CAFC ok's trademark “SCHLAFLY” for beer

Note the trademark case related to the estate of the late Phyllis Schlafly :


The Saint Louis Brewery (“SLB”) is a craft brewery
that was founded in 1989 by Thomas Schlafly and Daniel
Kopman in St. Louis, Missouri. The brewery began
selling beer with the SCHLAFLY logo in 1991, and asserts
that it “has continuously sold beer under its
SCHLAFLY trademark” ever since. Appellee’s Br. 2. In
2011 SLB applied for trademark registration for the word
mark “SCHLAFLY” for use with various types of beer.
The application drew opposition from two relatives of
Thomas Schlafly (“the Opposers”): Phyllis Schlafly,
Thomas’s aunt, and Bruce Schlafly. The Trademark Trial
and Appeal Board (“TTAB” or “the Board”) denied the
opposition.
The Opposers appeal, arguing that the TTAB did not
recognize that the mark was “primarily merely a surname,”
and that the TTAB improperly accepted that the
mark has acquired secondary meaning although the
applicant did not provide survey evidence. The Opposers
also claim violation of their First Amendment, Fifth
Amendment, and Due Process rights and protections.
We conclude that the mark “SCHLAFLY” for beer
meets the requirements for registration, and affirm the
decision of the TTAB.

Of possible relevance to multiple sclerosis

Noting the post Long-term Rituxan Treatment Is Effective and Safe in MS, Study Shows , one observes
the text reported by Reuters:

Celltrion Inc’s Truxima on Wednesday became the first biosimilar to Roche Holding AG’s $7-billion-per-year cancer drug Rituxan to be approved in the United States to treat non-Hodgkin’s lymphoma.

link: https://www.reuters.com/article/us-celltrion-fda/fda-approves-first-biosimilar-to-roche-cancer-drug-rituxan-idUSKCN1NX2IQ

Maxchief loses appeal at CAFC

The outcome:


Maxchief Investments Limited (“Maxchief”) appeals
from the judgment of the District Court for the Eastern
District of Tennessee. The district court dismissed
Maxchief’s declaratory judgment action against Wok &
Pan, Ind., Inc. (“Wok”) for lack of personal jurisdiction
and dismissed Maxchief’s tortious interference claim for
lack of subject matter jurisdiction. Because Wok lacked
sufficient contacts with the forum state of Tennessee for
personal jurisdiction as to both the declaratory judgment
claim and the tortious interference claim, we affirm.



The CAFC made an analogy:



This case is analogous to Walden. There, Nevada
plaintiffs sued an out-of-state defendant for conducting an
allegedly unlawful search while the plaintiffs were in
Georgia preparing to board a plane bound for Nevada. Id.
at 279–81. The Court held that the Nevada courts lacked
jurisdiction even though the plaintiffs were Nevada
residents and “suffered foreseeable harm in Nevada”
because the defendant’s “relevant conduct occurred entirely
in Georgia.” Id. at 289, 291. The defendant’s “actions
in Georgia did not create sufficient contacts with Nevada
simply because he allegedly directed his conduct at plaintiffs
whom he knew had Nevada connections.” Id. at 289.
So too here. Wok’s California lawsuit did not create
sufficient contacts with Tennessee simply because Wok
directed the lawsuit at an entity (Staples) that Wok knew
had a Tennessee connection (Meco).

Sunday Morning on 25 Nov 2018 does conspiracy theories

Lee Cowan hosted Sunday Morning on November 25, 2018, with the cover story on conspiracy theories by Susan Spencer.

Among various factoids, 54% of survey respondents believe there is a JFK coverup, and 10% believe the moon landing was a fake. The "alien lizards" theory was mentioned. One Professor Uscinski of the University of Miami was interviewed.

Almanac did Andrew Carnegie, born this day in 1835. In 1901 Carnegie sold his steel interests to J. P. Morgan, and died in 1919.

In a different survey, CBS reported 50% of respondents pray "often."

A sort of anniversary was that of the water bed, with Luke Burbank doing a story, including disucssion of City Furniture, and the launch of a new type of water bed. The patent was discussed, but not the litigation thereon.

Rita Braver did Gary Hart and the events of May 1987. Hart's work on the chip protection act was not mentioned.

The moment of nature was the San Juan Mountains near Durango, Colorado.

Enplas wins on damages; Judge Newman dissents

The outcome of Enplas:



Enplas Display Device Corporation appeals the district
court’s summary judgment that claim 20 of Seoul
Semiconductor Company, Ltd.’s (“SSC”) U.S. Patent
No. 6,007,209 is not anticipated. Following a jury trial on
the remaining infringement and invalidity issues, Enplas
also appeals the district court’s denial of judgment as a
matter of law (“JMOL”) that SSC’s U.S. Patent
No. 6,473,554 is anticipated; denial of JMOL of no induced
infringement; and denial of JMOL that the jury’s
damages award is excessive and not supported by the
trial evidence.

For the reasons below, we affirm the district court’s
judgment that claim 20 of the ’209 patent and the asserted
’554 patent claims are not anticipated. Although a
close question, we also affirm the district court’s denial of
JMOL of no inducement. We hold, however, that the
district court erred when it denied JMOL that the damages
award was not supported by substantial evidence. We
therefore vacate the jury’s damages award, and remand
for further proceedings.




Judge Newman wrote separately:


I concur in the court’s decision sustaining the validity
of the Seoul Semiconductor Company (“SSC”) patents in
dispute and affirming the judgment of induced infringement.
The jury verdicts were reached on correct instructions
of law, and are supported by substantial evidence. I
must, however, dissent from the reversal of the jury’s
damages verdict. On the unrebutted testimony presented
to the jury, the verdict is supported by substantial evidence
and requires affirmance.

A jury’s damages verdict receives substantial deference.
See Los Angeles Mem’l Coliseum Comm’n v. Nat’l
Football League, 791 F.2d 1356, 1365 (9th Cir. 1986)
(“[W]e undertake only limited review of jury damages
awards, in order to avoid encroaching upon the jury’s
proper function under the Constitution.”); Handgards,
Inc. v. Ethicon, Inc., 743 F.2d 1282, 1297 (9th Cir. 1984)
(“A jury’s finding of the amount of damages must be
upheld unless the amount is grossly excessive or monstrous,
clearly not supported by the evidence, or only
based on speculation or guesswork.” (internal quotation
marks omitted) (quoting Blanton v. Mobil Oil Corp., 721
F.2d 1207, 1216 (9th Cir. 1983)). On procedures not
unique to patent law, we apply the procedural law of the
regional circuit. The standard of review of the jury’s
damages verdict is the standard of the Ninth Circuit, the
forum of the jury trial. The court today departs from
these procedural principles, although these principles
constitute binding precedent.

(...)

In direct analogy, the district court herein properly allowed
SSC’s damages expert to testify concerning a hypothetical
negotiation for a freedom-to-operate license.
Deference is owed to the district court’s evidentiary
ruling, which comports with precedent. See Harper v.
City of Los Angeles, 533 F.3d 1010, 1030 (9th Cir. 2008)
(“We afford broad discretion to a district court’s evidentiary
rulings.”); see also Zhang v. Am. Gem Seafoods, Inc.,
339 F.3d 1020, 1038 (9th Cir. 2003) (“We must accept any
reasonable interpretation of the jury’s actions, reconciling
the jury’s findings by exegesis if necessary . . . ; a search
for one possible view of the case which will make the
jury’s finding inconsistent results in a collision with the
Seventh Amendment.”) (internal citations omitted). The
majority’s view produces such a collision.

(...)

My colleagues state that “Enplas was not required to
produce a witness to rebut SSC’s damages theory.” Maj.
Op. at 20 n.1. While this is correct in the abstract, it does
not atone for Enplas’ litigation decision to leave the
damages theory unrebutted. “Vigorous crossexamination,
presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional
and appropriate means of attacking shaky but
admissible evidence.” Daubert, 509 U.S. at 596. The
failure to provide contrary evidence, or even challenge the
evidence SSC presented, may well have affected the jury’s
verdict.
Here, the damages testimony was clearly relevant,
the jury was correctly instructed, and the verdict was in
conformity with the evidence. There is no basis to overturn
the denial of JMOL, for substantial and unrebutted
evidence supported the jury verdict. See Cataphote Corp.
v. De Soto Chem. Coatings, Inc., 356 F.2d 24, 26 (9th Cir.),
opinion modified on denial of reh’g, 358 F.2d 732 (9th Cir.
1966) (“It is not [the Appellate Court’s] function to reevaluate
the evidence presented below. We cannot substitute
our judgment for the first-hand evaluation made by the
trier of fact. Pursuant to Rule 52(a) of the Federal Rules
of Civil Procedure our obligation is to determine if the
findings below were ‘clearly erroneous.’ This statutorily
imposed standard does not vests us with power to reweigh
the evidence presented at trial in an attempt to assess
which items should and which should not have been
accorded credibility.”). It is not the appellate judge’s role
to provide the evidence that a party declined to provide at
trial.

(...)

The Court has cogently stated: “Few bodies of law
would be more difficult to reduce to a short and simple
formula than that which determines the measure of
damage recoverable for actionable wrongs.” F. W. Woolworth
Co. v. Contemporary Arts Inc., 344 U.S. 228, 232
(1952). Until today, “we have never laid down any rigid
requirement that damages in all circumstances be limited
to specific instances of infringement proven with direct
evidence.” Lucent Techs., 580 F.3d at 1334. Faced with
unopposed expert testimony describing a hypothetical
negotiation for a freedom-to-operate license, my colleagues
“create a hypothetical negotiation far-removed
from what parties regularly do during real-world licensing
negotiations.” Id.
The damages verdict was the product of correct jury
instructions, and testimony on examination and crossexamination
before the jury. The lump-sum verdict was
for “all past and future infringement,” Maj. Op. at 19, as
the jury was instructed. My colleagues’ insistence that
the payment was for non-infringing products was not
presented at trial, and has no support in the record. The
jury verdict is supported by substantial evidence, and
should be affirmed. I respectfully dissent from the court’s
contrary ruling.

CBS Sunday Morning does Nathan Myhrvold; 60 Minutes does drug prices (18 Nov 2018)

CBS Sunday Morning on November 18, 2018 did the annual "food" issue and, in so doing, covered
aspects of Nathan Myhrvold, of Intellectual Ventures in the piece
[ https://www.cbsnews.com/news/nathan-myhrvold-modernist-cuisine-eye-popping-pictures-of-food/ ]

Of past IPBiz coverage of Myhrvold, see also The Theory of Invention

Of some notes:

Introduction of stories:
Susan Spencer cover story breakfast
Chrissy Teigen by Rita Braver. John Legend.
Lee Cowan food designer
Seth Doane on black gold balsamic vinegar
John Blackstone on Irish whiskey. San Fran

Headlines
Trump toured Paradise, CA.
Florida election
Argentine submarine San Juan
90th anni of Steamboat Willie.
Weather
All clear for Turkey Trot home

Pulse:
52% worry about how healthy food is
38% worry about taste

Cover story on cereals:
Thrillist. Eat nothing but cereal for one week. 82 bowls. Will Fulton
Paul Friedman of Yale WK Kellogg.
Re-energizing. Chocolate peanut butter cheerios.
Change shape of marshmallows in lucky charms.
Honey nut cheerios No. 1 top selling cereal

David Pogue. Nathan Myhrvold . Modernist Cuisine
Former Microsoft executive Nathan Myhrvold is a man of many talents,
from geophysics and space physics to economics – and now, taking
eye-popping portraits of food. To get his perfect pictures,
which have been featured in art galleries and in a book,
"The Photography of Modernist Cuisine," Myhrvold had to
design robots to better capture food at the perfect moment. David Pogue reports.

Luke Burbank. Tatertot. Napolean Dynamite
1953 Ore-Ida. Pricepoint too low.
Serena Alscul Hot Ones
Puckerbutt Carolina reaper
LaCroix water
Joseph priestley

Tony Dokoupil on straws. Lonely whale.

Oregon University. Food Science Center. Masone Lee Cowan

Moment of nature: wild turkeys in Marin County CA

***Later on 18 Nov 18, from "60 Minutes"

Spencer Williamson: The big misperception is that by raising the price of Evzio we reduce the access to this product. The exact opposite is true.

Lesley Stahl: More people are getting it at that price?

Spencer Williamson: Yeah, the numbers don't lie. So less than 5,000 prescriptions were filled in the first 12 months. In the second 12 months, over 65,000 prescriptions were filled.

How can that be? Well, when Kaleo set the initial price at $575, it was warned that would be too high for middlemen called pharmacy benefit managers, or PBMs that negotiate drug prices for health plans. Kaleo thought that its easy-to-use product would be irresistible in an escalating opioid crisis.

But when it hit the market, Williamson says, the PBMs did try to discourage doctors from prescribing Evzio… piling on cumbersome paperwork.

Spencer Williamson: A physician had to show that a patient had failed with another form of naloxone before they could get this product.

Lesley Stahl: If they failed they'd be dead.

Spencer Williamson: Exactly.

Lesley Stahl: I mean, does that make sense?

Spencer Williamson: No.

Lesley Stahl: No. Were there other hindrances?

Spencer Williamson: Yes, the second hindrance, the other-- the second tool they use is high patient copays. So they make the patient pay a big number outta pocket. Here's a scenario that played out many times. A patient goes into a pharmacy with her opioid prescription, and they go into the pharmacy with their life-saving product prescription.


Lesley Stahl: Co-prescribed.

Spencer Williamson: Co-prescribed. The opioid is prescribed, no problem, a very low co-pay. This gets blocked. The lifesaving product gets blocked.

That's because there were less expensive alternatives: the syringe and then the nasal spray. So, why didn't Kaleo just lower the price? Well, remember Todd Smith, the consultant? He advised them not to lower the price,

But to raise it, a lot. And try to work around the roadblocks put up by pharmacy benefit managers.

Under Smith's scheme, doctors, unhappy with excessive paperwork, are told to send prescriptions to specific pharmacies contracted to handle the forms for them. And these pharmacies mail the devices directly to the patient, making a trip to the drugstore unnecessary.

Kaleo, meanwhile, tries to get as much money out of the insurance companies as it can. But the heart of Smith's model is that while insurance companies are charged a lot, patients with commercial insurance are charged nothing. If your plan agrees to cover it, Kaleo pays your co-pay. And if your plan refuses, Kaleo will give you Evzio, 100% free.

Lesley Stahl: Are you saying that if your insurance company won't pay or they jack up the copay, that you'll pay? So patients don't pay anything?

Spencer Williamson: We will step in and make sure a patient pays nothing out-of-pocket. That's correct.

How can they afford that? The calculation is that even if only a handful of insurance companies agree to pay the high price, Kaleo would still rake in a lot of money, since it costs only about $80 to manufacture a pack of two.

Lesley Stahl: This whole idea was described to us as, and I'm quoting, "a legal shell game to bilk insurance companies."

Former Kaleo Employee 1: That's correct. Yes.

Lesley Stahl: And eventually, then, to bilk the rest of us. Don't we end up--

Former Kaleo Employee 2: Ultimately--

Former Kaleo Employee 1: It raises--the overall health care cost for everybody. You and I, paying our premiums, are the ones paying for it.

Former Kaleo Employee 2: If you think the insurance company's going to be (laughs) stuck with this bill in the long run? No!

You and I are stuck with the bill in another way: as taxpayers. Turns out the bulk of Kaleo's revenue for Evzio comes not from commercial insurance companies, but from Medicare.

This report by the Senate Permanent Subcommittee on Investigations led by Senators Rob Portman and Tom Carper, details how Kaleo made sure that doctors signed forms for Medicare patients, "…indicating that Evzio was medically necessary…" With that language Medicare has essentially no choice but to cover the device at near full price.

That resulted in, "more than $142 million in charges to taxpayers in just the last four years." The report says Kaleo, "…not only exploits a country in the middle of an opiod crisis, but also American taxpayers…" Accusations Kaleo denies.

Lesley Stahl: And you make a profit. You make a profit?

Spencer Williamson: So, we've actually lost money in our first four years of bringing this product to the market. The good news is we're saving lives. More people have access to this product.

Lesley Stahl: Why are you doing it if you're not making a profit?

Spencer Williamson: We're moving in a direction with a model that continues to evolve.

It seems to be "evolving" in the direction of scrapping the high-price plan altogether. Whether it's because the model failed to produce a profit or because they're under Senate investigation for, as the report lays out: exploiting Medicare. Williamson took the opportunity of our interview to make this offer.

Spencer Williamson: We want to reach out to all middlemen, all insurance companies to say, "We will lower this price to less than the original $575 if you will make sure that when a physician decides a patient is at risk, they can get it and they can afford it."

Lesley Stahl: But all the insurance companies have to agree for you to get there.

Spencer Williamson: We will work with one insurance company at a time.

Lesley Stahl: Have you done it yet?

Spencer Williamson: We have started those conversations. But I'm announcing it on 60 Minutes that our hands are out to offer this price for less than $575 as long as patients won't be blocked when they need it.

from Evzio: The overdose-reversal drug with a $4000+ price tag

CAFC affirms Acceleration Bay cases: "Acceleration’s poor claim drafting will not be an excuse for it to infuse confusion into its claim scope."

The outcome:



Patent owner Acceleration Bay, LLC (“Acceleration”)
appeals the final written decisions of the Patent Trial and
Appeal Board holding unpatentable claims 1–9 of U.S.
Patent No. 6,829,634, claims 1–11 and 16–19 of U.S.
Patent No. 6,701,344, and claims 1–11 and 16–17 of U.S.
Patent No. 6,714,966. Activision Blizzard, Inc., Electronic
Arts Inc., Take-Two Interactive Software, Inc., 2k Sports,
Inc., and Rockstar Games, Inc. (collectively, “Blizzard”)
cross-appeal portions of the Board’s decisions holding
patentable claims 10–18 of the ’634 patent, as well as
substitute claims 19 of the ’966 patent, 21 of the ’344
patent, and 25 of the ’634 patent. Blizzard also crossappeals
the Board’s decisions holding that the Lin article
is not a printed publication under 35 U.S.C. § 102(a). For
the following reasons, we affirm.



Interesting language in the CAFC decision:



“A claim typically contains three parts: the preamble,
the transition, and the body.” 3 Chisum on Patents § 8.06
(2018). Acceleration’s poor claim drafting will not be an
excuse for it to infuse confusion into its claim scope. We
conclude that “game environment” and “information
delivery service” are part of the preamble of the claims.
We see no beneficial purpose to be served by failing to
include a transition word in a claim to clearly delineate
the claim’s preamble from the body, and we caution
patentees against doing so.



As to printed publication



Whether a reference qualifies as a printed publication
under § 102 is a legal conclusion based on underlying fact
findings.6 Jazz Pharm., Inc. v. Amneal Pharm., LLC, 895
F.3d 1347, 1356 (Fed. Cir. 2018); accord Cooper Cameron
Corp. v. Kvaerner Oilfield Prod., Inc., 291 F.3d 1317, 1321
(Fed. Cir. 2002). One such fact question is public accessibility,
which we review for substantial evidence. Jazz
Pharm., 895 F.3d at 1356. “Because there are many ways
in which a reference may be disseminated to the interested
public, ‘public accessibility’ has been called the touchstone
in determining whether a reference constitutes a
‘printed publication’ . . . .” Id. (quoting In re Hall, 781
F.2d 897, 898–99 (Fed. Cir. 1986)). A reference is considered
publicly accessible if it was “disseminated or otherwise
made available to the extent that persons interested
and ordinarily skilled in the subject matter or art, exercising
reasonable diligence, can locate it.” Id. at 1355–56
(citing In re Wyer, 665 F.2d 221, 226 (CCPA 1981)). As
petitioner, Blizzard had the burden to prove Lin is a
printed publication. See id. at 1356.
The Board found that Lin was not publicly accessible
before the critical date. See J.A. 10–22; J.A. 114–127; J.A.
141–153. Based on the testimony of Glenn Little, a
Systems Administrator at the Computer Science and
Engineering (“CSE”) department of the University of
California, San Diego (“UCSD”), the Board found that Lin
had been uploaded to the CSE Technical Reports Li-
brary’s website as of November 23, 1999, which is not
challenged on appeal. See, e.g., J.A. 11–13. As the Board
explained, according to Mr. Little, “the CSE department
regularly maintains electronic technical reports and
records concerning those reports, and a staff member
assigns a unique identifier to each report based on the
year it was uploaded and the relative order it was uploaded
in comparison to other papers.” J.A. 11.
The Board then correctly noted that “public accessibility”
requires more than technical accessibility. J.A. 13.
Because there was no evidence that Lin was disseminated
to the public, the Board focused on whether an interested
skilled artisan, using reasonable diligence, would have
found Lin on the CSE Technical Reports Library website.
J.A. 13–14 (citing Voter Verified, Inc. v. Premier Election
Sols., Inc., 698 F.3d 1374, 1380–81 (Fed. Cir. 2012)). The
Board found that despite some indexing and search
functionality on the website, Lin was not publicly accessible.
See J.A. 15–19. It found the website allowed a user
to view a list of technical reports indexed only by author
or year and that there was no evidence as to how many
reports were in the Library’s database in 1999. See J.A.
16–17, 22. The Board determined that at best, Blizzard’s
evidence “suggests that an artisan might have located Lin
by skimming through potentially hundreds of titles in the
same year, with most containing unrelated subject matter,
or by viewing all titles in the database listed by
author, when the authors were not particularly well
known.” J.A. 17. The Board also found the website’s
advanced search form to be deficient. It found that while
the advanced search form appeared to allow a user to
search keywords for author, title, and abstract fields,
evidence demonstrated that functionality was not reliable.
J.A. 18–19, 22. In sum, the Board determined that Blizzard
“has not shown sufficiently that the UCSD CSE
Technical Reports Library was searchable or indexed in a
meaningful way so that a person of ordinary skill in the
art would have located Lin.” J.A. 22. The Board, therefore,
concluded Lin is not a printed publication under
§ 102(a). J.A. 22.
The Board did not err in concluding Lin is not a printed
publication. Substantial evidence supports its findings
that Lin was not publicly accessible, including that Lin
was not indexed in a meaningful way and that the website’s
advanced search form was deficient. Mr. Little
testified he does not know how the search works or how
keywords are generated, that he never searched for Lin
using the advanced search form, and that it was not the
CSE department’s practice to verify the advanced search
capability for title and abstract when a new article was
uploaded. See J.A. 18; J.A. 7034–35. Mr. Little also
admitted it was possible the search function did not work.
J.A. 7035–36. Acceleration presented evidence that a
recent advanced search for keywords in the title and
abstract of Lin failed to produce any results. J.A. 7035–
36; J.A. 7991–94. Blizzard argues these results are
unauthenticated hearsay and are based on searches
conducted years after the critical date, but Mr. Little
testified that as to the website, “[i]t’s pretty much the
same, actually, between [1999] and now. We’re running
the same software.” J.A. 7031 at 19:15–20:23; see also
J.A. 18–19. We will not disturb the Board’s weighing of
the evidence. Substantial evidence supports the Board’s
finding that there “is insufficient evidence of record to
support a finding that a person of ordinary skill in the art
in 1999 could have located Lin using the CSE Library
website’s search function.” See J.A. 19.


The SAS case also arises:



The Board did not abuse its discretion in declining to
consider the cited paragraphs in Dr. Karger’s reply declaration.
See J.A. 271–72. The declaration raises a new
obviousness argument for this limitation that could have
been made in the petition. The Board correctly noted this
argument was not made in the petition, which proposed
that Shoubridge rendered obvious a number of other claim
limitations. Blizzard, as petitioner, had an opportunity to
present this argument in its petition, but chose not to.
See SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1355 (2018)
(noting “the petitioner is master of its complaint”); id. at
1358 (noting the statute “makes the petition the centerpiece
of the proceeding both before and after institution”).
As we recently explained,

[i]t is of the utmost importance that petitioners in
the IPR proceedings adhere to the requirement
that the initial petition identify “with particularity”
the “evidence that supports the grounds for the
challenge to each claim.” 35 U.S.C. § 312(a)(3).
“All arguments for the relief requested in a motion
must be made in the motion. A reply may only respond
to arguments raised in the corresponding
opposition or patent owner response.” 37 C.F.R.
§ 42.23(b). Once the Board identifies new issues
presented for the first time in reply, neither this
court nor the Board must parse the reply brief to
determine which, if any, parts of that brief are re-
sponsive and which are improper. As the Board
noted, “it will not attempt to sort proper from improper
portions of the reply.” Office Patent Trial
Practice Guide, 77 Fed. Reg. 48,756, 48,767 (Aug.
14, 2012).
Intelligent Bio-Sys., Inc. v. Illumina Cambridge Ltd., 821
F.3d 1359, 1369 (Fed. Cir. 2016). We conclude that the
Board did not abuse its discretion in not considering the
cited paragraphs of the reply declaration in its analysis.



QUERY: What happens if the Board relies on an argument not
briefed by the petitioner?

Trade show catalog found to be a printed publication

In GoPro vs. Contour, the CAFC issued a revised opinion following a petition for rehearing:


OPINION ISSUED: July 27, 2018
OPINION MODIFIED: November 1, 2018



with the following overview:


GoPro, Inc. appeals from final written decisions of the
Patent Trial and Appeal Board in two inter partes review
proceedings. In the proceedings, the Board found that the
petitioner, GoPro, did not demonstrate that the challenged
claims are unpatentable as obvious. The Board
based this decision on its conclusion that a certain GoPro
catalog is not a prior art printed publication. We disagree.
We vacate and remand for further proceedings
consistent with this opinion.



Of printed publication


Whether a reference constitutes a printed publication
under 35 U.S.C. § 102(b)3 is a legal conclusion based on
underlying factual determinations. See In re Lister, 583
F.3d 1307, 1311 (Fed. Cir. 2009). The issue of whether a
reference represents a printed publication is a question of
law that is reviewed de novo. See In re Klopfenstein, 380
F.3d 1345, 1347 (Fed. Cir. 2004). The Board’s findings of
fact, such as public accessibility, are reviewed for substantial
evidence. 5 U.S.C. § 706(2)(E).
Section 102(b) provides that a person shall be entitled
to a patent unless the invention was described in a printed
publication more than one year prior to the date of
application for patent in the United States. The printed
publication rule is based on the principle that once an
invention is in the public domain, it can no longer be
patented by anyone. Blue Calypso, LLC v. Groupon, Inc.,
815 F.3d 1331, 1348 (Fed. Cir. 2016).
We have interpreted § 102 broadly, finding that even
relatively obscure documents qualify as prior art so long
as the relevant public has a means of accessing them.
See, e.g., Jazz Pharm., Inc. v. Amneal Pharm., LLC, Nos.
17-1671, -1673, -1674, -1675, -1676, -1677, -2075, --- F.3d
----, slip op. at 11–22, 2018 WL 3400764, at *5–9 (Fed. Cir.
July 13, 2018). For example, we have determined that a
single cataloged thesis in a university library was “sufficient[ly]
accessible to those interested in the art exercising
reasonable diligence.” In re Hall, 781 F.2d 897, 900
(Fed. Cir. 1986). Subsequently, we explained that
“[a]ccessibility goes to the issue of whether interested
members of the relevant public could obtain the information
if they wanted to” and “[i]f accessibility is proved,
there is no requirement to show that particular members
of the public actually received the information.” Constant
v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1569
(Fed. Cir. 1988). Accordingly, “[a] reference will be considered
publicly accessible if it was ‘disseminated or
otherwise made available to the extent that persons
interested and ordinarily skilled in the subject matter or
art exercising reasonable diligence, can locate it.’” Blue
Calypso, 815 F.3d at 1348



The Board's thoughts:


The Board found all the evidence presented by GoPro
credible,4 but explained that GoPro did not provide evidence
that the dealer show was advertised or announced
to the public, such that a person interested and ordinarily
skilled in the art from the public would have known about
it. The Board relied on the evidence presented by Contour,
which consisted of statements about the dealer show
being open exclusively to dealers and not the general
public. See J.A. 422–23. Specifically, the Board found
that a person ordinarily skilled in the art would not be
interested in the dealer show because it was not an academic
conference or camera industry conference, but
rather a dealer show for action sports vehicles like motorcycles,
motorbikes, ATVs, snowmobiles, and watercraft.
See ’694 FWD, at 26–27.



The CAFC noted:


We disagree with the Board’s conclusion that the evidence
presented by GoPro failed to satisfy the § 102(b)
requirements. The case law regarding accessibility is not
as narrow as the Board interprets it. The Board focused
on only one of several factors that are relevant to determining
public accessibility in the context of materials
distributed at conferences or meetings. The Board cited
no cases where we have strictly held that the expertise of
the target audience is dispositive of the inquiry of accessibility.
Cf. Medtronic v. Barry, 891 F.3d 1368, 1382 (Fed.
Cir. 2018) (“The expertise of the target audience can be a
factor in determining public accessibility. But this factor
alone is not dispositive of the inquiry.” (citations omitted)).
Rather, our case law directs us to also consider the
nature of the conference or meeting; whether there are
restrictions on public disclosure of the information; expectations
of confidentiality; and expectations of sharing the
information. Id. at 1382–83. When direct availability to
an ordinarily skilled artisan is no longer viewed as dispositive,
the undisputed record evidence compels a conclusion
that the GoPro Catalog is a printed publication as a
matter of law.
Trade shows are not unlike conferences—a trade show
is directed to individuals interested in the commercial and
developmental aspects of products.

(...)

The Board concluded that the GoPro Catalog was not
a printed publication because the Tucker Rocky Dealer
Show was not open to the general public7 and GoPro
failed to provide evidence that someone ordinarily skilled
in the art actually attended the dealer show. But, the
standard for public accessibility is one of “reasonable
diligence,” Blue Calypso, 815 F.3d at 1348, to locate the
information by “interested members of the relevant public.”
Constant, 848 F.2d at 1569 (emphasis added). Mr.
Jones testified that the dealer show was attended by
actual and potential dealers, retailers, and customers of
POV video cameras. Additionally, the GoPro Catalog was
disseminated with no restrictions and was intended to
reach the general public. Based upon Mr. Jones’s testimony,
the evidence provided by GoPro regarding the
Tucker Rocky Dealer Show, and the evidence of the Tucker
Rocky Distributing website, we conclude that GoPro
met its burden to show that its catalog is a printed publication
under § 102(b).



Note also the Order including text:



(2) The previous precedential opinion in this appeal,
issued July 27, 2018, is withdrawn and replaced
with the modified precedential opinion accompanying
this order.

Who won the battle of Kennesaw Mountain?

In the realm of copying, the television show "Amos Burke: Secret Agent" occupies an unusual place. The producers took an existent show,
Burke's Law, starring Gene Barry as Amos Burke, from a plotline involving a rich Los Angeles police captain to one involving the same character, now a "secret agent." Counting on the trend of popularity of other secret agent shows, including Man from U.N.C.L.E., the re-vamp, with the copied theme, quickly failed.
Going back to the fall 1965 TV schedule, Amos Burke (ABC) was on Wednesday at 10pm, opposite I Spy on NBC. The Wild Wild West, a spy show set in the 19th Century western US, was in the top 30 at 7:30pm on Friday, and Man from UNCLE was Friday at 10pm, and in the top 20. Get Smart, Saturday at 8:30pm, was also in the top 20, opposite Secret Agent. Honey West was Friday at 9pm.

In the episode -- Or No Tomorrow --, first aired December 15, 1965, Burke attempts to "test" the cover
of a fellow agent by asking "Who won the battle of Kennesaw Mountain," as if that question has a
definite and obvious answer. The questioned agent deflects by saying history is not her thing. The battle of Kennesaw Mountain saw more
Union than Confederate losses, but the Confederates were unable to stop Sherman from taking Atlanta, and marching to the sea. Maybe a tactical victory for the Confederates, but overall a loss. Contemplate also the Battle of Monocacy in Jubal Early's march to Washington.

In the previous episode -- The Man's Men --, Burke looks for a radioactive dye on suspects by using an infrared flashlight.
The show contains lines such as "I don't drink with lobbyists" and (of Washington DC) Truth is not the most popular commodity here. The villains, who all end up dead, are a lobbyist, a political columnist and a Senator's wife.

Although Amos Burke: Secret Agent died quickly, one of the last episodes of Burke's Law spun off Honey West. (Who Killed the Jackpot?)

"CBS Sunday Morning" remembers Walter Cronkite on November 4, 2018

The Almanac feature began


On November 4, 1916, 102 years ago today, future CBS News correspondent Walter Cronkite was born in St. Joseph, Missouri.



and ended with his last CBS News signoff


"And that's the way it is, Friday, March 6th, 1981."



Almanac noted


He joined CBS News in 1950, and in September 1963, he anchored a television news breakthrough: The first daily half-hour network news program.


The Almanac feature did not observe that the 15 minute Huntley-Brinkley report began October 29, 1956, and expanded to 30 minutes on September 9, 1963, one week after the Cronkite show began 30 minutes.

The Moment of Nature was captioned Wolves in Yellowstone, but included other animals. It ended with a curious encounter between a wolf and a bear.

There was a piece Jeff Goldblum: Living life like a jazz piece, which included a brief clip from the New Jersey classic The Adventures of Buckaroo Banzai Across the 8th Dimension! Jeff's character was Dr. Sidney Zweibel/New Jersey. Tho the film was depicted mainly in New Jersey, it was mainly shot in California.

Politicians and the church, in 1960 (Kennedy) and in 2018 (Sessions)

Recall the words of Presidential candidate John Kennedy in 1960:


I believe in an America that is officially neither Catholic, Protestant nor Jewish; where no public official either requests or accepts instructions on public policy from the Pope, the National Council of Churches or any other ecclesiastical source; where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials; and where religious liberty is so indivisible that an act against one church is treated as an act against all.


link: https://www.npr.org/templates/story/story.php?storyId=16920600

From a speech on Sept. 12, 1960, given by John F. Kennedy to the Greater Houston Ministerial Association, a group of Protestant ministers. The Protestants were concerned about possible Catholic influence on political decision making.

Flash forward 58 years, and Protestants are trying to impose religion upon public acts of officials.

A recent comment in the discussion of Attorney General Sessions and the United Methodist Church:



Political actions are not personal conduct’? What’s that supposed to mean? What’s the basis in Scripture for that statement? I know nothing in our Book of Discipline that bifurcates personal behavior from public, politically motivated behavior. Whatever happened to, ‘We must obey God rather than human beings (Acts 5:29)?”

The 14th Amendment and citizenship for native Americans

In the birthright/14th Amendment debate, one topic that has not been discussed by the Trump critics is that citizenship status of
native Americans AFTER the passage of the 14th Amendment.

Wikipedia notes:


The Indian Citizenship Act of 1924, also known as the Snyder Act, was proposed by Representative Homer P. Snyder (R) of New York and granted full U.S. citizenship to the indigenous peoples of the United States, called "Indians" in this Act. While the Fourteenth Amendment to the United States Constitution defines as citizens any persons born in the U.S. and subject to its jurisdiction, the amendment had been interpreted to not apply to Native people.



It might be difficult to reconcile the past history of excluding native Americans, including children, from U.S. citizenship with granting citizenship to children of parents serving a different sovereign. Separately, in terms of the recent discussion of the DNA of Elizabeth Warren, note the statement of the Cherokee nation:


“Sovereign tribal nations set their own legal requirements for citizenship, and while DNA tests can be used to determine lineage, such as paternity to an individual, it is not evidence for tribal affiliation,” the Cherokee Nation’s Secretary of State Chuck Hoskin Jr. said. “Using a DNA test to lay claim to any connection to the Cherokee Nation or any tribal nation, even vaguely, is inappropriate and wrong.”


link: http://time.com/5425427/cherokee-nation-responds-elizabeth-warrens-dna-test/


Some relevant past posts on the 14th Amendment/birthright discussion:

From USAToday, President Trump may have met his match when it comes to U.S. citizenship: The 14th Amendment , which includes the text


The Supreme Court ruled in United States v. Wong Kim Ark, an 1898 case, that a man born on U.S. soil to parents who were Chinese nationals was a citizen. As part of a 1982 decision, Plyler v. Doe, the high court said that even if someone enters the country illegally, they are within U.S. jurisdiction, and their children born in the U.S. are entitled to the protections of the 14th Amendment.



BUT which also includes the erroneous text about Dred Scott


Dred Scott brought the first lawsuit in which the Supreme Court denied blacks citizenship. Scott sued for his freedom when he was enslaved after living free in Missouri. His owners eventually freed him.



From yahoo news, Kellyanne Conway’s Husband Shreds Trump Proposal To End Birthright Citizenship


“Sometimes the Constitution’s text is plain as day and bars what politicians seek to do,” Conway wrote with fellow attorney Neal Katyal in The Washington Post. “Such a move would be unconstitutional and would certainly be challenged. And the challengers would undoubtedly win.”

The editorial was published just hours after President Donald Trump said he was preparing an executive order to rescind the longstanding 14th Amendment, which grants citizenship to any person born on American soil, regardless of their parent’s nationality. Legal scholars mostly agree that the provision could only be changed through a separate constitutional amendment.



A commenter to the yahoo news article named Roger made pertinent points:


Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country.
As John Eastman, former dean of the Chapman School of Law, has said, many do not seem to understand “the distinction between partial, territorial jurisdiction, which subjects all who are present within the territory of a sovereign to the jurisdiction of that sovereign’s laws, and complete political jurisdiction, which requires allegiance to the sovereign as well.”
In the famous Slaughter-House cases of 1872, the Supreme Court stated that this qualifying phrase was intended to exclude “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he “owed immediate allegiance to” his tribe and not the United States.
American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924. There would have been no need to pass such legislation if the 14th Amendment extended citizenship to every person born in America, no matter what the circumstances of their birth, and no matter who their parents are.
Even in U.S. v. Wong Kim Ark, the 1898 case most often cited by “birthright” supporters due to its overbroad language, the court only held that a child born of lawful, permanent residents was a U.S. citizen. That is a far cry from saying that a child born of individuals who are here illegally must be considered a U.S. citizen.

"Fake Facts" on TriviaGenius.com

On 2 Nov 2018, TriviaGenius asserted the correct answer to -- What does "quid pro quo" mean in English? -- was let the buyer beware and NOT something for something.

link: https://www.triviagenius.com/answer/5bd9d6bfc2060e000edbe4a8

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