Sunday, October 31, 2010

CSI Miami does datura pods

CSI: Miami on 31 Oct. 2010 obliquely presented, but did not resolve, an interesting legal issue. Can one go down for attempted murder when the "attempt" cannot possibly result in murder?

Here, a wife contacted a psychic to kill her husband, with the psychic agreeing to help out, but planning something that would not work. "Hallucinogenic" smoke from a datura-pod laced candle played an interesting role. [from wikipedia: Datura intoxication typically produces a complete inability to differentiate reality from fantasy (delirium, as contrasted to hallucination); hyperthermia; tachycardia; bizarre, and possibly violent behavior; and severe mydriasis with resultant painful photophobia that can last several days. Separately note published US application 20050106267 : [0120] The zeolites may be used for therapy of acute poisonings from a wide variety of plant, animal, industrial and environmental toxins. These include the mitigation, minimization and elimination of toxin-induced clinical syndromes affecting the cardiovascular, respiratory, gastrointestinal, hepatic, renal, hematopoietic and nervous systems from the following list of plants by their common name, scientific name, toxic part and specific poison: (...) datura ]

In reality, a neurotoxin did it, with a 4 pronged puncture on the husband's palm conveying cone snail venom delivered by the boyfriend. Did the wife know?

***One does wonder if certain patent law professors have been tampering with datura, especially as to patent grant rate data, manifesting an inability to differentiate reality from fantasy?

***Of candles themselves

Sure, they make for a cozy ambience, but when you light one made from paraffin—as most candles are—you're potentially harming your health. Researchers at South Carolina State University found that paraffin candles emit chemicals that are linked to liver damage, neurological problems, and leukemia. They can also release a black soot that, over time, may damage your lung and heart tissue, says Jeffrey May, an expert on indoor air quality and author of My House Is Killing Me:

Bed bugs hit Jersey City courts


Officials confirmed last week that both the Hudson County Plaza building and the Jersey City Municipal Court have had recent bedbug incidents.

Apple's US application 20100273538 on nitride layers

The first claim of published US application 20100273538 :

A process for providing a nitrided SUS 316L stainless steel component suitable for use in the assembly of a portable consumer electronic product, comprising:heating a nitrogen based salt bath to an average temperature of no more than C.;forming an initial nitride layer by,continuously exposing at least a portion of the SUS 316L stainless steel component to the salt bath;removing the nitrided SUS 316L stainless steel component from the salt bath after no more than 90 minutes has elapsed; andforming a finished nitride layer by performing at least one finishing operation on the initial nitride layer.

The absract:

A cost effective system, method and apparatus adapted to provide a nitride layer on stainless steel used for the manufacture of consumer electronic products. In addition to providing a durable, hard surface that is both scratch and impact resistant, the nitride layer allows for the natural surface color and texture of the underlying stainless steel to remain visible to the user. It is this natural surface color and texture of the stainless steel that adds to the aesthetically pleasing appearance of the consumer electronic product thereby enhancing the user's overall experience.

***Entirely separately

On Charley Casserly from wikipedia: Casserly started with the Redskins in 1977 as an unpaid intern under Hall of Fame coach, George Allen. (...) [In 1982] Casserly also re-instituted the club's intern program, which has produced more than 20 league executives over his years in Washington and Houston.

On the CCC at HCCC

The Culinary Conference Center’s Professional Kitchens provide the ideal venue for team building activities. Kitchen Team Building Activities can range from:
A competitive cook-off, Iron Chef style
An orchestrated collaboration to strengthen cohesiveness of the entire team

CBS Sunday Morning on October 31, 2010

Charles Osgood introduced the All Hallows Eve show, with the cover story on nightmares: "Your worst nightmare." The second story was by Martha Teichner on Houdinin who died on Halloween. The third story was by Katie Couric with Clint Eastwood on afterlife. The fourth story was "to the point', on the greqt throwdini. There was mention of Clown-phobia.

Headlines: the investigation on the plot to bomb American synagogues. PETN explosive. Yemen to Doha. Wyatt Andrews did the Sanity Rally (Stewart and Colbert). A bedbug poster was in view. If we amplify everything, we hear nothing. An appeal for less heat and more light. Hurricane Tomas now category 2. Volcano in Indonesia. Texas Rangers win 4-2. A new Miss World.
Weather: good trick or treating weather.

Susan Spencer of 48 Hours presented "Your Worst Nightmare," beginning with New York's Haunted House, but then switching to stories of real-life nightmares. Not just bad dreams but horrifying dreams. Antonio Zandra of the University of Montreal has studied about 10,000 dreams over about 20 years. In 1781 Andre Masillie did a painting. Most common nightmares reflect our deepest fears. People who are anxious are more likely to have frequent nightmares. Ross Levin was inspired by The Exorcist. By thinking of an alternative ending during the day, the nightmare can be re-scripted. Maxine Gann tries to find the meaning of nightmares. Teeth falling out reflects a transition in life. The promise of a cure fell flat with the nightmare sufferers who were interviewed by Spencer.

The next story was by Steve Hartman on carving pumpkins, a reprise from a piece on "CBS Nightly News" (Couric). Reinventing the art of pumpkin carving using sculpting tools. The former grade school teacher Ray now sculpts full time. No matter what you do you have to be great. [Previous piece: Meet the Edward Scissorhands of Pumpkin Carving on Ray Villafane on 25 Oct 2010 }

Writing obituaries by Jeff Greenfield, with Elton John in the background, then Grant's tomb. Mary Emma Allison. Obits only have one line about death, the rest is about the life. In the old days, obituaries just for being upstanding members of society. In the early 1980s, Jim Nicholson in Philadelphia. Rowhouse people. Every person has one good story in them. Kay Powell: humor and an offbeat lead. Geoge Hopkins died again on Friday. Didn't use going going gone for an auctioneer. Jade Walker, the blog of death, searching YouTube. Art Buchwald, the last word, spoke about death six months before he died. The NYT on 9/11: how to deal with a few thousand dead. Portraits of grief ran everyday for 2.5 months, with focus on one trait of each person. Chronicle death on a daily basis: make the most of what we have. What would mine say; how would you capture your life in 205 words.

The next piece was on Houdini, beginning with a clip from the movie on Houdini with Tony Curtis. Houdini died on Halloween, 1926, Brook Kamen Rapoport curator of Houdini Museum. In 1907, Houdini had himself filmed jumping off a bridge in Rochester, NY. Houdini's biggest feat was the invention of Harry Houdini. He was born March 24, 1874 in Budapest. Kenneth Silverman, biographer, discussed aspects of his life. At age 14 did performance as circus acrobat. Harry Houdini a name taken from a French magician. The metamorphis trunk appealed to immigrants. People wanted to become Americans; a story of liberation from your past. In 1910, a flight in Australia. In 1920s, silent films. Practiced staying under water. The Chinese water torture cell. David Blaine. Houdini spent the final years of his life exposing spirit mediums. Death bead pact with his wife. Houdini died from a ruptured appendix. For a decade after his death, he would communicate with his wife with a secret code. Will wonders never cease?

Mo Rocca does "fears of a clown." The evil clown (including a clip from Killer Klowns from Outer Space. [Royal Dano played Farmer Gene Green]). Something awful. Clown is a cadaverous figure. Smiling or bearing his teeth. John Wayne Gacey, Pogo the Clown. Insane Clown Posse. Violent J. Shaggy 2 Dope. Barry Lubin. "Fear of clowns" not discussed in clown college. Coulrophobia

Rita Braver does Tombstones to die for. beginning in Sleepy Hollow New York. 1949 Disney film. Barnabas Holland, vampire.
Doug Keister does books on tombstones. Andrew Carnegie, Celtic cross. Darling Leo, a cocker spaniel. Helmsley mausoleum, with Maltese "Trouble." Helmsley brought a lawsuit against Woodlawn Cemetery. Oliver Belmont, da Vinci tomb replica. Miles Davis, F. W. Woolworth. Clark Dunlop, patent medicine maker, with a parrot skeleton. Reference to Night of the Living Dead.

A very scary Sunday Morning introduced the Couric piece on Eastwood, with various clips from Eastwood movies. When Clint Eastwood wants you dead, you're dead. Nobody is in a rush to find out. Clips from "Hereafter." Damon: I'm optimistic that there is a point to this. Everyone is curious about the hereafter. The pivotal question of existence. Raymond Moody on near death experiences. He coined the term near-death experience. New age mumbo jumbo. Steven Protherow at Boston University. Moody's concept as a self-fulfilling prophecy? Psychosomatic? Shared death experiences. Connie Philips; Betty Jo Philips. Digital immortality. Avatars. Intellitar. Start today. Give a photo and life story, and your avatar can talk to future generations. The piece ends with a Couric Avatar, and a view of Mel Blanc's tombstone: that's all folks.

Next on headstones. Rodney Dangerfield: There goes the neighborhood. Frank Sinatra: The best is yet to come. Dean Martin: Everybody loves somebody some time. Edgar Allan Poe: Nevermore. Lugosi: beloved father. Jackie Gleason: And away we go. Sonny Bono: The beat goes on. Jack Lemon: "in." Merv Griffin: I will not be back after this message. Mel Blanc: that's all folks.

Pulse. Do you believe in ghosts? 42% said yes.

Preview for Face the Nation with Bob Schieffer turned out to be a rather extended piece: Nixon-I am not a crook. O'Donnell-I am not a witch. 3 billion dollars spent on campaign commercials this year. If you don't see the ad, why bother to put it on. Demon sheep. In tough times, there is no place for subtlety. Don't expect a rubber stamp ad. Push the boundaries. Unsettled times give "characters" running for office. Outside the mainstream. Uncertain economy gives uncertain political landscape. Allusion to Know-nothing ("pre Civil War"). Ed Gillespie is taking nothing for granted. 82% of people disapprove of the job Congress is doing. The scariest question of all.
Time is not clearly on America's side, the way it used to be.

Bill Geist on getting to the point. Dave throwing knives at people. Dave is a minister in Long Island. Wheel of death. The Great Thowdini (Adamovich). The veiled wheel of death. Incidents involving scrapes. Why would anyone want to be a target group. "That was pretty cool when I was doing that." That's how the species got this far. No flinching in the impalement arts.

Moment of nature. Nobles Trail in Nevada with tarantulas.

Note: Tarantulas plentiful at area parks as autumn mating season reaches full swing

A virtual tour of the Nobles trail

Friday, October 29, 2010

CBS "Blue Bloods" re-writes chemistry of KCl

On "Blue Bloods" on 29 Oct 2010, the killing agent was purportedly potassium chloride (KCl) administered orally with a designer drug M-cat.

The police identified the deadly KCl by heating it over a Bunsen burner, at which point the white solid turned purple.

In the real world KCl is taken orally in drugs such as K-Dur, Klor-Con, Micro-K, Slow-K and Kaon Cl. The lethal oral dose of KCl, measured in terms of the LD50, is around 2.5g/kg (meaning that a lethal dose for 50% of people weighing 75kg (165 lb) is about 190g (6.7 ounces). The amount of KCl in the little piece of M-cat would not be fatal.

In the real world, KCl melts at 770degC, and does not turn purple. [Materials with potassium cations can give a purple color in a flame test; wikipedia: As with other compounds containing potassium, KCl in powdered form gives a lilac flame test result. This is not a unique test for KCl. The "Blue Bloods" segment did not depict a flame test. See a video of a flame test. ]

The episode also delved into Twitter.

And, yes, the chemistry teacher did it.

Opinion piece on Del Castillo plagiarism matter

from an opinion piece in the Philippine Star:

Amazingly, the Supreme Court adopted the findings of its Ethics committee that the “errors” in the subject decision was made by the legal researcher during the preparation. It ruled “that the magistrate is not guilty of misconduct and gross inexcusable negligence” because the plagiarism was done without “malice of intent” and was merely an “accidental removal of proper attributions”. It is difficult to believe that Del Castillo and his staff forgot to attribute their sources or accidentally deleted their references fifty-nine times! An early onset of Alzheimer’s would have made a more plausible explanation.

To condone and coddle its own is already a shameless act. But not content with that, the Supreme Court is now attempting to extract a pound of flesh from thirty-seven UP Law professors who signed a manifesto against Del Castillo. In the most outrageous display of arrogance and highhandedness, the tribunal has issued a show for cause order against the signatories. In the entire saga of Philippine jurisprudence, never has the highest court of the land so recklessly staked its institutional integrity. It is so reminiscent of the spite shown in nine years of the so-called “Strong Republic”. And why not? This is a 100% Arroyo-appointed court, with the midnight appointment of Chief Justice Renato Corona as the final coup de grace.

The international legal community is aghast at the Supreme Court’s ruling for such a serious offense as plagiarism, compounded by the vindictive action taken against the UP Faculty of Law. Supposedly this war is being instigated by the Ateneo Law Faculty, headed by the wife of Justice Del Castillo. Furthermore, the credentials and basis of Del Castillo’s appointment to the high court is now under scrutiny. Described by some in-judiciary as “not being the sharpest tool in the shed”, Del Castillo supposedly wooed GMA until she acquiesced, no doubt with a quid pro quo.

Papa John's sells its pizza over the internet

In terms of trademarks and things, one observes a quarter of Papa John’s pizza orders are made via their website, and the company is going for 50%!

Papa John's did a study which found that people are more likely to spend money online if they receive some kind of reward for doing so. Hmmm, and what about the customers who buy in-store? Loyalty for them?

See also

Jaffe/Lerner live on in 12 YALE J.L. & TECH. 240 (2010)


For a summary of the ills of the modern patent system and critiques against it,
AND WHAT TO DO ABOUT IT (2004). As the National Research Council of the
National Academies noted, “patents on trivial innovations may confer market
power or allow firms to use legal resources aggressively as a competitive
weapon without consumer benefit.” NAT’L RESEARCH COUNCIL OF THE NAT’L

Of interest to this author was the reference to Cecil Quillen on patent grant rate:

Grant rates are highly contested figures. See, e.g., Cecil Quillen & Ogden
Webster, Continuing Patent Applications and Performance of the U.S. Patent
Office, 11 FED. CTR. BAR J. 1 (2001) (“The Grant Rate (allowances divided by
total disposals, i.e., the sum of allowances and abandonments) for the USPTO
for its fiscal years 1993-1998, corrected for continuing applications, ranges from
87% to 97%, depending on the extent to which prosecution of abandoned
applications was continued in re-filed applications. Reported Grant Rates for
1995-1999 for the European and Japanese Patent Offices (averaged) are 67%
and 64%, respectively.”).

The Yale authors apparently didn't read 4 CHI.-KENT J. INTELL. PROP. 108:

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

The Yale authors' punchline is related to patent citation numbers!

Further, Trajtenberg
argues that cited patents, and not simple patent counts, are
correlated with patent value. In his data, about half of patents are
not cited, again suggesting that about half of patents may be
classified as substandard.72 Finally, Jaffe and Lerner summarize
evidence from the OECD indicating that the growth rate of USPTO
granted patents is twice that of “economically significant” (or
triadic) patents.73

Assuming 50% of filings are substandard and there are
400,000 filings per year, there are about 200,000 substandard
patent filing at the USPTO annually.74 At an average cost of $7500
per application, the annual deadweight loss from administrative
costs related to the acquisition of substandard patents is $1.5
billion. While this is certainly a large number and a significant cost
of substandard patents, it is far below the deterrence caused by substandard patents.

"This is my first company I've started that could turn into a billion-dollar business”

So says Jim McGill of Macrosolve, all because of US Patent No. 7,822,816.

UHawaii allowed release of social security numbers of 40,000 students

AP noted:

University officials told the AP that a faculty member inadvertently uploaded files containing the information to an unprotected server on Nov. 30, 2009, exposing the names, academic performance, disabilities and other sensitive information of 40,101 students who attended the flagship Manoa campus from 1990 to 1998 and in 2001. A handful of students from the West Oahu campus were included in the security breach.

This confirms the reality that --just because someone says something will be treated confidentially does not mean that it will be treated confidentially.--

Nondisclosure agreements and the like should be contemplated in that context.

Note post at Chicago IP Litigation Blog:

A jury previously returned a verdict finding Sears liable for breach of a nondisclosure agreement and misappropriation of RRK's trade secret related to its spiral saw


Sears prevails against Cargill over road de-icer patent
: Sears [not that Sears!] claimed that Cargill officials stole its secret formula after officials from the two companies met in July 1999 to talk about a possible partnership.

See previous IPBiz post

Prosecutions under the 1996 Economic Espionage Act (EEA)
concerning the text beginning with:

Shanshan Du joined GM as an engineer in 2000, signing an agreement to protect proprietary information created or obtained during her employment.

See previous IPBiz post

New Jersey Supreme Court protects social security numbers

***In passing, on fraudulent nondisclosure of information, see Schaller v. Golden Sky, 298 F.3d 736

***UPDATE. As to Obama birth certificate.

from a post on 18 January 2011:

Hawaii Gov. Neil Abercrombie suggested in an interview published today that a long-form, hospital-generated birth certificate for Barack Obama may not exist within the vital records maintained by the Hawaii Department of Health.

Abercrombie told the Honolulu Star Advertiser he was searching within the Hawaii Department of Health to find definitive vital records that would prove Obama was born in Hawaii, because the continuing eligibility controversy could hurt the president's chances of re-election in 2012.

Trump brings media blitz to NBC, ‘steamrolls’ Meredith Vieira on birther issue

Obama's birth certificate: Final chapter

Second thoughts about that birth certificate which includes

Obama defenders say that the he did release his birth certificate, making the entire argument moot. That is true ... sort of. In June 2008, the Obama campaign released of a "certification of live birth," which was examined and photographed by

The document lists the birth of Barack Hussein Obama II on Aug. 4, 1961 in Honolulu, Hawaii. However, critical information often contained in an original birth certificate, including physician and hospital of delivery, is missing. explains why:

"The document is a 'certification of birth,' also known as a short-form birth certificate. The long form is drawn up by the hospital and includes additional information such as birth weight and parents' hometowns. The short form is printed by the state and draws from a database with fewer details. ... We tried to ask the Hawaii DOH why they only offer the short form, among other questions, but they have not given a response."

AND a comment with text:

I needed my BC for my passport. I was born in September of 1961, just 1 month after Obama. I skipped down to my Health Dept and asked for my BC, was given something very closely resembling what Hawaii gives. NO GO! State Department promptly returned it to me and told me to go get a long-form. I went back to my Health Dept and told them, and they said - of course you have to have your long-form for a passport, why didn't you tell us you were applying for it. So 2 hours and $40 some dollars later, I walked out with a certified copy of my long-form BC - sent it off and got my Passport.

Thursday, October 28, 2010

The Sewing Machine Patent War

A WSJ blog highlights a law review article on the patent wars in the area of sewing machines:

The Sewing Machine War ended with a just and lasting peace in 1856, when Orlando B. Potter–a lawyer representing one of the plaintiffs–suggested a solution that Mossoff calls “groundbreaking but also breathtakingly simple”: The patent-holders would combine their patents in a “patent pool” and share the profits from selling the machines.

See previous IPBiz posts

Patent pools don't encourage innovation
[quoted text therein: Specifically, we find that pool members patent less while the pool is active. This result may reflect a benefit of pooling: To the extent that a pool reduces the risk of
litigation it also eases the need for strategic patents. ]

Wednesday, October 27, 2010

Enrile speaks out on del Castillo plagiarism matter

Of the recent development in the Del Castillo matter, Philippine Senate President Juan Ponce Enrile noted:

“I respectfully submit that the Supreme Court's independence, honor and integrity were not besmirched by the release of the U.P. Law faculty's statement. The Court's independence, honor and integrity, including its moral ascendancy, have been placed under a dark cloud of doubt unfortunately by the intellectual dishonesty of one of its own.”


“when the Highest Court's attention was invited to the plagiarism, the public, not only the academe, rightly expected that the Court would make sure that such reprehensible conduct would not be allowed to stain the Court's reputation"

Tuesday, October 26, 2010

"The Good Wife" reprises the blue dress

"Four hours to decide if we sue the most beloved Democrat in America." In the show, this is one "Joe Kent," Nobel Prize winner.

The issue is what happened during a VIP massage session at a Chicago hotel. As one line --> Special attention to the adductor, as a proxy for sexual contact.

"Great men like video games."
"Lipstick on a champagne glass."
"I'm going to show you something but I still have to decide if I'm going to do this." right before disclosure of an incriminating towel (text: "uncontrolled emission" (antecedent: the blue dress)

The show has a fist fight between two lawyers, one of which is Will.

The goal is not to have heros.

At the end of the show, the victim walks away from the case-->

"People don't want to believe this about him. Thanks."


Vernon Jordan does a cameo.

from Letterman: "Yes we can" changed to "We thought we could."

****In passing, on Katie Couric

Katie Couric, On the Move :

her newscast remains mired in third place—tying a 20-year low in August, with 4.89 million viewers, during a trip to Afghanistan. (...)

Couric has some prominent detractors at CBS News. But Moonves, the only person whose vote counts, remains close to her, and she has developed a stronger relationship with CBS News President Sean McManus.

NCIS-LA does the chemistry of Sarin

Keeping with the theme of heavy-duty chemistry in the NCIS "Cracked" episode on 26 Oct 2010, NCIS-LA gave a brief look of the chemistry Sarin.

Isopropenol, sodium fluoride, phosphorous trichloride and acetonitrile--are all useful in its production.

The benefits of scientific blogging

A blog at The Scientist notes:

But in early 2005, he started a blog after hearing about the virtual world, Second Life. Eisen says that his eyes were opened to the nearly endless possibilities to be explored by taking scientific discussions to cyberspace. He started blogging that week, initiating his own collaborative discussion about science.

Fast forward to today—Eisen is the toast of the science blogosphere and the recipient of a new $1.3 million grant from the Sloan Foundation, which has tasked him with creating Web tools that cultivate a network of researchers working on the molecular biology of microbes that inhabit man-made environments such as homes and offices. The Sloan Foundation contacted Eisen and asked if he’d like to submit a proposal for the grant, in part because of his blog, he says.

Blogging may seem like just another extra task to add to your busy schedule, with its own pitfalls to navigate. But creating a site and finding compelling topics to write about (that won’t damage your image) can provide real benefits to your scientific career. Below, successful scientist-bloggers reveal the secrets.

As to getting a job through blogging:

In 2006, Bora Zivkovic was posting regularly at A Blog Around the Clock and coming off a graduate school stint, studying circadian rhythm biology when he heard of a job opening for an online community manager at PLoS. One weekend Zivkovic posted the job description on his blog under a heading that read, “I want this job,” and asked for comments on what he should do. His readers responded en force. “My commenters starting piling on about how I was the perfect candidate,” Zivkovic recalls. “Some addressed PLoS directly, saying they’d be crazy not to hire me.” By Monday morning, the comments had mounted, and an e-mail from a PLoS editor, Chris Surridge, topped Zivkovic’s inbox. “Should we consider this a formal application?” read the message from Surridge. Weeks later, Zivkovic had the job. “They told me that my commenters pretty much gave me the job,” he says. “It demonstrated to them that I already had a community and that I knew how to create one.”

NCIS "Cracked" episode does biofuels, patents

The NCIS episode titled "Cracked" on October 26, 2010 gave a healthy dose of US Navy - sponsored research on biofuels, and two distinct references to patents.

Of the former, bacteria (nominally E. Coli) would consume CO2 and return biofuel.

Of the latter, patents were mentioned twice

--> he who gets the patent first, gets rich

--> in the context of a patent (application) on making biofuel (here, ethanol), a patent turn-down because of the presence of a toxic co-product, formaldehyde. In the real-world, patent applications are not turned down because of toxic co-products.

In the plotline, the brilliant female engineer (character "Clea Thorson " ) was fired by one biotech company, then hired by a competitor (so much for non-compete agreements). She was poisoned by a jealous co-worker at the first company.
{It was not totally clear "why" Clea was fired by the first company; not a "team player?"]

A different blog described the the key plot discovery: Thorson had discovered a way to change bacteria into fuel. McGee finds a connection to Rupert Kritzer--Mr. K.--and Gibbs brings him into interrogation. He didn't want the project they were working on to get back to Stillwell, and Gibbs suggests that as motive, but Kritzer denies murdering anyone.

Actually, the bacteria converted CO2 into fuel. [although E. Coli would not be using photosynthesis.] And Kritzer indeed did not want Thorson's work for him to get back to Stillwell.

Monday, October 25, 2010

"Thankfully the Patent Office and the Courts have chosen to largely ignore the Supreme Court test "

Of KSR v. Teleflex, IPWatchDog writes:

The “common sense” test urged by the Supreme Court, however, ignores that fact that after one learns of something it is always common sense. In essence, the Supreme Court test is overly simplistic and unrealistic. Thankfully the Patent Office and the Courts have chosen to largely ignore the Supreme Court test, but that only adds to the confusion for inventors.

Of "what happened" in KSR, Wikipedia writes:

Justice Kennedy's opinion stated, "A person of ordinary skill is also a person of ordinary creativity, not an automaton." He acknowledged that his description of a person having ordinary skill in the art (PHOSITA) does not necessarily conflict with other Federal Circuit cases that described a PHOSITA as having "common sense" and who could find motivation "implicitly in the prior art." (...) The opinion does denounce procedures that bar the use of "common sense" in multiple instances, including where "[r]igid preventative rules that deny factfinders recourse to common sense, however, are neither necessary under our case law nor consistent with it."

Of the attention paid to KSR, Wikipedia writes: The USPTO Board of Patent Appeals and Interferences (BPAI) is citing KSR in about 60% of its decisions related to obviousness irrespective of whether it affirms a patent examiner's rejection or reverses the rejection.

Of searching prior art, IPWatchDog writes:

So how is it possible that an inventor who searches cannot find prior art? This is typically a result of failure to adequately describe the invention and then searching only limited characterizations of their invention. For example, most inventors will look at what they have invented and then do a word search to see what else is out there. Frequently nothing will be found, not because there is nothing that could be found, but because the description searched is unnecessarily limiting.

Looking back to the invention of the transistor, one recalls that at the time of the invention, the word "transistor" had not been coined. Somehow, the Bell Labs people uncovered the work of Lilienfeld.

Gemalto sues Google (and others)

Gemalto SA v. HTC Corporation, HTC America Inc., Exedea Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America LLC, Motorola Inc., and Google Inc. was filed in ED Texas (Tyler) on 22 October 2010.

The allegation is that the Android falls within the scope of patent claims covering Java Card technology, which allows software written in Java and other “high-level programming languages” on resource constrained devices.

ZDNet notes: Gemalto was formed in 2006 in a merger between smart card companies Axalto and Gemplus.

****Relevant patents

6,308,317: “Using a high level programming language with a microcontroller” by Wilkinson et. al. and assigned to Schlumberger Technologies, Inc.. Prosecuted by Jansson; Pehr B. Maseles; Danita J. M.. Includes 87 claims (10 indep.). Was application 08/957,512. Filed 10/24/1997 & Granted 10/23/2001.

7,117,485: “Using a high level programming language with a microcontroller” by Wilkinson et. al. and assigned to Axalto SA. Prosecuted by Jansson; Pehr. Includes 44 claims (8 indep.). Was application 10/037,390. Filed 10/23/2001 & Granted 10/3/2006.

7,818,727: “Using a high level programming language with a microcontroller” by Wilkinson et. al. and assigned to Gemalto Inc.. Prosecuted by Jansson; Pehr B. The Jansson Firm. Includes 20 claims (3 indep.). Was application 11/537,156. Filed 9/29/2006 & Granted 10/19/2010.

"South Park" guys admit copying

TV Guide noted:

The South Park episode, titled "Insheeption," and a CollegeHumor video both featured the same lines that mocked the complexity of the film, but were not actually from the film. One line in particular —"Sometimes my thoughts of my dead wife manifest themselves as trains." — was exactly the same.

Matt Stone, unable to obtain the actual film, pulled the line from the CollegeHumor video thinking it was from the Christopher Nolan drama.

"It's just because we do the show in six days, and we're stupid and we just threw it together," Stone told the New York Times. "But in the end, there are some lines that we had to call and apologize for."

If South Park had copied from Inception, that would have been deemed protected parody (see Mad Magazine). But if South Park copies a line from another maker of parody (a competitor of South Park, as it were), that could be copyright infringement.

Voices.washingtonpost noted:

The similarities between the Gurewitch/Young video on and the recent scene from "South Park" are beyond striking, even in a blogosphere of countless "Inception" parodies. To "South Park's" credit, Parker and Stone didn't try to dodge the issue, deny responsibility or claim Incredibly Eerie Coincidence. Instead, they did the straight-up thing: They apologized.

(The repentant "South Park" creators surely are smart enough also to know they're now on a kind of pop-culture probation; were a second ripoff to occur, inadvertent or no, viewers wouldn't be so forgiving.)

Sunday, October 24, 2010

Intentional bad acts: in football and in plagiarism

On October 24, Beasley Reece was talking with Ike Reese about the new rules for dangerous and flagrant hits implemented by the NFL. Ike launched into a polemic about how bad the new rules were, and how they might be related to the owners' desire for an 18 game season.

Of the hits of last week that have grabbed some attention, Ike found only one that was problematic, that by Patriots Meriweather, which he deemed to be intentional.

Limiting severe penalties to intentional acts of harm makes sense in football. Football is a contact sport, and people are going to get hurt, sometimes in plays that look pretty dangerous. These plays happen quickly and there's no re-do. In the world of plagiarism, nobody is forced to copy the work of others without noting the source, and there is time to review things to check things. Football players get one shot at a play, and it is over. "Copying without attribution" occurs with or without admitted intent, and does harm to the copied writer and to the reader. It should be punished. If the copying is done with knowledge that credit is being taken for someone else's work, penalties should be enhanced.

Of course, there will be few people who will admit to intentionally doing a bad thing, in plagiarism or in football. In the world of plagiarism, copying is self-evident from objective analysis, and in the world of football, observers can witness helmet to helmet contact. The do-er of the bad deed will generally not admit to intending to do it. In the present case discussed by Ike Reese, notwithstanding what Ike Reese said on October 24, Meriweather says the hit was unintentional.

Anne Marie Green talked about the hit on Eagle DeSean Jackson by Dunta Robinson. Robinson was fined but so was Eagle QB Kolb for a horse collar tackle.

"Jolly Talk" addressed the issue of intent.

from ESPN:

New England Patriots safety Brandon Meriweather, who was fined $50,000 by the NFL for two helmet-to-helmet hits on Baltimore Ravens tight end Todd Heap in Sunday's win over the Ravens, told reporters in the locker room Wednesday that he was "sorry for the hit" and that he wants to move on. (...)

Meriweather had said Monday that his hit on Heap was not intentional and that any punishment handed down by the NFL would not alter his aggressive approach to the game.

"I'm going to be aggressive, point blank," Meriweather said during his weekly interview on Boston sports radio station WEEI. "I won't change my game, period. I'm sorry it happened. Heap is actually a real good friend of mine. I talked to him yesterday and let him know it wasn't intentional and he told me he understood."

The website betus was a bit foggy on Meriweather's position:

The New England Patriots will catch a break this week as linebacker Brandon Meriweather escaped with just a $50,000 fine for his helmet to helmet hit on Todd Heap. Had the hit happened this week, he would have been suspended under the new NFL rules. [discussed on betus]

Are employee-inventors fungible?

In a story about the development of a new type of sensor to detect shock waves traveling through steel, one WIlliam Ketel describes some careless work by one consultant, and how the internal employees solved the problem.

The set-up for the story portrays the consultant riding in on a white horse to save the day:

One day a consultant who was working with us on the project announced that he had found the solution, and had even published and circulated a report on his discovery. (...)When the generator was set to the plates resonant frequency, just one cycle would produce a beautiful copy of the signal, from the sensor. A breakthrough! Our consultant was going to publish a paper about HIS discovery, since it was so wonderful!

Of course, the consultant's work had a bit of a problem:

The sad reality hit: The beautiful signal that I was seeing [using the consultant's approach] was capacity coupled from the driver. Grounding the metal plate removed all of the simultaneous signal, and left my noisy delayed signal visible, and ugly. I disconnected and re-connected the ground several times, and verified that was what was happening.

I wrote a report describing what I had done and the results that I got, and then discussed it with my boss. He seemed a bit relieved that the discovery was not something that he had overlooked, and should have discovered himself. At the same time, he was disappointed that it did not work. So now I had to find a way to make it work. I thought that it was a good concept.

The idea was re-worked to succeed, but the bottom line was a bit interesting:

We used the back-to-back configuration of driver and sensor quite a bit, and during every testing sequence, part of the procedure would be to disconnect the ground lead from the driver and observe that there was no capacitive signal coupling into the sensor. We called this “the cheap reality check.” While my manager realized the value of this discovery, the division manager continued to believe that “all engineers are interchangeable,” and he showed his respect accordingly.

This relates to how senior management may view intellectual property and those to create it. A good created by fungible people. Sadly, all scientists/engineers are not inventors.

The comments to the story were interesting:

Of consultants:

"If you're not a part of the solution, there's good money to be made in prolonging the problem."

In favor of the consultant:
So, let me get this straight. You're taking credit for refining your consultant's idea, then you're bashing consultants.


What a pathetic article by William Ketel. Here comes this individual (consultant) with a good idea none of the others in the team thought of and which obviously needed work (engineering does not come without sweat) and William has to immediately bash the consultant since the idea was not perfect, and further goes on to claim the glory for the idea for having stolen it and then finished it.


My experience is that the majority of the time, the problem is with people in the client's organization -- not with the consultant. People like Ketel are over-night experts who generally knew nothing about the subject until poaching someone elses idea. I bet his co-workers really love him.


The outside consultant has classically been the duty whipping boy. The consultant is not always like by the engineering staff, because he represents their failure to solve the problem. I see it like the role of a Irish wake eater. The consultant is their to eat the sins of the engineering department and 'make it all better and have the problem go away' for the engineering department manager.
As they often say, the consultant knows exactly where to kick the box and make it work, not necessarily how to kick the box. He is the idea man the comes in to refresh the train of thought of the engineering staff to a new solution approach. this is often his best value. Engineers that work on a project for over a year, get tunnel vision and need new ideas.

On the point of interchangeable employees:

Here's an example. I originally was going to make this comment, in response to the article: "Engineers are interchangeable? He must mean until they're 40 or 50. Then they suddenly don't fit anymore."

I changed my mind after I read some of the other comments to the article, and realized that it was probably going to be taken the wrong way, and criticized for being unfair. So, let's analyze:

My first impulse to leave a funny comment (or sarcastic, but in a collegial, friendly way) was to refute the point made by the engineering division manager, that engineers were completely interchangeable. My point was, if that is so, then why is there such age discrimination against older engineers? Now, I purposely left out a discussion of how not everyone thinks that way, because that would have buried the point I was trying to make.

The bottom line is that sarcasm, humor, and stories in general need to be somewhat economical in their speech, logic, and reason, to make a point stand out. I wouldn't fault the author of this article for using standard techniques of communication to get across the point that the presumably lower paid staff engineers can be just as good as the consultants, and that NOT all engineers are interchangeable.

[Conference on Innovation in New Orleans last week sponsored by the Daily Beast.]

CBS Sunday Morning on October 24, 2010

Charles Osgood introduced the stories for 24 October 2010: Tom Blackstone on The Big One; Julie and David [Eisenhower];
Keith Richards[ Steve Hartman on “everyone has a story” Remarkable earthlings I found.
News for October 24: Health workers cholera outbreak in Haiti; Cache from wikileaks. Human toll to innocent Iraquis. Swoboda: IraqBodyCount. 15K previously unreporteted. 150000 dead since 2003. David Martin reported. Giants beat Phillies. Katy Perry wedding in India. Weather: Storms roll eastward from plains.

The Great California Shakeout. San Francisco mayor Gavin Newsom: duty to be prepared for earthquake. Seriousness of earthquakes has been made tragically evident in last year. Tom Heath, prof of Geophysics at Caltech. 7.2 in Baja in April. Noting could be finer than an earthquake that is minor. San Andreas is lock and loaded and ready to go.
Over time, we have to have earthquakes to release energy. Next one could be mag 8.
1994 NorthRidge quake. $40 billion. Mag 6.7. A magnitude 8 quake is 40 to 50 times more powerful. [The Richter scale is
Mag 8 shaking could last full minute. In SF quake of 1989, the duration was 15 seconds and was centered 70 miles south of Bay area. Hayward fault is overdue. SF egion is rife for quakes. You can run but you can’t hide. 3000 died in 1906.
Up to one minute of warning on San Andreas fault. Use of smartphones to give warning.
Bay Bridge retrofit. Replacement scheduled for 2013.
Lesson from California: A place where the past can be wiped away, and everything started a new.

Almanac. October 24, 1901. Annie Edson Taylor went over Niagara Falls. 63 year old retired teacher. Survived. After her, 11 out of 16.

Fountain pens. Rita Braver starts the piece with a fountain pen repairman who views his work as giving people back a piece of their heritage. Richard Binder, once a software guy does repairs in New Hampshire. Specialty: the nib. Binder has a 4 month backlog. Half dozen repairmen in world. Washington PenShow. Lewis Waterman patent shown on tv screen. 1883. David oscarson. Ivory with black onyx. Yellow jade with purple jade on top. Kareem has over 400 pens.
[Coming up: Lee Child]

Everybody in the world has a story. Cordoba, Argentina. 1.3 million. Sandro Govanni. Sondro argued with his dad, especially about Sondro’s future (dad wanted farmer; Sandro writer). At age 16, Sondro ran away from home.

Story on Lee Child. Worth dying for by Lee Child. Lee talked of 10,000 to one odds mentioned by his father. 15 books 40 million copies. Boucheron. Mystery writers convention in SF.
But for simple . Jim Grant is real name. born in England in 1954. Granada Television; Brideshead Revisted. Fired at age 40. I know the audience; I know how they think. Legal pad and pencil. Killing Floor, set in US. 6 5 Jack Reacher. He’s the hammer not the nail. Noble loner. Strong silent types. Reacher creatures. The White Knight. Duncan Monroe won a look alike contest.

NY's Guggenheim: backdrop for YouTube video. Outdoor show ended Friday; still available indoors. Animated musicality of birds on the wires. Seaweed from Great Britain. The Huber Experiments. The videos will remain on YouTube.

Julie and David by Mo Rocca. David: "I wanted to be at my best around him." Dwight Eisenhower went to Gettysburg in 1960.
Book by David: Going home to glory. David and Julie met at second inaugural in 1957. Started dating in college (Amherst and Smith). "moderate Republicans". Nixon was a progressive. Eisenhower was a middle of a roader. Eisenhower died in March 1969.

Another "Everybody Has a Story " piece was recycled from a previous showing on "CBS Evening News."
From Chengou, China. No white pages there; just yellow pages; so Steve used the yellow pages to make a selection. On Sha Wa You from "Lucky Bag" company. Men are like "I am the emperor." Marriage began in 2007 but ended in divorce, with the divorce kept secret from her parents. Like America: "I can decide what I want."

Anthony Mason discusses the book by Keith Richards. [This story is also related to one on CBS Evening News.] There are two Keith Richards, one real and one mythological. The world's most elegantly wasted human. Richards has a home in Connecticut. If Keith Richards didn't exist, rock and roll would have to invent him. Total blood transfusion in Switzerland was a myth. Dartford, England was where Ricky grew up. Richards met Jagger in Dartford, and wrote about it in 1962. Rock's irreverent bad boys. "I used to love heroin." Get away from the flim flam. All the unnecessary things in show business.
Toughest thing Richards faced: his son dying in 1976, Of Jagger in 1980's: riding on the Stones' fame to do it. Mick finds me too serious. My job is to turn Mick on.

Numbers given on campaign spending were displayed. Then mention of 9.6% unemployed. Out of 100 dollars in income growth, $80 went to people who don't need it. So called "income divegence." Richest 5% of Americans do as well under Dems or Reps. Between 1929 and 1973, incomes became more equal. The great divergence by Tim Noah was argued to be more important than the deficit.

Third "Everybody" story was in Bali, which is also recycled from "CBS Evening News." It focussed on sex. Guys in Bali don't give flowers. Some people on earth live for purpose and meaning, and the others are men.

Moment of Nature through Spiriva ad: moonlit egrets in Alabama (New York??)

**In passing

CBS News’ “Sunday Morning” Is Up In Viewers And Households In Its 96Th Consecutive Week As The #1 Sunday Morning News Program

Saturday, October 23, 2010

Hal Lewis: "The giants no longer walk the earth"

Many in patent law are familiar with text attributed to Isaac Newton: If I have seen further it is only by standing on the shoulders of giants.

For example
Standing on the Shoulders of Giants: Cumulative Research and the Patent Law

Standing on the Shoulders of Giants

Climbing Atop the Shoulders of Giants:
The Impact of Institutions on Cumulative Research

But, Hal Lewis, in his resignation letter from the American Physical Society [APS], suggests we may be fresh out of giants:

How different it is now. The giants no longer walk the earth, and the money flood has become the raison d'être of much physics research, the vital sustenance of much more, and it provides the support for untold numbers of professional jobs. For reasons that will soon become clear my former pride at being an APS Fellow all these years has been turned into shame, and I am forced, with no pleasure at all, to offer you my resignation from the Society.

What Lewis says about the "money flood" could also apply to California's CIRM.

Within his resignation letter, Lewis got into the internal politics of the APS:

So a few of us tried to bring science into the act (that is, after all, the alleged and historic purpose of APS), and collected the necessary 200+ signatures to bring to the Council a proposal for a Topical Group on Climate Science, thinking that open discussion of the scientific issues, in the best tradition of physics, would be beneficial to all, and also a contribution to the nation. I might note that it was not easy to collect the signatures, since you denied us the use of the APS membership list. We conformed in every way with the requirements of the APS Constitution, and described in great detail what we had in mind---simply to bring the subject into the open.

The petition was declined, and the resignation letter had an allusion to lawyers:

(Any lawyer will tell you that you cannot collect signatures on a vague petition, and then fill in whatever you like.) The entire purpose of this exercise was to avoid your constitutional responsibility to take our petition to the Council.

And the "money flood" matter appeared again:

This scheming at APS HQ is so bizarre that there cannot be a simple explanation for it. Some have held that the physicists of today are not as smart as they used to be, but I don't think that is an issue. I think it is the money, exactly what Eisenhower warned about a half-century ago. There are indeed trillions of dollars involved, to say nothing of the fame and glory (and frequent trips to exotic islands) that go with being a member of the club. Your own Physics Department (of which you are chairman) would lose millions a year if the global warming bubble burst. When Penn State absolved Mike Mann of wrongdoing, and the University of East Anglia did the same for Phil Jones, they cannot have been unaware of the financial penalty for doing otherwise. As the old saying goes, you don't have to be a weatherman to know which way the wind is blowing. Since I am no philosopher, I'm not going to explore at just which point enlightened self-interest crosses the line into corruption, but a careful reading of the ClimateGate releases makes it clear that this is not an academic question.

Bob Park at What's New wrote: News stories described his resignation as a protest of the official APS position on global-warming; but that's not quite what his resignation letter says. IPBiz notes that the resignation letter includes within point #2:

The appallingly tendentious APS statement on Climate Change was apparently written in a hurry by a few people over lunch, and is certainly not representative of the talents of APS members as I have long known them. So a few of us petitioned the Council to reconsider it. One of the outstanding marks of (in)distinction in the Statement was the poison word incontrovertible, which describes few items in physics, certainly not this one. In response APS appointed a secret committee that never met, never troubled to speak to any skeptics, yet endorsed the Statement in its entirety. (They did admit that the tone was a bit strong, but amazingly kept the poison word incontrovertible to describe the evidence, a position supported by no one.) In the end, the Council kept the original statement, word for word, but approved a far longer "explanatory" screed, admitting that there were uncertainties, but brushing them aside to give blanket approval to the original. The original Statement, which still stands as the APS position, also contains what I consider pompous and asinine advice to all world governments, as if the APS were master of the universe. It is not, and I am embarrassed that our leaders seem to think it is. This is not fun and games, these are serious matters involving vast fractions of our national substance, and the reputation of the Society as a scientific society is at stake.

One could say that the resignation related to the "official APS position on global-warming." The word tendentious means
--having or showing a definite tendency, bias, or purpose; most pointedly, expressing or intending to promote a particular cause or point of view, esp. a controversial one --.

Self-plagiarism in journals

From a comment at the Scientist on 9/24/2010:

Came across an identical review article in 2 diff journals, both from the same publisher (Elsevier) ...

Clin Lab Med. 2010 Dec;30(4):815-27. Genetics of psychiatric disorders methods: molecular approaches. Avramopoulos D. The practice of psychiatry has long suffered from the limited information available on the biological basis of mental disorders. This limitation is now coming to an end. Advances in DNA analysis technologies and in our understanding of the human genome, together with our new knowledge of the properties of the genome and significant efforts toward generating large patient and control sample collections, have paved the way for successful genome-wide association studies. As a result, reports now appear in the literature every week identifying new genes for complex disorders. Next-generation sequencing methods, combined with the results of association and perhaps linkage studies, will help us uncover missing heritability factors, achieve a better understanding of the genetic aspects of psychiatric disease, and devise the best strategies for incorporating genetics in the service of patients. PMID: 20832654

Psychiatr Clin North Am. 2010 Mar;33(1):1-13. Genetics of psychiatric disorders methods: molecular approaches. Avramopoulos D. (same abstract as above) PMID: 20159337

Read more: Opinion: Citation mutation, revisited - The Scientist - Magazine of the Life Sciences

Wednesday, October 20, 2010

Supreme Court issues show cause order to law professors

In a further development in the Del Castillo matter, the Philippine Supreme Court issued a show cause order against UP College of Law faculty members to explain why they should not be “disciplined as members of the Bar” for issuing an “accusing statement” against Associate Justice Mariano C. del Castillo.

Previous IPBiz posts

Law School Condemns Supreme Court

Tuesday, October 19, 2010

Kinetic Concepts [KCI] takes a whipping in WD Texas

On 18 Oct 2010, a judge in U.S. District Court for the Western District of Texas ruled claims of two Kinetic Concepts patents invalid. The inventions themselves came from Wake Forest University.

As to expectations, wsj online noted: The decision to render the patent claims invalid was "the least likely outcome and unexpected by most investors," Piper Jaffray analysts wrote in a note Tuesday.

Of KCI stock, Schaeffer's Options Center noted:

Meanwhile, option volume has soared to 57 times the norm on KCI today, with roughly 11,000 contracts changing hands. Puts have comprised the bulk of this volume, with over 9,100 of these bearishly oriented options crossing the tape.

Today's most active strike has been the January 2012 30 put, with 5,213 contracts traded -- 98% of which changed hands at the ask price, indicating they were likely purchased. Meanwhile, with just 40 contracts currently open at this strike, it seems that these puts are, in fact, fresh positions.

Separately, on the biofuels front, from CBS WINK

Monday, October 18, 2010

Digital ‘‘truth’’ can only be comprehensively trumped by hard-copy evidence?

Gordon Farrer writes:

Never has so much information been available to so many people; but never has so much information been so dodgy. Plagiarised articles, inaccurate information, poorly researched writing, fiction presented as fact, conspiracy theories passing as history ... it’s all there.

In the old days — say, a decade ago — people could take for granted that material published in a book, newspaper or magazine had gone through a process to check it for accuracy. That's why the printed word was held in such high esteem.

Hmmm.... Mark Lemley wrote in the Stanford Law Review that Gary Boone invented the integrated circuit, and no one at Stanford checked the statement for accuracy.

Farrer also wrote of plagiarism of work originally done by one Danny Katz. The two posts below discuss a different plagiarism, one of which the ezine of the original article didn't care.

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

JEB Stuart travels to India

Sunday, October 17, 2010

CBS Sunday Morning on 17 Oct 2010

Charles Osgood previewed the stories for 17 October 2010. He noted in "Campaign 2010" we have just 16 days before election day. Rita Braver's cover story on the House Speaker; Nancy Pelosi is trailblazing but controversial. Republicanas are out to fire Pelosi. 2nd story: Adventures of Mark Twain; Jeff Glor does Twain'smemoir, an autobiography published 100 years after his death. 3rd story: Tom Jones at 70 done by Mark Philips. Also: Chilean miners by Seth Doane; out of the darkness. Jean Nouvel; wrongful conviction.

Headlines: Mass of Thanksgiving in Chile. Men trapped in China mine. Demonstrations in France; 60 -- 62. Death of Barbara Billingsley (1915-2010). Phillies v. Giants. Weather: windy in northeast.

Speaker Nancy Pelosi is all business. The show gave a view from her private balcony at the Capitol. Annie Custer; Debbie Halverson shown pilloried by connection to Pelosi. Mention of the "Fire Pelosi" bus. A picture of Pelosi with Cokie.
Only 15% of Americans view her favorably. A lot of the interview takes place on the Potomac River. Changed the furniture in the Speaker's Office. Discussion of her father. She met JFK at age 16. She first ran for office at age 47. Mention of the "marble ceiling". She has raised $217 million for Democrats.

Einstein Oct. 17, 1933.

Saturday, October 16, 2010

"Thousands of overpaid lawyers"

Discussing the case of In Re Richard F. Schwemberger , PatentHawk has some pretty strong comments about patent lawyers who take on basically unwinnable cases but pocket the money:

A personal tale - An inventor called Platinum Patents, all hot to trot from a dime-store provisional to the real chinchilla. I sang the "combo a no-go 'cause o' Obzillo" [KSR] ditty. He tooted, "so, what are you, the sales prevention department?" I snorted, "yeah, that's me, that's who I am. I'd take your dough, but I've got a real bad reality addiction, with an empathy hangover. Sorry. Sue me." Regrettably, I forget to add the California-style clincher "have a nice day." :-)

Next time you want patented sunshine blown up your ass, call Howard, or the thousands of overpaid lawyers like him. If instead you want the dirty skinny with flint-nosed attitude from the sharpest tack in the box, a dyed-in-the-wool Attila the Hun Charm School graduate, you know who to call. Witty banter at no extra charge.

Around these parts, patent lawyers who tell like it is go by the name "dream crushers."

***Within the case, on the dead TSM requirement:

The Supreme Court has cautioned that although it
may be valuable to identify a particular reason to combine
two references, the obviousness analysis is not limited to
this inquiry. See KSR Int'l Co. v. Teleflex Inc., 550 U.S.
398, 418-19 (2007). Rather, “[i]f a person of ordinary skill
can implement a predictable variation [of a work], § 103
likely bars its patentability.” Id. at 417. Similarly, “if a
technique has been used to improve one device, and a
person of ordinary skill in the art would recognize that it
would improve similar devices in the same way, using the
technique is obvious unless its actual application is be-
yond his or her skill.” Id. In evaluating obviousness,
therefore, “a court must ask whether the improvement is
more than the predictable use of prior art ecording to their established functions.” Id.

However, the Board found that a person of
ordinary skill in the relevant art would have known how
to move rod 21 below the top of the staple line or to move
bar 38 above the bottom of the staple line. Initial Deci-
sion, slip op. at 10. Mr. Schwemberger points to no con-
trary evidence showing that this relatively minor design
change would be outside the scope of ordinary skill.

The absence of investment in new antibiotics

In the Nightly News on 30 September and 15 October 2010, Katie Couric made reference to the book Rising Plague: The Global Threat from Deadly Bacteria and Our Dwindling Arsenal to Fight Them by Dr. Brad Spellberg. The patent/investment angle wasn't fully developed on television but it's pretty simple. There's not a lot of money to be made from a drug which is taken only a week per event, as distinct from a drug which is taken for a lifetime:

The primary economic impediment is that antibiotics have a lower rate of return on investment than other classes of drugs. You make a lot more money back on your R&D investment if the drug is taken every day for the rest of the patient's life (e.g. cholesterol, hypertension, dementia, arthritis) than if it is taken for 7 days and then the patient stops because he/she is cured.

The CBS news pieces did refer to Pseudomonas, of which there has been recent news:

A team of UCLA researchers found that bacterial biofilms, structured aggregates of bacteria that live on surfaces, use appendages called type IV pili, which act as legs, to move around quickly and forage more effectively.

Bacterial biofilms cause many drug-resistant infections and impact human health in multiple ways. Cystic fibrosis, for example, is a disease in which patients die from airway bacterial biofilm infections that are resistant to antibiotics.

The "walking" occurs in the initial stages of biofilm formation, and the researchers are hopeful that this discovery will aid in finding different methods to fight the infections the bacteria, called Pseudomonas aeruginosa, cause. P. aeruginosa also causes skin, eye and gastrointestinal infections.

"Bacteria exist in two physiological states: the free-swimming, single-celled planktonic state and the surface-mounted biofilm state, a dense, structured community of cells governed by their own sociology," said Gerard Wong, a professor of bioengineering at the UCLA Henry Samueli School of Engineering and Applied Science and at the California NanoSystems Institute at UCLA, in a statement.

"Bacteria in biofilms are phenotypically different from free-swimming bacteria even though they are genomically identical. As part of their adaptation to a surface and to the existence of a community, different genes are turned up and down for bacteria in biofilms, leading to drastically different behavior," he said.

[from Disease-Causing Bacteria Can Stand Up, Walk ]

The article pointed out a different approach to data analysis:

While in the past graduate students had to look at cells manually, a new technology was employed for this research, in which the team was able to track the movements of multiple cells using search engines and computer programs that allowed them to analyze data more quickly.

"This represents a big advance in the way microscopes are used," said Wong.


Alarming Uptick of Deadly Superbugs in Hospitals including:

he organism raging through Bill Shields is KPC-KLEBSIELLA. It's one of five deadly superbugs turning up in America's hospitals with alarming frequency. They're now responsible for 60 percent of all intensive care unit infections.

"What these organisms have done, by creating super-antibiotic resistance, is that they've set medicine back 70 years in time," said Brad Spellberg.


Friday, October 15, 2010

From Tavern to Turkish Tacos

The "trademark" Tavern on the Green has been replaced by a visitors center and food court, whose offerings include Turkish tacos and Chinese dumplings.

The trademark "Tavern on the Green" (serial no. 73182614 ; registration number 1154270 ) was filed in 1978 based upon a first use 31 August 1976. The mark was registered in 1981 and renewed in 2001.

In 2007, Tavern on the Green remained one of the world's top-grossing restaurants.

Now, the location is a taco stand.

Bergen Record: New Jersey is in the toilet bowl

More than four years ago, IPBiz commented on the Vai Sikahema op-ed piece "Rutgers is Wrong," which piece is not to be found anywhere in the archives of KYW-3. Sikahema criticized Rutgers spending money on the football program.

In a New York Times piece in October 2010, one has similar themes:

Alfred P. Doblin, editorial editor of The Bergen Record, pointed out in a May column that Schiano’s annual compensation package “would restore nearly a fifth of the total funding cut by the state toward libraries.”

“New Jersey doesn’t need Schiano to get into a bowl,” Doblin wrote, echoing the fury on both political and sports message boards. “New Jersey is already in a bowl. It’s called a toilet bowl.”

Schiano insists that this is where the “thick skin” of a New Jersey-native comes in handy. He was the highly regarded defensive coordinator at the University of Miami who wanted to return home and build what was essentially a lower-tier program into a big-time power.

“We were losing kids to New Hampshire,” he said this week.

Soon, by focusing on kids from New Jersey, New York and Florida, Schiano and his staff brought real football players to campus.

“Not top flight, but true Division 1 players,” he said. “We had some really great overachievers and chemistry. In 2006, we had a magical ride.”

When Miami and Michigan came calling, Schiano made it clear he wanted to finish what he started and the former Rutgers athletic director Robert E. Mulcahy III made him the highest-paid football coach in the Big East as well as gave him an interest-free loan on his house.

Now, Schiano says he needs to remain focused on the 62 freshmen and sophomores — the most talented group he has ever had — and that at 1-0 in the Big East his team is atop the conference standings.

“I’m glad there are expectations,” Schiano said. “It means we’re building something worthwhile.”

Rutgers’s current athletic director, Tim Pernetti, understands the frustration of some of the state’s residents and football team’s critics. He was hired in February 2009 after Mulcahy was fired after a special review committee of the university found that the athletic department overspent, made secret deals and operated without oversight as it pushed to become a player in big time football.

“The university is feeling a lot of pressure in this economic climate,” said Pernetti, who played tight end at Rutgers and was an executive CBS College Sports. “The one pressure we feel every day is running our budget in a responsible and transparent way.”

Pernetti says Rutgers’s annual athletic budget is $60 million and it does not make money. In fact, as part of the fight over university budget cuts and salary freezes, faculty members derided in a letter, “a subsidy of $11.5 million from the general fund to cover lavish overruns for Intercollegiate Athletics.”

See also

Sikahema blasts money for Rutgers football; stem cells next?
[IPBiz notes that NJ voters would later reject a bond proposal to fund stem cell research, showing them to be far wiser than their California counterparts.]

Ever wonder why college tuition is so high?

Of the economic value of bowl games to the school, see
UConn made the BCS, and all it got was this looming financial burden

BCS games are supposed to be a big payday, and on paper, they are: The Fiesta Bowl is doling out $17 million to both the Big East and the Big 12. Based on the Big East's revenue-sharing plan, the Huskies are guaranteed somewhere in the neighborhood of $2.5 million of that, with other revenue streams bringing their cut of the conference pie up to about $3 million. Not bad, until you start to add up the expense of traveling to a major bowl game, beginning with ticket obligations:
The Fiesta Bowl distributed 17,500 tickets to UConn, and the school is responsible to sell them all. The cheapest of those tickets cost $111 (in the lower end zone) and can cost as much as $268 for club level.
… and hotel obligations:
[…] a total of 550 rooms at three different hotels ranging in price from $125-225 a night, not including tax, with blocks reserved for either three or seven nights. Additional expenses include a chartered flight and meals for the team, staff and 300-member band, as well as a $100,000 bonus to coach Randy Edsall, and smaller bonuses for assistants, per their contracts, for getting the team to a BCS bowl.
… and obligations to move all that inventory, or eat the cost (emphasis added):
Cost of any tickets or hotel rooms that go unfilled are absorbed by the university, with the exception of the 150 rooms at the Westin Kierland Resort and Spa, where UConn is on the hook for only half of money owed on unsold rooms at the $225-a-night hotel.
Whether UConn maximizes its revenue opportunity will depend on the amount of tickets it can sell. The school will almost certainly take a bath. As of Monday night, only 4,000 tickets had been sold, meaning UConn was still holding roughly $2.5 million in unsold tickets.
Meanwhile, on, Terrace Level tickets are starting at $25 – barely a fifth of the cost of the cheapest tickets allocated to the university.


When Florida won the BCS championship in 2008, the university's profit from the advertised $17 million payday amounted to $47,000 – and that was with in-state travel, to Miami. The Gators took a loss on their 2006 BCS title trip to Glendale, as did their opponent, Ohio State.

Intellectual Ventures to Webvention to ED Texas

Joe Mullin in a post titled NPE Makes Offer Some Companies Can Refuse discusses current litigation over US Patent 5,251,294, which was obtained by Webvention LLC from Intellectual Ventures [IV].

The Webvention website notes that the the prolific inventor of the '294, Dan Abelow, has had Harvard Business School/ Harvard University as clients. Gee, whatever happened to "plagiarize with pride"?

Zusha Elinson had written in December 2009 of IV deals:

The latest of these deals -- and only the second to become public -- was closed on Nov. 16. Public records show that on that day, the unusually named Ferrara Ethereal LLC assigned the rights of U.S. Patent 5,251,294, which is "directed to structures and methods for organizing, presenting and accessing information," to Webvention LLC, along with four related patents. Ferrara Ethereal is an Intellectual Ventures shell company, according to people familiar with the LLC.

And it certainly looks like Webvention is ready for action. The patent-holding company is headed by Todd Schmidt, whose last job was at ContentGuard, a company that actively licensed its IP. And Webvention just happens to be based in Marshall, Texas, smack-dab in the plaintiff-friendly confines of the Eastern District of Texas. Although it has yet to file any lawsuits, Webvention is set up to do just that.

Can one in a single instance plagiarize AND misrepresent an author?

One of the more interesting aspects of the Philippine Supreme Court decision on the Del Castillo plagiarism business was the response to the charge that Del Castillo had twisted the meaning of the copied law review articles. That is, although copying text from the law review articles, the decision reached a conclusion opposite to that of the law review articles.

The Supreme Court noted:

"Considering how it was impossible for Justice Del Castillo to have twisted the meaning of the passages he lifted from the works of Tams, Criddle-Descent, and Ellis, the charge of 'twisting' or misrepresentation against him is to say the least, unkind. To be more accurate, however, the charge is reckless and obtuse."

But note the discussion of the Bradley charge against Wegman in the IPBiz post
Surreal moment: criticizing the work while copying it?

A worse problem was present in footnote 22 of Ending Abuse of Patent Continuations, 84 B. U. L. Rev. 63
(2004) wherein the authors (falsely) stated: See Robert A. Clarke, U.S. Continuity Law and Its Impact on
the Comparative Patenting Rates of the U.S., Japan and the European Patent Office, 85 J. Pat. & Trademark
Off. Soc'y 335, 338 (2003) (erroneously assuming that every continuation resulted in a patent and
concluding that the grant rate was 75%).

In footnote 22, one has attribution but the cited author never stated the asserted text. Merely part of hysteria and FUD of intellectual property professors trying to whip up an issue.

**See also

Justice absolved in Supreme Court plagiarism case; MS Word blamed!

Plagiarized AND wrong!

Law School Condemns Supreme Court


Justice absolved in Supreme Court plagiarism case; MS Word blamed!

The Philippine Supreme Court absolved Associate Justice Mariano del Castillo of charges of plagiarism associated with the decision in the World War II comfort women case ["Vinuya, et al. vs. Executive Secretary" ].

Part of the decision harkened to the Glenn Poshard / SIU matter:

"If the Justice's citations were imprecise, it would just be a case of bad footnoting rather than one of theft or deceit. If it were otherwise, many would be target of abuse for every editorial error, for every mistake in citing pagination, and for every technical detail of form." and "Notably, neither Justice Del Castillo nor his researcher had a motive or reason for omitting attribution for lifted passages to Criddle-Descent or to Ellis."

As gmanews pointed out, the "copied" portions arose from acts of cutting and pasting:

But according to the Supreme Court ruling, Del Castillo did not commit plagiarism because when his researcher "cut" research materials from a law website and "pasted" them on the decision's main manuscript, the attributions were "accidentally deleted."

Microsoft Word was obliquely blamed:

"Microsoft Word program does not have a function that raises an alarm when original materials are cut up or pruned. The portions that remain simply blend in with the rest of the manuscript, adjusting the footnote number and removing any clue that what should stick together had just been severed."

See also

Mariano C. Del Castillo

Thursday, October 14, 2010

Brief in Global-Tech v. SEB

Within the amicus brief authored by Professor Lemley:

By proffering a culpable mental state requirement
for section 271(b) as low as the negligence construct of
"deliberate indifference" in SEB, the Federal Circuit
blurs the functions of sections 271(b) and 271(c) of the
Patent Act. The separation of secondary liability into
contributory infringement and inducement of
infringement under the Patent Act of 1952 demonstrates
an intention to treat the two types of secondary liability
differently and to hold alleged infringers to different
standards. Section 271(c) imposes liability upon a
defendant who sells or offers for sale a component of a
patented invention "knowing the same to be especially
made or especially adapted for use in an infringement
of [a] patent," if such component has no "substantial
non-infringing use." Section 271(b) contains no such
limitations. The scope of section 271(c) is thus more
narrowly defined and more limited than section 271(b).
See Lynda J. Oswald, The Intent Element of
"Inducement to Infringe" Under Patent Law:
Reflections on Grokster, 13 Mich. Telecomm. Tech. L.
Rev. 225, 229-30 (2006).

The broader scope of section 271(b) is supposed to
be counterbalanced, however, by a stricter intent
requirement. Reducing the intent standard to
deliberate indifference, as SEB does, means that section
271(b) effectively swallows section 271(c). See Timothy
R. Holbrook, The Intent Element of InducedInfringement, 22 Santa Clara Computer & High Tech
L.J. 399, 407-08 (2006). The SEB standard reduces the
state of mind requirement for section 271(b) to the level
of negligence. By contrast, this Court has made it clear
that a contributory infringer under section 271(c) must
know that the combination to which it is contributing
"was both patented and infringing." Aro Mfg. Co. v.
Convertible Top Replacement Co., 377 U.S. 476, 488

Harold Wegner wrote on IPFrontline:

If anyone previously had any doubts about the power of the upper end academic community in terms of teaching the Supreme Court the importance of a particular case, they should reflect upon the grant of certiorari in this case.

An Intra-Circuit Split: The absence of an inter-circuit split is often fatal to grant of certiorari. Here, however, the 26 amici professors focused upon an inter-circuit [sic: intra-circuit] split that it argued had gone on for a long time and should now be resolved by the Supreme Court: (...)]

Bed bugs reach Lincoln Center?

Myfoxny reported on 14 October 2010:

Spokeswoman Maggie McKeon confirmed the outbreak [at the David H. Koch Theater in Lincoln Center]. It was first reported online on Wednesday by the New York Observer. It cited an Oct. 8 e-mail from the theater's managing director Mark Heiser. He said treatment to rid the theater of the tiny pests was under way.

Heiser wrote, "Any signs of bedbug activity should not be considered a sign of an untidy house."

From Tarboro, NC:

Edgecombe County is not immune to the advancing spread of bed bugs. From hotels to local colleges and universities to homes in our communities; bed bugs have found their way back to creating chaos in our lives.

A recent number of calls to our Extension Center points to at least an increased recognition, if not actual increases in the occurrence of bed bug problems.

Bed bugs were once a major pest of homes, but improved sanitation and chemical control reduced the pest to an infrequent nuisance. The recent rise is not necessarily associated with unsanitary conditions as there are growing problems in clean homes, hotels and other buildings. Factors that may be responsible for leading to the increased occurrence point to increased tourism and a reduction in using liquid insecticides for controlling cockroaches.

Solvay v. Honeywell: 102(g) and outsourcing

The result of the CAFC case Solvay (represented by ARTHUR I. NEUSTADT ) v. Honeywell (represented by ROBERT G. KRUPKA ) was "affirmed-in-part, reversed-in-part."

Of interest was analysis of 35 USC 102(g), with Honeywell on the losing end: we conclude that
Honeywell was not a prior inventor for purposes of § 102(g)(2).

The molecule of interest was 1,1,1,3,3-pentafluoropropane (“HFC-245fa”), and
Solvay had a patent for making it, the '817.

There was a dispute over "who invented" a certain process to make make the molecule:

Solvay brought suit against Honeywell in the District
of Delaware, alleging that the Geismar process infringed
claims 1, 5, 7, 10-18, 21, and 22 of the '817 patent. In due
course, Honeywell moved for summary judgment of inva-
lidity of claims 1, 5, 7, 10, and 11 of the '817 patent.
Honeywell moved on the ground that, under 35 U.S.C.
§ 102(g)(2), it was a prior inventor of the claimed inven-
tion. For its part, Solvay cross-moved for summary
judgment of no invalidity on the ground that Honeywell
was not a prior inventor and that, even if it was, Honey-
well had abandoned, suppressed, or concealed its inven-

Honeywell's work on the molecule had been done initially by
a third party under contract to Honeywell (an outsourcing arrangement):

In early 1994, Honeywell (then AlliedSignal, Inc.) en-
tered into a research contract with the Russian Scientific
Center for Applied Chemistry (“RSCAC”). Pursuant to
the contract, RSCAC engineers performed process devel-
opment studies for the commercial production of HFC-
245fa. See Invalidity Ruling, 591 F. Supp. 2d at 732. (...)
It is undisputed that the process the RSCAC
engineers performed and reported to
Honeywell in July 1994 corresponds to the invention
claimed in Solvay’s '817 patent, and that RSCAC engi-
neers both conceived the invention and reduced it to
practice in Russia.

At the district court level:

Solvay had urged that the invention at issue
was “conceived” abroad by RSCAC’s engineers and that
Honeywell’s “mere reproduction” of a foreign invention in
the United States did not make Honeywell an inventor
because an inventor must be involved in the conception of
the invention. The district court agreed that Honeywell
had to “demonstrate that it ‘conceived’ the invention at
issue,” to qualify as an inventor under § 102(g)(2), so that
“only ordinary skill in the art would be necessary [there-
after] to reduce the invention to practice.” Id. at 738. The
court did not agree, however, that reproduction of an
invention cannot satisfy § 102(g), or that, under
§ 102(g)(2), conception must first occur in the United
States. The court found “no authority” that barred Hon-
eywell from being an “inventor” for purposes of § 102(g)(2)
merely because it derived the invention from RSCAC as
“the original inventor.” In that regard, the court declined“to
read the ‘originality’ requirement of § 102(f) into
§ 102(g),”2 reasoning that “[s]ection 102(g) . . . contem-
plates multiple conceptions, as long as each inventor
‘appreciates’ his invention.” Id. at 739.
The district court concluded that “Honeywell con-
ceived the invention at issue in the United States upon
receipt of RSCAC’s instructions, because it was at this
point that Honeywell possessed a definite and permanent
idea of the complete and operative invention, such that it
appreciated the fact of its invention.” Id. at 738.

At the CAFC level:

Solvay challenges on two grounds the district court’s
ruling that claims 1, 5, 7, 10, and 11 of the '817 patent are
invalid due to prior inventorship.

First, Solvay argues
that Honeywell could not be “another inventor” under 35
U.S.C. § 102(g)(2) because it is undisputed that it did not
invent the claimed process for preparing HFC-245fa but,
rather, derived it from RSCAC, whose engineers invented
it in Russia. Solvay maintains that the court’s conclusion
that Honeywell was an inventor of the Russian invention
is contrary to 35 U.S.C. § 102(f), which provides that a
person shall be entitled to a patent unless “he did not
himself invent the subject matter sought to be patented.”
Honeywell could not be an “inventor” of the Russian
invention, Solvay reasons, because it did not itself invent
the subject matter of the invention. See Appellant’s Br. at
17. According to Solvay, the district court erred when it
“decline[d] to read the ‘originality’ requirement of § 102(f)
into § 102(g).” See Invalidity Ruling, 591 F. Supp. 2d at
739. Solvay thus urges us to reject the district court’s
determination that “Honeywell . . . demonstrated concep-
tion by clear and convincing evidence as it is undisputed
that its receipt of RSCAC’s instructions facilitated Hon-
eywell’s actual reduction to practice of the invention.” Id. at 738.

Second, Solvay argues that, even if Honeywell does
qualify as “another inventor” under § 102(g)(2), the stat-
ute does not operate to render claims 1, 5, 7, 10, and 11
invalid because Honeywell suppressed and concealed both
the Russian invention and the invention claimed in its
own '706 patent.

The CAFC defined some terms:

Conception is the “forma-
tion, in the mind of the inventor, of a definite and perma-
nent idea of a complete and operative invention, as it is
hereafter to be applied in practice.” Hybritech, Inc. v.
Monoclonal Antibodies, Inc., 802 F.2d 1367, 1376 (Fed.
Cir. 1986), quoting 1 Robinson on Patents 532 (1890);
Coleman v. Dines, 754 F.2d 353, 359 (Fed. Cir. 1985); see
also Burroughs Wellcome Co. v. Barr Labs., Inc., 40 F.3d
1223, 1228 (Fed. Cir. 1994) (“Conception is complete only
when the idea is so clearly defined in the inventor’s mind
that only ordinary skill would be necessary to reduce the
invention to practice, without extensive research or
experimentation.”). Actual reduction to practice requires
that the claimed invention work for its intended purpose,
Hybritech, 802 F.2d at 1376, while constructive reduction
to practice occurs when a patent application on the
claimed invention is filed. Id.; Frazer v. Schlegel, 498
F.3d 1283, 1288 (Fed. Cir. 2007); Hyyatt v. Boone,
146 F.3d 1348, 1352 (Fed. Cir. 1998).

Honeywell lost:

The question thus
becomes whether Honeywell conceived of the invention at
issue and reduced it to practice in the United States, such
that Honeywell is “another inventor” of the process
claimed in the '817 patent under § 102(g)(2).
Honeywell is not “another inventor” under § 102(g)(2).
That is clear from the facts set forth above, which are
undisputed. As noted, working pursuant to RSCAC’s
research contract with Honeywell, Russian engineers
conceived of the process for making HFC-245fa in Russia.
Thereafter, in July 1994, RSCAC sent a report to Honey-
well in the United States relating to the developmental
work the RSCAC engineers had performed. In the report,
RSCAC described the liquid phase synthesis of HFC-
245fa from HCC-240fa and the resulting product yield.
The report also contained a diagram of the equipment
that RSCAC had used to carry out the process. Finally, in
the report, RSCAC stated that it had carried out a reac-
tion of HCC-240fa and HF in the presence of an antimony
pentachloride catalyst using temperatures between 80-
130 degrees Celsius and pressures between 2-40 bar. In
the words of the district court, “it is uncontested that the
Russian engineers, working under contract with Honey-
well manufactured HFC-245fa from HCC-240fa using a
continuous process in May 1994 and disclosed that work
to Honeywell in a July 1994 report sent to the United
States.” See Invalidity Ruling, 591 F. Supp. 2d at 736.
Conception is “the formation in the mind of the inven-
tor, of a definite and permanent idea of the complete and
operative invention, as it is hereafter to be applied in
practice.” Burroughs Wellcome Co. v. Barr Labs., Inc., 40
F.3d at 1228 (quoting Hybritech Inc. v. Monoclonal Anti-
bodies, Inc., 802 F.2d at 1376. The test for conception is
whether the inventor had an idea that was definite and
permanent enough that one skilled in the art could un-
derstand the invention. Burroughs Wellcome, 40 F.3d at
1228. In this case, Honeywell did not have, or formulate,
a definite and permanent “idea” of its own capable of
being reduced to practice. Rather, it reproduced the
invention previously conceived and reduced to practice by
RSCAC in Russia. Such reproduction cannot be concep-
tion because, if it were, the result would be that one who
simply followed another inventor’s instructions to repro-
duce that person’s prior conceived invention would, by so
doing, also become an “inventor.”
Although the district
court declined to read the “originality” requirement of 35
U.S.C. § 102(f) into § 102(g), originality is, nevertheless,
inherent to the notion of conception.4 The definition and
test of conception employed in Burroughs Wellcome, which
speaks to the formation of an idea in the mind of the
inventor, necessitates that the conception of an invention
be an original idea of the inventor.5

The CAFC rejected Honeywell's arguments about other
cases. Of the Dow Chemical case:

Similarly unhelpful to Honeywell is its reliance on
Dow Chemical Co. v. Astro-Valcour, Inc. for the proposi-
tion that “someone qualifies as a prior inventor under
§ 102(g)(2) if the person made the invention in the United
States and ‘appreciated the fact of what he made.’” See
Appellee’s Br. at 29. In Dow Chemical, Astro-Valcour,
Inc. reduced to practice a process for producing plastic
foam in the United States by following, and then improv-
ing upon, the teachings of a U.S. patent. 267 F.3d at 1341
n.5. This court held that Astro-Valcour, Inc. “recognized
and appreciated” its new process such that it qualified as
a “prior inventor” under § 102(g)(2) even if it was unaware
that it had created a legally patentable invention, and
was not the first inventor to appreciate the patentability
of the invention. 267 F.3d at 1341. Unlike the party
seeking the benefit of § 102(g)(2) in Dow Chemical, who
actually conceived the pertinent invention, Honeywell did
not conceive the invention at issue in this case. Dow
Chemical simply held that, outside the priority context,
an individual can have conceived the invention, and be an
inventor, even though he did not appreciate what he had invented.

Policy matters were discussed, but Honeywell misunderstood
what was at issue in the case:

Finally, Honeywell argues that, as a matter of policy,
it would contradict the purpose of § 102(g)(2) to allow
Solvay to have a patent covering subject matter that
Solvay was not the first to invent. The problem with this
argument is that it misstates the issue before us.
issue before us is not whether Solvay was the first to
invent the subject matter of the '817 patent. Rather, the
issue is whether Honeywell established its defense that
the invention claimed in the '817 patent was conceived
and reduced to practice by it, as “another inventor” in the
United States, before Solvay. The uncontested facts make
it clear that Honeywell did not establish its § 102(g)(2)

Whether this holding ignores the realities of global-
ization and outsourcing by modern-day research compa-
nies, as Honeywell contended at oral argument, is not the
question before us. The question before us is whether,
under the undisputed facts, Honeywell qualifies as “an-
other inventor” under 35 U.S.C. § 102(g)(2). Because
Honeywell did not itself conceive the RSCAC process of
making HFC-245fa, under 35 U.S.C. § 102(g)(2), as this
court has construed the statute, it is not “another inven-
tor” of the subject matter claimed in the '817 patent.

The outsourcing argument failed.