Sunday, January 31, 2010

Trademarks: " Aerosmith without Steven Tyler is like the Rolling Stones without Mick Jagger "

What would the typical consumer associate with the name Aerosmith?

Within one has the text:

Contrary to all common sense, you are seeking to bring about the replacement of Steven Tyler. Aerosmith without Steven Tyler is like the Rolling Stones without Mick Jagger, or U2 without Bono.

No, "open innovation" isn't the answer

Back in March 2009, IPBiz discussed "Promoting Intellectual Discovery: Patents Versus Markets", written by Debrah Meloso, Jerney Copic, and Peter Bossaerts.

Flash forward to 28 Jan 2010, and Jeffrey H. Toney writes in blog.nj:

I believe, in part by replacing the current patent system that is founded in exclusive (intellectual) property rights. A bill focused on patent reform has been under consideration since 2005 but has stalled.
An entirely different approach for patent reform is needed. I favor an “open innovation” market, in which “everyone holds shares in the components of potential discoveries and can trade those shares in an anonymous market”.
Reinventing our patent system from the ground up may seem daunting, but it could provide more incentives to fuel innovation. Incentives for innovation have progressively diminished because of weakening of patent rights in the U.S. federal courts, particularly for brand-name medications.

No, Jeff, the academics writing in Science do not have a viable plain for intellectual property. And, no, the IT folks are not complaining about "a weakening of patent rights in the U.S. federal courts." In apportionment of damages, the IT folks tried to weaken patent rights, but that didn't happen.

Ironic use by IPCC's Pachauri of term "voodoo science"

Back around 2000, Bob Park had a book titled Voodoo Science: The Road from Foolishness to Fraud which had much to say, among other things, about Joe Newman's perpetual motion machine. An editorial review at includes the text:

Park is less forgiving of scientists (especially Edward Teller) when he thinks they've fallen down on the job, a job that should include helping the public separate the scientific wheat from the voodoo chaff.

Flash forward to the year 2010, with public attention first directed to the emails of ClimateGate, and then the questionable IPCC reporting on Himalayan glaciers dubbed GlacierGate. In an article titled Climate chief was told of false glacier claims before Copenhagen, TimesOnLine states that

Rajendra Pachauri was told that the Intergovernmental Panel on Climate Change [IPCC] assessment that the glaciers would disappear by 2035 was wrong, but he waited two months to correct it.

According to the Times, Dr. Pachauri told The Times on January 22 that he had only known about the error for a few days. He said: “I became aware of this when it was reported in the media about ten days ago. Before that, it was really not made known. Nobody brought it to my attention. There were statements, but we never looked at this 2035 number.”

The Times questioned the accuracy of Dr. Pachauri's assertion of prior knowledge for only "a few days", and finds Dr. Pachauri had invoked "voodoo science" [although the connection to Bob Park is not noted]:

However, a prominent science journalist said that he had asked Dr Pachauri about the 2035 error last November. Pallava Bagla, who writes for Science journal, said he had asked Dr Pachauri about the error. He said that Dr Pachauri had replied: “I don’t have anything to add on glaciers.”

The Himalayan glaciers are so thick and at such high altitude that most glaciologists believe they would take several hundred years to melt at the present rate. Some are growing and many show little sign of change.

Dr Pachauri had previously dismissed a report by the Indian Government which said that glaciers might not be melting as much as had been feared. He described the report, which did not mention the 2035 error, as “voodoo science”.

Mr Bagla said he had informed Dr Pachauri that Graham Cogley, a professor at Ontario Trent University and a leading glaciologist, had dismissed the 2035 date as being wrong by at least 300 years. Professor Cogley believed the IPCC had misread the date in a 1996 report which said the glaciers could melt significantly by 2350.

The irony here of course is that it was Dr. Pachauri did not "help the public separate the scientific wheat from the voodoo chaff." Arguably, as to the "2035" number, Dr. Pachauri propounded voodoo chaff. One wonders if Bob Park will say anything about this incident.

Park was rather dismissive of the emails of ClimateGate in a post on WN on 4 December 2009:

Last week someone broke into the e-mail files of the Climate Research Unit at the University of East Anglia, and posted the results on the web for the world to see. The Wall Street Journal and Investors Business Daily are having a field-day writing about "criminal conspiracy" and "scientific blacklisting." There were a few embarrassing comments about global warming deniers in a mountain of e-mails. I would hate to see some of my private e- mails on the web. The suffix was added to invite comparisons to the infamous break-in at the Watergate Hotel by Nixon's goons, but in this story the unnamed burglars are treated as heroes. No one wrote even a line about what was probably the only criminal offense in this sordid affair: hacking into private files. There are angry demands in Congress for an investigation of the affair. So far the only effect has been to shift the focus away from bad news about rising oceans and stranded polar bears to climate scientists more interested in scoring points than advancing science. All that's left is to figure out who paid for the break- in. That book has already been written.

and has been silent on the games played by the pro-warming forces as to FOIA requests.

The wikipedia entry for Rajendra K. Pachauri, as of January 31, 2010, does not mention the problem with Pachauri's concealment of problems with the Himalayan glacier lifetime.

Separately, there are some issues with Syed Hasnain. Anorak notes that after GlacierGate broke, Syed Hasnain stated:

“I was keeping quiet as I was working here. My job is not to point out mistakes. And you know the might of the IPCC. What about all the other glaciologists around the world who did not speak out?”

[IPBiz notes Hasnain is not taking a role separating out the mistakes of voodoo chaff.]

BUT Anorak stated as to before GlacierGate:

in a clip on 9 November 2009 – the day that the Raina report on glaciers was published, challenging the claims made in the IPCC report, he is seen to be defending the 2035 figure, and allowing himself to be styled as “author of the original IPCC report”.

Of Park and voodoo science, see also

Park notes favorable citation by Eugenie Reich in WSJ

New York Times promoting voodoo science?

On "innovation-less" endings

Recalling the three mentions of "innovation" in the State of the Union speech on 28 Jan 2010, remember the text on the demise of Howard Johnson's: "The Case of Howard Johnson's Restaurant Chain: Schumpeter's Creative Entrepreneurial Beginning and "Innovation-less" Ending"

See Historyville HoJo's for pictures of the three remaining HoJo restaurants.

Saturday, January 30, 2010

More problems with IPCC report surface

Further to the problem with the report on Himalayan glaciers receding, other difficulties with the IPCC report have surfaced.

See UN climate change panel based claims on student dissertation and magazine article

112 Mercer Street in Princeton

Einstein House at 112 Mercer Street in Princeton, NJ.

Just-n-examiner on new count system

The just-n-examiner blog talks about "how" the USPTO is handling the new count system:

For a while, examiners' production will be tracked under both the old and new count systems, with the examiner being graded based on whichever system works to their advantage. My guess is that they'll allow examiners that luxury only until the end of this fiscal year, so we'll have about 7 1/2 months to adapt the conduct of our examination to the new system.

Two comments to the post give some further insight:

**The bigger issue though is how the incentives work after final:

New system
Allowance: 0.5
First RCE: 0.5 + 1.75 for next cycle = 2.25 total
Second RCE: 0.5 + 1.50 for next cycle = 2.00 total
First RCE/Allowance = 4.5
Second RCE/Allowance = 4

Old system
Allowance: 1
First RCE: 1 + 2 for next cycle = 3 total
Second RCE: 1 + 2 for next cycle = 3 total
First RCE/Allowance = 3
Second RCE/Allowance = 3

RCEs are even more advantageous relative to allowances under the new system, even without taking into account the increased flexibility for choosing which RCEs to work on. Examiners are therefore more incentivized to try and squeeze out an RCE.

**Unfortunately, the production system at the USPTO does not encourage complete examination at the onset despite what is written in the MPEP. Consider the amount of time given to examiners at the EPO for the first examination--I've talked to several examiners there and the EPO examiners get well over twice the amount of time to perform that initial search and examination as what a USPTO examiner gets for the same art. Plus, the EPO examiner can end prosecution via oral proceedings if after a certain amount of time, applicant hasn't claimed any allowable subject matter. The USPTO examiners can't just say, it's been three rounds and you still haven't presented any allowable subject matter in the claims, go to the Board. The EPO doesn't have RCEs though, so that balances things out a bit.

Coming trademark fight over "Who dat"

David Cariello at The League notes a coming trademark fight over "Who Dat," related to the NFL's New Orleans Saints.

WWL-TV had reported that several t-shirt shop owners had been told [by the NFL] to stop selling the shirts because the NFL owns the rights to "Who Dat" on any merchandise that might try to tie the phrase with the Saints.

Greg Aiello is quoted: "If Who Dat is used in a manner to refer to Saints football, we own trademark rights to it. We get involved when there is use of the Saints logo or “Who Dat” used in combination with Saints logos or football imagery."

The WWL report gives some information relevant to any upcoming legal fight: As for Nuccio and his trademark, it apparently expired back in 1993, according to records from the Louisiana Secretary of State's Office. Someone did register the term Who Dat three years ago. The group: New Orleans Louisiana Saints, L.L.C.

Intellect Wireless sues Apple in ND Illinois

Robin Wauters at TechCrunch wrote:

The complaint [filed by Intellect Wireless in ND Ill on 28 Jan 2010] states that Apple infringed on the company's patents when it provided wireless portable communication devices (you know, like the iPhone) that "receive and display caller ID information, non-facsimile pictures, video messages and/or Multimedia Messaging Services."

Separately, Erik Sherman on the iPad (fka tablet):

Habit and the desire to control things seem to have driven Apple into some critical design errors that will mitigate what might have been possible and leave the iPad as something for the Faithful.

Start with the name. It seems minor at first, but I cannot count the number of women I know, and many additional ones on Twitter and elsewhere online, who have asked, “Don’t they even talk to women out there?” Among a big portion of the computer buying public, iPad might as well be iTampon (...)

Apple had an enormous hurdle to clear, because Steve Jobs wanted to create a new product category, as he said. Only, I’d argue that the company’s innovative streak, clearly strong, has always been in building on existing categories. It added a GUI to computers, but only after XEROX had. It created the iPod after there were already many MP3 players on the market. The iPhone is hardly the first smartphone. Inventive and innovative? Yes. But Apple’s success has been in expanding on categories, not creating them.

When you’re creating a product category, you have to design the item to reduce the potential adoption problems, and so that you’re delivering what you claim to offer.

Helen A.S. Popkin at msnbc hammers away at the name iPad:

So why, Apple? Why? Why did you go with “iPad?” How could you not have seen this coming? “MADtv” saw it a couple of years ago when it satirized your MP3 player commercials — and that show’s totally canceled! (...)
“The new iPad from Apple — can set you up with fast uploading without all that water bloating,” confides one lady to another in the vintage “MADtv” sketch.

IPBiz notes that usually one has lawsuits by the product maker against later satirists using the tradename. Here, the satirists used the name BEFORE the product maker did!!

Matt Rosoff suggests possible improvements to the iPad:

Even if the iPad had wireless sync, the most affordable model has only 16GB of storage. This isn't enough for most music lovers' digital collections, especially if they're going to use the iPad for other functions like electronic books and photos. So how about taking that Lala acquisition and using it? Instead of having to load music onto the iPad itself, I could sync it from my computer to Lala's online music locker service, then stream it over the Web directly to my device. (...)

Naturally, the first thing I did with the iPad was check out its music playback. I could barely hear it, even with the volume maxed out. It's true that the room was crowded with gadget fans scrambling for their first look at the device, but even so, the speakers sounded no louder than the iPhone's. But this isn't a phone. It's also not a Mac, where music isn't the primary focus for most users. It's a consumer electronics device. It would be great if I could set it up in my living room or bedroom without having to attach it to another device.


The iPad got a little free advertising during the Grammys on 31 January 2010.

Friday, January 29, 2010

IEEE opposing S.515 on patent reform

from a letter to Senator Reid from IEEE:

However, we are concerned that the patent reform language of S. 515 now before Congress, while well
intentioned, may not result in reducing the cost and latency of patents, and may in fact
substantially impair the ability of small-sized technology companies and entrepreneurs to obtain
funding, grow and create jobs, and thus compete successfully in the U.S. and globally.

Rosetta Genomics issues press release over patent allowance

On 29 January 2010, Rosetta issued a press release about allowances by the USPTO of claims in two patent applications:

The first, covering human microRNA miR-21, was derived from the “Tuschl III” patent series that is assigned to the Max Planck Society, Berlin, Germany and is used in Rosetta’s miRview™ mets and miRview™ squamous diagnostic assays. Rosetta holds a co-exclusive license to miR-21 in diagnostic applications, and a non-exclusive license for the research use field. The second patent application, covering Sanger viral hcmv-miR-UL112 and its precursor, was shown to suppress the human (host) immune system during viral infection. The allowed claims are directed to the miR, its hairpin, its complement, a DNA encoding the same, a sequence 80% identical to, a vector and a probe comprising the same.

Of Tuschl-I and -II, see previous IPBiz post

Max Planck GmbH goes after MIT, Whitehead, UMass

Chemistry plagiarism at University of Kentucky?

In an editorial in the Kernel, one finds the text:

according to a Jan. 25 Kernel article, reports of plagiarism are on the rise at UK. Students are especially being caught in the disciplines of English and chemistry. Although this increase could be attributed to advancements in technology that make it easier to spot plagiarism, some cases may occur because students are ignorant of proper source citation.

Plagiarism in English papers is understandable, but chemistry....?

Note a link to UKentucky which includes text with examples of plagiarism:

Example 1: Direct copying from original sources.

Most commonly, this involves using one or more sentences verbatim from your original source (with or without footnotes). This is completely unacceptable. If you copy your source text you must put the passage in quotes or offset the passage. However, extensive quoting of this nature is generally frowned upon in scientific writing and indicates that you have made little original contribution to the work.
Do not be fooled into thinking that you can copy sentences from textbooks or journal articles and get away with it. The shift in your writing style is usually quite obvious as is the ease with which you suddenly start discussing unfamiliar terms or concepts. Your instructors know far more about the subject material than you do and are quite familiar with the common sources of information on each subject.

The best way to avoid accidental copying (it is a still a violation whether you meant to or not), is to read the passage and then express it in your own words. Afterwards, compare your text to the original and make sure that they are sufficiently different. Take care to avoid paraphrasing

IPBiz notes that UKentucky does not adopt the concept of "inadvertent plagiarism," so Glenn Poshard needs to steer clear of this place.

Also of note from UKentucky: Consider: One could not copy a $75 text, put a footnote after each sentence and then sell it as his own original textbook for $35. Likewise, you can not do the same with a lab report or other assignment IPBiz wonders if UK is talking about selling lab reports?

UK also noted: Yes, sometimes there is no good way to make the sentence substantially different and still convey the information with the same effectiveness. It is perhaps OK to do this once or twice in an assignment, but certainly no more than that. Remember, the wording must be your own! Express information in your own words.

Interpreting license agreements can be tricky

As seen in the diverging opinions by Judge SCHALL (majority) and Judge BRYSON (dissent) in Lawler v. Bradley, determining the meaning of provisions in licenses can be tricky, yielding consequences which are not foreseeable.

From the dissent:

Because the License Agreement merely required written notice requesting payment of royalties in order to
provide notice of default, that letter was sufficient.

The letter of Lawler to the licensee was not well-drafted and ended up
costing Lawler. As the dissent noted:

Although Lawler’s efforts to give notice of default and notice of termination were
inelegant, they were sufficient to satisfy the requirements of the agreement.

Thursday, January 28, 2010

Catch-22 as to FOIA request in ClimateGate?

The refusal to provide data by Jones et al. was a breach of FOIA, but no prosecution will follow. From the TimesOnLine:

In a statement, Graham Smith, Deputy Commissioner at the ICO [Information Commissioner’s Office ], said: “The e-mails which are now public reveal that Mr Holland’s requests under the Freedom of Information Act were not dealt with as they should have been under the legislation. Section 77 of the Act makes it an offence for public authorities to act so as to prevent intentionally the disclosure of requested information.”

He added: “The ICO is gathering evidence from this and other time-barred cases to support the case for a change in the law. We will be advising the university about the importance of effective records management and their legal obligations in respect of future requests for information.”

Mr Holland said: “There is an apparent Catch-22 here. The prosecution has to be initiated within six months but you have to exhaust the university’s complaints procedure before the commission will look at your complaint. That process can take longer than six months.”

The university said: “The way freedom of information requests have been handled is one of the main areas being explored by Sir Muir Russell’s independent review. The findings will be made public and we will act as appropriate on its recommendations.”

Obama mentions innovation in "union' speech, but not patents

In the state of the union speech on Jan 27, 2010, President Obama noted of innovation:

Next, we need to encourage American innovation. Last year, we made the largest investment in basic research funding in history — an investment that could lead to the world's cheapest solar cells or treatment that kills cancer cells but leaves healthy ones untouched. And no area is more ripe for such innovation than energy. You can see the results of last year's investments in clean energy — in the North Carolina company that will create 1,200 jobs nationwide helping to make advanced batteries, or in the California business that will put a thousand people to work making solar panels.

But to create more of these clean energy jobs, we need more production, more efficiency, more incentives. And that means building a new generation of safe, clean nuclear power plants in this country. It means making tough decisions about opening new offshore areas for oil and gas development. It means continued investment in advanced biofuels and clean coal technologies. And, yes, it means passing a comprehensive energy and climate bill with incentives that will finally make clean energy the profitable kind of energy in America.


That's the leadership that we are providing — engagement that advances the common security and prosperity of all people. We're working through the G-20 to sustain a lasting global recovery. We're working with Muslim communities around the world to promote science and education and innovation. We have gone from a bystander to a leader in the fight against climate change. We're helping developing countries to feed themselves and continuing the fight against HIV/AIDS. And we are launching a new initiative that will give us the capacity to respond faster and more effectively to bioterrorism or an infectious disease — a plan that will counter threats at home and strengthen public health abroad.

It is interesting that the President found work with Muslim communities on innovation of greater significance than the impact of patent office problems on innovation within the United States.

Biofuels was mentioned in the section noted above, but the attention-grabber may have been "new" nuclear

But to create more of these clean energy jobs, we need more production, more efficiency, more incentives. And that means building a new generation of safe, clean nuclear power plants in this country. It means making tough decisions about opening new offshore areas for oil and gas development. It means continued investment in advanced biofuels and clean coal technologies. And, yes, it means passing a comprehensive energy and climate bill with incentives that will finally make clean energy the profitable kind of energy in America.

One of the biggest laugh lines was: I know that there are those who disagree with the overwhelming scientific evidence on climate change.

** from Roger L. Simon at pajamas:

Meanwhile, with AGW now “settled science,” Gore was able to find and campaign for a solution to the problem. That solution turned out to be the trading of “carbon credits,” a system which entailed the setting up of carbon exchanges across the globe that would make many people rich, very rich, to the tune of billions of dollars, including Mr. Gore. The former vice-president would become wealthy beyond his wildest dreams through promulgating a scientific theory that would save humanity from itself. No narcissist could possibly ask for more.

Also More Dodgy Citations in the Nobel-Winning IPCC Report

**John F. Harris wrote of the State of the Union:

Less charitably, the address could be interpreted as the work of a president who is desperately improvising by touching every political erogenous zone he and his advisers can think of.

Under either judgment, however, it was inescapable that his 69-minute speech — for all the rush of words and policy ideas — was a document of downsized ambitions for a downsized moment in his presidency.

If so, then one infers that the problems at the US Patent Office are not a "political erogenous zone" that occurs to either the President or his advisors.

Of Joff Wild and "where the outrage is" [ It also means that any future complaints about USPTO performance are going to sound extremely hollow. ], one observes that the President is not "on the case," and any future protestations otherwise will indeed sound hollow.

Also, is it too much to ask Vice-President Biden to keep his eyes open for a mere 69 minute speech:

**See also

***Of Obama's trashing the Supreme Court in the SOTU

Wednesday, January 27, 2010

District court errs on law of anticipation, but result stands

In THERASENSE v. Becton , the CAFC wrote:

For a claim to be anticipated, each
claim element must be disclosed, either expressly or inherently, in a single prior art
reference, and the claimed arrangement or combination of those elements must also be
disclosed, either expressly or inherently, in that same prior art reference.

Because the district court’s instruction on the law of anticipation was legally
erroneous, we must next determine whether the error may have prejudiced the jury’s
verdict of “anticipation or obviousness.”


For the foregoing reasons, we conclude that the asserted claims would have
been obvious over Nankai as a matter of law. Because the jury could not have returned
a different verdict, the district court’s erroneous instruction on the law of anticipation
could not have changed the result.

NSF on high value patents

Joff Wild at IAM has a post titled Looking at another American century which begins:

The National Science Foundation in the US has published its Science and Engineering Indicators 2010. This is a substantial piece of work that " focuses on the trend in the United States and many other parts of the world toward the development of more knowledge-intensive economies, in which research, its commercial exploitation, and other intellectual work play a growing role".


This is what it says about patents:

Patents on inventions for which protection is sought in the United States, the EU, and Japan require substantial resources for obtaining and maintaining them. This suggests that their owners consider them to be valuable. These patents are herein treated as an indicator of the distribution of high-value patenting around the world.

Just over 30% of high-value patents had US inventors in 2006, down somewhat from 34% in 1997. The EU’s share declined somewhat more, to 29% in 2006, followed closely by Japan. The Asia-9’s increasing share largely reflects patents with Korean inventors. As with US patents, Chinese inventors appeared on only 1% of these high-value patents.

My maths tells me that, if you accept that the NSF is right to talk of high value patents in this way (and to an extent at least I think you can), then around 90% of them are still coming from the US, the EU and Japan.

IPBiz has noted that "patent value" cannot be evaluated in the absence of a business plan. Here, the NSF and Joff, use "money spent on patent application" as a proxy for patent value. Specifically, one does not have a "high value patent" unless an application was GRANTED in the US and an application was filed in both Japan and EP. Digging into the NSF report, one finds

The expense of filing for patents in three different major markets (Japan, Europe, and the U.S.) means that, for the most part, only inventions deemed to be economically valuable will be patented in all three. The distribution of these "triadic patents" by the inventor country can provide insight into the location of important technological competencies.

One notes the NSF combines US "patents granted" with European and Japanese applications-->

Will tutorials prevent student plagiarism?

There is a report on a study by Brian Jacob, a professor at the University of Michigan Gerald R. Ford School of Public Policy, and Thomas Dee, an economics professor at Swarthmore College suggesting that a short tutorial on plagiarism can reduce plagiarism in writing assignments by around 2/3. It's a bit hard to believe.

The sample set was from 28 undergraduate social science and humanities classes and involved more than 1,200 papers. Among students not receiving a tutorial on plagiarism unattributed copying was stated to have occurred in 3.3 percent of the papers,
which seems remarkably low, even when compared to events during the Routman "Semester at Sea" adventure. The 3.3% number was stated to drop by 65% with a tutorial about plagiarism. One wonders if the tutorial might have been a signal to the students, who responded to the signal, not to the content, of the tutorial? Economics "research" in action?

The study found plagiarism to be largely concentrated among males and students with lower SAT scores. Does this relate to the incident of Joe Biden at Syracuse Law School?

Blackboard-based course web sites were used. See

Better at inventing stuff than making money ?

The phrase "better at inventing stuff than making money " might have been used to describe Xerox, post-Chester Carlson.
In fact, it appears in the good-bye memo of Scott McNealy to his staff at Sun Microsystems. ["McNealy noted Sun was sometimes better at inventing stuff than making money from its inventions like Sparc, Solaris and Java."]

Also of note:

"So, to be honest, this is not a note this founder wants to write. Sun, in my mind, should have been the great and surviving consolidator.


"Sun did not cheat, lie, or break the rule of law or decency. While we enjoyed breaking the rules of conventional wisdom and archaic business practice, and for sure loved to win in the market, we did so with a solid reputation for integrity. Nearly three decades of competing without a notable incident of our folks going off course morally or legally. Not all executives and big companies are bad. Really. There are good companies out there. Special thanks to all of my employees for this. I never had to hide the newspaper in shame from my children."

See also

Who is Rick Clark?
[ The writer, Liz Ryan, created an example wherein the (hypothetical) resume writer was a former IBM employee, now trying to find a job with the acquirer of Sun Microsystems. ]


McNealy: Microsoft needs Sun to beat IBM and Red Hat [ McNealy speaking here yesterday [5 Oct 2004]at a Northwestern University event on entrepreneurship let the anti-Red Hat venom spurt. (...) "What's happened now is that the world is down to three operating systems," McNealy said, during his keynote. "That is Windows, Red Hat and Solaris." (...) When asked by a Northwestern student why Microsoft decided to make peace with Sun, McNealy drifted into odd territory. His basic claim was that Microsoft knew it needed some competition and that Sun was the lesser of all evils. This claim covers the operating system wars, desktop software and middleware. "Microsoft needed a partner," McNealy said. "Their customers wanted choice. One is an unstable molecule."

It can only be assumed that McNealy was referring to Linux with that last comment. Sadly, he moved away from the molecular analysis at that point.]


Tuesday, January 26, 2010

Kappos: "The backlog will grow because the agency is shrinking."

Reuters quotes USPTO Director David Kappos:

"The agency is going to shrink in size and there's just no possible way that any efficiencies that I can put together as the leader can overcome ... the agency shrinking like that. The backlog will grow because the agency is shrinking."

Reuters also gave a quote from Kappos on the computer system at the USPTO:

I never remember (at IBM) having my IT person barge into my office to tell me that nearly 10,000 people suddenly had nothing to do because the computer system shut down."


Recall what Joe Hosteny wrote in Intellectual Property Today in August 2009:

The [USPTO Director] nominee [David Kappos] backs the Patent Reform Act, including post-grant review, and "reforming" (Newspeak: reducing) reasonable royalties. The funding woes of the Patent Office are apparent to everyone, but the nominee had nothing to say about this problem in his testimony. No director -- other than God -- could run a PTO without the money. The problem continues to exist. See Orin Hatch and Paul Otellini's "Opinion: Fully Funding the Patent Office is a Key to Economic Recovery," 4 in the Mercury News. As Lawrence Ebert says in his blog, get the job done right in the first place. 5 If you want to build a better car, do the job right on the assembly line, not after the car is built. That is the lesson that Toyota and Professor W. Edwards Deming taught everyone. The notion of repairing patents after the fact, in a Patent Office that hasn't the tools to do the job right in the first place, would be laughable if it weren't so sad.

Funding problems at the USPTO? I'm shocked! [with a wink to Claude Rains in Casablanca.]

See also

Monday, January 25, 2010

Bimbo Bakeries goes after former exec on secrets of Thomas' English Muffins

Not everyone in the United States may be familiar with the extent of the brands held by Bimbo Bakeries USA. They hold Entemann's. Of relevance to a recent trade secret case, captioned Bimbo Bakeries USA, Inc. v. BOTTICELLA (filed 15 Jan 2010), they hold Thomas' as in Thomas' English Muffins.

The present venue in the case is ED Pennsylvania, pursuant to the confidentiality agreement between Bimbo and (and now former Bimbo executive) Botticella, although the wombletradesecrets blog points out that this may not hold up.

The case is about trade secrets. Botticella, according to the complaint, is VP of operations for Bimbo's Western Region, and, as such, is one of fewer than ten people in the world with full knowledge of how to produce Thomas' English Muffins. Bimbo acquired George Weston Bakeries, including Thomas' on January 21, 2009. As to the secrets relating to Thomas' English Muffins, Botticella executed a confidentiality agreement on March 13, 2009.

Boticella submitted his notice of resignation on January 4, 2010, with intent to depart on January 15, 2010. On January 13, 2010, rumors began that Boticella was going to work for a Bimbo competitor, Hostess, a unit of Interstate Bakeries.

In Count I of the complaint by Bimbo, Bimbo asserts that Botticella has announced his intent to repudiate sections 3 and 5 of the confidentiality agreement. Bimbo seeks injunctive relief.

Of the venue business, wombletradesecrets wrote:

But Bimbo's arguments are ones that might not make legal sense in California, which is where Botticella resides and where he was performing the work for Bimbo and, logically, where the trade secrets reside.

We'll keep an eye on this one for you but we predict Botticella's legal response may involve a challenge to the venue of this case and his attorneys may study California's historical treatment of foreign jurisdiction injunctions and judgments that offend the public policy of California as represented in Business Code Section 16600 of that state.

Perceptive readers of IPBiz will recall an earlier discussion of Bimbo: Trademark in "Bimbo" , showing that the trademark "Bimbo" is used in the United States.

Victoria Slind-Flor covered this matter for Bloomberg on January 25, 2010. The same January 25 piece also mentions that General Patent has placed a video debunking the patent troll myth on its website:

General Patent Corp., an IP-licensing and enforcement organization, posted a video on its Web site debunking what it calls “The Myth of the Patent Troll.”

The term “Patent Troll,” first used by Peter Detkin when he was head of litigation at Intel Corp., is a pejorative term used to describe patent owners who don’t make products covered by their patents and sue others who do make products. Another term frequently used is “non-practicing entity.”

Detkin is now a vice chairman at Intellectual Ventures, a company based in Bellevue, Washington, that has amassed a large number of patents and does not itself make any products.

Sadly, Slind-Flor repeats the "urban legend" that the term "patent troll" was first used by Peter Detkin. That is not true.
Refer to the IPBiz post
The convenience of not remembering history when discussing patent reform
which refers to an earlier error on this point by the Patent Baristas blog:

As a separate matter, PatentBaristas repeated the "urban legend" about Detkin coining the name troll. Apart from the fact it wasn't actually Detkin at Intel who first used troll at Intel, the real problem is that it wasn't first used at Intel at all. Baristas wrote:

Like the troll of lore who lived under a bridge and extorted money from travelers, the so-called “patent trolls” are patent holders that do not make products but only threaten other companies with patent infringement lawsuits in order to extract money. (Ironically, Peter Detkin, former assistant general counsel at Intel is credited with coining this term and he now works for Intellectual Ventures LLC, a company that has been spending millions to buy up patents for licensing.)

But see

Intel folks did NOT invent the term "patent troll"

The general irony here is that people who purport to write so profoundly on invention don't seem to investigate "prior art" at all.

Faking DNA testing?

Within discussion of the National Enquirer reporting of the Edwards affair is a reference to a plan "to fake a DNA test." Some of the concern over ClimateGate relates to the possibility of manipulating or faking data. Further, the IPCC relied on a questionable source in its 2007 report as to the status of glaciers in the Himalayas.

On the identity of authors as a proxy for accuracy, the Edwards story did not get much early traction because of the source. The National Enquirer does not have the highest standing in the public mind for credibility. In the end, in this case, the National Enquirer was right about the paternity issue and John Edwards did acknowledge paternity of the child with Rielle Hunter.

Going back a decade, one recalls how George Stephanopoulos, on the "This Week" show, denied the accuracy of the story of Monica Lewinsky's blue dress because it was reported by the Drudgereport. Much later, the story proved to be true.

The flip side is also true. Just because someone is a professor from a university does not mean that their testimony is accurate. An MIT professor testified against Edison's light bulb patent. Furthermore, professors can omit facts. [See

What the expert doesn't include in the expert report can be important

Cross-reference as to the Edwards story: DAVID PEREL

Sunday, January 24, 2010

"The God Patent"

The book "The God Patent" relates to intellectual property at several levels.

Evan Karp writes of the manner of publication of the book by the author (Ransom Stephens):

Last month, when his first novel, "The God Patent," was released, it marked a milestone not only for Ransom but for the book industry as well, as the first debut novel to emerge from the new paradigm of online publishing.

"The God Patent" is the fourth book that new boutique publisher Numina Press of San Rafael has put out as a result of, the so-called YouTube for documents that allows authors to pretest the selling power of their books. With its epic themes grounded in authentic science, "The God Patent" is not something one of the so-called Big Sisters of publishing would necessarily pursue from a first-time author.

Of the book and the protagonist Ryan McNear:

But Ryan has made some costly mistakes that result in his losing both his job and the custody of his daughter. He ends up in Petaluma, where ex-lawyer and con man/landlord Dodge Nutter claims a percentage of all royalties from the patents Ryan and his pal Foster Reed were awarded for proposals they wrote years before.

One of the patents disguises a theory of the soul as a software algorithm, and the other combines the biblical story of creation with the Big Bang as the basis for a power generator. Foster builds a power generator that he believes will link science and spirituality and finally prove the existence of God.

There is no Ransom Stephens on the USPTO roster of attorneys/agents although Karp writes of "Stephens' experience as a particle physicist, director of patents (...)" However, one recalls that Mallun Yen is not a registered patent attorney either.
Cisco's chief patent counsel is not a registered patent attorney?!?
]. Nor is Mark Lemley.

See also a homepage.

"Collective failure by a number of people"

Although the text --collective failure by a number of people -- might be apt to describe positions on patent reform by a number of IP professors, the phrase came from Dr Rajendra Pachauri about a section on the IPCC report on glaciers, now known to be inaccurate.

As the TimesOnLine noted:

The IPCC’s 2007 report, which won it the Nobel Peace Prize, said that the probability of Himalayan glaciers “disappearing by the year 2035 and perhaps sooner is very high”.

But it emerged last week that the forecast was based not on a consensus among climate change experts, but on a media interview with a single Indian glaciologist in 1999.

One remembers the Quillen/Webster assertion of a 97% patent allowance rate at the USPTO, relied upon by a number of patent

Of the IPCC, see also

Himalaya horror story from New Scientist now questioned

The outrage is here

To the IAM blog as to its post titled Where is the outrage?, to be filed under "you won't find it if you don't look for it" :

Of --loud and clear from a variety of voices that it is absolutely essential --, there have been plenty of publications advocating proper resources for the USPTO, if you bother to look for them.

For example, Joe Hosteny wrote in Intellectual Property Today in August 2009:

The nominee [Kappos] backs the Patent Reform Act, including post-grant review, and "reforming" (Newspeak: reducing) reasonable royalties. The funding woes of the Patent Office are apparent to everyone, but the nominee had nothing to say about this problem in his testimony. No director -- other than God -- could run a PTO without the money. The problem continues to exist. See Orin Hatch and Paul Otellini's "Opinion: Fully Funding the Patent Office is a Key to Economic Recovery," 4 in the Mercury News. As Lawrence Ebert says in his blog, get the job done right in the first place. 5 If you want to build a better car, do the job right on the assembly line, not after the car is built. That is the lesson that Toyota and Professor W. Edwards Deming taught everyone. The notion of repairing patents after the fact, in a Patent Office that hasn't the tools to do the job right in the first place, would be laughable if it weren't so sad.

I had written in "Intellectual Property Today" in November 2008:

In an article in Intellectual Property Today in October 2005 ("Things Are Not Always What They Seem To Be," page 20), I had written:

The patent "quality" issue is one of several motivating the reforms proposed within H.R. 2795, which will be much discussed in the coming months. In my opinion, the most direct approach is to end fee diversion, give the USPTO sufficient funds to do the job of examination, and then evaluate its performance.n10 Adding on new responsibilities for the USPTO, without resolving the issue of resources for its core function, is questionable policy. In the specific case of patent oppositions, the addition of a product inspection step when there are foreseeable, identifiable remedies to the production itself violates the basic teachings of Deming.

**See also


One can only assume you're doing your best Claude Rains impersonation (Gambling in Casablanca? I'm shocked.) when you say "that is a huge surprise to me." You have to be kidding!

also, as to Casablanca,

**Also, for one account on fee diversion, see the paper by Marla Page Grossman titled: Diversion of UsPTo User fees:
A TAx on innovATion
, which includes at page 7:

The recent restraint demonstrated by Congress in
not diverting user fees away from the USPTO is
very likely a direct result of the outrage expressed by
USPTO stakeholders about past diversion. Requir-
ing the USPTO user community to return to Con-
gress year after year to request that the user fees they
pay not be diverted is certainly no long-term solu-
tion. Moreover, such a system is antithetical to pro-
moting future desirable public-private partnerships.

Saturday, January 23, 2010

Rambus wins over Nvidia at ITC

Reuters noted an ITC ruling of 22 Jan 2010 against Nvidia on patents of Rambus.

See also BusinessWeek: Rambus says ITC rules Nvidia violated 3 patents.

Things one finds on wikipedia: "magnetic air car"

Under "magnetic air car," one finds the following text on wikipedia:

The magnetic air car is a concept car. Instead of an alternative fuel source, the magnetic air car uses air-compressing technology to propel it. The patented technology is developed by Magnetic Air Cars, Inc., a San Jose-based company who is working on the world’s first viable fuel-less car. A French company, MDI Cars, previously showed a car based on similar principle to a BBC reporter in 2002.

See also

What Wikipedia didn't tell you about Kanzius?

"The Tonight Show" saga as a parable in obviousness

IPBiz has discussed trademark issues that might inhere in the recent "Tonight Show" controversy. [
"The Tonight Show" controversy: do trademarks have a temporal dimension?

Suppose back in the year 2004, NBC executives had attempted to get a business method patent for a method to sustain ratings for a flagship late night show of a company. Suppose it involved steps of
having a show rated number one in its time slot with said show having a host,
announcing a replacement for the host five years in advance of when said replacement is to take place, wherein the host replacement is employed by the company, and
selecting the replacement host based on factors including projected demographics and competitive offers to said host replacement.

Obvious or not? A matter of common sense? A matter of a limited number of alternatives to test? on Conan's final comments on Tonight on 22 Jan 2010:

"There has been a lot of speculation in the press about what I legally can and can't say about NBC. To set the record straight, tonight I am allowed to say anything I want. And what I want to say is this: Between my time at 'Saturday Night Live,' 'The Late Night Show,' and my brief run here on 'The Tonight Show,' I have worked with NBC for over 20 years. Yes, we have our differences right now. And, yes, we're going to go our separate ways. But this company has been my home for most of my adult life. I am enormously proud of the work we have done together, and I want to thank NBC for making it all possible."


NBC's "cheap programming" gambit fails, but incrementalist patents survive

The ethics of writing a "letter to the editor"

One "Ellie Light" has been writing "letters to the editor" in support of President Obama. An issue is that she claims different addresses in the letters. As noted in the Cleveland Plain Dealer, variations of Light’s letter ran in Ohio’s Mansfield News Journal on Jan. 13, with Light claiming an address in Mansfield; in New Mexico’s Ruidoso News on Jan. 12, claiming an address in Three Rivers; in South Carolina’s The Sun News on Jan. 18, claiming an address in Myrtle Beach; and in the Daily News Leader of Staunton, Virginia on Jan. 15, claiming an address in Waynesboro. Her publications list includes other papers in Ohio, West Virginia, Maine, Michigan, Iowa, Pennsylvania and California, all claiming separate addresses.

The Plain Dealer quoted Tom Rosenstiel of the School of Journalism at the University of Missouri:

"Just because it is inconvenient for us in the news business to find out who people are doesn’t mean it isn’t important anymore,” Rosenstiel said. “It is not OK for people to have multiple identities. This is something that people in the news business and in the business of printing “letters to the editor” need to be aware of.”

Of UMissouri journalism, note the previous IPBiz post

UMissouri journalism prof guilty of plagiarism


Facts, relied upon, must be verified, when challenged
which contains text from a newspaperman:

However, newspapers print falsehoods or dubious assertions on a daily basis. They are contained in material provided by government officials, attorneys, public relations people, letters to the editor, etc.

On the subject of the University of Missouri, note the article by Anthony J. Luppino titled : FIXING A HOLE: ELIMINATING OWNERSHIP UNCERTAINTIES TO FACILITATE UNIVERSITY- GENERATED INNOVATION [78 UMKC L. Rev. 367 ] which discusses
the Galen Suppes matter:

In the pending case of Curators of the University of Missouri v. Suppes, n128 the plaintiff recently addressed this issue in its Suggestions in Opposition to [Defendants'] Motion to Dismiss. The brief explains that:

The University is seeking a declaration from this Court that there has been an automatic assignment of all patentable inventions made by [defendants] [p. 392] during the course of their employment with the University. Such a ruling would allow the University . . ., as assignee, to gain access to all patent applications filed by the defendants in the United States Patent and Trademark Office and to take such actions in the Patent Office as might be needed to protect its rights. n129
In support of its argument that a declaration of "automatic assignment" involves a question of federal patent law over which the federal court has subject matter jurisdiction, the plaintiff cites DDB Technologies, L.L.C. v. MLB Advanced Media, L.P. n130

In DDB Technologies, a patent infringement dispute among for-profit competitors, the Federal Circuit Court of Appeals reasoned that "[a]lthough state law governs the interpretation of contracts generally . . . the question of whether a patent assignment clause creates an automatic assignment or merely an obligation to assign is intimately bound up with the question of standing in patent cases." n131 It proceeded to treat the automatic assignment issue as a matter of federal law and concluded that an automatic assignment had occurred because language in the pertinent employment agreement saying the employee "agrees to and hereby does grant and assign" rights to future inventions covered by the agreement "was not merely an agreement to assign, but an express assignment of rights in future inventions." n132 This federal law-based holding on automatic assignment was particularly important in the case because it then followed under applicable Texas law that the actual assignment precluded the assignor from raising arguments of estoppel and waiver against the assignee. n133
Also notable in DDB Technologies is the court's handling of the fact that the employment agreement involved in-cluded, in addition to the key wording of the assignment granting clause quoted above, a provision that, "[e]mployee agrees to execute specific assignments and do anything else properly requested by the Company, at any time during or after employment with Company, to secure such rights." n134 In dismissing the argument that the contract "contemplated an additional act of assignment" rendering inappropriate the conclusion that assignment was automatic under the agreement, the court simply stated, "[w]e see nothing in this clause that conflicts with the clear language of the present, automatic assignment provision in the agreement." n135 Despite the reasonableness of the court's position in this regard, draftspersons of university [p. 393] intellectual property policies charged with creating an automatic assignment would be well-served to include express language to the effect that the assignment is automatic. They should consider stating that the obligation to sign and deliver subsequent documentation is of a further assurances or confirmatory nature; i.e., that such documentation is merely to evidence or confirm ownership that has already been vested in the university. In addition, all parties involved with these types of assignments should consider associated tax implications. n136

Footnote 111 cited IPBiz: See Plaintiff's Suggestions in Opposition to Defendants Suppes' and Homeland Technologies' Motion to Dismiss in The Curators of the University of Missouri v. Suppes, No. 2:09-cv-040120-SOW, 2009 WL 1243935 (W.D. Mo. March 17, 2009); see also IPBiz Blog, Information from Galen Suppes in UMissouri Matter (Feb. 3, 2009), 2009 02 01 archive.html (last visited Sept. 22, 2009) (quoting Professor Suppes); IPBiz Blog, Univ. of Missouri sues ChemE prof over patent rights (Jan. 28, 2009), 2009 01 01 archive.html (last visited Sept. 22, 2009).

In the Suppes case, UMissouri knew, or should have known, of Suppes' previous research activities, which may have given rise to intellectual property rights.


On walking the [scaffold] plank

Friday, January 22, 2010

Monsanto whacks DuPont on stacking issue

TheTruthOnTheMarket blog noted of Monsanto's victory over DuPont in ED Mo:

But the ruling did support Monsanto in its basic case which centers around the field-of-use restriction described above. And on this issue the court found in Monsanto’s favor, holding that the license did indeed contain a valid restriction against stacking of glyphosate-tolerant traits and that Monsanto may seek a remedy for violation of the restriction (if the agreements and patents are deemed enforceable, an issue not reached by the court’s decision) in contract.

The ruling is narrow in scope, but it’s an important victory for Monsanto in what is, at its core, a patent infringement/breach of contract case–not an antitrust case. It is difficult to escape the conclusion, laid out on Monsanto’s web page here, that Pioneer resorted to stacking in an effort not to improve through synergy the overall glyphosate tolerance of its seeds but rather to patch over the relative ineffectiveness of its own traits. Monsanto has licensed its technology widely for use in products where its trait is combined with different traits from other companies (including, notably, competitors like Pioneer). But for very good reasons (mainly protection of its brand), Monsanto imposes field of use restrictions on the coupling of its Roundup Ready trait with other companies’ traits that purport to perform the same function. The court’s decision paves the way for Monsanto to thus enforce its property rights.

from a news clip on 18 Jan 2010:

Monsanto won a small victory on Friday, when a federal judge ruled that rival Dupont had violated the terms of a contract in combining Monsanto technology with its own in producing genetically modified seeds.

But the ruling was only a partial victory for Monstanto because it left open the possibility that the St. Louis-based Monsanto may still be on the hook for antitrust violations.

“The Court does not express any opinion on the viability … that the license agreements … are unenforceable as a matter of patent law and on antitrust grounds,” wrote Judge E. Richard Webber of the Eastern District of Missouri, in his ruling. ”[Dupont] may be able to demonstrate that Monsanto may not recover for patent infringement or breach of contract.”

It is the latest development in a long-running war between the nation’s two largest seed manufacturers, who have sued each other in a patent and contract dispute. Dupont has also urged the Justice Department’s Antitrust Division toinvestigate Monsanto’s licensing practices which, Dupont alleges, shut out competitors and force farmers to pay higher prices for seeds.

[ ]

See also

Fax machines, here today, or already gone?

Don't tell the New Jersey Court System, but the Huffington Post declared fax machines one of twelve things that became obsolete in the past decade. You can fax the courts in Trenton, but you can't email them.

Meanwhile, the CAFC just decided a fax case, Catch Curve v. Venali.

Legal thoughts from the nonprecedential Catch Curve case:

By reciting the use of a SAFF, the storage claims, like the other asserted claims of the patents in suit, are necessarily
limited to systems that are capable of sending fax messages through fax protocol over a
switched telephone network. See Biogen, Inc. v. Berlex Labs., Inc., 318 F.3d 1132,
1139-40 (Fed. Cir. 2003) (limiting both method and apparatus claims “to conform with
the basis on which the invention was presented in the specification”).


However, merely omitting a step in a described process does not perforce expand the scope of the claim to
encompass the use of devices that are nothing like those described in the specification
as integral to the invention
. See Abbott Labs. v. Sandoz, Inc., 566 F.3d 1282, 1288
(Fed. Cir. 2009) (“[C]laims cannot enlarge what is patented beyond what the inventor
has described as the invention.”), quoting Networld, LLC v. Centraal Corp., 242 F.3d
1347, 1352 (Fed. Cir. 2001); see also Wang Labs., Inc. v. Am. Online, Inc., 197 F.3d
1377, 1382 (Fed. Cir. 1999) (limiting the claim term “frame” to character-based protocol,
even though “frame,” used generally, could also refer to bit-mapped displays, because
the specification described and enabled only systems using character-based protocol).

In one case in Superior Court, former Judge Mathesius told attorneys they could not
communicate via email.

Democratizing data

See AP report Government posting wealth of data to Internet. Remember when President Clinton's USPTO head fought the creation of a USPTO database?

Does anyone remember the efforts of Carl Malamud to create the patent database? See "There's Always Something There To Remind You", Intellectual Property Today, page 49 (May 2003) and IP issues for small businesses

**Separately, in the realm of "pay for news"

After Three Months, Only 35 Subscriptions for Newsday's Web Site -->

That astoundingly low figure was revealed in a newsroom-wide meeting last week by publisher Terry Jimenez when a reporter asked how many people had signed up for the site. Mr. Jimenez didn't know the number off the top of his head, so he asked a deputy sitting near him. He replied 35.

Michael Amon, a social services reporter, asked for clarification.

"I heard you say 35 people," he said, from Newsday's auditorium in Melville. "Is that number correct?"

Mr. Jimenez nodded.

Apple patent application for avoiding parking tickets

IPBiz has discussed some of the "less than groundbreaking" patent applications of IBM and Microsoft. On January 21, 2010, Apple's US 20100017118 was published, with first claim

A method relating to implementing location aware services for mobile device users, comprising:

determining a first location based on a location of a first device by machine processing of one or more of GPS signals and triangulation information;
retrieving parking regulations, through the first device, from a source of such information pertinent to the first location;algorithmically determining, based on a current time and based on the parking regulations, a timing of an alert to avoid violating the parking regulations pertinent to the first location; and
automatically programming the alert into the first mobile device.

Yes, a method to help one avoid parking tickets. Looks kind of incremental, if not trivial.

Claim 17 gets more involved:

A method of using current mobile device location and surroundings information, comprising:

receiving an indication of an intended destination of a user, to be reached by means other than an automobile in which the user is presently occupying;determining a present location of the mobile device by machine processing of one or more of GPS signals and triangulation information;
retrieving parking regulations pertaining to a plurality of distinct parking opportunities, over a data network, from one or more sources of parking information;forming a first travel time estimate from each of the parking opportunities to the intended destination, and a second travel time estimate from intended destination to each of the parking opportunities;
forming a total time required estimate that includes the first travel time estimate, the second travel time estimate and a time at the intended destination;
providing an indication of which of the parking opportunities allow parking for at least that total amount of time;receiving a selection of one of the parking opportunities from the user; and
providing directions from the present location of the mobile device to the selected parking opportunity.

**Previous IPBiz posts

IBM's 7,407,089 "paper or plastic" patent

Microsoft "spyware" for monitoring activities?

The state of prosecution at the US Patent Office

Within a post titled Professionalism, the just-n-examiner blog recounts an incident wherein an examiner gave a "Notice of Non-Compliant Amendment" for a missing period (apparently covered over by an underline) on an amended claim and the attorney responded with a letter to David Kappos, Director of the USPTO.

The incident was disclosed by Greg Aharonian, with just-n-examiner adding some commentary.

**For people wanting a change.

Thursday, January 21, 2010

Do universities need reminder on guidelines on overzealous patenting?

Within an article in Chronicle of Higher Education (by Paul Basken) titled NIH WILL GIVE LESS AND DEMAND MORE IN 2010, NEW LEADER SAYS , one has the text:

The NIH does have guidelines on overzealous patenting and licensing, and "perhaps universities should be reminded of them," Dr. Francis S. Collins said.

References to Casablanca are all right. Bonus points for mentioning Orson Welles' "cuckoo clock" speech in "The Third Man" or appropriate text from "Paths of Glory."

Supreme Court expands corporate role in campaign ads

AP reported on 21 January 2010: By a 5-4 vote, the court on Thursday [Jan. 21] overturned a 20-year-old ruling that said corporations can be prohibited from using money from their general treasuries to pay for their own campaign ads.

This 5-4 vote was another one wherein Justice Kennedy was the swing vote. The AP noted: "The censorship we now confront is vast in its reach," Justice Anthony Kennedy said in his majority opinion, joined by his four more conservative colleagues. [See previous IPBiz post: The power in being the swing vote .]

Curiously, the argument for the "conservative" winning position in the "Citizens United" case had been delivered by Floyd Abrams. Trevor Potter, associated with John McCain arguing for limits, was on the losing side.

See a previous IPBiz post
"Citizens United": like patent reform, you need a scorecard

As in patent reform, it is a bit difficult to figure out "who is who" here.

FoxNews quoted dissenting Justice Stevens:

"In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it."

and Fox separately returned to the beginning of this case:

Siding with filmmakers of "Hillary: The Movie," who were challenged by the Federal Election Commission on their sources of cash to pay for the film, the court overturned a 20-year-old ruling that banned corporate and labor money. The decision threatens similar limits imposed by 24 states.

See Supreme Court Removes Limits on Corporate, Labor Donations to Campaigns

A lot of press has this as a Republican/Democrat thing, with Republicans quite happy. A note to Republicans: be careful what you wish for. As the patent reform debate illustrated, there's a lot of corporate money to be spent by the IT industry, and a whole bunch goes to Democrats, not Republicans. Ask the Senator from Vermont.

In passing, if anyone ought to get a big message from the Senate election in Massachusetts, it ought to be Ben Nelson in Nebraska. And, of "here today, gone tomorrow" thinking, the take of Julian E. Zelizer of Princeton as to Ben Nelson being a power is sooooo yesterday. Hasta la vista, baby!

**Update. President Obama ripped the Supreme Court decision in the "state of the
union" on 27 Jan 2010. See
Obama Criticizes Supreme Court


Gamecocks crunched by Trojans in CAFC-USC bowl

The University of South Carolina tried to register a mark with the letters SC. The University of Southern California opposed registration of South Carolina’s mark. Southern California argued, among other things, that the registrations for its own Standard Character Mark (Registration No. 1,844,953 (’953 Registration)) and Athletic Interlock Mark (Registration No. 2,683,137 (’137 Registration)) had priority over South Carolina’s proposed registration and that South Carolina’s proposed mark would create a likelihood of confusion with the ’953 and ’137 Registrations. Southern California’s ’953 Registration protects the letters “SC” in standard character form.

The TTAB refused registration of South Carolina’s mark under Section 2(d) of
the Lanham Act, 15 U.S.C. § 1052(d), finding that it would create a likelihood confusion
with Southern California’s registrations. Among other things, the Board based its
conclusion on its findings that South Carolina’s mark and Southern California’s
Standard Character Mark were legally identical, that the marks would appear on the
same classes of goods in the same channels of trade and that some consumers would
exercise little care in making purchases.

The CAFC went to factors set forth in Application of E.I. DuPont DeNemours & Co., 476 F.2d
1357, 1361 (C.C.P.A. 1973) to analyze the issues.

The sophistication of the consumer factor brought interesting text from the CAFC:

the Board found that the marks were legally identical and
would appear on the same classes of goods in the same trade channels. These factors,
on their own, support a finding of likelihood of confusion. See, e.g., Cunningham v.
Laser Corp., 222 F.3d 943, 948-49 (Fed. Cir. 2000) (finding the Board’s failure to
consider consumer sophistication harmless when there was a strong similarity of marks
and identity of goods). Thus, even if the Board erred in its finding that certain
consumers were unsophisticated, this error would not require reversal of the Board’s
decision on the likelihood of confusion.

The "substantial evidence" standard arose: At this stage, we review this determination for
substantial evidence, not whether the Board made the correct inference.
The lay public
does not always appreciate what goes on in a substantial evidence review. Appellate courts are
not deciding whether the lower entity made the "right" decision.

On the separate cancellation issue, South Carolina won on standing but lost anyway.

To prevail on a Section 2(a) Lanham Act claim
for cancellation based on false association, a party must show that the challenged mark
is “unmistakably associated” with another person or institution. See Univ. of Notre
Dame Du Lac v. J.C. Gourmet Food Imports Co., Inc., 703 F.2d 1372, 1376-77 (Fed.
Cir. 1983); see also 15 U.S.C. § 1052(a).

South Carolina points to evidence that the public
associates the initials “SC” with the State of South Carolina. We agree that “SC” may
refer to the State of South Carolina. But as the evidence offered by Southern California
demonstrates, “SC” refers to many entities aside from the State.

One wonders if South Carolina, a la Miracle on 34th St., might have called on the
US Post Office to give meaning to "SC."

**Update. President Obama ripped the Supreme Court decision in the "state of the
union" on 27 Jan 2010. See
Obama Criticizes Supreme Court


UPDATE on 9 August 2009-->

See University Logos and Low-Wage Manufacture: The Branding Challenge -->

In short, a company called Knights Apparel, located in the U.S. state of South Carolina, has begun manufacturing operations in the Dominican Republic for various college-logo apparael that is then sold primarily on American college campuses. Sellling such logo-bearing apparel (such as the Harvard or Yale name or logo on a T-shirt) is one of those distinctive aspects of the American university milieu; it is also a big business. Knights Apparel is described in the article as the leading supplier of such apparel to American universities.

Wednesday, January 20, 2010

Letterman mentions "intellectual property" on Jan. 20

In his opening comedy routine on Jan. 20, 2010, Dave Letterman talked about "intellectual property" details in Conan's contract with NBC, indicating that Conan could not take his bits and routines with him (but that Jay would take them).

Dave also did "Get to Know Jay Leno." [Jay Leno a Look Back].

"Son of HIPAA"

HealthBlawg notes that state attorneys general will be becoming involved in enforcing "son of HIPAA" legislation:

Connecticut Attorney General Richard Blumenthal entered a brave new world yesterday, as the first state AG to file a HIPAA enforcement action under the "Son of HIPAA" amendments found in the HITECH Act. Among other HIPAA changes made in the new law (all of which should be of concern to health care providers, health care payors, health care clearinghouses -- "covered entities" or CEs -- and their "business associates" -- vendors who touch electronic protected health information or ePHI), there is a provision that permits state attorneys general to file HIPAA enforcement actions on behalf of the people of their state, in order to protect their interests, and to seek injunctive relief and/or money damages. See Sec. 13410(e) of ARRA (p. 160 of HR 1 PDF).

These claims are consumer protection claims, a familiar territory for state attorneys general.

Tuesday, January 19, 2010

Jan. 8 issue of Science: another problematic paper uncovered?

Bruce Alberts presented an "editorial expression of concern" about a paper published at 326 Science 252, observing "serious questions have been raised about the methods and data presented in the article. [327 Science 144 (8 Jan 2010)]

Within the same issue, Rustum Roy had a letter titled "Incentive: Stimulus Missed an Opportunity," wherein Roy criticizes federal funding agencies "sturdy and steady support of incremental science" and observes "the Adminstration's plans are misapplied to science." [327 Science 145]

**Rustum Roy has been discussed elsewhere on IPBiz-->

Burning water, before Kanzius
[ Did Rustum Roy cite Hackmyer? ]

New Jersey Supreme Court protects social security numbers

In the case Burnett v. County of Bergen, 198 N.J. 408; 968 A.2d 1151 (N.J. 2009), the New Jersey Supreme Court wrote of access to public records:

The Open Public Records Act (OPRA) requires that government records "shall be readily accessible" to the citizens of this State, subject to certain exceptions. N.J.S.A. 47:1A-1. Underlying that directive is the bedrock principle that our government works best when its activities are well-known to the public it serves. With broad public access to information about how state and local governments operate, citizens and the media can play a watchful role in curbing wasteful government spending and guarding against corruption and misconduct.

In this particular case, the New Jersey Supreme Court had to decide how to handle the presence of confidential information (specifically social security numbers) with a public record:

Under the unusual circumstances of this case, the balance tips in favor of the citizens' reasonable expectation of privacy in one respect: the records can be disclosed after redaction of individual social security numbers.

The case is interesting in that LexisNexis was involved in amicus brief -- the Consumer Data Industry Association, LexisNexis, the National Association of Professional Background Screeners, and the Real Estate Information Professionals Association (collectively CDIA)-- wherein CDIA argued in favor of the plaintiff (for disclosure of SSN) and challenging the Appellate Division's finding of a constitutional right to privacy in this case. [The Supreme Court did not reach the issue of a right to privacy under the New Jersey Constitution.]

The LexisNexis posture was apparent in a factual discussion of identity theft issues:

Even more alarming are statistical findings by the FTC. Nearly ten million Americans--almost five percent of the adult population in the United States--had been victimized by identity theft during a twelve-month period from 2002 to 2003. FTC, Identity Theft Survey Report 13 (2003), available at synovatereport.pdf. Of those, 3.25 million [***46] had their personal information misused to open new accounts, obtain new loans, or commit theft, fraud or other crimes. Ibid. According to a different survey, about 8.3 million adults discovered they were victimized by identity theft in 2005. FTC, 2006 Identity Theft Survey Report 4 (2007), available at ID-Theft2006.pdf.

Amicus CDIA questions how many of those complaints relate to misappropriated SSNs as opposed to stolen credit cards or other items. Such a debate misses the point: identity theft today is real, and it is directly linked to the misuse of exposed or stolen SSNs. Plaintiff's plan to place documents containing SSNs in a centralized, easy-to-search computer database presents just such a risk.

Separately, on agreements entered into in court:

We do not find that both sides entered a mutual, binding agreement on the issue of watermarking. Their agreement was qualified; it was conditioned on the assumption that the cost of watermarking would be minimal. At the time, defendant thought the fee "would [not] be anything substantial." As it turned out, watermarking will add $ 20,000 to the cost. We cannot find that $ 20,000 was within the "minimal" amount the parties contemplated or agreed to. See Kupper v. Barger, 33 N.J. Super. 491, 494, 111 A.2d 73 (App.Div.1955) (finding that enforcement of a stipulation entered into by attorneys in open court "is denied where there appears to have been an absence of mutuality of accord between the parties or their attorneys in some substantial particulars, or the stipulated agreement is incomplete in some of its material and essential terms").

Do entrepreneurs hate patent lawyers?

A comment by LBE to the IAM post titled: Why are lawyers disliked by entrepreneurs?

If you're talking about venture capitalists, etc., either you've been talking to the wrong VCs, or more likely the VCs have been talking to the wrong patent attorneys. Further, on the other side of the coin:

VCs look for familiar people to hold their hand, and, as Bob Park noted long ago, are out to sea on the technology. Their game plan is to get in, and out, quickly, so they are not concerned about "Bleak House" - like patent litigation, or patents generally. The above noted list is a hackneyed accumulation of complaints about lawyers, not generating any remarkable insight in the tech area.

In contrast to VCs, small inventors know their technology and generally quickly figure out who the good patent attorneys are, and would not remain with any attorney presenting the problems you mention.

Bend or break?

Note the conference at UCal/Irvine on 22 Jan 2010 titled: Bend or Break: Tailoring the Patent System to Promote Innovation.

Keynote Speaker is Hon. Randall Rader. Panelists include Dan Burk, Colleen Chien, Rebecca Eisenberg, Jeanne Fromer, Stuart Graham, Mark Lemley, Christopher Leslie, Robert Merges, Michael Meurer, Fiona Murray, Katherine Strandburg, Geertrui Van Overwalle, and Polk Wagner.

As an exercise to the IPBiz reader, how many professors can you identify in the above list? Or, as a tougher exercise, how many non-professors can you identify in the list? How many registered patent attorneys?

See also

Concerning citations, SSRN, oppositions and Graham

Monday, January 18, 2010

Himalaya horror story from New Scientist now questioned

TimesOnLine has an update on a 1999 interview conducted by Fred Pearce, which was used by the IPCC in a benchmark report with a central claim that the world's glaciers were melting so fast that those in the Himalayas could vanish by 2035 :

The IPCC's reliance on Hasnain's 1999 interview has been highlighted by Fred Pearce, the journalist who carried out the original interview for the New Scientist. Pearce said he rang Hasnain in India in 1999 after spotting his claims in an Indian magazine. Pearce said: "Hasnain told me then that he was bringing a report containing those numbers to Britain. The report had not been peer reviewed or formally published in a scientific journal and it had no formal status so I reported his work on that basis.

"Since then I have obtained a copy and it does not say what Hasnain said. In other words it does not mention 2035 as a date by which any Himalayan glaciers will melt. However, he did make clear that his comments related only to part of the Himalayan glaciers. not the whole massif."

TimesOnLine notes the warning is "likely to be retracted after a series of scientific blunders by the United Nations body that issued it."

The information had appeared in a news story in the New Scientist, a popular science journal. One recalls that the questionable story of Eli Kintisch on patent continuations in the journal Science had appeared as a "news" story.

IPBiz had discussed Pearce in a previous post, ClimateGate: PR disaster or beginning of openness? .

TimesOnLine later reported:

The UN’s top climate change body has issued an unprecedented apology over its flawed prediction that Himalayan glaciers were likely to disappear by 2035.

The Intergovernmental Panel on Climate Change (IPCC) said yesterday that the prediction in its landmark 2007 report was “poorly substantiated” and resulted from a lapse in standards. “In drafting the paragraph in question the clear and well-established standards of evidence, required by the IPCC procedures, were not applied properly,” the panel said. “The chair, vice-chair and co-chairs of the IPCC regret the poor application of IPCC procedures in this instance.”

The stunning admission is certain to embolden critics of the panel, already under fire over a separate scandal involving hacked e-mails last year.

The 2007 report, which won the panel the Nobel Peace Prize, said that the probability of Himalayan glaciers “disappearing by the year 2035 and perhaps sooner is very high”. It caused shock in Asia, where about two billion people depend on meltwater from Himalayan glaciers for their fresh water supplies during the dry seasons.

Patent lawyer in public service

The "City Room" feature of the NY Times had a post about a patent lawyer working for the Legal Aid Society:
Answers From a Young Lawyer.

The comment -- I think it is clear to anyone who takes even a cursory look that the poor are at a huge disadvantage in many areas of the law. -- could also apply to small inventors in the patent system.

The death of the slush pile?

KATHERINE ROSMAN, writing on, discusses the unwillingness of publishers to accept unsolicited manuscripts, for fear of later accusations of plagiarism.

Unsolicited material is termed slush, and Rosman wrote:

Now, slush is dead, or close to extinction. Film and television producers won't read anything not certified by an agent because producers are afraid of being accused of stealing ideas and material. Most book publishers have stopped accepting book proposals that are not submitted by agents.

In the real world of intellectual property, protection, whether as copyright or patent, is designed to foster negotiations between the guy with the idea (author or inventor) and the guy with the means to bring the idea to the public.

Some of Rosman's text sounds as if taken from big IT companies bemoaning "low quality" patents:

Fending off plagiarism lawsuits has become an increasing headache for publishers and studios. "It's become the cultural version of malpractice," says Kurt Andersen, the novelist and host of public radio's "Studio 360."


A primary aim of the slush pile used to be to discover unpublished voices. But today, writing talent isn't necessarily enough. It helps to have a big-media affiliation, or be effective on TV. "We are being more selective in taking on clients because the publishers are demanding much more from the authors than ever before," says Laurence J. Kirshbaum, former CEO of Time Warner Book Group and now an agent. "From a publisher's standpoint, the marketing considerations, especially on non-fiction, now often outweigh the editorial ones."

IPBiz notes that there is no federal cause-of-action in "plagiarism." There is one of copyright infringement.

Separately, there is a bit of Chester Carlson in the "Harry Potter" saga:

Despite the refrain that most everything sent to the slush pile is garbage, publishing executives confess to a nagging insecurity of missing something big. "Harry Potter" was submitted to 12 publishers (by an agent), all of whom rejected it. A year later, Bloomsbury published it in the U.K.

Carlson submitted xerography to many companies, including IBM and Eastman Kodak, who turned it down cold.
Of unusual material which inadvertently was discovered, recall the music of Anton Karas in the movie "The Third Man."

Of a better future, Rosman writes: In 2008. HarperCollins launched, a Web slush pile.

The temporal dimension of obviousness

In a post titled Was the Federal Circuit Feeling Guilty Over KSR? Study Suggests They Were, the 271Blog discusses material by one Ali Mojibi which discussed obviousness determinations by the CAFC during three time intervals:
before the Supreme Court granted cert to KSR, after the Supreme Court decided KSR, and the period in between.

The 271Blog wrote: Here, Mojibi finds an interesting statistic: during the period when KSR was pending, the Federal Circuit found patents obvious almost 70% of the time and non-obvious 26% of the time. [Parenthetically, IPBiz notes that it is claims, not patents, which are found obvious or nonobvious, and one wonders how "almost 70%" and 26% add up to 100%.]

The 271Blog quotes text from Mojibi:

This result is quite unexpected because granting cert does not change the state of the law at all, and the stark contrast in percentage of patents being held invalid before and after grant of cert cannot be explained by any substantive change in the law. Rather, the data seems to indicate that the Federal Circuit perceived the Supreme Court’s decision to hear KSR as a nod of approval to the critics of the Federal Circuit, which alleged that the appeals court was too pro-patent.

IPBiz suspects the primary objective of the CAFC in the interim time period was to clarify its position on obviousness, rather than to jack the numbers. In fact, neither tactical objective had much impact on the Supreme Court.

One does recall that the initial CAFC decision in KSR v. Teleflex was non-precedential and did not involve a ruling on whether the claims were, or were not, obvious.

The 271Blog did not mention text in the Mojibi abstract:

Together, the results of the study signify the positive fact that the Federal Circuit is aware of and sensitive to criticism by members of the patent bar and the academia. But the results also cast doubt on whether the text of judicial opinions is a reliable source of figuring out what the law truly is.

**Separately, on obviousness in Australia, from PatentBaristas:

Firstly, not all prior art references are citable. Rather, in order to be citable, a prior art reference must firstly be shown to be a piece of prior art information that the skilled person could have been reasonably expected to have “ascertained, understood, and regarded as relevant”.

Secondly, since the landmark High Court decision in Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59, “obvious to try” does not make an invention obvious in Australia.

Sunday, January 17, 2010

Obama rips USPTO

In a post titled Obama: Patent office's system is 'embarrassing', Kim Hart points to a remark by President Obama which is not flattering to the US Patent Office.

The first comment suggests that the President may have gone for a soundbyte, rather than the deeper problem:

The case management system is not nearly as much of a problem as President Obama makes it out to be. It is what it is, could be better, but it's not the source of the delays.The big problem in obtaining a patent is the lack of qualified examiners relative to the number and complexity of applications. A successful patent application carefully defines the "novelty" to be protected, without being so narrow that it offers little protection or so broad that it won't be granted.Patent examiners must understand and "get" the novelty, then examine the entire body of patents to see if it has already been patented. As the number of patents increases, this challenge gets harder. Patent lawyers for the inventor fight to get a patent granted, and lawyers for the other side challenge patents and claim infringement.With a system built for contention, it's a wonder anything gets a patent. But it's not the computer's fault!

Also, a comment on PatentHawk also questions with the Prez got his arms around the real issue:

Unfortunately, even our President doesn't have the facts straight on how EFS currently works. Instead, it would help if the Obama administration would focus on "real issues," amongst others, Congress again "stealing" user fees that are badly needed to support the USPTO's operation.

"CBS Sunday Morning" in need of a history lesson?

Relatively recently [December 20, 2009], "CBS Sunday Morning" discussed the Louisiana Purchase, illustrating the purchase with a map which included Texas within the purchase. [IPBiz neglected to mention the error at the time.] The connection to Napolean's failure in Haiti was noted as a motivation for France being willing to part with such a large piece of territory.

In light of the focus on Haiti in the last week, it was foreseeable that "CBS Sunday Morning" on January 17, 2010 would re-visit the connection of Haiti to the USA's acquisition of the Louisiana Territory. What was not foreseeable was that "CBS Sunday Morning" would utilize the same [erroneous] map depiction of the Lousiana Purchase as including Texas.

One can obtain a more accurate depiction of the purchase from wikipedia.

Of the Haiti connection, wikipedia writes:

Napoleon had failed to re-enslave Haiti; he therefore abandoned his plans to rebuild France's New World empire. Without revenues from sugar colonies in the Caribbean, Louisiana had little value to him. On April 10, 1803 Napoleon told Treasury minister Barbé-Marbois that he was considering selling the whole Louisiana Territory to the U.S.. On April 11, 1803, just days before Monroe's arrival, Barbé-Marbois offered Livingston all of Louisiana instead of just New Orleans, at a price of $15 million, equivalent to about $213 million in present day terms.

France turned New Orleans over to the USA on December 20, 1803.

For a patent connection, note that IPBiz has repeatedly observed that a patent cannot be valued in the absence of a business plan designed to exploit it. The territory within the Louisiana Purchase [for symbolism call it a patent land grant] was the same whether owned by France of the USA. By 1803, France had no business plan to exploit it; the United States thought that it might [The USA was initially seeking purchase of only New Orleans, which had self-evident value.] The Louisiana Purchase, just as many patents, had a different value to each party. The "patent" had little value to France, but great potential value to the USA.

Returning to "CBS Sunday Morning," see also:


RECAP: December 20, 2009

COVER STORY: Star Power: How Hollywood Saves the World
Star power can give a very big boost to efforts to bring peace on Earth and good will toward men. We're talking about Hollywood star power. Our cover story is reported by Bill Whitaker.

For more info:
"Where's My Fifteen Minutes? Get Your Company, Your Cause, or Yourself the Recognition You Deserve" by Howard Bragman (Portfolio)
EcoMom Alliance
"Ripples of Genocide" (National Holocaust Museum)
Feed America

THE ALMANAC: Louisiana Purchase

**While "CBS Sunday Morning" made the connection between Haiti and the Louisiana Purchase, it did not make the connection between Haiti and John Brown's raid at Harpers Ferry. For that, one could review, for example, an essay by Clavin entitled
From Haiti to Harpers Ferry: John Brown's Raid and the Counterrevolution of Secession , including the text:

John Brown's dream of a second Haitian Revolution was for most Americans a nightmare. Following the abolitionist invasion of Harpers Ferry, fear of a second Haitian Revolution turned to hysteria as writers, politicians, and ordinary men and women pondered the likelihood of racial Armageddon below the Mason-Dixon Line.