IPBiz

GametimeIP rips Bessen

2012-01-26T08:40:00.000-08:00

The post begins:

In September 2011, flawed research from a handful of Boston University professors made headlines with several highly popular news organizations claiming that patent owners were somehow responsible for a net loss of billions of dollars in wealth from corporate America.

The post is (in part) discussing Do nonpracticing entities benefit society by facilitating markets for technology? by James Bessen, JennifeR foRd, and michael J. meuReR.

"State of the Union" skipped biofuels?

2012-01-26T08:26:00.000-08:00

A piece in Ethanol Producer Magazine begins:

President Barack Obama stressed the need for the nation to “double-down” on clean energy during his Jan. 24 State of the Union address, but neglected to include biofuels in his list of domestically available energy sources, even while noting that the U.S. relied less on foreign oil last year than in any of the past 16 years. Instead, the president announced a plan to open more areas for offshore oil and gas drilling and emphasized the importance of natural gas, wind, solar and high-tech battery production.

However, at blogs.scientificamerican one had the following emphasis on biofuels:

The U.S. military constitutes a huge market for alternative fuels. The Air Force alone burns 2.4 billion gallons of jet fuel a year. The Department of Defense burns $18 billion worth of oil a year, four fifths of the federal governments’ energy tab.

In truth, a shift within the U.S. military to green fuels has been under way for more than a year. The U.S. Navy has been purchasing jet fuel derived from camelina—a derivative of canola—and a diesel like fuel derived from algae for its ships. The U.S. Air Force in 2010 began testing camelina oil in place of petroleum in its fuels as part of a program to derive as much as half of its fuel from alternative sources by 2016.

BUT implicitly acknowledged the absence of biofuels in the following:

I will not walk away from the promise of clean energy,” Obama said during his State of the Union address. ” I will not cede the wind or solar or battery industry to China or Germany because we refuse to make the same commitment here. We have subsidized oil companies for a century. That’s long enough. It’s time to end the taxpayer giveaways to an industry that’s rarely been more profitable, and double-down on a clean energy industry that’s never been more promising.”

“A beloved, but somewhat expected brand.”

2012-01-25T20:07:00.000-08:00

Finance.yahoo talks about problems at Olive Garden.

Within the article:

Darden president and chief operating officer Drew Madsen commented that Olive Garden has become “a beloved, but somewhat expected brand.”

The question is: What will the restaurant do to change its course? Short answer: A lot. Olive Garden plans to switch up the menu with healthier, low-cost choices.

CSI: Marg's final episode on Jan. 25, 2012

2012-01-25T19:09:00.000-08:00

Marg ends up shot, staying in "room 12." Gets her wound cauterized with a curling iron, but then leaves, with Russell.

Marg gets into a strip club run by Teddy, under the name "Goldilocks." Marg described her past "working the pole." Jimmy Tedero saw Marg as more than just a pretty face. Marg became a CSI talking to Jimmy at the strip club.

In the past episode, Laura Gabriel survived, but not so lucky in the beginning of this one. [She didn't really die, but gets to go to prison!]

Russell figured out that Marg's resignation letter was a fake. It had text: "I have to do something. I have one last bit of unfinished business." The plot of the bad guys: "Marg goes postal and kills Mark Gabriel."

Russell plans the escape from the strip club, in two body bags, one extra long.

Occam's Razor comes up, from Sara.

How was Laura Gabriel identified? Were the initially used exemplars faked? A gory scene taking bone marrow from a crispy corpse. James McQuade's body was really Jeffrey Kruger.

So, in reality, James McQuade of the FBI conspired with Laura Gabriel to incriminate Mark Gabriel. The police tip off Mark: Laura set "your own dogs on you."

41 Fern Ridge Road in Las Vegas.

Did McQuade try to save Marg? He saw in Marg, what he used to be. Someone with integrity. The FBI offers Marg a job.

Marg asks: "why me?" When we were kids, you always went for the guy who needed you. Laura: I take what I want. You would rather accept the life you have than get the life you want.
Marg said: when you chose me, you should have known it would turn out like this.

Everyone gets a message: "Family meeting called." (by Marg)

I wanted to say "how brilliant" I think you all are. Marg refers to the few changes made a few months ago. I was wrong when I said it's been a long 19 years. But, there comes a point, when one feels compelled to make a change. I've been offerred a job by the FBI. You are a bad assed team of criminalists.

Even though you're leaving you will always be hear with us.

King Kong on cocaine.

The last scene is with Marg's daughter.

IPBiz disagrees with Patently-O about Kent State decision of CAFC

2012-01-25T11:20:00.000-08:00

On January 24, Patently-O wrote about the Kent State case of the CAFC with the following text:

Comment: The court was also careful to limit its holding in another way. It could have concluded that Falana was inventor simply due to his contribution to the method used to make Compound 9. It did not. Instead, the panel held "that a putative inventor who envisioned the structure of a novel genus of chemical compounds and contributes the method of making that genus contributes to the conception of that genus." Id. at 15 (emphasis added). It was able to articulate the rule in this way because it agreed with the district court that the patent's independent claims do not include a temperature independence limitation - in other words, the claims as construed were not limited to Compound 9, but rather encompassed the genus of compounds produced using Falana's synthesis protocol. Falana thus contributed both to the method of making the genus as well as the structure of the genus itself. The opinion implies that the outcome could conceivably be different if the claims had been limited to Compound 9. See, e.g., Slip Op. at 17.

The opinion at page 17 states the following:

Although the Defendants argue that Falana did not contribute to the conception of Compound 9 because Compound 9 was first synthesized after Falana left the team, this argument is inapposite. The claims of the ’789 Patent are not limited to Compound 9. Instead, they claim a subset of the entire genus of naphthyl substituted TADDOLs—those which are RR enantiomers. Falana contributed to the conception of this genus by providing the team of which he was a part with the method for making these novel compounds. Falana’s lack of contribution to the discovery of Compound 9 itself does not negate his contribution of the method used by the other inventors to make the genus of compounds covered by the claims at issue.

The district court did not err in concluding that Falana’s contribution of the method used by the team of which he was a part for making the claimed compounds was enough of a contribution to conception to pass the threshold required for joint inventorship. We therefore affirm the district court’s determination.

IPBiz disagrees with the assertion --The opinion implies that the outcome could conceivably be different if the claims had been limited to Compound 9. -- IPBiz says the CAFC would say Falana was a co-inventor to a claim limited to compound 9 BECAUSE of his contribution to the method of making the genus of which compound 9 is a member. Falana contributed to conception of compound 9 by providing a way of implementing (synthesizing) compound 9. There was no disclosure in the specification of any method, other than Falana's, to make compound 9. It is separately correct that the opinion at page 17 does NOT imply
-- the outcome could conceivably be different if the claims had been limited to Compound 9 --

Falana's argument had appeared on page 13:

Falana responds that he was the one who developed the Synthesis Protocol, which made it possible to make a previously-unknown genus of compounds, to wit, naphthyl substituted TADDOLs. This was the method used by Falana to synthesize Compound 7, the method used by Seed to synthesize Compound 9, and the only method disclosed in the ’789 Patent for making the claimed compounds. Finally, Falana contends that because he contributed the method of making the novel class of compounds claimed in the ’789 Patent, his contribution to conception was sufficient to make him a joint inventor.

See also IPBiz post on 23 January 2012 Kent State University loses in Falana case

the text of the decision

**Some further commentary at Patently-O

OL said...
I must be missing something but this opinion is confusing me and seems internally inconsistent or at least incomplete. It says at page 17:

"Although the Defendants argue that Falana did not contribute to the conception of Compound 9 because Compound 9 was first synthesized after Falana left the team, this argument is inapposite. The claims of the ’789 Patent are not limited to Compound 9. Instead, they claim a subset of the entire genus of naphthyl substituted TADDOLs—those which are RR enantiomers. Falana contributed to the conception of this genus by providing the team of which he was a part with the method for making these novel compounds."

So, if a claim was limited only to Compound 9, the opinion seems to suggest that Falana would not be a joint inventor because compound 9 was discovered after Falana left EVEN THOUGH Falana still contributed the method to make compound 9.

The opinion in the above passage then suggests that the actual claimed subject matter includes more than compound 9 and includes the entire sub-genus of RR enantiomers. It is clear Falana conceived and reduced to practice one embodiment of the larger genus that includes both RR and SS enantiomers but there is nothing highlighting that Falana himself conceived and reduced to practice a RR enantiomer. The closest we get is a statement on page 4 that "Falana’s Synthesis Protocol could be used, and was used, to synthesize both RR and SS enantiomers." If Falana himself synthesized RR enantiomers that fell within the claims then Falana is clearly a joint inventor of the sub genus (ie those limited to RR enantiomers) or maybe even if the RR enantiomers were made by others on the team while Falana was still there then Falana was a joint inventor of the RR sub genus.

But if the RR enantiomers were made by others using Falana's method only after he left then the RR subgenus looks just like a claim to compound 9 and the opinion implies that compound 9 itself would not by jointly invented. If this analysis is sound then I am confused why the opinion does not tell us when the first RR enantiomers were made using the method. And if the timing of the first synthesis of the sub genus of RR enantiomers is not relevant then why did the opinion imply that it would be relevant for a claim limited to compound 9?

Reply Jan 25, 2012 at 04:15 PM
IANAE said in reply to OL...
So, if a claim was limited only to Compound 9, the opinion seems to suggest that Falana would not be a joint inventor because compound 9 was discovered after Falana left EVEN THOUGH Falana still contributed the method to make compound 9.

That's a questionable interpretation of what is essentially dicta anyway. The court was rejecting all arguments based on who didn't invent Compound 9 because the claim was not limited to Compound 9. Had the claim been so limited, they would have considered the argument, but they don't commit to whether it's a winner.

What really surprises me is that there's no specific finding of whether Compound 7 falls within the claim.

But if the RR enantiomers were made by others using Falana's method only after he left then the RR subgenus looks just like a claim to compound 9 and the opinion implies that compound 9 itself would not by jointly invented.

What if the RR enantiomers were made by others using Falana's method after Falana left the room? Same answer?

When multiple inventors are named on a patent, it's not usually because they all thought of claim 1 at the same time or they were all in the room when the new material was created. That's not the only way to make an inventive contribution.

Reply Jan 25, 2012 at 04:28 PM

The above comments really miss the point of what the CAFC was saying. Falana himself didn't make compound 9 AND he didn't make any compound within the scope of the claim. That is irrelevant to the point of conception: an idea AND a way of implementing it. Only Falana provided a way of making the compounds in the claim. He is a co-inventor for that reason.
He would be a co-inventor of a claim only to compound 9. The CAFC did not say, or suggest, otherwise.

CAFC remands part of Roche/Nova case; Roche wins remainder of appeal issues

2012-01-25T10:13:00.000-08:00

GRANTLAND G. DRUTCHAS won a vacate and remand for appellant-plaintiff Roche in the case against Lifescan and Nova. The key element of the conclusion of the decision: We vacate the judgment of non-infringement, however, and remand to the district court to consider the parties’ arguments that pertain to the scope of the term “electrode.” The patents in suit generally aim to facilitate faster measurements (compared to the prior art) of glucose concentrations in small blood samples.

Here, as to "electrode," the CAFC noted:

Claim construction is a question of law, and thus we review de novo a district court’s claim construction. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454–55 (Fed. Cir. 1998) (en banc). Nonetheless, this court is a court of appellate jurisdiction, and “[n]o matter how independent an appellate court’s review of an issue may be, it is still no more than that—a review.” Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1426 (Fed. Cir. 1997); see also Metro. Life Ins. Co. v. Bancorp Servs., LLC, 527 F.3d 1330, 1336 (Fed. Cir. 2008) (declining to consider a claim construction issue that the district court did not “expressly” address and remanding to the district court for further proceedings). The procedural posture of this case, however, deprives us of the district court’s resolu- tion (and illumination) of the issues that are raised with respect to the construction of the term “electrode.” Roche raised its current claim construction argument to the district court in a motion for reconsideration, which the district court denied. The district court did not address whether reconsideration was procedurally appropriate, and, if so, whether Roche’s argument has merit. Nova and Lifescan do not dispute on appeal, however, that Roche’s argument should be addressed on the merits. Thus, in effect, we are called on to address the substance of a claim construction issue that has never been consid- ered by the district court. We do not opine, as a general matter, whether and under what circumstances this court may address new claim construction arguments on appeal if urged to do so by the parties. As we explain below, however, the specific nature of this case makes it impru- dent for us to address Roche’s claim construction argument for the first time on appeal.

Why construction of the term electrode was important:

the judgment of non- infringement was entered solely on the basis that the term “electrode” in the asserted claims does not cover electrodes that are wider than approximately 100 μm.

The evidence:

For example, the specification of the ’146 patent states,
Preferred dimensions for micro-electrodes can be, e.g., feature size or width of elec- trodes . . . in the range from 15 or 20 or 25 μm, up to about 100 μm, more preferably from greater than or about 25 or 30 μm to about 50 μm.
’146 patent col.3 ll.9-13; see also ’147 patent col.3, ll.9-12.

Roche counters (rather persuasively, in our view) that this statement, like other similar statements in the specification, is merely a non-limiting description of a preferred embodiment of the claimed invention.

As to "electrode," the CAFC sends the case back to district court:

In sum, we decline to address the claim construction issue raised by Roche because it has never been addressed by the district court. Accordingly, we remand the case to the district court for the purpose of construing the term “electrode” and any subsequent proceeding that might be necessary once the court construes that term.

Nova got no traction on its assertions:

We also affirm the district court’s resolution of Nova’s non-patent counterclaims, as well as the jury’s ultimate verdict of no-liability in Roche’s favor.

First, Nova argues that the district court erred in finding that a Swiss choice of law provision in the Agreement barred Nova’s trade secret misappropriation and conversion counterclaims. We disagree. The choice of law provision unambiguously provides that the parties’ relationships under the Agree- ment “shall be governed in all respects by the laws of Switzerland.” (...)
Since there is no dispute that Swiss law does not recognize Nova’s trade secret misappropriation and conversion counterclaims, the district court did not err in rejecting those claims as a matter of law.

Second, Nova argues that the district court abused its discretion in not allowing Nova to disclose to the jury that Roche had sued Nova for infringement and lost. We disagree. The district court was well within its discretion to find that the probative value of disclosing the in- fringement suit to the jury was substantially outweighed by the risk of prejudice or waste of time. See Fed. R. Evid. 403; United States v. Long, 574 F.2d 761, 767 (3d Cir. 1978) (noting that when reviewing a district court’s Rule 403 analysis, an appellate court ought to be highly defer- ential). We see no abuse of discretion in the district court’s evidentiary ruling.

It is true that Nova’s evidence shows that Roche’s executive, who had learned of Nova’s technology, discussed some aspects of Nova’s invention with Roche’s inventors. It is also true that the evidence shows that Roche decided to patent its invention almost immediately after learning of Nova’s test-strips, even though Roche claims that it had invented the tech- nology long before. Nonetheless, we must review the record in the light most favorable to the jury’s verdict, and we cannot disturb the verdict unless we determine that “’there is insufficient evidence from which a jury reasonably could find’” for Roche. Cordance Corp. v. Amazon.com, Inc., 658 F.3d 1330, 1333 (Fed. Cir. 2011) (quoting Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)). Nova’s counterclaims are based on circumstantial evidence, and the jury heard testimony from both sides on the events that transpired during and after negotiations between Nova and Roche. We have reviewed the evidence that the parties presented to the jury, and we hold that it was within the jury’s purview to find that Roche was not liable. We thus affirm the jury’s verdict in Roche’s favor.

Gevo sues DuPont, Butamax for patent infringement

2012-01-25T07:13:00.000-08:00

Bloomberg reports that Gevo Inc. sued DuPont Co. and its business partner Butamax Advanced Biofuels in federal court in Delaware [12-cv-70 ] alleging infringement of a new patent for alcohol fermentation processes.

On January 24, 2012, Gevo obtained US 8,101,808, with first claim:

A method to recover a C3-C6 alcohol from a fermentation broth comprising microorganisms and the C3-C6 alcohol, comprising: a. increasing the activity of the C3-C6 alcohol in a portion of the fermentation broth to at least that of saturation of the C3-C6 alcohol in the portion; b. forming a C3-C6 alcohol-rich liquid phase and a water-rich liquid phase from the portion of the fermentation broth; and c. separating the C3-C6 alcohol-rich phase from the water-rich phase.

One week earlier, on January 17, 2012, Gevo obtained US 8,097,440 .

Journal publications in the blue LED "droop" area

2012-01-25T06:33:00.000-08:00

Within a story titled -- The LED's Dark Secret -- in IEEE Spectrum, one finds some allusions to difficulties in publishing science papers:

As to droop, the loss of LED efficiency at high power:

Another theory [for droop] was proposed as far back as 1996 by Nakamura. He argued that everything could be explained by the structure of the quantum well. Nakamura and his colleagues looked at LEDs with a transmission electron microscope and were surprised to find light and dark areas within the quantum well, suggesting that the material there was not uniform. They then investigated the crystalline structure more closely, using X-ray diffraction, and found that the quantum well had indium-rich clusters (bright) next to indium-poor areas (dark).
Nakamura conjectured that because the indium clusters were free from defects, the electrons and holes would be trapped in them, making bright emission possible, at least at low currents. Continuing with this line of reasoning, Nakamura’s team argued that LEDs’ high efficiency at low currents stemmed from a very high proportion of electron-hole recombination in defect-free clusters. At higher currents, however, these clusters would become saturated, and any additional charge carriers would spill over into regions having defects dense enough to kill light emission. The saturation at high current, they suggested, accounted for the observed droop.
This theory has fallen out of favor in recent years. (...)

In 2003, Humphreys presented that jaw-dropping finding at the Fifth International Conference on Nitride Semiconductors, in Nara, Japan. It wasn’t well received. Many delegates contended that something must have gone wrong with the Cambridge samples. So Humphreys’s group went back and studied a wider variety of specimens, including LEDs supplied by Nichia. Their work only reinforced their view that the clusters were formed by electron-beam damage.
In 2007, Humphreys’s Cambridge team, together with researchers at the University of Oxford, described how they had attacked the problem with what’s known as a three-dimensional atom probe. This device applies a high voltage that evaporates atoms on a surface, then sends them individually through a mass spectroscope, which identifies each one by its charge-to-mass ratio. By evaporating one layer after the other and putting all the data together, you can render a 3-D image of the surface with atomic precision.
The resulting images confirmed, again, what the electron microscope had shown: There is no clustering. Discrediting the cluster theory was an important step, even though it left the research community without an alternative explanation for droop.
Then, on 13 February 2007, the California-based LED manufacturing giant Philips Lumileds Lighting Co. made the stunning claim that it had ”fundamentally solved” the problem of droop. It even said that it would soon include its droop-abating technology in samples of its flagship Luxeon LEDs.
Lumileds kept the cause of droop under wraps for several months. Then, at the meeting of the International Conference of Nitride Semiconductors, held September 2007 in Las Vegas, it presented a paper putting the blame on Auger recombination—a process, named after the 20th-century French physicist Pierre-Victor Auger, that involves the interaction of an electron and a hole with another carrier, all without the emission of light.

**Of publication of this work:

The idea was pretty radical, and it has had a mixed reception. Applied Physics Letters published Lumileds’ paper only after repeated rejections and revisions. ”In my experience, it was one of the most difficult papers to get out there,” says Mike Krames, director of the company’s Advanced Laboratories.

**Of criticism of the Philips work:

”All [Lumileds] showed was that they can fit the results with a dependence that is like Auger,” claims Hader. ”It’s a fairly weak argument to see a fit that fits, and see what might correspond to that fitting.” In his view, there’s a good chance that the Lumileds data could also be fitted with other density dependencies, as well as the cubed dependence that is classically associated with Auger recombination.

The first Philips Auger paper was: “Auger Recombination in InGaN Measured by Photoluminescence,” by Y. C. Shen, G. O. Mueller, S. Watanabe, N. F. Gardner, A. Munkholm, and M. R. Krames, Applied Physics Letters 91 141101, 1 October 2007,

One notes US 20070262342 (filed May 15, 2006 ; published November 15, 2007 ) titled P-Type Layer For A III-Nitride Light Emitting Device.

As historical background:

The first-ever report of light emission from a semiconductor was by the British radio engineer Henry Joseph Round, who noted a yellowish glow emanating from silicon carbide in 1907. However, the first devices at all similar to today’s LEDs arrived only in the 1950s, at Signal Corps Engineering Laboratories, at Fort Monmouth, in New Jersey. Researchers there fabricated orange-emitting devices; green, red, and yellow equivalents followed in the ’60s and ’70s, all of them quite inefficient.
The great leap toward general lighting came in the mid-1990s, when Shuji Nakamura, then at Nichia Corp., in Tokushima, Japan, developed the first practical bright-blue LED using nitride-based compound semiconductors. (Nakamura’s achievement won him the 2006 Millennium Technology Prize, the approximate equivalent in engineering of a Nobel Prize.) Once you’ve got blue light, you can get white by passing the blue rays through a yellow phosphor. The phosphor absorbs some of the blue and reradiates it as yellow; the combination of blue and yellow makes white.

**Note the reference to the Readers Digest article predicting LEDs for lighting in LBE's 8 JMRIPL 80 (2008)

A special episode of the Advanced Biofuels Association's Better Fuels Moment online video series.

2012-01-24T18:21:00.001-08:00

The piece includes Joel Velasco, senior vice president of Amyris; Jack Huttner, executive vice president, commercial and public affairs of Gevo; and Michael McAdams, president of the Advanced Biofuels Association, ABFA.

Recycled episode on NCIS on 24 Jan 2012, The Penelope Papers

2012-01-24T17:54:00.000-08:00

Viewers get to see Lily Tomlin (again; first shown 4 Oct 2011, "The Penelope Papers") in her role as McGee's grandmother, Penelope Langston.

During the 1960's Penelope worked for the Tellus Group on the Annex Principle, a bioengineering project resulting in her involvement in a murder investigation.

Penelope encourages McGee to call his father, which he does. The show's last line: "It's me, Tim."

The show also presents a carbon fiber gun, dating from the Viet Nam War era.

Dow prevails in CAFC appeal brought by Nova Chemicals

2012-01-24T12:05:00.000-08:00

The appellants were represented by DONALD R. DUNNER, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, of Washington, DC. The bottom line, written by Judge Prost: Because we see no error in the district court’s standing and invalidity analyses, and because substantial evidence supports the jury’s infringement finding, we affirm. Appellants lose.

At issue in the appeal:

Nova makes three main arguments on appeal. First, it argues that Dow lacks standing to enforce the patents in suit. Second, it argues that the patents in suit are invalid for indefiniteness and lack of an adequate written description. Third, it argues that the jury’s verdict of infringement is not supported by substantial evidence.

Of the standing issue:

Effective on January 1, 2002, however, Dow and its holding company, Dow Global Technologies, Inc. (“DGTI”) entered into a “Contribution Agreement” (or “the agreement”) according to which a large share of Dow’s intellectual property rights was transferred to DGTI. Apparently, the Contribution Agreement was intended to generate certain tax benefits for Dow. Nova argues that the patents in suit were among the intellectual property rights that were transferred to DGTI under the Contribution Agreement. As a result, according to Nova, Dow does not have stand ing to enforce the patents in suit. Cf. Arachnid, Inc. v. Merit Indus., Inc., 939 F.2d 1574, 1579 (Fed. Cir. 1991).

One notes that Dow prevailed on this issue because of the lack of evidence that the asserted patents had been transferred to DGTI:

After holding a bench trial, the district court determined that the patents in suit were never transferred to DGTI. In particular, the court found that the Contribution Agreement was unambiguous in that it incorporated a document—entitled Schedule A—that contained a list of all the patents that were transferred to DGTI. The court heard and credited testimony from a Dow employee who was in charge of preparing and maintaining Schedule A, and she corroborated Dow’s assertion that the patents in suit never appeared in Schedule A. Based on these findings, the court found that Dow had met its burden of establishing the ownership of the patents in suit. And, because the court found that the clear terms of the agreement controlled, it declined to evaluate the extrinsic evidence that Nova suggested defeated Dow’s standing. The court accordingly denied Nova’s request to dismiss the suit for lack of standing. For the reasons set forth below, we agree with the district court’s determinations.

The dissent by Judge Reyna began:

This patent infringement case involves a substantial question of standing based on an agreement relating to the ownership of the patents-in-suit. In order to achieve certain tax and business benefits, Dow transferred essentially its entire patent portfolio to its holding company pursuant to an agreement entered into in 2002. Dow sued Nova in 2005 for infringement of the patents-in-suit, which were ostensibly transferred to Dow’s holding company under the 2002 agreement. The 2002 agreement and related documents, however, were not produced in litigation by Dow until July 2009, well after discovery had closed. After reviewing the documents, Nova moved to dismiss the case on grounds that Dow lacked standing because it was not the owner of the patents-in-suit when the lawsuit was initiated. The district court opted not to have a hearing on the standing issue until after a jury trial and verdict on the merits of the infringement and invalidity claims. Ultimately, the district court found that the patents-in-suit had never been transferred by Dow to its holding company via the 2002 agreement and, concluding that Dow therefore had standing, entered final judgment on the verdict against Nova.
Because I conclude that the 2002 agreement in fact did transfer the patents-in-suit to Dow’s holding company, and that standing did not exist at the time the complaint was filed, I would reverse the district court and dismiss the case without prejudice. I would not reach the underlying merits of the judgment that the asserted claims of the patents-in-suit were valid and infringed. I respectfully dissent.

Selling Kodak's patents

2012-01-23T21:35:00.000-08:00

On Kodak patents from WHAM-13:

Rochester, N.Y. --- Look at your cell phone just as you’re about to take a photo or shoot a video clip. That image on the screen? That could be the result of dozens of Kodak-owned patents. It is an everyday example of the intellectual property that Kodak’s patent portfolio could include.

Kodak has filed many lawsuits in recent years in an attempt to defend its patents and win licensing or settlement deals with companies that could be mass producing a popular product (see: your cell phone or smart phone) that depends on these patents.

Last year Kodak put a “For Sale Sign” out in front of just 10 percent of its patent portfolio; about 1,100 patents in all. Analysts speculated that a buyer would pay more than $1 billion for them!

Now consider what’s in the patent portfolio. Some of the patents may be technology that is already in use by all sorts of companies in all sorts of products. (see: Lawsuits!) As one may expect, some of those patents may be worth nothing at all. Still others could be worth millions if not tens or hundreds of millions if they land in the hands of the right engineers and entrepreneurs.

Kent State University loses in Falana case

2012-01-23T16:28:00.000-08:00

The CAFC noted that claims define the patent right:

This court agrees with Falana. “[I]t is the claims, not the written description, which define the scope of the patent right.” Laitram Corp. v. NEC Corp., 163 F.3d 1342, 1347 (Fed. Cir. 1998) (“[A] court may not import limitations from the written description into the claims.”). The claims here do not contain express limitations con- cerning a HTP that is substantially independent of tem- perature. Moreover, this court has “cautioned against limiting the claimed invention to preferred embodiments or specific examples in the specification.” See Teleflex, Inc. v. Focosa N. Am. Corp., 299 F.3d 1313, 1327-28 (Fed. Cir. 2002). Here, there is no suggestion in the intrinsic record that the applicant intended the claims to have the limited scope suggested by the Defendants. “Absent such clear statements of scope, we are constrained to follow the language of the claims, rather than that of the written description.” Id. at 1328.

The CAFC on joint inventorship:

“A joint invention is the product of a collaboration between two or more persons working together to solve the problem addressed.” Burroughs Wellcome Co. v. Barr Labs., Inc., 40 F.3d 1223, 1227 (Fed. Cir. 1994). People may be joint inventors even though they do not physically work on the invention together or at the same time, and even though each does not make the same type or amount of contribution. 35 U.S.C. § 116.

“Thus, the critical question for joint conception is who conceived, as that term is used in the patent law, the subject matter of the claims at issue.” Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1460 (Fed. Cir. 1998). “A contribution to one claim is enough.” Id. “The statute does not set forth the minimum quality or quantity of contribution required for joint inventorship.” Burroughs, 40 F.3d at 1227. Each joint inventor, however, “must contribute in some significant manner to the conception of the invention.” Fina Oil & Chem. Co. v. Ewen, 123 F.3d 1466, 1473 (Fed. Cir. 1997). Conception of a chemical compound “requires knowledge of both the specific chemi- cal structure of the compound and an operative method of making it.” Id.

The CAFC on the American Bioscience case:

American Bioscience did not hold that a putative inventor’s contribution of the method for making a novel genus of claimed compounds is irrelevant on the question of inventorship of the patent. As explained above, the conception of a chemical compound necessarily requires knowledge of a method for making that compound. Fina, 123 F.3d at 1473. In some circumstances, the method of making a compound will require nothing more than the use of ordinary skill in the art. In those circumstances, the contribution of that method would simply be “[t]he basic exercise of the normal skill expected of one skilled in the art” and would not normally be a sufficient contribution to amount to an act of joint inventorship. Id. (citing Sewall v. Walters, 21 F.3d 441, 416 (Fed. Cir. 1994)); cf. Oka v. Youssefyeh, 849 F.2d 581, 583 (Fed. Cir. 1988) (stating in the interference context that “[w]hen . . . a method of making a compound with conventional tech- niques is a matter of routine knowledge among those skilled in the art, a compound has been deemed to have been conceived when it was described, and the question of whether the conceiver was in possession of a method of making it is simply not raised”).

As to the award of fees:

“By its express terms, § 1295(a)(1) requires that the decision of the district court be ‘final.’” Special Devices, 269 F.3d at 1343. A decision to award attorney fees under 35 U.S.C. § 285 is not final and appealable before the award has been quantified. Id. This rule “prevents piecemeal appeals involving 35 U.S.C. § 285—a first appeal to contest the exceptional finding per se, and a second appeal to contest the amount of the attorney fees.” Id.

Here, the district court issued one order—concluding: (1) that Falana was a joint inventor on the patent; (2) that the case was exceptional; and (3) that an award of attor- ney fees was justified. The district court’s decision on the merits, i.e. its decision on joint inventorship, is final and reviewable by this court. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202-03 (1988) (“[A] decision on the merits is a ‘final decision’ . . . whether or not there re- mains for adjudication a request for attorney’s fees at- tributable to the case.”). But the district court’s exceptional case determination is a separately appealable judgment which itself must be final. See White v. N. H. Dep’t of Emp’t Sec., 455 U.S. 445, 452 (1982) (“Unlike other judicial relief, . . . attorney’s fees . . . are not compensation for the injury giving rise to an action. Their award is uniquely separable from the cause of action to be proved at trial.”); McCarter v. Ret. Plan for Dist. Manag- ers, 540 F.3d 649, 652 (7th Cir. 2008) (“[T]he upshot of White’s approach is that decisions on the merits and decisions about attorneys’ fees are treated as separate final decisions, which must be covered by separate notices of appeal—each filed after the subject has independently become ‘final.’”). The district court’s decision finding the case exceptional and awarding attorney fees that remain as of yet unquantified is not final and thus, not appeal- able. Special Devices, 269 F.3d at 1345 (“[A] decision to award unquantified attorney fees in an exceptional case under 35 U.S.C. § 285 is not final.”). A non-final decision does not become final simply because it is issued in the same order as a final decision. (...)

The Supreme Court, in Swint v. County Chambers Commission, 514 U.S. 35 (1995), “threw cold water on pendent appellate jurisdiction.” McCarter, 540 F.3d at 653. In Swint, the Court concluded that pendent appel- late jurisdiction was incompatible with 28 U.S.C. § 1291, which limits appeals to “final decisions,” and unnecessary because Congress has authorized the judiciary to pre- scribe rules to provide for interlocutory appeals. Swint, 514 U.S. at 48.1 Although the Court did not completely
rule out all possibility of pendent appellate jurisdiction, it did make clear that only the most extraordinary circum- stances could justify the use of pendent appellate jurisdic- tion. See id. at 50-51 (“We need not definitively or preemptively settle here whether or when it may be proper for a court of appeals, with jurisdiction over one ruling, to review, conjunctively, related rulings that are not themselves independently appealable.”). These ex- traordinary circumstances may be present when the nonappealable decision is “inextricably intertwined” with the appealable decision or when review of the nonappeal- able decision is “necessary to ensure meaningful review” of the appealable decision. Id. at 51; Gilda Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675 (D.C. Cir. 1996) (refusing, post-Swint, “to create a blanket rule absolutely barring pendent appellate jurisdiction over non-final attorney’s fee liability orders” but noting that “as a gen- eral matter,” the review of such orders “will be rare excep- tions”). Swint held that the Eleventh Circuit erred in invoking pendent appellate jurisdiction because “judicial economy” is no warrant for disregarding the statutory final-decision rule. Swint, 514 U.S. at 43-44, 51.

Bad calls in the Patriots/Ravens game?

2012-01-23T09:50:00.000-08:00

There is some discussion about whether Lee Evans actually did score the touchdown.

From freerepublic: As to whether a catch was made, the standard is simple. From Rule 8, Section 1, Article 3, Item 3: “If a player controls the ball while in the end zone, both feet, or any part of his body other than his hands, must be completely on the ground before losing control, or the pass is incomplete.”

The video is here. Right foot down. Left foot is awfully close, but ...

Separately, IPBiz thought the lob pass to Gronkowski was a complete pass. A commenter agreed:

When Gronkowski caught the ball he had one foot already flat on the ground. His other foot came down well inbound the line, which should have completed the play. Instead the decision was based on the second step after the catch — ignoring that that foot was already on the ground when he caught the ball.

And, on covers.com about Evans: That actually looked like he had it long enough with control and both feet down...why was that not a touchdown?

The Good Wife on January 22, 2012: "A New Day" (recycled from September 25, 2011)

2012-01-22T17:59:00.000-08:00

First episode, season three: Alicia must put aside personal distractions as she defends a Muslim student accused of murdering a Jewish classmate.

60 Minutes Special Edition on January 22, 2012: "Into the Wild"

2012-01-22T16:00:00.000-08:00

Three encore episodes of wildebeasts, elephants and chimpanzees: The Great Migration, from October 4, 2009 (http://www.cbsnews.com/video/watch/?id=5362301n&tag=contentMain;cbsCarousel);
The Secret Communication of Elephants, from January 4, 2010
(http://www.cbsnews.com/stories/2010/01/01/60minutes/
main6045121.shtml), and
Jane Goodall and Her Chimps, from October 24, 2010
(http://www.cbsnews.com/video/watch/?id=6987701n).

Schieffer proposes Miami debate on Face the Nation between Gingrich, Romney

2012-01-22T07:30:00.000-08:00

Bob Schieffer has Newt Gingrich, who has the wind at his back.

Numbers 40% vs. 28%.

I am going to ask the obvious question: how did you pull this off?

South Carolinians were the first to realize how liberal Mitt Romney is. Despite his advertising and pretending.

Schieffer: did ABC do you a favor by talking about your ex-wife?
Gingrich: the way they did it, it was like ABC was an arm of the Romney campaign.

Schieffer: Romney has suggested Gingrich is "too similar" to Obama (no experience running a business, no experience leading a state)
Gingrich: I'm not running for CEO of the United States.

Schieffer: [Romney] seems to have trouble getting his message across.
Gingrich: he can't relax and be candid. 47th in job creation. Gun control Pro-choice. He appointed pro-abortion judges. The guy is a very good salesman but he has a very poor product. The fact is: you see what you get. If you want to beat Barack Obama, Newt Gingrich is the only person with the experience. Romney is bouncing around trying to find a message. Gingrich: we believe in America; we believe in core values.

Schieffer: we'll be in Miami. Will you debate Romney for a whole hour.

Senator Graham: you're a dangerous man on tv. The debate in Myrtle Beach was the best explanation of conservatism in years.
600,000 people voted. Newt Gingrich has changed a lot in a positive way. Policy on immigration. Newt's putting on the table real solutions.

Governor Halley Barbour: 2/3 of evangelical Christians said most important thing is a person who can beat Obama. He [Newt] can make it very plain that we are for the right things. Romney's strengths are more managerial. Romney has been courageous in attacking the entitlement programs of the Obama administration.

Schieffer asked about pardons. Do you regret the way that was handled? We let 26 out of penitentiary, half for health reasons. The attorney general's office was very involved in this.

Kelly Evans appeared on the roundtable on Face the Nation. Joe Klein noted Gingrich is great at beating up the moderators of the debates. Gingrich can do "anger" very well.

Schieffer asked "who is the Republican establishment"? Klein: Romney was the "next guy in line".

Evans writes on housing and foreclosures are a big problem in Florida. Klein said entitlements will be a big deal in Florida, and there are a lot of people in Florida on entitlements.

Schieffer's final thoughts: I never tell anyone for whom I vote. I was surprised to hear a voter saying a certain candidate was just too moderate. Schieffer went into definitions of moderate, conservative, liberal, Christian.

CBS Sunday Morning on January 22, 2012

2012-01-22T05:53:00.000-08:00

Charles Osgood introduced the stories for January 22, 2012. Newt Gingrich has shaken up the GOP race; Jan Crawford reports. Lesley Cowan does the cover story "U Turn," on the U.S. auto industry. You can't live on your history. Second, Martha Teichner on "Provocateur", Jan Paul Gautier. Third, Glenn Close talks to Anthony Mason about her performance as Albert Nobbs. Fourth, "How the West was Won" by Bill Geist. Yuma, Az. Allan Pizzi. Steve Hartman. Etta James.

Headlines. Newt Gingrich 41%, vs. 28% for Romney. Joe Paterno's health has taken a turn for the worse. He has been in the hospital since January 13, 2012. The price of a stamp is going up. Guns of Bonnie and Clyde ($210,000). Ravens v. Patriots today. Weather: dry in the Northeast.

To campaign 2012, a decisive win by Next Gingrich. People power with the right ideas beats big money. Senator Lindsay Graham says voters want a candidate who can carry the ball to a larger audience. Dean Reynolds noted Obama's criticism of the "United" decision. Reynolds mentioned super-pacs, including one by Stuart Edelson. And a super-pac which ran an ad to the effect, if Mitt Romney believes corporations are people, Mitt Romney is a serial killer.

Almanac. January 22, 1997. Lonnie Williams was hit by an object from outer space from a Delta II rocket. Video clip about Skylab in July 1979 done by Walter Cronkite. Scott Pelley clip.

Osgood started with picture of Chevy Sonic, on the set. Lee Cowan started with a clip of various cars at the Detroit Auto Show. Ford's re-designed Fusion. "Best in Show." Ford: Feel a Difference. A big transformation for the Detroit auto industry. Ford up 11%. Bill Vlasic, Once Upon a Car. Clips of old car ads. Line: Ford was hanging on by a wiper blade. Cars built by Detroit that people didn't really want. Sergio Marchionni brought in by Fiat to run Chrysler. Consumer Reports labelled Jeep most reliable. 1100 new Jeep jobs in 2013. Clip on Chevy Sonic. Diana Trumbley of GM. Two tiered pay scale slashed labor costs for the Sonic by $500 per car. UAW's Bob King. Discussion of Carl Montross, former (and current) GM employee. Now, it's about getting a good car out. Denise Norman: we are very optimistic about our future.

Next, Fashion Forward, the first part of a three week series. Jean-Paul Gaultier, Euro Trash. Madonna's 1990 Blond Ambition tour. OK, I'm here. There is an exhibition of Gaultier's work at Dallas Museum of Art. (It originated at Montreal Exhibition of Fine Arts). Gautier's sailor shirts. Gaultier's childhood. Nana, bear. Spent time with his grandmother. Corset bottles of perfume. Loves to simulate tatoos. Fashion's wild child. A trash bag dress with an ash tray as a handbag. In 1993, Hasidic Jews were outraged. Kevin Tucker is curator of Dallas show. SciFi film The Fifth Element. Gaultier is now 59 years old. Seeing beauty in unexpected places. Everything is possible.

Story on the Golden Hour by David Martin. Specialist ChazRay Clark injured. Videotaped by Michael Young. This story is recycled from CBS Evening News (Pelley). The issue is that MedEvacs cannot have guns, but they get attacked, so they don't fly until an escort (eg, Apache) arrives. An injured soldier now has a 92% chance of survival.

Costa Concordia Sunday Journal story by Allan Pizzi in Italy. The captain wanted to show off.

Remembering Etta James. Sunday Passage. Matriarch of the Blues. Johnny Otis. The Wallflower. Chess Records signed her in 1960. Signature song: At Last. Rage to Survive: the Etta James Story.

Sunday Profile on Glenn Close by Anthony Mason. Jake and Bill, dogs. 64 years old. Albert Nobbs. Close was in Barnum. Then, World According to Garp. The, The Big Chill. The Natural. Fatal Attraction. Five Oscar nominations in the 1980s. 1996 film, 101 Dalmations. Close grew up in Connecticut. Role of Patty Hughes, lawyer.

Opinion by Nancy Giles on SC debate. We're (the media) an easy target. I have a problem with the media being used as a smokescreen. Eddie Long. If you guys stop the hypocrisy, I'll forgive you.

Steve Hartman on Angela Xiang of Cupertino, CA. Monte Vista High School. Kavita Gupta. A recipe for curing cancer. Bioengineering. Talked her way into a lab at Stanford. Cancer medicine in polymer attached to nanoparticle. Then IR beam directed to particle to heat polymer and release drug. She won $100,000 from Siemens contest.

Bill Geist in Yuma, Arizona. Gathering of the Gunfighters at the Yuma Territorial Prison. Re-enactment Guild of America. Judge Byron Burnham. Barbara Chatham.

Bob Schieffer notes he will have Newt on Face the Nation.

Next week on Sunday Morning, Scorcese and Brad Pitt.

Moment of Nature. Spiriva. Panama's Monkey Island. White Faced Monkeys.

CBS Sunday Morning ended with the news that Joe Paterno died.

**UPDATE

Of sports events on 22 Jan 2012, the Giants won, but Steven Tyler was awful in Boston. In a post titled Steven Tyler’s scarf better than ‘Star-Spangled Banner’ rendition yahoo sports noted:

It was more of a warbled scream. Associated Press is saying that it would not get him to Hollywood, while Deadspin called it one of the worst anthems of all time. Radar gave him credit for getting all the words right, but that's about it. Sports Grid asked, "How is this guy supposed to pass as a judge on a singing competition when he does… this?" The Boston Herald was one of the few voices to defend Tyler, calling the performance, "pretty decent."

Mixed decision by CAFC in Dealtrack v. Huber; 101 issues

2012-01-21T13:30:00.000-08:00

From within the opinion:

Both parties agree that a “communications medium” is a “network for transferring data” and only disagree about the Internet carve-out. There is undisputed evi- dence in the record, not challenged on appeal, that in 1995 the Internet was a network for transferring data. More specifically, Dealertrack proffered expert testimony that in 1995 the Internet was the world’s largest wide area network, an enumerated species of a communica- tions medium in the specification. To specifically exclude the Internet would thus require a waiver of claim scope that is “both so clear as to show reasonable clarity and deliberateness, and so unmistakable as to be unambigu- ous evidence of disclaimer.” Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1325-26 (Fed. Cir. 2003) (internal citations and parentheticals omitted). There was no such waiver here.

Of evidence during prosecution to the contrary:

The only part of the record that bears on this is a post-allowance examiner’s amendment deleting the phrase “the InterNet” from the list of examples in the specification and cancelling the claims specifically di- rected to the Internet. The examiner did not provide reasons for the amendment, and there is no evidence that the applicant made any statements supporting patentabil- ity on the basis of the removal of that phrase from the specification. This alone is insufficient to create a waiver.

Of the scope of incorporation by reference:

We agree with Dealertrack. The ’817 patent incorpo- rates the ’403 Patent using the following language: “This is a division of application Ser. No. 08/526,776 (“’776 Application”), filed Sep. 12, 1995, hereby incorporated by reference. Now U.S. Pat. No. 5,878,403.” ’817 patent col.1 ll.5-7. When the divisional application that gave rise to the ’817 Patent was filed, the ’776 Application already included the Internet as an example of a communications medium, as did the ’403 Patent as issued. To suggest that the inclusion of the filing date of the ’776 Application in the incorporation language was intended to limit the same to the text of that application as filed instead of as issued is unwarranted and certainly not compelled. There is no reason to conclude that the reference to the filing date was anything other than applicant’s compliance with the formal requirement to “[c]learly identify” the patent being incorporated by reference. 37 C.F.R. § 1.57(b)(2).2

Footnote 2: We need not decide here whether what is incorporated is the text of the parent application as of the filing date of the divisional application, or the text of the parent as issued, because reference to the Internet as a communications medium was contained in the parent at both of these stages.

Note that Footnote 3 begins: With all due respect, the dissent’s effort to define a more efficient judicial process, as laudable a goal as that may be, faces several obstacles.

The conclusion of the decision:

For the foregoing reasons, we affirm the district court’s construction of “routing” and “selectively forward- ing,” modify the district court’s constructions of “commu- nications medium” and “central processing means,” reverse the district court’s denial of summary judgment on indefiniteness, and vacate and remand the district court’s summary judgment of non-infringement of the asserted claims of the ’841 Patent. We affirm the district court’s summary judgment of invalidity of claims 1, 3, and 4 of the ’427 Patent as claiming patent ineligible subject matter under § 101.

Judge PLAGER, concurring-in-part and dissenting- in-part, wrote:

At issue before the trial court was the validity of a patent (the ’427 patent) which the patentee was attempting to enforce against an alleged infringer. The trial court had before it several summary judgment motions, including one addressing §103 (obviousness), as well as one addressing §101. The trial court chose to decide the case under §101, rather than on the §103 issue. In my view that was an error that this court can and should correct.

I respectfully dissent from the panel’s failure to insist that this case be heard and decided pursuant to the Patent Act’s requirements and the efficient administration of justice. I would vacate the trial court’s judgment regarding §101 and remand for a determination of valid- ity under the conditions of patentability raised by the parties, in this case specifically the §103 issue.

Legal show "The Firm" tanks at NBC

2012-01-21T10:56:00.000-08:00

The show "The Firm" lost out big time to "Jersey Shore." From deadline.com :

The latest NBC series to take over ER‘s Thursday 10 PM slot, new legal drama The Firm, drew a puny 0.9/2 in the key adults 18-49 demographic, ranking eighth is the hour behind the Big 3 broadcast networks as well as four basic cable networks including slot leader MTV with its juggernaut Jersey Shore.

EPA: Biofuel Research Suffers From Gaps

2012-01-21T10:42:00.000-08:00

See 20 Jan 2012 story in C&E News: Biofuel Research Suffers From Gaps.

Hungary’s President Pál Schmitt accused of plagiarism in Ph.D. thesis

2012-01-21T09:50:00.000-08:00

The Hungarian news magazine HVG asserts that the 1992 thesis of Hungary President Pál Schmitt comprises 180 out of a total of 215 pages which amount to material copied as a Hungarian translation of a 1987 work by Nikolai Georgiev titled “Analyse du programme olympique (des Jeux de l’Olympiade)” .

One of the more interesting comments is that of one of the two people who examined the Schmitt thesis, which was submitted to the Faculty of Physical Education, now a part of Semmelweis University . Ferenc Takács wrote: “we would like to bring attention in particular to the fact that this topic has not been discussed neither in the domestic nor in the international academic literature with this level of detail.” The contrarianHungarian noted: Mr. Schmitt’s doctoral dissertation uses neither endnotes nor footnotes.

MIT Tech Rev still pushing Joule, who claims 15,000 gallons per (acre-year)

2012-01-20T07:14:00.000-08:00

MIT Technology Review continues to tout the high production claims of Joule:

The company, formerly known as Joule Biotechnologies, claimed in 2009 that its organisms could in theory produce as much as 20,000 gallons of ethanol on an acre of land in single year. Company officials now say their target is 25,000 gallons per acre, and that efficiencies they have already demonstrated take them 60 percent of the way to that goal.

The achievement would put Joule's fuel ahead of cellulosic ethanol in terms of productivity. "Even at 60 percent of our ultimate goal, our productivity is still leaps and bounds above cellulosic ethanol," says Dan Robertson, Joule Unlimited's senior vice president of biological sciences. Cellulosic fuels such as grass and wood chips yield only 2,000 to 3,000 gallons of ethanol per acre per year, Robertson says.

IPBiz notes that 0.6 X 25,000 = 15,000

Plagiarism charges in chess artificial intelligence

2012-01-20T07:11:00.000-08:00

See post by theverge titled Chess AI scene locked in bitter plagiarism dispute

Breyer, Alito dissent in Golan v. Holder

2012-01-19T09:12:00.000-08:00

Breyer's dissent in Golan v. Holder concludes:

The fact that, by withdrawing material from the public domain, the statute inhibits an important preexisting flow of information is sufficient, when combined with the other features of the statute that I have discussed, to convince me that the Copyright Clause, interpreted in the light of the First Amendment, does not authorize Congress to enact this statute.

Note Breyer also dissented in Eldred.

Parrots in the classroom?

2012-01-19T08:56:00.000-08:00

MAXINE NODEL at NYTimes/Schoolbook has a post titled Of Parrots, Paras and Time which includes text:

In a scary, echoing room, two older Board of Examiners sat before a table as good cop/bad cop, pressed a tape-recorder button and questioned me about art pedagogy. All was dandy until they inquired as to how I would make use of a parrot in my classroom.

Actually, they said, “para,” but since I hadn’t studied education, I was unaware that the question was about a paraprofessional. I proceeded to talk about birds in education to the best of my ability. Luckily, the two gentlemen did not hear me say the ‘t’ sound at the end of “para.”

“I think any addition to the classroom is beneficial. Students can work in small groups with the parrot. They can take the parrot on field trips. Students can talk and listen to the parrot to improve their verbal skills and have lunch with the parrot. And if it’s an older parrot, students can learn about the aging process.”

“Very good, Ms. Nodel!” they said.

Having a parrot, especially a macaw like Lex Luther, would likely be a valuable addition to a classroom. As one point, though, parrots don't show easily perceptible signs of aging. To a a large degree, they pretty much look the same, year after year.

--The beauty of this is that it stimulates what America does best: innovation--

2012-01-17T22:10:00.000-08:00

U.S. Agriculture Secretary Tom Vilsack touted biofuels in Chicago on Monday, Jan. 16, 2012.

Meanwhile, a Boston BizJournal post on January 17 noted:

Joule believes its process could ultimately produce 15,000 gallons of diesel per acre per year, at a cost of $20 per barrel with government biofuel subsidies, and $50 per barrel without subsidies. The company has said either price would be well below the market price for ultra-low-sulfur diesel.

A report from Lux touts "synthetic bio" companies:

Synthetic biology is making a big impact. Leading Dominant companies using synbio include Amyris, Gevo, Solazyme, and Codexis, and some relative newcomers like BioAmber, Myriant, and Allylix also reach the Dominant quadrant.

AND

Tough economy curbs clean energy investment: experts

More than 26,000 people are attending the four-day WFES conference and exhibition which displays top clean energy technologies [ World Future Energy Summit in Abu Dhabi ]

Del Castillo's "answer" to plagiarism charge made public

2012-01-17T06:00:00.000-08:00

On December 7, 2011, the Phillipine House Committee on Justice ordered Del Castillo to answer a impeachment complaint following an overwhelming 40 against seven voting which found the impeachment complaint based on betrayal of public trust was sufficient in substance. On May 18, 2011, the panel voted 11 against 10 and one abstention declaring that the impeachment complaint against Del Castillo was sufficient in form.

Within the answer, recently made publicly available:

“In this case, the alleged improper citation of certain works by foreign authors lacks both elements because the non-attribution was through inadvertence or honest mistake, without malice or bad faith, and no prejudice resulted because what were cited in the said works were mere background information. Further, if we assume that it is possible to have judicial plagiarism, it does not have the extreme gravity requirement under Article XI, Section 2 of the Constitution.”

Shameless "Subway" product placement in Hawaii-Five-O on 16 Jan 2012

2012-01-16T19:23:00.000-08:00

In this season's episode 14, titled Pu'olo (The Package) , there is a commercial for Subway imbedded in the drama with Taylor Wily ("Kamekona") delivering the message. The next Jason? During the show, Kamekona not only acknowledged his own shrimp wasn't good for you, but pushed a variety of Subway products.

And, the master thief drove up in a Segway, and later used a flamethrower as a weapon.

The stolen material is RFID chips for US passports. Here, 100 chips were stolen. Adler and Bloom, eastern Europeans, are the real villains, but get caught at the airport.

The end of the episode addresses Shelbourne. A trip to Cemetery of the Pacific, to John's tombstone. Shelbourne is an alias, for the investigation. And the key is that Joe killed Wo Fat's father.

The last line of show: "Buy you a Subway."

***
In 1950s television, there was strong identification of product sponsor with content, as with Carnation milk on the George Burns show. One did know "who" was paying for the show. Embedded ads can blur that connection. There has been much discussion of embedded ads on children's television.

There was attention drawn to the matter in 2008, with FCC involvement.

See FCC to look into embedded advertising on TV; Should viewers be better informed about paid-for props?

See also EMBEDDED ADVERTISING: YOUR RIGHTS IN THE TIVO ERA in JMRIPL

***As to movies, recall Joan Crawford and Pepsi. From wikipedia: In Joan Crawford's later career, product placement for Pepsi can be seen in several films, including Strait-Jacket (1964) and Berserk! (1967) Crawford would remain on the Board of Directors of Pepsi-Cola Company until her forced retirement in 1973.

Maintaining trade secrets, from company employees

2012-01-16T19:20:00.000-08:00

The yahoo story Chiefs employees live in environment of ‘secrecy, intimidation, and fear’ included the text:

Staff members with office windows facing the team's practice fields were directed to keep the shades in their offices drawn, and security guards would interrupt phone calls if necessary to tell employees to close those shades. This applied to team president Mark Donovan as well — he told Babb that he kept his shades drawn in an effort to let employees know that one was not more trusted than others.

Public funds for biofuels

2012-01-16T04:46:00.000-08:00

A story titled Half of incentives went to biofuel firms: Economists have questioned the amount of public money pumped into the industry in the Des Moines Register begins with the text:

Biofuels companies made up more than half of the top 50 recipients awarded state aid since the state began tallying all public assistance doled out in 2003, according to information provided to The Des Moines Register under Iowa’s open records law.

Note also story on public funds used to support biofuels which story titled Biofuels getting most benefit from public funds

60 Minutes on January 15, 2012

2012-01-15T16:00:00.000-08:00

Groupon CEO Andrew Mason, 31 years old, discusses his company; started three years ago. Mason reinvented the coupon, turning it into a digital tool for bargain-hunting at your neighborhood stores; company took off, almost overnight. It's global now, raking in hundreds of million of dollars a month. Fifty percent off. The next Amazon or another Myspace? This past November, Groupon had the biggest initial public stock offering, or IPO, of any Internet company since Google. The company's worth jumped to an unexpected $18 billion on the first day of trading. But will it last? Subject of fierce debate. Will it be a passing fad? Mason: "A Groupon is, essentially, a voucher that's worth money that you can take into a business and use like cash. When you subscribe and you get these emails every day, it's a great way to explore your city and find out about really cool, local things to do." The deals are at least 50 percent off. So, for example, a $40 meal for a $20 coupon, or a half-off hot air balloon ride. Groupon has 150 million subscribers who get a daily email with deal offers from local businesses. Began at height of recession in 2008. Success was intoxicating. Mason launched retail revolution; company hires up to 150 people per week; across all 46 countries that they're in, there are about 10,000 employees. Headquarters in Chicago is part-tech startup, part old-fashioned call center. Groupon relies on human beings, not algorihms. What these human beings, the salespeople, do is think up deal ideas, then convince local merchants to offer them at half-price. Groupon tailors its offers by age and gender. Merchants don't necessarily make money. Groupon takes 50% of offer. [Group coupon equals Groupon.] Sending people emails everyday. Four hundred writers and editors - more than most newsrooms - come up with hundreds of these pitches a day, with twists of phrases and logic. Mason is known as a little whacky himself -- as a gag, his executive washroom is a port-o-potty and is featured in a demo on YouTube in front of a Christmas tree doing yoga in his underwear. According to Forbes, Groupon is fastest growing company ever. "Is Andrew Mason ready to be a CEO?" Mason states that he is probably not as mature or smart as other CEO's of companies worth as much as Groupon, but there's an advantage to having a founder as the CEO. New York Times financial columnist and host at CNBC Andrew Ross Sorkin, financial columnist says the biggest downside is how easy the model is to replicate: there are 500 more companies getting into this business including Amazon and Google, spending a lot of money on advertising. Have yet to turn a profit. Horror stories: the baker who made 102,000 cupcakes for all the Groupon buyers, but with the steep markdowns, she lost $20,000. And businesses complain Groupon customers come once and never want to pay full price again.. A few months ago, when Mason decided to make Groupon a publicly-traded company, it had to open its books revealing accounting tricks that made their huge marketing costs disappearr, and it showed they double-counted the amount of money they were bringing in. Books showed they made $60 million in 2010, when in reality they lost $420 million. Analysts began calling Groupon "unviable," "a Ponzi scheme," and wondered if any grownups were minding the store. Didn't put the honest revenue figure down, seemed like a bush-league mistake. Mason: stated that smart people can get this stuff wrong. that they're inventing a new industry. At the time, Mason couldn't address the mounting criticism because companies are prohibited from giving interviews in the lead up to going public. He did, however, answer the criticism in an internal memo to his employees and it leaked to public. Thin-skinned, impetuous and childish. Mason stated he is not going to pretend like it's been fun to have something that they've poured their hearts into over the last three years and have seen it criticized while their mouths are taped shut; like they've been hazed, now they've had Adamantium fused onto their bones; as a result, the culture is stronger. Stahl bought a share. Opening day, Mason's personal worth jumped to $1.3 billion. Moving deals onto mobile devices. Will Mason have to tone it down, will it last? Mason owns over four ties, but when asked, he stated that 60 Minutes told him not to show up in suit and tie.

Qatar, small and prosperous Middle Eastern country; ritzier and wackier with a new hopsital, first-class orchestra, Qatari's are richest people in world. Wedged between Saudi Arabia and Iran, Qatar is a sliver of a country and has avoided the chaos, violence and killing of the Arab Spring. There have been no protests, no unrest. Ironically, many Arab leaders believe the engine behind the region's violent revolution is Al Jazeera, a 24-hour satellite television network based in Qatar.no social revolutions and no taxes. In 1995, Sheikh Hamad bin Khalifa Al Thani became emir when he seized power from his father, Khalifa bin Hamad Al Thani, in a peaceful coup d'état. Family has ruled Qatar for more than 150 years. Emir is admired and feared by all in Middle East. Electricity, health, education and more are free. Doha, Qatar's capital, is breath-taking and an architectural dream; development has occurred in last generation. The work is being done by a million man army of immigrants: 94 percent of Qatar's labor force is foreign; Filipinos, Indians, Nepalese mainly - creating a home for a mere 250,000 Qataris. Third largest oil reserve, largest and most sophisticated refinery in world called "The Pearl" turns those reserves into liquid fuels. It cost $18 billion and took five years to build. It is the largest, most sophisticated plant of its kind and the centerpiece of the emir's strategy to keep Qatar rich. Six American universities, including Carnegie Mellon Qatar. Museum of Islamic Art. All services free, including funerals -- free from cradle to grave. Al jazeera was founded there 15 years ago and broadcasts in Arabic and English. Television shows are talking about Arab governments and rebellions; Egyptians watched the Tunisian revolution live on Al Jazeera, discussed it on Facebook, and took to the streets. Libyans watched the Egyptians. Yeminis watched the Libyans and the Syrians watched them all. Al Jazeera has become the region's only real reality show. Critics charge that Al-Jezeera is influenced by Emir. It was the emir's support that made it possible for the French, the British and the Americans to form a NATO coalition to overthrow the Libyan tyrant Qaddafi. The allies said they wouldn't do it without an Arab partner. The emir deployed six war planes to help enforce the no-fly zone, gave the rebels millions of dollars of weapons and military hardware, and didn't conceal Qatar's involvement. When Qaddafi's compound finally fell, Qatar's flag could be seen flying over. First fruitful coalition between the Arabs and the NATO to help an Arab country. Emir hosted by the queen, and last April, President Obama thanked him for helping promote democracy in the Middle East. But the emir also has good relations with Hamas which the U.S. labels a terrorist organization. Emir appears to have no ideology and, critics say, no loyalties. When his close personal friend Syrian President Assad refused to stop killing his people, the emir abandoned him. Today, he talks tougher than any other world leader on what should be done in Syria, that troops should go to Syria to stop the killing. Qatari's exhibit contentment. There have been no protests, no calls for democracy. What could an opposition offer that Qataris don't already have? But the emir just bought himself some additional insurance by raising the salaries of all Qatari government workers by 60%; soldiers and policemen by 120%. Nothing to do with politics. Basis of foreign policy is to be friends with everybody, particularly their Arab neighbors.

Jake Barnett, a 13 year old math and science prodigy. Runs out of wall space, moves onto windows. Does that become a burden? Not at all. Began taking college courses at age eight. Summer physics research project on PT symmetric lattice systems. "This has implications in fiber optics, electromagnetic signals, anything that requires like a light going through a cable. Every number or math problem I ever hear, I have permanently remembered." Never forget anything in math and science. He memorized more than 200 of pi's numbers (3.14159265358979323846264338327950...) in an afternoon, forward and backward. Not just parroting a textbook, Jake understands and analyzes the logic of higher mathematics, visualizing and solving complex problems by using what he calls the fourth dimension. Jake states that It's hard to describe in terms of the typical three, because it's tangent to all the other ones; he'd be able to describe it if he had a whiteboard and 30 minutes; It takes a while; it's a fourth dimension. Numbers appear to him as shapes that build on one another. Oldest of four children born to Michael and Kristine. Used $3,200 he made from his summer research project to turn his bedroom into a science lab. Joint scholarship at Indiana University-Purdue University Indianapolis (IUPUI) advanced astrophysics classes. Parents shocked when Jake was answering questions in university, which led to his attending. As a young child, diagnosed with autism. Parents directed his focus to math and science by five years old to pull out of it. In just two weeks, he taught himself all of high school math at ten years old to get into college. Joanne Ruthsatz, a psychology professor at Ohio State studying child prodigies for the last 13 years. She believes there's a link between autism and prodigies. "We know that child prodigies are having autistic relatives at a very high clip and some of them have autism themselves." She believes that what sets a prodigy with autism apart from other children with the condition is the prodigy's genes have been modified so that the genius emerges without many of the severe disabilities associated with autism. "In the general population of autism, 10 percent will have an autistic savant skill where they're exceptional at something. And they've only got that piece displaying itself." Says for prodigies - be it in math, music or art - the key to the extraordinary talent is extraordinary memory. His vocabulary is so adult. Jake is one in ten million. Literally aces every intelligence and memory test, forward and backward. Great memory and drive to learn more. his Jake's physics professor, Yogesh N. Jogelcar, oversaw Jake's research project. Their work was published in "Physical Review A". Jake is the youngest person to be published in that prestigious physics journal; professor state Jake is much more than a human calculator: "great memory does help him, of course; once he reads something, he remembers it, but what is more important is that he has the drive to learn more. He definitely stands out as a powerhouse of raw talent. Big man on campus. Enjoys sharing his gift with others. Jake is writing a book to help us overcome our fear of math and is on track to graduate at age 14 when he hopes to begin his doctoral studies.

Employee consulting agreement analyzed by CAFC in Abbott v Epocal

2012-01-15T11:15:00.000-08:00

The Abbott Point of Care case concerns the issue of standing to sue and relates to the absence of an assignment clause in a consulting agreement made by a former employee. The conclusion of the case was adverse to Abbott: Because Abbott lacks standing, the district court properly dismissed its claim.

As to basic law on assignments, the CAFC noted:

Transfers of title, otherwise known as assignments, are controlled by 35 U.S.C. § 261:

Applications for patent, patents, or any in- terest therein, shall be assignable in law by an instrument in writing. The appli- cant, patentee, or his assigns or legal rep- resentatives may in like manner grant and convey an exclusive right under his application for patent, or patents, to the whole or any specified part of the United States.

Accordingly, a patentee or successor in title to the patentee may bring an action for patent infringement. See Mentor H/S, Inc. v. Med. Device Alliance, Inc., 240 F.3d 1016, 1017 (Fed.Cir. 2001).

This court also reviews contract interpretations without deference. See Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 943 A.2d 881, 900 (N.J. Super. Ct. App. Div. 2008). Finally, this court reviews "the district court's denial of discovery, an issue not unique to patent law, for abuse of discretion, applying the law of the regional circuit," here the United States Court of Appeals for the Eleventh Circuit. Patent Rights Prot. Group, LLC v. Video Gaming Techs., Inc., 603 F.3d 1364, 1371 (Fed. Cir. 2010).
Abbott has the burden to show necessary ownership rights to support standing to sue. See Fieldturf, Inc. v. Southwest Recreational Indus., Inc., 357 F.3d 1266, 1269 (Fed. Cir. 2004). Abbot asserts that the 1984 Agreement, as carried forward by the 1999 Consulting Agreement, gave it ownership of the ’328 and ’772 patents.

State law governs the interpretation of contracts. Here, the relevant state law was that of New Jersey:

Thus, the law of the state of New Jersey governs these Agreements. In interpreting a contract, it is “well-settled . . . that when the terms of a contract are clear, ‘it is the function of a court to enforce it as written and not to make a better contract for either of the parties.’” CSFB 2001-CP-4 Princeton Park Corporate Ctr., LLC v. SB Rental L LLC, 980 A.2d 1, 4 (N.J. Super. Ct. App. Div. 2009) (quoting Kampf v. Franklin Life Ins., Co., 161 A.2d 717 (N.J. 1960); see also Borough of Princeton v. Bd. of Chosen Freeholders of Cnty. of Mercer, 755 A.2d 637, 645 (N.J. Super. Ct. App. Div. 2000) (“The polestar of contract construction is to discover the intention of the parties as revealed by the language used by them.”). Therefore, “[a]bsent ambiguity, the intention of the parties is to be ascertained by the lan- guage of the contract.” CSFB 2001-CP-4, 980 A.2d at 4.

A consulting/confidentiality agreement was involved in the case:

Lauks’ resignation from i-STAT terminated his employment. Accordingly, the 1984 and 1992 Agreements ended when he ceased to be an employee in 1999. The 1999 Agreement echoes this termination, stating that Lauks “resigns from all his positions” at i-STAT. Further, the 1999 Consulting Agreement labels Lauks as a “Senior Consultant.”
The 1999 Consulting Agreement did not specify that the entire 1984 Agreement remains in effect for the duration of Lauks’ consulting period. The confidentiality provision of the 1999 Consulting Agreement, entitled “Continuation of Employee Confidentiality, Non- Solicitation and Non-Competition Covenants,” simply retains the existing confidentiality agreement in place. That provision is explicitly limited to confidentiality, non- solicitation, and non-competition, without any reference to any obligation to assign inventions:

An important point about the consulting agreement:

While the 1984 Agreement contained a Disclosure and Assignment Covenant, the 1999 Consulting Agreement does not contain any obligation that Lauks must assign rights in inventions, improvements, or discoveries made or conceived during the consultation period. Rather, the 1999 Consulting Agreement recognized and allowed Lauks to pursue other, non-conflicting interests. It also explicitly excluded work on new products, regardless of the subject matter, including point-of-care blood analysis applications.

The CAFC noted the absence of assignment language in the consulting agreement:

Abbott’s proposed interpretation of the Agreements as containing a continued assignment obligation finds no support in the documents themselves. An automatic assignment of “inventions, improvements or discoveries” conceived while pursuing other interests directly conflicts with the agreement’s allowance that Lauks may work on his own behalf. Moreover, the plain language of the 1999 Consulting Agreement is unambigu- ous and does not continue the 1984 Agreement’s Disclosure and Assignment Covenant. See Borough of Princeton, 755 A.2d at 645 (N.J. Super. App. Div. 2000) ("The document, moreover, must be read as a whole, without artificial emphasis on one section, with a consequent disregard for others.”).

The bottom line:

Because the 1999 Consulta- tion Agreement is silent with respect to any assignment of Lauks’ rights in inventions, improvements, or discoveries made or conceived during the consultation period, Lauks had no obligation to assign inventions from the consulting period to i-STAT. Thus, as the district court correctly concluded, the contract does not convey all substantial interest in the ’328 or ’772 patents.

As to contract law in New Jersey:

New Jersey law explains that extrinsic evidence is admissible to aid in contract interpretation, but it is “not for the purpose of modifying or enlarging or curtailing its terms” Conway v. 287 Corporate Ctr. Assocs., 901 A.2d 341, 346-47 (N.J. 2006); see also Dontzin v. Myer, 694 A.2d 264, 267 (N.J. Super. Ct. App. Div. 1997) (“Extrinsic evidence is admissible as an aid to understand the significance of the contract language, but not to give effect to an intent at variance with that language.”). Because the agreements contain no ambiguity, Abbott’s request is unavailing. Extrinsic evidence simply cannot change or contradict the contract’s language. As such, the district court properly evaluated all of the agreements between Lauks and Abbott’s predecessors, considered the entirety of the contracts, and reasoned the contract language unambiguously conveyed the parties’ intention.

The dissent by Judge Bryson noted:

The question in this case is whether the assignment-of-invention clause from the 1984 and 1992 agreements was incorporated by reference in the 1999 agreement. The majority states that the 1999 Consulting Agreement “does not contain any obligation that Lauks must assign rights in inventions, improvements, or dis- coveries made or conceived during the consultation period,” and that the 1999 agreement “is unambiguous and does not continue the 1984 Agreement’s Disclosure and Assignment Covenant.” I disagree with that conclusion. I believe that the 1999 Consulting Agreement is at least ambiguous as to whether it incorporated the assignment covenant of the 1984 agreement. I would therefore vacate the judgment of the district court and remand this case for discovery and consideration of extrinsic evidence regarding whether, and to what extent, the 1999 Consult- ing Agreement incorporated the assignment-of-invention clause that was first found in the 1984 agreement.

IPBiz would be concerned that Lauks ceased being an employee in 1999; the dissent stated

It is true that the 1992 agreement was an employment agreement whereas the 1999 agreement was a consultancy agreement. However, the change in the nature of Dr. Lauks’s relationship with i-STAT does not suggest that the parties intended to deviate from their established practice of identifying the entirety of the 1984 agreement with a shorthand name consisting of a refer- ence to some, but not all, of the covenants contained in that 1984 document.

Coverage by Simms of Broncos/Patriots ripped

2012-01-15T11:05:00.000-08:00

Yahoo sports noted of the discussion by Phil Simms of the last TD pass to Gronkowski:

On the play Phil mistakenly analyzes (an 11-yard sideline catch by receiver Julian Edelman), the Broncos are playing with three down linemen, four guys at linebacker depth, and a two-man shell with underneath coverage. This to counter New England's four-wide shotgun look with Gronk outside the left tackle and a slot man on each side. The Gronkowski score has some similar traits — the Pats have four receivers again, but the right-side wide receiver is out more to the sideline, and cornerback Champ Bailey plays a bit more off as a result. While Denver runs another three-down look up front, they clearly bring a defender up from linebacker depth to fake a blitz before dropping. Gronkowski also goes straight up the middle instead of hitting a little hitch at the numbers downfield.
On the coverage, if anyone showed up late, it was safety David Bruton, not Williams, though Bruton was the guy throwing a fake blitz look at Brady. Maybe Williams did turn the wrong way, though we'd be hard-pressed to give Phil the benefit of the doubt on that one since:
a.) You never know what the coverage is actually supposed to be unless you're there talking to the coaches as the play goes off; and
b.) Phil didn't know which play he was looking at. If Bruton had deep middle responsibility, it's entirely possible that Williams didn't turn the wrong way at all.
Granted, with the benefit of hindsight and a few more seconds to look at each play, it's easier to discern who's doing what. But Simms is a paid analyst — he's supposed to know this stuff on point — and this was far from his only mistake in the game.
We have no doubt that Phil will be back in the booth for the AFC Championship game between the Pats and whoever wins the game between the Baltimore Ravens and Houston Texans. All we ask, Phil, is that you slow down a little and make sure you know what you're watching next time — especially when you're "breaking it down." Thanks!

Somehow, someone had dialed up the wrong video (not the TD pass to Gronkowski) and Simms was analyzing it as if it were the Gronkowski video, but at some point realized the problem.

If IPBiz remembers, there was a slight pushoff of the defender by Gronkowski, as there also was in the Branch TD catch. Gronkowki's control of the ball in the first TD catch was problematic, with the commentators saying the play would be reversed (it was not).

None of the above alters the dominance by the Patriots in this game.

CBS Sunday Morning on January 15, 2012

2012-01-15T06:09:00.000-08:00

Allan Pizzi reported on the Costa Concordia incident in Italy. Why didn't they hold a muster drill? There was a 165 foot long gash in the hull. Questions will be asked about how it came to sink. There were 200 people who jumped. As to nautical lore, the champaign bottle did NOT break when the Costa Concordia was christened.

Almanac. January 15, 1892. The day James Naismith published the rules for basketball. By the 1940s, college basketball was on movie newsreels. 1986 movie Hoosiers sponsored by 1954 story of Mylan High School. Bob Hurley coach in Jersey City, New Jersey. Dr. James Naismith and his peach baskets was at the beginning.

Iran accused the CIA of masterminding assassination of Iran nuclear scientist. Cover story by David Martin. The Iranian scientist and his bodyguard were killed when a bicyclist strapped a bomb to the car. Mohsen Fakhrizadhi is likely the one irreplaceable nuclear scientist. There are thousands of people involved in Iran's nuclear program. In last few years, three killed. Right now, 8000 centrifuges. Computer virus, stuxnet. 25 kilos of 20% enriched uranium. Put central bank out of business? 18% of Iran's oil goes to Europe. 15 million gallons of oil go through Straits of Hormuz. Iran could obtain a nuclear bomb in 2012. This is a worst case. More likely case is several years.

"Shall we dance" by Richard Ross on Andre Rieu. Music as a mirror of life. Andre is the waltz king. Classical music for those who don't enjoy classical music. Andre was five when he picked up the violin. 25 years ago he formed a band based on Johann Strauss. He has formed over 30 albums. His tour group is just behind Lady Gaga and ahead of Justin Bieber. His show employs 120 people. Andre designs the gowns. "I want them to be happy on stage." An annual concert in Mastrich, Holland. The full scale replica of Vienna's palace. Impresario of musical fantasy; a Disneyland for grown-ups.

Marg Helgenberger in "Case Closed." John Blackstone, Sunday Morning Profile. She has been in CSI for 12 years. A sudden and unexpected hit. Procedural crime shows. CSI effect in legal courtrooms. Up to $375,000 per episode. First job was as weathergirl in Nebraska; North Bend, Nebraska. Danny the Dark Green Dinosaur. Taming of the Shrew in College leads to role in Ryan's Hope. Role in China Beach. Smart, sexy character. Erin Brockovich. Married to actor Allan Rosenburg; one son born in 1990. She is now 53.

Tim Tebow and Tebowing. A commentary. 9420 tweets per second. John 3:16. Team Tebow. GB2. Tebow has broken through on the internet.

Dale Carnegie's How to Win Friends by Simon & Shuster. Richard Schlesinger does story. That you change people's behavior. Speak better; listen better. 8 million people have taken a course. Orville Rettenbacher. Book published in 1936. More Hallmark than Harvard. It's common sense, but not common practice. Learn to get their message across. Carnegie started the course 99 years ago. Learn to pause before reacting. "I had rough edges." Don't close the door. Born on a farm in Maryville, Missouri. Jigs and Maggie in Society; Carnegie played himself. The importance of enthusiasm. Video of Dorothy Carnegie. Carnegie's book has sold 30 million copies. Carnegie headquarters in Haupauge Long Island. Say: I'm having a great day in an email. Human nature is the same all over the world. Be nice to others. Follow the golden rule.

Story of movie "War House." Spielberg sat down with Martha Teichner. Joey and Albert. The novel was published in 1982. Iddesleigh in Devon; pub story. 10 million horses died in World War I. War House, the play. 14 different horses played Joey in the movie. Devote all of your passion to the medium at hand. Central: World War I was end of an era. No man's land. Joey: a fictional horse with truth to tell.

Serena Alschuler on a hot chocolate craftsman. Jacques Torres. In Spain, chocalate enchurro. Mesoamericans revered cacao beans. Rick Bayliss, Coco, in Chicago, provides hot chocolate the Aztec way (bitter, not sweet). Using a stone grinder to release oils, a drink that is more bitter. Philip Ward's place in New York. Mezcal. Vida.

Remembering Richard Threlkeld. Clip from Viet Nam. 1975. As usual in southeast Asia, we were wrong. In 1977, began anchoring CBS Morning News. He reported the cover story for CBS Sunday Morning for 3 years (108 in all). Three Mile Island. A generation of year books. In 1989, back on CBS, covering Prague, first Iraq war in 1991. His final assignment for CBS was Boris Yeltsin. A ride on the Subway in Moscow. He retired from CBS in 1998, but did return for 25 anniversary broadcast.

Plug for "CBS This Morning." Next week on Sunday Morning: Actress Glenn Close.

Moment of Nature. Pradaxa. Ding Darling National Wildlife Refuge on Sanibel Island, Florida. J. N. "Ding" Darling National Wildlife Refuge

Loss of jobs at Novartis preceding expiry of Diovan patent protection

2012-01-13T07:23:00.001-08:00

In connection with the loss of patent protection for Diovan/valsartan in Sept. 2012, GEN wrote of Novartis:

The U.S. restructuring [of Novartis] will include the loss of some 1,630 positions in the field and another 330 at its headquarters. “We recognize that the next two years will be challenging in the pharmaceuticals division, and we are proactively making these changes to further focus our pipeline on the best opportunities and align our market position on our growth brands,” comments David Epstein, division head of Novartis Pharmaceuticals. “These are difficult but necessary decisions that will free up resources to invest in the future of our business which we view as well suited to bring new valuable therapies to patients and payors.”

Kansas University profs nailed for plagiarism

2012-01-12T22:41:00.000-08:00

From an article in Nature:

The ORI notice says that Visvanathan committed intentional plagiarism, but he tells Nature that he is actually taking the blame for a student he was supervising at an institution abroad. “Even though the sanctions are severe, I have sincerely accepted them,” he says. Lushington says that he has been advised not to comment. Two papers published by the Institute of Electrical and Electronics Engineers were retracted on 5 January.

John Dahlberg of ORI: “In recent months, we’ve had a plethora of plagiarism cases.”

Mandamus from ED Texas denied to Apple

2012-01-12T22:17:00.000-08:00

A panel comprising Judges Newman, Linn, and Reyna declined Apple's writ of mandamus in a patent infringement case brought by SimpleAir in ED Texas.

UConn prof snagged for fraud; UConn conned?

2012-01-11T20:20:00.000-08:00

Reuters noted:

Dipak K. Das,

directed the UConn's Cardiovascular Research Center,
studied resveratrol, which was touted by a number of scientists and companies as a way to slow aging or remain healthy as people get older and
has now been charged with over 100 acts of data fabrication and falsification.

Yes, there is a patent angle. Reuters noted: Das also shared a 2002 patent on the use of another compound in grape skins called proanthocyanidin to prevent and treat heart conditions.

And, yes, citations are involved. Reuters noted Other scientists have taken notice of Das' work, citing 30 of his papers more than 100 times each, according to Thomson Scientific's Web of Knowledge.

See also
Red Wine Researcher Accused of Falsifying Data on Health Benefits

An article by Nicholas Wade in the New York Times begins: A charge of widespread scientific fraud, involving 26 articles published in 11 journals, was leveled by the University of Connecticut today against Dipak K. Das, one of its researchers, whose work reported health benefits in red wine.

"Open houses" can be dangerous

2012-01-11T20:14:00.000-08:00

Philly Channel 10 on 11 January 2012 on the 11pm news showed video of an open house realtor stealing things from a child's room. The child set up a computer for video capture expecting to snag her sister. The realtor had a criminal record.

“Theatre Tricks” on Law & Order SVU on 11 Jan 2012

2012-01-11T19:34:00.000-08:00

The episode “Theatre Tricks” involves a judge who has some odd predilections, and who seemingly gets set up by a disgruntled former party (bad divorce outcome). In fact, the judge is just collateral damage in a plot by an actress who didn't get a part.

Sex from the "Sugar BabyZ" website: quick, rough, and public. The judge had sex in a public theater, at the (seeming) invitation of the woman (Megan). Ingenue seeking patron: did she solicit? But, someone hijacked the victim's email account, and the woman Megan was not a willing participant. Attention shifts to Ted Scott, the play director, who asserts he is being set up.

The judge noted the situation is Kafka-esque. The judge gets to disclose all his previous Sugar BabyZ to the police. The judge leaves his iPad with the police. Megan's roommate, Holly Schneider, is a past Baby of judge Crane, and the real culprit who set up the judge and tried to focus blame on the director. All because she didn't get a part.

Holly to Megan: "I wanted you to know what if felt like to be dirty and used."

The man behind the old AFLAC voice appears. [As an aside, Lex Luther, macaw, now says "AFLAC sucks."]

CARB, Cool Planet Biofuels

2012-01-11T08:31:00.000-08:00

Press release on January 11, 2012.

Cool Planet BioFuels announced today it has received approval from the California Air Resources Board (CARB) to begin fleet-testing its negative carbon gasoline. Cool Planet BioFuel's technology converts low-grade biomass -- such as grass and woodchips -- into high-grade fuel. This process also produces a byproduct, which can be used to sequester carbon and act as a soil conditioner. This makes the CoolPlanetBioFuels product a negative carbon fuel. The company's first road tests involve combining negative carbon fuel blendstock with California standard E-10 gasoline to meet California's 2020 goal of a 10% reduction in carbon intensity versus today's standard pump gas.

Celsis v. Cellzdirect: “Revisionist history is unpersuasive," but dissent raises issues in obviousness, preliminary injunction

2012-01-11T00:22:00.000-08:00

From the CAFC decision:

Here, the district court found that the LTC expert’s “revisionist history is unpersuasive.” Hr’g Tr. 10:7-8; see also Hr’g Tr. 7:11-13 (“Instead of a more candid ‘Why didn’t I think of that,’ we get [LTC arguing] ‘Anybody reasonably skilled in the art would have thought of that.’”).

AND

The district court found that LTC’s experts did not predict the results of the claimed methods at the time of the invention, nor could they find any reference in the prior art suggesting that any other scien- tist had. Hr’g Tr. 7:23-8:1 (“That was not the subject of numerous articles authored or assembled by Dr. Li or Dr. Gupta or by any of the other scientists who participated in the consortium about which Dr. Li testified, or for that matter by anybody else.”).

Of evidence:

Celsis offered testimony from its expert Mark Peter- son on irreparable harm. In contrast, LTC did not offer expert testimony in rebuttal. This court sees no error in the district court’s reliance on Celsis’ unrebutted expert testimony. To substantiate its claims, Celsis presented fact and expert testimony as well as specific financial records.

AND

The general rule is that this court does not consider argu- ments not raised below. See Singleton v. Wulff, 428 U.S. 106, 120 (1976). This court finds no reason to disregard that rule here.

The dissent noted:

In other words, Celsis’ invention uses two known techniques, repeats them, and happens to obtain 70 percent viability of hepatocytes. This “invention” is a “patent for a combination which only unites old elements with no change in their respective functions [and] obvi- ously withdraws what already is known into the field of its monopoly,” Great Atl. & Pac. Tea Co. v. Supermarket Equip. Corp., 340 U.S. 147, 152-153 (1950), which is a “principal reason” for finding a patent obvious. KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Repeating known steps to obtain a desired result is not inventive. Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1330-31 (Fed. Cir. 2009) (finding obvious a claimed inven- tion that required performance of three steps known in the prior art, followed by repetition of those steps until a desired result was obtained).

Streck v. Research Diagnostic

2012-01-10T23:58:00.000-08:00

Bottom line: we affirm the district court’s judgment against R&D and its decision granting a permanent injunction in favor of Streck.

As to the disputed issues:

For the reasons set forth below, we find that: (1) the district court did not err in limiting the action to the claims Streck asserted, given R&D’s failure to establish a case or controversy with respect to the other claims; (2) the patents-in-suit satisfy the written description requirement as a matter of law, because the specification clearly discusses true reticulocytes as well as analogs; (3) R&D’s evidence failed to create a jury question on the issue of whether the patents-in-suit failed to enable one skilled in the art to make the claimed integrated controls using true reticulocytes; (4) the priority issue is controlled by this court’s ruling in Appeal No. 2011-1045, and R&D’s related evidentiary challenges are without merit; and (5) properly construed, the language in the permanent injunction is not overbroad. Accordingly, we affirm the district court in full.

Salient points:

It is well-established that, in patent cases, the exis- tence of a “case or controversy must be evaluated on a claim-by-claim basis.” Jervis B. Webb Co. v. So. Sys., Inc., 742 F.2d 1388, 1399 (Fed. Cir. 1984) (citations omitted).

A reference to DNJ: Post-MedImmune, at least one district court has found that it lacked declaratory judgment jurisdiction over patent claims that were initially asserted in a broad complaint and subsequently not included in the narrower scope of claims alleged to be infringed. See Hoffman-La Roche Inc. v. Mylan Inc., No. 2:09cv1692, 2009 U.S. Dist. LEXIS 114784, at *17-18 (D.N.J. Dec. 9, 2009).

Of written description: The written description “must clearly allow persons of ordinary skill in the art to recognize that [the inventor] invented what is claimed.” Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc) (citation and quota- tions omitted). The test is whether the disclosure “con- veys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date.” Id. This test requires an “objective inquiry into the four corners of the specification from the perspective of a person of ordinary skill in the art.” Id. Given this per- spective, in some instances, a patentee can rely on infor- mation that is “well-known in the art” to satisfy written description. Boston Sci. Corp. v. Johnson & Johnson, 647 F.3d 1353, 1366 (Fed. Cir. 2011). Where, however, the “four corners of the specification directly contradict infor- mation that the patentee alleges is ‘well-known’ to a person of skill at the effective filing date, no reasonable jury could conclude that the patentee possessed the invention.” Id.

A mere wish or plan is not enough to satisfy written description: It is well-established that the “hallmark of written de- scription is disclosure.” Ariad, 598 F.3d at 1351. The level of detail required to satisfy the written description requirement depends, in large part, on the nature of the claims and the complexity of the technology. Id. As we explained in Ariad, the written description requirement “does not demand either examples or an actual reduction to practice; a constructive reduction to practice that in a definite way identifies the claimed invention can satisfy the written description requirement.” Id. at 1352 (citing Falko-Gunter Falkner v. Inglis, 448 F.3d 1357, 1366-67 (Fed. Cir. 2006)). That said, a “mere wish or plan” to obtain the claimed invention is not sufficient. Centocor Ortho Biotech, Inc. v. Abbott Labs., 636 F.3d 1341, 1348 (Fed. Cir. 2011) (citing Regents of the Univ. of Cal. v. Eli Lilly & Co., 119 F.3d 1559, 1566 (Fed. Cir. 1997)). “Com- pliance with the written description requirement is a question of fact but is amenable to summary judgment in cases where no reasonable fact finder could return a verdict for the nonmoving party.” PowerOasis, Inc. v. T- Mobile, Inc., 522 F.3d 1299, 1307 (Fed. Cir. 2008).

Here: Streck is not required to prove an actual reduction to practice as to all disclosures. See Ariad, 598 F.3d at 1352. Instead, to satisfy written description, Streck need only show that the specification itself demonstrates “a constructive reduction to practice that in a definite way identifies the claimed invention.” See Id. at 1352. The relevant inquiry, therefore, is whether a person of ordi- nary skill in the art would reasonably find that the patent sufficiently described the invention using true reticulo- cytes. R&D’s expert, Dr. Simson, testified that, in this case, a person of ordinary skill in the art is “someone with an advanced degree like an M.D. or a Ph.D. and with experience in the field.” J.A. 46608:10-12.
Looking to the specifications, the patents-in-suit refer to several types of true reticulocytes: (...)

Note the use of the PRESENT tense: The reticulocyte component is prepared in any suitable manner. See, e.g. U.S. Pat. No. 5,432,089, incorporated by reference. Alterna- tively, it is possible to obtain suitable reticulocytes by obtaining blood from an anemic animal (e.g., a pig, goat, rabbit or the like).

As to enablement: Enablement “is a legal determination of whether a patent enables one skilled in the art to make and use the claimed invention.” Hybritech Inc. v. Monoclonal Antibod- ies, Inc., 802 F.2d 1367, 1384 (Fed. Cir. 1986) (citation omitted). To be enabling, a patent’s specification must “teach those skilled in the art how to make and use the full scope of the claimed invention without ‘undue ex- perimentation.’” Alza Corp. v. Andrx Pharm., LLC, 603 F.3d 935, 940 (Fed. Cir. 2010) (citations omitted). It is well-established, however, that a specification need not disclose what is well-known in the art. See Hybritech, 802 F.2d at 1384 (“[A] patent need not teach, and preferably omits, what is well known in the art.”).

AND

The enablement requirement is met where one skilled in the art, having read the specification, could practice the invention without “undue experimentation.” In re Wands, 858 F.2d 731, 736-37 (Fed. Cir. 1988) (“Enablement is not precluded by the necessity for some experimentation such as routine screening.”). Whether undue experimentation is required “is not a single, simple factual determination, but rather is a conclusion reached by weighing many factual considerations.” Alza, 603 F.3d at 940 (citing Wands, 858 F.2d at 737).

Of evidence issues: importantly, R&D failed to offer evidence to the contrary.
R&D also failed to produce adequate evidence that the experimentation required to create a true reticulocyte integrated control would be unduly laborious for one of ordinary skill in the art. R&D relies primarily on its own expert, Dr. Simson, who testified that “the patents do not enable a person of ordinary skill in the art to make . . . an integrated control preparation containing naturally occurring reticulocytes.” J.A. 46613:9-12. Simson further testified that “there is no real description in the patent itself enabling one to do it” and there were no examples “of how to make this material using natural occurring reticulocytes” in the patents. J.A. 46610:25-46611:5. As Streck argues, however, conclusory expert assertions do not give rise to a genuine issue of material fact. Although Simson testified that “a large amount of experimentation” would be necessary, on cross-examination he admitted, after he was presented with his own conflicting deposition testimony, that he has never been involved in developing controls. See J.A. 46611:19-24; 46621:13-46622:20.

Nikola Tesla shows up on "Unforgettable"

2012-01-10T19:23:00.000-08:00

Inventor Nikola Tesla comes up as a password in Unforgettable on 10 Jan 2012. It opens a video file depicting fraternity hazing.

Buried underneath the hazing business is a drug smuggling ring, with the pledges of Omega Rho as mules, bringing in drugs from Toronto.

Carrie Wells gets drugged at a frat party, and gives the memorable quote "I can't remember." There is a reference to a news story: liquid cocaine from Newark. [drug-soaked tablecloths were snagged at the Munich airport.] The drugs in Unforgettable were in the tee shirts (a variation of a different plot line from Law & Order: Criminal Intent [ Dramma Giocoso ] wherein costumes for a touring opera were soaked in drugs; from the internet: Law and Order covered this. Some costumer for an Opera company soaked the clothes in coke and shipped them back to U S America. ).

A quote related to the deceased pledge, whose video brought down the bad frat boys: If you can't join them, beat them.

Unconscious vs. conscious plagiarism?

2012-01-10T18:58:00.000-08:00

Text within the post:

As for the broader context of taking ideas and presenting them as new, well, that happens all the time, sometimes knowingly and sometimes accidentally.

out to resonate with patent attorneys.

Novak ad in Variety: “I WANT TO REPORT A RAPE"

2012-01-10T18:49:00.000-08:00

The movie "The Artist" uses the love theme tune from Hitchcock's "Vertigo". Kim Novak, the lead actress in Vertigo, was so upset she ran an ad in Variety.

The final text in the ad: “IT IS ESSENTIAL TO SAFEGUARD OUR SPECIAL BODIES OF WORK FOR POSTERITY, WITH THEIR ORIGINAL AND INDIVIDUAL IDENTITIES INTACT AND PROTECTED.”

Moral rights in the music for actresses?

Corporate spy done in on Jan. 9 episode of "Castle"

2012-01-09T20:07:00.000-08:00

The episode of Castle on 9 Jan 2012 titled "Till Death Do Us Part." involved the death of a corporate spy at the hands of a female COO who had been seduced by the spy (the word "sexpionage" appears in the episode a few times). The death was by poisoning with colchicine, placed in a protein drink. [The use of colchicine in the US goes back to the time of Benjamin Franklin.]

The COO viewed the murder as just business. Life is tough when trade secrets are stolen.

The journal "Nature" discusses plagiarism

2012-01-09T19:10:00.001-08:00

See" Science publishing: How to stop plagiarism"

Nature 481, 21–23 (05 January 2012)

Recall of Novartis products (Excedrin and NoDoz)

2012-01-08T20:24:00.000-08:00

Certain bottles of Excedrin, NoDoz, Bufferin, and Gas-X are being recalled.

BusinessWeek noted: Novartis AG said it’s voluntarily recalling some over-the-counter products in the U.S., including its Excedrin headache pills and NoDoz medication, because they may contain broken or stray tablets from other products.

AND

Novartis said it was recalling all lots of bottles containing Excedrin and NoDoz with expiration dates of Dec. 20, 2014, or earlier as well as Bufferin and Gas-X Prevention with throw-out dates of Dec. 20, 2013 or sooner.

CSI: Miami does "Down with corporate greed" on January 8, 2012

2012-01-08T19:19:00.000-08:00

Solamerge phones are the technical angle on CSI: Miami on January 8, 2012, with the CEO (Matthew Stone) getting murdered by a smart bullet to the brain. There is lots of voice-activated gimmickry in the opening. And then protestors shouting "Down with corporate greed." Themes ripped from the headlines?

The CEO had cancer, but the girlfriend said he was going to beat it. The girlfriend used to be a coder, and noted "Everyone envied him." There was Matthew and there was the rest of the world. The tv in the living quarters responded to the voice commands of everyone in the room, and a close look at the tv revealed a bug.

Blackburn (a previous character on CSI: Miami) bugged Stone, because he was afraid Stone would give away company secrets. So, there is one IP angle.

The message texted to Stone right before his death, "The time is now 321," was (seemingly) sent from Heidi Taylor. Taylor said Stone is the symbol of economic inequality He was the epitome of corporate greed. Taylor denied sending the text messages to Stone. It was later determined Taylor's phone was hacked.

Lunugo hair leads to the girlfriend, who acknowledged taking the will at Matthew's request.

Stone had a grade 4 glioma. Investigating Stone's brain revealed a microchip and parts of a smart bullet, which had rudders to change direction. There was an earlier partner of Stone.

The former partner Raj was included in the will at the last moment. Stone did not trust his own lawyers to do the job. They were nicknamed "The Siamese Twins" at computer camp. The cell phone company was making the PW10 rifle, which fired smart bullets. Both prototype guns were stolen 48 hours before the murder. There was a leak. Matthew was telling people about the guns.

Then, a bank robbery in progress at Sweetwater (Miami National Bank), using the smart guns. But the "smart gun" ended up shooting the robber with the smart gun. 55 Olsen St. is the address of Raj. Raj said Stone paid Raj to shoot Stone.

The only way to save Tim's life.

Magnetic stripping on a seeming form letter sent to Taylor. Jerry Blackburn was mass producing the smart gun (with production including the faults).

Test results on the prototypes of the smart gun were falsified. The ATF revoked the license to sell. Blackburn gets arrested.

Stone left a videoclip on his phone, which was shown at the end of the episode. "The time is now."

"The Good Wife" on January 8, 2012

2012-01-08T18:30:00.000-08:00

The first new episode of "The Good Wife" in 2012 was a blockbuster, relating to a divorce case done by the character David Lee, which led to the sale of a company called "Bubble Elastics." Then, there were problems. The initial play against Lockhart, Gardner was for alienation of affection, but this moved into perjury and fraud.

In "The Good Wife," an intentional tort malpractice claim is brought against the firm for $44 million. It was stated that each partner would be liable for $1.2 million. Note 44/1.2 is 36.67, which is not an integer.

The topic of throwing partners "under the bus" arose during the show. A clause in the partnership agreement allowed a majority of the partners to project liability onto the partner causing the malpractice. Clause 63 of the partnership agreement. David Lee to Eli: You are gone. You are do gone you might as well clean out your desk. Eli to David: Nice to meet you buddy.

The topic of entries on the computer database also arose. A key rider on conflict of interest was missing from the database. The outcome of the $44 million lawsuit depends on the one document. Will said "This is an IT problem."

Alisha reviewed her day planner to refresh her memory about the document in question. Finally, a hard copy of the rider was found in Kerry's files, but there are still issues about the origin of the document. Is it the real rider? "You do not poke holes in your own testimony." Because of other turns in the plot, the absence of the rider document from the electronically scanned record is never explained in the episode.

The character Wendy Scott Carter shows up.

At the end of the episode, Diane explains things to David and Eli: It's a new economy. This is an office of expediency. Stop bickering. I won't have it.

The episode ends with a subpoena served to Will Gardner.

Stem cell story of "60 Minutes" on 8 Jan 2012 follows up previous investigation

2012-01-08T17:17:00.000-08:00

The first story involved the use of the injection of stem cells to treat people. Dr. Dan Ecklund was surprised to see 60 Minutes AND the 60 Minutes camera was hidden in this story about the questionable concept of injecting stem cells. The story was called "Stem Cell Fraud." Scott Pelley noted a story two years ago by 60 Minutes, with this story of January 8 being a followup, The initial portion of the story was about the Susser family going to Mexico in 2003 for a stem cell treatment for their son. Now, the StemTechLabs of Ecuador, who claimed to be FDA registered. Pelley talked to a scientist, Joanne Kurtzberg of Duke University, who noted stem cell science is in its infancy and we are 10 years away. She works with stem cells harvested from umbilical blood [cord blood]. Pelley noted it would be a felony to use stem cells for an unapproved therapy in the United States. However, it is not illegal to send the stem cells. 60 Minutes stated that the stem cells sent from StemTechLabs had disintegarated. 60 Minutes dug into Dr. Ecklund's background. Ecklund came to Florida to discuss treatment with the Sussers, and Scott Pelley popped out to record the interview. Ecklund noted stem cells give off chemicals that cause other cells to repair themselves. Pelley brought up the contract which mentioned improved ability to see. Pelley established Ecklund was self-educated in the area of stem cells.. Pelley pointed out there were no papers published by Ecklund. Ecklund asserted that papers cannot be published in the United States on this topic. Ecklund said the work would be suppressed in the United States. Dr. Kurtzberg listened to Ecklund's discussion. Ecklund said he had taken the stem cells himself. Pelley noted that publication is the standard of the world. Ecklund walked out. Pelley then talked about the 60 Minutes story of two years ago: Stowe and Morales. Pelley noted last week Stowe and Morales were indicted. Pelley noted the story would continue on CBS This Morning. Pelley also noted additional information would be on CBS Overtime, sponsored by Lipitor.

Separately, from a post on the internet in March 2009:

StemTech Lab on the road

Our first delivery to the USA took place last week with great success. Our first USA patient is showing minor but immediate improvement after one treatment and within just two days; though there is no concise explanation of how human umbilical cord blood stem cells can provide improvement in such short term this seems to be common for some stem cell treated patient. Common scientific logical sense would indicate that it should take a stem cell many days to engraft and start working, but there seems to be more to it than the cell differentiating and engrafting into the affected area. This patient has been in a coma for 10 years under the care of his very loving mother. His mother says that he became more alert and responsive, something quite impressive in such a short amount of time after the first treatment application. Our prayers go out to his family and hope that their son wakes up from this very long dream.

FDA registration
Our umbilical cord stem cell registration has just received final registration by the FDA.

The second story was about brothers serving together in units in Afghanistan. The story began with the story of the Sullivan Brothers, then moved to the present with a story about the Beans Brothers, Marines serving in Afghanistan. Note a previous story on CNN from February 2011 A real-life band of brothers, which began: Daniel and Joshua Beans don't spend a lot of time together and don't have much in common. But these brothers share a bond only troops who've marched into battle can fully understand.

The third story was about truffles and truffle-hunting dogs. The Urbani factory was discussed. A two pound white truffle sold for over $300,000. Marche de Truffes. The French chef Bruno was interviewed. Bruno goes through 5 tons of truffles per year. He noted robbers stole 200 kilos of truffles. "60 Minutes" showed a transaction wherein fifty pounds of truffles exchanged for $30,000. Finally, the topic of Chinese truffles came up. Bruno said: no smell and no taste. Chinese truffles are worth $20 to $30 per pound. Thus, a trade has developed in which Chinese truffles are blended into Italian or French truffles. Thus, a legal issue of passing off. 28 tons of Chinese truffles come into France every year. Black Winter Truffle. This destroys the tradition of the truffle. American law does not require a distinction among truffles. Issue: because the Chinese truffles are packaged in France, ok to say "Product of France." Issue: Chinese truffle spores infecting France. A knock-off that looks the same. Note a story at Zester from 2010: In France and Italy, dogs – not pigs – are a truffle hunter's best friend, especially the mutts. :

But the main reason for replacing pig with dog is that, once a pig finds a truffle, it's very difficult to part it from the prize.

The truffling dog, while not naturally partial to truffles, can be trained to find the tubers by scent. A hound with a proven record of success is worth its weight in gold, which is why truffle hunters are prepared to spend time and trouble on dog training.

[ The first commercial on 60 Minutes was about Cadillac's new compact model, the ATS.]

Pelley plugged "CBS This Morning" at the end of the 60 Minutes show on 8 Jan 2012. In a videoclip, Charlie Rose appeared from "studio 57." The show is at 7am. Another example of CBS News cross-branding.

CBS Sunday Morning on January 8, 2012

2012-01-08T06:00:00.000-08:00

Susan Spencer reports the cover story on the race to the White House and charisma. Second, David Pogue on viral You Tubes. Third, Rita Braver on Judge Judy, who makes $45 million per year. Fourth, Mo Rocca on designing clothes for athletes. Lee Staley on fish and chips.

Headlines for 8 Jan 2012. The debate in Mancheser, NH, starting with Santorum on Romney. Iran on Navy rescue mission, a Hollywood drama. Bill O'Brien at Penn State. Saints 45-28, Texans, 31-10. From Destiny's Child to Motherwood: Blue Ivey.
American Dialect Society: Occupy. Weather: Mild in the Northeast.

Charisma is a word which is mentioned a lot when talking of political candidates. Braver's story started with Rick Perry's forgetting. An instant in which charisma is destroyed. Professor Joseph Nye at Harvard. Personal magnetism that some people have. Mark Oppenheimer of Yale, a gift which is freely given. The power of charisma. Ronald Reagan: humor to project personality, but came in third to Clinton and Kennedy. George Clooney, Derek Jeter, The Cookie Monster? At MIT Media's Lab, use science to measure charisma. The sociometer, done by Alex Pentlund at MIT. Predict "how well" a business plan will be accepted, without knowing details of the plan. John Neffinger, a Yale grad, runs workshops for K&P Communications: strength and warmth. Stand up straight and smile. A little bit of a smile, with determination in the eyes. Barack Obama: will raise his chin, which distances himself and looks down his nose at us. Mitt Romney: tries to ham it up a bit; comes off as ingratiating. Seems fake.
76% of voters say charisma will play a role in their vote; about 1/4 say it is most important. 57^ of people think they have some charisma.

Almanac. January 8, 1982. The day the bell tolled for Ma Bell. Consent to break up AT&T. A 1940s instructional film. Lily Tomlin's Ernestine. We are omnipotent. The DoJ challenged the monopoly in court.

The art of Maurizio Cattelan by Serena Alschuler. An Italian artist, who hires master craftsman to implement his ideas. New York's Guggenheim. Nancy Spector, Cattelan. Pope John Paul II hit my a meteriorite. INRI. The more crazy, the better the work is.
Woman in a refrigerator. He was the son of truck driver; a poor student with a vivid imagination. Success is waking up, doing what you like. Has announced his retirement from making sculptures.

David Pogue of the New York Times on YouTube. The Gregoy Brothers: Evan, Michael, and Andrew. AutoTune. You make them sing. A local news report on an attempted rape in Alabama. Antoine Dodson. Mashup of tv news and music. Dead Intruder song. Unintentional lyriciists. Aren't we mocking their unsophistication. Green screen. They put themselves into other people's scenes. Replace all green with something else, like a tideo. Songafy this turns your speech into song. Viral YouTube sensation.

Loss of two masters in past week. Bob Anderson, sword fighting. Light Sword battle was played by Anderson. Eve Arnold also died. Pictures of Marilyn Monroe. The Misfits. Arnold was 99 at death.

One year ago today, Gifferts shooting. 31 bullets, 19 people hit. Daniel Hernandez used his bare hand to stop blood loss. Daniel is now a senior in college. Ron Barber was shot in leg and face. I have nothing to complain about; I'm alive. Christina Taylor Green. Susie Heilmann.

College football uniforms, starting with Oregon. Mo Rocca: Oregon looked like comic book heroes. A different uniform every game. Todd van Horn of Nike designs the uniforms for the Oregon Ducks. The duck wings are functional. Nothing is out of bounds. We stand for constant change. UniWatch.com. Morrill's Nose Mask. Now, jerseys are skin tight. No grab points. Maryland Terrapins: Maryland flag uniforms. Randy Edsel. The Maryland players had a runway show. Notre Dame flashed up their luck. Simon Nunion of Barney's. The burgundy looks incredible on the field (Arizona). Subtle tiki is no tiki. Now we are getting creative. Paul Lucas: Nebraska uniforms are plain. The power of selling to customrs; Drop $200 for polyester shirt. Merchandising tail drives onfield dog. But: If you lose, you are just a clown.

Rita Braver does Sunday Profile on Judge Judy. Tough as nails terror of daytime tv. I'm a good fact finder. This is not a legal game. She was a judge for 14 years on family court. In 1993, Morley Safer did piece on her. If you missed it, it rhymes with witch. Prosecutor in family court. Say Jerry Scheinlein. Now have 11 grandchildren. Both were judges. They divorced in 1990 and remarried a year later. I have food in my refrigerator that is older than you are. Judge Judy is number 1 syndicated show on television. The cases on the show are real. The show pays the damages. People want to air their grievances. SNL was parodied on SNL on 1998. Get your bony ass out of the chair. 13 acre spread in suburban Connecticut. Once lived in a studio apartment with a Murphy bed. Plans to do show until 2015. It's your life; live it well.

Jeff Greenfield on NH primary. Goes back 4 years to Obama v. Clinton. Clinton won all big state primaries. Over and over again political seers are wrong. What is past is not prologue. Book: the black swan. Clinton, Bush, Obama lost NH primary but were elected president. No incumbent re-elected when unemployment over 7.2%? Whoever called it political science must have had a wicked sense of humor.

Goodby to Bernie Siebrooks, over 50 years at CBS. Goodby im McKenna, VP for finance. Pic with Charles Kuralt.

Something fishy in England, story by Faith Staley. The good companion. Fish and chips. 312 times per year. Historian John Walton. Italian migrants in 19th century. Georges fish shop. The Golden Union. Nigel Jewison: used fish and chip oil into biodiesel. Chicken tikki marsala.

Next week on Sunday Morning: Spielberg. Tomorrow: "This Morning" on CBS with Charlie Rose.

Moment of Nature: Pradaxa. 9500 above sea level at Rocky Mountain National Park in Colorado.

Microsoft's US Patent No. 8,090,532: Pedestrian route production

2012-01-08T03:48:00.000-08:00

The abstract of "Pedestrian route production" gives one the basic idea:

As a pedestrian travels, various difficulties can be encountered, such as traveling through an unsafe neighborhood or being in an open area that is subject to harsh temperatures. A route can be developed for a person taking into account factors that specifically affect a pedestrian. Moreover, the route can alter as a situation of a user changes; for instance, if a user wants to add a stop along a route.

The first claim

Computer storage media having embodied thereon computer-useable instructions that, when executed, implement a system, the system comprising:

a search component that locates at least one information source, retains pedestrian history from a plurality of pedestrians and addresses of at least one information source that has a history of providing reliable information, identifies low quality information sources that do not provide information used in route generation, and blocks information obtainment for the low quality information sources;

a gather component that obtains information related to pedestrian travel including security information, weather information, and terrain information, wherein the gather component obtains the information from the at least one located information source;

an artificial intelligence component that makes at least one inference regarding a route based on a previous pedestrian behavior; a filter component that determines, based on the at least one inference, the information that is likely relevant and deletes information that is commonly of little value in part through examination of previously produced routes;

an analysis component that determines an importance of the information to a user, estimates how likely the information is to change, and chooses if the user should reach a destination through a pedestrian route and/or through a conventional route;

a generation component that obtains the information from the gather component and produces a direction set for use by a pedestrian based at least part upon the obtained information; and

a resolution component that resolves a conflict between an information source with a financial interest and an information source without a financial interest and instructs the generation component to produce the direction set based upon the information source that does not have a financial interest in providing the direction set.

AND, from the specification,

A large amount of focus in route generation has focused upon vehicle route generation and little attention has been paid to pedestrian route production. Since a large number of individuals travel by vehicle, application to pedestrian travel has been ignored. However, there has been a long felt need for route generation towards individuals that do not commonly travel by vehicle--for instance, many economically challenged areas are populated with individuals that do not own motorized vehicles and generally travel by walking. In addition, unexpected results can take place through practice of the disclosed innovation. As an illustration, a pedestrian could arrive at a location faster than if she traveled in a vehicle by taking more direct paths, yet a vehicle commonly travels much faster. Due to detailed route planning, a direction set can be created that allows a user to take more diverse paths that can compensate for a general lack of speed.

The most egregious Republican debate error on Jan 7: football

2012-01-07T23:29:00.000-08:00

Yahoo.news did mention the goof on college football during the New Hampshire debates on 7 Jan 2012, tho it did not mention that the moderators did not correct the rather obvious goof:

ABC News’ Greg Krieg’s Instant Fact Check: There is no college football championship game being played tonight. There is an NFL playoff game. But no college ball.
ABC News’ Chris Good reports:
America loves sports, and for a politicians, fanship is a good way to prove you’re just one of the guys or gals. Most of the time.
Asked by moderator George Stephanopoulos what they’d be doing on Saturday night if they weren’t debating, three candidates said they’d be at home watching a national-championship college sports game.
Unfortunately, no such game was being played. Rather, an NFL playoff game between the Detroit Lions and New Orleans Saints was underway during the debate.
“Watching the national-championship college basketball game,” Newt Gingrich said in response to Stephanopoulos’s final debate question. “Football,” he adjusted, when corrected on the sport.
Santorum agreed: He’d be at home watching the national-championship NCAA football game.
“It’s football,” Mitt Romney said, also agreeing. “I love it.”
False: It’s neither. Badly as they may have wanted to, no candidate could have been watching a football or basketball championship game tonight.
Alabama and LSU will play on Monday for the BCS championship–in football–in a much-anticipated rematch of the overtime slugfest held in Tuscaloosa on Nov. 6, which LSU won 9-6.

Griswold v. Connecticut, a 1965 decision of the Supreme Court, also came up during the debate. There were two dissents in Griswold, one by Hugo Black and one by Potter Stewart; one suspects there were not many 7-2 votes with Stewart and Black agreeing in dissent.

Of patent matters, Justice Black, in dissent in Graver Tank, nailed the chemistry issue dead on:

The only patent claims involved here describe respondent's product as a flux "containing a major proportion of alkaline earth metal silicate." The trial court found that petitioners used a flux "composed principally of manganese silicate." Finding also that "manganese is not an alkaline earth metal," the trial court admitted that petitioners' flux did not "literally infringe" respondent's patent. Nevertheless it invoked the judicial "doctrine of equivalents" to broaden the claim for "alkaline earth metals" so as to embrace "manganese." On the ground that "the fact that manganese is a proper substitute . . . is fully disclosed in the specification" of respondent's patent, it concluded that "no determination need be made whether it is a known chemical fact outside the teachings of the patent that manganese is an equivalent . . . ." Since today's affirmance unquestioningly follows the findings of the trial court, this Court necessarily relies on what the specifications revealed. 1 In so doing, it violates a direct mandate of Congress without even discussing that mandate. (...)

Respondent's assignors experimented with several metallic silicates, including that of manganese. According to the specifications (if these are to be considered) they concluded that while several were "more or less efficacious in our process, we prefer to use silicates of the alkaline earth metals." Several of their claims which this Court found too broad to be valid encompassed manganese silicate; the only claims found valid did not. Yet today the Court disregards that crucial deficiency, holding those claims infringed by a composition of which 88.49% by weight is manganese silicate.

In view of the intense study and experimentation of respondent's assignors with manganese silicate, it would be frivolous to contend that failure specifically to include that substance in a precise claim was unintentional.

DailyTech ridicules patent system

2012-01-07T20:45:00.000-08:00

DailyTech writes: The system essentially creates a fun game for the USPTO in that the more patents it grants, the more patents are filed. And the more patents that are filed the more fees are collected. Hence, the more patents that are granted, the more fees that are collected.

Hmm, do the statistics for the last ten years support these correlations? In some recent years, patent applications went up, as grant rate went down.

Yes, the swing patent was mentioned:

If you're wondering, yes this patent describes playing on a swing. While it's hard to fault the author St. Paul, Minn.-resident Steven Olson (for the record, he's probaby one of these guys) for engaging in such a nostalgic activity, one might worry that someone might challenge this patent given that Mr. Olson didn't really provide much in the way of prior art for his novel play "technology". A prior art claim seems especially likely if 18th century French Rococo artist Jean-Honore Fragonarde (see above) returns from the grave. But fortunately the USPTO cleared that up for us. See that "B1"? That means it's the first of its kind, or as the USPTO, "No previously published pre-grant publication."

But Jason Mick failed to mention that the claims of the swing patent died in re-examination.

And an allusion to "Hyper-Light Speed Antenna" (U.S. Patent 6,025,810) .

"It’s a friggin’ footnote"

2012-01-05T14:45:00.000-08:00

IPBiz has covered some of the unusual situations emanating from the newsrooms of Philadelphia tv stations. For example, the Larry Mendte saga illustrated some legal points about email hacking, and worked its way onto NBC's Law & Order [see

"Law & Order" plotline follows Larry Mendte story and Madoff scam . Vai Sikahema's temper tantrum "Rutgers is Wrong," the video for which subsequently vanished from the internet, led IPBiz to coin the term "sikahema."

Even Philly's tv weathermen have some issues. A graphic account of the recent suspension of Channel 29's John Bolaris is separately rather humorous. Within the text is a disparaging remark about footnotes, which might be offensive to legal scholars:

the [Playboy] interview, which gave Fox29 brass oggida isn’t online, and isn’t even listed on the current issue [January 2012] of Playboy‘s table of contents. Like so many other things in the wild saga of John Bolaris, it’s a friggin’ footnote.

Channel 10's Hurricane Schwartz is mentioned in the piece:

You think fuckin’ Hurricane Schwartz would ever admit to getting drugged twice in pursuit of some cold Eastern European Juicy-Couture disciples? [above italicized text from We Cannot Believe We Missed The Whole Part When John Bolaris Got Suspended Indefinitely For Do-Shot-Gate ]

Actually, Hurricane Schwartz is not necessarily as tame as the bow-tie suggests:

Hurricane Schwartz apologizes for Election Night tantrum

How NBC 10 Is Like Fifth Grade about the incident with Vince DeMentri .

Rights in a name. How Benjamin Kubelsky became Jack Benny.

2012-01-04T13:01:00.000-08:00

The comedian we know as Jack Benny was born Benjamin Kubelsky. One likely is not surprised that someone in the entertainment business might go from Kubelsky to Benny. However, the path taken by Jack Benny is a bit out-of-the-ordinary.

Under his given name of Kubelsky, the person Benjamin Kubelsky (later Jack Benny) formed a vaudeville musical duo with pianist Cora Salisbury. In the act, Kubelsky played the violin, and it happened that there was a famous violinist named Jan Kubelik, who felt the names Kubelsky and Kubelik were confusingly similar. Thus, Kubelsky became Ben K. Benny, not because Kubelsky was a bad name but because it was confusingly similar to a good name in the violin business.

But, we aren't done yet. There was another violin performer named Ben Bernie, who objected to the use of Ben K. Benny. Ben K. Benny, once Benjamin Kubelsky , became Jack Benny.

And yes there is a Jersey connection. Mary Livingstone (Jack Benny's wife; born Sadie Marks and a cousin of the Marx Brothers) was introduced in the tv show as a clerk at May's Department store who hailed from Plainfield, New Jersey.

RCEs can be used to go onto Track I

2012-01-04T11:52:00.000-08:00

The InventiveStep blog gives some useful information on the USPTO's prioritized examination:

Several weeks ago, the PTO announced an expansion of the procedures for prioritized examination. Under the previous rule, Track I prioritized examination could only be requested for new applications or for applications that were re-filed as continuing applications. Now, applicants may file Requests for Continued Examination to obtain Track I status, provided that the appropriate fees are paid and the application is limited to 30 claims and 4 independent claims.

Google buys IBM's US 7,865,592 , and others

2012-01-04T11:41:00.000-08:00

US Patent No. 7,865,592 is titled Using semantic networks to develop a social network with

abstract

A method, apparatus and program product are provided for identifying common interests between users of a communication network. A program of instruction monitors activity over a communication network by users and identifies interests for users based on network activity. The program of instruction creates semantic networks based on use of the communication network and identifies other users with common interests from the semantic networks. Optionally, social networks may be created or modified by adding other users with common interests as identified by semantic networks.

first claim

A method for identifying common interests between users of a communication network comprising the steps of:
monitoring activity over a communication network by users;
identifying interests for users based on network activity;
creating semantic networks of users' interests based on the users' use of the communication network; and
identifying users with common interests by comparing the users' respective semantic networks.

It's hard to determine which is more humorous, that IBM, which constantly railed against bogus patents, got the patent, or that Google bought it.

See also Google adds IBM patents as it looks to future which includes the text:

Among the patents acquired in this latest deal is US Patent 7,865,592 which relates specifically to social networking sites, allowing "identifying common interests between users of a communication network".

Corrections to decision in Powertech v. Tessera

2012-01-04T09:03:00.000-08:00

Note the two corrections made in the Powertech Technology v. Tessera case.

Marctec loses appeal at CAFC vs. J&J/Cordis

2012-01-03T14:47:00.000-08:00

The CAFC mentioned the term "junk science":

After the district court granted summary judgment in its favor, Cordis moved to have MarcTec’s suit declared exceptional under 35 U.S.C. § 285, and to be compensated for its reasonable attorney and expert witness fees. In its motion, Cordis argued that MarcTec engaged in litigation misconduct by, among other things: (1) misrepresenting claim construction law to avoid intrinsic evidence; (2) mischaracterizing the district court’s claim construc- tion; and (3) offering “junk science” that was unreliable, untestable, and had no relevance to this case. Cordis further argued that MarcTec filed a frivolous and baseless lawsuit and acted in bad faith by continuing to pursue its claims without any evidence of infringement.

AND

Next, the district court found that MarcTec relied upon inadmissible expert testimony that was “untested and untestable” and did not meet the scientific reliability standards set forth in Daubert. In particular, the court excluded MarcTec’s expert’s theory that spraying the drug/polymer coating onto the Cypher stent at nearly the speed of sound would generate heat. Id. at *13-16. Al- though we agree with MarcTec that exclusion of expert testimony under Daubert does not automatically trigger a finding of litigation misconduct, and in most cases likely would not do so, we find that the circumstances of this case were sufficiently egregious to support an award of attorney fees.

“Apparently Rolex doesn’t know the difference between a sandwich and a watch.”

2012-01-02T22:51:00.000-08:00

Note the case in SDNY captioned Rolex Watch U.S.A. Inc. v. Rolex Deli Corp wherein the Rolex watch people are going after a deli named Rolex.

Rolex theories include trademark infringement and tarnishment. Shawqu Ali, owner of the deli said “apparently Rolex doesn’t know the difference between a sandwich and a watch.”

"60 Minutes" on New Year's Day, 2012

2012-01-01T16:29:00.000-08:00

The first story was on Eric Cantor, interviewed by Lesley Stahl. The White House blames Cantor more than anyone else for scuttling Obama's plans. Cantor said we"re trying to do what's good for the country. The harder you work, the sweeter the rewards. Kantor is the only Jewish Republican in Congress. Cantor said: nobody gets everything they want. I have always been willing to co-operate. Warm, Southern-gentlemen demeanor. No personal animosity to the President.

To address Cantor/Obama co-operation, Stahl could have mentioned "patent reform." Lest we forget, from Cantor's office on 16 Sept 2011:

Today, House Majority Leader Eric Cantor (R-VA) issued the following statement on President Obama signing the America Invents Act into law, a central provision of the House Republican Plan for America’s Job Creators:

“The President’s action today to sign the America Invents Act into law is an important step to ensure that our nation’s entrepreneurs and small businesses have the ability to more efficiently launch and protect their new products. House Republicans introduced this pro-growth legislation at the beginning of the year to reduce the backlog of 1.2 million patents and to encourage innovation, job creation and economic growth.

“The House Judiciary Committee and Chairman Smith deserve credit for their hard work on this bipartisan, bicameral legislation that will improve the patent system and help create jobs. Going forward, I hope the President and Senate Democrats will continue to work with us on areas where we agree to eliminate burdens facing our nation’s job creators and deliver results to get the American people back to work.”

Of course, "patent reform" did nothing to reduce the patent application backlog, but it was an example of co-operation, even if to no meaningful end. Fee diversion continues.

As to "60 Minutes" on Cantor, see also: http://inagist.com/60Minutes/153302682969448450/

The second story was on one student taking SAT test for others. Allison Stewart on Sam Eshagoff. Sam took the SATs 16 times.
Sam said this was an easy way to make money. Sam was arrested in September. He lived in Great Neck. Nassau County DA Kathleen Rice filed charges on forgery, criminal impersonation. Kathleen noted how easy it was to cheat the system. Sam operated out of Great Neck North. A school ID is accepted by SAT. Name and date of birth on piece of plastic. Sam consistently scored in 97th percentile, or higher. Sam was charging up to $2500 per test. Kurt Landgraff of ETS said cheating was not easy. ETS spends 11 million on test security. Sam Eshaghoff was caught because his clients were questioned, and confessed. He entered into a plea agreement. AP had noted in Sept. 2011: Eshaghoff is a 19-year-old Great Neck North alumnus who now attends Emory University in Atlanta. See Sam Eshaghoff, Emory University Student, Allegedly Took SAT For Other Students 60 Minutes noted that the schools at which the cheating students attend will NOT be notified of the cheating.

The third story, recycled, was on free-soloing. See
"60 Minutes" on October 2, 2011. Tsunami, free soloing, and Rooney's last regular appearance.

Biofuels in Europe: cockeyed planning by people who know nothing of science or math

2012-01-01T09:18:00.000-08:00

American Thinker rips European policy on biofuels:

the EU demand that there be a substantial increase in the use of biofuels to reduce greenhouse emissions seems to be yet another example of cockeyed planning by people who know nothing of science or math.

In the US, there seems to have been some wising up specifically on corn ethanol and maybe even on cellulosic ethanol:

Hoisted on its own corn stalk?

EPA relying on conjecture-based fantasy?

And fear of the Brazilian boogeyman proved unfounded:

But as the contentious [U.S. import] tax finally expires at year-end, American farmers' fears of being swamped by sugar-based tropical biofuel seem unfounded. With Brazil's ethanol industry struggling to meet booming local demand, it's U.S. producers instead who are shipping millions of gallons to the south. from Reuters Brazil, short of biofuel, can't open spigot to US

CBS Sunday Morning on January 1, 2012

2012-01-01T06:00:00.001-08:00

Charles Osgood started by saying Good Morning and Happy New Year. Rita Braver searches out why we sing Auld Iang syne. Second, Lee Cowan on Woody Harrelson, living in Maui. Third, Mo Rocca on Kathy Griffin. Fourth, Seth Doane on cocktails. John Blackstone, Serena Alschuler.

Rebecca Charles gave the news for January 1, 2012. Peach dropped in Atlanta. Mitt Romney and Ron Paul in statistical dead heat in Iowa. Arson in Los Angeles. Earthquake in Japan. Unseasonably warm weather in East.

One last look at the year 2011. The first mention was of Hosni Mubarak. But more time was spent on the killing of the head of Al Qaida. Gabrielle Gifferts. Iraq: 8 years 8 months and 28 days. The launch of the Atlantis. April 8: Congress avoids a shutdown. On July 31: US debt rating downgrade. "Occupy Wall Street." Republican debates in Presidential nomination campaign. Rupert Murdoch. Charlie Sheen. Anthony Weiner. Jerry Sandusky. Joe Paterno. Dominque Strauss-Kahn. Casey Anthony. Conrad Murray. Amanda Knox. Fukushima, Japan. Steve Jobs. American hikers in Iran. Marriage of William. Twin Towers Sept. 11 Memorial. Ban on gays serving openly is over. Derek Jeter, hit 3000.

Almanac. January 1, 1752: Elizabeth Griscom born. Later eloped with John Ross. [ Wikipedia: The couple eloped in 1773 when she was 21 at Hugg's Tavern in Gloucester City, New Jersey.[8] The marriage caused a split from her family and meant her expulsion from the Quaker congregation. ] First flag created in 1776. Bugs Bunny cartoon. Whitney Smith on flags.

The first story was on Auld Lang Syne by Rita Braver. M.J. Rodrigues. New York Caledonian Club, a group of Scottish-Americanss. John MacDonald. Morgan Library in Manhattan. Old long since; for old time's sake. Robert Byrnes, born in 1759. An expert in Scottish folk tunes. Byrnes wrote down a folk song. The idea of mending the song's lyrics. George Thompson.
The Beach Boys, James Taylor. Billy Crystal in When Harry Met Sally.

Mo Rocca on Kathy Griffin. I have a no apology policy for jokes. In 2007, nomination for reality show. Emmy Award. Thank Jesus for this award. Suck it Jesus, this award is my God now. Scorched earth approach to comedy. Vanity Fair piece on women in comedy. 51 years old; grew up in Chicago. Growing up: worshipped celebrities. Groundlings Theater. Mother didn't want Kathy to go topless. In 1990s, Fresh Prince of Belair, Seinfeld. Then Suddenly Susan. Then, Griffen went back to stand-up. Then, My Life on the D-list, on Bravo. The death of her father. It's about being rich and famous. I am very driven by money. I'm in a business with zero job security. She's on the road 120 days a year. This world is attractive, mysterious, and BS, all at the same time.

The goup Pink Martini interviewed by John Blackstone. "In the Pink." Could be the house band for the United Nations. Energetic performances take on the aspect of a party. Martini started 17 years ago in Portland, Oregon. Performed recently at Occupy in Portland. Old fashioned symphonic global pop. 1964: end of era in music. Drives in Portland in 1959 Nash. Students at Harvard. Hit in France. Polyps on China Forbes vocal chords. Tonight Show: Santa Baby. Somewhat undiscovered special treat.

Eva Zeisel died. Ceramic artist. Previous interview with Rita Braver. Born in Budapest in 1906. One of Russia's leading industrial designers. Arrested in Russia in 1936. Imprisoned in St. Petersburg. Came to United States. Playful search for beauty.

Cures for holiday hangover. 2 Excedrin and a bottle of Gatorade. The "morning after" done by Serena Alschuler. Headache, nausea, vomiting. Dr. Steven Lamb: dehydration, low blood sugar. Ethanol is an extremely toxic substance. "The Nutty Professor." 2009's "The Hangover." Noah's hangover. Modern Drunkard Magazine. The Morning Fog. The Jim Jam. The word hangover became popular by 1906. Owl eggs. Sparrow beaks. The one day flu. Tums: relieve hangovers. The drink called Mercy. Angel of Mercy. Fortified with nutrients. Pepsi and milk, 50/50. The hair of the dog, bloody Mary. Pure alcohol (eg, vodka) less likely to provoke hangover. Pulse> last time hangover, 44% a year ago. 34% don't drink.

Lee Cowan does Sunday Profile on Woody Harrelson, the happy Hippie. I didn't want to raise my kids in LA. First Costa Rica, then Maui. The beauty of Costa Rica but better produce. The movie: Rampart. Downward spiral of Dave Brown, chain smoking dirty cop. Playing an army officer in The Messenger. Oscar nominated performance. Woody was born in Texas and raised in Ohio. Character Woody Boyd on Cheers. The People vs. Larry Flynt. Charles Harrelson, father, was sentenced for contract killing of federal judge; was in SuperMax in Colorado. Planting hemp seeds in Kentucky. Incredible role model of what not to do. Home of Willie Nelson in Maui. Woody: I'd rather the expectations stay low.

Staying the course. Luke Burbank. "Two men trapped in one body" ad on Mitt Romney. Common Kardashian. Merits of flip flopping. Girls are riddled with cooties. Travolta, tv dinners. We change our minds on things all of the time. Vanilla Ice.
Unwavering pillars of self assuredness. Code to my gym locker. Disagree with Mitt Romney, but don't complain about him changing. Yin/yang.

The cocktail by Seth Doane. I'll drink to that. The Manhattan Cocktail Enthusiast. Date molasses. Sage, basil. The mixed drink as America's artform. A signature drink for Sunday Morning. Chad and Christie. Historian Dave Wundrich, Tales of the Cocktail. Little Branch. The Trumpet's Call, champaign cocktail, grapefruit, campari Morning Mojo, coffee and rum. The Bright Eye, with egg white, Earl Grey tea. Seth picked The Bright Eye. Charles Osgood was shown holding The Bright Eye, with a red tie (not a bow tie). Matching a red themed Christmas tree.

Dulcolax Morning of Nature. Great wolves of Yellowstone National Park in Wyoming.

Constitutional issue with California's biofuels law

2011-12-31T07:08:00.000-08:00

Text within an AP post illustrates a Commerce Clause issue with California's biofuels law:

U.S. District Court Judge Lawrence O'Neill's written ruling Thursday [29 Dec 2011] said the low-carbon fuel rules violated the U.S. Constitution's commerce clause by discriminating against crude oil and biofuels producers located outside California.

Hoisted on its own corn stalk?

2011-12-30T22:26:00.000-08:00

See the Wall Street Journal article titled, Ethanol in Winter -- Wonder of wonders, the tax subsidy and tariff expire. , which included the text:

The irony is that a fuel that was sold as a global-warming palliative—the industry will use any argument to justify its government lucre—is now being hoist on its own corn stalk. Green carbon fuel standards regulations from the Environmental Protection Agency and in California credit sugar ethanol produced in Brazil with better climate benefits than corn ethanol.

Of the report by the National Academy of Sciences:

In an October report, academy researchers concluded that grain ethanol "could not compete with fossil fuels in the U.S. marketplace without mandates, subsidies, tax exemptions, and tariffs . . . This lack of competitiveness raises questions about the use of government resources to support biofuels."

Venture arm of BP invests in CoolPlanetBiofuels

2011-12-29T15:27:00.000-08:00

gigaom.com discussed the investment of oil company BP in CoolPlanetBiofuels. Within the post was the text:

While there are dozens (likely hundreds) of next-gen biofuel companies, almost none of them have produced biofuels at any scale. The Environmental Protection Agency said this week that once again, only a tiny fraction of the biofuels required by the U.S. mandate will come from next-gen cellulosic biofuels: less than one-tenth of 1 percent, according to the Wall Street Journal. The mandate was for 3 percent.

Of the BP investment, smartplanet noted:

BP didn’t disclose the amount of this latest investment, which was part of a series C funding round led by Shea Ventures. However, CoolPlanet did say the financing round was wrapped up ahead of schedule so it could accelerate the development of its modular fuel production plants. The company says it expects to deploy hundreds of “relatively low-cost modular plants” around the U.S. in the next few years.

See previous post on IPBiz
Google Ventures backs CoolPlanetBiofuels

***Meanwhile, the Wall Street Journal noted of BP on Dec. 29:

U.S. prosecutors are preparing what would be the first criminal charges against BP PLC employees stemming from the 2010 Deepwater Horizon accident, which killed 11 workers and caused the worst offshore oil spill in U.S. history, said people familiar with the matter

EPA relying on conjecture-based fantasy?

2011-12-29T06:29:00.000-08:00

Note the WSJ article titled New Forms of Biofuel Fall Short which includes the text:

Companies will have to buy credits from the EPA if they can't find enough cellulosic ethanol to purchase—even though the fuel may not be available. "The [EPA's] cellulosic number is still conjecture-based fantasy," said Stephen Brown, vice president for government affairs for refiner Tesoro Corp.

The credits cost about $1.20 per gallon, according to Charles Drevna, president of the National Petrochemical and Refiners Association. "Once again, refiners are being ordered to use a substance that is not being produced in commercial quantities—cellulosic ethanol—and are being required to pay millions of dollars for failing to use this nonexistent substance. This makes no sense," he said.

AND

According to a National Academy of Sciences report published this year, the latter target won't be met "unless innovative technologies are developed that unexpectedly improve the cellulosic biofuels production process."

**Separately, we have hungry cows at BiofuelsDigest:

That’s right, algae doesn’t have lignin. Shazam, the perfect workaround. Except that micro algae comes with its own problems. Foremost among them – how do you affordably get the water out of the algae or the algae out of the water? And what, then, do you do with all the residual biomass after the lipids are extracted?

Remember, in a 100 million gallon algal biodiesel project based on 25 percent lipids, you get about a million tons of residual biomass. That’s enough to feed, say, about 180,000 cows. A lot of cows, that are currently eating, we suspect, something else.

So, you have enzymatic biofuels – and a lignin problem. Gasification – you get a motherlode of challenge in making the technology affordable. There’s algae – you better know some hungry cows.

[from The Bullseye Fuel: BAL and its macroalgae-based biofuels Is this also conjecture-based fantasy?]

Felony charges filed against UCLA chemistry professor

2011-12-28T10:56:00.000-08:00

An article in the LA Times titled Felony charges filed against UC and a UCLA chemistry professor after fatal laboratory fire discusses the death of Sheharbano "Sheri" Sangji, who died in 2008 as a result of a lab fire at UCLA.

The Times noted the deceased graduated in 2008 from Pomona College in Claremont and planned to become a lawyer. While applying to law schools, she took a $46,000-a-year job in a lab run by Harran, a researcher with a rising reputation in organic chemistry."

***As relevant disclosure, LBE has a degree in chemistry, worked with alkyl and aryl lithiums, and went to law school.

From an issued US patent: The process of claim 1 in which the lithium initiator is selected from the group consisting of butyllithium, phenyllithium and methyllithium.

ICHL v. Sony

2011-12-28T09:11:00.000-08:00

From within the decision by Judge Lourie, on a matter of claim construction:

Instead, the district court’s construction addresses the structural relationship between the claimed elements and excludes from the scope of the claims a specific type of structure— extruded or integrally bonded heat sinks. See Vanguard Prods. Corp. v. Parker Hannifin Corp., 243 F.3d 1370, 1372 (Fed. Cir. 2000) (affirming claim construction of apparatus claim that “describe[d] the relationship between” the claimed elements, not “the means of joining them”).

Trademark cancelled for failure to respond in discovery

2011-12-28T08:59:00.000-08:00

The topic of communication by email arose in this trademark case (Benedict v Super Bakery):

On July 25, 2007 Super Bakery filed a Petition for Cancellation of Mr. Benedict’s Registration No. 2,966,255 for G THE GOODYMAN, citing grounds of fraud and abandonment. Super Bakery served discovery requests on Mr. Benedict in January and February of 2008. On February 14, 2008 Mr. Benedict wrote to counsel for Super Bakery, requesting an extension of the response time to April 18, 2008. Mr. Benedict states that Super Bakery never re- sponded to this request. Super Bakery states that it re- sponded by email on February 21, 2008, agreeing to the requested extension and also requesting additional docu- ments. Mr. Benedict disputes this statement and points out that no substantiation of that email has been provided, and that the parties had been communicating by registered FedEx, not by email. In all events, no response to the discovery requests was made by Mr. Benedict.

As to rule interpretations, the CAFC noted:

We agree with Mr. Benedict that Rule 2.127(d) does not clearly present the interpretation with which the Board now endows it. Only if one reads the PTO “comment” does it become clear. The PTO “comment” is not stated in the rule as adopted; the Rule does not state that no suspension shall occur until the Board separately acts to impose it, and that any filing deadlines will remain in force despite the Rule’s prohibition on filing. The Rule does not state that the requirement that no papers should be filed does not come into effect when the summary judgment motion is filed, despite the Rule’s prohibition. This ambiguity does not support the extreme sanction of default judgment.

BUT

However, the default judgment is well supported without this event. There had been two years of failure to comply with discovery requests and orders. The Board discussed Mr. Benedict’s repeated non-compliance with Super Bakery’s discovery requests, as well as his non- compliance with the Board’s orders concerning discovery. Although the Board criticized the “meritless” motion for summary judgment as “an effort to further obstruct peti- tioner’s rights to obtain discovery under the Board’s rules, the Board’s order compelling discovery, and the Board’s order granting discovery sanctions,” 96 USPQ2d at 1136, the Board’s finding that “[t]here is no reason to assume that, given additional opportunities, petitioner will fulfill his obligations as a party to the proceeding,” id., is supported by the entire experience of this case. The question is whether it was an abuse of discretion for the Board to enter default judgment. See Merker Counter Co. v. Central Counter Co., 310 F.2d 746 (CCPA 1962) (“Rule 2.132(b) gives the board discretionary powers to grant or deny motions for judgment thereunder.”).

AND

Due process standards guide and limit the acts and pro- ceedings of agency tribunals. See, e.g., Transp. Leasing Co. v. Dep’t of Employment Servs., 690 A.2d 487, 489 (D.C. 1997) ("an individual is entitled to fair and adequate notice of administrative proceedings that will affect his or her rights, in order that he or she may have an opportunity to defend his or her position"). In turn, the agency has the authority to assure diligent administration of the rights within its charge, by establishing and enforcing reasonable rules and procedures for disciplining non-compliance with its rules. Trademark Rule 2.120(g) provides that “if a party fails to comply with an order of the Trademark Trial and Appeal Board relating to disclosure or discovery . . . the Board may make any appropriate order, including those provided in Rule 37(b)(2) of the Federal Rules of Civil Procedure . . ."

The end result:

The possession of a trademark registration places a routine obligation on the possessor to participate in reasonable procedures concerning rights or interests affected by that registration. On the entirety of the record, the Board’s orders were reasonable, and within its authority in seeking to advance the proceedings. The remedy of default judgment was within the Board’s discretion in view of Mr. Benedict’s repeated failures to comply with established and reasonable procedures orders. The default judgment in this cancellation proceeding is affirmed.

EPA: Mandating the use of something which does not exist?

2011-12-28T06:55:00.000-08:00

In a post titled Non-corn biofuels standards fall short of targets, the Des Moines Register raised some issues with the EPA's targets for renewable fuels which were released on Tuesday, Dec. 28, 2011.

The Register brought up issues related to changed circumstances:

The petroleum industry and a growing number of congressmen have questioned the biofuels mandates, particularly in light of complaints by livestock producers about high feed costs and the sudden surge of domestic crude oil production from new fields in North Dakota and the seemingly ready supply of crude from nearby (and friendly) Canada.

Crude oil production from domestic sources has increased at about 20 percent annually, since 2008. The share of imported crude oil in the U.S. petroleum mix has dropped from 60 percent in 2007 to 48 percent last year. In 2011, for the first time in more than 30 years, the U.S. became a net exporter of oil.

Also, the rising supply of natural gas from new fields not only in the traditional energy belt in the U.S. Southwest but also in Ohio, Pennsulvania, West Virginia and New York, has given rise to calls for conversion of much of the U.S. transportation fleet, particularly trucks, to natural gas.

The sudden and unanticipated rise in the U.S. domestic production of crude oil and natural gas has added another dimension to the political argument over biofuels. Opponents of corn-fed ethanol have argued against its expansion on both moral grounds (the food versus fuel debate) and environmental (the use of water and natural gas in ethanol production).

Of course, crude oil production will not continue to grow, and a replacement will be needed. The question is "when." Biofuels are part of our future.

The Register noted that biodiesel people had been criticizing EPA director Lisa Jackson for a lack of action:

The EPA was supposed to reveal the 2012 targets by Nov. 30 and the delay had caused the Renewable Fuels Association, an ethanol and biodiesel trade group, to publicly call out the EPA and administrator Lisa Jackson earlier this month.

[As IPBiz noted, Jackson had earlier screwed up on Propoxur.]

And, the Register had a quote pertaining to the general silliness of making refiners pay for not using a substance that is not available for purchase:

“Once again, refiners are being ordered to use a substance that is not being produced in commercial quantities — cellulosic ethanol — and are being required to pay millions of dollars for failing to use this non-existent substance,” National Petroleum Refiners Association President Charles Drevna said in a statement. “This makes no sense.”

See previous IPBiz post

Biofuels trends of 2011?

**UPDATE. See BiofuelsDigest

http://biofuelsdigest.com/bdigest/2012/01/13/tell-them-willie-and-ike-are-here/

Lecture by Judge Linn at SMU

2011-12-28T06:03:00.000-08:00

Note the December 23 post titled Judge Richard Linn: Changing Times, Changing Demands related to a lecture given by Judge Linn at SMU on September 27, 2011.

A video is available.

Who owns a Twitter account?

2011-12-28T04:54:00.000-08:00

Some big Twitter performers have grown their following by leveraging the brand names of their employers. If they switch employers, who owns the account? Forbes discusses a suit by PhoneDog Media against Noah Kravitz.

John Biggs of the New York Times (through Bend Bulletin) presented the facts:

In October 2010, Noah Kravitz, a writer who lives in Oakland, Calif., quit his job at a popular mobile phone site, Phonedog.com, after nearly four years. The site has two parts — an e-commerce wing, which sells phones, and a blog.

While at the company, Kravitz, 38, began writing on Twitter under the name Phonedog_Noah, and over time, had amassed 17,000 followers. When he left, he said, PhoneDog told him he could keep his Twitter account in exchange for posting occasionally.

The company asked him to “tweet on their behalf from time to time and I said sure, as we were parting on good terms,” Kravitz said by telephone.

And so he began writing as NoahKravitz, keeping all his followers under that new handle. But eight months after Kravitz left the company, PhoneDog sued, saying the Twitter list was a customer list, and seeking damages of $2.50 a month per follower for eight months, for a total of $340,000.

PhoneDog Media declined to comment for this article except for this statement: “The costs and resources invested by PhoneDog Media into growing its followers, fans and general brand awareness through social media are substantial and are considered property of PhoneDog Media LLC. We intend to aggressively protect our customer lists and confidential information, intellectual property, trademark and brands.”

One notes that the Twitter account was created while Kravitz was an employee and the account name included the text "Phonedog." Customer lists are something that can be protected under the rubric of "trade secret," but they have to be a secret, and not revealable. In the future, accounts started after employment begins and trading on the company brand, should be explicitly covered in an employment agreement. An account started before employment began, not utilizing the tradename of the employer, would present a different situation.

See also Who gets custody of Twitter when an employee quits?

Biofuels trends of 2011?

2011-12-27T19:43:00.000-08:00

Within a post titled The 11 Top Biofuels Trends of 2011, one finds the text:

2. Biodiesel roars back with mandate, tax credits, B20 OKs

Turns out that predictions of biodiesel’s demise were a tad premature. The fuel’s boosters are gathering this week at the National Biodiesel Conference & Expo, touting a stream of good news. Highlights:

“The EPA has said that they are going to enforce the 800 million gallon volume RFS2 requirement” said National Biodiesel Board CEO Joe Jobe to Biodiesel magazine, “and we will have the tax credit in place. Last year we had neither in place.” He described the combination as a “powerful policy framework” and predicted that 2011 would be the biggest year yet for US biodiesel sales.

At the same time, more good news on vehicle acceptance. Jobe is touting that “We’ve got all of the Big Three American automakers accepting B20 in their vehicles.”
At the same time, there are challenges on the feedstock front. Bottom line, jatropha, camelina and algae are still emerging feedstocks, soy and canola are pricey, waste oils & greases are tough to find at scale, and palm is politically radioactive.

More on this trend, here.

3. Ethanol’s back, too, sort of, or is it that drop-ins have waned?

Drop-in fuels all the rage? Not smart, says Coskata CSO Rathin Datta, ethanol is the champion for biomass-based fuels.
In Washington DC last July , at the DOE’s Biomass 2011 annual conclave, Rick Wilson, the CEO of Cobalt Technologies, and Wes Bolsen, CMO of Coskata, engaged in a formal debate over the motion: “Federal funding for biofuels should focus primarily on the development of infrastructure-compatible, hydrocarbon fuels.”

There has been quite a lot of press in recent years around the development of “drop-in fuels” – from articles like 2009′s “Drop In, Tune Out, Turn On” to the coverage of recent DOE funding of consortia like the NABC that are pursuing infrastructure-compatible fuels.

But Coskata has been on the warpath of late to remind the industry, and the broader stakeholders in a future beyond fossil fuels, about why ethanol fuels were developed in the first place, and why they should be considered a superior alternative to drop-in hydrocarbons, when refining fuels from biomass.

At the end of last summer, Coskata CSO Rathin Datta didn’t exactly descend into the lion’s den, when choosing to present this strongly positive view on ethanol at the Fuel Ethanol Workshop in Indianapolis. It’s sort of like praising Cal Ripken Jr. in the friendly confines of Camden Yards.

***Of the EPA, Platts wrote:

The US Environmental Protection Agency opted Tuesday [Dec. 27] to set a more ambitious goal for the production of cellulosic biofuels in 2012, saying the 31% boost from 2011 levels would drive growth in the fledgling industry. The EPA is requiring that 8.65 million gallons of cellulosic biofuels be used in 2012, up from the 6.6 million gallons it required in 2011. That number is still far below the 500 million gallons required by statute. But it is higher than the low end of the range it had originally proposed in June, when it said it was considering a volume of 3.45 million to 12.9 million gallons. The cellulosic requirements are part of the larger Renewable Fuel Standard targets for 2012. Refineries and other blenders will have to use the equivalent of 15.2 billion gallons of ethanol, cellulosic biofuels, biodiesel and similar renewable fuels next year -- the same amount as the EPA had initially proposed in June. That compares with 13.95 billion gallons the EPA required in 2011. The volumes, part of the so-called RFS2, represent 9.2% of the nation's transportation fuel supply in 2012. The EPA set a requirement of 1 billion gallons for biomass-based diesel in 2012. But it punted a decision on 2013 volumes for biomass-based diesel fuel until next year, saying more analysis was needed. In setting the higher goal for cellulosic fuels, the EPA said that meeting the statutory goals of predictability and reducing uncertainty "does not require the EPA to specify an applicable volume for cellulosic biofuel that is as low as possible or based only on demonstrated (as opposed to reasonably anticipated) production," the final rule states. The EPA acknowledged its higher targets could create uncertainty.

AND

"Once again, refiners are being ordered to use a substance that is not being produced in commercial quantities -- cellulosic ethanol -- and are being required to pay millions of dollars for failing to use this non-existent substance," NPRA President Charles Drevna said in a statement. "This makes no sense." The EPA said it was persuaded by public comments, such as those filed by the Renewable Fuels Association, urging higher cellulosic targets. In comments filed to the June proposed rule, the RFA had said that lowering the cellulosic targets "because of past production problems discourages development of cellulosic sources." It rejected comments, such as those filed by Chevron, suggesting that the 2012 target be set closer to the low end of the proposed range. "EPA believes the industry is capable of exceeding the lower end of the range of projected volume from our proposed rule," the EPA said on Tuesday.

***Of the ethanol tax break, westernfarmpress notes:

For the first time in more than three decades of generous U.S. government subsidies for the domestic ethanol industry, coupled with a steep tariff on imports, the United States market will be open to imported ethanol as of Jan. 1, 2012, without protectionist measures.

The adjournment of the 112th Congress means both the US $0.54 per gallon tax on imported ethanol and a corresponding tax credit of US $0.45 per gallon for blenders, the VEETC (Volumetric Ethanol Excise Tax Credit), will expire as expected on Dec. 31.

"With Congress in recess, there are no opportunities for further attempts to prolong the tax credit or the tariff, so we can confidently say these support mechanisms will be gone at the end of 2011," said the Washington Representative for the Brazilian Sugarcane Industry Association (UNICA), Leticia Phillips.

AND

WQOW notes

The New Year will come without an ethanol tax break, which has many people wondering if we'll see an impact at the pump.

The long-running tax credit went to refiners who mixed ethanol with gas. That tax break is expiring. Tom Kloza, from the Oil Price Information Service, says the end of the tax credit means the cost for wholesalers and retailers will rise by four and a half cents a gallon on January first.

-- Some argue, crankishly, that disclosure is the only purpose of patent law --

2011-12-27T19:12:00.000-08:00

Within a post related to the "purpose" of the patent system, Stephan Kinsella writes:

Now, in my view, to speak of “the purpose” of a statute is a confusion: statutes are cobbled together artificial legislative schemes, usually the result of many compromises. Congress has no “intent” or “purpose”; it’s composed of individual legislators who have their own motivations and purposes. A given legislator may have various purposes, including: rewarding special interest groups to increase the chance of campaign contributions, and so on. But we can hold a law up to its stated purpose, even if the real purposes of the legislators is different.

That there may be many subjective intents of legislators does not negate the presence of an objectively determinable functional analysis. The patent statute gives a right to exclude in return for disclosure. That's it.

Innovation produces a change in the way we live. Most patents don't yield innovation. Thus, it's hard to see the purpose of the patent system as one which incentivizes innovation. An issued patent gives an inventor a certain status in the marketplace. Innovation comes later.

***UPDATE. On 4 Jan 2012.

Relevant to the comment below and contrary to the assertion therein, IPBiz DID LINK to the Kinsella post containing the Kinsella quotation. Other than that, Kinsella's ramblings speak for themselves.

The functional outcome of US patent law is: in return for disclosing an enabled invention which is useful, new and not obvious, an applicant might get a right to exclude. That's all there is. The successful applicant, with the right to exclude, enters the marketplace and tries to make deals. Maybe the invention leads to innovation, maybe it does not. Most inventions do not change the way we live, so they are not properly termed innovations.

As to subjective intent of legislators, one doubts Congressman Waxman ever thought Hatch-Waxman would be used in the way it currently is, as to the six-month period of exclusivity.

Law and journalism "share common core values — trust, candor, veracity, honor, respect for others"

2011-12-26T23:33:00.000-08:00

See AP post titled --Disgraced ex-journalist fights for CA law license --.

Is plagiarism an addiction?

2011-12-26T09:12:00.000-08:00

In a post titled 'Tis the Season, for Student Plagiarizing , Anastasia Rubis writes:

It means that many students have been getting by for a long time by Googling, and cutting & pasting. It's a habit. Let me go further: it's an addiction. According to Merriam-Webster.com, an addiction is a "persistent, compulsive use of a substance known by the user to be harmful." Students are addicted to a substance, Internet content, and compulsively appropriate it into their essays, even though they know it's a bad idea and they will get caught.

If Internet plagiarism is an addiction, then reporting a plagiarizer to the dean and flunking her is ineffective, because it doesn't address the dependency.

IPBiz does not think so. Nor did several of the commenters. One can rely on internet content and cite the source.

Top 100 people in bioenergy?

2011-12-26T05:49:00.000-08:00

Within a post titled The Top 100 People in Bioenergy, 2011-12, BiofuelsDigest named Tom Vilsack numero uno.

There were several professors on the list:

18. Jay Keasling, PhD, Professor, UC Berkeley
27. Bruce Dale, PhD, Professor, Michigan State University
29. Chris Somerville, PhD, Professor, UC Berkeley Director, EBI
48. Lee Lynd, PhD, Professor of Engineering, Dartmouth College
59. Robert Brown, PhD, Professor, Iowa State University
83. Jim Dumesic, PhD, University of Wisconsin-Madison

Also on the list:
89. Philip Pienkos, PhD, NREL

**In 2010, Dumesic was no. 52 on the list:

If you’ve read much about Virent Energy Systems, the tdirect sugar-to-diesel technology known as bioforming, or the entire field of the catalytic conversion of feedstocks directlly into hydrocarbon fuels, you’bve been well exposed to the work from the Dumesic lab at the University of Wisconsin. Jim himself generally makes appearances at scientific conferences and is known to make technical presentations on new science, rather than grand pronouncements on biofuels policy. For that reason, it was a delightful surprise to see the Digest readership get behind Dumesic and elevate him to #52 in our poll. Though microbial fermentation approach to direct conversion to hydrocarbons get the lion’s share of publicity, the catalytic approach is attracting serious partners like Cargill Ventures and Honda.

Princeton Battlefield, Christmas 2011

2011-12-25T17:58:00.001-08:00

Washington crosses the Delaware on Christmas Day 2011

2011-12-25T16:03:00.000-08:00

Washington made it across the Delaware River on Christmas Day in 2011 in a Durham boat. Both CBS and NBC had stories on revised history as to the painting Washington Crossing the Delaware.

Philly Channel 10 (NBC) was on the bridge, shooting video.

***Of the "revised history" which made the rounds on Dec. 25, 2011, Rick Spilman blogged:

The New York Times recently featured an article, Crossing the Delaware, More Accurately, describing the work of modern painter, Mort Künstler, who has painted what he claims is a more accurate representation of Washington making the crossing. His painting shows Washington on a flat bottomed ferry connected to both shores by a rope cable. While I make no claim to expertise on Washington’s crossing, it looks to me that Künstler’s version ignores the historical record just as Emanuel Leutze’s painting does.

The problem is that most historians think that the American crossing of the Delaware used Durham boats, large flat-bottomed boats which hauled cargo such as ore, pig-iron, timber, and produce from upcountry mines, forests and farms down the Delaware River to Philadelphia’s thriving markets and port. Robert Durham, an engineer at the Durham Iron Works in Reiglesville, Pennsylvania, reputedly designed a prototype for these large cargo boats as early as 1757. Washington wrote to Governor Livingston of New Jersey, directing him to secure “Boats and Craft, all along the Delaware side…particularly the Durham Boats” for his anticipated crossing.

While it is possible that a flat bottom ferry was used by Washington in the crossing, there seems to be little historical evidence for it. (If I am showing the extent of my ignorance here I would be happy to be corrected.) A flat bottomed ferry would be far more efficient for transporting artillery and horses, while the Durham boats would be fine for transporting troops. Nevertheless it appears that the same boats were used for both purposes. Lt. Col. John Fitzgerald wrote in his diary, “The troops are over, and the boats have gone back for the artillery. We are three hours behind the set time.” Washington’s army transported 18 field pieces across the Delaware. (The American army relied far more heavily than the British on artillery, using cannon as a “force multiplier,” to use modern terminology.)

It also strikes me as a bit unlikely that a flat bottom ferry with a cable running across the river could have been set up and rigged in the darkness during a blizzard across an ice laden river. Whether flat bottom ferries were used significantly in the crossing is unclear. Several sources describe cannon being secured on Durham boats, while David Hackett Fischer’s Washington’s Crossing suggests that barges were used for the artillery and horses.

It appears unlikely, however, that Washington himself traveled by flat bottomed ferry. By tradition, he was rowed across with the troops in a boat under the command of Captain William Blackler, arriving on the New Jersey river bank prior to the artillery. It seems most probable that Washington, like most of the troops, traveled by Durham boat. One complaint about Leutze’s painting is that it shows Washington standing in the boat. The depth of the Durham boat effectively requires that everyone aboard stand, though the gunnel would be waist high, unlike the boats shown in Leutze’s painting.

"60 Minutes" re-gifts on Christmas Day, 2011

2011-12-25T16:00:00.000-08:00

"60 Minutes" recycles two stories for the show on Christmas Day, 2011.

* A visit to the Vatican library

* A visit to Mount Athos in Greece

The show is billed as a special Christmas edition of 60 Minutes.

CBS Sunday Morning on Christmas 2011

2011-12-25T06:34:00.000-08:00

**The piece on Darlene Love featured an intellectual property theme of the denial of credit to Love by Phil Spector. Darlene Love herself, on Sunday Morning, gave a substantially different account to what wikipedia describes in the following way:

Legend has it that the real Crystals were not able to travel from New York to Los Angeles fast enough to suit the LA-based Spector, who wanted to quickly record writer Gene Pitney's "He's a Rebel" before anyone else could release a version. The Crystals were unavailable, but Love and the Blossoms were also based in L.A., so Spector recorded and released their version under The Crystals' banner. (Other sources[who?] claim that Spector's haste in recording the track was simply because he was enthusiastic about the song, and that he was unaware of any competing versions—despite the fact that Vikki Carr was recording "He's a Rebel" nearly simultaneously with Spector.)

After Spector took Love's credit the second time, Love said she stormed into Spector's office. "Sunday Morning" mentioned that Bill Medley (Righteous Brothers) helped Darlene Love with her career. And, Love played the wife of Danny Glover's character in the Lethal Weapon series.

**During the holidays, Easy to forget to be grateful. Gratitude as a platitude? Appreciation is a contagious. Thankfulness is an antidepressant. A thank you a day may keep the Prozac away. There are two ways to live life: that nothing is a miracle, that everything is a miracle.

**Mo Rocca did the Sunday Profile on Albert Brooks. Brooks as a bad guy, as small-time mobster Bernie Rose. Brooks has been nominated for a Golden Globe. Discussed Modern Romance, Real Life. There's no line at the bank saying "ahead of your time." My name was Albert Lawrence Einstein. Doing inventive bits like world's worst ventriloquist. I didn't want to make it on someone else's terms. If it didn't work, I would sell shoes. Passed on opportunity to be permanent host of Saturday Night Live. Turned down when Harry Met Sally, Dead Poet's Society. Did do Broadcast News. Role of Clownfish in Finding Nemo. Brooks said: tweeting is almost standup. I reached a point where I couldn't be the most important person, and now I have a family. Everything Brooks has ended up doing is something he wanted to do.

**Edelstein pans Sherlock Holmes movies. And pans Young Adult. fetching delusional bitch from hell. Of Tatoo, not a good comment either. Tinker, Tailor, Soldier-Spy is hard to follow. Re-immersion in Cold War universe. Mission Impossible characters act like they are in the hands of someone familiar with indestrucible cartoon characters. TinTin is Indiana Jones squared. War Horse. We need something in these fractured times to remind us of our humanity. In the end, War Horse was the only movie that got Edelstein's complete backing.

** Hail and farewell. Steve Jobs had a knack for blowing us away. He thought differently. Excerpts from Stanford speech. Elizabeth Taylor appeared in some 50 movies. I've read my own obituary and they were the best reviews I ever had. Sidney Lumet never won an Oscar. Clip from Network. He did get an honorary Oscar. Musical scores of John Barry. Betty Ford. Making it ok to go for treatment. Geraldine Ferraro. America is the land where dreams can come true for all of us. Fred Shuttlesworth. Sargent Shriver. Franlin Kameny. Vaclav Havel. Richard Winters of Easy Company: Band of Brothers. Frank Buckles, last World War I. Norman Cowin. Jerry Ragaboy (Stones' Time is on My Side). Jack LaLanne. Peter Falk. Jerry Lieber. James Arness. 40 million Americans turned into Gunsmoke. Arthur C. Nielsen. Len Lesser as Uncle Leo on Seinfeld. Frances Bay. Harry Morgan. John Strauss. Jeff Conaway. Sherwood Schwartz, Brady Bunch and Gilligan's Island. Shafley of the teleprompter. Robert Pierpoint. David Broder. Dan Weldon. Amy Winehouse. Nick Ashford: Poetry Man. Phoebe Snow.
Inventor of first implantable pacemaker. Joe Frazier. Bubba Smith. Harmon Killebrew. Duke Snider. Al Davis. Clarence Clemmons. Inventor of super glue. Arch West inventor of Doritos. Milton Levine invented the ant farm in 1956. Cow made of butter: Norma Duffy Lyon. Lucian Freud. Cy Twombly. John Chamberlain. Hugh Martin. Christopher Hitchens. Jack Kevorkian. Spoke with Andy Rooney in 1996, Leading nto death of Andy Rooney. Used to having last world. I can't complain about my life. You don't get any luckier than that.

Pulse. Re-gifted: yes 29% no 70%

Bill Geist on Seneca Falls, New York. Model for Bedford Falls in It's a Wonderful Life? Zuzu Cafe. A mecca for Wonderful Life fans. Caroline Grimes who played Zuzu. Carol Combs Mueller who played Janiel. 320 Sycamore. Tommy's Barber Shop.
April 12, 1917. Original story: The Greatest Gift.

Almanac: Dec. 25, 1941. Bing Crosby's White Christmas on the radio. Crosby sang it the next year for the movie Holiday Inn.
Then in 1954 for the movie White Christmas. At the end of the piece, Charles Osgood singing (something else). Then Darlene Love shows up (red dress and white wrap), and they do sing White Christmas together. [As to Sunday Morning, very unusual to have Almanac this close to end of the show.]

Moment of Nature, Spiriva. Marietta burro reserve near Hawthorne, Nevada. Burros as candidates for nativity pagaent.

Charles had a red handkerchief and a sort of green bowtie.

**Of Darlene Love, answers.com has an account more in line with what Love said on Sunday Morning:

In 1962, Love was introduced to legendary producer Phil Spector, who asked her to sing lead vocals on the song "He's a Rebel." Love leapt at the chance, and recorded the song for a flat fee of $3,000, a huge sum of money at the time. The single was not released under Love's name, but was credited to "The Crystals," a New York group that was signed to Spector's record label. The song was a number one hit and sold more than 3 million copies, but Love received no royalties. It marked the beginning of a trend that would continue throughout most of her singing career.

Nevertheless, Love continued to record for Spector, sometimes under a band's name, sometimes anonymously. She struggled to persuade Spector to give her a contract, and to allow her to record under her own name. In 1963, Spector promised Love that the single "He's Sure the Boy I Love," would have her name on it--except that he wanted to call her "Darlene Love" after one of his favorite gospel singers, Dorothy Love. "I didn't mind because I didn't think the name would last. I figured Phil would just decide to call me something else again two or three records down the road," Love wrote in her autobiography. "And that was one of the last times Phil Spector and I ever saw eye to eye on anything." When the record was finally released, Love discovered that it was again credited to The Crystals. Of the hundreds of recordings Love made for Spector, the few credited to her name include "(Today I Met) The Boy I'm Gonna Marry," "Wait Til My Bobby Gets Home," and "Christmas (Baby Please Come Home)."

AND as to intellectual property:

Two years later [1993], when her career was finally secure, Love decided to take Spector to court for a share of royalties.

Spector denied that he had ever signed a contract with Love--until she was able to produce a decades-old royalty statement. In 1997, a New York Supreme Court jury ruled that Love had indeed signed a contract with Spector, and awarded her $263,000 in royalties. Because the statute of limitations in New York is six years prior to the date the suit was filed, this sum included only royalties dating back to 1987. However, the case was hailed as a landmark victory not just for Love, but for other veteran musicians who were paid a flat recording fee and then watched their records go on to make millions. "Other people of my time will be able to go into court," Love was quoted as saying in Billboard. "The fallout from this is going to be great, I feel."

Apple to beat Motorola?

2011-12-23T07:19:00.000-08:00

A post by Katie Marsal begins: Apple is likely to win a patent dispute against Motorola related to photo gallery scrolling on a touchscreen device, as the smartphone "war of attrition" continues.

Wemple revisits the Marr plagiarism episode

2011-12-22T08:22:00.000-08:00

Within a post titled How Politico reacted to its plagiarism outbreak , Erik Wemple reviews some details of the Marr plagiarism episode. As to how Politico reacted later, Wemple includes text:

Politico leadership pivoted from Marr to an in-house training program. Over the past month or two, newsroom veterans have held sessions on a range of journalistic subject areas, including the following (as articulated in a Politico e-mail):

● Building sources: How to develop source relationships — pick up the phone and get out of the office
● Using public records: Boosting original reporting — where to look for records and how to understand them

AND

● Attribution in the Internet age: a look at what synthesis/rewriting is acceptable and unacceptable; when attribution is needed and when it isn’t; what facts are in the public domain

As a headsup, IPBiz may be breaking a story on restriction of public domain material in the state of New Jersey. Stay tuned.

IN RE SP CONTROLS, INC.: CAFC affirms a "broadest reasonable interpretation" [BRI]

2011-12-22T07:48:00.000-08:00

After the Board denied rehearing of the decision in re-examination 90/007,802, Ex parte SP Controls, Inc., No. 2009-6008, 2010 WL 3448889 (B.P.A.I. Aug. 31, 2010), SP Controls appealed to the CAFC.

The CAFC noted: During reexamination, the PTO must give claims their broadest reasonable construction consistent with the specification. In re Icon Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). We “thus review[ ] the PTO’s interpretation of disputed claim language to determine whether it is ‘reasonable.’” In re Suitco Surface, Inc., 603 F.3d 1255, 1259 (Fed. Cir. 2010) (quoting In re Morris, 127 F.3d 1048, 1055 (Fed. Cir. 1997)).

The first step in the analysis is the claims themselves. The CAFC stated: We turn first to the claims themselves, in order to de- termine whether there is anything in their language which limits their reach to a frame in which labels and keys are in separate slots. See Rapoport v. Dement, 254 F.3d 1053, 1059 (Fed. Cir. 2001). In this, the CAFC provided a definition of the term of art "comprising" --> “‘Comprising’ is a term of art used in claim language which means that the named elements are essential, but other elements may be added and still form a construct within the scope of the claim.” Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir. 1997) (quoting In re Baxter, 656 F.2d 679, 686 (CCPA 1981)).

The fate of SP Controls was sealed with the text This is significant, for the law is clear that, absent such language in the specifi- cation, the claims are not limited to preferred embodiments. See Resonate, Inc. v. Alteon Websystems, Inc., 338 F.3d 1360, 1367 (Fed. Cir. 2003); Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1326-28 (Fed. Cir. 2002). This is particularly so where, as here, the claims are to be given their broadest reasonable construction. Cf. In re Bigio, 381 F.3d 1320, 1324-25 (Fed. Cir. 2004)

The bottom line: For the foregoing reasons, we affirm the Board’s decision sustaining the Examiner’s rejection of claims 1-6 of the '794 patent.

Claiming large is good, up to the point such claiming ensnares prior art under "broadest reasonable interpretation."

***
text of decision

"60 Minutes" on December 18, 2011

2011-12-18T16:34:00.000-08:00

The new threat from the great recession is vacant, abandoned homes. Cleveland has a program ripping them down.
Scott Pelley did "There goes the neighborhood," beginning with the observation that 25% of the homes are worth less than the outstanding mortgage. In Cleveland, perfectly good homes are being torn down. 1/5 of all houses were left vacant. Cleveland waited four years for home values to recover. Rococas is leading the effort to tear down unoccupied homes. Foreclosure scavengers have gone hi-tech, tracking legal actions. Aluminum siding, copper is removed, and generally saleable metals. Vacant land produced by demolitions is frequently given to the neighbors. The guy next door is the victim of abandoned, but remaining, houses. The bank is supposed to take responsiblity, but the banks are walking away. The banks do not show up at the sheriff's sale. In the high time of lending: Money looking for people. Eleven million people owe more on mortgage than house is worth. An example was given: Her house is worth $50,000 but the mortgage is $100,000. Another example also involved a $50,000 difference. Cinema Park at Miles Drive: only six occupied homes. $200,000 mortgage for house now worth $100,000. Pelley noted Cuyohoga sheriff is doing 50 evictions per month. One neighborhood had 1/4 of house vacant. One critic suggested banks write-down the mortgages. Cuyohoga County ripped down 1,000 homes in past year.

Second, Gardens of the Queen. Anderson Cooper on the rainforests of the ocean (coral reefs). Located off the coast of Cuba. First to Havana. The drove six hours, boat for 6 hours, then islands on Cuba's southern coast. David Guggenheim of Ocean Foundation of Washington, DC described the reef as a time capsule. Coral is an organism. Diversity of life that lives on the reefs. David said 90% of sharks have been removed from the oceans. Goliath Grouper. David spoke of critically endangered. David noted problems with the presence of the lion fish. Nine foot crocodiles. David talked about Vera Cruz reefs, which are being lost. Rising ocean temperatures cause bleaching. We have lost 25% of the world's coral reefs. Company: Avalon, co-owned by Cuba government and a company in Italy.

Third, Meryl Streep. Story: "The Many Meryls", featuring movie on Margaret Thatcher. Stage of Delacourt Theater, where Streep began 35 years ago. Suspension of the day to day, and you're in someone else's head. The opportunity to deal with the deep buried discomfort many have with women in leadership positions. To sit in the hot seat. Support her voice, by making it deeper. Remarkably single-minded; her way was the only way. High school in Bernardsville, NJ. Homecoming queen. Loved Carole Lombard, Kate Hepburn. Yale Drama School. Joe Papp. Kramer v. Kramer and Manhattan. Silkwood. Out of Africa. Mamma Mia. Doubt. Angels in America. Sybil Thorndike quoted. Thatcher now is suffering from dementia. Tell an honest story about a big life in its ebb. Playing a strong minded woman. National women's history museum in DC. Mom Bett, slave in Massachusetts. Took name Elizabeth Freeman. Streep has a problem with the snail's pace of movie making. "The narrowing of the audience." La Giaconda smile of Meryl Streep. All that education down the drain (anaconda).

Solazyme, Glauthier in the news

2011-12-17T07:24:00.000-08:00

Note the post at the Daily Mail titled Crony capitalism sinks the Navy includes the text

You won’t be surprised to learn that a member of Obama’s presidential transition team, T. J. Glauthier, is a “strategic advisor” at Solazyme, the California company that is selling a portion of the biofuel to the Navy. Glauthier worked – shock, shock – on the energy-sector portion of the 2009 stimulus bill.

A post at TucsonCitizen titled Another questionable energy deal $16 jet fuel notes

A member of Obama’s presidential transition team, T. J. Glauthier, is a ‘strategic advisor’ at Solazyme, the California company that is selling a portion of the biofuel to the Navy. Glauthier worked on the energy-sector portion of the 2009 stimulus bill. Solazyme had already gotten a nearly $22 million chunk of change out of the taxpayers thanks to the 2009 stimulus.

And from Human Events: Jet-Fuel Gate :

The biofuel will be used next summer by — we're not making this up — "the Great Green Fleet Carrier Strike Force" in exercises near Hawaii.

**Separately

http://news.yahoo.com/blogs/lookout/digital-ways-kids-cheat-155638383.html

**Update. As to the comment below, the blog IPBiz does not give legal, or financial, advice. Another blog, heartland, covered this episode in the following way:

A recent undertaking by the Department of Defense, however, raises questions as to whether the military’s commitment to innovation may be endangered by political pandering — especially in the face of the announcements earlier this year that 3,000 sailors nationwide, approximately one out of every one hundred people in the force overall, will be forced to leave the Navy. The creation of a so-called “Great Green Fleet,” a series of improvements designed to make the military more “eco-friendly,” seems a contradiction in the face of increased Department of Defense cuts (a possible trillion dollars over the next ten years).

According to Wired’s Danger Room, the 450,000 gallons of biofuel that constitute the first stage of the transition to a “green” fleet will cost more than $12 million, a relatively small amount as far as Defense expenditures go. When compared with conventional fuels, however, the cost differential raises serious concerns about the long-term utility of the program. According to Wired:

The Navy previously paid about $1,000 for each barrel of biofuel it bought to test out in its jets. This new purchase, at first, will cost just as much: $26 per gallon, or $1,092 per barrel. That biofuel will then be blended with an equal amount of fossil fuel, producing 900,000 gallons — and an effective price of about $15 per gallon for that 50/50 blend. It’s “roughly half of what was paid in 2009,” according to Deputy Assistant Secretary of the Navy Tom Hicks, who serves as Mabus’ point man on energy issues. But it is still far more than the Navy currently pays for its JP-5 jet fuel: $3.97 per gallon, or $167 per barrel.

The full order will be shared between two companies: Dynamic Fuels (a joint venture between Syntroleum and Tyson foods) uses animal fats and wastes to create biofuel, while Solazyme employs algae to break down a wide variety of material, from plant matter to household waste into fuel. A closer look at the California-based Solazyme, however, reveals that political motives, rather than national security priorities, may be a driving force in the push to “go green.”

**As one historical footnote of Civil War vintage, Spencer could not get any traction for his repeating rifle until a friend of Secretary of Navy Welles was brought on board. The Navy did buy some rifles, which purchase had little impact on the outcome of the war. However, Spencer rifles used at East Cavalry Field at Gettysburg on July 3, 1863 and in Wilson's Raid on Selma did impact the outcome of the war. As a different footnote, the Wright Brothers had difficulty in getting the federal government to appreciate the strategic significance of the airplane. At the end of the day, Curtiss attracted the interest of the Navy. Franklin Roosevelt, then in the Navy Dept., had a great deal to do with the patent pooling of airplane patents during World War I.

**All that said, how big a future is there for a technology based on converting sugars to fuel?

Further update: from a post on seekingalpha:

Many of the companies in this industry have proven themselves on a demonstration scale but need the infrastructure capacity to be built on a commercial scale in order to be cost-comparable to the price of conventional fuels and chemicals. Consider the following advanced biofuel companies that "made it" into the IPO window:

Company IPO Price Amount Raised Current Price (12/21/11)
KiOR (KIOR) $15 $150 Million $10.19
Gevo (GEVO) $15 $107 Million $5.65
Amrys (AMRS) $16 $ 85 Million $10.6
Solazyme (SZYM) $18 $227 Million $10.79

We see that the advanced biofuel industry as a whole has suffered in light of the recent market volatility as all four publicly traded companies have fallen to levels well below their IPO prices. This can only go to further diminish the ability for other private companies to raise capital, such as Genomatica and OiriginOil, which recently filed for an IPO.

***Meanwhile, at Technorati

Algae is one surprising potential energy source that is showing great promise. It has gained recent media attention as the U.S Navy has announced plans to test the use of algae biofuel in one of its cargo ships.

***And of subsidies, from ABC News :

Vice President Joseph Biden heralded the Energy Department's $529 million loan to the start-up electric car company called Fisker as a bright new path to thousands of American manufacturing jobs. But two years after the loan was announced, the company's manufacturing jobs are still limited to the assembly of the flashy electric Fisker Karma sports car in Finland.

Full ITC to review HTC/Apple decision

2011-12-16T22:01:00.000-08:00

BusinessWeek noted: "HTC Corp.’s loss in its patent- infringement case against Apple Inc. will be reviewed."

Peter Boesen loses to Garmin

2011-12-15T21:46:00.001-08:00

The case involved summary judgment of anticipation, which was affirmed.

The CAFC noted:

A patent claim is anticipated if each and every limitation is found in a single prior art reference. 35 U.S.C. § 102. Although anticipation is a question of fact, summary judgment may be appropriate if the record reveals no genuine dispute of material fact. Encyclopaedia Britannica, Inc. v. Alpine Elecs. of Am., Inc., 609 F.3d 1345, 1349 (2010).

As to claim language:

“‘Comprising’ is a term of art used in claim language which means that the named elements are essential, but other elements may be added and still form a construct within the scope of the claim.” Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir. 1997). The district court correctly explained that as long as the Acura navigation system can – and does – perform the claimed input method, it is of no consequence that it can also perform other input methods. Contrary to Dr. Boesen’s arguments, the claims have no other language to suggest that the input must always come via the on-screen keyboard. Moreover, even if the preamble were to be limiting, this would not narrow the scope of the claims in a way that avoids invalidity: the Acura navigation system still practices these claims when a user inputs information using the on-screen keyboard, followed by pressing an on-screen acceptance key such as “done” or “find” which dismisses the input field.

Axiomatic:

It is axiomatic that a product which would “infringe if later in time anticipates if earlier than the date of the invention.” Lewmar Marine, Inc. v. Barient, Inc., 827 F.2d 744, 747 (Fed. Cir. 1987).

AND

It is axiomatic that the claims define the metes and bounds of the invention. Arlington Indus., Inc. v. Bridge- port Fittings, Inc., 632 F.3d 1246, 1252 (Fed. Cir. 2011).

Corrected opinion issued for: IN RE CONSTRUCTION EQUIPMENT COMPANY

2011-12-15T21:41:00.000-08:00

Corrected Format Version Issued: December 15, 2011

Plagiarism in B-school: I'm shocked

2011-12-14T23:46:00.000-08:00

In a world in which the HBR runs articles with captions "Plagiarize with pride," it should come as no surprise that B-schools are hotbeds of plagiarism. From text in a post at businessweek:

I suspect more business schools will begin subjecting admissions essays to the plagiarism test. Is this something that MBA applicants should be worried about?

I don't think using the same essays in multiple applications will get anyone flagged as a plagiarist--there seems to be general agreement that you can't plagiarize yourself. But borrowing from sample essays found online or other online sources without attribution, even unintentionally, might result in your application being rejected.

I'm all for zero tolerance on plagiarism, but what does everyone else think? Northeastern's online application warns applicants that their essays will be reviewed for possible plagiarism. Should b-schools that use Turnitin warn applicants, or is the stealth approach okay?

IPBiz notes that the text -- there seems to be general agreement that you can't plagiarize yourself -- is very much open to question.

Jerusalem court rules against Naomi Ragen in copying case

2011-12-13T23:55:00.000-08:00

In a discussion of a verdict against author Naomi Ragen, the Jerusalem Post includes the following comparison:

In the passage, on page 343 of Shapiro’s work it reads “you don’t understand Americans; we don’t make it our business to produce perfectly behaved angels,” a nearly identical statement to one found on page 348 of Sotah that read “you don’t understand Americans... American mothers are not in the business of producing perfectly behaved little angels.” Shapiro was born in the US and immigrated to Israel in 1976. She lives in Jerusalem where she makes her living as a writer and editor of works marketed to the English-reading haredi community.

Perhaps copying without attribution, but is it copyright infringement?

ITC to issue ruling on Apple's claim against HTC on Dec. 19

2011-12-13T23:42:00.000-08:00

Chien and Lemley have a piece in the New York Times which includes the text:

As patent law experts who appreciate the efficiency of the I.T.C.’s decision-making, we believe that a small change in how the commission does its job could yield big dividends for competition and consumers by reducing the disruption an exclusion order can wreak.

Within the article:

Even in such cases, shutting out imports of an infringing product is not always the right answer. If the patent covers a small part of the product, the defendant could design around it, and if the defendant’s infringement was inadvertent, the I.T.C. could award an exclusion order but delay its start. During the delay period, the infringer could pay remuneration through a bond, allowing the patentee to get paid but not holding up a large product because of a small patent.

[See http://www.nytimes.com/2011/12/13/opinion/patents-smartphones-and-the-public-interest.html]

The Times piece noted he ITC is expected to rule on the Apple/HTC case December 14, 2011, but Bloomberg stated:

Publication of the verdict was delayed to Dec. 19, HTC said in an e-mailed statement.

Warner-Chilcott v. Mayne on doxycycline hyclate : see the conclusion!

2011-12-13T05:39:00.000-08:00

At the beginning of the decision, one has

Because the district court relied on disputed facts in granting the preliminary injunction without holding an evidentiary hearing, and failed to make any findings as to Mylan’s invalidity defense, we vacate the preliminary injunction and remand this action for further proceedings.

but go to the end of the decision to see what happened!

The issue was a "stabilizing coat" on the doxycycline hyclate on the product of generic maker Mylan.

On the stabilizing coat:

The majority of the hearing focused on the parties’ respective experts and various tests those experts had performed to show the existence or non-existence of a “stabilizing coat” in Mylan’s ANDA product. In other words, the court’s primary focus was on the question of whether Warner Chilcott was likely to succeed on the merits of its infringement claim, a question which turned on a battle of experts. Warner Chilcott’s expert relied on one test to conclude that Mylan’s product met the “stabilizing coat” limitation, while Mylan’s expert relied on five different tests to reach the opposite conclusion. The district court recognized that determining which tests to credit was “one of the threshold inquiries,” and that there existed “some serious factual disputes between the experts” on this issue.

The district court (of New Jersey) had granted an preliminary injunction against Mylan. The CAFC on preliminary injunctions:

A plaintiff seeking a preliminary injunction must establish that:
(1) “he is likely to succeed on the merits”;
(2) “he is likely to suffer irreparable harm in the absence of preliminary relief”;
(3) “the balance of equities tips in his favor”; and
(4) “an injunction is in the public interest.”
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). Such an injunction is “an extraordinary remedy never awarded as of right.” Id. (citation omitted). Where, as here, an accused infringer has challenged the validity of a patent in response to a motion for a preliminary injunction, this court has ad- dressed the procedures district courts are to use to analyze the question of validity. See, e.g., Titan Tires Corp. v. Case New Holland, Inc., 566 F.3d 1372, 1378-79 (Fed. Cir. 2009). As it relates to the present appeal, we have ex- plained that “the trial court first must weigh the evidence both for and against validity that is available at this preliminary stage in the proceedings.” Id. at 1379.
In this case, the district court abused its discretion in two ways. The court: (1) failed to hold an evidentiary hearing despite acknowledging that the decision turned on disputed factual issues; and (2) did not weigh the evidence or make any findings as to Mylan’s invalidity challenge.3 As discussed below, these errors warrant vacating the preliminary injunction.

The need for an evidentiary hearing on disputed issues of fact:

In the Third Circuit, as in other circuits, “a district court cannot issue a preliminary injunction that depends upon the resolution of disputed issues of fact unless the court first holds an evidentiary hearing.” Elliott v. Kiesewetter, 98 F.3d 47, 53 (3d Cir. 1996) (citing Prof’l Plan Examiners of New Jersey, Inc. v. Lefante, 750 F.2d 282, 288 (3d Cir. 1984)); see also Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1171 (7th Cir. 1997) (“If genuine issues of material fact are created by the response to a motion for a preliminary injunction, an evidentiary hearing is indeed required.”). In such cases, “[t]he chief ques- tion . . . is whether, in ordering the preliminary injunc- tion, the district court relied upon any facts that were properly disputed.” Williams v. Curtiss-Wright Corp., 681 F.2d 161, 163 (3d Cir. 1982).
Here, it is clear that the district court relied on dis- puted factual issues in granting Warner Chilcott’s motion for a preliminary injunction. Indeed, the court expressly identified those disputed issues when it explained that there were “some serious factual disputes between the experts” and “there’s clearly factual dispute between the two of you.” J.A. 25, 57. Rather than resolving those disputes through an evidentiary hearing, followed by adequate factual findings, as Mylan requested, the court put them aside for a later day. That runs afoul of the Third Circuit case law cited above.

Consequences of no findings of fact:

The district court also failed to make any findings as to Mylan’s invalidity challenge, thus preventing this court from engaging in any meaningful review of that issue. A court “must find the facts specially and state its conclusions of law separately.” Fed. R. Civ. P. 52(a)(1). “It is of the highest importance to a proper review of the action of a court in granting or refusing a preliminary injunction that there should be fair compliance with Rule 52(a) of the Rules of Civil Procedure.” Mayo v. Lakeland High- lands Canning Co., 309 U.S. 310, 316 (1940); Kos Pharms., 369 F.3d at 712 n.10 (quoting Mayo and explain- ing that a district court’s failure to explain each of the likelihood of confusion factors in a trademark infringement analysis “runs afoul of Rule 52(a)”); see also Nutri- tion 21 v. United States, 930 F.2d 867, 869 (Fed. Cir. 1991) (“Sufficient factual findings on the material issues are necessary to allow this court to have a basis for mean- ingful review.”). Absent appropriate findings, the normal course is to vacate the district court’s decision and remand the matter for a proper analysis. See Sabinsa Corp. v. Creative Compounds, LLC, 609 F.3d 175, 183 (3d Cir. 2010) (“Typically, when a district court fails to adequately support its findings, we merely remand for a re-weighing of the applicable factors.”); Pretty Punch Shoppettes, Inc. v. Hauk, 844 F.2d 782, 785 (Fed. Cir. 1988) (same).

AND

Although there is no precise formula district courts must use rendering their findings under Rule 52(a), an utter failure to make any findings contravenes that rule. In addition to violating Rule 52(a), these omissions are also contrary to our case law, which requires district courts to consider both the accused infringer’s validity defense and the patentee’s arguments in support of its patent. See Titan Tire, 566 F.3d at 1379 (“[T]he trial court first must weigh the evidence both for and against validity that is available at this preliminary stage in the proceedings.”). Accordingly, we remand the matter for the district court to make appropriate findings consistent with these authorities.4

BUT, note the conclusion:

Although the district court’s entry of the preliminary injunction in this case is contrary to controlling authority, we are mindful of the court’s demanding schedule and desire to avoid duplicating its efforts with a soon-to-be- scheduled bench trial in this case. If doing so serves judicial efficiency, the district court may consider entering a temporary restraining order after this court’s mandate issues, then consolidating the preliminary injunction hearing with the bench trial on the merits, assuming that can occur within the timeframes mandated by the Federal Rules of Civil Procedure. See Salinger v. Colting, 607 F.3d 68, 84 (2d Cir. 2010). With that in mind, we remand this matter for proceedings consistent with this order.

Fee diversion, unresolved by the AIA, is the cause of application backlog

2011-12-12T14:13:00.000-08:00

In a post titled Patent Reform Fails to Halt Fee Diversion , Inventors Digest brings up the problems caused by fee diversion, in particularly asserting that fee diversion has caused the backlog of unexamined patent applications:

A Report of the National Academy of Public Administration estimates the current backlog of unexamined patent applications is in fact the direct result of fee diversion. The report estimates that if the USPTO had not experienced fee diversion, then the average application pendency time would have averaged slightly over 21 months as compared with the 30 months to 40 months that it currently takes to process a patent application.

Obama on "60 Minutes" on Dec. 11, 2011

2011-12-11T16:40:00.000-08:00

According to "60 Minutes" on Dec. 11, the Obama interview took place on Friday (Dec 9) morning. But, a bcnn post stated:
Steve Kroft interviewed the president on Tuesday in Kansas after he delivered an economic speech in the small town of Osawatomie. President Obama will talk to Kroft again tomorrow at the White House for Sunday's report.

Steve Kroft explicitly said the interview took place on Friday morning in the Cabinet Room. The first part of the CBS video did include Kroft meeting with Obama right after the Kansas speech. In the clip, Kroft brought up the "class warfare" issue. Kroft asked if the start of the campaign season meant "no more governing." Then, "60 Minutes" turned to the Friday meeting. Obama did mention the need for a focus on "common sense." Obama suggested the Republicans were standing on the sidelines. Kroft responded: isn't your job as president to put forth a plan for getting the job done. Obama said it was his job to line up his party, and to rally the American people. Kroft brought up poll numbers. Obama talked about unemployment and people were feeling under the gun. The people are going to feel unsatisfied. Obama stated the Republicans have made a strategic decision. Obama said a majority of Republican (voters) favor tax increases (and deficit reductions). There are common sense, main stream ideas. Kroft asked: unemployment rate by 8% by election. Obama said it's possible. Obama: 9 consecutive quarters in which economy has grown. Obama: we did all the right things to avoid a great depression. Obama: I'm the captain and (his team) is the crew, and we're going through storms. Obama: I don't control the weather. Kroft: general perception that stimulus didn't work. Obama interrupted Kroft and quoted McCain's former economic advisor. Obama: bumping up against Congress. Obama: if people's reality is difficult, they will be upset. Kroft: why do you deserve to be re-elected? Obama: avoided a great depression. reformed the financial system. ending don't ask, don't tell. decimating Al-Qaida.
Kroft also asked why no prosecuting of Wall St. bad actors?

Kroft said at the heart of the Friday interview were questions about the effectiveness of Obama's leadership. 42% of poll said Obama's policies favor Wall St. Obama: from 40,000 feet, the most damaging behavior on Wall St. wasn't illegal. Kroft said intransient? Obama: I want everybody to rich. Obama referred to "basic math." Democrats allege Obama was outmaneuvered.
Obama: we Democrats must make some sacrifices on entitlements. Kroft: a sense of disappointment. You were going to work outside the box, but you have been too cautious. Kroft asked about any doubts about running for a second term. Obama: I'm being judged against an ideal. Obama: the core philosophy [of all Repub. candidates] is the same.

Springfield, IL kickoff for Prez campaign: The reason we have not met our challenges is a failure of leadership. Kroft: did you overpromise? Obama: I'm a persistent son of a gun.

A second story is on Howard Buffet, 57 year old son of Warren Buffet. Howard has been a farmer in Nebraska and (Pena) Illinois. Howard received about $300,000 in farm subsidies over 13 years. Howard G. Buffet Foundation focusses on world hunger. Farmers who couldn't feed themselves. In El Salvador, Howard is funding a training program. Howard emphasizes accounting. Warren noted none of his kids graduated from college. Howard would be the "guardian of the culture" of Berkshire Hathaway.