Wednesday, June 30, 2010

No discussion of Kagan/Dershowitz Harvard matter?

Curiously, for all the discussion of Kagan in the Senate, there has been little focus on her actions as Dean during the Deshowitz and Tribe plagiarism matters.

There is one recent post titled Did Kagan Cover for Dershowitz's Plagiarism? .

See also
Traction for Tribe/Kagan matter?

In a world wherein the Vice President was caught plagiarizing in law school, one suspects there will continue to be "no traction" on these Kagan events. The Allison Routman saga illustrates that students, not professors, will be victims of the charges.

Tuesday, June 29, 2010

Is Led Zeppelin "dazed and confused" over plagiarism charge?

The New York Post notes: Jake Holmes claims that he obtained a copyright for his song “Dazed and Confused” in 1967, two years before Led Zeppelin recorded their own “Dazed and Confused.” The two songs are not musically identical but do sound very similar.

2/3 of published medical findings refuted within a few years


To read the factoids David Freedman rattles off in his book Wrong is terrifying. He begins by writing that about two-thirds of the findings published in the top medical journals are refuted within a few years. It gets worse. As much as 90 percent of physicians' medical knowledge has been found to be substantially or completely wrong. In fact, there is a one in 12 chance that a doctor's diagnosis will be so wrong that it causes the patient significant harm. And it's not just medicine. Economists have found that all studies published in economics journals are likely to be wrong.

Yes, when economists make statements about patent law, one can safely disregard the economists.

And, no, Gary Boone did not invent the integrated circuit.

Monday, June 28, 2010

On foreseeability

Related to probability based on past performance, note of the Yankee's come from behind win over the Dodgers on 27 June 2010:

Torre brought in left-hander George Sherrill, whose second pitch was driven into the left-field pavilion by Cano for his 15th homer.

“I was just looking for a pitch to hit,” said Cano, a lefty who didn’t know he was 0 for 11 against Sherrill. “I came through at the right time.”

Separately, note Mariano Rivera pitched two innings and got the win.

In the aftermath of "Citizens United"

The 5-4 vote on Citizens United has prompted an opposing response from Congress in the form of the DISCLOSE bill:

The bill, the DISCLOSE Act (Democracy Is Strengthened by Casting Light On Spending in Elections), won narrow approval in the U.S. House last Thursday [June 24, 2010] on a vote of 219-206, mostly along party lines.

One recalls that it was Justice Kennedy who authored the opinion in Citizens United, and it was Justice Kennedy who authored the opinion of the court in Bilski. Somewhere in between, during the "state of the union," President Obama explicitly attacked the decision in Citizens United.

See previous IPBiz posts

Relevant legal cases on stem cells in June 2010

californiastemcellreport had a post on 27 June 2010 which included text:

The case involved possible use in federally funded research of embryos donated some years back. The feds said no because they were given under conditions that do not meet today's ethical tests, although the donations met the standards of the day, which actually was only a decade or two ago. The Globe called the NIH action a “major blow.”

As of June 27, californiastemcellreport had not mentioned the case in the Court of Appeals for the DC Circuit, SHERLEY v. SEBELIUS.

A comment was sent to californiastemcellreport on June 28, 2010:

It might be helpful if you posted a link to the Boston Globe material.

Separately, you might want to mention the decision of the Court of Appeals for the DC Circuit on June 25, 2010 in the case SHERLEY v. SEBELIUS relating to the Obama order and the the Dickey-Wicker Amendment.

The link is

See also “Illegal and unethical” including:

Among other things, the lawsuit alleges that the Obama Administration’s policy violates the Dickey/Wicker Amendment, which prohibits the use of federal funds to destroy human embryos for research.


“We conclude the two Doctors have standing… The Dickey-Wicker Amendment clearly limits the funding of research involving human embryos. Because the Act can plausibly be interpreted to limit research involving ESCs [embryonic stem cells], the Doctors’ interest in preventing the NIH from funding such research is not inconsistent with the purposes of the Amendment,” said the appellate court decision reversing Judge Lamberth.

**Comment to californiastemcellreport on 2 July 2010:

Although there is a suggestion that the wording involved was appropriate for the earlier time, a later comment by Collins of NIH suggested that the problem was one of ethics, not time:

This use of exculpatory language (when someone is asked to give up or waive any rights they may have) was inconsistent with the basic ethical principle of voluntary consent.

as mentioned in USAToday, link

Within the USA Today piece titled NIH chief Collins nixes 47 new stem cell lines

Verlinsky said then, "without federal support, no one will use (the cells) for research." His lab has several hundred more lines which also appear ineligible under the NIH decision.

One notes the issue is whether these stem cell lines may be used in federally-supported research projects; there is no law prohibiting them from being used in privately-supported projects or any non-federally supported project.

Bilksi opinion written by Justice Kennedy

The Bilski decision is out, with the opinion of the court written by Justice Kennedy
comprising only sixteen pages and concluding:

Today, the Court once again declines to impose limita-
tions on the Patent Act that are inconsistent with the Act’s
. The patent application here can be rejected under
our precedents on the unpatentability of abstract ideas.
The Court, therefore, need not define further what consti-
tutes a patentable “process,” beyond pointing to the defini-
tion of that term provided in §100(b) and looking to the
guideposts in Benson, Flook, and Diehr.

And nothing in today’s opinion should be read as endors-
ing interpretations of §101 that the Court of Appeals for
the Federal Circuit has used in the past. See, e.g., State
Street, 149 F. 3d, at 1373; AT&T Corp., 172 F. 3d, at 1357.
It may be that the Court of Appeals thought it needed to
make the machine-or-transformation test exclusive pre-
cisely because its case law had not adequately identified
less extreme means of restricting business method pat-
ents, including (but not limited to) application of our
opinions in Benson, Flook, and Diehr. In disapproving an
exclusive machine-or-transformation test
, we by no means
foreclose the Federal Circuit’s development of other limit-
ing criteria that further the purposes of the Patent Act
and are not inconsistent with its text.

Justice Stevens with whom JUSTICE GINSBURG,
in the judgment but wrote a text far lengthier than 16 pages.

The Kennedy text is NARROW in scope and focusses on
simply "abstract idea NOT patentable"-->

Even though petitioners’ application is not categorically
outside of §101 under the two broad and atextual ap-
proaches the Court rejects today, that does not mean it is
a “process” under §101. Petitioners seek to patent both
the concept of hedging risk and the application of that
concept to energy markets. App. 19–20. Rather than
adopting categorical rules that might have wide-ranging
and unforeseen impacts
, the Court resolves this case
narrowly on the basis of this Court’s decisions in Benson,
Flook, and Diehr, which show that petitioners’ claims are
not patentable processes because they are attempts to
patent abstract ideas. Indeed, all members of the Court
agree that the patent application at issue here falls outside of §101
because it claims an abstract idea

Many commentators have noted that the Stevens opinion
looks as if it might have been written as intended as a majority opinion,
which would have ended the patentability of business method
patents. Stevens only got four votes, which votes coincided with
the "liberal" wing of the court. Curiously, Stevens appeared to have
been targeting Scalia as the fifth vote:

Bilski may be best remembered for what almost happened, but did not. There were four votes for holding that business methods are categorically unpatentable. Justice Stevens was the apparent leader of the effort to get a fifth vote, writing an extensive historical treatise that probably was designed to attract Justice Scalia’s vote. But Justice Scalia’s vote never came. So Justice Stevens’ opinion, in his last day on the Court, was a concurrence in the judgment and not a pathbreaking majority opinion. [by Stan Panikowski, patent and appellate litigation partner at DLA Piper LLP in its San Diego, appearing on the IAM blog]

If Stevens was reaching out to Scalia, one suspects Kennedy's vote was not on the table, even early in the game. One wonders how many times the combination of Stevens, Ginsburg, Breyer and Sotomayor ( Souter ) with Scalia has shown up in 5-4 votes?

On bad predictions about Bilski:

Bilski: from Lemley to Mullin to the internet

Lemley said via e-mail: "And the fact of disagreement plus
the fact of a Justice Stevens opinion makes it more likely
that it will include a significant limit on patentable subject matter."

Commentators such as Lemley and Mullin are simply out of touch
with the influence of Justice Kennedy in the current
Supreme Court.


The power in being the swing vote

Of a followup by Mullin:

The Court’s liberal wing—Stevens, along with justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Stotomayor—favored a ban on business method patents; the conservatives—Chief Justice John Roberts, joined by justices Samuel Alito, Antonin Scalia, and Clarence Thomas—joined the moderate, and frequent swing voter, Justice Anthony Kennedy, who wanted to leave open the possibility of patent grants on business methods.

Observers were hard-pressed to explain the split. "It could just be a coincidence," suggests Lemley. Says Dragseth: "I don't know why they ended up on opposite sides of this thing.”

**In passing, of a different case on June 28 wherein Kennedy sided with the liberal wing (not the conservative wing), note the decision in UCal Hastings vs. the Christian Legal Society wherein Justice Ginsburg was joined by justices John Paul Stevens, Anthony Kennedy, Stephen Breyer and Sonia Sotomayor. The Christian Legal Society required its officers and voting members to subscribe to basic Christian beliefs, but Justice Ginsburg wrote:

“Compliance with Hastings’ all-comers policy, we conclude, is a reasonable, viewpoint-neutral condition on access to the student-organization forum. In requiring CLS -- in common with all other student organizations -- to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations.”

***From a comment to a guest post on Patently-O [Why Bilski Benefits Startup Companies]

Also, you should step up in the world and get away from Lemley and Samuelson. Neither has a clue.

Sunday, June 27, 2010

CBS Sunday Morning on June 27, 2010: February 14 revisited?

The cover story on "CBS Sunday Morning on June 27 was on "what attracts people," with chemistry mentioned in Osgood's setup. "The Right Chemistry," the cover story, sadly was re-cycled from an earlier show, which, not surprisingly, was broadcast on February 14. Can you sent ventral tegmental and dopamine?

One of the few "new" items on the June 27, 2010 episode was the news re-cap. June 27 is day 69 of the Gulf Coast oil spill. Riots in Toronto over the G20 meeting [Also: Police arrest more than 400 at Toronto summit ]. Hearings on Elena Kagan begin on June 28.

The story on love stories at 1600 Pennsylvania Avenue was re-cycled, also from February 14. [Cross-reference: Hidden Power by Kati Marton including discussion of Edith Wilson.]

There was a story on a seduction school in Paris. Veronique charges $7500 for 9 months of instruction.

The story on the Bergmans was re-cycled from March 7, 2010.

Rita Braver repeated a story ("Just Married") on wedding announcements in the New York Times. 250-350 a week apply for inclusion. "You sound like a college admissions officer." Wedding announcements at the NYT started at the beginning in 1851. Timothy Noah of Slate was quoted and mentioned "general ickiness." The story on Azoulay "vows" was covered by CBS Sunday Morning in 2001.

Mo did "Mo's Night Out," which included an allusion to "American Gigolo". The head of the Papan Agency was interviewed. What makes a good escort: lose your ego. There was an allusion to "walkers." The drink of escorts: two shots of vodka straight up. Sandra Costa is the escorted one. [One of her sons was named Drano?]

The story on Susan Boyle was also re-cycled.

Bill Geist talked about adopting a dog.

For reference, the transcript of the February 14 broadcast of "CBS Sunday Morning" is available.

The final scene was from Skylands in New Jersey at the botanical park. Note that Osgood did NOT say "New Jersey" but did say Garden State.

***On more popular things on tv, note Deadliest Catch

***On talking heads, Sunday Talking Heads: June 27, 2010

***In passing, note the pictures of Bill Clinton and Mick Jagger at the World Cup, complete with captions including:

The two men tried to settle the dispute by debating which of them better represented the spirit of their generation, but the argument ended in a stalemate. So they switched to arm-wrestling, and by the end, they were inseparable.

Saturday, June 26, 2010

Bilski: from Lemley to Mullin to the internet

Joe Mullin writes of the Supreme Court on Bilski:

Whichever side Stevens is on, the long delay likely means there is disagreement among the justices, says Stanford Law professor Mark Lemley.

"If it was 9-0, it would be out by now. So there is disagreement—probably not on whether Bilski can get a patent, but on the test to be employed," Lemley said via e-mail. "And the fact of disagreement plus the fact of a Justice Stevens opinion makes it more likely that it will include a significant limit on patentable subject matter."

For past recycling of Lemley by Mullin, see

Elsewhere, PatentHawk (Gary Odom) reminds us of Stevens' first case:

The first case Justice Stevens authored was Parker v. Flook, 437 U.S. 584 (1978). Flook tried to patent use of a known algorithm, applied to computerized updating of alarm limits. The claimed method tripped over § 101 as not "eligible for patent protection," as being merely "the identification of a limited category of useful, though conventional, post-solution applications of such a formula."

**In discussing Supreme Court decisions expected on June 28, 2010, Reuters did allude to Bilksi, although Bilski was not first on the list:

In eagerly awaited rulings, the nation's highest court is expected to decide the constitutionality of a national board that polices auditors of public companies and whether gun rights extend to every state and city in the nation.

The nine justices could also decide a dispute closely watched by some software, biotechnology and financial companies on whether business methods can be patented if they involve a machine or transformation [Bilski].

Of the case featured by Reuters:

At issue is whether the Public Company Accounting Oversight Board (PCAOB) violated the U.S. Constitution's separation of powers principle, because board members are not appointed by the president.

At stake in the case is how corporate America is audited and a key provision of the Sarbanes-Oxley corporate reform law adopted in 2002 in response to the Enron and WorldCom accounting scandals.

If the Supreme Court strikes down the board, the ruling will put pressure on Congress to revisit the law, opening it up for potential changes in the reporting duties of companies.

***Of Lemley on Bilski, from IPWatchdog:

Professor Mark Lemley of Stanford Law School, in a group of 20 law and business professors, presented a brief amici curiae to the Supreme Court in the Bilski case critical of the “machine-or-transformation” test. “A rule that freezes the definition of patentable subject matter in time will hobble new areas of innovation.” In the amici brief, they offer a simpler test for patentability. “Where an idea is claimed as applied, it is eligible for patentability, but if it is claimed merely in the abstract it is not.”

***After the Bilski decision, Heidi Ledford wrote in the journal Nature:

"It's not the blockbuster opinion that some people expected," says Mark Lemley, a law professor at Stanford University in California.

Nevertheless, Lemley agrees with the spirit of the decision: "This is not an area in which you can formulate clear tests that divide patentable from unpatentable subject matter," he says. "You just have to look at individual cases."

Rochelle Dreyfuss gave more substantive comments:

Rochelle Dreyfuss, a law professor at New York University, notes that there is no indication of what constitutes an 'advanced' diagnostic medicine technique.

"On the one hand, it sounds like they don't want to rule out patents on medical diagnostics," she says. "But they don't just say 'diagnostics'. They say 'advanced diagnostics'. What is an advanced diagnostic?"

Thursday, June 24, 2010

Dodgers lose but does baseball need replays?

Juan Rivera throws behind the runner Russell Martin on second following a single and gets the last out of a 2-1 game in the top of the ninth in a game won by the Angels over the Dodgers on 24 June 2010.

But was Martin really out? TV replays showed Martin had gotten back to the bag, and Torre went to argue, but it was just a formality.

Not exactly the loss of a perfect game, but still a bad call. Are bad calls just "part of the game," or does baseball need appeals?
Patent law has the BPAI and the CAFC. Imagine a world wherein the patent examiner's call was the final out.

**Another blown call [ Leyland says Cederstrom admits missing call ] -->

Gary Cederstrom acknowledged he erred when he called a third strike on Johnny Damon that ended the Atlanta Braves’ 4-3 win over the Tigers on Saturday night with the bases loaded.

“It was a sweeping pitch, going away from Damon,” Cederstrom told a pool reporter from the Detroit Free Press after the game. “It looked good coming in, then broke late.”

Tigers manager Jim Leyland said on Sunday that he called Cederstrom after the game and the umpire said, “‘I kicked it. I knew it right away.”’

Replays showed the full-count pitch from Peter Moylan was outside. A walk would have tied the game.

“My timing was fast,” Cederstrom said. “Whenever you have fast timing as an umpire, you usually get in trouble.”

Said Leyland: “The pitch wasn’t even close.” Holding his hands about a foot apart, he said, “It was that much outside.”

Cederstrom’s gaffe follows the missed call by umpire Jim Joyce that cost Detroit’s Armando Galarraga(notes) a perfect game on June 2. Joyce later apologized to Galarraga.

And, in the world of soccer, FIFA ignoring mistakes, writing sickeningly glossed history

Anger, fear and paranoia abound as the blatantly horrible referee mistakes pile up like the massive amounts of cash being generated by the 2010 World Cup. The two most recent incidents -- Frank Lampard's disregarded goal against Germany and Carlos Tevez's miles offside opening score against Mexico -- were so bad that they go beyond mere errors in judgment and have some considering more sinister puppeteering at work.

And the justification of that is growing. Already resolute in their anti-technology/instant replay stubbornness, FIFA is now trying to ensure there is no evidence against referee rulings inside the stadiums, as there was when Tevez's offside goal was shown on Soccer City's big screens, which caused Mexican players to intensify their protests.

From the AP:
FIFA spokesman Nicolas Maingot said Monday that replaying the incident was “a clear mistake.”

“This will be corrected and we will have a closer look into that,” Maingot told a news conference Monday [28 June 2010]. “We will work on this and be a bit more, I would say, tight on this for the games to be played.”
Maingot said the screens were used to broadcast a FIFA “infotainment program” to fans before the match and could be used to replay some match action.

***Of the soccer ball itself, from

While the Jabulani has been universally panned, several players have spoken positively about it: Kaka approved of the contact it offers, Petr Cech liked the way it felt, and before he used it to hit the crossbar twice with one shot, Frank Lampard said it was "true to hit". And you'll never guess which German sportswear company those players are sponsored by...

***UPDATE on 26 July 2010. Yankees victimized by TWO bad calls, but win anyway:

With Mark Teixeira(notes) on first and one out, Rodriguez hit a sinking liner that appeared to touch the ground before going into the glove of left fielder Trevor Crowe. Teixeira saw it that way and was pointing to the ground and saying the ball had been trapped as he stood on second base. Meals, however, ruled it a catch and when second baseman Jason Donald took Crowe’s throw and tagged Teixeira, the inning was over.

Yankees manager Joe Girardi argued, but the call stood. TV replays showed the ball appeared to hit the turf.


The Yankees also came within inches of scoring in the fifth but got nothing. Posada drew a one-out walk and Granderson followed with a drive off the top of the wall in right, just missing a homer. Right fielder Choo grabbed the ball on the rebound and threw to second, where Granderson was called out by second-base ump Dale Scott. Replays showed Granderson was safe, though nobody argued.

Source: Granderson’s 2-run HR helps Yanks top Indians 3-2

The Supreme Court, Asian carp, and the Great Lakes

From a story titled Single Asian carp found 6 miles from Lake Michigan :

In Michigan, officials renewed their demand to shut down two shipping locks on the Chicago waterways that could provide a path to Lake Michigan. The U.S. Supreme Court has twice rejected the state's request to order the locks closed, but state Attorney General Mike Cox said he was considering more legal action.

"Responsibility for this potential economic and ecological disaster rests solely with President Obama," Cox said. "He must take action immediately by ordering the locks closed and producing an emergency plan to stop Asian carp from entering Lake Michigan."

For humor, see Durbin asks Obama to appoint carp czar

Are "patent quality" studies real, or merely voodoo science?

One could almost hear that famous line Now there you go again directed to Joff Wild at IAM as to the text about findings from a IAM/Thomson Reuters benchmarking survey that show issued US patents are thought to be of lower quality than those granted by the EPO and the JPO,

"Back in the day" one recalls the series of articles by Quillen and Webster making similar assertions. Those assertions, however, were based on bad math and bad legal analysis. So now they get re-cycled? Is this selling magazines or legitimate analysis? There was recently a distinct IAM post suggesting that only 5% of the entire universe of USPTO patents are of very high quality, but when the study author Rahul Jindal was queried on methodology, the cupboard was bare.

Also within the IAM post:

Other points of note include:

• The overall allowance rate at the USPTO has gone up by three percentage points over recent months.

• There are record numbers of US patents being issued, but the number of rejections is also at an all-time high.

• The rate of interviews between examiners and applicants has increased by 60% since the beginning of 2010.

Earlier IAM post linked to Kappos interview post:

What else could the USPTO Director have said?

IPBiz post relevant to recent patent quality assertions at IAM:

The illusory concept of a "very high quality patent"
relating to
Micron sold high quality patents to its NPE buyer; there was relatively little junk involved

Of Quillen and Webster:

from 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
, and that recent work by Clarke, which places the corrected grant rate at less
than 75%, is more accurate.

Note also:

In the
present situation pertaining to patent grant rates, the impact of the first paper by Quillen and Webster,
which asserted a 97% patent grant rate, extended later in time than the second paper by Quillen and
Webster which withdrew the 97% patent grant rate and posited (among other numbers) an 85% patent grant
rate. Thus, the Harvard Law Review15and the chief patent counsel of Intel16 referred to the conclusions of
the first Quillen and Webster paper in the year 2003, after the conclusions had been modified in 2002.17

See separately 4 CHI.-KENT J. INTELL. PROP. 186

John R. Allison and Emerson H. Tiller, The Business Method Patent Myth, 18 Berkeley Tech. L.J. 987,
at footnote 139 of QWII: "adjusting assumptions from previous study to correct a probable flaw, but still
producing an estimated allowance rate much higher than reported, and higher than in Japan and Germany."

Stem cells used to create replacement cornea

In a report titled Stem cells reverse blindness caused by burns, AP reports on an online publication in the New England Journal of Medicine by a team including Graziella Pellegrini of the University of Modena's Center for Regenerative Medicine in Italy wherein (for patients with damaged corneas):

researchers took a small number of stem cells from a patient's healthy eye, multiplied them in the lab and placed them into the burned eye, where they were able to grow new corneal tissue to replace what had been damaged. Since the stem cells are from their own bodies, the patients do not need to take anti-rejection drugs.

This work uses adult stem cells, not stem cells through SCNT,

No mention of this yet on californiastemcellreport.

However, one can find on californiastemreport allusions to CIRM backtracking on SCNT:

Incident at the Marriott: Stem Cell Agency Bars Public From Meeting
which included text from Don Gibbons:

The workshop this week was not on egg donation, it was on nuclear transfer research [SCNT] and whether or not CIRM should continue to consider funding projects in that field or whether other technologies had made the pursuit of this difficult science no longer necessary.

[See also ]

Budget Contretemps: CIRM Takes Another Run at Spending Plan
including a comment reference to the Bagley-Keene Open Meeting Act,

Wednesday, June 23, 2010

Google rules in YouTube case brought by Viacom

from wsjonline:

But Judge [Louis] Stanton [in SDNY] said YouTube's "general" awareness of copyright infringement was not the same as "knowledge of specific and identifiable infringements of individual items." And when YouTube received "specific notice that a particular item infringed a copyright, they swiftly removed it," he said, adding that all of the disputed video clips involved in the lawsuit were off the site.

Google's general counsel, Kent Walker, called the decision "a full vindication across the board" that "resolved all the pending issues."

Widow of Owen Hart invokes right of publicity against WWE

AP reports: The widow of a World Wrestling Entertainment performer who died in a televised 1999 stunt filed a federal lawsuit Tuesday against the Connecticut-based company and its leaders, including Republican U.S. Senate candidate Linda McMahon. Martha Hart asserts that the WWE has used images "of her late husband, Owen Hart, in at least 37 videos and other materials without her knowledge and permission, and despite her objections to his likeness being associated with the pro-wrestling company."

Tuesday, June 22, 2010

Cyberlockers: Hollywood's next boogeyman?

A Reuters story notes: "Cyberlockers now represent the preferred method by which consumers are enjoying pirated content," Paramount Pictures chief operating officer Fred Huntsberry said June 21, 2010.

Of some humor--> "Sometimes these sites look better than the legitimate sites. That's the irony."

And, the comments to this story are funnier than the post itself.

**In passing, potential problems with cyberlockers have been known for some time.
From Why are cyberlockers suddenly such a problem, Lord Mandelson?

The particular objection that Mandelson seems to have to "cyberlockers" (can't we just say "cloud storage"?) is that someone can share a private URL with someone else, and nobody on the outside is any the wiser that the file exchange has taken place. (...)
Search engines aren't allowed into those "cyberlockers" to index their content; it's as private as robots.txt can make it.

Patent reform 2010: selling an unsellable position?

Snippets of the McCrystal/Rolling Stone interview are appearing [ US general McChrystal recalled amid Rolling Stone gaffe ] Of a meeting between McCrystal and Obama:

Another aide refers to a key Oval Office meeting with the president a year ago.

The aide says it was "a 10-minute photo op", adding: "Obama clearly didn't know anything about him, who he was... he didn't seem very engaged. The boss was pretty disappointed."

Gen McChrystal himself says: "I found that time painful. I was selling an unsellable position."

Another aide refers to national security adviser, James Jones, as a "clown stuck in 1985".

Poor plagiarist Joe Biden even comes up for some flack:

Gen McChrystal also appears to joke in response to a question about the vice-president.

"Are you asking about Vice-President Biden?" McChrystal asks. 'Who's that?"

An aide then says: "Biden? Did you say: Bite Me?"

As to patent reform 2010, one wonders if the reformers are selling an unsellable position. Ironically, the IT people (and the Coalition for Patent Fairness), in digging in their heels in the House and putting the brakes on S.515, have assisted small inventors and the like in putting a hold on the reform. For all the consensus said to be associated with S.515, we have ended up in an odd place.

Is S.515 the reform of the future, that always will be?

**Of clowns stuck in the past, recall reformers talking about a 97% patent grant rate, that didn't exist at the time, and certainly doesn't exist now.

**The article (The Runaway General) claims McChrystal has seized control of the war "by never taking his eye off the real enemy: The wimps in the White House."

**McChrystal out; Petraeus picked for Afghanistan:

If not insubordination, the remarks — as well as even sharper commentary about Obama and his White House from several in McChrystal's inner circle — were at the least an extraordinary challenge from a military leader.

Of the Obama remarks:

"I welcome debate among my team, but I won't tolerate division," Obama said. He had delivered that same message — that there must be no more backbiting — to his full war cabinet in a Situation Room session, said a senior administration official.


The final commentary on Face the Nation (Schieffer) on 27 June 2010 referred to McChrystal's statements as a sophomoric rant.
Separately, Jan Crawford was fairly aggressive toward the Senator from Vermont (Leahy) on issues in the Kagan matter.
One response from Leahy was that Bork was unqualified (one might compare the past jobs of Bork to those of Kagan).

Monday, June 21, 2010

“If somebody’s paying $150,000 for a law school degree, you don’t want to call them a loser at the end"

Within a New York Times article about grade inflation at law schools, one has the text:

“If somebody’s paying $150,000 for a law school degree, you don’t want to call them a loser at the end,” says Stuart Rojstaczer, a former physics professor at Duke who now studies grade inflation. “So you artificially call every student a success.”

The issue was about Loyola Law School Los Angeles:

The school is retroactively inflating its grades, tacking on 0.333 to every grade recorded in the last few years. The goal is to make its students look more attractive in a competitive job market.

As a general matter, many law schools are getting complaints from recent, unemployed graduates.

Loyola LA is not the only culprit: In the last two years, at least 10 law schools have deliberately changed their grading systems to make them more lenient. These include law schools like New York University and Georgetown, as well as Golden Gate University and Tulane University

The University of Chicago Law School had a numeric grading system, with a median grade around 77. The NYT article notes:
law schools have long employed clean, crisp, bell-shaped grading curves. While at UofC, LBE wrote an article for the Phoenix noting that applying a Gaussian distribution to students whose skill set was not distributed in a Gaussian mode would produce grading irregularities. The UofC entering class of 1993, coming in after US News rated UofC #2 to Yale, was very peculiar, and the median LSAT was 48 (highest score possible then). The correlation factor of LSAT to first year grades for the previous class was R2= 0.4, and LBE suspects the class of 93's was worse. Another statistical anomaly concerned the number of women who made law review in the second year (1992), which result produced some changes in "journals at Chicago."

Of course, adding some number to everyone's grade is not the solution.


Rick Frenkel, (former) Director, Intellectual Property at Cisco Systems, Inc. and law school grad of Loyola Marymount and registered patent attorney 47578, is the "patent troll tracker."

from wikipedia: U.S. News & World Report ranked Loyola Law School 56th[5] in its "America's Best Graduate Schools 2011" feature.

CAFC affirms BPAI obviousness in In re Kite

The case on appeal from the BPAI, IN RE PETER KITE AND DAVID HATTON , merited only a token per curiam affirmance at the CAFC.

Looking at the underlying BPAI case, one sees another obviousness rejection:

When assessing the obviousness of a claimed invention, it can be
important to identify a reason that would have prompted a person of
ordinary skill in the relevant field to combine the elements in the way the
claimed new invention does. KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727,
1741 (2007). Evidence of a suggestion, teaching, or motivation to combine
may flow from the prior art references themselves, the knowledge of one of
ordinary skill in the art, or, in some cases, from the nature of the problem to
be solved. In re Dembiczak, 175 F.3d 994, 999 (Fed. Cir. 1999). It is
improper to base an obviousness conclusion on impermissible hindsight. Id.

When assessing the obviousness of a claim to a structure already
known in the prior art that is altered by the mere substitution of one element
for another known in the field, the combination must do more than yield a
predictable result. KSR, 127 S. Ct. at 1740. The test for obviousness is what
the combined teachings of the references would have suggested to one of
ordinary skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981).
Only a reasonable expectation that the beneficial result will be achieved is
necessary to show obviousness. In re Longi, 759 F.2d 887, 897 (Fed. Cir.

On unexpected results:

A prima facie case of obviousness may be rebutted by a showing of
unexpected results. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
Objective evidence of nonobviousness must be commensurate in scope with
the claims which the evidence is offered to support. The showing of
unexpected results must be reviewed to see if the results occur over the
entire claimed range. In re Clemens, 622 F.2d 1029, 1036 (CCPA 1980).
Evidence of unexpected results must be compared to the closest prior art.
In re Burckel, 592 F.2d 1175, 1179 (CCPA 1979).

The totality of the evidence (i.e., evidence of unexpected results and
evidence of obviousness) is weighed to determine whether the claimed
invention by a preponderance of the evidence would have been obvious.
Oetiker, 977 F.2d at 1445. A strong prima facie case of obviousness may
outweigh evidence of secondary considerations, such as unexpected results,
in determining whether a prima facie case of obviousness exists. Newell
Cos., Inc. v. Kenney Mfg. Co., 864 F.2d 757, 768-69 (Fed. Cir. 1988).

In re Best is cited:

Where the claimed and prior art products are identical or substantially
identical, the PTO can require an applicant to prove that the prior art
products do not necessarily or inherently possess the characteristics of the
claimed product. In re Best, 562 F.2d 1252, 1255 (CCPA 1977).

Of the losing arguments:

Appellants’ arguments attempt to attack the elements of the prima
facie case by arguing that there is no motivation for the combination, a
reasonable expectation of success is lacking and Raad is non-analogous art.
For the reasons below we are unpersuaded by Appellants’ arguments.

Of substitutions:

Stated differently, the substitution of Raad’s tetrasodium EDTA for
Root’s disodium EDTA is nothing more than the predictable use of prior art
elements (known chelating agents for inhibiting bacterial growth) according
to their established functions (i.e., inhibiting bacterial growth). KSR, 127 S.
Ct. at 1740. Accordingly, we find Appellants’ motivation argument to be
unpersuasive of reversible error.

Of evidence of unexpected results:

Appellants’ attach to the Appeal Brief Exhibits A1, A2, and C from
the Specification as showing that using tetrasodium EDTA produces
unexpectedly good bactericidal and destructive (or inhibitory) effects against
bacteria and yeasts, respectively (App. Br. 5). However, Exhibit’s A1, A2,
and C compare the bacterial effect (MBC) of tetrasodium EDTA to other
EDTAs (i.e., cupric disodium EDTA, magnesium disodium EDTA, ferric-
sodium salt EDTA), none of which is the disodium EDTA used in Root.
Moreover, Appellants have not explained whether the cupric disodium
EDTA, magnesium disodium EDTA or ferric-sodium salt EDTA are
equivalent to or behave similarly to the disodium EDTA in Root. In other
words, Appellants’ Exhibits A1, A2, and C do not compare the claimed
invention using tetrasodium EDTA to the closest prior art, Root.
592 F.2d at 1179.

Footnote 4:

In order for a showing of “unexpected results” to be probative evidence of
non-obviousness, an applicant must establish that the results would not have
been expected by one skilled in the art. In re Freeman, 474 F.2d 1318, 1324
(CCPA 1973). Here, the Appellants have also failed to demonstrate that the
higher MBC value for disodium EDTA would have been unexpected.


Appeal 2009-0407
Application 10/313,844

MICHAEL P. COLAIANNI, Administrative Patent Judges.

**But see a recent BPAI case:


Appellant has shown that the Examiner erred by failing to establish a
prima facie case of obviousness of representative independent claim 1 on
appeal based upon Bauer in view of "what is well known in the art."

Appeal 2009-010849
Application 10/601,406

Self-plagiarism in B-school essays

From a businessweek blog:

The original post about this new service generated a lively debate about whether it’s ethical to “plagiarize” your own essays, or recycle them for multiple applications. I think the consensus was that that it was, and the folks at Turnitin say there are safeguards in their system to eliminate “self-matches” and not flag them as possible plagiarism. There were also questions about whether schools would tell applicants they’ll be running their application essays through the Turnitin service before they’re submitted, or if this would be done on a stealth basis. I think the consensus on that one was that schools should flag their use of Turnitin to applicants.

As to re-cycling things, CBS does it all the time. One can look up past stories and compare them to present ones.

However, the Wendler matter at SIU shows that self-plagiarism is not always harmless.

As to application essays, recall the "burning pajamas" matter.

***UPDATE. USAToday adds some interesting detail to Penn State problem:

One of the topics for [the Penn State B-school] application essays referenced the business school's idea of "principled leadership." Some applicants apparently Googled the term and came up with an article about the concept in a publication of a business school association. Thirty applicants submitted essays that either lifted many passages straight from the article or substantially paraphrased the article without appropriate attribution.

IPBiz notes this IS the "burning pajamas" matter!

Sunday, June 20, 2010

Television and the movie Rebecca (1940)

At the 2 hour point in the movie Rebecca (released April 12, 1940), as the players enter the office of Dr. Baker (Leo G. Carroll), there is a sign outside describing a "Radio and Television Exhibition" at Temple Hall (Free Prizes, Monday).

On November 2, 1936, the BBC opened the world's first regular high-definition television service, from Alexandra Palace.

On September 1, 1939, the BBC Television Service was suspended, about 20 minutes after the conclusion of a Mickey Mouse cartoon (Mickey's Gala Premiere), due to the imminent outbreak of the Second World War, amid fears that the VHF transmissions would act as perfect guidance beams for enemy bombers attempting to locate central London.

On June 7, 1946, BBC Television broadcasts (405 lines) resume after the war. One of the first programmes shown is the Mickey Mouse cartoon from 1939

***BBC info from wikipedia

***Film locations for Rebecca

Big Sur, California, USA

Palos Verdes, California, USA

Point Lobos State Reserve, California, USA

Selznick International Studios - 9336 Washington Blvd., Culver City, California, USA

The CAA of the DOA

On June 20, 2010, "60 Minutes" recycled its story of September 27, 2009
titled How Celebs Make A Living After Death Within the story was the text:

"We're a business agent for about 250 entertainment, sports, music and historical clients. But most of those are deceased."

"Dead," Kroft noted. "They're working stiffs."

"I guess you could say that," Roesler replied.

You could call Roesler's business a William Morris agency for the departed, the CAA of the DOA.

The "right of publicity" can survive death, just as "60 Minutes" episodes can survive their first publication.

The lead story, Assault on Pelindaba, was first reported a year and half ago. The other story on Bernie Madoff was a re-broadcast.

**OF CAA, from wikipedia-->

CAA agents employed by the William Morris Agency — Mike Rosenfeld, Michael Ovitz, Ron Meyer, William Haber and Rowland Perkins — met over dinner one night in 1975[2] after they discovered that they all had the same idea in mind: creating an agency of their own. Before they could obtain adequate financing for their new venture, they were fired.[3]

By early 1975, Creative Artists Agency was in business, with a $35 line of credit and a $21,000 bank loan, in a small rented office outfitted with card tables and folding chairs. The five agents had only two cars among them, and their wives took turns as agency receptionist. Within about a week, according to one industry insider, they had sold their first three packages, a game show called 'Rhyme and Reason', the 'Rich Little Show' and the 'Jackson Five Show'.

John T. 'Jack' Downey

AP has a story titled Lessons from failed Cold War spy mission in China detailing the story related to STAROMA.

One of the captured CIA operatives was John Downey, a graduate of Choate and Yale, who would go on to Harvard Law after his release from Chinese prisons. He became Chief Administrative Judge for Juvenile Matters in Connecticut.



IP themes on "CBS Sunday Morning" on June 20, 2010

The "CBS Sunday Morning" cover story on 20 June 2010 concerned Ken Feinberg, who is now in charge of the $20 billion BP fund for the Gulf oil spill. An overall theme in the story was how Feinberg, a lawyer, evolved from dealing primarily with other lawyers (Agent Orange matter) to dealing with people directly (9/11 matter), which is relevant to patent lawyers who have to deal directly with inventors. The biggest IP theme (of several) on June 20 related to the invention of the zipper [see below]. The most resonant piece on June 20 was "Jan's Story," relating to Alzheimers [see below].

Of the BP matter and Feinberg, he was quoted as saying disbursing money was an honor, not a burden. His "matter of fact" style was noted. Feinberg was stated to be "More than a learned attorney." No politician would ever be trusted with the job given to Feinberg. He started in this area with "Agent Orange", and negotiated a settlement in six weeks. You have to be a better chess player.

Of 9/11 negotiations-- He was hit with: "You have an arrogance about you that is difficult to believe." Congress mandated that earnings of the victims be considered in determining the size of the award. Money is economic value not moral worth. Seven billion dollars was disbursed. One victim could not sign the form because she was so paralyzed with grief.

Next, Feinberg did the Virginia Tech matter. "Nowhere are you assured of being safe."

Next, Geithner went to "the go to guy" Ken Feinberg about the banker's pay following the financial payout.

Feinberg promises Gulf payouts in 30 days, but, concurrently, he is re-examining some claims from 9/11.

The "Sunday Morning Almanac" covered June 20, 1947 was about Las Vegas killing of Bugsy Siegel. Yes the 1991 movie was mentioned. The Flamingo Hotel had cost overrruns which led to the murder. The Flamingo Hotel did succeed.

Feibusch & Son of New York City was featured in a Father's Day themed story. Eddie Feibusch escaped the Nazis and opened his store in 1941. The threat of Velcro was discussed.

"Sunday Morning" gave the date of 1917 as when the zipper was perfected after 70 years of failure.

Wikipedia illustrates the complexity of naming "one date" for the perfection of the invention of the zipper, and alludes to the trademark issues in the name "zipper":

Gideon Sundbäck, a Swedish-born engineer, joined the company, then called the Automatic Hook and Eye Company, in Hoboken, in 1906. At that time the company's product, still based on hooks and eyes, was called the "C-curity Fastener". Sundbäck developed an improved version of the C-curity, called the "Plako", but it too had a strong tendency to pull apart, and wasn't any more successful than the previous versions. Sundbäck finally solved the pulling-apart problem in 1913, with his invention of the first version not based on the hook-and-eye principle, the "Hookless Fastener No. 1".

That version, however, had a tendency to wear out quickly, and again was not a commercial success. Finally, in 1914 Sundbäck developed a version based on interlocking teeth, the "Hookless No. 2", which was the modern metal zipper in all its essentials.

In this fastener each tooth is punched to have a dimple on its bottom and a nib or conical projection on its top. The nib atop one tooth engages in the matching dimple in the bottom of the tooth that follows it on the other side as the two strips of teeth are brought together through the two Y channels of the slider. The teeth are crimped tightly to a strong fabric cord that is the selvage edge of the cloth tape that attaches the zipper to the garment, with the teeth on one side offset by half a tooth's height from those on the other side's tape. They are held so tightly to the cord and tape that once meshed there is not enough play to let them pull apart - - a tooth cannot rise up off the nib below it enough to break free, and its nib on top cannot drop out of the dimple in the tooth above it. The classic zipper was made of a brass alloy, a metal that has low friction and is long-wearing.
Sundbäck's invention of the Hookless No. 2 took place while he was working for the Hookless Fastener Company in Meadville, which had previously been set up to manufacture the Hookless No. 1. Depending on which improvement one wants to consider to constitute the "invention" of the zipper, the zipper was invented either in Meadville, Chicago, or one of the other previously mentioned cities. The B.F. Goodrich Company coined the name Zipper in 1923 for the line of rubber overshoes that it made using the fastener, adopting the term to refer to the speed with which the new overshoes could be fastened or unfastened. The name slowly came to be associated with the fastener itself, and eventually acquired generic status.

Other Father's Day stories included Bill Gates and Ziggy Marley [when Bob Marley died, the family had to "buy back" the rights to Bob's music (copyright issue)]. The IP issues in the Gates' story are legion.

Of the movie feature:
The movie "Psycho" turned 50 this year. There was mention of a "BP feeling" about globs of clutter floating around in your head. Three lesser publicized movies were discussed including "Winters Bone" referenced as the "movie of the year."

Jan Carlton [Petersen], of CNN, ABC, and CBS Sunday Morning, was discussed in the context of Alzheimer's disease. Dr. James Galvin was quoted. Although most victims are in their 70-80's, about 200,000 cases before age 50. There is no known cure and no known cause. There are 5.3 million Alzheimers victims overall. Alheimer's related deaths up 46.1%.. [The correct spelling of Jan's maiden name is Chorlton, so her maiden name was Jan Chorlton.]

Wikipedia notes:

Jan’s Story is a book by Barry Petersen in regards to his wife's battle with the early onset of Alzheimer's disease. The book is to be published in June, 2010.
In this book, CBS News Correspondent Barry Petersen recounts his struggle as he takes on the role of caregiver for his wife, Jan. In 2005, at the age of only 55, Jan was diagnosed with Early Onset Alzheimer’s Disease, a life-changing moment that led to their utter exhaustion and devastation, as together they fought against the insidious illness.

Jan's Story
Love lost to the long goodbye of Alzheimer's

I feel having read it that I do know Barry better now, and understand better how vulnerable we all are to the most terrible kind of identity theft."
~ Charles Osgood, anchor, CBS News Sunday Morning

**Of comments below, note that it was the commenter who removed the first comment, not IPBiz.

Generally,as to the zipper point, contemplate who finally won the "integrated circuit" interference and why, and whether the reasoning was sound.

Saturday, June 19, 2010

IP issues at San Francisco CIRM meeting?

Two items caught the eye of IPBiz in the californiastemcell post:
Incident at the Marriott: Stem Cell Agency Bars Public From Meeting . [IPBiz: is this a 21st century Ox-Box incident?]

Prop. 71, approved by 59 percent of voters in 2004, exempted CIRM from some aspects of the state's sunshine laws. It is not clear whether those exemptions apply in this case. But the state Constitution (section three) was also changed by voters in 2004 to guarantee the right of the public to access. That change was approved by a much larger vote (89 percent) than Prop. 71. It is our understanding that if conflicts exist in such cases, the measure with the larger vote takes precedence.

The session on egg procurement had been switched to an earlier morning time slot and already had taken place, we were told. Our printed agenda was outdated. Further, we would not be granted entrance to the meeting underway. Why? It was closed to the public because conferees maintain concerns over protecting their intellectual property. Questions remain. What intellectual property concerns could there be over oocyte procurement policy?
The workshop this week was not on egg donation, it was on nuclear transfer research and whether or not CIRM should continue to consider funding projects in that field or whether other technologies had made the pursuit of this difficult science no longer necessary.
As for the need to protect intellectual property, proprietary or unpublished information, that claim is simply poppycock. CIRM has not disclosed how many persons were in the closed-door meeting, but it is impossible to keep information secret when even more than a handful of persons is present, and most likely not even then.

[IPBiz post 6003]

Parrots running amok in Idaho?

A piece by KTVB titled Failed congressional candidate dogged by new allegation of plagiarism provides an unintentionally humorous look at plagiarism in politics, and yes it does contain the line Ward parrots what Democrat John Kerry believes

On a more serious side, the text:

Boise State University English professor Mike Markel reviewed the Ward and Obama speeches, at KTVB's request.
"Although you cannot ever definitively prove plagiarism from internal evidence alone, I would say it is very likely that whoever wrote the second speech was working with a copy of the first speech before him or her," Dr. Markel said.

would seem to be wrong. One can prove plagiarism (which is simply copying without attribution) by means of side-by-side comparison.

Previous iPBiz posts related to parrots include [Crovitz is a UChicago grad and ought to know better.]

Lex Luther challenges Howard Berman on patent reform, HR 1908
including a picture of a "real parrot" [Lex Luther] and the line:

Someone reportedly heard Luther mutter under his breath that Berman's slavish devotion to the advancement of patent interests only of the IT industry was giving "parrots a bad name."

"Business is a tough sport. Business Change is even tougher."

An article on NPE's at answerguy ends with:

Business is a tough sport. Business Change is even tougher. This is how the game is played.

One could also say, invention is hard, and innovation (changing the way we live), is even harder.

Waiting for Godot?

On June 17, IPWatchDog talked about the wait for a Supreme Court decision in Bilski.

Which is going to happen first:

--> Supreme Court Bilski decision
--> Passage of S.515, or any patent reform package in Congress
--> Rahul Jindal reveals why his determination of a "very high quality patent"
has any significant meaning

Hint: only one of these "has" to happen.

**IPWatchDog also notes that the Supreme Court Speeches page is incomplete. In a Ginsburg speech at Bolton Landing in June 2009:

The press tends to focus on splits with the Chief Justice, and Justices Scalia, Kennedy, Thomas, and Alito ranged on one side; Justices Stevens, Souter, Ginsburg, and Breyer on the other. It is not always so. True, nine of the 17 5-4 decisions already released shaped up that way.4 But in five of the 5-4’s, Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer composed the majority.

which proves that in 13 of the 17 5-4 votes, Kennedy was the key vote. That's 76%.

**Of Bilski, the blog patlit writes:

In Bilski, Elena Kagan -- President Obama's new Supreme Court nominee -- wrote the amicus brief opposing certiorari and the merits brief, arguing that petitioner's business method cannot be patented. Kagan largely relies on a contention that methods of organizing human activity only are unpatentable under 35 U.S.C. 101; and on the point that Bilski's claim is too abstract to be patent-eligible. Perhaps most importantly, Kagan strongly urges the Court to issue a narrow ruling. As she puts it,
"The [Circuit] court’s decision ... properly leaves questions not presented by petitioners’ application, such as the circumstances under which computer software may be patented, for resolution in future cases ... petitioners’ patent application involves none of the frontier technologies on which the petition dwells ... they are essentially irrelevant to the proper disposition of this case ... Further review is not warranted."
In other words, if Chien's prediction holds and the Supreme Court heeds the counsel of their friends in the government, those hoping for a sweeping pronouncement on computer software patentability will likely be disappointed.


Moreover, "In every single Supreme Court patent case ... in which the US government filed an amicus brief except for one, the Court sided with the government." In practical terms, this means that one can predict the outcome of a case just by looking at the government's brief.

If there's one, then one can't absolutely predict.

[IPBiz post 6000]

Why Adam Wheeler wanted in at Harvard, Yale, Stanford, etc.

A post by Eve Tahmincioglu titled Ivy League degree no surefire path to success includes the text

What’s the allure? Statistics show you’ll make more money. “The typical Ivy League bachelor’s graduate earns about 27 percent more early in their career, and about 47 percent more by the time he or she is about 40, than the typical bachelor’s graduate from all U.S. schools,” according to compensation website

which suggests that an Ivy League degree DOES offer better chances of success.

Nevertheless the TITLE of Eve's piece reminded one of Ben Stein's recent commentary on "CBS Sunday Morning." On 16 May 2010, Ben Stein, who is a graduate of Columbia and Yale, gave an opinion piece about how not getting into the college of one's choice won't really affect your later life. [See Ben Stein's wrong on "not getting into college of your choice" ]

IPBiz wondered "where" Eve went to school. This proved a bit tricky. Here's what you learn about Eve at MSNBC:

Eve Tahmincioglu writes the weekly "Your Career" column for, aiming to tell daily grinders how to make work life work for them by sleuthing out career-ladder secrets rung by rung.

Tahmincioglu has written about workplace issues for nearly 20 years for a host of daily newspapers from New York to Florida, covering everything from auto plant strikes to office dress codes to the explosion of overtime.

Her book, “From the Sandbox to the Corner Office,” offers insights from more than 50 CEOs on how life’s screwups and stern parents are really lessons in disguise.

She’s a regular contributor to the New York Times and BusinessWeek’s SmallBiz magazine, and her blog,, offers another place to hash over matters of life and its toils. Despite her dwindling free time, she is forever hopeful work/life balance is more than a cliché.

At a blog:

Eve Tahmincioglu is a journalist with more than 20 years experience covering labor, career, and workplace issues, in addition to a broad spectrum of business news for the New York Times, BusinessWeek, Time, Salon, Kiplinger's and a host of other pubications. She's an award-winning columnist who writes a weekly column called "Your Career" for and author of "From the Sandbox to the Corner Office."

Oh, well, returning to the Wheeler piece, one finds Eve wrote:

Getting that status, however, is harder than ever. According to the Harvard Crimson, the school accepted a record-low 6.9 percent of applicants this year even though the number of applications actually went up 5 percent — topping 30,000 for the first time in the school’s history.

Could that have been written: the school accepted a record-low 6.9 percent of applicants this year BECAUSE the number of applications went up 5 percent ? If there are roughly a fixed number of places and the number of applicants goes up, then the acceptance rate goes down.

IPBiz found the remarkable part of the Wheeler story NOT that Wheeler wanted to get into Harvard, Yale, Stanford, which objective might seem obvious, even in the non-patent law sense. The more interesting part is that he got in to Harvard (and Stanford) with completely bogus transcripts, including an MIT transcript that used a non-MIT grading system.

Other stories by Eve:

That 'noncompete' can really tie you down
Employees should think twice before signing; employers going to court
, which included:

In addition, noncompete agreements have become more common as the economy has shifted more toward service sector jobs and away from manufacturing.

“More jobs are in the service world, where information is the premium,” says Steve Fox, employment attorney at Fish & Richardson in Dallas “The value of what employees have in their heads is greater. There’s more of a need for noncompetes because it’s so much easier to leave and take what you’ve learned from the old employer and apply it with the new employer.”

There is mention of the Mark Papermaster matter and the text:

Daniel Levine, an employment attorney with Shapiro, Blasi, Wasserman & Gora in Boca Raton, Fla., says a company doesn’t have to necessarily show that an employee is hurting a firm by going to work for a competitor.

“There’s a presumption of irreparable harm,” he says. But that doesn’t mean an employee can’t present evidence showing he or she is not causing any damages to their former employer. Then it’s up to the judge to decide.

In Florida, where Levine practices, the courts are more favorable to employers in the matter.

Working for Free: The Boom in Adult Interns including

"You know the old Depression-era signs, 'I'll work for food?,' " asks Philadelphia workplace attorney Robin Bond. "Well, now they say, 'I'll work for free.'" Bond says she has heard from a growing number of unemployed professionals looking to volunteer for corporations because they don't want gaps in their résumé.

Companies are often eager for the extra set of hands. Michael Schmidt, an employment attorney in New York City, has seen an uptick in recent months in private employers calling him to find out if they can bring in unpaid interns as a way to cut costs. His answer: volunteering at for-profit companies is, legally, a no-no. The U.S. Department of Labor (DOL) has spelled out several criteria with the goal of ensuring that internships not only provide real training but also can't be used by companies to displace regular employees.

***In passing, in a post about what hiring managers seek, there is a line

We pay attention to small stuff. IPBiz notes as to college admissions officers, certainly not in the case of Adam Wheeler.
As to We may check references beyond your list., the college admissions people obviously didn't check ANY references on Adam's list!

Elsewhere, We want you to ask questions.. LBE recalls an event with a certain central New Jersey law firm wherein the candidate had asked a question, and, later, on the same day, got a response to the question from one HR person, and a ding letter from another one, saying too much time had elapsed in considering the offer.

Friday, June 18, 2010

Britannica torched at CAFC

From the beginning of the case:

Encyclopaedia Britannica, Inc. (Britannica) is the as-
signee of U.S. Patent Nos. 7,051,018 (the ’018 patent) and
7,082,437 (the ’437 patent). The ’018 and ’437 patents
relate to a multimedia database search system for retriev-
ing textual and graphical information. Britannica sued
Alpine Electronics of America, Inc., Alpine Electronics,
Inc., DENSO Corporation, Toyota Motor Sales, U.S.A.,
Inc., Magellan Navigation, Inc., American Honda Motor
Company, Inc., TomTom, Inc., and Garmin International,
Inc. (collectively, Defendants), alleging infringement of
the ’018 and ’437 patents. The Defendants moved for
summary judgment that the patents in suit are invalid as
anticipated by Britannica’s published foreign application.
The district court granted their motion for summary
judgment, declared the ’018 and ’437 patents invalid as
anticipated, and dismissed the cases. See Encyclopaedia
Britannica, Inc. v. Alpine Elecs. of Am., Inc., 643 F. Supp.
2d 874 (S.D. Tex. 2009). Britannica appeals. For the
reasons set forth below, we affirm.

The issue:

The district court held that the patents in suit were not
entitled to claim priority to U.S. Patent Application No.
07/426,917 (the ’917 application) because an intermediate
application in the chain of priority
, U.S. Patent Applica-
tion No. 08/113,955 (the ’955 application), failed to satisfy
the requirements of 35 U.S.C. § 120. The district court
reasoned that because the ’955 application was not enti-
tled to the priority date of the ’917 application, later filed
patents could not claim priorthrough the ’955 application.

The sole issue on
appeal, one of first impression for this court, is whether
35 U.S.C. § 120 requires an intermediate application in a
priority chain to “contain a specific reference to the earlier
filed application.

The bottom line:

In light of our determination that the ’955 application
is not entitled to the priority date of the ’917 application
because it failed to specifically reference the ’917 applica-
tion as required by § 120, we need not resolve the Defen-
dants’ alternative grounds for affirming. We therefore
leave for another day whether filing a continuation on the
day the parent issues results in applications that are co-
pending as required by the statute.

**Please note that this case is related to a patent attorney
malpractice case.

Note Karen Sloan's article
Encyclopaedia Britannica Sues Dickstein Shapiro for $250 Million
which includes:

"The errors and omissions that led to this valuable property loss and Dickstein's response to the admittedly negligent performance at issue are quintessential examples of hornbook malpractice," the lawsuit says.

See also Britannica

California patent attorney in trouble

In an article titled Palo Alto patent attorney pleads not guilty to bribery and DUI charges, Joshua Melvin writes of one Richard Chae [once?] of Alston & Bird in Palo Alto.

The reg number is 51539, and the relevant college is Massachusetts Institute of Technology, B.S.E.E., 1996 and law school Boston University, J.D., 2001.


Creso Legal


In D. Utah:
MOTION for Admission Pro Hac Vice of Richard Chae, Registration fee $ 15, receipt number 4681017321, filed by Third Party Defendant Winbond Electronics Corporation. (Kaplan, Neil) (Entered: 04/18/2007)

Second degree network for Holly Goo Becker

Amazon's US 7,739,139

First claim of US 7,739,139:

A computer-implemented method, comprising: receiving and storing personal data of a first user of a computer-based service, said computer-based service accessible to users over a network, said personal data specified by the first user; providing a user interface for users to establish contact relationships with other users of the service such that each user can have one or more contacts, said user interface enabling a user to identify other users of the service, and to selectively initiate the generation of requests to establish contact relationships with the identified users; receiving a request from a second user of the service to establish a contact relationship with the first user, said request submitted to the service over a network via said user interface; sending a notification of the request to the first user over a network; providing an option, in connection with said request, for the first user to grant permission for the second user to view at least some of the personal data of the first user; and in response to the first user granting said permission, providing the second user access to at least some of the personal data of the first user via a contact information user interface of the service, such that the second user is provided access to data that would not otherwise be accessible to the second user via the service; wherein the method, including receiving and storing the personal data, providing the user interface, receiving the request, sending the notification, providing said option, and providing the second user access, is performed by a server computer system.

Staples sued over stapler!

Accentra survived a summary judgment motion by Staples concerning patent infringement charges related to Staples' One Touch staplers.

See Accentra Inc et al v Staples Inc 07-05862 in CD Cal.

BLT blogger in need of hearing aid?

Coverage of the June 15 discussion Patent Reform 2010: What Shape Will It Finally Take? has been slim. The blog post on Legal Times [BLT] is notable for commenters criticizing its assertion:

One fundamental shift: the Patent and Trademark Office would no longer award a patent to the first person to come up with an idea, but instead would give it to the first who files for a patent – a move that would bring the patent system here in line with the rest of the world.

That provision proved uncontroversial to the panelists. It was other details that got them going.

One commenter: For the record, with regard to First to File, the statement, "That provision proved uncontroversial to the panelists" is an outright misstatement of fact!

There were a number of panelists who pointed out there are numerous problems and objections to FtF particularly for small inventors.

The author should get a hearing aid.

Geee, any time one mentions "hearing aid", IPBiz recalls the famous Lemley-ism that the inventors of the transistor thought only of hearing aid applicaitons.

Previous IPBiz post:

Teacher copies student at Cambridge reported:

Dr Nicola Morrison included unattributed material from the work of a final year Land Economy undergraduate in an article published under her name in the Journal of the Town and Country Planning Association in April.

The more interesting text is the following:

CUSU Education Officer Sam Wakeford urged the University to learn lessons from the Morrison case: "This obviously looks bad, but it draws attention to the fact that mistakes can be made by academics as well as students; plagiarism is a very complex issue," said Wakeford. "Work that has been produced in a collaborative environment – such as between a student and their supervisor – can be a particularly grey area.

Is Mike at TechDirt ghostwriting at Cambridge?

Usually collaborators are at least acknowledged. As to academics, recall Laurence Tribe and Doris Kearns Goodwin at Harvard.

Thursday, June 17, 2010

"Wordtech Systems": who can be made liable for patent infringement?

The decision in Wordtech Systems v. Integrated Networks is lengthy and touches on several issues, most pointedly about
liability of employees/officers of a company for patent infringement.

The decision begins:

This is a patent infringement case involving technol-
ogy for automated duplication of compact discs. Wordtech
Systems, Inc. (“Wordtech”) sued Integrated Networks
Solutions, Inc. (“INSC”) and its employees Nasser
Khatemi and Hamid Assadian
(collectively “Defendants”)
in the District Court for the Eastern District of California
for infringement of U.S. Patents No. 6,141,298 (“’298
patent”), No. 6,532,198 (“’198 patent”), and No. 6,822,932
(“’932 patent”).

The result was a remand:

Because the jury instructions lacked
legal tests necessary to determine Khatemi and As-
sadian’s individual liability, and because the damages
verdict conflicts with the clear weight of the evidence, we
reverse the district court’s denial of Defendants’ motion for
new trial and remand.

Of individual liability:

According to Khatemi and Assadian, INSC’s corporate
veil shielded them from direct infringement liability
under 35 U.S.C. § 271(a) because they acted as company
employees, and INSC was a valid corporation during all
periods of alleged infringement. They insist that the
validity of “INSC’s corporate status was not an issue at
trial” and that Wordtech introduced insufficient evidence
to justify piercing INSC’s corporate veil. Defs.’ Principal
Br. 38-39. In their motions for JMOL and new trial,
Defendants preserved these arguments by contending
that they were not liable as INSC officers and did not
personally participate in infringement. See Defs.’ Mot. for
JMOL Pre-Verdict 5-7 (“Rule 50(a) motion”); Defs’ Memo.
in Support of JMOL Post-Verdict 8-9, 16-17 (“Rule 50(b)
motion”); Defs.’ Memo. in Support of New Trial 4-7 (“Rule
59(a) motion”).
“Patent infringement is a tort,” Mars, Inc. v. Coin Ac-
ceptors, Inc., 527 F.3d 1359, 1365 (Fed. Cir. 2008), and
“[i]n general, a corporate officer is personally liable for his
tortious acts, just as any individual may be liable for a
civil wrong,” Hoover Group, Inc. v. Custom Metalcraft,
Inc., 84 F.3d 1408, 1411 (Fed. Cir. 1996).

There is an interesting "footnote 2," mentioning law
review articles, which appears
in the following way:

“To determine
whether corporate officers are personally liable for the
direct infringement of the corporation under § 271(a)
requires invocation of those general principles relating to
piercing the corporate veil.” Orthokinetics, Inc. v. Safety
Travel Chairs, Inc., 806 F.2d 1565, 1579 (Fed. Cir. 1986).2

footnote 2:

Commentators have argued that the corporate
veil should apply only to owners, not to officers. See
Lynda J. Oswald, The Personal Liability of Corporate
Officers for Patent Infringement, 44 IDEA 115, 130 (2003)
(“Piercing is a mechanism for reaching the owners (i.e.,
shareholders) of a corporation, not the officers. It has no
application in the context of officer liability.”); see also
Patrick T. Schmidt, Note, The Internalization of Corporate
Patent Infringement, 88 Tex. L. Rev. 217, 233 (2009)
(“[V]eil-piercing is a doctrine by which shareholders are
held liable for obligations of the corporation and is gener-
ally thought to have nothing to do with non-owner liabil-
ity.”). Wordtech does not argue that Khatemi and
Assadian are owners of INSC, nor does it attempt to make
any distinction between officers and owners on the corpo-
rate veil issue. Moreover, until such a challenge is pre-
sented and reconsidered by the full court, “[p]anels of this
court are bound by previous precedential decisions until
overturned by the Supreme Court or by this court en
Barclay v United States, 443 F.3d 1368, 1373 (Fed. Cir. 2006).

**There is a side message to school systems who buy software.

The San Juan Unified School District
(“School District”) of Carmichael, California bought the software
and got to be a co-defendant. They settled.

EPA screws up on Propoxur

The Christian Science Monitor (via AP) reported:

In a letter earlier this month to Gov. Ted Strickland, U.S. Environmental Protection Agency Administrator Lisa Jackson [formerly of New Jersey] wrote that the pesticide Propoxur could pose health risks for children, harming their nervous systems. and thereby did not allow the state of Ohio to be applied in bedbug-ridden homes.

AP noted that Susan Jones, an entomologist at Ohio State University, said the EPA likely overestimated the risk of exposure to children and said an effort was under way to provide the agency with information about how much of the pesticide would become airborne if applied in homes.

While the EPA said its conclusions about Propoxur are based on "the best available science," one wonders if Jackson is "in touch" with the problems bed bugs have caused in New Jersey.

As to "innovation," one sees that a useful product can be blocked from "changing the way we live" by administrative rule.

Lisa Jackson might contemplate an article published in the Newark Star-Ledger about three years ago [by MEG NUGENT , 17 July 2007, p. 33 ] -->

James Lashomb, professor of entomology at Rutgers University, says bedbugs are now "common" in the Garden State. "It's not widely discussed, but it's common. If you go to a backyard picnic or barbecue, they're not talking about bedbugs."
He also says they've become a "very important problem" nationally and internationally.


Harold Harlan, a Maryland entomologist, knows why, since he's able to observe the thousands of bedbugs he maintains in sealed quart jars, and has been doing so for about the past 30 years. "The behavior of the bug, the fact that they're small and cryptic, and their ability to survive a long time without feeding, give them an edge over all the tools to be used against them," says Harlan, who's currently a private contractor for the Armed Forces Pest Management Board.


Adult bedbugs can live up to a year without food. They exclusively feed off blood, preferably from humans, but also the blood of other warm-blooded animals such as birds, rodents, pets and bats.
Plus, they're nocturnal little things. They come out to feed at night, usually when people are asleep. "They come and feed and leave you, and go back to their hiding places," says Cooper. [Richard Cooper of Cooper Pest Solutions of Lawrenceville, NJ.]


Cooper says bedbugs "disburse widely throughout a dwelling" - in the mattress, box spring, headboard, foot board and beyond to nightstands, end tables, any kind of furniture, behind picture frames, in seams and crevices, under screw holes, inside cracks in window frames, baseboard moldings, crown moldings and cracks in wooden floors.
If you find you do have a bedbug infestation, be prepared for battle and don't think you're going to get the job done in a day.
Bedbugs aren't seasonal creatures, and it takes about a month and a half for the egg to develop into an adult. You may find you've wiped out the adult population only to discover another generation has since hatched in your house-hold.
Joan estimates her home's infestation cost the family roughly $1,500 to $2,000. This included, in part, the three visits from their West Orange exterminator and money spent to hot launder all of her son's clothing and cloth items, including curtains, in his bedroom at home. She also thoroughly vacuumed their home every day and disposed of the vacuum bag each time.
In addition, her husband sealed all of their son's bedroom furniture in plastic and carried it out to the garage to spend the winter, and they hoped the freezing temperatures would kill off any remaining bed bugs.
"You need 55 days of bug-free, bite-free time to know the problem's been resolved," says Cooper.

The use of ineffective pesticides, as those approved by the EPA, increases the number of visits to remove bedbugs and tremendously adds to the expense of the removal. The EPA's approach is not cost-effective.

Perhaps if Lisa Jackson were to spend a night in a bedbug infested environment, her environmental policy might change.


See Lone bedbug sends Kings County Hospital ER into fumigation lockdown

"It was one single bedbug," she said. The hospital scare comes just days after preppy clothes outlet Hollister closed its flagship store in SoHo for three days because of bedbugs.

The company also padlocked sister shop Abercrombie & Fitch at the South Street Seaport for a day.

The city Health Department announced earlier this year that bedbug infestations were on the rise around the city.

Lisa Jackson is soooooo..... out of touch!


Something Lingering in the Lingerie? Bed Bugs Hit Victoria's Secret

Of --up to 30 percent of humans don't feel the bites once bit --, one should note that after the welt rises, those bitten definitely notice the bite.

Wednesday, June 16, 2010

On student plagiarism in the UK

From the Independent:

In one case, an international student who had been at a Chinese university for two years submitted a final year project which, after being run through a computer program, showed matches to submissions made at other universities. A panel determined it as plagiarism and failed the submission. The OIA ruled the finding was unsafe as the panel had only taken evidence from its chair and recommended she should be allowed to resubmit the project.

One would think evidence of "copying without attribution" speaks for itself.

The link on the computer program text was to

Monday, June 14, 2010

AP runs Bimbo story

On 14 June 2010, AP ran a story titled English Muffin-maker guards `nooks and crannies' relating to the lawsuit between Bimbo Bakeries and former exec Chris Botticella over the trade secret to "nooks and crannies.". IPBiz had covered the matter in two earlier posts:

Bimbo Bakeries goes after former exec on secrets of Thomas' English Muffins
[25 Jan 2010]

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

Within the AP story:

The company says only seven executives know all three parts of its winning formula for making the muffins -- including how much dough to use, the right amount of moisture and the proper way to bake them.

So it became alarmed and sued in January when Botticella, one of the trusted seven, decided to bolt and join rival Hostess, maker of Wonder Bread and Twinkies.

The AP story notes Botticella "argued the confidentiality agreement he signed was valid "only during his employment" and does not bar him from working for Irving, Texas-based Hostess, a privately held company." and states the legal issue is "whether a leak must be inevitable or merely probable before the judges can stop Botticella from taking his a new job."

The last lines of the AP story are memorable:

"It's a horrible situation he finds himself in," said one of his attorneys, Elizabeth K. Ainslie. "If the assistant coach of the Philadelphia Eagles moves to the Dallas Cowboys, is he supposed to forget all of the plays that he learned while at the Eagles?"

One notes that the "plays" of the Eagles are performed in public, and can be legally studied by anyone. The secrets of "nooks and crannies" are executed in private and only the finished product is exposed to public viewing.

If this were Coca Cola's secret formula, would people view this differently?

**In a piece titled Thomas' English Muffin Doesn't Want Hostess All Up in Its Nooks and Crannies , the Village Voice adds:

According to the AP, there are but seven executives who know the exact formula that causes the English muffins to develop their nooks and crannies (which, not incidentally, are trademarked). One of those executives, Chris Botticella, was hired by Hostess, and according to the lawsuit, hid his hiring for months while attending high-level meetings with Bimbo Bakeries, the company that owns Thomas. The topic of those meetings? Strategies for competing with Hostess.

USA Today gets into the bigger picture of Mexican investment in the US:

Grupo Bimbo, Latin America's largest baked-goods company, has also expanded its U.S. operations.

In 2009, Mexico City-based Bimbo bought the U.S. baked-goods operations of Weston Foods for $2.4 billion, taking over 22 industrial bakeries and 4,000 distribution routes. In all, the Mexican company has 35 bakeries in the USA turning out national brands such as Entenmann's pastries, Boboli pizza crusts and Thomas' English Muffins to regional brands such as Brownberry bread and Mrs. Baird's snack cakes. About 43% of Bimbo's 2009 sales were in the USA.

New investment in the USA by Mexican companies rose from $3.6 billion in 2005 to nearly $8 billion in 2008, according to the latest statistics from the U.S. Department of Commerce. Mexican companies employ about 59,000 people in the USA.

Like Bimbo and Lala, many of the Mexican companies operate regional subsidiaries, a structure that obscures their immense size.

Buying up well known trademarks is a great way to effect this strategy: which product is a US customer going to buy, one called Entemanns or one called Bimbo? Trouble is, somewhere along the line, Entemanns chocolate crumb donuts vanished.
Products count, too.

***Separately, Bimbo is looking for an employment attorney:

Bimbo Bakeries USA, the leading commercial baker in the United State is seeking an employment lawyer at its corporate office in Horsham, Pennsylvania. Employing over 15,000 associates and selling over $4 billion in baked goods annually, the Company’s brands include Entenmann’s, Arnold, Brownberry, Oroweat, Freihofer, Thomas’, Stroehmann, Bimbo, Marinela and Boboli. The incumbent will provide legal advice on employment matters. This position reports to the General Counsel.

Advanced Magnetic Closures case: "one bad apple" on inventorship spoils the patent

The Court of Appeals for the Federal Circuit in the AMC case affirmed a finding of
unenforceability of a patent because of misnaming of inventors:

We affirm the district
court’s holding that the ’773 patent is unenforceable based
on inequitable conduct and its award of 35 U.S.C. § 285
attorney’s fees and costs against AMC

AMC tried to argue that the district court needed to establish
true inventorship. The CAFC rejected this.

AMC’s argument is not supported by this court’s deci-
sions. We have held that when named inventors deliber-
ately conceal a true inventor’s involvement, the applicants
have committed inequitable conduct and the patent is
unenforceable even as to an innocent co-inventor. Frank’s
Casing Crew & Rental Tools, Inc. v. PMR Techs., Ltd., 292
F.3d 1363, 1376–77 (Fed. Cir. 2002). In Frank’s Casing,
this court held that the named inventors committed
inequitable conduct by deliberately excluding an innocent
co-inventor from their patent application. Id. at 1376.
The court explained that “‘if unenforceable due to inequi-
table conduct, a patent may not be enforced even by
“innocent” co-inventors. One bad apple spoils the entire
barrel. Misdeeds of co-inventors, or even a patent attor-
ney, can affect the property rights of an otherwise inno-
cent individual.’”
Id. at 1337 (quoting Stark v. Advanced
Magnetic, Inc., 119 F.3d 1551, 1556 (Fed. Cir. 1997)).
Accordingly, this court sustained the district court’s
holding of unenforceability. Id. The court, however,
remanded the case “for the limited purpose of determining
the correct inventorship” because an action under
35 U.S.C. § 256 did not “prevent[] a court from correcting
the inventorship of an unenforceable patent.” Id. at 1377
(alteration added).

On inequitable conduct:

Patent applicants “have a duty to prosecute patent
applications in the [PTO] with candor, good faith, and
honesty.” Honeywell Int’l Inc. v. Universal Avionics Sys.
Corp., 488 F.3d 982, 999 (Fed. Cir. 2007) (alteration
added); see also 37 C.F.R. § 1.56(a) (2009). A party assert-
ing inequitable conduct must prove by clear and convinc-
ing evidence that a patent applicant breached that duty
by (1) “fail[ing] to disclose material information or sub-
mit[ting] materially false information to the PTO” with (2)
“intent to mislead or deceive the examiner.” McKesson
Info. Solutions, Inc. v. Bridge Med., Inc., 487 F.3d 897,
913 (Fed. Cir. 2007) (internal quotation marks omitted)
(alterations added). “The required showings of material-
ity and intent are separate, and a showing of materiality
alone does not give rise to a presumption of intent to
deceive.” Praxair, Inc. v. ATMI, Inc., 543 F.3d 1306, 1313
(Fed. Cir. 2008).

Cited within the AMC case:
Shchlaifer Nance
& Co. v. Estate of Warhol, 194 F.3d 323, 333 (2d Cir.
Gollomp v.
Spitzer, 568 F.3d 355, 368 (2d Cir. 2009)
es “a
Chem. Pac. Ltd. v. Rascator Maritime S.A., 782 F.2d 329,
344 (2d Cir. 1986).

The case also contains issues about expert witnesses
and finite element analysis.