Constitutional issue with California's biofuels law

Text within an AP post illustrates a Commerce Clause issue with California's biofuels law:

U.S. District Court Judge Lawrence O'Neill's written ruling Thursday [29 Dec 2011] said the low-carbon fuel rules violated the U.S. Constitution's commerce clause by discriminating against crude oil and biofuels producers located outside California.

Hoisted on its own corn stalk?

See the Wall Street Journal article titled, Ethanol in Winter -- Wonder of wonders, the tax subsidy and tariff expire. , which included the text:

The irony is that a fuel that was sold as a global-warming palliative—the industry will use any argument to justify its government lucre—is now being hoist on its own corn stalk. Green carbon fuel standards regulations from the Environmental Protection Agency and in California credit sugar ethanol produced in Brazil with better climate benefits than corn ethanol.

Of the report by the National Academy of Sciences:

In an October report, academy researchers concluded that grain ethanol "could not compete with fossil fuels in the U.S. marketplace without mandates, subsidies, tax exemptions, and tariffs . . . This lack of competitiveness raises questions about the use of government resources to support biofuels."

Venture arm of BP invests in CoolPlanetBiofuels

gigaom.com discussed the investment of oil company BP in CoolPlanetBiofuels. Within the post was the text:

While there are dozens (likely hundreds) of next-gen biofuel companies, almost none of them have produced biofuels at any scale. The Environmental Protection Agency said this week that once again, only a tiny fraction of the biofuels required by the U.S. mandate will come from next-gen cellulosic biofuels: less than one-tenth of 1 percent, according to the Wall Street Journal. The mandate was for 3 percent.

Of the BP investment, smartplanet noted:

BP didn’t disclose the amount of this latest investment, which was part of a series C funding round led by Shea Ventures. However, CoolPlanet did say the financing round was wrapped up ahead of schedule so it could accelerate the development of its modular fuel production plants. The company says it expects to deploy hundreds of “relatively low-cost modular plants” around the U.S. in the next few years.

See previous post on IPBiz
Google Ventures backs CoolPlanetBiofuels

***Meanwhile, the Wall Street Journal noted of BP on Dec. 29:

U.S. prosecutors are preparing what would be the first criminal charges against BP PLC employees stemming from the 2010 Deepwater Horizon accident, which killed 11 workers and caused the worst offshore oil spill in U.S. history, said people familiar with the matter

EPA relying on conjecture-based fantasy?

Note the WSJ article titled New Forms of Biofuel Fall Short which includes the text:

Companies will have to buy credits from the EPA if they can't find enough cellulosic ethanol to purchase—even though the fuel may not be available. "The [EPA's] cellulosic number is still conjecture-based fantasy," said Stephen Brown, vice president for government affairs for refiner Tesoro Corp.

The credits cost about $1.20 per gallon, according to Charles Drevna, president of the National Petrochemical and Refiners Association. "Once again, refiners are being ordered to use a substance that is not being produced in commercial quantities—cellulosic ethanol—and are being required to pay millions of dollars for failing to use this nonexistent substance. This makes no sense," he said.

AND

According to a National Academy of Sciences report published this year, the latter target won't be met "unless innovative technologies are developed that unexpectedly improve the cellulosic biofuels production process."


**Separately, we have hungry cows at BiofuelsDigest:

That’s right, algae doesn’t have lignin. Shazam, the perfect workaround. Except that micro algae comes with its own problems. Foremost among them – how do you affordably get the water out of the algae or the algae out of the water? And what, then, do you do with all the residual biomass after the lipids are extracted?

Remember, in a 100 million gallon algal biodiesel project based on 25 percent lipids, you get about a million tons of residual biomass. That’s enough to feed, say, about 180,000 cows. A lot of cows, that are currently eating, we suspect, something else.

So, you have enzymatic biofuels – and a lignin problem. Gasification – you get a motherlode of challenge in making the technology affordable. There’s algae – you better know some hungry cows.

[from The Bullseye Fuel: BAL and its macroalgae-based biofuels Is this also conjecture-based fantasy?]

Felony charges filed against UCLA chemistry professor

An article in the LA Times titled Felony charges filed against UC and a UCLA chemistry professor after fatal laboratory fire discusses the death of Sheharbano "Sheri" Sangji, who died in 2008 as a result of a lab fire at UCLA.

The Times noted the deceased graduated in 2008 from Pomona College in Claremont and planned to become a lawyer. While applying to law schools, she took a $46,000-a-year job in a lab run by Harran, a researcher with a rising reputation in organic chemistry."


***As relevant disclosure, LBE has a degree in chemistry, worked with alkyl and aryl lithiums, and went to law school.

From an issued US patent: The process of claim 1 in which the lithium initiator is selected from the group consisting of butyllithium, phenyllithium and methyllithium.

ICHL v. Sony

From within the decision by Judge Lourie, on a matter of claim construction:

Instead, the district court’s construction addresses the structural relationship between the claimed elements and excludes from the scope of the claims a specific type of structure— extruded or integrally bonded heat sinks. See Vanguard Prods. Corp. v. Parker Hannifin Corp., 243 F.3d 1370, 1372 (Fed. Cir. 2000) (affirming claim construction of apparatus claim that “describe[d] the relationship between” the claimed elements, not “the means of joining them”).

Trademark cancelled for failure to respond in discovery

The topic of communication by email arose in this trademark case (Benedict v Super Bakery):

On July 25, 2007 Super Bakery filed a Petition for Cancellation of Mr. Benedict’s Registration No. 2,966,255 for G THE GOODYMAN, citing grounds of fraud and abandonment. Super Bakery served discovery requests on Mr. Benedict in January and February of 2008. On February 14, 2008 Mr. Benedict wrote to counsel for Super Bakery, requesting an extension of the response time to April 18, 2008. Mr. Benedict states that Super Bakery never re- sponded to this request. Super Bakery states that it re- sponded by email on February 21, 2008, agreeing to the requested extension and also requesting additional docu- ments. Mr. Benedict disputes this statement and points out that no substantiation of that email has been provided, and that the parties had been communicating by registered FedEx, not by email. In all events, no response to the discovery requests was made by Mr. Benedict.

As to rule interpretations, the CAFC noted:

We agree with Mr. Benedict that Rule 2.127(d) does not clearly present the interpretation with which the Board now endows it. Only if one reads the PTO “comment” does it become clear. The PTO “comment” is not stated in the rule as adopted; the Rule does not state that no suspension shall occur until the Board separately acts to impose it, and that any filing deadlines will remain in force despite the Rule’s prohibition on filing. The Rule does not state that the requirement that no papers should be filed does not come into effect when the summary judgment motion is filed, despite the Rule’s prohibition. This ambiguity does not support the extreme sanction of default judgment.

BUT

However, the default judgment is well supported without this event. There had been two years of failure to comply with discovery requests and orders. The Board discussed Mr. Benedict’s repeated non-compliance with Super Bakery’s discovery requests, as well as his non- compliance with the Board’s orders concerning discovery. Although the Board criticized the “meritless” motion for summary judgment as “an effort to further obstruct peti- tioner’s rights to obtain discovery under the Board’s rules, the Board’s order compelling discovery, and the Board’s order granting discovery sanctions,” 96 USPQ2d at 1136, the Board’s finding that “[t]here is no reason to assume that, given additional opportunities, petitioner will fulfill his obligations as a party to the proceeding,” id., is supported by the entire experience of this case. The question is whether it was an abuse of discretion for the Board to enter default judgment. See Merker Counter Co. v. Central Counter Co., 310 F.2d 746 (CCPA 1962) (“Rule 2.132(b) gives the board discretionary powers to grant or deny motions for judgment thereunder.”).

AND

Due process standards guide and limit the acts and pro- ceedings of agency tribunals. See, e.g., Transp. Leasing Co. v. Dep’t of Employment Servs., 690 A.2d 487, 489 (D.C. 1997) ("an individual is entitled to fair and adequate notice of administrative proceedings that will affect his or her rights, in order that he or she may have an opportunity to defend his or her position"). In turn, the agency has the authority to assure diligent administration of the rights within its charge, by establishing and enforcing reasonable rules and procedures for disciplining non-compliance with its rules. Trademark Rule 2.120(g) provides that “if a party fails to comply with an order of the Trademark Trial and Appeal Board relating to disclosure or discovery . . . the Board may make any appropriate order, including those provided in Rule 37(b)(2) of the Federal Rules of Civil Procedure . . ."

The end result:

The possession of a trademark registration places a routine obligation on the possessor to participate in reasonable procedures concerning rights or interests affected by that registration. On the entirety of the record, the Board’s orders were reasonable, and within its authority in seeking to advance the proceedings. The remedy of default judgment was within the Board’s discretion in view of Mr. Benedict’s repeated failures to comply with established and reasonable procedures orders. The default judgment in this cancellation proceeding is affirmed.

EPA: Mandating the use of something which does not exist?

In a post titled Non-corn biofuels standards fall short of targets, the Des Moines Register raised some issues with the EPA's targets for renewable fuels which were released on Tuesday, Dec. 28, 2011.

The Register brought up issues related to changed circumstances:

The petroleum industry and a growing number of congressmen have questioned the biofuels mandates, particularly in light of complaints by livestock producers about high feed costs and the sudden surge of domestic crude oil production from new fields in North Dakota and the seemingly ready supply of crude from nearby (and friendly) Canada.

Crude oil production from domestic sources has increased at about 20 percent annually, since 2008. The share of imported crude oil in the U.S. petroleum mix has dropped from 60 percent in 2007 to 48 percent last year. In 2011, for the first time in more than 30 years, the U.S. became a net exporter of oil.

Also, the rising supply of natural gas from new fields not only in the traditional energy belt in the U.S. Southwest but also in Ohio, Pennsulvania, West Virginia and New York, has given rise to calls for conversion of much of the U.S. transportation fleet, particularly trucks, to natural gas.

The sudden and unanticipated rise in the U.S. domestic production of crude oil and natural gas has added another dimension to the political argument over biofuels. Opponents of corn-fed ethanol have argued against its expansion on both moral grounds (the food versus fuel debate) and environmental (the use of water and natural gas in ethanol production).

Of course, crude oil production will not continue to grow, and a replacement will be needed. The question is "when." Biofuels are part of our future.

The Register noted that biodiesel people had been criticizing EPA director Lisa Jackson for a lack of action:

The EPA was supposed to reveal the 2012 targets by Nov. 30 and the delay had caused the Renewable Fuels Association, an ethanol and biodiesel trade group, to publicly call out the EPA and administrator Lisa Jackson earlier this month.

[As IPBiz noted, Jackson had earlier screwed up on Propoxur.]

And, the Register had a quote pertaining to the general silliness of making refiners pay for not using a substance that is not available for purchase:

“Once again, refiners are being ordered to use a substance that is not being produced in commercial quantities — cellulosic ethanol — and are being required to pay millions of dollars for failing to use this non-existent substance,” National Petroleum Refiners Association President Charles Drevna said in a statement. “This makes no sense.”

See previous IPBiz post


Biofuels trends of 2011?

**UPDATE. See BiofuelsDigest

http://biofuelsdigest.com/bdigest/2012/01/13/tell-them-willie-and-ike-are-here/

Lecture by Judge Linn at SMU

Note the December 23 post titled Judge Richard Linn: Changing Times, Changing Demands related to a lecture given by Judge Linn at SMU on September 27, 2011.

A video is available.

Who owns a Twitter account?

Some big Twitter performers have grown their following by leveraging the brand names of their employers. If they switch employers, who owns the account? Forbes discusses a suit by PhoneDog Media against Noah Kravitz.

John Biggs of the New York Times (through Bend Bulletin) presented the facts:

In October 2010, Noah Kravitz, a writer who lives in Oakland, Calif., quit his job at a popular mobile phone site, Phonedog.com, after nearly four years. The site has two parts — an e-commerce wing, which sells phones, and a blog.

While at the company, Kravitz, 38, began writing on Twitter under the name Phonedog_Noah, and over time, had amassed 17,000 followers. When he left, he said, PhoneDog told him he could keep his Twitter account in exchange for posting occasionally.

The company asked him to “tweet on their behalf from time to time and I said sure, as we were parting on good terms,” Kravitz said by telephone.

And so he began writing as NoahKravitz, keeping all his followers under that new handle. But eight months after Kravitz left the company, PhoneDog sued, saying the Twitter list was a customer list, and seeking damages of $2.50 a month per follower for eight months, for a total of $340,000.

PhoneDog Media declined to comment for this article except for this statement: “The costs and resources invested by PhoneDog Media into growing its followers, fans and general brand awareness through social media are substantial and are considered property of PhoneDog Media LLC. We intend to aggressively protect our customer lists and confidential information, intellectual property, trademark and brands.”

One notes that the Twitter account was created while Kravitz was an employee and the account name included the text "Phonedog." Customer lists are something that can be protected under the rubric of "trade secret," but they have to be a secret, and not revealable. In the future, accounts started after employment begins and trading on the company brand, should be explicitly covered in an employment agreement. An account started before employment began, not utilizing the tradename of the employer, would present a different situation.

See also Who gets custody of Twitter when an employee quits?

Biofuels trends of 2011?

Within a post titled The 11 Top Biofuels Trends of 2011, one finds the text:

2. Biodiesel roars back with mandate, tax credits, B20 OKs

Turns out that predictions of biodiesel’s demise were a tad premature. The fuel’s boosters are gathering this week at the National Biodiesel Conference & Expo, touting a stream of good news. Highlights:

“The EPA has said that they are going to enforce the 800 million gallon volume RFS2 requirement” said National Biodiesel Board CEO Joe Jobe to Biodiesel magazine, “and we will have the tax credit in place. Last year we had neither in place.” He described the combination as a “powerful policy framework” and predicted that 2011 would be the biggest year yet for US biodiesel sales.

At the same time, more good news on vehicle acceptance. Jobe is touting that “We’ve got all of the Big Three American automakers accepting B20 in their vehicles.”
At the same time, there are challenges on the feedstock front. Bottom line, jatropha, camelina and algae are still emerging feedstocks, soy and canola are pricey, waste oils & greases are tough to find at scale, and palm is politically radioactive.

More on this trend, here.

3. Ethanol’s back, too, sort of, or is it that drop-ins have waned?

Drop-in fuels all the rage? Not smart, says Coskata CSO Rathin Datta, ethanol is the champion for biomass-based fuels.
In Washington DC last July , at the DOE’s Biomass 2011 annual conclave, Rick Wilson, the CEO of Cobalt Technologies, and Wes Bolsen, CMO of Coskata, engaged in a formal debate over the motion: “Federal funding for biofuels should focus primarily on the development of infrastructure-compatible, hydrocarbon fuels.”

There has been quite a lot of press in recent years around the development of “drop-in fuels” – from articles like 2009′s “Drop In, Tune Out, Turn On” to the coverage of recent DOE funding of consortia like the NABC that are pursuing infrastructure-compatible fuels.

But Coskata has been on the warpath of late to remind the industry, and the broader stakeholders in a future beyond fossil fuels, about why ethanol fuels were developed in the first place, and why they should be considered a superior alternative to drop-in hydrocarbons, when refining fuels from biomass.

At the end of last summer, Coskata CSO Rathin Datta didn’t exactly descend into the lion’s den, when choosing to present this strongly positive view on ethanol at the Fuel Ethanol Workshop in Indianapolis. It’s sort of like praising Cal Ripken Jr. in the friendly confines of Camden Yards.


***Of the EPA, Platts wrote:

The US Environmental Protection Agency opted Tuesday [Dec. 27] to set a more ambitious goal for the production of cellulosic biofuels in 2012, saying the 31% boost from 2011 levels would drive growth in the fledgling industry. The EPA is requiring that 8.65 million gallons of cellulosic biofuels be used in 2012, up from the 6.6 million gallons it required in 2011. That number is still far below the 500 million gallons required by statute. But it is higher than the low end of the range it had originally proposed in June, when it said it was considering a volume of 3.45 million to 12.9 million gallons. The cellulosic requirements are part of the larger Renewable Fuel Standard targets for 2012. Refineries and other blenders will have to use the equivalent of 15.2 billion gallons of ethanol, cellulosic biofuels, biodiesel and similar renewable fuels next year -- the same amount as the EPA had initially proposed in June. That compares with 13.95 billion gallons the EPA required in 2011. The volumes, part of the so-called RFS2, represent 9.2% of the nation's transportation fuel supply in 2012. The EPA set a requirement of 1 billion gallons for biomass-based diesel in 2012. But it punted a decision on 2013 volumes for biomass-based diesel fuel until next year, saying more analysis was needed. In setting the higher goal for cellulosic fuels, the EPA said that meeting the statutory goals of predictability and reducing uncertainty "does not require the EPA to specify an applicable volume for cellulosic biofuel that is as low as possible or based only on demonstrated (as opposed to reasonably anticipated) production," the final rule states. The EPA acknowledged its higher targets could create uncertainty.

AND

"Once again, refiners are being ordered to use a substance that is not being produced in commercial quantities -- cellulosic ethanol -- and are being required to pay millions of dollars for failing to use this non-existent substance," NPRA President Charles Drevna said in a statement. "This makes no sense." The EPA said it was persuaded by public comments, such as those filed by the Renewable Fuels Association, urging higher cellulosic targets. In comments filed to the June proposed rule, the RFA had said that lowering the cellulosic targets "because of past production problems discourages development of cellulosic sources." It rejected comments, such as those filed by Chevron, suggesting that the 2012 target be set closer to the low end of the proposed range. "EPA believes the industry is capable of exceeding the lower end of the range of projected volume from our proposed rule," the EPA said on Tuesday.


***Of the ethanol tax break, westernfarmpress notes:

For the first time in more than three decades of generous U.S. government subsidies for the domestic ethanol industry, coupled with a steep tariff on imports, the United States market will be open to imported ethanol as of Jan. 1, 2012, without protectionist measures.

The adjournment of the 112th Congress means both the US $0.54 per gallon tax on imported ethanol and a corresponding tax credit of US $0.45 per gallon for blenders, the VEETC (Volumetric Ethanol Excise Tax Credit), will expire as expected on Dec. 31.

"With Congress in recess, there are no opportunities for further attempts to prolong the tax credit or the tariff, so we can confidently say these support mechanisms will be gone at the end of 2011," said the Washington Representative for the Brazilian Sugarcane Industry Association (UNICA), Leticia Phillips.

AND

WQOW notes

The New Year will come without an ethanol tax break, which has many people wondering if we'll see an impact at the pump.

The long-running tax credit went to refiners who mixed ethanol with gas. That tax break is expiring. Tom Kloza, from the Oil Price Information Service, says the end of the tax credit means the cost for wholesalers and retailers will rise by four and a half cents a gallon on January first.

-- Some argue, crankishly, that disclosure is the only purpose of patent law --

Within a post related to the "purpose" of the patent system, Stephan Kinsella writes:

Now, in my view, to speak of “the purpose” of a statute is a confusion: statutes are cobbled together artificial legislative schemes, usually the result of many compromises. Congress has no “intent” or “purpose”; it’s composed of individual legislators who have their own motivations and purposes. A given legislator may have various purposes, including: rewarding special interest groups to increase the chance of campaign contributions, and so on. But we can hold a law up to its stated purpose, even if the real purposes of the legislators is different.

That there may be many subjective intents of legislators does not negate the presence of an objectively determinable functional analysis. The patent statute gives a right to exclude in return for disclosure. That's it.

Innovation produces a change in the way we live. Most patents don't yield innovation. Thus, it's hard to see the purpose of the patent system as one which incentivizes innovation. An issued patent gives an inventor a certain status in the marketplace. Innovation comes later.

***UPDATE. On 4 Jan 2012.

Relevant to the comment below and contrary to the assertion therein, IPBiz DID LINK to the Kinsella post containing the Kinsella quotation. Other than that, Kinsella's ramblings speak for themselves.

The functional outcome of US patent law is: in return for disclosing an enabled invention which is useful, new and not obvious, an applicant might get a right to exclude. That's all there is. The successful applicant, with the right to exclude, enters the marketplace and tries to make deals. Maybe the invention leads to innovation, maybe it does not. Most inventions do not change the way we live, so they are not properly termed innovations.

As to subjective intent of legislators, one doubts Congressman Waxman ever thought Hatch-Waxman would be used in the way it currently is, as to the six-month period of exclusivity.

Law and journalism "share common core values — trust, candor, veracity, honor, respect for others"

See AP post titled --Disgraced ex-journalist fights for CA law license --.

Is plagiarism an addiction?

In a post titled 'Tis the Season, for Student Plagiarizing , Anastasia Rubis writes:

It means that many students have been getting by for a long time by Googling, and cutting & pasting. It's a habit. Let me go further: it's an addiction. According to Merriam-Webster.com, an addiction is a "persistent, compulsive use of a substance known by the user to be harmful." Students are addicted to a substance, Internet content, and compulsively appropriate it into their essays, even though they know it's a bad idea and they will get caught.

If Internet plagiarism is an addiction, then reporting a plagiarizer to the dean and flunking her is ineffective, because it doesn't address the dependency.

IPBiz does not think so. Nor did several of the commenters. One can rely on internet content and cite the source.

Top 100 people in bioenergy?

Within a post titled The Top 100 People in Bioenergy, 2011-12, BiofuelsDigest named Tom Vilsack numero uno.

There were several professors on the list:

18. Jay Keasling, PhD, Professor, UC Berkeley
27. Bruce Dale, PhD, Professor, Michigan State University
29. Chris Somerville, PhD, Professor, UC Berkeley Director, EBI
48. Lee Lynd, PhD, Professor of Engineering, Dartmouth College
59. Robert Brown, PhD, Professor, Iowa State University
83. Jim Dumesic, PhD, University of Wisconsin-Madison

Also on the list:
89. Philip Pienkos, PhD, NREL


**In 2010, Dumesic was no. 52 on the list:

If you’ve read much about Virent Energy Systems, the tdirect sugar-to-diesel technology known as bioforming, or the entire field of the catalytic conversion of feedstocks directlly into hydrocarbon fuels, you’bve been well exposed to the work from the Dumesic lab at the University of Wisconsin. Jim himself generally makes appearances at scientific conferences and is known to make technical presentations on new science, rather than grand pronouncements on biofuels policy. For that reason, it was a delightful surprise to see the Digest readership get behind Dumesic and elevate him to #52 in our poll. Though microbial fermentation approach to direct conversion to hydrocarbons get the lion’s share of publicity, the catalytic approach is attracting serious partners like Cargill Ventures and Honda.

Princeton Battlefield, Christmas 2011

Washington crosses the Delaware on Christmas Day 2011

Washington made it across the Delaware River on Christmas Day in 2011 in a Durham boat. Both CBS and NBC had stories on revised history as to the painting Washington Crossing the Delaware.

Philly Channel 10 (NBC) was on the bridge, shooting video.

***Of the "revised history" which made the rounds on Dec. 25, 2011, Rick Spilman blogged:


The New York Times recently featured an article, Crossing the Delaware, More Accurately, describing the work of modern painter, Mort Künstler, who has painted what he claims is a more accurate representation of Washington making the crossing. His painting shows Washington on a flat bottomed ferry connected to both shores by a rope cable. While I make no claim to expertise on Washington’s crossing, it looks to me that Künstler’s version ignores the historical record just as Emanuel Leutze’s painting does.

The problem is that most historians think that the American crossing of the Delaware used Durham boats, large flat-bottomed boats which hauled cargo such as ore, pig-iron, timber, and produce from upcountry mines, forests and farms down the Delaware River to Philadelphia’s thriving markets and port. Robert Durham, an engineer at the Durham Iron Works in Reiglesville, Pennsylvania, reputedly designed a prototype for these large cargo boats as early as 1757. Washington wrote to Governor Livingston of New Jersey, directing him to secure “Boats and Craft, all along the Delaware side…particularly the Durham Boats” for his anticipated crossing.

While it is possible that a flat bottom ferry was used by Washington in the crossing, there seems to be little historical evidence for it. (If I am showing the extent of my ignorance here I would be happy to be corrected.) A flat bottomed ferry would be far more efficient for transporting artillery and horses, while the Durham boats would be fine for transporting troops. Nevertheless it appears that the same boats were used for both purposes. Lt. Col. John Fitzgerald wrote in his diary, “The troops are over, and the boats have gone back for the artillery. We are three hours behind the set time.” Washington’s army transported 18 field pieces across the Delaware. (The American army relied far more heavily than the British on artillery, using cannon as a “force multiplier,” to use modern terminology.)

It also strikes me as a bit unlikely that a flat bottom ferry with a cable running across the river could have been set up and rigged in the darkness during a blizzard across an ice laden river. Whether flat bottom ferries were used significantly in the crossing is unclear. Several sources describe cannon being secured on Durham boats, while David Hackett Fischer’s Washington’s Crossing suggests that barges were used for the artillery and horses.

It appears unlikely, however, that Washington himself traveled by flat bottomed ferry. By tradition, he was rowed across with the troops in a boat under the command of Captain William Blackler, arriving on the New Jersey river bank prior to the artillery. It seems most probable that Washington, like most of the troops, traveled by Durham boat. One complaint about Leutze’s painting is that it shows Washington standing in the boat. The depth of the Durham boat effectively requires that everyone aboard stand, though the gunnel would be waist high, unlike the boats shown in Leutze’s painting.

"60 Minutes" re-gifts on Christmas Day, 2011

"60 Minutes" recycles two stories for the show on Christmas Day, 2011.

* A visit to the Vatican library

* A visit to Mount Athos in Greece

The show is billed as a special Christmas edition of 60 Minutes.

CBS Sunday Morning on Christmas 2011

**The piece on Darlene Love featured an intellectual property theme of the denial of credit to Love by Phil Spector. Darlene Love herself, on Sunday Morning, gave a substantially different account to what wikipedia describes in the following way:

Legend has it that the real Crystals were not able to travel from New York to Los Angeles fast enough to suit the LA-based Spector, who wanted to quickly record writer Gene Pitney's "He's a Rebel" before anyone else could release a version. The Crystals were unavailable, but Love and the Blossoms were also based in L.A., so Spector recorded and released their version under The Crystals' banner. (Other sources[who?] claim that Spector's haste in recording the track was simply because he was enthusiastic about the song, and that he was unaware of any competing versions—despite the fact that Vikki Carr was recording "He's a Rebel" nearly simultaneously with Spector.)

After Spector took Love's credit the second time, Love said she stormed into Spector's office. "Sunday Morning" mentioned that Bill Medley (Righteous Brothers) helped Darlene Love with her career. And, Love played the wife of Danny Glover's character in the Lethal Weapon series.

**During the holidays, Easy to forget to be grateful. Gratitude as a platitude? Appreciation is a contagious. Thankfulness is an antidepressant. A thank you a day may keep the Prozac away. There are two ways to live life: that nothing is a miracle, that everything is a miracle.

**Mo Rocca did the Sunday Profile on Albert Brooks. Brooks as a bad guy, as small-time mobster Bernie Rose. Brooks has been nominated for a Golden Globe. Discussed Modern Romance, Real Life. There's no line at the bank saying "ahead of your time." My name was Albert Lawrence Einstein. Doing inventive bits like world's worst ventriloquist. I didn't want to make it on someone else's terms. If it didn't work, I would sell shoes. Passed on opportunity to be permanent host of Saturday Night Live. Turned down when Harry Met Sally, Dead Poet's Society. Did do Broadcast News. Role of Clownfish in Finding Nemo. Brooks said: tweeting is almost standup. I reached a point where I couldn't be the most important person, and now I have a family. Everything Brooks has ended up doing is something he wanted to do.

**Edelstein pans Sherlock Holmes movies. And pans Young Adult. fetching delusional bitch from hell. Of Tatoo, not a good comment either. Tinker, Tailor, Soldier-Spy is hard to follow. Re-immersion in Cold War universe. Mission Impossible characters act like they are in the hands of someone familiar with indestrucible cartoon characters. TinTin is Indiana Jones squared. War Horse. We need something in these fractured times to remind us of our humanity. In the end, War Horse was the only movie that got Edelstein's complete backing.

** Hail and farewell. Steve Jobs had a knack for blowing us away. He thought differently. Excerpts from Stanford speech. Elizabeth Taylor appeared in some 50 movies. I've read my own obituary and they were the best reviews I ever had. Sidney Lumet never won an Oscar. Clip from Network. He did get an honorary Oscar. Musical scores of John Barry. Betty Ford. Making it ok to go for treatment. Geraldine Ferraro. America is the land where dreams can come true for all of us. Fred Shuttlesworth. Sargent Shriver. Franlin Kameny. Vaclav Havel. Richard Winters of Easy Company: Band of Brothers. Frank Buckles, last World War I. Norman Cowin. Jerry Ragaboy (Stones' Time is on My Side). Jack LaLanne. Peter Falk. Jerry Lieber. James Arness. 40 million Americans turned into Gunsmoke. Arthur C. Nielsen. Len Lesser as Uncle Leo on Seinfeld. Frances Bay. Harry Morgan. John Strauss. Jeff Conaway. Sherwood Schwartz, Brady Bunch and Gilligan's Island. Shafley of the teleprompter. Robert Pierpoint. David Broder. Dan Weldon. Amy Winehouse. Nick Ashford: Poetry Man. Phoebe Snow.
Inventor of first implantable pacemaker. Joe Frazier. Bubba Smith. Harmon Killebrew. Duke Snider. Al Davis. Clarence Clemmons. Inventor of super glue. Arch West inventor of Doritos. Milton Levine invented the ant farm in 1956. Cow made of butter: Norma Duffy Lyon. Lucian Freud. Cy Twombly. John Chamberlain. Hugh Martin. Christopher Hitchens. Jack Kevorkian. Spoke with Andy Rooney in 1996, Leading nto death of Andy Rooney. Used to having last world. I can't complain about my life. You don't get any luckier than that.

Pulse. Re-gifted: yes 29% no 70%

Bill Geist on Seneca Falls, New York. Model for Bedford Falls in It's a Wonderful Life? Zuzu Cafe. A mecca for Wonderful Life fans. Caroline Grimes who played Zuzu. Carol Combs Mueller who played Janiel. 320 Sycamore. Tommy's Barber Shop.
April 12, 1917. Original story: The Greatest Gift.

Almanac: Dec. 25, 1941. Bing Crosby's White Christmas on the radio. Crosby sang it the next year for the movie Holiday Inn.
Then in 1954 for the movie White Christmas. At the end of the piece, Charles Osgood singing (something else). Then Darlene Love shows up (red dress and white wrap), and they do sing White Christmas together. [As to Sunday Morning, very unusual to have Almanac this close to end of the show.]

Moment of Nature, Spiriva. Marietta burro reserve near Hawthorne, Nevada. Burros as candidates for nativity pagaent.

Charles had a red handkerchief and a sort of green bowtie.

**Of Darlene Love, answers.com has an account more in line with what Love said on Sunday Morning:

In 1962, Love was introduced to legendary producer Phil Spector, who asked her to sing lead vocals on the song "He's a Rebel." Love leapt at the chance, and recorded the song for a flat fee of $3,000, a huge sum of money at the time. The single was not released under Love's name, but was credited to "The Crystals," a New York group that was signed to Spector's record label. The song was a number one hit and sold more than 3 million copies, but Love received no royalties. It marked the beginning of a trend that would continue throughout most of her singing career.

Nevertheless, Love continued to record for Spector, sometimes under a band's name, sometimes anonymously. She struggled to persuade Spector to give her a contract, and to allow her to record under her own name. In 1963, Spector promised Love that the single "He's Sure the Boy I Love," would have her name on it--except that he wanted to call her "Darlene Love" after one of his favorite gospel singers, Dorothy Love. "I didn't mind because I didn't think the name would last. I figured Phil would just decide to call me something else again two or three records down the road," Love wrote in her autobiography. "And that was one of the last times Phil Spector and I ever saw eye to eye on anything." When the record was finally released, Love discovered that it was again credited to The Crystals. Of the hundreds of recordings Love made for Spector, the few credited to her name include "(Today I Met) The Boy I'm Gonna Marry," "Wait Til My Bobby Gets Home," and "Christmas (Baby Please Come Home)."


AND as to intellectual property:

Two years later [1993], when her career was finally secure, Love decided to take Spector to court for a share of royalties.

Spector denied that he had ever signed a contract with Love--until she was able to produce a decades-old royalty statement. In 1997, a New York Supreme Court jury ruled that Love had indeed signed a contract with Spector, and awarded her $263,000 in royalties. Because the statute of limitations in New York is six years prior to the date the suit was filed, this sum included only royalties dating back to 1987. However, the case was hailed as a landmark victory not just for Love, but for other veteran musicians who were paid a flat recording fee and then watched their records go on to make millions. "Other people of my time will be able to go into court," Love was quoted as saying in Billboard. "The fallout from this is going to be great, I feel."

Apple to beat Motorola?

A post by Katie Marsal begins: Apple is likely to win a patent dispute against Motorola related to photo gallery scrolling on a touchscreen device, as the smartphone "war of attrition" continues.

Wemple revisits the Marr plagiarism episode

Within a post titled How Politico reacted to its plagiarism outbreak , Erik Wemple reviews some details of the Marr plagiarism episode. As to how Politico reacted later, Wemple includes text:

Politico leadership pivoted from Marr to an in-house training program. Over the past month or two, newsroom veterans have held sessions on a range of journalistic subject areas, including the following (as articulated in a Politico e-mail):

● Building sources: How to develop source relationships — pick up the phone and get out of the office
● Using public records: Boosting original reporting — where to look for records and how to understand them

AND

● Attribution in the Internet age: a look at what synthesis/rewriting is acceptable and unacceptable; when attribution is needed and when it isn’t; what facts are in the public domain

As a headsup, IPBiz may be breaking a story on restriction of public domain material in the state of New Jersey. Stay tuned.

IN RE SP CONTROLS, INC.: CAFC affirms a "broadest reasonable interpretation" [BRI]

After the Board denied rehearing of the decision in re-examination 90/007,802, Ex parte SP Controls, Inc., No. 2009-6008, 2010 WL 3448889 (B.P.A.I. Aug. 31, 2010), SP Controls appealed to the CAFC.

The CAFC noted: During reexamination, the PTO must give claims their broadest reasonable construction consistent with the specification. In re Icon Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). We “thus review[ ] the PTO’s interpretation of disputed claim language to determine whether it is ‘reasonable.’” In re Suitco Surface, Inc., 603 F.3d 1255, 1259 (Fed. Cir. 2010) (quoting In re Morris, 127 F.3d 1048, 1055 (Fed. Cir. 1997)).

The first step in the analysis is the claims themselves. The CAFC stated: We turn first to the claims themselves, in order to de- termine whether there is anything in their language which limits their reach to a frame in which labels and keys are in separate slots. See Rapoport v. Dement, 254 F.3d 1053, 1059 (Fed. Cir. 2001). In this, the CAFC provided a definition of the term of art "comprising" --> “‘Comprising’ is a term of art used in claim language which means that the named elements are essential, but other elements may be added and still form a construct within the scope of the claim.” Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir. 1997) (quoting In re Baxter, 656 F.2d 679, 686 (CCPA 1981)).

The fate of SP Controls was sealed with the text This is significant, for the law is clear that, absent such language in the specifi- cation, the claims are not limited to preferred embodiments. See Resonate, Inc. v. Alteon Websystems, Inc., 338 F.3d 1360, 1367 (Fed. Cir. 2003); Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1326-28 (Fed. Cir. 2002). This is particularly so where, as here, the claims are to be given their broadest reasonable construction. Cf. In re Bigio, 381 F.3d 1320, 1324-25 (Fed. Cir. 2004)

The bottom line: For the foregoing reasons, we affirm the Board’s decision sustaining the Examiner’s rejection of claims 1-6 of the '794 patent.

Claiming large is good, up to the point such claiming ensnares prior art under "broadest reasonable interpretation."



***
text of decision

"60 Minutes" on December 18, 2011

The new threat from the great recession is vacant, abandoned homes. Cleveland has a program ripping them down.
Scott Pelley did "There goes the neighborhood," beginning with the observation that 25% of the homes are worth less than the outstanding mortgage. In Cleveland, perfectly good homes are being torn down. 1/5 of all houses were left vacant. Cleveland waited four years for home values to recover. Rococas is leading the effort to tear down unoccupied homes. Foreclosure scavengers have gone hi-tech, tracking legal actions. Aluminum siding, copper is removed, and generally saleable metals. Vacant land produced by demolitions is frequently given to the neighbors. The guy next door is the victim of abandoned, but remaining, houses. The bank is supposed to take responsiblity, but the banks are walking away. The banks do not show up at the sheriff's sale. In the high time of lending: Money looking for people. Eleven million people owe more on mortgage than house is worth. An example was given: Her house is worth $50,000 but the mortgage is $100,000. Another example also involved a $50,000 difference. Cinema Park at Miles Drive: only six occupied homes. $200,000 mortgage for house now worth $100,000. Pelley noted Cuyohoga sheriff is doing 50 evictions per month. One neighborhood had 1/4 of house vacant. One critic suggested banks write-down the mortgages. Cuyohoga County ripped down 1,000 homes in past year.

Second, Gardens of the Queen. Anderson Cooper on the rainforests of the ocean (coral reefs). Located off the coast of Cuba. First to Havana. The drove six hours, boat for 6 hours, then islands on Cuba's southern coast. David Guggenheim of Ocean Foundation of Washington, DC described the reef as a time capsule. Coral is an organism. Diversity of life that lives on the reefs. David said 90% of sharks have been removed from the oceans. Goliath Grouper. David spoke of critically endangered. David noted problems with the presence of the lion fish. Nine foot crocodiles. David talked about Vera Cruz reefs, which are being lost. Rising ocean temperatures cause bleaching. We have lost 25% of the world's coral reefs. Company: Avalon, co-owned by Cuba government and a company in Italy.

Third, Meryl Streep. Story: "The Many Meryls", featuring movie on Margaret Thatcher. Stage of Delacourt Theater, where Streep began 35 years ago. Suspension of the day to day, and you're in someone else's head. The opportunity to deal with the deep buried discomfort many have with women in leadership positions. To sit in the hot seat. Support her voice, by making it deeper. Remarkably single-minded; her way was the only way. High school in Bernardsville, NJ. Homecoming queen. Loved Carole Lombard, Kate Hepburn. Yale Drama School. Joe Papp. Kramer v. Kramer and Manhattan. Silkwood. Out of Africa. Mamma Mia. Doubt. Angels in America. Sybil Thorndike quoted. Thatcher now is suffering from dementia. Tell an honest story about a big life in its ebb. Playing a strong minded woman. National women's history museum in DC. Mom Bett, slave in Massachusetts. Took name Elizabeth Freeman. Streep has a problem with the snail's pace of movie making. "The narrowing of the audience." La Giaconda smile of Meryl Streep. All that education down the drain (anaconda).

Solazyme, Glauthier in the news

Note the post at the Daily Mail titled Crony capitalism sinks the Navy includes the text

You won’t be surprised to learn that a member of Obama’s presidential transition team, T. J. Glauthier, is a “strategic advisor” at Solazyme, the California company that is selling a portion of the biofuel to the Navy. Glauthier worked – shock, shock – on the energy-sector portion of the 2009 stimulus bill.

A post at TucsonCitizen titled Another questionable energy deal $16 jet fuel notes

A member of Obama’s presidential transition team, T. J. Glauthier, is a ‘strategic advisor’ at Solazyme, the California company that is selling a portion of the biofuel to the Navy. Glauthier worked on the energy-sector portion of the 2009 stimulus bill. Solazyme had already gotten a nearly $22 million chunk of change out of the taxpayers thanks to the 2009 stimulus.


And from Human Events: Jet-Fuel Gate :

The biofuel will be used next summer by — we're not making this up — "the Great Green Fleet Carrier Strike Force" in exercises near Hawaii.

**Separately

http://news.yahoo.com/blogs/lookout/digital-ways-kids-cheat-155638383.html

**Update. As to the comment below, the blog IPBiz does not give legal, or financial, advice. Another blog, heartland, covered this episode in the following way:

A recent undertaking by the Department of Defense, however, raises questions as to whether the military’s commitment to innovation may be endangered by political pandering — especially in the face of the announcements earlier this year that 3,000 sailors nationwide, approximately one out of every one hundred people in the force overall, will be forced to leave the Navy. The creation of a so-called “Great Green Fleet,” a series of improvements designed to make the military more “eco-friendly,” seems a contradiction in the face of increased Department of Defense cuts (a possible trillion dollars over the next ten years).

According to Wired’s Danger Room, the 450,000 gallons of biofuel that constitute the first stage of the transition to a “green” fleet will cost more than $12 million, a relatively small amount as far as Defense expenditures go. When compared with conventional fuels, however, the cost differential raises serious concerns about the long-term utility of the program. According to Wired:

The Navy previously paid about $1,000 for each barrel of biofuel it bought to test out in its jets. This new purchase, at first, will cost just as much: $26 per gallon, or $1,092 per barrel. That biofuel will then be blended with an equal amount of fossil fuel, producing 900,000 gallons — and an effective price of about $15 per gallon for that 50/50 blend. It’s “roughly half of what was paid in 2009,” according to Deputy Assistant Secretary of the Navy Tom Hicks, who serves as Mabus’ point man on energy issues. But it is still far more than the Navy currently pays for its JP-5 jet fuel: $3.97 per gallon, or $167 per barrel.

The full order will be shared between two companies: Dynamic Fuels (a joint venture between Syntroleum and Tyson foods) uses animal fats and wastes to create biofuel, while Solazyme employs algae to break down a wide variety of material, from plant matter to household waste into fuel. A closer look at the California-based Solazyme, however, reveals that political motives, rather than national security priorities, may be a driving force in the push to “go green.”

**As one historical footnote of Civil War vintage, Spencer could not get any traction for his repeating rifle until a friend of Secretary of Navy Welles was brought on board. The Navy did buy some rifles, which purchase had little impact on the outcome of the war. However, Spencer rifles used at East Cavalry Field at Gettysburg on July 3, 1863 and in Wilson's Raid on Selma did impact the outcome of the war. As a different footnote, the Wright Brothers had difficulty in getting the federal government to appreciate the strategic significance of the airplane. At the end of the day, Curtiss attracted the interest of the Navy. Franklin Roosevelt, then in the Navy Dept., had a great deal to do with the patent pooling of airplane patents during World War I.

**All that said, how big a future is there for a technology based on converting sugars to fuel?

Further update: from a post on seekingalpha:

Many of the companies in this industry have proven themselves on a demonstration scale but need the infrastructure capacity to be built on a commercial scale in order to be cost-comparable to the price of conventional fuels and chemicals. Consider the following advanced biofuel companies that "made it" into the IPO window:

Company IPO Price Amount Raised Current Price (12/21/11)
KiOR (KIOR) $15 $150 Million $10.19
Gevo (GEVO) $15 $107 Million $5.65
Amrys (AMRS) $16 $ 85 Million $10.6
Solazyme (SZYM) $18 $227 Million $10.79

We see that the advanced biofuel industry as a whole has suffered in light of the recent market volatility as all four publicly traded companies have fallen to levels well below their IPO prices. This can only go to further diminish the ability for other private companies to raise capital, such as Genomatica and OiriginOil, which recently filed for an IPO.

***Meanwhile, at Technorati

Algae is one surprising potential energy source that is showing great promise. It has gained recent media attention as the U.S Navy has announced plans to test the use of algae biofuel in one of its cargo ships.

***And of subsidies, from ABC News :

Vice President Joseph Biden heralded the Energy Department's $529 million loan to the start-up electric car company called Fisker as a bright new path to thousands of American manufacturing jobs. But two years after the loan was announced, the company's manufacturing jobs are still limited to the assembly of the flashy electric Fisker Karma sports car in Finland.

Full ITC to review HTC/Apple decision

BusinessWeek noted: "HTC Corp.’s loss in its patent- infringement case against Apple Inc. will be reviewed."

Peter Boesen loses to Garmin

The case involved summary judgment of anticipation, which was affirmed.

The CAFC noted:

A patent claim is anticipated if each and every limitation is found in a single prior art reference. 35 U.S.C. § 102. Although anticipation is a question of fact, summary judgment may be appropriate if the record reveals no genuine dispute of material fact. Encyclopaedia Britannica, Inc. v. Alpine Elecs. of Am., Inc., 609 F.3d 1345, 1349 (2010).

As to claim language:

“‘Comprising’ is a term of art used in claim language which means that the named elements are essential, but other elements may be added and still form a construct within the scope of the claim.” Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir. 1997). The district court correctly explained that as long as the Acura navigation system can – and does – perform the claimed input method, it is of no consequence that it can also perform other input methods. Contrary to Dr. Boesen’s arguments, the claims have no other language to suggest that the input must always come via the on-screen keyboard. Moreover, even if the preamble were to be limiting, this would not narrow the scope of the claims in a way that avoids invalidity: the Acura navigation system still practices these claims when a user inputs information using the on-screen keyboard, followed by pressing an on-screen acceptance key such as “done” or “find” which dismisses the input field.

Axiomatic:

It is axiomatic that a product which would “infringe if later in time anticipates if earlier than the date of the invention.” Lewmar Marine, Inc. v. Barient, Inc., 827 F.2d 744, 747 (Fed. Cir. 1987).

AND

It is axiomatic that the claims define the metes and bounds of the invention. Arlington Indus., Inc. v. Bridge- port Fittings, Inc., 632 F.3d 1246, 1252 (Fed. Cir. 2011).

Corrected opinion issued for: IN RE CONSTRUCTION EQUIPMENT COMPANY

Corrected Format Version Issued: December 15, 2011

Plagiarism in B-school: I'm shocked

In a world in which the HBR runs articles with captions "Plagiarize with pride," it should come as no surprise that B-schools are hotbeds of plagiarism. From text in a post at businessweek:

I suspect more business schools will begin subjecting admissions essays to the plagiarism test. Is this something that MBA applicants should be worried about?

I don't think using the same essays in multiple applications will get anyone flagged as a plagiarist--there seems to be general agreement that you can't plagiarize yourself. But borrowing from sample essays found online or other online sources without attribution, even unintentionally, might result in your application being rejected.

I'm all for zero tolerance on plagiarism, but what does everyone else think? Northeastern's online application warns applicants that their essays will be reviewed for possible plagiarism. Should b-schools that use Turnitin warn applicants, or is the stealth approach okay?

IPBiz notes that the text -- there seems to be general agreement that you can't plagiarize yourself -- is very much open to question.

Jerusalem court rules against Naomi Ragen in copying case

In a discussion of a verdict against author Naomi Ragen, the Jerusalem Post includes the following comparison:

In the passage, on page 343 of Shapiro’s work it reads “you don’t understand Americans; we don’t make it our business to produce perfectly behaved angels,” a nearly identical statement to one found on page 348 of Sotah that read “you don’t understand Americans... American mothers are not in the business of producing perfectly behaved little angels.” Shapiro was born in the US and immigrated to Israel in 1976. She lives in Jerusalem where she makes her living as a writer and editor of works marketed to the English-reading haredi community.

Perhaps copying without attribution, but is it copyright infringement?

ITC to issue ruling on Apple's claim against HTC on Dec. 19

Chien and Lemley have a piece in the New York Times which includes the text:

As patent law experts who appreciate the efficiency of the I.T.C.’s decision-making, we believe that a small change in how the commission does its job could yield big dividends for competition and consumers by reducing the disruption an exclusion order can wreak.

Within the article:

Even in such cases, shutting out imports of an infringing product is not always the right answer. If the patent covers a small part of the product, the defendant could design around it, and if the defendant’s infringement was inadvertent, the I.T.C. could award an exclusion order but delay its start. During the delay period, the infringer could pay remuneration through a bond, allowing the patentee to get paid but not holding up a large product because of a small patent.

[See http://www.nytimes.com/2011/12/13/opinion/patents-smartphones-and-the-public-interest.html]

The Times piece noted he ITC is expected to rule on the Apple/HTC case December 14, 2011, but Bloomberg stated:

Publication of the verdict was delayed to Dec. 19, HTC said in an e-mailed statement.

Warner-Chilcott v. Mayne on doxycycline hyclate : see the conclusion!

At the beginning of the decision, one has

Because the district court relied on disputed facts in granting the preliminary injunction without holding an evidentiary hearing, and failed to make any findings as to Mylan’s invalidity defense, we vacate the preliminary injunction and remand this action for further proceedings.

but go to the end of the decision to see what happened!

The issue was a "stabilizing coat" on the doxycycline hyclate on the product of generic maker Mylan.

On the stabilizing coat:

The majority of the hearing focused on the parties’ respective experts and various tests those experts had performed to show the existence or non-existence of a “stabilizing coat” in Mylan’s ANDA product. In other words, the court’s primary focus was on the question of whether Warner Chilcott was likely to succeed on the merits of its infringement claim, a question which turned on a battle of experts. Warner Chilcott’s expert relied on one test to conclude that Mylan’s product met the “stabilizing coat” limitation, while Mylan’s expert relied on five different tests to reach the opposite conclusion. The district court recognized that determining which tests to credit was “one of the threshold inquiries,” and that there existed “some serious factual disputes between the experts” on this issue.

The district court (of New Jersey) had granted an preliminary injunction against Mylan. The CAFC on preliminary injunctions:

A plaintiff seeking a preliminary injunction must establish that:
(1) “he is likely to succeed on the merits”;
(2) “he is likely to suffer irreparable harm in the absence of preliminary relief”;
(3) “the balance of equities tips in his favor”; and
(4) “an injunction is in the public interest.”
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). Such an injunction is “an extraordinary remedy never awarded as of right.” Id. (citation omitted). Where, as here, an accused infringer has challenged the validity of a patent in response to a motion for a preliminary injunction, this court has ad- dressed the procedures district courts are to use to analyze the question of validity. See, e.g., Titan Tires Corp. v. Case New Holland, Inc., 566 F.3d 1372, 1378-79 (Fed. Cir. 2009). As it relates to the present appeal, we have ex- plained that “the trial court first must weigh the evidence both for and against validity that is available at this preliminary stage in the proceedings.” Id. at 1379.
In this case, the district court abused its discretion in two ways. The court: (1) failed to hold an evidentiary hearing despite acknowledging that the decision turned on disputed factual issues; and (2) did not weigh the evidence or make any findings as to Mylan’s invalidity challenge.3 As discussed below, these errors warrant vacating the preliminary injunction.

The need for an evidentiary hearing on disputed issues of fact:

In the Third Circuit, as in other circuits, “a district court cannot issue a preliminary injunction that depends upon the resolution of disputed issues of fact unless the court first holds an evidentiary hearing.” Elliott v. Kiesewetter, 98 F.3d 47, 53 (3d Cir. 1996) (citing Prof’l Plan Examiners of New Jersey, Inc. v. Lefante, 750 F.2d 282, 288 (3d Cir. 1984)); see also Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1171 (7th Cir. 1997) (“If genuine issues of material fact are created by the response to a motion for a preliminary injunction, an evidentiary hearing is indeed required.”). In such cases, “[t]he chief ques- tion . . . is whether, in ordering the preliminary injunc- tion, the district court relied upon any facts that were properly disputed.” Williams v. Curtiss-Wright Corp., 681 F.2d 161, 163 (3d Cir. 1982).
Here, it is clear that the district court relied on dis- puted factual issues in granting Warner Chilcott’s motion for a preliminary injunction. Indeed, the court expressly identified those disputed issues when it explained that there were “some serious factual disputes between the experts” and “there’s clearly factual dispute between the two of you.” J.A. 25, 57. Rather than resolving those disputes through an evidentiary hearing, followed by adequate factual findings, as Mylan requested, the court put them aside for a later day. That runs afoul of the Third Circuit case law cited above.

Consequences of no findings of fact:

The district court also failed to make any findings as to Mylan’s invalidity challenge, thus preventing this court from engaging in any meaningful review of that issue. A court “must find the facts specially and state its conclusions of law separately.” Fed. R. Civ. P. 52(a)(1). “It is of the highest importance to a proper review of the action of a court in granting or refusing a preliminary injunction that there should be fair compliance with Rule 52(a) of the Rules of Civil Procedure.” Mayo v. Lakeland High- lands Canning Co., 309 U.S. 310, 316 (1940); Kos Pharms., 369 F.3d at 712 n.10 (quoting Mayo and explain- ing that a district court’s failure to explain each of the likelihood of confusion factors in a trademark infringement analysis “runs afoul of Rule 52(a)”); see also Nutri- tion 21 v. United States, 930 F.2d 867, 869 (Fed. Cir. 1991) (“Sufficient factual findings on the material issues are necessary to allow this court to have a basis for mean- ingful review.”). Absent appropriate findings, the normal course is to vacate the district court’s decision and remand the matter for a proper analysis. See Sabinsa Corp. v. Creative Compounds, LLC, 609 F.3d 175, 183 (3d Cir. 2010) (“Typically, when a district court fails to adequately support its findings, we merely remand for a re-weighing of the applicable factors.”); Pretty Punch Shoppettes, Inc. v. Hauk, 844 F.2d 782, 785 (Fed. Cir. 1988) (same).

AND

Although there is no precise formula district courts must use rendering their findings under Rule 52(a), an utter failure to make any findings contravenes that rule. In addition to violating Rule 52(a), these omissions are also contrary to our case law, which requires district courts to consider both the accused infringer’s validity defense and the patentee’s arguments in support of its patent. See Titan Tire, 566 F.3d at 1379 (“[T]he trial court first must weigh the evidence both for and against validity that is available at this preliminary stage in the proceedings.”). Accordingly, we remand the matter for the district court to make appropriate findings consistent with these authorities.4

BUT, note the conclusion:

Although the district court’s entry of the preliminary injunction in this case is contrary to controlling authority, we are mindful of the court’s demanding schedule and desire to avoid duplicating its efforts with a soon-to-be- scheduled bench trial in this case. If doing so serves judicial efficiency, the district court may consider entering a temporary restraining order after this court’s mandate issues, then consolidating the preliminary injunction hearing with the bench trial on the merits, assuming that can occur within the timeframes mandated by the Federal Rules of Civil Procedure. See Salinger v. Colting, 607 F.3d 68, 84 (2d Cir. 2010). With that in mind, we remand this matter for proceedings consistent with this order.

Fee diversion, unresolved by the AIA, is the cause of application backlog

In a post titled Patent Reform Fails to Halt Fee Diversion , Inventors Digest brings up the problems caused by fee diversion, in particularly asserting that fee diversion has caused the backlog of unexamined patent applications:

A Report of the National Academy of Public Administration estimates the current backlog of unexamined patent applications is in fact the direct result of fee diversion. The report estimates that if the USPTO had not experienced fee diversion, then the average application pendency time would have averaged slightly over 21 months as compared with the 30 months to 40 months that it currently takes to process a patent application.

Obama on "60 Minutes" on Dec. 11, 2011

According to "60 Minutes" on Dec. 11, the Obama interview took place on Friday (Dec 9) morning. But, a bcnn post stated:
Steve Kroft interviewed the president on Tuesday in Kansas after he delivered an economic speech in the small town of Osawatomie. President Obama will talk to Kroft again tomorrow at the White House for Sunday's report.

Steve Kroft explicitly said the interview took place on Friday morning in the Cabinet Room. The first part of the CBS video did include Kroft meeting with Obama right after the Kansas speech. In the clip, Kroft brought up the "class warfare" issue. Kroft asked if the start of the campaign season meant "no more governing." Then, "60 Minutes" turned to the Friday meeting. Obama did mention the need for a focus on "common sense." Obama suggested the Republicans were standing on the sidelines. Kroft responded: isn't your job as president to put forth a plan for getting the job done. Obama said it was his job to line up his party, and to rally the American people. Kroft brought up poll numbers. Obama talked about unemployment and people were feeling under the gun. The people are going to feel unsatisfied. Obama stated the Republicans have made a strategic decision. Obama said a majority of Republican (voters) favor tax increases (and deficit reductions). There are common sense, main stream ideas. Kroft asked: unemployment rate by 8% by election. Obama said it's possible. Obama: 9 consecutive quarters in which economy has grown. Obama: we did all the right things to avoid a great depression. Obama: I'm the captain and (his team) is the crew, and we're going through storms. Obama: I don't control the weather. Kroft: general perception that stimulus didn't work. Obama interrupted Kroft and quoted McCain's former economic advisor. Obama: bumping up against Congress. Obama: if people's reality is difficult, they will be upset. Kroft: why do you deserve to be re-elected? Obama: avoided a great depression. reformed the financial system. ending don't ask, don't tell. decimating Al-Qaida.
Kroft also asked why no prosecuting of Wall St. bad actors?

Kroft said at the heart of the Friday interview were questions about the effectiveness of Obama's leadership. 42% of poll said Obama's policies favor Wall St. Obama: from 40,000 feet, the most damaging behavior on Wall St. wasn't illegal. Kroft said intransient? Obama: I want everybody to rich. Obama referred to "basic math." Democrats allege Obama was outmaneuvered.
Obama: we Democrats must make some sacrifices on entitlements. Kroft: a sense of disappointment. You were going to work outside the box, but you have been too cautious. Kroft asked about any doubts about running for a second term. Obama: I'm being judged against an ideal. Obama: the core philosophy [of all Repub. candidates] is the same.

Springfield, IL kickoff for Prez campaign: The reason we have not met our challenges is a failure of leadership. Kroft: did you overpromise? Obama: I'm a persistent son of a gun.


A second story is on Howard Buffet, 57 year old son of Warren Buffet. Howard has been a farmer in Nebraska and (Pena) Illinois. Howard received about $300,000 in farm subsidies over 13 years. Howard G. Buffet Foundation focusses on world hunger. Farmers who couldn't feed themselves. In El Salvador, Howard is funding a training program. Howard emphasizes accounting. Warren noted none of his kids graduated from college. Howard would be the "guardian of the culture" of Berkshire Hathaway.

CBS Sunday Morning on December 11, 2011

Charles Osgood introduced the stories for December 11, 2011. Decorating for the holiday season and remembering armed forces. Cover story. Second, Bob Schieffer on Brad Paisley, and the changing face of country music. Serena Alschuler on "In Vogue", with covers of Vogue now available on the internet. Mo Rocca on comedians as warm-up persons. David Pogue, Techno-Claus. High tech gifting ideas. Ted Danson, Birth of Neon. Harry Morgan.

Headlines. Debate in Des Moines. How conservative? Manuel Noriega fit to be extradited from France to Panama. Treating hemophilia with gene therapy reported in San Diego. Wreaths Across America. RGIII of Baylor got Heisman. Ryan Braun tested positive. Obama/Biden at Army/Navy game. Weather: cold weather has arrived.

Cover story: Mail Call. National Guard Armory in Van Nuys, California prepares packages for soldiers. Operation Gratitude founded 8 years ago to send "care packages" to troops. Carolyn Blashek, age 46, tried to enlist in the armed forces. She wanted to make sure soldiers knew someone cared. Every box goes out with a handwritten note. During Civil War, there was mail call. Z mail during World War II, letters were microfilmed. A postal service box can get from US to war front in days. "Cause" is another group. One of Carolyn's sons graduated Princeton, got into med school, but joined the Marines. Jordan Blashek deployed last month. Box 750,000 rolled off the assembly line this week.

Almanac. Dec. 11, 1910. Visitors to Paris Exhibition [ Salon de l'Automobile et du Cycle ] saw neon light of Georges Claude. Packard did America's first neon light in 1923. Times Square. Las Vegas. Seinfeld episode on neon chicken. Dunes sign demolished in 1993. Now challenged by LEDs. "Let there be Neon" in NYC.

Vogue, the style of the moment. Anna Winter has been Vogue's editor in chief for 20 years. A cover is a poster. 120th anniversary of Vogue in 2012. A book of the magazines covers is coming out. First issue: Dec. 1892. Gibson girls, named after illustrator. Publisher Conde Nast. Art deco. Change in 1932: color photo by Edward Steichen. Winter's first cover: Israeili model wearing jeans. Celebrities on cover instead of models. The 1992 centennial edition featured supermodels. The September issue is best of best. 840 pages weighed five pounds. This past Wednesday the archive was unveiled. Now: a fee of $1500 to access Vogue archive. 400,000 pages are indexed.

Rita Braver on Ted Danson. Investigator D.B. Russel on CSI. And, Bored to Death. Eager desire to be delighted by life. At age 63, a father figure of sorts. Mary Steenbergen. Danson grew up in Flagstaff, AZ; Danson went to Stanford. After school to New York; then to Hollywood. In 1982, got part in Cheers.
Oceana. Perils facing world's oceans. In 1993, Danson decided his run on Cheers should end. Danson's affair with Whoopi Goldberg.

David Pogue on techno-gifts. Bedol water clock. Roku LT. iPod Nano. Jambox. Lens Combo for iPhones.
Withings WiFi scale. Parrot Quadricopter.

Hot in Cleveland, warmup guy. Michael Berger. Lindsay Lohan had to walk into a tree. Eddie Brill is warm-up guy for David Letterman. Martha Stewart calls warmup guy artiste. Hers is Joey Cola. Martha: the audience can never to too hopped up.

Harry Morgan died at age 96. Took public speaking courses at the University of Chicago. High Noon. Inherit the Wind. Dragnet. Colonel Sherman Potter on Mash.

Bob Schieffer does Sunday Profile on Brad Paisley. "Tex" I'd like to check you for ticks. Waitin' on a Woman. Textbook 21st century country singer. How can I do this and not get caught. "Diary of a player." Wheeling, West Virginia. "Remind Me." Actress Kimberly Williams. Waitin on a Woman. Nothing is off limits.

Magazines. Backyard Poultry. Culture, magazine for cheese. Manure Manager. Crappie World. Divorce Magazine. Serial Killer. BLT: beautiful lady, television. Magazine aficianado.

Steve Hartman. Lake Geneva Area Realty. Sal DiMaselli. TheTimeIsNowToHelp. [Story recycled from CBS Evening News.]

Next week: burning debate over lightbulbs.

Moment of nature. Spriva. Pronghorn antelope near Eagle Lake, California.

CAFC affirms obviousness in In re Gough

The CAFC noted:

Under 35 U.S.C. § 103(a), a patent may not issue “if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” 35 U.S.C. § 103(a). Obviousness is ultimately a question of law based on several underlying factual inquiries, including the scope of the prior art, the level of ordinary skill in the art, the differences between the claimed invention and the prior art, and certain secondary considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966); In re Klein, 647 F.3d 1343, 1347 (Fed. Cir. 2011).

Map stereotypes New Jersey regions

A descriptive map of New Jersey is hitting the news on December 9. Bridgewater falls within the region of "middle-class Raritan Valley Line Commuters." Hamilton Township, on the other hand, is included in the region of "sad black people and corruption." Nearby Princeton is in the region "Lawyers Driving Hybrids."

Millville falls within the region "Pretty Much Alabama." North Jersey, including Sussex and Franklin, is defined as "Vast Wilderness of Rednecks and Retired Hippies."

See New Jersey residents laugh, question map of stereotypes

Prometheus: loophole highwaymen waiting to waylay?

In Supreme Court Takes a Look at Medical Patents, Forbes takes a harsh view of the Prometheus position. See also the ariticle Medical Patents Before Court at the Wall Street Journal.

The New York Times discussed the government's "middle position":

“Each party in this case has got a valid point,” said Donald B. Verrilli Jr., the solicitor general. “Mayo is correct that you can’t get a patent by tacking a mental step onto an utterly conventional process for administering drugs and testing their effects.”

Still, Mr. Verrilli said, the Prometheus method was eligible to be patented as an initial matter but could then probably be challenged as invalid because it was obvious and insufficiently novel.

Mr. Shapiro said that was the wrong approach, urging the justices to adopt a robust threshold test to protect the public domain. “It’s the critical test defining what’s in the storehouse of information for medical researchers to use,” Mr. Shapiro said of the initial test for patentable inventions.

The Times also noted: Prometheus waited until Tuesday to tell the court that it had been purchased by Nestlé in July.

The European problem & solution approach [PSA]

IPBiz has discussed the European problem/solution approach to obviousness before (e.g.,
Obviousness: European problem and solution approach ). One notes that there is a divergence
between Europe and the United Kingdom on PSA (e.g., Obviousness Approaches of the EPO and The English Courts ), discussing Actavis v Novartis [2010] EWCA Civ 82, 17th February 2010 . Canada follows the United Kingdom approach, rather than
that of the EPO PSA ( eg, Inventive step and non-obviousness )

Note comments at IPKat on Actavis v Novartis : It also probably doesn't help when the crucial step of identifying what the technical effect of the difference between the claimed invention and the closest prior art is somewhat skated over, if not missed out altogether.


***Of support for the "problem" in the specification, from Ru Li on PSA :

the problem has to be formulated on the basis of the information given in the patent application (properties, effects). It must be known or capable of being deduced by the skilled man from the data given in the application. In other words, the problem must be sufficiently concrete and has technical content that is meaningful to the skilled person to look for a solution.

[cross-reference: http://www.bepress.com/ndsip/papers/art17/ ]

***Note mention of PSA within 2009 Wis. L. Rev. 1435 :

The Kubin standard closely mirrors the European standard for assessing "inventive step," which is the general European patentability requirement analogous to nonobviousness. The European approach to [p. 1453] assessing inventive step is called the "problem-solution" approach. n123

Footnote 123 states: Another appropriate way to think of the approach may be to consider the task at hand and how it was successfully accomplished. Fordham Symposium, Panel I Remarks, supra note 11, at 882 (remarks of John Richards).


***As to the problem, see http://www2.ari.net/foley/leonard.html which notes:

2. Formulation of the Technical Problem
The closest prior art having been determined, the second step is to
establish in an objective manner the technical problem which the invention
sets out to solve. The technical problem in this sense is the aim and task
of modifying or adapting the closest prior art to provide the technical
effects which the invention provides over the closest prior art. The problem
can thus be seen as the task the inventor has set himself, viewed in the
light of the closest prior art.
The technical problem may be to improve in some way an effect already known
from the prior art. Alternatively it may be to make available a totally new
effect. Examples of the former can be to find new compounds having a higher
activity than structurally close known compounds or to modify known
compositions in such a way as to avoid unwanted side effects.
The establishment of the technical problem must be based on ob jectively
established facts derived from the available prior art. This prior art may
not have been available to the Applicant at the time of filing of the patent
application and the objectively established technical problem may thus be
different from the problem as seen by him. It is necessary to ensure that
any problem considered does not contain any elements of the solution, since,
if it does, its formulation may result from post facto considerations.
Furthermore it must actually be solved by the invention. The latter can
often be settled on the basis of information available in the patent
application itself or on the basis of evidence filed by the Applicant after
the filing date of the application. Where more than one technical effect is
obtained, the invention may solve more than one problem. In this case each
of these problems will generally have to be considered separately.
In response to an objection that an invention is obvious an Applicant or
Patentee may submit evidence to show that the invention leads to effects
different from those originally considered, with the result that the
Technical Problem solved by the invention may have to be reformulated. The
extent to which the Technical Problem can be reformulated in this way will,
of course, depend on the disclosure of the Application or Patent and of the
closest available prior art and has to be assessed on the merits of the
particular case. Any effect provided by the invention may be used as a basis
on which the problem may be formulated, so long as that effect is derivable
from the application as originally filed or the patent as granted(8). The
person skilled in the art must be able to recognise this effect as implied
by or related to the technical problem initially suggested(9). An effect
however which is different in kind from or is not implied by or related to
the originally considered Technical Problem, and could not have been
foreseen in the light of the application as originally filed cannot be used
as a basis on which to reformulate the problem.
The reformulation of the problem may be illustrated by the following Example
taken from the Guidelines(10):
The invention as filed relates to a pharmaceutical composition
having a specific activity. At first sight, having regard to
the relevant prior art, it would appear that there is a lack of
inventive step. Subsequently, the Applicant submits new
evidence which shows that the claimed composition exhibits an
unexpected advantage in terms of low toxicity. In this case it
is allowable to reformulate the technical problem by including
the aspect of low toxicity, since pharmaceutical activity and
toxicity are related in the sense that the skilled person would
always contemplate the two aspects together.
(Re)formulation of the technical problem in the sense referred to here is
carried out essentially for the purpose of assessing whether or not the
invention is or is not obvious. It cannot normally give rise to any
amendment of the application or patent. Any such amendment is only
allowable, if it meets the requirements of Article 123, part 2, i.e. it does
not add subject matter which extends beyond the content of the application
as originally filed(11).

"In re Construction Equipment": a big deal in the law of re-examinations

The majority opinion in this re-exam case by Judge Prost is relatively short. The dissent by Judge Newman is not, and the first paragraph gives one a flavor of the stakes involved:

This reexamination appeal raises a fundamental question—is a final adjudication, after trial and decision in the district court, and appeal and final judgment in the Federal Circuit, truly final? Or is it an inconsequential detour along the administrative path to a contrary result? Although final decisions of courts of last resort are preclusive within the courts, is the administrative agency excused? Here the Patent and Trademark Office did not mention the prior adjudication of the same issue, although that issue was finally decided in thecourtsin2001.1 The PTO’s reexamination decision is now before us on appeal, the same issue that we finally adjudicated eleven years ago.

Thus the curious, as well as unconstitutional, situation whereby this court’s final decision has devolved into an uncertain gesture, stripped of value in commerce as well as in law. The panel majority, unperturbed, simply defers to the agency’s new result as if this history does not exist. I respectfully dissent.


AND

In this case the rules of res judicata and issue preclusion are involved, for this reexamination was requested by Power- screen, the defendant in the prior district court ruling, the appellant in the prior Federal Circuit appeal, and the petitioner for certiorari. Powerscreen could not have relitigated the question of obviousness in any court. See San Remo Hotel, L.P. v. City & Cnty. of S.F., 545 U.S. 323, 336 n.16 (2005) (“Under res judicata, a final judgment on the merits of an the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.”). There is no assertion here of the “extraordinary circumstances” contemplated by Fed. R. Civ. P. 60(b), a rule that reflects the courts’ inherent power to reopen their own judgments in the interest of justice. See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988) (...)

AND

Seven years later Powerscreen requested reexamination on the ground of obviousness, citing the same references and additional references, placing strongest reliance on the same references that had been cited in the litigation. However, when an issue has been litigated and judgment entered in a court of last resort, “[t]he underlying rationale of the doctrine of issue preclusion is that a party who has litigated an issue and lost should be bound by that decision and cannot demand that the issue be decided over again.” In re Freeman, 30 F.3d 1459, 1465 (Fed. Cir. 1994) (in a reexamination completed after litigation, the PTO gave preclusive effect to the district court’s ruling on claim scope, although the Board stated that it the Board stated that it did not agree with the district court). These fundamentals of judicial authority and administrative obligation are not subject to the vagaries of shifts in the burden or standard of proof in non-judicial forums, as the panel majority proposes. Although this aspect was weighed in In re Swanson, 540 F.3d 1368 (Fed. Cir. 2008), a lower stan- dard of proof in an administrative agency cannot override the finality of judicial adjudication. The burden of proof assigned to administrative bodies is a matter of policy and procedure, not a change in substantive law. Administrative burdens do not override the Judicial Power of dispositive judgment.

One interesting question is how the non-estoppel here might play out in the reversed situation under the terms of the AIA?
Or does this case hinge solely on the difference between preponderance and clear and convincing?

A blogger is not a journalist in Oregon

Within an AP post titled Federal judge: Montana blogger is not journalist, one finds text related to the blogger:

Cox said she considered herself a journalist, producing more than 400 blogs over the past five years, with a proprietary technique to get her postings on the top of search engines where they get the most notice.

"What could be more mainstream than the Internet and the top of the search engine?" she said.

The plaintiff suing the blogger for defamation was a lawyer:

Padrick said the case showed how vulnerable anyone was to someone with a computer. He said he has lost business from potential clients who search his name and firm through Google and find Cox's postings at the top of the list, adding that he has no way to remove them.

It was not clear from the AP story how critical the "blogger not journalist" determination was to the final outcome: He [the judge] added that the shield law does not apply to civil actions for defamation.

On the demise of Range Fuels

A post at GreenTechMedia titled Range Fuels Officially Dead: Another DOE Loan Bites Dust on the demise of Range Fuels drew two interesting comments:

#1. As to the "DOE loan" aspect, one person observed: The author is mixing facts here. The DOE only made a GRANT to Range Fuels, not a loan guarantee like the USDA did. This is an important distinction. And when this project did come to the loan guarantee group at the DOE, it was turned down because their technology did not appear to work, as is now evident.

IPBiz notes that the use of the word "only" may be questioned. As Biofuels Digest noted:

How much assistance did Range Fuels receive?

In total, the project received more than $160 million in investor financing, plus $162.25 million in government commitments. On the government tab, a $76 million DOE grant in 2007, the aforementioned loan guarantee, and a $6.25 state grant. Overall, the DOE released $43.6 million of the project funds, before suspending payments earlier this year and terminating its agreement with Range in August.

The loan guarantee of $64 million WAS LESS than the grant of $76 million.

#2. As to intellectual property/patents, another person stated: People (including Rapier c. 2006) have been saying their patents vs. public statements didn’t add up since they were called Kergy

The first patent issued to assignee Range Fuels is US 7,884,253

The abstract states: The invention provides methods and apparatus for selectively producing ethanol from syngas. As disclosed herein, syngas derived from cellulosic biomass (or other sources) can be catalytically converted into methanol, which in turn can be catalytically converted into acetic acid or acetates. Finally, the acetic acid or acetates can be reduced to ethanol according to several variations. In some embodiments, yields of ethanol from biomass can exceed 100 gallons per dry ton of biomass.

The patent issued February 8, 2011, with February 2011 being the month that Range Fuels announced closure of its plant in Georgia.

The GreenTechMedia post included the following text:

In the end, it's easy to slam both the DOE and USDA for continuing to prop up a company that consistently didn't perform as advertised.

In a post by Dana Blankenhorn on February 16, 2011 titled Government Loses Bet on Range Fuels , one has discussion of the closure of Range's Georgia plant and of the previous glowing reports:

Earlier this month, Range Fuels said it was closing its commercial facility and laying off an undisclosed number of employees.

The company raised an estimated $320 million over three years. Some came from investors, some from the federal government, some came from state and local governments around Soperton, Georgia, where the company made big claims for its coming plant. Biofuels Digest called Range the 14th hottest company in the space less than two years ago.

AND

All along the way, of course, these failures are also backed by glowing media reports, everyone from Scientific-American to Discover Magazine to Money.

As to the glowing media reports, note two previous posts on IPBiz:


Technology Review speaks of 20,000 gal/(acre year) biofuel production


MIT Tech Rev on Khosla and biofuels

Gevo obtains US patent no. 8,071,358

A press release from Gevo on Dec. 6, 2011 states:

Gevo was awarded U.S. Patent No. 8,017,358, covering additional "Methods of Increasing Dihydroxy Acid Dehydratase (DHAD) Activity to Improve Production of Fuels, Chemicals, and Amino Acids."

U.S. Patent 8,017,358, named assignee Ibis, is titled Method for rapid detection and identification of bioagents and issued on September 13, 2011.


U.S. Patent 8,071,358, named assignee Gevo, is titled Methods of increasing dihydroxy acid dehydratase activity to improve production of fuels, chemicals, and amino acids and issued on December 6, 2011. The first claim of Gevo's patent states:

A recombinant yeast microorganism comprising a recombinantly overexpressed polynucleotide encoding a dihydroxy acid dehydratase (DHAD), wherein said recombinant yeast microorganism is engineered such that said recombinant yeast microorganism expresses at least one polynucleotide encoding a mutant activator of ferrous transport (Aft) protein which increases the dehydratase activity of DHAD, wherein said mutant Aft protein is constitutively active.

Within the specification:

The term "operon" refers to two or more genes which are transcribed as a single transcriptional unit from a common promoter. In some embodiments, the genes comprising the operon are contiguous genes. It is understood that transcription of an entire operon can be modified (i.e., increased, decreased, or eliminated) by modifying the common promoter. Alternatively, any gene or combination of genes in an operon can be modified to alter the function or activity of the encoded polypeptide. The modification can result in an increase in the activity of the encoded polypeptide. Further, the modification can impart new activities on the encoded polypeptide. Exemplary new activities include the use of alternative substrates and/or the ability to function in alternative environmental conditions.

AND

In addition, a skilled person in the art, equipped with this disclosure, will recognize that the amount of AFT2 overexpressed may vary from one yeast to the next. For example, the optimal level of overexpression may be one, two, three, four or more copies in a given yeast. Moreover, the expression level may be tuned by using a promoter that achieves the optimal expression level in a given yeast.

**Note of US '358:

This invention was made with government support under, Contract No. IIP-0823122, awarded by the National Science Foundation, and under Contract No. EP-D-09-023, awarded by the Environmental Protection Agency. The government has certain rights in the invention.

AND

This application is a divisional of U.S. application Ser. No. 12/953,884, filed Nov. 24, 2010, which claims the benefit of U.S. Provisional Application Ser. No. 61/263,952, filed Nov. 24, 2009, and U.S. Provisional Application Ser. No. 61/350,209, filed Jun. 1, 2010.

Cross-reference: US 8,017,376, issued September 13, 2011 (as was the Ibis patent, above).

**Energy and Biofuels Review repeated the error in patent number:

Gevo has received a patent from the US Patent and Trademark Office (USPTO) on another aspect of its yeast technology.

Gevo's yeast technology that enables the low-cost, high-yield production of biobased isobutanol.

Gevo was awarded US Patent No 8,017,358, covering additional Methods of Increasing Dihydroxy Acid Dehydratase Activity to Improve Production of Fuels, Chemicals, and Amino Acids.

Gevo EVP & General Counsel Brett Lund said this invention further details and protects the innovations contained in the Gevo yeast organism to turn an industrial yeast strain into a highly efficient cell factory to produce isobutanol.