is powerful.)

IPBiz notes CBS still has the link Cold Fusion Is Hot Again. However, the current version says:

With so many open questions, 60 Minutes wanted to find out whether cold fusion is more than a tempest in a teapot. So 60 Minutes turned to an independent scientist, Rob Duncan, vice chancellor of research at the University of Missouri and an expert in measuring energy. and makes no mention of the APS. Sikahema'd.

For future reference, that is one good reason to blog text, and not merely link. History can be re-written.

See also

In passing, Lesley Stahl's piece on Joe Biden was pathetically softball. But "Powered by Coal" was worse. To get energy out of coal or petroleum, hydrocarbons and oxygen turn into carbon dioxide and water; coal is neither dirtier nor cleaner than petroleum in that respect. And, yes, there was a comment on "coal" from the cold fusion people:

(...) For those of you who would like to do your own research and investigation into what I?ve said there is a wealth of information in books, journals, videos and CDs, and on the web. Here are a few good resources and topics you can start with by searching the web or visiting your local library or book store:

Brian O?Leary, Ph.D.
Paul LaViolette Ph.D.
Ervin Laszlo, Ph.D.
Eugene Mallove, Ph.D.
Thomas Townsend Brown
Paul Biefeld, Ph.D.
Nikola Tesla
Tom Bearden
Guy Obolensky, Ph.D.
Eugene Podkletnov, Ph.D.
Stanley Pons, Ph.D.
Martin Fleischmann, Ph.D.
Michael McKubre, Ph.D.
Jeane Manning
Zero Point Energy (ZPE)
LENR (Low Energy Nuclear Reaction; aka Cold Fusion)
Subquantum Kinetics


"Carbon capture and sequestration"--the only way to make coal safe?
Basin Power Electric Co-operative.
Coal into natural gas, during Carter years

"Not victory, but progress"

Within the law review titled Remembering the Public's Interest in the Patent System - A Post-Grant Opposition Designed to Benefit the Public, one has the text:

As the French essayist and moralist Joseph Joubert stated, "[T]he aim of argument, or discussion, should not be victory, but progress." With this limited purpose in mind, each proposal discussed below is taken from a public-policy perspective, without regard to whether the suggestions will be implemented in the Patent Act of 2005.

Noting that the US Constitution speaks of promoting progress, not of innovation and not of monopolies, the conclusion of the law review:

P79 While the Constitution gives Congress the power to adopt a patent system that awards monopolies in exchange for innovations that benefit society, the interest of the public must not be forgotten in the implementation of the system. Because Congress has neglected the public's interest and caused the current system to swell far beyond its constitutionally intended scope, clamor for change has arrived on several fronts. But change is certainly no easy task, and the Patent Reform Act of 2005 is but one step in that arduous journey.

P80 To ensure that near term patent reform reduces the very real public problem of bad patents, adoption of a more robust post-grant opposition should be an absolute necessity. Overemphasizing the interests of players other than the public has caused legislative reforms to fail in the past, and such mistakes must not be repeated this time around. The public's priority should predominate and their welfare should be the focus as the debate on the particulars of a viable post-grant opposition continues.

No, the article does not mention Cecil Quillen, but it does cite Qin Shi, Reexamination, Opposition, or Litigation? Legislative Efforts to Create a Post-Grant Grant Patent Quality Control System, 31 AIPLA Q.J. 433,435 (2003). Qin Shi does talk about Quillen.

"Laws against stealing America's intellectual property"

Further to a comment by Joe Mullin [Copying, or the lack thereof, _is_ highly relevant to all aspects of the patent debate as long the public and Congress *believe* that patent lawsuits are about copying or "stealing." That's not a "Lemley-ism", that is just reality -- backed up by many sources. ], IPBiz notes text from Senator Leahy on March 10, 2009:

Intellectual property is critical to our Nation's economy. It is an engine that drives our contemporary economy and will fuel our future. Industries that rely on intellectual property protection accounted for roughly half of all U.S. exports and represented an estimated 40% of U.S. economic growth in 2006, the last year in which our economy grew in all four quarters. Many of the jobs and expansion that can help us begin to recover from the costly economic recession will have their origin in our patent and copyright based industries. These range from computers and software programs, to new agriculture products, to our movies and music.

I am an ardent supporter of strong protection and enforcement of intellectual property rights. Last year, I led the bi-partisan effort to pass the Prioritizing Resources and Organization for Intellectual Property Act to enforce laws against stealing America's intellectual property. The Chamber of Commerce estimates that IP theft costs American companies $250 billion a year, and our economy 750,000 jobs.

As a former prosecutor, I know first-hand how important it is to have a full arsenal of legal tools to ensure that jus-tice is done. In Vermont, Hubbardton Forge makes beautiful, trademarked lamps. The Vermont Teddy Bear Company, like IBM, also relies heavily on its patented products. Likewise, SB Electronics needs patents for its film capacitor products. Burton's snowboards and logo are protected by trademarks and patents. Every state in the Nation has such companies and every community in the United States is home to creative, inventive and productive people. Americans suffer when their intellectual property is stolen, they suffer when counterfeit goods displace sales of the legitimate products, and they suffer when counterfeit products actually harm them, as is sometimes the case with fake pharmaceuticals and faulty electrical products.

Working together with 21 Senate cosponsors and our House counterparts, we moved that bill from introduction in July to the President's desk in October. I look forward to the new leadership of the Justice Department being confirmed and in place so that they may utilize the resources and tools we provided.

This year, we are working to make additional progress by modernizing the United States patent system. Last week, I joined with Senator Hatch, Chairman Conyers and Mr. Smith to reintroduce the bipartisan, bicameral Patent Reform Act of 2009 (S.515). This Committee was able to report patent reform legislation in the last Congress, and the House passed a companion bill. This year we need to enact it to help bolster our economy.

One notes that Senator Leahy did NOT talk about copying or state that patent lawsuits are about copying. He did mention stealing and theft. Patents, which are publicly available to anyone who bothers to look, define boundaries of intellectual property. Making, using, or selling something that is within the boundary of a valid patent claim IS "theft" of that IP. Senator Leahy is right on that point. And, Leahy's opponents on patent reform would not disagree. Joe Mullin, in parroting Lemley's take, is the one out-of-step. This of course is a bit ironic, because Mullin's initial point in all of this was about misreporting of patent stories, not about the patent debate.

See also Mike Masnick (TechDirt) takes on Gary Odom (PatentHawk), containing Joe Mullin's comment

**In passing, Senator Leahy had suggested that Arlen Specter had killed a previous Senate version of patent reform. Now that Senator Specter is not the ranking Republican, what will happen this time?

**Separately, of patent reform, from Julie Bort writing in Network World -->

Legal experts question whether The Patent Reform Act of 2009, or any legislation by Congress, can fix these problems. Congress would have to understand the intricacies of the software business. "Congress doesn't do a good job of carving out different rules for different industries," says Mark Lemley, professor of law at Stanford University and author of six books on the patent system.Instead Lemley says that the courts should impose limits and guidelines for monetary awards -- making patent litigation less profitable. Perhaps outright reverse engineering would get bigger awards than infringement claims based on vague software descriptions. This will encourage patent attorneys to write better patents. And that would reduce the overall litigation, and the cost of e-discovery.

Lemley also believes that the courts can effectively craft industry-specific rules as they rule on individual cases. This is a process that has already begun. Prior to the eBay vs. MercExchange patent battle, settled by the Supreme Court in 2006, if a company was found guilty of patent infringement it would be forced to stop operating. But with the eBay case, the Supreme Court unanimously ruled that an injunction should not automatically be issued based on a finding of patent infringement.

Lemley has also proposed the idea of a "gold standard" patent, which is more costly to obtain but better researched, better written and harder to overturn. Patent lawyers such as Krajec are not fond of the idea. He believes that all lawyers will try to protect their clients by always using the gold standard, thereby raising the costs of patents. Patents applica-tions can run a company thousands of dollars, and are already unaffordable for many start-ups.

Bort did not mention On Gold-Plating Patents from IPT in November 2008.

**Separately, Joe Mullin, in the past, wrote about the "patent troll tracker" business. From a post on 25 Feb 2008:

The patent-holding companies that Frenkel has been denouncing will no doubt cry foul, pointing out that the writer who declared he was “Just a lawyer, interested in patent cases, but not in publicity” was disingenuous, at least.

Frenkel’s revelation raises more interesting questions (for one, this journalist-turned-blogger doesn’t know how one person can write so much on top of a full time job). I enjoyed both communicating with the tracker's enemies and the mystery of the blog itself; with the mystery solved, the IP beat will be a little less fun.

IPBiz notes that trolltracker celebrated its 100th post in Nov. 2007, not "that" much writing. See

The trolltracker blog
. And, yes, the link to trolltracker is inoperative:

This blog is open to invited readers only
It doesn't look like you have been invited to read this blog. If you think this is a mistake, you might want to contact the blog author and request an invitation.

On Hatch-Waxman settlements

FoxNews reports on the settlement of a Hatch-Waxman case between Orion and Wockhardt:

Orion Corporation ("Orion") and Wockhardt USA, LLC and Wockhardt Limited (together "Wockhardt") today [April 29] announce that they have executed a settlement agreement on lawsuits filed by Orion in the United States against Wockhardt regarding Wockhardt's submission of abbreviated new drug applications ("ANDAs") for generic versions of Orion's Comtan(R: 25.3401, 0, 0%) and Stalevo(R: 25.3401, 0, 0%) products. Comtan is used in the treatment of Parkinson's disease as an adjunct to levodopa/carbidopa therapy. Stalevo is a combination of carbidopa, levodopa and entacapone for the treatment of Parkinson's disease. Both products contain entacapone, a COMT enzyme inhibiting agent originated and patented by Orion.

One notes: Wockhardt will be able to launch generic versions of Comtan and Stalevo on 30 September 2012, or possibly even earlier, subject to certain conditions. The parties have agreed that Orion will supply said generic product versions to Wockhardt.

At the PatentHawk blog, Gary Odom writes on the CIPRO case:

Stanford law professor Mark Lemley has penned a petition to the Supreme Court, to lay the burden of overturning reverse payments before the august body, this nation's numero uno woolly bully. Lemley thinks the CAFC ruling "contains fundamental errors of economic reasoning and would shield many anti-competitive agreements from the reach of antitrust law, causing great harm to competition."

The question begged:

Whether an agreement by a patent owner to pay a potential competitor not to enter the market is illegal per se....

Lemley joins himself with the self-interest group The Academic Amici, and their fellow travelers: the American Antitrust Institute, the rabidly anti-patent Public Patent Foundation, and the drug-swilling geezerhood AARP, who fight for cheap drugs at any cost, however oxymoronic. As Lemley staked it out, "AARP has a long history of advocating for access to affordable health care and for controlling costs without compromising quality." Essentially, an old folks socialist society. Don't get me wrong - that's an approbation.

This is rich. Lemley claims the "Amici have no stake in the outcome of this case." Bragging rights means nothing to the boy. Right.

Tuesday, April 28, 2009

Joe Mullin on copying

On April 26, IPBiz had a post titled Mike Masnick (TechDirt) takes on Gary Odom (PatentHawk), which mentioned a statement made by Gary Odom about Joe Mullin as noted by Masnick:

Amusingly, when Joe Mullin from IP Law & Business called Odom to comment, Odom refused, saying: "You're a hack job, man." Always a pleasant guy, that Odom.

Later on in the post, IPBiz alluded to a previous event, in which Mullin pushed some thoughts from Mark Lemley about how most patent infringement suits do not involve allegations of "copying." IPBiz had previously noted that this was not particularly surprising, because an allegation of "copying" is irrelevant to an assertion of patent infringement: copying is not an element of patent infringement. If one does intentionally copy, one can be liable for willful infringement, which can lead to a tripling of damages.

The relevant (earlier) post on TechDirt was titled How Reporters Contribute To Misconceptions About Patent Lawsuits and stated

Joe Mullin has another fantastic post, discussing how way too many reporters, in covering patent disputes, mislead the public into thinking that the patent holder is accusing another company of copying its invention. 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. Yet, as Mullin points out, in the recent reporting on Picsel suing Apple for infringement, reporters, such as those at CNN wrote that Picsel claims "Apple's hot-selling iPhone and iPod Touch devices incorporate Picsel-patented technology."

That implies much more than the lawsuit really says. It implies that Apple actually took or copied a specific "Picsel-patented technology" and placed it in the iPhone. But the truth is that no such claims are actually made in the lawsuit. Mullin suggests that reporters covering such patent lawsuits should make this much clearer, even suggesting something along the lines of the following:
"Picsel, which does not claim that Apple copied its patent or products, is asking for a royalty to be paid on all iPhones sold in the United States."
While that exact wording may not make sense, it does seem important to get more people to realize that patent lawsuits are almost never about the actual copying of inventions, despite what patent supporters and lazy reporters might tell you.

TechDirt linked to Mullin's blog, which stated:

CNN Money carried a short piece on the Picsel v. Apple lawsuit that used terminology that's pretty typical in reporting on patent lawsuits. According to CNN, Picsel claimed "that Apple's hot-selling iPhone and iPod Touch devices incorporate Picsel-patented technology that facilitates rapid redrawing of content displayed on devices' screens."

Now, that sentence is literally true and accurately reported. But there's a kind of breezy vocabulary around reporting on patent litigation that is quite problematic. It allows the patent-holder to strongly imply they've been copied, even though most of the time there's no copying even being alleged. Picsel is not claiming that Apple copied its patents or products, even though it's got a big incentive to put whatever evidence it has on the record.

Since there's evidence that most people believe—incorrectly—that patent lawsuits are about copying, shouldn't reporters go out of their way to clear about just what is being alleged?

How about adding: "Picsel, which does not claim that Apple copied its patent or products, is asking for a royalty to be paid on all iPhones sold in the United States." (substitute the appropriate product & damages demand; I'm not familiar with the details of this case.)

I think that gets two points across: 1) there is no copying accusation here, and 2) these allegations have an effect on consumers and the marketplace.

IPBiz asks: did the initial story say Apple copied? No. The story said: Apple's hot-selling iPhone and iPod Touch devices incorporate Picsel-patented technology. If infringement were found, that statement would be entirely accurate. The infringement analysis involves a comparison of an accused product or process to a claim in a patent. If infringement is found, then the accused product did incorporate the technology, as defined by the words of the claim.

IPBiz notes that there is no reference given for the statement: Since there's evidence that most people believe—incorrectly—that patent lawsuits are about copying. Further, the impact of this statement depends on how "copying" is defined. If copying (or stealing) includes utilizing technology that is publicly known to belong to someone else, then using the term "copying" might not be inappropriate. The documents are called "patents" because they are publicly available, and their public availability places the public on notice. One has the aphorism "ignorance of the law is no excuse." Most members of the public don't know the contents of all laws, but a defense "I didn't know the law" is destined to fail. That patents are public is supposed to minimize needless duplication of research efforts. We do not want people to spend time re-inventing the wheel. People are SUPPOSED to read the patents and not waste time doing that which has been done before. [In passing, Mullin does not provide evidence about people/copying in an earlier article titled The Inventor's Tale unless anecdotal opinions constitute evidence.]

IPBiz also notes that Mullin did not cite Lemley/Cotropia in the post mentioned by TechDirt, but did cite them in an earlier post which includes the text:

Those who favor strong patent rights often wave the banner of the "independent inventor." I've heard many patent holders—and many patent lawyers—praise strong patents as needed to protect inventors' rights. But when we look at the litigation landscape—the public record of how patents are actually used—we find strong evidence that nearly all accused infringers developed their technology on their own.

So, who are the nation's "independent inventors?" Are they patent-holders busy denouncing patent reform? Or are they the people and companies who must defend themselves against lawsuits brought by those patent-holders?

If independent invention was a defense against a patent infringement allegation, the data suggests we would see a sharp drop in patent litigation. Would it be a 90 percent drop-off? That's not an unreasonable guess, but it's tough to know for sure. As Lemley pointed out to me, such a change could encourage some to file on more dubious claims, or could lead to more licensing as opposed to litigation.

The idea that "independent invention" is a desirable thing goes against the objective of the patent system. There is a very good reason that independent invention is not a defense and never has been. We don't want resources wasted on ideas that are already known. Mullin needs to understand that.

Joe Mullin wrote in comment to the earlier IPBiz post:

Lawrence, I'm perfectly aware that copying is irrelevant in patent infringement. Did you even read my entire post? I link back to an earlier post in which I discuss the issue of copying in depth (and yes, it's based on Lemley's research).

Copying, or the lack thereof, _is_ highly relevant to all aspects of the patent debate as long the public and Congress *believe* that patent lawsuits are about copying or "stealing." That's not a "Lemley-ism", that is just reality -- backed up by many sources.

IPBiz notes that the posts of Mullin (and TechDirt) cited by IPBiz were about reporters, in covering patent disputes, misleading the public. They were not about "the patent debate" or what Congress might believe. The key sticking point in patent reform is about apportionment of damages, not about what anyone thinks about copying. The study of Lemley and Cotropia, pushed by Mullin, confirmed that plaintiffs don't assert unnecessary elements in a cause-of-action, something that ought to be self-evident. In Mullin's pushing of a non-issue (reporters suggesting copying in the absence of much evidence in litigations for assertion of "copying"), we arguably have a reporter misleading the public. The issue is whether there are infringers who are making, using, selling or offering to sell products that fall within the scope of valid patent claims. Some people may call this copying or stealing; it is patent infringement, it's against the law, and we don't want to encourage it.

***In a discussion of "patent reform," one finds "copying" to arise only in the context of willful infringment. Placing the absence of "copying" in litigations as an important issue in patent reform (or in reporting) is simply recycling an irrelevant Lemley-ism.

***Of Mullin's text in Inventor's Tale:

Other areas of intellectual property law, including copyright, trademark, and trade secrets, all require proof of actual copying to hold a defendant liable.

In copyright, a close similarity to the original work can be used to infer access.
In trademark, the rule is "likelihood of confusion", and those people who come "too close" to an earlier mark WILL BE found to be infringers (or denied a mark in the first place if attempting to register). Trademark law is designed to protect the CONSUMER from confusion. If the consumer will suffer a likelihood of confusion, it does not matter what the intent of the accused infringer was.

**UPDATE. 9 July 09

iParadigms issues press release on victory at CA4

PRNewswire (April 27): The US Court of Appeals for the Fourth Circuit issued a published decision on April 16 affirming a lower court's finding of fair use for iParadigms, LLC, the company that provides Turnitin, in a closely-watched copyright infringement case brought by four high school students.


In March 2008, the students' case had been dismissed by US District Judge Claude Hilton when he issued a summary judgment stating that Turnitin's use of archived student works without their permission to assess originality of newly-submitted papers constitutes a fair use under US copyright law and is therefore not copyright infringement. In addition, Judge Hilton stated that such use "has a protective effect" on the future marketability of the students' works and "provides a substantial public benefit through the network of institutions using Turnitin."

The plaintiffs appealed Judge Hilton's decision and, after conducting its own independent analysis of the plaintiffs' claims, the court of appeals concluded that "iParadigms' use of the student works was 'fair use' under the Copyright Act." Like the lower court, the appeals court recognized that iParadigms' use of the student papers for purposes of plagiarism detection is a "highly transformative" use that adds something new in purpose and character and does not harm the future marketability of the students works. The appeals court also reiterated that, "if anything, iParadigms' use of students' works fostered the development of original and creative works 'by detecting any efforts at plagiarism by other students.'"

***Separately, note Plagiarism or Idea Theft? -->

Q: What is the distinction between plagiarism and idea theft?

A: First of all, “plagiarism” is a term commonly used to describe the copying of someone’s written work, but the term has largely disappeared from California law. What was once known as “plagiarism” now comes within the ambit of federal copyright infringement. [IPBiz: no!]

To understand the difference between copyright infringement and “idea theft,” it is important to realize that ideas are, under the law, said to be “as free as the air.” In other words, you can think up an idea, but you can’t have a monopoly on that idea and you can’t copyright the idea alone. You can, however, copyright your expression of the idea—the way in which the idea plays out, the characters, setting, etc.—in the form of a screenplay, treatment or other work.

A claim for copyright infringement arises where an infringer has (1) access to your work and (2) there is “substantial similarity” of expression between your work and the infringer’s work. [IPBiz: access can be inferred.] What this means is that if someone reads your work and then creates a work that is similar in such elements as plot, theme, dialogue, mood, setting, pace and sequence of events (which are the elements courts look to in evaluating claims), you would have a federal copyright infringement claim. This is true, by the way, whether or not you ever officially registered your work with the U.S. Copyright Office. [IPBiz: one can have a claim ONLY IF the copyright is registered. One does have a copyright once the material is fixed in tangible medium. Two different concepts.] Although there are certain benefits to registration, under current law you have a copyright in your work from the moment that it is “fixed in a tangible medium of expression,” i.e., when you write it down on paper or create a file on your laptop, even if the work has not been registered.

In addition, the law has also developed the concept of “idea theft,” known technically as “breach of implied contract.” [IPBiz: This is under state law and requires an "implied contract."] As so often happens in Hollywood, you may pitch an idea or submit a spec script to a producer in hopes that they will produce your idea. Even though ideas are “as free as the air,” if you disclose an idea to a producer under circumstances which suggest that there was a mutual understanding that you would be paid in exchange for your idea, an “implied” agreement arises between you and the producer with regard to the idea. If the producer later uses your idea without compensating you, then you would have a claim for idea theft or “breach of implied contract.” This is true despite the fact that you only submitted an idea, which would not be copyrightable. Breach of implied contract is an entirely different claim, based not in federal copyright law, but in state contract law.

A real-world example: Let’s say you wake up one morning with a great idea for a film about a child who grows up orphaned and penniless in the slums of India and as a teenager wins big on a television game show. Anyone else is free to dream up this idea independently and create their own work with that main idea. However, if you write a script based around your idea and someone else with access to your script writes a story that contains enough similar expressive elements (e.g., the infringer’s film segues between the present and the past to show how the main character knew the answers to a series of game-show questions, the infringer’s film contains similar characters and situations, etc.), then you would have a claim for federal copyright infringement.

Or let’s say that you are certain that your idea could be an Academy Award-winning film so you pitch it to a production company. The production company informs you that they are very sorry, but they are devoting all their resources to a blockbuster about flesh-eating vampires and are not interested in your touching tale of a young person’s escape from poverty. If, in fact, they turn around and make a film that centers around the idea of a child from the slums who wins a large jackpot on a game show, even if there are differences in the way the two films play out, you can make a claim for breach of implied contract (idea theft) and assert that they knew you expected compensation for your idea, but that they failed to pay you for its use.

This area of the law can be complex, so if you feel that a person or company may have used your work in creating their own, it may be helpful to consult an attorney who understands the applicable standards for similarity in the copyright and breach of implied contract contexts and who can evaluate your potential claims.

Monday, April 27, 2009

Turning patents into money

The Deal has a story including the text:

Michael Pierantozzi of iPotential: "Patent management used to be an afterhought. That's changing. There's been a transition from treating patents as legal assets to treating them as business assets." It's certainly not a new phenomenon, adds Pierantozzi. Executives have been warming to the notion of monetization for a decade or more. But the expense of shopping assets or conducting due diligence - which Pierantozzi says can run between $50,000 to $100,000 on a $1 million portfolio - is prohibitive. And advisers that can help facilitate a patent sale or companywide IP management strategy such as IPortfolio, ThinkFire Services USA Ltd., or the patent auction operator Ocean Tomo LLC are relatively new to the scene.

For his part, Pierantozzi has been knee-deep in IP management for years. He previously was a managing director in the IP licensing group at Hewlett-Packard Co. (NYSE:HPQ), which as we've reported previously, was early to the table of IP monetization. In fact, the IPotential leadership team is stacked with former corporate heavyweights, including founder and chief executive Ron Epstein, who previously was director of licensing for Intel Corp. (NASDAQ:INTC), and president Joe Chernesky, who was director of IP business for The Boeing Co. and held several roles in Intel's IP organization.

Hmmm, did the Wright Brothers or Chester Carlson view patents as "legal assets"?

***See also

Robert S. Bramson on "carrot licensing":

Carrot licensing is much more about licensing technology than licensing patents. In
carrot licensing, the threshold question is whether the potentially licensable
technology (not the patent) will enable the licensee to make a new, better or
cheaper product? The follow-on question is whether the technology can be
perfected and marketed in a reasonable time, at a reasonable cost, and with a
reasonable probability of success?
In carrot licensing, the patent is the "handmaiden" of the licensable technology and
serves two useful purposes:
1. The patent serves as a vehic1le, in a portfolio mining operation, for locating
potentially valuable underlying technologies. Patents are used for this purpose,
because there is usually not a good machine searchable database of technologies,
so searching patents is the second best approach. In fact, searching patents for
licensable technologies may on occasion be somewhat misleading because the
patent is usually not written as a technical description for a licensing program. It
may represent an early stage of the technology, and not the stage that is available to
license. The patent also may not do a good job of describing what is important
about the technology in general (as opposed to describing the "invention" covered
by the patent). This is why getting good and early input about the technology from
the inventor or other knowledgeable person is so important.
2. The patent may provide protection from competition to the licensee (or potential
licensee) of the technology. If the licensee is successful in the marketplace with the
licensed technology, and its competitors can freely copy its improved products, the
technology is a lot less valuable than where there is good patent coverage to keep
competitors away (or force them to adopt inferior solutions).

Carrot licensing will usually involve an exclusive license to the licensee. This is
the case because the licensee is highly unlikely to devote the time, money and
effort to develop the licensed product, unless it has exclusivity.

Edison in the Boardroom

Qualcomm to pay Broadcom $891 million to settle patent dispute

Yahoo Tech News reported: Chip maker Qualcomm Inc. said late Sunday [26 April 09] it will pay Broadcom Corp. $891 million over four years to settle a longstanding dispute over patents and royalties.

The company said it will pay $200 million of the settlement in the quarter ending June 30. The agreement dismisses with prejudice all litigation between the companies, including overseas, with Broadcom agreeing withdraw its complaints to the European Commission and the Korea Fair Trade Commission.

In terms of the "patent reform" movement, Jaffe and Lerner in Innovation and Its Discontents had praised Qualcomm as a model of good patent behavior. The magnitude of their misunderstanding should now be apparent. Maybe Congressman Berman should redact Jaffe's testimony before Congress.

see also

Qualcomm smoked at CAFC. Jaffe and Lerner really got it wrong.

The Magnitude of the Jaffe/Lerner Patent Misunderstanding Examined

Sunday, April 26, 2009

It's the battery, stupid!

Within an article titled Report: Hanging on to Old Notebooks a Bad Idea, one has

For example, most firms don't think about battery replacement as a cost issue, but it happens. The average is about 300 recharge cycles, meaning one or two years' lifespan before a new battery is needed. Most companies don't take that into the overall cost equation.

Sikahema'd again

John Molloy at ZDNet on an altered internet post relating to Microsoft:

You know what? This is the Internet and this sort of stuff SHOULDN'T happen. So for your edification here is a link to the Google Cache of the original article:


And if that goes down here is a link to a pdf of the original article:


And here is a link to the sanitized version:


But probably isn't worth the effort as it seems to have Microsoft Marketing written all over it.

IPBiz: this is the internet and this sort of stuff happens all the time.

Some previous posts:

Holy Sikahema, Batman; Obama agenda disappears from the internet?!?

Page 54 of the Poshard Ph.D. thesis: a real problem as to plagiarism

Cheap fast food may not be good for you...

So many internet posts are about lists. Within Big Macs and Fries: What You Pay Per Calorie, one has a list of certain fast foods, grouped in terms of (dollars) per (100 calories). The somewhat obvious punchline:

Looking at the cost per 100 calories of some items underscores what nutritionists have been saying for years: The cheapest calories typically aren't the healthiest.


But then again, Lemley asserted that "copying" isn't asserted in most patent infringement cases.


Mike Masnick (TechDirt) takes on Gary Odom (PatentHawk)

An April 24 post at TechDirt tited 28 More Companies Sued Over Grouped Toolbars Patent begins:

You may recall last summer that we wrote about Gary Odom (as known as Patent Hawk) who has been known to stop by our site here to throw around an insult or two (nice guy!). It seems that Odom, who had previously worked with Microsoft, doing prior art research for its patents, had decided to turn around and sue Microsoft for having software toolbars that take different toolbar items and group the items together (stunning innovation, there). It later turned out that he may have violated his contracts in suing Microsoft.

That case is still ongoing, but why stop with just suing one company? Especially when that company is big and has lots of lawyers. Why not sue 28 other companies over the same patent. Amusingly, when Joe Mullin from IP Law & Business called Odom to comment, Odom refused, saying: "You're a hack job, man." Always a pleasant guy, that Odom. However, Odom had no problem discussing at length the lawsuit on his own blog -- amusingly referring to himself in the third person, and (this is great) offering his own "expert" opinion on the validity of his own patents and lawsuit. Very credible.

Mike has invoked Joe Mullin before. See Masnick and Lemley-isms. Separately, Mike omitted mention of previous interactions between Odom and Mullin. See for example Blogging as antidote to Sikahema effect?

The comments to the April 24 post are of interest, starting with:

Obviously this guy is right. He had zero to do with the patents, produced nothing of importance to society, and is a lawyer.

Give him all the money he wants.
But Odom isn't a lawyer. Although not a lawyer, he does conduct prior art searches, and has something to do with patents.

Another comment links to an earlier TechDirt post, analyzing commenters:

I think angry dude == stv == mls == Ronald J. Riley == dorpus
are they all the same person ?

Nah, they each have their own distinct personalities -- and they all come from unique IP addresses. Well, MLS goes through phases where he reverts to being an Anonymous Coward or pretending to be others (even me, at times).

angry dude just throws insults and lies. He never adds anything remotely of value, and if you call him on it, he gets even more insulting. He claims to hold a patent, but never will show us what it is. Actually, he once claimed to own many patents, and then years later, claimed to have just received his first patent. So, his credibility is what it is.

stv calls me a shill repeatedly, and when confronted with actual evidence, suddenly runs and hides. By his own definition of a shill, he is a much bigger shill than I am. He posted once that a shill was anyone who only took one side on an issue. He seems to fit that to a T.

MLS is an IP lawyer, and goes through phases where he pretends to be an unbiased "elder wise man" who will correct "errors" here. But he has been caught repeatedly in logical inconsistencies. When he first showed up, he actually did add some useful counterpoints to the conversation. I think he means well, but he hasn't come across folks who disagree with him who actually have evidence behind their positions, so he's not quite sure how to deal with it. Lately, he's reverted to name calling and insults like the others. It's too bad.

Ronald Riley is a well known "character" convincing independent inventors to give him money in order to protect their interests. Whether or not he actually does so is a pretty open question. He's good at getting press for himself. He's not so good at actually making an argument or presenting evidence however.

dorpus stays out of patent debates, and prefers to focus on throwing non sequitors and vaguely insulting or threatening comments on random posts. Occasionally he's been known to threaten the lives of famous individuals.

You also left out Willton, who's a law student who tends to act as a stand-in for MLS at times. Willton also (I believe) means well, though it clearly frustrates him that some of us aren't as bought into the concept of the patent system as he is. He's bet his future livelihood on the patent system, so it's a little understandable that he has some cognitive dissonance when presented with evidence of problems with the system.

See? They're all different. MLS and Willton both mean well, and at times add value. stv, RJR and angry dude just throw insults and logically impossible claims that are easily proven false.

**Some other posts relating to Masnick-->

Mike Masnick again

**Some other links on the Odom matter

Joe Mullin's Patent Litigation Weekly: Inventor Gary Odom Sees Infringers Everywhere [wherein Alison Frankel plumps Mullin's column and blog: The Litigation Daily will be linking weekly to Mullin's column, which offers a true aficionado's view of significant developments in IP litigation that may not have crossed the national radar. If you practice patent law, you have to check it out.]

At Patent Litigation Weekly (April 13-17), one has

Odom has never created a product based on the '592 patent, nor has he accused any of the 30 companies he's sued of copying his ideas. Is it fair for Odom to demand money from small businesses—or any businesses, for that matter—when he doesn't even claim to have contributed to their success? "Infringement doesn’t require copying," says Goldstein. Very true. "If they are in fact infringers, why should their size allow them to infringe with impunity? I've said we would work with them."

If Mullin would stop sucking Lemley-isms, and read the patent statute, he would know "copying" is irrelevant in infringement.
If the accused product (or process) falls within the scope of a valid claim, that's infringement, whether or not the infringer "copied" or even knew of the claim. [IPBiz covered this before.]

Mullin's qualifications on patent law, from his blog: I graduated from UC Berkeley Graduate School of Journalism. My BA, also from Berkeley, is in History.

Saturday, April 25, 2009

Flap over Lord Monckton testifying before Congress

Those who have followed "patent reform" know about how Congressman Berman declined to allow critics of patent reform to testify before Congress. A similar matter has arisen in the discussion of climate issues.

From ClimateDepot:

UK's Lord Christopher Monckton, a former science advisor to Prime Minister Margaret Thatcher, claimed House Democrats have refused to allow him to appear alongside former Vice President Al Gore at a high profile global warming hearing on Friday April 24, 2009 at 10am in Washington. Monckton told Climate Depot that the Democrats rescinded his scheduled joint appearance at the House Energy and Commerce hearing on Friday. Monckton said he was informed that he would not be allowed to testify alongside Gore when his plane landed from England Thursday afternoon.

“The House Democrats don't want Gore humiliated, so they slammed the door of the Capitol in my face,” Monckton told Climate Depot in an exclusive interview. “They are cowards.”


“The Democrats have a lot to learn about the right of free speech under the US Constitution. Congress Henry Waxman's (D-CA) refusal to expose Al Gore's sci-fi comedy-horror testimony to proper, independent scrutiny by the House minority reeks of naked fear,” Monckton said from the airport Thursday evening.

One recalls how "patent reform" advocates pushed the "97% patent grant rate" urban legend shamelessly, but were silent when its underpinnings were shown to be false.

See also

Howard Berman and patent reform

More activity in lithium battery litigations

An IPBiz reader noted that a re-examination certificate was issued on 22 April 09 on Armand's patent titled CATHODE MATERIALS FOR SECONDARY (RECHARGEABLE) LITHIUM BATTERIES [6,514,640]. See 90/008,205.

According to a document filed 22 Dec 2008, claims were amended.

As a footnote, LBE "replaced" Michel Armand in the Stanford lab of Robert A. Huggins when
Armand left for France. Initial work was on Croft's graphite/CrO3 "intercalation" compound, which was
determined to be a physical mixture of graphite and Cr308. Armand had reacted this material
with n-butyl lithium.

Note: "Issues And Challenges Facing Rechargeable Lithium Batteries," J. -M. Tarascon and M. Armand, Nature, 414, 359-367 (2001).

See also

Order issued in UTexas(Goodenough) v. Valence case on lithium batteries

FAX only?

IPBiz notes text in a recent IAM post:

I was somewhat baffled when calling multinational company DuPont this afternoon. Trying in vain to speak to a member of its IP group about speaking at the upcoming IP Business Congress on green IP issues, I was informed by a very friendly and profusely apologetic receptionist that any correspondence concerning conferences must be submitted to the office via fax. Yes, you read correctly - fax. You can imagine my bemusement: not only was the company suggesting that I use a somewhat outdated method of communication, but also quite possibly the least environmentally friendly one.

A judge in NJ Superior Court "prohibited" transmission of documents by email, but ok'd transmission by fax.

Apple willfully infringed '291 snooping patent

A jury in ED Texas has found that Apple willfully infringed US 6,405,291 titled Predictive snooping of cache memory for master-initiated accesses with abstract:

When a PCI-bus controller receives a request from a PCI-bus master to transfer data with an address in secondary memory, the controller performs an initial inquire cycle and withholds TRDY# to the PCI-bus master until any write-back cycle completes. The controller then allows the burst access to take place between secondary memory and the PCI-bus master, and simultaneously and predictively, performs an inquire cycle of the L1 cache for the next cache line. In this manner, if the PCI burst continues past the cache line boundary, the new inquire cycle will already have taken place, or will already be in progress, thereby allowing the burst to proceed with, at most, a short delay. Predictive snoop cycles are not performed if the first transfer of a PCI-bus master access would be the last transfer before a cache line boundary is reached.

Alden Malley at AppleInsider wrote in a post OPTi wins $19 million from Apple in patent lawsuit:

Begun in January 2007, the lawsuit is a classic example of a firm suing based on very broadly worded patents designed to catch out and collect royalties from as many firms as possible, regardless of whether they were actually aware of the patent. OPTi had filed a similar suit against AMD despite its making processors Apple and other companies don't use; it also dropped all of its original manufacturing and sales businesses in 2003 to concentrate on its lawsuits as a primary source of income.

Apple for its part had tried to thwart the plaintiff by claiming that the patent was invalid both through prior art and through the obviousness of the techniques involved. Judge Charles Everingham of the Marshall court rejected both arguments in his verdict, letting the patent stand.

IPBiz note to Malley: They are called patents because they are publicly available. Because they are publicly available, "knowledge" or awareness is NOT required to find infringement. HOWEVER, Apple went down for willful infringement, meaning Apple was aware of the patent. Also, "obviousness" requires some prior art, even if one invokes common sense.

LA Times criticizes NIH stem cell policy

In an editorial on April 25, the Los Angeles Times wrote:

The new NIH rules would not allow the use of federal money for studying stem cell lines derived from embryos created specifically for research. Such research might involve attempts to produce genetically matched organs for transplant or stem cell lines that reflect racial and ethnic diversity.

The NIH's stance is inherently contradictory. The viewpoint of those who oppose embryonic stem cell research is that it ends human life by destroying embryos made up of just a few cells. Under that argument, the act would be just as objectionable whether those embryos already were slated for destruction or not; their being "surplus" doesn't change that. And if the destruction is not morally objectionable, then it shouldn't matter whether the embryos were created for research or another purpose.

The Obama administration sidesteps the issue by saying correctly that its draft rules reflect public opinion. That's a pragmatic approach, but not one informed mainly by science. The rules are best seen as a good start that might move public consensus toward a more comprehensive stem cell policy that includes supporting work on any stem cell lines created under ethics guidelines.

The Times does not discuss the failure of all scientists to effect human SCNT after years of research. While seeking to address a "contradiction" in the moral argument, the Times ignores the "nuts and bolts" issue. Separately, is the softball thrown towards the "pragmatic" approach.

The californiastemcellreport (which has not yet commented on the LAT piece) did remark on the possibility of pulling some CIRM grants, based on a lack of progress, in a post titled
CIRM: Some Scientists' Grants to be Pulled:

According to the transcript, he [John Robson] said,

"....(W)e get annual reviews, progress reports and our science officers go through those. And it's not a perfunctory exercise. They go through these things quite carefully. If there's things they don't understand or if it doesn't look (like) there's been much progress, they call up the PI (principal investigator) and they say, 'What's going on? You know, we've seen these experiments being done. What's your progress?' And then we work from there.

"If it turns out that there's no progress, we can cut the grant. I suspect that's going to happen. Some people are going to lose some grants."

The fact that Hwang did not achieve human SCNT has been known since December 2005, and in the intervening years, nothing has changed. If what's your progress? is the standard, there may be a lot of CIRM grants revoked.

Judge Posner finds glass sex toy obvious

In Ritchie v. Vast Resources, we have Judge Richard Posner (of the 7th Circuit, sitting by designation at the Federal Circuit) reviewing a decision on obviousness in a case on sex aids arising from the Middle District of Florida.

Judge Posner sets up the case:

The plaintiffs own a manufacturer, called Know Mind Enterprises, and the
defendant, doing business under the name Topco Sales, is another manufacturer. Both
firms produce what the parties call “sex aids” but are colloquially referred to as “sex
toys.” A more perspicuous term is “sexual devices,” by analogy to “medical devices.”
The analogy lies in the fact that, like many medical devices (thermometers for example),
what we are calling sexual devices are intended to be inserted into bodily orifices, albeit
for a different purpose.

The devices are generally in the shape of rods of various curvatures and are
made out of rubber, plastic, glass, or some combination of these materials. Until the
plaintiffs began manufacturing their patented sexual devices, glass sexual devices were
made out of soda-lime glass, the most common form of glass. The plaintiffs’ patent
(U.S. Patent No. Re 38,924, the 2005 reissue of No. 6,132,366, filed on April 1, 1999)
claims a “sexual aid…fabricated of a generally lubricious glass-based material
containing an appreciable amount of an oxide of boron to render it lubricious and
resistant to heat, chemicals, electricity and bacterial absorptions.”

There is an interesting citation within the case:

That glass has the properties that the patent claims for it, and one can see how
those properties (even resistance to electricity, see M. Klintschar, P. Grabuschnigg & A.
Beham, Death from Electrocution During Autoerotic Practice: Case Report and Review
of the Literature, 19 Am. J. Forensic Med. Pathology 190 (1998)) might enhance the
utility of sexual devices made out of it. Nevertheless, though the plaintiffs’ invention is
useful (setting aside any qualms that one might have about sexual devices in general),
it is not patentable if it would have been “obvious,” not of course to the average person
but to a person having the relevant technical skills.

While LBE was at Stanford, a grad student did die from a fire initiated by the use of an
autoerotic device, and was enshrined on the front pages of the Stanford Daily.

From a legal perspective, the patent holder was pushing a "secondary consideration"
(commercial success) and the defendant was pushing the obviousness of the substitution
of one kind of glass for another. One readily sees how this will come out:

Given that it has commercial value, as heavily emphasized by the plaintiffs, and given that Pyrex,
made originally as we said from borosilicate glass, has been sold by Corning for almost a century
(and it was sold under other names beginning in 1893, when borosilicate glass was first invented), to call
its use in a sexual device “obvious” may seem the triumph of hindsight over insight.

Judge Posner observes:

The commercial success of a product can have many
causes unrelated to patentable inventiveness; for example, the commercial success of
an “invention” might be due not to the invention itself but to skillful marketing of the
product embodying the invention.

"Skillful marketing" underlies the success of many innovations, which innovations
may arise from inventions of different magnitudes. The presence of "skillful marketing" may or
may not negate the significance of the invention.

The nub of this issue-->

Among the inventions that the law deems obvious are those modest, routine,
everyday, incremental improvements of an existing product or process that confer
commercial value (otherwise they would not be undertaken) but do not involve sufficient
inventiveness to merit patent protection. This class of inventions is well illustrated by
efforts at routine experimentation with different standard grades of a material used in a
product—standard in the sense that their properties, composition, and method of
creation are well known, making successful results of the experimentation predictable.
This is such a case.

Judge Posner cites to KSR and to MuniAuction:

This case thus exemplifies the Supreme Court’s analysis in KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398 (2007). “When a work is available in one field of endeavor,
design incentives and other market forces can prompt variations of it, either in the same
field or a different one. If a person of ordinary skill can implement a predictable
variation, § 103 likely bars its patentability. For the same reason, if a technique has
been used to improve one device, and a person of ordinary skill in the art would
recognize that it would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.” Id. at 417 (emphasis
added). (The last sentence describes our case to a tee.) There was, the Court
continued, no need for the district court to “seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can take account of the
inferences and creative steps that a person of ordinary skill in the art would employ.” Id.
at 418. See also Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318, 1326–27 (Fed.
Cir. 2008).

And Ball Aerosol is cited in the next paragraph:

Another case on point is Ball Aerosol & Specialty Container, Inc. v. Limited
Brands, Inc., 555 F.3d 984, 992–93 (Fed. Cir. 2009): “The combination of putting feet on
the bottom of the candle holder and using the cover as a base for the candle holder was
a predictable variation.… The combination of a cover-stand and feet on the bottom of
the candle holder was obvious to try in an effort to minimize scorching, as the
combination would further raise the bottom of the candle holder above the supporting
surface. The resulting, and desired, decreased heat transfer between the candle holder
and the supporting surface from the combination would have been entirely predictable
and grounded in common sense.”

And of substitution cases:

And if more is required to make our point, there is the venerable case of
Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248 (1851), cited approvingly in KSR Int’l
Co. v. Teleflex Inc., supra, 550 U.S. at 406, 415, which denied patentability to an
invention consisting of the substitution of a clay or porcelain knob for a metallic or wood
knob in a doorknob (the doorknob itself, as distinct from the knob on the end of it, being
an assemblage of knob, shank, and spindle). Other substitution cases in which
patentability was denied on grounds of obviousness include Stratoflex, Inc. v. Aeroquip
Corp., 713 F.2d 1530, 1535–38 (Fed. Cir. 1983); Brunswick Corp. v. Champion Spark
Plug Co., 689 F.2d 740, 749-50 (7th Cir. 1982), and Lyle/Carlstrom Associates, Inc. v.
Manhattan Store Interiors, Inc., 635 F. Supp. 1371, 1381-83 (E.D.N.Y. 1986), aff’d, 824
F.2d 977 (Fed. Cir. 1987). These decisions, too, support our conclusion that the
judgment must be reversed with instructions to dismiss the suit.

**Separately, on Judge Posner and plagiarism-->

Velvel on Posner on plagiarism

**Of the Ritchie case, see also

Lubricious and Protective Coatings for Glass Containers by Paul W. L. Graham, which technical article undercuts Judge Posner's comment about lubricious. [Posner--> By “lubricious”—a word whose primary meaning, appropriate for a sexual device,
is “lecherous”—the patent means only “slippery,” which is the secondary meaning of the word.

Slick Glass Dildos are an “Obvious” Improvement!

Friday, April 24, 2009

BusinessWeek flubs discussion on patents

In an article in BusinessWeek titled The U.S. Is Losing Its Lead in Patents , Michael Arndt writes

Last year, for the first time, the U.S. Patent & Trademark Office issued more patents to foreigners than to Americans.

IPBiz suggests that "last year" is not the first time non-US entities received more US patents than US entities.

Odd text within the BW article:

American patent awards may be dropping for another reason. "A lot of U.S. companies are cost-conscious and are not filing for patents on everything," says Christopher J. Renk, an IP attorney at Chicago law firm Banner & Witcoff. Instead, they are seeking protection only on breakthroughs that seem most valuable and therefore worth the two years it takes to procure a patent. First, for most people, it takes more than two years. Second, what does this have to do with the value of the patent or the decision to patent?


The role reversal is due mostly to an upsurge in patents to inventors in Japan, South Korea, and China, and a decline in the U.S. for the second year in a row. All told, American inventors received 92,000 patents in 2008, down 1.8% from the year before and a rise of just 1.4% over the past decade. Meantime, patients [sic] issued to foreigners rose 4.5%, to 93,244, in 2008 and 28.6% since 1998.


While the U.S. is still the biggest recipient of patents—and holds the most valuable ones, according to analysis by Ocean Tomo, a firm that measures the worth of intellectual property—the slippage comes amid recent reports that show the U.S. losing its edge when it comes to innovation. Among them: a study by the National Association of Manufacturers and Boston Consulting Group that ranks the U.S. eighth, with Singapore, South Korea, and Switzerland at the top.

"If I were a policymaker, I would be paying attention to this," says Wendi Backler, global leader of BCG's intellectual property practice.

IPBiz: snore.

After USAir incident, FAA releases data on animal/plane collisions

Remember the fuss to get the USPTO to make issued patents available on the internet? It took the USAir incident to get the FAA to release data on airplane/animal collisions, which showed (among other things):

The data shows that since 2000, John F. Kennedy International Airport in New York reported at least 30 accidents where damage was either substantial or the plane was actually destroyed. Sacramento International Airport in California reported at least 28 such accidents.

One can view National Wildlife Strike Database ON-LINE, which was compiled by Embry-Riddle Aeronautical University, Prescott, AZ.

The Bradenton Herald noted: Planes struck birds an average of 20 times a year at Sarasota-Bradenton International Airport since 1990, but none resulted in human fatalities,

Thursday, April 23, 2009

Another university president accused of plagiarizing his Ph.D. thesis

In 2007, IPBiz noted a report in the Birmingham News: Jacksonville State University officials are investigating other newspaper columns that appeared under the byline of school President William Meehan after a second instance of plagiarism was brought to their attention..

On 22 April 2009, WAAY-TV reported: A strange accusation against the president of Jacksonville State University.

President William Meehan is being accused of plagiarizing his doctoral dissertation at the University of Alabama.

A lawsuit claims that he copied part of another professor's work around the time he became JSU president in 1999.

Jacksonville State says no substance has been found in the charges, and no action by the university will be taken against him.

Such an accusation would parallel that against Glenn Poshard of Southern Illinois University, who ultimately was found to have inadvertently plagiarized portions of his Ph.D. thesis. In the Poshard case, there were assertions that the charge of plagiarism was politically motivated, although evidence of plagiarism was present.

Previous IPBiz post:

More academic plagiarism

**An AP story gives further detail. The "thesis plagiarism" charge arises in the context of a civil suit against Meehan by one R. David Whetstone, relating to biological samples. Presumably, the "theft" of words in the past would establish a pattern, relating to the assertion by Whetstone. The text below shows another similarity to the Poshard case: both Ph.D. theses were on remarkably "light" topics. From AP (JAY REEVES):

The allegations about his dissertation are meant to bolster claims in a civil lawsuit accusing Meehan, a former biology teacher, of wrongly seizing a collection containing some 55,000 plant samples from professor R. David Whetstone.
Donald Stewart, an attorney for Whetstone, filed arguments Friday about Meehan's 118-page dissertation in an attempt to show Meehan has a habit of taking academic work done by others. Stewart argued that Meehan's dissertation was copied from one completed three years earlier by Carl Boening at the University of Alabama.

Boening wrote about applications for sabbatical leaves by University of Alabama faculty from 1986 through 1996. Meehan wrote about the same topic, but looked at what happened at Jacksonville State from 1988 through 1998.

Meehan credited Boening in his paper, saying his study "replicated the investigation conducted by Boening." Rather than just citing some of the same articles and studies as Boening, Meehan in places used wording that was almost identical to Boening's.

In one section, Boening wrote about the work of researcher J.S. Fairweather: "Fairweather concluded that faculty and administration must deal with the enormous emphasis placed on research and the rewards tied to it before achieving a re-emphasis on teaching."

Meehan wrote: "Fairweather concluded that faculty and administrators must deal with the enormous emphasis placed on research and rewards tied to it before achieving a reemphasis on teaching."

Boening said in an interview Wednesday that there are "striking similarities" between his 127-page paper and Meehan's, but he declined to say whether he considered it plagiarism.

"Obviously, since it is my work that has been allegedly plagiarized, I can't be neutral in any assessment," said Boening, chairman of the division of behavioral studies at Shelton State Community College in Tuscaloosa.

Jonathan Bailey, runs the Web site, was hired by Whetstone to review the papers and concluded that "extensive portions" of Meehan's dissertation were plagiarism of Boening's work.

Bailey, who is not an academic, analyzed the two papers using a computer program that looks for similarities in writing. He submitted a report claiming 38.7 percent of the second chapter in Meehan's paper was copied from Boening's.

Both the Meehan case and the Poshard case involve allegations of copying related to discussion of PAST work, which issues also arose in the Ohio University plagiarism scandals. One of the most serious examples of plagiarism in the Poshard thesis came on page 54, wherein Poshard copied from a book to summarize the state of prior art. In the Alabama case, there is an overlap of the timeline between Boening and Meehan. In the Poshard case, text from a summary of older work was "extrapolated" (ie, copied) to describe a later time period.

Although these events come to the public eye in the context of plagiarism, they separately indicate the fluffiness of content of some Ph.D. theses. There really is "no there there."


Patty Vaughn, in an article titled: Lawsuit claims JSU president copied thesis noted the underlying present legal issue:

A biology professor at JSU, David Whetstone, is suing Jacksonville State for ownership of several plant specimens in a JSU herbarium. (...)

The case about the herbarium, which has been ongoing since 2003, came about after Meehan acquired many of the plants in the school herbarium. Whetstone claims the plant specimens are his.

“He [Whetstone] thinks many of the specimens that have been collected that reside in the JSU herbarium belong to him,” Hobbs said.

Of the plagiarism: As a new twist in the case, Whetstone’s attorney has brought up new plagiarism charges about Meehan’s dissertation that he wrote at the University of Alabama in 1999, drawing comparisons between that and another dissertation that was written in 1996 by a student.

According to a statement from JSU, “President Meehan has been clear from the beginning that he used Mr. Boening’s dissertation as a spring board for his own, and Meehan’s dissertation duly credits his predecessor’s work.”

In the separate Poshard case, Poshard did mention the source of the work which he copied onto page 54 of his Ph.D. thesis. The problem was he didn't have a footnote to it on page 54, or anywhere near page 54. A reasonable reader would not have known that text on page 54 was copied from somewhere else. Similarly, in the Laurence Tribe matter, the copied source was mentioned "somewhere" in Tribe's book, just not on the page with the copied text. Again, a reader would not have known the copying occurred.

Problems presented by the backlog of unexamined patent applications

In discussing aspects of the patent application backlog problem, IPWatchDog notes:

For better or for worse, investors are not always able to make their own independent judgments with respect to the quality of an underlying technology that is the basis for a start-up company. What this means is that investors typically look for other ways to gauge whether the underlying technology is sound, including looking to the United States Patent Office for some kind of independent verification from a neutral party regarding the merits of the technology. While the Patent Office cannot and does not vouch for commercial feasibility, when you obtain a patent it should be at least some evidence that the technology or innovation included in the application is unique to some level, at least based on the references that could reasonably be obtained with a competent patent search.

This is one reason we want the Patent Office to do a credible job in examining applications. Another reason is simply to have a database of valuable information, so that anybody (venture capitalist or other) can go to the file of issued patents and have a reasonable expectation of finding things that are useful, novel, and nonobvious. The Lemley approach of "rational ignorance" gives no value to the societal benefit of having a trustworthy repository.

See also

Wednesday, April 22, 2009

CSIRO gets settlement in WiFi wars

The Australian reported on 22 April 09:

AUSTRALIA'S top science agency has walloped some of the world's biggest industrial giants in the US patent courts to bring the country a pay check worth up to $1 billion over the next five to 10 years.

The CSIRO has won its long-running battle to enforce a patent on technology used in Wi-fi connections that have become virtually ubiquitous in laptops and other devices around the world.

A lot of IT folks were defendants: The CSIRO's case dates back to 2005 when it sued wireless component provider Buffalo for intellectual property breaches. A further 12 companies including Dell, Intel, Microsoft, Nintendo, Fujitsu, Toshiba, Netgear, Buffalo, D-Link, Belkin, SMC, Accton, and 3Com joined the case after CSIRO lawyers won an injunction preventing it from selling its products.

See previous IPBiz posts, including:

Nobel plagiarism?

MonstersAndCritics says: A decade-old plagiarism case could be reopened in Spain against 1989 Nobel Literature Prize winner Camilo Jose Cela, the daily El Pais reported 21 April 09.

**In passing, note a "dreamworld" discussion of plagiarism in the Massachusetts Daily Collegian, titled
No 2nd chance in the case of plagiarism

Newsflash: Joe Biden, who committed plagiarism at Syracuse Law, got a second chance and is currently Vice-President.
Glenn Poshard, who committed plagiarism in his Ph.D. thesis at SIU, is currently president of SIU. Ward Churchill, who committed plagiarism and cited to his own papers, ghost-written under another name, did win his lawsuit against CU, and Stanley Fish, writing in the New York Times, said Churchill's transgressions were no big deal. Of course, there's also Laurence Tribe, admitted plagiarist, who is still at Harvard Law. Of course, those were all academic plagiarisms. But Nicole Sobel is a student, just as Biden and Poshard were student plagiarists.

What planet does Steve Fox inhabit?

Tuesday, April 21, 2009

Tate & Lyle loses (again) on sucralose at ITC

IndyStar reported: Heartland Sweeteners said April 20 the United States International Trade Commission unanimously upheld an initial ITC ruling that found Heartland did not infringe Tate & Lyle patents for sucralose.

See previous IPBiz post:

CBS Radio and others sued in ED Texas over US 6,577,716

RadioInk reports: Aldav LLC has filed suit against Clear Channel, Cumulus, Citadel, CBS Radio, Entercom, Saga, Cox Radio, Univision, Regent, Gap, Radio One, and the Aloha Station Trust, claiming that, by replacing advertising and other content in their online streams, the broadcasters are infringing on a patent on which Aldav holds a license.

US 6,577,716 (titled Internet radio system with selective replacement capability) has a first claim:

A method for replacing a portion of the content of a radio broadcast that is to be distributed over the Internet, the method comprising: receiving the content of a radio broadcast that has been transmitted by a radio station; identifying, following the step of receiving, a marker associated with the content that is indicative of a change in the type of the content of the radio broadcast from a first content type to a second content type; replacing, following the step of identifying and when the second content type is of a type that is applicable to listeners located within the geographical range of the radio broadcast but unlikely to be applicable to individuals located outside of the geographical range of the radio broadcast, a portion of the content of the received radio broadcast that is of the second content type with content of a selected content type that is applicable to individuals located outside the geographical range of the radio broadcast, said marker being used to determine a point in time at which the portion of the content of the second content type is to be replaced with content of the selected content type, wherein said step of replacing produces a revised content; and providing, following the step of replacing, the revised content of the radio broadcast for distribution over the Internet.

Update. Also on advertising -->

The Most Interesting Pitchmen in the World

IPBiz notes that reading a law review by Mark Lemley evokes Clara Peller's “Where’s the beef?” and the response of IP academics brings back images of John "Mikey" Gilchrist.

Monday, April 20, 2009

Stephanie Meyer (Twilight) accused of "idea infringement"?

Hollyscoop reports:

Heidi Stanton, who studied alongside Meyer at Brigham Young University in Utah claims Meyers stole the vampire story from her because it's very similar to a short story she wrote while they were attending college together.

Stanton filed her lawsuit against Meyer in Utah last Tuesday, April 14th alleging idea infringement. She states in the papers, "Quite frankly, I was shocked when I began watching the movie with my husband last week. I immediately told him that she got that idea from me! I wrote a fictional short story with the same ideas when we were in college together."

IPBiz: Idea infringement?

Not to worry, EOnline says: Stephenie Meyer a Plagiarist? "A Hoax, Pure and Simple" and adds:

Most important, a spokesman for Summit Entertainment says, "There is absolutely no truth to the rumor about any interruption to the filming of New Moon. The production of the film has not been stalled or interrupted in any way and filming continues as planned.
"Additionally, after consulting with Stephenie Meyer and her publishers, speculation about any claims of plagiarism are also completely not true. This is a hoax, pure and simple.
"The Internet, for all of its assets, can still be an easy breeding ground for such hoaxes and detractors, and we hope that people will not be duped so easily, and use appropriate diligence before perpetuating everything or anyone that claims to have information about the Twilight franchise."

IPBiz thought the Stanford Law Review was the breeding ground for hoaxes, like Gary Boone as the inventor of the integrated circuit...

Bodog dispute settled?

from PR Newswire: "While the Morris Mohawk Gaming Group was not the judgment debtor, the MMGG is the exclusive licensee of the "Bodog" brand within the region and, as such, activities that impact the brand necessarily impact our businesses. We are pleased to have worked constructively with 1st Technology and its principals to bring an end to this protracted dispute. This resolution will provide certainty and will also allow us to continue to enhance our technology base for online gaming in order to provide our users with unfettered access to the best technology," said Mr. Alwyn Morris, Chief Executive for the Morris Mohawk Gaming Group. 1st Technology's Dr. Scott Lewis commented on the agreement, stating, "We are pleased to have finally resolved this dispute, and applaud Mr. Morris for his proactive and constructive approach."

See previous IPBiz posts including:

From an interview with Calvin Ayre:

CALVIN AYRE: Credit has to go to Alwyn Morris and the Morris Mohawk Gaming Group for that. As you know, the MMGG has the exclusive license to the Bodog brand for online gaming in the US.

It is a matter of public record that default judgment was obtained against a long-defunct supplier in Costa Rica that, among other things, provided domain registration and management services. They were – regrettably – allowed to include “Bodog” in their corporate name to make registration of domains simpler. In retrospect, that was obviously a mistake. So, rightly or wrongly, when the patent trolls got their judgment, they also seized control of the domains that were registered by the supplier.

The MMGG had nothing to do with that lawsuit or the domain seizure – they were never a party to that process in any way. However, since the supplier was never going to have the resources to buy the domains back and since the US business had already been transitioned to the MMGG at that point, the only party that had any interest in the domains or that case was always going to be the MMGG.

It’s not surprising, but the details of the brand licensing model aren’t necessarily understood by players or suppliers, so there was ongoing market confusion about who was subject to this judgment and what its impact might be. Alwyn made the right business decision, I believe, by acquiring the domains and removing this distraction.

Of trolls and things -->

CALVIN AYRE: Honestly, I don’t waste energy thinking about them any more – they never really had much of an impact on the organization while I was still involved. The US business had already been taken over by the MMGG under their brand license deal by the time this happened, so I was already winding down my transition obligations anyway.

It’s no secret, though, that their “business model” is designed to take advantage of the overworked patent office and the insanely litigious environment in the US. Just try to find an article about patent trolls that isn’t written by a contingency-fee lawyer, which doesn’t use the words “extortion” or “blackmail” to describe the practice – the Harvard Business Review had a good piece about it in June of last year, actually.

There’s no question that it’s difficult not to be emotional when you’re basically being blackmailed, but ultimately until the US addresses the flaws in the patent system, the cancer will go untreated. Companies just need to adapt their development models and their legal structures to accommodate the threat and to mitigate any potential risk. Railing against it is useless.

Yes, and the Harvard Business Review had a 2005 article with a heading "Plagiarize with pride."

The CAFC considers patent pools in Princo case

In Princo v. ITC, the CAFC discussed patent pools:

Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 40-44 (1984) (O’Connor, J., concurring in judgment)
(“Tie-ins may entail economic benefits as well as economic harms, and . . . these
benefits should enter the rule-of-reason balance.”); see also Herbert Hovenkamp, Mark.
D. Janis & Mark A. Lemley, IP and Antitrust § 34.4, at 34-20.1 (2009) (“Typical
procompetitive benefits [of patent pools] include the clearing of blocking positions, the
advantages flowing from integration of complementary technologies, and the cost
savings from avoiding litigation.”).


Philips I recognized that patent pools could generate procompetitive efficiencies
in the form of reduced transaction costs, reduced litigation expenses, and most
importantly the overall “procompetitive effect of reducing the degree of uncertainty
associated with investment decisions.” Philips I, 424 F.3d at 1192-93. These
efficiencies are not limited to situations in which a potential pool patent is, in fact, a
blocking patent. As we noted in Philips I, one of the major potential efficiencies of
package licensing in the context of innovative technology is the avoidance of
“uncertainty that could only be resolved through expensive litigation.” Id. at 1198; see
also id. at 1192


In short, because standardization of technology and the development of patent pools are
likely to occur
early in the development of a given technology market, requiring stringent proof of the
destruction of future competition, with its accompanying imponderables, would
effectively immunize from misuse manufacturers who agree to suppress competition
from alternative technologies.

**In passing-->

Randy Picker on the Google Book Settlement

Attendance at San Diego trade show snags Brazilian company

As a warning to foreign companies, note that attending trade shows in the
US can create specific jurisdiction.

The CAFC noted in SYNTHES v. GMReis of specific jurisdiction:

We have, however, outlined a three-factor test for specific jurisdiction, which
considers whether (1) the defendant purposefully directed its activities at residents of
the forum, (2) the claim arises out of or relates to the defendant’s activities with the
forum, and (3) assertion of personal jurisdiction is reasonable and fair. Elecs. for
Imaging, 340 F.3d at 1350; see also Burger King, 471 U.S. at 472–73 (citing Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 774 (1984), and Helicopteros Nacionales, 466
U.S. at 414).


We think the district court erred, however, in its ruling that it lacked specific
jurisdiction over GMReis. Applying the first factor of our three-factor test for specific
jurisdiction, we conclude that GMReis purposefully directed its activities at parties in the
United States. The following undisputed facts support this conclusion. On behalf of
GMReis, Mr. Lecumberri brought locking bone plates into the United States from Brazil.
As representatives of GMReis, Mr. dos Reis and Mr. Lecumberri displayed those items
at the GMReis booth at the 2007 AAOS Meeting in San Diego, California. In addition, in
their declarations, Mr. dos Reis and Mr. Lecumberri admitted that they attended the
AAOS Meeting because GMReis wanted to display its products to attendees of the
trade show. In fact, in its motion to dismiss, GMReis noted that its participation in the
2007 AAOS Meeting was part of its international sales effort. Together, these deliberate
contacts support a finding that GMReis purposefully availed itself of the United States.
As for the second factor, Synthes’s claim of patent infringement arises out of
GMReis’s activities in the United States. Synthes’s complaint alleges that GMReis has
been, and still is, making, using, offering for sale, selling, and/or importing into the
United States products, systems, and/or apparatuses that infringe the ’744 patent, all in
violation of 35 U.S.C. § 271(a). Synthes states in the complaint that GMReis is subject
to personal jurisdiction because GMReis directly and through agents imported into the
United States, and/or offered to sell, locking plates that infringe Synthes’s ’744 patent.
Synthes also states that GMReis displayed the locking plates at the 2007 AAOS
Meeting for the purpose of generating interest in infringing products, to the commercial
detriment of Synthes. Synthes’s claim of patent infringement, therefore, arises directly
out of GMReis’s bringing the locking bone plates into the United States, displaying them
at the 2007 AAOS Meeting in San Diego, and trying to generate interest in GMReis
products among attendees of the trade show.

The problem for the Brazil company -->

However, while these facts do tend to show
that GMReis’s sales efforts were purposefully not directed at U.S. residents, they do not
change the undisputed facts that GMReis purposefully directed its travel with the
sample locking bone plates to the United States and then displayed those products at a
trade show in the United States attended by U.S. residents. GMReis was present in the
United States through two of its employees (including its Chief Executive Officer), both
of whom conducted company business at the trade show.

See also

Sunday, April 19, 2009

"60 Minutes" favorable to cold fusion on April 19, 2009

A videoclip and a transcript of the favorable piece (titled Cold Fusion Is Hot Again ) appear on the cbsnews website.

Within the text: Scientists today like to call it a nuclear effect rather than cold fusion. At least 20 labs working independently have published reports of excess heat - heat up to 25 times greater than the electricity going in.

The interested reader should review the 2004 IPBiz post Scientific Mafias, which includes the text:

These problems, Hagelstein and McKubre argue, are all
tied to the 1989 DOE review. While the report's
language was measured, pointing out the lack of
experimental evidence, "it was absolutely the
intention of most of the framers of that document to
kill cold fusion," McKubre says.

**Comment to IAM:

As an interesting coincidence, "60 Minutes" aired a favorable piece on "cold fusion" on April 19. The way the media covered this informs the coverage of patent reform. "To resonate with the readership" the initial work was over-hyped, and then the work was overkilled, and now, after 20 years it's back. You might ask Fleischman what he thought of the media coverage or simply view the end of the clip. "To heighten the contrast" mainstream media has depicted the need for patent reform in dire terms, with the current situation blocking innovation. The real story would not sell as many newspapers.

New directions in the iPhone?

CNET notes:

The blog reports that Apple has published two patent applications in the past few weeks that focus on features that incorporate motion and gesture user interfaces.

The published applications are:



Coskata receives unfavorable Office Action on clostridium (11/441,392)

On 24 Feb 09, Coskata was mailed a non-final Office Action, rejecting all pending claims in the case involving Clostridium
(application 11/441,392). Rejections included 101, 112, and 102.

Separately, some of their bioreactor applications have published. For example, 20090029434 (12/111734 ), titled MODULAR MEMBRANE SUPPORTED BIOREACTOR FOR CONVERSION OF SYNGAS COMPONENTS TO LIQUID PRODUCTS, with abstract:

A modular membrane supported bioreactor for anaerobic conversion of gas into liquid products including membrane module(s) having a plurality of hollow fibers packed across a cross sectional area of the membrane module in a direction transverse to the axis of the membrane module; a membrane vessel for retaining the membrane module(s) at least partially submerged in a process liquid and isolated from ambient atmosphere; and a gas supply conduit operably connected to the hollow fibers for supplying a process gas to the hollow fiber lumens. The gas supply conduit enables the formation of a biofilm on the outer surface of the hollow fiber wall by interaction of microorganisms with the process gas and the production of a liquid product that mixes with the process liquid.

This application claims priority to U.S. patent application Ser. No. 11/781,717, filed Jul. 23, 2007.

**Coskata is mentioned in an 16 April 09 BusinessWeek article titled The Biofuel Bubble :

But everything will happen more slowly than many venture capitalists say. And the probable winners will be those with deep pockets and patience, such as Royal Dutch Shell (RDS), BP (BP), DuPont, agriculture giant Archer Daniels Midland (ADM), or the rare startup with revenues from another business, such as making drugs. For the rest, the demonstration biorefineries now being built are more like high-stakes auditions than a step in the process of becoming commercial biofuels producers. "The business model that makes sense for most of us is demonstrating the technology and getting it into the hands of those who have balance sheets," says Bill Roe, CEO of biofuel producer Coskata in Warrenville, Ill.

[Clicking on the link seems to induce a video clip about Verenium.]

Of "ethanol from algae", BW writes:

Scores of other companies are also jumping into algae. For most, though, the bubble will burst. "There's a huge amount of hype in algae," warns NREL's Jim McMillan. Experts at BP have looked over the entire field of algae competitors and found none they deemed worth investing in. "If they can make it work, it would be fabulous," says BP's Philip New. "But I think there are still fundamental issues with algae." Not least, it's challenging to grow it in open ponds and troughs, where it's exposed to bird droppings, fungi, bacteria, and voracious microbes that feed on algae "like a pack of jackals at a buffet," says Fred Tennant, vice-president of business development at PetroAlgae (PALG) in Melbourne, Fla.

BW separately notes oil companies aren't that interested in ethanol:

That's one reason for the growing interest in newer, non-ethanol biofuels. "Oil companies really don't want to invest a lot in ethanol infrastructure. They'd much rather develop a different molecule," says Nathanael Greene, biofuels expert at the Natural Resources Defense Council, an environmental group. Whether that molecule is a type of alcohol called butanol (which DuPont and BP are working on) or other hydrocarbons more similar to gasoline, these fuels are compatible with existing refineries, pipelines, and vehicles. So some startups are designing microbes that can turn sugar from any source into diesel, gasoline-like molecules, or jet fuel. Colorado's Gevo, for instance, has an innovative business plan to add technology to corn ethanol factories to change the end products into fuels that are closer to gasoline or diesel.

**Separately, from Biomass Magazine:

According to Wes Bolsen, chief marketing officer and vice president of business development for Coskata, the company is progressing with plans to develop a 100 MMgy cellulosic ethanol plant in Clewiston, Fla., which would annually convert 1 million tons of sugarcane waste and bagasse into ethanol. The estimated $400 million facility could begin production in 2012, pending USDA loan guarantees and a grant from the Florida Energy Office.