Forbes on the economics of biofuel from algae

Forbes mentions AlgaePARC:


--
So instead, Wijffels is attempting to use algae to promote clumping. He has added flocculating strains of algae, such as Ankistrodesmus falcatus, to a reactor containing the oil-producing strain Chlorella vulgaris, and found the two types readily joined together in clumps.

“You can have co-cultures of microalgae, in which one of them is really good at oil accumulation and the other one is really good at sticking to the other algae,” he says. “The art, of course, is to have a large percentage of oil-producing algae and a very small percentage of those flocculating algae.”

To get a better insight into the financial and energy costs of production, Wijffels aims to test the technique at Wageningen University’s Algae Production and Research Centre. AlgaePARC was launched earlier this year and allows algae-production processes to be tested alongside each other under the same conditions. It is supported by companies including ExxonMobil, Total, and biologist Craig Venter’s firm Synthetic Genomics. It has an open pond and six outdoor bioreactors made from horizontal tubes, vertical tubes or flat panels.

Ultimately though, if algae biofuel is to be made financially and environmentally sustainable, we will need to make use of more than just the oil produced by the organisms, says Schlarb-Ridley, who authored a report earlier this year on research into algae for the UK’s Biotechnology and Biological Sciences Research Council.

“Even if you are able to produce algae on a mass scale, you still need to use the by-products as well as just the fuel,” she says. Fortunately, as well as being oil producers, algae are also a valuable source of protein for fish and animal feed.

In a similar way, algae can use the by-products of other industries, says Schlarb-Ridley. Algae reactors could be connected to farms or fisheries, to consume the nitrate-rich waste they produce. Algae can also mop up the CO2 from flue gases from nearby industrial plants.

--

EFF brief on Commil case

EFF submitted a brief in the Commil case:


--

In our brief, we argue that inducement requires intent to infringe and if you think you’re not infringing (because either the patent is invalid or because you don’t think the acts you cause are covered by the patent), you shouldn’t be considered an inducer.

A contrary ruling would encourage patent holders to avoid clearly describing their inventions in a patent which would exacerbate the problem we already have with vague and overbroad software patents. Patent applicants could hide the ball from the Patent Office (making it more difficult and time consuming to do a good job reviewing the application) and the public (who may not understand the rights claimed by the patent holder), and still claim someone should have known that what they were doing was causing other people to infringe.


---

See previous IPBiz post of 6 Dec 2014.

Ericsson goes after Apple in ED Texas and at ITC

PCWorld notes

--
The Swedish telecommunications equipment vendor filed nine lawsuits against Apple on Thursday, seven in the U.S. District Court for the Eastern District of Texas and two in the U.S. International Trade Commission, alleging infringement of a total of 41 of its patents, it said Friday.



--

See also

--
2:15-cv-289: Ericsson claims Apple infringed the following:
US patent 6,026,293: "System for Preventing Electronic Memory Tampering"
US patent 6,400,376: "Display Control for Hand-Held Data Processing Device"
US patent 6,857,068: "System and Method for Data Processing by Executing a Security Program Routine Initially Stored in a Protected Part of Irreversibly Blocked Memory Upon Start-Up"
US patent 6,901,251: "Portable Communication Apparatus Having a Man-Machine Interface and a Method for its Operation:
US letters patent RE43,931: "Radiotelephones Having Contact-Sensitive User Interfaces and Methods of Operating Same"
2:15-cv-290: Ericsson claims Apple infringed the following:
US patent 6,360,102: "System and Method for Defining A Subscriber Location Privacy Profile"
US patent 6,433,735: "Mobile Terminal and System and Method for Determining the Geographic Location of a Mobile Terminal"
US patent 6,535,815: "Position Updating Method for a Mobile Terminal Equipped with a Positioning Receiver"
US patent 6,553,236: "On Demand Location Function for Mobile Terminal"
US patent 6,993,325: "Method for Facilitating Electronic Communications"
US patent 7,149,534: "Peer to Peer Information Exchange for Mobile Communications Devices"
2:15-cv-291: Ericsson claims Apple infringed the following:
US patent 7,149,510: "Security Access Manager in Middleware"
US patent 7,286,823: "Mobile Multimedia Engine"
US patent 7,415,270: "Middleware Services Layer for Platform System for Mobile Terminals"
US patent 7,536,181: "Platform System for Mobile Terminals"
US patent 7,707,592: "Mobile Terminal Application Subsystem and Access Subsystem Architecture Method and System"
US patent 8,079,015: "Layered Architecture for Mobile Terminals"
2:15-cv-292: Ericsson claims Apple infringed the following:
US patent 6,433,512: "Power Consumption Reporting by an Accessory of an Electronic Device"
US patent 6,763,247: "Portable Telecommunication Apparatus for Controlling an Electronic Utility Device"
US patent 6,968,365: "Device and a Method for Operating an Electronic Utility Device From a Portable Telecommunication Apparatus"
US patent 8,170,472: "Arrangement and a Method in a Telephony System"
2:15-cv-293: Ericsson claims Apple infringed the following:
US patent 6,633,550: "Radio Transceiver on a Chip"
US patent 6,157,620: "Enhanced Radio Telephone for Use In Internet Telephony"
US patent 6,029,052: "Multiple-Mode Direct Conversion Receiver"
US patent 8,812,059: "Radiotelephones Having Contact-Sensitive User Interfaces and Methods of Operating Same"
US patent 6,291,966: "Method and an Apparatus For Storing and Communicating Battery Information"
US patent 6,122,263: "Internet Access For Cellular Networks"
2:15-cv-287: Ericsson claims Apple infringed the following:
US essential patent 8,102,805: "HARQ in Spatial Multiplexing MIMO System"
US essential patent 8,331,476: "Method for Detecting Transmission Mode in a System Using Multiple Antennas"
US essential patent 6,301,556: "Reducing Sparseness in Coded Speech Signals"
US essential patent 8,607,130: "Computationally Efficient Convolutional Coding With Rate-Matching"
US essential patent 8,717,996: "Uplink Scrambling During Random Access"
US essential patent 8,660,270: "Method and Arrangement in a Telecommunication System"
US essential patent 8,837,381: "Using an Uplink Grant as Trigger of First or Second Type of CQI Report"
US essential patent 6,058,359: "Speech Coding Including Soft Adaptability Feature"



--

link: http://www.theregister.co.uk/2015/02/28/ericsson_smartflash_apple_lawsuits/

Concerning Robin Thicke

ET Canada noted of the Robin Thicke copyright trial

--
Mind you, Robin's defense team unveiled an unusual strategy to help present its case. While on the witness stand, the 37-year-old singer performed a piano medley featuring several known songs: U2's With Or Without You, The Beatles' Let It Be, Alphaville's Forever Young, Bob Marley's No Woman No Cry, and Michael Jackson's Man In the Mirror.

Although musical interludes can liven up any legal proceeding, the medley was designed to show many songs share similar chords and melodies without copying each other. To further the point, Robin noted that Blurred Lines relies solely on A-major and E-major, while Got To Give It Up uses eight different chords.

--

Non-Europeans dominate European patent landscape

The Financial Times noted non-Europeans are dominating the European landscape:

--


In 2014, filings from the US, Japan and China accounted for 53 per cent of the 274,000 new patents in Europe, according to data from the European Patent Office. Samsung, the South Korean telecoms and technology group, was the most prolific single company, taking top spot with 2,541.

--

Within the article, the FT asserted Europe was a leader in biofuel technologies.

100th patent application for the Great Lakes Bioenergy Research Center

The Badger-herald reports

--

The Great Lakes Bioenergy Research Center recently filed its 100th patent application, a milestone for the center.

Tim Donohue, director for the GLBRC, said the mission of the research center is to generate knowledge needed to produce liquid transportation fuels and valuable chemicals from the non-edible, or cellulosic, part of plant biomedicine.

This milestone is especially significant because the GLBRC has reported 50 percent more inventions than expected for a research center given the funding level and size, Donohue said. He said he believed this was because of the way they have worked together as a facility to attack problems and solve issues.

“We have taken a team approach to solve very difficult problems around the growth of plant material,” Donohue said.

In 2007 the U.S. Department of Energy established the GLBRC. The University of Wisconsin leads the GLBRC, with Michigan State University as a major partner, and it receives funding from the DOE.

Donohue said there were more than 400 people working in the center, and almost 100 of them were undergraduate students. He said there are undergraduates who have their name on patents and, through the GLBRC, are able to do first rate science and research.




--

**Within the quote, the text -- This milestone is especially significant because the GLBRC has reported 50 percent more inventions than expected for a research center given the funding level and size, Donohue said. -- is of interest.



IPBiz notes that WARF does the patenting work for Great Lakes. WARF
handled the stem cell cases for UW, for which there was a recent
denial of cert. (favoring UW).

CAFC addresses patent term adjustment in Gilead case; Gilead loses

The outcome of Gilead v. Lee:


Gilead Sciences, Inc. (“Gilead”)
appeals the decision of the United States District Court
for the Eastern District of Virginia granting summary judgment to
the Director of the United States Patent and Trademark Office (“PTO”)
on whether it properly calculated the Patent Term Ad-
justment (“PTA”) period for U.S. Patent No. 8,148,374
(“the ’374 patent”). See Gilead Scis., Inc., v. Rea, 976
F.Supp.2d 833 (2013)(“Gilead I”). Because the district
court properly granted the director’s motion for summary
judgment, this court affirms.




Note: DAVID MOSKOWITZ,
Criminal Division, Fraud Section,
United States Department of Justice, Washin
gton, DC,argued for defendant-appellee.


An issue:



On October 27, 2011, Gilead contested the PTO’s
assessment of the fifty-seven day applicant delay.
Gilead argued its filing of the supplemental IDS did not cause
any actual delay and therefore should not have been
subtracted from its PTA.
The PTO rejected this argument, countering, “under [35 U.S.C. §]
132, the first action mailed by the [PTO] was the restriction requirement
mailed [on] November 18, 2009.” J.A. 130. There-
fore, according to the PTO, Gilead’s filing of a
supplemental IDS after it had file
d a response to the restriction requirement constituted
a failure to engage in a reasonable effort to conclude prosecution as
required by 37 C.F.R. § 1.704(c)(8).



Note that Chevron and Cuozzo are cited:


Under the review provision of the APA applicable here, a court may
set aside the PTO’s actions only
if they are “arbitrary, capricious, an abuse of discretion, or otherwis
e not in accordance with law.” 5 U.S.C. § 706(2)(A).
When reviewing an agency’s statutory interpretation, this court applies
the two-step framework established in Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
In re Cuozzo Speed Techs., LLC, No. 2014-1301,



Ejusdem generis is mentioned:


The PTO contends the interpretative rule of
ejusdem generis is inapplicable in this context. Specifically, the
PTO argues “[ejusdem generis] applies only to ‘a general
or collective term following a list of specific items to which
a particular statutory command is applicable.’” Appellee’s
Br. 34 (quoting CSX Transp., Inc. v. Ala. Dep’t. of Reve-
nue,131 S. Ct. 1101, 1113 (2011) ).
As this court has previously held , “[u]nder the rule of
ejusdem generis , which means ‘of the same kind,’ where
an enumeration of specific things is followed by a general
word or phrase, the general word or phrase is held to refer
to things of the same kind as those specified.”
Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1392 (Fed.
Cir. 1994). “We typically use ejusdem generis
to ensure that a general word will not render specific words mean-
ingless.”
CSX Transp., Inc. , 131 S. Ct. at 1113 (2011) (citing
Circuit City Stores, Inc. v. Adams
, 532 U.S. 105, 114-15 (2001)). Here,
ejusdem generis
is inapplicable to this statutory
provision.




As to legislative history:



The Supreme Court has held “[e]xtrinsic materials
have a role in statutory interpretation only to the extent
they shed a reliable light on the enacting Legislature’s
understanding of otherwise ambiguous terms.”
ExxonMobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546,
568 (2005). Here, Gilead does not contend any provision in
the statute is ambiguous. “[T]he authoritative statement
is the statutory text, not the legislative history or any
other extrinsic material.” Id. Moreover, the weight
attached to extrinsic materials is de minimis
when the legislative history is not from the enacting Congress.
See United States v. Price
, 361 U.S. 304, 31 3 (1960 )
United States v. United Mine Workers o
f Am. , 330 U.S. 258, 282 (1947).



link: http://www.cafc.uscourts.gov/images/stories/opinions-orders/14-1159.Opinion.2-24-2015.1.PDF

CORDIS reports on biofilm Algadisk bioreactor

--

Preliminary laboratory scale studies have shown consistent biomass production and weekly a thick microalgal biofilm could be harvested. A new and innovative harvesting device has been developed for ALGADISK able to directly harvest the dense biofilm with a dry matter of 150 gram per litre.


--

The project received founding through the European Union’s FP7 under grant agreement number 286887.

link: http://cordis.europa.eu/news/rcn/123196_en.html

Earlier, in 2013:


Current commercial alga technologies use plantonic algae in water solution in Vertical Bioreactors (VB) or algae farms with large ponds. However, there are several disadvantages. The processes need a lot of water during production, CO2 is released through bubbling in the liquid phase and harvesting is difficult, time consuming and inefficient. In addition, the operation is difficult to scale up and leaves a large foot print.

ALGADISK's proposed process is based on biofilm technology using a Rotating Disk reactor system similar to the state of art rotating reactors used elsewhere in the biological industry. In this system, algae can be grown on indifferent biocompatible surfaces and thus CO2 would be captured either from the gas phase directly or from the liquid phase after bubbling. This method dramatically increases the efficiency and decreases the amount of water necessary for the process. Automatic and continuous harvesting could also be designed and implemented. Scale-up is easy and the foot print would be much smaller than used currently. The ALDADISK project aims to develop a small automatic, biofilm reactor, with low operation and installation costs, which is capable of capturing a considerable amount of CO2, The intended result would be organic products with a sufficiently high yield.

...
Furthermore, those SMEs that are participating in the project consortium are particularly interested in a system that remains profitable with small-scale installations and occupies a minimal amount of space. In addition to the production technology, there is also a need for an organized and integrated knowledge base. Many of the participants in the project are interested in algae production, but lack the tools necessary to calculate economic feasibility and to determine which system best suits their needs. One aim of the project, therefore, is to bridge the knowledge gap between research activities and end-user needs.

Design software will be provided which, based on user input, will suggest installation parameters, perform cost/benefit analysis to calculate economic feasibility, and make predictions concerning the environmental sustainability of the system. The proposed system will be specifically crafted to meet the needs of SMEs.

Laboratory tests, a pilot scale system, and mechanical and electronic designs are currently being carried out. These will be followed by a prototype reactor system which will be installed at one end-user facility. The intention is for the first ALGADISK reactor to be operated and tested in the summer of 2014.


AND
The ALGADISK project is funded by the European Commission through the Seventh Framework Programme (FP7) within the funding scheme "Research for the Benefit of SME Associations" managed by REA Research Executive Agency. Eleven participants from eight countries (3 associations, 4 small and medium enterprises and 4 research institutions) will be working on the project over the next 36 months.

Sapphire's US 20150059023 on biomass yield genes

Abstract

--
The present disclosure provides several novel genes that have been shown to increase the biomass yield or biomass of a photosynthetic organism. The disclosure also provides methods of using the novel genes and organisms transformed with the novel genes.


--

See also 20150056707 n salt tolerance.

US application 20150057465 to OPX: CONTROL OF GROWTH-INDUCTION-PRODUCTION PHASES

Abstract:

The present invention provides various combinations of genetic modifications to a transformed host cell that provide increase conversion of carbon to a chemical product. The present invention also provides methods of fermentation and methods of making various chemical products.


-

Matrix Genetics asserts breakthrough with Spirulina genetic engineering

From a press release

--

Spirulina are cultivated worldwide for use as a human and animal food supplement due to their high protein content. They are also a rich source of B vitamins, minerals, and anti-oxidant carotenoids such as beta-carotene. Yet global production of Spirulina has been held back by the lack of efficient genetic engineering methods that have been crucial in increasing the availability of other global sources of protein such as soy, canola and corn.

Matrix has broken through this bottleneck by being the first to invent rapid and efficient genetic methods for modifying Spirulina. These methods have been long sought after by the algal industry, but have proven elusive.

"Genetic engineering is the key technology for the manufacture of almost all valuable products by industrial micoorganisms. Matrix has finally discovered how to bring this technology to Spirulina," said Jim Roberts, Chief Scientific Officer at Matrix Genetics. "Our technology allows us to stably and precisely introduce new genes into the Spirulina genome, resulting in increased amounts of valuable proteins, new biochemical pathways and improved production traits."

For the first time, global production of Spirulina with greatly increased amounts of these proteins and pigments is a reality. One of the first applications of Matrix's new technology is a strain of Spirulina that can double the yield of phycocyanin, a natural antioxidant that is used as a nutritional supplement as well as a blue pigment for the food, cosmetic and medical industries. The market for phycocyanin is predicted to double over the next three years, and Matrix's new technology is well positioned to help industry meet this increased demand.

--

link: http://www.marketwired.com/press-release/matrix-genetics-unlocks-potential-algae-produce-commercial-quantities-sustainable-pigments-1994940.htm

Appellant Biax wins reversal of 285 fee award at CAFC

In Biax v. Invidia, the CAFC reversed a fee award given by D. Colorado:

--
We reverse the district court’s grant of fees under
§ 285 and affirm the district court’s denial of fees under
§ 1927.
--

link: http://www.cafc.uscourts.gov/images/stories/opinions-orders/13-1649.Opinion.2-20-2015.1.PDF

The CAFC suggested that the district court had misread (misunderstood?) testimony:


As to the first ground, the district court misread the
expert’s testimony. The testimony in question came from
a deposition of Biax’s expert in which counsel for the
defendants asked: “[i]n informing your infringement
opinions for the ’313 patent, did you apply a requirement
that condition code storage locations are shared by all
processor elements?” J.A. 5. The witness clarified: “[b]y
all processor elements [on the chip]? No.” Id. Subsequently,
counsel for defendants asked again “if there is a
requirement that processor elements need to access any of
the condition code registers or condition code storage
locations in the chip, then [the chip] doesn’t infringe?” Id.
(emphasis added). To this, the witness responded: “[i]t
doesn’t infringe that requirement, no. But there is no
such requirement.” Id. Contrary to the district court’s
interpretation of the exchange, Biax’s expert did not
admit that Biax had no infringement positions under the
district court’s claim construction. Indeed, at oral argument
in our court, counsel for defendants admitted that
the expert did not say that there is no infringement if one
considers only the individual shaders. See Oral Ar. Tr. at
19:55–20:14 (The Court: “[The expert’s testimony] doesn’t
say that there is no infringement if you consider the
individual shaders?” Counsel: “No, no it doesn’t say that,
your honor.”).




The CAFC found a "clarification" order to be ambiguous:



This clarification order did nothing to resolve
the ambiguity as to whether the shared-by-all limitation
applied on a shader-by-shader or chip-by-chip basis; if
anything, the district court’s claim construction orders
appeared to suggest that the claim limitations apply to
each shader separately and not to all processors and all
condition code registers on the chip.
It was not until summary judgment that the district
court finally resolved the uncertainty. For the first time,
the district court expressly announced that “[t]he attempted
isolation of a single processor element does not
change the fact that any particular processor element in
the accused chips [must be capable] of accessing all condition
code registers and that any particular condition code
register [must be] shared by all of the other processor
elements which exist within the accused chips.” J.A. 1991
(emphasis added). Thus, it was not until a year and half
after the claim construction orders that the district court
finally answered the “on what” question against Biax.
Biax’s claim construction position, that the asserted
claims read onto individual shaders, was reasonable
under the district court’s claim construction orders,
especially in light of the stipulated definition of “computer,”
which was met by the individual shaders.4

Because neither the expert testimony nor the claim
construction orders foreclosed Biax’s position and there
was nothing unreasonable about Biax’s infringement
position, the basis for the district court’s award of fees no
longer exists. Thus, even applying the deferential standard
of review under Highmark, the district court’s fee
award must be set aside.


**As to the 1927 matter:

--
In addition to asking for fees under 35 U.S.C. § 285,
the defendants also asked for fees from Dorsey under 28
U.S.C. § 1927. Section 1927 provides:

Any attorney or other person admitted to conduct
cases in any court of the United States or any Territory
thereof who so multiplies the proceedings in
any case unreasonably and vexatiously may be
required by the court to satisfy personally the excess
costs, expenses, and attorneys’ fees reasonably
incurred because of such conduct.

The district court denied this basis for the fee award. It
found that Dorsey did not “exceed[] the bounds of zealous
advocacy.” J.A. 22. The defendants appeal that denial.
Under Tenth Circuit law, an assessment of fees under
§ 1927 is appropriate “only in instances evidencing a
serious . . . disregard for the orderly process of justice.”
Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987)
(quoting Dreiling v. Peugeot Motors of Am., Inc., 768 F.2d
1159, 1165 (10th Cir. 1985)). Attorney conduct that is
“objectively unreasonable” and manifests “either intentional
or reckless disregard of the attorney’s duties to the
court” is sanctionable. Hamilton v. Boise Cascade Express,
519 F.3d 1197, 1202 (10th Cir. 2008) (quoting
Braley, 832 F.2d at 1512). The defendants have not
argued that making an objectively reasonable argument
could support sanctions under § 1927, and the district
court did not abuse its discretion by deciding to deny fees
under § 1927. The denial of fees under § 1927 is affirmed
for the same reasons we reverse the award of fees under
35 U.S.C. § 285—because § 1927 is inapplicable when the
lawyer puts forth only objectively reasonable arguments
in the absence of bad faith. Therefore, we need not address
whether the “unreasonabl[e] and vexatious[]”
standard of § 1927 under Tenth Circuit law is more
stringent than the “exceptional” standard of § 285.

--

NCIS "Blast from the past" episode does GaN

Work on the blue LED from gallium nitride got the Nobel prize in 2014. On 24 Feb 2015, GaN was involved in the NCIS plot line in the episode Blast from the past.

Some text from the NCIS show related to gallium nitride

*
Uh, Gallium Nitride-- or "GaN," for short-- is a highly dangerous compound originally developed... To brighten LEDs in prototype electronics.



*
He offered me a lot of money for two backstopped IDs. Did they say what they wanted them for? They were trying to get information on Gallium Nitride. That's old stuff. What could it hurt?



*

link: http://transcripts.foreverdreaming.org/viewtopic.php?f=193&t=16669

**As to the Nobel Prize, see the previous IPBiz post

Nakamura, the Nobel Prize, and compensating inventors which does mention
Paul Maruska.

Case against WARF stem cell patents ends

From the San Diego Union Tribune:

---
A nine-year legal challenge to human embryonic stem cell patents ended Tuesday, when the Supreme Court declined to hear the case.

The decision means the Wisconsin Alumni Research Foundation, or WARF, will get to keep its patent rights for the cells, which were discovered in 1998 by University of Wisconsin - Madison scientist James Thompson.




---

The article by Bradley Fikes also notes:

--
Loring and two public interest groups, Consumer Watchdog and the Public Patent Foundation, challenged the patents in 2006, and in 2007 succeeded in narrowing WARF's claims to exclude the IPS cells. Loring and the groups continued the challenge on the grounds that as a product of nature, human embryonic stem cells are not patentable.

--

See earlier posts about this saga on IPBiz.

for example
WARF smokes PubPat, FTCR in last two re-exams of stem cell patents

Nature comments on WARF win over PubPat, FTCR on stem cell patent


ScienceToday on WARF victories over PubPat, FTCR, wherein IPBiz notes of the author: Holden does not mention that the induced pluripotent stem cells themselves are the subject of filed patent applications.

As to iPS, note the previous IPBiz post


The patent world of iPS (stem cells): Yamanaka, Bayer, and iZumi, which includes the text

--
As a followup, Breitbart reported on 12 Feb 09:

The Japanese unit of German chemical giant Bayer A.G., Bayer Yakuhin Ltd., said Thursday it would sell a set of patents on producing iPS cells, regarded as key in regenerative medicine, to a U.S. venture firm.

The three patents to be sold to iZumi Bio Inc. include Bayer Yakuhin's main method of producing iPS, or induced pluripotent stem cells, which have the potential to grow into any type of human body tissue. Bayer Yakuhin filed for Japanese and international patents on the method in June 2007.

(...)

U.S. venture iZumi Bio, based in Mountain View, California, was founded in 2007. It is funded through equity investments by Kleiner Perkins Caufield and Byers and Highland Capital Partners

--

Apple loses 532.9 million jury verdict in ED Texas

From Bloomberg:


--
(Bloomberg) -- Apple Inc. was told to pay $532.9 million after a federal jury said the company’s iTunes software and games accessed through the service used a Texas company’s patented inventions without permission.
Closely held Smartflash LLC, which claimed that Apple infringed three patents, was seeking $852 million in damages. A federal jury in Tyler, Texas, where Smartflash is based, rejected Apple’s arguments that it didn’t use the inventions and that the patents were invalid.

--

Next step after GVR in Gevo case?

As to the GVR in Shire, the pharmapatentsblog noted:


--

the Supreme Court held that “the ‘evidentiary underpinnings’ of claim construction … must be reviewed for clear error on appeal.” But, the Court also stated:

As all parties agree, when the district court reviews only evidence intrinsic to the patent (the patent claims and speci­fications, along with the patent’s prosecution history), the judge’s determination will amount solely to a determination of law, and the Court of Appeals will review that construction de novo.

Since the claim construction in Shire appears to have been based only on intrinsic evidence, the Federal Circuit’s original analysis was fully consistent with the new guidance provided in Teva v. Sandoz.Thus, the court should not have to revisit its analysis or disturb its previous findings when it rehears the case on remand.
--


This thinking may be relevant to thinking in Gevo / Butamax. Note what green patents blog wrote:

--

Gevo petitioned to the U.S. Supreme Court to hear the case, and in a single, swift decision known as a GVR, the Supremes granted the petition, vacated the Federal Circuit decision, and remanded for further proceedings. Grant-Vacate-Remand, hence GVR (read a blurb on the decision and GVR at the Patently-O blog here).

The Federal Circuit must now reconsider this case in light of the Supreme Court’s recent Teva Pharmaceuticals decision, which raised the standard for appellate review of district court factual determinations in patent claim construction rulings.

Previously, the Court of Appeals for the Federal Circuit used a “de novo” standard, which meant it could take a fresh look at the evidence on claim construction and make its own determination, which led to a high reversal rate. After Teva, the Federal Circuit can reverse only where it finds “clear error” in the district court’s consideration of the facts in a claim construction decision.

So the yo-yo, in this thread of the patent war at least, swings back to Gevo with Butamax’s victory wiped out for the moment (see Gevo’s patent PR on the GVR decision here).
--

Katznelson on Lemley/Feldman paper on licensing

Ron Katznelson has a guest post at IPWatchdog.

There is a citation to

--
Sampat, B. N. and Ziedonis, A. A. (2005). Patent Citations and the Economic Value of Patents. In Moed, H. F., Glänzel, W., and Schmoch, U., Eds., Handbook of Quantitative Science and Technology Research, pages 277–298. Kluwer Academic Publishers, Dordrecht.
--

Related to patent citations to university patents.

Given that patent citations work differently than journal citations (recall watermelons paper), any discussion of patent citations may be problematic.

Ron did note:


--

Feldman & Lemley’s survey responses are mostly from non-coordinating parties and entities having much less relevance for development of the specific patented technologies. Consequently, for example, the survey’s findings on university patent licensing belie clear empirical evidence that technology licensing (not only by reluctant infringers) of patented technologies contributes to innovation and development: Sampat and Ziedonis (2005) examined patent citations to university-owned patents. They found that citations were elevated for licensed patents. Moreover, most citations occurred after the patent was licensed. That licensing of patented technology increases its diffusion and relevance more broadly is supported by Drivas et al. (2014), who found that citations by non–licensees to patents exclusively licensed (either by geographic area or field of use) by the University of California increased after the licenses were executed. These are objective empirical indicia – not subjective responses to selective surveys by accused infringers.

--

Separately, note Sampat and Lemley had a paper on patent examination.

--
Note separately the licensing paper by Mowery.


--
Also, from Bhaven N. Sampat, 53 J. Law & Econ. 399 (2010) :

*
In addition to differences across fields, there is also considerable intra industry heterogeneity in the private value of patent protection (Scherer and Harhoff 2000). To assess whether applicants are more likely to submit prior art for more important inventions, I construct three patent-specific measures of importance for a subset of the sample patents: the 23,703 patents granted in January and February 2001 that were assigned to a firm or organization at the time of issue. n7

The first independent variable is a count of the number of citations that each of these patents received in subsequent patents issued by December 31, 2004. Forward-citation counts are a commonly used measure of the importance of inventions, and they appear to be good predictors of other measures of an invention's importance, including whether it is licensed (Sampat and Ziedonis 2004), consumer surplus based on an invention (Trajtenberg 1990), and other measures (Lanjouw and Schankerman 2004). On average, these patents received 3.4 forward citations between 2001 and 2004.

A second measure of a patent's importance is a binary variable indicating whether it was renewed after 4 years. After a patent is issued, the patent holder must periodically pay maintenance fees to keep it in force. Currently in the United States, these fees must be paid 4, 8, and 12 years after issue. The renewal-based measure of importance assumes that, all else equal, patents that are more economically valuable are more likely to be renewed at any given point in time (Lanjouw, Pakes, and Putnam 1998). More than one-half of patents issued expire before their full 20-year term because the applicant chooses not to pay maintenance fees (Moore 2004). Of the patents issued in January and February 2001, 87 percent were renewed at 4 years.

*

In passing, one notes the discrepancy in the "year" of publication. The 2010 paper cites: Sampat, Bhaven, and Arvids Ziedonis. 2004. Patent Citations and the Economic Value of Patents: A Preliminary Assessment. Pp. 277-98 in Handbook of Quantitative Science and Technology Research, edited by Henk F. Moed, Wolfgang Glanzel, and Ulrich Schmoch. Dordrecht: Kluwer.

but the above cites 2005.

--Of "watermelons", from a 2004 post on IPBiz

*

Better put out the bat signal for Edlyn Simmons and Nancy Lambert to put down this latest fire of stupidity. However, as Edlyn stated:

Evaluating an individual patent can't be done without knowledge about whether the patent is a grape or a watermelon. But
business people like easy, quantitative answers, ...

[so here we go again, but refer to

Edlyn S. Simmons and Nancy Lambert. "Patent Statistics: Comparing Grapes and Watermelons" In Recent Advances in Chemical Information, Proceedings of the 1991 Montreux International Chemical Information Conference & Exhibition, H. Collier, Ed, (Royal Society of Chemistry, Cambridge; CRC Press) pp 33-78 (1992).

Simmons, Edlyn S.; Lambert, Nancy. "Comparing grapes and watermelons." ChemTech 23 (6), 1993, p. 51-59. ]
*
link: http://ipbiz.blogspot.com/2004/09/there-they-go-again-patent-citation.html

Note that Sampat did not cite the Simmons/Lambert work, or any of the other papers critical of the use of patent citation analysis.

Apple's US patent 8,965,349

Abstract of Apple's US ' 349

--


Embodiments permit interactive sharing of applications. Multiple electronic devices may share applications, or application data, in such a fashion that users of the electronic devices may each see one another's application data or interact with one another through a shared application. In some embodiments, users may control what data is shared by designating certain data as public or private. In other embodiments, interactive sharing of applications may be combined with, or incorporated into, a communication between users, such as a video conference.




--

First claim

--
1. A method for interactively sharing an application, comprising: initiating, by a first electronic device, a communication session with a second electronic device; after initiating and during the communication session, transmitting a request from the first electronic device to engage in sharing an application with the second electronic device; receiving, at the first electronic device, confirmation of sharing from the second electronic device during the communication session; displaying, on the first electronic device, the application and data related to the communication session: generating, at the first electronic device, an instruction to the second electronic device, the instruction related to displaying the application on the second electronic device; and transmitting the instruction to the second electronic device during the communication session.


--

EFF's "Defend innovation" whitepaper

Recommendations from the EFF report

--
In the second part of the report, EFF prescribes six legislative reforms that would begin to fix the patent system. These include:

Ensuring there are inexpensive and efficient tools for challenging the validity of issued patents
Passing a comprehensive patent reform bill, such as the Innovation Act
Ending the Federal Circuit's exclusive jurisdiction over patent cases
Passing legislation to discourage bad actors from sending frivolous demand letters


--

LBE notes that in a quality system, one spends most resources in getting the product right in the first place, not in inspecting the product. See Deming.

US 8,940,520 to Pond Biofuels on growing a phototrophic biomass

Abstract:

--
There is provided a process of growing a phototrophic biomass in a reaction zone. The reaction zone includes an operative reaction mixture. The operative reaction mixture includes the phototrophic biomass disposed in an aqueous medium. Gaseous exhaust material is produced with a gaseous exhaust material producing process, wherein the gaseous exhaust material includes carbon dioxide. When an indication of a change in the molar rate of supply of carbon dioxide, from the gaseous exhaust material producing process, to reaction zone is sensed, at least one input to the reaction zone is modulated.



--

From the specification:

--

In one aspect, there is provided a process of growing a phototrophic biomass in a reaction zone. The reaction zone includes an operative reaction mixture. The operative reaction mixture includes the phototrophic biomass disposed in an aqueous medium. Gaseous exhaust material is produced with a gaseous exhaust material producing process, wherein the gaseous exhaust material includes carbon dioxide. Reaction zone feed material is supplied to the reaction zone such that any carbon dioxide of the reaction zone feed material is received by the phototrophic biomass so as to provide a carbon dioxide-enriched phototrophic biomass in the aqueous medium. A discharge of the gaseous exhaust material from the gaseous exhaust material producing process is supplied to the reaction zone feed material and defines a gaseous exhaust material reaction zone supply. The carbon dioxide-enriched phototrophic biomass disposed in the aqueous medium is exposed to photosynthetically active light radiation so as to effect photosynthesis. When an indication of a change in the molar rate of supply of carbon dioxide in the gaseous exhaust material reaction zone supply to the reaction zone feed material is sensed, at least one input to the reaction zone is modulated. The modulating of at least one input includes at least one of: (a) effecting or eliminating supply of, or modulating the intensity of, the photosynthetically active light radiation to which at least a fraction of the carbon dioxide-enriched phototrophic biomass is exposed, and (b) effecting, modulating, or eliminating the molar rate of supply, or commencing supply, of a nutrient supply to the reaction zone.

--

US 8,962,300 to Wim Vermaas of ASU

The six claims relate to a recombinant Synechocystis PCC 6803 host cell. Priority is to 2007.

Natural genetic modification in Prochlorococcus

From O. Ulloa (Departamento de Oceanografía and Instituto Milenio de Oceanografía, Universidad de Concepción, Concepción, Chile ) in the ISME Journal:

--

Cyanobacteria of the genus Prochlorococcus are the most abundant photosynthetic marine organisms and key factors in the global carbon cycle. The understanding of their distribution and ecological importance in oligotrophic tropical and subtropical waters, and their differentiation into distinct ecotypes, is based on genetic and physiological information from several isolates. Currently, all available Prochlorococcus genomes show their incapacity for nitrate utilization. However, environmental sequence data suggest that some uncultivated lineages may have acquired this capacity. Here we report that uncultivated low-light-adapted Prochlorococcus from the nutrient-rich, low-light, anoxic marine zone (AMZ) of the eastern tropical South Pacific have the genetic potential for nitrate uptake and assimilation. All genes involved in this trait were found syntenic with those present in marine Synechococcus. Genomic and phylogenetic analyses also suggest that these genes have not been aquired recently, but perhaps were retained from a common ancestor, highlighting the basal characteristics of the AMZ lineages within Prochlorococcus.

--
link: http://www.nature.com/ismej/journal/vaop/ncurrent/full/ismej201521a.html
--

Of relevance to patenting, would a genetic modification of Prochlorococcus to allow nitrate metabolism run afoul of this art?

Kappos/Hoffman on patents

From an article by Kappos and Hoffman



The exclusivity provided by a patent enables those taking on enormous risks by investing in R&D the opportunity to recoup their investment. Studies have shown that an exclusivity period of at least 12.9 years is required just to recoup the development costs of the average biotech drug. Furthermore, the patent system provides a built-in mechanism for encouraging follow-on innovation -- disclosure. A key feature of patents is that they are published; no inventor is granted exclusivity over his or her invention without first teaching the world how it works. This is particularly critical in biotechnology, where innovation occurs mainly by accretion, with each succeeding breakthrough building on the previous one.

A123 files suit against Apple for employee poaching

In a post titled Apple Sued for Poaching A123 Employees, the Wall Street Journal discusses a lawsuit filed
by A123 (a subsidiary of China’s Wanxiang Group )in Massachusetts against Apple for stealing A123 employees.

link: http://www.wsj.com/articles/apple-sued-for-poaching-a123-employees-1424325473

BetaBoston had written of no competes in Massachusetts:

--

Many local business leaders and legislators have called for the state to abolish the laws regarding noncompetes for a while, with little success. There was a growing sense that the state legislature would wise up and realize the negative impact the agreements have on a robust business ecosystem in Massachusetts. The tech and innovation community, in particular, made an big push to eliminate noncompetes, seeing that Massachusetts was losing tech and engineering talent to Silicon Valley. California does not enforce noncompetes.
--

A link to the story:

http://www.bizjournals.com/boston/blog/techflash/2015/02/lawsuit-waltham-electric-car-battery-maker-a123.html

Looking backward at licensing; deja vu all over again?

In a post on 20 Feb 2015 titled --Study finds patent licensing rarely results in innovation --, Inman discusses the
Feldman/Lemley paper -- “Does Patent Licensing Mean Innovation?” --, using as an illustration the CIVIX-DDI patent matter:

--
In 2011, NAR negotiated a blanket licensing agreement with CIVIX-DDI LLC, a company that holds several patents on location-based Internet search techniques, after the company filed patent infringement lawsuits against two of the nation’s largest multiple listing services and demanded licensing fees from several others. NAR paid CIVIX a total of $7.5 million that it collected from Realtor associations, MLSs and MLS vendors to pay for a blanket licensing agreement that applied to the industry as a whole.
--

Inman had covered the matter in August 2011 in a post titled MLSs, Realtor associations pitch in $7.5M for patent license and had noted: -- The patents were issued in 2002, and the U.S. Patent & Trademark Office turned down requests for re-examination in May. --

Also in August 2011, the Techdirt blog discussed the CIVIX-DDI matter in a post titled -- Company Claims Patents On Generating A Map From A Database; Getting Real Estate Industry To Pay Up --

The first claims of the two patents asserted by CIVIX-DDI were both directed to a system, not a method. One notes that the later patent (US '291) has a shorter (and thus broader) first claim.

--

Patent 6,385,622: "System and methods for remotely accessing a selected group of items of interest from a database."

First claim:

1. System for remotely determining the position of a selected category of items of interest in a selected geographic vicinity from a database, the system comprising

(A) a database for storing information about a plurality of items of interest, the information including, for each of the items of interest, a geographical position and at least one associated category,

(B) a communications link for communicating between a user of the system and the database,

(C) an information controller for transmitting a portion of the information in the database to the user via the link upon receipt of a request signal representative of a selected category and geographic vicinity, the transmitted portion of the information including identification of geographic position for at least one of the items of interest within the selected category and geographic vicinity, and

(D) a port for remotely accessing the portion of information via the link, the port generating the request signal in response to inputs by the user which are representative of the selected category and geographic vicinity, the port having a user interface for accepting the inputs and for indicating to the user the position at least one of the items of interest in the selected category and geographic vicinity.

Patent 6,415,291: "System and methods for remotely accessing a selected group of items of interest from a database."

First claim:

1. A system for determining the position of one or more items of interest in a selected category, comprising:

a database for storing information about the items of interest, the information including, for each of the items of interest, at least one associated category and spatial detail defining a geographic position; and

a plurality of ports for accessing the database through the Internet, each port having a user interface for accepting inputs by a user of the system and for indicating to the user the geographic position of one or more of the items of interest, the user inputs defining the category associated with items of interest.

--

The Techdirt post asserted the claims to be obvious: -- Now, I know that patent system supporters always get angry at me for declaring patents obvious, but take a read through the claims (not the abstract) and I defy anyone who knows anything about programming to explain how these patents do not describe incredibly obvious concepts. --

Returning to the Feldman/Lemley thesis (licensing does not promote innovation), one asks the simple question: if the concepts were obvious, why was no one using them prior to the filing of the patent applications, which would have been a basis for invalidating the patents?

The 2015 Inman post noted: -- What may come as a surprise is that the [Feldman/Lemley] study found patent licensing doesn’t seem to do much to fuel innovation, regardless of whether it’s “patent trolls” or other patent holders like universities seeking the licenses. --

"Looking backward" in time one recalls that the famous 1911 decision in the Ford case said pretty much the same thing about the Selden patent (filed in 1879). There is nothing new going on in the 21st century that didn't happen in the 20th century as to "patent assertion." The licensing aspect in the Ford case was a bit different though.

The initial "targets" for licensing of the Selden patent ultimately recognized their power and got control of the patent
(e.g., ALAM). The Selden patent was challenged by Ford, who had been DENIED a license. The Selden patent was never found invalid, but was found not to be infringed by Ford (or his customers or dealers; lawsuits were more aggressive in the early 1900's; customers were sued!)

In a fact pattern such as that presented by CIVIX-DDI, ALL of the targets for licensing should have grouped together, as happened in the early 20th century and create an economic resolution.

As to the thesis promoted by Feldman/Lemley, it is not clear that the concept in the CIVIX patents was not an innovation.
An innovation is something that changes the way we live, and need not be an invention.

***
Yes, LBE is alluding to the book "Looking Backward" by lawyer Edward Bellamy. Published in 1888, it was number three on the best sellers of the time, and has some themes quite related to the Feldman/Lemley conjecture.

See the article titled "Looking Backward," at page 20 of Intellectual Property Today [IPT] in June 2001.

Unintentional plagiarism, again

Melissa Dahl in NYMag talks about accidental plagiarism

--
In a recent blog post, Grant breaks down a study suggesting how common it is to plagiarize accidentally:

In a classic demonstration, psychologists Alan Brown and Dana Murphy invited people to brainstorm in groups of four. They took turns generating lists of sports, musical instruments, clothes, or four-legged animals. Each participant generated four ideas from each category. Next, the participants were asked to write down the four ideas that they personally generated for each category.
Alarmingly, a full 75 percent of participants unintentionally plagiarized, claiming they generated an idea that was in fact offered by another member of their group. And later, the participants wrote down four new ideas for each category. The majority wrote down at least one idea tht had already been generated by another group member -- usually the group member who'd generated ideas immediately before them.
Perhaps not surprising, Grant says, we're most likely to unintentionally plagiarize when we're trying to multitask; doing one thing at a time might help keep us from stealing without realizing. And there are other ways to avoid kleptomnesia, too. "Some creators have gone so far as avoiding work that they might accidentally steal — Simpsons writer George Meyer refused to watch Seinfeld to make sure that a joke didn't slip into his work," Grant said. "The most important step, though, is to do a better job keeping track of the sources of the ideas that we hear."

--

The allusion to Meyer invokes the "clean room" concept in copyright, wherein independent creation is a defense
to copyright infringement.

In the realm of patent, of course, there is no independent creation defense. If one falls within
the scope of a claim, one infringes, whether or not one knows about the claim.
In theory, that encourages people to know the prior art and not waste time re-inventing the wheel.
And recall the South Park episode relating to "the Simpsons already did it."

As to the classic demonstration, patent law rewards people for writing down their inventions
in timely fashion, so one does not have fuzziness of who invented what when. And, did that
classic experiment prove the unintentional character? Does it comment on the Poshard matter?

Former PA Senator Santorum blasts "Innovation Act"

The piece concludes


In the innovation sector, however, I am stunned that some conservatives on Capitol Hill that I greatly respect are supporting legislation that would undermine our Constitution and harm American innovation in the name of supposed patent reform.
(...)
Republicans, now in control of the legislative branch, have two years to show the American people that they can govern. Focusing on issues like lowering the tax burden and lessening the burden of government regulations that ultimately impact American workers will show that we can be trusted. Participating in the gutting of the patent system at the behest of multi-national corporations while sacrificing America’s innovation advantage will reveal conservatives to be out of touch.



The Innovation Act does contain aspects which make pursuing infringement litigation less favorable to the inventor. The pleading would be more detailed. The estoppel provision against the challenger in an IPR is less severe.


link to Santorum piece: http://dailycaller.com/2015/02/20/patent-reform-comes-at-the-expense-of-entrepreneurship-and-the-american-worker/

Lexology comments on innovation Act

From Lexology:

--

Heightened Pleading Requirements:

The proposed Innovation Act also requires plaintiffs to disclose significantly more information in its initial pleadings than previously required. Patent-plaintiffs would be required to explain why they are suing a particular defendant in their court pleadings. The bill also requires courts to decide early on whether a patent is invalid to discourage plaintiffs from dragging out lawsuits in an attempt to obtain settlements.

Fee-Shifting:

The proposed bill also introduces a fee-shifting structure that departs from the traditional rule that each party bears the cost of its own attorney’s fees. Under the new provision, judges would be required to make parties who bring lawsuits that are not “reasonably justified in law and fact” to pay their opponents’ legal fees. This section is arguably the most controversial provision of the bill and the one responsible for Sen. Harry Reid refusing to bring the original Innovation Act to the Senate floor. The bill would create a presumption of awarding attorney fees to the prevailing party. Under this structure, a court would be required to award attorney fees and “other expenses” to the prevailing party “unless the court finds that the position and conduct of the non-prevailing party or parties were reasonably justified in law and fact or that special circumstances (such as severe economic hardship to a named inventor) make an award unjust.” This provision serves as a drastic change from the current standard in patent cases where attorney fees are only awarded in “exceptional cases.” The bill also discourages a patentee from offering a covenant not to sue as a means to settle infringement litigation, making such an offer an admission that the patentee is the “non-prevailing party” and thus a risk for an award of fees and costs to the accused infringer (Sec. 3(b)(1)(c)).



--

Can Congress alter the pleading requirements of the Federal Rules of Civil Procedure for certain classes of cases?
Should it? Sometimes discovery is needed to establish an infringement.

Gevo/Butamax post Teva/Sandoz

A January 2015 post at biofuelsdigest contained the text:

--

On April 11, 2013, the Delaware District Court (District Court) entered a final judgment of non-infringement in Gevo’s favor following the acknowledgment by Butamax Advanced Biofuels LLC (Butamax) that Gevo does not infringe Butamax’s asserted patents under the District Court’s construction of a key claim term in Butamax’s Patent Nos. 7,851,188 and 7,993,889.

At the time, Butamax appealed Gevo’s victory, and a US Court of Appeals in February 2014 vacated the District Court’s prior rulings, and ordered the District Court to reconsider issues related to infringement and invalidity.

In turn, Gevo asked the Supreme Court to vacate the Appeals Court’s de novo nterpretation of a disputed claim term. Today, the Supreme Court granted Gevo’s petition and vacated the decision of the Appeals Court.

According to Gevo: “The result is that Gevo’s victory in the Delaware District Court is reinstated, and that the case has been remanded back to the Appeals Court for consideration in light of the new standard of appellate review that was decided in the Teva Pharmaceuticals USA, Inc., v. Sandoz, Inc. (Teva) case last week.”



--

One notes that Butamax stipulated to non infringement under the D Delaware claim construction for the purpose of appealing to the CAFC.

Here the D Delaware interpretation relies on extrinsic evidence. However, the CAFC could find the claim can be construed using intrinsic evidence, which is subject to de novo review. The CAFC has taken this tact in two post-Teva cases. This would produce the same CAFC conclusion.

Lemley on licensing

The abstract of the recent Feldman/Lemley paper on licensing states:




A commonly offered justification for patent trolls or non-practicing entities (NPEs) is that they serve as a middleman facilitating innovation, bringing new technology from inventors to those who can implement it. We survey those involved in patent licensing to see how often patent licenses actually led to innovation or technology transfer. We find that very few patent licenses from assertion actually lead to new innovation; most are simply about paying for the freedom to keep doing what the licensee was already doing. Surprisingly, this is true not only of NPE licenses but even of licenses from product-producing companies and universities. Our results cast significant doubt on one common justification for patent rights.



There are situations like the Selden patent (application filed in 1879) wherein licensees gain no insight from the patent.

There are different cases wherein the licensee takes advantage of the knowledge without expanding upon it.

US application 20150045537 to MIT on release of lipid-containing vesicles from cyanobacteria

US application 20150045537 was published last week on 12 Feb. 2015. The listed inventors are

--
Chisholm; Sallie Watson; (Watertown, MA) ; Biller; Steven James; (Watertown, MA) ; Thompson; Anne Williford; (Santa Cruz, CA)

--

and the title is --EXTRACELLULAR RELEASE OF LIPIDS BY PHOTOSYNTHETIC CELLS --. Priority goes to a provisional patent application filed Mar 16, 2012 .

The first three claims are

--

1. A method for harvesting lipids, comprising: culturing in growth medium a photosynthetic cyanobacteria that secretes lipid-containing vesicles into the growth medium; and separating the secreted lipid-containing vesicles from the cyanobacteria and/or from the growth medium.

2. The method of claim 1 further comprising collecting the lipid-containing vesicles.

3. The method of claim 1 wherein the photosynthetic cyanobacteria is of the genus Prochlorococcus, Synechococcus, Synechocystis or Nostoc.

--

The first example is

--
Example 1

Production of Outer Membrane Vesicles by Cells Such as Prochlorococcus Cells

--

One notes that Example 2 is written in the present tense (suggesting work not done; "prophetic")

--
Example 2

Optimization of Vesicle Production in Prochlorococcus and Synechococcus

[0079] Investigation is conducted into which strains of Prochlorococcus and Synechococcus produce lipid vesicles and whether production varies significantly among different strains. Prochlorococcus cells isolated from the upper regions of the ocean have significant differences in both genomic content and physiology from those isolated from deeper depths, so vesicle production could co-vary with some of these traits. Vesicle production is also investigated in Synechocystis sp. PCC6803, a cyanobacterium widely used in biofuel research. Initial measurements of vesicle size and concentration are made using the NanoSight, and corroborated with standard scanning and transmission electron microscopy techniques. A systematic survey of vesicle production is conducted in one or a few selected strains under a variety of conditions. Using the NanoSight, vesicle production is followed across a complete growth curve, from lag phase to mid-exponential and stationary phase, to see if rates of lipid release vary. How vesicle production might vary in cultures grown under constant irradiance as opposed to a typical day-night cycle, at different salinities, temperatures, and under various stress conditions is also investigated. Together these studies elucidate the physiological variables that influence vesicle production, useful information for maximizing lipid production in a biofuel production context.

--

**The corresponding PCT application is PCT/US13/30516. The written opinion was mailed 5 June 2013 and found the 36 examined claims to be obvious, in part over a published application by Wim Vermaas.

Those following the field will recall a paper published a bit more than one year ago:

--

Bacterial Vesicles in Marine Ecosystems, Science 10 January 2014:
Vol. 343 no. 6167 pp. 183-186

authors: Steven J. Biller1,*, Florence Schubotz2, Sara E. Roggensack1, Anne W. Thompson1, Roger E. Summons2, Sallie W. Chisholm1,3,*

--

The paper in Science was received at Science 18 July 2013 (after the unfavorable written opinion for the PCT).

A post at Wired had observed:

--
Because they are so abundant, and because they contain various biomolecules, these vesicles constitute a significant source of organic carbon, nitrogen, and phosphorus on which other organisms might feed. Indeed, Chisholm and her colleagues showed that other, nonphotosynthetic bacteria can grow using the cyanobacterial vesicles as their only source of carbon. “That’s kind of neat,” says Marvin Whiteley, a microbiologist at the University of Texas, Austin, who wasn’t involved in the study. “It really changes how we think about marine ecosystems and how they’re set up and how nutrients are provided.”

--

Bytephoto sued over US 8,209,618

The first claim:

--

1. A method for sharing multi-media content among a plurality of users in a computer network consisting essentially of: creating a plurality of user accounts, each of the user accounts corresponding to one of the plurality of users, and having a plurality of interactive features including a first feature that permits the user to upload the multi-media content to the computer network; forming a user network including one or more of the plurality of user accounts in communication with one or more other user accounts and to the uploaded multi-media content via the computer network; categorizing the uploaded multi-media content in accordance with the subject matter of the uploaded multi-media content; organizing the uploaded multi-media content in a competitive format; and establishing a hierarchy for the uploaded multi-media content within the competitive format by implementing a competitive measurement system; wherein the competitive measurement system consists of: enabling each user to designate a single point to one of a plurality of multi-media content for each one of a plurality of competitive rounds; and ranking a position in the hierarchy for the uploaded multi-media content based on a summation of points.
--

Networkworld wrote:


--

The Electronic Frontier Foundation (EFF), together with Durie Tangri LLP, is defending a photo hobbyist against an outrageous patent suit from a company that claims to hold the rights to online competitions on social networks where users vote for the winner.

"Our client has been running 'vote-for-your-favorite-photo' polls for years, just for fun and the love of photography,” said EFF Staff Attorney Daniel Nazer, who is also the Mark Cuban Chair to Eliminate Stupid Patents. “The idea that you could patent this abstract idea -- and then demand a settlement to go away -- goes against both patent law and common sense."


--

US application 20150047074 to MIT

Abstract of MIT application

In one aspect, a composition can include an organelle, and a nanoparticle having a zeta potential of less than -10 mV or greater than 10 mV contained within the organelle. In a preferred embodiment, the organelle can be a chloroplast and the nanoparticle can be a single-walled carbon nanotube associated with a strongly anionic or strongly cationic polymer.

US application 20150050252 on pluripotent stem cells

Abstract:

Stimulating tissue resident pluripotent stem cells in a manner that the respective subject (e.g., human) acts as its own sterile bioreactor for in vivo stem cell proliferation thus eliminating the need to isolate, cultivate, maintain, proliferate and release stem cells ex vivo. The stimulation mobilizes excess pluripotent stem cells into the peripheral vasculature where the pluripotent stem cells can either migrate to damaged tissues and/or be harvested by simple venipuncture, thus eliminating potential morbidity and mortality elicited from harvesting tissue from solid tissue sites. The pluripotent stem cells are separated from the blood by gravity sedimentation, after which the pluripotent stem cells can easily be aspirated from the white blood cells and red blood cells. Billions of pluripotent stem cells can be generated in this fashion for infusion/injection into the body, via the vasculature, and into the organ(s) in need of tissue repair and regeneration.

Rembrandt wins infringement verdict against Samsung over Bluetooth

From PRNewswire post titled Rembrandt Technologies Wins $15.7 Million Jury Verdict in Patent Infringement Case Against Samsung



MARSHALL, Texas, Feb. 16, 2015 /PRNewswire/ -- A Texas federal jury has awarded $15.7 million to Rembrandt Wireless Technologies LP after finding that Korean electronics giant Samsung Electronics Co. Ltd. infringed on two Rembrandt patents covering Bluetooth technology.

Jurors deliberated only one hour before issuing the Feb. 13 verdict. The five-day trial focused on two Rembrandt patents, U.S. Patent Nos. 8,023,580 and 8,457,228. In addition to the $15.7 million award, Rembrandt also will receive royalty payments on all Samsung Bluetooth sales for the life of the patents.

Rembrandt, a Pennsylvania-based business technology company, sued Samsung and Blackberry Ltd. in 2013. Blackberry settled before the trial. Rembrandt argued that its patents for Bluetooth "enhanced data rate" inventions were infringed by Samsung in its Galaxy S phones.

"Justice was done here. The Rembrandt inventions are at the heart of Samsung Bluetooth capabilities," says Demetrios Anaipakos, a partner at Houston-based Ahmad, Zavitsanos, Anaipakos Alavi & Mensing P.C. or AZA. Other AZA lawyers representing Rembrandt were Amir Alavi, Alisa Lipski, Kyril Talanov and Jamie Alan Aycock.



Link: http://www.prnewswire.com/news-releases/rembrandt-technologies-wins-157-million-jury-verdict-in-patent-infringement-case-against-samsung-300036656.html

The Washington Post quotes Joe Mullin:


"Gordon Bremer didn't invent Bluetooth 2.0. In fact, as he admitted on the stand last week in an east Texas federal court, he hadn't even read the specification for it until 2007—three years after it was on the market," writes Joe Mullin at Ars Technica. "Despite that, Bremer may be getting paid a hefty royalty by Samsung, after a jury ruled that the Korean electronics company infringed Bremer's patents. He stands to get 2.5 percent of the $15.7 million verdict won by his employer, Rembrandt IP, one of the oldest and most successful 'patent trolls.'"





Wired wrote of the case

--

The Bluetooth case revolved around patents filed by inventor Gordon Bremer in 1997. The jury decided that certain features introduced in Bluetooth 2.0 in 2004—specifically Enhanced Data Rate—violated those patents, which are now owned by Rembrandt. The company also sued BlackBerry for infringement, and settled out of court.

Ars Technica reports that although Bremer didn’t market any products based on those patents himself, he did shop the ideas around to various technology companies.

Companies like Rembrandt, which will pay Bremer a percentage of the settlement, claim that they’re helping small time inventors get fair compensation for inventions being exploited by large technology companies. “Justice was done here,” said Demetrios Anaipakos, a partner the law firm Ahmad, Zavitsanos, Anaipakos Alavi & Mensing, which represented Rembrandt, in an announcement this week. “The Rembrandt inventions are at the heart of Samsung Bluetooth capabilities.”

But critics argue that they’re harming innovation by filing frivolous lawsuits and making it difficult to create new products without fear of litigation. “This is a classic example of patents as an attack on innovation,” says Electronic Frontier Foundation staff attorney Daniel Nazer. “There’s nothing to suggest that this guy contributed anything to the [Bluetooth] technology we used today.”

What makes this case particularly troublesome, Nazer says, is that it’s hard enough for companies to converge on an industry wide standard like Bluetooth without companies from outside the standardization process stepping in with lawsuits. “When [companies] create products and put them on the market—even if they haven’t copied someone else’s work—they’re going to be subject to all sorts of suits,” he says.
--

InterDigital loses at the CAFC

CJ Prost began the opinion:


InterDigital Communications, Inc., InterDigital Tech-nology Corporation, and IPR Licensing, Inc. (collectively, “InterDigital”) appeal from the final determination of the United States International Trade Commission (“Com-mission”) finding no violation of Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337. See Certain Wireless Devices with 3G Capabilities and Components thereof, Inv. No. 337-TA-800 (Dec. 19, 2013) (“Commission Decision”). For the reasons set forth below, we affirm.



As to the review by the CAFC of the ITC:


We review the Commission’s legal rulings de novo and its findings of fact for substantial evidence. Osram GmbH v. Int’l Trade Comm’n, 505 F.3d 1351, 1355 (Fed. Cir. 2007). In construing claims, we rely primarily on the claim language, the specification, and the prosecution history. Phillips v. AWH Corp., 415 F.3d 1303, 1314–17 (Fed. Cir. 2005) (en banc). We may also seek guidance from extrinsic evidence such as expert testimony, diction-aries, and treatises. Id. at 1317–18.



Further


In the end, InterDigital’s argument that the carries-no-data limitation applies only to a preferred embodi-ment, although not trivially dismissed, is insufficient to overcome this court’s prior conclusions, a proper reading of the specification, and InterDigital’s own expert testi-mony.
Second, InterDigital argues that “the Commission’s construction improperly excludes an express preferred embodiment.” Appellants’ Br. 44. The Power Ramp-Up Patents’ specification expressly incorporates by reference U.S. Patent No. 5,799,010 (“’010 patent”). According to InterDigital, in the ’010 patent “the short codes are modu-lated by ‘data’ in the sense that the selection from among a known set of short codes could indicate [information].” Id. at 45 (emphasis added). InterDigital then argues that, in that sense, the accused products do the same thing, and should be found to infringe.



Reuters noted of the decision:


InterDigital Inc, a patent licensing firm, lost an infringement fight on Wednesday as a U.S. appeals court ruled that wireless phones made by Nokia, since purchased by Microsoft, and ZTE Corp do not infringe on InterDigital patents.

IP/moral rights case involving Ahmed Mater's Magnetism

An interesting IP case is developing with allegations that an ad campaign by Swatch infringes rights of Ahmed Mater's Magnetism (2012).

The image of Mater is symbolic of the pilgrimage to Mecca, and the sacred building, the Ka'aba.

A twist to the case arises in the religious overtones. From artnet :



“Omega SA has destroyed several years of work by letting the public believe that [Mater] is mocking religion when he lives in a country with a religious police and where blasphemy is a crime—it is thus putting the artist and his family at risk,"


Link: http://news.artnet.com/art-world/saudi-artist-ahmed-mater-sues-swiss-watchmaker-swatch-for-plagiarism-258653

University of Georgia workers use crowdsourcing techniques to track undesirable cyanobacteria [ CyanoTRACKER ]

From a post from the University of Georgia titled UGA researchers to use crowdsourcing to track harmful algal blooms in Georgia’s lakes :


With large and small bodies of water in Georgia just as vulnerable to these blooms, researchers at the University of Georgia are working to develop an early warning system using social media platforms and cloud computing to crowdsource instances where further monitoring may be necessary.

The project—known as CyanoTRACKER—will use Twitter, Facebook and Instagram to help identify localized blooms at lakes and ponds across Georgia.

The online tools will complement remote sensing of cyanobacteria outbreaks. Data from social media sites and the project website, cyanotracker.uga.edu, will be compiled, checked against sensor data or investigated further and used to alert local authorities about harmful algal blooms.

Chambers/Ullman opinion piece in WSJ praises Goodlatte bill on patent reform

An opinion piece by Chambers and Ullman in the Wall Street Journal is titled


Stopping the Economy-Sapping Patent Trolls
Entities that don’t make products or sell services file more than 60% of U.S. patent lawsuits.


But whether the patent assignee does, or does not, make a product according to the patent claims
is irrelevant to the question of patent reform. More pertinent points are whether the patent claims
truly represent patentable subject matter, and whether the accused infringer likely does infringe
valid patent claims.

Chambers and Ullman note of the Goodlatte proposal:


Mr. Goodlatte’s bill includes a number of important reforms. For example, it would require disclosure of the actual basis for claims at an earlier point in the legal process; this will provide clarity, sharply reducing defense costs. It would also require transparency as to who is filing the suit, so that multiple suits from the same owner can be detected. It also would strengthen the right of winning defendants in bad cases to recover their legal costs.

These reforms would help level the playing field to ensure that suits that actually have merit go forward and be resolved through the courts, while those that are frivolous and abusive are deterred, denied and diminished.




As to the merits of the Goodlatte innovation act, see Richard Epstein's comments in the IPBiz post


Forbes piece by Richard Epstein trashes Goodlatte's Innovation Act concerning patent reform



One of Epstein's points is that pleading a complaint, pursuant to the Federal Rules of Civil Procedure is "one size fits all." The Goodlatte bill departs from this. Epstein also gets into fee shifting. Epstein's positions are incompatible with those of Chambers/Ullman.



PatentlyO has a post on the Chambers/Ullman piece titled


Who is to Blame for High Litigation Costs: Plaintiffs for filing the lawsuits or Defendants for refusing to deal and instead fighting?



including the text


The core of their argument is here:

A 2012 study by Boston University researchers estimated that companies spent upward of $29 billion a year defending patent lawsuits, and the problem has not let up. According to RPX Corp., more than 3,600 companies and named defendants were sued by so-called patent-assertion entities in 2014, triple the number in 2006. Patent-assertion entities—aka nonpracticing entities, or as some would call them, trolls—that own patents but do not make products or sell services based on them file more than 60% of patent litigation in the U.S.

A civil lawsuit generally comes about based upon a failure of the parties to negotiate a just solution. Of course, for any given lawsuit, we don’t know beforehand whether it is the plaintiff or the defendant who is being more unreasonable.


and making the point that "when" negotiations over licensing break down, it is not so clear "who" is responsible.

The above-noted text of the Chambers/Ullman piece is more about ambiguity over claim scope, meaning that there may be an issue with whether ANY license is needed. As to Chambers/Ullman, clarity in "why there is infringement" would not reduce defense costs when the defense is invalidity, not non-infringement.

PatentlyO refers to IPWatchdog: Gene Quinn provides his take on the op-ed at IP Watchdog.



**Note the following exchange of comments at PatentlyO



Paul F. Morgan
February 18, 2015 at 2:53 pm

Applications are of course printed publications when they are published. But I suspect your real question is as to using the filing date benefit of published applications for prior art purposes, not the effect of their publication date?
Reply

17.1.1
Ned Heller
February 18, 2015 at 3:12 pm

Paul, you got it.

The phraseology of the statute seems to require that applications be treated as publications. I daresay that the drafters did not intend this, but the statutory language is mandatory in its nature.

I wonder if anyone has raised this issue in an appropriate case?




And there were negative comments about Bessen/Meurer




EG
February 18, 2015 at 9:37 am

Unfortunately, this WSJ editorial (if you can call it that) is based upon the discredited Bessen and Meurer study reported in “The Direct Costs from NPE Disputes.” The methodology in that study has been shown to be highly flawed by others. No more need to be said as to unreliability of this WSJ editorial to prove anything.




One notes the discredited "95% patent grant rate" saga appeared in an eBay brief to the Supreme Court. "Horror stories" live forever.

CAFC affirms SD Cal in Pacing Technologies

The outcome:


Pacing Technologies, LLC (Pacing) appeals from the
district court’s grant of summary judgment that Garmin
International, Inc.’s and Garmin USA, Inc.’s (collectively,
Garmin) accused products do not infringe the asserted
claims of Pacing’s U.S. Patent No. 8,101,843. We affirm.




**Interpretation of preamble language was at issue here:


We hold that the preamble to claim 25, which reads
“[a] repetitive motion pacing system for pacing a user
. . . ,” is limiting. “Preamble language that merely
states the purpose or intended use of an invention is
generally not treated as limiting the scope of the claim.”
Bicon, Inc. v. Straumann Co., 441 F.3d 945, 952 (Fed. Cir.
2006). However, “[w]hen limitations in the body of the
claim rely upon and derive antecedent basis from the
preamble, then the preamble may act as a necessary
component of the claimed invention.” Eaton Corp. v.
Rockwell Int’l Corp., 323 F.3d 1332, 1339 (Fed. Cir. 2003).
That is the case here. The term “user” in the preamble
of claim 25 provides antecedent basis for the term
“user” in the body of that claim. The body of claim 25
recites “a web site adapted to allowing the user to preselect
from a set of user-selectable activity types an
activity they wish to perform and entering one or more
target tempo or target pace values corresponding to the
activity.” Id. col. 19 ll. 29–32 (emphasis added).



Of patentee as lexicographer:


The specification and prosecution history compel departure
from the plain meaning in only two instances: lexicography
and disavowal. Thorner v. Sony Computer Entm’t
Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). The
standards for finding lexicography and disavowal are
“exacting.” GE Lighting Solutions, LLC v. AgiLight, Inc.,
750 F.3d 1304, 1309 (Fed. Cir. 2014). To act as a lexicographer,
a patentee must “clearly set forth a definition of
the disputed claim term” and “clearly express an intent to
define the term.” Thorner, 669 F.3d at 1365. Similarly,
disavowal requires that “the specification [or prosecution
history] make[] clear that the invention does not include a
particular feature.” SciMed Life Sys. Inc. v. Advanced
Cardiovascular Sys., Inc., 242 F.3d 1337, 1341 (Fed. Cir.
2001).

We have found disavowal or disclaimer based on clear
and unmistakable statements by the patentee that limit
the claims, such as “the present invention includes . . .” or
“the present invention is . . . ” or “all embodiments of the
present invention are . . . .” See, e.g., Regents of Univ. of
Minn. v. AGA Med. Corp., 717 F.3d 929, 936 (Fed. Cir.
2013); Honeywell Int’l, Inc. v. ITT Indus., Inc., 452 F.3d
1312, 1316–19 (Fed. Cir. 2006); SciMed Life Sys., Inc., 242
F.3d at 1343–44. We have found disclaimer when the
specification indicated that, for “successful manufacture,”
a particular step was “require[d].” Andersen Corp. v.
Fiber Composites, LLC, 474 F.3d 1361, 1367 (Fed. Cir.
2007). We have found disclaimer when the specification
indicated that the invention operated by “pushing (as
opposed to pulling) forces,” and then characterized the
“pushing forces” as “an important feature of the present
invention.” SafeTCare Mfg., Inc. v. Tele-Made, Inc., 497
F.3d 1262, 1269–70 (Fed. Cir. 2007). We also have found
disclaimer when the patent repeatedly disparaged an
embodiment as “antiquated,” having “inherent inadequacies,”
and then detailed the “deficiencies [that] make it
difficult” to use. Chi. Bd. Options Exch., Inc. v. Int’l Sec.
Exch., LLC, 677 F.3d 1361, 1372 (Fed. Cir. 2012). Likewise,
we have used disclaimer to limit a claim element to
a feature of the preferred embodiment when the specification
described that feature as a “very important feature
. . . in an aspect of the present invention,” and disparaged
alternatives to that feature. Inpro II Licensing, S.A.R.L.
v. T-Mobile USA Inc., 450 F.3d 1350, 1354–55 (Fed. Cir.
2008). When a patentee “describes the features of the
‘present invention’ as a whole,” he alerts the reader that
“this description limits the scope of the invention.” AGA
Med. Corp., 717 F.3d at 936.

Here, the specification similarly contains a clear and
unmistakable statement of disavowal or disclaimer. In a
section entitled “Summary and Objects of the Invention,”
the ’843 patent states that “it is a principal object of the
present invention to provide a computer-implemented,
network-based system having a networked server, database,
client computer, and input/output device for use by
individuals engaged in repetitive motion activities . . . .”
’843 patent col. 3 ll. 9–13.



**Of embodiments:


It is true that constructions
that exclude the preferred embodiment are
disfavored. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d
1576, 1583 (Fed. Cir. 1996). However, in a case such as
this, where the patent describes multiple embodiments,
every claim does not need to cover every embodiment. See
Aug. Tech. Corp. v. Camtek, Ltd., 655 F.3d 1278, 1285
(Fed. Cir. 2011). This is particularly true where the plain
language of a limitation of the claim does not appear to
cover that embodiment. The preamble of claim 25 differs
from the preambles of the other seven independent
claims. Claim 25 requires a “repetitive motion pacing
system for pacing a user.”

BioVantage gets US '249 on photobioreactor

The first claim

--
1. A photobioreactor for growing algae, comprising: a tank to contain algae and growth medium for the algae; at least one light pipe to provide light in the tank for accelerating algae growth in the tank, the light pipe comprising a light source located outside of the tank for generating and emitting light and a light rod having a distal longitudinal end disposed inside the tank and a proximal longitudinal end disposed to receive light emitted from the light source to be delivered from the light rod into the tank to provide light for accelerating algae growth in the tank; the light rod having alternating frosted and unfrosted portions located in the tank and spaced along a longitudinal length of the light rod between the proximal end and the distal end, the unfrosted portions having a transverse cross-section that permits total internal reflection of light in the unfrosted portions wherein light in the light rod from the light source is transmitted along the unfrosted portions by total internal reflection and in the frosted sections a portion of the light from the light source is emitted from the light rod in the tank. 
--

US 8,956,833 to Greenlight Biosciences

The first claim states:

--

. A method of producing a product of a biosynthetic pathway of interest, the method comprising: (a) culturing bacterial cells that express enzymes of a biosynthetic pathway for production of a product, wherein at least one of the enzymes: (i) is an enzyme that controls metabolic flux in the biosynthetic pathway; and (ii) is an enzyme modified by genetic means to attach a periplasmic-targeting sequence, thereby producing cultured bacterial cells that contain at least one of the modified enzymes sequestered into the periplasmic space, wherein the modification by genetic means and the periplasmic sequestering do not result in a deleterious increase in metabolic flux in the biosynthetic pathway; (b) lysing the cultured bacterial cells, thereby producing a cell lysate containing the enzymes of the biosynthetic pathway and the at least one periplasmic-targeting sequence-modified enzyme; (c) combining the cell lysate with one or more substance selected from the group consisting of substrates, enzymes, nutrients, co-factors, buffers, reducing agents, ATP generating systems; and (d) incubating the cell lysate and the one or more substance for a period of time and under conditions sufficient to enzymatically produce the product, wherein the product is selected from the group consisting of antibiotics, biosurfactants, biological fuels, amino acids, organic acids, fatty acids, alcohols, polyols, flavors, fragrances, nucleotides, vitamins, pigments, sugars, polysaccharides, biopolymers, plastics, isoprenoids, terpenes, and cell metabolites. 
--

The importance of naming real-parties-in-interest in IPRs

See the post at the National Law Journal titled:

--

Unified Patents’ Institution Decision Gives Insight to PTAB’s Real Party in Interest Analysis

--

which includes the text:

The prompt identification of RPIs in post-grant proceedings is important as a mandatory notice for a number of added reasons.  An RPI that is barred under § 315(b) would bar a petitioner from institution. (35 U.S.C. § 315(b): “An inter partes review may not be instituted if the petition requesting the proceeding is filed more than 1 year after the date on which the petitioner, real party in interest, or privy of the petitioner is served with a complaint alleging infringement of the patent. . . .”)  The Board does not want to invest time and energy in petitions that are legally barred from institution, nor does it want to impose responses to them on patent owners

Sunstein on making dumb groups smarter

In the IPBiz post titled  

CAFC in Cuozzo: § 314(d) prohibits review of the decision to institute IPR even after a final decision

, LBE noted



Chevron vs. NRDC, a favorite of Professor Sunstein when at
UChicago Law, arose:



Because Congress authorized the PTO to prescribe
regulations, the validity of the regulation is analyzed
according to the familiar Chevron framework. See United
States v. Mead Corp., 533 U.S. 218, 226–27 (2001); Wilder
v. Merit Sys. Prot. Bd., 675 F.3d 1319, 1322 (Fed. Cir.
2012). Under Chevron, the first question is “whether
Congress has directly spoken to the precise question at
issue.” Chevron, U.S.A. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842 (1984); accord Cooper, 536 F.3d at 1337
(quoting Hawkins v. United States, 469 F.3d 993, 1000
(Fed. Cir. 2006)). If the statute is ambiguous, the second
question is “whether the agency’s interpretation is based
on a permissible construction of the statutory language at
issue.” Cooper, 536 F.3d at 1338 (quoting Hawkins, 469
F.3d at 1000).



Professor Sunstein is now at Harvard, and published an interesting
article in the December 2014 issue of the Harvard Business Review, titled
Making Dumb Groups Smarter .

Sunstein cites to Aristotle as to each individual bringing to the group
his share of goodness. As to errors of the group, Sunstein brings up
--informational signals-- and --reputational pressures.--

Although the topic of --jury deliberations-- arose, there was no discussion
of appellate courts having more tribunal members than district courts, another
nod to the power of the many over the one.

This matter is relevant to the Supreme Court decision in Teva v. Sandoz, relating
to the deference the appellate court gives to the fact-finding of the district
court in patent matters. The Supreme Court rendered a "split the baby" decision,
wherein the Federal Circuit owed less deference to intrinsic evidence than
to extrinsic evidence. Not suprisingly, post - Teva decisions have been finding
cases resolved on intrinsic evidence. It will be of note to see the CAFC review
of Gevo v. Butamax.

Returning to Professor Sunstein and Chevron, the Cuozzo case offers an interesting question: can a clearly erroneous interpretation be a permissible interpretation?
When Congress spoke in the Innovation Act, Congress made clear that BRI did not apply in IPRs. And the reasons it did not apply were apparent from the intent of Congress, as the dissenting Judge Newman made clear.

Returning to the matter of making dumb groups smarter, Sunstein seems to rely on what some might term sociology evidence, and one recalls Chicago Sunstein had a low opinion of such.

As a practical matter, groups in small start-ups tend to align with the founder, with the "employment interest" probably stronger than the reputational interest. Wise founders may accept corrective observations. Most founders likely do not. And, of a different matter, recall the departure of Jobs from Apple.

**As to crowdsourcing, from medium.com, How a Lone Hacker Shredded the Myth of Crowdsourcing :


All the motivation generated by weeks of good PR, a fun task and a smart financial incentive scheme evaporated in the face of attacks by a single person lasting, in total, no more than a couple of hours. The researchers warned, “Our results raise caution in the application of crowdsourced problem solving for sensitive tasks involving financial markets and national security.” DARPA might have already reached the same conclusion: the agency has issued no further crowdsourcing challenges since 2011. The agency did not respond to my request for an interview about how the Shredder Challenge attacks might have shaped their decisions.

GenomeWeb profiles Jonathan Karr

Note the allusion to industrial applications involving Cyanobacteria:

--

Many modelers had been focusing on metabolism, Karr said, and this paper showed that other physiological processes could also be included, "and that once you put it all together, you can generate much more quantitative predictions that you can if you just focus on one physiological process at a time," he said.

The paper also, he said, laid out a new scheme for developing a dynamic model that didn't rely solely on flux balance analysis, but could also include other mathematical representations like differential equations.

"So now, we're coming back and trying to use that same framework, but apply it to a much larger system, and much more data," Karr said.

Looking ahead

In the next few years, Karr said that more people would likely adopt methods like theirs to model more bacteria, especially ones with industrial applications like Escherichia coli or cyanobacteria.

Then in the years after that he said that's when people would start to use models to engineer bacteria — as long as the cost of genome synthesis comes down.

--
link:  https://www.genomeweb.com/genetic-research/young-investigator-profile-jonathan-karr

The paper in Cell is

A Whole-Cell Computational Model Predicts Phenotype from Genotype