Smith & Nephew largely loses appeal at CAFC related to Reciprocating rotary arthroscopic surgical instrument

Claims of a Smith & Nephew patent were at issue in
re-examination 95/001,933. Of interest was that a later-appearing
independent claim was found to be anticipated, while an earlier claim
was merely found obvious. Smith & Nephew did prevail on an "analogous art" issue.

Claim 1:


A surgical instrument, comprising:

a cutting member including an implement for cutting tissue; and a drive coupled to the cutting member to simultaneously rotate, translate, and reciprocate the cutting member in response to only a rotational force applied to the drive in a single direction and to cut tissue during simultaneous rotation and translation of the cutting member;

wherein the drive includes a drive member attached to the cutting member, the drive member including a helical groove, and the drive includes a translation piece disposed in the groove such that rotary driving of the drive member results in simultaneous reciprocation of the drive member relative to the translation piece.



Claim 32:


A surgical instrument, comprising:

a cutting member including an implement for cutting tissue; a drive coupled to the cutting member to simultaneously rotate, translate, and reciprocate the cutting member in response to only a rotational force applied to the drive in a single direction and to cut tissue during simultaneous rotation and translation of the cutting member;

and an outer tubular member, the cutting member being received within the outer tubular member, the outer tubular member including a cutting window disposed proximate to a tip of the outer tubular member.




As to the outcome:


The Patent Trial and Appeal Board affirmed the rejection
of claims 1–16, 19–22, and 25–33 of U.S. Patent
No. 7,226,459 as anticipated or obvious in light of the
prior art.



The anticipation argument touched claims 32-33:


Therefore, we affirm the determination that Middle
anticipates claims 32 and 33.


The Middle reference was mentioned in obviousness arguments:


The Board found that Middle discloses most of the
limitations of claims 1–16, 19, and 25–31, but does not
disclose a “drive member including a helical groove.”
Middle instead discloses a cam groove “which bends
towards one end . . . , such as a continuous sine wave.”





As to obviousness


Finally, we turn to Rejections 5 and 8, in which the
Board affirmed the rejection of claims 1–2, 4–14, 19–22,
25, and 27–31 as obvious based on the combinations of
Galloway with Middle and Kaplan. Smith & Nephew
argues that Galloway is not analogous art. We agree.

Galloway is titled, “Reciprocating Apparatus and Cam
Follower for Winding a Package.” J.A. 878. “This invention
relates to the production of glass fibers, and in particular,
to winding a glass fiber strand to form packages.”
Id. at 1:21–23. Galloway discloses a reciprocating apparatus
with a helical groove. Id. at 2:19–21. The Board
found that Galloway was relevant to solving the technical
problem of converting rotational motion into simultaneous
rotational, translational, and reciprocal motions. J.A. 40.
Because Middle teaches that the shape of the cam groove
can be modified to vary the number of reciprocations per
rotation of the drive piston, the Board found that a person
of skill in the art would seek out teachings regarding
relevant cam grooves. Id. at 40–41.

To determine if a prior art reference is analogous, we
consider “(1) whether the art is from the same field of
endeavor, regardless of the problem addressed, and (2) if
the reference is not within the field of the inventor's
endeavor, whether the reference still is reasonably pertinent
to the particular problem with which the inventor is
involved.” In re Clay, 966 F.2d 656, 658 (Fed. Cir. 1992).
“A reference is reasonably pertinent if, even though it
may be in a different field from that of the inventor’s
endeavor, it is one which, because of the matter with
which it deals, logically would have commended itself to
an inventor’s attention in considering his problem.” Id. at
659.

European patent loss for Forward Pharma related to MS fumarate drug

SeekingAlpha reports a European patent decision related to the MS drug Tecfidera (relevant ingredient dimethyl fumarate):


The European Patent Office has revoked Forward Pharma A/S's EP 2801355 patent ('355 patent) following challenges from several parties. The company says its is disappointed with the decision and plans to appeal.



This may impact royalties Forward would get from Biogen. Recall



In February 2017, Biogen paid Forward $1.25B to settle their dispute over a patent covering methods of treating MS with 480 mg of DMF. Biogen also received an irrevocable co-exclusive license to Forward's IP in the U.S.


link: https://seekingalpha.com/news/3326083-forward-pharma-loses-challenge-european-patent-covering-dimethyl-fumarate-tecfidera-royalties

CBS Sunday Morning on 28 Jan 2018: maybe file-sharing isn't so bad (for artists)

In an interview with Mark Phillips, Ed Sheeran did not come out against music file sharing. Sheeran pointed out
file sharing benefited Sheeran's early career, allowing him to make a name for himself.

Also of IP interest, the use of holograms of dead performers.

There was an interesting piece on "bubbles," including science work at Boston University and Scripps.

The 50th anniversary of the Tet Offensive, including the famous clip from Walter Cronkite, was noted.

Moment of nature: Niagara Falls.

A footnote as to Sheeran; see IPBiz post

Copyright infringement case over “The Rest of Our Life”

More on the revocation of an EP patent on CRISPR of Broad

Adam Houldsworth at IAM has a post CRISPR European patent cancellation highlights procedural IP pitfalls which concludes;


Last week’s decision, then, is a stark reminder that even highly valuable patents pertaining to revolutionary technological breakthroughs – including those at the centre of landmark disputes - may be lost as the result of what are possibly mundane procedural errors. Inventions protected via the PCT are often considered to be among the most valuable that an applicant may have as they are the ones deemed worthy of widespread international protection. Given that, it pays to ensure that every possible angle is explored before submission takes place. Broad has already stated that it will be appealing the EPO’s decision, but it may want to look a bit closer to home at what went wrong, too.



While the Broad may not win its appeal, the issue is a bit more than a "mundane procedural error." The Broad, on the facts of "who invented what," may not have had a choice on the naming of inventors, in what Adam described:


In making its PCT filing in 2013 – from which its original EPO grant derived – the Broad Institute claimed priority from 12 of its earlier US applications from 2012. However, the EPO deemed that the institute had not properly obtained the right to claim priority from four of the original US filings. Contrary to European rules on priority rights, Luciano Marraffini of Rockefeller University – who was named in the earlier applications – was not cited as an inventor in the international registration. Only with those four priority claims invalidated, and additional prior art brought into consideration, was the patent found to lack novelty and revoked.



IPKat had noted:


Under US law, [the Broad] observed that it is a requirement for all the inventors that contributed to the subject matter of the invention(s) disclosed anywhere in a provisional application (whether the description, drawings or claims) are named as applicants. They further observed that to be named as an inventor on a patent application, one has to be the inventor or have derived the right from the inventor, and that under US law an inventor can only assign rights to inventions, and the right to claim priority from such inventions, to which she/he has contributed.

Therefore, it was argued, only the inventor-applicants with the right to claim priority from the subject matter of P1 and P2 to which the subsequent PCT application was directed, were listed on the PCT application. Marraffini, the Broad argued, did not have the right to the invention to which the PCT application was directed and therefore was not listed as an applicant for the PCT application.




Adam at IAM had referenced a post, including text by former CJ Michel, which had stated:


The appeal raises questions about the application of basic obviousness precedents and their attendant doctrinal standards and analytic methodologies. Because obviousness lies at the heart of nearly every patent application and litigation, both in the Patent and Trademark Office and the courts, the Federal Circuit's decision could affect all technologies, not only CRISPR, great though it surely is. Specific issues raised that concern such basic standards include:

How specific must the instructions of the prior art be in order to support a conclusion of obviousness?
What nature and level of certainty is required to establish a "reasonable expectation of success"?
How to assess" independent" and/or nearly "simultaneous" invention by others, and exactly what do these terms mean?
How to determine what sort or amount of experimentation constitutes "undue experimentation", and hence leads to a conclusion of non-obviousness?



One point not mentioned was the impact of statements by scientists on the UC/Berkeley side which were suggestive
of the non-obvious task of going to eukaryotes. "Not publishing" on difficulties could be the biggest lesson for scientists. "Just do it."

As to copying assertion against "The Shape of Water"

In the context of a story about alleged plagiarism involving "The Shape of Water," the Telegraph reported on
"what did" influence Guillermo del Toro :



Del Toro has previously said that elements of the film were inspired by a film he saw as a child, the 1954 horror movie Creature from the Black Lagoon, starring Julie Adams. "I’ve had this movie in my head since I was six, not as a story but as an idea," he told the Los Angeles Times.

"When I saw the creature swimming under Julie Adams, I thought three things: I thought, ‘Hubba-hubba.’ I thought, ‘This is the most poetic thing I’ll ever see.’ I was overwhelmed by the beauty. And the third thing I thought is, ‘I hope they end up together.’”



link: http://www.telegraph.co.uk/films/2018/01/26/oscar-favourite-shape-water-hit-plagiarism-allegations/

Wikipedia gives quotes from Julie Adams on Creature:



No matter what you do, you can act your heart out, but people will always say, "Oh, Julie Adams - Creature from the Black Lagoon (1954).".

[on Creature from the Black Lagoon (1954)] Oh, it was a real shock when we saw the Creature. And you can see from the pictures in the book that I look a little awestruck, kind of taken aback when I saw it at first. I thought it was quite wonderful, extraordinary, and a little scary which of course is exactly what it was supposed to be.

[on Creature from the Black Lagoon (1954)] I think the best thing about the picture is that we do feel for the Creature. We feel for him and his predicament and where he is and so on. I think that's a very positive thing really. I like that we feel sympathy for the Creature.



CinamaBlend has a useful discussion of how disagreements can be resolved without outlandish charges and resultant stonewalling:



It is great to hear that everyone involved just sat down for a conversation and discussed the similarities person to person instead of waging an online finger pointing war. That says a lot in this day and age. This should hopefully clear up any doubts or qualms people had about The Shape of Water and allow them to enjoy what is a truly magical film. It would have been a true shame if the cloud of possible plagiarism had hung over the head of Guillermo del Toro's passion project as the home stretch to the Oscars begins.

Plagiarism can sometimes be a serious thing in Hollywood, and no one wants to see original works -- works that people put their heart and soul into -- poached for ideas to be repackaged and sold for profit. But it seems that was not the case here. If there is one thing Guillermo del Toro is known for it is his imagination; he has enough stories and creatures floating around in his head to fill a hundred lifetimes of films without needing to plagiarize from someone else. He's also generally open and asks for permission when he borrows ideas, as happened when he borrowed the gills idea from his star Sally Hawkins.

What makes The Shape of Water great and worthy of awards is not its groundbreaking originality. It succeeds because of how well its story is told, how emotionally acted and lovingly crafted. The film is very much a classic Beauty and the Beast tale meets Creature from the Black Lagoon. It is at its heart a fairy tale, and fairy tales are not known for their originality, they are meant to simply tell a universal story or teach a lesson. There are certain archetypal stories that speak to us as a species, they are universal and timeless, told and retold, across all mediums like in the oral tradition. So even though Guillermo del Toro and the filmmakers behind The Space Between Us may have told a different story, it's easy to see how some similarities may have bled through. In this case, this is not due to malfeasance, but to common interests and a shared human condition.



There were distinct copying issues. CinemaBlend addresses one.
See post by Nick Evans No, The Shape of Water Didn't Plagiarize A Short Film

UPDATE on 22 Feb 2018, from the Guardian:


Jonathan Bailey, editor of the website Plagiarism Today, says the wording of the law regarding plagiarism is fairly woolly. “In the US, it’s down to whether an ordinary observer, not an expert in film-making, would recognise that A is based on B. That’s a very loose standard,” he says. But he believes the proliferation of claims against The Shape of Water may work in its favour. “It’s become a back-burner issue, and part of that is because of the conflicting and competing allegations. The first one was debunked so easily that there’s a sense that the issue has already been dealt with. In a weird way, the first case may have weakened the subsequent ones, with news fatigue setting in.”

Del Toro might be comforted by the fact that claims multiply during awards season, when the promise of prestige and money fills the air. The makers of The Hurt Locker were sued unsuccessfully by US army sergeant Jeffrey Sarver, who claimed he was the inspiration for the main character. Hans Zimmer was sued, also without success, over the score for 12 Years a Slave. And Kim Novak took issue with The Artist over its use of music from her most noted film, Vertigo. “I want to report a rape,” she announced in a full-page ad in Variety, exhibiting that sense of proportion for which actors the world over are renowned.



link: https://www.theguardian.com/film/2018/feb/22/seen-it-all-before-the-shape-of-water-and-claims-of-movie-plagiarism

Intervening IPR decision requires vacation/remand of other IPR in MaxLinear, 2017-1039

The issue



The Board based its decision on an analysis of independent
claims 1 and 17. However, in a separate IPR, No.
IPR2014-00728 (“the ’728 IPR”), claims 1 and 17 were
held to be unpatentable, and that decision was affirmed
by our court during the pendency of this appeal. CF
CRESPE LLC v. Silicon Labs. Inc. (CRESPE I), 670 F.
App’x 707, 708 (Fed. Cir. 2016) (per curiam). Because the
Board did not address arguments concerning patentability
of the dependent claims separately from the nowunpatentable
independent claims, we vacate the decision
and remand to the Board, with instructions to consider
the patentability of the dependent claims 4, 6-9, and 21,
in light of our decision holding claims 1 and 17 unpatentable.





Since the patentability of claims 1 and 17 was the sole
basis for the Board’s decision in this IPR, and the Board
has not separately addressed the dependent claims, we
set aside the decision as to the dependent claims and
remand for further consideration. In SKF USA Inc. v.
United States, 254 F.3d 1022, 1028 (Fed. Cir. 2001), we
pointed out that “remand is generally required if [an]
intervening event may affect the validity of the agency
action.” See also Ethyl Corp. v. Browner, 989 F.2d 522,
524 (D.C. Cir. 1993) (highlighting a “tradition of allowing
agencies to reconsider their actions where events pending
appeal draw their decision in question”); Nat’l Fuel Gas
Supply Corp. v. Fed. Energy Regulatory Comm’n, 899 F.2d
1244, 1249–50 (D.C. Cir. 1990) (per curiam) (granting
remand following new legal decision). Intervening events
can include “a new legal decision” such as the affirmation
of the previous IPRs by our court. SKF USA Inc., 254 F.3d
at 1028.

We note that the collateral-estoppel effect of an administrative
decision of unpatentability generally requires
the invalidation of related claims that present
identical issues of patentability. In Ohio Willow Wood Co.
v. Alps South, LLC, 735 F.3d 1333, 1342 (Fed. Cir. 2013),
we pointed out that “precedent does not limit collateral
estoppel to patent claims that are identical . . . . If the
differences between the unadjudicated patent claims and
adjudicated patent claims do not materially alter the
question of invalidity, collateral estoppel applies.” See also
Soverain, 778 F.3d at 1315; Bourns, Inc. v. United States,
537 F.2d 486, 493 (Ct. Cl. 1976) (per curiam).
On remand, the Board must consider whether the dependent
claims 4, 6-9, and 21 can survive the unpatentability
of claims 1 and 17 from which they depend in view
of the prior art cited in the ’728 IPR.3 The Board must
decide whether the remaining claims present materially
different issues that alter the question of patentability,
making them patentably distinct from claims 1 and 17

LG ELECTRONICS loses appeal at CAFC in Core Wireless case

LG lost its appeal from ED Texas:


LG Electronics, Inc. (“LG”) appeals the United States
District Court for the Eastern District of Texas’ decisions
(1) denying summary judgment that claims 8 and 9 of
U.S. Patent No. 8,713,476 (“’476 patent”) and claims 11
and 13 of U.S. Patent No. 8,434,020 (“’020 patent”) are
directed to patent ineligible subject matter under 35
U.S.C. § 101; (2) denying judgment as matter of law that
U.S. Patent No. 6,415,164 (“Blanchard”) anticipates the
asserted claims under 35 U.S.C. § 102; and (3) denying
judgment as a matter of law that the claims are not
infringed. For the reasons discussed below, we affirm.




AND



For the foregoing reasons, we affirm the district
court’s denial of summary judgment that the claims are
ineligible under 35 U.S.C. § 101. We also affirm the
district court’s denial of judgment as a matter of law that
the claims are anticipated by Blanchard and the claims
are not infringed.



Judge Wallach dissented in part:



I disagree, however, with the majority’s ruling
affirming the District Court’s construction of the “unlaunched
state” limitation. See ’476 patent col. 6 ll. 2−3;
’020 patent col. 5 l. 43. I would find the term “unlaunched
state” to mean “not running,” as proposed by
Appellant LG Electronics, Inc. (“LG”), and remand the
case to the District Court for review of whether this
construction alters its findings on infringement and
anticipation.1 I therefore respectfully dissent-in-part
from today’s judgment. I review the legal standard for
claim construction and then turn to my analysis.

Azar confirmed by Senate 55-43

Democrats Heidi HeitkampTom Carper, Chris Coons, Joe Donnelly, Doug Jones and Joe Manchin voted in favor of HHS pick Azar. Rand Paul was the only Republican present to oppose the nomination. Independent Angus King voted for confirmation.

Fractured decision in Arthrex. Judge Newman in dissent writes: This is a distortion of a carefully worded regulation, and changes its meaning. However, “a court is not free to disregard requirements simply because it considers them redundant or unsuited to achieving the general purpose in a particular case.” C.I.R. v. Gordon, 391 U.S. 83, 93 (1968).

The outcome:


In a pending inter partes review proceeding (“IPR”)
before the Patent Trial and Appeal Board (“the Board”),
Arthrex, Inc. disclaimed all claims that were the subject
of the petition. The disclaimer occurred before the Board
issued an institution decision. The Board then entered an
adverse judgment pursuant to 37 C.F.R. § 42.73(b). Arthrex
appeals. Because we conclude that the Board acted
within the scope of the regulation, we affirm.




Concurring, Judge O'Malley wrote:


I agree with Judge Dyk that we have jurisdiction under
28 U.S.C. § 1295(a)(4)(A) to review the Board’s adverse
judgment against Arthrex, and I agree that the
Board’s interpretation of 37 C.F.R. § 42.73(b) is consistent
with the text of that regulation. I write separately to
point out that I have doubts about whether the Director
had the authority under 35 U.S.C. § 316 (or any other
statutory provision) to issue that regulation or whether, if
so, the regulation was properly promulgated.
(...)
I question the Board’s authority to issue adverse
judgments prior to institution for another reason. 37
C.F.R. § 42.73(b) explains that “[a] party may request
judgment against itself at any time during a proceeding.”
(emphasis added). The PTO has defined the term “proceeding”
broadly, to encompass both the trial and a “preliminary
proceeding,” the period of time beginning with
the filing of the petition and ending with the institution
decision. 37 C.F.R. § 42.2. As we explained in Shaw
Industries Group, Inc. v. Automated Creel Systems, Inc.,
817 F.3d 1293, 1300 (Fed. Cir. 2016), however, “[t]he IPR
does not begin until it is instituted.” The PTO’s expansive
definition for “proceeding,” and the Board’s application of
that definition to the practice of issuing adverse judgments
prior to institution, seem to conflict with our conclusion
in Shaw.

(...)

Because Arthrex affirmatively disclaimed any such
statutory or administrative law challenge to the Board’s
reliance on 37 C.F.R. § 42.73(b), however, we may not
reach those questions in this case. This is particularly so
because, in light of the disclaimer of these questions,
neither party briefed or argued them. We, thus, must
save these inquiries for another day—one where the
relevant questions are raised and adequately analyzed by
the parties.




Judge Pauline Newman dissented:




The Petitioners’ request for inter partes review was
not “instituted” because the patentee, Arthrex Inc., disclaimed
all of the challenged claims before the PTAB
decided whether to institute the requested review. Thus
inter partes review could not be instituted, for no challenged
claims remained in the patent. See 37 C.F.R.
§ 42.107(e):

No inter partes review will be instituted based on
disclaimed claims.

Nonetheless, the PTAB issued an adverse judgment on
the disclaimed claims. The parties agree—a position
apparently shared by the panel majority—that this adverse
judgment subjects Arthrex to the estoppel provi-
sions of 37 C.F.R. § 42.73(d)(3); that is, Arthrex would be
subject to the same estoppel result as if there had been an
IPR trial and Arthrex had lost on the merits.
From this flawed statutory and regulatory interpretation,
I respectfully dissent.



AND



Claims 1–9 were disclaimed before institution. Accordingly,
the present situation is outside of subsection
(b)(2), for there was no trial and no possibility of trial. As
required by § 42.107(e), “no inter partes review will be
instituted based on disclaimed claims.” That regulation
was applied by the PTAB, and no inter partes review was
instituted. Without institution there can be no trial, and
without trial there can be no final written decision under
35 U.S.C. § 318, and no adverse judgment based upon 37
C.F.R. § 42.73(b)(2).
The inclusion of “in the trial” in subsection (b)(2) is a
critical distinction from the other subsections, which do
not distinguish between institution and trial. This distinction
cannot be ignored. “Where an agency includes
particular language in one section of a regulation but
omits it in another it is generally presumed that the
agency acts intentionally and purposely in the disparate
inclusion or exclusion.” Yonek v. Shinseki, 722 F.3d 1355,
1359 (Fed. Cir. 2013) (alterations omitted).
The PTAB’s interpretation of subsection (b)(2) to eliminate
the words “in the trial” is an explicit change in the
Rule, requiring rulemaking procedures. Such rule change
is governed by the Administrative Procedure Act, see 35
U.S.C. § 2(b)(2)(B), for it is a substantive change in statutory
interpretation and administration. And, according to
Arthrex, it is inconsistently applied among PTAB panels.
Situations “where interested parties would have had to
divine the Agency’s unspoken thoughts” regarding a
regulation casts serious doubts on the propriety of the
rulemaking. See Int’l Union, United Mine Workers of Am.
v. Mine Safety & Health Admin., 407 F.3d 1250, 1260
(D.C. Cir. 2005) (alterations and quotation marks omitted).





AND


Thus, my colleagues
construe the words “in the trial” as including noninstitution
where no trial is possible. This is a distortion
of a carefully worded regulation, and changes its meaning.
However, “a court is not free to disregard requirements
simply because it considers them redundant or
unsuited to achieving the general purpose in a particular
case.” C.I.R. v. Gordon, 391 U.S. 83, 93 (1968).

Our task is to assure that agency regulations conform
to the statute, and that the regulations are applied in
accordance with that conformity. See E.P.A. v. EME
Homer City Generation, L.P., 134 S. Ct. 1584, 1600 (2014)
(“However sensible (or not) the Court of Appeals’ position,
a reviewing court’s task is to apply the text [of the regulation],
not to improve upon it.”) (internal quotations omitted).
A cardinal principle of statutory and regulatory
construction is to “‘give effect, if possible, to every clause
and word.’” Williams v. Taylor, 529 U.S. 362, 404 (2000)
(quoting United States v. Menasche, 348 U.S. 528, 538-39
(1955)); see Roberto v. Dep’t of the Navy, 440 F.3d 1341,
1350 (Fed. Cir. 2006) (“The rules of statutory construction
apply when interpreting an agency regulation.”).

CAFC finds no 121 safe harbor for Janssen as to claims of U.S. Patent No. 6,284,471

In the Janssen case reported on 23 Jan 2018, the CAFC noted


Janssen Biotech, Inc., and New York University (collectively,
“Janssen”) appeal from a decision of the United
States Patent and Trademark Office (“PTO”), Patent Trial
and Appeal Board (“Board”) resulting from an ex parte
reexamination of U.S. Patent No. 6,284,471 (“’471 patent”).
The Board affirmed the rejection of claims 1–7 of
the ’471 patent as unpatentable under the doctrine of
obviousness-type double patenting. Because the claims
are barred under that doctrine, we affirm.



The main issue:


In this case, Janssen’s principal argument
is that obviousness-type double patenting is not
applicable because the safe-harbor provision of 35 U.S.C.
§ 121 protects the ’471 patent claims. Thus, as in Searle,
the double-patenting issue in this case turns on whether
Janssen is entitled to invoke § 121 as a defense against a
double patenting rejection. That issue depends, in turn,
on an interpretation of the prosecution history of the ’471
patent and that patent’s relationship to application
No. 08/013,413 (“’413 application”).

(...)

The main issue on appeal is whether the safe-harbor
provision of 35 U.S.C. § 121 applies to the ’471 patent and
protects it from invalidation based on the ’272 and ’195
reference patents. If the safe harbor applies, then the
reference patents cannot be used as references against the
’471 patent in a double-patenting rejection. Conversely,
the reference patents are available as references against
the ’471 patent if the safe harbor does not apply. Whether
the requirements of § 121 have been satisfied is a question
of law that we address de novo. Bristol-Myers Squibb
Co. v. Pharmachemie B.V., 361 F.3d 1343, 1348 n.1 (Fed.
Cir. 2004).



The CAFC observed:


The § 121 safe harbor, “by its literal terms, protects
only divisional applications (or the original application)
and patents issued on such applications.” Pfizer, Inc. v.
Teva Pharm. USA, Inc., 518 F.3d 1353, 1360 (Fed. Cir.
2008) (internal quotation marks omitted). Accordingly,
patents issued on CIP applications are not within the
scope of § 121. Id. at 1362. Nor are patents issued on
continuation applications. Amgen, 580 F.3d at 1354. Our
precedent is clear: aside from the original application and
the original patent, the protection afforded by § 121 is
limited to divisional applications and patents issued on
divisional applications.3 Pfizer, 518 F.3d at 1362.



Some of the reasoning:


This case presents the question of whether, several
years after a challenged patent issues on a CIP application,
a patent owner can retroactively bring the challenged
patent within the scope of the § 121 safe harbor by
amending the CIP application during a reexamination
proceeding to redesignate it as a divisional application.
In Searle we answered this question in the reissue context,
holding that the patent owner could not take advantage
of the safe-harbor provision simply by
designating the CIP as a divisional application in a reissue
application years after the fact. 790 F.3d at 1354–55.
Leading up to the Searle case, this court in Pfizer concluded
that the statutory safe-harbor provision did not
shield a challenged patent when it issued on a CIP and
not a divisional application. Searle, 790 F.3d at 1352
(citing Pfizer, 518 F.3d at 1362). Following the disposition
in Pfizer, the patent owner filed an application with the
PTO seeking reissue of the patent challenged in Pfizer.
Searle, 790 F.3d at 1353. Just as Janssen’s reexamination
amendments do here, the patent owner’s preliminary
amendments accompanying the reissue application deleted
portions of the challenged patent’s specification that
were not present in the original application and changed
the designation of the application on which the challenged
patent had issued from a CIP to a divisional application.
Id. The preliminary amendments also cancelled claims
that were not present in the original application. Id. The
PTO eventually allowed the claims of the reissue application,
which issued as a reissue patent. Id.



Fish and Richardson had written in 2016:


Janssen’s suit against Celltrion in the District of Massachusetts (C.A. No. 1:15-cv-10698) relating to a biosimilar of Janssen’s Remicade® (infliximab) is one of the few currently pending BPCIA litigations. Over the last week, there have been two important developments with respect to Janssen’s infringement claims: (1) the invalidation of the asserted ’471 patent by the district court and (2) Celltrion’s motion for entry of final judgment to allow for a speedy appeal and final resolution of any infringement claims with respect to that patent.



See https://www.fr.com/fish-litigation/janssen-double-patenting/

**See also
Johnson & Johnson Loses Remicade Patent in Appeal Ruling

"Man bites dog" story: did Dior copy from India's "People Tree"?

See the post Delhi-based brand accuses Christian Dior of plagiarism after seeing their block prints on Sonam Kapoor’s outfit

Are patent examiners influenced by other patent examiners?

Michael Risch at WrittenDescription has a post titled Evidence of Peer Group Influence on Patent Examiners about a paper by Michael Frakes and Melissa Wasserman in SSRN in which Risch writes:



I'll admit that I was skeptical upon reading the abstract. After all, I would expect that grant rates would rise and fall together in any given art unit, based on either technology or the trends of the day. Indeed, the effect is not so large as to rule some other influences.

But by the end, I was convinced. Here are a couple of the findings that were most persuasive (in addition to the fact that I think they specified fixed effects nicely):
The effect is more present during the early years, and tends to get "locked in" with experience
The effect is more present with peers than with supervisory examiners
The effect is more present for examiners who do not telecommute - this, to me, was the best robustness check
Examiners who do not telecommute tended to behave similarly in obviousness (v. novelty) and also to cite the same prior art (that was not cited as frequently by those to telecommute)
This paper's framing is interesting. I read it, of course, because it is a patent paper, but Frakes & Wasserman open with a more generalized pitch that this is about employment peer effects. I suppose it is about both, really, and it is worth taking a look at if you are interested in either area.



**Frakes and Wasserman had discussed "cohort effects" in 65 Duke L.J. 1601 (2016) :



The numerous hiring-year coefficients presented in Table A1 are meant to be interpreted with reference to the omitted hiring-year cohort - that is, the 1993 cohort. The specific hypotheses that we are testing in this Article (beyond the general hypothesis of the presence of cohort effects in the first instance, which can be assessed via the F-tests presented in Table A1) do not necessarily bear on the year-by-year comparisons that the standard errors in Table A1 may be designed to facilitate. Rather we are seeking to compare grant rates across a coarser divide of hiring-year cohorts, mainly pre-2003-2004 cohorts vs. mid-to late-2000 cohorts, and mid-to late-2000 cohorts vs. post-2010 cohorts. In Table A3, we estimate specifications identical to those estimated above, but we group hiring cohorts into three groups: 1993-2002 cohorts, 2005-2008 cohorts, and 2011-2012 cohorts. To address concerns over how to specify the operable regime when the quality-assurance initiatives driving our delineation of hiring-culture [page 1653] eras are being rolled out, we drop those cohorts from the specification that started at the PTO during the specific years marking the transition across the relevant eras (2003 and 2004, 2009 and 2010), allowing us to make steady-state comparisons across eras. In Column (2) of Table A3, we control for the available individual application covariates at our disposal (entity-size and foreign-priority status).

(...)

The final hypothesis that we test in this Article bears on the effect of moving from a short, centralized training period of two weeks to a robust, PTO-run training program of eight months in 2006, with roughly half of the examiners in the 2006 cohort receiving the [page 1654] new training program and half receiving the old program (with assignment based on technology, which we control for). Rather than just comparing the grant rate of these two particular cohorts, we still estimate an empirical specification on the full set of cohorts and sample years, allowing us to achieve separation between year effects, cohort effects, and experience effects while trying to isolate the inherent granting tendencies of these two particular groups. As such, we estimate specifications that modify the approach taken in Table A3 to break the mid-2000s era into four separate groups: a 2005 cohort (a mid-2000 restrictive cohort purely under the old training regime), a 2006 cohort under the old training regime (the 2006 cohort control group), a 2006 cohort under the new training regime (the 2006 cohort treatment group), and the 2007 and 2008 cohorts (mid-2000 restrictive cohorts purely under the new training regime).

(...)

All else being equal, Tables A3 and A4 suggest a statistically significant decline in mean grant rates between examiner cohorts starting with the PTO in the mid-2000s and cohorts starting in the prior period. They also suggest a statistically significant subsequent increase in granting tendencies for the most recently hired cohorts relative to the prior cohorts (note that Table A4 arguably allows for a better test of this second comparison to the extent it allows for an observation of how things change around the time of transition to the recent permissive regime). Moreover, Table A4 demonstrates that the 2006 treatment cohort that was subjected to the new training program had a lower grant rate relative to the 2006 control cohort that was not subject to the new training program (statistically significant at the 10 percent level or 1 percent level depending on the specification), consistent with expectations that the training would more strongly induce new hires to adopt the prevailing views promulgated by the agency heads at that time.



**In a past article, The Failed Promise of User Fees: Empirical Evidence from the U.S. Patent and Trademark Office, 11 J. Empirical Legal Stud. 602, Frakes and Wasserman had noted


However, the Agency's fee structure is relevant for our analysis in a perhaps more fundamental way. We began our discussion with the more critical observation that the PTO's fee structure creates an inherent risk of financial instability that may lead to situations of binding budget constraints (necessitating the above responses) in the first instance. That is, we contend that the inadequacies of the examination fees coupled with the subsidization of the examination process by fees assessed on those who have already successfully navigated that process creates a financial risk that the Agency's incoming fee revenue may not be sufficient to meet its examination demands.
This basic observation suggests that in addition to modifying those particularities of the fee structure discussed above--for example, setting technology-specific examination fees in proportion to examination costs for that technology--the patent examination distortions under discussion in this article and in Frakes and Wasserman (2013) would be less paramount under a funding structure that imposed no such inherent financial risk. One such alternative structure would be one where examination fees came closer to covering the costs of patent processing (which constitute the vast majority of the Agency's operational costs), a structure that would reduce the need for cross-subsidization and thus reduce the risk that the parties being used for cross-subsidization purposes would grow out of step with applicants.

Complex situation at CNRS concerning Anne Peyroche and "data manipulation"

"For Better Science" has a post Anne Peyroche removed as interim CNRS President as her publications are “questioned” which illustrates the complexity of the Peyroche matter, which is also discussed in an article by Ashley Yeager at TheScientistDaily [which notes: Evidence of possible data manipulation in Peyroche’s papers was first published last November on PubPeer, a website that lets users critique published research.] The investigation of Peyroche is by the Commissariat à l’énergie atomique et aux énergies alternatives (CEA).

Wikipedia notes of Peyroche:


In October 2015, she was appointed Deputy Director of Research Firm. On January 15, 2016, she was appointed Deputy Director General for Science of the CNRS 3 . On October 24, 2017, she was appointed acting president of the CNRS, replacing Alain Fuchs 4 . On January 19, 2018, she was the subject of an internal investigation at the CEA following the observation made in November 2017 of suspicion of manipulations in the figures of five of her scientific articles. The computer scientist Antoine Petit is appointed to replace it at the head of the CNRS




See also:

https://www.boursorama.com/actualites-amp/l-ex-presidente-par-interim-du-cnrs-doit-s-expliquer-sur-ses-travaux-scientifiques-a3841b437f20d9ab6ec9279fccda62be

CBS Sunday Morning on 21 January 2018

CBS Sunday Morning on 21 January 2018 had an interview with Jordan Peele, who expressed his views on Donald Trump as a racist.

The "moment of nature" showed scenes from Myakka River State Park near Sarasota, Florida. The clip did not mention the Canopy Walkway, completed in 2000. The Canopy Walkway is itself 25 feet above the ground and extends 85 feet through the tree tops above the Myakka floor and nearby is an the Observation Tower, some 74 feet up.

Also, the DeLorean on almanac and President Zimmer of the University of Chicago.

Of Zimmer:


Robert Zimmer, president of the University of Chicago, told Braver, "Discomfort is an intrinsic part of an education."

Last school year, the university sent a letter to incoming freshman that said, in part:

"[W]e do not support so-called 'trigger warnings,' we do not cancel invited speakers because their topics might prove controversial, and we do not condone the creation of intellectual 'safe spaces' where individuals can retreat from ideas and perspectives at odds with their own…"

Braver asked, "Why did the university have to put out a letter like that in the first place?"

free-speech-on-campus-robert-zimmer-620.jpg
University of Chicago president Robert Zimmer. CBS NEWS
"Part of the way we operate is that we're a place where there's constant open discourse, constant expression and constant argument," Zimmer replied.

Minnesota Vikings seeking a trademark in 'Minneapolis Miracle'

Note the post at ESPN Vikings seek trademarks for 'Minneapolis Miracle' and 'Minnesota Miracle'

This relates to the pass of Case Keenum to Stefon Diggs.

As to "miracle," CBS Sports wrote: One of the most unlikely quarterbacks of one of the most unlikely contenders engineered one of the most unlikely game-winning drives anyone will ever see


UPDATE.

One suspects the proposed trademark might now have little value.

Of ticket prices for Super Bowl LII, from the Washington Post:


On Sunday, when the Minnesota Vikings still had a shot at becoming the first NFL team to advance to a Super Bowl played in its home stadium, ticket prices for the Feb. 4 game shot up to around $8,000 on average, according to secondary retailer TickPick, with the cheapest seat increasing to $5,700 after the Vikings went up 7-0 on the Philadelphia Eagles. The price was driven up by Minnesota’s long-suffering fans, who would not have to spend anything on Super Bowl travel and lodging and thus could spend a little extra on tickets themselves.

At least that was the idea. The Eagles proceeded to score the final 38 points of the game to advance to the Super Bowl while despondent Minnesotans could instead budget their money toward something else

(...)

According to a Super Bowl ticket-price tracker operated by SeatGeek, the average price of a seat stood at $5,828 on Wednesday afternoon, and prices for the cheapest tickets also reflected a drop. A TickPick search on Wednesday afternoon showed a get-in price of $3,680, down more than $2,000 from the cheapest ticket offered on early Sunday evening. StubHub was offering a single ticket in an upper-deck corner at U.S. Bank Stadium for $3,395. SeatGeek was selling two tickets in Section 302, three rows from the top of the stadium, for $3,228 each.

Copyright infringement case over “The Rest of Our Life”

The Independent discusses a recent copyright infringement case involving the song “The Rest of Our Life”.

Of note in the text:



Carey and Golden filed a lawsuit in New York last week accusing Sheeran and his co-writers of “wilful copyright infringement”

(...)

The complaint says that during a studio writing session, Rae, who is named as a co-writer on “When I Found You” but is not named amongst the plaintiffs, mentioned a fan had tweeted at her about the similarities between the two songs. It goes on to note that Sheeran was “touring extensively in Australia” when Rae’s song was enjoying success on Australian radio stations. [going to possible evidence of access. Compare CA7 case involving the BeeGees.]

[AND NOTE as to possible knowledge of copying]

The reason for Rae’s absence from the suit is, according to Carey and Golden, because her boyfriend – a marketing manager for Sony Music who was involved in promoting Sheeran’s “The Rest of Our Life” in Australia – was aware of similarities between the songs for more than two months before its release.




LINK: Ed Sheeran hit with plagiarism lawsuit over song he co-wrote for Tim McGraw and Faith Hill

DOMINICK THERESA of Edison, NJ appearing pro se before the CAFC, loses

Of note as to anticipation of a claim using the word "or":


Theresa’s first argument is that the Board erred in
ignoring the limitations of claims 1, 5, 20, and 24, involving
marking the labels with “symbols,” even though none
of the cited references disclosed the use of symbols.
(Slater only used words or numbers.) This argument is
misplaced.

First, claim 1 requires marking the labels with “preset
words or pre-set symbols.” J.A. 416 (emphasis added).
“When a claim covers several structures or compositions,
either generically or as alternatives, the claim is deemed
anticipated if any of the structures or compositions within
the scope of the claim is known in the prior art.” Brown v.
3M, 265 F.3d 1349, 1351 (Fed. Cir. 2001) (citing Titanium
Metals Corp. of Am. v. Banner, 778 F.2d 775, 782 (Fed.
Cir. 1984)). Thus, since Slater undisputedly disclosed the
use of pre-determined words, claim 1 can be obvious in
light of the prior art even without a reference to symbols.
So too with dependent claim 5, which includes a limitation
that builds on the alternative limitation in claim 1,
while preserving the alternative options.



As to using a reference for ALL that it teaches:


Theresa also contends the Board erred in relying on
Erickson for use of a color-coded system in conjunction
with memory devices, because Erickson’s claimed invention
focused on the RFID tags. True, Erickson’s reference
to color-coded file folders related to the combination of the
RFID system therein with a third-party system that
already existed. But Erickson need not be limited to the
invention claimed therein; it may be cited for all that it
teaches. See In re Kahn, 441 F.3d 977, 990 (Fed. Cir.
2006) (“[T]he teaching of [a reference] is not limited to the
specific invention disclosed.”).



When a reference says "just one example," the examiner and Board
can infer others:


Though Slater disclosed labels for keys, it acknowledged
that keys were “just one example” of how the colorcoded
system disclosed therein could be used. J.A. 461
¶ 16. “The need for such a product can be found in a
number of places where people carry multiple objects that
appear the same,” such as pill bottles or toothbrushes.
Id.; see also J.A. 460 ¶ 6 (noting that similar labels exist
to identify circuit breakers or storage boxes and to convey
further information about the labeled items). The examiner
found, and the Board agreed, this indicated that
Slater’s system could be successfully applied to a set of
Yu’s flash memory devices, and Erickson had already
taught the application of a color-coding system to memory
devices. J.A. 16–17, 350–51

CAFC affirms ED Texas in Flexuspine matter

From the decision:


Globus Medical, Inc., appeals the district court’s decision
denying its Rule 59(e) motion and denying as moot
its Rule 50(b) motion. Flexuspine, Inc., cross-appeals
from the district court’s grant of summary judgment of
noninfringement of its U.S. Patent No. 8,123,810 (“’810
patent”). We affirm the district court’s decisions
(1) denying Globus’s Rule 59(e) motion, (2) denying as
moot its Rule 50(b) motion, and (3) granting summary
judgment of noninfringement.



Of the issues:



The district court entered final judgment that Globus
did not infringe any of the asserted claims of the two
remaining patents. The court’s judgment did not address
invalidity of the patents-in-suit. Globus filed a Rule 59(e)
motion requesting that the judgment be amended to
include the jury’s invalidity verdict. Flexuspine opposed.

Globus then filed a Rule 50(b) motion for judgment as a
matter of law on invalidity. Globus argued in support of
the Rule 50(b) motion that given the overwhelming invalidity
evidence presented at trial, judgment as a matter of
law on invalidity was required even if the court denied
Globus’s Rule 59(e) motion. Flexuspine did not file a
response to the Rule 50(b) motion.

The district court denied Globus’s Rule 59(e) motion.
The court also dismissed Globus’s invalidity counterclaims
without prejudice and so denied as moot its Rule
50(b) motion. Globus appeals. Flexuspine cross-appeals
from the district court’s pre-trial order granting summary
judgment of no infringement on the ’810 patent. Flexuspine
does not appeal the judgment of noninfringement
of the other two patents-in-suit.


Of the jury


First, Globus argues that the district court was not
authorized to direct the jury to further consider its answers
and verdict because the jury’s first answers were
not inconsistent with each other. Globus maintains that
the fact that the jury overlooked the stop instructions was
not sufficient to render the verdict internally inconsistent.
We disagree.
In White v. Grinfas, 809 F.2d 1157 (5th Cir. 1987),
like here, the problem with the verdict “was caused by the
jury’s failure to follow the court’s instructions.” 809 F.2d
at 1161. In that case, the jury was directed to answer
questions following question 3 only if it answered “yes” to
that question. The jury answered “no” to that question
but continued to answer further questions, ignoring the
court’s instructions. The Fifth Circuit observed that
“[b]ecause all the questions subsequent to question 3 were
predicated on an affirmative response to that question,
the subsequent answers had to conflict with the [“no”]
answer to question 3, regardless of whether they were
also in conflict with each other.” Id. (emphasis added).
Accordingly, under Fifth Circuit law, a jury answering
questions in violation of a stop instruction is sufficient to
render the verdict internally inconsistent.



Of interest:



We conclude that the district court was within its discretion
to dismiss Globus’s invalidity counterclaims
without prejudice. This court has expressly held that “[a]
district court judge faced with an invalidity counterclaim
challenging a patent that it concludes was not infringed
may either hear the claim or dismiss it without prejudice.”
Id. (citing Nystrom v. TREX Co., 339 F.3d 1347,
1351 (Fed. Cir. 2003)). Globus is correct that a district
court is typically faced with a live invalidity counterclaim
only after the court grants summary judgment of noninfringement
and that its discretion to dismiss invalidity
counterclaims at later stages in the proceedings may be
more limited.2 Under the specific circumstances here,
however—where the district court clarified that Globus’s
invalidity counterclaims were not submitted to the jury
and Globus waived its right during the trial to have the
jury consider those claims—it was within the district
court’s discretion to dismiss Globus’s counterclaims
without prejudice.

Once the district court dismissed Globus’s invalidity
counterclaims without prejudice, invalidity was no longer
a live issue amenable to being decided as a matter of law.
The court properly denied as moot Globus’s Rule 50(b)
motion for judgment as a matter of law of invalidity.



Cardinal Chem appears in footnote 2: Cardinal
Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83, 100–01 (1993)


***Separately, Blawgsearch on 19 Jan 2018 lists IPBiz as the number one IP Blog for
the day, week and month. Of the week:

Development in European patents in CRISPR area

In September 2016, IPBiz discussed an issue between Marraffini/Rockefeller and Zhang/Broad related to US filings in the
CRISPR area. See CRISPR patent confusion over lawyer representation .

Kelly Servick at Science has a post on some fallout in the European patent area related to the Marraffini matter.
See Broad Institute takes a hit in European CRISPR patent struggle .

The initial dispute never quite made sense. If Feng Zhang were an inventor on the Marraffnni application, a signed oath by Feng pursuant to 37 CFR 1.63 would have been required.

Servick wrote in her 2018 post:



Unfortunately, those earliest U.S. filings include an inventor, microbiologist Luciano Marraffini of The Rockefeller University in New York City, who was not listed on the European filing. Disagreement between Rockefeller and the Broad over Marraffini’s role in key CRISPR inventions led to a bizarre dispute, creating conflicting, identical patents with different authors, The Scientist reported in 2016.

The two institutions settled the disagreement earlier this week. But because of strict rules in Europe about the listing of inventors on patents, Marraffini’s exclusion from the European filing meant the Broad couldn’t claim the “priority date” of the earliest U.S. patents, and therefore couldn’t lay first claim in Europe to the technologies described.

The invalidated patent is one of several facing formal “oppositions” filed with EPO. One opponent of the now-revoked patent was CRISPR Therapeutics, co-founded by microbiologist Emmanuelle Charpentier, now at the Max Planck Institute for Infection Biology in Berlin, who collaborated with Doudna on early CRISPR technology and is listed on key patents. And the same issue could threaten more of the Broad’s intellectual property in Europe, says Jacob Sherkow, a patent specialist at New York Law School in New York City. “If the Broad can’t get the priority date that they want in their patents, things are just going to be really bad for them,” he says. “It looks like UC Berkeley and Emmanuelle Charpentier are going to have the dominant patent position in Europe going forward.”



GenomeWeb wrote of the matter:


Meanwhile in Europe, the Broad said that the European Patent Office has decided after an initial review to deny the institute's reliance on a US priority provisional application for a CRISPR-related patent in Europe based on a technicality.

According to the Broad, the issue relates to "the current interpretation of rules that dictate what happens when the names of inventors differ across international applications. This interpretation affects many other European patents that rely on US provisional patent applications, and is inconsistent with treaties designed to harmonize the international patent process, including that of the United States and Europe."

The Broad said that it intends to appeal the decision to the EPO Board of Appeal and that it is confident that the agency will "harmonize" its procedures to be consistent with international treaties.

However, ERS Genomics — which provides access to competing CRISPR/Cas8 intellectual property held by Emmanuelle Charpentier of the Max Planck Institute for Infection Biology in Berlin — responded to Broad's statement, noting that the EPO "rejected the Broad Institute's position that its patent was entitled to a priority date pre-dating the prior art," and that the EPO decided that "in originally obtaining the patent, the Broad Institute ... failed to follow rules and established caselaw for properly establishing an earlier priority date."

ERS further noted that Broad's expectation that the EPO will harmonize procedures to be consistent with international treaties "would require a change in the law itself."




See Rockefeller, Broad Settle CRISPR IP Dispute; EPO Denies Broad European Patent


UPDATE. IPKat has some additional information:





A note on priority: requirements in Europe vs US

Article 87 EPC provides the conditions under which an applicant for an EP patent can claim priority from an earlier application, and mirrors Article 4(1) of the Paris Convention. According to Art. 87(1) EPC, any person who has filed a patent in a state a party to the Paris Convention, or his successor in title, shall enjoy such a priority right to the same invention for a subsequent application. Claiming priority to the earlier application provides the subsequent application with the same effective filing date as the earlier application. This means that disclosures between the filing dates of the earlier and subsequent application cannot be cited against the novelty or inventiveness of the subsequent application.

It is a long-established principle of EP case law that, for a valid priority claim under Art. 87 EPC, the applicant of the subsequent application claiming priority, who is not the person who filed the earlier application, must be that persons successor in title when the subsequent application is filed. In practice, this means that an assignment from the applicant of an earlier application to his successor after the filing date of the subsequent application, is not sufficient for a valid priority claim under the EPC (T 577/11.3).

So what if an earlier application has more than one applicant? According to current EP case law, in the situation where an earlier application has joint applicants, the right to claim priority from the application is considered to belong simultaneously and jointly to the two applicants (who thus constitute a single legal entity). In practice, this means that the earlier application can only serve as a basis for claiming priority for the filing of a subsequent application that designates all applicants of the earlier application (T 788/05).

It is also possible to assign the right to claim priority from an application separately to the assignment of the application itself. Such an assignment must also take place before the filing of the subsequent application and the requirements for demonstrating such an assignment are stringent, as recently confirmed by the EPO technical Board of Appeal (T 1201/14, IPKat post).

The US has less stringent priority requirements. In the US, in order to result in a valid priority claim, an earlier and subsequent applicant claiming priority must have at least one joint inventor in common (MPEP § 213.02). Consequently, when a US provisional application is filed in the name of the inventors, with assignment from the inventor to the owner after the filing date, there is no requirement in the US for the assignment to occur before the filing of a subsequent PCT application claiming priority from the provisional.

An invalid priority claim for the CRISPR patent?

The Broad Institute and its co-proprietors have fallen foul of the trap opened up by the difference in the US and Europen requirements for a valid priority claim. In their grounds of opposition, the opponents all argued that the EP 2771468 priority claims to the US provisionals US and 2012/61736527 and US 2013/61748427 (P1 and P2 in the opposition proceedings) were invalid, on the grounds that one or more of the applicants of P1 and P2, or their successors in title, were not listed as applicants for the PCT application from which EP 2771468 was derived.

As matter of objective fact, it appears that the opponents observation is correct. The priority documents listed Luciano Marraffini of Rockefeller University as an applicant. Marraffini does not appear as an applicant on the PCT application forming the basis of EP 2771468, and no evidence was submitted to proceedings that Marraffini had assigned his rights to The Broad Institute before the filing date of the PCT application.

In response, the proprietors argued that the EPO case law is not in line with the principles of the right to claim priority under Article 87 EPC and the Paris Convention



As to the position of Broad:



A key aspect of the proprietors' arguments in response to the objection was that the right to claim priority under Article 87 EPC should be interpreted according to national law. In their written reply to the notice of opposition, The Broad argued that each of P1 and P2 disclosed more than 1 invention (as is common in US provisional applications). Under US law, they observed that it is a requirement for all the inventors that contributed to the subject matter of the invention(s) disclosed anywhere in a provisional application (whether the description, drawings or claims) are named as applicants. They further observed that to be named as an inventor on a patent application, one has to be the inventor or have derived the right from the inventor, and that under US law an inventor can only assign rights to inventions, and the right to claim priority from such inventions, to which she/he has contributed.

Therefore, it was argued, only the inventor-applicants with the right to claim priority from the subject matter of P1 and P2 to which the subsequent PCT application was directed, were listed on the PCT application. Marraffini, the Broad argued, did not have the right to the invention to which the PCT application was directed and therefore was not listed as an applicant for the PCT application.

To complicate matters further, whilst opposition proceedings were progressing before the EPO, The Broad Institute and the Rockefeller University were locked in a patent dispute over whether Luciano Marraffini should be included as an inventor on the patent. This issue was settled following arbitration on January 15th 2018 (i.e. two days before proceedings) and it was agreed that Luciano Marraffini of the Rockefeller would not be named on the patent. A press release to this fact was submitted during oral proceedings itself (although this was rejected by the Opposition Division for having been filed late).




See the 22 Jan 2018 post at IPKat / IPKitten EPO revokes CRISPR patent – a clear cut case of invalid priority?

CAFC finds that CD Cal failed to provide a “full and fair opportunity to ventilate the issues.”

The opinion begins


Defendant Zinus, Inc., appeals from a summary
judgment entered in favor of plaintiff Cap Export, LLC,
and third-party defendants Abraham Amouyal and
4Moda Corp. (collectively, “Cap Export”) by the United
States District Court for the Central District of California.
The district court ordered Zinus, the owner of U.S. Patent
No. 8,931,123 (“the ’123 patent”), to file a motion for
summary judgment of validity of that patent. Following
briefing, the court held two of the asserted claims of
Zinus’s patent invalid for obviousness. The court then
dismissed all of Zinus’s counterclaims with prejudice. We
vacate the district court’s summary judgment and remand
for further proceedings.




Of the issues leading to decision to vacate:


On appeal, Zinus raises a number of objections to the
district court’s summary judgment ruling. Three of
Zinus’s arguments are persuasive.

First, the district court improperly granted summary
judgment for Cap Export sua sponte, without proper
notice to Zinus. “It is well established that a district court
has ‘the power to enter summary judgment[] sua sponte,
so long as the losing party was on notice that she had to
come forward with all of her evidence.’” Mikkelsen Graphic
Eng’g, Inc. v. Zund Am., Inc., 541 F. App’x 964, 972
(Fed. Cir. 2013) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 326 (1986)); see also Albino v. Baca, 747 F.3d 1162,
1176 (9th Cir. 2014) (“Even when there has been no crossmotion
for summary judgment, a district court may enter
summary judgment sua sponte against a moving party if
the losing party has had a full and fair opportunity to
ventilate the issues involved in the matter.”). Rule 56(f)
of the Federal Rules of Civil Procedure provides that
district courts may grant summary judgment for a nonmovant
only after “giving notice and a reasonable time to
respond.” See Mikkelsen, 541 F. App’x at 972–73.




AND


When it ordered Zinus to make a motion for summary
judgment of validity, the district court provided no notice
that the court was contemplating entering summary
judgment of invalidity. Normally, if a patent holder were
to lose a motion for summary judgment of validity, the
result would be a trial, not a judgment of invalidity. In
fact, because a patent carries a presumption of validity
and a challenger must prove invalidity by clear and
convincing evidence, a patentee need not present any
factual evidence to prevail on a motion for summary
judgment of validity. Massey v. Del Labs., Inc., 118 F.3d
1568, 1573 (Fed. Cir. 1997). The district court gave no
notice that it might grant summary judgment against
Zinus.
Furthermore, Zinus lacked a “full and fair opportunity
to ventilate the issues.” Gospel Missions of Am. v. City of
Los Angeles, 328 F.3d 548, 553 (9th Cir. 2003). Because of
the unusual sequence of briefs and evidence, Zinus did not
have an opportunity to depose Cap Export’s expert, whose
declaration was first presented as part of Cap Export’s
sur-reply filed on November 11, 2016. Nevertheless, the
district court relied on the expert’s testimony and found it
“credible.” Zinus was also denied an opportunity to
present evidence of objective indicia of nonobviousness,
which could have supported its position that the claims of
the ’123 patent were not obvious. See, e.g., Cheese Sys.,
Inc. v. Tetra Pak Cheese & Powder Sys., Inc., 725 F.3d
1341, 1353 (Fed. Cir. 2013). Although Zinus stated in its
reply brief in support of its motion for summary judgment
of validity that it was not “at this time asking the Court to
consider any objective evidence of nonobviousness,” Zinus
was entitled to present evidence of nonobviousness,
including objective evidence of nonobviousness, in defending
against a motion for summary judgment of invalidity.
Under these circumstances, Zinus lacked both notice
that the district court would enter summary judgment of
invalidity sua sponte and an opportunity to present evidence
and argument as to why summary judgment should
not be entered against it. Accordingly, the district court’s
entry of summary judgment in Cap Export’s favor was
procedurally improper.




Of the second point



As neither party raised arguments regarding the validity of
claim 2, the district court erred in dismissing that claim
with prejudice. In addition, although a district court may
decline to exercise supplemental jurisdiction over state
law claims after dismissing federal claims pursuant to 28
U.S.C. § 1367(c)(3), any such dismissal must be without
prejudice. Davila v. Smith, 684 F. App’x 637, 638 (9th
Cir. 2017) (citing Gini v. Las Vegas Metro. Police Dep’t, 40
F.3d 1041, 1046 (9th Cir. 1994)). Accordingly, the district
court erred in dismissing claim 2 of the ’123 patent and
Zinus’s state law claims with prejudice.


Of the third point


Third, the district court improperly relied on the “bed
in a box” prior art reference despite a factual dispute
regarding whether the reference predated the ’123 patent.
Cap Export alluded to the “Amazing Bed in a Box” website
only in its April 2016 letter to Zinus’s counsel; it did
not assert the website as prior art in any of its briefs to
the district court in connection with Zinus’s motion for
summary judgment of validity. In its opening brief on
that motion, Zinus argued that the website does not
predate the priority date of the ’123 patent, which is
September 25, 2013, because the website appears to have
been posted in November 2014.2 It appears that Cap
Export may have abandoned the reference altogether, as
Cap Export did not address that reference in its opposition
brief before the district court. See Shakur v. Schriro,
514 F.3d 878, 892 (9th Cir. 2008) (holding that a party
abandons claims by not defending them in opposition to a
motion for summary judgment); Stichting Pensioenfonds
ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125,
1132 (C.D. Cal. 2011) (“[I]n most circumstances, failure to
respond in an opposition brief to an argument put forward
in an opening brief constitutes waiver or abandonment in
regard to the uncontested issue.”).
Nevertheless, the district court relied on that reference
in concluding that claims 1 and 3 would have been
obvious. The court explained that “someone with ordinary
skill in the art would view the Tiffany Bed (with a
headboard compartment), the Aspelund bed (with legs
attached to the footboard), and the Bed in a Box (where
all pieces of the bed fit in one compartment), and combine
these references . . . .” At best, the disputed fact regarding
the publication date of the “bed in a box” reference
precludes reliance on that reference for purposes of summary
judgment. See Tennison v. City & Cty. of San
Francisco, 570 F.3d 1078, 1087 (9th Cir. 2009); Lamle v.
Mattel, Inc., 65 F. App’x 293, 295 (Fed. Cir. 2003).

LIQWD, INC./OLAPLEX LLC win appeal at CAFC against L’ORÉAL: context is central in claim construction

Olaplex moved for a preliminary injunction, and in
July 2017, the district court denied the motion. The
court’s dispositive basis for denying the motion was its
construction of the claim requirement that the mixture
not contain a “hair coloring agent.” Because the adopted
construction excluded L’Oréal’s products, the court concluded,
Olaplex had failed to show a likelihood of success
on the merits of its infringement claims and therefore a
preliminary injunction was inappropriate. Id. at *7.
Olaplex timely appealed. We have jurisdiction under
28 U.S.C. § 1292(a)(1) and (c)(1). We now conclude that
the district court erred in its claim construction, and we
therefore vacate the denial of the preliminary injunction
and remand for further proceedings.





Within the case:


Context is central in claim construction, see,
e.g., Atlas IP, LLC v. Medtronic, Inc., 809 F.3d 599, 608
(Fed. Cir. 2015); Phillips v. AWH Corp., 415 F.3d 1303,
1321 (Fed. Cir. 2005) (en banc), and here the method
claims’ focus on producing results suggests a focus on
whether “hair coloring” results from the mixture actually
applied to hair. Cf. Cox Commc’ns, Inc. v. Sprint
Commc’n Co. LP, 838 F.3d 1224, 1232 (Fed. Cir. 2016)
(“All of the asserted claims are method claims, so it makes
sense to define the inventive method as a series of functions.”).
It is beyond dispute that not only the chemical
identity of molecules in the mixture, but the quantity of
such molecules, matters to whether the mixture contains
a constituent that in fact produces the result of hair
coloring. Accordingly, it is one natural interpretation of
the claim language, in context, to focus on what is actually
present in the mixture, considering both chemical
identity and quantity. In short, it is natural to say that a
particular mixture “does not contain a hair-coloring
agent,” despite the presence of certain identified molecules
that if greatly increased in number could change
hair color, if there are not enough of those molecules to
actually change hair color.





The case illustrates "what can happen" when a district court does
not address all arguments:


The district court did not rest its denial of the requested
preliminary injunction on any of the other bases
advanced by L’Oréal for denying the injunction.

Plagiarism at The Daily Beast leads to resignation

The New York Post reported on a plagiarism incident at The Daily Beast, which led to a quick resignation by the offender



John Avlon, the Daily Beast’s editor-in-chief, confirmed to The Post in a statement Tuesday that Crocker’s article was deleted and replaced with an editor’s note after the outlet learned of the allegations and confirmed them.

“Lizzie Crocker offered to resign and her resignation was accepted,” Avlon said in a statement. “When a second instance of plagiarism emerged, that story was deleted as well. A larger investigation of her work at The Beast is underway. We take plagiarism seriously, and will not allow the hard-earned trust we’ve built with our millions of loyal readers to be compromised.”

Crocker’s story on Roiphe — a writer for Harper’s Magazine who reportedly intends to name the author of the so-called “Sh—y Men in Media” list of male journalists accused of sexual misconduct — has now been replaced by an editor’s note.

“The story published about author Katie Roiphe violated The Daily Beast’s Code of Ethics and Standards and has been removed,” the statement reads.



link: https://nypost.com/2018/01/16/daily-beast-reporter-resigns-after-plagiarism-revealed/

The "crass edge"?

Tom Porter of Newsweek had text on Joe Biden in the post --This Is Who Trump Is Afraid of Facing in 2020, and It's Not Bernie Sanders --:



“What we can’t let voters do is think they can get the same policies with someone they like better, like Joe Biden—someone who would fight for them but who doesn’t have the crass edge,” one former White House staffer told Politico.


As to "crass," recall Biden's IQ remark, as mentioned for example within IPBiz:


See also E.J. Dionne's 1987 piece Biden Admits Errors and Criticizes Latest Report , which includes text about an outburst by Biden on April 3, 1987 in Claremont, NH:

The tape, which was made available by C-SPAN in response to a reporter's request, showed a testy exchange in response to a question about his law school record from a man identified only as "Frank." Mr. Biden looked at his questioner and said: "I think I have a much higher I.Q. than you do."

He then went on to say that he "went to law school on a full academic scholarship - the only one in my class to have a full academic scholarship," Mr. Biden said. He also said that he "ended up in the top half" of his class and won a prize in an international moot court competition. In college, Mr. Biden said in the appearance, he was "the outstanding student in the political science department" and "graduated with three degrees from college."

IPBiz notes that, even if what Biden said were true (i.e., graduated in top half of class at Syracuse Law School and had three (undergrad) degrees from the University of Delaware), such credentials probably should not be used to assert "I think I have a much higher I.Q. than you do." In fact, what Biden said wasn't true. He graduated well-into the bottom half of his class at Syracuse Law (76th in a class of 85). Anybody who has any familiarity with law school knows how grade-conscious law students (and potential employers of law students) are. When Biden later said: "I did not graduate in the top half of my class at law school and my recollection of this was inaccurate", it was an unbelievable understatement. Law students do not have inaccurate memories of their final grade point average, or whether they were in the "top half" or "bottom half" of their class. Biden is a legend in his own mind, and an overachiever trying to compensate for less than stellar credentials.




from Went to a garden party: does Joe Biden hide in your shoes?

From the 1987 Dionne piece in the NY Times:


WASHINGTON, Sept. 21— Senator Joseph R. Biden Jr. issued a formal statement today acknowledging that he had misstated several facts about his past last April in a campaign appearance in New Hampshire.

But the Delaware Democrat insisted today, as he had Sunday night in an interview with The New York Times, that some of the disputed statements were true and that his misstatements were the product of a faulty memory and the fact that he lost his temper.

Mr. Biden, whose Presidential campaign has been shaken by news reports about his unattributed use of speeches from other politicians and a plagiarism incident while he was in law school, said in The Times interview that he was ''frustrated'' and ''angry as hell'' over the reports.

(...)

Mr. Biden's campaign staff met this weekend in Wilmington, Del., in an effort to come up with a strategy in face of the building controversy. A senior adviser to the Biden campaign dismissed speculation that he would withdraw from the contest. ''Of course he's going to stay in,'' the adviser said, dismissing the recent reports on Mr. Biden as ''random press frenzy.''

The adviser said the latest troubles might ''free'' Mr. Biden to ''get into being himself'' and to campaign as an aggressive ''populist, anti-Establishment'' candidate and a defender of the interests of the American middle class.




from http://www.nytimes.com/1987/09/22/us/biden-admits-errors-and-criticizes-latest-report.html

See also post at Yelp:

In this clip from 1988, Joe Biden becomes irate with an interviewer, interrupts him and proceeds to boast about his intelligence and academic achievements. He mentions how he was the only one in his class in law school with a full academic scholarship and boost about his awards and degrees. youtube.com/watch?v=D1j0…

The CAFC in Exmark v. Briggs & Stratton: "While this argument seems facially logical, it fails nonetheless."

The opinion of Chief Judge Joseph F. Bataillon of D. Nebraska did not fare well at the CAFC, which began its opinion:



Exmark Manufacturing Company filed suit against
Briggs & Stratton Power Products Group, LLC in the
United States District Court for the District of Nebraska,
alleging infringement of, inter alia, claim 1 of U.S. Patent
No. 5,987,863. The district court entered summary judgment
that claim 1 was not invalid because the claim
survived multiple reexaminations involving the same
prior art. The district court also denied summary judgment
of indefiniteness with respect to claim 1.1 The case
proceeded to a jury trial, where the jury found that Briggs
willfully infringed Exmark’s patent. The jury awarded
$24,280,330 in compensatory damages, which the district
court doubled as enhanced damages for Briggs’ willful
infringement.

Briggs appeals several of the district court’s orders,
including the district court’s: (1) summary judgment that
claim 1 is not anticipated or obvious, (2) denial of summary
judgment that claim 1 is indefinite, (3) denial of a
new trial on damages, (4) evidentiary rulings related to
damages, (5) denial of a new trial on willfulness, and
(6) denial of Briggs’ laches defense.

We conclude the district court erred by basing its
summary judgment of no invalidity solely on the fact that
claim 1 survived multiple reexaminations. Accordingly,
we vacate the district court’s summary judgment of no
invalidity. We remand to the district court for it to make
an independent determination of whether genuine issues
of material fact preclude summary judgment that claim 1
is not anticipated or obvious in view of the prior art. We
also hold that the district court erred in denying a new
trial on damages because Exmark’s damages expert failed
to provide an adequate explanation as to how she arrived
at a 5% royalty rate for the patented feature relative to
other conventional features of the accused products. We
also conclude that the district court abused its discretion
by limiting the evidence relevant to damages to prior art
that had been commercialized. Likewise, we conclude
that the district court abused its discretion by excluding
from the willfulness trial evidence relating to patent
validity based on its determination that Briggs’ invalidity
defenses were objectively unreasonable. The district
court’s evidentiary ruling does not comport with the
Supreme Court’s recent decision in Halo Electronics, Inc.
v. Pulse Electronics, Inc., 136 S. Ct. 1923 (2016), mandating
that willfulness is to be determined by the jury regardless
of whether Briggs’ defenses were objectively
reasonable. Accordingly, we vacate the jury’s finding of
willfulness, vacate the jury’s damages award, vacate the
district court’s enhanced damages award, and remand for
proceedings consistent with this precedent. We also
affirm the district court’s denial of summary judgment
that claim 1 is indefinite, and affirm its denial of Briggs’
laches defense.



The lack of an independent analysis by the district court
was found to be problematic:


Briggs argues that the district court erred by granting
summary judgment that claim 1 is not invalid as anticipated
or obvious based solely on the fact that claim 1
survived multiple reexaminations involving the same
prior art. We agree.
The district court’s summary judgment decision was
limited to a single paragraph containing a single basis.

(...)

Though the district court stated that
it gave the reexaminations “some, though not determinative,
weight,” id. (emphasis added), it appears from its
cursory decision that, in fact, the court granted summary
judgment based on the claim surviving multiple reexaminations.
No other explanation for granting summary
judgment was provided. The question thus presented is
whether a reexamination confirming patentability of a
claim can form the sole basis for granting summary
judgment that a claim is not invalid based on the same
prior art.
We hold that a reexamination confirming patentability
of a patent claim alone is not determinative of whether
a genuine issue of fact precludes summary judgment of no
invalidity. Surviving a reexamination does not warrant
ipso facto summary judgment that a patent is not invalid.
Holding otherwise would improperly give complete deference
and preclusive effect to the PTO’s patentability
determination, foreclosing challenges to patent validity in
district court based on the same prior art.



The CAFC went on to say:



Our holding is supported by our prior decisions stating
that a district court “is never bound by an examiner’s
finding in an ex parte patent application proceeding.”
Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1359 (Fed. Cir.
2007) (citing Fromson v. Advance Offset Plate, Inc.,
755 F.2d 1549, 1555 (Fed. Cir. 1985)). We have said the
same regarding an examiner’s findings during reissue
proceedings. See Fromson, 755 F.2d at 1555 (“The Examiner’s
decision, on an original or reissue application, is
never binding on a court.”); Interconnect Planning Corp. v.
Feil, 774 F.2d 1132, 1139 (Fed. Cir. 1985) (“IPC’s view is
incorrect that the PTO’s [reissue] decision must be given
controlling weight . . . .”). While the PTO’s findings
during reexamination are “evidence the court must consider
in determining whether the party asserting invalidity
has met its statutory burden by clear and convincing
evidence,” they are not dispositive. Fromson, 755 F.2d at
1555.
Instead, the “deference [owed] to the decisions of the
USPTO takes the form of the presumption of validity
under 35 U.S.C. § 282. That is, by statute a patent is
valid upon issuance and included within the presumption
of validity is a presumption of non-obviousness.” Pfizer,
480 F.3d at 1359 (emphases added) (citations omitted).
This presumption also follows a patent claim surviving
reexamination. See Superior Fireplace Co. v. Majestic
Prods. Co., 270 F.3d 1358, 1367 (Fed. Cir. 2001) (“Challenges
to the validity of claims, whether regularly issued,
issued after a reexamination . . . or issued after a reissue
. . . must meet the clear and convincing standard of
persuasion. This requirement is based on the presumption
of validity.” (emphasis added) (citations omitted)).
The presumption of validity, however, is just that—a
presumption—which can be overcome by the patent
challenger who meets its high burden of proving the
factual elements of invalidity by clear and convincing
evidence. Id. We recognize the district court must consider
reexaminations as evidence “in determining whether
the party asserting invalidity has met its statutory burden
by clear and convincing evidence.” Pfizer, 480 F.3d at
1360 (quoting Fromson, 755 F.2d at 1555). But just as an
original examination resulting in patent issuance does not
foreclose an invalidity attack in district court, so too does
a reexamination confirming a claim not preclude a patent
challenger from meeting its burden of proving invalidity.
We thus “affirm the obligation of the district court to
reach an independent conclusion.” Interconnect, 774 F.2d
at 1139.



The same could be said of a district court's obligation
of de novo review of a magistrate's conclusions of law.

**Of interest:


Finally, Exmark asserts that Briggs’ strategic decision
to challenge validity through reexamination at the
PTO gave Briggs advantages that it would not get in
district court, including a lack of a presumption of validity
and the ability to rely on the broadest reasonable interpretation.
Therefore, Exmark argues, Briggs cannot
ignore the result of reexamination having chosen its
forum and lost. Exmark seems to suggest that because
Briggs was unable to invalidate the claims under a lower
standard of patentability and a broader claim construction
standard, Briggs cannot establish invalidity by clear
and convincing evidence. While this argument seems
facially logical, it fails nonetheless.
It is important to consider the substantive and procedural
differences between challenging patentability in an
ex parte reexamination and challenging patent validity in
federal court. Notably, unlike challenging validity in
district court, in an ex parte reexamination, the claims
are construed under the broadest reasonable interpretation,
the patent challenger does not participate beyond its
initial request for reexamination, the admission of evidence
is not governed by the Federal Rules, and the
burden of proving unpatentability is merely a preponderance
of evidence. Such differences, however, are material
in district court litigation. For example, the scope of the
construed claims, particularly to the extent there are
differences between the PTO’s and district court’s construction,
must be considered in determining whether a
genuine issue of material fact exists as to whether a prior
art reference anticipates or renders a claim obvious.
In this case, the district court adopted the parties’
agreed-to construction of “first flow control baffle” as “a
front structure within the walls of the mower deck that
controls the flow of air and grass clippings.” Exmark Mfg.
Co. v. Briggs & Stratton Power Prods. Grp., LLC, No.
8:10CV187, 2011 WL 5976264, at *4 (D. Neb. Nov. 29,
2011); see also J.A. 1558 at 105:14–18. On appeal of the
reexamination before the Board, in which Briggs did not
participate, Exmark and the examiner disagreed about
the proper interpretation of “baffle” and “flow control
baffle.” Exmark argued that “the entire first flow control
baffle must be a baffle, and thus, the individual baffle
portions must also be baffles,” and that “a ‘baffle’ needs to
control the flow of air and grass clippings.” J.A. 3708.
The Board agreed with Exmark and construed “baffle”
and “flow control baffle” as “an element that ‘controls’ the
flow of air and grass clippings within the mower deck in a
‘meaningful way.’” J.A. 3707.




***Of previously reviewed prior art, note a previous
post on IPBiz, including text:


Beecham's '639 patent on nabumetone (RELAFEN) was found invalid
over prior art that had been examined by the PTO.
There were separate issues of unenforceability (inequitable conduct).
Curiously, in a parallel application to that leading to the '639 patent,
Beecham told the PTO that the prior art did not even disclose the compound nabumetone.

I had written in Intellectual Property Today in July 2001 ("A Tale of Conflicting Models - The Coming Skirmish on the IP Frontier"): (...)



See
GlaxoSmithKline settles RELAFEN case

See also
http://ipbiz.blogspot.fr/2008/08/patent-attorneys-should-not-assume-peer.html

Values learned from Gettysburg

Back in October 2017, there was some flutter about a Twitter posting by James Comey, which included a photograph from
Gettysburg National Military Park.
See James Comey might be pondering 'leadership and values' at Gettysburg .

A bit of detective work had preceded this. See This Is Almost Certainly James Comey’s Twitter Account by
Ashley Feinberg.

LBE includes here a photo at Little Round Top at Gettysburg taken in January 2018 showing a soaring hawk against a cloud framed by the statue of Brigadier General Gouverneur Kemble Warren.

Warren was a significant hero at Gettysburg, for recognizing the significance of Little Round Top. HOWEVER, after Five Forks, Warren was removed from command of V Corps, and spent the rest of his life trying to clear his name.

As to the hawk, cross-reference to the opening and closing scenes of the movie "Bridge on the River Kwai."

Photo by LBE:

Darrell Issa of California's 49th congressional district not running for re-election

Although known in IP circles for his patent positions, Issa was involved in the recall of then Governor Gray Davis; from wikipedia:


Issa came to national prominence in 2003 when he contributed more than $1.6 million to help fund a signature-gathering drive for the petition to recall California Governor Gray Davis. At the time he made the contribution, it was widely believed that Issa intended to place himself on the ballot to replace Davis. However, following the entrance of fellow Republican Arnold Schwarzenegger into the race, two days before the filing deadline, Issa announced that he would not run.



And, about one year ago in January 2017:


President-elect Donald Trump has decided to keep former Google executive Michelle Lee on as director of the U.S. Patent and Trademark office, according to Rep. Darrell Issa, who informed tech industry organizations gathered in Washington Thursday for a breakfast event.

Issa's comments were confirmed by two sources in attendance and a congressional aide.




link: https://www.politico.com/blogs/donald-trump-administration/2017/01/michelle-lee-patent-office-chief-to-stay-on-233847

From USInventor:


US Inventor’s Paul Morinville, along with other passionate inventors, took to the streets this weekend to protest Congressman Darrell Issa and his views on Intellectual Property policy.

Paul writes: “Issa bullied through the America Invents Act to ingratiate his friends and contributors at the CTA. While Issa is weakening our patent system, China, Europe and other countries are strengthening theirs. It is today better to patent in China than it is to patent here. If Issa is allowed to continue, we will not only be buying goods manufactured in China, but they will be invented there as well.”