Thursday, August 30, 2012

"Hey everybody - this is barack."

Barack Obama showed one thing an incumbent Democrat can do during the week of the Republican National Convention. See All of Barack Obama's Reddit Ask Me Anything Answers

One query to Barack started: I am recent law school graduate. Despite graduating from a top school, I find myself unemployed with a large student loan debt burden.

As to startups, Barack noted And we will be implementing the Jobs Act bill that I signed that will make it easier for startups to access crowd-funding and reduce their tax burden at the start-up stage.

No intellectual property per se, but as to "composition of matter" claims:

What's the recipe for the White House's beer?

Obama: It will be out soon! I can tell from first hand experience, it is tasty.

Wednesday, August 29, 2012

More on UMissouri plagiarism

An article in Indiawest titled Missouri Medical Researchers Accused of Plagiarism follows up on the plagiarism of Amar Jadhav and Anand Chockalingam.


Applied Materials loses appeal of BPAI cases on re-exams

Applied Materials, represented by Fish & Richardson, lost an appeal (by a 2-1 vote) concerning Reexamination Nos. 90/010,106; 90/010,107; 90/010,108; 90/010,109.

The CAFC ultimately affirmed the BPAI, but:

The Board’s opinions in the present appeals are not a model of clarity, but the Board’s “path may reasonably be discerned.” See Bowman, 419 U.S. at 285-86.

First, the Board’s conclusion that the prior art discloses dimensional values overlapping the ranges claimed in Applied’s Patents is supported by substantial evidence. While the Board failed to cite the relevant cases, this “path” to obviousness is consistent with this court’s precedent. In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) (“A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.”); see In re Geisler, 116 F.3d 1465, 1469 (Fed. Cir. 1997); In re Malagari, 499 F.2d 1297, 1303 (CCPA 1974). Such overlap itself provides sufficient motivation to optimize the ranges. See Peterson, 315 F.3d at 1330 (“The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of . . . ranges is the optimum combination . . . .”).

Second, the Board’s finding that the dimensional variables were result-effective, rendering their optimization within the grasp of one of ordinary skill in the art, was supported by substantial evidence. See Boesch, 617 F.2d at 276. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” Aller, 220 F.2d at 456. This rule is limited to cases in which the optimized variable is a “result-effective variable.” In re Antonie, 559 F.2d 618, 620 (CCPA 1977); see Boesch, 617 F.2d at 276 (“[D]iscovery of an optimum value of a result effective variable . . . is ordinarily within the skill of the art.”). In the present case, because the prior art disclosed values overlapping the claimed ranges, the “general conditions” of the claim are disclosed. See Aller, 220 F.2d at 456; see also Boesch, 617 F.2d at 276. The question is whether the dimensions were known to be result-effective variables.

Contrary to Applied’s argument, there is evidence that the claimed groove dimensions are result-effective variables—rendering their optimization within the ordinary skill in the art. See Boesch, 617 F.2d at 276.

Of result-effective variables:

In cases in which the disclosure in the prior art was insufficient to find a variable result-effective, there was essentially no disclosure of the relationship between the variable and the result in the prior art. In Antonie, the court found the variable not result-effective because the prior art did not disclose the claimed ratio, or even recog- nize that one of the variables in the ratio was relevant to the desired property. 559 F.2d at 619-20. In In re Yates, 663 F.2d 1054 (CCPA 1981), the court found the variable not result-effective because there was no teaching of the claimed relationship and also “no evidence of this rela- tionship in the prior art.” 663 F.2d at 1056-57 (emphasis omitted). While the absence of any disclosure regarding the relationship between the variable and the affected property may preclude a finding that the variable is result-effective, the prior art need not provide the exact method of optimization for the variable to be result- effective. A recognition in the prior art that a property is affected by the variable is sufficient to find the variable result-effective.


The outcome of optimizing a result-effective variable may still be patentable if the claimed ranges are “critical” and “produce a new and unexpected result which is differ- ent in kind and not merely in degree from the results of the prior art.” Aller, 220 F.2d at 456; see Antonie, 559 F.2d at 620. Similarly, a prima facie case of obviousness established by the overlap of prior art values with the claimed range can be rebutted by evidence that the claimed range is “critical” because it “achieves unexpected results.” Peterson, 315 F.3d at 1330 (quoting Geisler, 116 F.3d at 1469-70). But Applied provided no such evidence.


Nothing indicates that the optimization of the variables was anything other than the exercise of ordinary skill in the art. Likewise, the combination of the various dimensions from the different pieces of prior art was also obvious. The mere fact that multiple result-effective variables were combined does not necessarily render their combination beyond the capability of a person having ordinary skill in the art. Evidence that the variables interacted in an unpredictable or unexpected way could render the combination nonobvious, see KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007), but Applied failed to show anything unpredictable or unexpected in the interaction of the variables.

The KSR automaton is mentioned:

Applied argues that the triangular cross-section of the grooves in Breivogel renders that reference inadequate. One of ordinary skill in the art is not foreclosed from combining the Breivogel dimensions with the Weling cross-sectional shape merely because Breivogel discloses triangular grooves. A reference must be considered for everything that it teaches, not simply the described invention or a preferred embodiment. See EWP Corp. v. Reliance Universal Inc., 755 F.2d 898, 907 (Fed. Cir. 1985); In re Lamberti, 545 F.2d 747, 750 (CCPA 1976). Even though Breivogel describes grooves with a particular cross-sectional shape, this does not preclude one of ordi- nary skill in the art from utilizing Breivogel’s other teachings on the width, depth, and pitch in combination with other features of the Weling pad. One of ordinary skill in the art is not an “automaton.” KSR, 550 U.S. at 421. For the same reasons, Talieh’s teachings on the dimensions can be combined with the Weling pad, despite the fact that Talieh teaches grooves with a centered spiral or offset circular arrangement.

As to teaching away:

“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.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). While Applied’s alternative interpretation of Weling is plausible, the mere fact that alternative conclusions can be drawn from the evi- dence is not relevant to determining whether substantial evidence supports the Board’s conclusion. See Consolo, 383 U.S. at 620. The substantial evidence inquiry requires this court to determine whether the evidence reasonably supports the Board’s conclusion, which in this case it does. See Consol. Edison, 305 U. S. at 229.

Judge Newman dissented, and cited the recent Dietz & Watson case:

Nothing in the record shows that the patentee’s concurrent changes in width, depth, and pitch were simply “knowledge so basic that it certainly lies within the skill set of an ordinary artisan.” Mintz v. Dietz & Watson, Inc., 679 F.3d 1372, 1377 (Fed. Cir. 2012). Yet the evidence is that the consumer has shown a clear preference for the patentee’s product as compared with the prior art products. This is highly rele- vant to the question of obviousness, for the purchasing consumer is in the best position to evaluate technological changes that appear to judges to be minor, yet that are of significance to the product’s properties, as measured in the marketplace. See Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 306 (Fed. Cir. 1985) (“Secon- dary considerations may be the most pertinent, probabitve, and revealing evidence available to the decision maker in reaching a conclusion on the obviousness/nonobviousness issue.”).
The Court observed in Dickinson v. Zurko, 527 U.S. 150, 162 (1999), that “[t]he APA requires meaningful review,” “not simply rubber-stamping agency factfinding.” On the correct law, the polishing pad with the claimed parameters has not been shown to be obvious. From my colleagues’ contrary holding, I respectfully dissent.

Alison Frankel on standard essential patents of Motorola

In a post titled Analysis: Apple's win dents Android's standard-essential patent hopes, Alison Frankel writes on "Standard-essential patents."

Within the post:

Meanwhile, standard-essential patents have taken a beating in smart-device litigation in the United States. Judge Richard Posner of the 7th Circuit Court of Appeals demolished Motorola's argument that it was entitled to a licensing fee of 2.5 percent of iPhone sales based on Apple's alleged infringement of a single standard-essential patent.

Although it is true Judge Posner sits on CA7, the decision in question was rendered by Judge Posner sitting by designation at the district court level in ND Ill. No judge sitting in a regional appellate circuit is going to see a case turning on patent law. And the licensing fee in question was 2.25%, not 2.5%.

Forbes described the "heart of the Posner ruling" as

Posner complained that Apple’s attempt to get an injunction restricting the sale of Motorola phones would have “catastrophic effects” on the mobile device market and consumers. He further criticized Motorola for trying to use a standards-essential patent to get an injunction against Apple.

As to Motorola's patent, page 15 of the Posner opinion notes:

My summary judgment order of June 5, finding that Apple had not infringed Motorola’s ‘559 patent, may seem inconsistent with the proposition that Apple’s 3G (“third generation”) mobile devices, which are governed by the Universal Mobile Telecommunications Standard (UMTS), must therefore use patents declared essential to that standard, such as the ‘559. But there is no inconsistency. Motorola’s standards-essential patents (including the ‘898 still at issue in this case) are merely claimed to be standards-essential.

As to the '898 patent, Posner wrote:

“Going for broke” is the inescapable characterization of Motorola’s damages claim. Motorola claims to be entitled to aminimum royalty of 2.25 percent for a license for the patents in the portfolio that contains the ‘898. Though it’s the only patent in the portfolio that remains in this suit, Motorola claims to be entitled to damages equal to (or “up to,” or “at least”—it seemsnot to have made up its mind) 40 to 50 percent of 2.25 percent, which would be 0.9 to 1.125 percent of sales of Apple devices that infringe the ‘898.


If Apple said no to 2.25 percent, it ran the risk of being ordered by a court to pay an equal or even higher roy-alty rate, but that is not the same thing as Motorola’s being excused from no longer having to comply with its FRAND obligations. Motorola agreed to license its standards-essential patentson FRAND terms as a
quid pro quo for their being declared essential to the standard. FTC Statement on the Public Interest, supra , at 2. It does not claim to have conditioned agreement on prospective licensees’ making counteroffers in license negotiations.

The last sentence of the Posner decision:

It would be ridiculous to dismiss a suit for failure to prove damages and allow the plaintiff to refile the suit so that hecould have a second chance to prove damages. This case is therefore dismissed with prejudice; a separate order to that effect is being entered today.

IPBiz has discussed Alison Frankel previously. See

"Patent quality index"?

Mike Masnick (TechDirt) takes on Gary Odom (PatentHawk)

Further thoughts on Graves and Donohue on anticipation under 35 USC 102

In patent interference 104,834, Genise v. Desautels ,action mailed 23 May 2011, one finds text relevant to the cases of In re Donohue and In re Graves on anticipation.

To the extent that Genise adopts some kind of an obvious-to-combine notion for determining anticipation under 35 U.S.C. § 102, that is improper. At issue is what one with ordinary skill in the art would understand as the subject matter disclosed, not what one with ordinary skill in the art may assemble or put-together based on that disclosure. Genise cites to In re Graves, 69 F.3d 1147, 1152, 36 USPQ2d 1697, 1701 (Fed. Cir. 1995), cert. denied, 116 S.Ct. 1362 (1996), indicating that Graves cites, in turn, to In re LeGrice, 301 F.2d 929, 133 USPQ 365 (CCPA 1962) and In re Donohue, 766 F.2d 531, 533, 226 USPQ 619, 621 (Fed. Cir. 1985). But the reliance on LeGrice and Donohue is misplaced. What was being discussed in those cases concerns the principle that a prior art reference cannot anticipate a claimed invention if its disclosure is not “enabling” as to what was being taught, and a judicially imposed requirement that aside from describing what is being claimed, an anticipatory reference must also “enable” one with ordinary skill to possess the invention from the perspective of making and using it. That an anticipatory prior art reference’s disclosure must be enabling as to the claimed invention does not dispense with the fundamental requirement that the claimed invention must first be described in the prior art reference.

As for the case In re Graves, supra, it appears to support Genise’s position by stating as follows:

Even assuming, however, that the dissent’s construction of claim 4 is correct, Rockwell nevertheless anticipates claim 4, even if it does not specifically disclose simultaneous monitoring of the output points, if simultaneous or parallel monitoring is within the knowledge of a skilled artisan. [Citations to In re LeGrice and In re Donohue omitted.]

It is evident that the above-quoted portion of In re Graves constitutes only dicta and thus is not controlling. Moreover, to the extent that In re Graves approves the idea of going beyond the four corners of an anticipatory reference as would be understood by one with ordinary skill in the art, that is contrary to a plethora of precedent already identified above. Note also Glaxo, Inc. v. Novopharm, Ltd., 52 F.3d 1043, 1047, 34 USPQ2d 1565, 1567 (Fed. Cir. 1995), which states that a claim is anticipated only when a single prior art reference discloses each and every limitation of the claim and that the disclosure need not be express but may anticipate by inherency where it would be appreciated by one with ordinary skill in the art. In that context, the “appreciation” refers to that which is inherently described in the reference, not something in addition thereto.

**It is worthwhile reviewing the facts of In re Donohue. Of interest to chemists is that the Donohue case involved an affidavit by Ellis Fields, a well-known figure in petroleum chemistry, whose affidavit ultimately was unsuccessful in Donohue. From the case:

Nomura et al. ("Nomura")3 discloses twelve 2,2',6,6'-tetramethylbiphenyls ("TMBP") which are 4,4'-disubstituted with NH2 , NMe2 , OH, OMe, Cl, Br, I, CO2 H, CO2 Me, CN, NO2 , or H substituents. Methods of preparing all these compounds, except those disubstituted with CO2 H or CO2 Me, are set forth in Nomura. Nomura's disclosure of how to make 4,4'-dinitrile (or dicyano) TMBP is particularly significant, because Lincoln4 and Wagner et al. ("Wagner")5 teach, generally, the preparation of carboxylic acids from nitriles by hydrolysis.

In Donohue I, a majority of the Court of Customs and Patent Appeals ("CCPA") affirmed the PTO's rejection of appealed claims 1, 5, 6, and 76 under 35 U.S.C. Sec. 102(b). Id. at 127, 207 USPQ at 200. The basis for the rejection was, as it is here, Nomura with reference to Lincoln and Wagner. Id. at 126, 207 USPQ at 199.

A minority of the CCPA voted to reverse the PTO's decision, because they concluded it was uncertain from the text of Nomura that the dicarboxylic acid TMBP and dimethyl ester TMBP were ever prepared. Id. at 129, 207 USPQ at 201. Accordingly, Nomura's disclosure was, in the minority's view, no more than a mere naming of the claimed compounds which is insufficient to constitute an enabling disclosure. Id. at 129, 207 USPQ at 201.

So, in Donohue, the prior art reference named the anticipating chemical compound, which, however, was not in fact "possessed" (i.e., synthesized) by the author of the reference. The idea that the compound could be made was possessed by the author. As to later discussion by various patent law professors of written description/enablement being the same, Donohue is in excellent counter-example. Further, it refines the concept of "possession." Separately, it might seem that the Fields affidavit was hearsay.

**The interference case also speaks of incorporation by reference:

On such general manner of incorporation, we cannot assume that Genise’s inventors recognized and appreciated every single detail that happens to be contained in the disclosure of U.S. Patent Nos. 4,850,236 and 5,105,357. In that regard, note Advanced Display Systems v. Kent State University, 212 F.3d 1272, 1282, 54 USPQ2d 1673, 1679 (Fed. Cir. 2000), in which the Court of Appeals for the Federal Circuit stated:
Incorporation by reference provides a method for integrating material from various documents into a host document – a patent or printed publication in an anticipation determination – by citing such material in a manner that makes clear that the material is effectively part of the host document as if it were explicitly contained therein. [Citation omitted.] To incorporate material by reference, the host document must identify with detailed particularity what specific material it incorporates and clearly indicate where that material is found in the various documents. [Citations omitted.] [Emphasis added.]

**In the "transaction history" for the file of US 5,573,477 , one finds:

05-02-2002 File Marked Found
07-28-1998 Mail Miscellaneous Communication to Applicant
07-28-1998 Miscellaneous Communication to Applicant - No Action Count
07-20-1998 Case Found
07-08-1998 Official Search Conducted
06-30-1998 Case Reported Lost

CAFC discusses the interplay of 35 USC 282 and FRCP 26(e)

In Woods and MEC v. DEANGELO , the Court of Appeals for the Federal Circuit [CAFC] discusses the consequences of violation of FRCP 26(e). Oral argument at available at 2010-1478/all/woods.html. Certain relevant prior art documents were conveyed by email within the time limit of 35 USC 282, but were not explained in compliance with FRCP 26(e). The CAFC affirmed their exclusion.

Within the case:

Recognizing the evolving nature of the contentions of the parties leading up to trial and to protect patentees from unfair and prejudicial surprise at trial, Congress established 35 U.S.C. § 282 to provide a statutory outer limit for the disclosure of certain information relating specifically to defenses to be relied upon by an accused infringer at trial. Section 282 requires notice in writing:

at least thirty days before the trial, of . . . any publication to be relied upon . . . as showing the state of the art, and the name and address of any per- son who may be relied upon as the prior inventor or as having prior knowledge of or as having pre- viously used or offered for sale the invention of the patent in suit. In the absence of such notice proof of the said matters may not be made at the trial except on such terms as the court requires.

Section 282 does not eliminate a defendant’s obligations under the Federal Rules of Civil Procedure. To the contrary, the statute and the rules are intended to coexist. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 551 (Fed. Cir. 1998) (“The purpose of § 282, like that of the Federal Rules, is to prevent unfair and prejudicial surprise, not to facilitate last-minute production of evidence.”); see also Thermo King Corp. v. White’s Trucking Serv., Inc., 292 F.2d 668, 674 (5th Cir. 1961).

An issue:

MES specifically argues that “[w]hile DeAngelo provided the documents to MES’s attorney on February 8, 2010, DeAngelo did not clearly state the purpose of the documents or how they might be used.” Appellee’s Br. 20. MES thus argues that the February 8 e-mail “did not serve to supplement the mandatory Rule 26 disclosures or the interrogatory re- sponses.” Id. at 22 (emphasis added). Woods also specifi- cally raised the issue at oral argument, stating “there was no Rule 26(e) disclosure—the providing of the documents without answering the questions that we actually asked and without giving us the information that we actually needed is not a satisfactory Rule 26(e) disclosure.” See Oral Arg. at 20:48-21:04. Thus, the “issue” here— whether DeAngelo’s e-mail of February 8 constituted an adequate and timely supplement to its interrogatory response—includes consideration of both the timeliness of the response and the propriety of the supplementation of the interrogatory itself.


The district court, by local rule1 or by court order,2 may require such production at an earlier date. But the problem here is that there was no such local rule or court order, save the order setting a discovery deadline of February 9, 2010. The documents were dis- closed on February 8, before the discovery deadline and before the thirty day outer limit set by § 282. Furthermore, Rule 26(e) requires only that parties supplement prior discovery responses “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect . . . .” Fed. R. Civ. P. 26(e)(1)(A) (emphasis added).

The CAFC agrees with the district court:

This court agrees with the district court that Rule 26(e) was violated and concludes that the district court imposed an appropriate sanction. The interrogatory in question did more than require the identification of documents (a requirement that DeAngelo satisfied by the production). It requested that DeAngelo “[s]tate with specificity all prior art that anticipates such claims of one or more of the patents at issue or renders them obvious. In doing so, specify the particular claim being referred to and identify why such prior art anticipates such claims or renders them obvious.” Mot. to Strike Drawings at 1-2 (emphasis added). While DeAngelo’s e-mail of February 8, 2010 (in which it disclosed the drawings) stated that the drawings “may anticipate the Woods inventions, or may be relied upon as showing the state of the art in the early 1990’s,” DeAngelo did not comply with the emphasized requirements before the discovery deadline. Such compliance was important.

As to claim construction:

Claim terms are given their ordinary and customary meaning—the meaning that they would have to a person of ordinary skill in the art in light of the specification and prosecution history at the time of the invention. Id. at 1312-13. The specification need not describe every em- bodiment of the claimed invention, see Netword, LLC v. Centraal Corp., 242 F.3d 1347, 1352 (Fed. Cir. 2001), and the claims should not be confined to the disclosed em- bodiments—even when the specification discloses only one embodiment, Phillips, 415 F.3d at 1323.

As to a later application, with broader claims:

DeAngelo’s characterization of Woods’s abandonment of the ’097 Application as an admission that the Shiozawa and Moffit references disclose every element of Woods’s patents is meritless. DeAngelo fails to consider that Woods filed the ’548 Application more than six months before the examiner rejected the ’097 Application. Moreover, the claims in the ’548 Application are arguably broader than the claims in the ’097 Application, and Woods prosecuted the ’548 Application before the same examiner who eventually rejected the ’097 Application. There is nothing to suggest that Woods did anything other than simply choose to pursue the similar, but broader, ’548 Application instead of continuing to prosecute the ’097 Application. This court declines to characterize Woods’s conduct as an admission or concession that the claims in the ’097 Application are anticipated by Shiozawa or Moffitt.

On an acquiescence argument:

In TorPharm, Inc. v. Ranbaxy Pharmaceuticals, Inc., 336 F.3d 1322, 1330 (Fed. Cir. 2003), this court rejected Ranbaxy’s similar acquiescence rationale, explaining that “Ranbaxy’s argument blurs the distinction between claims and limitations: patentability is assessed for the former, not the latter.” Explicit limitations are material to the infringement inquiry. Id. at 1331 n.9. But viewing an amendment as an admission that the initial claim was unpatentable requires more than the mere presence of a limitation. See id. at 1330.


A patent applicant is not presumed to have conceded the presence in the prior art of every claim limitation he had no reason to dispute.

As to Rule 11:

The Eleventh Circuit imposes Rule 11 sanctions where the “frivolous nature of the claims-at-issue is unequivocal.” Carter v. ALK Holdings, Inc., 605 F.3d 1319, 1323 (Fed. Cir. 2010). In a patent case, this court stated that “an attorney violates Rule 11(b)(3) when an objectively reasonable attorney would not believe, based on some actual evidence uncovered during the prefiling investigation, that each claim limitation reads on the accused device . . . .” Antonious v. Spalding & Evenflo Cos., 275 F.3d 1066, 1074 (Fed. Cir. 2002).

Here, the record is replete with evidence supporting the district court’s conclusion that MES conducted a sufficient pre-filing investigation including photographing and studying photographs of DeAngelo’s accused prod- ucts. See supra § I.B. Nonetheless, DeAngelo argues that Judin v. United States, 110 F.3d 780 (Fed. Cir. 1997), compels the conclusion that MES’s mere observations of DeAngelo products cannot constitute an adequate investi- gation. DeAngelo’s reliance on Judin is misplaced. In Judin, the plaintiff observed allegedly infringing products from a distance, but never sought access to investigate them more closely. Id. at 784. Here, MES directly re- quested from DeAngelo, in writing, information about DeAngelo’s allegedly infringing devices. When that information was not forthcoming, MES took the photo- graphs of DeAngelo’s products that were used as the basis for filing suit. At trial a number of witnesses testified that they could discern the features covered by the as- serted claims from the digital color photographs. This is not a case like Judin where the plaintiff sued without seeking access to examine allegedly infringing devices. The district court did not abuse its discretion in declining to sanction MES.

Within a post on Hobbs, New Mexico

From a post titled Hobbs, New Mexico, Home Of A Failed $1 Billion Ghost Town, Conducts Another Grand Experiment

In addition, last year, Massachusetts-based Joule Unlimited leased 1,200 acres--with the potential to scale up to 5,000 acres--for the production of renewable biodiesel and ethanol directly from sunlight, bacteria, and waste CO2. The company recently built a 40-acre pilot plant and is slated to start production in September.

Hmmm, it's August 29; September 2012 is coming soon.

"When someone keeps telling you he is telling you the truth, it makes you wonder whether he actually is."

The text -- When someone keeps telling you he is telling you the truth, it makes you wonder whether he actually is. -- evokes the Emerson aphorism --"The louder he talked of his honor, the faster we counted our spoons." -- See previous IPBiz post

IP Litigation Clearinghouse launched
related to Joshua Walker and Mark Lemley.

Tuesday, August 28, 2012

Chasing purple squirrels

A post by Ken Jarboe entitled Our flawed human capital system talks about an interview with Peter Cappelli relating to the theme of why good people can't get jobs:

What companies are doing, says Cappelli, is searching for the "purple squirrel" -- the unique, unusual, and perfect candidate.

The last line of the post was of interest:

Better for companies to create their own "purple squirrels" than wait around to that elusive creature to show up on the doorstep.

A different viewpoint on obtaining qualified people was discussed in the IPBiz post
Startup Act 2.0: are you turning up your nose at $150K/year jobs? , wherein it was suggested, by one Congressman Michael G. Grimm, that qualified people were turning down available jobs. An audio is available of that most remarkable argument.

Separately, in a sense other than intended by Jarboe, companies sometimes do create "purple squirrel" positions, in "wiring" certain job postings so that only one person in the whole world can literally qualify.

But totally agree with Jarboe as to Attacking the perceived lack of workforce skills has been the centerpiece of public policy. But if that is not really the problem, then we need to re-focus... because "the perceived lack of workforce skills" is NOT the problem.

As to Cappelli: Why Good People Can’t Get Jobs: The Skills Gap and What Companies Can Do About It In paperback; ISBN: 9781613630143

Note separately, William Bridges, Jobshift: How To Prosper In A Workplace Without Jobs, on the dejobbing of America.

Where does the patented invention end and the augmentation begin?

The article by Michael Hiltzik titled Blame a dysfunctional patent system for Apple vs. Samsung verdict argues that the patent system has become a competitive weapon rather than a legal framework to encourage and reward innovation.

As a first point, Hiltzik confuses innovation and invention. The patent system is designed to encourage invention, which may, or may not, lead to innovation (changing the way we live).

The article has the text:

Until about 1980, software was thought to be unpatentable because it didn't seem to fit into patentable categories such as "machines" or "processes." But following a series of ambiguous federal court decisions, the ground shifted. By the 1990s software patents were common.

But the law is still as ambiguous as ever. With competition in multibillion-dollar markets resting on such shaky bedrock, the risk of earthquakes is high.

Legal fights on software circa 1980 involved copyright, not patent, such as Apple v. Franklin, 714 F.2d 1240 (CA3 1983). Later, one had Lotus Development Corporation v. Borland International, Inc., 516 U.S. 233 (1996). The key business method case was State Street Bank and Trust Company v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998), and subsequently we have had Bilski.

Hiltzik assigned blame to the US Patent Office:

Patent examiners could have put the kibosh on the Samsung case by asking such questions as these before approving Apple's patent claims: Are the rows of icons on the iPhone really revolutionary? Is tapping a touch screen to execute a command really a patentable innovation? Is making a hand-held phone flat and rectangular with rounded corners a unique idea such that all other flat and rectangular phones with rounded corners should be pulled off the shelves?

As to the query: Where does the patented invention end and the augmentation begin?, if one's improvement falls within the scope of the earlier claim, there is infringement.

Hiltzik alluded to Bill Gates:

But it did elicit this classic comeback from Bill Gates, published in a trade magazine in 1989: "Steve, just because you broke into Xerox's house before I did and took the TV doesn't mean I can't go in later and take the stereo."

One notes that Hiltzik has a B.A. in English from Colgate, and seems to have had tangles with email hacking and sockpuppeting.

***Separately, do recall from the concurring opinion in Meyer v. Bodum:

While I agree with and join the thorough majority opinion, in looking at this case from a broader perspective, one cannot help but conclude that this case is an example of what is wrong with our patent system. The patents essentially claim the use of a prior art French press coffee maker to froth milk. Instead of making coffee by using the plunger to separate coffee from coffee grounds, the plunger is depressed to froth milk. The idea of frothing cold milk by the use of aeration rather than steam is not new as reflected in the prior art Ghidini patent. Under the Supreme Court's decision in KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 420 (2007), and its predecessors, it would be reasonable to expect that the claims would have been rejected as obvious by the examiner, and, if not, that they would have been found obvious on summary judgment by the district court. But no such thing. The parties have spent hundreds of thousand of dollars and several years litigating this issue, and are invited by us to have another go of it in a second trial. Such wasteful litigation does not serve the interests of the inventorship community, nor does it fulfill the purposes of the patent system.

Obviousness: “articulated reasoning with some rational underpinning"

In BPAI decision in Milan v. Apple, concerning re-exam 95/001,083

Of wikipedia:

Reliance on this Wikipedia information is improper because it was presented for the first time in Appellant’s brief and has not been entered by the Examiner. See 37 C.F.R. §§ 41.67(c)(2) (“A brief shall not include any new or non-admitted amendment, or any new or non- admitted affidavit or other evidence. See . . . § 41.63 for amendments, affidavits or other evidence after the date of filing the appeal.”).20 Furthermore, Appellant has not provided a copy of the Wikipedia entry relied upon or demonstrated that it describes the understanding of “memory drive” as of the November 12, 2004, filing date of the ‘483 patent. See In re Voss, 557 F.2d 812, 818 n.15 (CCPA 1977) (later-issued patents and publications can be relied on to construe claim language only if a showing is made that such claim language is the “language of the present art” as of the filing date of the application in question).

As to arguments made by counsel:

Appellant also argues that “[a] flash memory device, as is understood in the art, clearly provides for memory storage, and includes the necessary processing circuitry so that data can be directly transferred between the memory associated with the flash memory device and a second device” (id. at 27; emphasis added). However, no evidence is cited in support of such a definition of “flash memory device.” See Estee Lauder Inc. v. L’Oreal, S.A., 129 F.3d 588, 595 (Fed. Cir. 1997) (citation omitted). (“[A]rguments of counsel cannot take the place of evidence lacking in the record.”).


Both rationales are consistent with KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007), which held, inter alia, that “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.” Id. at 417. As a result, we are not persuaded by Appellant’s argument that the Examiner has not met the burden of providing “articulated reasoning with some rational underpinning to support the legal conclusion of obviousness,” as required by In re Kahn, 441 F.3d 977, 987 (Fed. Cir. 2006). App’t Br. 31.

Of analogous art:

The argument that Palm and Tungsten are nonanalogous art is unpersuasive for the following reasons. As explained in In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2011):
Two separate tests define the scope of analogous prior art: (1) whether the art is from the same field of endeavor, regardless of the problem addressed and, (2) if the reference is not within the field of the inventor’s endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved.

The field of endeavor is a function of the scope of the claimed invention. See Bigio, 381 F.3d at 1325-26:

[T]he field of endeavor test . . . for analogous art requires the PTO to determine the appropriate field of endeavor by reference to explanations of the invention’s subject matter in the patent application, including the embodiments, function, and structure of the claimed invention. See [in re] Wood, 599 F.2d [1032,] 1036 [(CCPA 1979)] (confining the field of endeavor to the scope explicitly specified in the background of the invention); see also Deminski, 796 F.2d [436,] 442 [(Fed. Cir. 1986)] (determining that the cited references were within the same field of endeavor where they “have essentially the same function and structure”).
The Deminski court explained that
Deminski’s invention “relates generally to double-acting high pressure gas transmission compressors,” such as those used “for transmitting natural gas and other compressible fluids through pipe lines.” More particularly, the invention is directed to a horizontally reciprocating, double-acting piston type gas compressor in which the valves can be removed easily for replacement.
796 F.2d at 437.

Of substitution and alternative design choice, the appellant had argued:

Sirichai only provides that both USB and firewire connector tips could utilize the light source disclosed; it does not disclose that the pin configuration, the wiring scheme required or operation of the two are equivalent. Simply substituting the USB connector of Tungsten with the connector body for a firewire connector will not result in functionality of the resulting connector.


This argument is unpersuasive a teaching of such equivalence is not required to support the rejection under the KSR rationale that “when a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result.” KSR, 550 U.S. at 416. As explained at MPEP § 2143(B), a rejection for prima facie obviousness based on this rationale requires the following findings:

(1) a finding that the prior art contained a device (method, product, etc.) which differed from the claimed device by the substitution of some components (step, element, etc.) with other components;
(2) a finding that the substituted components and their functions were known in the art; [and]
(3) a finding that one of ordinary skill in the art could have substituted one known element for another, and the results of the substitution would have been predictable[.]
Appellant has not demonstrated that the Examiner erred in determining that the cited references support such findings regarding the subject matter recited in claims 3 and 4.

Monday, August 27, 2012

The basic power discrepancy in plagiarism cases

The final line of a post How Plagiarism Happens at the Atlantic by Ta-Nehisi Coates:

What you see is something rather common in American life, wherein power allows for seemingly iron rules to turn to rubber.

Yes, the outcome of the Fareed Zakaria matter was foreseeable in terms of the previous cases involving Laurence Tribe, Doris Kearns Goodwin, and SIU President Glenn Poshard.

A quote from Poshard in 2012: “If I had committed intentional plagiarism, I wouldn’t be the president here today or anyplace else."

"Steve Jobs' ultimate afterlife victory will drive prices down, not up"

See the post Apple Winning the Patent Wars Is Great for Innovation .

Separately, by Aaron Rakers from within Apple's patent victory over Samsung: What the analysts say :

Although Samsung has responded by suggesting that a win for Apple would result in fewer options and higher prices for consumers, we think Apple has worked diligently to make its smartphones and tablets more affordable by offering previous generation devices at reduced prices.

A different human genetics case at the CAFC

The non-patent case at the CAFC, Stone v. Secretary of HHS , nevertheless gets into human genetic issues, in the dissent of Judge Newman:

(Special Master Report that “the undersigned finds that petitioners would have likely demonstrated entitlement to compensation if respondent had not demonstrated that Amelia’s SMEI was caused by the genetic mutation located in her SCN1a gene”) (quoted in Secretary’s brief 10). Nevertheless, the Special Master and the Court of Federal Claims denied Vaccine Act relief on the ground that causation had not been shown. They held that a DNA mutation in the SCN1A gene of each infant, which the government’s experts testified appeared to be associated with the seizure disorder of both claimants, could have eventually produced the disorder.

On the illusion of truth

The New York Times has an article The Best Book Reviews Money Can Buy on the activities of one Todd Rutherford, on his book review mill at

Within the article, one has text:

Consumer reviews are powerful because, unlike old-style advertising and marketing, they offer the illusion of truth. They purport to be testimonials of real people, even though some are bought and sold just like everything else on the commercial Internet.

**Of reviews, see also IPBiz post
Evans and Gyulai escape misconduct charges at UPenn
, with text

The critics said Emory University's psychiatry chairman Charles Nemeroff reviewed mood disorder therapies in the monthly journal Nature Neuroscience without revealing his ownership of a patent on one of the treatments.

On the "illusion of truth," contemplate the previous IPBiz post

Grassley tracking down physician/faculty who lend names to ghost-written articles
, which included the text:

Concerns have been raised, however, that some medical literature may be little more than subtle advertisements rather than independent research.

Sunday, August 26, 2012

Bob Schieffer in Tampa on August 26, 2012

How much rain will fall on Mitt Romney's parade? Schieffer talks with Marco Rubio.

Schieffer starts with Dave Bernard, a weather person at CBS-Miami. Winds of Isaac are 65 mph. Projected to become a hurricane later tonight. The bigger issue is the northern Gulf coast. [As to southwest Florida, see List of other closings in Southwest Florida ]

Marco Rubio will introduce Mitt Romney to the convention on Thursday night.

Rubio noted: Obama cannot say "vote for me, because things have gotten better."
What grows the middle class is new jobs. The job of government is to make it easier to grow jobs. Confidence to invest

Schieffer hammers on: Romney has locked himself into extremist positions. Opposition to tax credits for energy. [There was a flaw in the tv presentation wherein tape was re-wound and a clip was repeated a second time.]

See President Obama Calls Romney's Ideas 'Extreme'

CBS Sunday Morning on August 26, 2012

Lee Cowan, not Charles Osgood, hosted "CBS Sunday Morning" on August 26, 2012.

Rita Braver did a piece on same sex marriage, with special emphasis on issues in the state of Washington. See Fighting at the ballot box for the right to marry.

Almanac. August 26, 1920. The right to vote for women. Suffrage movement. Tennessee was the 38th state, to ratify, putting it over the amendment over the top. 73 and 17 women in the House and Senate, respectively.

Bill Geist on wood carving with a chain saw by Ray Murphy, a recycled story. See
CBS Sunday Morning on July 31, 2011
. Personalized belt buckle act.

Next interview of actress Rashida Jones done by Lee Cowan. Her brightness comes from sharing the stage with others. TV show "Parks and Recreation." Karen in "The Office." A role in "The Social Network." Mother is Peggy Lipton; father Quincy Jones. Quote: It's so hard to same normal. She went to Harvard. Frenemy of the State, comic book. Volunteer for the International Rescue Committee.

Summer camp for children with special illnesses by Martha Teichner. Founded by Paul Newman. "Hole in the Wall Gang" camp. Newman dated 8.4 million to the camp, which opened in 1988. Newman's daughter Lissy is involved in running the camp. Liam Talbot is a child (now 14, with metabolic and mitochondrial disease) was interviewed. The people at camp deal with the limitations of the children. The camp allows the children to be normal. Roxy Kubis with Beckett's lymphoma. Around 1/3 of the counselers at camp were once campers. There are 9 one week sessions in the summer. Ratio of staff to kids is about one to one. There is a tree house, thirty feet up in the air. Now, camp will see 20,000 kids per year. Budget of 10 million per year. Zach Stengel has hemophilia. One week of independence gave him confidence. Colin Lynch was counseler, who is also hemophiliac. The children have each other.

Remembering Phyllis Diller, just for laughs. Died at her home in Los Angeles. You get dry and brittle when you get old; I'm a fire hazard. My archenemy is Martha Stewart. Lines about Fang. She was born in 1917. Got her start in San Francisco. Appeared on Groucho Marx. Three movies with Bob Hope. Nobody's that sick. Was a classically trained pianist. She was 95 years old.

The Sunday Profile was on Glenn Campbell, done by Anthony Mason. Rialto Square Theater in Joliet, Illinois. Campbell diagnosed with Alzheimers last year. [This story is re-cycled.] His younger children, Cal, Shannon, Ashley, have joined him on his "farewell" tour. If you do it perfect, they will want it that way every time.
Campbell has to be reminded that he has Alzheimers. Campbell struggles with the present but remembers the past. Studio musician group "The Wrecking Crew." Backed up the Monkees in "I'm a Believer." Campbell filled in for Brian Wilson. In 1967, solo career took off on a Jimmy Webb song. The Smothers Brothers asked Campbell to do the summer replacement show for them. The Glenn Campbell Good Time Hour. A show with Johnny Cash. John Wayne visited back stage. Role in True Grit. "I looked so bad in it, John Wayne won an Oscar." I have been walkin the streets so long. Affair with Tonya Tucker. Met his current wife Kim in 1981. Ghost on the Campus album. Audiences are hoping he can keep the line open a little longer.

A Steve Hartman story on "painting the town." Town of Gloucester, Ohio.
Jim Cotter started by painting fire hydrant, guard rail, then houses. Over the last few months, more volunteers. First story aired in May 2012. Since then 260 people showed up and painted 17 houses. Don't wait on the government, a grant or outside money. The widower has found a fresh coat of purpose. The story is sort of re-cycled, but it is updated.

Lee Cowan on donkey (Democrat) and elephant (republican) symbols. Jackson called jackass. Image of strong willed donkey. Jackson adopted it. Thomas Nast provided Republicans with elephant in 1874. The Republican Vote on side of elephant. See How the parties got their animal symbols

Bob Schieffer in Tampa. Will he be covering a convention or a hurricane. Isaac.

Next week on Sunday Morning: a visit to central casting (a recycled story!)

Sunday morning. Spiriva Handihaler. Elephants in Kruger National Park in South Africa. Monkey thrown in.

Lee Cowan appears at the end of the show.

Saturday, August 25, 2012

Global Warming/Climate Change in Blogosphere

On Science, Weigh Qualifications
by Juris Vagners

The recent publication of two op-eds on global warming (aka climate change) has caused a flurry of activity in the blogosphere. Long-term global warming caused primarily by human activities is called anthropogenic global warming (AGW) to differentiate from global warming that may be attributed to other causes.

The two articles are “The Conversion of a Climate-Change Skeptic” by Professor Richard A. Muller in the July 30 New York Times, and “PNAS Plus: Perception of Climate Change,” by J. Hansen, M. Sato and R. Ruedy published online in the Proceedings of the National Academy of Sciences. The credentials of Professor Muller are extensive. He is a professor of physics at the University of California at Berkeley and a former recipient of a McArthur Foundation fellowship (aka “genius grant”). A complete biography of Professor Muller, as well as information on the study by the Berkeley Earth Surface Temperature Project (the basis for Professor Muller’s op-ed), can be found at Dr. Hansen is a professor at Columbia University and a scientist at NASA’s Goddard Institute for Space Studies. He has been actively advocating the reality of AGWfor over 24 years. His op-ed appeared in the Aug. 4 issue of The Washington Post. Professor Muller’s views are those of one who was a skeptic of AGW for years but changed his stance after considerable analysis, while Dr. Hansen’s views have remained unchanged over years of study.

Both articles immediately drew vociferous attacks from the deniers of AGW. I will note a few of the prominent ones with comments regarding their qualifications. The first was by Anthony Watts (his blog is “Watts Up With That?”) now widely quoted by those attacking Professor Muller’s paper. What are the qualifications of Mr.Watts? His career consists primarily as a broadcast meteorologist. There is a claim in his biography that he studied at Purdue University, but there is no record provided that he actually received a degree. Another critic is Marc Morano who runs the website What are Mr. Morano’s qualifications? He has a bachelor of arts in political science. He worked as a producer in the mid-’90s for radio commentator Rush Limbaugh, and was among the first reporters to write about the Swift Boat Veterans for Truth campaign scrutinizing John Kerry’s Vietnam War record. Earlier this year, Mr. Morano penned an article questioning the Purple Heart medals of Rep. John Murtha, D-Pa., a leading critic of George Bush’s Iraq policy. Neither Watts nor Morano have any scientific credentials.

Another critic of Professor Muller’s conclusions is Professor Judith Curry at Georgia Institute of Technology. Professor Curry does have significant scientific credentials, however, her criticism is more of the methodology used by the Berkeley Earth group rather than the reality or lack thereof of AGW (see It is an age-old argument in science: How complicated should the model be that is used to analyze a given set of data? A basic tenet of physics is that the simplest model that explains the phenomena is best.

So what is the moral of this story? When forming opinions in a field in which one lacks specific expertise, one must not only evaluate the subject matter discussed, but also the qualifications of those who argue pro and con. An excellent article “On Experts and Global Warming” by Professor Gary Gutting of the University of Notre Dame can be found on The New York Times opinion blog The Stone. To first form an objective view of climate change, I recommend reading the consensus paper on climate change by experts in the field published by the American Meteorological Society (AMS), This paper, an information statement of the AMS, is updated regularly as new information comes on line, intended to provide a trustworthy, objective, and scientifically up-to-date explanation of scientific issues of concern to the public at large.

The bottom line is: All credible evidence points to the fact that AGW is real. What can and should society do about it?

Juris Vagners is a resident of Lake Wenatchee. He is professor emeritus at the University of Washington, a member of the faculty since 1967, and holds a doctorate in aeronuatical and astronautical sciences from Stanford University.


Friday, August 24, 2012

Samsung to appeal ruling for Apple

From CNN:

Samsung plans to challenge a U.S. court ruling that recommends more than $1 billion in damages to Apple over a patent dispute... In a statement, Samsung said it will "move immediately to file post-verdict motions to overturn this decision in this court, and if we are not successful, we will appeal this decision to the court of appeals."

The jury did not recommend awarding Samsung any money in its counterclaims that Apple had violated some of its patents.

"This is a huge win for Apple," Mark Lemley, a Stanford law professor, said in an e-mail. The award "is just large enough to make it the largest surviving patent verdict in history."

Samsung said the verdict should be viewed "as a loss for the American consumer."
"It will lead to fewer choices, less innovation, and potentially higher prices," the company said in a statement. "It is unfortunate that patent law can be manipulated to give one company a monopoly over rectangles with rounded corners, or technology that is being improved every day by Samsung and other companies.

"Consumers have the right to choices...this is not the final word in this case or in battles being waged in courts and tribunals around the world, some of which have already rejected many of Apple's claims...."

Apple praised the court for "sending a loud and clear message that stealing isn't right."

"The mountain of evidence presented during the trial showed that Samsung's copying went far deeper than even we knew," the company said in a statement.

An issue still to be decided is whether to grant injunctions that could prevent Samsung from selling products that infringe on Apple's patents. Judge Lucy Koh wanted both sides to be ready for a hearing on the matter in two weeks, but Samsung's team argued that wasn't enough time. A hearing was scheduled for September 20.
Apple had asked for $2.7 billion in damages, claiming that Samsung "ripped off" its iPad and iPhone designs. Samsung countersued Apple for infringing on five of its patents and asked for $519 million.

The lawsuit is the largest yet in the ongoing worldwide patent brawl between the two companies, which itself is just one battle in Apple's war against Google's Android mobile operating system. On August 24, a South Korean court found that both parties had infringed on each other's patents, banning the sale of the iPhone 3GS, iPhone 4, two iPad models and Samsung's Galaxy S2. The Korean court ordered Apple to pay Samsung $35,000 and Samsung to pay Apple $22,000.

See: Samsung to fight court ruling in Apple patent dispute

Apple beats Samsung in ND Cal; jury verdict of $1.05 billion! Bad news for Android.

From Reuters:

Apple Inc. scored a sweeping legal victory over Samsung on August 24 as a U.S. jury found the Korean company had copied critical features of the hugely popular iPhone and iPad and awarded the U.S. company $1.051 billion in damages.

The verdict -- which came much sooner than expected -- could lead to an outright ban on sales of key Samsung products and will likely solidify Apple's dominance of the exploding mobile computing market.

A number of companies that sell smartphones based on Google's Android operating system may now face further legal challenges from Apple, a company that is already among the largest and most profitable in business history.

See Apple triumphs over Samsung, awarded over $1 billion damages

See also Apple's big win over Samsung -- what does it mean?

Verizon expert slammed in ActiveVideo case


Background in case:

ActiveVideo asserted U.S. Patent Nos. 5,550,578 (’578 patent), 6,205,582 (’582 patent), 6,034,678 (’678 patent), and 6,100,883 (’883 patent) against Verizon at trial. ActiveVideo alleged that Verizon’s video on demand (VoD) feature of the Verizon FiOS-TV system infringed claim 9 of the ’578 patent, claims 1 and 2 of the ’678 patent, claims 1 and 26 of the ’883 patent, and claims 5, 7, and 8 of the ’582 patent. The ’578, ’678, and ’883 patents share a common specification and generally disclose and claim interactive television systems and methods for delivering interactive television to subscribers.

Of background law on invalidity:

Invalidity must be established by clear and convincing evidence. Microsoft Corp. v. i4i Ltd, 131 S. Ct. 2238, 2242 (2011). Clear and convincing evidence is such evidence that produces “an abiding conviction that the truth of [the] factual contentions are ‘highly probable.’” Colorado v. New Mexico, 467 U.S. 310, 316 (1984). Anticipation under 35 U.S.C. § 102 is a question of fact. ClearValue, Inc. v. Pearl River Polymers, Inc., 668 F.3d 1340, 1343 (Fed. Cir. 2012). To anticipate a patent claim, a prior art reference must describe “each and every claim limitation and enable one of skill in the art to practice an embodi- ment of the claimed invention without undue experimen- tation.” Id. (quoting Am. Calcar, Inc. v. Am. Honda Motor Corp., 651 F.3d 1318, 1341 (Fed. Cir. 2011)). Obviousness under 35 U.S.C. § 103 is a question of law based on fac- tual underpinnings. Graham v. John Deere Co., 383 U.S. 1, 17 (1966). To invalidate a patent claim based on obvi- ousness, a challenger must demonstrate “by clear and convincing evidence that a skilled artisan would have been motivated to combine the teachings of the prior art references to achieve the claimed invention, and that the skilled artisan would have had a reasonable expectation of success in doing so.” Procter & Gamble v. Teva Pharms. USA, Inc., 566 F.3d 989, 994 (Fed. Cir. 2009) (quoting Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1361 (Fed. Cir. 2007)).

Verizon's expert was conclusory:

We agree with the district court that the obviousness testimony by Verizon’s expert was conclusory and factu- ally unsupported. Although Verizon’s expert testified that “[t]hese are all components that are modular, and when I add one, it doesn’t change the way the other one works,” J.A. 4709, he never provided any factual basis for his assertions.


This is not sufficient and is fraught with hindsight bias. See KSR, 550 U.S. at 418 (“A patent composed of several elements is not proved obvious by merely demonstrating that each of its elements was, independently, known in the prior art.”); Innogenetics, N.V. v. Abbott Labs., 512 F.3d 1363, 1373-74 (Fed. Cir. 2008) (“Such vague testimony would not have been helpful to a lay jury in avoiding the pitfalls of hindsight that belie a determination of obviousness.”).

KSR invoked as to "identify a reason":

See KSR, 550 U.S. at 418 (“[I]t can be important to identify a reason that would have prompted a person of ordinary kill in the relevant field to combine the elements in the way the claimed new invention does . . . because inven- tions in most, if not all, instances rely upon building blocks long since uncovered, and claimed discoveries almost of necessity will be combinations of what, in some sense, is already known.”); Innogenetics, 512 F.3d at 1373 (Fed. Cir. 2008) (“[K]nowledge of a problem and motiva- tion to solve it are entirely different from motivation to combine particular references . . . .”). Because the record evidence was insufficient for a reasonable jury to support a determination of obviousness, the district court’s grant of ActiveVideo’s JMOL on obviousness was not erroneous.

As to a sunset royalty:

Following trial, Verizon asked the district court to stay the injunction during an eight month “sunset” period during which a design around to the ActiveVideo patents could be completed. The district court stayed the perma- nent injunction for a six month sunset royalty period during which Verizon was ordered to pay a sunset royalty for its continued infringement. The court held that grant- ing this sunset royalty would mitigate harm to the public and provide Verizon considerable time to implement non-nfringing alternatives. Verizon moved this court for a further stay of the injunction pending appeal, which we granted.
On appeal, Verizon argues that the sunset royalty amount should be vacated because it was based on the “flawed damages methodologies” of ActiveVideo’s expert. Appellants’ Br. 42. ActiveVideo sought a sunset royalty amount of $3.40 per subscriber per month. Verizon argues that the royalty rate should be $0.17 per FiOS-TV subscriber per month. Verizon argues that ActiveVideo receives $0.17 before costs in its agreement with Cablevi- sion. In a thorough and well-reasoned opinion, the dis- trict court concluded that the sunset royalty rate should be $2.74 per FiOS-TV subscriber per month.

As to the conclusion:

For the foregoing reasons, the district court’s judg- ment of infringement against Verizon as to the ActiveVi- deo ’582 patent is reversed. The district court’s grant of summary judgment of invalidity as to the Verizon ’748 patent is vacated and remanded for further proceedings. The district court’s entry of a permanent injunction is reversed. The district court’s imposition of a sunset royalty is affirmed. The district court’s judgment of infringement with respect to the ActiveVideo ’578, ’678, and ’883 patents is affirmed. Because Verizon has not argued either before the district court or on appeal that a finding of non-infringement of the ’582 patent should result in a reduction of damages, we affirm the damages award against Verizon in full. The district court’s judg- ment in all other respects is affirmed.

CAFC does stream of commerce jurisdiction case

From the decision:

The Supreme Court recently revisited the stream-of-commerce theory in McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011). The Court, however, declined to resolve its long-standing split on that theory.
In McIntyre, the Court was asked to revisit questions left open in Asahi Metal Industry Co. v. Superior Court of California, Solano County, 480 U.S. 102 (1987). In Asahi, the Court’s members disagreed whether a defendant could be subject to personal jurisdiction in a forum merely because the defendant had placed a product in the stream of commerce. Justice Brennan, writing for four Justices, evaluated personal jurisdiction under the stream-of-commerce theory by relying on considerations of foreseeability. Justice Brennan wrote that “jurisdiction premised on the placement of a product into the stream of commerce is consistent with the Due Process Clause,” for “[a]s long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise.” Asahi, 480 U.S. at 117 (opinion concurring in part and concurring in the judgment).
Justice O’Connor and three other Justices rejected Justice Brennan’s approach. In their view, mere foresee-ability or awareness that “the stream of commerce may or will sweep the product into the forum State” is insuffi-cient. Id. at 112.

And, what to do when there is no Supreme Court majority opinion?

Because McIntyre did not produce a majority opinion, we must follow the narrowest holding among the plurality opinions in that case. Marks v. United States, 430 U.S. 188, 193 (1977). The narrowest holding is that which can be distilled from Justice Breyer’s concurrence—that the law remains the same after McIntyre.


Because we must proceed on the premise that McIn-tyre did not change the Supreme Court’s jurisdictional framework, we must apply our precedent that interprets the Supreme Court’s existing stream-of-commerce prece-dents. That precedent is Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558 (Fed. Cir. 1994).


Here, we adhere to the Beverly Hills Fan line of cases and decline to take a position on the stream-of-commerce theory, because the result is clear and would not change under any articulation of that theory. The paltry allega-tions in the complaint cannot support the exercise of personal jurisdiction in Wyoming.

link AFTG-TG v. Nuvoton

CAFC rules against Teva in folate case involving Lilly and Princeton

On the legal issue:

The sole disputed issue in this appeal is whether the asserted claims of the ’932 patent are invalid for obvious- ness-type double patenting. The doctrine of obviousness- type double patenting is intended to “prevent the exten- sion of the term of a patent . . . by prohibiting the issu- ance of the claims in a second patent not patentably distinct from the claims of the first patent.” In re Longi, 759 F.2d 887, 892 (Fed. Cir. 1985). “A later patent claim is not patentably distinct from an earlier claim if the later claim is obvious over, or anticipated by, the earlier claim.” Eli Lilly & Co. v. Barr Labs., Inc., 251 F.3d 955, 968 (Fed. Cir. 2001). As with statutory obviousness under 35 U.S.C. § 103, obviousness-type double patenting is an issue of law premised on underlying factual inquiries. Otsuka Pharm. Co. v. Sandoz, Inc., 678 F.3d 1280, 1290 (Fed. Cir. 2012). Accordingly, we consider the district court’s ultimate conclusion on obviousness-type double patenting without deference, but we review any predicate findings of fact for clear error. Id.

Teva's position:

On appeal, Teva contends that the district court erred by failing to invalidate the claims for obviousness-type double patenting. Teva’s primary argument concerns the appropriate legal standard for evaluating obviousness- type double patenting. Relying on our decision in Amgen Inc. v. Hoffmann-La Roche Ltd., 580 F.3d 1340 (Fed. Cir. 2009), Teva contends that the correct analysis involves only the differences between the claims at issue, so that any features held in common between the claims—in this case, all but the aryl regions of the ’608 Compound and pemetrexed—would be excluded from consideration. In Amgen, we explained that once the differences between claims are established, the obviousness-type double patenting analysis entails determining “whether the differences in subject matter between the claims render the claims patentably distinct.” 580 F.3d at 1361. But those differences cannot be considered in isolation—the claims must be considered as a whole. Amgen expressly noted that “[t]his part of the obviousness-type double patenting analysis is analogous to an obviousness analy- sis under 35 U.S.C. § 103.” Id. And just as § 103(a) requires asking whether the claimed subject matter “as a whole” would have been obvious to one of skill in the art, so too must the subject matter of the ’932 claims be con- sidered “as a whole” to determine whether the ’608 Com- pound would have made those claims obvious for purposes of obviousness-type double patenting. Gen. Foods Corp. v. Studiengesellschaft Kohle mbH, 972 F.2d 1272, 1278 (Fed. Cir. 1992) (“Claims must be read as a whole in analyzing a claim of double patenting.”). Thus, the district court did not err by examining whether one of ordinary skill in the art would have been motivated to modify the ’608 Com-On the merits, Teva also disputes the district court’s findings and conclusions in view of the evidence pre- sented. Specifically, Teva contends (1) that placing a phenyl group in the aryl position represented inescapable “conventional wisdom” in the field based on antifolate structures known at the time, (2) that the district court erred in finding that one of skill in the art would have considered a phenyl group undesirable within the struc- tural context of the ’608 Compound, and (3) that the district court erred by discounting its theory that princi- ples of bioisosterism6 would have suggested replacing the ’608 Compound’s thienyl with phenyl.

Teva's argument did not go well:

Rather than a compo- sition and a previously disclosed use, the claims at issue recite two separate and distinct chemical compounds: the ’775 Intermediate and pemetrexed, differing from each other in four respects. That alone suffices to undermine Teva’s argument regarding the ’775 Intermediate, for the asserted claims of the ’932 patent do not recite a use of the same compound, but a different compound altogether. The cited cases therefore do not govern.

The district court's analysis was proper:

As the district court recognized, the correct double patenting analysis in this case turns on an evaluation of what Lilly has claimed, not what it has disclosed. Putting aside the teachings in the ’775 patent’s specification, Teva’s double patenting contentions evaporate. The evidence of record characterizes the ’775 Intermediate as a versatile compound from which a skilled chemist could derive innumerable final products beyond just pe- metrexed, and the district court found that there would have been “no reason” to pursue pemetrexed among the various other avenues that would have been considered possible at the time. We see no error in the district court’s findings or its conclusion on this point, and, al- though not controlling, we further note that its analysis comports with PTO guidelines on the patentability of related products. See Manual of Patent Examining Pro- cedure § 806.05(j) (8th ed., rev. 8, 2010) (“[A]n intermedi- ate product and a final product can be shown to be distinct inventions if the intermediate and final products are mutually exclusive inventions (not overlapping in scope) that are not obvious variants, and the intermediate product as claimed is useful to make other than the final product as claimed.”). In sum, the district court correctly concluded that the asserted claims are not invalid for obviousness-type double patenting over the ’775 Intermediate.

link to case

The pink poodle matter: copying or not?

See the post Chain store in another plagiarism row

Key words: Sophie Cooper, Scoops Designs

Things are not always what they seem to be

In a post New York Robbers Unmasked by Grateful Note for Their Disguise , one learns the story of how two robbers used realistic masks, which confused the police investigating the case, but the robbers were done-in by a thank-you note to the mask-maker:

For months cops thought they were looking for two white suspects, when the investigation received an important tip.

One suspect bore a striking similarity to "Mac the Guy," a silicon mask manufactured by movie-makeup company CFX Composite Effects.
When investigators contacted the company, they were told Byam had recently emailed the firm in thanks for the mask.

"I'm sending this message to say I'm extremely pleased by CFX work on the mask," Byam allegedly wrote the company, as first reported by the New York Post and confirmed by the NYPD and the company. "The realism of the mask is unbelievable."

Byam and Monsalvatge are black.

Trickery also infected the patent reform movement. From a previous IPBiz post relating a story about doughnuts in Florida to patent reform:

An AP story notes that doughnut selling lawyers were partly to blame for the demise: A county commissioner who owns a doughnut shop and two lawyers who own a new Dunkin' Donuts on Panama City Beach turned against him ... After the lawyers threatened to sue, his bosses at the Florida Health Department made him remove the anti-fried dough rants and eventually forced him to resign, [Newsom] says.

This little story evokes themes in the story of patent reform, although the patent reform saga has added complexity. In patent reform, the big doughnut sellers (eg, IBM, Cisco) are complaining about the little doughnut sellers ("trolls") and are trying to implement "reform" to favor the big doughnut sellers, rather than to get rid of the doughnuts. The popular press would have the public believe that the little doughnut sellers are the only ones selling doughnuts, and that "reform" will get rid of the doughnuts. Anybody who actually advocated getting rid of the doughnuts would meet the same fate as Dr. Newsom, likely from doughnut selling lawyers. Furthermore, the position of the big doughnut sellers would do significant harm to smaller vendors, who aren't selling doughnuts at all.

Thursday, August 23, 2012

Plagiarists caught by peers

A post titled Why Students Who Plagiarize Get Away With Nothing contains the text

Coursera is the online venture that has partnered with Stanford, Princeton and other elite institutions of higher education to offer web versions of popular courses to the public. The instances of plagiarism, which apparently occurred in at least three Coursera courses, were discovered by fellow students engaged in "peer grading," evaluating their classmates' assignments. The professor teaching one of the courses posted a message imploring his students to stop copying others' work without attribution.

One recalls that Joe Biden's plagiarism at Syracuse Law School was initially snagged by a form of peer grading.

CAFC decides jurisdictional issue in Gemstar case

The bottom line:

The district court erred in finding original patent jurisdiction over Gemstar’s contract claims but did not err in declining to exercise supplemental jurisdiction. As such, this court reverses the finding of jurisdiction and vacates the district court’s decision on the merits of Gem-star’s contract claims. This court affirms the district court’s dismissal of Gemstar’s declaratory judgment claim because any error in its decision is rendered harmless by Gemstar’s participation in the Texas litigation.

link for PERSONALIZED MEDIA COMMUNICATIONS v. Gemstar (and others)

Wednesday, August 22, 2012

CAFC interprets 35 USC 102(g)(2) in AMKOR TECHNOLOGY

The relevant text:

Because nothing in the legislative history indicates that Congress attempted to abandon this court’s interpretation of the “made in this country” language of the pre-AIPA version of § 102(g) when it amended the statute and retained the language in § 102(g)(2), this court holds that the court’s interpretation of this language in Scott governs this non-interference, prior invention case under § 102(g)(2). See Lorillard v. Pons, 434 U.S. 575, 581 (1978) (“[W]here . . . Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorpo-rated law, at least insofar as it affects the new statute.”). This court’s interpretation of the “made in this country” language of § 102(g) (1994) in Scott is consistent with how both parties in this appeal and district courts have inter-preted the “made in this country” language of § 102(g)(2) (2006) as it applies to prior invention, outside of the interference context. See Solvay S.A. v. Honeywell Spe-cialty Materials LLC, 827 F. Supp. 2d 358, 363-64 (D. Del. 2011) (“[N]o authority indicat[es] that the language of § 102(g)(2) should be interpreted differently than that same language had been interpreted before the 1999 amendment.”), on remand from 622 F.3d 1367 (Fed. Cir. 2010); Therasense, Inc. v. Becton, Dickinson & Co., 560 F. Supp. 2d 835, 865 n.26 (N.D. Cal. 2008) (“[F]or an inven-tion conceived outside the United States, the date of conception for purposes of priority for a United States patent is the date the invention is first reported to the inventor’s agent within the United States.” (citing Scott, 281 F.3d at 1247)).

As to reasoning:

The Oka rule does not apply to patent owners like ASAT in validity disputes. This is not an interference, and the standards that apply to interferences do not necessarily apply to disputes over validity. An issued patent is entitled to a presumption of validity under 35 U.S.C. § 282, which can be overcome only with clear and convincing evidence. Microsoft Corp. v. i4i Ltd. P’ship, 131 S. Ct. 2238, 2241 (2011); Sandt, 264 F.3d at 1350. The presumption of validity and the clear and convincing burden associated with it did not apply in the interference in Oka. In Oka, the question of entitlement to priority did not carry any presumption and was determined based on preponderant evidence. See Oka, 849 F.2d at 584. In Oka, even under the preponderant evidence standard, the junior party could not prove prior invention by presenting a range of dates that primarily predated but overlapped by one day with the senior party’s conception date. Id. at 584-85.


Evidence establishing that there might have been a prior conception is not sufficient to meet the clear and convincing burden needed to invalidate a pat-ent. Accordingly, the ALJ was correct in his First Supp. ID when he concluded that “Carsem [] failed to prove by clear and convincing evidence that the April/May [] date of invention . . . is prior to the [May through August] date of invention accorded the asserted claims of the patents-in-suit.” First Supp. ID at 18. The Commission commit-ted legal error in reversing this determination based on an erroneous application of the Oka rule to the patent holder. Because Carsem failed to prove prior invention in the United States by clear and convincing evidence, this court reverses the Commission’s determination that the ’277 Patent is invalid under § 102(g)(2).

As to obviousness:

We are not persuaded by Carsem’s argument, which fails to point to any evidence of a motivation or reason to remove the fused lead from the JP-456 reference.

As to KSR:

Carsem was required to present evidence that one of ordinary skill in the art at the time of the invention would have been motivated or found reason to remove the fused lead from the JP-456 reference, or that common sense would have led one of skill in the art to remove the fused lead based on a known problem, design need, or market pressure. KSR Int’l v. Teleflex, 550 U.S. 398, 418-20 (2007).


CAFC on the rule against recapture

As to the conclusion of Greenliant v. Xicor:

Here, Xicor is bound by the arguments it made during the prosecution of the ’585 patent, which clearly establish that it surrendered devices produced through the use of non-TEOS reactants for the recited low pressure chemical vapor deposition in order to gain allowance. Thus, we affirm the district court’s holding that claims 12 and 13 of the RE’370 patent are invalid under the rule against recapture.

The background law

Under 35 U.S.C. § 251, a patentee may, within two years of the issuance of a patent, seek a broadening reissue of that patent if, among other things, the patentee originally claimed “less than he had a right to claim.” See MBO Labs., Inc. v. Becton, Dickinson & Co., 602 F.3d 1306, 1313 (Fed. Cir. 2010). However, under the rule against recapture, “a patentee is precluded from regaining the subject matter that he surrendered in an effort to obtain allowance of the original claims.” N. Am. Con-tainer, Inc. v. Plastipak Packaging, Inc., 415 F.3d 1335, 1349 (Fed. Cir. 2005) (internal quotation marks omitted). This case presents the question of whether broadening claims 12 and 13 of the reissued RE’370 patent (the claims at issue in this case) improperly recaptured claim scope that Xicor1 had previously surrendered during the prosecution of its predecessor, U.S. Patent No. 5,977,585 (“the ’585 patent”).

As to standards

“We review a district court’s legal determination that a reissue patent violates the rule against recapture with-out deference.” MBO Labs., 602 F.3d at 1312. Because the district court decided this case on summary judgment, we apply a de novo standard of review. Edwards Lifesciences LLC v. Cook Inc., 582 F.3d 1322, 1335 (Fed. Cir. 2009). Regardless of the standard applied by the district court, we apply the correct clear and convincing evidence standard on appeal and agree with the district court’s result. See Yoon Ja Kim v. ConAgra Foods, Inc., 465 F.3d 1312, 1322 (Fed. Cir. 2006).


To decide whether a patentee surrendered certain subject matter, we must determine “whether an objective observer viewing the prosecution history would conclude that the purpose of the patentee’s amendment or argu-ment” concerning a particular claim was for reasons of patentability, that is, “to overcome prior art and secure the patent.” Kim v. ConAgra Foods, Inc., 465 F.3d 1312, 1323 (Fed. Cir. 2006).

Plagiarism: the "I'm too important" defense

A post by Marisa Guthrie on the Fareed Zakaria plagiarism matter ends with the text:

Certainly others, including MSNBC contributor Mike Barnicle, historian Doris Kearns Goodwin and New York Times columnist Maureen Dowd have successfully weathered plagiarism accusations. All are gainfully employed by major media outlets. "Some of these people fall in the too-big-to-fail category because they attract ratings or readers," notes a veteran Washington journalist. "So media companies are willing to give them a pass for offenses that might lead to the firing of less experienced journalists. The key is for the transgressors to admit the mistake, apologize and move on."

The first two were almost regulars on "Meet the Press" under the regime, leading one to wonder whether the show was really "Meet the Plagiarists."

The Laurence Tribe matter could fit into the rubric also.


See also:

Tuesday, August 21, 2012

Reflecting on Jonah Lehrer and Fareed Zakaria

In Journalists Dancing on the Edge of Truth, David Carr writes

I once lost a job I dearly wanted because I had misspelled the name of the publisher of the publication I was about to go to work for. Not very smart, but I learned a brutal lesson that has stayed with me. Nobody ever did that for Mr. Lehrer, even after repeated questions were raised about his work.

In the current era of high unemployment, and shotgunning of resumes, lots of candidates aren't even mentioning "the name of the publisher of the publication I was about to go to work for", much less misspelling it.

Carr also noted: Then again, the Web’s ferocious appetite for content — you are only as visible as your last post, as Clay Shirky recently said to me — probably had something to do with why Mr. Lehrer tried to feed the beast with retreads and half-baked work.

Fareed Zakaria does not have to worry about last posts, or resumes, because TIME and CNN took him back. He did remove himself from his Yale position.

EPA's reasoning on RFS

See EPA brief explains decision to reject industry challenge to biofuels rule


The Environmental Protection Agency (EPA) filed a brief Monday [20 Aug 2012] explaining its decision to deny a petition that would have exempted refiners from part of a biofuel blending mandate.

The documents filed Monday with the U.S. Court of Appeals for the District of Columbia reveal the reasoning behind EPA's move to shoot down the American Petroleum Institute’s (API) challenge of the renewable fuel standard (RFS). EPA determined that enough advanced biofuels — generally understood to be made from non-food products — existed to meet that portion of the RFS for 2012.

Sirona BPAI loss affirmed by CAFC

The CAFC affirmed the decision of the BPAI in Sirona Dental v. Kappos
involving re-exam 95/000,390 of US Patent 6,709,694 to 3M.

In the BPAI decision of 25 August 2011, the Board cited to KSR v. Teleflex, 550 U.S. at 417, for the proposition that an obviousness analysis "must ask whether the improvement is more than the predictable use of prior art elements according to their established function."

The BPAI distinguished cases Wyers v. Master Lock, 616 F.3d 1231 (CAFC 2010) and In re ICON, 496 F.3d 1374 (CAFC 2007) on the basis that these case involved simple mechanical inventions.

Thus, the BPAI concluded that Sirona failed to articulate some reasoning with some rational underpinning to support its proposed obviousness rejection. [KSR at 418.]

Monday, August 20, 2012

Whitserve wins on infringement at CAFC over CPI

In Whitserve v. CPI, the summary:

The jury verdict of infringement is affirmed with regard to the valid claims.
The jury verdict finding the ’007 patent to be not anticipated by the Schrader Patent is affirmed in part. The jury’s verdict regarding claim 10 of the ’007 is reversed because that claim is invalid as anticipated by the Schrader Patent.
The jury’s damages award is vacated and re-manded for a new trial.
The trial court’s holdings regarding WhitServe’s post-trial motions for a permanent injunction, compulsory license, prejudgment interest, en-hanced damages, attorneys’ fees, and a post-trial accounting are vacated and remanded.
The trial court’s denial of Whitmyer’s request for sanctions and fees is affirmed.

Judge Mayer dissented, beginning:

I respectfully dissent. There can be no infringement of U.S. Patent Nos. 5,895,468, 6,049,801 and 6,182,078 (collectively the “WhitServe patents”) because they are invalid. The WhitServe patents are “barred at the threshold by [35 U.S.C.] § 101,” Diamond v. Diehr, 450 U.S. 175, 188 (1981), because they are directed to the abstract idea that it is useful to provide people with reminders of approaching due dates and deadlines. See Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1303 (2012) (explaining that section 101 performs a vital “screening function”); Bilski v. Kappos, 130 S. Ct. 3218, 3225 (2010) (noting that whether claims are directed to statutory subject matter is a “threshold test”).

Sunday, August 19, 2012

"60 Minutes" on August 19, 2012

The stories on "60 Minutes" on August 19, 2012 were recycled from previous episodes.

#1. The investigation of the collapse of Lehman Brothers. Steve Kroft mentioned in the beginning on August 19, that Valukas had never given an interview until April 2012. From April 22, 2012: The first story was on Lehman Brothers, with Lawrence University graduate Anton Valukas interviewed. Lehman had borrowed $44 for every $1.00 it had in the bank. There were colorable claims that this was a fraud. Misleading financial statements. The accounting firm was Ernst & Young. "It was a shell game." Repo 105. This is deception to make the company look better than it was. Matthew Lee an accountant at Lehman was concerned about Repo 105. November 30, 2007 was end of fiscal year; Lehman reported a record year. This was 10 months before Lehman went bankrupt. A letter written in May 2008. Possibly unethical and unlawful. Six days after the letter, Lee was let go after 14 years. Richard Fuld, former CEO of Lehman, claimed NOT to know about Repo 105 practices. Fuld noted before Congress that the SEC conducted regular analyses of Lehman in 2008. Claims against Lehman for $370 billion.

#2. Abuse of children by priests in Ireland done by Bob Simon. There was a mention of a story earlier this year about Archbishop Martin of Dublin. The Murphy Commission asked for files. Archbishop Martin provided the files. Martin noted sexual abuse is a total abuse of power. Saying to the child: you're worthless. Paddy Sheehan runs a cable car that takes visitors to an island: he observed "too much coverup." Cardinal Sean Brady. The Vatican recalled its ambassador to Ireland.

#3. Aerosmith, including the riding coattail commest by Tyler. Interview by Lara Logan.

"60 Minutes" on March 11, 2012

CBS Sunday Morning on August 19, 2012. Ben Stein.

CBS Sunday Morning was hosted by Charles Osgood on August 19, 2012.

The Journey of Rufus Wainwright, reported by Anthony Mason. Elton John has called Rufus Wainwright the "best songwriter on the planet." Wainwright wants to do everything, and he has, at 39 years old -- 10 albums -- recording pop, writing a classical opera, as well recreating Judy Garland's Carnegie Hall concert, a live recording earned him a Grammy nomination. He is open and honest in his music and life, on all fronts, but he is now "out of the game." His mother, folk singer Kate McGarrigle, died from cancer two years ago, and Rufus said his world changed, that his mother is more present than before, that he sees her in everything. Long openly gay, he will marry his partner, Jörn Weisbrod this week. [Update: Publicist Bianca Bianconi confirmed Wainwright and Jorn Weisbrodt were married Thursday, August 23, in a ceremony on Long Island.] He enjoys 'escaping' to Montauk and wrote and recorded a song on album "Out of the Game" called "Montauk" for his daughter, Viva Katherine Wainwright Cohen. [Viva's birth mother is his good friend Lorca Cohen, daughter of singer Leonard Cohen.] Rolling Stone called him "the best new artist of the year" after his 1998 debut album. Commercial success did not immediately follow, and he became addicted to crystal meth; sought rehabilitation himself. Father is Loudon Wainwright III, Grammy Award-winning American songwriter, folk singer, humorist, and actor. Father-son relationship was strained after parents' divorce. He was raised by mother in Canada. Rufus and Loudon have reconciled since mother's passing, and on new album, relatives, including his father, sing back-up. "A person is born twice: first at birth, and again, when his mother dies," Wainwright believes and finds music in that.

See and

The show had several recycled stories, including Steve Hartman's "Helping Hands," on the death of Woody Davis in Corbett, Oregon. Woody, who was diagnosed with ALS, noted on tape that he was blessed that he was dying slowly, so that other people had the chance to talk to him about what he had meant to them.

The story on Alex Trebek by Susan Spencer was also recycled. The clip began with Jeopardy Power Players, and had clips from Robert Gibbs, Chris Matthews, and Kareem Abudul-Jabbar. There have been over 6000 episodes with Alex Trebek. Trebek had hosted a game show "Reach for the Top" in 1962 and took over Jeopardy when it went into syndication in 1984. Of the parodies on Saturday Night Live (which impale Sean Connery more than Trebek), Trebek noted "when you make fun of some like me, you have arrived."

The story by Lee Cowan on women named Betty (First Name Basis) was also recycled. The 16th Betty convention was in Hastings, Nebraska in April 2012.

The opinion piece by Ben Stein on gun violence/gun control was not recycled. Stein noted he spent summers in Sand Point, in northern Idaho and lots of people have guns there. In places like Lost Angeles, Chicago, and Washington, DC, with strict gun control, there is much gun violence. Stein concluded: There's nothing easy about the relationship between gun control and crime. I wish I had a better solution but I don't, and neither does anyone else.

The moment of nature was by Spiriva Handihaler, and was badgers at play near Park City, Utah.

Saturday, August 18, 2012

Judge orders disclosure of paid bloggers in Oracle case

The post Oracle tells court patent blogger Florian Mueller is a 'consultant,' Google says it doesn't pay to influence media begins:

Oracle has admitted to the court that it retains the frequently-cited Florian Mueller of the popular blog FOSS Patents as a consultant. The official disclosure comes a week after the judge in Oracle's lawsuit against Google took the extraordinary step of ordering both parties to reveal any paid journalists or bloggers on their payrolls. Both companies filed their responses today, and Mueller is the only person named in either filing.

One goes back to the once-anonymous blogger, the Troll Tracker, who was employed by Cisco. See IPBiz post Frenkel and Yen: the Cisco Kid and Pancho, or the Lone Ranger and Tonto?

Friday, August 17, 2012

The Myriad method patent claims that failed 35 USC 101

Although claims to isolated genes were found patent-eligible under 35 USC 101 in the Myriad case, certain method claims were found patent-ineligible. For example:

1. A method for detecting a germline alteration in a BRCA1 gene, said alteration selected from the group consisting of the alterations set forth in Ta-bles 12A, 14, 18 or 19 in a human which comprises analyzing a sequence of a BRCA1 gene or BRCA1 RNA from a human sample or analyzing a sequence of BRCA1 cDNA made from mRNA from said human sample with the proviso that said germline alteration is not a deletion of 4 nucleo-tides corresponding to base numbers 4184-4187 of SEQ ID NO:1.
’999 patent col.161 ll.17-25 (emphases added).


1. A method for screening a tumor sample from a human subject for a somatic alteration in a BRCA1 gene in said tumor which comprises [] comparing a first sequence selected from the group consisting of a BRCA1 gene from said tumor sample, BRCA1 RNA from said tumor sample and BRCA1 cDNA made from mRNA from said tumor sample with a second sequence selected from the group consisting of BRCA1 gene from a nontumor sample of said subject, BRCA1 RNA from said nontumor sample and BRCA1 cDNA made from mRNA from said nontumor sample, wherein a difference in the sequence of the BRCA1 gene, BRCA1 RNA or BRCA1 cDNA from said tumor sample from the sequence of the BRCA1 gene, BRCA1 RNA or BRCA1 cDNA from said nontumor sample indicates a somatic altera-tion in the BRCA1 gene in said tumor sample.
’001 patent col.155 ll.2-17 (emphasis added)


Claim 20 of the ’282 patent, directed to a method for screening potential cancer therapeutics via changes in cell growth rates of transformed cells, was patent eligible. Those transformed cells, like the patent-eligible cells in Chakrabarty, are not naturally occurring. Rather, they are derived by altering a cell to include a foreign gene, resulting in a man-made, transformed cell with enhanced function and utility.

20. A method for screening potential cancer therapeutics which comprises:

growing a transformed eukaryotic host cell containing an altered BRCA1 gene causing cancer in the presence of a compound suspected of being a cancer therapeutic, growing said transformed eukaryotic host cell in the absence of said compound,

determining the rate of growth of said host cell in the presence of said compound and the rate of growth of said host cell in the absence of said compound and

comparing the growth rate of said host cells, wherein a slower rate of growth of said host cell in the presence of said compound is indicative of a cancer therapeutic.
’282 patent col.156 ll.13–24 (emphases added).