Saturday, October 31, 2009

The "golden rule" at the University of Central Florida

The Golden Rule at UCF: “Academic misconduct includes but is not limited to cheating, plagiarism, assisting another in cheating or plagiarism, and commercial use of academic materials.”


UCF is a member of the Center for Academic Integrity [CAI] along with many other schools, such as Kansas State University, where students are required to write the school’s Honor Pledge on every exam and assignment, according to the CAI’s Web site.


Disciplinary action for a student referred to the board can result in anything from failing the class to being expelled from UCF. The student’s intent in the situation is a large factor in the board’s decision-making, Stanlick said.

“It is not a one-size-fits-all kind of thing,” she said. “That would be unfair.”

Zach Frimmel, a senior English literature major, found a legal comparison. “There are levels of plagiarism, like levels of murder,” he said.

[Material taken from centralfloridafuture article by Valeri Walsh.]

NOW, cross-reference this to what is going on at the University of Virginia. Does UCF have the better idea?

University of Virginia to change definition of plagiarism?

Amgen sued by 15 states in Aranesp overfill billing matter

The LATimes reports that Amgen was sued in D. Mass, on 30 Oct. 09 by 15 states who accused Amgen sales representatives of encouraging doctors and other healthcare providers to bill insurers for the drug Aranesp that the practitioners received free from Amgen.

The concept of overfill, wherein for vial medicine standards require that drug makers include a small amount of medicine in excess of the prescribed dosage, was extended for Aranesp.

The LATimes noted:

However, the suit alleges that at least as far back as 2002, Amgen manufactured Aranesp with overfills that were well above the recommended amounts. According to the suit, the overfill allowed doctors, hospitals and other medical providers to bill their patients' insurers for medicine that the provider had essentially gotten free.

"In offering the overfill inducement to medical providers, Amgen's sales force encouraged medical providers to administer higher doses of Aranesp to patients without any clinical need for that higher dose," the states allege.

Amgen prepared spreadsheets calculating potential revenue from overfill billings that the drug maker's sales reps could show to their clients during office visits, the lawsuit contends.

See also

Friday, October 30, 2009

Patent Reform: selling tomatoes as cantaloupes from a carrot box?

The "selling" of patent reform is much like the above selling of tomatoes as cantaloupes from a carrot box.

Current wisdom suggests the Senate patent reform package will fly in 2009, including a "one window" post-grant review (PGR, opposition) package arising from the perceived need for a mechanism to address the perceived "patent quality" problem. The difficulty is that the "patent quality" problem is based on a bogus analysis.

From 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 unjustified belief in the 97% grant rate infected the academic community and was willingly accepted by the IT people as a device to push their agenda:

More on the 97% grant rate that never was

The 97% patent grant rate lives on in law reviews

Patent reform 2008 as a house of mirrors?

BIO report shows absence of data for patent reform, but misses key references

The IT people wanted apportionment of damages, which is not going to happen in 2009.
Utilizing the distraction of patent quality (a totally ironic vehicle in view of the many questionable
patents by IBM, Microsoft, etc.), the IT people got the image of the thing they portrayed rather
than the true objective (damages reform). That's a risk when one sells tomatoes as cantaloupes.

The sad thing is that unneeded stuff like PGR is going to inflict serious burdens on the
smaller players in the IP arena.

From an article by Kristina Peterson:

Most big technology companies think the process [PGR] would strengthen the patents that make it through.

The review would be "essential to maintaining high-quality patents because it allows the validity of questionable patents to be tested," said Horacio Gutierrez, deputy general counsel of Microsoft Corp. (MSFT).

Similarly, International Business Machines Corp. (IBM) called the process "a low-cost alternative to litigation" in a statement.

But small companies and research universities fear that deep-pocketed businesses will use the review to stall innovative products from hitting the market. And the uncertainty created by the process will make it hard for start- ups to secure funding if their patents are up for repeated attacks, say critics including the National Venture Capital Association.

Tuesday, October 27, 2009

Bloggers criticized in Bilski session

In a session titled "Behind the Scenes Look at Bilski", speakers criticized (obliquely) certain blogger commentary on the Bilski case.
Two observations:

#1. The speakers had prepared more thorough commentary on Bilski than is seen within most blogs.

#2. Given that the speakers were well on top of the Bilski matter, it was somewhat interesting to observe a) that they were
keeping track of what was being said in the blogs and b) that they were worried about what was "in" the blogs, to the point that they spoke about the blogs.

And, no, they were not talking about IPBiz. And, yes, there was a lot of talk about Prometheus Laboratories Inc. v. Mayo Collaborative Services.

As a separate point, the "revised" conventional wisdom now seems to be that there will be a patent reform package THIS YEAR.
As Lex Luther (macaw) would say: wow!

Crichton as authority on 35 USC 101?

IPBiz heard a story that a Congressional staffer relied on comments from Michael Crichton in evaluating patentability in the area of genes.

See also

On Crichton

Baby Einstein: guilty of misleading the American public?

In a post titled The great Baby Einstein scam , Mira Shine noted:

The New York Times reported Thursday that Disney is offering a refund to buyers of its ubiquitous “Baby Einstein” videos, which did not, as promised, turn babies into wunderkinds. Apparently, all those puppets, bright colors, and songs were what we had feared all along—a mind-numbing way to occupy infants.

Mira continued:

So why were we so quick to seize on Baby Einstein videos as technological tutors?

Call it the perfect storm of parenting. Who doesn’t want to believe that there is a magical, wondrous, no-parental-guidance-required product that will turn their kids into Mensa members?

Switching gears to stem cells and California's Proposition 71 and CIRM, who doesn't want to "believe" that stem cell research will offer wondrous cures to people with disabling diseases? But, as with Baby Einstein, there was a tremendous gap between induced expectations and reality. See for example

Did campaign ads for Proposition 71 violate fair trade laws?

Ad campaign for California's Proposition 71 as a bait and switch?

But, then go full circle, and examine a case wherein someone, metaphorically, "called out" an (asserted) purveyor of falsities,
as in the use of the phrase "guilty of misleading the American public" discussed in Groden v. Random House, 35 USPQ2d 1547. Or, to go to more recent times, contemplate what happened to Dr. Bruce Flamm in the Cha/prayer/JRM matter. After an ordeal, Flamm's right to comment was upheld, but (IPBiz believes) the offending journal article in JRM was never retracted.

«Der Urquell aller technischen Errungenschaften ist die göttliche Neugier und der Spieltrieb des bastelnden und grübelnden Forschers und nicht minder die konstruktive Phantasie des technischen Erfinders.» Albert Einstein

MaxDrei comments at IPBiz on post-grant review

In a first for IPBiz, MaxDrei has posted a comment, related to post-grant review [see
Kappos on the USPTO: "the nose of this airplane is pointed down"

Dreaming is what it is, but one can see how post-issue validity proceedings could be the solution. Go to registration only, and decide post-issue validity on the preponderance standard, but retain the Presumption of Validity. The PTO could do a great job of deciding validity, in the context of disputed, inter Partes proceedings, post-issue. But could it be done in a year? Again, I think so. The English High Court does it that quickly, utterly routinely, with discovery, expert reports, cross-examination, full trial. If London can do it, why not also DC?

Now, if we can get MaxDrei to read Deming, we may be getting somewhere.

As a first point, the objective of the patent system is to get public disclosure of inventions which are useful, novel, and nonobvious, which are written down so one of ordinary skill understands "what" they are and "how" to practice them. We don't want an "anything goes" registration system where anybody gets a patent on anything. This is overburdening the public with chaff. If the IT folks aren't reading patents now, imagine what they do in a registration-only system!

As a second point, once we understand "why" we have patents, then we apply Deming. If one has a problem with production of product (here, examination for useful, novel, etc.), we do NOT apply a product inspection step (eg, post-grant review). That is a waste. We allocate resources to fix production (eg, examination).

As to dreaming, the USPTO is supposed to conduct re-exams with dispatch. The record speaks for itself. Our question is not what the English High Court might do, but what the USPTO already has done. Case closed.

(posted from Washington, DC)

**As to the comment below, IPBiz does not believe small inventors find "first to file" beneficial to them, and, if small inventors lose their incentive,... But if the rumors are true, first to file and PGR are done-deals.

As a distinct point, there was someone at the BIO-IPCC who believed that the USPTO could offer a speedy post-grant review.
IPBiz would prefer giving the USPTO the amount of resources it needs to conduct a more thorough exam in the first place, so we would not be talking about a speedy product inspection step. We should not be controlling quality by inspection AT ALL. That is so anti-Deming.

Also, European clones of MaxDrei at IPCC were saying that KSR was merely adopting the European approach...

Monday, October 26, 2009

Hwang Woo Suk convicted of embezzlement

Timesonline noted:

The judges found yesterday that Hwang had misappropriated 830 million won (£430,000) of research funds but ruled that it had not been for his personal enrichment. He was acquitted of fraudulently obtaining private donations worth two billion won.

PatentBaristas at BIO IPCounsels Conference

The PatentBaristas blog is represented at the BIO IPCounsel's Conference in Washington DC on 26 Oct 09.

Sunday, October 25, 2009

Kappos on the USPTO: "the nose of this airplane is pointed down"

At the Association of Corporate Counsel's annual meeting, David Kappos did NOT exude near-term confidence for the USPTO. As quoted in the National Law Journal:

"the nose of this airplane is pointed down" (...)

"Under the current environment, we're not going to make significant progress. We're not going to get anywhere near 10 months."

The meeting highlighted differences between USPTO management and the USPTO examiners. In contrast to Kappos and Artie Rai, POPA head Budens believes Congress, not USPTO management, should make substantive patent policy changes. Further, Budens supports certain searches to be done within the USPTO, in contrast to points within the Patent Prosecution Highway program.

Kappos, just like his Republican predecessor Jon Dudas (UChicago Law, '93) , was pushing post-grant review ("opposition"), a procedure opposed by many patent attorneys, including Joe Hosteny:

[Kappos] said the bill's proposal for a patent office process to review patents after they're granted would give the business community a meaningful alternative to a court battle when facing patent infringement suits.

"If we get it right in the legislation, we can get post-grant review out of the USPTO in a year or less," Kappos said. "Even if you've already been sued, we'll get it done so quickly, we'll beat the district court by a country mile."

As the song says, I like dreamin'. The USPTO can't get prosecution or re-examination done in timely fashion right now, and the USPTO promises to beat "rocket dockets" while implementing a new procedure?

Or, from a different song:

And history ain't changed
'Cause the banners, they all flown in the last war

We don't get fooled again
Don't get fooled again

Meet the new boss
Same as the old boss

Myron Rolle at Oxford

In a post in 2008, IPBiz talked about Myron Rolle, a collegiate football player (FSU) out of the Princeton area. A piece in the Guardian titled US football star Myron Rolle trades touchdowns for test tubes at Oxford gives an update:

Rolle, 22, was a star defensive player at Florida State University, where he also won acclaim as a pre-medical student for research on stem cells and cancer cells. (...)

A top prospect for the NFL, Rolle last year opted to defer entering the league's amateur draft for a year and study for a master's degree in medical anthropology at Oxford, all with an eye towards an eventual career in medicine.

The author of the article, one Daniel Nasaw, is a bit unfamiliar with the US:

Former US senator and hall of fame basketball player Bill Bradley delayed entering the National Basketball League (NBL) [sic] to attend Oxford.

HP out of "Coalition for Patent Fairness"?

Andrew Noyes reports: Computer giant Hewlett-Packard has pulled out of the Coalition for Patent Fairness over concerns that legislation currently moving through Congress does not go far enough to curb what some high-tech firms believe are excessive damages in patent infringement lawsuits.

Thus, HP would be leaving CPF because it did not take a "strong enough" position on limiting damages.

Saturday, October 24, 2009

Mike/Techdirt blowing smoke in Fairey/AP matter?

Mike at Techdirt took a whack at AP reporting in the Fairey/AP case, because Fairey's lawyers may not yet have withdrawn:

But, if we're going to talk credibility, shouldn't the Associated Press be careful to actually fact check its own articles on a case involving itself? In announcing the news about the Fairey revelation, the AP claimed that Fairey's lawyers had withdrawn from the case. However, his lawyers say that's simply not true, though they may withdraw from the case.

One commenter to TechDirt got to the nub of the matter, which is why the Stanford attorneys are talking about withdrawing BUT also saying the case for Fairey is strong:

What we really would like to know, however, is why Stanford's CIS attorneys would (or feel like they should) withdraw from representing Fairey if they believe (as Falzone has been quoted) that the case still has fair use merit. To do so know seems like they're bailing because Fairey no longer is the ideal, model, star client they hoped he would be for them. If that's the case, it suggests they took the case for publicity purposes in the first place, not primarily to fight against constricting parameters of the fair use doctrine.

In fact, one could argue that now is the time Stanford's CIS lawyers should redouble their efforts in this fair use argument. And they'd have little to lose: if they win, they're geniuses; if they lose, it's because Fairey screwed up the case by being an incredible witness. They have no salary to lose on this...

But Stanford's salaried lawyers are going to bail, even when they think the core legal issue still has merit? Sounds like cherry picking to us.

Within a story in the LA Times:

Falzone, Fairey's attorney, said there "are lots of reasons lawyers may not be able to continue a representation, but in this case the underlying merits have nothing to do with that. We believe as strongly as ever in the fair use and free expression issues at the center of this case, and believe Shepard will prevail on those issues. We hope this unfortunate situation does not obscure those issues."

In reality, Fairey's "fair use" defense was better with Fairey's falsely claimed source picture, and is a lot weaker with the source photo actually used. Looks a lot like derivative work. Until the Stanford folks come up with a more plausible excuse for their talk of bailing, that's the way things look, bloviation aside.

See also

Fairey admits misrepresentation in Obama Hope poster matter

Only in New Jersey?

In responding to a questionnaire from the Vernon (New Jersey) Taxpayers Association sent to candidates for the Vernon Town Council, candidate Harry Shortway apparently copied some of his answers from other sources.

The Advertiser-News reported:

[Shortway] said that his time was tight and while researching the topics brought up in the questionnaire, he did in fact use information from other sources but not in an effort to present it as his own words.

In a response that would make Southern Illinois University proud, the Taxypayers Association noted: “to be honest, we didn’t have any rules againsgt plagiarizing...the only rules we had were to answer by such and such a date.”

A letter to the Advertiser-News by one Neil Desmond which prompted this story includes the text:

What is amazing is, evidence I have seen suggests Mr. Shortway, a teacher in the Jefferson Township High School, plagiarized his responses from works on Internet Web sites to at least five of the questions, with some of the plagiarized responses verbatim from those sites. In fact, one of his plagiarized responses was verbatim from a work done by a UNC Chapel Hill Master of Public Administration student.

Several years ago, in the context of the plagiarism by Professor Laurence Tribe at the Harvard Law School, students writing in the Harvard Crimson hammered away at the point that Tribe would have been punished a lot more if he had been a student, rather than a professor. If a student of Harry Shortway had been caught copying, and responded that "time was tight", one wonders what result?

Nokia goes after Apple's iPhone

Nokia has filed a patent infringement suit in D. Delaware against Apple for infringement of claims of patents relating to G.S.M. and U.M.T.S.,

With the iPhone cutting into Nokia's business, the NYT quoted Mr. Mawston of Strategy Analytics: “Where there is a hit, there is usually a writ."

See also

Nokia sues Apple over patents

**In a separate, but not unrelated, event, IPBiz notes the completely "lost at sea" discussion of patent reform by Rob Preston
of InformationWeek in the article Down To Business: Tech Patents Revisited: Alternative Approaches

In the patent world, we do not want an "independent creation" defense because we don't want everybody re-inventing the wheel.

Patents are public documents, and people are supposed to read them so that the wheel is NOT re-invented. It's about efficient use of resources, Mr. Preston.

Preston managed to criticize trolls and IT in the same paragraph: Alan Heimlich, a patent attorney with Peloquin PLLC, suggests a way to rein in both the trolls (the firms that buy up patents in order to sue alleged infringers in friendly courts) and tech giants such as IBM (NYSE: IBM), Microsoft (NSDQ: MSFT), and Cisco (NSDQ: CSCO) (which hoard patents to make a few license bucks and prevent startups from entering their markets). Heimlich's proposal: If you're not "practicing" the invention, you can't sue for damages.

Patents give inventors access to the free market system. If an inventor chooses to sell his invention rights to someone else who can do the innovation, that's all right. Patents are about inventions, not about implementing the inventions. If someone is gaming the system, go after the gamer, not after the method of ownership.

Of peer-to-patent [ the Peer To Patent community review project, which enlisted the informed public to share knowledge and expertise with patent examiners. ], the "informed public" amounted in large part to IBM employees and the "inventor" of peer-to-patent already took the last train to the Obama coast. If one wants more "public" participation, one merely can expand
37 CFR 1.99.

"He hired a team of lawyers to punish me for voicing my opinions"

IPBiz has been discussing the matter involving K.Y. Cha and Bruce Flamm. See for example:

Flamm prevails over Cha on November 20, 2007

Cha's suit against Flamm is back

K.Y. Cha's suit against Flamm tossed by Superior Court (again!)

K. Y. Cha was a co-author of an article published in
the Journal of Reproductive Medicine claiming that prayers from the United States,
Canada, and Australia caused a 100% increase in pregnancy rates among
infertility patients in Korea. Dr. Bruce Flamm spent much time attempting to get
the journal to re-evaluate the basis for this article. He was stonewalled.
The basis for the Cha's lawsuit against Flamm involved comments made by
Flamm in Flamm's article "Prayer Study Author Charged With Plagiarism" published in Ob. Gyn. News,
with the charge of plagiarism relating to a DIFFERENT paper co-authored by Cha.
The asserted plagiarism related to a multiple publication in more than one journal
of the same results. There were some questions of "who" the proper authors were.
[There is an entirely different legal saga relating to the interplay of K.Y. Cha with one
Dr. Kim, but that is a separate story.]

The most recent news event in the Flamm story is that the California Appellate Court has
affirmed the decision of the Superior Court, which had tossed Cha's lawsuit.

Although this case has a very convoluted fact pattern, the superficial issue was whether
suggesting someone was a plagiarist amounted to defamation. The matter went on for more than
two years and had to have been unpleasant for Dr. Flamm. In a press release about
the appellate victory, Dr. Flamm noted:

"Today's ruling is a victory for science and evidence-based medicine.
Scientists must be allowed to question bizarre claims. Cha's
mysterious study was designed and allegedly conducted by a man who turned out
to be a criminal with a 20-year history of fraud. A criminal who steals the
identities of dead children to obtain bank loans and passports is not a
trustworthy source of research data. Cha could have simply admitted this
obvious fact but instead he hired a team of lawyers to punish me for
voicing my opinions. Physicians should debate their opinions in medical
journals, not in courts of law. Judges have better things to do with their time
and taxpayers have better things to do with their money."

Friday, October 23, 2009

Website grouping patent attorneys

In an interesting website of patent attorneys, LBE appears just below Chester Carlson, quite an honor. Greg "Fossilman" Raymer, of poker fame, is there too, as is C. Yardley Chittick (born October 22, 1900).

See also:

The balance between 35 USC 122(c) and 37 CFR 1.99

Further to a discussion of 35 USC 122 [
Not Schrodinger's cat
], one notes that the mandate of 122(c), which states:

(c) PROTEST AND PRE-ISSUANCE OPPOSITION.- The Director shall establish appropriate procedures to ensure that no protest or other form of pre-issuance opposition to the grant of a patent on an application may be initiated after publication of the application without the express written consent of the applicant.

is not exactly implemented in the rule on protests, 37 CFR 1.99, which states in pertinent part:

(a) A submission by a member of the public of patents or publications relevant to a pending published application may be entered in the application file if the submission complies with the requirements of this section and the application is still pending when the submission and application file are brought before the examiner.

(b) A submission under this section must identify the application to which it is directed by application number and include:

(1) The fee set forth in § 1.17(p);

(2) A list of the patents or publications submitted for consideration by the Office, including the date of publication of each patent or publication;

(3) A copy of each listed patent or publication in written form or at least the pertinent portions; and

(4) An English language translation of all the necessary and pertinent parts of any non-English language patent or publication in written form relied upon.

(c) The submission under this section must be served upon the applicant in accordance with § 1.248.

(d) A submission under this section shall not include any explanation of the patents or publications, or any other information. The Office will not enter such explanation or information if included in a submission under this section. A submission under this section is also limited to ten total patents or publications.

(e) A submission under this section must be filed within two months from the date of publication of the application (§ 1.215(a)) or prior to the mailing of a notice of allowance (§ 1.311), whichever is earlier. Any submission under this section not filed within this period is permitted only when the patents or publications could not have been submitted to the Office earlier, and must also be accompanied by the processing fee set forth in § 1.17(i). A submission by a member of the public to a pending published application that does not comply with the requirements of this section will not be entered.

(f) A member of the public may include a self-addressed postcard with a submission to receive an acknowledgment by the Office that the submission has been received. A member of the public filing a submission under this section will not receive any communications from the Office relating to the submission other than the return of a self-addressed postcard. In the absence of a request by the Office, an applicant has no duty to, and need not, reply to a submission under this section.

MPEP 1134.01 gets to the issue presented by 122(c):

To balance the mandate of 35 U.S.C. 122(c) and the Office's authority and responsibility under 35 U.S.C. 131 and 151 to issue a patent only if "it appears that the applicant is entitled to a patent under the law," the Office permits third parties to submit patents and publications (i.e., prior art documents that are public information and which the Office would discover on its own with an ideal prior art search) during a limited (2 month) period after publication of an application in compliance with 37 CFR 1.99. However, 37 CFR 1.99 prohibits third parties from submitting any explanation of the patents or publications, or submitting any other information.

Third parties may submit patents and publications relevant to the published application, with no further comment or explanation, pursuant to 37 CFR 1.99. The patents and publications may be entered in the application file if the submission complies with the requirements of 37 CFR 1.99 and the application is still pending when the submission and application file are brought before the examiner. For Image File Wrapper (IFW) processing, see IFW Manual, Section 2.1. The submission must be served upon the applicant in accordance with 37 CFR 1.248 prior to the filing of the submission in the Office.

To ensure that a third-party submission under 37 CFR 1.99 does not amount to a protest or pre-grant opposition without express consent of the applicant, the third party does not have the right to insist that the examiner consider any of the patents or publications submitted.

Thursday, October 22, 2009

A plagiarism "top ten" list

Amber Johnson emailed a link to her Top 10 Plagiarism Scandals of All Time . Only one of her "top ten" has appeared on IPBiz, that relating to Harvard student Kaavya Viswanathan .

Obama is on the list, but IPBiz selects Joe Biden head over heels before Obama. Biden's "speech" plagiarism of Neil Kinnock was far worse than Obama's, and it was not even accurate as to Biden. At least, if you plagiarize, steal something that's true. Further, Biden's law school plagiarism at Syracuse tops anything on Johnson's list, five pages from a law review.

See also:

In passing, from a fortune cookie on 21 October:

"A good memory is fine but the ability to forget is the one true test of greatness."

**As to Biden, from a book review of work by Kathleen Rooney:

"Give me your tense shifts, your misspellings, and your passive verbs," she writes in "I Will Catch You," a biting condemnation of plagiarism from a professor who prefers flawed original prose to stolen work; this piece should be required reading for any new college student -- and Joe Biden.

"Twittering taco trucks," or was that patent reform?

CBS Evening News with Katie Couric on Oct. 22 had a piece on the NJ governor's race. The photo angles were not particularly flattering to challenger Christie. [So far nothing on the CBS webpage.] CBS News mentioned that Corzine was spending a lot of his own money in the race (more than 2X of Christie's outlay). Somewhat reminds one of IT's spending in patent reform.

The CBS News episode ended with a story on the Twitter-driven food from trucks trend in LA.

Sarah Lemon at Mail Tribune: Through Twitter, the Kogi BBQ truck and its Korean-Mexican fusion has amassed thousands of fans in LA

Katherine Spiers : Doing it standing up is all the rage in Los Angeles. What was once a game run almost exclusively by super-cheap taco trucks has opened up to all comers -- hello again, vendrification -- making “taco truck” a bit of a misnomer (and no, we do not accept “lunch truck”). But "food truck" sounds so impersonal, we're not yet settled on replacement. Nevertheless, here are 10 trucks-serving-food garnering the most attention at the moment. We know, Kogi’s not on the list. If you don’t already know about Kogi, you’re probably not reading this anyway.

● Marked 5 (@Marked5) - Is there such thing as an umami tooth? This truck’s existence says yes: it may be the most highly-desired right now. It serves little Japanese “burgers” on a bun composed of pressed rice. Teriyaki salmon, katsu pork, that sort of thing. Plus snacks like Calpico and Pocky for a Eastern experience on the Westside.

IPBiz can understand Twitter generating a food craze. But the Twitter-like feeding frenzy of IP profs in patent reform is beyond the pale. Or are the two really the same thing?


Still no sign of the 22 Oct. Corzine/Christie story on the CBS webpage. One does note some recent poll results:

The Rutgers-Eagleton poll, conducted Oct. 15 - 20, puts incumbent Democrat Jon Corzine in the lead with 39 percent, followed by Republican Chris Christie with 36 percent and Daggett at 20 percent. This is the first poll to find Daggett at or above 20 percent support.

One recalls the egregious inaccuracy of polling results on the New Jersey stem cell bond initiative.

Not Schrodinger's cat

In a post titled Be All You Can't Be: Army Patent Ambushed by Friendly Fire, Aaron R. Feigelson describes a patent that "ran out of time" before it issued. Aaron's point is that the patent was DEAD on arrival.

A different blog refers to this as relating to Schrodinger's cat, a thought experiment wherein the cat was both dead and alive.
IPBiz does not see Aaron's example as related to Schrodinger's cat.

See also

**Update. Comment to 1201:

Interesting story. Of the first-named inventor of the '811: On Dec 8, 2000 Col Daniel L. Jarboe became the first veterinarian to assume command of the largest biomedical research institute in the Department of Defense. Col Jarboe is now the director/commander of the Walter Reed Army Institute of Research, located on the Forest Glen Annex of the Walter Reed Army Medical Center, Washington, DC. Previously he served as the deputy director/commander. [ ]

Is it possible this patent was pursued to issuance for defensive purposes, to obtain its 102(e) date?

**Further update.

As to Aaron's comment, 37 CFR 1.221:

§1.221 Voluntary publication or republication of patent application publication.

Any request for publication of an application filed before, but pending on, November 29, 2000, and any request for republication of an application previously published under § 1.211, must include a copy of the application in compliance with the Office electronic filing system requirements and be accompanied by the publication fee set forth in § 1.18(d) and the processing fee set forth in § 1.17(i). If the request does not comply with the requirements of this paragraph or the copy of the application does not comply with the Office electronic filing system requirements, the Office will not publish the application and will refund the publication fee.

The Office will grant a request for a corrected or revised patent application publication other than as provided in paragraph (a) of this section only when the Office makes a material mistake which is apparent from Office records. Any request for a corrected or revised patent application publication other than as provided in paragraph (a) of this section must be filed within two months from the date of the patent application publication. This period is not extendable.

One might ask if a voluntary publication under 1.221 does "count" as a publication under 35 USC 1.22(b) which states in pertinent part:



(A) Subject to paragraph (2), each application for a patent shall be published, in accordance with procedures determined by the Director, promptly after the expiration of a period of 18 months from the earliest filing date for which a benefit is sought under this title. At the request of the applicant, an application may be published earlier than the end of such 18-month period.

(B) No information concerning published patent applications shall be made available to the public except as the Director determines.

(C) Notwithstanding any other provision of law, a determination by the Director to release or not to release information concerning a published patent application shall be final and nonreviewable.


(A) An application shall not be published if that application is-

(i) no longer pending;

(ii) subject to a secrecy order under section 181 of this title;

(iii) a provisional application filed under section 111(b) of this title; or

(iv) an application for a design patent filed under chapter 16 of this title.

In passing, two other sections of 35 USC 1.22(b):

(c) PROTEST AND PRE-ISSUANCE OPPOSITION.- The Director shall establish appropriate procedures to ensure that no protest or other form of pre-issuance opposition to the grant of a patent on an application may be initiated after publication of the application without the express written consent of the applicant.

(d) NATIONAL SECURITY.- No application for patent shall be published under subsection (b)(1) if the publication or disclosure of such invention would be detrimental to the national security. The Director shall establish appropriate procedures to ensure that such applications are promptly identified and the secrecy of such inventions is maintained in accordance with chapter 17 of this title.


on ipbiz from yahoo

Patent Quality Myth

CampusMixxer notes: IPBiz is the #1 Blogger for Stanford University


Earlier press hype over Ida the missing link now being undercut

Malcolm Ritter of AP writes:

Remember Ida, the fossil discovery announced last May with its own book and TV documentary? A publicity blitz called it "the link" that would reveal the earliest evolutionary roots of monkeys, apes and humans. Experts protested that Ida wasn't even a close relative. And now a new analysis supports their reaction.

The questioning of the significance of Ida appears in the journal Nature coming out Oct. 22, 2009 in a paper by Erik Seiffert and others.

One recalls similar hype over a recent stem cell paper from Nayernia, which paper got retracted, more likely because of the hype than because of the plagiarism that was asserted.

There has been a lot of hype, promoted by reporters, in both the stem cell area and in the area of "patent reform." In the area of patent reform, corrections to the hype don't always get published, unlike the situation with the paper of Erik Seiffert.

Wednesday, October 21, 2009

Alan Kasper named Prez of AIPLA

The BLT Blog reported:

Alan Kasper, a senior partner and patent lawyer at Washington-based Sughrue Mion, has been named president of the American Intellectual Property Law Association, the firm announced Monday.

Nocera reverses position on plagiarism charge

In a post titled Clearing a Name at Lehman, Joe Nocera reversed himself on a charge of plagiarism against a person then at Lehman:

When he first became aware of the post, seven months after the fact, he called me to complain. He made a convincing case that he had never plagiarized other analysts, and that he had not, in fact, been fired.

The punchline:

Realizing that my post was likely to continue to give Mr. Johnson’s critics an unfair weapon with which to cast aspersions on his work, I decided that the only appropriate course was to remove the allegation that he had been the plagiarist.

The remaining mystery: WHO was the plagiarist?

Tuesday, October 20, 2009

"The bigger the backlog, the messier the tangle"??

From Timothy Prickett Morgan at ITJungle:

According to a report in the Wall Street Journal, the U.S. Patent and Trademark Office is going to scrap rules that the Bush Administration put in place to limit the flood of patents that companies could file. The idea was that fewer patents would speed up the approval and denial process at USPTO. With over 700,000 patent filings in backlog and a $200 million budget shortfall for the Federal fiscal year that started in October, something has to change. The bigger the backlog, the messier the tangle is to decide who invented something first. Hence, the first-to-file provision is still in the Senate bill, which has plenty of inventors up in arms. Now it is not just a race to invent, but a race to do paperwork. And in that case, the bigger companies have the advantages.

The punchline: But if healthcare runs off the rails, the Senate will turn to patent reform so fast it might snap our necks if we are watching.

The logic problems:

The prior rules on continuing applications would have impacted fewer than 5% of all patent applications, a marginal impact on backlog.

As to "first to invent" vs. "first to file", interference cases are a fraction of all applications.

Neither the rules nor "first to file" are tightly linked to the backlog problem.

Management 101 at the USPTO?

On 1 October 2009, Ed O'Keefe reported in the Washington Post:

In a move designed to improve employee morale and to help reduce a growing backlog, the U.S. Patent and Trademark Office proposed changes Wednesday [Sept. 30] to its way of determining how long a patent examiner has to complete a patent examination and the incentives that examiners earn.


The proposal would award more credits earlier in the process and allow examiners to interview applicants before reviewing the entire application. That long-sought option should help shorten the process by allowing the applicant and examiner to discuss details earlier in the process, said Deputy Commissioner for Patent Operations Peggy Focarino.

Patently-O wrote of this: The proposed changes are not dramatic, but they may have some incremental benefit of reducing RCE churning (see below). The proposal also provides for an additional hour of examination time per case with the expectation that the added time will be used up-front in an interview or in preparing a quality first office action on the merits (FAOM).

On 20 October 2009, Ed O'Keefe reported in the Washington Post:

But the PTO took an encouraging step Friday, when patent examiners approved changes that help determine how long they have to complete patent examinations and the incentives they earn. Kappos got the ball rolling shortly after he arrived by getting agency officials and union representatives into a room to draft changes to the "count system" for the first time in more than 30 years.

"I locked the door and said, 'I want a new system that does no harm to our employees, that gives examiners more time to do their work, that incentivizes parts of the process early in the process,' " he said. Kappos also promised to meet with negotiators every week while they worked on the changes and mandated an Oct. 1 deadline. Then, he said, he walked out of the room.

"It's Management 101, it's how it works in the real world and that's what I'm doing here at the U.S. PTO," he said.

**Mark Lemley, in writing "Ending Abuse..." had basically ignored RCEs and issues of "churning of counts" by examiners.

See also

Examining the examiners of patent examination

Pablum from the PTO?

New York Times caught copying

An article in the Guardian begins:

Phil Bronstein, executive vice president and editor-at-large of the San Francisco Chronicle, has exposed the New York Times for "borrowing" a Chronicle story.

Bronstein also noted: To be fair, a reasonable amount of what was in the Times story was different than the Chronicle's...

The same could also be said for Alison Routman's paper written while on UVa's "Semester at Sea," but Alison, unlike the NYT, walked the plank anyway.

And, then there was the Hartford Courant business.

Plagiarism is plagiarism, no matter how the University of Virginia tries to adjust the definition.

Monday, October 19, 2009

CSI Miami episode "Bad Seed" portrays an evil patentee

The episode of CSI Miami titled "Bad Seed" (Season 8 Episode 5) has a patent holder on a recombinant corn seed who enforces the patent against a neighboring farmer. Said farmer can't afford a lawyer and has to sell some of his land to settle the patent infringement case. The initial contact of the CSI guy with gun-toting farmer illustrates how the farmer feels about this patent infringement.

HOWEVER, it seems that this recombinant corn has some side effects (as to botulism), and the CSI team goes to the farmer to get some evidence, allowing the farmer to get even, at least as to shafting the bio company.

The recombinant plot line is not unrelated to an episode of "Eleventh Hour" broadcast last year.
"Eleventh Hour" depicts evil university/industry cabal in biotech

However, "Bad Seed" includes a case of E. Coli poisoning, and has a bit of a twist in deep-sixing this part of the case because
#1. of laws against disparagement of food
#2. of a flagrant conflict-of-interest, wherein the government official who would investigate is an ex-VP of the guilty food/bio company

One notes that the bio company skates on all criminal charges.

However, the lawyer for the bio company, a Harvard law School graduate, allows the bio CEO to talk directly to Horatio, therein commenting about how 500 people eating has more value than one death. H. dutifully records the conversation, to be used in a later civil suit.

As to portrayals, the patentee comes off as a villainous predator, not unlike depictions in patent reform. The Harvard lawyer comes off as an arrogant fool, allowing his company to be laid low by his own hubris. And John Q. Public is not protected against either E. Coli in salad or against Frankenfood corn.

Well, Halloween and patent reform are coming.

Contracting around trade secret law?

Neil Wilkof at IPFinance asks whether one can contract around trade secrets law and writes:

Put briefly, at some time during the treatment of trade secrets there is always at least one thoughtful, attentive student who asks the ultimate question--"So why do we need trade secret protection as a separate and distinct right? Surely it can be subsumed into other rights--such as contract and tort--that handle the subject matter." Over the years, I have worked up an answer that seeks to point the advantages of having a separately protectable right for valuable secrets. I was recently pleased to find that my notions about trade secrets were supported as part of a much wider-ranging article by the distinguished IP scholar Mark Lemley, in his most interesting article, "The Surprising Virtues of Treating Trade Secrets as IP Rights", Stanford Law Review, vol. 61, Nov. 2008.

See also
Examining the examiners of patent examination

Sunday, October 18, 2009

"60 Minutes" on Kanzius: We don’t want to be in a position to hype this.

"60 Minutes" did a followup on John Kanzius and his anti-cancer rf machine on 18 Oct. 09.

Sadly, Kanzius had died in February 2009, and the portion of the show illustrating that he had self-treated with rf, without using the nanoparticles, was sadder still.

It was also sad that Lesley Stahl repeated discussion of the hot dog experiment, which is scientifically incorrect. Stahl is way over her head on this type of reporting.

As to the future, Stahl did talk to Dr. Curley about future plans, using rf in conjunction with targetws gold nanoparticles.

Press & Tower reported:

Kanzius was quoted in the piece that for a period of a few months he was convinced that his use of the equipment was making a positive difference in his blood count and leukemia condition. He had used the machine without the injection of gold nano particles, an essential element in the current research.

Radiofrequency applied indiscriminantly to the body is not going to have any effect on the cancer. The whole point of the research was to direct the nanoparticles SPECIFICALLY to the cancer site, and then use rf to heat up the site by means of the naoparticles.

See also

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

Lesley Stahl duped on "60 Minutes" on 13 April 2008

Examining the examiners of patent examination

Peter Zura at the 271Blog has kept us up to date on articles by Mark Lemley. In a recent post, Zura notes the article Examining Patent Examination and highlights the conclusion:

The evidence illuminates the patent prosecution process as a continuing negotiation between examiner and applicant. That negotiation does not end with an initial or even a final rejection. Interviews and amendments after final play an extremely significant role in generating patents, and in limiting the scope of those claims as well. Nor is that the end of the process. Continuation applications are flourishing. They have broken into two roughly equal groups, with different uses. Many applicants are using RCEs to keep fighting for claims that the examiner wasn’t willing to give them. The second group is filing continuation applications rather than RCEs. They have opted for a slower process, either because they want delay so that they can modify their application to track developments in the marketplace or because they want multiple patents to build an effective fence around a single invention.

What Zura does not note is that in a previous article ("Ending Abuse..."), Lemley did not note the distinct in objectives between continuation applications and RCEs, in an effort to demonize continuation applications. See for example
The dominance of RCE's and the Lemley/Moore conjecture
and "On the proposal to restrict continuing applications," 88 JPTOS 743 (2006).

**See also

Of Sampat and Lemley,
Gold-plating patents: been there, proposed that...

Tim Wu's --Weapons of Business Destruction-- dull stupidity?

**Separately, Feminist law profs posted:

The National Law Journal reported yesterday that a U.S. District Court is allowing Anthony Ciolli, former Chief Education Director for AutoAdmit, to move ahead with his lawsuit against Stanford Law Professor Mark Lemley and others for wrongful initiation of civil proceedings, abuse of process, libel, and a host of other claims.

Google Wave

Saturday, October 17, 2009

"60 Minutes" to discuss Kanzius again

GoErie notes that there will be a further discussion of John Kanzius on "60 Minutes":

Its crews and reporter Lesley Stahl conducted subsequent interviews with Kanzius before his death and also talked with others involved in the project, including Steven Curley, M.D., lead researcher on the Kanzius project at M.D. Anderson Cancer Center in Houston.

See also

Burning water, before Kanzius


"Foley's culture of bad conduct"?

Joe Mullin quotes from an email of Erich Spangenberg, arising in the context of Foley & Lardner naming him as a third-party defendant in a dispute between patent-holding company DataTern and its former lawyers at Foley & Lardner:

"IPNav will be required to recount numerous instances—all supported by references—of Foley's culture of bad conduct, poor judgment, and nonchalance regarding professionalism, which contradict Foley's vastly overrated claims of superiority and excellent client service."

Mullin also writes:

In the IP Nav brief, Spangenberg sayss: "Foley's bad judgment here is typical, however—typical of Foley's bad decision-making that has it frequently in the news for all types of malfeasance, including sexual discrimination, racial discrimination, trademark abuse... legal malpractice—including revealing client confidences, and fraud."

There is much detail in the Mullin piece, which evaluates the accuracy of the allegations against Foley. Of some interest is the text:

Overall, Foley's complaint against Spangenberg portrays the firm as representing an operating entity in the Red Hat matter. That scenario, the firm argues, only turned into something with the typical markings of "patent troll" suit—keeping litigation costs low and ultimately settling for a figure in line with those costs—because of a major change of strategy by the patent-holders.

Hmmm, small inventors, who don't have deep pockets, also try to keep litigation costs low. Does that give them the "marking" of a troll?

Also on Mullin and Spangenberg:

Mullin's "Prior Art" blog tries to smoke Ebert

Also on Foley:

Sharon Barner of Foley named Deputy Director of USPTO

"I think lawyering is really very simple: It's word of mouth."

Cooley lawyer Michael Rhodes: "I think lawyering is really very simple: It's word of mouth."

The Recorder article also mentions the Maldives, and a quote about some departing lawyers: "there's no there there"

When Gertrude Stein wanted to visit her childhood home in Oakland, she could not find the house, and wrote :

What was the use of me having come from Oakland, it was not natural for me to have come from there yes write about it if I like or anything if I like but not there, there is no there there.

One thinks about "patent quality" as a catchphrase in patent reform.

Craziness has a fine history in physics?

In an essay titled "The Collider, the Particle and a Theory About Fate," DENNIS OVERBYE writes:

But craziness has a fine history in a physics that talks routinely about cats being dead and alive at the same time and about anti-gravity puffing out the universe.

As Niels Bohr, Dr. Nielsen’s late countryman and one of the founders of quantum theory, once told a colleague: “We are all agreed that your theory is crazy. The question that divides us is whether it is crazy enough to have a chance of being correct.”

Of Schrodinger's cat, wikipedia writes: Schrödinger did not wish to promote the idea of dead-and-alive cats as a serious possibility; quite the reverse. The thought experiment serves to illustrate the bizarreness of quantum mechanics and the mathematics necessary to describe quantum states. Intended as a critique of just the Copenhagen interpretation (the prevailing orthodoxy in 1935), the Schrödinger cat thought experiment remains a topical touchstone for all interpretations of quantum mechanics.

Wikipedia also mentions that Hugh Everett (Princeton PhD) formulated the many-worlds interpretation of quantum mechanics.

Twitter: tweet today, gone tomorrow?

californiastemcellreport noted on 13 Oct 09:

When we Googled the terms “klein research america,” a reference to the award from “Research America” came up in the No. 5 position. But it linked to an item from Twitter (known as a Tweet) – not the announcements from Research America or CIRM. Neither showed up on the first four pages of the Google search results.

IPBiz googled the same thing on 17 Oct 07 and got the following:

Hit #1: Robert Klein receives Research!America Advocacy Award | California ...
Robert Klein receives Research!America Gordon and Llura Gund Leadership Award for his advocacy of stem cell and diabetes research. -

which was a DIRECT link to the CIRM webpage:

Hit #2 was a false hit: Barry M. Klein, Research
Using electronic structure methods, Professor Klein's research group has made ... Division of Computational Physics of the American Physical Society, 1994 ... - Cached - Similar -

Hit #3 was to Research America:

Stem Cell Research « Research!America
Research!America in Reuters Story: States and Stem Cell Research ..... Confirmed speakers include Robert N. Klein, Chair, California Institute for ... - Cached - Similar -
Event Detail - Research!America
Robert Klein, JD, board chair of the California Institute of Regenerative ... Read more about the winners at ... - Cached - Similar -

with the second link [ ] providing the information:
Robert Klein, JD, board chair of the California Institute of Regenerative Medicine — Gordon and Llura Gund Leadership Award

Hit #4 was a false hit: Research!America
Rep. Ron Klein (D-FL 22nd District). 2nd term Democrat from Florida 22nd District. ... Take advantage of all the resources Research!America offers. ... - Cached - Similar -

**So as of Oct. 17 announcements from CIRM and ResearchAmerica are hits #1 and #3 in Jensen's search and there are no tweets.

IPBiz has elsewhere commented on the ranking strategies of Google.

Of twitter, see also


Intellectual Property Today [IPT] on Twitter

LexMonitor on Twitter

HotLawTopics on Twitter

Fairey admits misrepresentation in Obama Hope poster matter

On 12 Feb 09, IPBiz noted:

Mark Lemley's new law firm, Durie Tangri Lemley Roberts & Kent, has wasted no time in taking a whack at Associated Press (AP), in filing a declaratory judgment action in the Shepard Fairey matter involving the Obama Hope poster. IPBiz had earlier suggested that the parties might resolve the issue, but Lemley's firm is playing litigation hardball.

[Lemley's firm was on Fairey's side, and opposing AP.]

AP reported on Fairey's admission on 16 Oct. 09:

Artist Shepard Fairey, who designed the famous Barack Obama "HOPE" poster, admitted Friday [16 Oct.] that he didn't use the Associated Press photo he originally claimed his work was based on but instead used a picture the news organization had claimed was his source.

The basis for Fairey's arguments have now changed, and Fairey's attorneys are beating a hasty retreat:

Fairey sued the not-for-profit news cooperative in February, arguing that he didn't violate copyright law because he dramatically changed the image. The AP countersued in March, saying the uncredited, uncompensated use of an AP photo violated copyright laws and signaled a threat to journalism.

Fairey's attorneys, led by Anthony Falzone, executive director of the Fair Use Project at Stanford University, have informed the AP that they are withdrawing.
[UPDATE on 24 Oct. The attorneys say they have not withdrawn but may withdraw.
Shepard Fairey's lawyers say they have not yet withdrawn from AP case

The significance of the admission by Fairey is that he didn't really "change" the photo as much as he earlier asserted. This was a case of copying, not of artistic creation. NY Mag put the matter this way:

The crux of the AP's argument has been that the photo they think Fairey used, of Obama sitting alone, was not altered enough by the artist to count as fair use. Fairey now admits that, while he originally thought he used a photo of Obama sitting next to actor George Clooney, he realized early on that he was wrong and didn't change his story in court or in interviews.

Meanwhile, AP is taking an aggressive position:

"Shepard Fairey has now been forced to admit that he sued the AP under false pretenses by lying about which AP photograph he used to make the Hope and Progress posters," Kasi said.

"Mr. Fairey has also now admitted to the AP that he fabricated and attempted to destroy other evidence in an effort to bolster his fair use case and cover up his previous lies and omissions."

Kasi said the AP would continue to "vigorously pursue its countersuit alleging that Fairey willfully infringed the AP's copyright in the close-up photo of then-Sen. Obama."


It would appear that Lemley's law firm has had an up-close-and-personal brush with willful infringement.


Lemley law firm plays litigation hardball with AP over Fairey Obama Hope poster

Friday, October 16, 2009

Senate Judiciary Committee votes against "reverse payments" in drug deals

Reuters reported that on 15 Oct. 09 the Senate Judiciary Committee voted 12-7 to forbid "reverse payments" (aka pay for delay) in deals between generic drug companies and proprietary drug companies.

See also

On Hatch-Waxman settlements

Ranbaxy wins against Roche in DNJ on valganciclovir

Daiichi-Ranbaxy prevailed against Roche Palo Alto (formerly Syntex) in the District Court of New Jersey by securing a finding of noninfringement of the claims of US 6,083,953 directed to crystalline valganciclovir. Roche had argued that the amorphous valganciclovir of Ranbaxy would convert to crystalline valganciclovir. Ranbaxy's arguments of invalidity of the Roche claims were rejected.

Valganciclovir (Roche's Valcyte) is considered the most effective antiviral treatment for cytomegalovirus retinitis among HIV patients.

Valganciclovir is a pro-drug of Ganciclovir. After oral ingestion, it is converted to ganciclovir by intestinal and hepatic esterases.
Note US 4,355,032

US Court rules Ranbaxy's generic valganciclovir does not infringe Roche's Valcyte patent

Thursday, October 15, 2009

Twist in Australian plagiarism case

The Australian reports that the Queensland Crime and Misconduct Commission [CMC] has launched an official inquiry into the accusations of plagiarism in three articles in the Queensland Law Society's [QLS} Proctor magazine.

The Australian notes the presence of state involvement: The CMC has become involved in the affair because the QLS is a state government statutory body and, as a unit of public administration, is subject to the CMC.

It shall be interesting to see if the topic of "inadvertent" plagiarism arises.


Plagiarism in the law: gambling in Casablanca?

Pablum from the PTO?

Patent Docs reported on a meeting in Chicago involving Cameron Kerry and Sharon Barner. The Patent Docs discussion evoked a "meet the new boss, same as the old boss" theme, with comments like:

However, he also said that the PTO administration needed something more in order to solve the problems the Patent Office is facing. That something more is patent reform, and as became evident, particularly and specifically substantive rulemaking authority for the PTO. This is what is needed for the Office to provide "quality" patents (the first red flag), and "certainty" (another), and of course improve patent litigation and promote global patent harmonization.

Yes, the "new" USPTO dropped the rules package. But recall, the rule on limiting continuing applications did NOT survive the CAFC, and would not have had a significant impact on backlog. The more important thing to note is that the "new" USPTO crew is pushing "patent reform" legislation, just like the "old crew" did.

We still have the usual hand waving about quality with no real insight. Patent Docs noted: it has been evident for some time (and maybe it was always the case) that the definition of a "good quality patent" is one's own patent, and "bad" or "poor quality" patents are those held by one's competitors. Mr. Kerry also asserted that a "bad" or "poor quality" patent is one having a claim or claims that should not have been granted, thereby echoing the standards of the "second pair of eye" review that has led to a precipitous drop in allowances (and ironically has contributed to the financial shortfall experienced by the Office over the past year).

There was a suggestion of lack of hands-on knowledge: Ms. Barner said that most examiners want to do their job and want to do it well, and that they have been trying to do so under some "very trying" circumstances. She believes there has been "abuses" of the rules that "keep applications churning" in the Office (frankly, demonstrating a lack of understanding about how examination has been happening in recent years). Mr. Kerry noted that Mr. Kappos had reached out to the examiners and the union to try to address their concerns.

One notes that patent reform efforts, especially as to apportionment of damages have NOTHING to do with running the USPTO.
Patent Docs concluded: leave patent reform efforts (benighted or otherwise) to others.

Of "patent reform", while some characterize this as "IT vs. big pharma," one must recall that other players are involved. Dow Jones noted: An Oct. 15 letter by 12 Senators to Senate leaders backs criticism against the legislation being levied by independent inventors and academics who argue the bills favor major technology companies.

Pharma is not the only entity opposing S.515, AND the USPTO should not be lobbying for one group of inventors over another.

Stanford/Roche case NOT a win for academic inventors

A recenr release from Reuters on the Stanford/Roche case was titled:

Federal Circuit Court Hands Academic Inventors a Big Win - IP Advocate Founder Says Decision Affirms That Faculty Inventors, Not Universities, Own Their Inventions

The result of the case was that the invention by the Stanford person was owned by Cetus, then by Roche. and not by Stanford or the Stanford person.

"I like dreamin'."

See also

Stanford takes a hit at the CAFC in Roche HIV matter

Wednesday, October 14, 2009

CU going after Ward Churchill?

The AP reported:

The University of Colorado is seeking to recover funds it spent fighting a wrongful termination lawsuit filed by a professor who was fired on plagiarism charges after he likened some Sept. 11 terrorist attack victims to a Nazi leader.
CU filed its bill for more than $52,000 in court last week.

The Denver Post got into the issue of "prevailing party":

A Denver jury found that CU unlawfully fired Churchill for exercising his right to free speech but only awarded him $1 in damages. After considering the jury's ruling, Chief Denver District Court Judge Larry Naves declined to award Churchill his job back or any compensation. Churchill has vowed to appeal the ruling.

Colorado law requires the court to award the "prevailing party," in this case CU, "reasonable costs."

See also:

NBC "10 pm" and IBM "wall of patents": similar strategies?

There has been much discussion of NBC placing Jay Leno in the 10pm time slot. The NYT observed that Leno was pulling a 1.5 to 2 rating in the category NBC identifies as all-important, viewers ages 18 to 49 and further stated:

Though most 10 p.m. shows with those kinds of numbers get canceled, NBC has said from the beginning that it could accept much lower ratings because of the enormous cost savings of Mr. Leno’s show versus expensive hourlong scripted dramas. The network guaranteed advertisers that it would average only a 1.5 rating.

In its patent strategy, IBM gets lots of patents, although any given one of them is not exactly a game-changer in the innovation world. Much as NBC now avoids "expensive hourlong scripted dramas," IBM does not go for the detailed, world-changing patent applications. At the end of the day, for either NBC or IBM, the objective is optimizing money-making, not changing the world. Smaller inventors, who rely on the patent office to give them entry into the free market system, are also trying to make money, but they are trying to do so by changing the world.

See also

Oct. 11 "Cold Case" a knock-off of Law & Order SVU
[The NBC vs. CBS drama saga of 2009 says a lot about the
myth of first mover advantage.]

Demise of the (anti-)Doughnut campaign: a parable of patent reform?
The Tragedy of Krispy Kreme [Also debunks the myth of first mover advantage. And, does the line -- A new junk-food craze involves a bacon cheeseburger sandwiched between two Krispy Kremes (Original Glazed). -- portend the next patent application craze?]

Tuesday, October 13, 2009

Authorship of "This is it"

"This is it", billed as Michael Jackson's new song, is a song that Jackson had written with Paul Anka around the time of Thriller [ca. 1983] and which had previously been released as "I Never Heard." [Safire, 1991].

Everyone is on the same page now, so no big litigations are in the offing. [Note
AmericanSongwriter: "Eventually, after legal action was threatened, administrators of Jackson’s estate agreed to award Anka 50 percent of the publishing rights.

One can listen to the version by Safire.

Air New Zealand criticizes IBM

The National Business Review wrote of the IBM failure:

A failed oil pressure sensor on a backup generator could be the reason Air New Zealand’s computer system crashed on Sunday [11 Oct 09] for six hours, IBM confirmed this morning.

The IT failure caused disruptions to more than 10,000 Air New Zealand customers, who were delayed by two hours on average. The computer failure affected the company's booking and check in systems. Passengers had to be manually checked in, which caused further delays.

BetaNews reported:

The CEO of Air New Zealand -- one of the few major CEOs anywhere to have been elevated to the top post from a CIO position -- expressed his disgust last weekend over what he describes as the poor handling of a data center failure at his airline's outsourcing partner, IBM. Rob Fyfe's e-mail, made public by IDG's Randal Jackson, excoriates IBM for its handling of a systems outage that took place at 9:30 am local time Friday morning, and that lasted for at least six hours.

Of needed redundancy, Ron Hughes was quoted:

"A properly designed Tier 3 data center -- which is the minimum level required for any critical applications -- should have no single points of failure in its design. In other words, the failure of a single piece of equipment should not impact the customer," Hughes told Betanews. "A generator failure is a fairly common event, which is why we build redundancy into a system. In a Tier 3 data center, if you need one generator to carry the load, you install two. If you need two, you install three. This is described as N+1 redundancy. It allows you to have a failure without impacting your ability to operate...In a Tier 3 data center, it should take 2 failure events before the customer is impacted."

Linux was also implicated:

The move to outsource data center operations to IBM appears to have happened partly under Fyfe's watch as CIO, and was heavily touted by the time by IBM's marketing literature as a "design win" for mainframe-based Linux. Though some mainframe database operations for ANZ came online as early as 1999, the most lucrative move came in August 2002, when the airline replaced its mid-range Windows NT-based in-house network made up of 150 Compaq z800 workstations, with a single eServer zSeries Linux outsourced mainframe hosted by IBM Global Services.

**IBM filed a couple of problem patent applications on outsourcing.

Monday, October 12, 2009

The refrigerator patent wars heat up

The Joongangdaily quoted LG on the re-hearing by the ITC of the case brought by Whirlpool:

“The commission’s order for another look at this suit was an extremely rare case in the history of ITC judging, and some speculated that it was affected by Whirlpool’s aggressiveness and the spreading of a protectionist stance in the U.S. regarding international trade,” read an official statement from the Korean electronics maker yesterday.

The refrigerator patent wars are changing venue to New Jersey and to Delaware:

Meanwhile on Wednesday [7 Oct], LG sued Whirlpool for infringing its patents on three-door refrigerators in a federal court in New Jersey. The next day, Whirlpool sued LG in Delaware, asking a judge to invalidate the U.S. patent for a refrigerator that includes an ice maker in the door.

WARF, Intel settle Core 2 case

WARF and Intel settled the Core 2 case on 10 Oct 09. See previous IPBiz post
More on WARF going after Intel
. The patent in suit was US 5,781,752, first
named inventor Andreas I. Moshovos; Gurindar Sohi is a named inventor.

An interesting aspect is that support for this work came from both the US government and from Intel (see below).
Of the government: This invention was made with United States government support awarded by the following agencies:

ARPA Grant No. DABT63-95-C-0127;

ONR, Grant No. N00014-93-1-0465; and

NSF, Grant Nos.: CCR-9303030 and MIP-9505853.

The first claim of the '752 patent:

In a processor capable of executing program instructions in an execution order differing from their program order, the processor further having a data speculation circuit for detecting data dependence between instructions and detecting a mis-speculation where a data consuming instruction dependent for its data on a data producing instruction of earlier program order, is in fact executed before the data producing instruction, a data speculation decision circuit comprising:

a) a predictor receiving a mis-speculation indication from the data speculation circuit to produce a prediction associated with the particular data consuming instruction and based on the mis-speculation indication; and

b) a prediction threshold detector preventing data speculation for instructions having a prediction within a predetermined range.

Within the AP article titled UW-Madison's patenting arm settles suit with Intel:

The lawsuit claimed the microarchitecture of the Intel Core family of processors infringed on a 1998 patent based on work by four researchers including Gurindar Sohi, a computer science professor. Intel had supported Sohi's research with about $90,000 in gifts in the 1990s and argued it was entitled to the intellectual property that resulted from the funding.

U.S. District Judge Barbara Crabb rejected Intel's argument in a ruling last month and ordered the case to trial. She said the funding agreements did not specifically give Intel the right to use patents resulting from the work but any infringement by Intel was not willful because the funding agreements were ambiguous.

Cloud-based service failure with Microsoft/T-Mobile/Sidekick

T=Mobile on 10 Oct 09:

"We must now inform you that personal information stored on your device - such as contacts, calendar entries, to-do lists or photos - that is no longer on your Sidekick almost certainly has been lost as a result of a server failure at Microsoft/Danger."

As to the technology, it was used "as inherited":

This technical snafu demonstrates the limitations even the likes of Microsoft, which inherited rather than overhauled the Danger tech, face when not putting redundancy in place to ensure that a simple server outage doesn't cripple an entire service in quite such spectacular fashion again.

The absence of back-up here illustrates a bump in the road for cloud computing.

[from The Register]

Sunday, October 11, 2009

Oct. 11 "Cold Case" a knock-off of Law & Order SVU

The 11 Oct. 09 episode of "Cold Case" featured a plot line wherein a judge [ Judge Harold “Harry” Alvarez played by Miguel Perez ] was channeling juvenile offenders to a facility [Havenhurst] in which his sister-in-law had a financial interest. [There was even a play on the word "jurisprudence," which is also the title of the episode.]

Trouble is, Law & Order SVU had already worked this story line. Law&Order Wikia described this earlier episode:

Hilda Marsden was a judge in the Manhattan Family Court. In her career, she had a reputation for handing down harsh sentences to minor juvenile offenders as a pretense to have them sent away to serve hard time at a facility for sex offenders in Wellsburg, Ohio. The political pundits loved her, viewing her as a corrective to out-of-control kids, but her sentencing brought up serious questions about her judgment, especially after she decided to sentence Kim Garnet to Wellsburg in 2009, for supposed distribution of child pornography for sending nude pictures of herself to her boyfriend.

Following her rendering of this decision, Detective Olivia Benson and Garnet's attorney, Miranda Pond, decided to look at Marsden's records, but were stonewalled by the senior clerk at the Family Court records department, who was receiving kickbacks from Marsden. Benson and Pond were locked up on trumped-up charges, but were released thanks to the efforts of Counselor Samantha Copeland, who had discovered that Marsden's penchant for sending juvenile offenders to Wellsburg was due to her receiving kickbacks from the owners of that facility for every body they received. The Special Victims Unit thus staged a sting, wherein Detective Elliot Stabler met with Marsden in the guise of Mr. Sirota, the supposed parent of a girl whose boyfriend, Pauly Catalano, had totaled a car, and asked the judge to make sure the boy went down hard, then gave the judge a "donation" for her re-election campaign. When the trial came, Marsden sentenced Catalano (actually teen actor and friend to Kim Ethan Morse) to Wellsburg, and the SVU closed in on her. She was promptly disbarred and all of her decisions have been overturned, subject to review. Kim was set free by another judge who overturned her conviction and erased it from her records. (SVU: "Crush")

Marsden was played by Swoozie Kurtz.

Returning to "Cold Case," Deputy Commissioner Patrick Doherty was trying to cover for Judge Alvarez, and did exact some revenge by transferring one of the Cold Case team.


Shows seem to have suffered because they have been displaced to new time periods, like “Law & Order SVU,” which was the leading drama when it played at 10 p.m. on Tuesdays, but now is finishing last after moving to 9 on Wednesdays.

The value of in-house IP counsel experience

From a press release at Reuters:

"We believe that attorneys with experience as in-house IP counsel possess a
much better ability to translate business goals into IP strategy
," continued
Mr. Jonathan Levitt. "Patent GC attorneys are all lawyers who have had to manage
budgets, make strategic decisions about patent portfolios and work with
technology development teams as well as the business teams and investors at
fast-paced operating companies. We believe their in-house experience makes
Patent GC attorneys uniquely capable of providing business-oriented legal
advice in a way traditional law firm lawyers simply cannot

Patent GC will follow Outside GC's low-overhead approach to providing legal
services and will also utilize outsourcing models for docketing and routine
tasks, resulting in a fee structure that, like Outside GC's, will be welcomed
news for clients. "Since 2002, Outside GC has been a tremendous help to our
legal operations, augmenting our in-house capacity to handle domestic and
international transactions, M&A support and joint ventures, all while
providing us significant savings in fees," said Michael Prescott, Senior Vice
President and General Counsel of GTECH Corporation. "We look forward to the
opportunity to benefit from the same model by having Patent GC assist with our
patent work."

**Now, cross-reference this to and
Corporate loyalty and the Cable/Hanson story

Also, note the IAM blog text: BTI is predicting an 8.6% fall in spending on
IP transactional work among the US's biggest companies in 2010.

Corporate loyalty and the Cable/Hanson story

Underlying the story of the (alleged) assault by Raider's coach Tom Cable upon Randy Hanson is the personal dynamic. suggested a tension because Hanson had been hired by Davis, not by Cable.

Though it has been suggested that Hanson was a snitch for Davis who reported to the owner about the behavior of his fellow coaches, he adamantly denied that depiction. However, Hanson conceded that Cable “might have been paranoid about my relationship with Mr. Davis because I was hired by him.”

Hanson's peers backed up Hanson's story:

According to a source close to the investigation, three witnesses – Raiders defensive coordinator John Marshall, defensive backs coach Lionel Washington and assistant defensive backs coach Willie Brown – also provided statements to police investigators which corroborated Hanson’s account of the incident.

Of the earlier history:

After making some disparaging locker-room comments about the Raiders’ preparation following the team’s 41-14 defeat to the Denver Broncos at the start of the 2008 season, Hanson received a five-day suspension for insubordination from Kiffin, who did not inform Davis of his action. The owner cited this as one of many reasons for Kiffin’s dismissal during a press conference last Oct. 1 to announce the firing.

Shortly after Cable was named interim coach, Hanson claims Cable told him in a staff meeting, “If I could fire you, I would.”

Following the ’08 season Cable told his assistants that he would meet with each of them to discuss their futures with the team should he be hired as the permanent coach. According to Hanson, however, Cable “met with every guy but me.”

On Jan. 20, Hanson had what he said was his first-ever “one-on-one, face-to-face meeting” with the owner. In what was supposed to be a 15-minute session to address Hanson’s prospects of remaining with the team, the coach apparently wowed the owner with his grasp of football and with his knowledge of Raiders history.

“We met for more than two-and-a-half hours,” Hanson recalled. “At the start of the meeting, he said, ‘I know you’re a hard worker and you love the Raiders, but I don’t know what you do that helps this football team. I do not know if you can coach or not.’ By the end he had given me a raise and told me he wanted me to stay on as ‘assistant coach-defense.’ My role would be to teach the new defensive coaches what we did on defense last year so they’ll know some of the things I like. He also said he wanted to groom me on the personnel side. He said he wanted me to play an important role in the future of the organization.”

At the conclusion of the meeting, Hanson was asked by Davis whether he thought Cable would be a good choice as head coach. “I told Mr. Davis yes,” Hanson recalled. “He won his last two games, and I felt like he deserved a chance.”

Where does fiduciary duty lie in this situation?

Also, cross-reference Cable's actions to those of Deputy Commissioner Patrick Doherty on the "Jurisprudence" episode of "Cold Case." What does an employee like Hanson do when a superior oversteps his authority?

***entirely separately, on Al Gore's recent question and answer session in Wisconsin:

Story Published: Oct 10, 2009
From the MacIver Institute an entertaining video about another Nobel prize winner's visit to Madison.
Former Vice President Al Gore addressed the Society of Environmental Journalists' annual conference in Madison, Wisconsin on Friday, October 9, 2009. A question and answer period followed the brief address. However, the former Vice President of the United States was not in the mood to answer any questions from skeptics of global warming. His appearance was highly scripted, and when one filmmaker dared ask a tough question...well, just watch this report.

See also

Patents run amok?

Rob Preston of InformationWeek writes :

The system wasn't conceived to enrich inventors. It was set up to encourage innovation, and stimulate the job creation and broader economic and societal value derived from innovation. Letting companies assemble a portfolio of other people's patents for the express purpose of suing alleged violators hardly serves that interest.

Preston is right that the patent system was NOT conceived to enrich inventors. He is not right that the system was set up to encourage innovation. The patent system was set up to facilitate the disclosure of information. With information about inventions publicly known and available to free-market participants, the free market promotes innovation, which is a change in the way people live.

If patents are being granted for inventions that don't meet the requirements of patent law, that problem needs to be addressed at the USPTO. The issue of "who" owns, and enforces, the patents is irrelevant.

Saturday, October 10, 2009

Stanford Daily covering Roche case suggests Stanford is reviewing patent assignment policies

In a piece on 8 Oct 09 [ University loses four-year patent lawsuit ], the Stanford Daily covered Stanford University's big loss in the Roche case. Several parts were of interest.

-->The beginning of the story, which reads: Stanford students concerned about failure can take comfort in the fact that their school can fall short as well.

-->The middle of the story, which suggests the writer does not know much about the Bayh-Dole Act:

The Federal Circuit Court likewise rejected Stanford’s argument under the Bayh-Dohl [sic]Act, which encouraged the utilization of government-funded research conducted by universities. Citing the law, the University’s law team pointed to a tenet that suggested that any government-funded research at a university gave that university a “right of second refusal” at a patent patent [sic].

The court found this argument irrelevant to the facts of the case, declaring that the Bayh-Dohl [sic] Act is not applicable between universities and companies.

Duh, it isn't Dohl. Of course, the outcome of the case suggested Stanford University itself was a bit unclear on Bayh-Dole.

-->The end of the story, which suggests that Stanford University (and other universities) may have to go back to the drawing board:

“Anytime one gets a decision of this type, it’s certainly prudent to go back and review any policies or practices to make a determination as to whether any of those policies of practices should be altered or amended as a result of the case,” said Patrick Dunkley, a senior University counsel. “The University is in the process, at this point, of looking at its policies and its practices to determine if any modifications should be made.”

Some members of the law community also think it is conceivable that other universities and corporations may respond to this decision, noting that a decision of this magnitude would definitely be “on the radar” of any institution that deals with patent rights.

-->And, appropriately, the story ends with a cryptic comment by Mark Lemley, a person who is not a registered patent attorney and who once wrote that Gary Boone invented the integrated circuit:

“I think other universities and maybe other companies, too…anybody who has written their contract to say, ‘I promise to assign’ rather than ‘I hereby assign,’ is going to want to look at this and change what they do,” said Lemley.

“As I understand it from reading the opinion, I think it’s a correct application of its law,” he added. “The law itself is a little odd. The case law on standing to sue…should have a different rule.”

The law is clear, and not particularly odd: to sue to enforce a patent, one has to have ownership rights in the patent. Further, all owners must be joined to sue, as Lucent learned to its great disadvantage in the Microsoft suit. Stanford would have lost on either point.

See previous IPBiz post:

Stanford takes a hit at the CAFC in Roche HIV matter

As a footnote, the Stanford Daily notes that Holodniy (the key figure in the case) is currently a professor at the School of Medicine.

Disclaimer: LBE obtained his Ph.D. at Stanford University.

Watusi, derivative work of L'Escargot?

A comment to a post at MPR titled Art for the White House reads as follows:

Of course, it is reproduction of a 1953 piece by Henri Matisse titled “L’Escargot” (rotated 90 degrees). But one does not really expect originality in the Obama White House.

A later post stated:

Let's call this a "teachable moment." Alma Thomas was indeed inspired by Henri Matisse, and knowingly used his work "L'Escargot" as the basis for "Watusi" - inverting the colors and "twisting" the work to give a new view.

In the world of copyright, there is the concept of the derivative work right. In the world of patents, one can obtain a patent with claims that fall entirely within the scope of claims of another patent. A genus does not necessarily anticipate, or render obvious, a species. A genus could render a species obvious. It depends on the facts.

**As to originality, LBE submitted, well before Nov. 2008, an article to IPFrontline, titled The Problem with 'Gold-Plated' Patents , pointing out that now-President Obama's proposal on gold-plated patents did not originate with Obama AND was not a good idea. IPFrontline published the article on January 26, 2009.

**UPDATE. One blog has noted:

The [Thomas] painting had quietly disappeared from the White House by late October [2009]. The Hirshhorn Museum confirmed it had been returned, but no one in the White House was talking.