Monday, April 29, 2013

Crossing lines at Hawaii Five O

In the episode -- "Imi loko ka 'uhane" -- on April 29, 2013, Hawaii Five O features “The Talk” co-host Aisha Tyler playing a talk show host "Savannah Walker", with a bit of the Five O action appearing as clips on a talk show.

On April 28, on CBS Sunday Morning, there was a segment on three-dimensional printers, and on April 29, a three-dimensional printer was used to copy US Treasury $100 bill engraving plates in the plot line of Hawaii Five O.

Cyanobacteria and humans/ethanol: This is something you never would have found with any sort of logical approach

From the post titled Thanks to rare alpine bacteria, researchers identify one of alcohol's key gateways to the brain :

The breakthrough came when Marc Delarue and his colleagues at the Pasteur Institute sequenced the genome of cyanobacteria Gloeobacter violaceus. They noted a protein sequence on the bacteria that is remarkably similar to the sequence of a group of ligand-gated ion channels in the human brain. They were able to crystallize this protein. Harris saw the results and immediately got in touch.

"This is something you never would have found with any sort of logical approach," he said. "You never would have guessed that this obscure bacterium would have something that looks like a brain protein in it. But the institute, because of Pasteur's fascination with bacteria, has this huge collection of obscure bacteria, and over the last few years they've been sequencing the genomes, keeping an eye out for interesting properties."

Harris and Howard asked their French colleagues to collaborate, got the cyanobacteria, changed one amino acid to make it sensitive to alcohol, and then crystallized both the original bacteria and the mutated one. They compared the two to see whether they could identify where the alcohol bound to the mutant. With further tests they confirmed that it was a meaningful site.

"Everything validated that the cavity in which the alcohol bound is important," said Harris. "It doesn't account for all the things that alcohol does, but it appears to be important for a lot of them, including some of the 'rewarding' effects and some of the negative, aversive effects."

Going forward, Harris and his lab plan to use mice to observe how changes to the key protein affect behavior when the mice consume alcohol.

Shimano loses at CAFC

The CAFC sustained the Board in the case Shimano v. Rea , related to re-exam 95/001,051.

As to the importance of presenting all arguments in the opening brief, note footnote 1 of the opinion:

In post-argument submissions, the parties have debated whether particular arguments were made to the examiner and the Board during the reexamination pro- ceedings. Rather that address those issues, we address the arguments made in the parties’ opening briefs on appeal and cross-appeal. Arguments not made in the parties opening briefs are ordinarily deemed waived, see Aventis Pharma, S.A. v. Hospira, Inc., 675 F.3d 1324, 1332-33 (Fed. Cir. 2012), and in a case such as this one, in which the record is very large and in which the parties have made a variety of different arguments at various stages of the proceedings, it is entirely appropriate to hold the parties to the specific arguments they have elected to present to this court in their opening briefs.

Sunday, April 28, 2013

"60 Minutes" on April 28, 2013

First story is with convicted serial killer Charles Cullen (angel of death), by Steve Kroft. Second with female jockey.

Charles Cullen had never spoken publicly about the crimes until the "60 Minutes" interview. Seven years ago the sentencing hearing was in Somerset County Court House in Somerville, NJ. Cullen is now in prison in Trenton, NJ. Victims ranged in age from 21 to 92. First victim was in St. Barnabas Medical Center in Livingston. Judge John Yengow was the victim, who was suffering from sunburn. Charles Graeber book "The Good Nurse." St. Lukes, Hunterdon were later stops. 91 year old Helen Dean. Digoxin. {"dig"). Complete heart block. Pyxis Medical System. Eleanor Stecker was 60 old. Michael Strenko. Cullen of Michael's death: "I felt overwhelmed at the time." Cullen grew up in West Orange, NJ. Cullen sees himself as a victim. St.Lukes in Bethlehem, PA hired Cullen after Cullen had killed 11 people. St. Barnabas allowed Cullen to resign and gave him two references.

Somerset Medical Center (Somerville, NJ) hired Cullen in Sept. 2002. Cullen killed 13 people in the next 13 months.
Floria Gaul was a priest. Hospital found high levels of Digoxin. Stephen Marcus. Dr. William Cors was director of Somerset Medical Center. Marcus: we have a legal obligation to report this. Somerset did report this three months later. Tim Braun and Allen Baldwin were detectives in Somerset County. Amy Ridgeway, nurse. Picture of the restaurant "The Office" in Somerville. Cullen: "I want to go down fighting." Amy: I wasn't honest with him. Told Cullen the investigators were looking at Amy. Formal admission took 7 hours. Graeber suggests the possibility of multiple hundreds of victims.

Bob Simon on Rosie Nprovnick, who was born in New Jersey. Rosie is five foot two and weighs around 110 pounds. Rosie has run more than 1500 races. This year, Rosie has finished first, second, or third in 60% of her races. Won Kentucky Oaks last year. Horse: Believe You Can. Rose has had five major spills. "It's a passion." Todd Fletcher. Shanghai Bobby. Barbara Jo Reuben. Sweet Sensation, pony. Rosie's mother, Cindy. Farrier. Pony, Sugar. Smooching noise.
If you dwell on every loss, you are going to do a lot of dwelling. This game is very up and down. Will be riding My Loot.

CBS Sunday Morning on 28 April 2013

Charles Osgood introduced the stories for April 28, 2013. A Sunday Morning with a difference. Punching the fast forward button to see the trends that are changing our lives. Mo Rocca does the cover story on the world of the future. Yesterday's vision of tomorrow. Second, Serena Alschul on three dimensional printing. Now, to engineer human tissue. Printing the human body. Third, Tracy Smith on Jeremy Irons. Global garbage problem. Fourth, Barry Peterson on Is anybody out there? Fifth, Lee Cowan on Meet the Jetsons. The year 2062. Nostalgic. Jetsonian expectations.
Don Daylor in the newsroom for the headlines. Italy shooting. FBI arrest related to Ricin, J. Everett Dusky. Phone call about Jihad. More people found in rubble. Justice Breyer accident. White House correspondents dinner. Weather: sunny in the northeast. General cool down for most of the country.

Yesterday's tomorrow was a wondrous place. Mo Rocca on the world of tomorrow. Gleaming cites in the sky. Amazing Stories. 2001 came out in 1968, Space travel by Pan Am. Illustrator Ron Miller. Wolfgang Schroeder. John Crestevich visited 1964 Worlds Fair in New York. He was five years old in the World of Science. RCA. The dominating impact of corporate sponsonship. Editor in chief of Popular Mechanics. Just Imagine (1930). In 1954: Pop Mec predicted flat screen tv. But air mail to house; vac tube powered trains. "The House of the Future" made of plastic. Pill turns into turkey dinner. 1958: Fabulous World of Jules Verne. Sikorsky read Verne. "From the Earth to Moon." Murray Linester A Logic Named Joe. Ninetenn eighty four. Dystopia. Utopias are like infomercials. Too optimistic in the past; too pessimistic today. Catastrophize the present.

Note poll results for America's best days!!!!
Best days in the future: 35% Best days in the past: 49%

Print in three dimensions. Serena Alschul. Clare Devane was born without a right ear. Bioprinting. Human tissue.
Impart organization right from the start. Larry Bonistar at Cornell University: printed a human ear. 15 minutes for an ear. Layers of living cells. An ear from an incubator grown for a couple of months. The printed ears are now in animal trials. Mychrosia. Currently: sculpt rib cage tissue. Organovo of San Diego. Commercial bioprinter. Oregon Healt. Prof. Rosalee Sears. Tumors treated with a different drug. Reprint person's tissue. Brendan-Colson Clinic. Personalized medicine. Alzheimer's. Blockbuster development.

John LaPook. Year one million BC, homo sapiens. Rob DiSalle at Museum of Natural History. Process of Natural Selection. Passing on desirable traits. Steve Sterns of Yale University. Genes are going to change. Human being of tomorrow. Racial differences will lessen. Blondes and redheads might become endangered. Jaws smaller. Future: less hair. Shift to wimpier. Google is impairing our memory. Future: more emotionally intelligent. Interact in a social context. It's a movie and we are in the middle of the plot. Man/machine hybrids. How do we make sense of information. Technological advantage --> evolutionary advantage. What women like. Perhaps somebody who is a good cook.

The future is now. High tech wizards. Rita Braver interviews Eric Schmidt of Google. IBM PC used floppy disks. Now, phone has 100,000 more storage. Now, do most of computing on phones. Cars that can drive themselves. Book: The New Digital Age. Holodeck will occur in our lifetime. Re-create the memory. "where you were." Watch the concert for you. Haptic technology. We will have to work harder to prevent identity theft. Virtual armies. Cyber-warfare. China stealing intellectual property. Down rev. Humans are incredibly ingenious. World of digital technology tracking terrorists. World Trade Center. Symbol of renewal. If we are all connected; get ahead of it.

Martha Teichner on Library of Congress. Carol Highsmith. Her images will be preserved. Photographing all 50 states. Living for 100 years from now. Preserving the past and the present for the future. Gutenberg Bible. A draft of the Gettysburg Address. Map from 1507 with name "America." Founded in 1800. Library bought Jefferson's books. Jefferson's Koran published in 1764. Anybody 16 or older can get a card. James Billington has been librarian of Congress since 1987. First screen kiss. Archiving twitter postings. Columbia Grapaphone. Irene, a three d scanner.
Re-create the sound. 38 million items now available on line. Former slave Fountain Hughes. Picture of 1936: migrant mother (by Dorothy Hughes). Big Tex: mascot of Texas State Fair, burned down after being photographed. A sense of who we are. Smallest book at Library of Congress: Old King Cole. Size of dot of a period.

Lee Cowan on Meet the Jetsons. Warner Brothers Studios. Storyboards from Jetsons. Elroy. Debuted in 1962. Moonhattan. Pneumatic tube transport. The year 2062. Matt Novak: Jetson-ologist. All 24 episodes. Set the bar for what we expect. Videophone: skype. Talking watch; iphone Sirie. Sense of Jetsonian betrayal. Retro-futurist mantra. Rosie the Robot. Sam Register, head of animation. Standard of comfort is rarely comfortable enough. Gadgets are only as good as people who use them.

Bill Geist of getting money for retirement. Shooting craps. Bingo parlors. The dog track. Robbing banks. Buying lottery tickets. Richard Lustig of Orlando. There is a method to playing. Mega Hog. $842K. This has nothing to do with luck. I'm a professor; this is a bunch of hogwash. Geist spent $57 got back $20.

Tracy Smith does Sunday Profile on Jeremy Irons. Die Hard with a Vengeance. Simon Gruber. Now: Trashed. A future world buried in its own garbage. Trash mountain 40 meters in height. Out of sight, out of mind. Where does trash go?
In Indonesia, into river, then into sea. Garbage has become personal. Important and curable. Takes a little thought. People need a bit of organization. Garbage activist. Feel like a plumber. Born in England in 1948. Trained as a stage actor. "Reversal of Fortune." Glenn Close. SHO the Borgias, Pope Alexander VI. Now, Pope of Recyling. Elegant and refined voice of caution. Human nature is extraordinary.

Dean Reynolds. The Segway. Jonah Berger of Wharton on "the flop." Spruce Goose; the Ford Edsel. "New Coke." Next big things. New Product Works in Ann Arbor, MI. 120,000 products. GFK. Elliot Rossen: fad from fizzle. Only 20% succeed. Pepsi AM a failure. Swiffer succeeded. Jonah Berger wrote a book: Contagious.

Segway's owner died going off a cliff in 2010.

Barry Peterson is anybody out there, starts out with "Starry, starry night." March 2009: Kepler launched. Cygnus.
Kepler scans 150,000 stars every 30 minutes. Natalie Batalha. 1995: found a planet beyond our solar system. Goldilocks planets. NASAs Terry Haller. greenhouse. Microbial planet. Hot springs in Yellowstone; pH like battery acid.
Pulse. Probably find life (38%) next 30 years.

Josh Landes. Mitch Butler Fast Draw. Ponce deLeon. Most people did not get to 40. Now 78 years. In theory, 120 years or longer. Hacking our own cells. Copies of copies. Tweaking a few genes. Round worms. Nanobots. Repairing DNA. Cells live forever. Prosthetics.

Next week. Sink holes.

The week ahead. Not given.

Moment of Nature. Handihaler. Here comes the sun. Ocean. Shoreline. Waves. Location unknown (?)

Information available from the internet:

UP NEXT: April 28
COVER STORY: A history of the future
Flying cars, jet backpacks, and robots that do housework -- why isn't the future here yet?

Mo Rocca brings you a history of the future as we expected it.

For more info: (Ron Miller)
"The Grand Tour: A Traveler's Guide to the Solar System" by William K. Hartmann and Ron Miller (Workman Publishing)
John Kriskiewicz, Fashion Institute of Technology
Popular Mechanics
Louis C.K. (Comedy Central)
FINE PRINT: 3-D printing
Serena Altschul reports on a cutting-edge technique that seems like the stuff of science fiction: 3-D printing. Imagine a device like your home printer capable of "printing" blood vessels, a liver, even a human ear.

For more info:

Dr. Lawrence Bonassar, Department of Biomedical Engineering, Cornell University
Dr. Rosalie Sears, Oregon Health & Science University
THE COSMOS: Kepler seeks to answer: Is anybody out there?
Are we alone? Or is Earth the only planet in the universe that could support life? In 2009, NASA launched a telescope called Kepler to search for Earth-like planets beyond our solar system. So far, more than 800 planets have been confirmed, and astronomers suspect there may be literally hundreds of millions more waiting to be discovered.

A handful of planets even appear to orbit in the "habitable" zone of their star in which water could pool, and life could potentially survive. But the burning question everyone wants to know is: Will we ever really know if anybody else is out there? Barry Petersen talks to scientists working on NASA's Kepler Mission.

For more info:

Kepler: A Search for Habitable Planets
Want to search for your own planet? Visit
GOOGLE: Eric Schmidt on "The New Digital Age" As Executive Chairman of Google, Eric Schmidt is in a prime position to not only forecast the future of technology, but to shape it. He foresees a world of ongoing cyber war; a world where autocratic governments struggle against technologically-empowered citizens; a world where the threat of hacking by countries like China is ever-present.

But he also foresees a world where your smartphone will actively guide you through everyday life, and where you can summon 3-D memories, similar to the Holodeck in "Star Trek."

It's all in a new book Schmidt has co-authored, "The New Digital Age." Correspondent Rita Braver introduces us to Eric Schmidt's vision of the future.

For more info:

"The New Digital Age: Reshaping the Future of People, Nations and Business" by Eric Schmidt and Jared Cohen (Knopf), available in hardcover and eBook
WEB EXTRA VIDEO: Eric Schmidt with a tour of computing history

WEB EXTRA VIDEO: Eric Schmidt: Why N. Korea fears the Internet

WEB EXTRA VIDEO: Eric Schmidt: Wars will be fought online

ANIMATION Meet "The Jetsons"
Lee Cowan looks back at the futuristic 21st century TV family, "The Jetsons," and what their vision of Earth in the year 2062 tells us about the Earth of today.

For more info:

"50 Years of the Jetsons: Why The Show Still Matters" by Matt Novak (
"The Jetsons" as 50: Episode Guide (Smithsonian) (Blog)
"The Jetsons" (Warner Bros.)
LIBRARY OF CONGRESS: Preserving America for all time
What parts of our culture do we choose to keep and preserve for future generations? That's one of the jobs of the Library of Congress: To preserve the past and present for the future. Martha Teichner take us on a tour of the Library's Thomas Jefferson Building, where you will find some of the 155 million items that are kept for posterity. You'll also meet a photographer engaged in a very special project: Documenting the 50 United States as they exist today, as more and more of the American landscape disappears to time.

35 Photos
Preserving images of America
View the Full Gallery »

For more info:

Library of Congress, Washington, D.C.
National Film Registry (Library of Congress)
National Recording Preservation Board (Library of Congress)
This is America Foundation
LOTTERY: More than a little bit of luck
Bill Geist reports.

SUNDAY PROFILE: Jeremy Irons talks trash
It's weird to see an Oscar-winning actor rooting through trash cans in New York City's nicest neighborhood, but for Jeremy Irons, garbage has become personal. He is producer of a new documentary, "Trashed," which shows us the terrifying possibility of a future world buried in its own garbage.

"I wanted to make a documentary about something which I thought was important and which was curable," he told Tracy Smith. "It's not rocket science."

For more info:

"Trashed" (Official site)
Blenheim Films
"The Borgias" (Showtime)
SPECIES: Evolution
Dr. Jon LaPook reports.

COMMENTARY: Google Glass
The New York Times' David Pogue offers his view of the new computer interface technology you wear on your face.

"People are always looking for the next big thing, what's new, what's the future, what's different from now," says Jonah Berger, a professor of marketing at the Wharton Business School. But a lot of those "next big things" turn out to be failures. In fact, fewer than 20 percent of new products succeed in the marketplace. Why?

Dean Reynolds visit the New Product Works in Ann Arbor, Mich., which stands as a breathtaking case study of fads and fizzles. Owned by global market research firm GFK, the collection features 120,000 different items -- many of them marketing fiascos -- spanning more than three decades of American pop culture.

For more info:
The Wharton School at the University of Pennsylvania
"Contagious: Why Things Catch On" by Jonah Berger (Simon & Schuster); also available in Audio download | eBook | CD
New Product Works at GfK Group, Ann Arbor, Mich.


Saturday, April 27, 2013

Gleave cited in Ex parte Wattendorf

from Ex parte Wattendorf

Appellants have not explained why the term “a different contextual basis” is
different from altering the format and display for different users. References
do not have to satisfy an ipsissimis verbis test to disclose a claimed element.
See In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009). Giving the claims
the broadest reasonable interpretation as we must, and absent any
explanation, or evidence from Appellants’ Specification to the contrary, we
agree with the Examiner that providing a certain display or format of
instructional material for a teacher, for example, and a different display or
format of the same instructional material for a student provides the
instructional material in one context for the teacher, and in another context
for the student.

Patentee loses appeal of re-exam result in Ex Parte CAREFUSION 303, INC.

The appellant lost in an appeal of a re-examination in Ex Parte CAREFUSION 303, INC.:

Appellant, patent owner CareFusion 303, Inc., appeals under 35
U.S.C. §§ 134(b) and 306 from the final rejection of claims 1-46. We have
jurisdiction under 35 U.S.C. § 6(b)(2).
We affirm.

KSR is cited:

“Section 103(a) forbids issuance of a patent when „the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.”‟ KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007) (quoting 35 U.S.C. § 103(a)). “What matters is the objective reach of
the claim. If the claim extends to what is obvious, it is invalid under § 103.”
KSR, 550 U.S. at 419. To be nonobvious, an improvement must be “more
than the predictable use of prior art elements according to their established
functions.” Id. at 417. Further, “the analysis need not seek out precise
teachings directed to the specific subject matter of the challenged claim, for
a court [or the Office] can take account of the inferences and creative steps
that a person of ordinary skill in the art would employ.” Id. at 418.

Appellant failed on the nexus requirement of secondary considerations:

Thus, to satisfy the
nexus requirement, Appellant should have proffered evidence tailored only
to the advent of a database that includes both hard and soft limits. See, e.g.,
J.T. Eaton & Co., Inc. v. Atlantic Paste & Glue Co., 106 F.3d 1563, 1571
(Fed. Cir. 1997) (holding “the asserted commercial success of the product
must be due to the merits of the claimed invention beyond what was readily
available in the prior art”). Appellant, by admission, did not.


Appellant has not, in any way, pointed out that a competitor has
copied Patent Owner‟s infusion pump in order to include the hard- and softlimit
features. Further, the mere fact of copying (even when proved) is
insufficient to make the action significant in an obviousness analysis. Cable
Elec. Prods., Inc. v. Genmark, Inc., 770 F.2d 1015, 1028 (Fed. Cir. 1985),
overruled on other grounds by, Midwest Indus., Inc. v. Karavan Trailers,
Inc., 175 F.3d 1356, 1359 (Fed. Cir. 1999) (en banc).


Because we are sustaining the rejection of claims 1-46 over Sweeney
alone, we find it unnecessary to reach the rejection of the same claims over
Sweeney and Ford. Cf. In re Gleave, 560 F.3d 1331, 1338 (Fed. Cir. 2009).

Grogg wins reversal

Appellant wins in Ex parte Grogg:

We agree with Appellant that Ishikawa does not disclose a power
transfer unit that engages and disengages an auxiliary drive system from a
primary drive system. To “engage” in this context means to “interlock with”
or “mesh.” Merriam-Webster’s Collegiate Dictionary (11th ed. 2005).
Clutch system 13A engages and disengages electric motor 2129 from the
rear-wheel drive system, but the electric motor powers only the rear wheels;
a separate engine 2101 powers the front wheels. Ishikawa, col. 1, ll. 13-17;
col. 3, ll. 16-25, 32-48; col. 8, ll. 27-29; fig. 1. Thus, whatever engagement
and disengagement is performed by clutch system 13A is done entirely
within the rear-wheel drive system rather than between that system and the
front-wheel drive system, as claims 1 and 2 require.

Indefiniteness rejection reversed

Ex parte Sharma

On 35 USC 112 P2

Despite the grammatically incorrect recitation of the word
“between,” the claim is sufficiently clear to obtain the proper construction,
which we conclude encompasses an agent that reports on resource
availability but is unaware of the contractual conditions related to the nodes.
(We do not comment on whether there is written description support for the
negative limitation or whether all the language of this claim should be given
patentable weight.) The test for definiteness under 35 U.S.C. § 112, second
paragraph, is whether “those skilled in the art would understand what is
claimed when the claim is read in light of the specification.” Orthokinetics,
Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986)
(citations omitted).


Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, the Examiner’s decision is affirmed. See 37
C.F.R. § 41.50(a)(1).

Ratti cited in Ex parte Kuehn

Ex parte Kuehn

Of teaching away:

Silence as to a feature of the claims is not a teaching away. DyStar Textilfarben GmbH
v. C.H. Patrick Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006) (“We will not
read into a reference a teaching away from a process where no such
language exists.”).

Yes, In re Best is cited:

See In
re Best, 562 F.2d 1252, 1255 (CCPA 1977) (“Where, as here, the claimed
and prior art products are identical or substantially identical, or are produced
by identical or substantially identical processes, the PTO can require an
applicant to prove that the prior art products do not necessarily or inherently
possess the characteristics of his claimed product.… Whether the rejection is
based on „inherency‟ under 35 U.S.C. § 102, on „prima facie obviousness‟
under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the
same, and its fairness is evidenced by the PTO‟s inability to manufacture
products or to obtain and compare prior art products.)

Change in basic principles:

“A change in the basic principles” refers to
change that is fundamental in scope to the scientific or technical principles
under which the invention is designed to operate. In re Ratti, 270 F.2d 810,
813 (CCPA 1959) (“This suggested combination of references would require
a substantial reconstruction and redesign of the elements shown in [the
primary reference] as well as a change in the basic principles under which
the [primary reference] construction was designed to operate.”). It cannot be
said that “change in the basic principles” occurs by all modifications of a
prior art device which changes the manner in which the device operates.

Otherwise, even nominal modification to a prior art device could be
considered a “change in the basic principles,” thereby eliminating the need
for obviousness analysis under 35 U.S.C. § 103. As noted above, we do not
agree that Grayson teaches away from a pre-seal. For substantially the same
reasons, we are not persuaded that the Examiner‟s modification changes
Grayson‟s principle of operation or destroys its intended purpose.

Statements of intended use not given patentable weight in Ex parte POPESCU-STANESTI

O2Micro loss in Ex parte POPESCU-STANESTI

As to statement of intended use:

See Boehringer
Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1345
(Fed. Cir. 2003) (a statement of intended use “usually will not limit the
scope of the claim because such statements usually do no more than define a
context in which the invention operates”). Therefore, we do not ascribe any
patentable weight to these statements.

concerning the text:

statements of intend use of the controller, i.e., how the controller functions –
“operable for receiving . . . a host signal from said main controller that
enables said photoflash controller” and “wherein said photoflash controller
is disabled when said digital camera is in said flash disable mode to reduce
power consumption until said host signal is received” (claim 1)

Procter & Gamble loses in Ex parte Glenn

Procter & Gamble lost at PTAB in Ex parte Glenn wherein the Board cited KSR about "a known problem for which there was an obvious solution encompassed by the patent's claims." KSR, 550 U.S. at 519-520.

The Board cited In re Peterson on overlapping ranges. 315 F.3d at 1329. And, yes, In re Best, 562 F.2d at 1255, was cited.

As to KSR, the Board noted that if the claimed composition is suggested for other reasons, a particular property of the composition carries no patentable weight. [see page 7 of the Board decision.]

CEATS loses

The outcome in Ceats:

After the verdict, CEATS
challenged this verdict
as a matter of law
and also sought
a new trial. The
district court denied
Having reviewed the record
and the parties’ arguments, this court affirms.


CEATS argues this evidence cannot corroborate
Broas’ and Lube
tkin’s testimony because
they are i
proper “memory aids.”
See The Barbed Wire Patent
, 143
U.S. at 284 (noting the danger of prodding witnesses’
Particularly, it challenges the videos as
aiding Lubetkin
“in incorrectly recalling the details of
public May 1997 system.” Appellant’sBr. 32.

Contrary to CEATS’ assertion,
“[d]ocumentary or
physical evidence that is made contemporaneously with
the inventive process provides the most reliable proof that
the inventor’s testimony has been corroborated,” because
such evidence eliminates “the risk of litigation inspired
fabrication or exaggeration.”
Sandt Tech., Ltd. v. Resco
Metal and Plastics Corp., 264 F.3d 1344, 1350–51 (Fed.
Cir. 2001).

Friday, April 26, 2013

Indefiniteness finding rejected by CAFC in Biosig v. Nautilus

From within Biosig v. Nautilus :

The sole issue presented to this court is whether the
district court erred in holding that the asserted claims of
the ’753 patent is invalid for indefiniteness as a matter of
law. In particular, the district court held that “spaced
relationship” as recited in claim 1 and referring to the
spacing between the common and live electrodes was not
distinctly and particularly claimed in the patent in viola-
tion of 35 U.S.C. § 112, ¶ 2.

Indefiniteness is a legal issue this court reviews with-
out deference. Star Scientific, Inc. v. R.J. Reynolds Tobac-
co Co., 655 F.3d 1364, 1373 (Fed. Cir. 2011) (“Star
Scientific II”). Section 112, ¶ 2, requires that the
specification of a patent “conclude with one or more claims
particularly pointing out and distinctly claiming the
subject matter which the applicant regards as his inven-
tion.” “Because claims delineate the patentee’s right to
exclude, the patent statute requires that the scope of the
claims be sufficiently definite to inform the public of the
bounds of the protected invention,
, what subject matter is covered by the exclusive rights of the patent.”
Halliburton Energy Servs., Inc. v. M-I LLC
, 514 F.3d 1244, 1249 (Fed. Cir. 2008).
A claim is indefinite only when it is “not amenable to
construction” or “insolubly ambiguous.”
Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1347 (Fed. Cir.
2005) (internal quotations and citations omitted). “In and
of itself, a reduction of the meaning of a claim term into
words is not dispositive of whether the term is definite . . .

And if reasonable efforts at claim construction result in
a definition that does not provide sufficient particularity
and clarity to inform skilled artisans of the bounds of the
claim, the claim is insolubly ambiguous and invalid for
Star Scientific, Inc. v. R.J. Reynolds
Tobacco Co., 537 F.3d 1357, 1371 (Fed. Cir. 2008) (“
Star Scientific I
”) (citations omitted). “Thus, a construed claim
can be indefinite if the construction remains insolubly
ambiguous . . . .”
Star Scientific II,
655 F.3d at 1373;
also Exxon Research & Eng’g Co.
v. United States
, 265
F.3d 1371, 1377–79 (Fed. Cir. 2001) (accepting the district
court’s claim construction and separately undertaking an
analysis of the claims at issue to determine indefinite-
Union Pac. Res. Co. v. Chesapeake Energy Corp.
236 F.3d 684, 689–90, 692 (Fed. Cir. 2001) (same);
Min. and Mfg. Co. v. Johns
on & Johnson Orthopaedics,
, 976 F.2d 1559, 1567 (Fed
. Cir. 1992) (same).

The CAFC noted:

The disputed term “spaced relationship” does not suf-
fer from indefiniteness. Because the term was amenable
to construction, indefiniteness here would require a
showing that a person of ordinary skill would find “spaced
relationship” to be insolubly ambiguous—that it fails to
provide sufficient clarity delineating the bounds of the
claim to one skilled in the art. In this case, a skilled
artisan would find such boundaries provided in the in-
trinsic evidence.


Contrary to the district court’s decision and to Nauti-
lus’s contention on appeal, this court’s jurisprudence does
not proscribe drafting or defining claims in relation to
their functions.
Moore U.S.A., Inc. v.
Standard Register
, 229 F.3d 1091, 1111 (Fed. Cir. 2000) (“We note that
there is nothing wrong with defining the dimensions of a
device in terms of the environment in which it is to be
see also
Vizio, Inc. v. Int’l Trade Comm’n
, 605
F.3d 1330, 1340 (Fed. Cir. 2010) (“[T]he ‘for decoding’
language . . . is properly construed as a limitation, and
not merely statement of purpose or intended use for the
invention, because ‘decoding’ is the essence or a funda-
mental characteristic of the claimed invention.”).

Bottom line

The only issue on this appeal is the summary judg-
ment of indefiniteness. Other aspects of the defense of
patent invalidity, although raised in the district court, are
not before us, and may be considered on remand. We
reverse the district court’s invalidity determination and
remand for further proceedings.

Joel Grey as a lawyer

Within the movie "Come September," Joel Grey is a lawyer-to-be and talks about the case Wilson v. Waldorf-Astoria (1937).

Nevertheless, Rock Hudson throws Joel Grey and Bobby Darin out.

The later parts of the movie turn on Rock Hudson's fear of getting sued for what happens to the girls, including Sandra Dee.

The movie was released in 1961.

How many business decisions in 2013 turn on fear of suit for patent infringement?

Other technical matters in "Come September"-->

Papillio glaucus. Bobby Darin as a med student. Darin on Lollabrigida: "There are 206 bones in the human body and I've never seen them arranged so well." On Dee: "Well-developed patellas."

Darin on Hudson: He's pushing 40. [Hudson was born in 1925]

Darin gets to sing "Multiplication."

PTAB cites In re Lovin against IBM arguments

In Ex parte
, IBM did win reversal
on two claims, but lost the rest of the appeal.

The appellants did win by arguing claim 6

We therefore conclude that
the Examiner erred in finding that the
combination of Suzuki and Lee teache
s or suggests the disputed limitation
of claim 6.

But arguments directed specifically to
claim 33 did not succeed:

The Examiner responds that Appellants’
argument is no more than a
general allegation instead of showing
distinction between claimed features
and cited prior art and that Lee teaches
or suggests the disputed limitations
of claim 33. Ans. 16 (citing
Lee, ¶¶ [0084]; [0094]; [0100]).
We agree with the Examiner that Appellants’ contentions, with
respect to claim 33, amount to no more
than a general allegation that the
claim defines a patentable invention.
Ans. 16. Accordingly, Appellants fail
to show error in the Examiner’s rejection.
See In re Lovin
, 652 F.3d 1349,
1357 (Fed. Cir. 2011) (interpreting Rule 41.37).

from footnote 1:

Appellants also appeal the Examiner’s
rejection of claims 1, 3, and 5
under 35 U.S.C. § 112(b). Ap
p. Br. 4. Because the
Examiner withdrew the
rejection of the claims on this ground,
we need not reach that issue in this
appeal. Ans. 3. Claims 9-27 a
nd 30 are cancelled. App. Br. 2.

Wednesday, April 24, 2013

Former CAFC clerk admonished

Violation of Rule 50

The violation here involved a former law clerk assisting on a matter that was pending during the clerk’s employment. In particular, the former clerk, now an attorney in private practice, provided advice surrounding a response brief to a combined petition for rehearing. The matter on which the former clerk provided advice was pending during the clerk’s employment at the court.

Two days after the response brief was filed, the Rule 50 violation was brought to the court’s attention. Counsel provided three sworn affidavits stating that the error was “inadvertent” and explaining the circumstances. The firm’s conflicts manager explained that the former clerk submitted his Disqualification List, but the firm’s conflicts team “innocently and inadvertently” failed to identify the particular matter on the former clerk’s conflicts report. The former clerk provided a sworn statement that he had no recollection of the matter from his time at the court, and relied on the conflicts staff for his clearance. The responsible partner provided a sworn statement that the former clerk “did not contribute in any way to the text of the brief, either substantively or typographically.”

Chevron / Catchlight : "The Formula" re-visited??

In an earlier post Grist for a re-make of "The Formula"?, IPBiz ridiculed a Bloomberg post which suggested that Chevron was holding back on $2.18 per gallon biofuel.

Tina Casey at Cleantechnica followed in the path of the Bloomberg post and included text:

One Step Backwards, Two Steps Forwards

Jim Lane at Biofuels Digest tipped us to this story last week, and it caught our eye under the heading “Who Killed $2.18 Gasoline?”

That’s no accident, if you’re familiar with the 2006 documentary “Who Killed The Electric Car?” The film chronicles GM’s pioneering EV1 electric vehicle, introduced in California in 1996 to meet a state air quality mandate. Though EV1 was a hit with consumers, a loophole in the law enabled GM to end the EV1 experiment by 2004.

Part of the issue, as described by filmmaker Chris Paine, is an almost precision echo of the too-good-for-its-own-good problem that stymied the Catchlight venture: GM managers foresaw that electric vehicles would need far less maintenance and repair that gas vehicles, and that would cut into the company’s profit from the replacement parts market.

That’s how Lane sees it:

“Here’s the pattern: bend to public will when mandate efforts become popular, establish big projects, hire top R&D talent and bottle up IP to prevent technology spread, kill off the projects with absurd profit requirements, cite lack of feasible technology as a reason to kill or delay mandates, and then lobby like crazy to get back to the status quo.”

Well, not to end on a totally gloom and doom note but sometimes there is a happy ending. Not too long after the last (almost) EV1 was sent to the crusher yard, GM went on to develop the popular Chevy Volt gas-electric car. Rumor has it that the company is working on a 200-mile extended range all-electric car, and it has emerged as a key player in the Obama Administration’s efforts to develop sustainable fuel cell electric vehicles.

IPBiz notes several points:

#1. The relevant film to this story is more likely "The Formula" with George C. Scott (1980), than the 2006 documentary.

#2. Of the Chevy Volt, from green autoblog : Sales of the Chevrolet Volt have fluctuating wildly recently between record months (October 2012, when 2,961 were sold or December 2012 with 2,633) and noticeable slumps (1,519 Volt sales in November). Last month, January 2013, was one of the down months, with just 1,140 Volts sold across the US. Still, this is better than the 603 Volts sold in January 2012.
From CleanTechnica: As noted above, the Chevy Volt’s March sales (1,478) are down a bit compared to February 2013 (1,626).

#3. Of the intellectual property relevant text -- establish big projects, hire top R&D talent and bottle up IP to prevent technology spread --, patents do NOT "bottle up IP to prevent technology spread." Most patent applications are published, so they relentlessly enhance technology spread. ExxonMobil and Synthetic Genomics, for example, have published many patent applications in the biofuels area.

In the case of "The Formula" (1980), the technology in question was a trade secret, supposedly not easily independently derivable. The Bloomberg story, as further discussed by Lane and Casey, would have us believe that the Chevron / Catchlight technology is a secret that is not easily derivable. That's hard to believe.

In re Broadcom discusses forum selection clauses in CA5

The issue in
In re Broadcom
: Broadcom Corporation, Qualcomm Incorporated, and
Qualcomm Atheros, Inc. (petitioners) seek a writ of mandamus
ordering the U.S. District Court for the Eastern
District of Texas to dismiss this case or, in the alternative,
to transfer the case.
They lost.

Concerning the law of forum-selection clauses in CA5:

Based on the legal landscape at the time of the petition,
we would have been inclined to agree with the
petitioners. However, shortly after the petition was filed,
the Fifth Circuit expressly held that “when a forum selection
clause designates a specific federal forum,” a
motion to transfer under § 1404(a) “is the proper procedural
mechanism for enforcing the clause.”
In re Atl.
Marine Constr. Co., 701 F.3d 736, 739 (5th Cir. 2012),
cert. granted, --- S. Ct. ---, 2013 WL 1285318 (Apr. 1,
2013). In addition, the Fifth Circuit held that a district
court may place the burden on the moving party—not the
resisting party—to demonstrate that transfer to the
contracted forum is warranted. Id. at 741–42.

Of case law:

The petitioners argue that Atlantic Marine and Amplicon
conflict and that Amplicon thus governs under the
prior-panel rule. We disagree. Atlantic Marine distinguished
Amplicon on the basis that Amplicon involved a
forum-selection clause that exclusively designated a state
court forum, while the forum-selection clause at issue in
Atlantic Marine designated a federal forum. 701 F.3d at
741. Atlantic Marine explained that, when a forumselection
clause exclusively designates a state court
forum, § 1406(a) is the mechanism to enforce the clause
because a federal district court is “without power to
transfer.” 701 F.3d at 741. By contrast, the court held
that § 1404(a) applies when a forum-selection clause
designates an alternate federal forum. Id. at 739–41. We
are bound to apply Fifth Circuit precedent to this case.
Therefore, we conclude, consistent with Atlantic Marine,
that the district court did not abuse its discretion by
analyzing the forum-selection clause under § 1404(a)
rather than § 1406(a).

Atlantic Marine recognizes, however, that its holding
comports with only “a minority of the federal appellate
courts.” 701 F.3d at 739. The majority of the courts of
appeals “give effect to a forum-selection clause through a
motion to dismiss filed pursuant to Rule 12(b)(3) and
§ 1406.” Id. at 746–47 (Haynes, J., specially concurring)
(collecting cases).
The Fifth Circuit, however, does not.
We note that the Supreme Court recently granted certiorari
in Atlantic Marine. 2013 WL 1285318, at *1. While
the Supreme Court may overrule Atlantic Marine and
endorse the majority rule, we are bound by Fifth Circuit
law as it presently exists.

The outcome:

We conclude that the petitioners are not entitled to a
writ of mandamus ordering transfer to the Southern
District of New York. A forum-selection clause “should
receive neither dispositive consideration . . . nor no consideration
. . . but rather the consideration for which
Congress provided in § 1404(a).” Stewart Org., Inc. v.
Ricoh Corp., 487 U.S. 22, 31 (1988). The Fifth Circuit has
held that, in the context of a § 1404(a) motion, the district
court may place the burden on the movant to demonstrate
that the contractually-chosen forum is clearly more convenient
than the plaintiff’s chosen forum. Atl. Marine,
701 F.3d at 741–42.

Tuesday, April 23, 2013

Making long chain hydrocarbons directly from E. Coli

Work of John Love of the University of Exeter in England published in PNAS on April 22 on making long chain hydrocarbons from E. Coli is featured in news reports, some coming via Scientific American.

A post on Scientific American titled Gut Microbe Makes Diesel Biofuel contains the text

That hardiness also seems to be helping the bacterium survive its own production of such longer-chain hydrocarbons, which could have proved toxic to the microbes, in the way brewer's yeast cells are killed off by the alcohol they ferment.

Long chain hydrocarbons are a lot less toxic than ethanol, so the analogy in the article is not a good one.

Separately, of course, is what "food" for the E. coli is cheap enough to make cheap fuel. The SA article notes:

The E. coli are currently fed on sugar and yeast extract, which suggests that the resulting fuel would be expensive compared with the kind refined from oil found in the ground. "We are hopeful that we could change their diet to something less valuable to humanity," Love suggests. "For example, organic wastes from agriculture or even sewage."

The abstract at PNAS states:

Biofuels are the most immediate, practical solution for mitigating dependence on fossil hydrocarbons, but current biofuels (alcohols and biodiesels) require significant downstream processing and are not fully compatible with modern, mass-market internal combustion engines. Rather, the ideal biofuels are structurally and chemically identical to the fossil fuels they seek to replace (i.e., aliphatic n- and iso-alkanes and -alkenes of various chain lengths). Here we report on production of such petroleum-replica hydrocarbons in Escherichia coli. The activity of the fatty acid (FA) reductase complex from Photorhabdus luminescens was coupled with aldehyde decarbonylase from Nostoc punctiforme to use free FAs as substrates for alkane biosynthesis. This combination of genes enabled rational alterations to hydrocarbon chain length (Cn) and the production of branched alkanes through upstream genetic and exogenous manipulations of the FA pool. Genetic components for targeted manipulation of the FA pool included expression of a thioesterase from Cinnamomum camphora (camphor) to alter alkane Cn and expression of the branched-chain α-keto acid dehydrogenase complex and β-keto acyl-acyl carrier protein synthase III from Bacillus subtilis to synthesize branched (iso-) alkanes. Rather than simply reconstituting existing metabolic routes to alkane production found in nature, these results demonstrate the ability to design and implement artificial molecular pathways for the production of renewable, industrially relevant fuel molecules.

Of yields:

In the system presented here, alkane titers
from both the cyanobacterial pathway and the artificial CEDDEC
pathway were ∼2–5 mg·L−1 24 h after induction (Fig. 1 and
Fig. S5). These values are in agreement with a recent report for
expression of the cyanobacterial pathway in BL21* (DE3) cells

full article

Reference 31 in the article by Love is Akhtar MK, Turner NJ, Jones PR (2013) Carboxylic acid reductase is a versatile enzyme
for the conversion of fatty acids into fuels and chemical commodities. Proc Natl Acad
Sci USA 110(1):87–92. [Akhtar has an affiliation with the University of Manchester .] The abstract of the Akhtar paper includes the
text This concept was applied in vivo, in combination with a chain-length-specific thioesterase, to engineer Escherichia coli BL21(DE3) strains that were capable of synthesizing fatty alcohols and alkanes. A fatty alcohol titer exceeding 350 mg·L−1 was obtained in minimal media supplemented with glucose. Moreover, by combining the CAR-dependent pathway with an exogenous fatty acid-generating lipase, natural oils (coconut oil, palm oil, and algal oil bodies) were enzymatically converted into fatty alcohols across a broad chain-length range (C8–C18). Together with complementing enzymes, the broad substrate specificity and kinetic characteristics of CAR opens the road for direct and tailored enzyme-catalyzed conversion of lipids into user-ready chemical commodities. Note the Akhtar article was available in 2012: Published online before print December 17, 2012, doi: 10.1073/pnas.1216516110
PNAS December 17, 2012

Counting spoons in patent law

IPBiz has quoted from Emerson before:

See what allowance vice finds in the respectable and well - conditioned class. If a pickpocket intrude into the society of gentlemen, they exert what moral force they have, and he finds himself uncomfortable, and glad to get away. But if an adventurer go through all the forms, procure himself to be elected to a post of trust, as of senator, or president, - though by the same arts as we detest in the house - thief, - the same gentlemen who agree to discountenance the private rogue, will be forward to show civilities and marks of respect to the public one: and no amount of evidence of his crimes will prevent them giving him ovations, complimentary dinners, opening their own houses to him, and priding themselves on his acquaintance. We were not deceived by the professions of the private adventurer, - the louder he talked of his honor, the faster we counted our spoons; but we appeal to the sanctified preamble of the messages and proclamations of the public sinner, as the proof of sincerity. It must be that they who pay this homage have said to themselves, On the whole, we don`t know about this that you call honesty; a bird in the hand is better.

from Worship

Elsewhere on IPBiz:

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


The remark about "based on a few anecdotes" evokes Emerson's aphorism about silverware. ["The louder he talked of his honor, the faster we counted our spoons."]

Bad day for examiner in Ex parte BOOMERSHINE

From within Ex parte BOOMERSHINE

As to 101:

The Examiner approach in determining whether the claimed subject
matter is patentable subject matter is piecemeal. Cf. Parker v. Flook, 437
U.S. 584, 594 (1978) (“Our approach to respondent's application is,
however, not at all inconsistent with the view that a patent claim must be
considered as a whole.”) When viewed as whole, it is plainly evident the
claimed subject matter is tied to a computer.

As to 112 P2

The difficulty with the Examiner’s position is that no claim
construction analysis has been done. “That determination [for definiteness]
requires a construction of the claims according to the familiar canons of
claim construction. Only after a thorough attempt to understand the
meaning of a claim has failed to resolve material ambiguities can one
conclude that the claim is invalid for indefiniteness.” All Dental Prodx. LLC
v. Advantage Dental Prods. Inc., 309 F.3d 774 (Fed. Cir. 2002). Part of that
determination is to read the claims in light of the Specification.

requirement that the claims “particularly point[] out and distinctly claim[]”
the invention is met when a person experienced in the field of the invention
would understand the scope of the subject matter that is patented when the
claim is read in conjunction with the rest of the specification.” Inc. v.
nVIDIA Corp., 259 F.3d 1364 (Fed. Cir. 2001). Only then can a
determination be made that the claimed subject matter is so unclear as to rise
to the level of indefiniteness as proscribed by the 2nd paragraph of §112. Cf.
Bancorp Serv. LLC v. Hartford Life Ins. Co., 359 F.3d 1367 (Fed. Cir.
2004). (“We have held that a claim is not indefinite merely because it poses
a difficult issue of claim construction; if the claim is subject to construction,
i.e., it is not insolubly ambiguous, it is not invalid for indefiniteness. [ ]
is, if the meaning of the claim is discernible, “even though the task may be
formidable and the conclusion may be one over which reasonable persons
will disagree, we have held the claim sufficiently clear to avoid invalidity on
indefiniteness grounds.” Exxon Research & Eng'g Co. v. United States, 265
F.3d 1371, 1375 (Fed. Cir. 2001).”)

As to a "hybrid claim"

The Examiner also argues the claim 30 is a hybrid claim. Final Rej. 6.
However, claim 30 is very clearly drawn to a computer system comprising a
CPU, a computer readable storage media, and program instructions. It does
not include a step of using the system that would make it a “hybrid” claim.
Cf. IPXL Holdings LLC v. Inc., 430 F.3d 1377 (Fed. Cir. 2005)
(“Because claim 25 recites both a system and the method for using that
system, it does not apprise a person of ordinary skill in the art of its scope,
and it is invalid under section 112, paragraph 2.”)

Of 102(b):

We disagree. Lenard does not describe unlicensed software as
claimed. Lenard is directed to a “multi-site software license balancing
system [which] authorizes concurrent usage of an application files at
multiple sites.”

Accordingly, Lenard does not describe,
expressly or inherently, the claimed subject matter.
The Examiner has not made out a prima facie case of anticipation.

It was a bad day for the examiner:

The rejections of claims 21-33 under 35 U.S.C. §101 as being directed
to non-statutory subject matter; claims 21-33 under 35 U.S.C. §112, second
paragraph, as being indefinite for failing to particularly point out and
distinctly claim the subject matter which applicants regard as the invention;
claims 21, 22, and 24 under 35 U.S.C. §102(b) as being anticipated by
Lenard; claim 23 under 35 U.S.C. §103(a) as being unpatentable over
Lenard; and, claims 25-33 under 35 U.S.C. §103(a) as being unpatentable
over Lenard and Yellai, are reversed

Appellant Hamburger loses. The perils of not arguing separately for patentability of dependent claims.

From Ex parte Hamburger

On why one should argue dependent claim separately:

Claims 2, 3, 7, 8, 10, 13, 15, 26, 29 and 30-32 are each dependent
either directly or indirectly on claim 1. Clms. Appx. Appellants argue that
each of Skomial, Bruce, Sing, Brown, Lawrence and Deken do not provide
disclosures that cure the deficiencies of Kaczmarski and Garden for claim 1,
and that claims 2, 3, 7, 8, 10, 13, 15, 26, 29 and 30-32 are allowable due to
their dependency from claim 1. Br. 6-11. As we sustain the rejection of
claim 1, these arguments are not persuasive
. We thus also sustain the
rejection of claims 2, 3, 7, 8, 10, 13, 15, 26, 29 and 30-32.

Unclaimed features cannot impart patentability to claims

from within Ex parte Bicheno

As such, Appellants’ arguments are not commensurate
in scope with the limitations of claims 1, 12, and 17. See In re Self, 671 F.2d
1344, 1348 (CCPA 1982). Unclaimed features cannot impart patentability to claims. In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998). We
therefore decline to read the argued limitations into the claims.

Of the use of --a or an--

In addition, to the extent that Appellants argue that “a destination”
requires a single destination or a single storage location (App. Br. 7; Reply
Br. 3), we remain unpersuaded. “[A]n indefinite article ‘a’ or ‘an’ in patent
parlance carries the meaning of ‘one or more’ in open-ended claims
containing the transitional phrase ‘comprising.’” KCJ Corp. v. Kinetic
Concepts, Inc., 223 F.3d 1351, 1356 (Fed. Cir. 2000) (citations omitted).
Thus, “a destination” recited in Appellants’ claims 1, 12, and 17 refers to
one or more destinations.

Of broadest reasonable interpretation [BRI]

During prosecution
before the USPTO, claims are to be given their broadest reasonable
interpretation. See In re Bigio, 381 F.3d 1320, 1324 (Fed. Cir. 2004)
(quoting In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000)).

82% of editors of scholarly publications think plagiarism is a problem

From post in the Sacramento Bee titled Ethics Issues, Especially Plagiarism, Lead List of Scholarly Editors' Top 5 Concerns;

Five issues surfaced as the leading concerns in the eyes of editors, many of them ethics-related: plagiarism, pressure to publish, poorly designed studies, technological advances that simplify image or data falsification and conflicts of interest between researchers and industry.

Among those, plagiarism and misconduct was ranked as the most worrisome, with 82 percent of respondents classifying it as a "serious" or "very serious" problem. 38 percent of editorial staffers classified the plagiarism they encounter as intentional, and 29 percent said most plagiarism is "blatant", involving large portions of unattributed text.

"Pressure to publish" followed closely, with 58 percent of those surveyed deeming it "serious" and 20 percent "very serious." Close to half of respondents believed that "poorly designed studies" (52 percent) and "conflicts of interest" (47 percent) were serious challenges, and "image/data falsification" was deemed serious by 38 percent of respondents.

When asked to identify specific concerns with researchers' practices, once again, plagiarism led the list. 60 percent of editors and editorial staff stated plagiarism as a top worry. 54 percent cited "focusing on number of publications rather than making advances" as a lead concern, and 53 percent honed in on "publishing the bare minimum" as a major issue. "Splitting studies across publications" garnered 38 percent of respondents' concern.

"These results reinforce that among the many challenges scholarly editors and editorial staff are facing, plagiarism, misconduct and the pressure to publish are not only highly pervasive, but send ripple effects throughout the academic research and publishing processes," said Chris Cross, general manager of iThenticate.

The survey also tapped editorial staffers' insights on preventing ethical issues, plagiarism in particular. While plagiarism detection software ranked highly as a prevention method, a significant faction of respondents favored more aggressive or punitive measures to deter ethical breaches.

Of -- "publishing the bare minimum" as a major issue --, see the final portion of LBE's article in 8 JMRIPL 80 (2008).

Monday, April 22, 2013

Fee diversion back?

Note the following text from InventiveStep :

As I alluded to last week, the PTO is again facing a budget crisis. Acting PTO Director Teresa Stanek Rea told employees last week that “immediate and significant” budget cuts were coming due to lower-than-expected fee revenue and the congressionally mandated budget cuts from the sequester.

Hiring, travel, training, and information technology modernization will be the focus of initial cuts, but it seems likely that significant cuts will be required across the board. The agency will attempt to minimize impact on users, but that can only go so far.

Director Rea noted that fee revenue is “substantially below” PTO expectations set for in its FY2013 budget. Sequestration cuts have been mandated at about 5% of PTO revenue or $148 million. Since the PTO is a fee-based agency that is self-funded that shouldn’t be a problem, right? They simply will take in less revenue and therefore have less to spend.

Unfortunately, it appears the agency is getting hit by a double whammy. Not only is revenue down, but Congress is again instituting fee diversion. The 5% cut will apparently come from fees the PTO has collected. These will be shunted to other agencies within the Federal government.

I thought the America Invents Act was supposed to fix all of the PTO’s budget problems and issues of the past. The PTO was granted rule-making authority to set its own fees so as not to be at the whim of Congress. And Congress PROMISED this time that it would no longer divert PTO funds. Of course, this promise came at the same time that the prohibition against the practice was stripped from the bill.

Nestle on the fennel affair

from the Nestle website:

Nestlé is not trying to patent the fennel flower.

We made patent applications for a compound that can be extracted from Nigella sativa (also known as fennel flower, black seed and black cumin) or from other plants, to help treat or prevent food allergies.

We filed patent applications in 2009 that claim the use of an opioid receptor stimulating compound for the preparation of a composition to treat or to prevent food allergy. The patent application is for the compound, not for the plant the extract comes from. We have not filed a patent on the plant itself.

Plants provide the raw material for many Nestlé products. Our longstanding research programme in plant science is designed to find ways to improve the quality of plants and materials derived from plants, to improve the sustainability of their production and the stability of their supply. We have introduced a number of measures to ensure that we respect the principle of fair access to the raw materials we use. Our suppliers must be compliant with national laws and international agreements.

Appellant loses in Ex parte Nguyen ; Donohue cited

Ex parte Nguyen

Hmm, a title talks about a process for removing nickel and vanadium from hydrocarbons. Hydrocarbons, by definition, comprise only carbon and hydrogen. The appellant does lose here.

In re Donohue, 766 F.2d 531, 533 (CAFC 1985) , is cited. (not necessary that an invention disclosed in a publication actually have been made to satisfy the enablement requirement).

Reference: 12/019,276

Non-functional descriptive material discussed in Ex parte Lee

from Ex parte Lee

We also note in passing that the type of data being retrieved upon
rebooting or power loss pertains to non-functional descriptive material.
Non-functional descriptive material does not patentably distinguish over
prior art that otherwise renders the claims unpatentable. See In re Ngai, 367
F.3d 1336, 1339 (Fed. Cir. 2004); see also Ex parte Nehls, 88 USPQ2d
1883, 1887-90 (BPAI 2008) (precedential) (discussing cases pertaining to
non-functional descriptive material).

Requestor loses in Reexamination 95/001,542


This proceeding arose from a request by Garry Ian Holloway for an
inter partes reexamination of U.S. Patent 7,571,060 B2, titled “System and
Method for Gemstone Cut Grading,” and issued to Troy Blodgett, Ronald
Geurts, Al Gilbertson, Barak Green, T. Scott Hemphill, and Tom Moses on
Aug. 4, 2009 (the ‘060 patent). [Patent Owner: GEMOLOGICAL INSTITUTE OF AMERICA, INC. ]

KSR appears:

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

Appellant lost:

We agree that the specific ranges are
associated with boundaries or thresholds (e.g., table sizes between 54% and
65%). However, Appellant does not sufficiently demonstrate how Holloway
derives the boundaries or thresholds, much less that Holloway sets the
boundaries or thresholds by statistical analysis of observations of a particular
designated cut score, as recited in claim 1.
Appellant argues that Holloway discloses that “cross-correlation was
performed by comparing diamonds with the same score from different areas
on each grid . . .” and that results from this process are “confirmed by
showing actual diamonds . . . to . . . observers” (App. Br. 9). Appellant also
argues that Holloway discloses “an analysis of data obtained during the
collection stage” (id.). However, even assuming Appellant to be correct that
“cross-correlation” involves some form of statistical analysis and that
Holloway discloses analyzing data that were obtained during a collection
stage, Appellant does not demonstrate that Holloway also discloses that such
“cross-correlation” or analysis is utilized to set the boundaries or thresholds
(i.e., the ranges of table sizes, pavilion angles, and/or crown angles) as
required by claim 1.

Appellant loses in Ex parte BASF (Stueven )

From within the decision Ex parte BASF:

At page 10, the Board recommends that the language of claim 1 be clarified "consistent with our understanding."

At page 11, Ex parte Braeken, 54 USPQ2d 1110 (BPAI 1999) , is cited.

At page 14, Sakraida, 425 US 273, 282 is cited.

At page 15, the matter of "unexpected results" is discussed with citation to In re Klosak 455 F.2d 1077, 1080 (CCPA 1972)and
to McClain v. Ortmayer, 141 US 419, 319 (1891). In this case, the appellant's assertion of unexpected results fails.

At page 18, Antor Media is cited.

The appellant, represented by Marshall, Gerstein, lost.

As one footnote, non-prior art Issberner 1 (in English), which was an "equivalent" of Issberner 2 (in German), was used by the Board.

Reference: 12/438,835

Sunday, April 21, 2013

CBS Sunday Morning on April 21, 2013

Charles Osgood introduced the stories for April 21. Coming off a terrible and unforgettable week. Martha Teichner on the lessons to be learned. The "big data" era. All of that came into play. Looking back on the past week's extraordinary events. Second, feelings of regret. Nevermore. Lee Cowan on "without a chance to say good-bye." Unspoken words. Third, Tracy Smith with Alan Alda. Seth Doane on flower power. Complex biology. Sheryl Atkinson. Steve Hartman. Dean Reynolds in Chicago. News: Investigation in Boston goes on. Obama meets. Memorial services. Neil Diamond. Residents return to home in West Texas. Death toll at 14. Earthquake in Sw China. World bank on global poverty. Waters of Miss. R., etc. soon to crest. The London Marathon is being run today. Week ahead: April showers and summer like heat in midwest.

John Miller and Jim Axelrod report on Boston. Eerie videos from security cameras. Gripping 28 hour manhunt. Next chapter opens: why did young men who grew up and studies here resort to such violence. The families deserve answers.
Robert McFadden formerly of NCIS. USS Cole. #1 priority: were there accomplices? Deval Patrick: we have a million questions. Where did this trail of bloodshed begin. Axelrod interviews Larry Aronson. Julian Pollard. Both brothers were Muslims. Tamerlan endorsed several Jihad videos.

Jackie Hopper interviewed by Lee Cowan. Natasha Richardson. "The things you would have said." Letters from mothers who regretted fighting with their daughters. Child bidding farewell to pet goldfish. Things never said out loud. Having that final conversation. Physcially getting it out to someone else. Professor Neil Rose of Northwestern University. Things that are left undone tend to more powerful and more everlasting. Imagination to fill in the blanks. Earnest Wasman. Kristallnacht survivor. "Angels who put themselves in danger." Take the opporuntity to tell someone they impacted you. Debbie Dodds to Mrs. Musselman, her 10th grade teacher. Mrs. Musselman had died. Debbie Dodds is now a teacher. Time has an uncomfortable way of sneaking up on all of us. We are never really sure of "how much" time we have. Everybody has a "what if."

Dean Reynolds on "high life" in Chicago. Jeffrey Rogers 17th floor penthouse overlooking Lake Michigan. 5200 square feet in 1926 building. 14,250 sq feet: 89 floor in Trump Int. Hotel and Tower. Prop taxes 320,000 per year. 7 bedroom 8 bathroom. Most potential buyers are cash buyers.

Steve Hartman in Cookson, Oklahoma. Ed Gray served in WWII. Ed could not read. Covered it up for 80 years. Wife died in 2009. Northeastern State University: Toby Thompson. In Feb. 2013, Ed Gray read a book about George Washington. Get in there and learn.

Chip Reid interviews uncle Ruzlan Sarni, who lives in Maryland. Phone call with Tamerlan in 2009. Uncle said radical Islamists in Cambridge turned nephews.

Sheryl Atkinson on follow the money. Mark Sokolow survived 9/11 and went to Israel. Suicide bomber in Jerusalem four months later. Jamie Sokolow was 12 at the time. Second Entifada. Eugene and Lorraine Goldstein to Israel in June 2003. Landmark lawsuits filed in New York federal court: suing foreign banks moving cash to aid terrorists. Hezbollah and Hamas. Payment to Idris for loss of wage earner. Arab Bank. Routine banking activities. Juan Cirotti worked under George W. Bush.

Seth Doane on flower power. Clinton Community Garden in Manhattan, blocks from Times Square. Daniel Chamovitz. A plant is stuck where it is. New York Botanical Garden. Book "What a plant knows." Louis Schwarzburg. Amy Litt, director of plant genomics, at New York Botanical Garden. Detect ethylene. Neptunia plant: touch sensitive. No credible data on plants responding to sound.

Tracy Smith does Sunday Profile on Alan Alda. Alda at 77 is teaching scientists on "how to relate" to the rest of us. If scientists can't relate, Congress won't give money. Alda went to Stony Brook and offerred to teach course. Uses improv. You're not pretending to talk, you are talking. Crimes and Misdemeanors. Oscar nomination for "The Aviator." Born Alphonso D'Bruzzo in New York City. Quotes Newhart: if you come within a couple of books. Scientific American Frontiers. Was on a mountaintop in Chile; strangled intestine. Dr. said in clearest possible way: there is a problem with your intestine. This is rewarding as well.

Martha Teichner does Sunday Journal. "It ended with applause and a tweet." Terrorism and technology. Shelter-in-place. Bill Bratton interviewed. The big data era came into play. See the impact of the internet and social media. 300,000 people per minute went to FBI website. John Herman of Max Booth of Council for Foreign Relations in New York. If only we could turn back time a week.

Sunday Passage. four young strangers died in Boston. Martin Richardson. Crystal Campbell.

Week ahead. Monday: Boston radio at 2:50pm. Tuesday: Shirley Temple is 85. Wed.: Bette Midler play. Thurs. Bush in Dallas. Friday: New Orleans Jazz. Sat. White House correspondents dinner.

Next week: fast forward into the future.

Moment of nature. Spiriva HandiHaler. Concord, MASS. Mallard ducks on Walden Pond.

"A lot of academia deals with the abstract and intellectual pontification"

The quote could easily apply the various meanderings of "intellectual property" professors. Recall Hilter is Furious at the Supreme Court for Granting Cert to Bilski

Quote taken from Kids skip college, blaze different career paths

Saturday, April 20, 2013

Grist for a re-make of "The Formula"?

From Chevron Defies California On Carbon Emissions that mentioned the possibility of $2.18 per gallon fuel [text: Catchlight roughed out the numbers for a $504 million solvent liquefaction plant producing 92 million gallons a year at a cost of $2.18 a gallon, according to a 2010 internal report that laid out the technical and economic prospects for producing biofuels on a commercial scale. ]:

To try to make algae fuel, Irving, Texas-based ExxonMobil said it would spend up to $600 million and hired Synthetic Genomics Inc. in 2009 to identify and modify algal strains that yield high amounts of oils. The oil company promoted the work in ads with a scientist saying, “We’re making a big commitment to finding out just how much algae can help to meet the fuel demands of the world.”

Research hit a snag in 2011 when a strain that made enough oil in a California greenhouse to meet a required milestone in the contract failed to perform in a pond at an ExxonMobil facility in Texas, according to J. Craig Venter, Synthetic Genomics’ chief executive officer and co-founder and one of the first scientists to sequence the human genome.

Long Term

ExxonMobil recast the contract, leading to layoffs of more than half the Synthetic Genomics employees working on biofuels for the oil company, according to former managers and scientists involved in the project. The effort now focuses on long-term research and development rather than commercial production, said Heather Kowalski, a spokeswoman for La Jolla, California-based Synthetic Genomics.

Charles Engelmann, a spokesman for ExxonMobil, declined to discuss details of the partnership or comment on the company’s opposition to the low-carbon rule’s timeline.

The 1980 film "The Formula" had Marlon Brando as the evil oil company exec and George C. Scott as Lt. Barney Caine of the LAPD. The formula was to convert coal into liquid fuel. The 2013 version would convert wood into liquid fuel.

See also Not ready for slime time, including text from Michael Webber, deputy director of the Energy Institute at the University of Texas at Austin.

Plagiarism at Stanford

See post titled Evidence of further plagiarism concerning articles in the Stanford Review by Vasant Ramachandran Stanford ’11 M.S. ’12 .

Some allegations arose on twitter:

At 11:35 a.m. PST, Jim Romenesko, a journalist and the writer of the eponymous Jim Romenesko blog, tweeted “@StanfordReview Who was your editor in spring of ’12? One of your writers took paragraphs from an Imprint story for his 4/10/12 piece.” from

As a separate matter, note the complaint Kathyrn B. Duvall vs. Kenyon & Kenyon, Marcia H. Sundeen, John W. Bateman, T. Cy Walker, and Aimee N. Soucie, 1:13cv00525 (D. D.C.)

[at google ]

Friday, April 19, 2013

Zenni prevails over Aspex

Aspex v. Zenni

The background

Contour Optik, Inc., a company of Taiwan, and sublicensee
Aspex Eyewear, Inc. (collectively “Aspex”) sued
Zenni Optical, LLC for infringement of several United
States patents for magnetic clip-on eyewear such as
sunglasses. The district court held that Aspex is collaterally
estopped from pursuing this suit, based on earlier
litigation between Aspex and Altair Eyewear, Inc. for
infringement of the same patents

The CAFC affirms the presence of collateral estoppel

On review of the premises, we affirm the district court’s
ruling of collateral estoppel

Thus, Zenni, the defendant, wins.

Legal background

Collateral estoppel “precludes a plaintiff from relitigating
identical issues by merely switching adversaries”
and precludes a plaintiff “from asserting a claim that the
plaintiff had previously litigated and lost against another
defendant.” Parklane Hosiery Co. v. Shore, 439 U.S. 322,
329 (1979) (internal quotation marks omitted).
A ruling of collateral estoppel receives plenary review
on appeal. Shell Petroleum, Inc. v. United States, 319
F.3d 1334, 1338 (Fed. Cir. 2003). Since the criteria of
collateral estoppel are not unique to patent issues, on
appellate review we are guided by the precedent of the
regional circuit. Dana v. E.S. Originals, Inc., 342 F.3d
1320, 1323 (Fed. Cir. 2003). However, for any aspects
that may have special or unique application to patent
cases, Federal Circuit precedent is applicable. See Aspex
Eyewear, Inc. v. Marchon Eyewear, Inc., 672 F.3d 1335,
1341 n.1 (Fed. Cir. 2012)

Zenni's position:

Zenni responds that the question of estoppel is not
whether the now-asserted claims contain some terms that
were not previously construed, but whether the ’811 and
’896 claims in suit can be asserted against Zenni, for the
Zenni eyewear is indistinguishable from the Altair eyewear
against which the same patents were previously
litigated to final judgment of non-infringement. Zenni
states that there are no material differences between
Altair’s magnetic rimless sunglasses and Zenni’s magnetic
rimless sunglasses; indeed, no material differences are
identified in Aspex’s briefs. Zenni states that Aspex had a
full and fair opportunity in Altair to litigate infringement
of the same patents as to the same products, and thus
that Aspex is collaterally estopped from relitigation.

Lazare Kaplan prevails (mostly)

From the Lazare Kaplan case

Of the issues and outcome:

Lazare Kaplan International, Inc. (“Lazare Kaplan”)
appeals from the order of the United States District Court
for the Southern District of New York granting summary
judgment of invalidity of claims 1 and 7 of U.S. Patent
6,476,351 (the “’351 patent”) and granting a motion under
Federal Rule of Civil Procedure 60(b) filed by Photoscribe
Technologies, Inc. and the Gemological Institute of America
(collectively “Photoscribe”) seeking to vacate the
district court’s prior judgment finding the same claims not
invalid. Lazare Kaplan Int’l, Inc. v. Photoscribe Techs.,
Inc., No. 06 Civ. 4005 (TPG), 2012 WL 505742, at *14
(S.D.N.Y. Feb. 15, 2012) (“Lazare Kaplan IV”). Lazare
Kaplan requests that, if remanded, the case be reassigned
to a different judge. For the reasons set forth below, we
reverse the grant of relief under Rule 60(b), vacate the
finding of invalidity with instructions to reinstate the
original judgment of “not invalid,” and decline the request
to reassign

The technology:

Lazare Kaplan owns the ’351 patent, which claims
methods and systems for using lasers to make microinscriptions
on gemstones.

Past history:

We vacated both the grant of summary judgment of
no literal infringement and the jury verdict of noninfringement
under the doctrine of equivalents, as both
were based on the district court’s erroneous construction.
Id. at 1370. In addition, we explicitly remanded the issue
of infringement to the district court because we could not
“determine with any certainty that the accused machines
infringe the asserted claims under this new construction.”

The issue here:

Here, the issue is whether, on remand, a district court
may reopen a prior final judgment as to patent validity,
not appealed by either party, based on a claim construction
modified by this court.
Because this issue requires
consistent and uniform application by district courts when
handling patent cases, we resolve it as an issue of the law
of this court. Fiskars, 279 F.3d at 1381; Broyhill, 12 F.3d
at 1083. We find persuasive, however, certain decisions of
our sister circuits, particularly the Second Circuit, on
issues relevant to this appeal. Broyhill, 12 F.3d at 1083

A 1796 case is cited:

The Supreme Court has long recognized this
cross-appeal rule as “inveterate and certain,” Morley
Constr. Co v. Md. Cas. Co., 300 U.S. 185, 191 (1937), and
the rule’s application has been noted since the Court’s
earliest years, McDonough v. Dannery, 3 U.S. 188, 198
(1796). See Greenlaw v. United States, 554 U.S. 237, 244–
45 (2008); El Paso, 526 U.S. at 479. Application of the
rule promotes orderly functioning of the appellate courts
by providing “notice of issues to be litigated and encouraging
repose of those that are not.” El Paso, 526 U.S. at

Radio Steel (an LBE favorite) is cited:

Not long after the creation of this court, we clarified
the application of the cross-appeal rule in Radio Steel &
Manufacturing Co. v. MTD Products, Inc., 731 F.2d 840
(Fed. Cir. 1984). In that case, the district court found the
asserted claims not invalid and not infringed, with the
patent owner appealing from the judgment of noninfringement,
but with the alleged infringer taking no crossappeal.
Radio Steel, 731 F.2d at 842–43. Acknowledging
lack of uniformity in the prior practice of the regional
circuits on whether a cross-appeal must be filed by a
similarly situated alleged infringer arguing invalidity, we
set forth our current rule: “[A] party will not be permitted
to argue before us an issue on which it has lost and on
which it has not appealed, where the result of acceptance
of its argument would be reversal or modification of the
judgment rather than affirmance.” Id. at 844.

The LK position:

Lazare Kaplan argues that the cross-appeal rule
should have barred reopening the prior judgment on
validity because Photoscribe seeks to lessen the rights of
Lazare Kaplan under that prior judgment but failed to file
a cross-appeal. In addition, Lazare Kaplan asserts that
the cross-appeal rule has no equitable exceptions permitting
the relief granted by the district court. Photoscribe
responds that prior decisions of this court permitted the
district court to address validity on remand. Further,
Photoscribe asserts that the granted relief was proper
under either Rule 60(b)(5) or 60(b)(6).
We agree with Lazare Kaplan...

As to re-assignment of a judge:

We evaluate such requests under the law of the
regional circuit in which the district court sits. Micro
Chem., Inc. v. Lextron, Inc., 318 F.3d 1119, 1122 (Fed. Cir.
2003). When assessing a request for reassignment, the
Second Circuit considers three factors: “(1) whether the
original judge would reasonably be expected upon remand
to have substantial difficulty in putting out of his or her
mind previously-expressed views or findings determined
to be erroneous or based on evidence that must be rejected,
(2) whether reassignment is advisable to preserve the
appearance of justice, and (3) whether reassignment
would entail waste and duplication out of proportion to
any gain in preserving the appearance of fairness.”
Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130,
142 (2d Cir. 2007).

Judge Dyk dissented:

No principle of patent law is better established than
that “claims must be interpreted and given the same
meaning for purposes of both validity and infringement
analyses.”, Inc. v., Inc.,
239 F.3d 1343, 1351 (Fed. Cir. 2001). Here the majority
declines to enforce that basic stricture, allowing the
patentee to assert infringement on a broad claim construction
while permitting it to defend against invalidity
using a different and far narrower claim construction.


However, the Supreme Court has held that an appellate
mandate generally does not constrain a district
court’s power under Rule 60(b). See Standard Oil Co. of
Cal. v. United States, 429 U.S. 17, 18–19 (1976) (holding
that a party need not obtain leave from an appellate court
prior to filing a Rule 60(b) motion in the district court).
Here, Photoscribe sought to reconcile the two inconsistent
judgments on invalidity and infringement using Rule


But the majority identifies no
case holding that a failure to file a contingent cross-appeal
bars Rule 60(b) relief. Rather, the cases cited by the
majority involved situations in which the Rule 60(b)
movant had lost entirely and failed to appeal.

Judge Dyk cites Bowen:

The Supreme Court’s decision in Bowen v. United
States Postal Service, 459 U.S. 212 (1983), is almost
directly on point. Bowen involved an action by a former
Postal Service employee against both the Service and the
American Postal Workers Union, to which the employee
had belonged during his employment. 459 U.S. at 214. A
jury found the Service had wrongfully discharged Bowen
and that the Union had breached its duty of fair representation.
Id. at 214–215.

Judge Dyk concluded:

In my view we should recognize that Rule 60(b)(5)
may be utilized to reopen the invalidity judgment for
reconsideration based on the correct claim construction. I
respectfully dissent.

Thursday, April 18, 2013

"Cheating has generally been rampant at B-schools."

Shocked? See B-Schools Use Turnitin Software to Crack Down on Plagiarism

And note:

Even cheaters are turning to content tracking services. They want to make sure the writers they hire to pen their essays aren’t ripping somebody else off or selling the same product to multiple customers.

Query: are law firms that sell the same (patent) opinion more than once ripping off clients?

BIO position on renewable fuel standards [RFS]

from a press release picked up on utilityproducts:

The Biotechnology Industry Organization (BIO) recently submitted comments to the Environmental Protection Agency (EPA) on the proposed Regulation of Fuels and Fuel Additives: 2013 Renewable Fuel Standards (RFS).

The comments emphasized that continued stable implementation of the RFS provides companies developing innovative new advanced and cellulosic biofuels confidence that the U.S. fuel market will remain open, if they can produce the fuels. “BIO supports EPA’s continued recognition that many factors must be taken into consideration in developing projections of the proposed Cellulosic Biofuel Volumes for 2013, and that information obtained directly from cellulosic biofuel producers should be evaluated in addition to the U.S. Energy Information Administration’s (“EIA”) estimate,” said Brent Erickson, executive vice president of BIO’s Industrial & Environmental Section.

BIO also cautioned against setting volumes for cellulosic and advanced biofuels that would become a self-fulfilling prophecy, by discouraging biofuel developers from aiming higher. “EPA also correctly observes that perennial legal and legislative challenges to the RFS, and budget and regulatory uncertainty in complementary federal biofuels policy, have caused some technology investors to question the long term RIN value of cellulosic biofuel. However, EPA must carefully avoid in its rulemaking creating additional incentive for biofuel opponents to impede cellulosic biofuel commercialization through legal, regulatory and legislative interference,” Erickson wrote.

BIO also recommended that EPA not set the 2014 volumes for the RFS advanced biofuel volumes before the statutory deadline. And in response to requests for comments on the “blend wall,” Erickson noted: “BIO firmly believes that the limits to market access for biofuels commonly referred to collectively as the blendwall represent a series of barriers contrived by obligated parties to prevent biofuels from gaining access to the marketplace. Multiple avenues exist for blending additional volumes of biofuel into the nation’s fuel supply.”

K-Tech: do forms rule?

As to the use of forms, from the K-Tech decision of the CAFC:


Any criticism we may have regarding the sufficiency

of the forms themselves is strictly proscribed by Supreme

Court precedent. See Leatherman v. Tarrant Cnty. Narcotics

Intelligence & Coordination Unit, 507 U.S. 163, 168

(1993) (Any changes to the Federal Rules of Civil Procedure

“must be obtained by the process of amending the

Federal Rules, and not by judicial interpretation.”); see

also Twombly, 550 U.S. at 569 n.14 (acknowledging that

altering the Federal Rules of Civil Procedure cannot be

accomplished by judicial interpretation). And, as we

made clear in R+L Carriers, to the extent any conflict

exists between Twombly (and its progeny) and the Forms

regarding pleadings requirements, the Forms control.1

R+L Carriers, 681 F.3d at 1334 (citing McZeal, 501 F.3d

at 1360 (Dyk, J., concurring in part and dissenting in

part) (acknowledging that, while the bare allegations

contemplated by Form 18 appear deficient under

Twombly, we are “required to find that a bare allegation

of literal infringement in accordance with Form [18]

would be sufficient under Rule 8 to state a claim”));




Thus, a plaintiff in a patent infringement

suit is not required to specifically include

each element of the claims of the asserted patent.

See, e.g., Phonometrics, Inc. v. Hospitality Franchise

Sys., Inc., 203 F.3d 790, 794 (Fed. Cir. 2000).


Note also


K-Tech responds by arguing that both DirecTV and

TWC operate in secrecy and that K-Tech is unable to

ascertain exactly where the infringement is occurring or

what devices are used to infringe. K-Tech contends that

fair inferences can be drawn from allegations in the

complaints regarding the nature of defendants’ businesses,

the industry standards to which they are required to

adhere, and the output signals produced




A defendant cannot shield itself from a complaint

for direct infringement by operating in such secrecy that

the filing of a complaint itself is impossible. Nor is a

defendant immune from a direct infringement claim

because he does not make a “device” but, rather, infringes

through a system or method.

The touchstones of an appropriate analysis under

Form 18 are notice and facial plausibility. See R+L

Carriers, 681 F.3d at 1334; McZeal, 501 F.3d at 1357.

While these requirements serve as a bar against frivolous

pleading, it [LBE: bar, not requirements] is not an extraordinarily high one.


Note the concurring opinion:


stating that “the Forms control” in the event of a conflict

between Form 18 and plausibility is dictum. In re

McGrew, 120 F.3d 1236, 1238 (Fed. Cir. 1997) (“[D]ictum

consists, inter alia, of statements in judicial opinions upon

a point or points not necessary to the decision of the

case.”) Such dictum “‘is not authoritative,’” but rather “‘is

the part of an opinion that a later court . . . is free to

reject.’” Id. (quoting United States v. Crawley, 837 F.2d

291, 292 (7th Cir. 1988)).