Employee assignment at issue in Gellman

The nonprecedential CAFC case Gellman v. Tellular reviews caselaw including DDB and Stanford/Roche, and has some interesting dicta about inventor assignment issues.

The question of whether contractual language effects a present assignment of patent rights, or an agreement to assign rights in the future, however, is resolved by the law of this court. DDB Techs., L.L.C. v. MLB Advanced Media, L.P., 517 F.3d 1284, 1290 (Fed. Cir. 2008).

AND

While it is possible for an employee to assign any and all of his rights to future inventions, this court has consistently required that present assignments of future rights expressly undertake the assigning act at the time of the agreement, and not leave it to some future date. See Bd. of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 583 F.3d 832, 841–42 (Fed. Cir. 2009) (finding present assignment in the language “I will assign and do hereby assign”), aff’d, 131 S. Ct. 2188 (2011); DDB Techs., 517 F.3d at 1290 (same, for language “agrees to and does hereby grant and assign”); Speedplay, Inc. v. Bebop, Inc., 211 F.3d 1245, 1253 (Fed. Cir. 2000) (“hereby conveys, transfers, and assigns”); FilmTec Corp. v. Allied-Signal Inc., 939 F.2d 1568, 1573 (Fed. Cir. 1991) (“agrees to grant and does hereby grant”). By that measure, the language of the Unsigned Agreement is lacking. Rather than expressly undertake assignment at signing, it expressly delays assignment to some future date, when Mr. Seivert would “execute any and all assignments or other transfer documents” necessary to convey his rights to Cellular Alarm. The district court was therefore correct in its conclusion that the Unsigned Agreement, if enforceable as a contract, could do no more than create an equitable claim for the Lebowitz Trust. And as already mentioned equitable claims do not themselves confer standing.

The same logic applies to Ms. Gellman’s claim that the “hired to invent” doctrine can save her standing. Courts have in some cases held that the inventions of an employee hired to make that invention fairly belong to the employer. See, e.g., Solomons v. United States, 137 U.S. 342, 346 (1890). But this doctrine is expressly equitable, and creates only an obligation for the employee to assign to his employer. Melin v. United States, 478 F.2d 1210, 1213 (Ct. Cl. 1973); see also Banks v. Unisys Corp., 228 F.3d 1357, 1359 (Fed. Cir. 2000). It cannot save Ms. Gellman’s case.

Of some dicta:

These efforts to demonstrate standing, however, fail as a matter of law. At the outset we note that the lack of a signed instrument, while troubling, is not fully dispositive. The Patent Act requires that all assignments of patent interests be in writing. 35 U.S.C. § 261 (2006). But there are means of transferring patent ownership beyond assignment, and not all of them require a writing. Sky Techs. LLC v. SAP AG, 576 F.3d 1374, 1381 (Fed. Cir. 2009). Neither the district court nor the parties expressly addressed whether the contract here (if one were held to exist) would be an assignment subject to the requirements of section 261. Because we conclude that Ms. Gellman’s argument fails for other reasons, we need not reach this issue.

Merck cited by BPAI in affirming obviousness rejection in Ex parte Schoenberg

Non-obviousness cannot be established by attacking references individually when the rejection is predicated on a combination.
Merck, 800 F.2d 1091, 1097 (Fed. Cir. 1986).

Of the details

The Examiner applied Harsham simply to show the unremarkable fact that one of ordinary skill knew that using rules to set parameters in a computer system simplified tasks. FF 02. As Kerr describes a medical computer system, Harsham simply shows that one of ordinary skill new that Kerr’s administration could be simplified by using rules. Vulpe shows how to improve the organization of documents using a document management system.

The Examiner applied Vulpe simply to show how one of ordinary skill might implement the records management required by Kerr, with the aid of Harsham’s rules, by using Vulpe’s 21 architecture for records management. Ans. 5.

A separate issue was the offensive use of a provisional application filing date:

The Appellant contends that the Examiner has not shown that the provisional application 60/556,470, filed on March 26, 2004 supports this and that the Examiner did not provide a copy of this document.

This document is available on the Office’s web site under public PAIR. Inspection of this document shows support for describing this limitation at page 13 describing the use of an encryption key to access patient records.

Steve Jobs' patents

A New York Times article on Steve Jobs patents made The 40 most-shared articles on Facebook in 2011.

Link for 40:
http://news.yahoo.com/blogs/cutline/share-40-most-shared-articles-facebook-2011-194419249.html

Justice Kennedy and the Affordable Health Care Act

An article at news.yahoo on the Supreme Court hearing arguments about the Affordable Health Care Act begins with an emphasis on Justice Anthony Kennedy:

If the Supreme Court breaks down along its usual ideological lines on the vote on the health care law, Justice Anthony Kennedy -- known as the swing vote on the court -- could be the one to decide whether the government can require almost every American to buy health insurance or pay a fine.

The article presents an analysis of "how" Justice Kennedy came out on similar cases. An opinion piece at the Washington Post is even more blunt:

May it please the court: Yes, there are fancy legal arguments about the individual mandate for health care, but let’s stipulate the obvious: The Constitution is what five of you say it is. On today’s court, this really means what one of you says it is. With that in mind, Justice Anthony Kennedy, here are five thoughts I hope you’ll consider.

IPBiz has discussed the significant role of Justice Kennedy. See for example The power in being the swing vote

One recalls Justice Kennedy's concurring opinion in eBay which included:

In addition injunctive relief may have different consequences for the burgeoning number of patents over business methods, which were not of much economic and legal significance in earlier times. The potential vagueness and suspect validity of some of these patents may affect the calculus under the four-factor test.

Should Rick Perry be making tee-shirts for Old Navy?

There is a report that Rick Perry said:


"Those who are going to be over 21 on November 12th, I ask for your support," Perry said, eliciting a few chuckles from the crowd. "Those who won’t be, just work hard. Because you’re... counting on us."

Meanwhile, at Old Navy:

T-shirts representing Iowa, Colorado and Arizona show that the founding years for each of those universities is 1820, 1878 and 1881 respectively. However, the real founding years for those schools are 1847, 1876 and 1885.


Links:

http://news.yahoo.com/rick-perry-forgets-two-things-same-sentence-202523382.html

http://rivals.yahoo.com/ncaa/football/blog/dr_saturday/post/Old-Navy-forgot-to-fact-check-its-new-collegiate?urn=ncaaf-wp10750

Huguette Clark story fit for "Law and Order"

If the original Law & Order were still around, the story of Huguette Clark (daughter of former Senator William A. Clark ) would be done, with lawyers figuring prominently.

News.yahoo reported:

A court-ordered accounting of the Paris-born heiress' finances as overseen by [lawyer] Bock and [accountant] Kamsler in the last 15 years of her life is "a chilling report of the mishandling, misappropriation and mismanagement" of her assets, the relatives' lawyer, John R. Morken, wrote in papers filed Monday.

AND

Clark was married briefly in her 20s to a poor bank clerk studying law. They parted ways after only nine months.

William Clark's career as a U.S. Senator is of interest, and is not unrelated to the passage of the 17th Amendment. Mark Twain wrote of Clark:


"He is as rotten a human being as can be found anywhere under the flag; he is a shame to the American nation, and no one has helped to send him to the Senate who did not know that his proper place was the penitentiary, with a ball and chain on his legs. To my mind he is the most disgusting creature that the republic has produced since Tweed's time."

Clark himself said:

"I never bought a man who wasn't for sale."

The poor bank clerk mentioned by yahoo.news was William MacDonald Gower, the son of a business associate of her late father and a Princeton grad.

The Fifth Avenue residence of Clark was at 952 Fifth Ave [wikipedia] Note following the death of her father in 1925, she and her mother moved from a mansion at 962 Fifth Avenue to a 12th floor apartment at 907 Fifth Avenue. [ask.com]

The missing "not" in In re Benson and Smith

A decision of the BPAI omitted the word "not" in a claim construction, and appellant relied on that version. The omission(s) were in error and created inconsistencies in the BPAI decision. The motion to remand was granted.

Re-exam granted on US 7,993,889 to Butamax

On 27 August 2011, IPBiz had posted on the inter partes re-examination sought by Gevo as to the '188 patent of Butamax
[See
Gevo's inter partes re-exam request as to US 7,851,188 ]. In a communication mailed on 27 October 2011, the USPTO denied the petition for re-exam. The USPTO found NO substantial new questions of patentability for the claims challenged by Gevo. The sixteen page document was signed by Johnny F. Railley II, Deborah D. Jones, and Evelyn M. Huang.

HOWEVER, as to re-examination 95/001,735 concerning US 7,993,889 to Butamax, SNQs were found in a determination mailed on November 25, 2011. There is an Office Action with the determination. The first rejection is of some interest. Claim 1 (and others) are rejected under 102(b) over the 2003 Larroy publication ("Larroy I") because the host yeast cell described therein produces isobutanol and thus inherently possesses all the genes disclosed in claim 1. [OA, page 6]. Boulton and Dickinson are used to supplement the inherency argument.

Interpreting 28 U.S.C. § 1920

Of the history of the Synopsys case, the CAFC noted:

After nearly seven years of litigation, the district court granted Synopsys’s motion for summary judgment of noninfringement on April 15, 2010. We affirmed without opinion. In re Ricoh Co., Ltd. Patent Litig., 412 F. App’x 297, 298 (Fed. Cir. 2011).

And, of what was left of the case facing the CAFC in November 2011:

After judgment was entered against Ricoh, Synopsys filed a Bill of Costs seeking approximately $1.375 million in costs. Ricoh objected to the Bill of Costs. Synopsys filed an amended Bill of Costs seeking $1,208,616.09, to which Ricoh again objected. The Clerk disallowed $353,508.40 of the costs sought by Synopsys for a final taxation of $855,107.69. At the request of both parties, the District Court reviewed the Clerk’s taxation of costs and increased the allowed costs to $938,957.72. The district court stayed Ricoh’s payment of the costs pending this court’s decision on the merits. Taxation Order, slip op. at 16.
On November 12, 2010, the district court entered a judgment, awarding costs in the amount of $938,957.72 plus applicable post-judgment interest. Ricoh timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).




As to sharing costs:

Here, there is no dispute that Synopsys agreed to share the cost of the Stratify database with Ricoh. Syn- opsys originally proposed that Ricoh “agree to pay half of the costs associated with producing [Synopsys’s] e-mails.” J.A. 3062. When Ricoh later suggested using Stratify to produce the e-mails, it agreed that “[t]he cost would be divided between the parties.” J.A. 3069. The parties then implemented this arrangement by entering into a 14-page agreement with Stratify in which they jointly retained Stratify to perform electronic discovery services. The parties characterized this agreement as a cost-sharing agreement, but never indicated that the cost-sharing was only temporary. Communications between the parties after the agreement with Stratify was executed continued to reflect the cost-sharing agreement. See, e.g., J.A. 3396 (“Accordingly, we . . . will split the cost, pursuant to the contract, of the additional databases.”). There is no indication in any of the extensive communications be- tween the parties that they intended this cost-sharing agreement to be anything other than a final settlement of the cost of the Stratify database. If the cost-sharing agreement were designed to be only an interim agree- ment, it seems likely that there would have been some indication to that effect in either the communications between counsel or the agreement with Stratify. Under these circumstances, the parties’ agreement is best inter- preted as agreeing to a final, not an interim, sharing of costs.

The parties’ agreement to share the cost of the Stratify database is controlling, and we reverse the district court’s award of $234,702.43 for Synopsys’s share of the database.

As to reproduction:

In light of the inadequate documentation, the district court abused its discretion in awarding $322,515.71 for reproduction and exemplification disputed by Ricoh.2 At the same time it is far from clear that the $146,584.83 conceded by Ricoh represents the full costs of copying the documents produced for Ricoh. Under the circumstances we think the best course is to vacate the district court’s award in this respect and to remand to the district court for further consideration.3

As to depositions:

Here, the district court taxed Ricoh for all depositions taken in the case because they “were taken in connection with several relevant aspects of the case, from validity to damage issues. As such, at the time the depositions were taken, it was reasonable to expect that they were for the purpose of trial preparation.” Taxation Order, slip op. at 15 (citation omitted). This finding was within the discre- tion of the district court. Because translation was necessary in connection with a number of these depositions, those costs are taxable under section 1920 as well. See Taniguchi v. Kan Pac. Saipan, Ltd., 633 F.3d 1218, 1221– 22 (9th Cir. 2011).

Kansas twitter incident: is it ok to tweet something that didn't happen?

Emma Sullivan, 18, of the Kansas City suburb of Fairway was attending a Youth in Government program in Topeka, KS and tweeted: "Just made mean comments at gov. brownback and told him he sucked, in person (hash)heblowsalot." In reality, she made no such comments to Brownback.

Predictably, some attention was directed to Sullivan after Brownback's people learned of the tweet.

Separate from Sullivan's opinion of Brownback, is it all right to publish something that is false? Is it true that the tweet has helped "open up dialogue" about free speech in social media?

UPDATE.

It was Brownback, not Sullivan, who apologized. From news.yahoo:

She said she was just joking with friends, but Brownback's office, which monitors social media for postings containing the governor's name, contacted the youth program. Sullivan said she was called to the principal's office for the first time ever and told to apologize in writing to the governor.
"My staff overreacted to this tweet, and for that I apologize," Brownback said in a statement Monday. "Freedom of speech is among our most treasured freedoms."
The reaction exemplifies what Bradley Shear, a Washington, D.C.-area social media attorney, called an example of the nationwide chasm between government officials and rapidly evolving technology.
"This reflects poorly on the governor's office," Shear said. "It demonstrates their P.R. department and whoever is dealing with these issues need to get a better understanding of social media in the social media age. The biggest problem is government disconnect and a lack of understanding of how people use the technology."

The apology revolves around "freedom of speech" and does not get into the matter that Sullivan never actually did what she tweeted.

Stanford Daily on plagiarism: does intent define plagiarism?

Within a post titled CS Department remains atop Honor Code breaches in the Stanford Daily, one finds:

“Plagiarism has an intent,” he [Aiken] said. “Similarity is a more technical notion. When we find things that look the same, we don’t know necessarily why they look the same. Humans still have to look at it.”

AND

He did add that he thought it was getting easier for professors to report instances of plagiarism to the judicial committee, because “there are definitely degrees of infraction [affected by] intent and the degree to which things were copied.”

IPBiz notes plagiarism is copying without attribution. Plagiarism has no intent. Few people will ever admit to copying "deliberately."

As background from the article:

CS professor Alex Aiken developed the department’s plagiarism detection system, known as Measure of Software Similarity (MOSS), which is used at universities around the world. He rejected the possibility that the higher levels of plagiarism in CS classes come from a heavier workload.

Bad advice from United/Continental

The above picture is from a Continental/United ticket kiosk in Newark Airport in November 2011.

The interesting point is that, if one follows the instructions on the screen, one will not get the credit card to work, mainly because the instructions on the kiosk screen are wrong.

"60 Minutes" on November 27, 2011

The first story is about the Metzger family, emblematic of 16 million kids living in poverty.

Never has unemployment been so high for so long. This story on Nov. 27 is a followup to "Hard Times Generation" on homeless people in central Florida. "A hidden America." December 2007. Now, in Seminole County, Florida. Eating out of cans. The family has been living in a truck for about five months. It's only life; you do what you need to do. There are about 1100 homeless students. 60 minutes talked to kids at a school in Casselberry, FL. Beth Davilos was interviewed; she uses county money and donations to put up families. 2/3 of homeless families in Florida are living on the street. The longevity of homelessness continues to rise. Running out of all options. As a result of the previous story, money (about $4 million) came in. Security, lighting, a place you might be welcome. Wal-marts, YMCA, hospital emergency room entrance. Orlando Rescue Mission was mentioned. One threat is idleness. The story ended with the Metzger's truck parked in the lot of a community theater.

The second story is on flavoring foods. A burst in the beginning and a finish that doesn't linger too much. Create an addictive taste. The flavorists. A craving for everything from soda pop to chicken soup. Super sniffers and super tasters. A citrus grove in Riverside, CA. Like an artist going to Rome. How to move flavors from the grove onto the super market. Take whatever this smells like and copy it. A burst in the beginning, that doesn't linger, so you want more of it. Go back for, again and agin. Givaudan, Swiss company, employs about 9,000 people. Michelle Hagan creates thousands of flavors. 750 flavors of oranges. Butyric acid, artificial and natural. Strawberry and vanilla can come from a gland in a beaver's backside. Flavor of an old oak tree. Alchemy of inventing a new flavor. Use hundreds of different notes. Hong Kong kumquat. Carrot on top of the kumquat. In Hong Kong, annual conclave of chefs. Turn those creations into new commercial flavors. Do it over and over again until you get a headache. Turn taste in frozen dinner. Whole lineup of chicken flavors. Crusty, fatty chicken. Givaudan plant in Kentucky: endless stream of part-chicken, part-flavorant. Vacuum dried into oven and ground into a powder. chicken by the ton. Vegetarian chicken. "Natural flavors" Flavor intensified with fat, sugar, or salt. Dr. David Kessler interviewed by 60 Minutes. They make food super palatable. But look around at Americans. Learned what people want. Irresistability. Bob Pellegrino vice president of global strategy at Givaudan. Make taste experiences pleasurable. Food industry wants people want more. OR desire for memorability? A consumable product that is better for you. A whole new world that did not exist ten years ago. Is obesity going down? The answer would be no.

The third story is on Angelina Jolie. Wild, weird, and eccentric? Angelina talks about her upcoming film. "In the Land of Blood and Honey." It's about the war in Bosnia. People thought it was a bit crazy. There's no humor in this movie. Muslim woman falling in love with Serb, Daniel. Jail scenes shot in Budapest museum. Bosnian rape victims protested the Jolie movie. It's a movie, not a documentary. She won an Oscar for Girl Interrupted. Played a Bond-like character in Salt. "A Mighty Heart". Clint Eastwood: she's a great talent. Angelina wanted to be a funeral director. Was very upset with the funeral of her grandfather. Talking about heavy darker times. Too many chances taken. Good will ambassador for the UN. Member of Council on Foreign Relations. Angelina said no plans to get married (to Brad). Angelina referred to her mother as grace incarnate. Angelina is nervous that people won't understand her new movie. She's planning another movie on Afghanistan. What's risky is living your life and never trying anything.

ITC rules that Apple does NOT infringe S3 patents

The full ITC disagreed with an initial ruling by an ALJ, and found that Apple did not infringe any of the asserted patents of S3.

Trademark dispute over "Eat More Kale"

Does a man in Vermont selling "Eat More Kale" tee-shirts infringe the trademark rights of Chick-fil-a's "eat mor chikin" slogan?

From a story within the Burlington Free Press:

Fast forward to October 2011, when Muller-Moore's new pro bono attorney, Daniel Richardson of Tarrant, Gillies, Merriman & Richardson in Montpelier, received a letter from attorney Auma Reggy of the Atlanta firm, Arnall Golden Gregory LLP, representing Chick-fil-A. Reggy begins by establishing that Chick-fil-A is the "second largest quick-service chicken restaurant company in the United States," and that it has employed a "long-running, award-winning and very popular, successful and well-known advertisement campaign featuring cows encouraging the consumption of chicken rather than beef."

At the center of the campaign, Reggy explains, is Chick-fil-A's intellectual property, the phrase "EAT MOR CHIKIN." The company has used the phrase since at least 1995, Reggy writes, and owns numerous U.S. and international trademark and copyright registrations for both EAT MOR CHIKIN and for cows holding sandwich-boards reading EAT MOR CHIKIN.

One might think that consumers of chicken are not likely to be confused thinking someone pushing kale is the same source as someone pushing chicken. And "more" is different from "mor."

CBS Sunday Morning on November 27, 2011

The cover story was by Rita Braver on positive thinking. She began with the story of Mark Herzlich from Boston College who now plays for the New York Giants. Then, Lance Armstrong: a person with a positive optimistic attitude does a lot better. Richard Sloan of Columbia University takes a different view: one person's anecdote does not constitute evidence. [See also: Blind Faith: The Unholy Alliance of Religion and Medicine ] James Coyne of UPenn. [ selected publications ] There are some things you can modify in your life, but cancer is not one of them. Avon Race to raise money for breast cancer. Barbara Ehrenreich did a book criticizing the impact of positive thinking. [See Pathologies of Hope] On the other side: Lee Fortson did book Embrace, Release, Heal. Dr. Barry Boyce of Yale believes attitude may play a role. But, overall belief in positive thinking can be dangerous. James Coyne.

Pulse: 91% believe positive thinking can make life better.

November 27, 1910: opening day for Penn Station in New York City. Covered more than 9 acres. Glenn Miller in Chattanooga Choo Choo. Farley Granger in "Strangers on a Train." Penn Station torn down in 1963 through 1965. We will probably be judged not by the monuments we build but by the monuments we destroy.

Seth Doane on contemporary art in Venice. Biennale draws about 400,000 between June and September. Williams College student interning. 89 countries are taking part this time. The wind machine. New artists come in. Giardini. The Golden Lion award. The US pavilion has an overturned tank with a runner on top. Inside a pipe organ/ATM. Glory of religion/glory of money? Italian pavilion is in the Arsenalle. The theme of the Biennale is illumination. One pavilion involves colored light. Prada took over one house to showcase artists. Don't be afraid to say you don't understand this. Iraq pavilion is about contaminated water.

Mary J. Blige at Macy's Parade. She has 9 Grammys; queen of hip hop soul. Her lyrics reflect her struggles. My Life II. related to her 1994 record My Life. The sexual abuse she experienced at age 5. I can't get angry about an interviewer asking the same stupid questions. She was sent by her record label to an etiquette class. She did say "no" to a name change to "Brown." Mary Jane Blige was born in the Bronx and raised in Yonkers. A tape from a Karaoke booth got her a start. Ghetto Fabulous. Married to Isaacs for 8 years.

Mo Rocca on the impact of divorce on dogs. Story of Baldwin, dog (Portugese water dog). Animals internalize. Baldwin works as a therapy dog in Los Angeles. Susan and Dan agreed with shared custody of Baldwin. Pet custody cases are up 25% in last ten years. Drew Barrymore; Anne Heche. Allusion to war of the roses: what the pate is made of. Woof. Raul Felder, divorce lawyer from New York City. People get attached to animals. Catherine Bentley and dog Trooper. Joint custody. But she left Colorado. Then, re-created divorce process. Pets are treated as property. Bob Brandau, a trainer in New Jersey, disagrees.

David Edelstein on Hugo and The Artist. Martin Scorcese crafts a gargantuan train set of a movie. Story of technological exuberance. In The Artist: too much of an artist to speak. Will silence come back? Not hardly. Rediscover our sense of wonder, with our ears in check.

Mail to Sunday Morning. Criticized Red Hot Chile Peppers piece. Criticized leaf blower story, insignificant dispute. On Stein on post office, favorable. 524 West 57th St., Box O. email: Sundays@cbs.com.

Erin Moriarty on Ellen Barkin. Nose like Karl Malden? It's not for everyone. Sea of Love. I believe in animal attraction. New York's Lincoln Center: exhibition of classic movie posters. Ellen Barkin on Twitter. Dozens of posts per day. Gingrich has my exact hair cut. Rough language; in your face attitude. Ellen grew up in South Bronx and in Queens. In mid-20s before first work in theater. Very committed to learning her job. Her first break was in Diner. I just want to hear the music, that's all. Barry Levinson. Others: she can't be that girl, she's not pretty. 1989: Sea of Love. Every girl in Hollywood turned the part down. Siesta; Gabriel Byrne. Ron Perlman: how the rich call it quits. An extremely difficult time. Auctioned off jewelry, led to a scene in Sex and the City. The Normal Heart. Ocean's Thirteen. Another Happy Day comes 30 years after role in Diner. Another Happy Day is directed by Sam Levinson. Barkin is now 57. Hollywood has grown accustomed to that face. I like this third act, so far.

Opinion by Ben Stein. Iron bars in front of windows in Beverly Hills. Zombies? Zombie Survival Guide. The first branch of the US government is the inspiration for the zombie craze. The Congressional walking dead. They are in another realm. Time doesn't mean a lot to a zombie. They need a little pick me up. They are not quite in the land of the living.

Martha Teichner on Wiggle Room on jello. See your childhood through it. The Jello museum in LeRoy, New York is based on the connection to Pearle Waite [ from the website: In 1845, Peter Cooper dabbled with and patented a product which was "set" with gelatin. Suffice it to say, it never did "jell" with the American public. In 1897, Pearle Wait, a carpenter in LeRoy, was putting up a cough remedy and laxative tea in his home. He experimented with gelatine and came up with a fruit flavored dessert which his wife, May, named Jell-O. ] Orator F. Woodward buys exclusive rights to Jello. Lynne Belluscio is curator of Jello Museum. Jello girl introduced in 1904. Jack Benny pitched Jello in 1930s. In 1970s, Bill Cosby pitched to kids. 420 million boxes sold per year. Billion jello cups. Now, Jello as an artform. Michelle Zatta. Gelatin design event in a Brooklyn artist studio. Alcoholic Jello shot in the shape of a bullet. The Minibar in Washington, DC. Sodium alginate. Coat a spoonful of colored water. Hot gelatin: agar agar. Shark fin soup minus the shark. Gelatin ravioli. Champaign with jelly balls inside. The power of gelatin. Favorite flavor: cherry 27%.
[As to intellectual property: the guy who patented jello (Cooper) did not enjoy commercial success. Nor did the second guy (Wait). It was a promoter who made Jello a success. The key intellectual property was the trademark. ]


Next week: Charlize Theron.

Moment of nature. Pradaxa. Sierra Nevada Mountains near Lake Tahoe.


***On Face the Nation. Michael Lewis: Boomerang.

Something to look forward to at the new Patent Trial and Appeal Board

PatentHawk quoting Hal Wegner:

The Instant Trial Lawyer without a Law Degree with Two Days study Experience: The skewed values will become even more apparent ten months from now when this 21 year old who has studied for two days will be able to be trial counsel for administrative trials at the new Patent Trial and Appeal Board, whereas a twenty year veteran patent trial lawyer who is not registered is proscribed from doing so absent a pro hac vice admission.

Plagiarism excuse: only a "hectic and uncoordinated collector" of information

Die Welt ran a headline on zu Guttenberg's new book: "Guttenback!". In fact, the disgraced plagiarist is alive and well in Greenwich, CT, and has joined the Center for Strategic & International Studies as a "distinguished statesman."

The resistance to the return of zu Guttenberg was termed "a revolution of the respectable."

Of course, there's always room for one more in Carbondale, IL at SIU where the respectable lost out.

On California's CIRM

Californiastemcellreport wrote on November 23, 2011:

The campaign [for Proposition 71] generated impressions among voters that cures – specifically human embryonic stem cell cures – were just around the corner and that the Bush Administration, with its restrictions on hESC research, was the only thing standing in the way. Indeed, without George Bush, there would be no state stem cell agency since his stand against hESC created an apparent need for alternative funding. For voters who expected instant cures, however, CIRM must be a sad disappointment since it has developed no therapy that is being used to treat people.

IPBiz notes that when the California voters voted Prop 71 in, scientists thought Huang Woo Suk's work on hESC was real.
In 2011, the current state of the art is still not up to what Huang Woo Suk falsely reported in the journal Science. Californiastemcellreport should give Huang Woo Suk some credit for the passage of Prop 71.

Just like fee diversion?

A recent post in the Washington Times about the health care law:

All told, Congress and the president have tapped some $50 billion earmarked to pay for benefits and programs in the health care overhaul in future years to fund more-immediate spending needs.

Both earlier efforts dealt with health care issues, but the bill Mr. Obama signed Monday marks the first time that the massive 2010 law has been tapped to fund something completely unrelated.

“They don’t want to open it up. They’re getting forced to open it up now and then, but to open it up for budgetary reasons, I think the pressures are pretty real,” said former Congressional Budget Office Director Doug Holtz-Eakin, who said it’s easier to cut future benefits than it is to cut programs that are already paying out.

Most of the health care law’s benefits won’t begin paying out for several years, and Mr. Holtz-Eakin said he expects legislators to revisit the law again before then.

The failure of the bipartisan supercommittee this week to come up with a plan to shrink the federal deficit and find spending cuts and revenues is likely to increase the pressure to raid the health care program for funds.

Life under AIA

Kristin Jones writes:

Under the new first-to-file system, the key is who gets to the patent office first.

Inventors now have to balance the risk of having their invention copied with the speed at which they can afford to apply. Weaker applications may also be viewed as having less value.

However, the move to a first-to-file system isn’t without merit. For larger companies, the impact of having a predictable, more-transparent process in line with global practices greatly reduces their costs, can lead to a much greater emphasis on innovation, and should result in job creation to support further discovery.

Nothing new on "the umbrella man" of Nov. 22, 1963

In a post titled JFK assassination “Umbrella Man” mystery explained which appears on yahoo.news, Eric Pfeiffer does not actually explain the mystery of the umbrella man:

As Morris and Thompson both attest, the image of the Umbrella Man is "sinister." But there's an unexpected layer to the story. As it turns out, the Umbrella Man actually testified before the House Select Committee on Assassinations in the late 1970's and his true identity has been a matter of public record for decades. Without giving away the full saga of Umbrella Man, suffice it to say that it's like much of the stories that continue to spin out of that fateful day in Dallas: at once too strange, and too mundane, to seem entirely believable.

Thus, while plumping up the idea that a new revelation has appeared in November 2011, Pfeiffer doesn't give it. In fact, it's not a "new" revelation either. Wikipedia notes of the Umbrella Man

After an appeal to the public by the United States House Select Committee on Assassinations, Louie Steven Witt came forward in 1978 and claimed to be the Umbrella Man. He claimed he still had that umbrella and did not know he had been the subject of controversy. He said that he brought the umbrella to simply heckle Kennedy. John Kennedy's father had been a supporter of the Nazi-appeasing British Prime Minister Neville Chamberlain. By waving a black umbrella, Chamberlain's trademark fashion accessory, Witt claims he was protesting the Kennedy family appeasing Adolf Hitler before World War II. An umbrella had been used in cartoons in the 1930s to symbolize such appeasement.[2] Kennedy, who wrote a thesis on appeasement while at Harvard, Why England Slept, might have recognized the symbolism of the umbrella.

To believe this story, one has to be willing to believe that someone in 1963 wanted to heckle President Kennedy for actions by Kennedy's father in the 1930's? Furthermore, as to Witt, how did it happen that he was not interviewed by the Warren Commission in 1963-1964, with Witt coming forward fifteen years later, as if the Umbrella Man issue had not been identified in the 1960s? Hard to believe.

As to credibility issues in the matter, see previous IPBiz posts including

September 27: anniversary of 1964 declaration that Oswald acted alone


On Gerald Posner and "accidental plagiarism"

**For clarity, Kennedy's thesis (and book) titled "Why England Slept" is a play on the title of Churchill's book "While England Slept." John Kennedy's thesis DID DEFEND the appeasement policies of Chamberlain. Wikipedia notes the book "is notable for its uncommon stance of not castigating the appeasement policy of the British government at the time." Kennedy the son defended the policies of Kennedy the father, who paid to have the thesis made into a book.

Federal gov help for small biotech filing foreign patent applications?

Within an article titled USPTO Effort for Small Businesses Seeking Overseas Patents Draws Interest from Bioindustry, Genetic Engineeering and Biotechnology News wrote:

In consultation with Commerce Secretary Gary Locke and Small Business Administration Administrator Karen G. Mills, USPTO director David Kappos is required to submit the study by January 14, 2012, under the Leahy-Smith America Invents Act, the patent reform law enacted in September by President Barack Obama.

USPTO held hearings on the study October 27 and November 1. Among the questions the USPTO report is intended to answer:

What role, if any, should the federal government play?
Should Washington establish a loan fund, a grant program, or both?
What criteria should be created to qualify companies for loans and/or grants?
What role, if any, should the private sector play in the funding programs?

A newsflash from IPBiz: Gary Locke resigned as Secretary of Commerce on August 1, 2011 to become the U.S. Ambassador to the People's Republic of China.

Also within the GEN article:

Hans Sauer, Ph.D., BIO’s deputy general counsel, intellectual property, explained to GEN that startups can expect to spend six figures for patent applications after accounting for filing costs and translation costs. “Just to start the process in foreign countries, you’re looking at an expense of $150,000 or more,” Dr. Sauer said. “If you have three patent applications, and you want to go into these foreign countries, you’re looking at a half million dollars. That might not be a small chunk of your R&D budget for the year.”

Apple's US 8,064,685: 3D object recognition

The abstract states:

A method, device, system, and computer program for object recognition of a 3D object of a certain object class using a statistical shape model for recovering 3D shapes from a 2D representation of the 3D object and comparing the recovered 3D shape with known 3D to 2D representations of at least one object of the object class.

AND the first claim:

A method for object recognition of a three dimensional (3D) object, the method comprising at an electronic device, maintaining a statistical 3D-shape model used to express 3D-shapes of object features in terms of a median 3D-shape, .mu., and a base of 3D-shapes, W, where each 3D-shape, t.sub.3D(i), is expressed in terms of an associated latent characteristic, u(i), as t.sub.3D(i)=W*u(i)+.mu., where 3D-shape vectors t.sub.3D and .mu. are d-dimensional, a matrix of the base of 3D-shapes is (d.times.q)-dimensional, and latent characteristic vectors u are q-dimensional, and where the object features include points, lines and contours corresponding to objects of an object class; accessing a profile corresponding to at least a known object of the object class, the profile stored on persistent storage communicatively coupled with the electronic device, the profile including a latent characteristic, u(k), associated with a 3D-shape, t.sub.3D(k), of the known object, in accordance with the statistical 3D-shape model, t.sub.3D(k)=W*u(k)+.mu.; detecting, by the electronic device, object features, t.sub.2D(o), of an object depicted in a two dimensional (2D) image, where a vector, t.sub.2D, representing representation of said detected object features is e-dimensional; determining, by the electronic device, a 3D-shape, t.sub.3D(o), corresponding to the detected object features, t.sub.2D(o), such that a projection model f(t.sub.3D) applied to the determined 3D-shape, t.sub.3D(o), results in the detected object features t.sub.2D(o)=f[t.sub.3D(o)], said determining the 3D-shape, t.sub.3D(o), comprising: optimizing the projection model, f[t.sub.3D(i)], applied to 3D-shapes, t.sub.3D(i), expressed in terms of respective latent characteristics, u(i), in accordance with the statistical 3D-shape model, t.sub.3D(i)=W*u(i)+.mu., said optimizing over the respective latent characteristics u(i), and selecting a latent characteristic u(o) corresponding to the optimized projection model, f[t.sub.3D(o)], such that the optimized projection model applied to a 3D shape expressed in terms of the selected latent characteristic, u(o), results in the detected object features t.sub.2D(o)=f[W*u(o)+.mu.)], where the 3D-shape expressed in terms of the selected latent characteristic, u(o), represents the determined 3D-shape, t.sub.3D(o); comparing, by the electronic device, the selected latent characteristic u(o), corresponding to the detected object features, t.sub.2D(o), at least with the latent characteristic included in the stored profile, u(k), and associated with the 3D-shape, t.sub.3D(k), of the known object; selectively recognizing the object depicted in the 2D image as the known object based on said comparing.

The text beginning -- the method comprising at an electronic device-- is odd form for a method claim.

Also odd is the priority claim: This U.S. non-provisional application claims benefit of priority under 35 U.S.C. .sctn.119 of Swedish Patent Application No. 0402048-3, filed on Aug. 19, 2004, and U.S. Provisional Application No. 60/603,266 filed on Aug. 23, 2004, the entire contents of both of which are incorporated herein by reference.

The US case, 11/201,419 , was filed in 2005, with the patent issuing more than six years later.

Cited within the issued patent:

Blanz, Volker et al., Face Recognition Based on Fitting a 3D Morphable Model, (Sep. 2003), IEEE Transactions on Pattern Analysis and Machine Intelligence, vol. 25, No. 9, pp. 1063-1074.

Intellectual property insurance

See the post on Patent Baristas presenting an interview with Robert Fletcher, president and founder of Intellectual Property Insurance Services Corporation (IPISC).

Google getting out of the green energy business?

From Reuters' Google quits plans to make cheap renewable energy :

In 2009, the company's so-called Green Energy Czar, Bill Weihl, told Reuters that he expected to demonstrate within a few years working technology that could produce renewable energy at a cheaper price than coal.

"It is even odds, more or less," Weihl said at the time. "In three years, we could have multiple megawatts of plants out there."

A Google spokesman said that Weihl had left Google earlier this month.

Before joining Google in early 2006, William E. Weihl was CTO at Akamai Technologies.

Trump asserts brand value: at $3 billion his biggest asset -- by far -- is brand value

Donald Trump's biggest asset is brand value; from yahoo.tv:

On page 182, Trump lists holdings including $1.37 billion in New York City commercial properties and $1.22 billion in club facilities and related real estate. Liabilities include some $374 million in loans and mortgages.
At $3 billion his biggest asset -- by far -- is brand value, which according to a note "has been established by Predictiv, the highly respected brand valuation company."

Academic Douglas Brinkley unloads in Congress

In a move unthinkable for his namesake (not relative) David Brinkley, Rice University historian Douglas Brinkley stated to Alaskan Congressman Don Young :

"You don't own me. I pay your salary!"

In turn, Young noted:

"We're the ones who ask the questions, and you're the one who answers the questions. Boy I'm really pissed right now.

One can see the videoclip by linking here.

**UPDATE

As to the comment of Doug [below], IPBiz suggests the tact frequently taken by David Brinkley might be the preferable one.

NAS report on the biofuels industry has raised concerns

Robert Brown, professor of mechanical engineering at Iowa State University on the October 2011 NAS report on advanced biofuels:

"But I discovered that the petroleum industry consultant engaged by the panel to prepare the economic analysis for the report did not like our analysis for pyrolysis-based biofuels," Brown said.

The consultant, he said, decided ISU's capital costs were too low and "raised them sufficiently" to make the advanced biofuel economically unattractive in the near-term.

"We discovered that he employed unpublished data that only he had access to, which is not stated in the report," he said. "In the research community, such inaccessible data would never be allowed in a peer-reviewed publication, but its use in the National Academy report gives it the stamp of credibility that it does not deserve.

"I am disappointed that two years of analysis by researchers from academia, the national labs, and a petroleum company using detailed process models and vetted by three separate groups of reviewers can be dismissed by one person who extrapolated one unpublished data point."

The NAS re-analyzed existing data in a way "that allowed the study to make broad generalizations about advanced biofuels, which are not supported by the published literature," Brown said.

Virginia H. Dale, Oak Ridge National Laboratory corporate fellow:



"I find parts of the report to be misleading if the assumptions of the analysis are not considered," she said.

Dale describes the NAS report as a "compromise" among the academic committee members and is based on research published in the literature -- not necessarily based in science.

"It is difficult to conduct a scientific process when the data are inadequate, models are applied at scales inappropriate to the situation, or key processes are not included in the theories," she said. "All of these limitations are applicable to current analyses of effects of biofuels."

Comment on Groupon: "Without doubt, it was my worst ever business decision"

Concerning an article on groupon called Baker Forced to Make 102,000 Cupcakes for Grouponers , the cupcake maker Rachel Brown told the BBC of her deal with Groupon:

"Without doubt, it was my worst ever business decision. We had thousands of orders pouring in that really we hadn't expected to have. A much larger company would have difficulty coping."


One commenter on the article noted:

Groupon trains your customers that your product is NEVER worth full price. People who use Groupon will not become regular customers. They look for a deal and then move on. Groupon is a VERY BAD IDEA for any small business.... Period. I own a small business and will never do a Groupon deal, or others like them. We distribute buy one get one free coupons on our own, when we want to do marketing. Even then, most of the people who use the BOGO coupon never come back, unless they get another coupon. "Coupon people" are not who you want for regulars...

Of a patent connection:

http://ipbiz.blogspot.com/2010/11/groupon-and-mobgob-going-at-one-another.html

"60 Minutes" on November 20, 2011

The first story was on Grover Norquist and The Taxpayer Protection Pledge. Norquist worked as a volunteer for Nixon as a 12 year old, and analogized the pledge to branding (eg trademarking) like Coke. Tarnishing the brand was like rats in a Coke bottle.
Steve Croft line: you've got them by the short hairs. Harry Reid on Reps: they never compromise on Grover Norquist.
Americans for Tax Reform are not required to disclose their contributors. Norquist noted contributors have been threatened.
Keystone Pipeline. Last line from Norquist: I help make all this possible.

The second story was on Christine Lagarde, head of the IMF and a lawyer. Lagarde said: "It's become my brand: speaking the truth." Lagarde was at Baker & McKenzie. Lagarde criticized Paulson about decision on banks going under: we are debating what color swimming costume to wear when the tsunami is coming. Lagarde: regulation is needed in the banking area, where countries are exposed to risk. There's life and there's death and this ego business is nonsense compared to that. There was mention of Lagarde's "trademark charm."

Taylor Swift: Proving doubters wrong is a big part of her story. She's a stockbroker's daughter from Bucks County, PA. At spring break 2001, at age 11, she went to Nashville. Someone at RCA offered her a one year development deal. At age 14 she walked out at the end. She's become a brand. Taylor Swift is big, big business. Taylor Swift is a big corporation. Taylor is CEO, and manages hereself. In 2010, grammy for album of the year. Hit single: meanness. It's ok to be ourselves. Every singer with songs out there is raising the next generation.

CBS Sunday Morning on November 20, 2011

Charles Osgood introduced the stories for Sunday November 20, 2011. The annual food issue. Eat, drink, and be merry. Now, fat isn't so bad for you. Rita Braver does the cover story on fat is back in fashion. Chew the fat. Fat Chance Second, isn't it rich by Tracy Smith. Thomas Keller. Third. Mark Phillips on the sandwich. The Fourth Earl of Sandwich. Fourth, Mo Rocca on What a Dish, on a movie. Michelle Williams. ["My week with Marilyn"). Bill Geist on toasters, and the annual convention of toaster collectors. Gourmet olive oil; tiki bar.

News: Ghadaffi's son [Saif al-Islam Qaddafi ] arrested in South of Libya. Egyptians marching [ Egyptian military police in riot gear have stormed Tahrir Square ]. Pepper spraying at UC/Davis. Baseball testing for HGH [Baseball's new labor contract will include blood testing for human growth hormone, a rise in the minimum salary to $480,000 ]. Upsets in college football. Weather: line of storms marching across country but sunny on Sunday.

Osgood appears with a healthy breakfast to introduce Braver's cover story. The fat is on the fire. Jennifer McLagan (McGloggin): fat is the misunderstood ingredient. Lard is a four letter word. Jennifer is the author of the book "Fat." Rosemary-infused lard: a delicate flavor. Animal fat can be rich in vitamins and omega-3. Then, some old videoclips. Milk, eggs, bacon. Then, in late 1970s a Senate committee led by George McGovern hit on fat. The Senate report issued in an era of low fat products. Gary Taubes appears. 2010 study appearing in Annals of Medicine. Gordon Tomasselli says saturated fats are bad. Limit saturated fat to 7% of all consumed calories. Egg cooked in olive oil vs. egg cooked in chicken fat. 24% of typical American's calories come from snack foods.

Cattle herder in Kenya lives on 800 calories per day. Book "What I eat". Peter Menzel Museum of Science in Boston. Greenland person: 6700 calories per day. Americans, typically 2000 calories per day.

Next story. Apple picking. Lee Calhoun (Pinnacle, NC) interviewed by Serena Alschuler. Effort to save old Southern apples. Apples were critical part of early American died. Fried for breakfast; stewed for supper. Arkansas black; Swiss limbertwig. Heirloom varieties started to disappear. Blame it on the railroads. Calhoun saved over 500 varieties. Heritage apples. Foggy Ridge Cider. Re-inventing tradition. Restaurants using hard cider. Kazakstan is where apples come from.

1 in 6 Americans not sure where next meal coming from. Story by Mark Strassman begins in Atlanta, with view of expensive houses. Forsythe, GA: yesterday's givers become today's takers. The new poor. Food provider in Forsythe: "The Place." Interview with married retirees in their 70s, after bad investments, they qualify for food stamps. 14.7% of Americans are receiving food stamps. 49 million Americans say have trouble putting food on the table. Spike with problems with former soldiers. Operation Home Front in Atlanta. Hard times have come to Easy Street. Where do they go when they lose a home.

Carnegie Deli sandwich introduces Mark Philips story on invention of sandwich. John Montague, the 11th Earl of Sandwich. He wanted something he could easily eat with one hand. He never knew he invented it, 250 years ago. Might have been called a Portsmouth. The 11th earl needs income. His son is going into the sandwich business. This is a state of the times. We think retail is right at the heart of the economy. Inventing for Britain a new kind of sandwich business. A made to order sandwich business. Bread baked in front of you. It's a very competitive world. Earl of Sandwich version of BLT. Earl of Sandwich shops exist at Disney properties. Sliced bread first sold in 1928 in Chillicothe, Missouri.

Osgood appears in an apron to introduce Tracy Smith story on Thomas Keller. Keller personally insures a standard of excellence that is obsessive. Of the ten top Michelin restaurants, Keller has two on the top list. Keller wants to ensure money spent at restaurant was well worth it. Flowering broccoli. Intense respect for the ingredients. The simple becomes the sublime. $2600 per pound for egg/truffle combo. Keller son of drill instructor. Felt comfortable doing the same thing over and over again. Enjoyed repetition. Opened "The French Laundry" in 1994. Everyone moves quickly in Keller's restaurants. Plaque: Sense of urgency appears below every clock.

Osgood introduces Lee Cowan story on olive oil. Really pungent, really bitter oil is liked by Mike Madison. Extra virgin implies zero defects such as rancidity. UC/Davis center. 70% of imported oil does not meet international standards. Tom Muller, book Extra Virginity. Paradise for fraud. More than 98% of oil in US is imported. California Olive Branch. High Density farming getting olives from branch to mill: has a lot to do with quality of oil. Olive oil is most healthy fat. The higher the quality, the higher the level of antioxidants. Tasting room for olive oil.

Osgood speaks of chopsticks in introducing story by Lucy Craft, Wood you? Track the roots; went to town of Obama in Japan. Heavy hard wood like maple. In 17th century. Baseball bat chopsticks; tiny rulers. Slowing down and savoring every last morsel.

Mo Rocca on Marilyn Monroe movie. She put the x in excess. Her body has just woken up. Michelle Williams in "My week with Marilyn." The Prince and the Showgirl in 1957. Marilyn developed her own character. Marilyn could spin situations.
Do you think this is my best side? Thought every single day about expansion. Balloon attached to breast bone. Point nipples out. Michelle was 31, same age as Marilyn in Prince movie. Michelle emancipated. Dawson's Creek. Brokeback Mountain.
Living hand to mouth on other people's compliments. Tempted to stand over a subway grating? Only at night.


Tiki Bar story. Mai-Kai in Ft. Lauderdale. Tiki was polynesian adam. "The book of Tiki". 1934: Tiki craze, Don the Beachcomber. LA restaurant. In 1936: Trader Vic's in Oakland, CA. The Tiki craze crested with South Pacific. Otto's Shrunken Head. The Zombie, the Scorpion. The Mai Tai (of Trader Vics). A lot of rum makes the tiki drinks.

Waiter story. Sometimes people forget waiters are people. Waiters have feelings. $2.13 per hour. 15 to 20% of bill is what we like for a tip. 14 million Americans will have Thanksgiving at a restaurant this year.

Nancy Giles on bakers on a roll. Brooklyn's Coney Island Ave. Bialys and bagels. Bialys are oniony, hole-free cousin. Bialystok in Poland. Need New York City water. New breed of traditional New Yorker: Pakistani. Ali found a partner, Shah. Two Muslim men running a kosher bakery. A really good bialy has nothing to do with religion. This story ran right into Bill Geist story on toaster convention (no intervening commercial). A toaster fest. Monuments. Ken Huggins.
First American toaster by GE in 1908. Perchers. Floppers and swingers. Club sandwiches: three toast holders. Eddie Craft.
Sliced bread invented in 1920s. Sunbeam toaster. Travel toaster plugged into cigarette lighter. IR toaster. This year's convention in Columbia, South Carolina. Ken is a psychiatrist. Jim Barker fired up a 1923 model. Toaster vulture group. Richard Larrison, jewel box toaster. How do you put a price on a one of kind toaster.

Osgood went right into preview of Face the Nation. Ron Paul is in tie in Iowa caucuses.

Next week, Mary J. Blige.

Moment of Nature. Pradaxa. Among turkeys in Stonewall, Texas.

Osgood wishes everyone a beautiful and bountiful Thanksgiving.













Ads: Xiaflex (colagenase)

Steve Jobs and biotech

From within a post from Forbes titled Why Steve Jobs' Magic Doesn't Work In Medicine :

If we really want to talk about the biggest heroes of the digital age, we should always be starting with Robert Noyce, the Intel co-founder, or Jack Kilby, the physicist who won the Nobel Prize for his transistor work.

IPBiz notes that Noyce and Kilby were associated with the invention of the integrated circuit. Bardeen, Brattain, and Shockley won the Nobel Prize for the transistor.

Also within the article

The creation of the first statin drug for lowering cholesterol by Akira Endo, a Japanese scientist, which made no fortune for him but has also saved millions and made billions for Pfizer and AstraZeneca.

The text obliquely indicates that there was no "first mover" advantage in the statins. The article could have also mentioned the fate of the inventor of Lipitor. And, the text could have noted there was no "first mover" advantage for Xerox PARC.

cross-reference: Matthew Herper

The downside of refusing to license

The comments to an EETimes post entitled The biggest product turkeys of all time are amusing and include mention of the Osborne computer and even Gary Kildall. There were different opinions on BetaMax, which was first up in the initial list of turkeys.

From within, a comment that reflects LBE's understanding of VHS v. BetaMax:

The war was lost to simple greed, not picture or sound quality. Sony didn't license Beta initially to other makers, and then later (too little, too late) to a small handful. By that point, everyone and his brother were making VHS machines, and price competition effectively shut Beta out of the volume mainstream consumer market.

On the Osborne, one commenter wrote:

Osborne's second portable computer never saw sun light. Some engineers begun to talk about the next up-coming Osborne (Executive?); purchases of the Osborne 1 stoped and the company closed. A shame...

And one commenter bashed a law firm:

Actually DIVX is a 2for. DIVX was the invention of a law firm and the dearly departed Circuit City. Though it was poorly received, CC decided to focus on it to the exclusion of DVDs and DVD players. Because it was a rental disguised (and priced) as a purchase (calling all ECAD companies) it wasn't just disliked but viewed as dishonest. By the time the matador delivered "el estoque final" to DIVX, CC was behind its rival, Best Buy, and never recovered. Its once thriving rental business croaked even earlier. DIVX is a very excellent example of how not create, deploy, or bet the farm on *a* new product.

O2 Micro v. Beyond Innovation

On being hoisted on one's own petard:

Here, BiTEK submitted to the district court the pro- posed language that it now claims is “overbroad” and “exceeds the authority of a United States District Court.” Appellant Br. at 40–41. While BiTEK asserts that it reserved the right to later object to the language of the injunction that it proposed, we do not find it to be a suit- able tactic in litigation to propose language to a court with one’s fingers crossed, so to speak, and come back later and disown that language. We might have consid- ered BiTEK’s arguments differently had the district court, without briefing, adopted O2 Micro’s proposed injunction and had BiTEK properly objected to the form of the injunction. See Ortho-McNeil Pharm., Inc. v. Lupin Pharm., Inc., 603 F.3d 1377, 1381–82 (Fed. Cir. 2010). But we will not review the form of the injunction where BiTEK actively participated in the crafting of the injunc- tion and, in the course of that participation, offered the district court the specific language that BiTEK now claims was an abuse of discretion to adopt. Thus, the district court did not err in holding BiTEK to the lan- guage it proposed.


Cross-reference: Cayman Islands

Inventor wins procedural issue against law firm in malpractice case

Some background of the case:

This is a legal malpractice action in which Stephen Byrne alleges that WHE was negligent in failing to secure broader patent protection for his invention, which relates to an improvement to a grass and weed trimmer used in landscaping. Byrne alleges that, as a result of WHE’s negligence, he was unsuccessful in a patent infringement lawsuit against Black & Decker Corporation and related entities (collectively, “Black & Decker”). (...) Byrne retained WHE to prepare and prosecute a patent application for his invention, resulting in the issuance of United States Patent No. 5,115,870 (“the ’870 patent”) on May 26, 1992.

Yes, this patent litigation followed UNSUCCESSFUL licensing negotiations:

In late 2004, after unsuccessful licensing negotiations, Byrne sued Black & Decker in the United States District Court for the Eastern District of Kentucky, alleging that Black & Decker’s sale of a string trimmer containing a U- shaped wire edge guard infringed the ’815 patent. See Complaint, Byrne v. Black & Decker Corp., Case No. 2:04- cv-262 (E.D. Ky. Dec. 30, 2004), ECF 1.

Affidavits in the case:

Byrne opposed WHE’s motion, arguing that the proper inquiry is not whether the particular patent examiner in this case would have allowed the patent without the “planar” limitation, but whether a hypothetical claim without the “planar” limitation could have issued. In support of his opposition, Byrne submitted two affidavits: one from William Kiesel, a patent attorney, and another from Byrne himself. Kiesel’s opinion discussed the stan- dard of care for a patent attorney and WHE’s alleged negligence, as well as the scope of the prior art Bartholo- mew patent (U.S. Patent No. 4,091,536), on which the examiner relied in rejecting some of Byrne’s original claims. Byrne’s affidavit primarily related to the nature of his invention, the scope of the Bartholomew patent, and the novel features of his invention that were independent of the “planar” limitation.

Of some interest as to what the district court did:

Initially, the district court granted WHE’s motion to strike Kiesel’s affidavit, sua sponte deciding that Kiesel was “not qualified to provide expert testimony on the issue of legal malpractice in the patent application process.” Byrne v. Wood, Herron & Evans, LLP, 2009 WL 2382415, at *3 (E.D. Ky. July 30, 2009). It reached this decision despite the fact that Kiesel had worked as a patent attorney for 40 years, written and prosecuted over 500 patent applications, served as an adjunct professor of patent law, and previously prepared expert reports or provided expert testimony on patent-related issues, including in four legal malpractice cases. The court found that, because Kentucky law requires expert testimony on the standard of care in a malpractice action unless it is so obvious as to be familiar to a lay person, Byrne could not defeat summary judgment without such testimony. Id. at *2 (citing Stephens v. Denison, 150 S.W.3d 80, 82 (Ky. Ct. App. 2004).

An interesting nuance in the case:

Byrne is correct that our case law, as it currently reads, supports the district court’s jurisdiction over Byrne’s state law malpractice claim and, by extension, our jurisdiction to hear this appeal. Although we must adhere to our precedent, we believe this court should re-evaluate the question of whether jurisdiction exists to entertain a state law malpractice claim involving the validity of a hypothetical patent, for the reasons discussed below.

AND

Against this backdrop, it is difficult to see the federal interest in determining the validity of a hypothetical patent claim that is ancillary to a state law malpractice action. The outcome of such determinations invariably will rest on case-specific inquiries comparing prior art against patent claims that have not and will never issue. As such, these determinations, which involve only appli- cation and not interpretation of patent law, have little or no bearing on other cases. On the other hand, finding federal jurisdiction over malpractice cases involving questions of hypothetical patent claims opens the federal courthouse to an entire class of actions, thereby usurping state authority over this traditionally state law tort issue. See Grable, 545 U.S. at 318 (explaining the concern in Supreme Court precedent about attracting “a horde of original filings and removal cases” and “herald[ing] a potentially enormous shift of traditionally state cases into federal courts”).
Applying these federalism considerations, several courts either have outright disagreed with our analysis or have found a meaningful distinction when only hypotheti- cal patent rights are at stake. See, e.g., Genelink Biosci- ences, Inc. v. Colby, 722 F. Supp. 2d 592, 598-99 (D.N.J. 2010) (remanding a legal malpractice case for lack of subject matter jurisdiction, finding that “because no patent was issued, no patent rights are at stake, and there are therefore no fears that substantive patent law would [be] altered by inconsistency”); Roof Technical Servs., Inc. v. Hill, 679 F. Supp. 2d 749, 754 (N.D. Tex. 2010) (granting a motion to dismiss a legal malpractice case for lack of subject matter jurisdiction and explaining that, “there is a federal interest in the uniform applica- tion of patent laws, but that interest is not implicated here, where no patent rights are actually at stake”); Minton v. Gunn, 301 S.W.3d 702, 709 (Tex. App. Fort Worth 2009) (“[W]e believe the Federal Circuit misapplied United States Supreme Court precedent by disregarding the federalism analysis that the Supreme Court has applied to restrict the scope of ‘arising under’ jurisdiction to a ‘small and special category’ of cases . . . .”), petition for review granted (Feb. 8, 2011). In many cases, the proce- dural posture prevents us from reviewing these decisions, thus allowing courts simply to ignore our law. We address the issues in this appeal, however, because our existing case law compels us to do so.

As to Kentucky law:

To establish a claim for legal malpractice under Ken- tucky law, a plaintiff must prove the following: “(1) that there was an employment relationship with the defendant/attorney; (2) that the attorney neglected his duty to exercise the ordinary care of a reasonably competent attorney in the same or similar circumstances; and (3) that the attorney’s negligence was the proximate cause of damage to the client.” Stephens v. Denison, 150 S.W.3d 80, 81 (Ky. Ct. App. 2004).

The inventor wins on the "expert" issue!

On appeal, Byrne challenges the determination that he was not one of ordinary skill in the art qualified to offer expert testimony on the technical aspects of his invention and the prior art in the field. He argues that the district court abused its discretion in striking his affidavit primarily because the court made no finding of the level of skill in the art. We agree with Byrne.

Of some interest:

In the context of an obviousness determination, for example, “a district court’s failure to make a correct finding on the level of skill constitutes reversible error” unless it does not affect the ultimate conclusion under § 103. Innovention, 637 F.3d at 1323. For example, a district court does not commit reversible error when it applies the lowest level of skill (i.e., a layperson) in find- ing that an invention would have been obvious, “because what is obvious to a layperson is necessarily obvious to one with a higher level of skill in the field of the invention.” Id. (citation omitted). For the same reason, it may be unnecessary to determine the level of skill in the art when the subject matter is “easily understandable.” Chore-Time Equip., Inc. v. Cumberland Corp., 713 F.2d 774, 779 (Fed. Cir. 1983). Thus, there may be situations in which the technology at issue is at such a level that it does not require technical expert testimony, and the failure to identify a level of skill in the art will be harmless.

Of skill level:

As a general rule, an inventor will be a person of at least ordinary skill in the relevant art, and in many cases the inventor will be one of extraordinary skill in the field of invention. See, e.g., Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc) (referring to the “well-settled understanding that inven- tors are typically persons skilled in the field of the inven- tion”); CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1368 (Fed. Cir. 2002) (explaining that the inventor is “presumably also an artisan of ordinary skill in the art” for purposes of comparing expert testimony); Standard Oil Co. v. Am. Cyanamid Co., 774 F.2d 448, 454 (Fed. Cir. 1985) (“Inventors, as a class, according to the concepts underlying the Constitution and the statutes that have created the patent system, possess something – call it what you will – which sets them apart from the workers of ordinary skill . . . .” (emphasis in original)). Because it will be the rare case in which an inventor is not one possessing skill in the art, it is especially inappropriate for the district court to strike Byrne’s affidavit without going through the exercise of identifying the requisite level of skill.
Second, the technology at issue in this case does not appear to be particularly complex. Although string trim- mers generally are motorized, the invention in this case relates to a guard and guide mounted on the trimmer. Indeed, Byrne’s affidavit indicates that he first developed his invention by mounting an “electric wok lid” from his house to the shaft of a string trimmer to provide a straight cut. Joint Appendix (“J.A.”) 306. Given that, had the district court analyzed the appropriate level of skill in the art, it likely would have concluded that it is low.
Finally, the procedural posture of this case exacerbates the district court’s error. Here, WHE never argued that Byrne was not a person of ordinary skill in the art, and the parties did not address the level of skill in the art anywhere in their summary judgment briefing. While Byrne does not argue that a district court may never exclude expert testimony sua sponte, the district court’s decision to do so without any argument or evidence of the level of skill in the art is particularly problematic.

Disingenuous?

Having asked the court to stay discovery to file a targeted motion for sum- mary judgment that did not raise the question of Byrne’s level of skill in the art, WHE cannot fault Byrne for failing to engage in an analysis regarding that very issue. All of these factors lead us to the conclusion that the district court abused its discretion in striking Byrne’s affidavit.5
Relying on our statements in Sundance, the district court also noted that, even if Byrne is one of ordinary skill in the art, “this does not necessarily qualify him as an expert.” Byrne, 2010 WL 3394678, at *7 (citing Sundance, 550 F.3d at 1363). Although it is true that possessing ordinary skill in the art does not automatically qualify a witness as an expert, there is no indication that any other qualifications are necessary, and “[a] witness possessing merely ordinary skill will often be qualified to present expert testimony both in patent trials and more gener- ally.” Sundance, 550 F.3d at 1363. The district court did not identify any independent reason why Byrne was not qualified as an expert other than its finding that he lacked skill in the art, and WHE offers no other reason on appeal. Accordingly, we see no basis to conclude that Rule 702 of the Federal Rules of Evidence acts as a sepa- rate bar to Byrne’s testimony.

Outcome

For the reasons stated above, the decision of the district court is vacated and remanded for further proceedings consistent with this decision.
COSTS Costs are awarded to Byrne.

Geron ends its stem cell (hESC) work

From an article in The Scientist on Geron's decision to terminate its human embryonic stem cell program:

So far, four patients have been treated with the one-time injection of a low dose of cells as part of this initial safety trial. All four patients , who will continue to be monitored by Geron, have tolerated the treatments well and not shown any signs of adverse effects, according to the company, but so far, no patients have shown any neurologic changes that are consistent with efficacy. Patients who had already received approval to join the trial will still receive treatment, Stephen Kelsey, executive vice president and head of research & development, added at a press conference held today (November 15). Kelsey couldn’t say how many patients were in this position, but the company had originally aimed to enroll a total of eight patients in the trial.

“Deciding to move out of the stem cell business was a very difficult decision to make,” Geron CEO John Scarlett said at the press conference. “We’re making these changes because in the current environment of scarcity and uncertain economic conditions, we need to focus our resources on…our cancer programs,” which are expected to generate results as soon as next year. Stem cell trial results, Scarlett added, weren’t expected until 2014. “[It] was a business decision,” he said.

Californiastemcellreport aggregated a lot of posts on the topic in its piece
Possible Buyers for Geron's Stem Cell Business: BioTime, Pfizer, Celgene

CAFC finds rubber band fly killer obvious in Conte

Note:

Conte nonetheless points out that the claimed invention and Watkins teach different types of rubber band guns. As Conte correctly observes, the claimed invention uses rubber band itself to whiplash an insect, whereas the rubber band in Watkins is attached to a “pusher element” (or pouch) that catapults a projectile (a pea or a pellet, for example) toward the target. Conte thus argues that the Board erred in relying on Watkins to reject the claimed invention as obvious. We disagree. Watkins expressly teaches that its “pusher element-equipped rubber band” may be replaced with a conventional rubber band. And in any event, “it is not necessary that the inventions of the references be physically combinable to render obvious the invention under review.” In re Sneed, 710 F.2d 1544, 1550 (Fed. Cir. 1983). What matters for the purpose of our analysis is that Watkins teaches that the rubber band be affixed to the front of the gun, and in so doing it teaches the only aspect of the claimed invention that does not appear in White. In our view, it would have been obvious to one of ordinary skill in the art to combine the features of White and Watkins and arrive at the invention claimed in the ’288 application. Therefore, the Board’s obviousness rejection is supported by substa tial evidence.

Kimberly-Clark loses discovery issue in First Quality case

The CAFC tackled an issue of privilege in the Kimberly-Clark ["K-C"] case:

Under Federal Rule of Civil Procedure 26(b)(1), a party may obtain discovery regarding “any nonprivileged matter that is relevant to any party’s claim or defense.” K-C does not question that First Quality has requested relevant information. Rather, K-C argues that informa- tion created under the Dispute Resolution Agreements is privileged. K-C presents a two-step argument. First, K-C argues that federal courts should recognize a mediation privilege under the authority provided by Federal Rule of Evidence 501. Second, K-C argues that the proceedings under the Agreements were mediations. Thus, concludes K-C, the district court erred in compelling production of information that is covered by a federal mediation privilege.

We disagree. The Dispute Resolution Agreements set up an arbitration proceeding, not mediation. The Agree- ments set up an adversarial proceeding in which a panel specifically denoted as “arbitrators” issued formal find- ings of fact and conclusions of law. As part of the proceed- ing, the parties would serve briefs and claim charts and undertake discovery, including depositions. The parties then, at a formal hearing, would present argument, documentary evidence, and testimony, including testi- mony on cross-examination. At all times, ex parte com- munication with the arbitrators was prohibited. The arbitrators were to render a “clear and concise decision.”

AND

In any event, arbitration does not necessarily become a mediative process simply because an arbitration panel’s decision is “non-binding.” In addition, under the Dispute Resolution Agreements, there was no framework to allow a party and a neutral to openly and freely discuss a party’s case. In fact, the Agreements discouraged a party from freely discussing the weak points in its case—the Agreements barred ex parte communications with the arbitrators and contain “loser pays” fee-shifting provi- sions. Thus, even if K-C has correctly characterized the decisions as “non-binding,” that distinction is not suffi- cient in this case to rebrand the adversarial arbitration proceedings as mediations.

Finally, while the designation of the panel as “arbitra- tors” is not conclusive on the issue before us, the parties in the prior cases had the opportunity to choose the lan- guage of their agreement, and that language certainly carries some weight as it applies to K-C here.

Home Depot smacked down at CAFC

The conclusion of the case against Home Depot:

The jury’s verdict that Home Depot willfully infringed the ’039 patent and its decision to award $15 million in damages is supported by substantial evidence. We affirm the district court’s denial of judgment as a matter of law in favor of Home Depot on the infringement, willfulness, and damages issues. Likewise, we affirm the court’s determinations regarding claim construction and inequitable conduct. Its decision finding this case exceptional and the award of attorney fees is affirmed.

And, related to citing documents in a patent background section:

Though Home Depot argues that we cannot consider these patents because they were never before the district court on this issue, the patents are not only cited, but also discussed in detail in the “Background of the Invention” section of the written description. Our cases establish that “prior art cited in a patent or cited in the prosecution history of the patent constitutes intrinsic evidence.” Kumar v. Ovonic Battery Co., 351 F.3d 1364, 1368 (Fed. Cir. 2003) (citing Tate Access Floors, Inc. v. Interface Architectural Res., Inc., 279 F.3d 1357, 1371–72 n.4 (Fed. Cir. 2002); Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)).

CBS Sunday Morning on November 13, 2011

Charles Osgood quickly launched into the cover story for November 13. A woman stepped in front of the cameras with Gloria Allred as her lawyer. Erin Moriarty does the cover story on Allred. Shameless self-promoter? Second up: silence is golden, on a French film director. Third up: Red Hot Chile Peppers. Fourth, Dan Ackroyd interviewed by Michelle Miller. Fifth: Rita Braver on J. Edgar Hoover.

Headlines: 8 Republicans in Spartanburg, SC discussed by UofC Law grad Jan Crawford. Talk about answering 3am phone call. Italian prime minister resigned. Lauder died. NASA astronaut Burbank hitches ride on Soyuz. Penn State lost to Nebraska. Weather: sunny and mild, other than in the Great Lakes.

"She's on the case." She is Gloria Allred and the case is about Herman Cain. A clip from Jimmy Kimmel Live. A strong advocate and a person who tries to win justice for women. Meg Whitman case. In your face style. More people know her name than the vice-president. Charles Barkley shows up. Nathan Goldberg is her law partner: she says what she thinks. She is a bit of a scold. I know how the system works, but it takes advocacy. Lisa Bloom is her only child. Gloria grew up in Philadelphia. She became a lawyer at age 33. Friar's Club in NYC. Jim Moray of Inside Edition. Allred claims to have won her clients over 1/4 billion dollars. Rachel Eucatel, mistress of Tiger Woods. Cancelled press conference. 23 year case with Rita Milla. Interview goes to beach house in Malibu. Passion for justice.

Ben Franklin's take on taxes. Almanac. Nov. 13, 1789: Franklin wrote to French friend: nothing can be said to be certain except death and taxes. Quote by Oliver Wendell Holmes: taxes are the price for a civilized society.

Silent movies. Lee Cohan discusses the movie "The Artist." In black & white and silent. Director: Michel Hazanavicius.

Moment of nature was grizzlies in Yellowstone.

Ayn Rand in the news

One historical figure who would NOT agree with Twain's
"It takes a thousand men to invent a telegraph, or a steam engine, ... and the last man gets the credit " is Ayn Rand.

Rand is in the news right now concerning a baffling mistake on the title sheets for the newly released DVD and Blue Ray versions of Atlas Shrugged Part I wherein the novel Atlas Shrugged is described as a story of "self-sacrifice."

File this one under "what were they thinking?"

Returning to Twain, that author managed to lose a whole bunch of money investing in a worthless invention, so Twain might not be the "go to" guy for recognizing the concept of invention.

"It takes a thousand men to invent a telegraph, or a steam engine, ... and the last man gets the credit "

Mark Twain:

....substantially all ideas are second-hand, consciously and unconsciously drawn from a million outside sources, and daily used by the garnerer with a pride and satisfaction born of the superstition that he originated them; whereas there is not a rag of originality about them anywhere except the little discoloration they get from his mental and moral calibre and his temperament, which is revealed in characteristics of phrasing. . . . It takes a thousand men to invent a telegraph, or a steam engine, or a phonograph, or a photograph, or a telephone, or any other Important thing-- and the last man gets the credit and we forget the others. He added his little mite--that is all he did.


On Twain in 1877, Birthday Party Brouhaha

Estrada v. Telefonos de Mexico

Of "bad faith" in trademark disputes:

Finally, the Board considered the matter of bad faith. Board Op., at *9-10. The thirteenth DuPont factor permits the Board to weigh “[a]ny other established fact probative of the effect of use.” DuPont, 476 F.2d at 1361. An applicant’s bad faith is potentially relevant in the likelihood-of-confusion analysis. See L.C. Licensing Inc. v. Berman, 86 U.S.P.Q. 2d (BNA) 1883, 1890 (T.T.A.B. 2008); see also Paddington Corp. v. Attiki Imps. & Distribs., Inc., 996 F.2d 577, 587 (2d Cir. 1993) (“Where a second-comer acts in bad faith and intentionally copies a trademark or trade dress, a presumption arises that the copier has succeeded in causing confusion.”). As noted supra, the Board found that Estrada had been “evasive and disingenuous” by essentially denying any prior knowledge of Telefonos’ TELMEX mark. The Board concluded that Estrada exhibited “not only bad faith but a general lack of respect for the application and opposition process.” Board Op., at *10. The Board noted that al- though it would have found a likelihood of confusion on the present facts even without a finding of bad faith, were this a close case Estrada’s bad faith would have tipped the balance to a finding of a likelihood of confusion. We conclude that substantial evidence supports the Board’s finding of Estrada’s bad faith. As the Board noted, if Estrada had an explanation for his implausible responses, he could have provided that explanation by submitting evidence at trial.

"What happens in Vegas" isn't prior art?

Magician Hans Klok was sued for copyright infringement over a routine developed by Rafael van Herck, Klok's former associate. As a defense, Klok asserted that the tricks are no secret in Las Vegas — one was even used by Siegfried & Roy. The defense did not work.

The supplemental poverty measure

There's currently discussion about results from the new "supplemental poverty measure." By this new formula, we have more poor older Americans, about 1 in 6. Out-of-pocket medical care was not included in the old formula, and that's a killer for old people.

The current discussion on poverty does evoke the past discussion on patent grant rate. See for example
Lawrence B. Ebert, Patent Grant Rates at the United States Patent and Trademark Office,. 4 Chi.-Kent J. Intell. Prop. 108 (2004).
In the past, one could find the article on the internet, but not anymore. Using the previous link, one gets an error message: can't open the page “http://jip.kentlaw.edu/art/volume%204/4%20Chi-Kent%20J%20Intell%20Prop%20108.pdf” because [Safari] can’t find the server “jip.kentlaw.edu”.


The 2004 article in Kent JIP contained discussion of the odd treatment by Lemley and Moore of work by Clarke:

Criticism of Clarke paper by Lemley and Moore.

In February 2004, Lemley and Moore criticized the work of Clarke, and suggested that the 85% number of the 2002 paper by Quillen and Webster was more reliable. n11 Lemley and Moore stated that Clarke erroneously assumed that every continuation resulted in a patent. n12 The relevant text on page 338 of Clarke states:

The USPTO models deduct from the overall number of original applications those that are also counted as continuing applications, to avoid double counting of applications (as does Quillen and Webster). The USTPO models, however, also deduct from the total number of patents the percentage of applications that give rise to patents both from the original applications and from continuing applications (which Quillen and Webster does not).

There is no mention of any assumption that "every" continuation resulted in a patent. There is a correction for cases in which BOTH an original (i.e., parent) application AND continuing applications give rise to patents. In 2002, Quillen and Webster made such a correction, although less complete than that made by Clarke.

There is no basis for the specific criticism by Lemley and Moore of Clarke. n13 In fact, it appears that Clarke's approach is more accurate than that of Quillen and Webster, and, as such, the 74% number, rather than the 85% number, should be deemed more reliable.


-->Footnote 12 of 2004 Kent JIP article-->

Footnote 22 of Lemley and Moore states: See Robert A. Clarke, U.S. Continuity Law and Its Impact on the Comparative Patenting Rates of the U.S., Japan and the European Patent Office, 85 J. Pat. & Trademark Off. Soc'y 335, 338 (2003) (erroneously assuming that every continuation resulted in a patent and concluding that the grant rate was 75%). The 85% number provided in the revised Quillen et al. study is based on actual data about the applications that issue based on continuations, and reflects the best estimate we have of how often applications mature into patents.

One notes that Lemley later modified his viewpoint about the 85% number.

"The light that once illuminated America’s iconic maker of memories will fade from the picture."

Moody's on the future of Kodak.

Performance of JCP&L after storm of 29 October 2011

from the Newark Star-Ledger:

Gov. Chris Christie yesterday put an end to automated phone calls that angered JCP&L customers who heard a message that their power had been restored, even as they sat in darkness.
"JCP&L has committed to me to end the practice of automated restoration alert calls and to make these calls with live operators to ensure these types of problems are identified and met as quickly as possible," Christie said in a statement.
According to Christie spokesman Michael Drewniak, the governor brought up the issue of the phone calls with JCP&L president Don Lynch and pressed the matter for a resolution.
The governor’s dictate came after a week of mounting anger from residents who have been without electricity since the pre-Halloween snowstorm, which knocked out power for more than 620,000 residents at its peak. Drewniak could not say how many calls the governor’s office had received regarding the outages, but state and local officials, as well as The Star-Ledger, have been inundated throughout the week with reports from irate customers.

LBE phoned to JCP&L on Saturday, October 29 and reached only an automated system. The FiOS battery back-up for the fiber optics phone lasts only about six hours, which is worthless for a power outage of days. For such a phone system, one could NOT receive on a landline phone a false message of power restoration; the phone is dead if power is gone more than six hours. Further, as to LBE's phone, no phone message "that power had been restored" was ever received. The bigger issue isn't phone messages; it's lack of heat, and, for some, lack of water.

Tom Kean on JCP&L:

This isn’t the first time we’ve had problems with Jersey Central Power & Light. They are notorious, the worst power company in the state in terms of getting power restored after outages. Our governor gets mad at a lot of people, and rightly so, but he doesn’t seem to be mad at JCP&L. I don’t understand it.

Kardashian Kollection Kopied?

See Kardashian Kollection bags look a lot like knockoffs.

Getting rid of zombie cells

Mayo Clinic scientists Dr. Jan van Deursen and Dr. James Kirkland wrote in the journal Nature on zombie cells, the elimination of which may slow aging effects.

See also
Clearing Out ‘Old Cells’ Might Make for Healthier Old Age

"60 Minutes" gives Andy the last word on Nov. 6, 2011

Lesley Stahl interviews Jack Abramoff in "The Lobbyist's Playbook." Today, he is a symbol of how money corrupts Washington. Jack: I was so far into it I could not tell where right and wrong was. Jack: First, most Congressman don't believe they are being bought. Free meals at his restaurant: Signatures. Jack spent over a million dollars per year for tickets to sports events. Jack: offer staffers a job at like triple the salary. Neil Voltz (Bob Ney) said Jack could talk a dog off a meat truck. "We were guilty of engaging in a corrupt relationship." Own the office by offering a job to the chief of staff (on K Street). Staff of Tom Delay were hired. Jack: we had influence on a hundred offices. Bob Ney was interviewed by Lesley Stahl. Voltz at the time a lobbyist approached his former boss Ney about public law 100-89 (striking section 71), which in effect allowed a casino. Jack: "members don't read the bills." Ney eventually served 17 months in prison. The bribery/corruption involves giving a gift to someone who makes a decision. The Washington Post published on Jack in 2004 that he charged his clients 10X more than other lobbyists. Jack went to a facility in Cumberland, MD. He is now paying off $24 million in restitution to Indian tribes. Jack: the reform efforts are faux reform efforts. The people who make the reforms are the people in the system. Most important objective: prohibit staffers from later being lobbyists. Jack wrote: Capitol Punishment.

Morley Safer noted that tonight (Nov. 6) we ("60 Minutes") give Andy the last word, for the last time. The Rooney story was third on the list on Nov. 6, and included a clip from Andy's farewell on 60 Minutes. Then, a clip from a Safer interview of Andy. Then, a clip from cotton in pill bottles. America's favorite grouch-in-chief. Our junk yard poodle. Dogs are nicer than people. Is Rooney really like that? Prickly about autographs. I don't sign autographs. My father made $18,000 per year. Went to Albany Academy and then to Colgate University. Rooney worked for Stars and Stripes. Met Walter Cronkite; was one of Rooney's best friends. Venus schnitzel. Of Godfrey: he was nasty sometimes. Rooney was making $500/week. Safer referred to Godfrey as a "fake good guy." Harry Reasoner was a real good guy. BUT Harry Reasoner was a lazy guy. Reasoner drank a lot. 60 Minutes: A Digression had Rooney's profile in shadow. In 1978, Rooney became the "last word" on 60 Minutes. Challenger disaster in 1986. In 1995, Oklahoma City bombing (I could kill the bastards). Rooney on shock and awe. In 1990, a suspension from CBS related to remarks about gays. Who would answer an idiot who has the bad sense to write me a letter.
[By in large the piece on Nov. 6 was a recycle of the previously broadcast Safer interview.]

"CBS Sunday Morning" on November 6, 2011

Charles Osgood introduced the stories for November 6, 2011. Andy Rooney's photo was to the left of Osgood, who began with Rooney. On-screen essayist for "60 Minutes." Susan Spencer is doing the cover story on insomnia. Second, Tracy Smith on Kim Cattrell. Third, John Blackstone on leaf blowers: coming to blows. Anthony Mason; Martha Teichner; Lee Cowan.

News: 5.6 magnitude earthquake n Oklahoma. Herman Cain got angry with reporters. Andy Williams has bladder cancer. Joe Frazier has liver cancer. Jerry Sandusky arrested. LSU v. Alabama, 9-6. Weather: mostly sunny and mild.

Sunday Morning opened with Remembering Andy Rooney.This morning we're remembering Andy. "I was a reluctant warrior." He wrote 1097 commentaries. Commentary in 2002 on getting old. "I can't complain about my life. I've been paid to say what's on my mind on television. You don't get any luckier than that."

Almanac. Nov. 6, 1814. Adolf Sax born in Belgium. An instrument made of brass. It was initially limited to military marching bands. Charlie Parker and John Coltrane. Hoots the Owl. The Simpsons. Clarence Clemmons. The piece ended with a photo of Sax.

Alice Walton in Bentonville, Arkansas. Crystal Bridges. Curved copper roofs. Moshe Softi. Cost about $150 million. Alice is the youngest of four children of Sam Walton. In 2005, bought "Kindred Spirits" from NY Public Library. Professor Benjamin Rand. She tried to buy Eakins piece "Gross Clinic." Issue "a hovering culture vulture." Museum covers American art from 1650 on. 1968 work by Calder. Alice Walton has been collecting for 20 years. Painting by George Innes about underground railroad station in Montclair, NJ. Crystal Bridges opens this coming Friday, Nov. 11.

A rhyme on "we've returned to standard time."

Susan Spencer began the insomnia story in Louisville, KY, the number 1 insomnia city, according to a Burt Sperling study. A huge UPS hub; a giant construction project. Louisville ranks high in unemployment and divorce. 50% of Americans have trouble sleeping at least once a week. Wendy Troxel of University of Pittsburgh. Daniel Bizey is also at Pittsburgh. Insomnia costs 63 billion annually. Women are twice as likely to have insomnia. Americans spent about $2 billion on sleep aids last year. They will tip you over, not knock you out. A feeling of dread at night. Bizey recommended minimizing time in bed. Move bed time later, with a specific wakeup. Sleep deprivation can be used to treat insomnia. Increasing natural sleep drive. Move bed to Honolulu, the best place in country for good night's sleep.

Pulse: 27 % have taken sleeping pills. 71% have not.

Florence Welch by Anthony Mason. Florence and the Machine. She followed an agent into a ladies room and sang an Etta James song. Ceremonious. A mike buster. An overactive imagination leads to panic. Constantly aware of impending doom.

Lee Cowan covering "points west" on trial of Conrad Murray. Pharmacological never never land. Analyst Trent Copeland.

1979 Andy Rooney on anniversary of D-Day. June 6, 1944. We're always defeated by statisticians.

Tracy Smith gives a Sunday Profile on Kim Cattrall. Amanda in "Private Lives." Kim was born in England and lived in Canada. "I'm post-nasal drip." Piffle, I'm only a sniffle. 1980 movie: Tribute. Porky's: sexy sidekick girl. Police Academy. Sex and the city ended in 2004. Meet Monica Valour.

Leaf blowing. John Blackstone on "Coming to blows." Actress Julie Newmar appears in the clip. Gretchen Biggs in Greenwich, CT. Orinda, CA. Leaf blowers blast wind at 195 mph. 4 million blowers per year are sold in the US. Leaf blowers began in Japan in the 1960s to spread pesticide.

Steve Hartman on Andy Rooney. On obits, the problem is you're never around to hear them. Andy did sign books. I like things you can put things in.

Next week: Red Hot Chile Peppers.

Moment of Nature: Pradaxa. Lower MaCabe Lake at Yosemite.