Tuesday, June 30, 2009

See no evil?

A piece from "The Huntsville Item" from 20 Dec 2007 states:

The Huntsville Item will move into the new year continuing its efforts for quality local news with Dennis Garrison as publisher.

Garrison will assume his new role effective today.

In June 2009, about one and a half years later, Editor & Publisher noted that :

an article ran in The Huntsville (Texas) Item on June 25, that is almost identical, word for word, to an article earlier initiated by the Financial Planning Association. However, the Huntsville Item article carries the byline of Brian Smith as an Item correspondent. Publisher Dennis Garrison confirmed to E&P that Smith is a financial adviser for the local office of Global Financial Partners and writes a regular column for the paper, but does not receive a fee.

Now here is the punchline, from Editor & Publisher:

Garrison said he did not know about the earlier column and planned to speak with Smith. "I would need to talk to Brian and suggest to him not to do that in the future," Garrison said. "He pretty much writes it and sends it in. I really don't know where he picked it up."

IPBiz notes that student journalists who do things like this typically get fired, rather than getting suggestions.

Abbott loses big time to J&J over Humira

After five hours of deliberations on June 29, an ED Texas jury found Abbott’s actions in selling Humira, in view of J&J's patent position, to be willful and determined J&J is owed $1.17 billion in lost profits and $504 million in royalties. Abbott plans to appeal the verdict, which is the largest in US history. [The invention was developed at NYU.]

One recalls that an earlier verdict against Microsoft, of $1.52 billion in the Alcatel-Lucent case, was overturned on appeal.

WSJ noted:

The two companies have been engaged in patent disputes over the competing therapies and a newer product, which belong to a class called anti-tumor necrosis factor, or anti-TNF, all drugs with billions of dollars in yearly sales.

Kim Taylor, president of Centocor Ortho Biotech, said in a statement that the company was "particularly gratified that the jury recognized our valuable intellectual property, finding our patent both valid and infringed" and will continue asserting its patent rights for its rheumatoid arthritis therapies.

Humira is Abbott's biggest seller, accounting for $4.5 billion in sales, or 15% of the company's revenues last year.

See also

In passing

IPBiz had its 5 year anniversary on June 29, putting up 5,041 posts in that time period.

Blogging from Toronto at SSI-17 for post 5042.

Saturday, June 27, 2009

Hot time at Bridgewater, NJ High School?

266 degrees Farenheit?



I. Graphite/Chromium trioxide

A. Background

Our first publication showed that grahite/chromium trioxide prepared by the Croft method was NOT an intercalation compound of graphite but rather a physical mixture of graphite and Cr3O8. X-ray diffraction was definitive on the point, but other lines of proof appeared in the paper. Ten years elapsed without much commentary on the point, until a certain worker in Poland claimed there was an intercalation compound prepared by the Croft method. Various papers appeared at this point.

B. Science issue

Inability of reviewers to understand the significance of a Cu K-beta peak in x-ray radiation in a diffraction experiment performed with filters rather than a monochromator.

C. Relevant papers

L.B. Ebert, R.A. Huggins, J.I. Brauman, The nature of the chromium trioxide intercalation in graphite, Carbon, Volume 12, Issue 2, April 1974, Pages 199-208
J.G. Hooley, Monica Reimer, The chromium trioxide-graphite system, Carbon, Volume 13, Issue 5, 1975, Pages 401-404
W. Metz, H. Meyer-Spasche, Reactions in the system graphite-CrO3-acetic acid I. , Synthetic Metals, Volume 1, Issue 1, October 1979, Pages 53-61
L.B. Ebert, L. Matty Jr., Intercalation compounds of graphite: Chemical identity and reactivity, Synthetic Metals, Volume 4, Issue 4, May 1982, Pages 345-361
J.O. Besenhard et al, Characteristics of molybdenum oxide and chromium oxide cathodes in primary and secondary organic electrolyte lithium batteries. Part II. Transport properties , Solid State Ionics
Volume 8, Issue 1, February 1983, Pages 61-71

J.M. Skowroński, The dilute intercalation compounds of graphite with chromium trioxide, Carbon, Volume 24, Issue 2, 1986, Pages 185-194,
L.B. Ebert, J.C. Scanlon, X-ray diffraction of Croft's graphite/chromium trioxide material, Carbon, Volume 25, Issue 3, 1987, Pages 437-439
J. M. Skowro ski, The influence of a CrO3---graphite intercalation compound on the discharge characteristics of an MnO2 cathode in alkaline electrolyte, Journal of Power Sources, Volume 25, Issue 2, February 1989, Pages 133-140
J.M. Skowroński, New evidence for intercalation of graphite with CrO3 , Carbon
Volume 27, Issue 4, 1989, Pages 537-548 [Some of the reasons for difficulties in interpretation of the X-ray results are considered in relation to graphite intercalation compounds with CrO3 (CrO3-GICs) prepared by the dry method. This paper presents the changes in the X-ray diffraction patterns resulting from the preparation conditions, an insufficient purification of CrO3-GICs and their thermal treatment. The usefulness of indirect methods of examining the compounds with unclear X-ray data is discussed.

L.B. Ebert, J.C. Scanlon, Does chromium trioxide form an intercalation compound with graphite at 200°C?, Carbon, Volume 28, Issue 1, 1990, Pages 253-255
J.M. Skowroński, K. Jurewicz, Anodic oxidation of CrO3-graphite intercalation compounds in sulfuric acid, Synthetic Metals, Volume 40, Issue 2, 1 April 1991, Pages 161-172
J. M. Skowro ski, Distribution of intercalates in CrO3---H2SO4-graphite and CrO3---HClO4-graphite bi-intercalation compounds, Synthetic Metals, Volume 95, Issue 2, 15 June 1998, Pages 135-142
E. Fr ckowiak, J. M. Skowro ski, Passivation of zinc in alkaline solution effected by chromates and CrO3–graphite system, Journal of Power Sources, Volume 73, Issue 2, 15 June 1998, Pages 175-181
Jianyong Liu, Zhaoxiang Wang, Hong Li, Xuejie Huang, Synthesis and characterization of Cr8O21 as cathode material for rechargeable lithium batteries, Solid State Ionics, Volume 177, Issues 26-32, 31 October 2006, Pages 2675-2678
Shih-Fong Lee, Yung-Ping Chang, Li-Ying Lee, Enhancement of field emission from carbon nanotubes by post-treatment with a chromium trioxide solution, New Carbon Materials, Volume 23, Issue 2, June 2008, Pages 104-110

II. Poly (carbon monofluoride

A. Background

At Stanford, second moment calculations on the F-19 NMR absorption of CF were used to show carbon monofuoride had a boat conformaton, rather than the previously reported chair conformation and the results were published in J. Am.Chem Soc. Although the second moment was calculated using double integration techniques, a later paper, (appearing after I left Stanford) also published in J.Am.Chem.Soc, suggested our result was wrong, because we used only single integration. I (naively) thought it would be an easy matter to correct the factually incorrect assertion about the single integration.

But no, J. Am. Chem. Soc. had an editorial policy not allowing third party commentary on published articles, and as to the second J.Am.Chem.Soc paper, I was a third party. J.Am.Chem.Soc. would not allow correction of an error about what the Stanford work did. Years went by, but I finally had a chance to state the issue, and correct the misstatement in the second J.Am.Chem.Soc. article, curiously in a symposium proceedings of a symposium I did not attend.[3] But the story did not end there.

I was appointed to the “Ethics Task Force” of the American Chemical Society, where I had a chance to bring up the issue of journals issuing corrections. As a lawyer, I participated in a litigation wherein an uncorrected error in J.Am.Chem.Soc. produced a multi-million dollar patent case. [4] Nevertheless, even with this example, the ACS (and JACS) would not alter the policy. Mistakes last forever. Legal publications suffer the same problem. [5]

B. Science issue

The inability of a journal to correct a mistake in a published paper leads to later workers overlooking key issues, here the large second moment of the F-19 NMR absorption, which cannot be reconciled with the chair model.

Earlier discussion:


In my own experience, I came across one episode which illustrated the inability of the scientific
community to deal with each side of the coin. In a paper by D. L. Wertz and M. Bissell, Energy &
Fuels, 1994, 8, 613-617 on the diffraction of the graphene layer ["(002)"] peak in bituminous coals, the
authors stated that the diffraction peak was "far too intense to be caused by amorphous scattering and far
too broad to be caused by conventional diffraction." The authors cited three papers to justify this
assertion. Of three papers relied upon to prove the statement, which was the key assumption in the
paper, one was non-existent, one was irrelevant and one supported a contrary position. Following use of
the key assumption, the authors utilized an undefined short range interference function to manipulate the
x-ray diffraction data of the paper. The modified data led to a remarkable conclusion: that analysis of a
peak related to interference between aromatic entities (sp2 hybridized carbon) could predict the amount
of aliphatic carbon (sp3 hybridized carbon). Pertinent prior work on diffraction of "poorly crystalline"
carbonaceous systems with sp2 and sp3 carbon was ignored.

I contacted the editor of the journal. Of the non-citation and mis-citation issues, nothing was
done, and in fact the mis-citation was repeated in a later paper.

From L.B. Ebert, A Tale of Conflicting Models;
THE COMING SKIRMISH ON THE IP FRONTIER, Intellectual Property Today, p. 20 July, 2001

The Journal of the American Chemical Society has a policy of not allowing mistake correction by third parties, and the present author has direct experience with this policy. This author wrote a paper on the calculation of the second moment of the fluorine nuclear magnetic resonance (NMR) of solid poly (carbon monofluoride), which led to the conclusion that the structure contained an infinite array of cyclohexane boats, rather than the expected chairs, J. Am. Chem. Soc., 1974, 96, 7841, which boat structure was reproduced in the Cotton and Wilkinson, 4th edition. Five years later, different workers, who also published in JACS, criticized the calculation, on the basis that it involved a single integration, rather than a double integration. Although the allegation had no basis in the text of the 1974 paper, and was untrue, the journal (which did not dispute the truth of what this author said) would not allow a comment to be published. Five years later, this author did publish a comment, which appeared in the Proceedings of the Workshop on Electrochemistry of Carbon, pp. 595-607, Electrochemical Society Proceedings Series, Volume 84 No. 5 (1984). (Poly(carbon monofluoride) is a useful cathode for high energy density lithium batteries.)

C. Relevant papers

L. B. Ebert, J. I. Brauman and R. A. Huggins, J. Am. Chem. Soc., 1974,
96, 7841.
Y. Kita, N. Watanabe and Y. Fujii, J. Am. Chem. Soc., 1979, 101,
L.B. Ebert, Electrochemistry of intercalation compounds of graphite, Proc. - Electrochem. Soc.; (United States); Journal Volume: 84-5; Conference: Workshop on the electrochemistry of carbon, Cleveland, OH, USA, 17 Aug 1983, pp. 595-607
Peter Kamarchik Jr., John L. Margrave, Poly(carbon monofluoride): a solid, layered fluorocarbon, Acc. Chem. Res., 1978, 11 (8), pp 296–300

Thomas R. Krawietz and James F. Haw, Characterization of poly(carbon monofluoride) by 19F and 19F to 13C cross polarization MAS NMR spectroscopy, Chem. Commun., 1998 2151 [One such study concluded that (CFx)n is an array
of cis-trans-linked boats, with all fluorine in axial positions. A
more recent student used similar methods to support a transtrans-
linked chair structure, and that conclusion is supported by
the available X-ray data. (…)samples of (CF0.87)n
and (CF1.12)n The most
intense peak in both spectra, at 187 ppm, is assigned by
comparison to the fluorines on C9 and C10 of either trans- or
cis-perfluorodecalin, each at 186 ppm. Therefore, the 187
ppm resonance in Fig. 1 is confidently assigned to C–F

P. Lam (Caltech-CNRS) and R. Yazami, Physical characteristics and rate performance of (CFx)n (0.33 < x < 0.66) in lithium batteries, Journal of Power Sources, Volume 153, Issue 2, 28 February 2006, Pages 354-359
Jérôme Giraudet (Université Blaise Pascal ) et al. Comparative performances for primary lithium batteries of some covalent and semi-covalent graphite fluorides Journal of Power Sources, Volume 158, Issue 2, 25 August 2006, Pages 1365-1372
Special issue including selected papers from the 6th International Conference on Lead-Acid Batteries (LABAT 2005, Varna, Bulgaria) and the 11th Asian Battery Conference (11 ABC, Ho Chi Minh City, Vietnam) together with regular papers.
Jérôme Giraudet (Université Libre de Bruxelles), Solid state NMR studies of covalent graphite fluorides (CF)n and (C2F)n, ,Journal of Physics and Chemistry of Solids, Volume 67, Issues 5-6, May-June 2006, Pages 1100-1105 [See also J. Phys. Chem. B, 2006, 110 (24), pp 11800–11808]
Proceedings of the 13th International Symposium on Intercalation Compounds, Clermont-Frerrand, France, 6-9 June, 2005

H. Fujimoto, Structure analysis of graphite fluoride by the Rietveld method, Carbon Volume 35, Issue 8, 1997, Pages 1061-1065
Lawrence B. Ebert , Robert A. Huggins and John I. Brauman, Reaction of antimony pentafluoride with poly (carbon monofluoride) , Materials Research Bulletin, Volume 11, Issue 6, June 1976, Pages 615-619

PLANO, Texas, May 11, 2009 /PRNewswire/ -- EaglePicher
Enhanced Coverage Linking

Medical Power, LLC, a leading supplier of batteries for implantable medical devices, today announced the introduction of its enhanced Lithium Carbon Monofluoride (Li/CFx) battery technology with end-of-life capability superior to currently available products in the market. The technology includes a proprietary new Elective Replacement Indicator (ERI) / End of Life (EOL) Indicator to accurately predict battery depletion six months in advance, potentially requiring fewer replacement surgeries over time.

III. The problem of ignoring the literature

A. Background

In parts I. and II., examples were given wherein there was an engaged debate of relevant science issues, although the dialog was imperfect, either through the inability of reviewers to recognize basic science facts or through the unwillingness of scientific editors to correct errors.

A different pathology arises when authors/reviewers/editors simply choose to ignore relevant published papers.

B. Science issues

When authors/reviewers/editors ignore relevant published papers, great waste occurs.

C. Relevant published papers

For example, see J. M. McBride, The hexaphenylethane riddle, Tetrahedron
Volume 30, Issue 14, 1974, Pages 2009-2022.


The correct quinoid structure for the dimer of triphenylmethyl radicals was proposed in 1904. By 1906 there existed three independent lines of evidence which support this structure: acid-catalyzed aromatization, para-halogen lability, and radical chain autoxidation. Despite this evidence, and the skill and insight of the numerous chemists who studied the system,the incorrect hexaphenylethane structure was assigned to the dimer until 1968. This paper attempts to explain how this could have happened by tracing the evolution of triphenylmethyl theory and of attitudes toward the evidence from 1900 until 1968.

Hot off the press: the paper by Cecil D. Quillen, Jr. and Ogden H. Webster, Continuing Patent Applications and
Performance of the U.S. Patent and Trademark Office—One More Time, The Federal Circuit Bar Journal, 379 (2009)

which begins: This Article is the fourth by the authors reporting the effect of continuing
patent applications on performance of the United States Patent and Trademark
Office (“USPTO”) and updates our earlier studies through the USPTO’s 2008
fiscal year (“FY”) and through 2007 for the European and Japanese Patent
Offices (“EPO” and “JPO,” respectively).1

manages not to cite the variety of papers criticizing the first three papers in the series.

, 4 CHI.-KENT J. INTELL. PROP. 108 (2004):

In recent proposals for patent reform made by the Federal Trade Commission and by the National Academy
of Sciences, there has been discussion of the possibility that the grant rate of patents by the United States
Patent and Trademark Office [USPTO] is high compared to that of other industrialized countries, including
that of Japan and those of Europe. 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%. Although the
actual grant rate at the USPTO is typically in the range 62% to 68%, Quillen and Webster suggested the
higher numbers based on an analysis of continuing applications (including continuations, divisionals, and
continuations-in-part). The present paper suggests that the analysis of Quillen and Webster is flawed both
legally and methodologically, and that recent work by Clarke, which places the corrected grant rate at less
than 75%, is more accurate.


The need to be "up to date" in Shepardizing cases is well recognized within the legal community.14 In the
present situation pertaining to patent grant rates, the impact of the first paper by Quillen and Webster,
which asserted a 97% patent grant rate, extended later in time than the second paper by Quillen and
Webster which withdrew the 97% patent grant rate and posited (among other numbers) an 85% patent grant
rate. Thus, the Harvard Law Review15and the chief patent counsel of Intel16 referred to the conclusions of
the first Quillen and Webster paper in the year 2003, after the conclusions had been modified in 2002.17


The patent grant rate studies of Quillen and Webster are flawed and the published grant rate numbers
should not be relied upon in making arguments about patent reform. The models of Quillen and Webster
erroneously assume that all continuing applications are repeated attempts to patent the invention of the
parent application. The methodology of Quillen and Webster, even as modified in 2002, involves double
counting of patents and artificially inflates the patent grant rate. The approximations of Clarke are more
reliable than those of Quillen and Webster.

See also 4 CHI.-KENT J. INTELL. PROP. 186

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.


John R. Allison and Emerson H. Tiller, The Business Method Patent Myth, 18 Berkeley Tech. L.J. 987,
at footnote 139 of QWII: "adjusting assumptions from previous study to correct a probable flaw, but still
producing an estimated allowance rate much higher than reported, and higher than in Japan and Germany."


In a different area, in the context of the plagiarism issue involving Professor Laurence Tribe
of Harvard Law School,20 Professor Allan Dershowitz suggested there was a “cultural
difference” between sourcing in the legal profession and other academic disciplines.21
One would hope that there is no cultural between law and other academic disciplines as
to the correction of published text which is indisputably wrong.22

**Of non-citation of work of a PRIOR researcher see

"Trolls on top?" or how not to cite relevant work?

**Quillen Appendix

Friday, June 26, 2009

UAlabama system tightens its IP policy

In a sign of the times, the University of Alabama system has altered its IP policy to make it more "pro-university." The Birmingham Biz Journal reports:

The system amended its patent policy on June 19 to explicitly claim ownership of all inventions produced using its resources on its three campuses. The system’s first patent policy update since 1986 also made students contractually bound to its policy as a condition of their enrollment.

One recalls the earlier problem at Huntsville involving Nektar:

UAlabama/Nektar/Shearwater: Bayh-Dole gone bad?

Caltech, Sony settle patent case on digital cameras

Bloomberg reports: CalTech sued six digital-camera companies, including Canon Inc. and Nikon Corp., seeking royalties on 11 patents related to digital-camera technology. Some of the inventions relate to pixel sensors that improve electronically transmitted images and came from research CalTech did for the National Aeronautics and Space Administration, according to information on the patents.

In separate June 23 filings, Nikon and Panasonic Corp. denied CalTech's infringement claims, said the patents are invalid and accused the school and inventors of misleading the U.S. Patent and Trademark Office in order to obtain the patents. Canon, Olympus Corp. and Samsung Electronics Co. haven't yet responded to the complaints, according to the court docket.

Michael Shore, a lawyer for CalTech with Shore Chan Bragalone in Dallas, said the university reached basic settlement terms with another party in the case and court papers may be filed in two to three weeks.

CalTech is no stranger to patent litigation, having sued entities in ED Texas:


Glaxo loses to Teva on Seretide in Ireland

Reuters notes: The ruling from the Commercial Court in Dublin is a victory for Teva Pharmaceutical Industries, whose Ivax unit had challenged the combination patent for Seretide (Advair in the US). The patent relates to the combination of the active ingredients salmeterol and fluticasone propionate, and expires in 2013. This ruling applies only in Ireland and Glaxo has other patents. Would one say that this was a "bad" patent, because a court found it invalid?

See also:


Samsung prevails against Sharp in ITC case

The Los Angeles Times noted:

In a notice posted on its Web site today, the ITC said unlicensed Sharp LCD devices, including display panels and modules, and LCD televisions made overseas that use Samsung's patented invention should be banned from the U.S.

Good and bad patents: ask Bob Dylan

The 271Blog covered a session on NPEs at the IAM IP Business Congress and noted:

It was a very engaging session, which left some serious questions needing answers. Specifically, the public perception of NPE's has currently been couched in terms of "bad" patents being asserted to extract "illegitimate" licensing fees. No doubt this practice exists and is a horrific drain on resources (even Acacia/Altitude disparaged such opportunistic litigation, claiming it "makes little business sense", but commented that it is a "dwindling" practice). However, what about the "good" patents? Suppose a particular NPE patent is independently reviewed by scientists and lawyers and is objectively determined to have innovative merit. What then?

Of course, what are "good" patents and what are "bad" patents?

From Bob Dylan:

Good and bad, I define these terms
Quite clear, no doubt, somehow.
Ah, but I was so much older then,
I'm younger than that now.

Thursday, June 25, 2009

Obviousness sinks pro se appellant at CAFC

In the Mettke case, KSR comes up to favor the appellant, who loses anyway:

Mr. Mettke is correct that the selective hindsight combination of
references that show various elements of the claim generally does not suffice to
establish obviousness. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)
(“[A] patent composed of several elements is not proved obvious merely by
demonstrating that each of its elements was, independently, known in the prior art.”).
But the Board’s analysis included more than a combination of disparate
references disclosing different elements, for the Board explained why Shah teaches the
very combination of elements that Mr. Mettke sought to claim.

**As to the number of references used, the CAFC noted

this prima facie case of obviousness is not rebutted by the
number of citations alone.

**Of commercial success:

We note that when the commercially successful
device is the claimed invention itself, there is a presumption of nexus. See Demaco
Corp. v. F. Von Langsdorff Licensing Ltd., 851 F.2d 1387, 1392 (Fed. Cir. 1988).
However, the Board found that Mr. Mettke failed to meet his burden because he has not
shown that the alleged commercial success is due to the claimed invention.

Rinehart is cited:

Taking all of the evidence in its entirety, see In re Rinehart, 531 F.2d 1048, 1052
(CCPA 1976), the Board’s conclusion of obviousness based on the combination of
Exhibit E, Exhibit F, and Shah was correct, in that it was based on findings supported by
substantial evidence and not rebutted by objective evidence.

**Two comments at PatentHawk are of interest:

Actually, Mr. Mettke's argument is sound except it doesn't relate to the claim. He argues "accessing the internet" is not disclosed. He's right. Unfortunately for him, "means for accessing the internet" are disclosed.

Method steps should never have been allowed into product claims, even under 112 6th.

This man is yet another example of why.


My kingdom for a continuation...

The concept of "write-through"

A story in the LA Times discusses plagiarism charges leveled against Chris Anderson and mentions the concept of "write-through" :

On Tuesday [June 23] afternoon, Chris Anderson, editor in chief of Wired magazine and author of the 2006 bestseller "The Long Tail," received an e-mail warning that his new book, "Free: The Future of a Radical Price," was to be challenged.

On the blog of the Virginia Quarterly Review, a leading literary journal, Waldo Jaquith was about to post the results of an examination into the book, which Hyperion will publish next month. Jaquith had found several passages in the book that appeared to closely match Wikipedia entries without crediting the online encyclopedia as the source. Anderson e-mailed right back.

Minutes later the story -- along with a mea culpa from Anderson -- was online under the headline, "Chris Anderson's 'Free' Contains Apparent Plagiarism."

The LA Times article gave Anderson's explanation for the problem:

This omission, Anderson says, was not deliberate. It was a mistake.

Typically, the passages Anderson took from Wikipedia would be accompanied by a footnote or end note in standard citation format. For Web pages, citations include a date and time -- a time stamp -- indicating exactly when the Web page was accessed. Anderson disagreed with his publisher about the citation format to use in the notes.

"I made the decision to nuke the notes because we couldn't come up with a compromise citation form," Anderson said by phone Wednesday afternoon. "I thought time stamps looked silly in books and my publisher insisted on time stamps. I made the decision to nuke the notes entirely -- and then to integrate the attribution into the text, which I -- " he took a breath, "then screwed up."

In an effort to take the information from Wikipedia and remix it in his own language -- a process Anderson calls a "write-through" -- several passages were left unaltered, and without any credit to Wikipedia. For Anderson, the worst part is that it was Wikipedia that was shortchanged, because the site has been the target of frequent criticism about its accuracy as a source.

IPBiz notes that there is a separate issue with Wikipedia. One doesn't know "who" wrote the entry in the first place. This enables a sort of self-plagiarism/ghost-writing thing, as was done by Ward Churchill (who had the audacity to ghost-write under someone else's name, praising Churchill. Whether the "someone else" was completely aware of the plan was unclear). Fark also discusses some of this problematic aspect of wikipedia, wherein one can ping pong between wikipedia and somewhere else.

See also

fark wrote: Incidentally, one of the more surprising things I discovered while researching the articles for this book is that a number of them exactly mirrored a Wikipedia entry on the same subject. I didn't find any exact copies of Wikipedia in the articles in this book, but the structure often was the same and used the same citations in the same places. If I had to guess, I'd say that half of all the "original" articles covered in this book are Wikipedia entry rewrites. If not more. It certainly makes me wonder about the rest of the articles I didn't research. Wikipedia accuracy concerns aside, that's just not cool. Or perhaps that's how the Wikipedia articles were generated in the first place. Due to the obscurity of certain details in some of the articles, and the fact that none of those details showed up in a Google search on the same subject, I am more inclined to believe reporters borrow heavily from Wikipedia, and not the other way around.



Tuesday, June 23, 2009

Post-grant oppositions: another pothole in the road for patent reform?

On June 22, the 271Blog posted on the IAM-sponsored meeting in Chicago-->

Today, IAM kicked off the IP Business Congress at the Four Seasons Hotel in Chicago. This morning’s sessions were quite packed, with an estimated 370+ people from various sectors of technology gathering to talk about IP valuation, prosecution and enforcement

Of US matters-->

Speaker: Todd Dickinson, Executive Director AIPLA. Broadly praised Kappos nomination, and discussed issues related to patent reform (opposition, damages apportionment, etc.). Despite legislative efforts, lots of reform has already come from the courts, and many of the previous issues are no longer as pressing. Getting through the backlog with be the greatest challenge for the USPTO; reviewing the “count” system for examiners may be necessary. Lots of polarization exists between stakeholders and PTO, and working through differences will be important for the future. Again, PTO work-sharing will be key – other offices (JPO) have already identified this issue as a top priority. End the potential for fee diversion. While it doesn’t get much attention, the Intellectual Property “Czar” position will be significant. Health care and “Green” technologies may receive special attention from the USPTO. While programs like the “peer-to-patent” program received some positive feedback, the PTO has no plans on renewing the program in the near future.

Of post-grant review ("opposition"), the IAM blog noted:

[Senator Jeff] Sessions is not happy with the post grant review aspects of the Act as they now stand. Last week there was a meeting between his team and members of Patrick Leahy's staff (Leahy, a Democrat, is the chairman of the Committee) to see if some compromise could be found. Things did not go well and no progress was made. There is talk now that this could see the Act put out to the long grass as the committee gets on with other things - not the least of which will be scrutinising President Obama's Supreme Court pick Sonia Sotomayor. David Kappos will also have to pass muster with the committee before he can begin work at the USPTO.

The proposal of "opposition" (an inspection of a product), when there is asserted knowledge of a defect in production (patent examination) flies in the face of teachings on quality by Deming. As LBE noted in 2007 in Post-Grant Opposition: a Bad Idea :

The patent "quality" issue is one of several motivating the reforms proposed within H.R. 2795, which will be much discussed in the coming months. In my opinion, the most direct approach is to end fee diversion, give the USPTO sufficient funds to do the job of examination, and then evaluate its performance. Adding on new responsibilities for the USPTO, without resolving the issue of resources for its core function, is questionable policy. In the specific case of patent oppositions, the addition of a product inspection step when there are foreseeable, identifiable remedies to the production itself violates the basic teachings of Deming.

***See also





***Background on the Judiciary Committee, from the Daily Kos -->

Here are the members of the Senate Judiciary Committee.

Democrats: Patrick Leahy, Chairman, Vermont; Herb Kohl, Wisconsin; Dianne Feinstein, California; Russ Feingold, Wisconsin; Chuck Schumer, New York; Dick Durbin, Illinois; Ben Cardin, Maryland; Ron Wyden, Oregon; Sheldon Whitehouse, Rhode Island; Amy Klobuchar, Minnesota; Ted Kaufman, Delaware; Arlen Specter, Pennsylvania

Republicans: Jeff Sessions, Ranking Member, Alabama; Orrin Hatch, Utah; Chuck Grassley, Iowa; Jon Kyl, Arizona; Lindsey Graham, South Carolina; John Cornyn, Texas; Tom Coburn, Oklahoma

Jefferson Beauregard Sessions III (hey, if the wingnuts insist on using President Obama's middle name) is only the ranking member temporarily. When the 112th Congress convenes, Grassley will take over the ranking member post (assuming he gets reelected) or the chairmanship if the Democrats manage to lose a net of 11 Senate seats. In 2012, the plan is for Sessions to take the ranking member spot on the Budget Committee while Grassley will give up his spot on the Finance Committee to take over on the Judiciary Committee. If you haven't guessed, Senators only get to chair or serve as ranking member one committee at a time. Additionally, there are term limits on the seats and the leadership position assignments are typically based on seniority.

***On Deming, the PatentHawk blog had a post. IPBiz agrees with the commenter who said:

Interesting, Hawk. But I don't follow the attempted segue from Deming's teachings to the failure to innovate. Deming certainly did not advocate staying stuck in ruts or NIMBY. He did teach that you can not reasonably manage that which you do not measure. What's the connection? Thanks.

It's separately true that Deming would say fix production rather than adding more inspection.

Monday, June 22, 2009

Kappos and IBM in May 2009

On May 8, 2009 Foley hosted a webinar in its Patent Nation Web Conference series titled, "IP Outlook in the Reform Era." The participants included Foley & Lardner attorneys Jonathan Spivey, Jon Dudas, Courtenay Brinckerhoff, and Sharon Barner, along with IBM's David Kappos, now indicated to be the nominee of Barack Obama for undersecretary at Commerce and Director of the USPTO. The webiner has been pushed at Patently-O on 21 June 09.

What's interesting is "what else" was going on around that time.

On May 7, 2009 , one got a look at IBM's US published application 20090119148, titled SYSTEM AND METHOD FOR ENHANCING PRODUCTIVITY, which included as Claim 1:

A method including:

defining, by a user, a time template including a plurality of predefined time intervals for scheduling meetings; and
applying the time template across a collaborative system.

On May 9, 2009, one had a post at slashdot:

Does anyone have a "reliable" source that says IBM fucked up?

In my little david vs goliath here, that's what I'm getting, and the page keeps being reverted. And here I'm thinking CowboyNeal is a reliable source...

In any case, if I lose, there are reliable sources for the "paper or plastic" patent [theregister.co.uk], the "but I only had soup" patent [informationweek.com], the offshoring patent [thestandard.com], the "who is going to poo next" patent [ito.com], the "terry is a boy, jeena is a girl" patent [slashdot.org], etc. And here's a comment on IBM's patent schizophrenia [blogspot.com]. And here's another comment on how IBM makes money by destroying value [halfsigma.com].

I have nothing against IBM or other patent trolls, I just want them to look in the wikipedia mirror to see if they are happy with who they are. This will only stop with a big streisand.

The slashdot post did not include OTHER discussions of problematic IBM patents and applications. Some mention on IPBiz includes:

IBM to withdraw second patent application on outsourcing (April 4, 2009)



And, of news coverage,


Sunday, June 21, 2009

Why is news coverage of patent reform so bad?

Ever wonder why news coverage of patent reform is so bad?

Back in April 2009, Joff Wild at IAM wrote, in the context of press coverage of IP:

So having said that, it is also important to stress that journalists can only learn if they are taught. If a story breaks at, say, 1.00 pm and your deadline is, say, 6.00 pm and you have to write, say, 500 words in a way that will make your story more appealing to the editor than the one your colleague is putting together across the desk (essentially, that means convincing the editor your piece will resonate with the readership more than the other one), then you only have so much time to do the research and to find out what is what. If you make a couple of calls and you get a "no comment", or a "I'll have to call you back", or someone starts spouting legalese at you - and, believe me, all three scenarios are extremely common - then you just do not have the luxury of spending an hour or two on the internet working out how a brand is different to a copyright. You just have to go with your hunch. That is the reality.

Turning the above text into real reality:

Journalists are taught to sell a story. They hype its conclusions, misconstrue study findings, take things out of context, and generally do whatever it takes to catch your eye to get you to read a story. Occasionally they go too far.
[from fark]

In the patent reform context, "catching the eye" is facilitated by talk of doom and gloom and the end of innovation.

Separately, one has an alignment of the business interests of the big IT folks (who need a particular patent landscape to do really well, a landscape different from that of big pharma) with the business interests of certain professors, who have books to sell and careers to promote. In this sense, much "news" on patent reform is really that of an Unpaid Placement Masquerading as an Actual News Article As fark would note, these are "news items" which are commercials in disguise. They're not necessarily bought and paid for in payola-type situations, but they amount to lobbying or book selling more than objective reporting of news.

An odd example of a propaganda item masquerading as "news" was the piece by Eli Kinitisch in Science on the rules on patent continuations. It was placed in the "news of the week" section, although it reflected no "news" which had happened in the past week (or month). More importantly, the piece was not accurate. although it probably caused many scientists to think negatively about the current patent system.
Kintisch article in Science challenged in Sept. 06 JPTOS

See also

To get the press to take the IP world seriously, the IP world must take the press seriously

Remember - the relationship between the IP world and the mainstream media is unequal

BUT as fark notes, mainstream media NEED news sources:

Nowadays cable news networks have to scramble to have something to talk about for twenty-four hours a day, even when nothing of important is going on. Sales departments are still selling advertisements, after all. Mass Media can't just run content made entirely of ads (with the possible exception of the Home Shopping Network). Something has to fill the space.

Over the years Mass Media has developed several methods of filling this space. No one teaches this in journalism school; odds are Mass Media itself hasn't given much thought to the process.

But the reality will always be: talk of impending tragedy, and solutions thereto, will inevitably beat out reasoned explanations of why things really are not collapsing around us.

[Remember Quillen and Webster's 97% patent grant rate and remember Eli Kintisch's "News of the Week"?]

**UPDATE. from Lazy Journalists are the Darlings of Corporations

Lazy journalists are great friends of the corporations. They are known as "armchair journalists" because they sit in comfort and rewrite press releases from politicians and corporations. To spice it up a bit, they dial a few numbers, get a few comments and call it a news story.

Patents: the Polynesians, Woody Brown, and Hobie Alter

The wikipedia entry for Woody Brown contains the following:

After the war [World War II], Brown served as a US government surveyor on Christmas Island. There he was fascinated by the speed of the Polynesian natives' twin-hulled outrigger canoes. Back in Hawaii he adapted the idea, using lightweight hulls and adding huge sails, and in 1947 built the Manu Kai ("Sea Bird"), probably the fastest sailing boat in the world at the time and now seen as the first modern, ocean-going catamaran. He did not patent the idea; Californian surfer Hobie Alter, who sailed on the Manu Kai, did so and made a fortune as a result.

In the world of patents, one can patent a thing (for example, a device or a composition) or a method, but one can't patent an idea.

What Hobart ("Hobie") Alter patented in US 4,021,874 was a boat hull; claim 1 states:

A closed boat hull, comprising:

a main body shell consisting of a vacuum-formed synthetic plastic sheet and having a heat-activated adhesive on its interior surfaces except along the gunwale portion of said shell;

a layer of fused synthetic plastic foam secured to the interior surfaces of said main body shell by said heat-activated adhesive except along the gunwale portion of said shell;

a plurality of longitudinal and transverse upstanding main body ribs integral with said foam layer;

a deck shell complementary to said main body shell consisting of a vacuum-formed synthetic plastic sheet and having a heat-activated adhesive on its interior surfaces except along the gunwale portion of said shell;

a layer of fused synthetic plastic foam secured to the interior surfaces of said deck shell by said adhesive except along the gunwale portion of said shell, with the underside of said foam layer being adhered to the upper ends of said main body ribs, the foam affording sufficient buoyancy to render the boat hull unsinkable and also providing rigidity for said boat hull without utilizing other than said main body and deck shells; and

with the gunwale portions of said shells telescopically interfitting and being interconnected at longitudinally spaced points by fastening means extending through said gunwale portions.

See also information at hobiecat

**Note Philly Channel 12 broadcast on 20 June 09 the film: Of Wind and Waves: the Life of Woody Brown.

Canada's CBC: "Plagiarism did occur, and it wasn’t detected"

IPBiz covered plagiarism issues in a flap over a report on copyright by the Conference Board of Canada in an earlier post.
[ see The Great Canadian Cut-and-Paste Caper]. What is refreshing to see is, that in the aftermath, the people in Canada tackled the issue head-on, rather than inventing some sophomoric concept like "inadvertent plagiarism" to cover their tracks.

Straight.com discussed a report on the matter by the Conference Board of Canada:

Plagiarism did occur, and it wasn’t detected due to insufficient oversight of this project.

The evidence indicates there was undue reliance on feedback from a funder who was deemed to have important technical expertise. We failed to seek similar feedback from a broad range of stakeholders. The report relied heavily on too few sources and lacked sufficient balance. Moreover, the reports did not follow our internal quality review process. Overall, there was inadequate monitoring of this entire project.

The text We failed to seek similar feedback from a broad range of stakeholders. The report relied heavily on too few sources and lacked sufficient balance. would describe efforts of Congress (specifically those of Howard Berman) in patent reform 2007.

Returning to Canada, changes were proposed:

We have already taken steps to further strengthen our rigorous quality review process to prevent future incidents of this nature. We have added new quality control steps including: using anti-plagiarism software at multiple stages in the process, additional review by external challengers, and engagement of senior management earlier in the research process.

Southern Illinois University could benefit from this approach.

Saturday, June 20, 2009

Empathy: do lawyers have it?

The word "empathy" appears several times in previous IPBiz posts. However, IPBiz got a chuckle from a post on InsideCounsel titled Maximizing Conference Experience: You Got the Interview! Now What? which included:

Please resist the urge to say “hire me,” or any variation thereof, as a solution to the target’s challenges. She knows why you are there. The elegant way to succeed in this environment is to demonstrate two great lawyer qualities—discernment and empathy. As the target opens up based on your client focused line of questions, try responding with comments that begin like this: “I appreciate the corporate politics involved in that,” and offer an example of how you can relate to her challenges. Or, “Interesting, thank you for sharing that with me,” followed by “have you considered xyz?”

If Mike Evers is talking normatively, suggesting empathy OUGHT TO BE a lawyer quality, fine. If, however, Evers is talking empirically, suggesting empathy is a quality manifested by most lawyers, he has got to be kidding.

**See also

PatentHawk smokes Lemley
["Empathy and reciprocity are the fabric of the social contract," he said. BUT note Gary Odom is NOT a lawyer.]

Microsoft "spyware" for monitoring activities?
[Although the sense of this sentient system would seem to be to provide nefarious means for employers to spy on employees, the patent describes a more empathic rationale. is a somewhat sarcastic use. Nevertheless, folks such as IAM's Joff Wild don't seemed to be clued into the unusual nature of many IT patents, such as this application or IBM's outsourcing excursion]

"The Chilling Stars," greenhouse gases, and Mass. v. EPA

[[IPBiz has empathy here. Submissions on the Jaffe/Lerner proposal (and alternatives) were turned down cold at both the Harvard Business Review and at IDEA (published at Franklin Pierce, the institution of Professor Field). It's tough to have a discussion about global warming or patent reform when some ideas are excluded from presentation.] Here again, Joff Wild misses the reality that many IP attorneys HAVE TRIED to express points about patent reform, but have not been given a forum.]

Judge Plager takes on Nard and Duffy: easier to critique than to be original
{Admittedly there is a certain amount of self-interest in any complaint by the academic community that their work is being largely ignored, though as a former academic Judge Plager can empathize with that view. This is an example of one lawyer (a judge) finding empathy with another lawyer (a professor), even though the judge is otherwise criticizing the professor.] See 101 Nw. U.L. Rev. 1735 (2007) titled RETHINKING PATENT LAW'S UNIFORMITY PRINCIPLE: A RESPONSE TO NARD AND DUFFY.

Kappos, Lemley, Merritt, and the 271Blog

Back in April 2008, IPBiz noted the problematic nature of Professor Lemley receiving funds from the IT industry for research for his paper in 85 Tex. L. Rev. 1991 (2007). The April 2 IPBiz post is titled
Industry contracting with academics to advance their message?

IPBiz notes that the fact of Lemley's IT support was observed in comments to a blog post on the 271Blog which appeared in August 2008:

Patent Reform Crawling Back In 2008? Lemley Proposal For Damages May Provide Answers

The content of the actual POST on the 271Blog was favorable to Professor Lemley: A recent paper by professor Mark Lemley suggests that easing restrictions on "lost profits" damages may provide a better means for market competitors to recoup damages, while reducing tendencies of courts to provide "kickers" on reasonable royalties.

In cites to BOTH the 271Blog and IPBiz within a COMMENT to a Rick Merritt EETimes piece on David Kappos [ie, http://271patent.blogspot.com/2008/08/patent-reform-crawling-back-in-2008.html http://ipbiz.blogspot.com/2009/02/more-on-lemley-and-intellectual.html within
IBM exec picked to head patent office ] one might get false impressions

#1. That the 271Blog was critiicizing Lemley, when in fact it was a COMMENTER criticizing Lemley
#2. That the 271Blog disclosed the conflict in August 2008 prior to IPBiz (in February 2009), when in fact IPBiz disclosed the conflict in April 2008, prior to mention on the 271Blog

The topic of Mark Lemley arose in the Merrit article on Kappos because Merritt quoted Lemley on Kappos:

"The PTO is in crisis, and I think Dave Kappos understands that, and will work creatively to try to find ways out of the crisis," said Mark A. Lemley, a professor at the Stanford Law School whose name was also listed as one the Obama administration may have considered for the job. "I also think he is sensitive to the need for patent reform, which is a good thing," he added.

Merritt also noted:

In his testimony, Kappos talked about the rising number and complexity of patent applications. Despite hiring as many as 1,000 new patent examiners a year, the office cannot keep up, making it difficult to maintain patent quality, he said.

Merritt did not mention the attrition of USPTO examiners, such that "hiring 1,000" only amounts to a net gain of 500, OR that the USPTO is NOT hiring anyone right now, but that attrition continues. Merritt did not mention the variety of questionable IBM applications, as embodied by the two on a method of waiting in line for an airplane toilet or a method of outsourcing.
Merritt did not mention that the news of the "outsourcing" application broke just when IBM was laying off numerous employees in New York, having given them the option of "moving to India at India wages" or losing their jobs.
[Refer to
IAM on IBM's Kappos, not touching the political or patent pulse?

Returning to the 271Blog, the blog has a strictly "news item" post on Kappos (David Kappos - The Next USPTO Director) BUT, as before, the COMMENTS are of interest:

I've been managed by Dave Kappos during 6 years : he is brilliant, even absolutely amazing, always kind with his team, open to discussions, and a great manager. USA are lucky to have D. Kappos.

A non-US citizen.


Dear "non-US citizen"

mind your own business, plz

nominating corporate stooge as a PTO director is akin to nominating Bernie Madoff as a head of SEC

Isn't old Bernie a brilliant guy (literally)?

Compare the 271Post on Kappos to that on IPBiz: It's Kappos.



Friday, June 19, 2009


See AP: Jury rules against Minn. woman in download case

Of the $1.92 million verdict against Jammie Thomas-Rasset for sharing 24 songs, note that federal copyright law allows $750 to $30,000 per infringement AND also allows the jury to raise that to as much as $150,000 per track if it finds the infringements were willful. A spokesperson for RIAA stated: this verdict is a reminder of the clarity of the law.

Well, not exactly clear. As AP reported:

U.S. District Judge Michael Davis, who heard the first lawsuit in 2007, ordered up a new trial after deciding he had erred in instructions to the jurors. The first time, he said the companies didn't have to prove anyone downloaded the copyrighted songs she allegedly made available. Davis later concluded the law requires that actual distribution be shown.

AP also noted that "24 songs" is not a completely accurate quantification of what was asserted to have happened:

The recording companies accused Thomas-Rasset of offering 1,700 songs on Kazaa as of February 2005, before the company became a legal music subscription service following a settlement with entertainment companies. For simplicity's sake the music industry tried to prove only 24 infringements.

Reynolds argued Thursday that the evidence clearly pointed to Thomas-Rasset as the person who made the songs available on Kazaa under the screen name "tereastarr." It's the same nickname she acknowledged having used for years for her e-mail and several other computer accounts, including her MySpace page.

Reynolds said the copyright security company MediaSentry traced the files offered by "tereastarr" on Kazaa to Thomas-Rasset's Internet Protocol address — the online equivalent of a street address — and to her modem.
He said MediaSentry downloaded a sample of them from the shared directory on her computer. That's an important point, given Davis' new instructions to jurors.

The defense to the screenname accusation was straight out of Law & Order: Sibley argued it would have made no sense for Thomas-Rasset to use the name "tereastarr" to do anything illegal, given that she had used it widely for several years.

"This blatant rip-off is unacceptable, even for a blogger."

Within the text of a post by Richard Connelly titled: Plagiarism? Or Great Minds Thinking Alike? A Lunatic Rant Inspires Controversy, one has the words:

This blatant rip-off is unacceptable, even for a blogger.

Connelly, on inspecting the facts, concludes: But no plagiarism was involved.

This wasn't even close.

For real copying, see the discussion in

JEB Stuart travels to India

Yes, even in June 2009, one can still see a thousand word article plagiarized word for word:

Edison as a Patent Troll, or Where is California Going in Stem Cell Research?

By: Annie Kaszina

The funny part is that even the bio of the true author was copied into the plagiarized version:

Lawrence B. Ebert is a registered patent attorney located in central New Jersey. He holds a Ph.D. from Stanford, a J.D. from the University of Chicago, maintains a blog at IPBiz.blogspot.com, and is the author of LESSONS TO BE LEARNED FROM THE HWANG MATTER: ANALYZING INNOVATION THE RIGHT WAY, published in the Journal of the Patent & Trademark Office Society [88 JPTOS 239 (March 2006)]. The above material is based on a submission to Intellectual Property Today [IPT] which was supposed to have been published in April 2006, but which was not published. Most endnotes of the IPT submission have not been reproduced here. The contents of Endnote 18 of the IPT submission did appear within comments to the USPTO concerning proposed rulemaking about continuing patent applications. Ezine draft submitted June 16, 2006.

At least Joe Biden used his own name when borrowing from Kinnock.

**UPDATE. Link from fark-->

Helpful hint: when plagiarizing an article just go ahead and skip the last paragraph if it is a bio of the real author

**FOLLOWUP. For those that read this far into the post, there is an additional (humorous) part to this story which arose when
LBE tried to submit an article to ezine on being plagiarized. HINT: the article is not on ezine.

Burning water, before Kanzius

John Kanzius, in his work on a method of cancer treatment, found that he could burn salt water.

What Wikipedia didn't tell you about Kanzius?
: Of the "burning water" discovery of John Kanzius, Wikipedia writes: "The details of the process are still unreleased while Kanzius applies for a patent." In fact, Kanzius filed numerous patent applications on his rf machine and its applications. They are not doing well at the Patent Office. Wikipedia didn't mention that.]

The idea that one would apply rf to a cavity containing salt water and produce hydrogen (and oxygen) produced a US patent in 1981-->

United States Patent 4,265,721
Hackmyer May 5, 1981

Commercial hydrogen gas production by electrolysis of water while being subjected to microwave energy


Water is electrolytically decomposed in a microwave-fed resonant cavity whereby electrolysis is so greatly enhanced as to make the commercial production of hydrogen and oxygen gasses a practicality.
Inventors: Hackmyer; Saul A. (North Miami Beach, FL)

Appl. No.: 06/147,060
Filed: May 5, 1980

Current U.S. Class: 205/340 ; 205/628
Current International Class: C25B 1/00 (20060101); C25B 1/04 (20060101); C25B 15/00 (20060101)
Field of Search: 204/129
References Cited Referenced By
U.S. Patent Documents

3954592 - May 1976 Horvath
4107008 - August 1978 Horvath
4184931 - January 1980 Inoue

**The entire patent is short-->

What is claimed as new and for which it is desired to secure Letters Patent is:

1. The method of commercially producing hydrogen and oxygen gases electrolytically from an aqueous electrolyte which comprises, placing an electrolytic cell within a resonant chamber, then feeding resonating microwave energy to said resonant chamber for subjecting the molecules of the electrolyte to vibration at the microwave energy frequency, and then collecting the hydrogen and oxygen gasses released at the two poles of the electrolytic cell.

2. The method as defined in claim 1 wherein said resonating frequency is 915 Mh.


The fact that water can be decomposed into its hydrogen and oxygen elements by electrolysis has been known for many decades. Heretofore, however, commercial process has been so costly as to be impractical for the production of these gasses for widespread commercial use. At the same time, because of the dwrindling supply and the increasing cost of convential sources of energy, such as fossil fuels and natural gas, alternative sources of energy for fueling automotive vehicles, for example, are currently being actively sought. The use of liquified hydrogen gas as such an alternative fuel has a distinct advantage in that it is substantially non-polluting. Up until now, however, the cost of commercially producing hydrogen gas by electrolysis has been prohibitive.

It is, accordingly, the principal object of this invention to provide an improved method and means for the electrolysis of water which so enhances the electrolytic process as to enable production of hydrogen gas so economically as to be practicable on a heretofore unknown commercial scale.

A more particular object of my invention is to provide an electroysis method of the above nature wherein the electrolytic fluid container is disposed within a resonant cavity or chamber fed by microwave energy, whereby such intense agitation of the electrolyte molecules is effected as tremendously increases electron vibration between the electrical poles, as a consequence of which hydrogen gas, as well as oxygen, will be given off at high rates and in such large quantitities as heretofore not achievable.

Other objects, features and advantages of the invention will be apparent from the following discription.


In accordance with the invention, microwave energy produced by a microwave generator will be fed to a resonant cavity of such size as will contain one or more electrolytic cells comprising a synthetic plastic material, glass or other non-energy absorbing containers holding the water to be electrolyzed. Microwave energy at a frequency of 915 Mh (allocated for industrial use by governmental authority) is considered to be particularly effective in my method. Suitable amounts of salt may be added to the water of the electrolyte to produce the conductive negative ions. Gas passage conduits surrounding the electrolytic poles with their lower ends immersed in the electrolyte, will collect the electrolytically released gasses for flow into respective gas collecting tanks. The gas so collected in the tanks may then be liquified by compression for convenient commercial use. It will be understood that my method for the commercial production of hydrogen gas also results in the production in commercial quantities (approximately 1/2 the amount by volume) of oxygen gas. Therefore, the hydrogen and oxygen gasses can be electrolytically produced in a portable microwave resonant chamber apparatus that can be installed in a vehicle for directly supplying hydrogen and oxygen for combustion in the combustion chambers of the vehicle engine.

While I have described herein only the basic mehtod by means of which hydrogen and oxygen gas can be produced commercially by electrolysis in a microwave resonant cavity or chamber, it is to be understood that the method described and claimed herein is presented as illustrative, only and not in a limiting sense. The invention, in brief, comprises all the methods and embodiments coming within the scope and spirit in the following claims.

***If instead of merely collecting the hydrogen (as Hackmyer did), one decided to burn it as it evolved, that could have been done on Hackmyer's device back in 1980. Did Rustum Roy cite Hackmyer?


Kanzius obtains US 7,510,555

Thursday, June 18, 2009

It's Kappos

White House press release on June 18:

WASHINGTON, DC – Today, President Barack Obama announced his intent to nominate the following individuals for key administration posts: David J. Kappos, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office and Warren F. "Pete" Miller, Jr., Director, Office of Civilian Radioactive Waste Management, Department of Energy.

EETimes reported:

Early reactions support President Barack Obama's choice of David Kappos, the assistant general counsel for intellectual property law at IBM Corp., as the new head of the U.S. patent office. Kappos would take the post at a time when a three-year drive for patent reform is currently being hotly debated and the patent office is swamped by a historic backlog of applications.
"The PTO is in crisis, and I think Dave Kappos understands that, and will work creatively to try to find ways out of the crisis," said Mark A. Lemley, a professor at the Stanford Law School whose name was also listed as one the Obama administration may have considered for the job. "I also think he is sensitive to the need for patent reform, which is a good thing," he added.

EETimes also wrote: Kappos' opinions, as articulated in the testimony, generally follow the line of the Coalition on Patent Fairness, a lobbying group backed by companies including Cisco Systems, Hewlett-Packard and Intel. However, even opposing groups such as the Innovation Alliance have issued positive statements about the Kappos nomination. IPBiz notes that IBM is NOT a member of the Coalition.

Innovation Alliance wrote:

We congratulate Mr. Kappos on his nomination. We look forward to working with him in what will be a very difficult, but important effort to revitalize the PTO, which all agree is under funded and overburdened.

Innovation Alliance members believe that to best promote innovation, Congress should provide PTO the funds it needs to upgrade its technology, improve the patent application process, and attract and retain professional talent.

We are eager to work with Mr. Kappos, the Administration and Congress in achieving these goals, and making sure that our nation's strong patent protections continue to work for all sectors of the U.S. economy. We urge the Senate to move forward with a speedy confirmation.

See also:


**Note Kappos made a $500 donation to American Intellectual Property Law Association Intellectual Property Pac in 2007.

**InventorsDigest gives some background on Kappos:

Kappos received his bachelor’s degree in electrical and computer engineering from the University of California-Davis in 1983, and his law degree from the University of California Berkeley in 1990. He joined IBM in 1983 as a development engineer and has served in a variety of roles before taking his current position, including intellectual property law attorney in IBM’s Storage Division and Litigation group, IP Law Counsel in IBM’s Software Group, assistant general counsel for IBM Asia/Pacific, IBM Corporate Counsel and assistant general counsel.

**Needless to say, the Kappos "intent to nominate" was not praised at the PatentHawk blog

**The IAM blog gave a fuzzy overview of possible issues with Kappos' past discussions of "patent quality" ==>

Over recent years, Kappos has been very keen to talk about patent quality and what he believes is the decine in the standard of rights being granted by the USPTO. However, what he has been less willing to talk about is the role companies such as IBM may have had in this process, if it really is taking place. Year in and year out under Kappos's leadership, Big Blue has received more US patent grants than any other company. Is it possible that if the company, and many others like it, had been more selective in what it sought protection for, examiners at the office would have had more time to do their jobs and so more opportunity to weed out dubious applications? Indeed, Kappos's big business, Big Blue background may disturb some who will see him as an insider with a very particular agenda. And it is certainy true that he is going to have to learn that there are numerous stakeholders in the US and international IP system - not all of whom view rights in the way that IBM does.

Joff Wild could have been more specific about IBM's "airplane toilet queue" and "outsourcing method" applications. Even Jon Dudas was including the first queue patent in his talks, although he did not identify IBM by name. The patent reforming IP profs talk about the "method of swinging on a swing" patent (now gone and a gimmick in the first place by a patent attorney father) much more than about some of IBM's questionable applications, which are not gimmicks. IBM's posture on the queue and outsourcing matters, when they were exposed, was like that of a child caught with a hand in the cookie jar. IBM's strategy on patents is basically to obtain a lot of "little" (likely incremental) patents, and to threaten a potential infringer with a wall of patents, rather than with one, or a few, killers. In this, patents are not engines of innovation, but of gradualism. Patents as a defense of the past rather than pathway to the future. If, purely hypothetically, Kappos carried that vision to the USPTO, any changes as to "patent quality" would be more superficial than substantive.

***As an aside, there seems to be an underlying belief that "who" is director of the agency can really make a difference.
At some level, "who" may matter, but it IS a government agency, which to some extent has some inertia of its own.
On the topic of government agencies, from yahoo finance :

In 1883, Dr. William Howey went to check on crews building the Canadian Pacific Railway. While searching for a lost worker, he found some interesting copper-colored rocks and pocketed them. Upon returning home he sent them to the director of the Geological Survey of Canada. The verdict? The stones were deemed worthless, and Howey threw them away.

A contractor picked them up, and a year later decided to check out the site where they were found. It turned out those "rocks" were copper and the contractor - Thomas Murray - had discovered one of the world's largest copper deposit, producing millions of dollars of ore. When it was discovered the ore contained high levels of highly sought-after nickel, the deposit was named the International Nickel Company of Canada, and went on to become the second-largest producer of nickel worldwide. In 2006, Vale (NYSE: VALE) (previously CVRD) bought the company (named INCO) for $17 billion. Talk about a rock-solid investment!

***In passing, on odd patents that have recently issued, note US 7,536,731, titled
Head covering and insignia display assembly, with first claim

A head covering and insignia display assembly comprising: a primary member structured to be disposed in an operative position on a user's head, said primary member comprising a unitary, one piece construction of a single, foldable, weather resistant material dimensioned to facilitate storage and transport of said primary member when in a folded orientation, said primary member structured to comprise a sports helmet configuration, said primary member further comprising an insignia display portion integrated into said primary member and defined by at least a portion of an outer surface thereof, and at least one primary insignia affixed onto said insignia display portion.

The issue is along the lines: baseball fans get to wear baseball caps, but football fans don't get to wear football helmets:

Among the reasons for this inconsistency in fan apparel is the fact that the rigid helmets worn by football players, hockey players, as well as certain other athletes, are not readily stored and transported to and from sporting events in the manner of the common baseball cap, which may be readily folded up and placed in the user's pocket. Further, with security concerns such as they are in today's society, facilities hosting such sporting events are not likely to condone massive numbers of fans donning protective head gear in their facility.

Among the products developed in an attempt to fill this void in a football fan's ability to emulate their favorite player and/or show support for their favorite team, is an oversized novelty football helmet constructed of a partially rigid foam material or having an inflatable configuration, and which may or may not include a face mask portion to further the effect.

The listed firm for the issued patent is Malloy & Malloy, P.A.

Invalidity via 112 P1 overturned because of improper claim construction

In Cartner v. Alamo, a finding that claims 5 and 12 of the ’284 patent are invalid for failure to meet the written
description requirement of 35 U.S.C. § 112 was reversed on the basis of
improper claim construction by the district court.

Of the use of the prosecution history in claim construction:

Of particular importance to the proper claim construction in this case is the
prosecution history of the ’284 patent. See, e.g., Mangosoft v. Oracle Corp., 525 F.3d
1327, 1332–33 (Fed. Cir. 2008) (finding further support for the proper construction in the
prosecution history). Contrary to the district court’s conclusion, the statements and
amendments in the prosecution history are highly explanatory about the proper
construction of “said flow control orifice being constantly operative.”

In re Baggett, the memoization case:

We agree with Baggett, however, that the Board erred by sustaining the rejection
of claims 20, 29, and 41, each of which includes the claim term “memoization.” Before
the Board, Baggett requested reconsideration of the rejection of all claims—including
claims 9, 20, 29, and 41—and Baggett argued that the examiner and the Board had
misread the claim term “memoization” as “memorization.”

The McZeal case: the CAFC can't get no respect

Within the MCZEAL v. SPRINT case, the CAFC discusses a district court's treatment of an earlier CAFC ruling:

The district court discussed our decision to vacate and remand this case, stating
at oral argument on December 4, 2007: “I’m actually comfortable simply holding the
same way I held last time”; “‘Their writ,’ to quote a 1920s lawyer, does not run to the
rational faculties”; and “this is absurd.”

The CAFC also wrote:

The district court dismissed the case for failure to
state a claim and for want of prosecution. At the hearing, the district judge stated,
“Because I was obliged by a gross error in the Court of Appeals to readdress the case, I
did. I asked you to do a few fairly straightforward, simple things that would have helped
Sprint understand what you thought you were doing, and Sprint sent you the stuff I
asked it to.”

The first sentence of the CAFC discussion:

The district court improperly dismissed for failure to state a claim, explicitly
disregarding our prior mandate in this case.

A claim chart was at issue:

When the district judge initially ordered McZeal to provide the claim chart, stating
“you have the opportunity to explain precisely what it is in your patent that has been
violated by this particular defendant,” he also warned McZeal that failure to comply
would result in dismissal. Initially the district judge told McZeal to produce the chart in
one month, but after listening to complaint by McZeal the district judge then gave
McZeal three months to comply.

For justification for claim charts, the CAFC cited FIRST to the rules of ED Tx [!]:

See, e.g., Eastern District of Texas Patent Rule 3-1 (available at
http://www.txed.uscourts.gov/Rules/LocalRules/LocalRules.htm); Northern District of
California Patent Rule 3-1 (available at http://www.cand.uscourts.gov/); Northern District
of Georgia Rules LPR 3.1, 4.1, 4.4 (available at http://www.gand.uscourts.gov/pdf/
NDGARulesPatent.pdf); see also O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc., 467
F.3d 1355, 1364–66 (Fed. Cir. 2006) (upholding contested local patent rules from the
Northern District of California).

Recusal also arose:

McZeal also claims that the district judge should have disqualified himself.
The issue of recusal is reviewed for an abuse of discretion. Weingart v. Allen & O’Hara,
Inc., 654 F.2d 1096, 1107 (5th Cir. 1981); see also In re Pioneer Hi-Bred Int’l, Inc., 238
F.3d 1370, 1374 (Fed. Cir. 2001) (issues that are not unique to patent disputes are
reviewed under regional circuit law). The Supreme Court has stated “judicial rulings
alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v.
United States, 510 U.S. 540, 555 (1994). McZeal has not met his burden of showing
that the judge abused his discretion in not recusing himself.

[The non-precedential opinion was by Judge Dyk.]

Supreme Court: 5-4 vote in Osborne DNA case

Facts surrounding the Osborne case on the right to DNA testing revealed an odd combination of states that do NOT allow access:

"To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response," Roberts said. Alaska, Massachusetts and Oklahoma are the only states without DNA testing laws.

One wonders how Massachusetts, one of the most "liberal" states in the nation is out of step with 47 other states.

Reuters wrote:

Forty-six states and the federal government have laws that give convicts some access to DNA testing, according to the decision. The ruling was a victory for Alaska, one state that does not explicitly allow such testing, along with Alabama, Massachusetts, and Oklahoma.

States opposed to the testing have said it would be costly and would result in unnecessary litigation in cases in which a defendant received a fair trial and there was overwhelming evidence supporting a guilty verdict.

heritage.org includes some relevant facts:

The facts of this case show how these principles come together. Osborne was convicted of kidnapping, assault, and sexual assault based on evidence including semen evidence analyzed under the DQ Alpha testing method, which matched Osborne. The DQ Alpha method can only narrow a sample down to approximately 5 percent of the population.

Osborne’s lawyer chose not to use the more accurate RFLP method of DNA testing available at the time, because she thought that he was guilty and planned a “mistaken identity” defense, which a positive identification by the more accurate method would scuttle. But the jury didn’t buy it, and Osborne was convicted. Finding it “nearly miraculous” that Osborne’s victim had survived his brutal assault, the judge sentenced Osborne to 26 years. Osborne appealed and lost.
After 14 years in prison, he was released on parole in 2007. Almost immediately, he committed another crime and was rearrested.

When he filed his first challenge to the conviction in Alaska court, the state supreme court determined that a convict had a right to DNA evidence when the conviction was based on eyewitness identification, there was doubt concerning the perpetrator’s identity, and scientific evidence would give a conclusive result. Osborne fell far short of that standard: he gave a sworn confession to the crime and boatloads of other evidence tied him to it, including the DNA test that had been performed.

This sounds like a waiver matter.

See also

LBE's piece in the UofC Roundtable: Comment: Frye after Daubert: The Role of Scientists in Admissibility Issues As Seen through Analysis of the DNA Profiling Cases

DNA profiling snags animal poachers

DNA analysis shows truth to "switched at birth"

Michigan man (Richard Barnes) scoffs at son's (John Barnes) suspicion he was taken:

John Barnes has long suspected the couple who raised him were not his biological parents(...)

Cheryl Barnes, Richard's daughter, said she was "flabbergasted" by John's claims and was willing to undergo DNA testing to prove they are biological siblings.
"I can't begin to know why he would think this," said Cheryl Barnes, 50. "Everybody in my family thinks John looks just like my dad."

Business method patents thriving post-Bilski?

Aaron R. Feigelson gives US 7,546,945 (System and method for managing transactions, notice of allowance mailed 11 Feb. 09) as the purest example of a Bilski miss. Keep in mind, Aaron is talking about the NON-USE of Bilski against business method patents: I've commented before that it is not too difficult to find cases of Bilski failures by examiners, and frankly, discussing such patents is losing its novelty.

The first claim of the '945:

A method for managing transactions associated with accounts of an individual, comprising: receiving information associated with the individual; receiving information associated with a first account of the individual; receiving information associated with a second account of the individual; processing the received information associated with the individual, the received information associated with the first account, and the received information associated with the second account; and automatically performing a transaction based upon a result of the processing, wherein the processing is based upon comparisons of one of terms and events of the first and second accounts to maximize a benefit to the individual.

Claim 17:

A system for managing transactions associated with accounts of an individual, comprising: a memory unit; and a processing unit, wherein the processing unit: receives information associated with the individual; receives information associated with a first account of the individual; receives information associated with a second account of the individual; processes the received information associated with the individual, the received information associated with the first account, and the received information associated with the second account; and automatically performs a transaction based upon a result of the processing, wherein the processing is based upon comparisons of one of terms and events of the first and second accounts to maximize a benefit to the individual.

The file history reveals discussion of 102/103, but no Bilski matters. Prior art cited against the application (and overcome) included Cataline (US app 2002/0116331) and Poltorak (US app 2006/0277139).

The case was proscuted by BAKER & MCKENZIE LLP. (Anthony V. Flint was a prosecuting attorney). There is a continuing application from the case: 12/484,355 filed on - which is Pending claims the benefit of 11/298,103

**See also


Airplane toilet queue patent: it's back!

At the 271Blog: Bilski at the BPAI - What a Mess (Part 1):

It has gotten to the point that a given claim may receive 4 different interpretations from 4 different people, and each of them could be arguably correct. In the case of computer-related inventions, the end result of a patentability analysis is rarely supportable with a single, cogent rationale.

***[update] Of General Patent Corporation and Poltorak, from Reuters, June 30, 2009

Jack Granowitz has joined General Patent Corporation`s Advisory Board of Directors.
Mr. Granowitz was one of the founders of the Technology Transfer office at
Columbia University and its Executive Director from 1988 until 2000.

Star Scientific smoked by Reynolds: patents invalid, not infringed

In the latest development in the Star Scientific v. Reynolds saga, a Baltimore jury found the claims of the Star Scientific patents invalid, and, separately, not infringed by Reynolds.

The Wall Street Journal wrote: A federal jury ruled Tuesday [16 June 2009] for R.J. Reynolds Tobacco Co. in a high-stakes dispute with Star Scientific Inc. (STSI) over Star's patent claims for a new method of curing tobacco in a way that reduces certain cancer-causing toxins.

On past turns in the case:

Star Scientific prevails in inequitable conduct matter in Reynolds case

wherein the CAFC reversed a previous inequitable conduct finding described in


Wednesday, June 17, 2009

Mendte goes after Philly Inquirer

With his house arrest ending on Monday, June 1, former Philly channel 3 (KYW) news anchor Larry Mendte filed a lawsuit on June 3 against three columnists for The Philadelphia Inquirer and Daily News newspapers, as well as the papers' parent company, Philadelphia Media Holdings, alleging defamation and false light.

As a sign of the times, the lawsuit was filed in U.S. Bankruptcy Court because Media Holdings filed for bankruptcy protection in February. Now, where does a defamation plaintiff fit in the bankruptcy line?

See also



In the realm of defamation suits, note that Cambridge police officer James Crowley may file a defamation suit against Harvard Professor Henry Louis Gates.

Stanford Ph.D. student sues Stanford, Stanford prof over patents and copying thesis

As noted by IPBiz earlier in June, the CAFC in Larson v. Correct Craft talked a great deal about Chou v. University of Chicago, 254 F.3d 1347, 1358 (Fed. Cir. 2001) and noted that neither the Chou nor Larson case decided whether a purely
reputational interest is sufficient to confer standing for a § 256 claim.

There is another case, similar to Chou, involving a Ph.D. from Stanford who asserts he was cheated out of patent rights by Stanford and a Stanford professor.

Ben Butkus writes in genomeweb/biotechtransferweek:

A former Stanford University graduate student who last year sued the school and his faculty advisor for allegedly excluding him from patents related to a gene-modification technique he helped invent, this week filed an amended suit claiming that the advisor also plagiarized his PhD dissertation and lab notebooks to support additional patent applications, among other alleged misdeeds.

The former student, Christopher Sclimenti, also alleges that Stanford and the faculty member, genetics professor Michelle Calos, have financially benefitted from licensing the patents to at least one outside entity while denying Sclimenti his share of the profits, according to Sclimenti's lawyer.

The initial Sclimenti law suit was about misnaming of inventors (specifically an omission of a student), analogous to the Chou case against the University of Chicago.. Although Butkus uses the concept plagiarism to describe the added claims, the actual cause of action is likely copyright infringement. [There is NO federal cause of action for plagiarism.] As to copying a Ph.D. thesis, one saw copyright infringement claims in the Cha/Kim matter as to Kim's Ph.D. thesis. Copyright infringement as to a lab notebook is interesting, but one must go through the work-for-hire doctrine
(ie, who owns the copyright in the notebook?)

Butkus writes: The amended lawsuit, filed in the US District Court for the Southern District of California, alleges some 15 charges against Stanford and Calos It's not clear if Sclimenti included a reputational interest claim; in view of Larson he should have.

The patents at issue are US patents 6,808,925 and 7,141,426, entitled "Altered recombinases for genome modification." Both name Michelle Calos, the professor/advisor, as the sole inventor.

Of the initial cause of action, Butkus writes:

That complaint, filed in the same court, alleged that Sclimenti, who obtained his PhD from Stanford in 2002 in cancer biology and molecular genetics, was originally named as a co-inventor on the application for the '925 patent, which Stanford's Office of Technology Licensing filed on behalf of Calos and Sclimenti in February 2001.

Sometime around July 2002, while the US Patent and Trademark Office was prosecuting the filing, Sclimenti claims the university removed his name from the '925 application. Meantime, in April 2004 Stanford and Calos filed an application for the second patent naming Calos as the lone inventor.

In October 2004, the '925 patent issued; and in November 2006, the '323 patent issued. Both patents name Calos as sole inventor and Stanford as sole assignee.

According to various documents supporting the claim, Stanford removed Sclimenti's name from the '925 patent application after it amended certain of the application's claims to satisfy USPTO requirements for awarding the patent.

But according to Manuel de la Cerra, a Carlsbad, Calif.-based intellectual property lawyer representing Sclimenti, Stanford and Calos modified the patent application at or around the same time the Stanford OTL was negotiating a licensing agreement for the IP with Poetic Genetics, a company co-founded by Calos in 2002 to commercialize gene therapies based on the technology.

**See also


Tuesday, June 16, 2009

Crovitz on the loose again, parroting Bessen/Meurer

PatentHawk went after Gordon Crovitz (again), although not by name, in criticizing Crovitz' piece: Why Technologists Want Fewer Patents , which piece concludes:

The Supreme Court may decide that more progress would be made with narrower definitions of what is patentable. A book on the U.S. approach to patents, "Jefferson vs. the Patent Trolls" by Jeffrey Matsuura, makes the key point that "intellectual property rights were not goals in and of themselves, but were instead a mechanism through which society attempted to facilitate creative collaboration."

Thomas Jefferson, the nation's inventor-president, would support patent reform in an era when new information technologies build on themselves. An idea, he observed, is a rare thing whose value increases as it's shared. "No one possesses the less because everyone possesses the whole of it," he wrote. "He who receives an idea from me receives it without lessening me, as he who lights his candle at mine receives light without darkening me."

One notes that Abraham Lincoln (the only president to obtain a patent) is arguably the nation's inventor president, although the more glaring error in Crovitz' article was --The Patent Office now gets some 500 million applications a year, leading to litigation costs of over $10 billion a year to define who has what rights. -- Also the idea that patents were "a mechanism through which society attempted to facilitate creative collaboration" is ludicrous, and sounds like it might have been ripped from the pages of TechDirt. The patent system is designed to foster public disclosure of information so we don't have a lot of re-inventing the wheel. Public disclosure is not a synonym of collaboration.

PatentHawk took a rip: "the crowning achievement of the WSJ article is to cast Thomas Jefferson as patent reformer."

IPBiz notes that the reference to Jefferson arises from the cite to Matsuura. Crovitz is also drawing from Bessen and Meurer.

The IAM blog also wasted no time in savaging Gordon Crovitz' piece in the WSJ:

As Gene Quinn points out on the IP Watchdog blog, Crovitz claims that: "The Patent Office now gets some 500 million applications a year, leading to litigation costs of over $10 billion a year to define who has what rights." It is absolutely unbelievable that Crovitz could have got this so wrong. How on earth any self-respecting journalist can allow such an obvious error to run in an article he or she has produced is beyond me. And what on earth were the WSJ subs up to?

You get the very strong impression that absolutely no-one did any checking here at all. I mean, even if they had got the actual filing figure of 500,000 or so applications a year right, that $10 billion litigation cost "to define who has what rights" is also a load of old rubbish. It costs nowhere near that - although Bessen and Meurer have claimed that the total costs that can be attributed to patent litigation each year in the US may come to $10 billion, if you include share price movements, the amount of time executives are out of the office and so on. What's more Crovitz also swallows whole the Bessen & Meurer line that: "Aside from the chemical and pharmaceutical industries, the cost of litigation now exceeds the profits companies generate from licensing patents." There's a red herring if ever I saw one. It is a completely arbitrary statement. As anyone could have told Crovitz if he had bothered asking, patent licensing is but one aspect of the value that patents generate.

The IAM blog did not go "back in time" on the Crovitz-BessenMeurer connection. [See
Patent quality on the rise?

See also: http://ipbiz.blogspot.com/2008/07/patent-transparency.html


Crovitz repeated many arguments from the IT side of the patent reform debate. For issues in biotech:
Falsehoods, Distortions and Outright Lies in the Gene Patenting Debate

For issues in parroting:

Lex Luther challenges Howard Berman on patent reform, HR 1908
[Someone reportedly heard Luther mutter under his breath that Berman's slavish devotion to the advancement of patent interests only of the IT industry was giving "parrots a bad name." ]

Note that even Mike at TechDirt refers to Berman as "Hollywood Howard": Irony Alert: Hollywood Howard Berman To Introduce 'Internet Freedom' Bill :

He's also sought to limit the ability for people to access publicly funded research, claiming that he didn't want the "N" in NIH to "stand for Napster."