Saturday, July 31, 2010

Tyco wins over Becton, but where was the "means plus function" analysis?

Of the literal infringement matter:

To establish literal infringement, “every limitation set forth in a claim must be found in an accused product, exactly.” Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1575 (Fed. Cir. 1995). Thus, “[i]f any claim limitation is absent from the accused device, there is no literal infringement as a matter of law.” Amgen Inc. v. F. Hoffmann-La Roche, Ltd., 580 F.3d 1340, 1374 (Fed. Cir. 2009). Tyco argues that its Monoject Magellan™ safety needle and blood collection devices do not literally in-fringe the ’544 patent because they lack the added spring member required by the asserted claims. We agree. The unambiguous language of the asserted claims, as well as the disclosure in the specification, requires an added spring element that moves the safety guard toward the tip of the needle.3


Where a claim lists elements separately, “the clear implication of the claim language” is that those elements are “distinct component[s]” of the patented invention. Gaus v. Conair Corp., 363 F.3d 1284, 1288 (Fed. Cir. 2004); Engel Indus., Inc. v. Lockformer Co., 96 F.3d 1398, 1404-05 (Fed. Cir. 1996) (concluding that where a claim provides for two separate elements, a “second portion” and a “return portion,” these two ele-ments “logically cannot be one and the same”). There is nothing in the asserted claims to suggest that the hinged arm and the spring means can be the same structure. See CAE Screenplates, Inc. v. Heinrich Fiedler GmbH & Co., 224 F.3d 1308, 1317 (Fed. Cir. 2000) (“In the absence of any evidence to the contrary, we must presume that the use of . . . different terms in the claims connotes different meanings.”).

Becton's position was nonsense:

Indeed, Becton’s assertion that the spring means and the hinged arm can be the same structure renders the asserted claims nonsensical.

If the hinged arm and the spring means are one and the same, then the hinged arm must be “connected to” itself and must “extend between” itself and a mounting means, a physical impossibility. A claim construction that renders asserted claims facially nonsen-sical “cannot be correct.” Schoenhaus v. Genesco, Inc., 440 F.3d 1354, 1357 (Fed. Cir. 2006); see Bd. of Regents v. BENQ Am. Corp., 533 F.3d 1362, 1370 (Fed. Cir. 2008) (refusing to adopt a claim construction that “would effect [a] nonsensical result”).

IPBiz: But recall the wheelbarrow in Radio Steel!

Means plus function issues arising from the claim language "spring means" were disposed of in a footnote:

Tyco also contends that a separate spring is required because the spring means limitation is in means-plus-function format, see 35 U.S.C. § 112, ¶ 6, and the only structures disclosed in the specification for perform-ing the recited function of moving the guard toward the tip of the needle are added spring members. We need not reach this argument, however, because we conclude that—regardless of whether the asserted claims invoke section 112, paragraph 6—an added spring element is required by the plain language of the claims.


Furthermore, if the hinged arm and spring means are not separate structures, then the asserted claims are clearly invalid as obvious over the prior art. See Whittaker Corp. v. UNR Indus., Inc., 911 F.2d 709, 712 (Fed. Cir. 1990) (“[C]laims are generally construed so as to sustain their validity, if possible.”).

Things do not go well for Becton in the decision:

In its quixotic quest to establish infringement of the ’544 patent, Becton argues that Tyco’s accused needles do, in fact, have springs that are separate structures from the hinged arm. In support, it contends that the hinges in the hinged arm are separate structures from the hinged arm itself. This argument is unavailing.

There was a theory of infringement during manufacturing:

Because Becton’s argument—that a version of Tyco’s products that existed temporarily during the manufacturing process might infringe the ’544 patent—was not properly raised during discovery, the district court did not abuse its discretion in precluding Becton from presenting evidence regarding this theory at trial.10 See Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 211 (3d Cir. 2009) (In order to show that a trial court abused its discretion in issuing an evidentiary ruling, “an appellant must show that the court’s decision was arbitrary, fanciful or clearly unrea-sonable.” (citations and internal quotation marks omit-ted)).

There was a dissent which began:

The majority avoids the critical issue upon which this decision turns; i.e., whether 35 U.S.C. § 112, ¶ 6 governs the claim construction of the “spring means” limitation. In a brief footnote, the majority sweeps and brushes aside the means-plus-function analysis as unnecessary in light of the “plain language of the claims.” Maj. Op. 8 n.3. Without having analyzed the scope of the claims, the majority somehow concludes that the claim language covers only devices having separate “spring means” and “hinged arm” structures.


The majority opinion injects ambiguity into the claims and fails to construe the claims as required by our case law. See, e.g., Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc); Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576 (Fed. Cir. 1996). It is impossible for the majority to determine the scope of the claims without undertaking a means-plus-function analy-sis. Accordingly, the majority’s claim construction is premised upon an inadequate foundation.
If a claim element “contains the word ‘means’ and re-cites a function,” there is a presumption that the claim is in means-plus-function form. Envirco Corp. v. Clestra Cleanroom, Inc., 209 F.3d 1360, 1364 (Fed. Cir. 2000).


The majority’s limitation requiring two separate structures is not supported anywhere in the intrinsic or extrinsic record. Such a claim interpretation violates our established tenants of claim construction prohibiting the court from reading extraneous limitations into the claims. E.I. du Pont de Nemours & Co. v. Phillips Petroleum, 849 F.2d 1430, 1433 (Fed. Cir. 1998) (“It is entirely proper to use the specifica-tion to interpret what the patentee meant by a word or phrase in the claim . . . . But this is not to be confused with adding an extraneous limitation appearing in the specification, which is improper.”) (citation omitted).

IPBiz query: did anybody cite-check this? The Du Pont case was in 1988, not in 1998!

Congress gives USPTO money, sort of

From LegalTimes:

The legislation, which now goes to the president, stems from the rather unusual budget system for the PTO and the annual problems that system creates. The office is fully financed by user fees. Every year it estimates the amount of fees it will collect, and the House Appropriations Committee subsequently appropriates an amount equal to the estimate.

The USPTO is financed by user fees. But when collections increase, the USPTO still has to ask for the money. From LegalTimes:

But it now appears that the agency will collect more fees this year than it had estimated—roughly $129 million more. Under the current budget authority, the PTO would be unable to touch that extra money. And so Congress had to step in.

Wednesday, July 28, 2010

Bedbugs taking over New York City?

First line in an AP story: Bedbugs are spreading at an unprecedented rate in New York City, and officials on Wednesday [July 28] announced the start of a plan to battle the infestation...

Meanwhile, Obama's EPA is clueless...


One can have the best invention, but if Federal regulators won't approve it...

Nyce blames the gardener, Enyo

MSNBC did a story on Jonathan Nyce on 25 July 2010. Nyce is blaming the gardener Enyo:

The man who jonathan nyce is targeting as michelle's killer is the family landscaper, enyo, who nyce claims stalked michelle, tried to extort money from the nyce family, and who police neglected to arrest at the time of the alleged stalking.

Enyo, a native of puerto rico, could not be reached for comment.


Injunction in Bimbo Bakeries case maintained; secret muffin formula still safe?

On 27 July 2010, the Third Circuit issued a ruling in the "Bimbo Bakeries"/Thomas' English Muffin case:

The issue on appeal is
whether the District Court erred in enjoining appellant Chris
Botticella, formerly a senior executive at appellee Bimbo
Bakeries USA, Inc. (“Bimbo”), from working for one of
Bimbo’s competitors until after the Court resolved the merits
of Bimbo’s misappropriation of trade secrets claim against

CA3 affirmed, and the injunction remains.

Of some details:

Botticella, a California resident,
who already had experience in the baking industry, began
working for Bimbo in 2001 and was, until January 13, 2010,
its Vice President of Operations for California. In that
position in which Botticella earned an annual salary of
$250,000, he was directly responsible for five production
facilities and oversaw a variety of areas including product
quality and cost, labor issues, and new product development.
In addition Botticella worked closely with Bimbo’s sales staff
on sales promotion and capacity planning, and also was
responsible for overseeing the operations of “co-packers” in
his region, i.e., third-party manufacturers under contract with
In one instance over the Christmas holiday, Botticella
deleted a number of documents from his company-issued
laptop computer. These documents included both items of a
personal nature, such as his resume, and a number of work-
related documents containing confidential information.
Botticella claimed that he deleted these documents because he
“didn’t think th[ey] would [have] any value to anybody.”
App. at 198. Nevertheless, when Botticella returned to his
office at Bimbo on January 4, 2010, he asked a computer
technician to restore the files because “he wanted to have
them back just in case for the next weeks we needed to have a
meeting or something.” App. at 198. Bimbo’s technician
then restored the files to the computer.

Following Botticella’s departure, Bimbo hired E. Brian
Harris, a computer forensics expert, to investigate Botticella’s
use of his company laptop during December 2009 and
January 2010. Harris’s testing revealed that a user who
logged in as Botticella had accessed a number of confidential
documents during the final weeks of Botticella’s employment
at Bimbo. In particular, the testing revealed that the person
logging in as Botticella had accessed twelve files within a
span of thirteen seconds on January 13, 2010, Botticella’s last
day at Bimbo. Significantly this access occurred minutes
after the phone call in which Botticella finally disclosed to
Bimbo his plans to work for Hostess and Bimbo told him to
cease working for it.
In his video-taped
deposition, portions of which were presented at the
preliminary injunction hearing, Botticella admitted to copying
files periodically from his laptop to external devices during
his final weeks at Bimbo, but maintained that he had done so
only to practice his computer skills in preparation for his new
position at Hostess. Despite an earlier denial, he eventually
admitted to conducting such “practice” exercises in January
2010. The District Court found that Botticella’s explanation
of his use of the laptop computer and the external devices was
“confusing at best” and “not credible.” Bimbo Bakeries, 2010
WL 571774, at *6.

Of "public interest," CA3 noted:

As noted by the District Court, there is a
generalized public interest in “upholding the inviolability of
trade secrets and enforceability of confidentiality
agreements.” Bimbo Bakeries, 2010 WL 571774, at *16.
Additionally, there is a public interest in employers being free
to hire whom they please and in employees being free to work
for whom they please. Of these latter two interests,
Pennsylvania courts consider the right of the employee to be
the more significant. See Renee Beauty Salons, Inc. v. Blose-
Venable, 652 A.2d 1345, 1347 (Pa. Super. Ct. 1995) (“[T]he
right of a business person to be protected against unfair
competition stemming from the usurpation of his or her trade
secrets must be balanced against the right of an individual to
the unhampered pursuit of the occupations and livelihoods for
which he or she is best suited.”) (internal citation omitted);
see also Wexler v. Greenberg, 160 A.2d 430, 434-35 (Pa.
1960) (noting a societal interest in employee mobility). We
are satisfied on the facts of this case that the public interest in
preventing the misappropriation of Bimbo’s trade secrets
outweighs the temporary restriction on Botticella’s choice of
employment. See SI Handling Sys., 753 F.2d at 1265 (finding
unnecessary an “extended analysis of the public interest
[because] extensive precedent supports an injunctive remedy
where the elements of a trade secret claim are established”).

Oracle and Financial Systems Technology

Oracle seems to be trying to escape ED Texas:

Oracle Corporation (Oracle) submits a petition for a
writ of mandamus to direct the United States District
Court for the Eastern District of Texas to (1) rule on
Oracle's motion for reconsideration of the December 8,
2009 order denying Oracle's motion to transfer, (2) vacate
the December 8, 2009 order, and (3) direct transfer to the
United States District Court for the Northern District ofCalifornia.

This "interaction" seems to have been going on for a long time.

Financial Systems Technology (Intellectual Property) Pty.LTD et al v. Oracle Corporation

Tuesday, July 27, 2010

It's plagiarism whether you intended to do so or not

Considering how the University of Virginia agonized over revising its code concerning plagiarism, consider what the American Historical Association (AHA) was doing BEFORE the Alison Routman incident at Semester at Sea (run by UVa):

As noted at HNN, the AHA dropped the phrase "By using someone else's work with an intent to deceive" from its "Statement on Plagiarism," thereby eliminating the most easily copped plea from the plagiarist's repertoire of excuses. As James Gardner, the AHA's deputy executive director, told the Chicago Tribune in 1990, "The conclusion of our professional division is that that was a loophole that virtually everyone was using. When you come down to it, it's plagiarism whether you intended to do so or not." The AHA also revised its "Addendum on Policies and Procedures" to state that if the Professional Division "decides that other action is needed such as full public disclosure of an individual case, it may direct the Vice-President to seek approval for that action from the Council."

Library of Congress oks jailbreaking

The New York Times reported on July 26: The Library of Congress, which has the power to define exceptions to an important copyright law [the DMCA], said on Monday [July 26] that it was legal to bypass a phone’s controls on what software it will run to get “lawfully obtained” programs to work.

The EFF had requested an exception to the DMCA to allow the so-called jailbreaking of iPhones and other devices.

The NYT also reported: In addition to this decision, the Library of Congress also granted an exception to artists who remix copy-protected video content for noncommercial work, and renewed its approval for cellphone owners to “unlock” their phones or lift controls that restrict use to one wireless carrier.

For more details, see Statement of the Librarian of Congress Relating to Section 1201 Rulemaking which includes:

As I have noted at the conclusion of past proceedings, it is important to understand the purposes of this rulemaking, as stated in the law, and the role I have in it. This is not a broad evaluation of the successes or failures of the DMCA. The purpose of the proceeding is to determine whether current technologies that control access to copyrighted works are diminishing the ability of individuals to use works in lawful, noninfringing ways. The DMCA does not forbid the act of circumventing copy controls, and therefore this rulemaking proceeding is not about technologies that control copying. Nor is this rulemaking about the ability to make or distribute products or services used for purposes of circumventing access controls, which are governed by a different part of section 1201.


(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

Library of Congress Allows iPhone ‘Jailbreaking,’ Turns Aside Apple’s IP Objection

OpenETD and thesis plagiarism?

An article on OpenETD or RUETD for Rutgers students to file their dissertations digitally, instead of paying the money to print multiple copies, ends with:

Now that other students have more access to dissertations online, the temptation to plagiarize could be on the rise, said Don McCabe, a professor of management and global business at Rutgers University.
"But I imagine it will just as easily be caught," McCabe said.

One might ask about Martin Luther King and Boston University.

See also

Monday, July 26, 2010

New insight into Toyota acceleration problem

from cbs11:

Todd Hubing is an electrical engineering professor at Clemson University in South Carolina. He is now the second researcher this year to find problems with Toyota's electronic throttle controls.

Just this month, he presented his findings to the National Academy of Sciences. "It is possible for the electronics to create conditions that result in unintended acceleration."

Hubing says he and his team interfered with the electronics systems on two Toyota models. He says they tricked the engine control modules into thinking the accelerator pedal was fully depressed.

He says the two cars didn't detect a problem or a trouble code when they should have. "If a trouble code issue doesn't come up, we think it's very likely a software issue."

Professor Hubing says a trouble code would have put the vehicle in a fail-safe or limp mode, which would have limited engine power and acceleration. But because there wasn't a trouble code, the vehicles accelerated instead.

Also, from No Black Box Exoneration for Toyota :

Dr. Todd Hubing, a Clemson University professor of vehicle electronics, presented similar findings to the National Academy of Sciences panel charged by NHTSA with examining unintended acceleration. Hubing was able to replicate Dr. David Gilbert’s work and obtain wide-open throttle without the fault detection system setting an error code – but with only a single fault. Gilbert’s analyses found that first a loss of signal redundancy at the accelerator pedal sensor was needed followed by a voltage spike to create an unintended wide-open throttle. Hubing found that many of the faults created invalid signals that sometimes would be detected, other times not.

Bob Park does algae/biofuel on 23 July 2010

From Bob Park's WN on July 23, 2010:

It's not like harvesting corn once a year; algae gives you a new crop every day. The first step is to find the ideal oil-producing strain. Natural selection doesn't have much to do with making oil, so a lot of work is going into genetic modification. This is not a hard sell in the US, where genetically modified corn has been used for 15 years, and almost all tomatoes are GM. In Europe. however, where a 2001 directive gave EU-wide approval for farmers to cultivate GM crops deemed safe, but frequent claims of new evidence of danger has prevented a single GM food crop from being approved. For algae grown in open ponds, it would be impossible to prevent GM strains from escaping.

From Pollack's piece in the New York Times on July 26, 2010:

Instead of using open ponds, some companies are using bioreactors, which
typically contain the algae in tubes. Some experts say, however, that these
would not totally prevent escapes. "The idea that you can contain these
things and have a large-scale system is not credible," said John R.
Benemann, an industry consultant in Walnut Creek, Calif. He said, however,
that he saw absolutely no risk from genetically engineered algae.

Also from Pollack's article:

"Everything we do to engineer an organism makes it weaker," said Stephen
Mayfield, a professor of biology at the University of California, San Diego,
and a co-founder of Sapphire. "This idea that we can make Frankenfood or
Frankenalgae is just absurd."

Dr. Mayfield and other scientists say there have been no known environmental
problems in the 35 years that scientists have been genetically engineering
bacteria, although some organisms have undoubtedly escaped from

Even Margaret Mellon of the Union of Concerned Scientists, who has been
critical of biotech crops, said that if genetically engineered algae were to
escape, "I would not lose sleep over it at all."

BOROSON reviews Sokolow plagiarism

In a piece titled A memorable case of plagiarism has its roots in New Jersey , Warren Boronson discusses the Sokolow matter,
involving plagiarism by one Jayme Sokolow ( who received a B.A. from Trenton State College in 1968, now known as the College of New Jersey ) ultimately published by Fairleigh Dickinson University Press in Madison, New Jersey.

In another New Jersey related plagiarism case, Centenary College ( Hackettstown, NJ ) terminated an MBA program for Chinese students based on widespread plagiarism. See MBA Program Withdraws From China Due to "Widespread Plagiarism," Other Issues

NYT blog scientifically challenged?

From a NYT blog by Matthew Wald:

Electric cars are designed so that when a driver hits the brake pedal, the electric motors switch functions and become generators, converting momentum back into current.

The piece is about a patent allowance to AFS Trinity for combining a capacitor with a traditional battery in the context of electric-powered vehicles.

Also from the blog: Engineers refer to these two qualities – the ability to store energy, and the ability to deliver it quickly, as energy and power.

Of tax breaks in the electric car business:

But the part of the tax code written to promote pure electric cars and plug-in hybrids favors extra batteries, the executive said, providing a $2,500 credit if the vehicle has at least five kilowatt-hours and another $417 for each additional kilowatt-hour. The maximum credit is $7,500, which works out to 16 kilowatt-hours. Perhaps not coincidentally, that is what the Chevy Volt, due out this fall, will carry.

“It was written for the Volt,” contends Mr. Furia, who would like the law amended to reflect not just energy, which the batteries provide, but power, which his capacitors provide.

Google helps to fight plagiarizing bloggers

from helium:

Google has come to the rescue. Google will not allow content thieves to make Adsense commissions from stolen content. Google can insist that the offending content be removed, or that attribution or other suitable arrangement be made with the author. If the content thief does not comply, the thieves’ Adsense account can be cancelled for life. Since the content thieves’ intent is to generate Adsense income from the stolen content, the threat of having that income source cut off for life is serious indeed. Few content thieves want to “take on” Google.

How to File a Complaint with Google

If the following instructions seem lengthy, don’t be discouraged; this process takes only about five minutes to perform. What’s five minutes to protect work you spent hours or days to create?

Go to the page which has the stolen content and locate the Adsense ads. Google Adsense ads are identified by a link above or below the ad block which says “Ads by Google”; which is a live link. From the offending page, click the link. You will be taken to a page entitled “What are Ads by Google”? After the first paragraph, you will find the sentence “if you'd like to report a policy violation regarding the site or ads you just saw, please let us know". Click the link, and you will be taken to the bottom of the same page, to a drop-down menu that says “Report a Policy Violation…”. Choose “the website” from the drop-down menu, and you will be taken to the complaint menu. Choose “The site is hosting or distributing my copyrighted content, without my permission” button. When you make this choice, another link will display which says “File a DMCA complaint”. Click the DMCA link.

Hmmm, file a DMCA complaint....

Sunday, July 25, 2010

"CBS Sunday Morning" on July 25, 2010

The cover story on July 25, 2010 was on robots, previewed by CBS with text

To find out, Daniel Sieberg asks that those very questions to Dean Kamen, founder of the FIRST Robotics Competition. He also travels to the Consumer Electronics Show in Las Vegas to see the latest in consumer robotics; observes military robotics testing near White Sands, N.M.; and even sits in on a robotic-assisted surgery [a prostate operation with Da Vinci hardware].

What he finds is that as robots march further into every aspect of our lives, more and more Americans are growing comfortable with them. In fact, some are literally putting their lives in the hands of a robot, from the battlefield to the operating room.

full text of Our Future Is Already in the Hands of Robots

The Almanac feature was on the anniversary of Dean Martin and Jerry Lewis getting together, July 25, 1946, which ended in a plug for Lewis' muscular dystrophy teleathon, which airs 6 weeks from today.

The second story was about Shanghai (by Jerry Reynolds), once called the Paris of the East. There was a reference to the book "Phantom Shanghai." Shanghai spent $45 billion to get ready for the exposition. "Chaos with style."

Third was Rita Braver on women on motorcycles. There was a discussion of the book by Simmons. This was a re-presentation of a story on "CBS Sunday Morning" of March 28, 2010 [Spokes Woman.

There was an allusion to Mission Impossible II as the most popular film 10 years ago. For now, Inception was the first topic.
It was characterized as "Oceans 11 visits the Matrix." Salt got a more favorable view, as having no pretentions and being a prolonged chase.

Next was micro-sculptor Willard Wigan, a re-presentation from March 21, 2010. Willard Wigan's Micro Art

A study by Northeastern University on the content of Twitter tweets. Gloomiest on Thursday, happiest on Sunday.
[See Pulse of the Nation:
U.S. Mood Throughout the Day inferred from Twitter
. Note the presence of cartograms.]

A short piece on Daniel Schorr who died Friday at age 93. A coup in 1957, on interview with Kruschev. Reading his own name on Nixon's enemies list.

A followup of a piece on Wayne Newton from March 16, 2010 was shown. Wayne Newton has a memory which is long and unforgiving. Johnny Carson did gay jokes about Newton and Newton confronted Carson. Later, Newton sued NBC for defamation, and ended up going bankrupt, but came back. There was an allusion to "Charlie the Penguin." His iicense plate is Vegas1.

Nancy Giles did Joe Friday's "Just the Facts Ma'am" in discussing the Shirley Sherrod matter. There was an allusion to Robert Byrd supporting the Ku Klux Klan in 1958. The last line: just get the facts.

An ad on the "language of chemistry," by Dow.

A piece on celebrity tell all books. Rachel Dratch on Joan Lunden. Humor taken from the actual texts of celebrity written books. Florence Henderson doing Pamela Anderson.

The final piece was on wild burros in the Black Mountains of western Arizona.

[Oatman, Arizona on the old Route 66 has wild burros roaming the streets.]


Ocean trash:

Kara Lavender Law, an oceanographer with the Sea Education Association at Woods Hole, Mass.

Saturday, July 24, 2010

The IP story behind "Shaq VS."?

Season Two of “Shaq VS” will debut on 3 August 2010 on the ABC Television Network with Shaquille taking on both Dale Earnhardt Jr. and Kavya Shivashankar.

There has been a suggestion that Shaq stole the concept from once basketball teammate Steve Nash.
See Did Shaq steal Steve Nash's idea for reality TV show?
Within that post is the text: According to the paper, Nash eventually sought out an entertainment lawyer (Bob Loblaw), which is why he now has an executive-producer credit and the fat compensation that comes with it.

At least in the patent system, one has to document invention....

Plagiarized AND wrong!

Further to an earlier IPBiz posting concerning plagiarism by a Phillipines Supreme Court Justice [
Plagiarism issue in Supreme Court decision
], one of the copied authors is saying that the copied text was used in a sense that distorted its meaning.

The article The Philippines Supreme Court is Again under Fire for an Alleged Plagiarized Ruling states that copied author Evan Criddle indicates that the Supreme Court opinion draws the opposite conclusion relating to jus cogen that was asserted in the law review article.

Thus, not only copied but misused!

Now, in the patent law context, think back to Mark Lemley's "Ending Abuse..." article in BULR and that footnote about Robert Clarke which was the opposite of what Clarke had indicated.


“A Fiduciary Theory of Jus Cogens” by Ivan Criddle and Evan Fox-Descent, Yale Journal of International Law (2009)

Watch out for IP content lurking in billboards!

IPBiz has covered several "right of publicity" cases [below] but one of the more unusual is that of Angelyne against Fox Searchlight Pictures.

Refer to

Angelyne Billboard Queen Sues Fox

Billboard Bimbo Sues Fox Searchlight , which states: File this under “Washed Up Celeb Begging For Money” news. Angelyne, relative non-celebrity, is suing Fox Searchlight because a billboard of herself appears on screen for about 12 seconds in the 2009 Notorious B.I.G. biopic Notorious, according to TMZ. Apparently Fox effed up by not getting the rights to use the image because now she's looking for payment.

Some other IPBiz posts relating to "right of publicity" -->

Tribute bands of live performers: right of publicity?
and see discussion of the lawsuit mentioned
Former cast members from Jersey Boys at Duke Island Park on 18 July 2010

Lohan "right of publicity" case

Widow of Owen Hart invokes right of publicity against WWE

When doctors plagiarize

The study on plagiarism in medical residency essays by Scott Segal et al. in Annals of Internal Medicine continues to attract attention.

In a post by Megan Brooks titled Level of Plagiarism in Residency Application Essays "Worrisome", one has the following text:

Among all 4975 essays screened, 259 (5.2%) contained evidence of plagiarism (95% confidence [CI], 4.6% - 5.9%). Among 3561 essays by American applicants, 65 (1.8%) contained plagiarized material (95% CI, 1.4 - 2.3). Among 1414 essays by non-American applicants, 194 (13.7%) did (95% CI, 12.0 - 15.6).

The frequency of plagiarism among non-American applicants was 7.6 times higher than among American applicants!

Separately, IPBiz notes that the overall percentage of copying found by Segal [5.2%] is remarkably similar to the 5% number found in a study published on March 7, 2007 by UCAS, the Universities and Colleges Admissions Service, for plagiarism in university applications. [See the 2007 IPBiz post: Is everyone burning their pajamas at age 8? ]

Brooks also included:

Other possible factors, according to Dr. Segal, include the "alarming proportion" of young people who do not view copying material from the Internet in the same light as copying from printed sources; cultural differences in countries that might not view copying in the same light as do Western academics; the relatively low risk (until now) of being caught; and "bad advice in the application process from advisors who do not appreciate the seriousness of plagiarism, or even worse, from unscrupulous corporate services catering to applicants."

Could it be that "unscrupulous corporate services" are used more frequently by non-American applicants for purposes of essay writing AND that the "unscrupulous corporate services" are selling the same essay to many applicants? Are many applicants discussing "burning their pajamas at age 8 with their chemistry set"?

Sandra Yin in an article titled Plagiarism: What will doctors who faked their pasts lie about in the future?

In some cases, the copied material would involve a supposedly heartfelt anecdote about patients--a form of fakery that strikes me as even more egregious, because it seems to pass someone else's experience off as one's own.

Of passing someone else's experience off as one's own, one wonders what Sandra thought about Joe Biden, who passed off Neil Kinnock's life experiences as Biden's, even though the copied life experiences of Kinnock did NOT apply to Biden. Similarly, how about Katie Couric's library card, wherein Katie copied someone else's story of a first library card as her own?

Sandra concludes her post:

The researchers note that plagiarism covers a multitude of sins, from poor documentation and proofreading to outright, premeditated fraud. It's even possible the applicants had cryptomnesia, or hidden memory, and weren't aware that they were copying "remembered content" from another source.

Fast forward a few years. What happens when a doctor blanks out while writing a prescription or speculating on possible diagnoses or coming up with a treatment plan? Are these applicants future fraudsters in the making?
Even before entering residency programs, they're passing themselves off as someone else. If they're doing that now, could Medicare fraud be far behind?

Hmmm, why not ask Joe Biden, currently Vice-President of the United States (who plagiarized an essay at Syracuse Law School) or Glenn Poshard, president of SIU (who plagiarized parts of his Ph.D. thesis at SIU)?

***Related material-->

Abstract of Segal paper:

Ann Intern Med. 2010 Jul 20;153(2):112-20.
Plagiarism in residency application essays.
Segal S, Gelfand BJ, Hurwitz S, Berkowitz L, Ashley SW, Nadel ES, Katz JT.

"The top's cheating to thrive, the bottom's cheating to survive"

What Forbes needs to learn from Adam Wheeler
, which illustrates the utter naivete of a
Forbes article in view of both the Adam Wheeler scandal and the Segal paper in Annals of Internal Medicine, 2010 Jul 20;153(2):112-20.

**In passing, feedly

Thursday, July 22, 2010

USPTO faux pas on marijuana

In a WSJ story titled Patent Office Raises High Hopes, Then Snuffs Them Out, one learns that the USPTO created a trademark category "Processed plant matter for medicinal purposes, namely medical marijuana" on the date April 1, 2010.

Who could make this stuff up?

CAFC in Master Lock: obviousness boils down to common sense

In Wyers v. Master Lock, the Court of Appeals for the Federal Circuit made a strong statement about the role of common sense in obviousness determinations in a post-KSR world:

Before the Supreme Court’s decision
in KSR, we required that a patent challenger show that a
person of ordinary skill in the art would have had motiva-
tion to combine the prior art references and would have
had a reasonable expectation of success in doing so. See
PharmaStem Therapeutics, Inc. v. ViaCell, Inc., 491 F.3d
1342, 1360 (Fed. Cir. 2007); Noelle v. Lederman, 355 F.3d
1343, 1351-52 (Fed. Cir. 2004). We had also held that
“[t]he reason, suggestion, or motivation to combine may
be found explicitly or implicitly: 1) in the prior art refer-
ences themselves; 2) in the knowledge of those of ordinary
skill in the art that certain references, or disclosures in
those references, are of special interest or importance in
the field; or 3) from the nature of the problem to be
solved.” Ruiz v. A.B. Chance Co., 234 F.3d 654, 665 (Fed.
Cir. 2000); see In re Dembiczak, 175 F.3d 994, 999 (Fed.
Cir. 1999). KSR, however, instructs courts to take a more
“expansive and flexible approach” in determining whether
a patented invention was obvious at the time it was made.

550 U.S. at 415. In particular, the Court emphasized the
role of “common sense”: “[r]igid preventative rules that
deny factfinders recourse to common sense . . . are neither
necessary under our case law nor consistent with it.” Id. at 421.

Before KSR, we had also consistently treated the
question of motivation to combine prior art references as a
question of fact. See, e.g., Alza Corp. v. Mylan Labs., Inc.,
464 F.3d 1286, 1289 (Fed. Cir. 2006); In re Gartside, 203
F.3d 1305, 1316 (Fed. Cir. 2000). While KSR did not
change this rule, KSR and our later cases establish that
the question of motivation to combine may nonetheless be
addressed on summary judgment or JMOL in appropriate
circumstances. See KSR, 550 U.S. at 427; Perfect Web
Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1330 (Fed.
Cir. 2009); Ball Aerosol & Specialty Container, Inc. v.
Limited Brands, Inc., 555 F.3d 984, 993 (Fed. Cir. 2009);
Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318, 1325-
26 (Fed. Cir. 2008); Sundance, Inc. v. DeMonte Fabricat-
ing, Ltd., 550 F.3d 1356, 1366-67 (Fed. Cir. 2008).


KSR and our later cases establish that the legal de-
termination of obviousness may include recourse to logic,
judgment, and common sense, in lieu of expert testimony.
See, e.g., Perfect Web, 587 F.3d at 1329; Ball Aerosal, 555
F.3d at 993. In Perfect Web, the patented technology
involved a method of managing bulk e-mail comprising
essentially the steps of targeting a group of recipients,
sending e-mail to those recipients, calculating the number
of successfully delivered e-mails, and repeating the first
prior art. With respect to the last step, the district court
explained: “If 100 email deliveries were ordered, and the
first transmission delivered only 95, common sense dic-
tates that one should try again. One could do little else.”
Perfect Web, 587 F.3d at 1330. We affirmed the district
court’s obviousness determination and endorsed its
“common sense” reasoning
. Id. We furthermore con-
cluded that no expert opinion was required to support the
obviousness determination, because the technology was
“easily understandable.” Id. at 1329-30 (quoting Cen-
tricut, LLC v. Esab Group, Inc., 390 F.3d 1361, 1369 (Fed.
Cir. 2004)); see also Sundance, 550 F.3d at 1365.5
Thus, in appropriate cases, the ultimate inference as
to the existence of a motivation to combine references may
boil down to a question of “common sense,” appropriate
for resolution on summary judgment or JMOL. See
Perfect Web, 587 F.3d at 1330. Other recent cases have
confirmed the appropriateness of this approach.

three steps until reaching the desired quantity. It was
undisputed that the first three steps were disclosed in the

Tuesday, July 20, 2010

"The top's cheating to thrive, the bottom's cheating to survive"

An NPR story on plagiarism concludes with a quote from Don McCabe, a professor at Rutgers University Business School :

"The top's cheating to thrive, the bottom's cheating to survive, and those in the middle are content with their grades and just go along in life and are happy."

That analysis doesn't apply to Adam Wheeler, a person with so-so SAT scores, who cheated his way into Harvard by faking
a high school background at Phillips Andover and by manufacturing 1600 SAT scores. Wheeler cheated because he could get away with it, and, if had left well enough alone, he would have gotten away with it. [This Everyready Bunny observation resonates with the concern expressed by Kirk Hanson: "Unfortunately, if you adopt that kind of convenience rationalization when you're in college, it will carry over as part of your character into later life."]

The analysis of McCabe also doesn't apply to Glenn Poshard, who likely copied stuff into his Ph.D. thesis just to save time, rather than to thrive or to survive.

The analysis also doesn't apply to Joe Biden when he copied five pages from a law review into his first year paper at Syracuse Law School. Biden could not have thrived by doing this, and almost didn't survive.

The analysis hardly applies to those physics students at MIT who copied their homework faster than they could have read the problems. That was just saving time, and had nothing to do with thriving or surviving.

The landscape is much more complicated than McCabe's soundbyte would indicate.

Further, there is a relationship to the old problem with song downloading from the internet. Unless people really think it's morally wrong to do it, then ethics arguments don't work. The DMCA and NET laws, with the criminal punishment, coupled with actual enforcement, put the dent in (some) downloading issues. There's no comparable economic push on student plagiarism issues, so that problem is going in a different direction.

***As a footnote, note the article The Middle Class in America Is Radically Shrinking. Here Are the Stats to Prove it which includes:

The rich are getting richer and the poor are getting poorer at a staggering rate. Once upon a time, the United States had the largest and most prosperous middle class in the history of the world, but now that is changing at a blinding pace.


The reality is that no matter how smart, how strong, how educated or how hard working American workers are, they just cannot compete with people who are desperate to put in 10 to 12 hour days at less than a dollar an hour on the other side of the world. After all, what corporation in their right mind is going to pay an American worker 10 times more (plus benefits) to do the same job? The world is fundamentally changing. Wealth and power are rapidly becoming concentrated at the top and the big global corporations are making massive amounts of money. Meanwhile, the American middle class is being systematically wiped out of existence as U.S. workers are slowly being merged into the new "global" labor pool.

What do most Americans have to offer in the marketplace other than their labor? Not much. The truth is that most Americans are absolutely dependent on someone else giving them a job. But today, U.S. workers are "less attractive" than ever. Compared to the rest of the world, American workers are extremely expensive, and the government keeps passing more rules and regulations seemingly on a monthly basis that makes it even more difficult to conduct business in the United States.

So corporations are moving operations out of the U.S. at breathtaking speed. Since the U.S. government does not penalize them for doing so, there really is no incentive for them to stay.

What has developed is a situation where the people at the top are doing quite well, while most Americans are finding it increasingly difficult to make it. There are now about six unemployed Americans for every new job opening in the United States, and the number of "chronically unemployed" is absolutely soaring. There simply are not nearly enough jobs for everyone.

The giant sucking sound of 1992 was about Mexico and NAFTA, but the ultimate job sink is in Asia.

The US needs to foster an environment for people with really new ideas. Copying/cheating to get into Harvard is a wash, because most of those guys are fungible (once in at Harvard, Wheeler got decent grades). The uncreative jobs are going to Asia, and aren't coming back. Giving the "little guy" with a new idea a chance in the patent system will help the US economy.

***Looking back to 1990, within Krugman's "The Age of Diminished Expectations,"

"Meanwhile, unemployment will probably drift down. As the labor force gets older and more experienced, the NAIRU will be lower. By the end of the decade, the unemployment rate could be between 4 and 5 percent." [Chapter 16, page 192]

***UPDATE. Of handling tests "too fast" [MIT], note of the recent FBI problem:

The Justice Department is investigating whether hundreds of FBI agents cheated on a test of new rules allowing the bureau to conduct surveillance and open cases without evidence that a crime has been committed.
In some instances, agents took the open-book test together, violating rules that they take it alone. Others finished the lengthy exam unusually quickly, current and former officials said.

from FBI scrutinized over test cheating [28 July 2010]

Plagiarism issue in Supreme Court decision

In the Phillipines, plagiarism charges have been leveled against Associate Justice Mariano del Castillo in the decision in the "comfort women" case.

The manilastandardtoday reports: Del Castillo was accused of copying two foreign law journals and another foreign book without proper attribution to authors. The allegation is included in the supplemental motion for reconsideration filed by petitioners through lawyer Harry Roque Jr.

The ultimate issue is one of copyright infringement. The Standard noted:

In their supplemental appeal to the high court ruling, petitioners alleged that del Castillo lifted quotes and footnotes from: 31 parts of “A Fiduciary Theory of Jus Cogens” by Ivan Criddle and Evan Fox-Descent, published last year in the Yale Journal of International Law; 24 parts of “Breaking the Silence on Rape as an International Crime” by Mark Ellis, published 2006 in the Case Western Reserve Journal of International Law; and four parts of “Enforcing Erga Omnes Obligations in International Law” by Christian Tams, published in 2005.

Although they did not directly sought penalty against the magistrate, the women said copyright infringement is punishable under Article 217 of RA 8293 (Intellectual Property Code).

Those who committed plagiarism can be imprisoned for one to three years and required to pay a fine ranging from P50,000 to P100,000 for the first offense.

Toyota blinks on Prius patent dispute

AP noted a quote: "After six years of litigation, we are pleased to reach a settlement with Toyota," said Frances Keenan, chairman of the Paice board, in a statement.


Monday, July 19, 2010

Expert ineffective in Paradox case

The CAFC affirmed ED Texas in Paradox v. ADT.

**Ineffective expert report-->

Paradox argues that it is “axiomatic” that any signal
must have a source and that, accordingly, a DC bias
source must be coupled to the input of the transmit opto-
coupler. Although the initial premise of this statement is
correct, the conclusion hardly follows from it. Indeed, Dr.
Williams’ statements were entirely conclusory; he pointed
to no structure in the DSC schematic shown above, or in
any of the other schematics of DSC accused circuitry that
were admitted into evidence, that identified a “DC bias
source coupled to the transmit opto coupler input” as construed by the court.

**Non-expert testimony-->

As noted, Paradox contends that it produced non-
expert evidence that the accused devices infringed the
’406 patent. Specifically, Paradox points to the testimony
of a Mr. Pildner, a lead designer of DSC’s accused devices.
Mr. Pildner testified that the president of DSC observed
Paradox’s circuitry panel at a trade show. Mr. Pildner
also testified that he believed that copying was common-
place within the industry and that schematics of Para-
dox’s circuitry panels were found in DSC’s possession.
Paradox urges that Mr. Pildner’s testimony is evidence
that DSC’s accused devices infringe the ’406 patent.
However, nothing in Mr. Pildner’s testimony identifies a
structure in any of the accused devises constituting a “DC
bias source coupled to the transmit opto coupler input,” as
required by the limitations of claims 1 and 2 of the ’406

Invention: salad spinner into blood centrifuge


Rice University undergraduates Lila Kerr and Lauren Theis were presented with an assignment in their Introduction to Bioengineering and World Health class. As Theis explains:

"We were essentially told we need to find a way to diagnose anemia without power, without it being very costly and with a portable device."

In a solution short on cost but long on ingenuity, the duo modified a basic, every day salad spinner into an easy to use and transport centrifuge that successfully separates blood to allow diagnosis of anemia with no electricity. The device costs about $30, can process 30 individual 15 microliter blood samples at a time, and can separate blood into its component red cells and plasma in about 20 minutes.

"The proof of that [it being a flaw] is that it is so easily fixed"

Martin Cooper said of the iPhone4 problem: "The proof of that [it being a flaw] is that it is so easily fixed". Arguably, this is a less quantitative expression of Learned Hand's rule.

Alex Severinsky vs. Toyota Prius at the ITC

On July 18, 2010, BusinessWeek ran a Bloomberg story titled Toyota Prius Success Runs Into Soviet Emigrant’s Patent Claim about the saga of Severinsky fighting Toyota, which included the text:

Severinsky, 65, has spent years trying to get the automaker to pay royalties, and a hearing [at the ITC before ITC Judge Theodore R. Essex ] that starts today may lead to the U.S. blocking imports of the Prius.

Of history in the matter, the greenpatentblog noted:

Back in 2005, Paice sued Toyota in the Eastern District of Texas alleging that the second generation Prius, the Highlander and the Lexus RX400h sport utility vehicle infringed U.S. Patent Nos. 5,343,970 (’970 Patent), 6,209,672 and 6,554,088.

In December of 2005, a jury found that the accused vehicles did not literally infringe Paice’s patents but did infringe two claims of the ‘970 Patent under the doctrine of equivalents. The jury awarded about $4.3 million in past damages.

The greenpatentblog includes a copy of the complaint by Paice/Severinsky at the ITC. Paice is located in Bonita Springs, Florida, adjacent to Naples.
Although Paice did not get an injunction in ED Texas, Paice could get an injunction at the ITC.

See also
An inventor’s patent claims threaten to pull the plug on Toyota’s hybrid business in the U.S

Times commentary on plagiarism

The New York Times presented some letters in response to the earlier "editorial observer" piece on student plagiarism, titled “Cutting and Pasting: A Senior Thesis by (Insert Name)."

The first, by one Michael Hadjiargyrou , seemed to say "it's not that bad" [ Yes, plagiarism is a problem, but at least in my experience, it is not as pervasive as Mr. Staples suggests. ]

The second, by a student, seemed to negate an opinion piece in the Boston Globe, which had followed Staples' "editorial observer" piece and which had suggested students need instruction on plagiarism:

As a rising senior in a New York high school, I can certainly attest to the high incidence of plagiarism by students — but they are under no illusion about the nature of their actions. When we plagiarize, we understand that we are cheating, and we understand that phrases lifted from the Internet are not original writing; we merely hope to get away with passing them off as such.

Thus, I am perplexed by speculation that students unwittingly plagiarize, caught in a 21st-century universe where term papers represent only a mosaic of excerpts. If educators truly wish to stem the tide of plagiarism, they must stop concocting such bizarre excuses and start holding students responsible for their actions.

**In passing, Hadjiargyrou wrote another letter to the Times back in 2001:

David J. Anderson, in arguing for federal financing of stem cell research, mentions that as the solutions to getting embryonic stem cells to differentiate are delayed, ''people will die who might otherwise have been saved.''

I would add that this type of work will undoubtedly generate a wealth of data about the inner workings of mammalian cells.

In the many years since, embryonic stem cell research didn't generate "a wealth of data." Moreover, it didn't develop treatments such that "people were otherwise saved.'' Federal support of stem cell research was allowed on a set of certain lines in the US, and people, with their own money, were free to do such research in the US and elsewhere.

Meanwhile, one can look at the muddle of funding issues at California's CIRM:

Sticky, Troubling Appeals by Rejected Researchers Targeted by Stem Cell Agency

**On the earlier Times article:

**Boston Globe piece:

**RE: ''The Alchemy of Stem Cell Research'' (Op-Ed, July 15, 2001):

Sunday, July 18, 2010

Former cast members from Jersey Boys at Duke Island Park on 18 July 2010

Former members from the cast of Jersey Boys performed at Duke Island Park, Bridgewater, NJ on July 18, 2010.

But if you were wondering how "tribute" bands and the like work out, note the following case filed in SD NY:

Court Case Number: 1:10-cv-03060-RJS
File Date: Friday, April 09, 2010
Plaintiff: Jersey Boys Broadway L.P.
Frankie Valli
Robert Gaudio
Marshall Brickman
Rick Elice
The Four Seasons Partnership

Plaintiff Counsel: Robert William Clarida, Ronald William Meister of Cowan, Liebowitz & Latman, P.C.

Defendant: Drew Gehling
Christian Hoff
Michael Longoria
Daniel Reichard
Matthew Scott
J. Robert Spencer

Cause: 17:101 Copyright Infringement
Court: New York Southern District Court
Judge: Judge Richard J. Sullivan

***from Playbill

Original Jersey Boys stars Christian Hoff, Michael Longoria, Daniel Reichard and J. Robert Spencer have filed a countersuit against Frankie Valli, Bob Gaudio, Marshall Brickman, Rick Elice and the producers of Jersey Boys — Dodger Theatricals, Ltd. and Jersey Boys Broadway L.P. — following an earlier lawsuit filed by the latter.

As reported in April, the creators and subject of the Tony-winning musical Jersey Boys had filed a lawsuit against The Boys in Concert, a new touring concert production created by former cast members Hoff, Longoria, Reichard and Spencer.

The defendants' lawyer noted: "These four incredibly talented men have earned the legal right, through years of toil and artistic effort (including a Tony award for Mr. Hoff) to tell audiences of the historically accurate fact that they were stars in Jersey Boys . . . .It is also completely false and, frankly, ridiculous to suggest — as Valli, Gaudio and the producers of Jersey Boys have — that our clients are performing a copycat show of Jersey Boys."

Imagine, copyright action right here in Bridgewater, NJ.

Output of Kanzius invention: research papers

The conclusion of a post by Madhubanti Rudra titled Kanzius Cancer-Killing Device Achieves Significant Breakthrough is the following:

Curley and fellow researcher Evan Glazer, M.D., have published an article in the July issue of Cancer, the journal of the American Cancer Society. It describes the use of fluorescent nanoparticles, tiny pieces of metal, to both show and treat cancer cells.
“The use of this type of nanoparticle can help us stage certain types of cancers. I can see this being used in a situation where a patient is injected with these nanoparticles and taken to a CT scanner for imaging, then later taken to Kanzius' device for treatment,” Curley said.

Curley has informed the media that more research articles related to the Kanzius project are on the way. Three articles have been accepted for publication, four are in review and three are being written, Curley informed.


"CBS Sunday Morning" on July 18, 2010: complete recycling from the past?

The previews given for CBS Sunday Morning on July 18, 2010 all reflected stories which had previously appeared, mostly on CBS Sunday Morning on October 25, 2009. The broadcast thus appears to be one of complete recycling. The cover story was "size matters" by Seth Doane. Martha Teichner followed with "body of work," on portrayal of art and the body beautiful. The third story was on Valerie Bertinelli by Tracy Smith. The fourth was on "fried" by Bill Geist, reporting on fried foods at the state fair of Texas. Later, McDonalds at the Louvre.

Jeff Glor rather than Charles Osgood did the news of July 18, 2010: Day 90 of the oil spill, suicide bombings, 46 dead in Baghdad; 4 people in Afg. Obama's back to Washington, DC to focus on Kagan nomination to the Supreme Court.
Zsa-Zsa Gabor hospitalized. Roman Polanski at Montro Jazz Festival. Forecast: hot. First six months of 2010 hottest on record.

**The July 18, 2010 is basically a re-do of a broadcast of October 25, 2009. From the cover story, text with Secretary Sebelius:

It's gotten so bad that the Centers for Disease Control and Prevention now estimates that one-third of American adults are overweight. Another third are obese.

It's an epidemic that's causing concern at the highest levels of government. Secretary of Health and Human Services Kathleen Sebelius calls the data "alarming."

"It has an impact at every step along the way, on costs and on quality of life, on a productive workforce," she told Doane. "We are really putting ourselves at a huge disadvantage in a global economy by having a nation that is vastly overweight."

"Really? Just for being too heavy?"

"You bet, you bet,' said Sebelius.

Dr. David Kessler was interviewed for The Axis of Food Evil: Fat, Sugar and Salt , which had been broadcast on October 25, 2009.

McDonald's in Paris: A Parisian Food Fight . After the US, France is the next largest consumer of McDonalds food. The piece discussed plus size model Velvet d'Amour.

Next was Rita Braver on the Duke Diet and Fitness Center. There was discussion of Qnexa. From the Los Angeles Times on July 15, 2010: An independent panel of FDA advisors on Thursday [July 15, 2010] voted narrowly to recommend against approval of a proposed new weight-loss drug, Qnexa. The drug agency, which is expected to make an up or down decision on the drug by October, is not bound by the advisory panel's 7-9 recommendation against approval. But the panel's views generally weigh heavily in the agency's final decision.

The Braver story on Oct. 25, 2009 had included:

In the meantime, there is a new generation of weight loss drugs that could be available soon, including Qnexa.

"Could this be the magic pill we're all waiting for?" Braver asked.

"I think there will be a number of effective treatments that become available; this will be one of them," Aronne said. "People who continued in this trial for one year lost between 13 and 15 percent of their body weight."

While they can have side effects, Aronne said the new drugs represent a better understanding of weight regulating systems in the body.

"Basically they work in the brain to reduce the sense of craving to increase your sense of fullness and to increase metabolic rates," Aronne told Braver.

Someone at "CBS Sunday Morning" did an update for the July 18, 2010 presentation to include reference to the recent FDA vote.

The Valerie Bertinelli piece: In Slim Role, Bertinelli Beats Back Bulge: "Actress and author Valerie Bertinelli is most famous - recently - for going on a diet, dropping 40 pounds and making her achievement public, posing for a camera in a bikini."

**Bill Geist's visit to the State Fair was previously broadcast on Oct 25, 2009. From DedhamRocks in October 2009: If anyone caught Bill Geist's piece this morning on CBS's Sunday Morning about his visit to the Texas State Fair, probably chuckled when they saw the "fried Oreo's" being sold at the concession truck. The big hit in Texas this year was fried butter!!

**The "moment of nature" at the end of "CBS Sunday Morning" of July 18, 2010 included images of pot-bellied pigs at the Rooterville Animal Sanctuary in Gainesville, Florida. Unmentioned was the involvement of law students in the sanctuary:

UF law students recently gave back to the community by spending their Saturday volunteering at Rooterville, a local animal sanctuary. Located in nearby Archer, Rooterville is home to nearly 100 pot-bellied pigs, most of which carry a similar history of abandonment and neglect. The sanctuary has other animals too, including a former farm pig that ironically had the good fortune of falling off a truck on the way to slaughter and wandering into the yard of a compassionate family who called upon Rooterville for help. Law students corralled animals for vaccinations, assisted with facility maintenance, and brushed the pigs, which, judging by their sounds and posture, was the animals’ favorite student contribution. Charles King, president of the Animal Law Association, says “in addition to the intrinsic rewards of volunteering, it was hard not to develop an increased awareness of the sentient characteristics these animals displayed. They showed us that they can be playful, thankful, and even mischievous. In this era of animal commoditization, our existing laws should be evaluated to recognize this and provide minimum standards of humane protection.” [from FlaLawOnline]

Rooterville a Sanctuary Inc. is home to over 100 rescued animals, most of whom are pot bellied pigs.

Plagiarism flap among lawyers in Vermont

During the discussion of the plagiarism by Laurence Tribe of work by a professor at the University of Virginia, fellow Harvard Law professor Allan Dershowitz presented a defense, maintaining there was a “cultural difference” between sourcing in the legal profession and other academic disciplines. That is, there was custom and practice of NOT attributing sources of copied material.

Fast forward to the year 2010, and there is an issue with the unattributed copying by one lawyer, Sarah Hofmann, the director for public advocacy of Vermont Public Service Department of text from the filing of another lawyer, David Mullett, an attorney for the Vermont Electric Cooperative and municipal electric departments.

A businessweek story quoted Brian Porto, an associate professor in the legal writing program at Vermont Law School: "If you're taking someone else's idea and not citing the person, and you're falsely suggesting that those ideas are your own, certainly within the definition of plagiarism that comes within it." One wonders why businessweek did not discuss the matter with Professor Dershowitz of Harvard Law.

And, not surprisingly, it was the opposing party who raised the issue of copying. Philene Taormina, AARP-Vermont's director of advocacy was concerned about "who" Hofmann was copying: "Are you really zealously representing your client, the public, when you're taking an argument from a regulated utility?" This issue evokes the Mashelkar episode in India, wherein the patent panel copied text from a drug company advocate.

Of course, even when citations are given, there can be trickiness. Going back to the Supreme Court eBay case, recall the Brief of petitioner, eBay, presented to the Supreme Court [by (among others) Jeffrey G. Randall (Skadden Arps), Carter G. Phillips (Sidley Austin) ] at p. 40:

Generally, when reexamination occurs, one recent article states that nearly 74% of the time finds the patent invalid or restricts its claims. (…) This result is unsurprising given that an overworked PTO can spend a mere 18 hours on average to review a patent application before initial issuance. [citing to Parchomovsky (but not mentioning co-author Polk Wagner), 154 U Penn L Rev 1 and then citing to Cecil Quillen (but not mentioning co-author Webster), specifically the FIRST Quillen/Webster paper, 11 Fed. Cir. B J 1 (estimating the rate of patent approvals by the PTO to be 97%).

By the time the eBay brief had been filed, Quillen and Webster had back-pedaled from the 97% number, which was based on an assumption that a patent lawyer of ordinary skill would know was untrue. However, eBay cited the first number to the Supreme Court, even though a lower, corrected number had already been published by Quillen and Webster. Later, Lemley would throw Quillen/Webster under the bus in the rubber-stamp paper, marking the ultimate discreditation of the 97% number.

Taormina's concern was about "who" Hofmann was taking material from, although the real concern for the public might be whether the material was accurate.

As IPBiz has noted many times, plagiarism is a bad thing, but presenting false material is far more damaging to the public.

**On Dershowitz

** On eBay brief

***The "Flight 1" episode of season 2 "Mad Men" has an oblique discussion of plagiarism / copying. It seems Bobby traced an image of George Washington but took credit for the art work. Don noted the ad firm had plenty of tracing paper and didn't want to be re-inventing the wheel.

Of "Flight 1"

Writer Matt Weiner really seems not to like Ivy League types, with a scence in "Flight 1" wherein Joan unloads on Princeton man Paul. And Pete Campbell comes across as totally lost in life experience.

***Recall discussion of the Dershowitz business in IPBiz in September 2004:

from "The Record" at Harvard Law

-->Dean Velvel's weblog has become a focal point of sorts over the recent plagiarism scandals. Tribe is not the only distinguished legal scholar who has corresponded with Velvel. HLS Professor Alan Dershowitz became the subject of Dean Velvel's scrutiny over comments made to the media. Seizing upon Dershowitz's public mention of "cultural differences" between the legal profession (where judges routinely take the work of lawyers and clerks in writing their opinions) and the rest of academia, Dean Velvel expressed disbelief that Dershowitz would make such a distinction the basis for an excuse.

Dershowitz responded to Velvel, acknowledging that he stood by his comment of cultural differences but explaining that it was meant to serve as an observation on how accidental plagiarism may occur, not a defense of such actions. "There is never under any circumstances any justification for plagiarism and nothing I said was intended to serve as a justification," wrote Dershowitz. Dershowitz also suggested the establishment of a committee to set out clear guidelines for the use of research assistants by law professors.

Saturday, July 17, 2010

The US Navy and patents during World War I

In an earlier IPBiz post, the relationship of then Assistant Navy Secretary Roosevelt to the airplane patent pool was discussed:

n 1917, as a result of a recommendation of a committee formed by the Assistant Secretary of the Navy (The Honorable Franklin D. Roosevelt), an aircraft patent pool was privately formed encompassing almost all aircraft manufacturers in the
United States. The creation of the Manufacturer's Aircraft Association was
crucial to the U.S. government because the two major patent holders, the
Wright Company and the Curtiss Company, had effectively blocked the building
of any new airplanes, which were desperately needed as the United States was
entering World War I.

Roosevelt's boss at the time was one Josephus Daniels, formerly (and afterwards) a newspaper
editor in North Carolina, who would later serve as Ambassador to Mexico under FDR.

The Navy had a role in expelling Marconi from the radio business in the US.
Wikipedia obliquely refers to this:

Secretary Daniels believed in government ownership of armorplate factories, and of telephones and telegraphs. At the end of the First World War he made a serious attempt to have the Navy control all radio transmitters in the United States.

A Civil War story surrounds the Daniels family. From wikipedia: Daniels' father, whose Union sympathies were notorious, was shot and killed by a local sharpshooter when he attempted to leave with Federal forces evacuating Washington< NC during the Civil War.

Patent thickets and the Wright Brothers

**Of "cup of Joe," from wikipedia: Daniels banned alcohol from United States Navy ships in General Order 99 of 1 June 1914. This led to the folk etymology that "cup of joe" (referring to a cup of coffee) derives from Daniels' name.

Clooney: "Don't crush my lawyers."

George Clooney testified in Italy in a case wherein several Italians were using his image, without permission, to sell various products.

The AP managed to include some IP language in it coverage: Maintaining his trademark aura of cool, Clooney delivered a few wisecracks Friday [July 16] as he testified against three defendants accused of co-opting his name with the goal of launching a fashion line. One of the wisecracks: "Don't crush my lawyers."

Yes, Rolex watches came up.

Newman dissents in denial of stay in Avid

Among other things, Avid sought to stay the mandate of the case (involving inequitable conduct)
until Therasense was decided.
This request was denied on July 16, 2010 but Judge Newman made some significant points in dissent.

Newman began:

Avid moves this court to stay its petition for rehearing
en banc until our en banc consideration of Therasense, Inc.
v. Becton, Dickinson & Co., 593 F.3d 1289 (Fed. Cir. 2010),
which bears on the precise issue of Avid’s appeal, that is,
the criteria for “inequitable conduct” during patent prosecu-
tion. I would grant this stay.

Of practices at the US Supreme Court:

The practice of staying the finality of related cases while
the law is clarified is not unusual. The Supreme Court
often holds petitions for writ of certiorari in cases involving
the same issue being decided in another case before the
Court. As explained in Lawrence v. Chater, “‘We fulfill our
judicial responsibility by instructing the lower courts to
apply the new rule retroactively to cases not yet final.’” 516
U.S. 163, 167 (1996) (quoting Griffith v. Kentucky, 479 U.S.
314, 323 (1987)). Thus the Supreme Court “regularly
hold[s] cases that involve the same issue as a case on which
certiorari has been granted and plenary review is being
conducted in order that (if appropriate) they may be
[granted, vacated and remanded] when the case is decided.”

IPBiz notes that such practice was applied to Prometheus after
the Bilski decision.

The particular issue in the Avid case was the non-disclosure
of a demonstration of one Dr. Stoddard:

This court held that Dr. Stoddard’s demonstration dur-
ing the Livestock Committee trade show of what the panel
calls “some of Avid’s technology,” and Avid calls a “precursor
product,” was material to patentability and that Dr.
Stoddard was required to assure that the patent examiner
was informed.1 According to the panel opinion, the district
court “found that the precursor product, while not invalidat-
ing, reflected the closest prior art, and thus was highly
material to patentability.” Avid Identification Sys., Inc. v.
Crystal Import Corp., 603 F.3d 967, 973 (Fed. Cir. 2010)
(“Avid II”). While “closest prior art” has been discussed in
the context of whether certain information is cumulative of
that already presented to an examiner, see, e.g., AstraZeneca
Pharms. LP v. Teva Pharms. USA, 583 F.3d 766, 773-75
(Fed. Cir. 2009), it has never been the law that information
is “highly material” simply because it is “closest.” It is not
disputed that whatever was demonstrated was not an
invalidating disclosure of the patented invention, and not a
sale or offer to sell the patented invention, for the jury found
that the demonstration at the Livestock Committee was not
invalidating. See Avid I, 2007 WL 2901415, at *1.

Of Dr. Stoddard's status in all of this:

Dr. Stoddard, who is the president of Avid, is a veteri-
narian whose principal occupation is running an animal
hospital; he is not an electronics engineer and not a chip
designer and not an inventor of the patented device and not a lawyer.

[In passing, the Court of Appeals for the Federal Circuit recently changed its website. This rendered some previous links

DMCA used against blogs?

A post by Bruce Tyson on helium states:

Recently targeted by federal action, the free WordPress blogging site Blogetery abruptly came offline after hosting provider BurstNet complied with undisclosed demands from authorities. A message viewable upon visiting the Blogetery site gives this message from its owner: "After being BurstNet customer for 7 months our server was terminated without any notification or explanation.” A link on the site leads to a forum called Web Hosting Talk, where the site operator has posted correspondence with BurstNet, that suggests feederal involvement in the incident.

Also: U.S. Authorities Shut Down WordPress Host With 73,000 Blogs

There seem to be some copyright issues. [BUT see below]

TechDirt wrote:

TorrentFreak speculates that this may be a part of the recent Homeland Security efforts to shut down file sharing site, and points to some evidence that there were at least a few Blogetery blogs that shared copyrighted works.

The story Mystery shrouds closures of blog, forum platforms suggests that copyright issues were NOT involved:

"I can not disclose which agency or why they [ordered the action]," Arcus [ Benjamin Arcus, vice president of Scranton, Pa.,-based BurstNet, the Web host for Blogetery ] said. "I can say that this is not a copyright issue."

Elsewhere in the CNET piece: They would first have to confront the safe harbor provision of the Digital Millennium Copyright Act, designed to protect Internet service providers from liability for infringing material that users post to their sites.

Thursday, July 15, 2010

Leahy trying a trick on S.515 (patent reform)?

Patent Docs suggests Senator Leahy is trying a tricky maneuver to get S.515 passed:

But that is only if Senator Patrick Leahy (D-VT) is successful in sneaking the bill into the Small Business Loan Funding bill (H.R. 5297) to be considered in the next few days.

KFC coupon incident: plausible claim for common law fraud

KFC and its owner Yum! Brands Inc. failed to get a dismissal of the fraud case against them related to the coupons, promoted by Oprah, for a free Kentucky Grilled Chicken meal, which included two pieces of chicken, two sides and a biscuit.

Judge James Holderman wrote: "Based on the allegations of the Master Complaint, the court finds it plausible that Defendants never intended to honor the coupon as represented."

The suit also notes the grilled chicken contains rendered beef fat and beef powder.
Could there be some false advertising here?


In passing, of the July 11 [7/11] "free slurpees" offer, some of the stores quickly ran out of the special 7oz cups, [but not out of slurpee].

From the consumerist:

When I left my car and walked up, I found a hand-lettered sign on the door to the store that said that there were no more free Slurpee cups. I went in and spoke to the clerk, when I asked what had happened he told me that "we only received a limited supply of cups and they ran out". When I asked if there was a coupon available for the free Slurpee when they received more cups in he told me no, and that they had been told to tell people "tough luck" by corporate when they ran out of their limited cup supply. But, he did invite me to come back next year when the promotion ran again, and he told me to check the second 7-11 store down the street. I drove to that 7-11 (on my way to the local grocery store) and found same result, no special cups, no free Slurpee.

"14 Obvious Inventions"

In a post with the oxymoronic title Why Didn't I Think Of That? 14 Obvious Inventions You Could Have Easily Thought Of, the Huffington Post leads off with the "bottle opener remote" [a combination of a bottle opener and a tv clicker]

Also included are the self-locking bendable bike, chewing gum packaging with an area for used gum disposal, a pillow with an arm hole, Unicorn corn cob holders, a car swivel chair, and a food tray that sits over a computer keyboard.

Wednesday, July 14, 2010

Examining Patent Examination

In the article Examining Patent Examination, 2010 Stan. Tech. L. Rev. 2, Lemley and Sampat give acknowledgements:

We thank Patrick Crosby at for assistance in obtaining the data used in our analyses and John Allison, Ernie Beffel, Miriam Bitton, Colleen Chien, Chris Cotropia, Lawrence Ebert, Jeanne Fromer, Bill Gallagher, Rose Hagan, Joe Miller, Roberta Morris, David O'Brien, Michael Risch, Kathy Strandburg, two anonymous reviewers, and participants in workshops at Stanford Law School, UMKC Law School, the IP Scholars' Conference, the NYU Conference on Empirical Legal Studies, Microsoft Corporation, and the Advanced Patent Law Institutes in Austin, Texas, and San Jose, California, for comments on an earlier draft.

LBE wishes to clarify that LBE has never spoken with Lemley or Sampat. He has never met Lemley or Sampat. Although it is nice to be acknowledged, LBE notes any comments by LBE would have to be considered oblique.

Separately, the appearance of -- Microsoft Corporation -- in the list is a bit puzzling. Was it the host of a workshop?

As a different matter, P11 of the paper states:

Why do patents result from applications which received "final" rejections? Sometimes this change of outcome reflects a change of heart--the applicant has persuaded the PTO to issue the same claims that it initially rejected. Other times, it is because the patentee has amended the claims, generally but not necessarily narrowing them to avoid prior art. Many of these applications were amended after the initial rejection, so the PTO process may have the effect of narrowing unduly broad claims. To study this, we determined whether the applications were amended before issuance. Based strictly on the PAIR classification data, it appears that quite a few patents--significantly more than half of those issued--issued without any amendment. But we worried that these fields may have understated the number of amendments, n10 particularly those after non-final office actions. The transaction history also includes information on "Response After Non-Final Office Action," and many of those responses involve amendments. However, this field could indicate other responses too, in addition to amendments. To check this we examined the file wrappers for a random sample of 100 transactions coded in PAIR as involving a "Response to Non-Final Office Action" but where PAIR did not list an amendment. It turns out that 94 of those 100 in fact included amendments. If we include the "Responses to Non-Final Office Actions" in the list of applications amended, the numbers change dramatically, as Table 4 illustrates.

LBE did write in a post titled Patent Grant Rate Lower Than Many Academics Think about a different paper by Lemley and Sampat:

However, in July 2007, Lemley and Sampat placed on SSRN a paper entitled "Is the Patent Office a Rubber Stamp?" which stated:

We find that the PTO rejects a surprisingly high percentage of patents [sic]. While more than two-thirds of all applications result in at least one patent, a significant number of applications are rejected and then finally abandoned by the applicant.
The PTO is doing a better job than many people seem to think.

This alteration in understanding of the patent grant rate issue requires changes in how patent reform is addressed and, furthermore, undermines certain arguments that were made on behalf of restrictions in continuing application procedure at the USPTO.

See also IPBiz posts:

As a minor point, there was an email exchange about a certain footnote in a Lemley paper in BULR
about continuations, relating to something Lemley attributed to Clarke, which Clarke never said.

**Footnote 10 in the above Lemley text states:

n10 We thank Lawrence Ebert for raising this concern. Lawrence Ebert, More on Patent Grant Rate; the USPTO Is NOT a Rubber Stamp, IPBIZ, Aug. 2, 2007,

which post includes:

The patent grant rate numbers disclosed therein are more in accord with those of Robert Clarke in JPTOS in 2003 than with those of Quillen and Webster, or with those of John Thomas quoting Crouch/Patently-O in 17 Fordham Intell. Prop. Media & Ent. L. J. 875 (2007)).

Nevertheless, the manuscript has a puzzling sentence at page 25: Nonetheless, it is notable that quite a few patents -- significantly more than half of those issued--issued without any amendment, as Table 11 shows. IPBiz suspects that the idea that more than half allowed patents issue WITHOUT any amendment might be questioned. [There are other puzzling statements in the manuscript, but that's another story.]

**Of the acknowledgement, from Abraham Lincoln:

“I feel like the man who was tarred and feathered and ridden out of town on a rail. To the man who asked him how he liked it, he said: ‘If it wasn’t for the honor of the thing, I’d rather walk.’”

When innovation is marketing based

IPBiz noted in December 2007:

Innovation is not a subset of invention, as invention is defined by the USPTO. One can have "innovation" without having a patentable invention. Once one recognizes that, one can begins to understand some of the problems the IT people have. LBE has discussed the differences between "innovation" and "invention" in many places, including in "Patent Reform 2005: Can You Hear Me, Major Tom?", Getting the Patent Reform Wars on Track, and 88 JPTOS 1068. Far from being in the realm of "subtle linguistic differences", the distinction between "invention" and "innovation" is critical to understanding issues in patent reform.

In an article Razor Burn: A Flood of Fancy Shavers Leaves Some Men Feeling Nicked, Ellen Byron illustrates how the razor makers are trying to innovate (ie, change the way we live) without really having any inventions.

The word "innovation" does appear in the article: "As we enter into any innovation, obviously there's a level of skepticism," says Dan Kinton, senior brand manager for Schick's Hydro.

One gets into an interesting issue in prior art. Can satirical comments, which nevertheless accurately predict an "invention," be used as prior art?

New razors have been fodder for parody for more than a quarter century. In 1975, the inaugural episode of "Saturday Night Live" included a mock commercial for a three-blade razor with the slogan, "Because you'll believe anything."

The introduction of Gillette's Fusion razor, kept secret until its debut in 2005, was eerily predicted the year before by the satirical Onion newspaper, which ran a fake memo from a shaving executive bragging about besting a competitor's four-blade razor by making one with five.

**from 2007:

Depressions, radicals, Wobblies, and patent reform

**from 2009:

Innovation and invention, again

**Of a different "prior art" story, recall Donald Duck and carbene:

In 1963, in an article about Methylene published by Californian Institute, the Carbene element is explained in detail, with a note “Among experiments which have not, to our knowledge, been carried out as yet is one of a most intriguing nature suggested in the literature” referencing the Donald Duck comic. One year later , in another article, Carbene is explained a bit more in detail by a scientist named Greenwald. He refers to Donald Duck also

“ Let me say that carbenes can be made but not isolated; i.e. they cannot be put into a jar and kept on a shelf. They can, however, be made to react with other substances. Donald was using carbene in just such a manner, many years before 'real chemists' thought to do so.”

Tuesday, July 13, 2010

Colorado Supreme Court justice victim of plagiarism

Parts of Scott McInnis' "Musings On Water," prepared for the Hasan Family Foundation about the history of Colorado water rights were identical to a 1984 article written by current Colorado Supreme Court Gregory Hobbs.

All of the common issues arise. McInnis blamed an assistant. The Hasans are not happy to have paid $300K for plagiarized work.

McInnis is in a primary and his opponent noted: "You can't point fingers, you can't blame others, you have to take responsibility for something you put your name on and take $300,000 for."

Geee, Poshard put Poshard's name on his Ph.D. thesis.

*** Vicky Collins at Huffington Post seems to have forgotten about Poshard and Biden and other plagiarists:

When asked by Adam Schrager of 9News about the controversy, [McInnis] said unapologetically, "voters don't really care about this issue. They care about jobs, getting back to work."

Hello? Are you kidding me? Of course we care about jobs, but we also want our politicians to be honorable. Hearing our politicians lie and cheat is usually something that comes out after they are elected to office. Why would we put this guy in the state house when he already has this kind of baggage and bad judgement.

Biden's plagiarism at Syracuse Law School got zero traction in the election. Poshard did lose in the governor's race, but still is president of SIU.

**Also Web opened wider world of theft of ideas


from McInnis not the first leader to plagiarize on 7 August 2010:

The opening paragraph of the September 17, 1987, edition of the New York Times says: "Senator Joseph R. Biden Jr., fighting to salvage his presidential campaign, today acknowledged 'a mistake' in his youth, when he plagiarized a law review article for a paper he wrote in his first year at law school."

Trent Franks speaks out on "patent reform"

Trent Franks identifies issues with the supposedly non-controversial change to "first to file":

First and most importantly, the Senate managers amendment changes the current patent process from our unique “first to invent” system to a “first to file” system. Purportedly, this change is being done to eliminate costly contests called “interferences” that occur between near-simultaneous inventors who claim the rights to the same subject matter. The goal of eliminating interferences is achievable by simple amendment changing Sec. 102(g) to a first-inventor-to-file criterion.

However, the current version of the amendment does much more, actually altering all of Sec. 102 to redefine the prior art and essentially gut the American one-year grace period, which has historically been a unique characteristic of the U.S. patent system. The one-year grace period is a time in which inventors are allowed to further develop, perfect and begin to market their product to investors and potential business partners in order to obtain the necessary funds to complete the patent application process. Many times, this is the first opportunity inventors will have to start a small technology-based business for the first time, which often requires obtaining loans and legal counsel as they seek to navigate the tedious patent process. The grace period has thus provided a critical protection against losing their patent rights because of leaks or inadvertent disclosure of information related to their invention prior to making their patent application. To alter or eliminate this grace period would be a grave mistake and would only serve to undermine patent holders’ rights and hamper innovation.

Franks concludes: As Congress undertakes to bring significant reform to the patent system, it must take caution to avoid worsening the bureaucratic mess hindering Americans’ ability to realize the benefits of their own intellectual property.

The "big sleeping dog" in patent reform arguments

An "editorial observer" piece in the New York Times by Brent Staples titled
Cutting and Pasting: A Senior Thesis by (Insert Name)
was a thinking man's version
of facts put out in an earlier NYT article [IPBiz coverage:

University of Central Florida tackles student cheating

The important message was in the text:

But as David Pritchard, a physics professor at the Massachusetts
Institute of Technology, told me recently:
“The big sleeping dog here is not the moral issue.
The problem is that kids don’t learn if they don’t do the work.”

In the "high profile" plagiarism cases of recent years, such as those involving
Laurence Tribe, Glenn Poshard, and Joe Biden, there is no consensus that what
these people did was "morally wrong." These three have plenty of

The underlying problem is that when work copied from the past is passed off
as new, nobody really has advanced.

This relates to issues in patent reform. Some of the "open source" people
take pride in NOT reading patents. This approach engenders
a rediscovering of the wheel syndrome. Society does not benefit if a bunch
of researchers pass off as new that which has already been done.

The very word "patent" (as distinct from "latent") means open and not hidden.
The point of the patent system is to make information available. Society doesn't
learn if people don't read what is available to them.

[In passing, the above-noted plagiarism cases reflect different issues. Tribe,
the well-known Harvard professor copied from a lesser-known professor, and no one
said anything for years. Poshard copied a literature overview from a book
into his Ph.D. thesis at SIU, even though the literature overview was for a period
prior to his thesis, and no one on his thesis committee noticed. Poshard went on
to become president of SIU. Biden copied
five pages from a law review into a paper for a first year course at Syracuse Law School,
and a fellow student did notice. Biden was given an F and had to repeat the course.
Biden went on to become Vice-President of the United
States. It is correct that none of the individuals
"learned" anything by copying, but it is separately true, at least for the Tribe
and Poshard cases, that people who should have recognized the problem
were asleep at the switch. None of the individuals were materially harmed by
the copying, and each became famous.]