Tuesday, October 31, 2006

More plagiarism at Harvard?

The Boston Herald reports that the Harvard Crimson dropped an editorial cartoonist Oct. 30, saying two of her drawings mirrored previously published cartoons.

Although the recent separate episode with Victoria Illyinsky was mentioned, the article did not talk about the Laurence Tribe incident.

Meanwhile, the Yale Daily News (article by Kanya Balakrishna and William Schmidt) reports:

Jill Cutler, the secretary of Yale's Executive Committee, said she thinks Yale's plagiarism problem is comparable to that faced by most other universities. According to the most recent available ExComm Chair's Report, from the 2004-2005 academic year, the committee heard 30 cases of cheating and plagiarism that resulted in 19 punishments ranging in seriousness from reprimands to a withheld degree. Cutler said Yale students are not adequately informed about the concept of academic honesty.

Monday, October 30, 2006

Free shotgun with your SUV?

Channel 10 (WCAU-Philly) ran a story on October 30, 2006 about how Country Dodge of Oxford, PA is offerring a free shotgun with a purchase of an SUV.

Separately, newspapers are reporting big drops in circulation.

47 IDEA 9-41 discusses issues in continuations at USPTO

Further to the "Town Hall" meetings on continuations, the beginning of Volume 47 of the journal IDEA has a transcript of some discussion.

A comment on someone else's blog in February 2006 had observed:

Rather, it seemed apparent that the real reason for restricting continuations was to restrict applicants’ ability to use a continuation application to address competitors’ efforts to design around.

In the discussion in IDEA, this was termed "late claiming." IPBiz notes that just from the words used to describe the issue, one can see these two people have a different take on the issue.

One really needed historical background to appreciate some of the comments in IDEA. The case Muncie Gear Works, Inc. v. Outboard Marine & Mfg. Co., 315 U.S. 759, 62 S.Ct. 865, 86 L.Ed. 1171 (1942) became the pivotal case on late claiming.

The case was cited, for example, in General Instrument v. Hughes Aircraft:

We are drawn to the conclusion that claim 60 is invalid in that it is not linked integrally or essentially enough with what had been set forth in the prior disclosures of the North patent. Since what was old did not describe what was added, the latter must be considered new matter. Harries v. Air King Products Co., 183 F.2d 158 (2d Cir. 1950). And since commercial sales of the 'Hughes commercial diode', which embodied all the 'new matter' embraced in claim 60, had commenced over a year prior to the filing thereof the claim fails for 'late claiming'. 35 U.S.C. 102(b); Muncie Gear Works, Inc. v. Outboard Marine & Mfg. Co., 315 U.S. 759, 62 S.Ct. 865, 86 L.Ed. 1171 (1942).

For historical perspective, General Instrument was represented by W. Houston Kenyon, Jr. and Theodore S. Kenyon of Kenyon & Kenyon.

**Some isolated text from IDEA-->

page 9

Mr. Jepson: The delta between the number of applications that are being filed and the applications that are being disposed of is therefore growing dramatically. The PTO believes that it cannot hire its way out of this problem and as a consequence is looking for alternative solutions.

page 11
Anyway, at the PTO Town Hall Meetings, there was little support from very large and active crowds of mostly patent practitioners. Most were strongly opposed to these proposals.

Mr Figg
But I think we should all keep in mind that there are two issues here. One is the effect that continuations have on backlog at the Patent Office and the other is the abuse ...

Mr Kirk

"...it seems to me that you are catching up, and you are outrunning the workload through the hiring of new people."

Mr. Simon
As a result, and in light of the points made by Professors Moore and Lemley, we think continuations are bad, as it makes it virtually impossible to have a licensing discussion with somebody on why you don't infringe because whatever you tell them, they're going to turn around and rewrite their claims to try to cover. But the examiners are overworked, and as pointed out by Mr. Rines, inexperienced.

Ms. Hogle
a straight continuation, a CIP, and an RCE are very different beasts. They're used in very different situations. An RCE, of course, is a function of the, what I consider, very poor patent examination process that's going on right now.

Muncie Gear Works, 315 us 759 (1942) on late claiming

p.41 end

***Other stuff -->
The paper "Probabilistic Patents" mentions the possible solution "hire more examiners" exactly once, without any discussion.

Jim Ivey made a point about the "patent grant rate" discussion:

My unscientific guesstimate is that fewer than 25% of application are allowed without substantial narrowing during prosecution -- perhaps fewer than 15% or even 10%.

The reality is that it's extremely rare that an applicant's specific implementation is so exactly duplicative of prior implementations that the applicant can't get some level of patent protection, albeit fairly narrow at times. That "extremely rare" circumstance is probably at or below the 3% suggested by the statistic. More often, I find applicants determine that, although they could get very narrow protection in view of circumstances revealed during prosecution, the narrowness of the available protection does not justify the expense and effort of continuing the application. I would guess that such determinations make up the difference between the "extremely rare" case I mentioned and the quoted 3%. The remainder accept the substantially narrowed protection to allow the case to issue.


My very rough guess would be 10% or less of all filed claims are allowed without modification of any kind. Perhaps 15% are allowed without any substantive modification (I know, a subjective criteria that's hard to evaluate -- but that's the nature of the patent business).

So, the presumption that allowance of many applications means the Patent Office isn't a meaningful filter is just not valid from the quoted statistics.

My second problem is the logical leap from many applications issued to many applications improperly issued. It's simply not a valid assumption.

IBM patent policy: apparent schizophrenia?

Of the apparent disparity between IBM efforts in patent reform and IBM's patent suit against Amazon, InformationWeek has the following quote:

IBM's top attorney for intellectual property rights acknowledges his company's position can seem contradictory and confusing. "We've referred to our patent policy as apparent schizophrenia," David Kappos says. Yet he maintains that "on a deeper level, our actions are consistent."

[Also -->]

Tech vendors, IBM and Microsoft principal among them, are trying to change things they don't like about the patent process. In addition to giving away patents to the open source community, IBM wants all patent applications to be subject to public review. And it's urging Congress to do away with patents--including some of its own--based on so-called business methodologies that lack technical merit.

But in suing Amazon, IBM promised to "aggressively defend" its intellectual property and hunt down other companies it thinks are using its IP without permission. IBM says it tried unsuccessfully to negotiate a licensing deal with Amazon for four years before filing suit. Amazon declined to comment.

The Information Week article also contains the following:

U.S. Patent And Trademark Office
Proposes limiting to 10 the number of times patent applicants can request a re-examination of their applications and the number of individual patent claims contained in any single application

IPBiz asks: is anyone awake at Information Week? Or have they joined with Science in dispensing pure glop about patent law (see 88 JPTOS 743)?

Yes, there is a reference to Lerner: "There are some pathologies in the system that need to be dealt with," Harvard Business School professor Josh Lerner says. "Patents have become too powerful and too easy to get" for an economy that's increasingly information-based, Lerner says.

Yes, Information Week does note the dichotomy with IBM: IBM's strategy is to be an IP benefactor to the tech industry when it's in IBM's interest, while staunchly defending its IP rights at other times. That's hardly reassuring to entrepreneurs and startups that risk a run-in with IBM as they develop new products. IBM holds about 40,000 patents worldwide for everything from how to display ads online to the creation of an Internet checkout system. IBM patents cover "most of, if not all, e-commerce," senior VP John Kelly told The Wall Street Journal last week.

Yes, there is further confusion about the patent system: What's setting off alarms in some quarters is the fact that personalized recommendation systems are widely used, and they can be generated in a number of different ways. "These kind of lawsuits hurt our whole industry," says Mary Hodder, CEO of Dabble.com, an online video-sharing service. She thinks the patent process needs tightening to prevent what she considers a proliferation of nuisance suits. "Most of the patents they grant are really for simple and basic concepts and ideas, not complex and innovative processes, which is what they're supposed to be allowing," Hodder says.

Yes, there is mention of Rivette: Last year, IBM hired Boston Consulting Group patent expert Kevin Rivette as VP for intellectual property. Rivette is author of Rembrandts In The Attic (Harvard Business School Press, 1999), a primer on how companies can profit from their IP assets. Palmisano created a technology and intellectual property unit within IBM under senior VP Kelly, dedicated to finding new markets for the fruits of its research.

There is discussion of the Peer-to-patent project: Other critics suggest the vendors' moves are aimed at cementing their advantages at a time when they face rising competition from startups. In an August essay, Harvard Law School professor and tech entrepreneur James Moore argued that the collaborative patent review process proposed by IBM, Microsoft, and others will result in fewer patents being issued because it will give examiners more ammunition to shoot down applications. "If fewer patents are issued, but existing patents are not revoked, IBM and Microsoft win because they already possess vast existing portfolios," Moore writes.

IPBiz notes: It is already true that fewer patents are being issued. Further, the re-examination process is still around.

See also

Sunday, October 29, 2006

CAFC decides Go Medical v. Inmed

In Go Medical v. Inmed, the CAFC took up issues including anticipation, licensee estoppel, and permanent injunctions.

The CAFC concluded the district court misapplied the doctrine of Lear v. Adkins, 395 US 653 (1969).

There was also an issue under 35 USC 120, and of priority in a continuation chain. The CAFC cited In re Daniels, 144 F.3d 1452. See also 88 JPTOS 743.

There was a best mode issue and the CAFC cited Liquid Dynamics, 449 F.3d 1209.

Bob Park on gender and cold fusion

Bob Park notes: When Lawrence Summers speculated that innate ability might explain why there are fewer women in math and science, it cost him the presidency of Harvard. A study reported in Science by researchers at the University of British Columbia found that women exposed to bogus scientific theories linking their gender to poor math skills performed more poorly on subsequent math tests. Uncertainty over whether they could do it presumably affected how hard they tried.

Of course, the UBC study is addressing a different issue than that of the "genetic differences" expressed by Summers. Recall also how Summers backed up his insight:

His [Summer's] contention that boys outperform girls in science and maths because of genetic differences - he backed up his argument by saying his daughter treated two toy trucks as dolls, calling them mummy truck and daddy truck - is just not supported by the evidence, according to Britain's august scientific academy, the Royal Society.

See earlier IPBiz post:

Elsewhere on Bob Park's WN:

In June, we mentioned the World Trade Center conspiracy theory of physics professor Steven Jones at Brigham Young University (WN 23 Jun 06) . He believes the Trade Center was rigged with explosives on 9/11, with the connivance of the U.S. government. BYU suspended Jones pending a review of his 9/11 theories, but Jones has now agree to retire. This isn't his first trip into delusion. Seventeen years ago his delusion of geologic cold fusion got Pons and Fleischmann at the U. of Utah started on a cold fusion delusion of their own.

Chicago Tribune on nanotechnology patents

Sun setting on nanotechnology patents???

Jon Van of the Chicago Tribune, in an article Slow patent process hurts nanotech progress; Financial backers wary of 4-year filing period presents the quote: "The impact is one of perception. When you don't get a response from a patent application filing, you don't know what else is going on."

There is also text: Bruce Kisliuk, director of a patent examining group at the patent office, said the agency does face a growing backlog across all areas.

"We have 700,000 applications in the pipeline," Kisliuk said. "Some are for nanotech, some not. This backlog isn't unique to nanotech."

Last year, the office issued fewer patents than usual because of an initiative to improve patent quality, Kisliuk said.

Note the following text about the hiring of examiners:

After years of being starved for resources, the office, which has had around 4,000 examiners, hired 1,200 new ones, bringing its total strength to nearly 4,800 examiners. Another 1,200 are due to be hired this year, he said.

IPBiz notes that 4,000 + 1,200 = 5,200, not "nearly 4,800."

See also an earlier IPBiz post on problems of employee retention at the USPTO:


Separately, recall the numerous patents in the area of buckyballs and fullerenes which issued in the 1990's and went no where.

Promises of patent royalties from Proposition 71?

Although the Lysaght paper mentions economic benefit to California through "royalty income" [page 112], it did not mention or cite the study by Laurence Baker (Stanford) and Bruce Deal which was discussed by the Sacramento Bee on September 15, 2004:

The study also predicted the state could collect $537 million to $1.1 billion from patents and royalties resulting from successful research funded by the initiative.

The Bee also reported:

The biggest boost for the state would come from reduced health care costs of $3.4 billion to $6.9 billion annually, according to the study.

Laurence Baker, a Stanford University health research and policy professor, and Bruce Deal, managing principal of the Analysis Group Inc., conducted the study and said those savings would come from treatments or cures for just six of the 70 diseases and conditions scientists believe stem cell research could help alleviate.

The diseases they considered are among the most common and most likely to generate big savings: strokes, insulin-dependent diabetes, Parkinson's disease, Alzheimer's, spinal cord injuries and heart attacks.

Opponents say such claims are highly speculative because embryonic stem cell research has yet to produce any treatments or cures.

As IPBiz reported previously, Laurence Baker was present at the Princeton hosted symposium on the policy and economic implications of state-funded stem cell research.
IPBiz noted: Baker and Deal's section begins at page 51. At page 70, there is an erroneous mention of the "17 year life" of a patent. Patent royalty revenue comes up on pages 70 and 71.

IPBiz now queries: how "expert" are those who don't even know what the lifetime of a US patent is?

The Missouri stem cell wars

Many of the Sunday morning news shows on Oct. 29 talked about the stem cell initiative in Missouri. Although you won't find it by searching Google, IPBiz has discussed the matter (for example, here.

Much discussion concerned an ad by Michael J. Fox. According to the AP, the ad was on behalf of Senate candidate Claire McCaskill: Amendment 2 would provide constitutional protections for embryonic stem cell research in Missouri. The 30-second spot featuring Fox, 45, who sways uncontrollably in the ad due to his Parkinson's disease, is actually a commercial for Democratic U.S. Senate candidate Claire McCaskill.

The AP story also noted: "That ad claims opponents want to criminalize research and prevent the expansion of stem cell research. Those claims are just false and misleading," Ruse said. "Our gripe with Amendment 2 is it creates a right to do human cloning and it creates the right to human egg trafficking for cloning research."

Of some historic relevance is the paper "The Scope of Public Discourse Surrounding Proposition 71: Looking Beyond the Moral Status of the Embryo," by Lysaght, Ankeny, and Kerridge. Arguments about Prop 71 were divided into political, ethical, and epistemological.

Under ethical, the paper noted

arguments focussed on potential medical and therapeutic utility (Prop 71 proponents)
arguments focussed on welfare of human embryos, comodification of research subjects, the exploitation of women (Prop 71 opponents)

The snippets above about the Missouri saga suggest that this was the level of the pro-/anti- "Michael J. Fox" discussion.

One notes that the Lysaght paper stated: "None of these ethical issues were covered in any great detail in the mass media..."

The paper also stated: "The scientific and research communities tended to be more hesitant in arguing for the clinical benefits of stem cell research..."

The paper did not note that the proponents for Proposition 71 enjoyed a tremendous advantage in funding over those opposing Proposition 71. The paper did not note that both the Sacramento Bee and the San Diego Union-Tribune opposed Proposition 71.

The ballpoint pen patent wars: it began on Oct. 29, 1945

CBS Sunday Morning on Oct. 29, 2006 discussed the introduction of the ballpoint pen in the US. The ballpoint pen was first introduced to the United States on October 29, 1945. The pen, dubbed the Reynold's Rocket, was introduced in New York's Gimbels Department Store, and the whole stock of 10,000 pens was sold out the first day for $12.50 each.

There was a patent issue.

The invention of the pen was in 1938 by two Hungarian inventors, Laszlo Biro and George Biro. The brothers both worked on the pen and applied for patents in 1938 and 1940. The new-formed Eterpen Company in Argentina commercialized the Biro pen. The press hailed the success of this writing tool because it could write for a year without refilling. Eversharp Co. teamed up with Eberhard-Faber to acquire the exclusive rights to Biro Pens of Argentina. The pen was re-branded as the “Eversharp CA” which stood for Capillary Action.

Milton Reynolds, after visiting Argentina, copied the product in four months and sold his product in Gimbel's.

IPBiz poses the question: would Reynolds, who brought the product to commercialization faster than the inventors, be a hero to the patent reformers of the year 2006?

Of course, there is more to the story.

There was a 1888 patent by John Loud that went unnoticed in the litigations. Prior art not found.

Separately, none of the initial products were particularly good. The real winner was the French Baron Bich, who did not have the so-called first (or second) mover advantage, but ended up winning the war with BIC pens.

Although not appreciated in the US, "biro" is the generic name for ballpoint pen in most of the world.

NJ Assembly debates whether "Rutgers is Wrong" on sports funding

Further to a post on faulty indexing by Google, two IPBiz readers did a blogsearch on IPBiz and each found 5 hits on Sikahema etc., which is five more hits than found by searching google.com. However, if one does a thorough search on IPBiz, one will find 10 posts on the Sikahema matter.

Meanwhile the Rutgers Targum had a discussion of the Rutgers' decision to drop funding for certain sports, which funding drop was part of what Sikahema was talking about in his Vai's View: Rutgers is Wrong.

from the Targum: At a hearing in the Statehouse Annex in Trenton, N.J., Oct. 19, members of the General Assembly's Higher Education Committee heard testimony from both sides of the debate surrounding Rutgers University's decision to downgrade six intercollegiate sports teams to club sports by June of next year. (...)
Faced with a historically deep cut in state funding this year, University officials had to cope with a budget shortfall of $66.1 million. In response to the cut, the University laid off 189 staffers, declined to renew the contracts of 374 part-time lecturers, cut 459 course sections and called off 64 faculty searches this year, said Robert Mulcahy, Director of Intercollegiate Athletics at the University. (...)
Men's heavyweight crew, men's lightweight crew, men's fencing, women's fencing, men's swimming and diving and men's tennis are slated to be phased into club sports by the end of this academic year. According to a statement the University released last week, cutting the sports will save Rutgers $1 million a year.

Of some interest was the text: Funds for athletic scholarships, Mulcahy said, come mostly from student fees. General University funds and donations contribute to funding the scholarships to a smaller degree, he said.

Returning to the Google indexing issue, a search on Oct.29 on the terms

+Sikahema +Rutgers +football +IPBiz

yielded one hit:

IPBiz: Flipping Filippo, Batman, Gunasekera files federal suit ...Of a Rutgers/Ohio U. nexus, the Rutgers football team, after beating Illinois 33-0 on ... Of Vai Sikahema's "Vai's View" on Rutgers, will NBC Channel 10 in ...
ipbiz.blogspot.com/2006/09/flipping-filippo-batman-gunasekera.html - 25k -

Not only does Google searching produce incomplete results, it gives variable results of past events on different days. Google is neither thorough nor consistent.

Friday, October 27, 2006

More on the faulty coverage in Science of continuation applications

Further to the article in 88 JPTOS 743 criticizing the accuracy of July 28 "news of the week" piece in Science, one reader wrote:

I read footnote 11 about the submitted "letter to the editor". The inability to address matters in Science is very sad.

No other blog is covering this story, which has a lot to do with the accuracy of certain allegations of misuse of the continuation process in patent applications.

Eli Kintisch wrote an earlier article "What good is a patent?", which appears in 311 Science 946 (17 Feb. 06), which discusses the eBay and Metabolite cases.

At page 947: "Yet patent attorneys are also mindful of a 2002 decision involving cylinder manufacturers in which the high court expounded the rights of patent holders by reversing the Federal Circuit on an issue related to similar inventions."

The 2002 decision is Festo.

More on bad indexing by Google


A search on Google on Oct. 27, 06 for

+"Vai Sikahema" +Rutgers +football

produced no hits for IPBiz. Among the IPBiz posts NOT FOUND by Google is that of August 26: Sikahema blasts money for Rutgers football; stem cells next?
The first sentence of the post was: In an op-ed piece on PHL's Channel 10 in the week of August 21, 2006, Vai Sikahema criticized expenditures by Rutgers University on the football program.


Of "Rutgers is Wrong," the only Google hit was for a post including the text: Google is not doing a good job of indexing. Where has Vai Sikahema's "Rutgers is Wrong" (Aug. 06) gone to?) Ironically, Google found a post about bad indexing, but not the original posts.

While Google's ever-changing indexing is making references to the Vai's View "Rutgers is Wrong" as scarce as dodos, it's not hard to find more upbeat stories.

Sports Illustrated noted:

Annual giving to athletics by alumni was a record $5.9 million in 2005, the year Rutgers went to its first bowl game in 27 years. More than half of that total was given by 83 donors who each gave more than $10,000, a group that grew by about 30 percent from 2004.

"Athletics are the lightning rod for the university," Jason Kroll said. "If our philosophy department slips from No. 1 in the country to No. 2, there's not going to be an uproar in the general community. But if your football team ascends to the top 25, there's a certain buzz that extends far and wide."

A diversion


Supreme Court grants cert on Microsoft/AT&T case

The U.S. Supreme Court on Oct. 27 agreed to consider an appeal by software maker Microsoft Corp. in a dispute over whether the company should be liable for damages overseas for infringing a software patent owned by AT&T Inc.

The issue is the "golden disk" and royalties based on the foreign manufacture and sale of infringing software products.

An earlier IPBiz post:

Relevant to IBM and patent reform, David Berlind wrote of the IBM suit against Amazon:

For years, there have been a handful of companies trying to figure out how to erect a toll booth on the Web, if not the Internet altogether. In other words, they've been looking for some way to ensure that the Internet or some portion thereof can't work unless they get to collect a royalty on the majority of the Internet's traffic. Now, if a patent infringement suit filed by IBM against Amazon.com holds up in court, Big Blue may have finally found a way to collar the Web (or most of it). It may be a decade before we know the answer.

Whether it was simply the prescience of IBM's engineers right around the time that the Web was born, or just a stroke of serendipity (perhaps connected with IBM's original association with the Prodigy online service), IBM appears to have a patent for online advertising. And now, nearly a decade and a half after IBM filed for the patent, and long after the online advertising environment has matured to a point that it's generating (in aggregate) billions of dollars for everybody from small businesses to Google, IBM's patent infringement suit against Amazon is the equivalent of Big Blue saying "Excuse me everyone, we've got something very important to say." Very important indeed if you own or operate a Web site with advertisements on it.

MBA students: the biggest cheaters?

Further to academic cheating, a study by the Academy of Management Learning and Education of 5,300 students in the U.S. and Canada placed MBA students at the top of the cheater list:

56% of M.B.A. candidates say they cheated in the past year. For the study, cheating was defined as plagiarizing, copying other students' work and bringing prohibited materials into exams.

However, other disciplines were close behind:

With 54% of graduate engineering students, 50% of students in the physical sciences, 49% of medical and other health-care students, 45% of law students, 43% of graduate students in the arts and 39% of graduate students in the social sciences and humanities readily admitting to cheating, something must be done to correct course.


Faculty, the authors say, should "engage students in an ongoing dialogue about academic integrity that begins with recruiting, continues in orientation sessions and initiation ceremonies, and continues throughout the program." It may also include initiating an honor code, preferably one that emphasizes the promotion of integrity among students rather than the detection and punishment of dishonesty.

Promote the good not the bad. Yet at the top of those companies most ensnared in ethical scandal sat a chief executive with an M.B.A.

Meanwhile, back at Harvard, the Boston Globe reported:

Harvard’s student newspaper has said one of its writers lifted material for her column on linguistics from a similar column posted a year earlier to Slate, an online magazine.

The Harvard Crimson published an editor’s note apologizing for its failure to reference the Slate column as a source for quotes from ‘‘The Great Gatsby’’ and ‘‘Little Women’’ used in the Crimson column. The Crimson editors plan to publish another note Friday (Oct. 27) saying they will discontinue the biweekly column by Victoria Ilyinsky, and will remove the problematic column from the Crimson website.

IPBiz notes that the Globe also said:

The Crimson’s apparent incident of plagiarism highlights the inherent risks of publishing, said the Crimson’s president, William Marra, a senior.

‘‘Any publication that prints has to look out for plagiarism or allegations of plagiarism,’’ Marra said in an interview Thursday.

IPBiz notes that in strong contrast to the Crimson position, a certain ezine does not like to discuss plagiarism at all.

IPBiz notes that the Crimson was (initially) all over the Laurence Tribe matter, but interest dropped.

Thursday, October 26, 2006

Mehta sues Ohio University in plagiarism mess

Further to an earlier report on IPBiz, Professor Bhavin V. Mehta filed suit against OU, so we now have a least 3 lawsuits (Gunasekera filed two).

The Athens News reports:

Mehta's suit claims an OU Academic Honesty Oversight Committee, which investigated about 50 theses suspected to contain plagiarized material, found 12 students in the group who had had Mehta as their thesis adviser.

Of these 12, the suit claims, four had theses with identical material because it was their own writings, which they had co-authored and cited in their theses.

The News also stated:

The alleged defamation against Gunasekera and Mehta came from a report authored by two internal investigators, the so-called Meyer/Bloemer report, which found a long history of "rampant and flagrant plagiarism" in the mechanical engineering department.

Though this report did not name Gunasekera or Mehta, their identities were readily ascertainable by their descriptions in the document, the suit says. (In fact, media reports promptly named both men, a fact the suit points out.)

Adding to the alleged defamation, the suit claims, OU Director of Legal Affairs John Burns told reporters in July that Mehta's contract was not renewed because of the plagiarism allegations, and in September, Russ College Dean Dennis Irwin told reporters that Mehta had contributed to a "culture of plagiarism."

The earlier IPBiz post:


Qualcomm files re-exam request against Broadcom

After losing on invalidity at the ITC, Qualcomm has filed a re-examination request at the USPTO.

Reuters noted:

Qualcomm Inc. on Oct. 26 said the U.S. Patent and Trademark Office on Oct. 20 decided to rexamine the validity of one of the patents Broadcom Corp. has asserted against it in the International Trade Commission [ITC].

On Oct. 10, the Administrative Law Judge had determined that Qualcomm does not infringe this patent but also concluded that the patent was not invalid, the company said in a statement.

Drucker on Turlington and Merck

Jesse Drucker of the Wall Street Journal confirmed that the cite for the Turlington "Capone" article is Section 704(c) and Partnership Book-Tax Disparities, The Ceiling Rule and the Art of Tax Avoidance, 46 Inst. on Fed. Tax'n 26 (1988).

No word from IBM on whether changes to the Merck Turlington-shell company approach are what IBM had in mind concerning patent reform.

[IPBiz post 2102]

Tuesday, October 24, 2006

Plagiarism vs. in-class cheating?


The Daily Princetonian asked on Oct. 16:

Why do we wear orange and black even when it is not Halloween? Why are cases of plagiarism and in-class cheating adjudicated by entirely different committees? Why do we speak of "precepts" and "preceptors," words unrecorded in this sense in the Oxford English Dictionary and ill-understood by our friends at other universities?

for plagiarism at Princeton

Baseball and ethics: Kenny Rogers' thumb

During the second game of the World Series, Fox television commentators early-on pointed to discoloration at the base of Kenny Rogers' left thumb and raised the specter of a foreign substance. The commentators noted that St. Louis, which would be watching the Fox broadcast, would be all over this. Such does not seem to be the case.

from the Guardian:

Television replay close-ups showed discoloration at the bottom of Rogers' thumb during the opening frame. Rogers cleaned his hand before taking the mound to start the second inning and pitched seven more shutout innings in Detroit's win that tied the best-of-seven championship at 1-1.

"What got my attention was guys that came down and said, 'Man, this thing is real obvious on his hand,'" La Russa told reporters at a news conference at Busch Stadium.

"I didn't see it. But I did watch video of the other postseason games, so I had an idea of what it looked like, and I said, let's get rid of it and keep playing.

LaRussa, who went to law school at Florida State University, talked about the ethics:

La Russa spoke about the ethics of the question.
"Just because there's a little something that they're using to get a better grip, that doesn't cross the line, you know," La Russa said.
"There's a line that I think that defines the competition.
"And you can sneak over the line, because we're all fighting for the edge. I always think, does it go to the point of abuse?" said La Russa, who holds a law degree.

In contrast to LaRussa's NOT looking at the television, Rogers (according to the Boston Globe) was aware of what was being said on television:

But that's Rogers's story and he's sticking to it. He also said he wiped his hand off because he saw on TV that they were talking about it, not because he was instructed to do so by plate umpire Alfonso Marquez.

"I think once I wiped the mud off, the last seven innings were very good," Rogers said, "but I'm sure that will be lost in translation with everything."

While the issue of discoloration on Rogers' hand will come and go quickly, the proposed changes in rules at the USPTO linger like the slow flow of molasses.

A hit came up on news.google on Oct. 24 that began:

In an effort to streamline the patenting process, the US Patent and Trademark Office (USPTO) is proposing two rule changes that, patent and other experts say, may end up adding cost and time for biotech companies and universities looking to obtain patents on their life science discoveries.

The hit ENDED with text:

While no public hearings are planned, and the USPTO has wide discretion to change the rules, the agency has been holding a series of "town hall" meetings around the country to explain the proposed rules changes. Additionally, those interested in submitting comments to USPTO can do so by mail until May 3, 2006.

In between, one had some quotes:

"Most universities will be dismayed," says Carl E. Gulbrandsen, managing director of the Wisconsin Alumni Research Foundation, the tech transfer office of the University of Wisconsin-Madison. "At universities, even more so than startup biotech companies, the technology that comes off the bench is very early-stage, and often you need several continuations to understand what the invention is and its full breadth," says Gulbrandsen.

Doll rejects this logic. "I have absolutely no sympathy for that because when you file an application, that invention is supposed to be complete," he says. "We are being reasonable, [the refiling process has] been a burden on the examiners." But, he continues, if applicants really do need more continuations "and can show a good and sufficient need, we will grant them." However, says Nancy J. Linck, deputy general counsel for intellectual property and trade at the Biotechnology Industry Organization trade association in Washington, DC, the biotech industry relies on continuation practice. "This [proposed] requirement just puts an increased burden on them."

The URL is

See also 88 JPTOS 743 (Sept. 2006).

**UPDATE on Oct. 27**

Jeff Ferguson wrote:

For the first inning Sunday night, Detroit Tigers pitcher Kenny Rogers had what looked to be a foreign substance — pine tar — at the base of his thumb on his left (throwing) hand. Pine tar is perfectly legal for batters to use for grip on the bat, but is disallowed on the mound. Joe Buck pointed out this brown substance to a national television audience sounding like he’d just discovered who was the second gunman at the Grassy Knoll.

After some discussion with the home plate umpire at the end of the inning, Rogers returned to the mound sans smudge in the second inning. For the entire game, he pitched a 1-hit shutout, but the damage to his reputation was done. Or was it?

[IPBiz post 2100.]

Ohio University trustees approve degree revocation for plagiarists

Ohio University wrestled with the issue of what to do with "bad acts" of students who had already graduated:

The trustees [of OU] also passed a resolution authorizing OU President Roderick McDavis to revoke degrees as one punishment for graduate students in the Russ College of Engineering and Technology who are accused of plagiarism.

The resolution applies the academic misconduct rules from the student handbook to graduated students and formally establishes the Academic Honesty Hearing Committee. The committee body will determine guilt and punishment for the 34 students accused of plagiarizing their masters or doctoral dissertation.
[from the Post Online]

In the OU case, the bad acts were performed while the people WERE STUDENTS at OU, but were identified as bad acts later in time.

In the case of Jan-Hendrik Schon, the University of Konstanz had no trouble revoking Schon's Ph.D. for bad acts performed by Schon AFTER Schon graduated, which acts were unrelated to his work at Konstanz.

Separately, the Post noted Ohio University lost 54 full-time tenure-track faculty last year, including 29 who resigned, according to Phyllis Bernt. The trustees pressed Bernt to find out why so many faculty resigned.

Monday, October 23, 2006

Do venture capitalists require previous government funding?

Further to discussion of the plans of ACT, David Morrill talked to the ACT CEO:

Q (by Morrill): Earlier this year, Advanced Cell Technology became the first company that focuses in stem cell technology to relocate its headquarters from out of state after California voters passed Proposition 71 in 2004. What were some of the reasons behind the move?

A: One of the magic issues that has driven the U.S. economy is that the government funds basic research, and then the venture capitalists and others begin to incubate some of the nuggets that can be commercialized. Well, that process evolved into some tremendous technology platforms. But in the case of stem cell research, the government decided not to, so the funding for this has been somewhat limited. When California voters decided to fill that void by passing Prop. 71, it was very apparent that if you were going to become a player in this industry, you had to be in an area where this capital would be deployed. We feel we bring some unique advantages to California because we have all this body of stem cell research. We know not only what certain processes need to be done, but we know what we shouldn't do. And we can take that and share it with the institutions here in the state of California.

IPBiz notes that the Wright Brothers, the inventors of the transistor, and the inventors of the integrated circuit did not rely on government funding.

Q: How will the fate of the funds from Proposition 71 impact ACT?

A: In part, these funds are really focused on nonprofit institutions, but we have collaborated with some of them and supported their efforts, and in that regard we will be kind of contributing to research efforts of their application. I'm under the impression that there will be a second wave of grants coming out near the end of the year that will address for-profit companies and specifically focus on this issue of translation.


Q: How has your report on generating human embryonic stem cells without harming embryos, the media attention and subsequent backlash affected your company? Where do you go from here?

A: There are several impacts that it has had. First, it has raised the profile of our company, which has created more liquidity in our stock. Second, just by the nature of that, it has allowed existing shareholders to reinvest in the company, which they did. And third, the strategy that was employed behind the research was to try and meet the standards by which President Bush had set the bar, if you will, for funding by the government. And we firmly believe that has been met, and we have seen responsible scientists and responsible publications affirm the fact that this appears to be something that needs to be considered. We believe we've met that standard.

Q: Some felt misled because embryos used in your research were ultimately destroyed. How would you respond?

A: Very simply. The experiment was not about whether embryos were destroyed or not destroyed. The experiment was designed to specifically determine whether if you extracted a cell realizing a well-known technique, can you create not only the test it was designed for, but also a new line which was an embryonic stem cell line. Everything else is already the state of the art. It was amazing when you read the national press about the subject when it came out. All of them got it right.


A piece by Terri Somers in the Union-Tribune suggested that John Reed was the most cited, of all scientists, for two years. This statement might be reconsidered.

No rehearing in Ranbaxy v. Pfizer

Sun setting on Ranbaxy effort on Lipitor?

The CAFC denied rehearing in Ranbaxy v. Pfizer, AND Pfizer is trying to un-do the damage from the violation of 35 USC 112 paragraph 4.

In a statement on Oct. 23, Pfizer said it plans to go back to the U.S. Patent office [USPTO] to seek to correct a technical defect in a second patent covering the calcium salt of atorvastatin.


in the non-precedential Safeclick v. Visa, issues of local district court rules (on patents) are discussed in the context of a business method patent (5,793,028).

The CAFC cited the ED Texas case Orion v. Staples, 407 F.Supp. 2d 815. Sage Products v. Devon, 126 F.3d 1420, was cited for the proposition that the CAFC does not review that which was not presented to the district court.

The CAFC discussed a make-weight argument by Safeclick.

IBM goes after Amazon; NYT mentions Poehlman

After the favorable publicity attending its efforts in patent reform and neutral brief in KSR v. Teleflex, IBM has filed two patent infringement suits against Amazon. IBM filed its suits in ED Texas, which is known for rocket docket patent infringement trials and patentee-leaning juries. The subject matter ranges from advertising to hyperlink technology to electronic catalogues.


further to IPBiz posts on the Poehlman fraud matter, the New York Times discussed the issue in its Sunday Magazine.

The Times article had oblique references to both Hwang Woo Suk and Jan-Hendrik Schon:

Most people involved in Poehlman’s case say that fraud as extensive as his represents an uncommon pathology, similar to what drove the South Korean scientist who claimed to have cloned human stem cells or the Lucent Technologies physicist who falsified extensive amounts of nanotechnology data. More frequent, according to a study published in Nature in June 2005, are smaller lapses in ethical judgment, like failing to present data that contradicts your previous research or inappropriately assigning author credit. Brian Martinson, who conducted that study with colleagues from the University of Minnesota, suggests that those gray areas, which many scientists inhabit at one time or another during their careers, portend a greater ailment for the scientific process. Minor transgressions, largely undetected and easily rationalized, can build up like plaque, compromising scientific integrity over time.

Previous IPBiz posts on Poehlman:


Sunday, October 22, 2006

OHSU research has created 28 bioscience companies

Oregon Health and Science University [OHSU] announced that its research has led to the formation of 28 new bioscience companies since 2000. OHSU said much of the recent activity has grown from a one-time Oregon state investment of 200 million dollars in research that has been supplemented by a private fundraising campaign that has raised nearly 380 million.

IPBiz bets that patent rights have been sorted out in that arrangement, contrary to the current situation with California's CIRM.

One IPBiz reader wrote:

Officials say that's the kind of venture capital needed to attract top talent and generate new ideas.

A) nobody mentioned if any commercial product went out the door, if any of the 28 were profitable. (and I realize, since 2000, that it has been only 6 years. it usually takes 6-10 years for a biotech company to falter, fail, or be swallowed.)

B) Let's see, that averages $20M per company...and $4M per year can keep a company going (about 10-20 people).

In other words, this article is lots of PR, but not much substance...just throw money around, and you can get companies started

Laying down on the job?

Like the macaws, blogger / blogspot is laying down on the job. It appears that IPBiz was inaccessible from about 7pm through about 11pm on Saturday, Oct. 21, 2006.

Separately, Google indexing of IPBiz is woefully incomplete. For example, posts on how an article was plagiarized are no where to be found:


IPBiz is not expecting Google's faulty indexing to improve:

Meanwhile, in the Ohio University plagiarism business, AP reports that two Ohio University doctoral students accused of plagiarizing their master's theses must rewrite their papers [MS theses]. Three cases of 37 have been decided; the remaining cases have yet to be decided, said OU Provost Kathy Krendl.

**Also on plagiarism, and laying down on the job**

As noted earlier on IPBiz, an article originally intended for Intellectual Property Today and later published on an ezine was later plagiarized word-for-word. I attempted to write about the plagiarism on an ezine.
Here is some communication from me on the point:

Just to confirm, I don't understand your position at

I have brought to your attention the fact that someone
has completely plagiarized an article written by me
that appears on the ezine, and you are "unable" to publish
on the ezine the fact of the plagiarism?

You have got to be kidding!

Friday, October 20, 2006

D. Mass. denies Roche motion in Cera dispute

Amgen Inc. said October 20 D. Mass (Boston) denied a motion by competitor Roche to dismiss a patent suit Amgen filed against it over Roche's anemia treatment Cera.

SD Cal Order vacated in Qualcomm v. Nokia

In Qualcomm v. Nokia, the CAFC considered the Federal Arbitration Act. If a district court is satisfied that the issue in question is arbitrable, then it must stay the trial of the action [9 USC section 3].

The CAFC cited Microchip Tech, 367 F.3d at 1356.

Judge Newman dissented and would have affirmed the district court.

Patent attorney Edington's daughter not molested

Further to an earlier post on Fairfield, CT patent attorney Jonathon Edington, AP reports that Edington's 2-year-old daughter was NOT molested by a neighbor (Barry James) whom the girl's father is accused of stabbing to death in rage.

Capt. Gary MacNamara: "We're confident this 2-year-old was not molested. We are confident in our investigation that Mr. Edington did in fact kill Mr. James. "


Aspects of the Edington case were present in the Law & Order episode entitled "Public Service Homicide" which aired on October 20, 2006. The analog of the victim Barry James in the Edington case was one Carl Mullaly, who was stabbed to death.

Unlike in the Edington case, the victim on Law and Order had been exposed on a tv show "Hard Focus," which bore similarity to certain recent episodes of NBC's Dateline. In Law & Order, there was a neighbor (Evan Fleming) who had a daughter. The character Fleming was a doctor, rather than a patent lawyer. On Law & Order, the neighbor doctor was not the murderer. On Law & Order, there was also an organization ScumWatch.

Curiously, the police on Law & Order conveyed lines not supportive of "Hard Focus": "train wreck tv" and "problem with your show inciting violence."

As the episode of Law & Order progressed, it became apparent that "Hard Focus" had significant involvement in the murder. It turned out that the true murderer (Hannah Welch) had significant involvement with the producer of Hard Focus, Elle (L.A.?) Harper. Harper was working on a different show "Confront and Heal," and had identified Welch as one who had been raped by Mullaly.

McCoy noted: The distinction between news and entertainment is not so clear. Planting pseudonews on the news without disclaimer is not proper [IPBiz: reminds one of the July 28 "news of the week" in Science; see 88 JPTOS 743]. An event where one of the participants is trained, paid, and armed by the producer is not journalism. It's not entertainment; it's murder.

Harper was convicted of second degree murder.

There was even an IP angle in the show. The lawyer for Hard Focus initially objected to turning over tapes to the prosecutor on the basis that they contained trade secrets.

Law & Order also mentioned Krav Mega.

Med-Rad prevails over Tyco in dispute over RE 37,602

The CAFC concluded that the defect that led to the re-issue patent fell within the plain meaning of 35 USC 251 and reversed the WD Pa. The issue was about supplemental declarations.

Although MedRad ultimately won, the CAFC noted that the cases cited by MedRad were inapposite to the issue on appeal.

Mandel on hindsight in obviousness

Back on August 25, IPBiz alluded to a paper by Gregory Mandel ("Grant Gross did not mention a dramatically different view of the hindsight problem in obviousness, available on SSRN.")

So far Gregory Mandel's paper (Patently Non-Obvious: Empirical Demonstration that the Hindsight Bias Renders Patent Decisions Irrational) has been downloaded 238 times.
A Google search yields the following results on Oct. 20:
Results 1 - 7 of about 9 for +"Gregory N. Mandel" +obviousness.

IPBiz wonders how many briefs to the Supreme Court on KSR v. Teleflex mention Mandel's text.

Business method patents in tax area raise concerns

Further to State Street and business method patents, the International Herald Tribune raises issues with patents in the tax strategy area:

There is even one case pending in U.S. court in Connecticut, in which an organization called the Tax Strategies Group complains that John Rowe, the chairman and former chief executive of Aetna, infringed on its patent by using a certain type of trust to minimize taxes on profits from stock options. The group wants Rowe to be barred from using that strategy unless he buys a license from it.


In an article in Legal Times this week, Paul Devinsky, John Fuisz and Thomas Sykes, who are lawyers with McDermott, Will & Emery, suggested that a company might figure out a tax strategy that would save it a lot of money and then patent it. Then the company could refuse to license the patent to its competitors, thus raising their cost of doing business.

Tax patents, the lawyers wrote, amount to "government-issued barbed wire" to keep some taxpayers from getting equal treatment under the tax code.

Thursday, October 19, 2006

Pfizer's '909 patent removed from litigation with Mylan over amlodipine

Norvasc for high blood pressure faces patent expiry in 2007. In a different set-back to Pfizer, a ruling from U.S. District Court for the Western District of Pennsylvania removes the '909 as a patent that Pfizer can assert against Mylan in a case scheduled to start Nov. 28. Amlodipine Besylate is the generic name for the compound in Pfizer's Norvasc, the proprietary drug.

Pfizer's Chief Executive Officer Jeffrey B. Kindler said:

"As a critical step in our transformation, we are taking a comprehensive look at our costs, and in 2007 we plan to implement a new company-wide cost- reduction initiative that will lower our cost base in 2007 and 2008, as well as give us greater flexibility to modulate our expenses in the face of changing market conditions. These savings will be over and above the $4 billion projected annual cost savings by 2008 from our Adapting to Scale (AtS) productivity initiative. These and other actions mean we expect to deliver average annual growth in adjusted diluted EPS(1) in high single digits over 2007-08. We will focus on enhancing total return to shareholders, and we will leverage our unsurpassed financial strength to enhance our dividend and buy back our stock. For 2009, we expect a return to revenue growth, as the impact of our major patent expirations recedes and the strong performance of a wide range of new products becomes much more prominent in the marketplace."

Mr. David Shedlarz cited Pfizer's recent transactions to illustrate the company's growth strategy through external sourcing. "In the past five weeks alone, Pfizer made three major new investments -- licensing agreements with TransTech Pharma Inc. and Quark Biotech Inc. and an agreement to acquire PowderMed Ltd.," Mr. Shedlarz said. "These are only the most recent of 18 major transactions executed during the past 22 months. And they are only the beginning, as we leverage our unmatched therapeutic breadth and seek out opportunities in new areas. However, as aggressively as we are pursuing these opportunities, we are also exercising financial discipline to ensure that every transaction offers a strong rate of return.

**In terms of relative sales:

Was the hype about stem cells recognized before Prop. 71 passed?

Californiastemcellreport had posted: A recent paper by Tamra Lysaght of the University of Sydney, published in the Australian journal Bioethical Inquiry, examined 99 news stories from the Prop. 71 campaign. Among her conclusions: "Concerns regarding the hype surrounding the potential medical benefits of stem cell research and its implications for public expecations were notably absent from the public discourse prior to the passage of Prop. 71, though they were later noted by a number of scientific and institutional actors.

BUT FloridaBaptistWitness reported: "It's what we've been saying for all this time, and finally they admit the truth-that they're to go through billions of taxpayer dollars in California and still not treat a single patient," David Prentice, senior fellow for life sciences at the Family Research Council, told Baptist Press. "They sold this to the citizens of California primarily based on all of the cures that were going to come through embryo research and cloning.

AND, Lawrence B. Ebert wrote in JPTOS (published March 2006, available BEFORE the Lysagt article):

In this time period, there was a belief that commercializations of the technology lay far in the future. Michael Cook wrote: "The feeling among stem cell entrepreneurs and the venture capital managers who stump up funds for biotech start-up firms is that cures – for conditions such as Alzheimer's and diabetes -- arising from embryonic stem cell research are 10 to 15 years away -- if we are lucky."(68)

Footnote 68: Michael Cook, "Fickle fortunes of biotech biz," The Daily Australian, p. 26 (Aug. 17, 2002). Cook quoted Queensland Institute of Medical Research director Michael Good: "I believe the Australian public has been hoodwinked by the proponents of this research, from a scientific perspective."

Proposition 71 was voted upon on November 2, 2004, more than 2 years AFTER the Cook article. Who's kidding whom about "notably absent from the public discourse prior to the passage of Prop. 71"??

Texas Tech student regent Greenfield resigns over plagiarism matter

The AP reported: Texas Tech University's first student regent resigned Oct. 17 after being accused of plagiarizing several paragraphs in a column he wrote for the student newspaper [the Texas Tech Toreador]. Chad Greenfield, a graduate student from Monahans, Texas, said he regretted having to resign but felt it was best for the university.

The AP report also contained the words "malicious plagiarism": Greenfield said it was a mistake. He said he was sick when he submitted the column and didn't mean to include text of the column without reference. "It frustrates me that it was portrayed as, I guess, malicious plagiarism," Greenfield said.

As one observation, in patent law, "intent" is not an element of patent infringement. One is guilty of infringement if one practices the elements of the claim whether or not one knows about the patent. WILLFUL infringement can lead to ENHANCED damages. In contrast, in copyright law, independent creation is a defense, although a "forgotten" access to the copied work does not amount to independent creation. In the plagiarism business, "forgetting to cite" the primary work has produced a variety of sanctions. One notes that students who fail to cite (at Texas Tech, Ohio University, Princeton, Georgetown) made out a lot worse than professors who fail to cite.

As an additional observation, while copying (without crediting) the work of another is a bad thing, publishing false things is far, far worse. Thus, the publication in the journal Science on July 28 of false things about continuation patent applications is, in my opinion, a lot worse than what Greenfield did at Texas Tech, but it has received a whole lot less publicity.

For an earlier discussion of the Texas Tech matter (including text by Justin Dove), look here.

Of the falsities in the Science article, see 88 JPTOS 743 (Sept. 2006).

Wednesday, October 18, 2006

Maxwell sues Nesscap over ultracapacitors

Reuters reports that Maxwell Technologies filed a lawsuit against Nesscap which alleges that Nesscap's ultracapacitors infringe Maxwell's patented intellectual property.

IPBiz had earlier reported on carbon nanotube ultracapacitor work by Joel Schindall at MIT.


Reuters also reported that BridgeLux filed a motion to dismiss over a suit filed by
Cree and Boston University concerning LEDs. Can you say Bayh-Dole in action?

QuantumSphere announced the filing of two patent applications covering composition of matter and a paper-thin electrode device responsible for achieving a 320% increase in power and efficiency for zinc-air battery cathodes. Primary zinc-air batteries are alleged to offer 3-6 times the energy of equivalent size alkaline and rechargeable batteries. Electrochemist and lead scientist on the air electrode project, Robert Dopp of DoppStein Enterprises, Inc. (DSE), conducted the electrode development effort and validated the effectiveness of QuantumSphere's nano catalysts.

In Gemmy Industries v. Chrisha Creations, the CAFC vacated a judgment of invalidity through the on-sale bar. Gemmy's '843 patent was directed to inflatable holiday figures. Daniel Flaherty was the president of Gemmy.


In Nichols Institute Diagnostics v. Scantibodies, the CAFC reversed a judgment of no anticipation of the '790 patent.


The Beijing No. 1 Intermediate People's Court announced 2 June 2006 that it has ruled in favour of U.S. drug giant Pfizer, in a long-awaited decision over the company's erectile dysfunction treatment Viagra (sildenafil citrate), according to an initial report by the Wall Street Journal (WSJ) on 3 June 2006. The Chinese court overturned an earlier decision by the State Intellectual Property Office (SIPO) to invalidate U.S. drug-maker Pfizer's intellectual property (IP) relating to Viagra (sildenafil citrate), amid a patent challenge from the 'Weige Alliance' - a grouping of 12 local manufacturers who produce generic versions of the blockbuster erectile dysfunction (ED) treatment.

Robert Clarke on the proposed rules change on continuing applications

Further to a discussion of a post on PHOSITA, Robert Clarke made the following observations:

I did say that the Office was still considering the comments and suggestions and that there were many more comments than ever before. I also indicated that no final decisions had been made on the package.

I said the proposed rules were determined previously to be "significant" (not substantive) so we should assume that if the Office went forward with similar final rules they will continue to be treated as significant. One aspect of a "significant" rulemaking is an up to 90 day review at OMB. The review at OMB can result in a return of the package from OMB to the PTO. Note these are standard rule making issues for any "significant" rule making and is not linked to the particular package.

After publication as a final rule there would be at least a 30 delay in the effective date.

I also indicated that the IDS rule could become final prior to the Continuation/Claims proposals.

Given that Director Dudas had already indicated at the IPO annual meeting that no final decisions had been made, the only new "info" on the claims/continuing application proposals provided was how a "significant" rule making differs from a non-significant one.

I think the more critical part of my talk was to highlight the following existing duty from the preamble of the IDS package:

One goal of the changes proposed in this notice is to enable an
examiner to identify the most relevant prior art in an efficient and
expeditious manner, even when an IDS containing a large number of
documents is submitted. The changes proposed in this notice accomplish
this by requiring in certain circumstances additional disclosure about
documents cited in an IDS. Applicants and their representatives are
reminded that the presentation of an IDS, like any other paper filed in
the Office, is subject to the provisions of Sec. 10.18. The reasonable
inquiry mandated by Secs. 10.18(b)(2) and 10.18(b)(2)(i) requires
that information in an IDS be reviewed to assure its submission does
not cause unnecessary delay or needlessly increase the cost of
examination. Failure to review can also implicate obligations of
registered practitioners under Secs. 10.23(b) and (c), and Sec.
10.77(b). Likewise, when an IDS includes several documents of marginal
relevance, combined with other evidence suggesting that the marginally
relevant information was submitted with the intent to obscure material
information, this may run afoul of the duty of candor and good faith
set forth in Sec. 1.56(a). In such circumstance, an inference that the
applicant or their representative attempted to cover up or conceal a
material reference could be drawn. See Sec. 10.18(b); and see Molins
PLC v. Textron, Inc., 48 F.3d 1172, 1184, 33 USPQ2nd 1823, 1831 (Fed.
Cir. 1995) ("burying a particularly material reference in a prior art
statement containing a multiplicity of other references can be
probative of bad faith").


Separately, IPBiz is still trying to figure out what was "news" in the July 28 "news of the week" story in Science by Eli Kintisch. See 88 JPTOS 743 (Sept. 2006) for a discussion of both the errors in the Kintisch article and issues in the rulemaking on continuing applications.

Yonezawa wins case against Hitachi over disc royalties

Further to the story of Nakamura and Nichia over the blue LED, the Supreme Court of Japan on Oct. 17, 2006 acknowledged the intellectual property rights of employees who invent products, and ordered Hitachi to pay ¥163 million, or $1.4 million, to a former worker, Seiji Yonezawa, who invented technology for reading compact discs and digital video discs while working at Hitachi.

Hitachi argued that it had already paid him for the patents.

For more on the blue LED story, refer to http://nesr.esci-va.com/materials/gan/maruska_story.asp

Tuesday, October 17, 2006

FaceKey goes into biometric vending machine market

Further to other posts on biometrics (e.g., here and here, note FaceKey has new patent application entitled "Biometric Access Control System for Vending Machines." that covers a biometric-based mobile device that can provide controlled access to many different types of vending machines.

Possible rule changes on continuing applications pushed into 2007?

Further to the proposed rule changes on continuing applications, PHOSITA noted the following:

Rob Clarke noted at the beginning of the meeting that the proposed rule changes regarding Continuations and Representative Claims are still being considered, that more comments were filed in response to these rules than ever before, and that if they do decide to go forward with the rule changes, they have to be submitted through a special rulemaking procedure because they are substantive rule changes. That internal administrative review will take at least 90 days, and the result may be a refusal to allow the rules to go forward. And after that, it will be at least another 30 days before the rules become final. Rob Clarke did state that he expects the IDS rules to come out before the continuation and representative claims rules.

See also 88 JPTOS 743 (Sept. 2006)

IBM and AARP on KSR v. Teleflex

The KSR v. Teleflex case on obviousness in patent law has attracted a lot of attention. Many people think KSR v. Teleflex is the most significant case in patent law in recent years.

The IBM brief (in favor of neither side) lays out the issue:

Whether the Federal Circuit erred in holding that a claimed invention cannot be held "obvious," and thus unpatentable under 35 U.S.C. § 103(a), in the absence of some proven "'teaching, suggestion, or motivation' that would have led a person of ordinary skill in the art to combine the relevant prior art teachings in the manner claimed."

The IBM brief proposes a test: retain the basic teaching-suggestion-motivation test, but apply a rebuttable presumption that elements found in multiple prior art references would be combined by the skilled artisan, when all of the elements are found in references within the "analogous art." Analogous art is a well-known
and long-established concept in patent law referring to prior art derived
from the field of the problem or invention; it already defines boundaries on the
scope of prior art considered for non-obviousness determinations. See infra pp.
18-19. A patent applicant can narrow and focus the scope of the art to which the
presumption applies, moreover, by narrowing and focusing the scope of the
claimed invention during the patent application process. The applicant
can also rebut the presumption with evidence that a skilled artisan would not
have been motivated to combine the references.

In other words, there will be presumed motivation to combine different references (to meet different claim elements) if the references are in the appropriate analogous art, and it will be up to the patent applicant to present evidence to negate the presumption. Currently, it's up to the USPTO to show there is motivation; in the IBM world it would be up to the patent applicant to show there is no motivation. Where's Abraham Lincoln (a man cannot prove a negative) when you need him?

In footnote 3, the IBM brief cites the Kotzab case to support the assertion: Rather, the Board must point to some concrete evidence in the record in support of these findings.").

footnote 3 --> See In re Lee, 277 F.3d 1338, 1344 (Fed. Cir. 2002) (where the Board
of Patent Appeals and Interferences "rejected the need for 'any specific
hint or suggestion in a particular reference' to support the combination of...
references" and relied instead on the common knowledge of those skilled
in the art, the Federal Circuit held that the Board had omitted from its
analysis "a relevant factor required by precedent [that caused it to commitA] both
legal error and arbitrary agency action"). See also In re Kotzab, 217 F.3d
1365, 1370-71 (Fed. Cir. 2000); Winner Intl Royalty Corp. v. Wang, 202 F.3d
1340, 1348-49 (Fed Cir. 2000).

IPBiz referred to In re Kotzab twice in May 2005. Google did not bother to index either one.


In re Kotzab, 217 F.3d 1365, 1369 (Fed. Cir. 2000) ("The very ease with which the invention can be understood may prompt one to fall victim to the insidious effect of a hindsight syndrome wherein that which only the invention taught is used against its teacher." (internal quotations omitted)).


The AARP/PubPat brief (which did NOT cite Kotzab) stated the following:

A decision in this case will determine whether a claimed invention,
which involves a combination of existing technological knowledge, can be
"obvious" and therefore unpatentable under 35 U.S.C. § 103(a) without proof of some
prior "teaching, suggestion or motivation." The issue is important in the
prescription drug arena because combination drugs either have been or are being
developed for a multitude of diseases. Combination drugs frequently receive new
patents which can eliminate generic entrants from the market for many years,
resulting in a higher cost for prescription drugs.

The AARP did cite Sakraida: This Court has held that a patent that "simply arranges old elements with each performing the same function it had been known to perform" is not patentable even if the combination produces "a more striking result
than in previous combinations." Sakraida v. Ag Pro, Inc., 425 U.S. 273,
282 (1976).

Boogeymen to AARP: The Federal Circuit has outright dismissed this Court's standard for determining the validity of a combination patent. See, e.g., Medtronic,
Inc. v. Cardiac Pacemakers, Inc, 721 F.2d 1563, 1566 (Fed Cir. 1983) (holding
that there is no statutory basis for identifying "combination" patents and
applying a more stringent obviousness test to such patents). By imposing its own
"teaching-suggestion-motivation" test instead, the Federal Circuit has
permitted claims drawn specifically to what this Court has prohibited--a
combination of two old elements with the same function as the individual
elements. See Knoll Pharm. Co. v. Teva Pharm. USA, Inc., 367 F.3d 1381 (Fed. Cir.

The In re Lee whipping boy is brought out. The PTO cannot even use "common sense" to make an obviousness rejection. See e.g., In re Lee, 277 F.3d 1338, 1345 (Fed.
Cir. 2002) ("'Common knowledge and common sense,' even if assumed to derive from
the agency 's expertise, do not substitute for authority when the law requires

Monday, October 16, 2006

CAFC rules in favor of gov in Figueroa v US on fee diversion

The CAFC decided Figueroa v. US on Oct. 11, 2006, affirming the lower court. The CAFC made clear what the issue was: whether Congress may constitutionally impose patent fees in an amount above what is used to fund the PTO. IPBiz notes that the framing of the issue, and the facts in the decision, have impact on the allegations of certain legal academics that the PTO makes a "profit" from reviewing patent applications, and has an incentive to allow most cases to make more profit.

Figueroa, in part, had relied on a Takings argument, and the CAFC cited Commonwealth Edison, 271 F.3d 1327, to dispose of it.

There was a standing issue, and the court cited Lujan, 504 U.S. 555.

The CAFC even cited Eldred v. Ashcroft, 537 US 186, as one indicator of the power of Congress in the area of intellectual property.

The CAFC even noted that the patent system established by Congress need not be limited to the PTO.

Google hits for "patent troll"

A search on Google for +"patent troll" at 9am on Oct. 16, 2006 yielded 84,600 hits.

The hits on the first page were:

en.wikipedia.org/wiki/Patent_troll - 57k
news.bbc.co.uk/1/hi/business/3722509.stm - 38k
www.law.duke.edu/journals/dltr/articles/2005dltr0009.html - 70k [law review]
www.businessweek.com/magazine/content/06_17/b3981070.htm - 58k -
news.com.com/Rise+of+the+patent+trolls/2010-1071_3-5892996.html - 42k -
wiki.ffii.org/PatentTrollsEn - 8k
money.cnn.com/magazines/fortune/fortune_archive/2006/07/10/8380798/index.htm - 50k -
www.cioinsight.com/article2/0,1540,1902291,00.asp - 86k
www.washingtonmonthly.com/features/2005/0506.rothsidebar2.html - 11k -

Techdirt had a hit on page 2:
www.techdirt.com/articles/20051227/1553216_F.shtml - 54k

The first IP blog hit was on page 2:
www.patenthawk.com/blog/archives/2005/03/patent_troll_ho_1.html - 10k

The first IP law firm hit was on page 3:
www.foley.com/publications/pub_detail.aspx?pubid=3632 - 23k

Patently-O appeared on page 6:
www.patentlyo.com/patent/2006/05/what_is_a_paten.html - 57k

Joe Hosteny [Stanford University – A Patent Troll?; Is IBM a Patent Troll? ] appeared on page 7:

One will not find ANY hit for IPBiz in the first 12 pages of the Google search results. [stopped looking after 12.]

UPDATE. Oct. 26.

On Oct. 23:

Not one hit for IPBiz in first 26 pages (260 hits) in the search +"patent reform" +2795.

Only two hits overall:

IPBiz: Where's the discussion of fee diversion?
IPBiz. Intellectual property news affecting business and everyday life ... H.R. 2795 renewed, where is the discussion of fee diversion in patent reform? ...
ipbiz.blogspot.com/2006/03/wheres-discussion-of-fee-diversion.html - 20k - Cached - Similar pages

IPBiz: More on Googling +"patent reform" +2795
IPBiz — The number of hits for + " patent reform " + 2795 dropped to 673 on October 30 at about 8 : 30am , although the IPBiz entry itself is NOT indexed . ...
ipbiz.blogspot.com/2005/10/more-on-googling-patent-reform-2795.html - 19k - Supplemental Result - Cached - Similar pages


Results 1 - 2 of 2 for +"Vai Sikahema" +"Rutgers is Wrong" on Oct. 23.

IPBiz: Plagiarism common in ethics courses!?!
Where has Vai Sikahema's "Rutgers is Wrong" (Aug. 06) gone to?) posted by Lawrence B. Ebert at 7:02 PM. 0 Comments:. Post a Comment · << Home. About Me ...
ipbiz.blogspot.com/2006/10/plagiarism-common-in-ethics-courses.html - 20k - Cached - Similar pages

Where has Vai Sikahema's "Rutgers is Wrong" (Aug. 06) gone to?) posted by Lawrence B. Ebert at 7:02 PM 0 comments. Peanut Butter patents? ...
ipbiz.blogspot.com/ - 101k - Cached - Similar pages

The same search produced only one hit two days later (Oct. 25, 06)

Results 1 - 1 of 1 for +"Vai Sikahema" +"Rutgers is Wrong".

Where has Vai Sikahema's "Rutgers is Wrong" (Aug. 06) gone to?) posted by Lawrence B. Ebert at 7:02 PM 0 comments. Peanut Butter patents? ...
ipbiz.blogspot.com/ - 101k - Cached - Similar pages

Will Thomson's stem cell claims survive an obviousness challenge?

In 88 JPTOS 743 (Sept. 2006) various assertions made by the journal Science about patent law, specifically as to continuations, were questioned. There is also some fuzziness in press coverage of the re-examination challenge of PubPat/FTCR to the Thomson patents of WARF.

From the Wisconsin State Journal at madison.com on October 15, 2006:

A federal review of Wisconsin's embryonic stem-cell patents won't question what everyone concedes: that UW-Madison scientist James Thomson was the first to grow a colony of the cells from humans in a lab. IPBiz notes that the re-examination filing by PubPat and FTCR does question the issue of the novelty of the claims of Thomson, because the filing raises an anticipation argument over US 5,166,065 to Williams. IPBiz noted that Thomson's '780 patent did cite the WORK of Williams: Mouse ES cells maintain an undifferentiated state through serial passages when cultured in the presence of fibroblast feeder layers in the presence of Leukemia Inhibitory Factor (LIF) (Williams, et al., Nature 336: 684-687, 1988). If LIF is removed, mouse ES cells differentiate. Moreover, the '780 patent mentions (and the re-exam request does not mention) a previous failed attempt to isolate hESC using LIF. IPBiz notes that it would be helpful for the popular press to be more specific in discussing what did, and did not, happen in re-examination requests.

The Journal also notes PubPat and FTCR "say the broad patents are impeding research. They argue that the patents should not have been issued because the stem-cell recipe Thomson followed for humans and other primates had already been published for other species.
WARF's stance, that Thomson's work is worthy of patents, "is like saying that just because heating in water works for cooking a chicken egg, it's novel to consider using heating in water to cook a duck egg," said Jeanne Loring, a stem-cell researcher at the Burnham Institute for Medical Research in California.

For starters, the quote uses improper language. Novelty, in the patent world, concerns whether all elements of a patent claim have, or have not, been disclosed publicly prior to the filing of the claim. Novelty relates to the concept of anticipation. The argument made by FTCR and PubPat about "stem-cell recipes" relates to obviousness, not to novelty. Obviousness requires a structural similarity between the disclosed prior art AND a motivation to combine. (see for example In re Dillon).

In KSR v. Teleflex, currently pending before the US Supreme Court, there is much discussion about motivation to combine. Specifically, does the ABSENCE of a motivation to combine correctly indicate NONOBVIOUSNESS?

In the "stem cell recipe" argument made by FTCR, PubPat and Loring, one has a different situation. There was plenty of "motivation" to go FROM a recipe for mouse stem cells TO a recipe that worked for human stem cells. The trouble with this argument is at least #1. years and years elapsed between isolation of mouse and human stem cells and #2. things that worked for mouse cells didn't work for human cells (absence of similarity).

Of point #1, ipkitten.blogspot has some words (from British patent law) that are relevant:

A patentee will invoke industry's failure to act because it will be assumed that had the alleged invention been obvious it would have been made by someone else, and in some cases this assumption is entirely justified — see Vickers v Siddell (1890) 15 App Cas 496, 7 RPC 292, a good example where the invention contributed to safety in forges and the need for safety would have contributed a strong incentive.

In the stem cell biz, "everybody" wanted to isolate human embryonic stem cells, so Loring et al. have much to explain as to "strong incentive" but no results prior to those of Thomson.

Elsewhere, CIRM has yet to come to grips with the intellectual property issue presented by WARF's patents as well as CIRM's own royalty and publication problems.

Californiastemcellreport noted on Oct. 15 of CIRM's Oversight Committe:

Intellectual Property – Discussion was deferred on the policy on intellectual property for businesses, including open access on scholarly publications involving CIRM-funded research. Time ran short at the Wednesday session so IP was taken off the agenda.


In a case of relevance to issues raised in the re-exam, in Old Town Canoe Company v. Confluence Holdings Corp., the CAFC reversed the district court's grant of JMOL on both motivation and undue experimentation fact questions.

In Quinton Instruments v. Impra ( Marhurkar), the CAFC affirmed a decision by Judge Easterbrook (sitting by designation) which, among other things, allowed a claim of priority to a design patent by a later utility patent. An award of damages for lost profits, based on lost sales and price erosion, was found acceptable. The award of damages was consistent with our precedent, see, e.g., Brooktree Corp. v. Advanced Micro Devices, Inc., 977 F.2d 1555, 1578- 81, 24 USPQ2d 1401, 1417-19 (Fed. Cir. 1992); Bio-Rad Lab., Inc. v. Nicolet Instrument Corp., 739 F.2d 604, 615- 17, 222 USPQ 654, 663-64 (Fed. Cir.), cert. denied, 469 U.S. 1038 (1984).

In Wireless v. Sony Ericsson, the CAFC affirmed a denial of a preliminary injunction. Gemstar TV v. ITC, 383 F.3d 152, is cited.

***In terms of obviousness

In the area of IVF, one recalls that the first in vitro fertilization of a human egg occurred in 1944 (John Rock and Miriam Menkin) decades before the first successful implantation and growth of a fertilized human egg. Advancement in the area was set back mainly because one person (Menkin) left the program.

Japan leads the world in global patent applications

WIPO announced on Oct. 16, 2006 that Japan came first in the global patent application ranking in 2004. Next on the list were United States, Europe, South Korea and China.

Total worldwide patent application filings in 2004 were 1,599,000. Total approvals (grants) in 2004 were 600,000 (37.5%).

Sunday, October 15, 2006

Pay for examiners at the USPTO

In the continuing story of problems for patent examiners at the USPTO, the most recent POPA newsletter has some interesting stories.

Previously, Ronald Stern had noted: "There is no problem hiring examiners. The problem is keeping them."

One item on the website:

USPTO Appeals Millennium Pay Decision

Management has decided to appeal the Arbitrator's decision in the Second Millennium Pay grievance. In his Commissioner's Corner column, Commissioner for Patents John Doll attempts to justify the appeal. POPA President Robert Budens provides POPA's response.

The lead story in the newsletter was headlined: arbitrator upholds special rate increase requirements. The story stated that an arbitrator found that the USPTO used "improper and illegal tactics" to avoid giving patent professionals a pay increase.

A separate story concerned an OCIO official saying the office needed to bring in "younger blood" with fresher ideas.

There was also a story on "second pair of eyes review" in TC 1600. There was apparently a compilation of lists of questionable patent examiners.

Previously on IPBiz:

As a separate matter, it may be that patent examiners are working unpaid overtime to keep up with output requirements. From http://www.popa.org/newsletters/aug05.shtml:
"Both my family and professional lives are suffering severely" from working many hours of unpaid overtime to maintain high production, the employee said.

Gemstar sues Digeo

After having sued others over patents, Digeo has now been sued by Gemstar-TV Guide.

From Reuters: The lawsuit says Digeo's Moxi interactive program guide infringes Gemstar-TV Guide's interactive program guide patents. The suit also accused cable operator Charter Communications of deploying Moxi guides.

Gemstar said it filed the lawsuit on Friday after negotiations over a patent license for Digeo failed and the company filed an antitrust lawsuit against Gemstar.

Gerry Van Zandt emailed the following information:

Digeo has not seen a copy of the complaint and, therefore, cannot comment on it. [IPBiz note: under federal law, a complaint (in federal court) can be filed with the court well in advance of service on the defendant.]

Gemstar’s lawsuit is an apparent reaction to the federal antitrust lawsuit that Digeo filed against Gemstar in Seattle, Washington on September 28. Digeo’s lawsuit seeks injunctive relief and damages caused by Gemstar’s anticompetitive business and licensing practices and by Gemstar’s ongoing monopolization and attempted monopolization of relevant markets through exclusionary and unlawful acts. Digeo contends that Gemstar’s anticompetitive practices, including its demands that Digeo accede to unlawful licensing terms, have caused injury to competition, consumers and innovation related to interactive program guides.

Digeo disagrees with a reported statement by a Gemstar executive claiming that Gemstar’s lawsuit was the result of Digeo’s alleged refusal to negotiate. It was Gemstar that demanded anticompetitive licensing terms and refused to provide meaningful options to Digeo. Gemstar’s licensing demands to Digeo only reinforce the legitimacy of Digeo’s allegations in its federal antitrust lawsuit against Gemstar.

Law prof to patent-holding companies: be like Al Capone?

Further to an earlier post on the use of shell companies to reduce tax payments on patent royalties (Merck quietly transferred patents underlying the blockbuster drugs to the new subsidiary), IPBiz notes the idea came from a legal academic.

From the Wall Street Journal
through the taxprof blog

Many of the strategies like the ones used by Merck, Dow and GE were inspired by one man. In 1988, longtime tax attorney and New York University law school professor R. Donald Turlington published an influential article in the proceedings of a tax conference. Subtitled "The Art of Tax Avoidance," the article began with a 1931 quote from the late Chicago Mafia boss Al Capone: "A good lawyer with a briefcase can steal more than ten men with machine guns." In the article, Mr. Turlington laid out ways companies could lower their taxes by exploiting a loophole in the way income was allocated within partnerships for tax purposes.

He focused on the concept of depreciation, a key tool to lowering taxes. For example, in the U.S. a factory is considered to have a finite life of 39 1/2 years and loses its value gradually during that life. An owner is allowed to deduct a portion of its cost each year, so if the factory cost $39.5 million, the company can deduct $1 million a year from the plant's taxable income. But after that, a company can end up with considerable income from the asset and no offsetting deductions. In the case of pharmaceutical patents, tax write-offs generally are used up during research and development.

IPBiz is not sure which article has the Al Capone quote, but one might try:

R. Donald Turlington & Reba A. Beeson, Master Limited Partnerships Current Issues, Techniques and Strategies, in Partnership Taxation 1988: An Advanced Program, 211, 228-30 (1988).

R. Donald Turlington, Section 704(c) and Partnership Book-Tax Disparities, The Ceiling Rule and the Art of Tax Avoidance, 46 Inst. on Fed. Tax'n 26 (1988).

The taxprof blog also had:

* Sad story in today's Chronicle of Higher Education: Baked Professor Is Burned on Blog, Canned by College:

Until earlier today [Sept 29], viewers of BoingBoing, a popular blog, could watch a video clip of a giggling business-school lecturer acting goofy in class, under the heading “apparently-baked biz school prof who was soon fired.” The professor, Howard J. Hall, a lecturer at the University of Florida’s Warrington College of Business, appears in a video still on the site brandishing his middle finger. The video was available through links to the college’s Web site. Next to the photo, the poster wrote: “It appears from the content of this video that this University of Florida professor—whom everyone has to take in the business school—got REALLY REALLY REALLY HIGH before one of his classes.”

Will this show up on YouTube?


Med-chatter has the following text on a Sept. 29 post:

This story appeared in the Wall Street Journal yesterday. It is yet another tale of companies who publically take pride in their "civic commitments to improve society" privately ducking their civic commitments to pay taxes - leaving more of that burden to the ordinary worker (and patient).The Al Capone quote by the professor who "invented" these tax-avoidance strategies is particularly disturbing ("a good lawyer with a briefcase can steal more than ten men with machine guns"):Bermuda Triangle: How Merck Saved $1.5 Billion Paying Itself for Drug Patents; Partnership With British Bank Moved Liabilities Offshore; Alarmed U.S. Cracks Down; 'The Art of Tax Avoidance'Jesse Drucker, Sep 28, 2006. SOUTHAMPTON, Bermuda -- Merck & Co.'s medications Zocor and Mevacor have been used by millions of people to help lower their cholesterol. But Merck also used the drugs to lower something else: its U.S. tax bill.Thirteen years ago, Merck set up a subsidiary ...

Med-chatter also has some text about the cost of litigation in an Oct. 18 post:

A New Jersey judge yesterday ordered Merck to release records on how much it spent on a trial involving its Vioxx painkiller. The information would provide a window into how much Merck spends on its trials, and what its legal defense costs could be in the future. Nearly 30,000 suits have been filed against Merck, which has vowed to try each case involving Vioxx.So far, Merck has reserved $970 million for legal costs and spent $285 million of that last year. Judge Carol Higbee's order stems from a request from plaintiffs' lawyers that Merck pay their legal fees and expenses of roughly $5.6 million for a trial that combined the cases of two men who suffered heart attacks while taking Vioxx. The jury found Merck committed consumer fraud in its marketing of Vioxx, and that finding allows plaintiffs' firms to ask for legal fees. But Merck balked at the expense level, prompting plaintiffs' ...

Separately, one can find a different variant concerning taxes and patents at:


Friday, October 13, 2006

Plagiarism common in ethics courses!?!

Alexander Pruss of Georgetown: "Cheating is sadly common. I catch a case of plagiarism roughly once a year. Ironically, most are in ethics courses."

The Hoya article raises the spectre of student intellectual property rights:

Julia Thompson (SFS ’10), whose high school subscribed to the service, said that she objects to the Web site using students’ work for their own operations without compensation. Turnitin.com retains copies of all students’ papers it receives as part of the database against which it checks students’ work. “I don’t like how the work I’ve done is saved online without my permission,” Thompson said. “That should be my choice.”

Curiously, the article does NOT mention
litigations involving plagiarism and Georgetown University (e.g., 274 F. Supp. 2d 71), or, for that matter, litigations involving plagiarism and other universities

Of student rights, the University of Buffalo Reporter noted:

John Ringland, associate professor and director of undergraduate studies in the Department of Mathematics, spoke about recent developments, including a Canadian student suing McMaster University in Hamilton to prevent his papers from being submitted to Turnitin, that "make it timely to think a little a harder about our participation in this service."

"There's a question whether this procedure actually violates rights the students have in their own work," Ringland said, noting that as a result of the successful lawsuit by the student, "The policy at McMaster is that participation in Turnitin is entirely voluntary. Students can opt out of it. I don't know if the U.S. courts will take a similar position on that or not, but it's certainly a possibility."

***Where was Debra Street during the Laurence Tribe incident?***

"I think all of us can sense plagiarism when it happens; we have hunches, we know our fields," Debra Street said. "Actually, doing a competent Google search...typically finds the brilliant piece of plagiarism. I like to start a class with the assumption that if I treat students respectfully, they will be respectful back. And I remind them of that every time they hand in a paper and exam. This is a little too 'Big Brother' for me."

IPBiz asks Debra Street: how many years elapsed before the plagiarism of Laurence Tribe was uncovered? How about the thesis of Martin Luther King which plagiarized a thesis at Boston University and which was reviewed by a professor at Boston University who did NOT see the plagiarism?

The most brilliant piece of plagiarism will hardly be that which is findable on Google (and as noted elsewhere on IPBiz, Google is not doing a good job of indexing. Where has Vai Sikahema's "Rutgers is Wrong" (Aug. 06) gone to?)