Friday, September 30, 2011

Julie Newmar - inventor

Julie Newmar, mentioned in the title of To Wong Foo Thanks for Everything, Julie Newmar , is an inventor:
3,914,799 and 4,003,094 for "Pantyhose with shaping band for Cheeky derriere relief" and 3,935,865 for "Brassiere."

Lemley on new patent law: a big deal to patent lawyers, but it doesn't change the fundamental economics of the patent system

from io9:

"If I were a hypothetical future A.I., I wouldn't be worried," says Mark A. Lemley, a partner at Durie Tangri who's also the William H. Neukom Professor at Stanford Law School and director of the Stanford Program in Law, Science, and Technology. "The new patent act makes a bunch of changes to the patent law that will be a big deal to patent lawyers, but it doesn't change the fundamental economics of the patent system."

Thursday, September 29, 2011

Kimberly-Clark: CAFC loses an opportunity to address law of preliminary injunctions

Judge Newman in dissent from the denial of the petition for re-hearing in Kimberly-Clark v. First Quality:

I respectfully dissent from the denial of Kimberly- Clark’s petition for rehearing en banc. The panel’s view of the law governing preliminary injunctions warrants correc- tion, for it is in conflict with the law of the Supreme Court, in conflict with the law of all of the regional circuits, and in conflict with controlling Federal Circuit precedent. Recent aberrations, including this case, have imparted uncertainty and brought further conflict to our own precedent. To reestablish reliable law this issue should be taken en banc, and a consistent position taken on which the district courts and the concerned public can rely.
The matter is not trivial, for it affects whether a pre- liminary injunction is available in a patent case. There is a large difference between whether the movant is likely to prevail after trial of the merits, and whether the nonmovant has proffered a pre-trial defense that “does not lack sub- stantial merit.”1 In deciding whether the patent right should be preserved pendente lite, the question of whether to grant a preliminary injunction includes consideration of the equities and relative harms, not simply whether the ac- cused infringer has offered a colorable basis for avoiding summary judgment.


Past issues are mentioned:

Precedent’s concern for equity places the panel’s ruling in sharp relief. No other circuit denies a preliminary in- junction merely because the nonmovant has raised an argument worthy of consideration. This is not the first case in which this court has departed from the correct standard, or even from recitation of the correct standard. In Ama- zon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1350 (Fed. Cir. 2001), the court stated that if the alleged infringer “raises a substantial question concerning either infringement or validity, i.e., asserts an infringement or invalidity defense that the patentee cannot prove ‘lacks substantial merit,’ the preliminary injunction should not issue,” quoting a portion of Genentech, Inc. v. Novo Nordisk, A/S, 108 F.3d 1361, 1364 (Fed. Cir. 1997), where the court interpreted precedent as meaning that “if Novo raises a ‘substantial question’ concerning validity, enforceability, or infringement (i.e., asserts a defense that Genentech cannot show ‘lacks substantial merit’) the preliminary injunction should not issue.” The panel herein, with or without its “errata,” adopts this “should not issue” posture without appreciation of the context in which it arose, or of the fac- tual and equitable situations in those cases that cited it. However, a defense that does not “lack substantial merit” is of a different order than a defense that is likely to succeed by clear and convincing evidence.
This court’s departure from the universal standard con- flicts with the Court’s admonition in eBay Inc, v. MercEx- change, L.L.C., 547 U.S. 388, 391 (2006), where in discussing the traditional principles for grant of a perma- nent injunction, the Court held that “these familiar princi- ples apply with equal force to disputes arising under the Patent Act.” See Titan Tire Corp. v. Case New Holland, Inc., 566 F.3d 1372, 1379 (Fed. Cir. 2009) (“The Supreme Court has stated that the general rules applicable to injunc- tions in civil actions apply equally to injunctions in patent cases; there is no room for making the substantial question test a substitute or replacement for the established test for injunctions.” (citing eBay, 547 U.S. at 394)).


And, of non-precedential:

The panel designated this opinion as “non- precedential.” This designation does not relieve the court of its responsibility to provide correct rulings in the case before it. Nor are “non-precedential” rulings insulated from further review; e.g., Teleflex, Inc. v. KSR Int’l Co., 119 Fed. Appx. 282 (Fed. Cir. 2005), reversed, 550 U.S. 398 (2007); A.C. Aukerman Co. v. R.L. Chaides Const., Co., 1991 WL 62407 (Fed. Cir. 1991), vacated, 960 F.2d 1020 (Fed. Cir. 1992) (en banc).

Trenton goes bizarre

As detailed in the story Mayor Tony Mack barricades himself to avoid talking with police director , the situation in Trenton, New Jersey has become bizarre.

One recalls that during the presidency of Andrew Johnson, Secretary of War Stanton barricaded himself in his office. Stanton at least had been one of the nation's most prominent attorneys, and had even done patent cases.

Bob Dylan: copyist?

Wednesday, September 28, 2011

Cordis v. Boston Scientific

Cordis lost its appeal at the CAFC.

Footnote 4 refers to the stent wars: Returning to this court for a second time, this case is but one installment—albeit, at nearly fourteen years, perhaps the longest—in an ongoing and epically expen- sive litigation saga known as the “Stent Wars.” E.g., Barnaby J. Federer, Keeping Arteries Cleared and the Courts Clogged, N.Y. TIMES, Oct. 4, 2007, at C1; see also Spectralytics, Inc. v. Cordis Corp., --- F.3d ---, 2011 WL 2307402 (Fed. Cir. June 13, 2011); Boston Scientific Corp. v. Johnson & Johnson, 647 F.3d 1353 (Fed. Cir. 2011); Cordis Corp. v. Boston Scientific Corp., 561 F.3d 1319 (Fed. Cir. 2009); Boston Scientific Scimed, Inc. v. Cordis Corp., 554 F.3d 982 (Fed. Cir. 2009); Cordis Corp. v. Medtronic AVE, Inc., 511 F.3d 1157 (Fed. Cir. 2008); Advanced Cardiovascular Sys., Inc. v. Medtronic Vascu- lar, Inc., 182 F. App’x. 994 (Fed. Cir. 2006); Cordis Corp. v. Boston Scientific Corp., 99 F. App’x. 928 (Fed. Cir. 2004); Scimed Life Sys., Inc. v. Johnson & Johnson, 87 F. App’x. 729 (Fed. Cir. 2004);

As one point:

Cordis correctly notes that a party prevailing on an issue of claim construction cannot argue for a differing claim construction following an adverse jury verdict. E.g., Hewlett-Packard Co. v. Mustek Systems, Inc., 340 F.3d 1314, 1320 (Fed. Cir. 2003) (citing Interactive Gift Ex- press, Inc. v. Compuserve, Inc., 256 F.3d 1323, 1345-46 (Fed. Cir. 2001)). The question here is whether BSC did, in fact, seek to alter the district court’s claim construction. No rule of law restricted BSC from seeking to clarify or defend the original scope of its claim construction. Inter- active Gift Express, 256 F.3d at 1346. Similarly, nothing prevented the district court from clarifying its previous construction of the term “undulating.” See Network Commerce, Inc. v. Microsoft Corp., 422 F.3d 1353, 1358 n.4 (Fed. Cir. 2005). But because BSC did not object to the court’s jury instruction regarding the construction of the term “undulating,” “[t]he verdict must be tested by the charge actually given [under] the ordinary meaning of the language of the jury instruction,” Hewlett-Packard, 340 F.3d at 1321.

Of intrinsic evidence:

Claim terms must be construed in light of all of the intrinsic evidence, which includes not only the claim language and patent written description, but also the prosecution history. ERBE Elektromedizin GmbH v. Canady Tech. LLC, 629 F.3d 1279, 1284-85 (Fed. Cir. 2010).

Therasense is cited:

In Therasense, Inc. v. Becton, Dickinson & Co., we made clear that a finding of inequitable conduct requires specific intent to deceive, and “to meet the clear and convincing evidence standard, the specific intent to de- ceive must be ‘the single most reasonable inference able to be drawn from the evidence.’” 2011 WL 2028255, at *10 (quoting Star Scientific, Inc. v. R.J. Reynolds Tobacco Co., 537 F.3d 1357, 1366 (Fed. Cir. 2008)). In light of this standard, we cannot agree that the district court’s sup- plemental findings were clearly erroneous or that its ultimate determination on inequitable conduct was an abuse of discretion.

Footnote 6:

This appears to be a case where BSC proved the threshold level of intent to deceive, but that proof was rebutted by Robert Fischell’s good faith explanation. See Therasense, 2011 WL 2028255, at *10 (quoting Star Scientific, 537 F.3d at 1368). BSC’s argument therefore hinges, as it did below, on Robert Fischell’s credibility. Reviewing the record, we agree that there is substantial evidence calling into question Robert Fischell’s veracity. But it was the province of the district court to determine credibility, and “[t]his court gives great deference to the district court’s decisions regarding credibility of wit- nesses.” Ecolochem, Inc. v. S. Cal. Edison Co., 227 F.3d 1361, 1378-79 (Fed. Cir. 2000); see also Anderson v. Bessemer City, 470 U.S. 564, 575 (“[O]nly the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.”).

"60 Minutes" on October 2, 2011: Andy Rooney's last regular appearance

Rooney, born Jan. 14, 1919, will make his last regular appearance on CBS' "60 Minutes" on Oct. 2, 2011, which will represent his 1097th original essay on the show.


See also
http://www.mediabistro.com/tvnewser/andy-rooney-to-end-regular-60-minutes-appearances_b89348

**Top 10 reasons Andy Rooney is Retiring on Dave Letterman on 28 Sept 2011

No. 10: needs break from grueling 3 minute per week schedule

No. 2: Leno wanted the job

No. 1: always promised he would quit 20 years after he ran out of things to say

Tuesday, September 27, 2011

Basilone Day in Raritan on 25 Sept 2011



Wreaths at Basilone Day in Raritan Boro, New Jersey on Sunday, September 25, 2011.




John Basilone's last surviving sibling presenting wreath.

Quantico Marine Band at RVCC on September 24, 2011.

video

NJ fugitive caught after 40 years

George Wright, who murdered World War II Bronze Star recipient Walter Paterson at an Esso station in Farmingdale (Monmouth County) NJ in 1962, was apprehended in Lisbon, Portugal in 2011. Wright escaped from a Leesburg, N.J. prison in 1970.

Craziness at the University of Virginia?

The University of Virginia, associated with the Alison Routman incident for "plagiarism" at Semester at Sea, apparently has another plagiarism tempest. See McKenzie drops four UJC charges

ACC school UNC just finished the McAdoo plagiarism matter.

Back to buckyballs

A post at bnet titled How One Company Taxes Women Who Are Bad at Science and Math contains the text:

But the settlement also allows IntelliGender to stay in business simply because it has changed its web site a little bit. It is no longer claiming that the IntelliGender team includes Nobel Prize winning chemist Sean O’Brien, because O’Brien didn’t win the Nobel prize. He was a grad student on the Nobel team of Richard Smalley, who did actually win a Nobel for discovering the “buckyball” form of carbon.

Richard Smalley, now deceased, did win a Nobel Prize in chemistry. Smalley, with Sir Harry Kroto, published in 1985 that C60, discovered in 1984, had the structure of a truncated icosahedron, which carbon molecule they termed buckminsterfullerene, or buckyball for short. They understood the structure, but they did not discover the material.

September 27: anniversary of 1964 declaration that Oswald acted alone

A New York Times blogpost begins:

On Sept. 27, 1964, the Warren Commission released its 888-page report on the assassination of President John F. Kennedy.

There is text:

Three of the seven members of the commission did not support the single-bullet theory, though their objections weren’t noted in the report. The commission, The Times reported, was “unanimous on … all questions.”

Four years and 1 day earlier, 70 million U.S. viewers tuned in to watch Senator John Kennedy of Massachusetts and Vice President Richard Nixon in the first-ever televised presidential debate. Most of those who heard the first debate on the radio pronounced Nixon the winner, but this was not the case as to television.


In passing:

http://icanhasrandomness.blogspot.com/2011/09/top-10-huge-movie-mistakes.html

http://www.mgid.com/pnews/1047939/i/1829/0/r/

http://mgid.com/mg2924.html

Use of term with a highly successful product does not mean the term has acquired distinctiveness

Apple lost at the TTAB on application serial no. 77219819 to Multi-Touch.

The TTAB cited In re Bongrain, 894 F.2d 1316 (CAFC 1990) and Yamaha, 840 F.2d 1572. Even Boston Beer arose: 198 F.3d 1370.

Monday, September 26, 2011

Edison again

A post from the Rochester Democrat and Chronicle begins:

President Barack Obama recently signed sweeping patent reform legislation aimed at encouraging innovation and streamlining the patent application process. In signing the measure, Obama noted that when Thomas Edison filed his patent application for the phonograph, the approval process took just seven weeks.

link: http://www.democratandchronicle.com/article/20110926/BUSINESS0110/109260329/
Library-can-help-individual-inventors-Patents?odyssey=tab%7Cmostpopular%7Ctext%7CBUSINESS]

BUT

Of the phonograph, the application for 200521 was filed December 24, 1877 and the patent issued February 19, 1878. It isn't just the elapsed time; the application was filed during the Christmas holidays.

This was indeed faster than for the light bulb improvement, on which Edison continued to improve this design and by November 4, 1879, filed for U.S. patent 223,898 (granted on January 27, 1880). This patent does NOT mention bamboo.

link:

http://en.wikipedia.org/wiki/Thomas_Edison

SPREAD SPECTRUM v. EASTMAN KODAK: CAFC dismisses for lack of jurisdiction

The beginning of the case:

In this patent case, Spread Spectrum Screening LLC (“S3”) filed suit in the Northern District of Illinois against Eastman Kodak Company (“Kodak”) and four of Kodak’s customers – Continental Web Press, Inc., Graphic Part- ners, Inc., Genesis Press, Inc., and Johns-Byrne Company (collectively, “the Kodak Customers”) – alleging infringe- ment of U.S. Patent No. 5,689,623 (“the ’623 Patent”). On September 1, 2010, the district court granted Kodak’s motion to: (1) sever the claims against it from those against the other defendants; (2) stay the action against the Kodak Customers in Illinois; and (3) transfer the case against Kodak to the Western District of New York. S3 appeals only from the portion of the order granting Ko- dak’s motion to stay the case against the Kodak Custom- ers pending the outcome of its action against Kodak in New York. Spread Spectrum Screening, LLC v. Eastman Kodak Co., No. 10 C 1101, 2010 U.S. Dist. LEXIS 90549 (N.D. Ill. Sept. 1, 2010) (“District Court Opinion”). Because this appeal is not from a final judgment within the meaning of 28 U.S.C. § 1295(a)(1), and does not otherwise qualify as an appealable order, we dismiss for lack of jurisdiction.

Of details:

Generally, a stay is not considered a final appealable order. A stay order is appealable, however, if it puts the plaintiff “effectively out of court.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 (1983). In Moses Cone, the Supreme Court held that an order stay- ing litigation in federal court pending resolution of a case in state court that would have res judicata effect on the federal action put the plaintiff “effectively out of court.” Id. (noting that the stay order “amounts to a dismissal of the suit”).

This court similarly has held that a stay may be an appealable order “when it effectively puts the parties out of the district court, either permanently because it termi- nates the action as a practical matter, or, as some courts have held, for a protracted or indefinite period.” Gould v. Control Laser Corp., 705 F.2d 1340, 1341 (Fed. Cir. 1983) (citation omitted). In Gould, the district court granted a stay pending reexamination. Id. On appeal, we found that the stay was “not for such a protracted or indefinite period as to render its issuance an abuse of discretion” and that it did not terminate the action but “merely shifted to the PTO an issue (patent claim validity) in- volved in the dispute before the district court.” Id. at 1341-42.



link:
http://www.cafc.uscourts.gov/images/stories/opinions-orders/11-1019.pdf

CAFC finds intervening rights in MARINE POLYMER v. HEMCON

The beginning of the decision notes:

We conclude that HemCon has absolute intervening rights with respect to products manufactured before the date of reissue. We remand for a determination of whether HemCon has equitable intervening rights with respect to products manufactured after the date of reissue. As a result, we vacate the injunction and damages award.

There was a different claim construction between the USPTO in re-exam and a district court:

In response, Marine Polymer argued to the PTO that “the [district court’s] interpretation of the term ‘biocompatible’ should be adopted in this reexamination” (i.e., that “biocompatible” should be construed to mean “no detectable biological reactivity”). J.A. 37690. Marine Polymer also cancelled the six original dependent claims that had specifically required an elution test score of one or two (i.e., that explicitly required at least some reactivity). See J.A. 37683. The examiner then approved the claims as amended, noting that “[w]ith the cancellation of the claims which required . . . elution test scores [of] 1 or 2, [he] now agree[d] with the [district] court’s definition of the term biocompatible.” J.A. 39481.

As to timing:

The PTO did not issue its notice of intent to issue the reexamination certificate for the ’245 Patent until No- vember 3, 2010, which was after the district court had entered its final judgment on September 22, 2010.

An interesting legal issue:

HemCon argues that the district court’s finding of in fringement should be reversed because Marine Polymer changed the scope of the ’245 Patent’s claims on reexamination and, therefore, HemCon is entitled to intervening rights. While this issue arose after the district court judgment, Marine Polymer does not contend that we are barred on this appeal from considering the issue, and we conclude that we have the discretion on appeal to consider events as to which judicial notice is appropriate that arise after a judgment.

AND

Under the statute, there are two types of intervening rights: (1) absolute intervening rights, which bar claims for infringement based on specific products that were manufactured before the reissue or reex- amination; and (2) equitable intervening rights, which bar claims for infringement for new products and newly manufactured versions of prior existing products made after the reissue or reexamination. See 35 U.S.C. §§ 252, 307. We think it appropriate to decide the question of absolute intervening rights without remand because it is a pure question of law. However, we conclude that the district court should consider the question of equitable intervening rights in the first instance since fact ques- tions are involved. We consider first the issue of absolute intervening rights as a defense.

AND

Essentially, “the making of substantive changes in the claims [on reexamination] is treated as an irrebuttable presumption that the original claims were materially flawed.” Bloom Eng’g Co. v. N. Am. Mfg. Co., 129 F.3d 1247, 1249 (Fed. Cir. 1997). Therefore, if we conclude that the scope of asserted claims of the ’245 Patent was substantively changed on reexamination, HemCon is entitled to absolute intervening rights, and we must reverse the district court’s judgment of infringement.

A key point:

Marine Polymer argues that HemCon is not entitled to intervening rights for several reasons. First, it argues that the doctrine of intervening rights cannot apply here because the actual language of the asserted claims of the ’245 Patent was not amended on reexamination. However, as noted above, the critical question is “whether the scope of the claims” has been changed and “not merely whether different words are used.” Laitram Corp., 163 F.3d at 1346. Although we have not directly addressed whether arguments made to the PTO during reexamination can amend the scope of claims for purposes of the intervening rights doctrine, we have consistently held that arguments made to the PTO on reexamination can create an estoppel or disavowal and thereby change the scope of claims even when the language of the claims did not change.

In Cole v. Kimberly-Clark Corp., 102 F.3d 524, 532 (Fed. Cir. 1996), we held that a patentee surrendered any claim to disposable briefs for children with “ultrasonic bonded seams” when she made statements on reexamina- tion distinguishing her patent claiming disposable briefs from those disclosing bonded seams. Id.

Sunday, September 25, 2011

"60 Minutes" on September 25, 2011

The nation's largest counterterrorism force is described by NYC Police Commissioner Kelly. National Socialist Movement in Trenton, NJ. Trey Parker and Matt Stone on South Park discuss the play "Book of Mormon."

There are 137 heads of state in NYC this week. Ray Kelly, born in NYC 70 years ago, has a law degree and a masters degree from Harvard. There are 1000 officers that are part of the antiterrorism presence. Kelly started as NYPD cadet. There are 35,000 uniformed officers in the NYC police force. Kelly gave "60 Minutes" a look at NYC's counterterrorism bureau. People who have medical procedures with radioisotopes trigger the NYC radiation detectors. Jessica Tisch monitors the department analyzing electronic cameras. The police force has officers speaking 60 different languages. The NYPD cricket league was developed to cater to Pakistani children. As to a message for terrorists, Kelly referenced Humphrey Bogart in the movie Casablanca.

The murder of Jeff Hall in Riverside, CA by his son Joseph. Shortly before his death, Hall was in front of the New Jersey Capitol in Trenton, NJ. Joann Patterson was Hall's mother. On Saturday, April 30, Hall held his last Nazi get-together. At 4:02 am, there was an emergency call. Son Joseph used a .357 magnum. There are only 9 cases of a ten year killing a parent since 1980. Why did Jeff Hall become a Nazi? The economy. Jeff tried and tried to get work. Hall met Jeff Scoggin, a Nazi leader. He asserted the Nazis were a white civil rights organization. Megan Hall was Jeff's sister.

Parker and Stone previously did "Blame Canada." "The Book of Mormon" is sold out for the next five months. Parker and Stone met at a film class at the University of Colorado. They raised money for a musical Cannibal about Packer. "Spirit of Christmas" was a five minute cartoon that featured conflict between Jesus and Santa Claus. They got a contract for six episodes on Comedy Central. South Park is a real place. If Archie Bunker was 8 years old, I bet you could do it. The show has lawyers which vet material. They discussed a Tom Cruise episode. Their only target audience is each other. If something makes them both laugh, it's in the show. Matt Stone is more ruthless as to satire.

CBS Sunday Morning on September 25, 2011

Charles Osgood introduced the stories for September 25, 2011. The first Sunday morning of fall, marking the beginning of a new (tv) season. "In the pursuit of pleasure" is the cover story by Susan Spencer. Life's little pleasures. Second up, Rita Braver on the real Rin Tin Tin. The dog goes back to Warner Brothers and silent films, then known as "the mortgage lifter." Mo Rocca is on Roseanne Barr and macademia nuts, on a nut farm in Hawaii. Then, Bill Geist on "father of the bride." Spencer Tracy and Steve Martin. Wallet open; mouth closed. Then, Anthony Mason on suit shopping.

Headlines for Sept. 25. Herman Cain, the surprise winner in FL straw poll. Putin nominated to be president in Russia. The two Americans released from Iran, are now in New York. Amanda Knox trial. Diana Nyad back in water, FL to Cuba. Treated for jellyfish stings. Weather: east coast to be blanketed by rain.

Osgood: We all partake in the pursuit of pleasure. Susan Spencer started with a sunset, then went to a dessert, and a weekend in Paris. Pleasure is an instantaneous feeling. An Emory prof noted sleep is always on the list of pleasures. Paul Bloom's book: How Pleasure Works. An experiment on wine drinkers done by Stanford and Caltech. Humans are tricked by price; dogs are not. Humans get pleasure by spending enormous sums. Michael Jackson, 1.8 million. Clapton's guitar: almost 1 million. Query: how much for George Clooney's sweater? The value: if thoroughly washed, clothing articles of celebrities lose value. Magnolia Bakery in New York City. Weird pleasures. Stinking cheese. Paul Rozen. Hot chile peppers. Amazing negative experience. Benign masochism. Why we enjoy horror movies, sad songs (Orbison's Crying). Mastery of negative experience gives pleasure. Push the limit of how hot the pepper is. Push your pleasure to your own limit. Gregory Burns of Emory. Alternating water and juice. Subjects liked the juice, even more when unexpected. The first experience is the best. Treasure those pleasures AND there's always room for something new.

Almanac. Sept 15, 1513. Vasco Nunez de Balboa saw the Pacific and called the Pacific "the South Sea." Magellan called it the Pacific. 60 million square miles. Home to Mariana Trench. "Tales of the South Pacific" which inspired Rogers and Hammerstein's "South Pacific." [Query: did Marco Polo see the Pacific first?] In 2009, George Bush designated national monuments in the Pacific.

It's the new season on Sunday Morning. Bill Flanagan of MTV. When Superman and Batman teamed up in the old days, Flanagan was excited. Now lots of teaming up. Wynton Marsalis and Eric Clapton teaming up. Kanye West and Jay-Z. Lulu: Lou Reed and Metallica. Mick Jagger in Super Heavy (Dave Stewart, Josh Stone, etc.) Musicians who are not pretending to be Keith Richards. Lost Notebooks of Hank Williams. Merle Haggard, etc. Carrie Underwood and Tony Bennett. And Lady Gaga, And Amy Winehouse. Album release schedule is like Noah's Arc, coming out two-by-two. Superman Rebooted. DC Comics is re-launching 52 titles. New outfits. Reverse aging. Clark Kent will be more brooding. Batwoman coming out as a lesbian. DC Comics are being made available online. Piece ended with the Joker.

Custom made suits, by Anthony Mason. London Street, Saville Row. Michael Caine in the Italian Job. Michael Jackson. Chittleborough and Morgan. Bespoke. Custom made garments to the specification of the customer. Henry Poole and Company set up in 1840's. 3000 pounds (5000 dollars) for a suit. Who's buying them? Proprietors won't discuss customers until they are dead. Charles Dickens, Buffalo Bill Cody, King Edward VII. Winston Churchill ordered until 1929. Royal warrants to make uniforms. These are made the way they were 130 years ago. Eaves and Hawkes at 1 Saville Road. The naval uniforms of Prince Charles are made here. Armani called Saville Row a bad British comedy, lost in the past. Pierce Brosnan. Richard James. Angus Cundy at Poole re-introduced the Churchill suit fabric. Americans account for 40% of Poole's business.

The new season in art, by Fast Draw. Chevy lowrider, Pacific Standard Time exhibit, in Los Angeles. In Bentonville, Crystal Bridges Museum of Art, opens Nov. 11. Asian Art Museum in San Francisco. The Philadelphia Museum of Art: Rembrandt.
Brooks Museum in Memphis: 1000 years of weapon making. Armed and dangerous. Richmond: museum of Edgar Allan Poe.
Vincent van Gogh only sold one painting during his lifetime.

The Rin Tin Tin piece started with an image of a puppy. 12th generation Rin Tin Tin. New York Stock Exchange Bell. Yo, Rinty.
Susan Orlean book on the legend of Rin Tin Tin. Something innocently heroic. The first Rin Tin Tin appeared in the 1920's in silent movies. Kevin Halloran at museum in Riverside, CA. Film: Finding Rin Tin Tin. Popular French folklore character. Lee Duncan. Where the North Begins by Warner Brothers. Rin Tin Tin, noble dog raised by wolves. The dog who saved Warner Brothers. The mortgage lifter. Nanette was his "wife." Talkies eliminated Rin Tin Tin. Dogs don't talk. But, The Lone Defender.
The original dog died in 1932. "Junior" became the heir. Rin Tin Tin the third enlisted in the army. Dogs for war. The army needed something to cause people to donate dogs. In 1954, the tv series. Competition with Lassie. In 1960, Lee Duncan died.
Original Rin Tin Tin re-buried in Paris.

New season in movies. Moneyball. 50/50 on surviving cancer. Take Shelter (Michael Shannon). The Ides of March. Three re-makes: Footloose, The Thing, and The Three Musketeers. Anonymous (Shakespeare). In Time. Like Crazy.
There have been 27 movie sequels in 2011.

Next Roseanne, Sunday Morning Profile by Mo Rocca. 23 years since beginning on network tv. Today, she's 58, living on a farm in Hawaii. Honey. 46 acre macademia nut farm, featured on reality tv show. Wild boars. Goats. Black sheep named Roseanne Barr. Study in El Segundo, CA. I am enjoying my life post-menopause. Tyranny of biology. Disastrous rendition of national anthem at Padres game in 1990. The uterus as a tracking device. Girl version of Jackie Gleason. The struggles of a working class family. The themes of the tv show are even more relevant today. Born Jewish in Salt Lake City. Fascinating Womanhood. The Domestic Goddess. Don't roar at jokes. Roseanne re-defined the domestic goddess. Volcano goddess. National anthem debacle was worst thing that happened to her. She recently did anthem for softball game. Facing the biggest mistake you ever made and doing a re-do. The reality show known as Roseanne's life keeps on going.
Trivia --> Shortest lived tv series: ABC's "Turn On" in 1969, which did not air on the West Coast for episode 1.

Bidding on contents of storage lockers. A&E's "Storage Wars." In comparison, Storage Hunters. AND Auction Hunters. Men bid hundreds of dollars for rooms of junk. Severed head as in Silence of the Lambs. Turning trash into treasure. You don't see on tv: the people who couldn't pay the storage fees. The locker contained someone's life. Other show: Hoarders.

Pulse: Summer provides 45% of fondest memories of all seasons for polled people

Bill Geist on "father of the bride." Libby. Father/daughter dance. Wedding reception in Geist's backyard. Thousands of decisions to be made in planning a wedding and the father of the bride makes none of them. Wallet open/mouth shut. Labelling the rest room. Bride and bridesmaids being beautified. On the verge of tears all day. You think back on all the times you shared, and you can't get them back. Libby's dog Barclay led the procession. The groom Kevin (Willes). Reception began at the beach,with fotos and celebration.

Bob Schieffer marks 20 years at Face the Nation.

Next week on Sunday Morning: America's time with prohibition.

Sunday Morning Moment of Nature: Sunrise over old Cape Cod. (No mention of a sponsor, like Spiriva, etc.!)

Closing music from Marsalis/Clapton.

Saturday, September 24, 2011

-- "trivial and obvious 'inventions'" are overwhelming the patent system--

from californiastemcellreport, on Andy Grove's -- "key to progress or bridge to nowhere?" --:

Grove's message is not new. In a Forbes magazine article in 2008, Kerry Dolan reported that in a speech at a neuroscience conference,

"Grove roundly criticized research funding at the National Institutes of Health, the unwillingness of researchers to share data and the lack of urgency in translating basic science into treatments that can help people. 'What is needed is a cultural revolution that values curiosity, follow-through and a problem-solving orientation and also puts the data being generated in full view, scrutinizable by all.'"
Heretical is what some might call his views, particularly regarding intellectual property. He says "trivial and obvious 'inventions'" are overwhelming the patent system. Overzealous pursuit of IP rights, which are ostensibly given out by the federal government for society's benefit, are keeping products off the market. The result is crippling innovation.

Law & Order on DSK

The allisonleotta blog covered Law & Order: SVU's season 13 premiere which was "ripped from the headlines" of the DSK case. Curiously, it didn't mention the reference within the TV show to "another DSK."

Linus Roache: "These cases are about perception, not reality." Later: "I don't see a win here." "The new DA wants to drop the charges." "If we press a case we can't win, we convince the next victim to remain silent."

The victim in the case had a conviction for prostitution in the Sudan. The rape shield law has an exception if the complainant has a conviction in the last three years.

In the TV show, the foreign politician goes to trial, but the difference is split.

The demise of Detective Stabler is a subtheme in the show.


cross-reference: Franco Nero

Friday, September 23, 2011

Cordance v. Amazon: No evidence for priority claim

The CAFC noted as to a disputed priority claim:

Cordance failed to prove that the ’710 Patent was entitled to claim priority to the 1993 conception document. To establish an earlier effective date, Cordance was required to prove prior conception. Conception “must be proven by evidence showing what the inventor has disclosed to others and what that disclosure means to one of ordinary skill in the art.” In re Jolley, 308 F.3d 1317, 1321 (Fed. Cir. 2002). Because of “a concern that inventors testifying in patent infringement cases would be tempted to remember facts favorable to their case by the lure of protecting their patent or defeating another’s patent” conception must be proven by corroborating evidence. Burroughs Wellcome Co. v. Barr Labs., Inc., 40 F.3d 1223, 1228 (Fed. Cir. 1994). Although Cordance attempts to characterize the district court’s error as relating to corroboration, the district court expressly found no corroboration problem. Instead, the district court found that Cordance failed to link any disclosure contained within the 1993 conception document to any limitations in the asserted claims of the ’710 Patent as construed by the district court.

AND

Cordance’s attempt to claim priority to the filing date of the ’205 Patent fails for a similar reason. Under 35 U.S.C. § 120, “a claim in a later application receives the benefit of the filing date of an earlier application so long as the disclosure in the earlier application meets the requirements of 35 U.S.C. § 112, ¶ 1, including the written description requirement, with respect to that claim.” Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1326 (Fed. Cir. 2008). Here, the ’710 Patent issued from the ’325 Patent, a continuation-in-part of the ’205 Patent. Thus, in order for the asserted claims of the ’710 Patent to receive the benefit of the filing date of the ’205 Patent, filed in February 1996, written description support for the asserted claims must be found in the ’205 Patent. Cordance failed to link any disclosure contained within the ’205 Patent to any limitation in the asserted claims of the ’710 Patent as construed by the district court. Furthermore, a review of the ’205 Patent specification shows that it does not support the claimed “automatically completing the purchase of the item . . . by processing said metadata” limitation. The district court did not err in granting Amazon’s JMOL that the effective date of the ’710 Patent is September 27, 1996.

On anticipation:

This court agrees with Amazon and concludes that claims 1, 3, 5, 7, and 8 of the ’710 Patent are anticipated by Amazon’s 1995 System as a matter of law.

AND

Finally, contrary to Cordance’s allegations, Amazon’s theory of invalidity was not akin to the “practicing the prior art” theory rejected by this court in Tate Access Floors, Inc. v. Interface Architectural Resources, Inc., 279 F.3d 1357 (Fed. Cir. 2002). A “practicing the prior art” defense typically refers to the situation where an accused infringer compares the accused infringing behavior to the prior art in an attempt to prove that its conduct is either noninfringing or the patent is invalid as anticipated because the accused conduct is simply “practicing the prior art.” In Tate, this court explained that accused infringers “are not free to flout the requirement of proving invalidity by clear and convincing evidence by asserting a ‘practicing the prior art’ defense to literal infringement under the less stringent preponderance of evidence standard.” Id. at 1367. Instead “[a]nticipation requires a showing that each element of the claim at issue, properly construed, is found in a single prior art reference. ‘It is the presence of the prior art and its relationship to the claim language that matters for invalidity.’” Zenith Electrs. Corp. v. PDI Commc’n Sys., Inc., 522 F.3d 1348, 1363 (Fed. Cir. 2008) (quoting Tate, 279 F.3d at 1367). Here, as explained above, Amazon’s experts explained how each of the claim elements is disclosed by Amazon’s 1995 System. Amazon adequately satisfied its burden to show by clear and convincing evidence that each limita- tion of claims 1, 3, 5, 7, and 8 was found in its 1995 Sys- tem and thus, these claims are invalid as anticipated.

Of procedural matters:

Although it is unclear why the district court did not grant Cordance’s Rule 50(b) motion on § 102(f) as to claims 2 and 9, the district court’s action is consistent with the fact that Cordance never filed a Rule 50(a) motion challenging the sufficiency of the evidence as to Amazon’s derivation defense. Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 398 n.1 (2006) (“A post-trial motion for judgment can be granted only on grounds advanced in the pre-verdict motion.” (citation omitted)).

Of jury verdicts:

When reviewing a general jury verdict, different rules apply depending upon whether the flaw is in the legal theory or the evidence. In Griffin v. United States, 502 U.S. 46 (1991), the Supreme Court explained, in the context of a criminal case, that “[j]urors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law.” Id. at 59. “When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error.” Id. A “legal error,” which requires overturning a general verdict, “means a mistake about the law, as opposed to a mistake concerning the weight or the factual import of the evidence.” Id. “Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence.” Id.. In that situation, a court should not negate a verdict “merely on the chance . . . that the jury convicted on a ground that was not supported by adequate evidence when there existed alternative grounds for which the evidence was sufficient.” Id. at 59-60 (quoting United States v. Townsend, 924 F.2d 1385, 1414 (7th Cir. 1991)).

Solyndra: then and now

The greenenergyreported stated in July 2010:

Solyndra, the Fremont, Calif., maker of cylindrical solar photovoltaic systems, has hired chip industry executive Brian Harrison as its new president and Chief Executive Officer (CEO). Task number one for Harrison will be cutting Solyndra’s production costs, something he’s got experience doing most recently as CEO of Numonyx, an Intel venture sold in 2008 to Boise, Idaho-based Micron Technology. Harrison replaces Solyndra’s founding CEO Chris Gronet, who stays on as Chairman.

Before Numonyx, Harrison cut his manufacturing teeth at Intel, overseeing the company’s global wafer manufacturing facilities. He also oversaw Intel’s sales and marketing for Europe, Middle East, and Africa.

In a prepared statement, outgoing CEO Chris Gronet said:

Brian's strong understanding of sophisticated manufacturing operations, history of achieving significant product and manufacturing cost reductions, and experience in building an international sales and marketing organization make him the right person to lead our growth.


Flash forward to 23 Sept 2011, from AP:

Top executives from a bankrupt California solar energy company have declined to testify before a congressional hearing investigating their half-billion dollar government loan.

Solyndra Inc. CEO Brian Harrison and the company's chief financial officer, Bill Stover, both invoked their Fifth Amendment right to decline to testify to avoid self-incrimination.

Harrison told the House Energy and Commerce Committee Friday: "On advice of counsel, I respectfully decline to answer any questions."

Stover did the same.


Harrison holds a bachelor's degree in chemical engineering from Stanford University.

link http://economics.wsj.com/participants#participants1

Mandamus action in IN RE SHARED MEMORY GRAPHICS LLC

The order concludes:

The petition is granted. The district court is directed to vacate its order disqualifying Cooper and the Floyd & Buss law firm from further representation in this case.

Judge Newman in dissent:

The issue is not simply whether Nintendo’s informa- tion may be used against itself during this litigation; the issue is the integrity of the system of legal representation in today’s world of mobile lawyers and large law firms with interacting clients. Thus the system of firewalls has been accepted for many situations. Here, however, it appears that Cooper in his new employment is associated with issues involving his former employer, and that his former employment was at the highest level in interaction with Nintendo’s legal and strategic interests. If there is doubt, it must be resolved in favor of the entity whose information is in jeopardy.


and

The majority of this panel, in considering this court’s mandamus authority in local disqualification matters, overlooks the most important: that even in the face of irreparable harm, the district court’s reasonable conclu- sion is within that court’s discretion. The Ninth Circuit, whose law we apply here, has made clear “that a district court has the prime responsibility for controlling the conduct of lawyers practicing before it, and that an order disqualifying counsel will not be disturbed if the record reveals ‘any sound’ basis for the district court’s action.” In re Coordinated PreTrial Proceedings in Petroleum Prod- ucts Antitrust Litigation, 658 F.2d 1355, 1358 (9th Cir. 1981) (citing Gas-A-Tron of Arizona v. Union Oil Co. of California, 534 F.2d 1322, 1325 (9th Cir. 1976)).
Our task is to ensure that the district court’s decision was not a “clear abuse of discretion or ‘usurpation of judicial power.’” Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382 (1953) (citation omitted). That standard cannot be met where, as here, there is plausible support for the district court’s ruling. See In re Cordis Corp., 769 F.2d 733, 737 (Fed. Cir. 1985) (noting that “if a rational and substantial legal argument can be made in support of the rule in question, the case is not appropriate for man- damus.”).

Wednesday, September 21, 2011

CAFC on BPAI in LEITHEM: "This conclusory analysis is hardly persuasive"

Within the discussion by the CAFC:

Mere reliance on the same statutory basis and the same prior art references, alone, is insufficient to avoid making a new ground of rejection when the Board relies on new facts and rationales not previously raised to the applicant by the examiner. See Kumar, 418 F.3d at 1367- 68. This court’s predecessor long acknowledged the right of the Board to make additional findings of fact based upon the Board’s own knowledge and experience to “fill in the gaps” that might exist in the examiner’s evidentiary showing. See, e.g., In re Ahlert, 424 F.2d 1088, 1091-92 (CCPA 1970); see also In re Moore, 444 F.2d 572, 574-75 (CCPA 1971). But the Board’s power to do so is construed narrowly and when reliance upon such facts changes the thrust of the rejection, the Board’s action “does everything but cry out for an opportunity to respond.” Moore, 444 F.2d at 575; see Ahlert, 424 F.2d at 1091. For example, in Kumar, although the rejection and asserted prior art relied upon by the Board were the same as those relied upon by the examiner, “the Board found facts not found by the examiner regarding the differences between the prior art and the claimed invention, which in fairness required an opportunity for response.” 418 F.3d at 1368; Ahlert, 424 F.2d at 1092 (“These aspects of judicial notice are . . . designed with the purpose in mind of fully utilizing the independent and specialized technical experience of the Patent Office examiners while balancing the appli- cant’s rights to fair notice and an opportunity to be heard.”). This also serves the interests of judicial efficiency. Rather than reviewing arguments directed to- wards ever-shifting rejections, this court is instead only presented with arguments concerning those rejections properly made by the examiner and, in due time, re- viewed by the Board. See 37 C.F.R. § 41.50(b) (“A new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.”).

AND

The subsequent proceedings further solidifies this court’s conclusion that the thrust of the Board’s rejection differed from that of the examiner’s rejection. When Leithem sought rehearing as to whether the Board relied upon a new ground of rejection, the Board shifted its characterization of its earlier rejection. On reconsidera- tion, the Board explained that the examiner viewed Novak as disclosing fluff pulp and, because the Board’s decision “referred to the pulp in the decision, not the wet- laid [paper],” the Board’s initial decision did so as well. Reconsideration at 4. This conclusory analysis is hardly persuasive when nothing in the Board’s initial decision describes the wet-laid paper of Novak as “fluffed”—the precise issue, in fact the only issue, appealed by Leithem.

The bottom line:

The Board cannot play it so fast and loose in affirming an examiner’s rejection that it disregards procedural safeguards afforded to the applicant.

Accordingly, while we express no opinion on the propriety of the Board’s rejection of claim 104, the case must be remanded to the Board to allow appellants a full opportunity to respond to the new rejection in the first instance. The Board’s decision to the contrary was “not in accordance with law,” 5 U.S.C. § 706, and is hereby vacated.


III. CONCLUSION

For the foregoing reasons, this court vacates the Board’s rejections of claim 104 and remands for appropri- ate further proceedings.

Hallingblog smacks down paper by Bessen

Summary judgment against farmer Bowman affirmed by CAFC in Monsanto v. Bowman

This is another case involving N-phosphonomethylglycine- (commonly known as “glyphosate”) based herbicides, such as Monsanto’s Roundup® product, brought by Monsanto against a farmer-customer.


The CAFC noted:

Thus, the doctrine of patent exhaustion did not bar the infringement claims in McFarling or Scruggs. Similarly, here, patent exhaustion does not bar an infringe- ment action. Even if Monsanto’s patent rights in the commodity seeds are exhausted, such a conclusion would be of no consequence because once a grower, like Bowman, plants the commodity seeds containing Monsanto’s Roundup Ready® technology and the next generation of seed develops, the grower has created a newly infringing article. See, e.g., ’247E Patent, col.164 ll.15-29. “The fact that a patented technology can replicate itself does not give a purchaser the right to use replicated copies of the technology. Applying the first sale doctrine to subsequent generations of self-replicating technology would eviscerate the rights of the patent holder.” Scruggs, 459 F.3d at 1336. The right to use “do[es] not include the right to construct an essentially new article on the template of the original, for the right to make the article remains with the patentee.” Jazz Photo Corp. v. Int’l Trade Comm’n, 264 F.3d 1094, 1102 (Fed. Cir. 2001). The court disagrees with Bowman that a seed “substantially embodies” all later generation seeds, at least with respect to the com- modity seeds, because nothing in the record indicates that the “only reasonable and intended use” of commodity seeds is for replanting them to create new seeds. See Quanta, 553 U.S. at 631. Indeed, there are various uses for commodity seeds, including use as feed. While farm- ers, like Bowman, may have the right to use commodity seeds as feed, or for any other conceivable use, they cannot “replicate” Monsanto’s patented technology by planting it in the ground to create newly infringing genetic material, seeds, and plants. See, e.g., ’247E Patent, col.164 ll.15-29; col. 165 ll.18-20, 30-32, 45-48

Tuesday, September 20, 2011

German court upholds revocation of Ph.D. of Jan Hendrik Schon

After the University of Constanz revoked Schon's degree, Schön sued the university, and last year a court ruled in his favor. The university appealed, however, and last week the Administrative Court of Baden-Württemberg in Mannheim ruled that the university was within its rights to rescind the degree. The awarding of a doctorate is a confirmation of the recipient's ability to conduct independent scientific research, Judge Reinhard Schwan said in his oral explanation of the verdict last week. A Ph.D. brings with it the public perception of being a member of the scientific community and a presumed high level of trustworthiness, the judge said. When a recipient has violated basic principles of good scientific practice, the title is no longer applicable and should be corrected, he said. He also noted that Schön can still find work as a physicist without a Ph.D. title. Schön is reportedly employed as a process engineer for a company in Germany.

from sciencemag.org

Inventive gaming?

from games.yahoo:

Developed in 2008 by the University of Washington, [Foldit] is a fun-for-purpose video game in which gamers, divided into competing groups, compete to unfold chains of amino acids -- the building blocks of proteins -- using a set of online tools.
To the astonishment of the scientists, the gamers produced an accurate model of the enzyme in just three weeks.

Cracking the enzyme "provides new insights for the design of antiretroviral drugs," says the study, referring to the lifeline medication against the human immunodeficiency virus (HIV).

It is believed to be the first time that gamers have resolved a long-standing scientific problem.

Monday, September 19, 2011

A British look at US patent reform

The [British] patentsearchblog wrote of Smith-Leahy:

The text of the act, H.R. 1249, is hard going and the USPTO's America Invents Act: Effective Dates document is a useful listing of the key provisions as well as giving the dates the legislation becomes active.

Perhaps most of interest to those in the rest of the world is that the USA will, for patent applications published on or after the 16 March 2013, become a first-to-file country. This means that in case of conflict between patent applications for the same subject matter, it will be the earlier filing rather than invention date that is vital. The filing date could be in another country under the Paris Convention, where the applicant wanted US protection. Now all countries will use first-to-file, although Brad Pedersen and Justin Woo argue in some detail that it's not quite the same regime.


The blog did not mention "the dog ate my homework" provision.

The USPTO link is
http://www.uspto.gov/aia_implementation/aia-effective-dates.pdf

The link to Pedersen/Woo
http://web.wmitchell.edu/cybaris/wp-content/uploads/2010/05/01.Pedersen.05-12-10-vFINAL.WITHAPPENDIX.pdf

See also
http://www.pharmapatentsblog.com/patent-term-adjustment/new-us-first-to-file-provisions-are-not-that-simple/

New Jersey's Trenton as Dodge City?

About four years ago, in June 2007, IPBiz ran a post titled Life is tough on Mill Hill in Trenton . For those unfamiliar with Trenton, the Hughes Justice Complex housing the Appellate Division is just down the hill from Joe's Mill Hill Saloon, and the Mercer County Law Division is just two blocks from the Saloon.

On Friday, September 16, the Trenton Times ran a headline Man gunned down in Trenton's Mill Hill neighborhood in broad daylight about someone being shot in the head at 3pm on Thursday, September 15.

Trenton's other newspaper, the Trentonian, ran the following text:

"You should hear the police radio -- officers are screaming for help," the source told The Trentonian on Saturday night [17 Sept 2011].

Call after call came into The Trentonian on Sunday [18 Sept 11] with reports of shootings and armed robberies. A source corroborated the woman who called in the Beakes/MLK shooting, while also reporting the armed robbery at Brothers Discount on East State.

At The Trentonian’s Facebook page, a TPD cop wrote this: “Yeah I am a laid off cop who lives on the hundred block of Barnt. I am in the process of moving my family to Oregon. Thanks Mayor Mack for helping me decide to move and keep my tax dollars from this (expletive) of a city. My family has CONTINUALLY served in the police department since 1971.

“I had hopes that my boys would follow in my footsteps, not happening now. As far as the shooting, is anyone really shocked?

“I mean it’s like the doors were opened at the zoo when 104 of my colleagues and I were laid off. Good luck and Godspeed to all the residents who won’t and cannot leave.”


And on Sept. 20, from Trenton Times story Trenton man is critically wounded in city drive-by shooting:

- The victim of a drive-by shooting on the 100 block of Liberty Street in Trenton was listed in critical but stable condition last night after he was shot in the left lower back, police said.

The shooting happened shortly after 11:00 p.m. [Sept. 19], when police received multiple calls on reports of a man shot at 63 Liberty St., Sgt. Rolando Ramos said.

Re-invention at Wendy's

from an AP story on 19 Sept 11 :

For Wendy's Co., based in Dublin, Ohio, reinvention is critical. That's why executives at the 6,600-restaurant chain spent the past two and a half years going over burger minutiae during an undertaking they call Project Gold Hamburger. That included deciding whether to switch from white onions on its burgers to red (they did), to change the fat/lean ratio of the meat (they didn't), or to go with plain or crinkled pickles (they picked crinkled.)

Wendy's is trying to boost lackluster sales and fight growing competition from much bigger rival McDonald's on one end and expanding fast-casual chains like Five Guys on the other. Part of the problem is that Americans, who are being squeezed by the tight economy, are being pickier about how they spend their dining-out dollars. But the biggest issue is that Wendy's, which hadn't changed its burger since the chain began in 1969, let its food offerings get stale over the years while its competitors continued to update their menus.

Still, it can be risky to tweak an old and familiar product. In fact, the past is littered with examples of this, including New Coke and Clear Pepsi, which were eventually pulled from store shelves because customers didn't like the new versions. Wendy's itself stumbled a few years ago when it tried to introduce breakfast foods. The company now says it made a mistake by offering omelets and pancakes, which aren't conducive to eating on the go.

Sunday, September 18, 2011

"60 Minutes": We called for help and no one came.

David Martin did the lead "60 Minutes" story on September 18, 2011 on Medal of Honor winner Dakota Meyer of Greensboro, Kentucky. Although a message of the story was of the heroism of Meyer, another message concerned the ineptitude of officers who did not respond to repeated requests to assist four marines who were pinned down.

The episode was in the Ganjgal Valley in eastern Afghanistan. "60 Minutes" displayed videoclips form the Army Center for Lessons Learned. There were 100-150 hostiles pinned down four Marines in a village. Initial requests for artillery fire were turned down. Two army officers who made the decision NOT to allow artillery fire were found negligent in an atmosphere of complacency. Colonel Richard Hooker conducted an investigation. Two Kiowa helicopters were 5-10 minutes flying time away, but were diverted. At 30 minutes into the firefight, Gunnery Sergeant Kennypick said he could not return fire, and Meyer took charge. Meyer and Juan Rodriguez-Chavez drove a truck to save the four Marines. The two drove wounded Afghan allies out of the valley.
Army Captain Will Swenson made 9-10 calls for supporting fire. He was very, very insistent in his calls for help. The helicopters did not show up until one hour 45 minutes into the fight. The helicopters were a great help to the troops on the ground. Swenson and Meyer drove an unarmored truck into the valley. The helicopters could not land because of the hostile fire. Meyer started to run to the four marines. Meyer found Sergeant Johnson, who was dead. This was six hours into the fight.

The family members of the dead Marines were appalled on reading the Investigation 15-6 forms describing the episode. Sgt Kenefick's tombstone was shown. Cooments that the mission was caused by negligence. We were surrounded; we were ambushed; we called for help and no one came.

Letters of reprimand were sent to the responsible captain and major.

Martin noted it has been two years since the operation and asked what was gained. Meyer answered: nothing.

**The other stories were on pictures of polar bears (a recycled story from March 2011; Spy on the Ice; John Downer) and on Dallas Cowboy owner Jerry Jones (also recycled).

Downer used a spy cam to get up close to the polar bears. In summertime, some polar bears get stuck on dry land. In this area, it's illegal to leave one's boat without an armed escort. Jeff Bell: the only difference between men and boys is the price of the toys.

**The Jones story started last August. Jones is one of only three owners who runs the team. Jones: stats are for losers. Pelley: You were the best general manager in 1992 (...) what happened to that guy? 60 Minutes showed clips from last October, with the Jaguars beating the Cowboys. Pelley: it's got to be somebody's fault. If I were going to be in a foxhole with somebody, I'd be in the foxhole with me. The Cowboys were my devil. High def tv in stadium cost $40 million. The franchise is said to be worth 1.6 billion.

**Of the polar bears, see previous IPBiz post:

http://ipbiz.blogspot.com/2011/03/60-minutes-on-march-6-2011.html

CBS Sunday Morning on September 18, 2011

Charles Osgood introduced the stories for September 18, 2011. Children are returning to class, which reminds us of proper penmanship (Tracy Smith gives cover story "Signing Off," which is a recycled story from January 23, 2011). "Rockin' the House" by Martha Teichner on Hugh Laurie. Third up was a piece on Susan Lucci by Mo Rocca, starting on Jan. 5, 1970 in her soap career. Bill Geist on "Team Players," on the Hudson Valley Renegades, a minor league team (sons of summer).

Headlines. White House proposal on deficit reduction includes increases in taxes for high bracket Americans. Iranian situation.
Death toll in Reno air crash of P-51 Mustang. Air show in West Virginia, pilot killed. Ted Kennedy's daughter died. Elinor Mondale also died (at age 51). Chuck Percy died.

Weather. Cool and crisp in east. Warm in west. Summer ends on Friday.

"Signing Off" on the art of penmanship started off with school children being taught penmanship. Christa Walter's kindergarten class in Ohio was shown. In the old days, there were professional penman. Roger Spencer created a primer on writing. The script used in the Coca Cola logo. A. N. Palmer was the penmanship emperor of the 20th century (fast, efficient writing). Graphology was the rage in the early 1900s. Before 1920's, students learned only cursive. Steve Graham at Vanderbilt University asserted that kids who work with word processors end up writing better. People form judgments about the credibility of your ideas based on your handwriting. Your handwriting peaks around fourth grade. Matter of Gordon Brown with spelling errors. Only 18% of those polled said their handwriting excellent. Calligrapher Margaret Shepard. A handwritten letter is just awesome. It's too soon to sign off on penmanship.

September 18, 1870. The day Henry D. Washburn found "Old Faithful" in Yellowstone. Within two years, Yellowstone became national park. Eruptions go up to 130 feet. Ansell Adams took photos 70 years ago. Obama came in 2009.

Hugh Laurie is the star of House, and is up for an Emmy (on Sept. 18). Martha Teichner does an interview, which includes Laurie doing St. James Infirmary. Album "Let Them Talk." Trespassing on the music of American South. A famous tv stars "vanity project." Laurie: to hell with it. Dr. John performed with Laurie on Laurie's album. Bessie Smith. Laurie: a great ocean of pleasure. With Steven Fry, a comedy duo. Silly foppish aristocrats. Sort of clowning was a defense against something. Disarming one's enemies by making them laugh. Laurie grew up in Oxford, England. Piano lessons with Mrs. Hair. Swanee River is on Laurie's album. Laurie: there's so much luck; the amount of luck is absolutely terrifying. House is starting his 8th season, now making $700,000 per episode. Laurie loves Hollywood. House has given Laurie a confidence as a performer. Hugh Laurie is now a man at home.

On Laurie, from a CBS story on 27 July 2011:

Laurie, who plays the acerbic pill-popping M.D. on the hit FOX show, has signed a deal with Warner Music Entertainment to record an album of New Orleans-inspired songs this summer.

"I am drunk with excitement at this opportunity," Laurie said in a statement Monday obtained by the Associated Press "I know the history of actors making music is a checkered one, but I promise no one will get hurt."

The Golden Globe-winner has sung and performed throughout his acting career. Even his TV alter ego, Dr. Gregory House, is
often seen playing the piano and guitar on the show.


Theater review. Brad Pitt as Redford's mini-me. Overacted like mad in "Twelve Monkeys." Underacted in Benjamin Button.
In Moneyball, Pitt has soared. Find players for the money we do have. Teams value and pay money for the wrong things.
Book by Michael Lewis. Thinking outside the batter's box. The Bad News Bears for MBAs. Pitt still channels Redford. His Billy Bean knows he is handsome.

Sunday Passage. Mayor Bloomberg talking about a carousel installed in Brooklyn. Jane Wallentis gave it as gift. She bought a carousel in 1984 for over $300,000. Spent over $15 million restoring it. The carousel ended up on Thursday in a park near the Brooklyn Bridge.

CBS on Mitch Daniels. Daniels is a rising star. Bush's director of OMB. Daniels fixed the economy of Indiana. We made government work well. Fewer state employees than in 1976. I love my family more. Wife: our family was concerned about the lack of privacy. One sentence: daddy, please don't. Caught between being a father, husband and pursuing higher office. You can't have everything in life. Another issue. Daniels: what happened is a happy ending. They divorced in 1993. Got re-married in 1997. Daniels has a motorcycle. Not running has advantages; speak his mind. What matters: acting while there is still time.
Book: Keeping the Republic. If we don't make changes, we will ruin the American project. Staggering debt. Decline always starts with the money: borrow themselves into a corner. Let free enterprise take over. Government should be there to do things we have to do together. Focus on the bottom line.

"Picture Perfect" on photos of dogs for adoption. Teresa Berg. Thousands of dogs are euthanized merely for reasons of bad marketing. Kathleen Coleman. A reference to the Nick Nolte mug shot. Pictures make a difference. If every photographer took in one rescue group.

Susan Lucci as Erica Kane on All My Children, interview by Mo Rocca. Pine Valley (1683). The show goes off the air this Friday [September 23, 2011] Lucci was raised in Garden City, Long Island. Lola wants, Lola gets. Graduated from college in 1968. Was told she was too ethnic looking. Debut: January 5, 1970. A 15 year old high school girl, collecting boys as trophies. Erica was married 10 times. Susan Lucci still lives in Garden City. The saga of the Emmy. She won on her 19th try. In April, ABC cancelled "All My Children." In July, the production company bought rights to it.

Opinion piece by Nancy Giles on the two Republican presidential debates. Applause at the number of people executed in Texas?
Am I my brother's keeper? I can't imagine applauding at the idea of death, either by lethal injection or by lack of health insurance. Nancy refers to recent Supreme Court decision on Texas inmate. Is Ron Paul following: First, do no harm. Or: Cancer, tough luck, come back for chemo when you can afford it. Can other people get "Seats at the GOP's table."

In baseball's minor leagues, fans are closer to the players. Wappingers Falls. Hudson Valley Renegades. Players are making food stamp money. The players live in the homes of 18 fans. The Stewarts (Jane and Al) in Poughkeepsie have no children but have hosted many players. Josh Hamilton, Longoria, Dempster were all with the Stewarts. Home atmosphere contributed to success.
The Stewarts have hosted as many as seven players at once. How much compensated? nothing. The Stewarts have been to the weddings of 20 players.

Judy Hold is retiring, after signing on as a secretary in 1962. In 1995, joined Sunday Morning. Hoover Dam; Gypsy Rose Lee; holiday food issue. Osgood showed a NYT clip on a tempest about CBS not allowing females to wear pants.

Next week: Mo Rocca interview of Roseanne Barr.

Moment of nature: Spiriva handihaler. Banks of Kazinga Channel in Uganda, with elephants and hippos.

Saturday, September 17, 2011

A footnote, emphasized

Within a story about unemployment that was picked up by yahoo news, a reference in a footnote was emphasized:

According to at least one analyst, Rob Valletta, an economist at the San Francisco Fed--who, as it happens, is acknowledged in the footnotes of Rothstein's paper -- the latter effect outweighs the former, as The Lookout reported earlier this year. Valetta argues that more jobs are created via the economic gains of disbursing jobless benefits than are lost by the way that the benefits may prolong the time that jobless Americans are not employed. And Valletta was assuming that the impact on personal behavior was around twice as large as Rothstein's study found.

The Rothstein paper is posted at the Brookings website, and the abstract is as follows:

Nearly two years after the official end of the "Great Recession," the labor market remains historically weak. Many commentators have attributed the ongoing weakness in part to supply-side effects driven by dramatic expansions of Unemployment Insurance (UI) benefit durations, to as many as 99 weeks. This paper investigates the effect of these UI extensions on job search and reemployment. I use the longitudinal structure of the Current Population Survey to construct unemployment exit hazards that vary across states, over time, and between individuals with differing unemployment durations. I then use these hazards to explore a variety of comparisons intended to distinguish the effects of UI extensions from other determinants of employment outcomes.

The various specifications yield quite similar results. UI extensions had significant but small negative effects on the probability that the eligible unemployed would exit unemployment, concentrated among the long-term unemployed. The estimates imply that UI benefit extensions raised the unemployment rate by only about 0.2–0.6 percent- age points, much less than is implied by previous analyses. Half or more of this effect is due to reduced labor force exit among the unemployed rather than to the changes in reemployment rates that are of greater policy concern; some analyses even suggest that UI extensions, by keeping displaced workers in the labor market, may have increased the share who were later reemployed.


Strictly speaking, there are references, not footnotes, in the Rothstein paper.

**In the world of academia, it's a red letter day when one scholar actually acknowledges work of a previous worker. In the world of patents, failure to acknowledge prior art is a strict liability offense.

Of the academic world, see previous IPBiz posts


"Trolls on top?" or how not to cite relevant work?



Patent law academics make troll studies a growth industry
which includes the text

The convenience of not remembering history when discussing patent reform, noting the irony that many patent reformers, who criticize the USPTO for not finding prior art, tend to ignore prior art themselves. [Recall Emerson: the louder he talked of his honor, the faster we counted our spoons.]

China and biofuels

From a post by JOHN C. K. DALY :

PetroChina, a traditional hydrocarbon company, is clearly thinking outside the box to increase its alternative energy portfolio.

According to PetroChina’s Petrochemical Research Institute deputy chief engineer Fu Xingguo, China is looking at generating 933,000 tons annually of fuel ethanol and 165,000 tons of biodiesel.

According to Fu, China is looking to import biofuel from countries such as Brazil, the world’s largest producer of ethanol, which will then be blended with regular hydrocarbon-derived traditional fuels and sold to southern Chinese provinces.


**Separately, BusinessWeek discusses a proposed IPO by Mascoma:

Mascoma produces genetically modified yeast and bacteria that produce enzymes to break down plant sugars and ferment them into ethanol. The process combines enzymatic digestion and fermentation into a single step and eliminates the need for purchasing enzymes. This is less expensive than other manufacturing methods, according to the filing. (...)

Oil refiner Valero Energy Corp. in January agreed to invest as much as $50 million in the company's first $350 million plant and will buy all of the fuel produced at the Kinross, Michigan, facility. It is expected to begin production in 2013 and will produce 40 million gallons (151.5 million liters) a year. It is also planning a second facility in Drayton Valley, Alberta.

The Canadian organic food supplier SunOpta Inc. is Mascoma's largest shareholder, with a 20.6 percent stake. Mascoma paid $51 million in September for SunOpta's BioProcess unit, which developed a system to break down organic material into components that can be converted into biofuels.

Friday, September 16, 2011

In re Scroggie

The CAFC affirmed the BPAI in Scroggie: Because the Board correctly determined that the claims at issue would have been anticipated and obvious to one of skill in the art, this court affirms.

At issue was the meaning of "personal computer."

Of the legal points visited-->

This court reviews factual findings of the Board for substantial evidence. See In re Gartside, 203 F.3d 1305, 1312-16 (Fed. Cir. 2000). Claims appealed from the Board receive the broadest reasonable meaning in light of the specification. See In re Bond, 910 F.2d 831, 833 (Fed. Cir. 1990). In addition, the applicant may act as a lexicographer by setting out a definition in some manner within the patent disclosure. See Intellicall, Inc. v. Phonomet- rics, Inc., 952 F.2d 1384, 1387-88 (Fed. Cir. 1992). A specification or file history must clearly identify an applicant’s unique definition. See Vitronics Corp. v. Concep- tronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). “This Court thus reviews 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 presence or absence of a motivation to combine references in an obviousness determination is a pure question of fact.” Gartside, 203 F.3d at 1316. This court reviews the Board’s legal conclusions de novo. In re Kotzab, 217 F.3d 1365, 1369 (Fed. Cir. 2000).

The problem for the patent applicant was that the applicant did NOT set out a definition of "personal computer" in the specification-->

The first question before this court is whether the Board’s interpretation of “personal computer” is reason- able. The representative claim recites only the term “personal computer.” Nowhere in the specification does Scroggie act as a lexicographer and define that term. Specifically, the ’939 application has no definition or explanation of “personal computer.” Scroggie has not ventured to add such a limitation or definition by amendment.

To act as a lexicographer, an applicant must define claim terms with “reasonable clarity, deliberateness, and precision.” In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). This court has previously determined that it is improper to “attempt to redefine the claimed invention by impermissibly incorporating language appearing in the specification into the claims,” but it is proper for the specification of an application to be used “to interpret what the [Appellants] meant by a word or phrase in the claim.” Id.


Applicant's definition:

“Absent an express definition in their specification, the fact that appellants can point to definitions or usages that conform to their interpretation does not make the PTO's definition unreasonable when the PTO can point to other sources that support its inter- pretation.” Morris, 127 F.3d at 1056. In this case, Scroggie cites to claims and parts of the specification to support the premise that the claim term “personal computer” requires access to the Internet and the ability to receive emails.

The CAFC dealt with the use of "as in" in a dictionary definition:

The Board omitted the phrase “as in an office or at home or school” as only exem- plary and not part of the definition. This court discerns no error in this omission. As the Board stated, the omit- ted portion was not part of the definition because the “as in” is not limiting. Thus, the record supports the reason- ableness of Board’s interpretation.

Of anticipation:

A claim is anticipated only if each and every element appears, either expressly or inherently, in a single prior art reference. Verdegaal Bros. v. Union Oil Co. of Cal., 814 F.2d 628, 631 (Fed. Cir. 1987). Anticipation depends on the claim interpretation of “personal computer” because Appellants do not dispute that all other limitations appear in the ‘675 patent. The Board’s definition of “personal computer” includes two relevant parts: (i) a microprocessor that (ii) is usable by an individual.

KSR was cited for obviousness:

This court examines claims 34, 47, and 60 under the requirements for obviousness in view of the ’675 patent. Obviousness requires evaluation of the “differences between the subject matter sought to be patented and the prior art” with an eye on “the subject matter as a whole . . . at the time the invention was made” from the perspec- tive of “a person having ordinary skill in the art.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007) (quoting 35 U.S.C § 103(a)).

Thursday, September 15, 2011

ULTRAMERCIAL : The “coarse eligibility filter” of § 101 should not be used to invalidate patents...

Within the decision: The “coarse eligibility filter” of § 101 should not be used to invalidate patents based on con- cerns about vagueness, indefinite disclosure, or lack of enablement, as these infirmities are expressly addressed by § 112.


The opinion, written by Chief Judge Rader, works through recent thinking on 35 USC 101.

A claim that began:

A method for distribution of products over the Internet via a facilitator, said method comprising the steps of: (...)


survived 101.

Yes, Bilski was mentioned:

In Bilski, the Supreme Court explained that “[i]n choosing such expansive terms modified by the comprehensive ‘any,’ Congress plainly contemplated that the patent laws would be given wide scope.” 130 S. Ct. at 3225 (quoting Diamond v. Chakrabarty, 447 U.S. 303, 308 (1980)). After all, the purpose of the Patent Act is to encourage innovation, and the use of broadly inclusive categories of statutory subject matter ensures that “ingenuity . . . receive[s] a liberal encouragement.” Chakrabarty, 447 U.S. at 308.

AND

Moreover, title 35 does not list a single ineligible category, suggesting that any new, non- obvious, and fully disclosed technical advance is eligible for protection, subject to the following limited judicially created exceptions.

In line with the broadly permissive nature of § 101’s subject matter eligibility principles, judicial case law has created only three categories of subject matter outside the eligibility bounds of §101—laws of nature, physical phenomena, and abstract ideas. Bilski, 130 S. Ct. at 3225.

Wednesday, September 14, 2011

Butamax comments on Gevo's infringement assertion

As to Rule 11 in patent infringement cases, IPBiz once quoted Philip Brooks' Patent Infringement Updates:

Via Rule 11 of the Federal Rules of Civil Procedure all actions brought in federal court have a pre-filing investigation requirement. Rule 11 demands that before any claim is asserted, the party asserting the claim must have performed an "inquiry reasonable under the circumstances" as to the legal and factual merits of the claim. Fed. R. Civ. P. 11(b).

One notes the response of Paul Beckwith of Butamax to Gevo's infringement assertion of 13 Sept 2011, as mentioned in BiofuelsDigest:

“When Butamax makes isobutanol, we do not use the technology claimed in the Gevo patents. We are so confident about this, that we offered Gevo an opportunity to independently verify that Butamax does not infringe either of these patents. Ignoring both our offer to verify and the facts, Gevo instead filed its lawsuit.”

link to Biofuels Digest

link to IPBiz on Rule 11

See also

Gevo bites back in isobutanol biofuel area; goes after Butamax with US 8,017,375

What companies should worry about from changes produced by HR 1249

For the company that wants to challenge an issued patent, HR 1249 brings some major changes. Although the low profile "ex parte" re-examination stays the same, procedures above ex parte but short of litigation change. Inter partes re-exam will be phased out AND the standard for succeeding in a request for inter partes goes up: as of the date of enactment the current standard requiring a requestor to show a “substantial new question of patentability” [SNQ] is replaced by a new standard requiring a requestor to show “that there is a reasonable likelihood that the requestor would prevail with respect to at least 1 of the claims challenged in the request.” Inter Partes reexamination in the Central Reexamination Unit will be replaced by review proceedings before the renamed Patent Trial and Appeal Board. Any ground of invalidity can be raised in a Post Grant Review petition, filed within 9 months of patent issue or reissue. Invalidity on grounds of prior patents and publications can be raised in an Inter Partes Review at any time when Post Grant Review is not available.

Courtenay Brinckerhoff gives some advice about HR 1249 as to first-to-file:

First-To-File—effective 18 months after the date of enactment and applicable to any application with an effective filing date on or after that date.
To the extent that the first-to-file provisions eliminate or curtail the current one year grace period afforded by 35 USC § 102(b), this means that companies have at most 6 months to educate their inventors about the elimination of the grace period and the importance of filing a patent application before making any public disclosure of the invention, and to develop and implement appropriate safeguards against pre-filing disclosures.


And the new derivation procedure requires companies to monitor what is going on:

A derivation proceeding can be brought by a later applicant who alleges that an inventor named in an earlier application derived the invention for an inventor named in the later application. A petition must be filed within one year (or 364 days?) of the first publication of a relevant claim, and must be supported by substantial evidence. This means that applicants concerned about derivation should have procedures in place to monitor the claims of newly published applications.

Other commentary on HR 1249:

From Fish & Richardson: Patent Law Changes Appear Imminent

From Brookings: The Comprehensive Patent Reform of 2011: Navigating the Leahy-Smith America Invents Act

**from patentdocs

Strafford will be offering a webinar entitled "USPTO Post-Grant Proceedings After New Patent Reform Law" on September 28, 2011 from 1:00 - 2:30 PM (EDT). Scott McKeown of Oblon Spivak McClelland Maier & Neustadt and Kevin Laurence of Stoel Rives will provide guidance for counsel to IP owners and inventors on the new America Invents Act's post-grant system, including post-grant review proceedings, special transitional post-grant review of business method patents and supplemental examinations. The webinar will review the following questions:

• What are the grounds for post-grant challenges now?
• How will current reexamination practice change?
• What are the new options, how will they be implemented, and when?
• How do the changes of the Leahy-Smith America Invents Act alter the strategic use of post grant proceedings parallel to litigation?
• What are the relevant deadlines and best practices?

An interactive Q&A session will follow the presentation.

The registration fee for the webinar is $297 ($362 for registration and CLE processing). Those interested in registering for the webinar, can do so here.

Ex parte vs. inter partes: which is the dominant life form?

In a post dated Sept. 13, 2011 at patents4life about the significant changes (and non-changes) introduced by HR 1249, one finds the text:

3. S. 302-307 – “Old” ex parte reexamination is not affected by Bill. (But, remember, ex parte reexamination is essentially unused now.)

But in the weekly update of re-exams from InvnTree , ex parte outnumbered inter partes 2 to 1!!

1 5,629,867 90/011,812 Jul. 27, 2011 "Scott Charles Richardson, Brevetto Law Group,
PLLC., Quincy, IL
" Ex Parte
2 5,809,246 90/011,813 Jul. 28, 2011 "Scott Charles Richardson,
Brevetto Law Group, PLLC., Quincy, IL
" Ex Parte
3 5,944,445 90/011,829 Aug. 2, 2011 "USA FloodAir Vents, LTD., Daniel P. Burke, Daniel P.
Burke & Associates, PLLC., Oyster Bay, NY
" Ex Parte
4 6,891,744 90/009,922 Aug. 5, 2011 "Blaise
Mouttet, Arlington, VA
" Ex Parte
5 7,078,128 90/011,816 Jul. 29, 2011 "Garth M. Dahlen, Birch Stewart Kolasch &
Birch, LLP., Falls Church, VA
" Ex Parte
6 7,763,880 90/009,924 Aug. 5, 2011 Blaise Mouttet, Arlington, VA Ex Parte
7 6,711,426 95/001,688 Jul. 28, 2011 "Thermo Fisher Scientific, Inc.; (Att'y
Is: Michael C. Staggs, Thermo Finnigan, LLC., San Jose, CA), Real Party in
Interest: Same As Third Party Requester
" Inter Partes
8 7,431,650 95/001,698 Jul. 28, 2011 "Genesis Gaming Solutions, Inc.; (Att'y Is: Jeffrey A.
Tinker, Winstead, PC, Dallas, TX), Real Party in Interest: Same As Third
Party Requester
" Inter Partes
9 7,991,680 95/001,700 Aug. 15, 2011 "Third Party Requester: SAP America,
Inc. (Att'y Is: Garth A. Winn, Klarquist & Sparkman, LLP., Portland, OR),
Real Party in Interest: Same As Third Party Requester
" Inter Partes

**With the change in threshold that will exist for the new "inter partes review" (but not for ex parte),
one wonders if ex parte re-exams will become still more dominant?

**from Sterne Kessler:

The standard for the Director to grant an inter partes reexamination will change on the date of enactment from the current standard requiring a requestor to show a “substantial new question of patentability” to a new standard requiring a requestor to show “that there is a reasonable likelihood that the requestor would prevail with respect to at least 1 of the claims challenged in the request.” See Sections 6(c)(3)(A) and (B) of H.R. 1249.

**Of expedited review, note some statistics from the Green Technology Pilot Program:

According to the most recent statistics made public by the USPTO, a total of 1595 petitions have been filed since December 8, 2009, of which 790 have been granted. As of Nov. 17, 2010: 94 patents with granted petitions have been issued under the pilot program.

So granted/petitioned is 94/1595 = 6%

Refer to USPTO announces extension and expansion of program for fast reviews of "green" patent applications

Of prioritized examination in HR 1249:

The patent reform legislation (H.R. 1249), passed by the House and awaiting a Senate vote, includes some new fee provisions that would go into effect on the date of enactment. Effective 10 days after enactment is a $4,800 fee for "Prioritized Examination," corresponding to the USPTO's "Track I" rulemaking issued as final April 4, 2011 (76 Fed. Reg. 18399) but indefinitely postponed April 20, 2011 (76 Fed. Reg. 23876) for funding reasons. See 11(h) of House-passed H.R. 1249, p. 105. Some features of the prioritized examination:

PTO Director may limit the number granted.
No more than 4 independent claims and 30 total.
Unless changed, no more than 10,000 prioritized examinations may be granted per year.
Small entities will pay $2,400.
No fee diversion of these funds to non-PTO government projects.
Provision effective 10 days after enactment


From patents4software:

Under a new 37 C.F.R. 1.102(e), prioritization is available only for an original and complete utility or plant nonprovisional application that contains or is amended to contain no more than four independent claims, no more than 30 total claims, and no multiple dependent claims.  The goal is to provide a final disposition within twelve months of an application’s receiving prioritized status.


Text in the Federal Register [76 FR 18399 (April 4, 2011)] includes:

To maximize the benefit of prioritized examination, applicants should consider one or more of the following:

(1) Acquiring a good knowledge of the state of the prior art to be able to file the application with a clear specification having a complete set of claims from the broadest to which the applicant believes he is entitled in view of the state of the prior art to the narrowest to which the applicant is willing to accept;
(2) submitting an application in condition for examination;
(3) filing replies that are completely responsive to the prior Office action and within the shortened statutory period for reply set in the Office action; and
(4) being prepared to conduct interviews with the examiner. A description of what it means for an application to be in condition for examination is provided at MPEP § 708.02(a) (subsection VIII.C).


See also:
http://www.patents4software.com/2011/04/pto-issues-final-rule-to-implement-prioritized-examination-track-track-i/

Tuesday, September 13, 2011

Gevo bites back in isobutanol biofuel area; goes after Butamax with US 8,017,375

A press release related to Gevo's US 8,017,375 (issued Sept. 13) notes:

Gevo's PDC Patent focuses on converting an ethanol producing yeast into an isobutanol producing one. This significant discovery virtually eliminates ethanol production in yeast and enables Gevo's yeast to survive and thrive by producing isobutanol at high yields. (...)

"In layman's terms, these inventions, and others addressed in Gevo's pending patent applications, help to turn an industrial yeast strain into a highly efficient cell factory to produce isobutanol," said Brett Lund, EVP & General Counsel of Gevo. "We used synthetic biology to reprogram the yeast to make isobutanol instead of ethanol. In other words, we changed the yeast so that it makes what we want instead of what it wants, and we made it so it does it really well." (...)

"Our lawsuit is based on Butamax's own publications describing their use of the technology that Gevo invented first and for which we have received patents," said Mr. Lund. "We expect the breadth and strength of our patent estate to grow considerably over the coming months as our patent applications convert into granted patents."


As Werner Wolf would say, let's go to the videotape, in this case the file history of Gevo's patent. Back on 28 April 2011, Gevo made a response to a rejection by the Examiner. The Examiner had rejected claims 131-149 of Gevo's application over US 7,851,188 (of Donaldson/Butamax) because the '188 had disclosed the genes encoding the enzymes for isobutanol synthesis. But Butamax had NOT disclosed pdc disruption. For that, the Examiner cited van Maris (2004), and thus gave a 103 rejection. Gevo overcame this by adding the requirement: an .alpha.-ketoisovalerate decarboxylase from Lactococcus lactis to catalyze the conversion of .alpha.-ketoisovalerate to isobutyraldehyde.

Claim 1 of issued US 8,017,375 states:

A recombinant yeast microorganism for producing isobutanol, the recombinant yeast microorganism comprising an isobutanol producing metabolic pathway, wherein said isobutanol producing metabolic pathway comprises the following substrate to product conversions: (i) pyruvate to acetolactate; (ii) acetolactate to 2,3-dihydroxyisovalerate; (iii) 2,3-dihydroxyisovalerate to .alpha.-ketoisovalerate; (iv) .alpha.-ketoisovalerate to isobutyraldehyde; and (v) isobutyraldehyde to isobutanol; wherein said recombinant yeast microorganism expresses: (a) an acetolactate synthase to catalyze the conversion of pyruvate to acetolactate; (b) a ketol-acid reductoisomerase to catalyze the conversion of acetolactate to 2,3-dihydroxyisovalerate; (c) a dihydroxy acid dehydratase to catalyze the conversion of 2,3-dihydroxyisovalerate to .alpha.-ketoisovalerate; (d) an .alpha.-ketoisovalerate decarboxylase from Lactococcus lactis to catalyze the conversion of .alpha.-ketoisovalerate to isobutyraldehyde; and (e) an alcohol dehydrogenase to catalyze the conversion of isobutyraldehyde to isobutanol; wherein the recombinant yeast microorganism has been engineered to disrupt, mutate, or delete one or more endogenous pyruvate decarboxylase (PDC) genes, wherein said recombinant yeast microorganism has reduced endogenous PDC activity as compared to the corresponding yeast microorganism that has not been engineered to have reduce endogenous PDC activity, and wherein said recombinant yeast microorganism produces: (A) isobutanol at a yield which is at least 10% of the theoretical yield of isobutanol from glucose; and/or (B) ethanol at a yield which is 1.8% or less of the theoretical yield of ethanol from glucose.

For reference, US 8,017,375 of Gevo claims priority to U.S. Provisional Application Ser. No. 61/016,483 filed Dec. 23, 2007.

The first claim of the Butamax '188 patent states:

A recombinant microbial host cell comprising heterologous DNA molecules encoding polypeptides that catalyze substrate to product conversions for each step below: i) pyruvate to acetolactate; ii) acetolactate to 2,3-dihydroxyisovalerate; iii) 2,3-dihydroxyisovalerate to .alpha.-ketoisovalerate; and iv) .alpha.-ketoisovalerate to isobutyraldehyde; wherein said microbial host cell produces isobutanol; and wherein a) the polypeptide that catalyzes a substrate to product conversion of pyruvate to acetolactate is acetolactate synthase having the EC number 2.2.1.6; b) the polypeptide that catalyzes a substrate to product conversion of acetolactate to 2,3-dihydroxyisovalerate is acetohydroxy acid isomeroreductase having the EC number 1.1.1.86; c) the polypeptide that catalyzes a substrate to product conversion of 2,3-dihydroxyisovalerate to .alpha.-ketoisovalerate is acetohydroxy acid dehydratase having the EC number 4.2.1.9; d) the polypeptide that catalyzes a substrate to product conversion of .alpha.-ketoisovalerate to isobutyraldehyde is branched-chain .alpha.-keto acid decarboxylase having the EC number 4.1.1.72.

The nonprovisional of the '188 patent was filed October 25, 2006 and the application [ 20070092957 ] was published April 26, 2007. Priority claimed to U.S. Provisional Application Ser. No. 60/730,290, filed Oct. 26, 2005.

See post by Doris de Guzman with text Gevo said the lawsuit is based on Butamax's own publications describing their use of the technology that Gevo claimed to have invented first and now received the patents.(...)If readers recall, Butamax first filed its own lawsuit against Gevo on January, alleging that Gevo had infringed one of Butamax's patents issued in December 2010.

Previous IPBiz posts
Gevo's inter partes re-exam request as to US 7,851,188

http://ipbiz.blogspot.com/2011/08/gevos-response-to-second-butamax.html

Also:
US 8,017,376