Sunday, February 28, 2010

Patent attorney Al Halluin dies in plane crash

Albert P. Halluin of Wilson Sonsini Goodrich & Rosati, and once of Pennie & Edmonds, was killed in a small-plane crash on 19 Feb. 2010.

Saturday, February 27, 2010

Somewhere between 5 minutes and 375 hours per response

found on the government website for the "Mandatory Insurer Reporting Law" (Section 111 of Public Law 111-173)-->

According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it displays a valid OMB control number. The valid OMB control number for this information collection is 0938-1074. The time required to complete this information collection ranges between 5 minutes per response and 375 hours per response, depending on the respondent type and the specific requirement. These estimates include the time to review instructions, search existing data resources, gather the data needed, and complete and review the information collection. If you have comments concerning the accuracy of the time estimate(s) or suggestions for improving this form, please write to: CMS, 7500 Security Boulevard, Attn: PRA Reports Clearance Officer, Mail Stop C4-26-05, Baltimore, Maryland 21244-1850.

See prior IPBiz post:

In passing,


Leechers and WiFi

On Feb. 26, LiveConcept had a post titled 4th Amendment, Privacy Rights & Open WiFi which mentioned, among other things,

In a recent Oregon decision, United States v. Ahrndt, the Court held that a child pornography suspect had no constitutionally protected right to privacy for the files contained on his personal computer.

The Court further believed the Fourth Amendment was not violated when law enforcement used the defendant's unsecured WiFi to search the computer for child pornography.... WITHOUT A WARRANT.

LBE recalls a case which was discussed in our first year of law school at UChicago in our legal writing class, also involving child pornography. The facts were hard to believe. There was an Indiana dentist trading in child pornography. Naturally, he did not use his own name. HOWEVER, he did use the name of a person he disliked in high school. Guess what happened?

Return of the lost city of Z?

In the realm of "prior art," note the re-appearance of interest in the lost city of Z:

"One archaeologist has found, in the very area where Fawcett believed he would find Z, 20 pre-Colombian settlements that had roads built at right angles, bridges, causeways, and that a cluster of these settlements that were interconnected had populations of between 2,500 to 5,000 people, which would have made them the size of many medieval European cities at the time

As to Fawcett, maybe "oral history" should count as "prior art":

"We stayed with many of the same tribes that Fawcett stayed with," said Grann. "And to my astonishment, they had an oral history about Fawcett and his expedition.

"It describes how Fawcett had insisted on moving eastward, towards the 'River of Death.' And the tribe tried to persuade them not to go in that direction. In that direction were what they referred to as 'the fierce Indians.' And off he marched.

**Also related to Brazil, The gun-toting boys from Brazil who rule Rio’s ‘Corner of Fear’ So, maybe, "the fierce Indians" are alive and well and waiting for visitors to the Olympics?

The fierce ones of Brazil, circa 2010

**In passing, IPCrunch


CAFC reverses ND Ill on anticipation matter

In SRAM v. AD-II, the CAFC reversed a decision by ND Ill in the area of
anticipation under 35 USC 102. [ The district court’s denial of AD-II’s motions for summary judgment of invalidity of
claims 16 and 27 based on the Japanese reference is reversed. ]

On the law of anticipation:

Schering Corp. v. Geneva Pharms., Inc., 339 F.3d
1373, 1377 (Fed. Cir. 2003). “[A] prior art reference may anticipate without disclosing a
feature of the claimed invention if that missing characteristic is necessarily present, or
inherent, in the single anticipating reference.” Id. However, a patent claim “cannot be
anticipated by a prior art reference if the allegedly anticipatory disclosures cited as prior
art are not enabled.” Elan Pharms., Inc. v. Mayo Found. for Med. Educ. & Research,
346 F.3d 1051, 1054 (Fed. Cir. 2003). “The standard for what constitutes proper
enablement of a prior art reference for purposes of anticipation under section 102,
however, differs from the enablement standard under section 112.” Rasmusson v.
SmithKline Beecham Corp., 413 F.3d 1318, 1325 (Fed. Cir. 2005). It is well-settled that
utility or efficacy need not be demonstrated for a reference to serve as anticipatory prior
art under section 102. See In re Schoenwald, 964 F.2d 1122, 1124 (Fed. Cir. 1992);
Bristol-Myers Squibb Co. v. Ben Venue Labs., Inc., 246 F.3d 1368 (Fed. Cir. 2001).


SRAM’s remaining arguments regarding inherency are equally unpersuasive. It
is irrelevant that the Japanese reference may not have recognized the problem of
cumulative lost motion or explicitly suggested a solution for it. See Schering Corp., 339
F.3d at 1377 (rejecting the contention that inherent anticipation requires recognition in
the prior art).


The question, however, is not
whether the inventor built or could have built an operative model of the device, but
whether the reference discloses each of the steps of the claimed method. Schering
Corp., 339 F.3d at 1380 (noting that a prior art reference may be enabling “even if [its]
author or inventor did not actually make or reduce to practice [the disclosed] subject
matter.” (citation omitted))

"Jeopardy" does "intellectual property" on 26 Feb 2010

The game show "Jeopardy" had a category "intellectual property" on February 26, 2010. No, it is not what you think. The category really was "real property of intellectuals."

Moreover, if you had been reading IPBiz ( 112 Mercer Street in Princeton ) you would have been able to correctly answer one of the daily doubles.
Yes, after a long delay, the person from Tennessee said "Einstein," recognizing the residence of the scientist from 1939 onward.

Moreover, for those who care, Einstein's immigration papers are on display at the federal courthouse in Trenton, and yes Mr. and Mrs. Bucky were the witnesses for those papers. [Buckyballs would not take off for about 50 more years.]

Board to be formed to review IPCC

During an international meeting of environment ministers in Bali, a spokesman for the United Nations Environment Program announced that an independent board of scientists would be appointed to review the workings of the IPCC.

An issue was whether "gray literature," a term to describe non-peer-reviewed science, should be relied upon by the IPCC.
This in turn is related to what is now termed GlacierGate, wherein an assertion by the IPCC about the loss of Himalayan glaciers by the year 2035 was found to have no firm basis in the scientific literature.

HOWEVER, with the retraction of the ocean level paper from the peer-reviewed Nature Geosciences, one sees that the problem is MORE than one of non-peer-reviewed literature. The work of Jan Hendrik Schon and Hwang Woo Suk was peer reviewed and fraudulent.

Further, given that law review articles from law schools are generally NOT peer reviewed, should we label such literature as gray literature? As to the Stanford Law Review, no, Gary Boone did not invent the integrated circuit.

On ClimateGate:

"Rising sea level" paper retracted from Nature Geoscience

APS seeks member input on "clarity and tone" in view of ClimateGate

Friday, February 26, 2010

Facebook's US 7,669,123

There is some buzz about Facebook's US 7,669,123, titled Dynamically providing a news feed about a user of a social network with first claim

A method for displaying a news feed in a social network environment, the method comprising: monitoring a plurality of activities in a social network environment; storing the plurality of activities in a database; generating a plurality of news items regarding one or more of the activities, wherein one or more of the news items is for presentation to one or more viewing users and relates to an activity that was performed by another user; attaching a link associated with at least one of the activities of another user to at least one of the plurality of news items where the link enables a viewing user to participate in the same activity as the another user; limiting access to the plurality of news items to a set of viewing users; and displaying a news feed comprising two or more of the plurality of news items to at least one viewing user of the predetermined set of viewing users.

It has lots of cited references.

Within the background section:

There are existing mechanisms that allow a user to display information about other users. Some mechanisms may allow the user to select particular news items for immediate viewing. Typically, however, these news items are disparate and disorganized. In other words, the user must spend time researching a news topic by searching for, identifying, and reading individual news items that are not presented in a coherent, consolidated manner. Often, many of the news are not relevant to the user. Just as often, the user remains unaware of the existence of some news items that were not captured in the user's research. What is needed is an automatically generated display that contains information relevant to a user about another user of a social network.

Venue selection clauses in contracts: "litigated exclusively"

Eric Goldman discusses Google's venue win in the case Flowbee International, Inc. v. Google, Inc., 4:10-cv-00668-LB (S.D. Tex. Feb. 8, 2010. He noted:

Compare Miller v. Facebook with Yahoo v. American Airlines. This court, bound by the Fifth Circuit ruling in the Yahoo case, nevertheless distinguished it because the Yahoo clause specified that business partners “submit” to exclusive jurisdiction, while the Google clause used the words “litigated exclusively.”

"How to Find a Good Patent Lawyer"

Inc. has a post on the topic of finding a good patent lawyer which begins with text:

Filing for a patent with the U.S. government is just one step along that road [of protecting an idea], but it is a crucial step. For that purpose, you'll want to work with a well-known and effective patent lawyer.

Within the advice:

Once you have a short list of qualified attorneys, conduct a Google search on each of them. Look for clues to their reputation; quotes to the press, which will indicate how a lawyer may represent you; and a sense of workload. If a lawyer is tied up with a large or ongoing case, you may want to pass on him or her. If you want to dig even deeper, call your state Bar Association and ask whether the lawyers you are considering remain in good standing, and confirm the background you've found them to have.

A search on Google on 26 Feb. 2010 gave about 246,000 hits for +"Lawrence B. Ebert". The number does vary. The first hit was to IPBiz; the fourth to INTERSECTION OF SCIENCE AND LAW; the fifth to lexmonitor, which was hopelessly out of date.

On the second page of the google search was a link to


On blawgsearch on 26 Feb., IPBiz was ranked 60th overall, and second on IP to IPKat (#51); however, for the MONTH of February 2010, IPBiz was ranked 24th overall and first in IP [IPKat #40].


On March 1, IPWatchdog has a post’s Bad Advice on Finding a Good Patent Lawyer

Trading Technologies v. eSpeed addresses many issues

A business method patent survived in the case Trading Technologies v. eSpeed .

A relevant claim:

Claim 1 of the ’132 patent:

A method of placing a trade order for a commodity on an electronic
exchange having an inside market with a highest bid price and a lowest
ask price, using a graphical user interface and a user input device, said
method comprising:
setting a preset parameter for the trade order;
displaying market depth of the commodity, through a dynamic
display of a plurality of bids and a plurality of asks in the
market for the commodity, including at least a portion of the
bid and ask quantities of the commodity, the dynamic display
being aligned with a static display of prices corresponding
thereto, wherein the static display of prices does not move in
response to a change in the inside market;
displaying an order entry region aligned with the static display
prices comprising a plurality of areas for receiving
commands from the user input devices to send trade orders,
each area corresponding to a price of the static display of
prices; and
selecting a particular area in the order entry region through single
action of the user input device with a pointer of the user input
device positioned over the particular area to set a plurality of
additional parameters for the trade order and send the trade
order to the electronic exchange.

This case has much to say about claim construction. For the moment,
consider some of the other issues.

The defendant eSpeed argued, as one issue, that the
patents-in-suit do not deserve priority back to March 2, 2000—
the filing date of the provisional application.

Of this matter, the CAFC wrote:

Claims enjoy the earlier filing date only if the provisional application provided
adequate written description under 35 U.S.C. § 112, ¶ 1. New Railhead Mfg. v.
Vermeer Mfg., 298 F.3d 1290, 1294 (Fed. Cir. 2002). The “prior application itself must
describe an invention . . . in sufficient detail that one skilled in the art can clearly
conclude that the inventor invented the claimed invention as of the filing date sought.”
Lockwood v. Am. Airlines, 107 F.3d 1565, 1572 (Fed. Cir. 1997). Therefore, the
provisional application must describe the invention in such a way that one of ordinary
skill in the art “would understand that the genus that is being claimed has been
invented, not just the species of a genus.” Carnegie Mellon Univ. v. Hoffman-La Roche,
Inc., 541 F.3d 1115, 1124 (Fed. Cir. 2008).


Turning to the merits, the record shows substantial evidence to support the jury’s
verdict that the provisional application’s written description was adequate. TT’s expert,
Craig Pirrong explained that the provisional application distinguished between order
entries performed in a single action and multiple-step actions. He did not distinguish a
single-click from other types of single actions. Therefore, one of ordinary skill in the art
could read the provisional application to encompass any single actions.

Moreover, the parties’ experts did not dispute that one of ordinary skill in the art
would have known about other forms of “single action” such as a double-click or
pressing a key. Considering the undisputed knowledge of those skilled in the art,
disclosure of a species in this case provides sufficient written description support for a
later filed claim directed to a very similar and understandable genus.
Accordingly, the
patents-in-suit are entitled to claim priority to the provisional application.

Of an on-sale bar:

This court affirms the district court’s de facto summary judgment that ICA2 was
not a sales transaction for a product embodying the patented invention. Under ICA2,
TT promised to develop trading software for Brumfield because he lacked the technical
expertise to do so. ICA2 was a contract for providing hourly programming services to
Brumfield—not a computer software license. Brumfield did not sell or offer for sale
anything embodying the invention. Therefore, the trial court properly determined that
the invention had not been offered for a commercial sale.

eSpeed’s reliance on Brasseler, U.S.A. I, L.P. v. Stryker Sales Corp., 182 F.3d
888 (Fed. Cir. 1999), to characterize ICA2 as a commercial software license is
misplaced. In Brasseler, the buyer and the seller of the contract each employed some
inventors of the patented invention. Id. at 890. This court found a commercial sale
because the seller manufactured over 3,000 products embodying the invention and sold
it solely to the buyer. Id. at 890. Thus, the transaction in this 1999 Federal Circuit case
is far more than occurred here. No product was ever sold to Brumfield. Also, this court
in Brasseler in dicta suggested that the outcome would be different in “a case in which
an individual inventor takes a design to a fabricator and pays the fabricator for its
services in fabricating a few sample products.” Id. at 891. Inventors can request
another entity’s services in developing products embodying the invention without
triggering the on-sale bar. Brumfield’s request to TT to make software for his own
secret, personal use could not constitute a sale under 35 U.S.C. § 102(b).

Of interest is the text: These references in the Supreme Court opinion
leaves this court stranded between the language in the Court’s decision
and the language in this court’s Cybor decision.

Lothian newsletter

Choosing among six not obvious?

In KSR v. Teleflex, one has the text:

When there is a design need or market pressure to solve a problem and there are a finite
number of identified, predictable solutions
, a person of ordinary skill has
good reason to pursue the known options within his or her technical grasp.
If this leads to the anticipated success, it is likely the product not of
innovation but of ordinary skill and common sense. In that instance the
fact that a combination was obvious to try might show that it was obvious
under § 103.

In the case In re Chapman and King, concerning antibodies, the CAFC suggests
that the difference between 6 choices and 3 choices might be significant:

The third alleged error concerns FF 3, wherein the Board stated that “[t]he
antibody can be a monovalent Fab fragment, a monovalent Fab’ fragment which
includes one or more cysteine residues in the constant region, or an F(ab’)2 antibody
fragment which has a hinge cysteine between the Fab’ fragments.” Initial Decision, slip
op. at 4 (citing Gonzalez col.11 ll.57-66; Answer 5). However, it is clear that, as the
government concedes, Gonzalez teaches six different possible antibody fragments:
F(ab), F(ab’), F(ab’)-SH, F(ab’)2, scFv, and Fv. Gonzalez, col.21 ll.33-41; Oral Arg. at
27:58-28:00 (“There are more than three [antibody fragments] disclosed [in
Gonzalez].”). FF 3 is incorrect as both parties agree that Gonzalez discloses more than
three choices for an antibody fragment.


Further, as to the third error, if the Board did not appreciate the full scope of antibody
fragments disclosed in Gonzalez, we cannot be confident about its ultimate conclusion
that the selection of one of them to form Chapman’s molecule is obvious
as it appears that there are more possibilities from which to choose.
Because we cannot say with confidence that the
Board would have reached the same conclusion in the absence of these errors, we are
persuaded they are indeed harmful. See Kotteakos v. United States, 328 U.S. 750, 765
(1946) (“[I]f one cannot say, with fair assurance, . . . that the judgment was not
substantially swayed by the error, it is impossible to conclude that substantial rights
were not affected.” This is not a situation where “an agency’s path, though convoluted,
can be discerned.” In re Huston, 308 F.3d 1267, 1281 (Fed. Cir. 2002) (quotation and
citation omitted).

In the second not harmless error, the government got the chemical connectivity disclosed in
the prior art wrong:

Chapman argues that the examiner and the Board
misinterpreted this passage and that in this embodiment, the polymer is not serving as a
link between the light and heavy chain; it is attached to either the light or the heavy
chain. The government conceded at oral argument that Chapman’s reading of this
passage is correct. See Oral Arg. at 24:40-24:47 (“[I]n Gonzalez . . . the polymer is
attached to either the light or the heavy chain; it’s not linking the light and heavy


With respect to the second error, the Board was mistaken as to whether
Gonzalez teaches the use of a polymer to link the light and heavy chains in a F(ab’)2
fragment in the cited embodiment. Therefore, Chapman’s use of a polymer to link
together two F(ab’) fragments may be less likely to be obvious.

Thus, in this case, it was undisputed that the patent office got the teaching of the
prior art wrong. The issue was whether the error was harmless. One wonders "why"
the art was misconstrued in the first place, and "why" this misunderstanding could
not have been corrected earlier in the process.

The patent applicant also tried a "teaching away" argument:

Chapman’s argument for reversal also rests on his claim that Gonzalez “teaches
away” from Chapman’s claimed invention as a matter of law. A finding that a reference
teaches away can preclude a finding that the reference renders a claim obvious. See
DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1326 (Fed. Cir.
2009) (“An inference of nonobviousness is especially strong where the prior art's
teachings undermine the very reason being proffered as to why a person of ordinary
skill would have combined the known elements.”). Whether or not a reference teaches
away from a claimed invention is a question of fact. See In re Napier, 55 F.3d 610, 613
(Fed. Cir. 1995).

This failed.

Of an earlier anticipation rejection:

The Board reversed the examiner’s anticipation rejection over Gonzalez because
although Gonzalez suggests the antibody structure of claim 1, too much in
the way of mental gymnastics would have been necessary for persons of
ordinary skill to have ‘at once envisage[d]’ the claimed antibody structure
among the different structures described in the Gonzalez patent . . . .
[P]icking and choosing would have been necessary to have arrived at the
antibody structure of claim 1.

A genus does not necessarily anticipate a species.

*** See also

***On Chapman

The Standard of Reviewing Obviousness Determinations from the USPTO

Thursday, February 25, 2010

Patent reform deal near in Feb. 2010?

Rick Merritt reports in EE Times: "A U.S. Senate committee has struck a rough compromise on a controversial patent reform
bill .. "

Tough to believe that patent reform would get any traction when health care looms, BUT it might be easier to pass a soft ball patent reform bill and get some traction on bipartisanship and working together.

Unless the fee diversion is tackled, this is not the real deal. "it's a joke, son."

***Meanwhile, of health care, timesonline has a vicious post Try to stay awake: the President has a healthcare Bill to pass including a law reference:

Quite the opposite, interjected Obama, suddenly in his legal scholar element: the Budget Office said that premiums would fall, which would then inspire middle class families to purchase better, more expensive insurance policies. “This is an example of where we’ve got to get our facts straight,” he chided, in the tone you might use while encouraging a toddler to eat all his peas.

and one commenter observed:

Both Alexander and Obama were wrong...the health care bill presented by OBAMA has not been ruled on by the CBO because they said there wasn't enough detail to do it.

IPBiz notes that being a "legal scholar" is saying Gary Boone invented the integrated circuit.

**Also, from a comment on Slashdot about IBM's patenting tendencies:

Don't blame IBM. They're not "schizophrenic". They are merely in the game playing by the rules as they are written, because that's what everyone else on the field is doing. What if a football team suddenly decided throwing passes was dishonorable, and they wished other people wouldn't do it? They'd get hammered. They'd lose all over the place.

Same for IBM. They can wish for change and still play a mean game. Nothing wrong with that at all. In fact - the more the merrier, says I. Why? Because the more idiot patents like this that get granted, the sooner this mess will end. For two reasons.

First reason - the dumber a patent is, and the more obvious it is that you are merely patenting something someone else came up with - the more likely it is that a judge somewhere will get that clue we've all been waiting for.

Second reason - World War I.

How did WWI start? The assassination of Franz Ferdinand of Austria. A single death. That's all it took. All of the alliances and counter-alliances of the time made an extremely unstable system. All it took was the right nudge, a single assassination, and all those alliances got called up. Countries picked sides and it was off to war. Where 15 million people died. Imagine that. Fifteen million people all killed, and it all traces to a single assassination.

Remind you of anything?

All of these companies today have these IP portfolios, and an uneasy truce in between them that says "you nail us and we'll nail you". Strategic partnerships, licensed IP - a tangled web of legal rights. Just like the tangled web of alliances pre-WWI.

All it will take is our Ferdinand.

Remember the hubub over the FAT file system, how MS holds the patent on it? Why aren't they suing everyone for their legally due royalties? They could nail everyone from Samsung to Nokia. So why not do it? Because everyone would nail MS for other trivial things they are in violation of. It would be Patent WW I.

So let these companies patent trivial crap like LOL. Why not? It will make the crater bigger when The Big One happens. And nobody wants that because in this case it won't be soldiers dying, it will be money evaporating. IP portfolios are insanely overpriced. If PWI happens, the courts will be *swamped*. The only fix will be to invalidate software/process patents or spend every single minute of court time available until 2142 sorting out the mess. And that means those portfolios will suddenly be useless. As will all the license agreements. That's a lot of money to go *poof*. It'll make the housing market bubble of 2008 look like a hiccup. We're talking many many billions of dollars here.

So let the current cold war continue. Go ahead. Patent LOL. Patent emoticons. Patent tying your right shoe before your left - I don't care.

PA school superintendent accused of plagiarism

The Pittsburgh Tribune-Review noted that [suspended] West Jefferson Hills [PA] Superintendent Terry Kinavey is being accused of plagiarizing several documents that were distributed to parents and staff [including welcoming letters to students, parents and staff for the 2009-10 school year] , according to testimony at a termination hearing for her last week.

The earlier suspension pertained to a different issue, and one wonders if the plagiarism charges amount to bolstering.

Certainly, other school officials have run into plagiarism charges. For example:

NJ School Superintendant plagiarizes in speech given to National Honor Society students

Egregious plagiarism case in New Jersey by school principal

Plagiarism flap comes to central New Jersey!

APS seeks member input on "clarity and tone" in view of ClimateGate

Curtis Callan, President of the American Physical Society [APS], sent out an email to APS members on 24 Feb. 2010, including the following text:

I am writing to request your attention to an important matter regarding the 2007 APS Statement on Climate Change.

An ad hoc subcommittee of the APS Panel on Public Affairs (POPA) recently prepared a Commentary on the 2007 Statement in response to a charge to POPA from the APS Council to " the 2007 APS Council Statement (07.1 Climate Change) with a view to addressing the issues of clarity and tone raised in the report of the Kleppner committee" to the APS president.

You are invited to express your views on the proposed Commentary. It will be available online for APS member input until March 19, 2010. You may access the site using the link below. This link is exclusive to you, and you may only submit comments one time. Once submitted, your comments cannot be edited.

Separately, the Financial Times noted the University of East Anglia [UEA] published an eight-page response tackling each of the key claims. It will be submitted to an influential committee of MPs that has launched an inquiry into the scandal.

Of the FOIA issue, FT said:

In some cases, data had been supplied, it said, but in other cases the data was incomplete because some of the data used by the university in its research was owned by institutions that refused permission for its disclosure.

This raises an interesting issue: should one be publishing results on interpretations of data in a situation in which the underlying data is NOT in the public domain and available for inspection?

Cross-reference: ClimateGate, GlacierGate, retraction of sea level paper from Nature


Post at physicstoday titled Opinion: Can scientists rebuild the public trust in climate science? identifies the role of bloggers in the climate discussion:

McIntyre started the blog so that he could defend himself against claims being made at the blog with regards to his critique of the “hockey stick” since he was unable to post his comments there. Climateaudit has focused on auditing topics related to the paleoclimate reconstructions over the past millennia (in particular the so called “hockey stick”) and also the software being used by climate researchers to fix data problems due to poor quality surface weather stations in the historical climate data record. McIntyre’s “auditing” became very popular not only with the skeptics, but also with the progressive “open source” community, and there are now a number of such blogs. The blog with the largest public audience is, led by weatherman Anthony Watts, with over 2 million unique visitors each month.

So who are the climate auditors? They are technically educated people, mostly outside of academia. Several individuals have developed substantial expertise in aspects of climate science, although they mainly audit rather than produce original scientific research. They tend to be watchdogs rather than deniers; many of them classify themselves as “lukewarmers”. They are independent of oil industry influence. They have found a collective voice in the blogosphere and their posts are often picked up by the mainstream media. They are demanding greater accountability and transparency of climate research and assessment reports.

IPBiz notes the following "insert" to the opinion:

[Editor's note: Some of the datasets at CRU are not owned by the university, nor do they have permission to release proprietary information into the public domain. However, the announcement today [Feb. 24] that the world's major meteorological organizations are going to open access to some of their climate data may reduce the likelihood that this will happen in future.]

**UPDATE from 'Climategate' Scientist Admits 'Awful E-Mails,' but Peers Say IPCC Conclusions Remain Sound

And one scientific group, the U.K.-based Institute of Physics, submitted evidence to the House of Commons panel also expressing concern about the CRU's scientific integrity.

"Unless the disclosed e-mails are proved to be forgeries or adaptations, worrying implications arise for the integrity of scientific research in this field and for the credibility of the scientific method as practised in this context," the Institute said.

"The principle that scientists should be willing to expose their ideas and results to independent testing and replication by others, which requires the open exchange of data, procedures and materials, is vital."


Tips & Notes to WUWT

Wednesday, February 24, 2010

Katie Couric does the "Bloom Box" on 24 Feb 2010

Following up on the tendency of CBS to milk a story, Katie Couric did a "Bloom Box" story on Wednesday, Feb. 24, following Lesley Stahl's piece on "60 Minutes" on Sunday, Feb. 21.

Couric was covering a press conference given by Bloom Energy Corp. at eBay headquarters on Feb. 24, which included the presence of California Gov. Arnold Schwarzenegger and former Secretary of State Colin Powell [a Bloom board member].

During the conference, Niki Fenwick of Google observed that Google has had four Bloom Boxes (comprising a 400-kilowatt installation) which over the last 18 months have had 98% availability and delivered 3.8 million kilowatt hours of electricity.


Bloom fuel cell: Individual power plant in a box

Is the Bloom Energy Server Cost, Scale Prohibitive?

**UPDATE. Bob Park takes a whack at the Bloom Box on 26 Feb 2010:

The pitchman, K.R. Sridhar, CEO of Bloom Energy in Sunnyvale, is not your typical scam artist, but an artfully understated business executive. He can go on 60 Minutes or Good Morning America and never make a slip. But there are warning signs. What is it hes selling? "It starts with beach sand he says, opening a box of the stuff. It's like saying a diamond is a lump of carbon. Silicon dioxide is the most abundant mineral on Earth, and essential to modern electronics. With the help of animation, he explains that plates made of the stuff enable hydrocarbon gases to react with oxygen, producing an electric potential. It's a fuel cell. He never says so, maintaining the fiction that this is something really new. Its not. Fuel cells date back to 1838, but have found little application. The magic calls for painting the two sides of the plate with secret green and black ink respectively. Well there's a little more to it, but CEOs don't worry about details. Oh, and the Bloom Box is not cheap. However, Google, FedEx and Wel-Mart can afford to test the Bloom Box. Everybody loves the idea of distributed energy production, where we have our own power plant in the backyard. But a Bloom Box is not totally isolated; it needs to be tied to a gas pipeline. Is this the future? Probably not.

IPBiz notes that a fuel cell (the Bloom Box or someone else's) more efficiently uses the energy of a hydrocarbon than does a corresponding combustion process. The fuel cell emits less CO2 per useful energy produced than does combustion. The fuel cell still uses hydrocarbons to generate energy. As to "distributed" production, Thomas Edison was on to this more than 100 years ago.


Bloom's power plant in a box? (FAQ)


The Future Of Energy? Bloom Energy Boxes Already Power Google, eBay, Others

Inventive professor hired actors to appear as witnesses in misconduct hearing

A reader tipped IPBiz to this incredible, hard to believe story wherein a professor hired actors to appear as witnesses in a misconduct hearing against the professor. The professor prevailed in the misconduct hearing, but one wonders how the university was unable to distinguish actors from real witnesses.

Gene Warner wrote in the Buffalo News:

The testimony from the bogus witnesses enabled William Fals-Stewart, 48, of Eden, to be exonerated, Attorney General Andrew M. Cuomo has said. The researcher later attempted to sue the state for $4 million, claiming he had been wrongly forced out of his job.

The culprit, Fals-Stewart, was charged on Tuesday, February 16, 2010 relating to the fake witness business: first-degree attempted grand larceny, three counts of first-degree perjury, three counts of first-degree identity theft, two counts of first-degree offering a false instrument and three counts of first-degree falsifying business records, and was found dead on Tuesday, February 23, 2010.

Unbelievably, that's only PART of the story.

An AP story, dated February 18, 2010, begins:

A former State University of New York at Buffalo researcher arrested Tuesday on charges related to falsifying data had until late last year been a professor at the University of Rochester’s School of Nursing.

Here's the rub as to Fals-Stewart's job at the SECOND school (University of Rochester, UR):

UR officials say they did not know about the state investigation that led to the charges until his arrest on Tuesday.

Fals-Stewart had been hired by UR at an annual salary of $137,000 in January 2007 and resigned from UR on Nov. 30. On Jan. 26, he filed a lawsuit against UR in state Supreme Court, claiming that he should have been granted tenure here.

The folks at UR were not bothered by the previous events at Buffalo wherein the panel was investigating suspicions raised in 2004 that Fals-Stewart inflated the number of research recruits in reports to the National Institutes of Health.

**As to how Fals-Stewart conned the witnesses, AP noted:

According to the felony complaint, Fals-Stewart told the actors they were being hired for a mock trial training exercise when they were really providing sworn testimony before a school inquiry panel, prosecutors said (...) The actors, using scripts written by Fals-Stewart, testified as three people who had worked on his projects at the university’s Research Institute on Addictions or who had access to records, prosecutors said in court documents. One of them told investigators he had been paid $200 for his testimony.

**Of another university that did not perform due diligence, recall the Poehlman saga, as detailed in

Univ. Montreal discusses Poehlman issue

and recall Donald Trump and the Ridings matter:

Resume of Trump's E.J. Ridings questioned

ClimateGate at the AAAS (San Diego) on 19 Feb 2010

On Friday, February 19, 2010: 8:30 AM-11:30 AM, in Room 6F (San Diego Convention Center), the AAAS had a session touching on topics related to ClimateGate:

Past controversies over historical climate trends and access to research data resurfaced in 2009 after the theft and disclosure of e-mail exchanges among a group of climate scientists. Some subsequent publicity questioned the legitimacy of the scientific consensus on global climate change. Questions also were raised about the conduct of these climate scientists and public expectations of scientists in all fields. This symposium, convened by the NAS and AAAS, focuses on the broad questions of transparency and integrity of climate-change research and all of science. It draws on three highly relevant National Research Council reports: On Being a Scientist, which describes the ethical foundations of scientific practices, and personal and professional issues that researchers encounter; Ensuring the Integrity, Accessibility, and Stewardship of Research Data in the Digital Age, which calls on researchers to make data, methods, and other information underlying results publicly accessible in a timely manner; and Surface Temperature Reconstructions for the Past 2,000 Years, which examined the scientific evidence for paleoclimatic temperature reconstructions. The session will cover topics ranging from the peer review process and the importance of domestic and international scientific assessments to the responsibilities of individual researchers, scientific journals, professional societies, and other groups in developing and implementing rules and procedures for data access and sharing of research methods.

Four academics were on the panel:

Francisco J. Ayala, UC Irvine, The Practice and Conduct of Scientific Research
Sheila Jasanoff, Harvard, Science in Society
Gerald R. North, Texas A&M, The Data Behind Climate Research
Phillip A. Sharp, MIT, Data Use and Access Across Disciplines

There currently is some discussion of Gerry North arising from a blog post by Rob Bradley bringing up an analogy based upon Bradley/North work on behalf of Enron.

Bradley apparently wrote a letter to North including the text:

I see that you are going to be part of a panel at the Friday AAAS meeting on Climategate. Some of us fear too much downplaying. You were a consultant for me at Enron for several years on climate science and watched the fall of the company with great interest. So I would like to challenge you to interpret Climategate in terms of the fall of Enron.

Here are some themes from Enron to consider applying.
1) Slippery slopes where small deviations from best practices escalated into problems that were not anticipated at the beginning of the process.
2) A lack of midcourse correction when developing problems were not properly addressed.
3) Old fashioned deceit when the core mission/vision was threatened (for Enron it was ‘to become the world’s leading company’–for Jones et al., it was there is a big warming and a climate problem developing)
4) The (despised) short sellers busted the Enron mirage. Ken Lay at the last employee meeting even likened the short sellers to ‘terrorists” (this was just a few months after 9/11). Question: does mainstream climate science regard Internet ‘peer review’ of Jones et al. like the Enron faithful regarded the short sellers who first discovered the problems of Enron?
5) Enron suffered from the “smartest guys in the room” problem. Does Climategate reveal arrogance and a lack of humility among “mainstream” climate scientists?
6) Denial: we employees were almost all in denial when the problems at Enron first surfaced. Have you and others who are close to the scientists of Climategate been slow to recognize the problem? Has Nature and Science also been slow? If so, What does this say about human nature.
7) Taking responsibility. Skilling and Lay never did and, in fact, they joined together in a legal cartel where the unstated strategy was to not blame each other for anything and sink or swim together. Has this happened, or is it still happening, with Climategate if you believe that scientific protocol and/or legal rules were violated?

In passing, North was one of two expert witnesses in the Penn State investigation of Mann.

See also

Polaroid's pix to be auctioned in June 2010

A post titled Controversial Auction Sells Warhols From Polaroid’s Collection provides an interesting footnote to the demise of Polaroid. The main topic of the piece is the coming sale of Polaroid's corporate photo collection:

More than 1,200 works from Polaroid’s corporate collection, chronicling decades of artistic experimentation by Andy Warhol, Chuck Close and others who pushed the aesthetic boundaries of the instant-film process, will be hammered away by order of the U.S. Bankruptcy Court for the District of Minnesota. Many non- Polaroid photos are also being sold.

Of interest within the text is:

[Ansel]Adams befriended Edwin H. Land, a Harvard University dropout who had invented the instant camera and founded the Polaroid company in 1937 with George Wheelwright.

Hmmm, Harvard dropout, sound familiar?

One notes that Land and Chester Carlson were evolving their respective technologies in the same time frame. Land had the misfortune to develop the technically-brilliant instant movie process just when personal videocams were taking off in the 1970's. Solid state image receptors have basically displaced Land's "fast chemistry" approach. A good invention, and an innovation, but displaced by something better.

Generational attitudes on plagiarism

In a commentary titled Generation Plagiarism, SARAH WILENSKY writes in the Indiana Daily Student:

In a 300-level political science class, we spent nearly an entire day of lecture reviewing how to effectively write without any risk of being accused of plagiarism.

No professor would spend that amount of time nailing home what should be a completely assumed skill, unless her students had shown a desperate need for a review.

Of "a completely assumed skill," one recalls in the Glenn Poshard/SIU case, part of the defense was, that at the time of the Ph.D. thesis, there were not clear guidelines on citations.

The comments to the Wilensky piece had several references to Joe Biden's plagiarism in law school, including

Oh, as for Joe Biden. He's a successful guy, but also a known plagairist. I guess it didn't hurt him in his career all that much when all is said and done, but just the shame of knowing that everyone knows he was a cheater is a kind of punishment in itself. Its humiliating. So, bottom line: don't cheat. Ask for help if you need it or an extension on your assignment or whatever, but do honest work. And not just to avoid public humiliation or a trip to the dean's office, but also because, cheezy as it sounds, you can be proud of yourself when you do something honestly and the right way.


Clearly joan's hurt feewings should be directed at Vice President, Joe Biden-- who defended his law school plagiarism as "much ado about nothing" justified by no "malevolent" intent. /quod plagiari demonstrandum

Unintentional plagiarism was a theme in the Poshard matter.

Back in Syracuse Law School, Biden copied about five pages from a law review article, but thought it was all right. Poshard copied material into his Ph.D. thesis. Both of these matters happened a long time ago. The work of Helene Hegemann relates to a book. The difference in generational attitude is not so much that plagiarism happened but that Helene Hegemann is publicly saying it's ok.

See also

Upcoming report on algal biofuels

In a Feb. 19 post, Science Daily discussed a talk by Ron Pate, which gave an overview of the current state of research and development and associated opportunities and challenges for algal biofuels during the annual meeting of the American Association for the Advancement of Science in San Diego on Feb. 19, 2010.

Within the Science Daily post:

Pate was part of the DOE-sponsored team that drafted a report based on comments received both at the workshop [DOE's Office of Biomass Program in December 2008 ] and from public, and the report, which will outline the nation's strategy in algal biofuel research, is expected to be published in the next few months and will help drive the nation's algal biofuels efforts.

Separately, note the National Algae Association West Coast meeting in Las Vegas takes place 25-26 Feb. 2010.

**The Guardian had run a story on 13 Feb 2010 which had a sub-headline US scientists believe they will soon be able to use algae to produce biofuel for the same cost as fossil fuels and which included text:

The work is part of a broader Pentagon effort to reduce the military's thirst for oil, which runs at between 60 and 75 million barrels of oil a year. Much of that is used to keep the US Air Force in flight. Commercial airlines – such as Continental and Virgin Atlantic – have also been looking at the viability of an algae-based jet fuel, as has the Chinese government.

"Darpa has achieved the base goal to date," she said. "Oil from algae is projected at $2 per gallon, headed towards $1 per gallon."

McQuiston [ Barbara McQuiston, special assistant for energy at DARPA ] said a larger-scale refining operation, producing 50 million gallons a year, would come on line in 2011 and she was hopeful the costs would drop still further – ensuring that the algae-based fuel would be competitive with fossil fuels. She said the projects, run by private firms SAIC and General Atomics, expected to yield 1,000 gallons of oil per acre from the algal farm.

McQuiston's projections took several industry insiders by surprise. "It's a little farther out in time," said Mary Rosenthal, director of the Algal Biomass Association. "I am not saying it is going to happen in the next three months, but it could happen in the next two years."

However, a correction was printed on 21 Feb. 2010:

This item contained incorrect information supplied by the Defence Advanced Research Projects Agency (Darpa). We repeated its assertion that jet fuel production from refined algae would begin next year. Darpa now says that it should have told us that testing will begin next year with production not planned until 2013.

Microsoft, Amazon cross-license; pragmatic solution?

The deal covers aspects of Amazon’s Kindle e-book reader and its use of Linux-based servers.

Microsoft has entered into more than 600 licensing deals since 2002.

See press release Microsoft and Sign Patent Agreement including the text

“We are pleased to have entered into this patent license agreement with,” said Horacio Gutierrez, corporate vice president and deputy general counsel for Intellectual Property and Licensing at Microsoft. “Microsoft’s patent portfolio is the largest and strongest in the software industry, and this agreement demonstrates our mutual respect for intellectual property as well as our ability to reach pragmatic solutions to IP issues regardless of whether proprietary or open source software is involved.”

Practicing a method well

On January 17, 2010, "60 Minutes" did a piece on football players from Samoa with a tag line like: how a territory with a smaller population than a pro-football stadium sends more players to the NFL than any similarly populated place in America. IPBiz does not recall mention of Mosi Tatupu in that piece. Tatupu, who played for the USC Trojans and the Patriots (1978 to 1990), died on 23 February 2010.

In terms of invention, the folks in Samoa didn't invent football, but they did seem to come up with a way to efficiently produce good football players. One doubts they have a business method patent on it.

Tuesday, February 23, 2010

Inventors Eye is for and about America ’s independent and small entity inventor community [?]

An announcement from the USPTO on Inventors Eye: Inventors Eye is for and about America ’s independent and small entity inventor community.

From the first post on Inventors Eye:

Patent Reform:
Good for Independent Inventors and Small Businesses
An Open Letter to the Independent Inventor and Small Business Communities from Under Secretary of Commerce and USPTO Director David Kappos

[The article is undated (ironic for anything about the patent office) but appears in the inaugural Feb. 2010 issue.]

Meanwhile, at the IAM Ranch, on 12 Feb. 2010:

David Kappos has made a big show of reaching out to America's inventors while at the same time he is using precious USPTO resources promoting IBM's and members of the Coalition for Patent Piracy and Fairness Patent Deform agenda.

It is also notable that David Kappos is promoting small entity inventors giving up 50% of their inventions and the investment they have made in order to get timely consideration of the other half. What a deal, with friends like David Kappos who needs enemies?

One of the reasons that the patent backlog and the system is gummed up is massive filings of minor incremental inventions by companies like IBM and Microsoft yet there is no mention of those companies giving up any of their inventions, regardless of how inane they may be.

It seems that we have the best management which big corporate money can buy at the USPTO.

Ronald J. Riley,

I am speaking only on my own behalf.

Curiously, Joff Wild at IAM does not appear to have commented on this inconsistency.


On February 24, the Blog did comment on Inventors Eye. What is most interesting is the first comment to the post which comment was made by David Boundy:

Read the bill, Gene. Your understanding of it isn’t accurate, let alone your analysis of the consequences.

Your statement “what is left is a change to the current law where the first person to invent may obtain a patent even if they are the second to file” is simply not true. (Again, just to make clear to you what the dispute isn’t, I agree with you, that the 0.01% ain’t worth the candle, and not worth the prominence that either you or Kappos give it.)

What does make a huge difference are the two categories where both of you only tenuously acknowledge the existence, and both refuse to acknowledge the costs:

(a) the 3-10% where there is only one application (not two competing applications in the 0.01% class), and the prior art arises from a publication, use or offer for sale by a third party within the grace period year; and

(b) the 25% or so of applications that are not filed at all today and that should not be filed because the invention is found to be worthless within the grace period year, and are not filed under current law, but that will be filed at great expense, under S.515.

I am told that investors have already pulled funding from companies, and small businesses are already being strangled in the crib, because of the mere pendency of S.515. The market is already telling us this bill is bad for small businesses and startups. It’d be a really astonishing exhibit of bad lawyering for a mere attorney to force a business judgment over the business folks’.

and the reply:

Your analysis of the consequences is, in my opinion, flat out wrong.

You can keep talking about a grace period if you like, but the reality is those who rely on the grace period are being extremely reckless. You know as well as I do that an inventor cannot possibly know if others are engaging in activities that would render a patent impossible under 102(b). Acting like there is an absolute 12 month grace period is ridiculous. There is no absolute 12 months grace period under 102(b). An inventor must file within 12 months of an invention being offered for sale or used publicly, and third party activities unknown and unknowable to the inventor can and do frequently cause problems. In my own patent application where I was the inventor I relied on a 12 month grace period which entitled me to no patent whatsoever. My personal experience is not unique, it happens all the time.

You are acting like there is no way to protect an invention through a provisional patent application for a reasonable cost. That is likewise misplaced and inaccurate.

Those who choose to see S.515 as a road block will be blocked. Those that choose to see it as an opportunity will succeed and easily surpass those who view it as a roadblock.

Finally, what is astonishing bad lawyering is not my CORRECT legal analysis, but running around crying that the sky is falling when it most clearly is not falling. Individuals and business are more than welcome to continue to make reckless, careless and bad business judgments if they want. I on the other hand will continue to provide good counsel to my clients and keep them from unknowingly harming themselves and pretending that 102(b) provides an absolute grace period.

IPBiz query: did Gene Quinn actually deny the truth of what David Boundy said?

The Inhofe report

PajamasMedia mentions a report arising through the action of Senator Inhofe and staff concerning ClimateGate issues:

[The] Minority Staff of the Senate Committee on Environment and Public Works believe the scientists involved may have violated fundamental ethical principles governing taxpayer-funded research and, in some cases, federal laws. In addition to these findings, we believe the emails and accompanying documents seriously compromise the IPCC -backed “consensus” and its central conclusion that anthropogenic emissions are inexorably leading to environmental catastrophes.

Within the PajamasMedia article:

Senator Inhofe’s announcement today appears to be the first time a member of Congress has formally called for an investigation into research misconduct and potential criminal acts by the scientists involved.

In passing IPBiz notes past investigations by Congr. Brad Miller into so-called bubble fusion and by Congr. John Dingell into
the Baltimore/O'Toole/Immanishi-Kari matter.



An IPBiz post on ClimateGate included a quote from Judith Curry, a researcher at Georgia Institute of Technology:

"In my opinion, there are two broader issues raised by these emails that are impeding the public credibility of climate research: lack of transparency in climate data, and 'tribalism' in some segments of the climate research community that is impeding peer review and the assessment process."

On the decision of Evan Bayh not to seek re-election, the Christian Scientist Monitor noted that in a phone interview with the Monitor, Senator Bayh elaborated. "Our politics has almost become tribal, with the different political tribes bent on destroying their adversaries," he said. "It's a constant quest for political power that renders its effective use impossible once you've attained it."

One recalls the opening scene in the movie 2001.

And, then, there is patent reform from 2005 to the present.

Plagiarism by patent attorney leads to malpractice claim

IPBIz currently has over 500 posts on the subject of plagiarism. A new twist on the old topic appears in a post on the 271Blog titled Disclosure Cut-and-Pasted From Another Patent Leads to Malpractice Claim concerning the EDNY case Cold Spring Harbor Lab v. R&G.

In this case, the copying without attribution was done by the patent prosecution attorney, but the cause of action is legal malpractice. Paragraph 25 of the complaint asserts that the patent attorney copied [without attribution] text of a patent application by Fine into the client's patent application in the year 2000 but did not even mention the Fine application to the USPTO until a supplemental IDS in 2004.

Evoking the style of the Southern Illinois University Daily Egyptian [SIUDE] in the plagiarism of Glenn Poshard, Appendix A of the complaint (referenced in paragraph 24 of the complaint) gives comparisons of the original and copied text.

What happened to the client as a result of the copying was very sad, and merits a separate post.

As to the legal case--> The first cause of action, beginning at page 65 of the complaint, is for legal malpractice. The second cause of action is for breach of fiduciary trust. The third is for fraud and fraudulent concealment.

Oh, yes, the damages are asserted in the range 37.5 and 82.5 million.

The co-defendant law firm is Ropes & Gray LLP.

One of the client's patent applications was US 09/858,862, The copied text is from a prior application WO/99/32619.

***See article by Doug Macron titled CSHL Sues Former Patent Counsel for Mishandling shRNA Patent Applications which begins:

Cold Spring Harbor Laboratory last week filed a lawsuit alleging that a law firm hired to prosecute a series of RNAi-related patent applications stemming from the work of CSHL researcher Greg Hannon mishandled the intellectual property, jeopardizing the institution's ability to obtain patent protection on Hannon's inventions, according to a court filing obtained by RNAi News.


About half of the "detailed description of certain preferred embodiments" sections of the three Hannon patent applications consist of text copied from the Fire and Mello application, CSHL charges in its suit. "By relying extensively on this text to describe … Hannon's inventions, and in particular, the shRNA technology that is the subject of the pending … applications, Vincent failed to fully describe and distinguish … Hannon's inventions from the different technology invented by Fire."

***Some prior IPBiz posts on plagiarism

"Never inaccurate, even when we plagiarize"

Plagiarism in the law: gambling in Casablanca?

NSF grant proposal plagiarized?

Part of the process that received a Nobel Prize?

An entry in "Northern Now," alumni mag of Northern Illinois University [NIU], for Thomas R. Karl has the sentence:

He was part of the IPCC process that received the 2007 Nobel Peace Prize.

Of the educational background of Mr. Karl:

He received his B.S. degree in meteorology from NIU in 1973, his
master’s degree from the University of Wisconsin–Madison in 1974, and
was awarded an honorary Doctorate of HumNorth Carolina State University in 2002.

One recalls that the Ph.D. of Rajendra K. Pachauri of the IPCC is from North
Carolina State University. From wikipedia:

Pachauri was awarded an MS degree in Industrial Engineering from North Carolina State University, Raleigh, in 1972, as well as a joint Ph.D. in Industrial Engineering and Economics in 1974.

Karl has been in the news lately:

Thomas Karl, 58, was appointed to oversee the National Oceanic and Atmospheric Administration's (NOAA) National Climatic Data Center, an ambitious new office that will collect climate change data and disseminate it to businesses and communities.

According to Commerce Secretary Gary Locke, the office will "help tackle head-on the challenges of mitigating and adapting to climate change. In the process, we'll discover new technologies, build new businesses and create new jobs."


According to a school biography published by Northern Illinois University, Karl shared the Nobel Peace Prize with Al Gore and other leading scientists based on his work at the UN's Intergovernmental Panel on Climate Change (IPCC), and he was "one of the 10 most influential researchers of the 1990s who have formed or changed the course of research in a given area."

See also

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

[Note that Bob Park has been mute on Pachauri's handling of the Himalayan glaciers matter, dubbed by
some GlacierGate.

Sunday, February 21, 2010

Dominos uses "puffery" against Papa Johns

CBS on "The Amazing Race" on 21 Feb 2010 had an ad by Dominos which had the Fifth Circuit Court of Appeals in the background and noted that when Papa John's was confronted on its better ingredients/better pizza ads, it stated that the ad was "puffery." This would be a defense to a false advertising charge.

Thus, a defense to false advertising becomes advertising for a competitor.

To elaborate a bit on the case, one notes first that the case at the Fifth Circuit Court of Appeals was a Lanham Act complaint by Pizza Hut (not Dominos) against Papa Johns. [ PIZZA HUT, INC. v. PAPA JOHN'S INTERNATIONAL, INC., 227 F.3d 489 (5th Cir. 2000) ]. Second, Pizza Hut actually won a verdict at district court, but lost on appeal to CA5.

Text from the beginning and ending of the decision:

This appeal presents a false advertising claim under section 43(a) of the Lanham Act, resulting in a jury verdict for the plaintiff, Pizza Hut. At the center of this appeal is Papa John's four word slogan "Better Ingredients. Better Pizza."

The appellant, Papa John's International Inc. ("Papa John's"), argues that the slogan "cannot and does not violate the Lanham Act" because it is "not a misrepresentation of fact." The appellee, Pizza Hut, Inc., argues that the slogan, when viewed in the context of Papa John's overall advertising campaign, conveys a false statement of fact actionable under section 43(a) of the Lanham Act. The district court, after evaluating the jury's responses to a series of special interrogatories and denying Papa John's motion for judgment as a matter of law, entered judgment for Pizza Hut stating:

When the 'Better Ingredients. Better Pizza.' slogan is considered in light of the entirety of Papa John's post-May 1997 advertising which violated provisions of the Lanham Act and in the context in which it was juxtaposed with the false and misleading statements contained in Papa John's print and broadcast media advertising, the slogan itself became tainted to the extent that its continued use should be enjoined.


On January 3, 2000, the trial court, based upon the jury's verdict and the evidence presented by the parties in support of injunctive relief and on the issue of damages, entered a Final Judgment and issued a Memorandum Opinion and Order. The court concluded that the "Better Ingredients. Better Pizza." slogan was "consistent with the legal definition of non-actionable puffery" from its introduction in 1995 until May 1997. However, the slogan "became tainted . . . in light of the entirety of Papa John's post-May 1997 advertising." Based on this conclusion, the magistrate judge permanently enjoined Papa John's from "using any slogan in the future that constitutes a recognizable variation of the phrase "Better Ingredients. Better Pizza." or which uses the adjective "Better" to modify the terms "ingredients" and/or "pizza."


In sum, we hold that the slogan "Better Ingredients. Better Pizza." standing alone is not an objectifiable statement of fact upon which consumers would be justified in relying. Thus, it does not constitute a false or misleading statement of fact actionable under section 43(a) of the Lanham Act.

Additionally, while the slogan, when appearing in the context of some of the post-May 1997 comparative advertising--specifically, the sauce and dough campaigns--was given objectifiable meaning and thus became misleading and actionable, Pizza Hut has failed to adduce sufficient evidence establishing that the misleading facts conveyed by the slogan were material to the consumers to which it was directed. Thus, Pizza Hut failed to produce evidence of a Lanham Act violation, and the district court erred in denying Papa John's motion for judgment as a matter of law.

A law professors blog,contractsprof blog , analyzed the complaint of Pizza Hut in terms of contract law:

As to the puffing, our colleagues on the contracts professors' Listserv have pointed out that, although the case is brought under the Lanham Act and so is not a contracts dispute, its discussion of puffery could very well apply in the context of disputes over warranties and contractual misrepresentation claims.

One notes that the Lanham Act is designed to protect consumers, not parties to a contract. The issue in the Pizza Hut case was whether Papa John's presented misleading facts within the advertised slogan that were material to the consumers to which it was directed. The issue was not whether or not the pizza was fit for the purpose of being eaten as a pizza. Clearly it was. Somebody who bought a Papa John's pizza got an edible pizza. This is not an implied warranty case. But, under the Lanham Act, one cannot make false statements of fact to mislead a consumer of the product.

See also

More on Pizza and Puffery

And note the post Domino’s Pizza Ad Addresses Puffery which notes a connection to Enron:

I admit, it’s a little strange that I’m writing about pizza, particularly such awful pizza, on a blog about Enron. But a new ad by Dominos actually has a legal component which relates to Enron. In the ad, Domino’s “head chef” is standing in front of the John Minor Wisdom Court House in New Orleans — that’s the 5th Circuit Court of Appeals where Jeff Skilling’s appeal and many others from the Enron cases were heard, including Broadband, Nigerian Barges, and NatWest Three. The “head chef” says that they (Domino’s) challenged the Papa John’s slogan in court, and Papa John’s stated that their slogan was “puffery.”

On the Enron connection, IPBiz notes that one fellow backing up the pro-global warming forces in the ClimateGate debate was a consultant to Enron. And, earlier, Mr. Wegner talked about Enron-esque bookkeeping by the USPTO in the patent grant rate debate, even though it was Quillen et al. who were putting forth Enron-esque numbers [eg 97% allowance rate!]

The Bloom Box featured by Lesley Stahl on "60 Minutes" on Feb. 21

from CBS News prior to the presentation of the "60 Minutes" story on 21 Feb. 2010:

Stahl is the first journalist to be allowed into the Bloom Energy lab and factory where currently one box a day is built. The boxes create electricity by a chemical process that utilizes oxygen and fuel, but involves no combustion. Bloom's founder and CEO, K.R. Sridhar, insists all the materials in the box are cheap and available in abundance. Bloom says each large box - which can power about 100 homes - currently sells for $700-800,000. They hope within five to 10 years to roll out a smaller home version for about $3,000 a unit.

Bloom Energy was the first clean energy start-up Kleiner-Perkins, the Silicon Valley venture capital firm, invested in. They currently invest in about 50 clean tech companies. Sridhar confirms the company has received over $400 million, making it one of the most expensive startups in history.

John Doerr, the Kleiner Perkins partner who invested in Bloom, has high hopes. "The Bloom Box is intended to replace the [electric power] grid for its customer," says Doerr. He thinks existing utility companies should not be threatened or have a problem with Bloom Energy. "The utility companies will see this as a solution.All they need to do is buy Bloom Boxes, put them in the substation for the neighborhood and sell that electricity," he says.

But there is another hurdle says Michael Kanellos, editor-in-chief of the Web site GreenTech Media. Even if Sridhar can mass produce his boxes and sell them cheaply enough, "The problem is then G.E. and Siemens and other conglomerates that can probably do the same thing. They have fuel cell patents," he tells Stahl.

Note published US patent application 20090269626 , titled Method of optimizing operating efficiency of fuel cells. with claim 58:

A method of operating a fuel cell electrochemical system, comprising:operating a fuel cell at a first operating efficiency and a first throughput;receiving at least one of a cost of electricity and a cost of fuel; andadjusting at least one of an operating efficiency and throughput of the fuel cell based on the at least one of the received cost of electricity and the received cost of fuel to operate the fuel cell at a second operating efficiency or a second throughput different from the first operating efficiency and the first throughput; andwherein the at least one of the operating efficiency and throughput of the fuel cell are adjusted based on the received cost of electricity and on the received cost of fuel.

Also 20080124592, Combined energy storage and fuel generation with reversible fuel cells

Lesley began by mentioning the holy grail of energy. Of Bloom, she said it has a lot of sharp people believing. There was an allusion to Sridhar producing oxygen on Mars. He reversed his Mars machine and invented a new kind of fuel cell. John Doerr of Kleiner Perkins was featured (who earlier had backed Netscape, Amazon, Google). This was his first clean energy investment. New fuels from algae were mentioned in the "60 Minutes" story.
Bloom got $400 million. Michael Kanellis was listed as skeptical.

Stahl: Actually I feel like I'm on a cooking show and you're Martha Stewart. They started with beach sand, cooked and then coated with green and black inks. 64 stacks could power a Starbucks.

Doerr: The utility companies will see the Bloom boxes as the solution.

As to fuels, fossil fuels can be used.

Of installation in CA, 20% of cost subsidized by California AND a 30% federal tax break. Google uses natural gas as a fuel.
At eBay, the boxes fuel about 20% of the power needed. eBay's boxes run on biogas.

Colin Powell is on the board of directors of Bloom.

IPBiz notes that back in the beginning Edison wanted power generated from a local power station. Using DC (not AC), Edison could not have a long-distance grid. Thus, the concept, in some sense, goes back to Edison.

From the 2007 IPBiz post Work criticizing classic paper by Merges/Nelson in Columbia Law Rev. 90, 839 (1990) -->

In 1876, Brush developed a
generator or “dynamo” to convert the mechanical energy
of a rotating shaft to electric energy. Two years
later, he perfected an arc lighting system for outdoor
use. After approval from an intrigued Cleveland city
council, Brush scheduled a demonstration of his dynamo
and arc lighting equipment for April 29, 1879. That
night, at 8:05 p.m., thousands witnessed for the first
time an American city square illuminated with electric
light. The favorable reaction encouraged Brush and
other inventors and marketers to establish central
power stations in Boston, New York and Philadelphia
over the next three years

The Pearl Street power station[of Thomas Edison] went into operation in
1882 in New York City and is considered the world's
first central electricity generating station. [IPBiz: ?] It was
built and operated by the Edison Electric Light Co.,
founded by Thomas Edison. After Pearl Street was
opened, Edison waged a full-scale intellectual and
market-based war with Nicola Tesla and Westinghouse
over the benefits of delivering power via DC (direct
current), which Edison promoted, or AC (alternating
current), which Tesla invented and which was promoted
by Westinghouse. Eventually AC won out over DC
because it is a more efficient way of transmitting
power over long distances

In a post titled The Bloom Box: What All the Fuss Is About, Katie Fehrenbacher of Earth2Tech has
some embedded videoclips of the Stahl piece.

Of the comment thread, IPBiz notes yes, the hydrocarbon fuel
of the Bloom Box fuel cell will produce CO2, but because
the fuel cell operates at a lower temperature, its thermal
efficiency is higher, and it will produce more usable energy
per unit of fuel. The immediate product
of the fuel cell is direct current (DC), just as in the case
of Edison's Pearl Street station.

**Vis-a-vis a comment below, one presumes that the Bloom Box operates
at a LOWER temperature than combustion. The word "lower" is not a synonym
with "low".
has been pointing out the relative efficiency advantage of
fuel cells over combustion for years and years. Nothing new here.

IPBiz would agree that important details of the Bloom Box have NOT been
fleshed out.

"Rising sea level" paper retracted from Nature Geoscience

In a development rivaling the significance of ClimateGate, a paper titled "Constraints on future sea-level rise from past sea-level change" has been retracted by the journal Nature Geoscience.

The authors noted:

"Since publication of our paper we have become aware of two mistakes which impact the detailed estimation of future sea level rise. This means that we can no longer draw firm conclusions regarding 21st century sea level rise from this study without further work.

"One mistake was a miscalculation; the other was not to allow fully for temperature change over the past 2,000 years. Because of these issues we have retracted the paper and will now invest in the further work needed to correct these mistakes."

Recall the CSMonitor story Faced with rising sea levels, the Maldives seek new homeland

ClimateVoice wrote: A representation of the Maldives sea level rives will be created in the UN Conference Centre in Copenhagen as a powerful reminder of the human cost of failure in Copenhagen. The installation – a Malidives man in a huge plastic tube that will be filled with water up to his shoulders – will be situated in the Bella Centre as the final round of negotiations on a global deal begins.

See also

Global warming academics as playground bullys?

Katie Couric does "Hide the Decline" on February 4

**On the overall impact of ClimateGate, from Clive Cookson:

Public trust in science as a whole has suffered from recent attacks on climate research, the head of the senior US scientific body admitted at the weekend.

“There is evidence that the corrosion in the public attitude to climate science has spread over to other areas of science,” said Ralph Cicerone, president of the National Academy of Sciences, citing public opinion surveys in the US and elsewhere.

Speaking at the annual meeting of the American Association for the Advancement of Science (AAAS) in San Diego, Prof Cicerone and other research leaders said scientists must work to regain public trust by being more open about their findings. “We need to be more transparent and provide more access to our research data,” he said.

In the “climategate” scandal at University of East Anglia in the UK, emails showed researchers at the Climatic Research Unit refusing to release data to sceptics who were critical of their conclusions.

But access requests need to be reasonable, Prof Cicerone said: “Some scientists are receiving requests bordering on harassment.”

Jerry North, a senior climate change scientist at Texas A&M University, agreed. “It seems that vilifying a scientist has become popular entertainment in the US,” he said.

***On the retraction:

Retraction: Constraints on future sea-level rise from past sea-level change
Mark Siddall, Thomas F. Stocker & Peter U. Clark

Nature Geoscience 2, 571–575 (2009); published online: 26 July 2009; retracted online: 21 February 2010.

Sea-level-gate ?

Somerset County gets 2.6 quake on 21 February 2010

Somerset County, New Jersey was hit by a magnitude 2.6 earthquake at about 9am on February 21, one day before Washington's Birthday. NJ sustained earthquakes on Ground Hog Day and on Valentine's Day in 2009.

From NY Daily News:

The 2.6 magnitude quake’s epicenter was reported in Gladstone around 9 a.m., according to the U.S. Geological Survey. Officials say the area, which sits on the Ramapo Fault Line, had experienced a 1.5 magnitude earthquake last month.

The Star-Ledger reported:

About 100 people called Bernardsville police in the following minutes, Remian said, after experiencing a loud rumble then hearing what sounded like a boom. "It was felt by everybody here," Remian said from police headquarters. "It felt like the whole room was shaking around us, and a loud explosion afterward."

See earlier IPBiz post:

Earthquake hits New Jersey on Valentine's Day

for the USGS map

On stem cell banks

Nancy Cordes on CBS Sunday Evening News on Feb. 21 had a story about Dr. Joanne Kurtzburg on cord blood transfer.

Meanwhile, Irving Weissman of the Institute of Stem Cell Biology and Regenerative Medicine at Stanford University in California says well-meaning parents are being fleeced of thousands of dollars.
[from bigpondnews]

See also US scientists warn of fraud of stem cell 'banks'

Science "News of the Week" story pushes cellulosic ethanol

In a "news of the week" story by Anthonio Regalado titled Race for Cellulosic Fuels Spurs Brazilian Research Program, Science gives a push to cellulosic ethanol. [See 327 Science 928 (19 Feb 2010)]. The text includes:

Brazil's $40 million National Laboratory of Bioethanol Science and Technology (CTBE), inaugurated on 22 January, represents the country's big bet to maintain its position as the world's most efficient producer of ethanol. Construction has started on a $12 million pilot plant, where scientists from across Brazil will study how to use enzymes to break down and access sugars that normally remain trapped in sugar-cane straw and processed stalks, known as bagasse. But not everyone in Brazil is convinced by the new cellulosic push; some say the first-generation technology still has space to improve.

Page 929 of the Regalado paper has a table "Biofuels papers", showing #of papers and citations per paper for different countries. The US is number 1 with 5,143 papers and 10.33 citations per paper. Turkey is number 2, China 3, India 4, and Sweden 5. Brazil is number 11 at 345 and 4.31 [the ranking is solely by number of papers).

Regalado quotes Carl E. Pray at Rutgers: "Everyone wants to play in Brazil because of cheap sugar. The technology is going to come whether Brazil develops it or not." "Stuff that is developed in a lab in the U.S. is moving to Brazil that night by e-mail."

Of course, the significance of the article requires CELLULOSIC ethanol to be the next big thing. Maybe it isn't.

Of a different "news of the week" story in Science, see

Kintisch article in Science challenged in Sept. 06 JPTOS

Speaking of Eli Kintisch, at page 934 of the 19 Feb. 2010 issue are "highlights" from an interview by Kintisch of Phil Jones of ClimateGate fame. The FOIA business was obliquely addressed, with one response being "I'd rather not go there" and a second being "We probably should have responded to these requests in a different way." Of the Jones chapter in the 2007 IPCC report: "No regrets, but I don't really want to go talking about IPCC. I stand by the chapter."

See also by Antonio Regalado

Elsewhere in the 19 Feb 2010 issue of Science is the announcement of the retirement of Vernon Ehlers from the House of Representatives.

GIPC pushes for strong IPEC

Rick Merritt of EE Times reports that David Hirschmann of the Global IP Center, a branch of the U.S. Chamber of Commerce, is pushing a beefing up of IPEC, headed by Victoria Espinel:

"In 2010, the administration should ensure the IPEC has the requisite authority, budget and staff to successfully carry out her duties," Hirschmann said in a letter to administration officials made public Thursday (Feb 18.). "Chief among those tasks is coordinating the development of a first-ever, government-wide, joint strategic plan for intellectual property."

See previous IPBiz post,
Victoria Espinel

"Plagiarism has become a major problem in academia"

A story in dnaindia starts with a statement: a US-based business school, The Smeal College of Business at Penn State University found out 18 cases of plagiarism by applicants, of which 10 were Indian. and the story also includes the text:

Plagiarism has become a major problem in academia, say experts. “It is not limited to the admission process. We get to see instances of this during the MBA programme as well. Some students do a copy-paste job of their assignments and take passages from the internet. Such projects are given a zero right away,” said BV Krishnamurthy, director, Alliance Business School.

Apparently, many of the students of generation Y are even copying their "statements of purpose" on admissions forms. Recall the 2007 IPBiz post which included the text:

A study published on March 7, 2007 by UCAS, the Universities and Colleges Admissions Service, found that five percent of the 50,000 personal statements[in university applications] surveyed at random contained "borrowed material", lifted mostly from one free Web site: Most of the material plagiarised, however, was adapted by applicants with direct copying from online sources standing at less than 1 percent, the study revealed. "There is a small problem but we're looking at ways to address it," said Byron Price, communications officer of UCAS.

The "red flag" was the appearance of hundreds of applications mentioning "burning a hole in pyjamas at age eight" working with a chemistry set.

Re-cycling at CBS

Steve Hartman presented his three "Everyone in the WORLD has a Story." stories (selected on the space shuttle), previously presented on the Couric evening news, on CBS Sunday Morning, on February 21, 2010. [The story on Jeff Williams was not included]

Of recycling "yet to come," CBS 60 Minutes on February 21, 2010 promises another unlimited energy story. One recalls that in 1984 CBS, alone among the major networks, pushed Joe Newman:

The quest for perpetual motion, however--now usually referred to as "free energy"--had never quite gone away. It began again in earnest in 1984 when the CBS Evening News with Dan Rather carried the story of Joseph Newman, a mechanic with a grade-school education in the backwoods hamlet of Lucedale, Mississippi. Newman claimed to have invented an "energy machine" that produced more energy than it took to run it. "Put one in your house," he promised, "and you'll never have to pay another electric bill." Dan Rather, the CBS News anchor described Joe Newman as "a self-taught genius."
[from Fraud in science ]

See also IPBiz post
More on the USPTO patenting pseudoscience

Separately, contemplate US Patent 6,938,422, which might seem to violate the second law of thermodynamics.

Saturday, February 20, 2010

Chronic and pervasive bias by global warming advocates?

David Henderson, former head of the OECD economics and statistics department, criticizes a possible pre-commitment on the part of IPCC, which might be perceived from the fallout of ClimateGate:

The glaring defects in the expert advisory process have gone unacknowledged and unremedied by what I call the environmental policy milieu. This high-level failure and the defects themselves have resulted from chronic and pervasive bias. Right from the start, members of the milieu, and of the IPCC's directing circle, have been characterised by what has been well termed "pre-commitment to the urgency of the climate cause".

Henderson urges an evolutionary and adaptive approach to climate issues:

In an area of policy where so much is at stake, and so much remains uncertain and unsettled, policies should be evolutionary and adaptive, rather than presumptive as they are now; and their evolution should be linked to a process of inquiry and review that is more thorough, balanced, open and objective.

In passing, one might recall some involvement of OECD in the US patent reform debate.
In the IPBiz post The issue of "when" something is published one has the text:

For example, in the OECD paper cited by Quillen and Webster in Continuing Patent Applications and the U.S. Patent and Trademark Office--Updated, 15 Fed Cir B J 635-677 (2006) [see footnote 65 of QW3 at page 644], there is no indication of "when" the study appeared in the on-line version of the OECD paper. I emailed the OECD people to determine when the paper appeared, but got no response.

See also

One might say there was a "chronic and pervasive bias" in the way patent grant statistics were applied to suggest that there was a 97% grant rate at the USPTO.
An evolutionary approach to patent reform, untainted by false horror stories about patent grant rate, might be appropriate.


OECD Official Joins WIPO Economics Team: Sacha Wunsch-Vincent, formerly an economist at the Organisation for Economic Co-operation and Development (OECD) Directorate for Science, Technology, and Industry, has joined the World Intellectual Property Organization as a senior economic officer under its chief economist Carston Fink.

Making hay out of power law distributions

Gregory Mone at AOLNews discusses a paper published in the 19 Feb 2010 issue of Science by Albert-László Barabási and co-workers about analysis of data from 50,000 anonymous cell phone users to make predictions about human mobility, to show "where we are and when we are there" is quite foreseeable.

The evolution of Barabasi's publications in Science and Nature is of interest.

Barbasi's first paper on network science was submitted (while he was a postdoc at IBM) to four journals, including Science and Nature. All four rejected it. He remembers, “Nobody said it was wrong. But somehow the tone I got from the referee reports was, ‘Who cares?’”

Barbasi went to Notre Dame and worked in the area of materials science. One of his doctoral students, Réka Albert, co-authored a paper titled “What Keeps Sandcastles Standing?” that made the cover of Nature.

Science published a paper on the power-law distribution of links to nodes in the
Notre Dame internet network in October 1999. And he was off and running.

See Looking for the next big thing, which includes the text: The links in appeared to be distributed
in a much different pattern — a power law. A graph of a power law resembles a hockey stick, with a single steep curve sweeping downward into a long, long tail. There’s
nothing bell curvish about it.
and the text Internet Movie Database, a massive record of thousands of actors linked to each other by roles in the same films. (It’s the basis of the game “Six Degrees of Kevin Bacon.”)

IPBiz notes that that citations to journals are very much dependent on the identity of the journal. When one hears “20 percent of people hold 80 percent of wealth,” which describes a power law, one notes that only a few journals are responsible for the bulk of scientific citations. This disparity led to the creation of the concept of the "impact factor." Within this discussion, one found that WITHIN one journal a select group of papers are primarily responsible for the impact factor [about 90% of Nature's 2004 impact factor was based on only a quarter of its publications ]
See also Eugene Garfield, The History and Meaning of the Journal Impact Factor which includes the text: "The so-called 80/20 phenomenon applies, in that 20% of articles may account for 80% of the citations."

Note also the published US patent application DISEASE DIAGNOSES-BASES DISEASE PREDICTION, 20080183454, with first claim:

A system for predicting future disease for a subject comprising:a population information set comprising population disease diagnoses for members of a population;a subject-specific information set comprising at least one subject-specific disease diagnosis; anda diagnoses-based prediction module configured to predict one or more future diseases for the subject based on said subject-specific disease diagnosis and said population disease diagnoses for population members having at least one disease in common with the subject.

****Of relevance to metabolomics, from the article by Dale Keiger:

Next, Barabási teamed up with a Hungarian friend at Northwestern University, the
biologist Zoltán Oltvai, to examine metabolic networks —
genes linked by chemical reactions — in 43 different living
organisms. In every case they found the same power-law distribution
of nodes and links. The Internet, actors in Hollywood,
the proteins that regulate cellular metabolism, all
could be studied as networks with a common structure and
common mathematical laws.

For example: Vazquez Alexei; de Menezes Marcio A; Barabási Albert-László; Oltvai Zoltan N --
Impact of limited solvent capacity on metabolic rate, enzyme activities, and metabolite concentrations of S. cerevisiae glycolysis.