Sunday, September 30, 2012

Season premiere for "60 Minutes" on September 30, 2012

Sept. 30, 2012 marks the 45th season premiere of "60 Minutes." There were two stories previewed.

First preview. General John Allen interviewed by Lara Logan.

Second preview. Life with Arnold. Interview with Lesley Stahl. "I think Joesph is your kid."

The war in Afghanistan is now the longest war in US history. Lara Logan arrived in Afghnistan just after four American troops were killed by Afghani troops. The issue of sanctuary for adverse troops in Pakistan arose. The Afghan criticism is directed to policies of America. The White House says US involvement in Afghanistan will end in 27 months. Allen came to his position thinking this will be his last job. This is very personal to Allen.

Lesley goes over Arnold's book "Total Recall" and gets a ride in a Mercedes Unamag.
Arnold was born in 1947, and the house had no electricity or running water. Water from a well a quarter mile away for sponge baths. His father Gustav had joined the Nazis during WWII, but this was not discussed in the household. Gustav beat Arnold with a belt. Arnold spent 5 hours a day lifting weights. Arnold's mother called in the family doctor, because Arnold had pictures of male weight-lifters. By the age of 15, Arnold's master plan was to go to Aermica. Arnold got to Los Angeles in 1968. Arnold took steroids (in the era before growth hormones). Arnold invested in properties in Santa Monica. Documentary Pumping Iron. Agents told Arnold he could not be leading man. Arnold worked hard to be an actor. Self-control got in the way. Arnold's resolute non-introspection. Don't dwell on failures. Don't suffer for anything lost. Arnold got $250,000 for Conan the Barbarian. Got $750,000 for the Terminator. A year after Terminator he proposed to Maria. Maria told Arnold not to do Red Sonia. Arnold had an affair with actress in Red Sonia. Arnold says "I'm not perfect."

Maria and Arnold were married in 1986. Time put Arnold on cover in 1990. Arnold's political career began in 2003. Arnold promoted stem cell research. Arnold strengthened "individual mandate." Arnold had open heart surgery in 1997, but didn't tell Maria. "Some information I keep to myself." He told Maria about running for governor only a few days in advance. Arnold said he thought Maria would say "wow." Eunice Shriver intervened. Affair with Mildred leading to son Joseph. Arnold: I did not know how to tell Maria. How do I keep this under wraps Arnold: I put this away...that's the way I operate.

Lesley: She (Maria) gave up her television career for you. Lesley asked Arnold if he did "father" things with Joseph. Arnold said I don't want to get into that.

Arnold's last lines: How could you (meaning Arnold) have done that?

CBS Sunday Morning for September 30, 2012

Charles Osgood introduced the stories for "Sunday Morning" on September 30, 2012. High tech times; electronic wizardry, but Susan Spencer talks about loneliness. We can't keep our eyes off our smartphones. Second, Lee Cowan on a power couple of tv writers. Third, Bill Whittaker on a preview of coming movie attractions. The magic of the movies. Fourth, Rita Braver interviews Ed Asner, once famous for "Lou Grant," but now on Broadway. Bob Schieffer. Jim Axelrod.

News. Insider attack in Afghanistan. Syrian rebels in Aleppo. Everything bigger in Texas, but 3.4 mag earthquake near Dallas. Carmeggdon 2 on I-405. Preparing for presidential debates. New entry on historic places. Hartsdale pet cemetery in NY. Weather: raining in southeast; scattered showers in northeast.

Osgood starts the preview with the word "disconnected." Spencer starts with the observation that 90% of Americans own cell phones. MIT prof Sherry Turkle did book "Alone Together." Preference for texting over talking. Texting is seen as a skill. America's fastest texter. Kids receive on average 3200 text messages per month. Picture of texter walking right into fountain; another falling off train platform. Could we function without smart phones. UMaryland Sergei Golanschinsky: 70% of test people quit experiment; could not live without smart phone. Media is my drug. "the Shallows" by Nicholas Carr. World with unlimited amounts of information. The trend is to ever more connection. Crowd out quieter moments. Clip from "What's my line." In past, television was only during isolated periods of time. Now, a technology that imposes throughout the day. UCLA Gary Small. Brain scans shown: Brain on book vs. brain on google. Small has smartphone by Carr got rid of his. It's about how to reclaim conversation. Half of cell phone users use cell phone while watching television. [Although this story is not a recycle, note Susan Spencer's piece "no man is an island" on May 20, 2012. See
CBS Sunday Morning on May 20, 2012
. Thus, not a recycled story, but a recycled theme.]

Almanac. Sept. 30, 1924. Birthday of Truman Capote in New Orleans. "Other Voices, other rooms." Breakfast at Tiffany's. Herbert W. Clutter. 2005 film: Capote. Book: In Cold Blood. Charles Kuralt covered Capote's masked ball. By 1977, a recognizable cliche. Annie Hall. Drunken appearance on a talk show. Truman died in 1984.

The first presidential debate on Wednesday in Denver. Bob Schieffer looks forward and back, starting with Ronald Reagan quip on Jimmy Carter. "Jack Kennedy was a friend of mine." Jim Lehrer is the dean of debate moderators. Schieffer: who do we feel most comfortable with. Presidential temperament. Clip from Kennedy/Nixon debates, Sept. 26, 1960. On radio, Nixon won, but on tv Kennedy won. Nixon perspired. Franklin Roosevelt in 1940 declined to debate Wilkie. Lyndon Johnson didn't debate. Gerald Ford debated Carter in 1976, after Nixon pardon. There is no Soviet domination of eastern Europe. Reagan: are you better off than you were four years ago? Kathleen O. Jamieson on debates; we practice what we preach. Brett O'Donnell; Liberty University. Capture the imagination of the audience and press. Have a clever line. Things that matter the most to the voters. Let voters understand what the differences are.

Jim Axelrod on auction items. Bobby Livingston. Amherst, New Hampshire. Items from Al Capone and other criminals. 130 pieces of gangster memoribilia go on the auction block on 30 Sept. 2012. Musical loveletter of Capone to wife Maria. Items from Bonnie and Clyde in 1934. Pistol in Clyde's waistband when he died. Real value is the gap it exposes between fantasy and reality. History becomes a commodity. Sometimes bad guys are worth more than the good.

Lee Cowan with a pair of comedy writers. A blackhawk going for two avocados . Max. David Cohan. One for the price of two. Boston Commons. Twins. Good Morning Miami. A sitcom called Partners. A gay guy and a straight guy who are best friends. A lot of my best friends are straight. Janet Eisenberg from Hollywood High School. Max the drama student. David is married to Blair. It's just about having fun.

[Commercial for Tori Amos.]

Bill Whitaker on movies. Kenneth Turan (who looks a bit like Leonard Maltin) Daniel Day Lewis playing Lincoln. "Hyde Park on Hudson." on Franklin Roosevelt. Craig in Sky Fall. Liam Neeson in Taken Two. Tom Cruise. Denzel Washington as an airline pilot. "On the Road." "Life of Pi." Last of Twilight saga. Wreck It Ralph. Frankenweenie. "This is Forty." Seven Psychopaths. Silver Linings. Les Miserables. The Impossible. Zero Dark Thirty. Argo. Jango Unchained.

CDs down to 61% from 66% last year. Adele with 21 was biggest hit.

Andy Williams had 42 hits. Moon River was never released as a single. First sang it in 1962. Wall Lake, Iowa: Williams with his brothers. Radio Station in Des Moines; Barn dance classic. Steve Allen Tonight Show 1954. Person to person in 1960 with Collingwood. Williams variety show in 1962. The Beach Boys and Elton John. The Osmond Brothers. Williams sang at Bobby Kennedy's funeral in 1968. Claudine Longet; marriage ended in 1975. Spider Sabich. Branson: Moon River Theater. May each day of the year be a good day.

Ed Asner playing Lou Grant. Rita Braver does Sunday Profile on Ed Asner. Santa Claus in Elf. Voice in Up. At age 82 on Broadway in Grace. Exercise in theology. Paul Rudd as a born again Christian. Asner as Karl, a German immigrant who works as an exterminator. Ed Asner grew up in Kansas City. Played high school football. High school teacher told him not to go into journalism. University of Chicago. Dropped out. Job as an auto plant worker in Kansas City. In 1970, Mary Tyler Moore show. You know what; you've got spunk. I hate spunk. Show ran for 8 years. Lou Grant Show. Asner is into politics. President as Screen Actors Guild (SAG). Architects and Engineers. Odd stance on 9/11: government involvement. On Eastwood at convention: kind of cute, but age betrayed. Asner: I love acting.

Tracy Smith on Elizabeth Banks. Seabiscuit. Thirty Rock. Taking smaller parts and stealing the show. Industry puts her in character roles. Hunger Games. Patient and persistence. Born at Elizabeth Mitchell, Pittsfield, MA. White Horse Inn, chambermaid. To avoid confusion with another actress, changed name to Banks. In 2003, she married Max Handelman. Competitive a capella singing. Welcome to my pregnancy. Struggled with infertility. Son Felix. Definitely, Maybe. Her big moment has yet to happen. I want to be Jessica Tandy.

(New feature on Sunday Morning) Week ahead. Tomorrow: Supreme Court. Tuesday: Macarthur Foundation grants announced.Thursday: Seinfeld.
Estelle Popkin retires after 33 years on Sunday Morning.

Next Week on Sunday Morning: Pete Townsend

Moment of nature. No sponsor. Cypresses on Caddo Lake, near Texas / Louisiana border.

[Charles with red tie/red handkerchief]

Saturday, September 29, 2012

Fake chemistry degree case

Friday, September 28, 2012

In re Abbott Diabetes: BPAI decision vacated

The outcome of In re Abbott Diabetes: Because the Board’s rejections were based on unreasonable claim constructions and because the U.S. Patent and Trademark Office (“PTO”) concedes that the examiner’s official notice rejections should be withdrawn, we vacate-in-part and remand.

The patent office position: According to the PTO, Abbott was required to make a “clear disavowal” or an “express disclaimer” of claim scope. See Am. Acad. Sci., 367 F.3d at 1363 (“[A] patentee ‘may demonstrate an intent to deviate from the ordinary and accustomed meaning of a claim term by including in the specification expressions of manifest exclusion or restriction, repre- senting a clear disavowal of claim scope.’”) (quoting Tele- flex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002)); In re Bigio, 381 F.3d 1320, 1325-26 (Fed. Cir. 2004) (“Absent claim language carrying a narrow meaning, the PTO should only limit the claim based on the specification or prosecution history when those sources expressly disclaim the broader definition.”).


Non-obviousness affirmed in Pozen v. Par

In Pozen v. Par the CAFC affirmed the ED Texas district court’s decision because it did not err in finding the patents-in-suit not invalid and in- fringed.

The residual hearsay rule appears in a footnote:

At trial, Pozen presented, and the district court allowed into evidence, a declaration from one of the co- authors of the Parma reference, referred to as the “Tog- noni declaration,” which stated:
While my article speaks of [combination therapy] of many pairs of drugs, including NSAIDs and sumatriptan, this is not meant as a reference to administering those two drugs at the same time. . . . it refers to the common practice of that time of migraine patients taking drugs separately in sequence, with a required gap in time between administrations of the drugs to determine the effi- cacy of the first drug before trying additional drugs. J.A.158512.

DRL argues that the declaration is inadmissible as
hearsay and irrelevant, and in admitting it the district court abused its discretion. DRL’s Br. at 52. Pozen argues that the declaration is admissible under the residual hearsay rule, Fed. R. of Evid. 807. See Pozen’s Br. at 30. We review evidentiary determinations under the law of the regional circuit. Lexion Med. v. Northgate Techs., Inc., 641 F.3d 1352, 1358 (Fed. Cir. 2011). The Fifth Circuit reviews decisions to admit or exclude evidence for abuse of discretion. United States v. Phillips, 219 F.3d 404, 409 (5th Cir. 2000). “The residual hearsay exception is to be used only rarely, in truly exceptional cases.” United States v. Walker, 410 F.3d 754, 757 (5th Cir. 2005) (citations and internal quotation marks omitted). To admit evidence under the residual hearsay rule, there must be at least circumstantial guarantees of trustworthiness. Id. at 758. The Fifth Circuit has found there are equivalent circum- stantial guarantees of trustworthiness when the declara- tion is made under oath and the declarant is subject to the penalties of perjury, the testimony was preserved on videotape, and the witnesses were subject to cross- examination. Id. Here, Tognoni made a written state-
ment under penalty of perjury, but was never subjected to cross-examination, which may be enough under Fifth Circuit law to guarantee trustworthiness. However, even if it is trustworthy, this is not an exceptional case and thus does not warrant the residual hearsay exception. See Ortho-McNeil Pharm., Inc. v. Mylan Labs, Inc., 520 F.3d 1358, 1364 (Fed. Cir. 2008).

Teaching away:

The district court determined that Catarci discourages combining sumatrip- tan and naproxen to achieve the claimed efficacy benefits, teaching away from the invention. Id.; see In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994) (A reference teaches away when “a person of ordinary skill, upon reading the refer- ence, would be discouraged from following the path set out in the reference, or would be led in a direction diver- gent from the path that was taken by the applicant.”); see also Spectralytics, Inc. v. Cordis Corp., 649 F.3d 1336, 1343 (Fed. Cir. 2011) (explaining that a jury could find that prior art taught away from one solution because all prior art taught a different solution).

Concerning written description:

Section 112, paragraph 1 of the Patent Act, requires that the specification contain a written description of the invention. 35 U.S.C. § 112, ¶ 1. The purpose of the writ- ten description requirement is to ensure adequate disclo- sure of the invention. Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc). A specification adequately describes an invention when it “reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date.” Id. Following a bench trial, we review compliance with the written description requirement, a question of fact, for clear error. Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1332 (Fed. Cir. 2008).


The ’499 patent specification meets the written de- scription requirement because the specification describes the invention in such a way that it is understandable to a person of ordinary skill in the art. See Ariad, 598 F.3d at 1351. As this court has explained, “[i]n order to satisfy the written description requirement, the disclosure as originally filed does not have to provide in haec verba support for the claimed subject matter at issue . . . . Nonetheless, the disclosure . . . must convey with reason- able clarity to those skilled in the art that . . . [the inven- tor] was in possession of the invention.” Purdue Pharma L.P. v. Faulding Inc., 230 F.3d 1320, 1323 (Fed. Cir. 2000); see LizardTech, Inc. v. Earth Resource Mapping, Inc., 424 F.3d 1336, 1345 (Fed. Cir. 2005) (“[T]he patent specification is written for a person of skill in the art, and such a person comes to the patent with the knowledge of what has come before . . . . Placed in that context, it is unnecessary to spell out every detail of the invention in the specification; only enough must be included to con- vince a person of skill in the art that the inventor pos- sessed the invention and to enable such a person to make and use the invention without undue experimentation.”).

On limits:

However, although the claim language itself is a qualitative measure, the claim construction pulls directly from the specification to give the term “substantially all” a quantitative definition, specifically, “at least 90%, and preferably greater than 95%,” ’183 patent col.2 ll.62-65, and this court has previously concluded that the doctrine of equivalents is not foreclosed with respect to claimed ranges, see Adams Respiratory, 616 F.3d at 1291-92. In Kemin Foods, the court construed “substantially free from other carotenoids” to mean “significantly less than 10% of other carotenoids” based, in part, on the specification stating that “[g]enerally, the concentration of other carotenoids in the starting material should be 10% or less.” Kemin Foods, L.C. v. Pigmentos Vegetales Del Centro S.A. de C.V., 464 F.3d 1339, 1349 (Fed. Cir. 2006). The court determined that because Kemin did not argue that “sig- nificantly less than 10%” has a precise upper limit a reasonable person could determine that a concentration of 6.14%-9.86% does not infringe under the doctrine of equivalents. Id. Similarly, in this case, Pozen never stated that “at least 90%, and preferably greater than 95%” should be an absolute floor. Under the doctrine of equivalents a tablet layer with 85% of the agent can be fairly characterized as an insubstantial change from a tablet layer with 90% of the agent.

Thursday, September 27, 2012

Alkaline hydrolysis: for dead bodies and other things

The CAFC case Matthews v. Biosafe pertains to unusual subject matter:

Matthews is a leader in the “death care” industry. It manufactures cremation equipment, caskets, and bronze memorials and sells them to funeral homes. Matthews is currently marketing a Bio CremationTM product, which uses an alkaline hydrolysis1 process, rather than incin- eration, to cremate human remains. According to Mat- thews, the Bio CremationTM equipment offers an “environmentally friendly” alternative to traditional flame-based cremation.
n 2007, Biosafe Engineering, LLC and Digestor, LLC (collectively “Biosafe”) were formed to operate the busi- ness acquired from a bankrupt company, Waste Reduction by Waste Reduction, Inc. (“WR2”), and to hold the patents acquired from WR2. Biosafe ultimately acquired several patents related to the application of alkaline hydrolysis to the disposal of various types of waste, such as medical waste, infectious agents, and hazardous materials. These patents include five method patents, U.S. Patent Nos. 5,332,532, 6,437,211, 6,472,580, 7,183,453, and 7,829,755 (collectively the “Method Patents”), and one system pat- ent, U.S. Patent No. 7,910,788 (the “System Patent”).

The legal issues:

On February 28, 2011, Matthews filed suit against Biosafe, seeking a declaratory judgment of non- infringement, invalidity, and unenforceability of the Method Patents. Matthews also asserted state-law claims of trade libel, defamation, and tortious interference with contractual relations.

Wednesday, September 26, 2012

Ph.D. thesis: cited in 2003 but forgotten by 2009?

A post titled Alumnus spurns PhD over plagiarism row discusses plagiarism charges brought by a former Ph.D. student against his advisor.

The student, who got his Ph.D. at the University of Leeds but now wants to renounce it, seems to raise a strong argument to which the university does not have a good response:

Dr Parmar noted in his appeal that professors Wood and Baird had cited his thesis in a 2003 book. In his official response, David Hogg, pro vice-chancellor for research and innovation at Leeds, accepted this made it "a little less likely" that they had forgotten the thesis by 2009, but said their explanation remained "credible".

This fact pattern would make a good hypo for inequitable conduct in patent law. This of course is more than "forgetting" a reference after six years; it involves forgetting research that was directed by the professor/copyist, presumably making it more memorable than some random paper once seen.

One could say this would make a good plot line for Law & Order, but Law & Order already did it.,

There apparently is no procedure for renouncing a degree: Dr Parmar was "disgusted" with this verdict and has asked to "resign" both his PhD and a prior BSc. The university said there was no procedure for doing so but that he could be removed from its list of alumni.

Obama, the Emancipation Proclamation, and copying from wikipedia

An article in the Washington Times titled Obama garbles U.S. history in human trafficking speech contains the text:

In making an impassioned plea for the international community to crack down on trafficking, Mr. Obama pointed out that his speech at the Clinton Global Initiative was taking place a few days after the 150th anniversary of President Lincoln issuing the Emancipation Proclamation in 1862.

“With the advance of Union forces, it brought a new day — that all persons held as slaves would thenceforth be forever free,” Mr. Obama said.

Actually, the Emancipation Proclamation freed slaves in 10 Southern states who were, at the time, mostly beyond the control of the federal government. And the document didn’t free an estimated 500,000 slaves in four slave-holding border states — Missouri, Kentucky, Maryland and Delaware — that were loyal to the Union. Slavery was ended in those states by various state and federal actions later on.

The article is correct that the impact on slavery was limited. Most importantly, the Emancipation Proclamation did not end slavery, so the idea that "all persons held as slaves" would be free, by virtue of the Emancipation Proclamation, is simply wrong.

In turn, however, the Washington Times article merely grabbed from wikipedia, which states:

The Proclamation applied only in ten states that were still in rebellion in 1863, thus it did not cover the nearly 500,000 slaves in the slave-holding border states (Missouri, Kentucky, Maryland or Delaware) which were Union states — those slaves were freed by separate state and federal actions.

Monday, September 24, 2012

Unspecified production problems cause Gevo to go from isobutanol to ethanol!!

from Bloomberg on 24 September 2012:

Gevo Inc., a U.S. biotechnology company backed by French oil company Total SA (FP) and specialty- chemicals maker Lanxess AG (LXS), will shift to ethanol at its Luverne, Minnesota, plant and stop producing isobutanol, the more complex product the facility has been making since May.

Minnesota Public Radio stated:

In another ethanol development, Gevo will resume fuel production at its plant in Luverne. Gevo began producing isobutanol, another corn-based alcohol, at the facility earlier this year. But Gevo says it has run into some unspecified production problems and will temporarily go back to ethanol.

Was there some gamesmanship involved in the earlier isobutanol run related to the patent infringement/injunction issue?

UPDATE: Bloomberg noted on 2 October 2012:

Based on December contracts for ethanol and corn, plants are losing about 39 cents on each gallon of the biofuel [ethanol] produced, according to data compiled by Bloomberg. That doesn’t include profit from the sale of dried distillers’ grains, a byproduct of ethanol production that can be fed to livestock.

Note also Biofuel Energy idles Minnesota ethanol plant

"The Hills Have Thighs"?

On Sept. 24, 2012, Jay Leno included "The Hills Have Thighs" as an erroneous headline.


"But I’m not a serial plagiarist"

Harvard grad gets life in prison without parole

A Harvard educated University of Alabama professor was sentenced to life in prison.
From a Boston Globe blog

A Harvard-educated biologist was sentenced to life in prison without parole Monday after being convicted of going on a shooting rampage during a faculty meeting at an Alabama university, killing three colleagues and wounding three others in 2010.

The jury deliberated for about 20 minutes before convicting Amy Bishop. The former professor at the University of Alabama in Huntsville showed no reaction as the verdict was read.

The professor apparently was not happy with a tenure decision.

See previous IPBiz post
[Deliverable] business method on ending academic tenure

The situation seemed to come to a head in February 2010, when Professor Amy Bishop from University of Alabama at Huntsville took matters to the next level in allegedly “disagreeing” with the tenure process there. University administrators across the country were struck by what has been considered the ultimate stalemate breaker.

Time warp?

IPBiz is getting a number of hits for the post
Bad calls in the Patriots/Ravens game?

With respect to the numerous complaints about calls by replacement officials in games on September 23, 2012, one notes that the above-mentioned IPBiz post is about bad calls by regular officials in January 2012.

The earlier post included a bad call when Gronkowski had the ball; a non-call on September 23 involved Gronkowski getting tackled, when he did not have the ball. A discussion of calls on September 23, 2012 would be rather lengthy. [From on the Patriots game of 9/23: The replacement crew, led by Bruce Hermansen, called 24 penalties for a total of 218 yards. Several fights broke out, and the refs seemed to alternate between letting the players play to a ridiculous degree and throwing flags at everything that moved. ]

As to intellectual property, one could make some reference to previous IPBiz posts on doughnut makers.

***Separately, from an interview with former Rutgers coach Greg Schiano:

On his thought process at the conclusion of the game against the Giants last week:

“It’s a play that we have in our playbook; it’s actually created fumbles in the past. So when we use that play and we get the ball back and we have a chance to score, that’s what we’re going to do. We did it over the years in college at Rutgers and we did get the ball to come loose. It’s not that I’m guessing or hoping that it works; it’s not what people say it is, diving at knees – that’s totally not what it is. We have a chance in a one-score game to win the game. We’re not going to stop playing.”

On the argument that it is an “unwritten rule” you do not do that:

“I know one unwritten rule: we have to win. And if we still have a chance to win, we’re playing to win. Now if it’s a game that is out of reach and you do it, sure. But I wouldn’t put my own guys in harm’s way. Forget anybody else’s guys.”

On if Tom Coughlin and Eli Manning are justified to take offense to what the Buccaneers did:

“I don’t think they understood what our expectations were, why we did it. They misinterpreted it, they thought it was something violent – but a lot of people thought that. People don’t get the facts and I don’t particularly care.”

Text from Schiano Does It Again

Presumably, someone will look up "how many" fumbles were created by Rutgers, and whether or not any of the fumbles led to a score by Rutgers.

Sunday, September 23, 2012

CBS "60 Minutes" on 23 September 2012

Scott Pelley interviews Mitt Romney. How does Romney plan to accomplish his objectives? How does Romney's vision differs from that of President Obama's. R: Obama's vision is larger government, more stimulus, and more spending. Romney: keep government as a facilitator. Pelley: before, in Mass., you were pro-choice. Pelley: some people have an idea that you are not constant. R: gave examples of Obama changing, but Pelley came back: "but what about you?"

Small government, reform of social security, lower taxes. Tax rates will go down 20%, but deductions will go down. Tax rate for everyone will go down. Pelley got into capital gains. R. noted company taxed first, then capital gains. Pelley: which taxes are going to be eliminated? Devils in the details. Pelley: you talk about balancing the budget without raising taxes. R: I am going to repeal Obama-care. I'm going to cut back on the size of the government itself. Programs to states: Medicaid, foot stamps. Cap the growth on social welfare programs. Pelley: why won't this throw us back into recession. Pelley: social security and medicare are 1/3 of federal budget. R: Medicare plan will stay the same. More means testing. People will have a choice of government run, fee for service, healthcare. Pelley: how would you change social security? Higher income folks would receive a little less.

Pelley: what is it specifically you are asking American people to sacrifice?

Steve Kroft interviews Barack Obama.

Pelley to R: what are the qualities of a leader? Having a vision, based on life experience. Pelley notes David McCullough states that great presidents learn.

Pelley: what's your big idea? R: freedom.

Kroft: what are the essential qualities of leadership? Obama: setting a course. I try to constantly present a vision of America where everybody's got a shot.

Kroft: David McCullough has noted great presidents have had a good understanding of history. Obama: persistence, being able to stay buoyant in the face of obtacles.

The first presidential debate is October 3 on CBS.

CBS Sunday Morning on September 23, 2012

Charles Osgood introduced the stories for September 23, 2012, the first full day of fall. The cover story was by David Martin. Second story was Bill Whitaker on art at Cedars of Sinai Hospital, a recycled story. Third, Anthony Mason on the band No Doubt with Gwen Stefani. Fourth, Rita Braver on Nora Roberts. Also, stories by Mark Strassman and Steve Hartman.

Headlines. Pakistani official has placed a bounty on the maker of the anti-Islam film.
The State Department is taking CNN to task for publishing excerpts from the journal of Chris Stevens, which suggested the present of security issues in Libya. Egypt's new president suggests US should take different tact with Arab world.[Mohamed Morsi said the United States needed to fundamentally change its approach to the Arab world, ] Salmonella outbreak from peanut butter at Trader Vic's. The man who entered tiger cage at Bronx Zoo has been charged. Drummer from Grateful Dead [Mickey Hart ] at AARP Convention in New Orleans: Music has therapeutic powers. Sweet 16 party in Netherlands crashed by thousands [3000 descended on Haren].

Weather. Fall-like. Rain in coming week, other than in northeast.

The cover story was "Starting Over" by David Martin on Medal of Honor winner Dakota Meyer. A five hour fire fight in Afghanistan. Medal of Honor ceremony was last October. Book "Into the Fire," by Dakota Meyer. Dakota described trying to kill an Afghan with a 203 grenade launcher, and then killing him with his bare hands. Meyer was sent out of Afghanistan early for PTSD. Meyer went home to Kentucky. It's hard living here; it's easy fighting. Meyer's father was interviewed. Meyer slept with a weapon for three months. Meyer started drinking. Kept a pistol in his Trailblazer. Tried to commit suicide. Meyer went to work in construction. Call for Medal of Honor made during Meyer's lunchbreak. Meyer had a beer with Obama. Whether you support Obama or not, nobody can say Obama is not a successful man. Meyer set up a scholarship fund. Text from Meyer's blog was included in the interview.

Almanac. Sept 23, 1939, the day Sigmund Freud died. Movie: A Dangerous Method. The Seven Percent Solution (Freud and Holmes). Quip from Annie Hall. Robert Mankoff New Yorker cartoonist. Song by Chad Mitchell Trio.

Bill Whitaker on art in Cedars of Sinai Medical Center, hiding in plain sight. John T. Lang is curator. LA's little secret. Thousands and thousands of pieces. Andy Warhol. Create an environment conducive to healing. Photographs by Lee Weaver of John F. Kennedy (related to patient with Addison's Disease). Surgeon in Chief of Cedars interviewed; benefits extend to everyone in most unexpected ways. Simon Weisman.
While in hospital, Jackson Pollock helped him with memory. Leonard Nimoy interviewed. Hospital is not a place to dump art. Book "Rebels in Paradise." On wall: Beautiful in My Eyes."

Clip. I could have been a contender by Marlon Brando. Elia Kazan's grand-daughter Zoeinterviewed by Mo Rocca. "It's complicated." "Revolutionary Road." Elia wrote A Streetcar Named Desire. Screenplay Ruby Sparks. A narrative nerd. Calvin dreams up Ruby. Calvin can control Ruby. Rocky transition from what is imagined, to loving someone warts and all. A fiction totally willing to believe. Value in sitting there and thinking up stories. Tell them beforehand what I want to hear. I need you to be parents. Zoe went to Yale University. Elia was a very present tense person. Splendor in the Grass is Zoe's favorite. Zoe has not seen A Tree Grows in Brooklyn.
Zoe is 29.

Steve Hartman on 64 year old Peter DraKos from Detroit. Cedar Point Amusement Park in Sandusky, Ohio. Started playing carnival games at age 9. A weekend at Circus Circus in Las Vegas. Winning stuffed toya. He has donated a quarter of a million toys to charities. Recycled from August 24, 2012

Osgood on annual Emmy Awards. Big Bang vs. Thirty Rock. Curb Your Enthusiasm.
Drama. AMC's Mad Men. Breaking Bad. Boardwalk Empire. Homeland. Mark Strassman on Homeland.

Demons in post 9/11 world. Unstable CIA agent trying to stop home grown terrorist. Golden Globe for Claire Danes (Homeland). Hold a mirror to our times. Brimming with anxiety. Mandy Patinkin: desparately trying to find common ground in violence. Who's good; who's bad. Sergeant Brody. (Damian Lewis). Brody is a victim of war, eviserated by war. Carrie as Cassandra like character. Brody aborts his suicide plot at last minute. Lewis invited to White House dinner. Sound stage in Charlotte, North Carolina. Howard Gordon. A message is for propaganda. Now, Nicholas Brody elected to Congress. Pose a lot of questions in first season; answer the questions in second season? [Also in Homeland: Morena Baccarin ]

The New Season in books. Sales of printed books down 14% in last year. Average book reader is 44, but average age of buyer is 50. "Fifty Shades" and "Hunger Games".

Nora Roberts interviewed by Rita Braver. Angel's Fall. Interesting and strong. One of the top selling authors in the world. 400 million books in print. Independent heroines. First Romance writer to steer away from helpless heroine. J.D. Robb detective series. Characters are pretty. You want characters to have fabulous sex. Home in rural Maryland since 1972. Marooned in snow storm in 1979; started writing. Notebook with a pencil. Publishers rejected her. First novel published in 1981. Since then, more than 200 books. She spends 6 to 8 hours a day in her home office. Writing is never easy. 19 Romance writers of America awards. Inn in Boonesboro, Maryland restored. Elizabeth and Darcy from Pride and Prejudice. Jane and Rochester. Eve and Roarke. Acrylic chair. Her son owns local pizza joint. Husband owns bookstore. Welcome to Nora World. Now age 61. What would I do with all those stories; they would be crowding my head.

"It's My Life" by No Doubt. Band members interviewed by Anthony Mason. No Doubt has sold more than 33 million albums. Don't Speak and "It's My Life." Now the band is back. Gwen Stefani. Push and Shove. Stefani is now 42. Cover girl and fashion designer. A lot of great problems. California Club Scene; Anaheim in 1986. Stefani's brother Eric. Tony Canal, bass player. The Whisky. Old Ledgers of band's expenses. Stefani was sales girl in clothing store for older women. Polyester pants and makeup counter. Tony and Gwen split in 1994. Don't Speak. Hit #1 in 20 countries. That was the girl I used to be; Tragic Kingdom. Stefani launched three clothing lines. How do you manage all these Gwen Stefanis? Hardest job of all is being a mother. "No Doubt" is a family of its own.

New season is under way. A letter complained about repeated segments during the summer. Memorable enough to merit another airing. Complaints about commentary by Tavis Smiley. Please have Mo Rocca cut his hair. Comments about Sunday Morning? Write to 524 W. 57th St. or email to sundays at

Campaign 2012. Obama with 332 electoral votes? Obama outraised Romney. Obama spent 236 million on campaign advertising, far more than Romney. There are 44 days to election day.

Bob Schieffer interviews Bill Clinton.

Next week on Sunday Morning: "we get to the point."

Moment of Nature. Pradaxa. Cape Cod. Seals, without a shark in sight.

Saturday, September 22, 2012

At the 2pm 9/22 Basilone Concert at RVCC

Friday, September 21, 2012

Another CAFC case on inequitable conduct

See OUTSIDE THE BOX INNOVATIONS for CAFC case on inequitable conduct.

Thursday, September 20, 2012

BPAI explains 131 Declarations in LARGAN v. Fujifilm

The principles of law in the Largan case were:

Where activities disclose one of more embodiments of a single
claimed invention, as opposed to species of a claimed genus, the filing of an affidavit under 37 C.F.R. § 1.131 showing prior completion of a single embodiment is sufficient. In re Fong, 288 F.2d 932, 936 (C.C.P.A. 1961). “Since we disagree with the theory that there are numerous species here and ‘specific’ and ‘generic’ claims, we see no applicability of the cases relating to genus and species situations.” Id.

“To render a later invention unpatentable for obviousness, the prior art must enable a person of ordinary skill in the field to make and use the later invention.” In re Kumar, 418 F.3d 1361, 1369 (Fed. Cir. 2005) (citing Beckman Instruments, Inc., v. LKB Produkter AB, 892 F.2d 1547, 1551 (Fed. Cir. 1989) and In re Payne, 606 F.2d 303, 314-15 (CCPA 1979)).

Within the case:

A patent applicant should be able to claim an invention with some breadth, assuming that the claimed breadth is supported by what the inventor has made. For example, if that applicant wishes to recite a “convex lens” as merely a “lens” in a claim, that claim is not improper or indefinite if the applicant has not shown efficacy of the subject matter covered by that claim for every type of lens that could possibly be employed. If a claim is not fully supported, during the prosecution of a patent application, a rejection under 35 U.S.C. § 112, first paragraph, with respect to written description may be appropriate. However, with respect to establishing of prior invention under 37 C.F.R. § 1.131, a showing of a prior completion of a single embodiment is sufficient. Thus, we find that the disclosure of the configuration illustrated in Exhibit A (FF 3) of the Sato Declaration, providing a f1/f ratio value of 1.787, is sufficient to establish that the subject matter of claim 1 of the '191 Patent was within the inventor’s possession prior to the filing date of Yamaguchi.


Calling a broad claim term, in the predicable arts, a genus does not provide greater clarity to the patent process, and would likely needlessly complicate that process. Additionally, the breadth of a claim alone is not a rationale for rejecting such a claim. In re Miller, 441 F.2d 689 (C.C.P.A. 1971). Thus, we find that the disclosure of an aperture in Exhibit A (FF 3) of the Sato Declaration, which would have been understood to be an aperture stop (ACP 8; Resp. Br. 20), is sufficient to establish that the subject matter of claim 1 of the '191 Patent was within the inventor’s possession prior to the filing date of Yamaguchi.

Of re-examination:

As the Examiner states, reexamination is limited to prior art consisting of patents and printed publications, per 35 U.S.C. §§ 301-302 (ACP 9). Even if the Sato Declaration contained evidence of public use or sale, or the lack of disclosure of best mode, neither we, nor the Examiner, can proffer rejections in this inter partes reexamination over such evidence. Appellant, being the requester in this proceeding, must abide by the rules thereof.

Note also

Additionally, Appellant argues that the secondary references, such as Minefuji, would have motivated one of ordinary skill in the art to have modified Yamaguchi to incorporate the claimed f3/f ratio (Supp. App. Br. 23). However, we find Appellant’s point, raised in another portion of their Brief, to be more compelling: “[i]t is well known in the art of optical lens technology that even a slight change in one of the three components will effectively create an entirely different single focus lens” (Supp. App. Br. 14). Given Appellant’s proscription against “slight changes,” we do not find Appellant’s motivation, in view of Minefuji or other references, to be sufficient to overcome such a proscription or to show any likelihood of success. As such, we do not find Appellant’s arguments to be persuasive of err by the Examiner in not adopting rejections of the claims.

"In re Best" cited in BPAI's Ex part Devries

The BPAI affirmed both anticipation and obviousness rejections in Ex parte DEVRIES .

In re Best was cited:

once the Examiner establishes that a product recited in terms of its process of making is prima facie unpatentable due to anticipation, Appellants bear the burden of proving “that the prior art products do not necessarily or inherently possess the characteristics of his claimed product.” Id. at 698 (quoting In re Fitzgerald, 619 F.2d 67, 70 (CCPA 1980); In re Best, 562 F.2d 1252, 1255 (CCPA 1977)).

BPAI affirms obviousness in Ex parte Diez

From the BPAI decision in Ex parte Diez :

“The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference . . . . Rather, the test is what the combined teachings of those references would have suggested to those of ordinary skill in the art.” In re Keller, 642 F.2d 413, 425 (CCPA 1981). See also In re Sneed, 710 F.2d 1544, 1550 (Fed. Cir. 1983) (“[I]t is not necessary that the inventions of the references be physically combinable to render obvious the invention under review.”); In re Nievelt, 482 F.2d 965, 968 (CCPA 1973) (“Combining the teachings of references does not involve an ability to combine their specific structures.”) Rather, “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill.” KSR at 417.

Here, a person of ordinary skill in the art would recognize how to use the teaching of Bonny to improve the device of Hayashi in a similar way and the actual application would not be beyond his or her skill.

Wednesday, September 19, 2012

Could Gevo and Butamax settle?

From the end of a post titled Legal fight over bio-based isobutanol production concerning the patent fight between Gevo and Butamax:

Brett Lund, Exec VP and GC of Gevo: "Gevo would of course be willing to resolve this dispute on appropriate terms."

Real life Manhattan catches up with CSI: NY, two years later

More than two years ago, in March 2010, IPBiz discussed an episode of CSI: New York involving fake "gold bars" which amounted to gold plated tungsten. See
CSI: NY does salted gold and green (cyanobacterial) beer
including text:

The gold bar in question was gold-plated tungsten, with Mac observing tungsten and gold had the same density. Au is 19.3 g/cc and W is also about 19.3. [Of salted gold, see kitco: In October,[2009] the Hong Kong bankers discovered some gold bars shipped from the United States were actually tungsten with gold plating

Flash forward to September 2012, and a story on Fox:

In jewelry stores on 47th Street and Fifth Avenue in Manhattan, the important trust between merchants has been violated. A 10-ounce gold bar costing nearly $18,000 turned out to be a counterfeit.

The bar was filled with tungsten, which weighs nearly the same as gold but costs just over a dollar an ounce.

Ibrahim Fadl bought the bar from a merchant who has sold him real gold before. But he heard counterfeit gold bars were going around, so he drilled into several of his gold bars worth $100,000 and saw gray tungsten -- not gold.

What makes it so devious is a real gold bar is purchased with the serial numbers and papers, then it is hollowed out, the gold is sold, the tungsten is put in, then the bar is closed up. That is a sophisticated operation.

So, tungsten filled gold had shown up in Manhattan two years before the Fox report.

In the IP area, Mark Lemley had talked about "gold-plated" patents. One wonders if this is what he had in mind?

Tuesday, September 18, 2012


From Kelly McBride at Poynter:

Patchwriting is often a failed attempt at paraphrasing, Howard said. Rather than copying a statement word for word, the writer is rearranging phrases and changing tenses, but is relying too heavily on the vocabulary and syntax of the source material. It’s a form of intellectual dishonesty that indicates that the writer is not actually thinking for herself.

In her study, called the Citation Project, Howard and her colleagues wanted to see exactly how students were using sources in their papers. Their theory is that if professors know what the weaknesses are, they can teach students to make better use of their sources.

Howard and her partners coded 174 composition papers written by students enrolled at 16 different colleges, ranging from community colleges to Ivy League universities. Howard concluded that 17 percent of writing in the average college term paper is patchwriting. She didn’t find much plagiarism at all.

I first heard Howard describe patchwriting at a conference on writing integrity earlier this year at Poynter. And when I looked closely at her examples, I realized that journalists utilize patchwriting as well.

"Teaching away" in In re Baker

From the BPAI decision of In re Baker

“‘A reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant.’” Ricoh Co., Ltd. v. Quanta Computer, Inc., 550 F.3d 1325, 1332 (Fed. Cir. 2008) (quoting In re Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006)). Here, Crowther teaches away from the claimed limitation wherein an exclusive media type, such as voice calls, may be interrupted by other non-exclusive media type contacts, such as e-mails. Crowther specifically teaches that “[t]he highest level of interruptibility is defined as level 1 [i.e., the claimed exclusive media type], meaning that requests being handled by agents from skillsets at this level cannot be interrupted by requests at lower level of interruptibility [i.e., the claimed non-exclusive media type].”

Obviousness undone: no requisite reason

Back in March 2012, IPBiz critiqued an episode of CSI for its assertions about molten pyrite. Flash forward to September 2012, and we have a BPAI decision related to a patent application on laying down pyrite, In re Takahashi.

Therein, the appellants actually won on the point of obviousness:

Appellants contend that the Examiner’s rejection does not provide the requisite reason, suggestion or incentive to combine the cited prior art, with a predictable and reasonable expectation of success, to arrive at the recitations of the pending claims (Reply Br. 3).

The preponderance of the evidence favors Appellants’ arguments of nonobviousness.


However, the Examiner has not satisfied the burden of establishing that Sasaki’s disclosure of a suitable “high temperature” and Fe/S flux ratio for vacuum deposition processes would have been reasonably applicable to other non-vacuum methods.

Previous IPBiz post:
Pouring molten pyrite?

In re Perricone: BPAI cites In re Best

As to an appeal by Nicholas Perricone to the BPAI, the bottom line: The cited references support the Examiner‟s anticipation and obviousness rejections.

From within the decision:

Where . . . the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product.... Whether the rejection is based on “inherency” under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO‟s inability to manufacture products or to obtain and compare prior art products.

In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (emphasis added.)

As to obviousness:

“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).

Our mandate is to give claims their broadest reasonable interpretation. In re American Academy of Science Tech Center, 367 F.3d 1359, 1364 (Fed. Cir. 2004). “An essential purpose of patent examination is to fashion claims that are precise,clear,correct,and unambiguous. Onlyinthiswaycan uncertainties of claim scope be removed, as much as possible, during the administrative process.” In re Zletz, 893 F.2d 319, 322 (Fed. Cir. 1989).

CAFC finds fault with decision of Judge Robinson of D. Del.

In the case Medtronic v. Boston Scientific , the CAFC vacated a decision by Judge Sue Robinson of D. Delaware:

The district court entered judgment of noninfringement in favor of Medtronic and judgment of validity and enforceability in favor of MFV. Medtronic, Inc. v. Boston Scientific Corp., No. 07- CV-0823 (D. Del. Mar. 30, 2011). MFV appeals the district court’s judgment of noninfringement and Medtronic cross appeals the district court’s claim construction on which its judgment of validity is based.1 Because the district court relied on a legally incorrect allocation of the burden of proof to find noninfringement in the limited circumstances of this case and incorrectly construed the claim terms in question, this court vacates and remands.

The CAFC noted:

The question before us arises as a consequence of the Supreme Court’s decision in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007). In MedImmune the Court found declaratory judgment jurisdiction notwithstanding the fact that the declaratory judgment plaintiff licensee continued to make royalty payments pursuant to a li- cense. The Court reasoned that a licensee should not be forced to cease royalty payments and risk infringement liability before the licensee can challenge the extent of coverage of the license. MedImmune, 549 U.S. at 134. Thus, MedImmune provided licensees with a shield from the economic consequences of challenging their licensors’ patents while enabling those licensees to file declaratory judgment suits to clarify the rights and obligations of the parties under their license agreements. This case re- quires us to determine the proper allocation of the burden of persuasion in the post-MedImmune world, under cir- cumstances in which a declaratory judgment plaintiff licensee seeks a judicial decree absolving it of its respon- sibilities under its license while at the same time the declaratory judgment defendant is foreclosed from counterclaiming for infringement by the continued exis- tence of that license.

Generally, the party seeking relief bears the burden of proving the allegations in his complaint. See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 56-57 (2005). “Perhaps the broadest and most accepted idea is that the person who seeks court action should justify the request . . . .” Schaffer, 546 U.S. at 56 (quoting C. Mueller & L. Kirkpatrick, Evidence § 3.1, p. 104 (3d ed. 2003)). “The burdens of pleading and proof with regard to most facts have been and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion.” Id. (quoting 2 J. Strong, McCormick on Evidence § 337, p. 412 (5th ed. 1999)).


It is, of course, well settled that a patentee who files a complaint or counterclaim alleging patent infringement bears the burden of proving that infringement. See Under Sea Indus., 833 F.2d at 1557; In re Tech. Licensing Corp., 423 F.3d 1286, 1288-89 (Fed. Cir. 2005); see also Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1327 (Fed. Cir. 2007); Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1535 (Fed. Cir. 1991). In the absence of a license, this court has recognized “that when the same patent is at issue in an action for declaration of non-infringement, a counterclaim for patent infringement is compulsory and if not made is deemed waived.” Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 802 (Fed. Cir. 1999).

The substantive burden of proof normally does not shift simply because the party seeking relief is a counter- claiming defendant in a declaratory judgment action. See In re Tech. Licensing Corp., 423 F.3d at 1288-89 (citing In re Lockwood, 50 F.3d 966, 976 (Fed. Cir. 1995) and recog- nizing that a declaratory judgment action of invalidity with an infringement counterclaim is nothing more than an inverted infringement suit); Ranbaxy Pharms. Inc. v. Apotex, Inc., 350 F.3d 1235, 1237, 39-40 (Fed. Cir. 2003) (requiring patentee seeking preliminary injunction on infringement counterclaim to show inter alia a likelihood of proving infringement).

To the point:

In contrast, regarding the patents at issue here, MFV seeks nothing more than to be discharged from the suit and be permitted to continue the quiet enjoyment of its contract.2 In other words, it is Medtronic and not MFV that is asking the court to disturb the status quo ante and to relieve it from a royalty obligation it believes it does not bear. Consistent with the above, for the court to disturb the status quo ante, Medtronic must present evidence showing that it is entitled to such relief. If neither party introduced any evidence regarding infringement or noninfringement there is no principled reason why Medtronic should receive the declaration of noninfringement it seeks.

This analysis is fully consistent with other areas of the law.

As to claim construction:

Rather, claim terms should generally be given their ordinary and customary meaning unless “1) when a patentee sets out a definition and acts as his own lexicographer, or 2) when the patentee dis- avows the full scope of a claim term either in the specifi- cation or during prosecution.” Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). “To act as its own lexicographer, a patentee must ‘clearly set forth a definition of the disputed claim term . . . .’” Id. (quoting CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)). And “[w]here the specifica- tion makes clear that the invention does not include a particular feature, that feature is deemed to be out- side . . . the patent,” even if the terms might otherwise be broad enough to cover that feature. Id. at 1366 (internal citation omitted).

Here, the district court did nothing more than append the limitation “for the treatment of congestive heart failure,” onto the ends of the disputed claim terms. Opinion at 12-14. This unquestionably added a limitation. This would only have been proper if the patentee specifi- cally defined the terms to include that limitation, or disavowed their otherwise broad scope. While the specifi- cation explains the use of the invention to treat congestive heart failure, it also discloses the invention’s value in treating other diseases. See, e.g., RE’119 Patent col. 3 ll. 13-15 (“an objective of the present invention is to . . . [treat] a heart experiencing a conduction defi- ciency.”).

MTV, Jersey Shore, and reinvention

Chris Linn of MTV on Jersey Shore:

The show continues to do incredibly well in the ratings. Even in its last season it was the No. 1 show in 12-34 each week. We didn't even get to a step to discuss negotiating for another option and other season. So it's not a matter of negotiations. It was a decision we made for the good of the franchise and the channel. Our audience also demands reinvention from us. We've had Jersey Shore on our air for a while now and it's burned brightly and been a big piece of who we are, but we don't want to repeat ourselves. We've constantly looking to reinvent. It's a difficult choice to kill your baby, but sometimes you have to do that and move on.

from MTV Explains Why The Situation and His Jersey Shore Pals Had to Go

Monday, September 17, 2012

Patent litigations outlasting litigating companies

An entry at autoblog on 17 Dec. 2009 states:

The Detroit News reports that what's left of the old Chrysler LLC (which has been renamed Old Carco), has filed court papers saying that the $4 billion will likely never be repaid. New Chrysler is not legally responsible for that debt and Old Carco doesn't exactly have considerable assets. And the government isn't the only debt-holder that isn't going to get its cash. Many secured and unsecured creditors will be unlikely to see their cash, thought some $21 million in secured debt could be paid. Old Carco contains the bad assets not purchased by the new Chrysler when it exited bankruptcy in the spring. The sale of those bad assets, which includes plants, tooling and miscellaneous items like old company cars, will help pay back some of the money creditors lost.

Lawyers working on the bankruptcy case say it take years before the book is finally closed on Old Carco. One item that could help drag matters out is a $25 billion lawsuit Old Carco filed against former owner, Daimler.

Fast forward to the CAFC to find Bleak House 2012, in the case LASERFACTURING v, Old Carco :

As a preliminary matter, this court examines jurisdiction. After this appeal was instituted, DaimlerChrysler filed for Chapter 11 bankruptcy protection. This court stayed the appeal pending resolution of the bankruptcy proceedings. During the bankruptcy proceedings, DaimlerChrysler became known as Chrysler LLC, which became known as Old Carco. The Liquidation Trust is Old Carco’s successor-in-interest. Old Carco and Laserfacturing filed a joint stipulation requesting this court to proceed with this appeal.

And the case lives on:

Chrysler Group LLC, who purchased substantially all of the Liquidation Trust’s operating assets, submitted an amicus curiae brief urging this court to dismiss for lack of jurisdiction. Chrysler contends the appeal is moot because Laserfacturing stipulated that it waived its claim against the estate relating to the current litigation.

The stipulated waiver, however, does not resolve the parties’ infringement dispute. As this court explained in Kimberly-Clark Corp. v. Procter & Gamble Distribution Co., settlements generally render a case moot, unless “the case as a whole remains alive because other issues have not become moot.” 973 F.2d 911, 914 (Fed. Cir. 1992) (citing Local No. 8–6, Oil, Chem. & Atomic Workers Int’l Union v. Missouri, 361 U.S. 363, 368–69 (1960) and quoting Univ. of Texas v. Camenisch, 451 U.S. 390, 394 (1981).) In the present case, the stipulation does not address the issue of infringement, which could have downstream effects on the parties or their successors; accordingly, the issue remains live and in dispute. Be- cause the question of infringement is not moot, this court has jurisdiction under 28 U.S.C. § 1295.

Of the disputed claim construction, LaserFacturing wanted a really broad contstruction of the word "sheet":

Laserfacturing argues the specification supports its broad construction of “sheet” as an “element to be welded.” Laserfacturing contends the patent’s welding descriptions are not limited to the court’s construction of a “broad thin piece of material with generally uniform thickness” and references the patent’s description of welding in the prior art for support. ’670 patent at col. 1 ll. 22-26 (“For example, when laser welding metal sheets, the suitable welding speeds that can be achieved are typically a direct function of the penetration depth re- quired. Hence, as sheet thickness increases welding speed typically decreases.”). Laserfacturing argues the art of welding is only concerned with the region being welded and the court’s limitation restricting the word “sheet” to objects having uniform thickness is arbitrary, improperly narrow, and limited to the certain embodi- ments disclosed in the specification.

Washington Post: emphasis through repetition?

From an article in the Washington Post on the Harvard cheating scandal, one notes a certain repetition:

Murphy declined to say how many players who were out of uniform. The most notable absence from the Harvard sideline was junior receiver Matt Brown, who appeared in 10 games for last year’s Ivy League football champions and also played on the Crimson basketball team that reached the NCAA tournament for the first time since 1946.

Asked why Brown was missing, the coach said, “Not able to talk about kids who aren’t here.”

But among those missing from the Harvard sideline was junior receiver Matt Brown, who appeared in 10 games for last year’s Ivy League football champions and also played on the basketball team that reached the NCAA tournament for the first time since 1946.

“Not able to talk about kids who aren’t here,” Murphy said, declining also to give a total number of players who were out of uniform.

See article Harvard largely unaffected by plagiarism scandal as Crimson beat San Diego 28-13 in opener

"We do what we’re coached."

IPBiz has talked about Greg Schiano previously. This grew out of an interest in a "vanish from the internet" discussion by Vai Sikahema, illustrating the perils of future prior art searching ("here today but gone tomorrow").

Schiano is in the news again:

Coughlin yelled at Tampa Bay's rookie coach Greg Schiano after the game, miffed that Manning was knocked down on the final kneel-down because the Bucs went all out to try to force a fumble.

Coughlin said it was unprofessional and might have led to an injury, Manning called it a cheap shot. Schiano, the former Rutgers coach, said his team was just playing to the final whistle and it was not dirty.
Taken from As Eli Manning goes, so go the Giants, beat Bucs

From Schiano, Coughlin and the Unwritten Rules

Buccaneers defensive tackle Gerald McCoy: “We do what we’re coached. I’ll leave it at that.”

There's a lot of that sentiment in patent prosecution. Canards that are repeated, and followed by some.

** One previous IPBiz post on Schiano:

Bergen Record: New Jersey is in the toilet bowl

A lawyer named Thor

The Court of Appeals for the Federal Circuit handles cases OTHER than ones involving patents. It is not a "patent" court. One such case is Evans v. US .

Within the decision one finds text:

One might have supposed that the Government, hav- ing found itself mired in this messy litigation in three different courts, would readily accede to plaintiffs’ pro- posal for a voluntary dismissal of the district court cases. This would get those cases laid to rest and permit the Government to concentrate its efforts on the merits of the Court of Federal Claims case. To so suppose would be a mistake.


Furthermore, we must confess to some puzzlement over exactly what all this sturm und drang7 is about. We must wonder why plaintiffs originally sought on appeal the roundabout course of a remand for the trial courts to reconsider, rather than seeking a simple and straightfor- ward vacature in the first instance. And even more puzzling is why the Government, after Bright was de- cided, pursued the course it chose in the district courts and in this appeal, seeking with every possible argu- ment—even if so thin as to border on the frivolous—to avoid acquiescing in plaintiffs’ effort to have the district court judgments put aside and to proceed on the merits in the Court of Federal Claims.

Footnote 7: See Friedrich Maximilian von Klinger, Der
7 Wirrwarr, oder Sturm und Drang (1776).


In this appeal, it is clear beyond peradventure that these district court cases can play no useful role in the resolution of the merits case before the Court of Federal Claims, which is the only case that now matters in this litigation. Accordingly, in the interest of judicial effi- ciency and economy, we summarily vacate the judgments in these two district court cases, and remand with in- structions that the trial courts promptly dismiss the respective cases without prejudice, nunc pro tunc.

As a footnote to this post, the attorney for the plaintiffs is nicknamed "Thor":

MARK F. (“THOR”) HEARNE, II, Arent Fox, LLP, of Clayton, Missouri, for all plaintiffs-appellants.

Public domain?

In an article about photos taken of the Duchess of Cambridge while on vacation at a relative's home in the south of France in August, the AP stated:

Chi editor Alfonso Signorini told The Associated Press over the weekend that he didn't fear legal action since the photos were already in the public domain following Closer's publication.

The publication of copyrighted photos does not place them in the public domain.

Sunday, September 16, 2012

CBS "60 Minutes" on September 16, 2012: recycled stories

The first story on Meir Dagan was recycled from March 11, 2012:
First story: "The spymaster speaks." Meir Dagan, former chief of the Mossad. He says there may be up to three years to wait before taking military action against Iranian nuclear program. The regime in Iran is a very rational regime. Iran has a basic interest in raising the price of oil, their most important product. Dagan says support Iranian students and minorities. Dagan argues that a pre-emptive Israeli strike this year would be unwise. Dick Cheney says Dagan earlier made case for bombing the Syria reactor

The second story on Drew Rosenhaus was recycled from October 9, 2011. From that post
My clients are like my family. When they hurt, I hurt. Drew has 170 clients. He's 44 and is not married. He signed his first client at age 22 while a student at Duke University Law School. Yung Su Do trained him n karate, conquering fears. Rosehhaus signed 17 players from this year's draft. Plaxico Burress was met by Rosenhaus when Burress was released from prison.

The third story on Adele was recycled from February 12, 2012.

CBS Sunday Morning on September 16, 2012

Charles Osgood introduced the stories for September 16, 2012. However divided our nation appears to be, think about Antietam, 150 years ago. The cover story is by Serena Alschuler on Antietam. Picture of the Bloody Cornfield. Second, Vin Scully of the Dodgers is interviewed by Lee Cowan. Talking baseball. Tracy Smith does the rock band Heart. Ann and Nancy Wilson. Mo Rocca on connect the dots, polka dots. Kusama. Seth Doane, Rita Braver, Erin Moriarty.

Headlines. Four American soldiers killed in Afghanistan. Leave Sudan and Tunisia. Filmmaker questioned in Los Angeles. FBI arrested teenager in Chicago who was going to bomb. Teachers rallied in Chicago about settling the strike. British royal family on topless photos of Kate. Team owners did lock out in NHL. Weather: sunny and clear in northeast.

Serena Alschuler on Antietam Sept 17, 1862. A man fell every two seconds for 12 hours.
A cornfield near Sharpsburg, Maryland. Letter of Wilder Dwight, a Union colonel. Handwriting changes: I am wounded. Death and the Civil War. Serena referred to "Rick" Burns as opposed to Ken Burns [!] Pictures of Bloody Lane. By sunset, 4000 dead, 19,000 wounded. Photography was described as a "new" invention. Drew Faust, President of Harvard. No formal process for notifying next of kin. All of this would change. About half of casualties were not identified. Lee's army was pushed back. Five days later Lincoln issued the preliminary emancipation proclamation. Freedom for 4.5 million Americans. Quote: a country without a father vs a father without a country. a year later and hundreds of thousands of deaths [?] later. Quote from Gettysburg Address ended the piece.

Sept. 16, 1898. 114 years ago. Birthday of H.A. Rey [ Hans Augusto Rey ] of Curious George. Living in Paris in 1940. Brought MS and drawings for first Curious George taken to New York in 1941. Margaret died in 1996. Clip of 1966, Curious George goes to the Hospital. TV series. In 2006, movie with Will Farrell as voice. In 1994, in Forrest Gump. [ Man with the Yellow Hat, modelled after Adlai Stevenson. ]

"Connect the Dots" by Mo Rocca on the Princess of Polka Dots, artist Yayoi Kusama, who has a retrospective at the Whitney Museum. Matusmoto, Japan. Kusama wrote to Georgia O'Keefe and O'Keefe wrote back. The idea of layering and constant repetition. "I am here." In 2008, one work sold for $5.1 million. Kusama and happenings in 1960. Life in New York very untraditional. Body painting. Danglings: look like yams and sausages. Designer Mark Jacobs. Illustrations in new release of Alice and Wonderland.

Vincent Edward Scully by Lee Cowan. Bobble-head of Vin Scully at Dodger Stadium. Sound track of Dodgers since 1950. Vin is now 84. Perfect game of Sandy Koufax. Vin is a story teller. Valenzuela's no hitter: if you have a sombrero, throw it to the sky. I would be scared to death of having something so precious I could not wait to get it on the air. Aaron's 715th home run. The 1986 world series, and Buckner's error. Kirk Gibson's walk-off home run. Grew up in the Bronx. Four legged radio. Crowd noise like water out of showerhead. Red Barber noted Scully had something special. By age 25, Scully was announcing World Series. Scully is from another generation. A.J. Ellis hits home run; go to twitter. "The Vin Scully Show." Pitch man for razor blades. He has 16 grandchildren. He has signed on for his 64th season.

Rita Braver on 57 year old French model Carine Roitfeld. Party during New York's Fashion Week. Website "The Cut." She follows her own instincts. Iconoclast. Fashion journalism. Book "Irreverent." Porno-sheik. Seduce people by what you wear. Carine is a shy person: hair over her face. She has been with partner for 32 years, with two kids. Was Editor-in-chief of Vogue Paris. Rivalry with Anna Winter?
Collaboration with Tom Ford, using young models. After 10 years, she left Vogue Paris. CR Fashion book.

Philip Seymour Hoffman piece by Edelstein preceded by an ad for "The Master." References to a controversial religion. Clearwater, FL is home to Church of Scientology. Paul Thomas Anderson may be modeled on L. Ron Hubbard [?] Lancaster Dodd is main character. Movie is a tug of war between Anderson and Freddie Quell
( Joaquin Phoenix ). A cautionary tale for everyone. Also, Searching for Sugar Man.
with Clarence Avant.

Next, piece on band Heart by Tracy Smith. One of music's longest running sister acts. Band emerged in the 1970's. Has sold more than 30 million albums. Ann Wilson and Nancy Wilson. The hit "Barracuda"

Erin Moriarty on "West Memphis Three." Damien Echols was sentenced to death. Jessie Misskelley, Jr.
Damien Eccles and Jason Baldwin of West Memphis Three. Laurie Davis. Johnny Depp. Piece done on 48 hours, including Johnny Depp. December 2010, the Arkansas Supreme Court ordered a new hearing. Then, an unusual plea deal. Steven Braga. An Alfred plea. "This is not a just result. This is a compromise result." Damien went to New York City. Laurie Davis married Damien in 1999. 37 year old Damien out of prison, but not free and a convicted felon. "West of Memphis." Now, moved to Salem, MA.

Seth Doane on photos of Kate. Staff of nine keep William and Kate on track during nine day tour in Asia. Now, photos on the island of Borneo. Pictures from Singapore. Superpower? Invisibility. Chateau D'Autet. Set back the clock 15 years. Kuala Lampur mosque. Hospis Malaysia, site of Kate's first speech. Catch of glimpse of something real in the fairy tale called Will and Kate.

Passing of Dorothy Maguire of the Maguire sisters. 1958 sugar in the morning. Person to person with Charles Collingwood. Lowell Williamson. Last performed together in 2004. Dorothy was 84 years old.

Next week on Sunday Morning. everybody's talking (on cell phones) but who is listening.

Another commercial for "The Master."

Moment of nature (no sponsor). Juno Beach [Palm Beach County]Florida. Baby loggerhead turtles taking their first steps.

Cross-reference on Harvard:

“The scope of the allegations suggests that there is work to be done to ensure that every student at Harvard understands and embraces the values that are fundamental to its community of scholars,” Harvard’s president, Drew Gilpin Faust, told The Harvard Gazette, the university’s official newspaper.

Saturday, September 15, 2012

More lawsuits filed than patents granted?

The first comment to the article Our Patent System Is Horrible and Getting Worse Every Year—in 3 Charts states:

Chart 1 shows that before 1998, there were more suits filed than patents granted. Are you suggesting that too many patents are being granted that shouldn't be? That companies are too litigious? That companies can't operate without infringing or are actively choosing to do so?

IPBiz notes that Chart 1 shows no such thing.

Cheating at Harvard in 2012

Although one "headline" refers to aHarvard Plagiarism Scandal Discovered Partly Due to Typo , what's underneath is merely incidents of cheating on a takehome exam, as discussed in the Harvard Crimson, Typo at Root of Cheating Scandal, Letter Reveals .

Assistant Professor Matthew B. Platt made an issue.

Within the Crimson text:

On a bonus question, “all the answers use the same (incorrect) reading of the course material in arguments that are identically structured,” Platt wrote.

He wrote that one of his teaching fellows originally detected suspicious similarities on that question, which read, “Describe two developments in the history of Congress that ostensibly gave individual MCs [members of Congress] in the House greater freedom and/or control but ultimately centralized power in the hands of party leadership.”

Several students answered that question with the same two “somewhat obscure” responses—the Cannon Revolt of 1910 and longtime 19th century Congressman Henry Clay, Platt wrote.

Wikipedia notes of the Cannon Revolt:

On March 17, 1910, after two failed attempts to curb Cannon's absolute power in the House, Nebraska Representative George Norris led a coalition of 42 progressive Republicans and the entire delegation of 149 Democrats in a revolt. With many of Cannon's most powerful allies absent from the Chamber, but enough Members on hand for a quorum, Norris introduced a resolution that would remove the Speaker from the Rules Committee and strip him of his power to assign committees.

The Cannon Revolt would not appear to be an answer to the question.

Wikipedia also has an entry 2012 Harvard cheating scandal which includes the text:

Farhad Manjoo, writing for Slate, believes "The students should be celebrated for collaborating" as they would in the real world.

And don't forget Adam Wheeler

Friday, September 14, 2012

Therasense applied in 1st Media: inequitable conduct is hard to find

1ST MEDIA, LLC v. ELECTRONIC ARTS, INC. is an important case in inequitable conduct, illustrating points about the intent prong of Therasense.

From within the case:

With respect to the three references, both Lewis and Sawyer testified that they did not appreciate the materiality of any of them. Lewis testified under direct exami- nation by Appellees that nondisclosure of the Bush reference was “an oversight that got lost in the cracks at that time and wasn’t a conscious decision not to report [it].” Tr. of Inequitable Conduct Hr’g, Day One at 183, 1st Media (Feb. 25, 2010), ECF No. 267 (“Day One Tr.”). Although Sawyer testified that he could not recall why he did not disclose the Bush reference, Appellees pointed to his previous declaration in which he claimed that “the Bush publication itself never sparked an awareness or belief in my mind that Bush should be disclosed.” Tr. of Inequitable Conduct Hr’g, Day Two at 134, 1st Media (Feb. 26, 2010), ECF No. 270 (“Day Two Tr.”). Sawyer also testified that he generally considered patentability issues in a case only during what he termed “active prosecution,” or the time between the first office action and the notice of allowance. Id. at 149. During the time period that Saw- yer was prosecuting the ’946 Patent, he had newly set up a solo office out of his home and characterized his practice as being at times “very active.” Id. at 153 (Sawyer’s testimony that he was handling about 170 open prosecu- tion files by the end of 1995). As for the Baji and Hoarty references, Lewis and Sawyer each testified that the technology in the co-pending ’423 and ’001 Applications was so distinct from the ’946 Application that it did not occur to them to disclose Baji or Hoarty during prosecution of the ’946 Patent.

The district court was skeptical:

The district court found their explanations not credible. Findings of Fact and Conclusions of Law Following Trial on Inequitable Conduct at 4, 1st Media (Apr. 23, 2010), ECF No. 276 (“Findings”) (“Dr. Lewis and Mr. Sawyer offered explanations for their failure to disclose the material prior art . . . that were not credible. . . . Mr. Sawyer’s explanation, like Dr. Lewis’ . . . was neither factually nor legally sufficient to explain the failure to disclose the Bush Reference, which was highly material.”); id. at 4-5 (“As to Baji [and] Hoarty . . . Dr. Lewis and Mr. Sawyer suggested that they viewed the technology at issue in their co-pending applications as so distinct from that of the ’946 application . . . that ‘it did not occur to them’ to make any disclosures about Baji [or] Hoarty . . . . That explanation, which defied common sense in light of the extensive overlap in the applications and claims, was fully discredited at trial.”). The district court found that Lewis and Sawyer knew the references were material and concluded that because they failed to provide a credible good faith explanation for non- disclosure of the references, it was appropriate to infer that they intended to deceive the PTO during prosecution of the ’946 Patent. Id. The district court thus concluded that Lewis and Sawyer committed inequitable conduct. The court allowed Appellees to draft proposed findings of fact and conclusions of law. The court adopted those findings verbatim, granted Appellees’ requested declara- tory judgment of inequitable conduct, held the ’946 Patent unenforceable, and dismissed 1st Media’s complaint. 1st Media appealed and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

The CAFC observed the burden to overcome the decision:

Even when a party drafts proposed findings of fact and conclusions of law, “[o]nce adopted, the findings are those of the court and may be reversed only if clearly erroneous.” Mathis v. Spears, 857 F.2d 749, 754 (Fed. Cir. 1988); see also Anderson v. City of Bessemer City, 470 U.S. 564, 572 (1985). “A district court abuses its discretion when its decision is based on clearly erroneous findings of fact, is based on erroneous interpretations of the law, or is clearly unreasonable, arbitrary or fanciful.” Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1460 (Fed. Cir. 1998) (en banc).

The CAFC laid out Therasense:

This court’s recent opinion in Therasense changed the standard for proving inequitable conduct based on nondisclosure of a reference to the PTO. 649 F.3d at 1290-91. Under the Therasense standard, absent affirmative egre- gious misconduct, a defendant must prove by clear and convincing evidence both of the “separate requirements” that: (1) “the patentee acted with the specific intent to deceive the PTO”; and (2) the non-disclosed reference was but-for material. Id. Therasense explained that in order to show that the patentee acted with the specific intent to deceive the PTO, a defendant must prove “that the appli- cant knew of the reference, knew that it was material, and made a deliberate decision to withhold it.” Id. at 1290 (emphasis added). A failure of proof on any element precludes a finding of inequitable conduct. See id. (“Prov- ing that the applicant knew of a reference, should have known of its materiality, and decided not to submit it to the PTO does not prove specific intent to deceive.” (em- phasis added)).

The arguments by 1st Media:

1st Media argues that the district court’s finding of in- equitable conduct cannot be sustained because the court did not find that either Lewis or Sawyer made a deliber- ate decision to withhold the three known material references from the PTO. 1st Media accuses Appellees of conflating the requirement to show intent to deceive with the requirement to show materiality and argues that Star Scientific’s single most reasonable inference standard cannot substitute for Therasense’s requirement that the defendant prove that the patentee made a deliberate decision to withhold a known material reference in order to deceive the PTO. Finally, 1st Media cites Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 512 (1984), to argue that the Appellees cannot satisfy their burden to show a deliberate decision to withhold references merely from the fact that the testimony of Lewis and Sawyer was discredited.

The absence of intent was going to be a problem:

Appellees admit that they have no direct evidence that Lewis or Sawyer intended to deceive the PTO. See Oral Arg. at 32:23, available at


As noted, supra, this court has now made clear that “[t]o prevail on a claim of inequitable conduct, the accused infringer must prove that the patentee acted with the specific intent to deceive the PTO.” Therasense, 649 F.3d at 1290. Moreover, “[a] finding that the misrepresenta- tion or omission amounts to gross negligence or negli- gence under a ‘should have known’ standard does not satisfy this intent requirement.” Id. (citing Kingsdown Med. Consultants, Ltd. v. Hollister Inc., 863 F.2d 867, 876 (1988)). “‘In a case involving nondisclosure of informa- tion, clear and convincing evidence must show that the applicant made a deliberate decision to withhold a known material reference.’” Id. (quoting Molins PLC v. Textron, Inc., 48 F.3d 1172, 1181 (1995)). The district court’s “Intent To Deceive” analysis regarding Bush analyzed only “1. Knowledge of Materiality,” and “2. Lewis and Sawyer’s Explanations.” Findings at 15-18. Significantly, however, the district court, following pre-Therasense precedent, did not discuss or consider whether there was any deliberate decision on either Lewis’s or Sawyer’s part to withhold the Bush reference from the PTO.


This court cannot sustain the district court’s decision. Knowledge of the reference and knowledge of materiality alone are insufficient after Therasense to show an intent to deceive. Moreover, it is not enough to argue careless- ness, lack of attention, poor docketing or cross-referencing, or anything else that might be considered negligent or even grossly negligent. To sustain a charge of inequitable conduct, “clear and convincing evidence must show that the applicant made a deliberate decision to withhold a known material reference.” Molins, 48 F.3d at 1181. Whatever one might conclude about Lewis’s and Sawyer’s conduct and interactions relating to the Bush reference, and the nature of Sawyer’s practice at the relevant time, the record does not support the inference that Lewis and Sawyer deliberately chose to withhold Bush. See Therasense, 649 F.3d at 1290. Lewis did not testify that he thought that Bush was relevant to the ’946 Patent’s prosecution in 1995; he only testified that he knew of “some rejections related to a patent in Europe, and it was the Bush patent.” Day One Tr. at 92. But the PCT Application was not rejected based on Bush until 1998. Lewis could not recall whether he had reviewed the EPO search report identifying Bush; he testified only that the report is something that he would have reviewed if Sawyer had sent it to him. Id. at 93. The record does not contain any letter from Sawyer to Lewis at that time informing Lewis of the EPO search report or Bush. Oral Arg. at 19:45-20:25. Lewis then testified that “given the details of the Bush [reference] that [he] know[s] now,” he now thinks that Bush was “relevant.” Id. at 100.

Something to note:

An applicant’s knowledge of a reference’s materiality, however, cannot by itself prove, let alone clearly and convincingly prove, that any subsequent non-disclosure was based on a deliberate decision. Otherwise, the third element in Therasense’s intent to deceive analysis would be satisfied in any case in which the second element was satisfied. This would effectively eviscerate Therasense’s test for mens rea and reinflict the plague of patent unenforceabil- ity based on the thinnest of speculation regarding the applicant’s putative mental state. See Therasense, 649 F.3d at 1290.


Here, there is no evidence, such as the evidence of a selective disclosure that oc- curred in Aventis Pharma, suggesting that Lewis and Sawyer must have deliberately withheld Baji. 675 F.3d at 1336. That Lewis’s and Sawyer’s testimony was not credited by the district court does not overcome the short- comings in Appellees’ proof. And the fact that Baji was not mentioned in an argument dealing with a rejection based on five other references nearly a year and a half after Baji first came to Lewis’s and Sawyer’s attention does not in and of itself suggest that the single most reasonable inference is a deliberate decision to deceive. The district court’s contrary finding is clearly erroneous.

In conclusion:

Ultimately, for all of the references, the evidence sup- ports only that Lewis and Sawyer (1) knew of the refer- ences, (2) may have known they were material (which this court does not reach), and (3) did not inform the PTO of them. But that is not enough. As Therasense made clear, a defendant must prove that an applicant (1) “knew of the reference,” (2) “knew it was material,” and (3) “made a deliberate decision to withhold it.” 649 F.3d at 1290 (emphasis added). It is the last requirement that is missing from the record developed in this case.

And, at the end, a trap for the unwary is identified:

At oral argument, Appellees admitted that they took full discovery on inequitable conduct and informed this court that the record is complete. Oral Arg. at 19:20- 20:50. Because Appellees cannot prove on this record that either Lewis or Sawyer made a deliberate decision to withhold references from the PTO and because Appellees acknowledged that the record is complete, this court reverses. We need not decide whether any of the references were but-for material.

Attorneys for the (losing) appellees: ERIC A. BURESH, Erise IP, P.A., of Leawood, Kansas, argued for all defendants-appellees. With him on the brief for Sony Computer Entertainment America, Inc., was ABRAN J. KEAN. Of counsel was B. TRENT WEBB, Shook, Hardy & Bacon, L.L.P., of Kansas City, Missouri. On the brief for Electronic Arts, Inc., et al., were RICHARD F. ZIEGLER, Jenner & Block LLP, of New York, New York, and BENJAMIN J. BRADFORD, of Chicago, Illinois. Of coun- sel was JOHN JOSEF MOLENDA, of New York, New York.

Keyword: "Y reference"

Note text: this case is unlike that in Aventis Pharma S.A. v. Hospira, Inc., 675 F.3d 1324, 1335-36 (Fed. Cir. 2012), in which this court affirmed the district court’s inequitable conduct determination.

Thursday, September 13, 2012

Dylan: Wussies and pussies complain about that stuff.

From CBS News post Bob Dylan calls plagiarism accusers "wussies"

Dylan: "Oh, yeah, in folk and jazz, quotation is a rich and enriching tradition. That certainly is true. It's true for everybody, but me. There are different rules for me. And as far as Henry Timrod is concerned, have you even heard of him? Who's been reading him lately? And who's pushed him to the forefront?... And if you think it's so easy to quote him and it can help your work, do it yourself and see how far you can get. Wussies and pussies complain about that stuff. It's an old thing - it's part of the tradition. It goes way back."

From wikipedia on Timrod: In September 2006 an article for The New York Times noted similarities between Bob Dylan's lyrics in the album, Modern Times and the poetry of Timrod. A wider debate developed in The Times as to the nature of "borrowing" within the folk tradition and in literature.

From Timrod's Ethnogenesis:

Now, come what may, whose favor need we court?
And, under God, whose thunder need we fear?
Thank Him who placed us here
Beneath so kind a sky -- the very sun
Takes part with us; and on our errands run
All breezes of the ocean; dew and rain
Do noiseless battle for us; and the Year,
And all the gentle daughters in her train,
March in our ranks, and in our service wield
Long spears of golden grain!

UC/Berkeley, Eolas sue Facebook for patent infringement

A Reuters post on September 13 titled University of California sues Facebook, Wal-mart over patents includes the following interesting typo:

A Facebook spokesman said the company believed the lawsuit was without hermit. "We will fight it vigorously," he said.

The case is in ED Texas. PC World noted:

Both the '906 and '985 patents were used by Eolas in a legal battle against other top Internet companies like and Google. In February, a Texas jury found that both Eolas patents were invalid.

The other patents in the lawsuit are the '293 and '662 patents that are both related to the first two, but were issued at a later date.

Facebook directly and indirectly infringes on all four patents by presenting web pages and content interactively in the browser, Eolas said in the complaint. Eolas is seeking damages in a jury trial.

KSR invoked in Ex parte Law

The BPAI affirmed an obviousness rejection in Ex parte Law by reference to KSR:

[t]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results KSR v. Teleflex, 550 US 398, 416 (2007)

Marblar: finding uses for old patents

A post at MIT Technology Review titled Can Crowdsourcing Bring Unused Patents Back from the Dead? discusses Marblar, a platform formed to help universities commercialize new inventions and find uses for old patents.

In a separate post on 11 September 2012 titled Demo Plant Targets Ultra-High Ethanol Production , Technology Review wrote of the Joule Unlimited facility in Hobbs, New Mexico:

Joule hopes to achieve 10,000 gallons per acre at the new demonstration plant. The plant will use simpler, cheaper solar converters than the ones used at the pilot plant. The original containers were large flat panels mounted on frames that angle them to catch the sun. The new ones are basically long plastic tubes and they lay flat on the ground, the company says.

Joule says the commissioning of the demonstration plant is an ongoing process. Eventually, the plant will cover four acres, and so be able to produce about 40,000 gallons per year. The plant will be divided into six parts, and so far the company has only installed one of those six sections, which it plans to have producing ethanol in the next few weeks.