Ph.D. of Dexter Suggs revoked by Indiana Wesleyan over copying issues

Indiana Wesleyan University has revoked the Ph.D. of former Little Rock schools superintendent Dexter Suggs, presumably related to the copying without attribution in the thesis of Suggs.

See the report in the Washington Times:

http://www.washingtontimes.com/news/2015/aug/31/ex-lr-schools-chief-loses-doctorate-amid-plagiaris/

Dow loses "supplemental damages" claim against NOVA because of the change in law brought by Nautilus case

The case --THE DOW CHEMICAL COMPANY v. NOVA CHEMICALS
CORPORATION -- illustrates what can happen when there is an
intervening change in law. In law school, one learns of
the Schooner Peggy case in which the Chief Justice wrote that
appellate courts were obligated to apply the law as
it currently exists, including changes intervening between the time of trial and
final resolution of the appeal,

Judge Dyk noted in Dow:


The Dow Chemical Company (“Dow”) filed suit
against NOVA Chemicals Corporation (Canada) and
NOVA Chemicals Inc. (Delaware) (collectively, “NOVA”),
alleging infringement of claims of U.S. Patent No.
5,847,053 (the “’053 patent”) and U.S. Patent No.
6,111,023 (the “’023 patent”). A jury found the asserted
claims to be infringed and not invalid. NOVA appealed,
and we affirmed, holding, inter alia, that the asserted
claims were not indefinite. Our mandate issued, and
NOVA’s petition for certiorari was denied by the Supreme
Court, NOVA Chems. Corp. v. Dow Chem. Co., 133 S. Ct.
544 (2012). The district court subsequently conducted a
bench trial for the supplemental damages period through
the expiration date of both patents. The district court
granted supplemental damages in the form of lost profits
and reasonable royalties and denied Dow’s request for
enhanced damages. NOVA appealed, and Dow crossappealed.

(...)

We hold that the intervening change in the law of indefiniteness
resulting from Nautilus provides an exception
to the doctrine of law of the case or issue preclusion.
In our review of the supplemental damages award, we
therefore evaluate the indefiniteness of the claims under
the Nautilus standard. In reviewing the supplemental
damages award under the Nautilus standard, we hold
that the claims are indefinite and reverse the award of
supplemental damages.




The technology


On October 21, 2005, Dow filed suit against NOVA,
alleging infringement of claims of the ’053 patent and the
’023 patent. The asserted claims of both patents cover
ethylene polymer compositions (a type of plastic) with,
inter alia, improved modulus, yield strength, impact
strength, and tear strength. These polymers can be made
into films that can be down-gauged (made thinner) without
losing strength.



The issue here is subtle, concerning the fact that Dow
was looking for SUPPLEMENTAL damages:


In
order to prevail on a claim for supplemental damages, a
patentee must establish infringement for the supplemental
damages period. If “an act that would have been
an infringement or an inducement to infringe pertains to
a patent that is shown to be invalid, there is no patent to
be infringed.” Commil USA, LLC v. Cisco Sys., Inc., 135 S.
Ct. 1920, 1929 (2015).

(...)

This rule applies to patent infringement claims. As we
explained just last year,
traditional notions of claim preclusion do not apply
when a patentee accuses new acts of infringement,
i.e., post-final judgment, in a second suit—
even where the products are the same in both
suits. Such claims are barred under general preclusion
principles only to the extent they can be
barred by issue preclusion, with its attendant limitations.

Brain Life, LLC v Elekta Inc., 746 F.3d 1045, 1056 (Fed.
Cir. 2014); see Aspex Eyewear, Inc. v. Marchon Eyewear,
Inc., 672 F.3d 1335, 1342–44 (Fed. Cir. 2012); see also,
e.g., SynQor, Inc. v. Artesyn Techs., Inc., 709 F.3d 1365,
1385–86 (considering whether intent element of induced
infringement had been shown in the supplemental damages
period).

Here, the bulk of the supplemental damages accrued
after the Rule 54(b) judgment, and it is clear that claim
preclusion also does not apply to damages accruing after
the filing of the complaint and not the subject of the first
judgment. See note 4, supra. All supplemental damages
here accrued after the filing of the complaint.
While claim preclusion does not apply, ordinarily issue
preclusion (or law of the case) would bar relitigation
in the supplemental damages period of issues (such as
validity) that were resolved as to the earlier time periods.
18 Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure § 4409 (2d ed.
2002 (“[Although] claim preclusion often cannot apply in
settings of continuing . . . conduct, . . . it may be proper to
conclude that the issues precluded by the first litigation
embrace [issues in the second] . . . .”).



As to "law of the case,"


With respect to law of the case, “[p]erhaps the most
obvious justifications for departing . . . arise when there
has been an intervening change of law outside the confines
of the particular case.” 18B Charles Alan Wright,
Arthur R. Miller & Edward H. Cooper, Federal Practice
and Procedure § 4478; see Rose Acre Farms, Inc. v. United
States, 559 F.3d 1260, 1277–78 (Fed. Cir. 2009) (holding
that intervening Supreme Court decision issued after
prior appeal rendered prior decision “obsolete,” “[g]iven
the significant change in the law”); Wopsock v. Natchees,
454 F.3d 1327, 1333 (Fed. Cir. 2006) (finding that law of
the case did not apply because “this is a case in which
there has been a change in the law”). The exception
applies even if the issue was resolved on appeal in an
earlier stage of the proceeding. Indeed, the premise of the
exception in the appellate context is that there was such
an earlier resolution. See Litton Sys., Inc. v. Honeywell
Inc., 238 F.3d 1376, 1379–81 (Fed. Cir. 2001) (revisiting
prior holding on prosecution history estoppel because
intervening en banc authority adopted a contrary approach,
noting “[w]e are aware of no decision of this court
that has applied the law of the case in the face of a relevant
change in controlling legal authority”); M



One has



The change in law exception applies whether the
change in law occurs while the case is before the district
court or while the case is on appeal. See Spiegla, 481 F.3d
at 964 (7th Cir. 2007) (holding that defendants had not
waived challenge to holding in first appeal where issue
not raised on remand in district court or initial briefing
because intervening decision was issued after appellate
briefing); Mendenhall, 26 F.3d at 1583 (law of the case did
not apply where new decision issued while case on appeal);
Morris v. Am. Nat’l Can Corp., 988 F.2d 50, 51–53
(8th Cir. 1993) (law of the case did not apply where, after
first appeal and decision on remand by district court,
Supreme Court case changed prevailing law); Wilson, 791
F.2d at 154, 157 (exception to issue preclusion applied
where intervening decision issued while case pending
before this court).


The technical issue impacted by the Nautilus decision



The claim term at issue here provides for “a slope of
strain hardening coefficient greater than or equal to 1.3.”
’053 patent col. 16 ll. 19–20; ’023 patent col. 16 ll. 29–30.
The patents provide that the “slope of strain hardening
coefficient” (“SHC”) is calculated according to the following
equation:
SHC = (slope of strain hardening)*(I2)0.25
where I2=melt index in grams/10 minutes. ’053 patent col.
6 ll. 45–50; ’023 patent col. 7 ll. 22–28. “The SHC coefficient
is a new Dow construct, not previously known in the
art . . . .” Dow, 458 F. App’x at 918.
Strain hardening is a property wherein a material becomes
harder as it is stretched. The ’053 and ’023 patents
teach that tensile properties, including strain hardening,
may be tested using a device called the Instron Tensile
Tester. The Instron Tensile Tester subjects a sample to an
increasing load, stretching it until it breaks. The machine
measures the force, or load, applied to the sample and the
length that the sample stretches.
The measurements taken by the Instron Tensile Tester
are then plotted on a graph. The resulting curve is
called the “tensile curve” or “stress/strain curve.” On the
stress/strain curve, the force (or load) applied to the
sample is plotted on the y-axis, and the resulting elongation
(or displacement) of the sample is plotted on the xaxis.
The behavior of the material claimed by the patent
changes as it is stretched, and those changes are shown
on the stress/strain curve. A figure from the prior art
utilized in Dow’s brief illustrates a typical stress/strain
curve.

(...)

NOVA argues that the term “slope of strain hardening
coefficient,” ’053 patent col. 16 l. 19, is indefinite because
the patent fails to teach with reasonable certainty where
and how the “slope of strain hardening” should be measured.
8
Although the patents state that “FIG. 1 shows the
various stages of the stress/strain curve used to calculate
the slope of strain hardening,” ’053 patent col. 6 ll. 40–41;
’023 patent col. 7 ll. 18–19, the patents do not contain the
FIG. 1 referenced in those passages. Nor do the patents
include any other figure showing the stress/strain curve.
The specification of the ’053 and ’023 patents teach that
“[t]he slope of strain hardening is calculated from the
resulting tensile curve by drawing a line parallel to the
strain hardening region of the . . . stress/strain curve.”
’053 patent col. 6 ll. 27–29; ’023 patent col. 7 ll. 5–7.
At trial, Dow’s expert Dr. Hsiao testified that “one of
ordinary skill in the art would know that the slope of the
hardening curve would have to be measured at its maximum
value, which reflects the best tensile performance of
the material.” Dow, 458 F. App’x at 919. We may assume
that, as Dr. Hsiao testified and as Dow repeatedly argues,
it was known that the maximum slope should be measured.

But three methods existed to determine the maximum
slope, each providing, as Dow admits, “simply a different
way of determining the maximum slope.” Appellee’s Br. 45
(emphasis added). Dow admitted that those three methods
“all typically occur at the same place—at the end of
the curve where the maximum slope is located.” Id. We
refer to these methods as the “10% secant tangent method,”
“final slope method,” and “most linear method.”

(...)

Neither the patent claims nor the specification here
discusses the four methods or provides any guidance as to
which method should be used or even whether the possible
universe of methods is limited to these four methods.
Nor does either party argue that the prosecution history
provides any guidance. Further, Dr. Hsiao did not testify
that one of ordinary skill in the art would choose his
method over the three known methods. Indeed, he was
not even aware of the other methods at the time he did
his analysis. He admitted that he applied only his judgment
of what a person of ordinary skill would believe and
did not interview anyone or cite any references discussing
how a person at the time of the patent application would
have calculated the slope of strain hardening.
The question is whether the existence of multiple
methods leading to different results without guidance in
the patent or the prosecution history as to which method
should be used renders the claims indefinite. Before
Nautilus, a claim was not indefinite if someone skilled in
the art could arrive at a method and practice that method.
Exxon, 265 F.3d at 1379. In our previous opinion, relying
on this standard, we held that the claims were not indefinite,
holding that “the mere fact that the slope may be
measured in more than one way does not make the claims
of the patent invalid.” Dow, 458 F. App’x at 920. This was
so because Dow’s expert Dr. Hsiao, a person skilled in the
art, had developed a method for measuring maximum
slope. See id. at 919–20.

Under Nautilus this is no longer sufficient.



There was an allusion to Sandoz v. Teva:



In this respect this case is quite similar to our recent
decision in Teva, decided under the Nautilus standard. In
Teva,9 the claim limitation at issue recited the term
“molecular weight.” 789 F.3d at 1338. But there were
three relevant measures for molecular weight—peak
average molecular weight (“Mp”), number average molecular
weight (“Mn”), and weight average molecular weight
(“Mw”)—where each was calculated in a different manner
and each typically had a different value

(...)

The claims here are even more clearly indefinite than
those in Teva. Here, Dr. Hsiao’s chosen method was not
even an established method but rather one developed for
this particular case. As we held in Interval Licensing, a
claim term is indefinite if it “leave[s] the skilled artisan to
consult the ‘unpredictable vagaries of any one person’s
opinion.’” 766 F.3d at 1374 (quoting Datamize, LLC v.
Plumtree Software, Inc., 417 F.3d 1342, 1350 (Fed. Cir.
2005)).10 The claims here are invalid as indefinite, and the
award of supplemental damages must be reversed. Under
these circumstances, we need not address the crossappeal
as to enhanced damages.


link to case: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1431.Opinion.8-25-2015.1.PDF

***Of a different issue in retroactive application, note PatentlyO on
the Dickstein Shapiro malpractice case:


To put this in context: Because of a 2014 Supreme Court decision, the 2006 case would have been lost anyway because, in 1993, the claims were not eligible for patenting.

And the argument worked. The district court granted a motion to dismiss for failure to state a claim, finding the subject matter ineligible on the face of the patent.

I’ll leave the merits of that to others.

What is interesting is the court’s approach to retroactive application of Alice. The issue was whether in the 2006 case, even had the firm’s alleged malpractice not caused the invalidity judgment, the claims were “invalid” under 101 then. The district court held that Alice did not change the law, but merely stated what it had always been.


link: http://patentlyo.com/hricik/2015/09/dickstein-malpractice-ineligible.html

The debate about the proposed IPR carve-out for pharma patents

Chris Versace (with a position at New Jersey City University (NJCU)) criticizes pharma industry proposals on IPRs, without mentioning the forays of Kyle Bass:



According to a Politico report, “The drug industry is circulating a sign-on letter to build support for exempting drugs from a streamlined patent challenge process, a key issue stalling the House’s Innovation Act.” Given the growing target market that is domestic aging population and the critical nature of drug patent life, it is hardly surprising to learn the pharmaceutical industry has deployed lobbyists to add a last minute provision that would scale back the Inter Partes Review (IPR), a process that allows an efficient way to challenge illegitimate patents.



Link from Newsmax.com http://www.newsmax.com/Finance/ChrisVersace/Health-Care-Lobbyists-Patent-Provision/2015/08/30/id/672679/#ixzz3kOvUv3cE

IAM covered the issue in July 2015, noting:


During mark-up of the PATENT Act last month, Senator Schumer admitted that work still needed to be done on the legislation to win the support of the life sciences community, as he insisted that “the IPR package will get further refinement”. But the AARP letter demonstrates the complex web of competing interests that has been woven around the subject. In its concluding remarks against the exemption the letter added: “We ask the Committee to fully consider the implications of any such exemption in terms of increased spending for payers, including Medicare and Medicaid, and higher prices for consumers. It would be unfortunate if this issue was to impede progress of the larger patent reform effort.”

As if to underline the point being made, earlier this month the Center for Economic and Policy Research produced a paper entitled The Impact of Exempting the Pharmaceutical Industry from Patent Reviews. It concluded:

… the failure to remove improperly awarded patents at an early date could lead to substantially higher drug costs. These costs will translate into higher payments from government run health insurance programs like Medicare and Medicaid.

The improper award of patents is also likely to lead to misdirected research, potentially wasting billions of dollars in spending in pursuit of patent rents based on the improperly awarded patents. In addition, these patents will provide incentives to mismarket drugs, a process that has led to substantial costs in the form of increased morbidity and increased mortality in the past. This analysis suggests that there could be substantial costs associated with exempting the pharmaceutical industry from the IPR process.

Undermining pharma’s ability to raise drug prices and bringing down the cost of medications overall is one of the motivations that Bass has claimed is behind his IPR strategy. Those arguments carry a lot more weight when they come from an organisation like AARP and take on tangible form for legislators when converted into dollar estimates of how much more consumers and government agencies might have to pay should a pharma IPR exemption be created. A vote on the Innovation Act in the House of Representatives might happen as early as this week. But it still looks like we’re some way from a reform package reaching the President’s desk.



link: http://www.iam-media.com/Blog/Detail.aspx?g=d8168919-e9b9-4848-a6f1-38a1eea2012a

link to the paper The Impact of Exempting the
Pharmaceutical Industry
from Patent Reviews by Dean Baker:

http://www.iam-media.com/files/Pharma%20IPR%20exemption.pdf

Yes the Baker paper mentions the Smucker patent: The ease of getting
a patent was famously demonstrated in 1997 when two inventors were able to get a patent on a
peanut butter and jelly sandwich

As to the impact on research:


The above discussion only dealt with the potential impact of improperly granted patents, due to the
pharmaceutical industry’s exemption from the IPR process, on higher drug prices. However, if a
pharmaceutical company is wrongly granted a patent which turns out to be central in the production
of a major selling drug, then it can be expected that it will also lead to a major distortion in research
spending. Other pharmaceutical companies will try to gain a share of the patent rents by attempting
to innovate around the wrongly issued patent. This can lead to large amounts of money being
misspent.
To be clear, in the case where a pharmaceutical company has a valid patent, this sort of innovation is
beneficial since it can bring down the price of the drug before the patent expires and generics can
enter the market. This appears to be happening in the case of Sovaldi, the Hepatitis C drug. There
are several pharmaceutical companies developing comparable products which either have already
gained FDA approval or are likely to do so in the near future.

(...)

However, if the initial patent was wrongly granted, then this research will have been largely wasted.
The drug should have already have been available as a generic, and therefore there would be no
patent rents to be shared.19 This misdirection of research is an important cost associated with
improperly granted patents. If the pharmaceutical industry’s exemption from IPR increases the
probability of improperly awarded patents, then we should expect more misdirected research as a
result


One notes that the bulk of money to bring a drug to market is in running the trials, not in getting a patent on the drug.

Baker received his B.A. from Swarthmore College and his Ph.D. in Economics from the University of Michigan.

Forbes on 1799 patent

In a story about Hyperloop Transportation Technologies, a firm founded by Tesla CEO Elon Musk, Forbes alludes to a 1799 patent:


The earliest example of a patent for a pneumatic transport system reaches all the way back to 1799. A patent for “conveyance of goods and passengers by air” was awarded to George Medhurst in the 18th century, laying the foundation for the work on the Hyperloop project.


link: http://www.forbes.com/sites/basilmoftah/2015/08/31/will-the-hyperloop-spark-a-patent-revolution/

Sunday Morning on August 30, 2015

Martha Teichner did the cover story on New Orleans after
Katrina. Ended with a "then and now" on three
People.

August 30, 1901. Vacuum cleaner.Hubert Cecil Booth.
In 2002, Sunday Morning covered a vacuum cleaner
collector convention with Bill Geist.
As to patent issues, in 2001, BBC News noted:


A hundred years ago, a very different beast was born when engineer
Hubert Cecil Booth invented the Puffing Billy.

Booth's machines became the talk of the town and he was called upon
to perform a number of unusual jobs - like cleaning the girders
of Crystal Palace, which were suffering from accumulated dust.

(...)

After the launch of the first vacuum cleaner, it was six years
before the invention of a machine which would not only revolutionise
our lives, but our vocabulary.

One of the earlier contraptions
An early vacuum cleaner
In 1907, William Henry Hoover produced the first commercial bag-on-a-stick
upright vacuum cleaner in Ohio, USA, although he was not responsible for its design.

He bought the patent from his wife's cousin, James Murray Spangler.


link to BBC article: http://news.bbc.co.uk/2/hi/uk_news/1515776.stm

** The story on Chris Craft began with Matt Smith. Woody boater.
[Matt Smith never dreamed that Woody Boater (www.WoodyBoater.com)
would so perfectly fill a need in the classic boating community. ] Chris Craft.
Chris Craft started in Algonac, Michigan, a small town on the St. Clair River.
Wayne Eversole of Everso Marine Restorations.
Of patents, US 2332178, This invention relates generally
to power boats and refers more particularlyto boats of the type
adapted to be grounded for landing purposes.

Qne of the principal objects of this invention resides
in the provision of means for exerting an upward thrust
on the hull of the boat to elevate the latter at the time
the propeller is operated to move the boat in one direction.

** Mark Phillips on James Corden.
National Theater in London. The History Boys.

** Dogs howling to CBS Sunday morning.

Ben Stein on 10% drop in stock market.
18.4 trillion. 0.7% of us economy related to China.
Bogus macroeconomics. Stein says patience
will be rewarded.

Some text of Ben Stein:


The pundits and analysts appeared and said it was because of the Chinese devaluation and possible serious weakness in China. This, in turn, would devastate U.S. exports, supposedly, to China and sink the ship of our prosperity.

That was, and is, nonsense.

The U.S. economy's output is roughly $18.4 trillion per year.
Total exports to China are very roughly $120 billion per year.

That a lot of hamburgers, but it's roughly seven-tenths
of one percent of the U.S. economy.

If our exports to China fell by 20 percent -- a large number --
that would have only trifling effect on the U.S. economy --
very roughly one-tenth of one percent of U.S. output,
trivial even for an economy as big as ours.



One comment to Stein's opinion piece:


[Look at] Mr. Reich's Aug 23 column where he states
it's estimated that in 5 years 40% of the workforce
will have uncertain work and that in 10 years
most of us will have uncertain work. If' he's correct
almost no one will have money for the stock market.
We'll be lucky if we can keep a roof over our heads.



**Michelle Miller on chef John Besh. Book Besh Big Easy.
Add riffs; make it my own. August Restaurant.
Red beans and rice served after Katrina.
Willie Mae's Scotch House. John Besh Foundation.

** Lee Cowan with Dick Cheney, now 74. Book "Exceptional."
"The collapsing Obama doctrine.".
If you are criticism-free, you are probably not doing your job.
Darth Vader hitch cover.

** Moment of nature. Viking. Zion National Park, Utah.
Spotted Towhees.

Trade secret issue between Jing Zeng and Machine Zone/"Game of War"

The Wall Street Journal noted:


After working at a string of Chinese and U.S. technology jobs, Mr. Zeng landed at Machine Zone in late 2014, according to his LinkedIn profile. The Palo Alto, Calif., firm produces Game of War, an online medieval videogame that features knights and dragons. Its commercials, which have appeared on the Super Bowl, feature the model Kate Upton.

(...)

By spring, Mr. Zeng was unhappy with his boss and wanted to change teams, the complaint said, but his bosses declined. After managers told Mr. Zeng he had to leave the company, he began downloading data on user behavior from a proprietary company database



Zeng was arrested as he tried to board a plane for Beijing.

link: http://www.wsj.com/articles/manager-at-video-game-maker-accused-of-trade-secret-theft-1440554173

New York Stock Exchange going after its customers over patents?

A press release on August 7, 2014 noted: Intercontinental Exchange (NYSE:ICE), the leading global network of exchanges and clearing houses, announced today that it has acquired intellectual property rights that relate to computerized trading strategies. The acquired intellectual property rights include U.S. Patent Numbers 7,177,833; 7,251,629; 8,498,923; 8,478,687; 8,660,940; 8,732,048; 8,725,621 and various related pending U.S. Patent Applications. Terms of the transaction were not disclosed.


**
US 7,177,833, first assigned to Edge Capture, LLC (Woodstock, IL) , first inventor Marynowski
US 7,251,629, first assigned to Edge Capture
US 8,498,923, first assigned to Edge Capture
US 8,478,687, first assigned to Edge Capture
US 8,660,940, first assigned to Edge Capture
US 8,732,048, first assigned to Edge Capture
US 8,725,621, first assigned to DCFB LLC (Chicago, IL)

**

About one year later, Bloomberg reported


Intercontinental Exchange Inc., owner of the New York Stock Exchange and some of the world’s biggest derivatives markets, is setting up a clash with customers with its plan to generate income by licensing patents and boosting market-data fees.
The company has asked its biggest customers what they’re willing to pay for licenses to trading-technology patents it bought a year ago, according to executives at four different trading firms who asked not to be named because the discussions are private. ICE proposed to one company that it would waive the licensing fee if it directed stock transactions to the NYSE, which has seen its share of the equities business dwindle, instead of rival exchanges, an executive at the trading firm said.



link: http://www.bloomberg.com/news/articles/2015-08-28/nyse-draws-users-ire-with-fee-increases-patent-charge-proposal

**
Recall Edge Capture LLC et al. v. Lehman Brothers Holdings Inc. et al., case no. 1:08-cv-02412, in the U.S. District Court for the Northern District of Illinois.

Former Attorney General Ed Meese weighs in AGAINST patent reform

From the Washington Times:


Ronald Reagan’s former attorney general Edwin Meese has joined a growing number of conservatives urging Congress not to pass proposed legislation changing America’s patent system.



link: http://www.washingtontimes.com/news/2015/aug/27/edwin-meese-reagans-ag-joins-fight-against-patent-/

Atsumi's US application 20150240247: TROPHIC CONVERSION OF PHOTOAUTOTROPHIC BACTERIA FOR IMPROVED DIURNAL PROPERTIES

The first published claim:


An isolated bacterial cell of a photoautotrophic species, comprising a recombinant polynucleotide encoding a galactose transporter protein, wherein expression of the galactose transporter protein results in transport of glucose into the bacterial cell to increase growth of the bacterial cell on glucose under dark or diurnal conditions as compared to a corresponding photoautotrophic bacterial cell lacking the recombinant polynucleotide.



Separately, US 20150232896: ISOLATED GENES AND TRANSGENIC ORGANISMS FOR PRODUCING BIOFUELS

Inline wins claim construction appeal at CAFC

Judge Newman began the opinion:


Inline Plastics Corporation sued EasyPak, LLC for infringement
of United States Patent No. 7,118,003 (the
’003 patent) and No. 7,073,680 (the ’680 patent), directed
to tamper-resistant plastic food containers. Following the
district court’s claim construction, Inline moved for entry
of final judgment of non-infringement of its ’003 patent,
on the premise that the claims as construed are not
infringed. Inline also granted EasyPak a covenant not to
sue on the ’680 patent. The district court then entered
final judgment of non-infringement of the ’003 patent,
dismissed without prejudice EasyPak’s declaratory judgment
counterclaims for invalidity, and dismissed Inline’s
count for infringement of the ’680 patent with prejudice.1

Inline appeals the district court’s construction of the
claims of the ’003 patent, stating that the terms “frangible
section” and “tamper evident bridge” were incorrectly
construed. We conclude that, on the facts and specification
of the ’003 patent, the district court erred in limiting
the claims to a specific embodiment, for the invention as
claimed is supported by the patent’s broader disclosure.
We vacate the judgment of non-infringement of the ’003
patent, and remand for determination of infringement in
accordance with the corrected claim construction.



The argument of Inline:



Applying these criteria, Inline argues that “frangible
section” was incorrectly construed as requiring at least
two score lines at the hinge. Inline states that “frangible
section” should be construed to mean a “section of material
that includes at least one score line or at least one
perforation line.” Inline points out that nothing in the
specification, the prosecution history, or the prior art
limits “frangible section” by the number of score lines by
which the frangible section is severed.

(...)

Despite this explicit disclosure of an alternative single
score line, the district court limited “frangible section” to
require at least two score lines. No prior art or prosecution
argument underlays this limitation. The district
court referred only to the frequency with which the specification
described the frangible section as having two
score lines that form a severable strip.
Here, the preferred embodiment is not described as
having certain unique characteristics of patentable distinction
from other disclosed embodiments. Nor are other
embodiments inadequately described in relation to the
principles of the invention. Absent such traditional
aspects of restrictive claim construction, the patentee is
entitled to claim scope commensurate with the invention
that is described in the specification. See Phillips v. AWH
Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (“[A]lthough
the specification often describes very specific embodiments
of the invention, we have repeatedly warned
against confining the claims to those embodiments.”).

(...)

The patent examiner placed no emphasis on the number
of severable lines. In allowing the claims, the examiner
explained: “The container also includes a tamper
evident feature, such as a tear strip, connecting the cover
portion to the base portion.” App. No. 10/895,687, Final
Rejection 2 (June 19, 2006). There is no discussion in the
specification or the prosecution history of any patentability
reliance on the number of score lines by which the
frangible section is severed



The bottom line


Thus we correct the district court’s claim construction,
and construe “frangible section” to mean “a section of
material that includes at least one score line or at least
one perforation line.”

(...)

We have corrected the claim construction, whereby
claims 1 and 2 are not restricted to the presence of at
least two score lines or perforation lines. On this claim
construction, the judgment of non-infringement of the ’003
patent cannot stand. We vacate that judgment,



link: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1305.Opinion.8-24-2015.1.PDF

Did the proposal of McWhopper create consumer confusion?

There's buzz about the BK proposal to create a
McWhopper, if only for a day.

Implicit is the idea it would be a
Hybrid of a Whopper and a Big Mac, which
Inherently are different products.
Such an item would cause consumer confusion.

A bit of brand trivia. The original name
for Gerry and the Pacemakers was
Gerry and the Mars Bars. The latter
did not happen.


For some of the details:

http://www.sandiegouniontribune.com/news/2015/aug/27/burger-king-proposes-mcdonalds-mcwhopper/

http://kwqc.com/2015/08/26/burger-king-wants-to-join-forces-with-mcdonalds-to-create-the-mcwhopper/

Lisa Rein publishes email of Michelle Lee to USPTO employees: " time and attendance abuse is absolutely unacceptable and will not be tolerated"

Lisa Rein of the Washington Post published an email of Director Michelle Lee to all USPTO employees which related to the August 19 report of the U.S. Department of Commerce Office of Inspector General (OIG) which detailed significant time and attendance abuse of a USPTO employee.

The text of the August 25 email included:


So, along with the agency’s entire Executive Committee, it is important to reiterate that time and attendance abuse is absolutely unacceptable and will not be tolerated. [sic]

We are inspired by so many of our hardworking and dedicated employees. And importantly, I know that together we will remain vigilant in our focus on fulfilling the vital mission of our agency in the service of the American public.



Link to Rein article: http://www.washingtonpost.com/blogs/federal-eye/wp/2015/08/26/patent-office-chief-to-employees-time-and-attendance-abuse-is-absolutely-unacceptable/

Rein noted that the supervisor of the examiner in question worked from homw (telecommuted), so this is the inverse of the previously alleged issue of abuse by telecommuting examiners.

Rein: An examiner with a history of poor performance who was never disciplined racked up more than 18 weeks of pay last year for not working. But his manager, who worked from home, only noticed when he received an anonymous letter calling out the employee.

Laches as a defense to Ph.D. thesis plagiarism?

An interesting argument about "Ph.D. thesis plagiarism" appears at the end of the post Delays plague Chris Spence plagiarism hearing. Chris Spence is accused of plagiarizing portions of his UToronto Ph.D. thesis and Selwyn Pieters is the lawyer for Spence.




Pieters also argues it has been so long — 19 years — since Spence wrote his thesis, that the U of T has lost its right to rule on whether he plagiarized some of its passages. The proceedings will resume in November.

IPRs against other Teva Copaxone patents

FiercePharma reports:


On 25 August 2015, the U.S. Patent and Trademark Office (PTO) instituted inter partes review (IPR) proceedings against two of the patents on Copaxone 40 mg, with the third patent still pending. Next up will come a one-year review, and at that point, the office will decide whether to invalidate the IP shields, Bernstein analyst Ronny Gal wrote in a note to clients.



link: http://www.fiercepharma.com/story/us-patent-office-puts-new-copaxones-ip-shield-under-lens/2015-08-26

A press release on MarketWatch noted:


Mylan N.V. announced that the U.S. Patent and Trademark Office (PTO) has instituted inter partes review (IPR) proceedings against two Copaxone® 40 mg/mL patents, U.S. Patent Nos. 8,232,250 and 8,399,413, owned by Yeda Research & Development Co., Ltd. and licensed to Teva Pharmaceuticals Industries Ltd. The patents relate to methods for the treatment of multiple sclerosis through the administration of at least three 40 mg subcutaneous injections of glatiramer acetate over a period of seven days with at least one day between each injection. Mylan also has filed another petition for inter partes review of a related patent (U.S. Patent No. 8,969,302), which the PTO is expected to act upon shortly.




Some background on MS from US Patent 8,906,357:



Multiple Sclerosis (MS) is a common neurological disease affecting more than 1 million people worldwide (EMEA CHMP Guideline on MS, 2007). Its prevalence rate varies between races and geographical latitude, ranging from more than 100 per 100,000 in Northern and Central Europe to 50 per 100,000 in Southern Europe. MS is an inflammatory condition that damages the myelin of the Central Nervous System (CNS; the brain, spinal cord and optic nerves) and causes neurologic impairment and, frequently, severe disability. It is the commonest cause of neurological disability in young and middle-aged adults and has a major physical, psychological, social and financial impact on patients and bodies responsible for health care.

The etiology of MS remains unknown. It is generally assumed that MS is mediated by some kind of autoimmune process, an abnormal response of the body's immune system against the myelin in the CNS, possibly triggered by infection and superimposed upon a genetic predisposition. Research to date has identified the immune cells which attack the myelin, some of the factors causing them to attack, and some of the sites or receptors on the attacking cells that appear to be attracted to the myelin to begin the destructive process. However, the specific target on the myelin is yet to be identified. MS is characterized by chronic patchy inflammation of the CNS with demyelinization and gliosis (scarring). It is thought that progression of lesions in MS might have two components: an active immunological aspect and a degenerative aspect; it is unknown to what extent these are causally interrelated.

Two principal clinical courses were classified 20 years ago by the US National Multiple Sclerosis Society; relapse remitting MS and chronic progressive MS. These were further refined in 1996 by Lublin & Reingold into four clinical courses of the disease, currently recognized as: Relapsing Remitting MS (RRMS), Secondary Progressive MS (SPMS), Primary Progressive MS (PPMS) and Progressive Relapsing MS (PRMS). Each of these categories can be mild, moderate, or severe. Other very rare forms of MS also exist. More specifically, RRMS is the initial course in 80 to 85% of people diagnosed with MS and is characterized by unpredictable clearly defined relapses (flare-ups or exacerbations) of worsened neurological functioning with partial or complete recovery periods (remissions), during which no disease progression occurs. Remissions last for a period of months or years and impairments suffered during attacks may resolve or leave sequelae. Following an initial period of RRMS, many sufferers develop a secondary-progressive disease course in which the disease worsens more steadily between acute attacks, without definite periods of remission, or stable periods. Occasional relapses and minor remissions may occur. Approximately 50% of RRMS patients develop SPMS within 10 years, and after 25 to 30 years, the percentage rises to 90%. Approximately 10-15% of people diagnosed with MS have PPMS, which is characterized by slowly worsening neurologic function from the outset, with no distinct relapses or remissions.

The rate of progression may vary over time, with occasional periods of stability and temporary minor improvements. The age of onset is later than for other clinical courses. In PRMS (approximately, 5% of people diagnosed with MS), patients experience steady neurological decline from disease onset, but with clear attacks of worsening function. They may or may not experience some recovery following these relapses, but the disease continues to progress without remissions. Finally, the term clinically isolated syndrome (CIS) applies to those patients who have suffered a single clinical event but do not comply with the diagnostic criteria for definite MS.

While the four main courses of MS are currently defined according to clinical characteristics, there is increasing evidence of distinct pathological and pathogenic mechanisms between the different courses. Relapses are considered the clinical expression of acute inflammatory focal lesions whereas progression is considered to reflect the occurrence of demyelination, axonal loss and gliosis. These differences are important as they reflect differences in prognosis and because disease modifying drugs are currently effective only in the relapsing types of MS, i.e. patients either with a RRMS form or a SPMS form that are suffering relapses. Patients with relapsing MS constitute a common target for therapeutic treatments, indeed, RRMS and SPMS can be considered as different stages of the same disease while PPMS may imply different processes.

There is currently no treatment proven to slow the progression of PPMS, nor curative treatment for MS. In general, current therapeutic approaches include: symptomatic treatment, corticosteroids for acute relapses, and treatment aimed to modify the course of the disease (disease modifying drugs).

Symptomatic treatments refer to all therapies applied to improve symptoms caused by the disease: fatigue, spasticity, ataxia, weakness, bladder and bowel disturbances, sexual dysfunction, pain, tremor, paroxysmal manifestations, visual impairment, psychological problems, cognitive dysfunction and other associated conditions that can improve with non specific treatments. Disease modifying drugs are therapies aimed to decrease the relapse rate or modify relapses and to diminish the accumulation of disability in time (Table 1). While disease modifying medications may impact how quickly patients move from RRMS to SPMS and potentially the overall number of patients developing this course, long term data are not yet available. Currently approved therapies to modify the MS course target the immunological processes of the disease. Most of them are considered to act as immunomodulators but their mechanisms of action have not been completely elucidated. Immunosupressants or cytotoxic agents are also used in some patients after failure of conventional therapies. Based on the immunological nature of the disease, combination therapy targeting different parts of the immune processes may also be a possible strategy.


AND



FDA Approved Disease Modifying Therapies for MS FDA ap- Active agent Drug approval Approved Indication interferon Betaseron 1993 Treatment of relapsing forms of beta 1b MS and SPMS with relapses; and after a first clinical episode with MRI features consistent with MS interferon Extavia 2009 Treatment of relapsing forms of beta 1b MS and SPMS with relapses; and after a first clinical episode with MRI features consistent with MS interferon Avonex 1996 Treatment of relapsing forms of beta 1a MS, and for a first clinical episode if MRI features consistent with MS are also present glatiramer Copaxone 1996 Treatment RRMS; and for a first acetate clinical episode if MRI features consistent with MS mitoxantrone Novantrone 2000 Treatment of RRMS and progressive-relapsing or SPMS interferon Rebif 2002 Treatment of relapsing MS beta 1a natalizumab Tysabri 2004/ Treatment of relapsing forms of 2006* MS as a monotherapy (not used in combination with any other disease-modifying medication). *Voluntarily withdrawn from the market on Feb. 28, 2005; US FDA March 2006 Advisory Panel recommended for re-approval.

Despite these approved therapies, the unmet medical need in the MS field remains substantial, even for relapsing MS patients treated early and in particular for the populations of PPMS and relapse-free SPMS (rfSPMS). Several reasons can be given for this: None of the available drugs completely stop the disease process. MS progression can be at an advanced stage before any diagnosis is made and advanced MS is not highly responsive to treatment with any of the available drugs. None of the drugs have been shown to be effective in rfSPMS or PPMS, subpopulations in which inflammation appears to be less prominent. There is a suspicion that inflammation alone cannot entirely explain the progressive neurodegeneration, particularly later in the disease. Many of the standard treatments require regular injections or infusions which, considering the chronic nature of this disease, impact negatively on the patient's adherence to treatment, quality of life and can lead to a common side effect of injection site reactions. MS follows a highly heterogeneous disease progression, yet patient-optimized treatment, e.g. weight-adjusted dosing, is not developed in the currently available drugs. Long-term treatment regimens using corticosteroids are associated with numerous detrimental side effects, with its benefits possibly outweighed by potential complications.

Role of c-Kit and Mast Cells in Inflammation

Mast cells (MC) are predominantly found in tissues at the interface between the host and the external environment, such as lung, connective tissue, lymphoid tissue, gut mucosa, and skin. They develop from a common circulating CD34+/c-Kit+/CD13+/Fc.epsilon.RI- hematopoietic progenitor representing a single lineage, which gives rise to different phenotypes after migrating into peripheral tissues. Immature MC progenitors circulate in the bloodstream and differentiate in tissues. These differentiation and proliferation processes are influenced by cytokines, notably Stem Cell Factor (SCF), also termed Kit ligand (KL), Steel factor (SL) or Mast Cell Growth Factor (MCGF). The SCF receptor is encoded by the proto-oncogene c-Kit. It has been shown that SCF regulates the migration, maturation, proliferation, and activation of MCs in vivo--injection of recombinant SCF into rodents, primates, or humans, results in an increase in MC numbers at both the site of injection and at distant sites.

Google's US Patent 9,108,640: Systems and methods for monitoring and reporting road quality

The inventor of --Systems and methods for monitoring and reporting road quality -- is Dean Jackson of Pittsburgh, PA.

The first claim states


A method for monitoring and reporting road quality by a server device comprising an electronic circuit, the method comprising the steps of: obtaining, by the electronic circuit, a report comprising the geographic road location of a vehicle and a road quality indication of the geographic location; updating, by the electronic circuit, a table correlating the geographic road location and the road quality indication; determining, by the electronic circuit, average road quality indicia based on the road quality indications from a plurality of vehicles; generating, by the electronic circuit, a calibration factor for the vehicle based on the difference between the obtained road quality indication and the determined average road quality indicia; and, generating, by the electronic circuit, a calibration factor for the geographic location based on the difference between the obtained road quality indication and the determined average road quality indicia.



Contemplate also -- US 7,899,616 -- assigned to Intelligent Technologies International, Inc. (Denville, NJ) with first claim


A method for monitoring operation of vehicles, comprising: obtaining a database including data about roadways that a vehicle can travel on, the data including locations of edges of the roadways; installing the database onboard the vehicle; identifying a roadway on which the vehicle is approaching; displaying a map of the roadway that a vehicle is approaching showing a shape of the roadway, edges of the roadway, and travel lanes on the roadway; determining a defined corridor of travel for the vehicle on the roadway that the vehicle is approaching; determining a location of the vehicle with location determining equipment located onboard the vehicle; displaying an indication of the location of the vehicle in association with the map of the roadway that the vehicle is approaching; obtaining traffic control information concerning the vehicle's impending use of the roadway that the vehicle is approaching; determining a travel condition of the vehicle in consideration of the defined corridor of travel for the vehicle; determining that the traveling condition of the vehicle is unsafe for the roadway that the vehicle is approaching in consideration of the obtained traffic control information; and activating an alarm to notify an operator of the vehicle that the vehicle's traveling condition is unsafe for the roadway that the vehicle is approaching.



and US 7,840,342 also to Intelligent Technologies International, Inc. (Denville, NJ) with first claim



A method for monitoring the condition of travel lanes on which vehicles travel, comprising: obtaining a database including data about roadways that a vehicle can travel on, the data including locations of edges of the roadways; installing the database onboard the vehicle; identifying a roadway on which the vehicle is traveling or approaching; displaying a map of a roadway that a vehicle is approaching showing a shape of the roadway, edges of the roadway, and travel lanes on the roadway; determining a corridor of travel assigned to the vehicle on the roadway that the vehicle is approaching; determining a location of the vehicle with location determining equipment located onboard the vehicle; displaying an indication of the location of the vehicle in association with the map of the roadway that the vehicle is approaching; obtaining traffic control information concerning the vehicle's impending use of the roadway that the vehicle is approaching; identifying a hazardous condition associated with the corridor of travel assigned to the vehicle; and activating an alarm to notify an operator of the vehicle of the hazardous condition.


with the specification noting:


The information may be derived from images obtained by one or more imagers arranged on the vehicle, with the images themselves optionally being transmitted to the control station. The information about the maintenance state of the travel lane may include the presence of potholes in the travel lane, the presence of objects on the travel lane, and icing of the travel lane.

Lilly prevails in SD Indiana in Alimta case

AP reported Shares of Eli Lilly rose August 26, 2015 after the drugmaker said the federal district court in SD Indiana upheld a patent protecting one of its top-selling drugs, the cancer treatment Alimta. The defendant in this Hatch-Waxman case was a subsidiary of the generic drugmaker Teva Pharmaceutical Industries Ltd.


link: http://www.washingtontimes.com/news/2015/aug/26/federal-court-backs-patent-protecting-eli-lilly-ca/

From DocketReport -->



Following a second bench trial, the court found that the defendant drug manufacturers induced infringement of plaintiff's chemotherapy drug patent because all steps of the claimed methods could be attributed to physicians. "[T]he factual circumstances are sufficiently analogous to those in [Akamai Technologies, Inc. v. Limelight Networks, Inc., No. 2009-1372, 2015 WL 4760450 (Fed. Cir. Aug. 13, 2015) (en banc) (per curiam)] to support a finding of direct infringement by physicians under § 271(a), and thus inducement of infringement by Defendants under § 271(b). . . . Although the parties present extensive arguments as to whether [the physician's instructions] constitutes the physician 'administering' the folic acid, whether or not this satisfies the definition of 'administer' is not relevant. What is relevant is whether the physician sufficiently directs or controls the acts of the patients in such a manner as to condition participation in an activity or receipt of a benefit—in this case, treatment with pemetrexed in the manner that reduces toxicities—upon the performance of a step of the patented method and establishes the manner and timing of the performance. Defendants argue that there is no way of knowing whether the patient will or will not actually take the folic acid, thus the physician lacks 'control or direction' over this step of the patented process. . . . The Court cannot base a finding of non-infringement upon the mere possibility that some patients might not follow their physician’s instructions and instead must look to the ANDA Products’ labeling to determine, if all the patented steps are followed, whether it would infringe the Asserted Claims."
Eli Lilly and Company v. Teva Parenteral Medicines, Inc., et al, 1-10-cv-01376 (INSD August 25, 2015, Order) (Pratt, J.)

USPTO flexing its muscles as to changes in IPR proceedings?

A Washington Post story suggests the USPTO wants to control "how" the IPR process
might be changed:



The USPTO's latest data show that the IPR process is tremendously successful at getting patents invalidated: Of all patent claims to be challenged so far under IPR, nearly a quarter have been ruled unpatentable by the patent office. What you make of this figure depends on whose interests you represent: The manufacturing, biotech and pharmaceutical industries find it alarmingly high and a potential risk to future technological advances. By contrast, many in Silicon Valley view it as evidence that the patent office approved way too many "bad" patents in the past that should never have made it out the door. And now, these patent claims are being swept off the table, reducing ammunition for patent trolls.

In a blog post proposing changes to the IPR process, the USPTO last week said its review decisions have been upheld by a federal appeals court at "a very high rate" — suggesting that they've made the right calls in each IPR case.

Biotech and pharmaceutical patents also account for a tiny share — about 9 percent — of all the petitions made under IPR and similar mechanisms. The vast majority are in the "electrical/computer technology" sector, about 63 percent.

"We recognize that, while we believe the proceedings are working well, there are improvements that could be made based on our and the public’s experiences with the proceedings," USPTO Director Michelle Lee wrote in a blog post last week.

The proposed changes give patent holders some new benefits (such as the ability to respond to a request for review with their own evidence arguing against an investigation).

On Tuesday, the USPTO also announced a request for public comments on a proposal to switch up how IPR proceedings are initiated. The current system has a three-judge panel at the agency decide whether to start a review, then uses the same judges to conduct it. Under the proposed change, only one judge would be responsible for launching the process. That judge would then be joined by two fresh judges who weren't involved in the initial decision.

These changes, if approved, could alter how the IPR process works. But more importantly, some tech industry officials say, it sends the message that the USPTO is capable of making decisions to improve the IPR process on its own, and that it doesn't need Congress to write new rules laying out how IPR should work.




link: https://www.washingtonpost.com/news/the-switch/wp/2015/08/25/shorter-patent-office-to-congress-dont-touch-the-patent-appeals-system/


**To understand the high rate of affirmance by the CAFC of PTAB decisions, one should note the standards of review.
The Finnegan website notes:



the Federal Circuit applies the deferential "substantial evidence" test to the PTAB's anticipation and written-description determinations, which are both questions of fact. In contrast, the Federal Circuit reviews questions of law—including enablement, obviousness, indefiniteness, and patentable subject matter—under a de novo standard, without deference. At the same time, the PTAB's underlying factual findings with respect to obviousness and enablement are reviewed under the more deferential "substantial evidence" standard.



link: http://www.finnegan.com/resources/articles/articlesdetail.aspx?news=6d481cea-b457-43af-a5c3-3d7a69e14679

Evidence is substantial “if a reasonable mind might accept it as adequate to support the finding.” The reviewing court might not agree with the determination, but will affirm it if there is substantial evidence. Further, as to error by PTAB, the appellant must show the error was harmful: “appellant must not only show
the existence of error, but also show that the error was
in fact harmful because it affected the decision
below.”

A petitioner may not appeal a decision not to institute an IPR proceeding (as happened in the Kyle Bass/Acorda matter over patent claims to the MS drug Ampyra). See In re Dominion Dealer Solutions, LLC., 2014 WL 1673823, *1 (Fed. Cir. Apr. 24, 2014).

link: http://www.ipo.org/wp-content/uploads/2014/07/CAFC_Rev_of_PTAB.pdf

The PTAB denial of the Bass IPR petitions on Acorda's Ampyra patents: not quite as being reported in the popular press

Further to an earlier IPBiz post, there has been discussion of PTAB's denial of Kyle Bass's petition on Acorda's Ampyra.

The reason for denial by PTAB turned on the issue of whether or not two poster presentations (that of Goodman and that of Hayes ) were printed publications suitable for mounting an IPR challenge.

These two references were mentioned in an Information Disclosure Statement (IDS) by the patentee. So the Bass team did not identify any new "smoking guns" but rather used information they obtained from the patentee's IDS.

PTAB quickly disposed of any idea that the patentee "admitted" Goodman and Hayes were prior art:


Petitioner asserts that the Goodman poster “constitutes prior art under
35 U.S.C. § 102(b) because it was published at least as early as September
18–21, 2002 (a fact admitted by the ’685 patent applicants in an October 1,
2012 IDS, see Ex. 1043, at Reference No. C416).” Pet. 18. Petitioner also
contends that the Hayes poster “constitutes prior art under 35 U.S.C.
§ 102(b) because it was published on Sept. 30–October 3, 2001, more than
one year prior to December 11, 2003 (a fact admitted by the ’685 patent
applicants in an October 31, 2011 IDS, see Ex. 1033, at Reference No.
C148).” Id. at 19. Exhibits 1043 and 1033 present portions of Information
Disclosure Statements (“IDSs”) for Application No. 13/187,158 (“the ’158
application”), which issued as the ’685 patent.

Patent Owner acknowledges that relevant IDSs submitted during
prosecution of the ’158 application state that the Goodman and Hayes
posters “were ‘presented.’” Prelim. Resp. 11–12 (citing Ex. 2033, 3,
“C416”; Ex. 2031, 12, “C148”). Patent Owner contends, however, that
“even if Petitioner claims that the posters were displayed at meetings, this
does not establish that the posters are printed publications” that qualify as
prior art under § 102. Id. at 12 (citing In re Klopfenstein, 380 F.3d 1345,
1349 n.4 (Fed. Cir. 2004)). We agree.

First, the submission of an IDS does not constitute an admission that a
cited reference is material prior art. ResQNet.com, Inc. v. Lansa, Inc., 594
F.3d 860, 866 (Fed. Cir. 2010); Abbott Labs. v. Baxter Pharm. Prods., Inc.,
334 F.3d 1274, 1279 (Fed. Cir. 2003)); see also 37 C.F.R. § 1.97(h) (stating
that the filing of an IDS “shall not be construed to be an admission that the
information cited in the statement is, or is considered to be, material to
patentability as defined in § 1.56(b)”). Moreover, in this case, the relevant
IDSs themselves state expressly that “[i]dentification of the listed references
is not meant to be construed as an admission of Applicants or Attorneys for
Applicants that such references are available as ‘prior art’ against the subject
application.” Prelim. Resp. 19 (quoting Ex. 2031, 2; Ex. 2033, 1).



The second point raised by PTAB was whether or not the two posters were printed
publications, which could be reviewed by PTAB in an IPR proceeding. PTAB did not
determine whether they were, or were not, printed publications but rather that petitioner Bass had not
presented evidence that they were. Thus, in theory, these Ampyra patents are still
subject to attack based upon Goodman and Hayes (tho may be not by Bass).

PTAB wrote:


Second, as also noted by Patent Owner, a “determination of whether a
reference is a ‘printed publication’ under 35 U.S.C. § 102(b) involves a case-by-case
inquiry into the facts and circumstances surrounding the reference’s
disclosure to members of the public.” Klopfenstein, 380 F.3d at 1350;
Prelim. Resp. 12–18. Several factors “aid in resolving whether or not a
temporarily displayed reference that was neither distributed nor indexed was
nonetheless made sufficiently publicly accessible to count as a ‘printed
publication’ under § 102(b).” Klopfenstein, 380 F.3d at 1350. Because
Petitioner does not indicate that the Goodman and Hayes posters were
distributed (rather than presented) or indexed, we consider those factors
now, which include: “[1] the length of time the display was exhibited, [2]
the expertise of the target audience, [3] the existence (or lack thereof) of
reasonable expectations that the material displayed would not be copied, and
[4] the simplicity or ease with which the material displayed could have been
copied.” Id.
The “duration of the display is important in determining the
opportunity of the public in capturing, processing and retaining the
information conveyed by the reference.” Id. Along those lines, “[t]he more
transient the display, the less likely it is to be considered a ‘printed
publication.’” Id. at 1350–51. Here, we agree with Patent Owner that
Petitioner presents insufficient evidence as to how long the Goodman or
Hayes poster was presented at any scientific meeting. Prelim. Resp. 13–14.
The only credible evidence of record indicating that the posters were
presented at all is in the form of IDSs stating that the posters were
“presented.”

Similarly, Petitioner presents insufficient evidence in relation to “the
expertise of the target audience,” i.e., anyone who actually saw either poster.
Id. at 14–15. Petitioner likewise presents insufficient evidence in relation to
any reasonable expectation that one could have copied the poster material, or
evidence regarding the ease with which the poster material could have been
copied. Id. at 15–16. Overall, evidence of record fails to demonstrate that
the posters nonetheless were made sufficiently publicly accessible. For
example, evidence of record does not indicate adequately how long the
posters were presented to anyone, or to whom exactly, or what conversations
anyone might have had with authors about the posters.

In addition, our review of the posters themselves indicates that they
both present relatively dense material in a small space. Ex. 1008, 2;
Ex. 1009, 1. As stated by the Federal Circuit, the “more complex a display,
the more difficult it will be for members of the public to effectively capture
its information.” Klopfenstein, 380 F.3d at 1351.



The bottom line:


We are not persuaded that Petitioner has made a threshold showing
that the posters were sufficiently publicly accessible to qualify as a “printed
publication” under § 102(b). Petitioner has not demonstrated adequately that
the Goodman poster (relied upon in all grounds) or the Hayes poster, as
presented in the Petition, constitute prior art to the ’685 patent.



The Klopfenstein case involved posters, and it is worthwhile to view
"how" the MPEP views the issue:


MPEP 2128.01 Level of Public Accessibility Required

(...)

IV. PUBLICLY DISPLAYED DOCUMENTS CAN CONSTITUTE A “PRINTED PUBLICATION” EVEN IF THE DURATION OF DISPLAY IS FOR ONLY A FEW DAYS AND THE DOCUMENTS ARE NOT DISSEMINATED BY COPIES OR INDEXED IN A LIBRARY OR DATABASE

A publicly displayed document where persons of ordinary skill in the art could see it and are not precluded from copying it can constitute a “printed publication,” even if it is not disseminated by the distribution of reproductions or copies and/or indexed in a library or database. As stated in In re Klopfenstein, 380 F.3d 1345, 1348, 72 USPQ2d 1117, 1119 (Fed. Cir. 2004), “the key inquiry is whether or not a reference has been made ‘publicly accessible.’” Prior to the critical date, a fourteen-slide presentation disclosing the invention was printed and pasted onto poster boards. The printed slide presentation was displayed with no confidentiality restrictions for approximately three cumulative days at two different industry events. Id. at 1347, 72 USPQ2d at 1118. The court noted that “an entirely oral presentation that includes neither slides nor copies of the presentation is a ‘printed publication’ for the purposes of [pre-AIA] 35 U.S.C. § 102(b). However, an oral presentation at a scientific meeting or a demonstration at a trade show may be prior art under 35 U.S.C. 102(a)(1)’s provision: “otherwise available to the public.” See MPEP § 2152.02(e). Furthermore, a presentation that includes a transient display of slides is likewise not necessarily a ‘printed publication.’” Id. at 1349 n.4, 72 USPQ2d at 1122 n.4. In resolving whether or not a temporarily displayed reference that was neither distributed nor indexed was nonetheless made sufficiently publicly accessible to count as a “printed publication” under pre-AIA 35 U.S.C. 102(b), the court considered the following factors: “the length of time the display was exhibited, the expertise of the target audience, the existence (or lack thereof) of reasonable expectations that the material displayed would not be copied, and the simplicity or ease with which the material displayed could have been copied.” Id. at 1350, 72 USPQ2d at 1120. Upon reviewing the above factors, the court concluded that the display “was sufficiently publicly accessible to count as a ‘printed publication.’” Id. at 1352, 72 USPQ2d at 1121.

(...)

II. ORALLY PRESENTED PAPER CAN CONSTITUTE A “PRINTED PUBLICATION” IF WRITTEN COPIES ARE AVAILABLE WITHOUT RESTRICTION
A paper which is orally presented in a forum open to all interested persons constitutes a “printed publication” if written copies are disseminated without restriction. Massachusetts Institute of Technology v. AB Fortia, 774 F.2d 1104, 1109, 227 USPQ 428, 432 (Fed. Cir. 1985) (Paper orally presented to between 50 and 500 persons at a scientific meeting open to all persons interested in the subject matter, with written copies distributed without restriction to all who requested, is a printed publication. Six persons requested and obtained copies.). An oral presentation at a scientific meeting or a demonstration at a trade show may be prior art under 35 U.S.C. 102(a)(1)’s provision: “otherwise available to the public.” See MPEP § 2152.02(e).



**As to Klopfenstein, the PTAB text


In addition, our review of the posters themselves indicates that they
both present relatively dense material in a small space. Ex. 1008, 2;
Ex. 1009, 1. As stated by the Federal Circuit, the “more complex a display,
the more difficult it will be for members of the public to effectively capture
its information.” Klopfenstein, 380 F.3d at 1351.



is a bit of a stretch, because Klopfenstain was considering ease of copying.

From Klopfenstein:


Finally, the ease or simplicity with which a display could be copied gives further guidance to our § 102(b) inquiry. The more complex a display, the more difficult it will be for members of the public to effectively capture its information. The simpler a display is, the more likely members of the public could learn it by rote or take notes adequate enough for later reproduction. The Liu reference was made up of 14 separate slides. One slide was a title slide; one was an acknowledgement slide; and four others represented graphs and charts of experiment results. The other eight slides contained information presented in bullet point format, with no more than three bullet points to a slide. Further, no bullet point was longer than two concise sentences. Finally, as noted earlier, the fact that extrusion lowers cholesterol levels was already known by those who worked with SCF. The discovery disclosed in the Liu reference was that double extrusion increases this effect. As a result, most of the eight substantive slides only recited what had already been known in the field, and only a few slides presented would have needed to have been copied by an observer to capture the novel information presented by the slides.



There is no appeal from a denial of petition. Here, the denial of the petition was based on a failure of evidence that the documents were printed publications. There was no determination whether the posters were or were not "printed publications," and
no determination that if they were printed publications, whether there was a reasonable likelihood that petitioner could have prevailed on at least one claim.


Relevant links:

Paper 15 in IPR2015-00720 related to US 8,663,685, entered August 24, 2015

MPEP 2128 “Printed Publications” as Prior Art

In re Klopfenstein, 380 F.3d 1345 in which the CAFC concluded


Upon reviewing the above factors, it becomes clear that the Liu reference was sufficiently publicly accessible to count as a "printed publication" for the purposes of 35 U.S.C. § 102(b). The reference itself was shown for an extended period of time to members of the public having ordinary skill in the art of the invention behind the '950 patent application. Those members of the public were not precluded from taking notes or even photographs of the reference. And the reference itself was presented in such a way that copying of the information it contained would have been a relatively simple undertaking for those to whom it was exposed — particularly given the amount of time they had to copy the information and the lack of any restrictions on their copying of the information. For these reasons, we conclude that the Liu reference was made sufficiently publicly accessible to count as a "printed publication" under § 102(b).



Reuters: Hedge fund manager Kyle Bass loses challenges to pharma patents which includes text


On Monday, the patent office disagreed with Bass that the Ampyra patents were not new or were obvious when compared with previously known ones, and therefore should never have been granted in the first place.

The decision means the patents will not be further scrutinized, which could have led to cancellation.



which, as noted above, is an inaccurate report by Reuters.

**The Wall Street Journal noted:


Use of IPR challenges against drug patents has raised concerns in the pharmaceutical industry, which has lobbied Congress for changes to the IPR process. The patent board’s ruling Monday against Mr. Bass, however, may signal that challenging pharmaceutical patents through IPR won’t be as easy as some industry officials have feared, said Gerald Flattmann, lead outside counsel for Acorda in its IPR proceedings with Mr. Bass.



But, Acorda was saved only by a failure of evidence by Bass, not by a substantive ruling on validity. The pharma industry is right to worry about IPRs.


**As one small footnote, Ampyra is not a disease-modifying treatment for MS, in contrast to Copaxone or Tecfidera.

The IPR petitions of Kyle Bass on Acorda/Ampyra denied by PTAB

Susan Decker of Bloomberg wrote of Kyle Bass's loss at PTAB on Acorda/Ampyra:


The U.S. Patent and Trademark Office said Monday the hedge-fund manager hadn’t come up with enough evidence to challenge two Acorda Therapeutics Inc. patents for the multiple sclerosis drug Ampyra. The information he was using wasn’t publicly available so couldn’t be used to invalidate the patents, the patent board decided. The decision to reject the petition cannot be appealed.

(...)

Bass relied on information that had been presented at scientific meetings, but the board said there wasn’t enough evidence that the information was publicly available. The three-judge panel had total discretion to decide whether to institute a review, based only on the arguments presented in the two sides’ filings.

(...)

The cases are Coalition for Affordable Drugs v. Acorda Therapeutics, IPR2015-00720 and IPR2015-00817, U.S. Patent and Trademark Office (Alexandria, Virginia).



Within the initial petition, one finds the text:


Moreover, as discussed extensively below,
Dr. Pleasure testifies that “it would
have been obvious to one of ordinary skill
in the art without undue experimentation
to treat such patients for a period of at
least two weeks (or longer) with agents shown
to alleviate symptoms associated with MS. (Ex. 1013, ¶ 22.)
See also In re Applied Materials, Inc., 692 F.3d 1289, 1295 (Fed.
Cir. 2012) (“‘[W]here the general conditions
of a claim are disclosed in the prior art, it
is not inventive to discover the optimum or
workable ranges by routine experimentation.’”) (quoting
In re Aller, 220 F.2d 454, 456 (CCPA 1955)). It would have
been obvious to a POSA to extend the dosing regimen,
for chronic diseases like MS, from a time period of 1 week
to two weeks or more. (Ex. 1013 ¶ 41.) In fact, administering at least
2 weeks of 10 mg 4-AP BID to a person
with MS in need of improved walking is not
just one of a long list of things a POSA
would have been motivated to do in view of the prior art—it is the
first thing a POSA was motivated to do: i.e., select the lowest
known efficacious dose (10 mg BID) for
use over an extended treatment peri
od (measured in weeks not days).



**See also: http://www.patentdocs.org/2015/08/ptab-denies-inter-partes-review-petitions-against-two-acorda-patents.html, which includes the text:


One of the statistics gleaned from Director Michelle Lee's recent blog on the post-issuance review provisions of the America Invents Act is that only 42% of inter partes review petitions have been granted over the past three years. There is no statistic in the Director's link to a more detailed description of the data regarding the correlation between petitions being denied and the patentee exercising its right to challenge the petition by filing a Preliminary Response (see "Patent Trial and Appeal Board Statistics," July 31, 2015). But logic suggests that the Board might be less likely to grant a petition if the patentee gave them reasons not to do so.

CAFC affirms PTAB in covered business method case of Progressive v. Liberty; Liberty Mutual loses

The CAFC affirmed the PTAB on its decisions on covered business methods:


For the foregoing reasons, the judgments of the Board
are affirmed.



Of details:


Liberty Mutual Insurance Company initiated seven
overlapping proceedings against Progressive Casualty
Insurance Company in the Patent and Trademark Office,
challenging many claims of several of Progressive’s insurance-related
patents under the statutory program for
review of “covered business method” patents. See GTNX,
Inc. v. INTTRA, Inc., 789 F.3d 1309, 1310 (Fed. Cir. 2015)
(describing transitional program for review of such patents
under 35 U.S.C. §§ 321–329, pursuant to the LeahySmith
America Invents Act, Pub. L. No. 112–29,
§ 18(a)(1), 125 Stat. 284, 329–31 (2011)). We now have
before us Progressive’s appeals from the Patent Trial and
Appeal Board’s final written decisions that many claims
are invalid over prior art. See 35 U.S.C. §§ 328, 329. We
affirm. We need not address Liberty’s cross-appeal in one
proceeding, because that cross-appeal concerns claims
held invalid in another proceeding whose result we affirm.



link: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1466.Opinion.8-20-2015.1.PDF

Lobbying for ED Texas?

The ED Texas Bar Association has hired a lobbyist, Gaylord Hughey.

See post on TheHill Texas lawyers lobby up in patent fight

From a different post (from March 2015 in the Texas Tribune):



WASHINGTON – Former Florida Gov. Jeb Bush now has a serious GOP fundraiser in East Texas backing his early presidential efforts.

Oil and gas attorney Gaylord Hughey Jr., the top GOP bundler of East Texas, said in a Thursday interview with The Texas Tribune that he will round up Piney Woods money for Bush.

“I think he’s pragmatic. I think he’s thought a lot about his positions,” Hughey said in a phone interview. “I don’t think he will change his public policy positions to pander to folks, and I think that authenticity will come through in his campaign."

"And I think it will make him successful,” he added.

On Sunday, the Tribune named Hughey as one of the most sought-after Republican bundlers in the Lone Star State.


link: http://www.texastribune.org/2015/03/05/jeb-bush-picks-major-east-texas-fundraiser/

Spear Marketing, Inc. v. BancorpSouth Bank: federal copyright law pre-empting state law claims

See NatLawRev post Fifth Circuit Upholds Copyright Preemption of Trade Secret-Related Claims

Pennsylvania Department of Revenue loses on its "trade secret" argument against "right to know" request

From PennLive


A Commonwealth Court panel ruled Friday that the state Department of Revenue can't claim it is protecting trade secrets in opposing a Right to Know Law request to provide information on Lottery ticket sales.

The state judges made that call in upholding an Office of Open Records ruling ordering the department to provide information Derrick Flemming sought regarding the Lottery's administration.

The Chicago, Ill., man requested data on all Lottery retail agents and purchased and winning tickets for the games from January 1, 2012 to the present.



The agency's trade secrets argument gained no traction with the judge, either. For one thing, he noted that the department didn't really identify competitors who could exploit the Lottery info. Also, Simpson observed that the data Fleming sought is provided by the department to vendors and so "is known outside of the department when it suits the Lottery's purposes."



link: http://www.pennlive.com/midstate/index.ssf/2015/08/pa_lottery_ticket_sale_info_is.html

“The inherent result of an obvious process” ?

Bloomberg reports on an unfavorable result for Takeda's drug Velcade .

Link: http://www.bloomberg.com/news/articles/2015-08-20/takeda-velcade-patent-overturned-in-win-for-generic-drug-makers

Recall the Federal Circuit has stated:



A party must … meet a high standard in order to rely on inherency to establish the existence of a claim limitation in the prior art in an obviousness analysis—the limitation at issue necessarily must be present, or the natural result of the combination of elements explicitly disclosed by the prior art.



[ Par Pharmaceutical Inc. v. Twi Pharmaceuticals, Inc.]

Also, from a 2012 IPBiz post


Appellants are also correct that employment of inherency is incorrect in a § 103 analysis when it is not known in the art that the inherent part is in fact inherent. Newell, 891 F.2d at 899 quoting In re Spormann, 363 F.2d 444 (C.C.P.A. 1966), (“That which may be inherent is not necessarily known. Obviousness cannot be predicated on what is unknown.”).



link: http://ipbiz.blogspot.com/2012/12/inherency-in-obviousness-rejection.html

Also, from the 2015 IPBiz post titled
Challenges to Allergan patents fail at the CAFC


The unexpected properties of
the claimed formulation, even if inherent in that formulation,
differ in kind from the prior art, thereby supporting
a conclusion of nonobviousness. See W.L. Gore & Assocs.,
Inc. v. Garlock, Inc., 721 F.2d 1540, 1555 (Fed. Cir. 1983)
(“Inherency and obviousness are distinct concepts.”); In re
Spormann, 363 F.2d 444, 448 (CCPA 1966) (“That which
may be inherent is not necessarily known. Obviousness
cannot be predicated on what is unknown.”).

Bass on pharma IPRs: individual self-interest, properly directed, benefits society writ large.

See post on PatentlyO titled Kyle Bass’s Response to Motions about Abuse of IPR in IPR2015-01092 . Onw notes that IPR2015-01092 concerns Celgene's US Patent 6,045,501.

Separately, see the Bloomberg piece Will Kyle Bass’s Drug Patent Gambit Pay Off? He’ll Soon Find Out .
This article concerns Bass's challenge to a patent related to the drug Ampyra of the company Acorda (US Patent No. 8,663,685 ; IPR2015-00720 ):


The U.S. Patent and Trademark Office is expected to say by Wednesday whether there’s merit in the first of Bass’s 20 drug-patent challenges, this one targeting Acorda Therapeutics Inc.’s multiple sclerosis drug Ampyra. The agency will institute a formal review if it thinks Bass has a chance of winning.


See also: https://www.docketalarm.com/cases/PTAB/IPR2015-00720/Inter_Partes_Review_of_U.S._Pat._8663685/02-10-2015-PET-3366/Petition-1-Petition_for_Inter_Partes_Review_of_US_Patent_No_8%2C663%2C685/

See also: http://www.pharmapatentsblog.com/2015/05/05/keeping-up-with-kyle-bass/

Is self-plagiarism all right?

In the TimesHigherEd post News blog: How big a sin is Zygmunt Bauman's alleged self-plagiarism?, one has text


Scientists have the same problem when writing successive papers that all rely on similar methods. The temptation to cut and paste their previous renderings of the processes involved is very strong, especially when the authors are not native speakers, and rephrasing would involve an onerous and sometimes disastrous use of the thesaurus. (I am reminded of Jack Grove’s 2014 article highlighting such “Rogetisms” as the conversion of “left behind” into “sinister buttocks”).

But while recycling the odd previously written self-written sentence or even paragraph may be forgivable, republishing in a new venue an entire paper you have previously published elsewhere (perhaps with just the title changed) is clearly unacceptable. Quite apart from the legal issues over copyright and the clutter and confusion it inflicts on the literature, this practice – which is surprisingly common – also gives unfair credit to the self-plagiarisers by making it look like they have made more scholarly breakthroughs than they really have. In the case of medical papers, it can also make it look like there is more evidence for the efficacy of a particular treatment than there really is.



As to the Bauman matter:



What Zygmunt Bauman is accused of doing falls between these extremes. There is a sense in which it is hardly a surprise that he apparently recycled significant chunks of his previous works in his later ones, given that he has published a book every six months for the past 25 years. That output is all the more remarkable given that he will be 90 in November, and he might argue (although we can only speculate, as he chose to remain silent) that having spent a lifetime in thought, it makes perfect sense for him to bring together all the fruits of that effort in his later years. And why Rogetise it all when he has already phrased it perfectly well before?

But the objection is not to his doing this. The objection is to the fact that he apparently does so without explicitly acknowledging the fact. And while no publication ethics crusader would put self-plagiarism at the top of their list of sins, it is also hard to argue with the view that it is something of a deception on his readers and ought to be avoided.

Queasiness about Bauman’s approach is only heightened by the fact that he also allegedly committed straightforward plagiarism in one of his most recent books, and that one of his unacknowledged sources was Wikipedia. Part of his response to that allegation ran as follows:

“While admiring the pedantry of the authors of the Harvard Guide to Using Sources, and acknowledging their gallant defence of the private ownership of knowledge, I failed in those 60 odd years to spot the influence of the obedience to technical procedural rules of quotations on the quality (reliability, effectiveness and above all social importance) of scholarship: the two issues which [Walsh] obviously confuses. As his co-worker in the service of knowledge, I can only pity him for that reason.”



As to science papers describing "similar methods," one would just cite the prior paper(s), noting any divergences. No need for repetition.

Also, in the patent world, think Jepson claim.

***Evans and Giroux have a piece on self-plagiarism:

http://www.counterpunch.org/2015/08/27/self-plagiarism-and-the-politics-of-character-assassination-the-case-of-zygmunt-bauman/

Self-plagiarism can have victims. One example is the situation of a law firm preparing an opinion on a patent for one client and then selling that opinion to a second client at full price. The Wendler affair is another example of self-plagiarism with a victim.

Gilbert Hyatt loses at CAFC; ED Va affirmed

From Hyatt v. Lee, a CAFC decision by Judge Moore:



Gilbert P. Hyatt appeals from the district court’s decision
that it lacked subject matter jurisdiction over his
Administrative Procedure Act (“APA”) claims against the
Patent and Trademark Office (“PTO”) and its acting
Director under 5 U.S.C. § 701(a)(2) and, alternatively,
that the PTO would have been entitled to summary
judgment for these claims. For the reasons discussed
below, we affirm the district court’s alternative holding
that the PTO would have been entitled to summary
judgment.


The issue


Mr. Hyatt argues that the PTO’s publication of the
Requirements would violate § 122(a), because it would
result in the disclosure of confidential information about
his non-public pending applications. The PTO argues
that § 122(a), which allows the Director to disclose information
concerning pending patent applications where
“necessary to carry out the provisions of an Act of Congress
or in such special circumstances as may be determined
by the Director,” commits to the Director’s
discretion the authority to determine whether “special
circumstances” exist. The PTO asserts that agency determinations
of this type lie outside of the scope of the
APA. Alternatively, it argues that the Director correctly
determined that “special circumstances” exist and that
the disclosure of the Requirements is necessary to carry
out the provisions of an Act of Congress.



Bowen and Overton Park are cited:


There is a “strong presumption” favoring judicial review
of agency actions. Bowen v. Mich. Acad. of Family
Physicians, 476 U.S. 667, 670 (1986). However, this
presumption can be rebutted if “a statute’s language or
structure demonstrates that Congress wanted [the] agency
to police its own conduct.” Mach Mining, LLC v.
E.E.O.C., 135 S. Ct. 1645, 1651 (2015) (citing Block v.
Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984)). For
example, § 701(a)(2) of the APA precludes judicial review
where “agency action is committed to agency discretion by
law.” 5 U.S.C. § 701(a)(2). This “very narrow exception”
to the presumption of judicial review is applicable only “in
those rare instances where ‘statutes are drawn in such
broad terms that in a given case there is no law to apply.’”
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402,
410 (1971) (quoting S. Rep. No. 79-752, at 26 (1945)).



One argument by the USPTO did not fly:


Finally, like the statute at issue in
Webster, granting the FAA broad discretion to revoke an
aircraft inspector’s designation promotes the safety of the
public; there is no similar public safety interest at play
here.

Were we to accept the PTO’s argument, the PTO could
shield virtually any disclosure from judicial review, so
long as the PTO claimed there were “special circumstances.”
Indeed, the PTO conceded at oral argument that if
§ 122(a) was unreviewable the PTO could disclose essentially
any information about any patent application, with
no review and no recourse, so long as there was no constitutional
violation. See Oral Argument at 30:30–37,
34:40–57, available at http://oralarguments.cafc.
uscourts.gov/default.aspx?fl=2014-1596.mp3. “We need
not doubt the [PTO’s] trustworthiness, or its fidelity to
law, to shy away from that result. We need only know—
and know that Congress knows—that legal lapses and
violations occur, and especially so when they have no
consequence.” Mach Mining, 135 S. Ct. at 1652–53.
Congress did not intend for the exception to swallow the
rule.



The CAFC split the baby on "scope of review":


Having found the PTO’s “special circumstances” determination
reviewable, we must next consider the scope
of that review. Unsurprisingly, the PTO and Mr. Hyatt
dispute the extent of our review. At oral argument, the
PTO relied on Mach Mining to argue that our review
should be limited to the bare minimum required by
§ 122(a)—“that the Director has, for example, not decreed
that all patents are special circumstances, but has identified
a discrete subset,” without any consideration of the
merits of the Director’s determination. Oral Argument at
33:53–34:03. Mr. Hyatt disagrees, arguing instead that
the PTO must show that “disclosure is necessary to serve
an important statutory or public interest.” Appellant’s
Br. 33. We hold that the proper scope of review lies
somewhere between these two extremes. The PTO must
not only determine that special circumstances exist, but
also that the special circumstances justify the specific
content to be disclosed. We review this determination for
abuse of discretion



End result

We hold that the Director did not abuse
her discretion when she found that the “special circumstances”
exception justified the otherwise-prohibited
disclosure of the Requirements. Because we hold that
§ 122(a)’s “special circumstances” exception permits the
PTO to disclose certain Requirements, we need not consider
whether the disclosure of the Requirements is
“necessary to carry out the provisions of an Act of Congress.”

link: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1596.Opinion.8-18-2015.1.PDF

More copying allegations in Matthew Whitaker affair in Arizona

"Re-purposing" of previously written material, without citation, has stirred controversy, for example in the Slavoj Zizek and Wendler/SIU affairs. See New York Times on self-plagiarism . Now it has arisen in the Matthew Whitaker matter.

Note the text from KPHO:


Phoenix City Councilman Sal DiCiccio wants a consultant to pay back the city $21,800, for monies paid to develop a course to teach police officers cultural awareness. DiCicco said Dr. Matthew Whitaker does not deserve the money he was paid after billing the city 66 hours of preparation work because the material was copied from a course already developed by the Chicago Police Department.

"Professor Whitaker charged the city for training materials that were largely copied from the Chicago Police Department," DiCiccio said. "He ultimately was paid more than $21,000 in taxpayer money for work that he didn't do, and he needs to pay it all back."

The councilman’s slide-by-slide analysis of the PowerPoint presentation Whitaker created for the Phoenix Police Department shows that of the 84 slides, 52 were exact copies or slides with only minor changes from the presentation compiled for the Chicago police course.

“The City of Phoenix paid him $21,000 to basically copy somebody else’s work," DiCiccio said. "Then he then went on to want to copyright it to make sure that no one copied it."

On the bottom of each slide Whitaker created, there was a copyright symbol followed by The Whitaker Group, L.L.C.

DiCiccio called on city management to pursue a refund from The Whitaker Group.



Link: http://www.kpho.com/story/29829167/more-plagiarism-accusations-against-asu-professor#ixzz3jJKM5Vc4

Re-purposing also arises in the patent law area, wherein a law firm may sell an opinion on a given patent to more than one client.

Has the internet promoted plagiarism? The answer may depend on "what kind of" texts are being investigated.

TimesHigherEducation discusses findings by David Ison, assistant professor of aeronautics at Embry-Riddle Aeronautical University in Florida:


When a randomly selected 184 doctoral dissertations written before 1994 were compared with 184 written after 2010, about half of each group contained some sort of unattributed material, according to a paper published in the Journal for Academic Ethics.



link: Internet’s role in rise in student plagiarism exaggerated, study suggests

One might expect that doctoral dissertations would be citing primary sources (e.g., published articles) more than links to internet sites. In the science sector, many technical articles simply are not available on the internet (contemplate journals of the American Chemical Society). Thus, one might question Ison's choice of doctoral dissertations to demonstrate whether or not the internet has promoted plagiarism. High school papers or graduation speeches might be more revealing. They are more numerous than doctoral dissertations and more likely to have text copied from the internet.

**Separately, the things identified as plagiarism in doctoral dissertations frequently come from literature reviews, rather than from the "novel" parts of the thesis. This was at issue in the Poshard / SIU matter.

From a previous IPBiz post in the year 2008:


Commenter Geoffrey Nathan at chronicle.com wrote:

It’s amazing how misinformation gets repeated, like a meme. The President of Southern Illinois University (not just Edwardsville) was essentially exonerated—it turned out that the literature review section of his dissertation was not adequately marked with respect to where quoted material began and ended (even though the sources were named). This isn’t exactly ‘large quantities’, but the level of internecine politics at SIU are such that it gave great delight to some of the administration’s enemies to entertain such exaggerations.
http://news.siu.edu/PoshardDissertationReviewfinal.pdf

Geoffrey Nathan fails to mention that Poshard's SUMMARY of the literature was copied from a book, which book itself summarized literature PRIOR TO the dates of relevance to Poshard's thesis. There are at least TWO things wrong with this.



link: http://ipbiz.blogspot.com/2008/01/poshards-revisions-to-plagiarized.html

Also from the IPBiz post:



To the contrary, intent—like drunk driving, running red lights, or claiming income tax exemptions to which one is not entitled—is not a consideration when defining plagiarism; the only applicable criterion is whether one has included purloined material or not. In the third, the unintentionally comical associate professor apparently believes that plagiarism doesn’t really matter as long as it appears in a Ph.D. dissertation rather than a published book.


Also note the IPBiz post
The details of charges against Poshard of SIU, including the text:


On a related note, IPBiz believes that charges of lack of novelty, as made by Loring against Thomson in the embryonic stem cell area, are much more serious matters than a failure to cite references in a literature review section. At the end of the day, more damage may be done to Thomson than will be done to Poshard (notwithstanding questioning statements about Poshard, as in

http://ipbiz.blogspot.com/2007/09/sun-times-runs-quotes-critical-of.html)




***Separately, Forget plagiarism: There's a new and bigger threat to academic integrity
concerning paper mills and ghost writing