Tuesday, March 30, 2010

Myriad loses!

U.S. District Judge Robert Sweet wrote in his opinion in the Myriad case: "Because the claimed isolated DNA is not markedly different from native DNA as it exists in nature, it constitutes unpatentable subject matter." Judge Sweet confined his ruling to patent law, and did not base his decision on the First Amendment arguments presented by the ACLU and other plaintiffs.

See Reuters story-- Judge in New York dismisses human gene patent. Two human genes associated with breast and ovarian cancers cannot be patented because they are a product of nature, a federal judge ruled on March 29.

However dramatic the result, one suspects it will not hold up on appeal to the Court of Appeals for the Federal Circuit.

The New York Times wrote: The decision, if upheld, could throw into doubt the patents covering thousands of human genes and reshape the law of intellectual property

The key words there are "if upheld."

The NYT also had the text: Bryan Roberts, a prominent Silicon Valley venture capitalist, said the decision could push more work aimed at discovering genes and diagnostic tests to universities. “The government is going to become the funder for content discovery because it’s going to be very hard to justify it outside of academia.”

IPBiz newsflash, a lot of the gene work ALREADY is in the university context, as are PROPOSALS for tests and methods. Refer to the Ariad and Rochester opinions. Actually developing tests is perhaps a different matter. Note that Myriad was formed in 1991 by University of Utah researcher Mark Skolnick and that The University of Utah Research Foundation licensed several of the patents to Myriad. Recall also where Genentech came from.

**In terms of misunderstanding of the story, note what came from the AP and into the Washington Post in a story by LARRY NEUMEISTER:

The ruling came in a long-running fight between scientists who believe that genes carrying the secrets of life should not be exploited for commercial gain and companies that argue that a patent is a reward for years of expensive research that moves science forward. It was almost sure to be appealed to the 2nd U.S. Circuit Court of Appeals in Manhattan.

IPBiz notes that it is certain that the case will NOT be appealed to the 2nd U.S. Circuit Court of Appeals in Manhattan, unless we have a time warp to a pre-Reagan era.

The AP report also contained reference to Jesse Reynolds, who has separately been outspoken on California's CIRM:

"The evidence has mounted that human gene patents are doing more harm than good," and resulted more by accident than a well-thought-out policy, said Jesse Reynolds, a policy analyst at the Center for Genetics and Society. The center is a nonprofit policy research group advocating for oversight and responsible use of biotechnologies.

One presumes Jesse is talking about legal policy on gene patents rather than suggesting the work leading to the patents is not-well-thought-out.

**See previous IPBiz posts




NASA and NAS to investigate Prius throttle

Reuters notes that SecTran LaHood has called upon both NASA and the NAS/NRC to investigate the electronic throttle of the Toyota Prius, with Reuters noting the possible inadequacy of past review:

Both U.S. safety regulators and Toyota have faced scrutiny about whether either did enough to investigate driver complaints of possible electronic throttle problems and other safety issues in recent years. (...)

The Transportation Department inspector general is investigating NHTSA's and Toyota's handling of investigations into unintended acceleration. LaHood also said the agency watchdog would also determine whether NHTSA has appropriate staffing and expertise to handle sophisticated investigations into areas like vehicle electronics and computers.

Nine NASA scientists would bring expertise in electronics, eletromagnetic interference, software integrity and complex problem solving to the Toyota review, Transportation Department officials said.

LaHood has maintained that NHTSA could handle the analysis itself but said suggestions from lawmakers at congressional hearings prompted him to consider outside help. (...)

The broader industry review of unintended acceleration by the National Academy of Sciences' National Research Council is expected to take about 18 months and is separate from the NASA analysis.

The move by LaHood undercuts some previous blog analysis, See

Incomplete account of Sikes' Prius event

IPBiz notes that the question about --appropriate staffing and expertise to handle sophisticated investigations -- is one that has arisen with the United States Patent Office in recent history. With the USPTO, fee diversion has taken its toll. The principal objective in "patent reform" should be to see that the USPTO has appropriate staffing and expertise to handle sophisticated investigations. The stuff that is in S.515 is eyewash.

**On the Prius, from How a pit bull is like a Prius

Information cascades sweep away journalistic skepticism. As I wrote on Forbes.com on March 12, virtually everything California driver James Sikes told the media about his allegedly runaway Prius was absurd, contradictory, or impossible. He said he was afraid to take his hands off the wheel to shift into neutral, yet he had a cell phone in one hand almost the entire time! Moreover, the 2008 Prius is rare in that it enables shifting with both hands on the wheel.

Monday, March 29, 2010

Demonstrating a dumb invention to a US President?

Previously, IPBiz discussed an episode of NCIS involving jet packs, and patents on jet packs:

The Jan 5, 2010 episode of NCIS (titled "Ignition") introduces a lawyer character named M. Allison Hart (played by Rena Sofer) who (in the storyline) did pro bono patent application drafting in the area of jet packs.

Since then, the M. Allison Hart character has appeared twice more, tho not as a patent lawyer.

HOWEVER, if one goes to frame 10 of Life magazines 30 Dumb Inventions, one will find a photo of inventor Harold Graham demonstrating a jet pack to President Kennedy in the year 1961.

One hundred years earlier, Spencer demonstrated the Spencer rifle to President Lincoln. Although legend has it that the rifle didn't work properly in front of Lincoln, Spencer did get government contracts and the Spencer rifle was used by Union troops under the command of George Armstrong Custer at Gettysburg on July 3, 1863.

Revisiting the Blair Affair at the Times

In a piece titled Boyd's tragic, turbulent Times, Howard Kurtz re-visits the Jayson Blair Affair, as adjusted through the posthumous book of Gerald Boyd, "My Times in Black and White." Boyd was managing editor at the New York Times during the Blair incident, and has been accused of sheltering Blair during the plagiarism / fabrication business.

Kurtz was an involved player; he writes: The troubled Blair resigned two days after I reported that he had lifted numerous passages from a San Antonio Express-News piece. Boyd took issue with my follow-up story, which noted that the Times had run more than 50 corrections of Blair's reporting in less than four years.

Kurtz characterizes print newsrooms much as the tv show Law & Order characterized tv newsrooms in its "Larry Mente" take-off:
There is no foolproof system to guard against reporters who cheat. The business ultimately runs on trust. But in turf-conscious newsrooms that operate on fear, staffers are wary of sharing doubts and senior editors remain isolated from the rank and file. IPBiz ponders: are not news people sufficiently aware of what has been published that they can spot plagiarism? Can't editors verify sources so that fabrications don't occur?

And recall the NYT's comments about using plagiarism detection software as to Blair: "As one test, for example, he said that plagiarized articles by Jayson Blair were run through one of the detection programs, and it failed to catch all the stolen passages."
IPBiz notes: "who cares" if the software didn't catch ALL the plagiarism?


Sunday, March 28, 2010

Incomplete account of Sikes' Prius event

On March 24, Eric Loveday wrote:

However, his account of the events has not been confirmed yet. Indeed, Toyota and the NTHSA have said that the facts appear to be leaning against his story, as the vehicle apparently cannot do what Sikes states occurred during the incident.
Before releasing official findings, Toyota and the NHTSA have decided to tear down the 2008 Prius in question and test all system to determine if anything is faulty and could have led to the ordeal.
Toyota questions the truthfulness of Sike's story and has publicly noted that the Prius, if operating correctly, has a brake override system in place that prevents engine rpm from increasing when the brake is applied.

Loveday's account does NOT mention what the California Highway Patrol stated:

The Reuters account of the Highway Patrol report suggested the report strongly supported the driver's discussion of the incident. Titled California police report supports Prius driver , the Reuters story includes text:

A California Highway Patrol report released on Wednesday in a sensational "runaway" Toyota Prius incident appears to support the version of events given by the driver, which the automaker has called into question.


The written account by a CHP officer who raced to the aid of James Sikes after his emergency call on March 8 says that the 61-year-old realtor appeared to be stomping heavily on the brake pedal while speeding at 85 to 90 miles per hour on a freeway near San Diego.

Toyota has said it found no evidence that Sikes had been applying the brakes forcefully and that by doing so he should have been able to stop his blue 2008 Prius.

California Highway Patrol to weigh in on Sikes' Prius story

**Separately, of the NHTSA:

However, the NHTSA had said: "We observed there was very little left of the car's brakes."
[see http://ipbiz.blogspot.com/2010/03/california-highway-patrol-to-weigh-on.html]
Further, the inboard front brake pads were completely gone and the outboard pads were down to about two millimeters to 2.5 millimeters, the NHTSA said, and the rotors were damaged. IPBiz queries: what can be inferred of a "wear pattern" when the inboard brake pads are completely gone?


NHTSA said it so far has not found a cause of Sikes' incident.

Of the possibility of an electronic explanation, see the article Toyota’s Acceleration Issue Due to Electronics, Experts Say, which includes:

On March 8 James Sikes’s Prius accelerated to 90 miles per hour and could not be stopped on a San Diego freeway by application of the brakes. Unable to replicate the problem, Toyota said that Sikes’s account has little merit. (...)

Toyota has steadfastly ruled out the electronic system faults as the cause of sudden acceleration. (...)

“[Toyota claims] that because they can find no defect after a sudden acceleration incident that the sudden acceleration could not have been caused by a design fault,” said Armstrong. But he says the argument that “an absence of a detectable fault proves absence of a design effect” uses false logic. Most electronic faults don’t leave any evidence, “Especially after the ignition is turned off.” Electronics have weaknesses and can go wrong in many ways, explained Armstrong.

**Problems with recalled Toyotas that are fixed

A report by the Associated Press finds that the government has received more than 100 complaints from drivers who say their recalled Toyotas are still accelerating on their own even after receiving the automaker's fix.

The AP found the number doubled in the last two weeks.

According to the analysis, the complaints are from drivers who say their recalled Toyotas are still accelerating on their own.

The National Highway Traffic Safety Administration is investigating and has found several instances in which dealers botched the repairs.

Officials from the National Highway Traffic Safety Administration say they are contacting owners who have complained.

According to the AP, Toyota blames the problem on floor mats that trap gas pedals or on sticky accelerators.

** Of Toyota's position, see Toyota: Sikes "intentionally misused" brakes to overheat them-->

• The front brakes showed severe wear and damage from overheating. The rear brakes and parking brake were in good condition and functional.(...)

Toyota engineers believe that it would be extremely difficult for the Prius to be driven at a continuous high speed with more than light brake-pedal pressure, and that the assertion that the vehicle could not be stopped with the brakes is fundamentally inconsistent with basic vehicle design and the investigation observations.

These findings suggest that there should be further examination of Mr. Sikes account of the events of March 8.

NHTSA investigators were present during Toyota’s examination, and are conducting their own investigation of the vehicle and its performance. Toyota’s examination was also observed by a congressional staff member.


Separately, legalzoom.com AND

The USPTO’s New LegalZoom Killer?

CBS recycling great white shark story

"60 Minutes" on 28 March 2010 has a story by Anderson Cooper on Mike Rudson and great white sharks. If this sounds vaguely familiar, it should.

From a CNN story in November 2008:

ANDERSON COOPER, ANCHOR: When great white sharks start to circle your boat, the feeling is unsettling; 15 feet long, thousands of pounds. These are the animals of so many nightmares. (...) Mike Rudson (ph) takes tourists cage diving with great whites off the coast of South Africa.

CBS has been doing a lot of re-cycling lately:

CBS Sunday Morning recycles tulip story on March 21

Re-cycling at CBS

Andy Rooney was talking about the funny papers. He noted editors don't take to humor. There is no agreement on what's funny.

IPBiz notes, that in patents and news, there is an expectation of novelty. Pretending that recycled news is "new" is a bit funny.
Separately, within the patent quality debate, Jaffe and Lerner recycled an example from someone else purporting to show a failure by the patent office in identifying prior art, which turned out to have nothing to do with the claims at issue. That was pretty funny, too.

[Prior IPBiz post:
Glaskowsky and Aharonian missing prior art?

The continuing saga of the Shepard Fairey poster

SONIA K. KATYAL & EDUARDO M. PEÑALVER discuss the Shepard Fairey copyright matter and note that Fairey "appears to have acquired a new set of lawyers, from the Berkman Center at Harvard Law School, after his original lawyers withdrew upon learning of his deception. "

They mention Mark Lemley: But in the context of intellectual property, as Mark Lemley has noted, the boundaries are not always so clear, and it is more difficult to tell whether a person is trespassing upon another's intellectual property. without mentioning that Lemley's law firm WAS the above-noted "original lawyers."

They conclude:

Fairey's actions before the court are more than just a disappointment; they are an instance of deception. But we should still be careful to recognize the ultimate significance of Fairey's transformation of a prior image -- not just for his considerable artistic skill, but also for his willingness to challenge the boundaries of copyright clearance in court. His artistic gifts have yielded an iconic image for our generation, but his willingness to create art without prior authorization could wind up creating a more powerful case for fair use - one that will benefit generations of artists to come.


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


See also owners, borrowers and thieves, including

Less Hope For Shepard Fairey in Obama Hope Poster Case?

Federal Circuit Says Korean War Memorial Stamp Violated Sculptor's Copyright
[Frank Gaylord]

Plagiarism as "academic malpractice"

Back in 2006, IPBiz noted that Jiaotong University had announced the firing of star professor Chen Jin for
allegedly faking research on computer chips.

Fast forward to 2010, and one has the report of Xi'an Jiaotong University in Northwest China's Shaanxi province firing Li Liansheng over plagiarizing the work of others.

A statement: "Due to the severe academic malpractice of Li Liansheng, the university has decided to abolish his title of professor and terminate him as a teacher."

Concurrently, we have the legal malpractice action against Ropes & Gray for copying text from one patent into an application filed on behalf of Cold Springs Harbor Laboratory.

Previous IPBiz post:


POPA talks about fee diversion

The February 2010 POPA newsletter, unlike Senate bill S.515, directly addressed fee diversion from the USPTO:

They outlined the harm to patent examination
done by diverting patent fees to the general treasury
and requiring the USPTO to pay more than $70
million annually for employee retirement benefits.
(USPTO and the U.S.Postal Service are the only
federal agencies that pay the Office of Personnel
Management to cover their retirees’ benefits.)
practices contributed to the USPTO budget shortfall,
which in turn led to the recent hiring freeze.
During the halt in hiring,the USPTO has
continued to lose approximately 15-20 examiners
each biweek.POPA pointed to an outmoded USPTO
culture that has been too ready to fire examiners rather than
invest in the training and mentoring needed to improve their
performance and retain them.This historically high fire-and-
hire cycle has expended big bucks on initial examinetraining only
to lose many of the recently hired and begin
the cycle anew.The hiring freeze stopped this cycle,forcing
the agency to reexamine its personnel processes.
Discussing the USPTO’s future at a Nov.30 meeting.

Unless Congress directly addresses fee diversion, which
S.515 does not do, the above-noted problems are not going
away. Those things which S.515 does address are not that

Saturday, March 27, 2010

"It's New Jersey"

Back in 2006, Vai Sikahema concluded his piece "Rutgers is Wrong" with the simple words: Well, it's New Jersey. Philly channel 10 deleted all reference to "Rutgers is Wrong" shortly thereafter, and IPBiz started using the term "sikahema" to refer to deletions from the internet.

Meanwhile, as to "it's New Jersey," former Keansburg schools superintendent Barbara Trzeszkowski has dropped her demand for $556,290 in severance pay which had been calculated by multiplying her monthly salary by the 38 years she worked in Keansburg. BUT she is not going home empty-handed: She gets $50,000 to help cover her legal fees, and she is still entitled to accrued vacation and sick time of more than $184,000 and an annual pension of about $104,000, [from nj.com]

Of Sikahema:




of former Governor Corzine: The Wall Street options and futures firm MG Global Holdings Ltd. announced March 23 that Corzine is its new CEO and chairman, effective immediately.
Princeton University announced today that Corzine would be a visiting professor in the 2010-11 academic year. His duties there include leading a lecture series on financial market regulation and teaching a graduate course on state policy.

Former N.J. Gov. Jon Corzine lands jobs as Wall Street CEO, Princeton professor

The ex-guv will do even better than Barbara:

The report said Securities and Exchange Commission filings show Corzine's salary starts at $1.5 million, but he can also collect a $1.5 million signing bonus and an additional $2 million bonus based on his job performance. He will also receive options to purchase 2.5 million shares of MF Global common stock.

Former N.J. Gov Jon Corzine's pay package is $5M-plus


LA Times follows up on Sikes' Toyota Prius story

In a piece --Runaway Prius driver: What should happen next? --, an LA Times blog piece asks:

Whichever side you choose, should Sikes face any consequences if the investigation proves his story was in fact a hoax?

IPBiz ponders, what happens if the story wasn't a hoax? We don't seem to yet have a firm account of "what did" happen with Sikes' Prius.

Merely as an observation (and not commenting on Toyota's analysis of the in-car computer data), LBE observes that certain companies are less than straightforward in their record keeping. For example, health insurance providers purport to keep records of phone calls made to them. Recent experience demonstrates that, when convenient, the health insurance companies deny phone calls took place at all or misrepresent the contents of the calls. In a different vein, LBE had work done on an iPhone, which was not duly noted by Apple in its records, which became relevant in a later iPhone malfunction. Records maintained by a company, and interpreted by a company, might possibly be subject to a pro-company bias.

HR people need to be up to speed on IP issues: Bimbo Bakeries

Human Resource Executive Online has a piece about the lawsuit involving an executive who left Bimbo Bakeries [see prior IPBiz piece Bimbo Bakeries goes after former exec on secrets of Thomas' English Muffins]

The piece is about the HR angle, and what the HR people could have done differently:

[Judge] Surrick also found that Botticella had continued to work for Bimbo for three months after accepting the Hostess post, and that Botticella removed sensitive documents in his final days as a Bimbo employee.

Such evidence "demonstrates an intention to use Bimbo trade secrets during his intended employment with Hostess," Surrick wrote.

The case is unusual because Botticella was not subject to any restrictive covenant. Instead, the judge's injunction is premised entirely on the grounds that Bimbo's trade secrets were threatened.


Attorney Paul Greco of Conrad O'Brien Gellman & Rohn in Philadelphia, who regularly litigates trade secret and restrictive-covenant cases, says he would have advised Hostess to speed up the hiring process.

"If you look at the numerous factors that seemed to bother the judge, I think the length of time between his accepting the job and starting -- nearly three months -- was a critical factor," Greco says.

Greco notes that, during his final months at Bimbo, Botticella continued to attend strategy meetings in which top Bimbo executives discussed sensitive issues such as product-launch dates and pricing strategies.

In court papers, Botticella's lawyers argued that, after he was offered the Hostess job in mid-October 2009, he kept his post at Bimbo to ensure he received his annual bonus.

But Greco says the litigation is likely to prove more costly and could possibly have been avoided if Hostess had offered to cover any loss of bonus.


One option that can avoid a host of potential problems, Greco says, is to negotiate a "garden leave" agreement, meaning a period of time in which the worker who is switching firms will be on a paid leave.

If the former and future employers can agree on a time frame for such a leave, it's possible to avoid going to court at all, he says.

Greco also says that the recruiting company would be wise to put in writing explicit instructions to the employee about honoring all trade secret issues, and to take extra steps to reassure the worker's former organization.

"I always say: don't take anything with you and remember to return everything. Employees often have items at home that they may have received years earlier. Returning those things is one way to show good faith," Greco says.

**In passing, of venue issues, U.S. Judge R. Barclay Surrick is in Philadelphia.

Plagiarism of a misquotation?

The act of plagiarism comprises copying the text of another without attribution. One has a different issue when one attributes text to a person who said no such thing. In the realm of patent law, we have the "everything has been invented" quote attributed to Duell, who said no such thing.

Recently the matter came up with President Obama, who attributed the text:

'I am not bound to win, but I'm bound to be true. I'm not bound to succeed, but I'm bound to live up to what light I have.'

to Lincoln who did not actually say the thing. In an essay Honest, Mr. President: Abe Never Said It , JOHN J. PITNEY JR. suggests that Obama's writers copied the quote from Reagan's speechwriters:

President Reagan used the "bound to be true" line several times. (One may guess that President Obama's speechwriter got it from a Reagan speech and incorrectly took it for granted that the Gipper's staff had sourced it.)

If true, that would be plagiarism by Obama's speechwriters of a falsehood.

As a general matter, IPBiz has noted that propagation of falsehoods is more dangerous to society than plagiarism (although both are bad).

See also

Lemley on patenting nanotechnology

Did Mark Lemley name Gary Boone as the inventor of the integrated circuit?


Plagiarism vs. aliasing

UPDATE. The Duell quote is discussed at Patently-O. Tracing the Quote: Everything that can be Invented has been Invented

See comment:

Not the first time the Duell quote has been mentioned on Patently-O.

See the 2005 post on IPBiz
"Wrong expert prediction" site starts with fake quote of Duell

The fake quote of Duell appears in
the Patently-O blog as well as in Joseph Hosteny's article in the May 2005 issue of Intellectual Property Today (pp. 28-29). I had discussed the history of the fake quote in detail in
a post on IPBiz on May 27, 2005.

Intellectual property profs batting below the Mendoza line?

In baseball, the Mendoza Line is said to occur at a batting average of .200, and when a position player's batting average falls below that level, the player is said to be below the Mendoza Line. As a rule of thumb, the Mendoza line is the offensive floor below which a player's presence in the big leagues cannot be justified despite his defensive abilities. [see wikipedia]

The vote in the en banc Ariad case was 9-2, meaning that the IP profs who challenged the existence of a "written description" requirement batted 2 for 11 or .182, which is below the Mendoza line.

Can their presence in the IP big leagues be justified?

See also

Blogs quiet on Ariad?

Friday, March 26, 2010

Deja vu on bans on public cursing

On March 26, CBS Evening News without Katie Couric had a story on a teenager campaigning against profanity. A "cuss jar" was part of the deal. The teenager had sent one to Joe Biden, who more likely needs a "plagiarism jar."

Way back in 1994, the council in Raritan Boro next to Bridgewater, New Jersey voted 5-0 to ban cursing in public. The police chief said he wouldn't enforce it, mentioning something about lawsuit (First Amendment) issues.

CBS News also had a piece on a study, based on analysis of pictures on baseball cards, that suggested people who smiled lived, on average, five years longer than people who didn't. Harry Smith didn't note who the illustrated frowning player was.

All in all, the March 26 episode of CBS Evening News demonstrated that there are worse things than Katie Couric.

Researchers Ernest Abel and Michael Kruger from Wayne State University examined the 1952 Baseball Register photos of 230 Major League Baseball players who started playing before 1950, and found the span of their smile accurately predicted their life span.

from tonic.com

Smile Intensity in Photographs Predicts Longevity

***On "hot news" and AP vi. INS

SDNY grants summary judgment on hot news claim


Fungibility in the days of 10% unemployment

Karen Burns of US News has a piece 7 Things Your Boss Should Never Say to You which begins with
"I pay your salary. You have to do what I say." and includes It's the 21st century. Threats and power plays just do not cut it anymore

Gee, it's March 2010 and there's 10% unemployment. The ultimate threat is You can be replaced. Easily. That should have been number one on Karen's list.

Some time ago, when there wasn't 10% unemployment, there was a zeolite scientist at Exxon's Corporate Research Laboratories who told management that a certain program was basically worthless. He was audacious enough to say so in the lecture hall in front of other scientists. Management response was You can be replaced. Easily. The zeolite guy said no more. A few years later, the certain program was discontinued, but only after management praise of its great success. There's actually a lot more to the story.

Exxon's management did not use the word fungible, but that's what they meant. At law school, the Dean of Admissions mentioned to me that all but about 10 students in any entering law school class were fungible. He meant it.

As to law, the irony becomes that lawyers succeed by proving they are not fungible, even though most are fungible. As to science, with the diversity of training and research, most scientists really are not fungible, even though they are treated as if they were. With 10% unemployment, it doesn't matter much.

***from 6 Job Search Mistakes You Can't Afford to Make

Yes, there's a recession. Yes, a lot of folks are out of work. And, yes, finding a job is a hard job in and of itself. But, no, the sky is not falling. And yes, if you work hard and long enough at it, you will land a good job. The media's motto is, "If it bleeds, it leads." Bad news is their stock in trade. You will never see a story about company hiring back 10 workers or a person who landed a great job after a rigorous job hunt. A regular diet of bad news will convince you that no one is hiring (untrue), that you should avoid employers that have had layoffs (bad strategy) or that maybe you should just move to China (bad idea unless you speak Mandarin). Get out, have some fun, work at keeping your energy and spirits up, and network with optimistic people.


If you aren't getting rejected regularly, then you either aren't working hard enough to get your foot in the door or you're applying for jobs beneath your capabilities. No employer makes a decision not to hire you; they make a decision to hire someone else who did a better job of selling himself or herself into the position.

Of -- No employer makes a decision not to hire you --, employers make decisions "not" to hire people all the time. Don't know what Paul Powers ia thinking.

Blogs quiet on Ariad?

Many of the IP blogs have been quiet on the en banc Ariad decision, which represented a stunningly thorough repudiation of positions taken by a number of IP professors.

Patently-O noted:

My sense is that Ariad v. Eli Lilly has essentially no shot for Supreme Court review unless the Ariad can do a great job of convincing the court that the written description requirement as applied is (1) new and (2) is severely detrimental to the patenting of breakthrough inventions and discoveries.

[An article presented in SSRN by Dennis Crouch was cited in one of the opinions. Of citation to something in SSRN, one contemplates the "gray literature" debate in ClimateGate.]

Kevin Noonan had a detailed post, but did not mention all those law reviews written in favor of what turned out to be a losing (9-2) proposition. Noonan concluded:

Regardless of these disparate voices, the Court majority affirmed the existence of a separate written description requirement. This opinion puts to bed one of the many recurring examples of uncertainty that have crept into its jurisprudence in recent years (at least until sufficient members of the Court have accepted senior status and new judges bring their views to bear on the question).

See IPBiz post

En banc CAFC affirms written description; Ariad loses

**At least one professor did write about Ariad, Chris Holman:

Yesterday in Ariad v. Eli Lilly, a majority of the en banc Federal Circuit decided to retain both traditional and Lilly written description as distinct requirements of patentability. I filed an amicus brief in the case arguing against the Lilly written description requirement (LWD), the brief and some of my objections to LWD are available in earlier posts to this blog. Essentially, I have argued that any positive policy aspects of LWD can be better accomplished using the enablement requirement, and that the courts have failed to articulate any coherent standard for compliance with LWD beyond the requirements of enablement. Federal Circuit judges Linn and Rader recognize this problem in their dissents to Ariad.


In view of the widely held perception that LWD was bad for biotechnology, it might come as surprise to find that major biotechnology companies Amgen, Glaxo Smith Kline, and Abbott all filed amicus briefs in Araid supporting Lilly and retention of LWD. Note that the support comes from major biopharmaceutical companies selling blockbuster drugs, who like Eli Lilly see the pragmatic usefulness of LWD as a tool for invalidating unwarranted and irksome patents such as Ariad’s. Other biotechnology companies, presumably more concerned about the negative impact of LWD on their ability to obtain adequate patent protection for their biotechnology inventions than the threat of being sued for infringing and "unworthy" patent, joined me in arguing against LWD. Universities also filed an amicus brief arguing for elimination of LWD. The Biotechnology Industry Organization (BIO) did not weigh in with an amicus brief, I would guess because their membership, which includes universities, small biotechnology companies, as well as large biopharmaceutical companies like Eli Lilly, was too divided on the issue to take a unified stand.

As a practical matter, I don't think that retaining LWD will have a major impact on biotechnology or patent law in general. As shown in empirical studies conducted independently by me and Dennis Crouch of Patently-O fame, it appears to be very rare for a patent claim to be rejected or invalidated solely based on failure to comply with LWD (both studies are cited in Judge Rader's dissent). In most cases, enablement would be sufficient to handle the job. As shown in my Paper Tiger article, contrary to earlier predictions, LWD has for the most part not prevented biotechnology inventors from obtaining relatively broad scope of protection for their inventions. Its main function is to police claim scope, and in practice patent applicants are routinely granted broad scope of coverage for biomolecule inventions based on a relatively modest disclosure of some relationship between structure and function, or by describing a few representative molecular species falling within the claimed genus. LWD is being used to limit claim scope for some biomolecule inventions, but I would assert that the patent office could achieve the same policy objective using the enablement requirement if it did not have LWD, and in fact my experience looking at many Board of Patent Appeal and Interference decisions involving LWD usually enablement and LWD rejections are raised in tandem.

**Separately, of gray literature, from E. Shulenburger -->

For example, James Langer, the president of the American Physical Society, states that some of his colleagues, especially the string theorists, "for research purposes don't need print journals at all [7]. His colleagues rely on the Los Alamos server, a repository of unrefereed manuscripts. A common experience we all share is membership on list serves that present manuscripts reporting what colleagues in our own areas are doing. A search of any university website turns up manuscripts on many topics. This so-called "gray literature" provides access to scientists to much that is not owned or catalogued by our libraries.

But while the gray literature may provide access to material unavailable in one's university library it is not an acceptable substitute for library access to the scientific literature. The gray literature generally is not adequately indexed and archived such that one can systematically search or rely upon it as a repository of scientific information in the future. One can easily make the case that relying upon it as a source of transmitting and preserving the scientific literature will create great difficulties or impossibilities in accessing that literature in the future. (The author has cited some of the gray literature of the scholarly communications movement in footnotes. While web sites for this literature are accessible now, no assurance can be given that they will remain accessible 75 years into the future.) In addition, much of the gray literature is accessible only to those who are in certain social or professional networks.

Round and round with Angiomax

Following last week's events with Angiomax, with the USPTO playing hardball, it appears we will have a reprise. From Reuters:

[Medicines Co] filed the complaint on March 25 against the PTO, the U.S. Food and Drug Administration and the U.S. Department of Health and Human Services.

Last week, the PTO again denied a patent extension for the drug, three days after a Virginia district court asked the patent office to reconsider an earlier denial for extension.

See prior IPBiz post:


Thursday, March 25, 2010

What's in your preamble?

Judge Newman's dissent in Michael Marrin begins:

I respectfully dissent, for the court has misunderstood the law of “anticipation” and
has misapplied the rules of claim construction.

What's at issue is the impact of limitations in the preamble:

Precedent establishes that the preamble limits the claims when it distinguishes the
use of the claimed article from the prior art, see Vita-Mix Corp. v. Basic Holding, Inc., 581
F.3d 1317, 1323-24 (Fed. Cir. 2009), as well as when it contains language that is essential
to the description of the invention, see In re Bulloch, 604 F.2d 1362, 1365 (CCPA 1979)
(“The introductory claim language ‘stable color developer concentrate’ is more than a mere
statement of purpose; and that language is essential to particularly point out the invention
defined by the claims.”). The preamble limits the claimed invention if it is “necessary to give
life, meaning, and vitality to the claim.” Pitney Bowes, Inc. v. Hewlett-Packard Co., 182
F.3d 1298, 1305 (Fed. Cir. 1999); see also Catalina Mktg. Int’l, Inc. v. Coolsavings.com,
Inc., 289 F.3d 801, 808 (Fed. Cir. 2002) (same). Our predecessor court articulated the “life,
meaning, and vitality” standard in Kropa v. Robie, 187 F.2d 150, 152 (CCPA 1951),
borrowing this congenial phrase from the Seventh Circuit’s decision in Schram Glass
Manufacturing Co. v. Homer Brooke Glass Co., 249 F. 228, 232-33 (7th Cir. 1918). This
basic rule of claim construction has never been erased, and its utility in various situations
has reinforced its vitality.

And finally

The court’s holding today distorts long-standing rules of claim interpretation, by
requiring that distinctions between the invention and the prior art must be ignored when
they are presented in the introductory clause of the claim. The majority’s claim
construction, and the ruling of anticipation based on elimination of the limitations in the
preamble of the ’448 patent claims, are contrary to law and precedent. I respectfully

Ropes & Gray: copying patents legal and ethical?

A post by Brian Baxter notes Ropes & Gray filed a motion on March 23 to dismiss under FRCP 12(b)(6) the Cold Spring Harbor Lab [CSHL] malpractice suit, with Baxter including the text:

Ropes & Gray argues that copying text from other patents is a perfectly ethcal and legal practice.

The exact text of the R&G brief states:

Significantly, CSHL does not contend that there is anything inherently wrong
with copying text into a patent application. To the contrary, such copying is accepted practice.
See DAVID PRESSMAN, PATENT IT YOURSELF 181 (13th ed. 2008) (sold in the PTO's store and
relied on by many practitioners) ("If you see any prior-art patent whose specification contains
words, descriptions, and/or drawing figures that you can use in your application, feel free to
Patents are not covered by copyright and it's considered perfectly legal and ethical
to make use of them.") (emphasis added).

The text feel free to plagiarize! reminds one of Harvard Business Review's text "Plagiarize with Pride". As to the freedom to plagiarize, IPBiz notes, well, sort of.

An important point to note is that plagiarism and copyright violation are two DIFFERENT things, and here the difference matters a bit. Usually copying might be for the purpose of filling in background: that which is already known and clearly represented as such. [Keep in mind that this sort of copying of background information, without attribution, was found NOT to be acceptable in the plariarism cases at Ohio University.] Separately, the absence of copyright protection is not permission to fail to attribute. Rule 1.63(b)(3) imposes a duty to disclose material information. If what was copied (without attribution) is material to patentability, there is a problem. [In passing, one wonders "what happens" if someone copies material from a patent which is separately copyrighted, eg, a later patent applicant copies a figure in a patent which actually is subject to a prior copyright.]

Copying, without attribution, into a "detailed description of the invention" might be considered something different from filling in background. Representing to an examiner that you invented something that was in fact invented by someone else does not fall under the ambit of "feel free to plagiarize." If a reasonable examiner might have thought it "was" the invention, that might be inequitable conduct, too. Further, if the copying into the "detailed description of the invention" distorted what the CSH invention appeared to be, then arguments based on alternative grounds of rejection might ring hollow.

So far, IPBiz has not seen a discussion of the impact on this case of Rule 1.63 which includes

(a)(4) State that the person making the oath or declaration believes the named inventor or inventors to be the original and first inventor or inventors of the subject matter which is claimed and for which a patent is sought.

(b)(2) State that the person making the oath or declaration has reviewed and understands the contents of the application, including the claims, as amended by any amendment specifically referred to in the oath or declaration; and

(b)(3) State that the person making the oath or declaration acknowledges the duty to disclose to the Office all information known to the person to be material to patentability as defined in § 1.56.

**This raises the point of "who" is supposed to recognize copying and other bad acts? See

NYTimes finally mentions on Dec. 25 role of MBC in Hwang-gate

**As an ironic twist, the authors of the text in the HBR of "plagiarize with pride" drew a line at robust patents:

At page 68 in the April 2004 issue of HBR, one has in the article that became the basis for Hardball:

Plagiarize with pride.

Softball competitors like to think that their bright ideas are sacred. But hardball players know better. They're willing to steal any good idea they say --as long as it isn't nailed down by a robust patent -- and use it for themselves. Ray Kroc didn't invent McDonald's; he took the idea from brothers Dick and Maurice McDonald when he bought their small chain of burger joints. Home Depot founders Arthur Blank and Bernie Marcus didn't invent the first warehouse-outlet hardware chain; they got the "big box" concept from their earlier employer, Handy Dan Home Improvement.

[from the IPBiz post Harvard Business Review article: Plagiarize with Pride in August 2006; see also


In the memo's section on 12(b)(6), there is a point on federal jurisdiction:

See Immunocept, LLC v. Fulbright & Jaworski, LLP, 504 F.3d 1281, 1283
(Fed. Cir. 2007) (concluding that jurisdiction under 28 U.S.C. § 1338 was appropriate where "the
malpractice claim presents a substantial question of patent law . . ."). Nevertheless, the
substantive elements of each cause of action are governed by state law.

although the jurisdiction of the federal district court under 1338 is not challenged. There is a
substantial question of patent law in this case.

The memo does challenge venue for the case in SDNY pursuant to 1391(b)(1) and 1391(b)(2).

The memorandum of law by Philip R. Forlenza of Patterson Belknap is available.

Previous IPBiz post on Ropes & Gray case:

Plagiarism by patent attorney leads to malpractice claim

A piece in jdjournal noted:

Ropes & Gray filed a motion to dismiss on Tuesday, citing the fact it is common practice to copy text from other patents.

“Cold Springs Harbor Laboratory’s lawsuit lacks merit because the determination of the (Patent and Trademark Office) to reject the patent applications is based on the existence of prior work with other respected scientists and not on our firm’s efforts,” the firm said in a statement.

**Nate Raymond in the NYLJ had text:

Hannon said he had been unaware the applications contained text similar to Fire's patent. Cold Spring said laboratory and other records support the conclusion that Hannon had already conceived of the use of short pin RNA before the patent application was filed.

Whether or not Gregory Hannon was unaware of similar TEXT, one finds it somewhat hard to believe that Hannon was unaware of Fire's WORK. As noted above, an inventor has a duty NOT to file claims that merely re-state that which is known:

(a)(4) State that the person making the oath or declaration believes the named inventor or inventors to be the original and first inventor or inventors of the subject matter which is claimed and for which a patent is sought.

Wednesday, March 24, 2010

Global warming fears, founded or unfounded?

US News has a post titled Did Climategate Expose Global Warming Fears as Unfounded? with pro and con positions presented. Joseph Romm arguing the con position began: Big Oil wants us to remain addicted to oil, a major source of carbon pollution.

Romm on sea level rise: "major studies since 2007 put the estimate at 3 to 6 feet."
But see IPBiz post:
"Rising sea level" paper retracted from Nature Geoscience

Romm got a Ph.D. from MIT in 1987, but did not appear to go into traditional physics research. From wikipedia: From 1988 to 1990, Romm worked as Special Assistant for International Security at the Rockefeller Foundation. From 1991 to 1993, he was a researcher at the Rocky Mountain Institute.

STEVE BREEN has a cartoon ridiculing the critics of global warming, with a blackboard captioned "global warming evidence" in the background and two overweight skeptics in the foreground talking about ending a sentence with a preposition and not dotting an i. Interfering with the refereeing process and generating a tribal climate is a bit more than not dotting an i.

Also: http://www.app.com/article/20100326/OPINION04/3270310/Global-warming-cartoon-insulting


Mining for Cold, Hard Facts

Since November, revelations of errors in reports by the United Nations' Intergovernmental Panel on Climate Change have sapped public confidence in climate predictions. The scientists in Antarctica are excavating the ice as a reality check on computer climate models at the heart of today's regulatory debates.


"Unfortunately many of our proxies have significant errors and are prone to be a slave to assumptions," says climatologist John Christy of the University of Alabama in Huntsville, who has often criticized the IPCC. His research, using temperature readings from NOAA and NASA satellites, has undermined arguments that the atmosphere is warming at an unusual rate.

The first samples already reveal intriguing evidence of climate complexity. In ice layers attributed to the Middle Ages, when Europe was unusually warm, the team found surprisingly high levels of carbon black particles, or soot. Levels were found to be twice as high as during the more heavily populated and industrialized 20th century, says geochemist Ross Edwards at the Desert Research Institute in Reno, Nev.

Overlooked in climate projections until recently, carbon black is a powerful warming agent. The soot, scientists speculate, came from giant wildfires that likely occurred in Australia and South America. So much soot could have raised temperatures.

During Ice Age cycles of cooling and warming, temperatures often rose before levels of carbon dioxide changed—sometimes 800 years or so before—according to previous evidence of ice from Antarctica.

"You don't expect the cause to follow the effect," says atmospheric scientist Richard S. Lindzen at the Massachusetts Institute of Technology, a frequent IPCC critic. "That's become an important issue."

En banc CAFC affirms written description; Ariad loses

Ariad, MIT, Whitehead, and Harvard lost. The CAFC decision evokes URochester v. Searle: Ariad brought suit against Lilly on June 25, 2002, the day the ’516 patent issued. AND one finds URochester mentioned:

see LizardTech, Inc. v. Earth Res. Mapping, Inc., 433 F.3d 1373 (Fed. Cir. 2005) (denying rehearing en banc on the question whether a separate written description requirement exists in § 112, first paragraph); Univ. of Rochester v. G.D. Searle & Co., Inc., 375 F.3d 1303 (Fed. Cir. 2004) (same);

Of course, URochester cited Festo for the presence of an independent written descripton requirement, a fact noted in Ariad: more recently in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 736 (2002).

Also of note:

As in any case involving statutory interpretation, we begin with the language of the statute itself. Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).


See United States v. Menasche, 348 U.S. 528, 538-39 (1955) (“It is our duty ‘to give effect, if possible, to every clause and word of a statute.” (quoting Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)).


We have also held that functional claim language can meet the written description requirement when the art has established a correlation between structure and function. See Enzo, 323 F.3d at 964 (quoting 66 Fed. Reg. 1099 (Jan. 5, 2001)). But merely drawing a fence around the outer limits of a purported genus is not an adequate substitute for describing a variety of materials constituting the genus and showing that one has invented a genus and not just a species.


But the hallmark of written description is disclosure. Thus, “possession as shown in the disclosure” is a more complete formulation. Yet whatever the specific articulation, the test requires an objective inquiry into the four corners of the specification from the perspective of a person of ordinary skill in the art. Based on that inquiry, the specification must describe an invention understandable to that skilled artisan and show that the inventor actually invented the invention claimed.

**The CAFC sent a message to universities -->

Ariad complains that the doctrine disadvantages universities to the extent that basic research cannot be patented. But the patent law has always been directed to the “useful Arts,” U.S. Const. art. I, § 8, cl. 8, meaning inventions with a practical use, see Brenner v. Manson, 383 U.S. 519, 532-36 (1966). Much university research relates to basic research, including research into scientific principles and mechanisms of action, see, e.g., Rochester, 358 F.3d 916, and universities may not have the resources or inclination to work out the practical implications of all such research, i.e., finding and identifying compounds able to affect the mechanism discovered. That is no failure of the law’s interpretation, but its intention. Patents are not awarded for academic theories, no matter how groundbreaking or necessary to the later patentable inventions of others. “[A] patent is not a hunting license. It is not a reward for the search, but compensation for its successful conclusion.” Id. at 930 n.10 (quoting Brenner, 383 U.S. at 536). Requiring a written description of the invention limits patent protection to those who actually perform the difficult work of “invention”—that is, conceive of the complete and final invention with all its claimed limitations—and disclose the fruits of that effort to the public.
That research hypotheses do not qualify for patent protection possibly results in some loss of incentive, although Ariad presents no evidence of any discernable impact on the pace of innovation or the number of patents obtained by universities. But claims to research plans also impose costs on downstream research, discouraging later invention. The goal is to get the right balance, and the written description doctrine does so by giving the incentive to actual invention and not “attempt[s] to preempt the future before it has arrived.” Fiers, 984 F.2d at 1171. As this court has repeatedly stated, the purpose of the written description requirement is to “ensure that the scope of the right to exclude, as set forth in the claims, does not overreach the scope of the inventor’s contribution to the field of art as described in the patent specification.” Rochester, 358 F.3d at 920 (quoting Reiffin v. Microsoft Corp., 214 F.3d 1342, 1345 (Fed. Cir. 2000)). It is part of the quid pro quo of the patent grant and ensures that the public receives a meaningful disclosure in exchange for being excluded from practicing an invention for a period of time. Enzo, 323 F.3d at 970.

**Judge Newman separately wrote:

I join the court’s opinion. However, I write separately because the real issue of this case is too important to be submerged in rhetoric. The issue was recognized by Ariad, who complained that the written description requirement “has severe adverse consequences for research universities” because it prevents the patenting of “the type of discoveries that universities make,” that is, it prevents the patenting of basic scientific research. This question is squarely joined in this case, for the subject matter is indeed basic research, which was taken to the patent system before its practical application was demonstrated.

Ariad argues that the patentees made a basic discovery, and are not required to demonstrate its application in order to patent their “pioneering” achievement. Indeed, pioneering inventions can receive broad patents, when shown to have broad scope. The court deems the absence of any specific example of the postulated method of reducing symptoms to be a failure in the description of the invention. The dissenters appear to deem the inclusion of general methods whereby this result could be achieved, to suffice for patentability of the basic scientific concept.


Although the content varies, the threshold in all cases requires a transition from theory to practice, from basic science to its application, from research plan to demonstrated utility.

The written description is the way by which the scientific/technologic information embodied in patented inventions is disseminated to the public, for addition to the body of knowledge and for use in further understanding and advance. See id. at 1357 (“The written description requirement thus satisfies the policy premises of the law, whereby the inventor’s technical/scientific advance is added to the body of knowledge, as consideration for the grant of patent exclusivity.”).

Basic scientific principles are not the subject matter of patents, while their application is the focus of this law of commercial incentive. The role of the patent system is to encourage and enable the practical applications of scientific advances, through investment and commerce.

The practical utility on which commercial value is based is the realm of the patent grant; and in securing this exclusionary right, the patentee is obliged to describe and to enable subject matter commensurate with the scope of the exclusionary right. This is not a question of grammatical nuance of the placement of commas in Section 112; it is a question of the principle and policy of patent systems. The court’s opinion implements these precepts.

Google books does a sikahema

LBE sent a friend a link to a certain book on carbon (available through Google books), emphasizing the text on page 251 of the book, which was available and which LBE had just read. By the time the friend got it, page 251 had been removed from public view, the victim of a Sikahema. All that remained of the interesting page was a bibliographic citation at the end of the book to some references that were cited on page 251, sort of a Cheshire cat's smile.

In this case, the paper version of the book presumably still exists. How will the patent office ever handle "here today gone tomorrow" electronic references?

Meanwhile, in an odd role reversal of the Chinese/Google problem, Chinese writers are complaining about Google Books:

"I sent text messages, e-mails and called Google Books' negotiator several times during the Spring Festival, but I haven't received a reply," he said.

Zhang said whether or not Google leaves China, the association would not stop fighting for the rights of writers.

"Google Books has not only got troubles in China. My organization is in touch with copyright societies in Australia and Europe to exchange ideas," Zhang said.
[from China Daily: Google silent on copyright dispute]

**Quoted on Criminal Minds on 24 March 2010: “Better to write for oneself and have no public than write for the public and have no self.” [Cyril Connolly ]

Monday, March 22, 2010

Philly Inquirer talks about Michael Mann and ClimateGate

Back on February 4, Katie Couric's CBS News showed part of the famous "Hide the Decline" clip satirizing Michael Mann of Penn State. On March 22, Faye Flam of the Philly Inquirer follows up on what has happened to Mann.

Flam included words from David Goodstein: "Fraud is something that occurs in published works - not in unpublished e-mails," said David Goodstein, a former provost of Caltech and author of On Fact and Fraud: Cautionary Tales From the Front Lines of Science.

Eric Campbell is quoted: "Someone says something is the truth, and then a bunch of other smart people say it's not . . . that's how science works."

One can find many definitions of fraud on the internet. Text on a website of Aaron Larson notes:

In simple terms, fraud occurs when somebody makes a misrepresentation of material fact, in order to obtain action or forebearance by another person, where the other person relies upon the misrepresentation and suffers injury as a result of the act or forebearance taken in reliance upon the misrepresentation. In most fraud cases, there is active misrepresentation by the defendant. In some, the misrepresentation occurs through the defendant's silence on a key issue.

The issue is a misrepresentation of a material fact.

From chestofbooks on misrepresentation [in the area of contracts]:

The elements of innocent misrepresentation are substantially the same as those of fraud except that the party who makes such false statement is acting in good faith.1 The theory entertained in some jurisdictions that a positive statement which is made without disclaiming personal knowledge amounts to an assertion of personal knowledge and hence amounts to fraud, no matter with what good faith such statement is made, extends the boundaries of fraud so as to include practically all operative misrepresentation.2

Within these definitions, the actions of Jan Hendrik Schon might be deemed to qualify as fraud, even though they were published in journals such as Science and Nature.

On a different academic scandal, Professor sacked for academic plagiarism

Senator Leahy at politico on patent reform

In a post on Politico titled Patent reform: Good for innovation, Senator Leahy writes:

Innovation has been impeded in recent years by a patent system that too often grants low-quality patents with overly broad claims, which have been used by opportunists to extort royalty fees from manufacturers — particularly in the high-tech sector. The problem of low-quality patents is exacerbated by a litigation system that yields unpredictable and often overcompensating damages determinations, which divert investment and resources from innovation.


In a string of important decisions, the Supreme Court has moved in the direction of improving patent quality, the efficiency of determining patent validity and remedies.

These rulings reflect a growing sense that questionable patents are too easily obtained and too difficult to challenge. But some overdue reforms cannot be addressed through the courts: Congress must act.


This new legislation contains a combination of provisions that will improve patent quality; will provide a more efficient mechanism for administratively challenging the validity of patents; and will provide more discipline and certainty in damages calculations and willfulness determinations. The patent system relies on high-quality patents. Patents with overly broad claims or inventions that are obvious and not truly novel impede innovation and unfairly cast doubt on the validity of those that are high-quality.


The bipartisan agreement includes three common-sense and noncontroversial improvements. First, it includes the creation of a first-window post-grant process, which allows challenges to weed out patents that should not have been issued.

Second, it allows third parties to comment on pending applications and shifts the patent system to a first-inventor-to-file model.

Third, the bill provides the resources that the U.S. Patent and Trademark Office needs to both work through its backlog of applications and spend enough time on each to ensure that only high-quality patents are granted.


Congress is closer than ever to moving patent-reform legislation through the Senate. The bipartisan agreement is a good model of what we can do when Democrats and Republicans work together to strengthen our economy and create jobs without spending tax dollars. The Senate should consider these vital patent-law improvements as soon as possible.

Of the last point, Senator Leahy is advancing the bipartisanship on S.515 as a poster child to ameliorate some of the damage of the prounounced partisanship that followed health reform. Of course, patent reform has NOT been partisan, and more directly tracks IT vs. pharma interests.

Senator Leahy continues the old theme of "low quality" patents popularized by the Quillen/Webster "97% patent grant rate" story, which story has now been discredited. Sort of like "waving the red flag" in the post-Civil War era, but that dog won't hunt anymore. Further, referring to post-grant review as noncontroversial is a bit silly in view of the publications against post-grant review, and the opposition to PGR of various patent client groups. On filing issues, Senator Leahy does not mention that the rest of the world is simply "first to file" and the trick of "first inventor to file" gets us a new bureaucracy of "derivation proceedings".

Of --provides the resources --, S.515 does nothing to prevent "fee diversion" from the USPTO. Allowing the USPTO to charge more, when Congress diverts the fees elsewhere, is what truly is a tax on innovation.

Of the damages issue, of interest to the IT folks, Senator Leahy neglected to mention the remark of Mark Isakowitz of the Coalition for Patent Fairness that S.515 "actually is worse than current law."

**Of the false analysis underlying the arguments of low quality patents:

PATENT GRANT RATES AT THE UNITED STATES PATENT AND TRADEMARK OFFICE, 4 CHI.-KENT J. INTELL. PROP. 108 : In recent proposals for patent reform made by the Federal Trade Commission and by the National Academy of Sciences, there has been discussion of the possibility that the grant rate of patents by the United States Patent and Trademark Office [USPTO] is high compared to that of other industrialized countries, including that of Japan and those of Europe. This discussion began with papers of Quillen and Webster that suggested that the grant rate might be as high as 97% and more reasonably is at least 85%. Although the
actual grant rate at the USPTO is typically in the range 62% to 68%, Quillen and Webster suggested the
higher numbers based on an analysis of continuing applications (including continuations, divisionals, and
continuations-in-part). The present paper suggests that the analysis of Quillen and Webster is flawed both
legally and methodologically (...)


85 JPTOS 335, 86 JPTOS 568, 88 JPTOS 239, 88 JPTOS 726

**On opposition to post-grant review

from Intellectual Property Today in October 2007


What's really going to happen with S.515's version of patent reform



-->Comment to Politico-->

Of Senator Leahy's text -- Innovation has been impeded in recent years by a patent system that too often grants low-quality patents with overly broad claims, which have been used by opportunists to extort royalty fees from manufacturers — particularly in the high-tech sector. The problem of low-quality patents is exacerbated by a litigation system that yields unpredictable and often overcompensating damages determinations, which divert investment and resources from
innovation. --

one recalls that innovation refers to a change in the way we live. An example is the invention of xerography by Chester Carlson, which when commercially implemented, changed the way in which we live. One recalls that already-established companies, including IBM and Eastman Kodak, were offered the chance to have Carlson's patents, but declined. Ironically, in the 1970's, IBM would try to design around Carlson's various inventions.

Whether innovation is being impeded has less to do with the status of currently-existent large companies than with the climate facing less-established inventors who truly have game-changing ideas. Senator Leahy's S.515 is more about stabilizing the interests of the status quo than about advancing the interests of true innovators.

As such, S.515 does not really advance innovation. Further, in not tackling fee diversion, S.515 represents a continued tax on innovation.

**Followup on 24 March 10: Senator Leahy's piece has engendered all of about 8 comments on politico, mostly negative. To say we have a "dead horse" here is understatement. The senators are just going through the motions.

“Some of the certitude surrounding intellectual property is breaking down"

An article in the Harvard Crimson titled Ad Board Grapples with Plagiarism ends with a quote attributed to Dean of Undergraduate Education Jay M. Harris:

“It’s a moment to really revisit the way in which we are instructing students about respect for intellectual property, Some of the certitude surrounding intellectual property is breaking down, and scholarship cannot flourish in a world in which integrity is absent or diminished.”

The article is about plagiarism by students at Harvard, although arguably Harvard has had more problems with plagiarism by professors (eg, Laurence Tribe, Doris Kearns-Goodwin; the dichotomy in treatment between students/profs at Harvard was addressed by the Crimson long ago). The article suggests that punishments should be tailored to the crime, and should be required reading for the folks at University of Virginia.

From an earlier IPBiz post about the situation at Virginia:

Although Sam Leven spends much time saying intent IS an element of an Honor Offense, his conclusion on intent is: "Because the Intent Clause is ambiguous in many ways, however, adding intent to the definition of plagiarism would solve multiple problems." The CURRENT UVa definition of plagiarism does NOT include an element of intent. In an upcoming paper on academic plagiarism, researchers survey definitions of plagiarism at universities on four continents, and find that NONE include intent as an element of plagiarism. In dealing with the PUNISHMENT phase AFTER plagiarism is found, intent IS a factor. Because UVa chooses to have only one punishment (expulsion) for an Honor Code violation, UVa would tinker with the definition of the "crime." Apart from the general silliness of this approach against a background where other universities have a fairly uniform definition of plagiarism, the proposed UVa change would foster the concept of "inadvertent plagiarism" as exemplified in the Poshard matter at SIU.

University of Virginia to change definition of plagiarism?



Melody Y. Hu; Eric P. Newcome, John “Jay” L. Ellison, David J. Malan

Sunday, March 21, 2010

"Say hello to YouTube"

After a story about the "invention" of undergarments for dogs on March 22, one KYW commentator praised a thong, and another said of complimenting a thong on a dog, "say hello to YouTube."

One has to watch out for Letterman too. A WABC news story on flooding in Bound Brook, New Jersey (after the rains on 13 March 2010) had people in boats in the foreground, but then a person appeared in the background, walking through the inches high water, much to the delight of Dave.

"Cold Case" episode alludes to junk science

In the episode "Flashover" of "Cold Case" on 21 March 2010, a chemical engineer (character Dr. Goran Petrovic played by Elya Baskin) refers to the work of a Philly fire marshall ("Ray Crawford" played by Glenn Morshower) as "junk science." The ChemE further states that most fire marshalls only have a high school education.
The defensiveness of the Crawford character to his mis-analysis evoked some of the rationalizations about the "97% patent grant rate" saga.

The episode features music by Pink Floyd. Looks like the character Nick Vera might be gonzo.

James Lewis gives "lawyerly" advice to the journal Science

James Lewis concludes a piece in MND with a warning for the journal Science:

If Science wants to save its last shred of credibility it would be far better off keeping completely quiet on global warming. That’s what their lawyers would advise them.

Science magazine is still trying to whistle past the biggest scientific graveyard in history. Nine trillion dollars can buy a lot of scientists, apparently. But the jig is up. The more they try to prop up this fraud, the more careers will be ruined.

Recall the journal Science helped bring us the Jan Hendrik Schon fraud:




Predicting before, or analyzing after?

On 14 March 2010, "60 Minutes" had a piece on a new book by Michael Lewis:

His new book, called "The Big Short: Inside the Doomsday Machine," comes out later this week and it explains how some of Wall Street's finest minds managed to destroy $1.75 trillion of wealth in the subprime mortgage markets.

As to forecasters of the doom, "60 Minutes" featured the work of a physician turned hedge fund guy:

The first one to see that something was seriously amiss in the burgeoning subprime mortgage market was Dr. Michael Burry, a California physician with only one good eye.


Beginning in 2003, he turned to something that no one else in America was doing: reading and analyzing the pools of risky subprime mortgage loans that Wall Street had been buying up and bundling into highly profitable mortgage backed securities, which they were selling to investors around the world.


"There was essentially crappier mortgages being put into these pools. And it didn't seem investors seemed to care and it didn't seem the ratings agencies seemed to care."

Asked if he thinks many people read these prospectuses, Burry said, "I think the lawyers that put them together to an extent maybe."


In effect, Lewis writes, Burry was doing the first real analysis of the creditworthiness of the subprime borrowers and the structure of the complicated Wall Street mortgage securities; the kind of work that was supposed to have been done by bond rating agencies like Standard & Poor's and Moody's, so that investors could accurately judge their risks.

On CuriousCapitalist, Stephen Gandel writes:

In the acknowledgments of the book, Lewis praises a report written by Anna Katherine Barnett-Hart as the best piece of research written on CDOs, ever. By now you may have seen the WSJ story about her. Turns out she is not some high-paid hedge fund analyst, but at the time of writing the report a college senior just trying to earn her degree. Her thesis looks at why so many CDOs performed worse than expected.

The thesis is dated March 19, 2009. [See Michael Lewis’s ‘The Big Short’? Read the Harvard Thesis Instead!]

Bringing back the old favors change to the new?

Finance yahoo (by way of TheStreet) talks about brand loyalty and innovation.

The setup was WalMart bringing back some brands that it had previously removed from its shelves:

Earlier this month, Wal-Mart returned Clorox's (CLX) Glad bags and Pactiv's (PTV) Hefty bags to its shelves after cutting them in February and carrying only S.C. Johnson and Sons' Ziploc bags and its Great Value in-house brand. Wal-Mart says the Hefty and Glad bags and hundreds of other items were taken out of the mix as part of a remodeling effort, but the retailer replaced them when it became clear it wasn't losing only a $4.99 single-item sale, but entire shopping excursions by people seeking specific brands.

Somehow "innovation", which is about CHANGING the way we live, arose:

"The whole idea of efficient assortment and giving more shelf space to the brands shoppers are looking for the most tends to improve visibility of existing and new items," says Jennifer Chelune, a Procter & Gamble spokeswoman. "It favors companies that innovate."

IPBiz wonders about the logic of "how" giving shelf-space to well-known, existent brands "favors" companies that innovate? The action might seem to favor maintenance of the status quo.

CBS Sunday Morning recycles tulip story on March 21

CBS Sunday Morning recycled a story about Mr. Daniels' tulips in Orange County, California. "Everything has a limited lifespan," unless it can be repeated on different outlets on CBS News.

From CBS Nightly News, more than a week earlier on March 11:

Spring is just 10 days away. The crocuses are popping up in the usual places. And the tulips? They're blooming in one very unusual place where a grower has a way of tricking nature, as CBS News correspondent John Blackstone reports.

In Southern California, palm trees grow tall and cactus gardens thrive - but the heat makes it a terrible place for tulips…

"We just can't grow 'em here," said gardener Mary Hovland. "Except he's the exception to the rule I guess."

Somehow Wayne Daniels grows tulips in Southern California

Posner plagiarism fallout reaches Facebook; lawyerly evasion?

In a piece titled Posner Plagiarism Flap Disturbs Garden's Peace, JANIE CAMPBELL describes how the Posner "Miami Babylon" plagiarism flap entered the Miami Beach Botanic Gardens and thence to Facebook:

The real sparks came after the reading when Lera asked Posner "Are we still going out for a drink to discuss this?" Posner exploded. His plastic face turned red: "Yeah, I'm a thieving c***sucker." "Yes, you are a thieving c***sucker," Lera replied. And then an elderly lady came running towards them: "This is a botanical garden. It's a peaceful place. Can you please take it some place else?"

[Full quote appears on miaminewtimes ]

The MiamiNewTimes piece carries a response from Posner, which begins:

You, as a New Times reporter, sent me the note for a comment only after you posted the account on your blog. You posted a second hand account, as Frank Owen was not even there. You gave me no prior opportunity to comment on its accuracy.

The response notes Posner is an attorney:

I reminded her I'm an attorney - and publicly posted "Gerald Posner shamelessly stole from my book." [sic?] At other times he called me a "douchebag" and "pussy" (the latter for defriending me from Facebook, which I didn't do, but which he did last night to me and Trisha after my reading at Botanical Gardens).

And, finally, one arrives at the issue of inadvertent (unintentional] plagiarism:

"I've already apologized twice," I [Posner] responded.

"It's not enough because you haven't admitted it's intentional plagiarism." [Lera Gavin]

"It's not. It was unintentional." [Posner]

"It can't be." [Gavin]

IPBiz notes that plagiarism is copying without attribution. In the age of Glenn Poshard, great significance has been placed on the element of intent. However, if it is apparent that there is COPYING, there had to be an "intent to copy." Words do not migrate from one text to another on their own. One gets to the "without attribution" part. In the world of copyright, attribution, in the absence of permission, does not avoid copyright infringement. In the world of plagiarism, "forgetting" to cite the source, for whatever reason, shouldn't be an escape hatch.

**In passing, one notes that the Posner incident had verbiage related to the concepts of theft and stealing. In recent discussion in the patent world, some have placed significance on the number of patent infringement cases that don't assert "theft" or even copying. IPBiz notes that intent is NOT an element of patent infringement, although damages can be ENHANCED if infringement is willful.

**from the Miami Herald:

"He resorted to lawyerly evasion," Owen says. "All this bulls--- about faulty methodology."

Earlier this week, Posner, who holds a law degree, told The Associated Press that a flawed research methodology caused him to put passages from Clubland in Miami Babylon without proper credit. Last month, Posner quit as chief investigative reporter of The Daily Beast after a Slate.com writer noted several instances in which Posner used material from Miami Herald articles.

**Earlier IPBiz post


Saturday, March 20, 2010

Ed Wallace on Sikes' Toyota Prius

ED WALLACE, in a post titled How Toyota Can Hurt the Media said:

Moreover, the evidence didn't bear out Sikes' story when his car's braking system was examined. No, the wear patterns showed that only moderate braking had been applied intermittently. The damage that would have been done had both of his feet been "firmly planted on the brake pedal in an attempt to stop his car" was nowhere to be found.

However, the NHTSA had said: "We observed there was very little left of the car's brakes."
[see http://ipbiz.blogspot.com/2010/03/california-highway-patrol-to-weigh-on.html]
Further, the inboard front brake pads were completely gone and the outboard pads were down to about two millimeters to 2.5 millimeters, the NHTSA said, and the rotors were damaged. IPBiz queries: what can be inferred of a "wear pattern" when the inboard brake pads are completely gone?

At the bottom of the Wallace post:

Ed Wallace has received the Gerald R. Loeb Award for business journalism, given by the Anderson School of Business at UCLA, and is a member of the American Historical Association. He reviews new cars every Friday morning at 7:15 on Fox Four's Good Day, frequently contributes articles to BusinessWeek Online and hosts the top-rated talk show, Wheels, 8:00 to 1:00 Saturdays on 570 KLIF.

Separately, Ryan Papaserge wrote:

The discovery that gas pedals, when pressed, stuck to floor mats on some Toyota models led to the eventual recall of a combined 4.8 million Toyota and Lexus (a division of Toyota) vehicles between November 2009 and January 2010, according to a March 15 CNN.com article.


In a press conference following the incident, Sikes said that while his vehicle was one of the models recalled by the automaker, he was refused service at a Toyota dealership.

The timing of the incident certainly seems suspicious.

Concerning the recall

Recall Date
OCT 05, 2009

Model Affected




Potential Units Affected

ODOM’S TENNESSEE PRIDE SAUSAGE, INC. loses trademark appeal at CAFC

Odom's had a problem getting all its issues lined up before the TTAB:

board’s procedures allow it to deem the pleadings to have been amended to include
unpled issues under certain circumstances, but the language is permissive and does
not require the board to do so. Trademark Trial and Appeal Board Manual of
Procedures § 528.07(b) (“[T]he Board may deem the pleadings to have been amended,
by agreement of the parties, to allege the matter.” (emphasis added)).

Bob Park screws up in What's New on Global Technical

Bob Park's 19 March 2010 WN has a discussion of fake drug detectors being bought by the Mexican government. Earlier, one had fake explosive detectors [look on YouTube for the ADE 651: British Security Fraud Sells 50 Million Pounds Sterling of Fake Bomb Detectors To Iraq ]

Bob Park derived his post from the New York Times (as is noted in the WN post), which NYT story by Marc Lacey had reported:

Mexican military officials say the black plastic wands, known as the GT 200 and manufactured by the British company Global Technical Ltd., are widely used nationwide at checkpoints to search for contraband inside vehicles as well as to canvass neighborhoods in drug hotspots for drug and weapons stash houses.

As of April 20, 2009, the army had purchased 521 of the GT 200 detectors for just over $20,000 apiece, for a total cost of more than $10 million, according to Mexican government documents. Police agencies across Mexico have made additional purchases, records show.

“We’ve had success with it,” Capt. Jesús Héctor Larios Salazar, an officer with the Mexican Army’s antidrug unit in Culiacán, said recently. “It works with molecules. It functions with the energy of the body.”

But the British government, which is considering legislation to stop exports of the device, notified Mexico and other countries around the world last month that it may not work. That followed reports in The New York Times and on BBC that a similar product used in Iraq and Afghanistan, the ADE 651 manufactured by ATSC Ltd., another British company, was considered ineffective.

Unfortunately, Bob got some of the facts wrong. Although the New York Times identified the British company as Global Technical Ltd., Bob wrote: Global Technologies Ltd and posed the question: Could Global Technologies and ATSC be the same company, switching names and locations to avoid exposure. Separately, although Bob wrote about the ADE 650, the NY Times and You Tube are talking about the ADE 651.

But Park's error illustrates a point about copying and plagiarism. Generally, in plagiarism, one has a complaint that someone copied accurate information from someone else without giving proper attribution. The recipient of the information gets TRUE information, but is confused about source. One has a different situation when INACCURATE information is conveyed. That's a lot worse.

Here, there REALLY is a Global Technologies Ltd. and there is even a "Global Technologies" right in Bridgewater, NJ on Chimney Rock Road
[Of Chimney Rock, see online reputation management]

On a separate point, Bob Park has yet to comment on the use of the term "voodoo science" in ClimateGate.
Ironic use by IPCC's Pachauri of term "voodoo science"
: 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.]

On a separate technical note, observe US patent 6,067,167 , ILS sensors for drug detection within vehicles.

**UPDATE on 12 June 2010

Bob Park talked about the matter in his 11 June WN and correctly referred to to the device as an ADE 651, rather than the incorrect ADE 650, perhaps showing him to be more adept at copying in June than in March. The mistake about "Global Technologies" remains. Park's silence on Pachauri's "voodoo science" remains.

F&R on patent reform 2010; S.515

Fish & Richardson has been maintaining a "patent reform" update. As of March 20, the last entry is that of March 4, which states:

A press release from Senate Judiciary Committee Chair Leahy confirmed agreement on a draft Manager's Amendment, which is to be substituted for the version of S.515 approved by the Committee last year. The draft is the result of work by Democratic Senators Leahy, Kaufman and Schumer, and Republican Senators Hatch, Kyl and Sessions. The press release, including background sections summarizing changes from the previous version of the bill and present law, is here. The draft Amendment is here.

Although interest groups will continue to lobby for their views, the bipartisan support for this draft suggests it may move ahead soon to a vote by the full Senate without significant, further changes.

What isn't mentioned is that the Coalition for Patent Fairness opposed the as-amended version of S.515, AND problems lurk in the House:

Representative Zoe Lofgren, D-San Jose, has pushed big tech's version of patent reform on the House Judiciary committee for her constituents and donors. And it appears that she's got the chairman of House Judicary, John Conyers, D-Mich., and the ranking Republican, Lamar Smith, R-Texas, on board. The three released a statement about the Senate bill saying: "We believe a number of changes are essential before it could be considered by the House."

What's really going to happen with S.515's version of patent reform

Moreover, S.515 does not do anything about fee diversion. Thus, although there is USPTO fee-setting authority in S.515, the ability to "set" fees is meaningless unless there is a provision allowing the USPTO to "keep" the fees it sets, rather than having the money from the fees diverted elsewhere.

Not looking good for The Medicines Company; Angiomax

TopNews reported on The Medicines Company:

On March 19, 2010, the United States Patent and Trademark Office once again ended up denying the firm's request to extend the life of the patent it currently holds, that protects its foremost medicine, the blood thinner Angiomax.

Since 2001, Medicines has been unsuccessfully trying to undo an error, that happened when it marginally missed a 60-day deadline in placing a request for the patent extension. As the patent office refused to accept a late application, the patent is now scheduled to expire on the coming Tuesday [March 23], instead of in late 2014, as it was originally suppose to be.

The USPTO seemingly ignored the intent of a court order of March 16: "Claude M. Hilton of the United States District Court in Alexandria, Va., ordered the office to ensure that the patent is still in force while it is conducting its reconsideration." The trick was that reconsideration was rather quick [March 16 to March 19]. Now, if the USPTO could handle patent applications that quickly!

See prior IPBiz post:

Lobbying efforts over Angiomax patent extension