Saturday, September 29, 2007

Of Poshard's plagiarism and SIU's W.D. Wallis

Back on September 18, IPBiz quoted the Daily Iowan on the Poshard Plagiarism Potboiler:

Poshard has reacted to the allegations openly and with acceptance of their seriousness, and he has aggressively sought their public dismissal.

A different blog refers to the SAME actions in the following manner:

Poshard and his supporters have so far offered a shockingly weak defense, and have done so under the pretense of addressing this problem in a forthright and cooperative manner.

The blog (correctly) predicts Poshard will survive:

Is it likely to play out this way? I doubt it. The process seems already to be muddled and confused. There is no clear precedent. The matter is being smothered by committees. Past instances of plagiarism by administration officials have been ignored. Poshard’s strategy seems to be to defend his character and motives without offering any real defense of his dissertation, and that might work. If he’s determined not to resign, and he isn’t bothered by the bad publicity (or subjected to any real pressure by those who are), then the only opinions that matter are those of the University’s Board of Trustees. Poshard seems confident that they won’t turn on him. He may be right about that.


An interesting sideshow to the Poshard plagiarism matter originates in an opinion piece in the Southern Illinoisan by an SIU professor W.D. Wallis.
Wallis purports to address the issues of the function of a doctoral committee and why plagiarism is important: Clearly some Southern Illinoisan readers and even some SIU students, faculty and administrators do not understand the role of a doctoral committee, the importance of a doctoral dissertation, and why plagiarism is important. Wallis fails in his objectives.

Wallis argues that the thesis committee has NO responsibility to detect copying of the words of others: When they recommend a degree, they are saying that this person deserves a degree on the basis of the evidence presented. If the evidence is fraudulent, then action is up to the University, not the committee. If the thesis committee, made up mostly of people who have some familiarity with the topic of the thesis (i.e., chemistry professors will comprise the bulk of the committee for a student offerring a dissertation in chemistry) can't spot "word-for-word" copying from texts of relevance to the thesis, then such members have no reason for being on the committee. One might as well have everyday folks if the technical people don't know the technology.

Wallis fails miserably in explaining "why plagiarism is important." For HIS authority, Wallis goes to a website, One notes the text: is the educational arm of iParadigms LLC. iParadigms is the marketer of turnitin software used to detect plagiarism. Thus, rather than going to an academic site for his authority on plagiarism, Wallis goes to the educational "arm" of a commercial vendor of plagiarism detection software. BUT Wallis does not even quote the site appropriately.

The site has the following text:

But can words and ideas really be stolen?
According to U.S. law, the answer is yes. The expression of original ideas is considered intellectual property, and is protected by copyright laws, just like original inventions. Almost all forms of expression fall under copyright protection as long as they are recorded in some way (such as a book or a computer file).

All of the following are considered plagiarism:
turning in someone else's work as your own
copying words or ideas from someone else without giving credit
failing to put a quotation in quotation marks

IPBiz points out that the website is saying that "words and ideas" can be "stolen" according to U.S. law. The website is very clearly referring to copyright law. IPBiz notes that the website then shifts gears to things which are considered plagiarism, WITHOUT linking to U.S. law. As IPBiz and others have repeatedly noted, copyright infringement and plagiarism are entirely DISTINCT concepts.

Wallis, however, cites for the following proposition:

A student sometimes cheats in a dissertation by stealing somebody else's work. This is called plagiarism. Under U.S. law, this includes "copying words or ideas from someone else without giving credit, failing to put a quotation in quotation marks, (and) changing words but copying the sentence structure of a source without giving credit" (from

Wallis did not accurately cite the page, which did NOT link "U.S. law" to "plagiarism."

To try to weasel out of his predicament, Wallis wrote the following: I did not cite text from US law. As stated in the article, I am quoting from One assumes that this is a summary of the law. IPBiz notes that Wallis did not actually "quote" what said, which separately was not intended as "a summary of the law."

To summarize:

Of the remarks by Wallis --I did not cite text from US law. As stated in the article, I am quoting from One assumes that this is a summary of the law.--

#1. the quoted words "copying words or ideas from someone else without giving credit, failing to put a quotation in quotation marks, (and) changing words but copying the sentence structure of a source without giving credit" do appear at as examples of plagiarism.

#2. includes the words "U.S. law" in the following way: But can words and ideas really be stolen? According to U.S. law, the answer is yes. The expression of original ideas is considered intellectual property, and is protected by copyright laws, (...)

#3. did not summarize U.S. law on copyright infringement.

#4. did not state that plagiarism was copyright infringement.

#5. Plagiarism and copyright infringement are distinct, non-coextensive concepts.

#6. is the educational arm of iParadigms LLC, the vendor of turnitin software.

Of the Daily Iowan editorial, one notes few are talking about the Belichick matter anymore, but the Poshard matter just roils along.





Thursday, September 27, 2007

The invention changed the world, but where was the patent?

Further to discussion of Shockley and of the transistor history, IPBiz notes the existence of a book The Invention that Changed the World that does not mention the word "patent". Although the invention discussed is radar, the book delves into the transistor story, although not mentioning the patent saga or the name Lilienfeld.

Some quotes relevant to the problem of the absorption of microwaves by water (recounted to me in first year chemistry at the University of Chicago):

At page 237: "It appeared that Van Vleck, who would later win a Nobel Prize, had been off the mark."

On page 340: "No one heeded the junior scientist's [Townes'] warning."

p. 342: "Policy makers had ignored Townes's warnings about how water vapor absorption might disrupt radar."

The long ago UofC lecture had made it appear that the people in the radar program were unaware of the water absorption problem with K band microwaves for radar, when in fact there had been a study by Van Vleck which was inaccurate. Later warnings by Townes (also to win the Nobel Prize) were apparently ignored.

The book also has text relevant to Townes and "freedom to research" at the Bell Labs of the 1940s:

At page 344: [Townes] had also failed to convince Bell management his spectroscopy work was important enough to warrant additional researchers. The head of the physics department had even admonished him for persisting with requests for a bigger budget: "you've made a lot of people annoyed because you are talking about what you would like to do. You ought to be talking about what is good for the company."

Author Robert Buderi really missed the boat in the transistor saga by not recognizing the early work by Lilienfeld.

Taxable bonds from CIRM for embryonic stem cell research

On September 7, 2007, the Bond Buyer had written:

Two days later [Sept. 27], the state [California] plans to price $250 million of taxable, variable-rate general obligation bonds for its stem cell medical research program with Morgan Stanley as senior manager.

The californiastemcellreport had a post on Sept. 26:

We asked Tom Dresslar, a spokesman for the state treasurer's office, which handles the bond sales, about the transaction costs of doing such business. He told us that final figures for the stem cell bond sale will not be available until after it takes place. Then we asked him for some benchmark figures for a typical $250 million bond sale.

Here is his breakdown:
"Total -- Approximately $1.6 million

"Bond counsel and co-counsel -- $175,000

"Tax counsel -- $117,000

"Rating agencies -- $142,000

"Underwriting fees -- $818,000

"Various other costs comprise the balance."

The report also noted: Tom Dresslar, spokesman for the state treasurer's office, points out that the minimum buy-in is $5,000.

IPBiz notes that as the bonds go "up for grabs," no scientist has yet accomplished what Hwang Woo Suk claimed in his first or in his second paper in Science, both of which now stand retracted. Human SCNT has not been accomplished.

John Doll on state of the patent system

Patentdocs has a rather critical assessment of a recent lunchtime talk by John Doll, Commissioner for Patents at the USPTO.

Specifically, concerning peer-to-patent, patentdocs wrote:

As mentioned by the luncheon audience, the likelihood that a competitor will try to manipulate the [peer-to-patent] system against an applicant is high, and the Office appears to be uninterested in the consequences of this possibility..

Of patent grant rate, patentdocs wrote:

Also provided were statistics relating to the patent allowance rate (which the Commissioner explained was determined by dividing the number of allowed patents by the total of allowed patents, abandoned patents, and patents for which there was prepared an Examiner's Answer on appeal, at which point the application was considered "disposed" to the Board of Patent Appeals and Interferences). This rate has varied over the same 32-year time period from a high of a little more than 70% to the current low of less than 50%, and the Commissioner predicted that rate could be expected to further decrease in view of the new examination guidelines for applying the Supreme Court's KSR decision.

Ecards from multiple users

ZDNet highlights Apple's application 2007/0226305:

A newly published Apple Patent application entitled eCards from multiple users appears to describe technology that may point to Apple offering e-cards where multiple users could digitally sign the card.

The Patent application specifically refers to an “ecard website” where this could be done- and most interestingly, also refers to gift such as a music player that could be given to a recipient, with multiple signers to the ecard accompanies this gift.

Is this a profound invention?

Incorrect assertion of "plagiarism law"

The following comment in the Poshard matter at SIU was sent to the Southern Illinoisian on September 27, 2007:

The text by Wallis:

This is called plagiarism. Under U.S. law, this includes "copying words or ideas from someone else without giving credit, failing to put a quotation in quotation marks, (and) changing words but copying the sentence structure of a source without giving credit" (from

is seriously in error. There is NO U.S. law which has the text cited by Wallis. In fact, under the Supreme Court Dastar case, anyone can claim to be the author of non-copyrighted work, such as Shakepeare's Hamlet or the movie "It's a Wonderful Life" without violating federal law.

[Refer to]

The Wallis citation brings up a more fundamental issue. Thesis committees and editors alike have to take responsibility for knowing their own fields. If they don't have the ability to recognize "word-for-word" copying in their own fields of expertise, then how will the public be protected from perpetual re-inventions of the wheel? Separately, of fraud, recent tricksters such as Jan-Hendrik Schon and Hwang Woo-Suk were caught, in part, because they used duplicated graphs and figures, hoaxes which could have been caught by anyone who was truly studying their work. Journal editors at Nature were warned of problems with Schon's published work, but decided to ignore the warnings.

Lawrence B. Ebert, Ph.D., J.D.
September 27, 2007

[The above text was IMMEDIATELY rejected by the Southern Illinoisian as being "spam." No wonder they have such problems in Southern Illinois: truth is considered spam, and falsities are publishable. Through the looking glass?]

As a different twist, here is the first comment actually published upon the Wallis article:

Jed Rothwell wrote on Sep 27, 2007 10:12 AM:

" You wrote: "In science, a competent cheat can fabricate evidence and fool editors and colleagues. (Remember cold fusion?" You are suggesting that the evidence for cold fusion was fabricated, or fraudulent. This is incorrect. The cold fusion effect was replicated at high signal to noise ratios by researchers at China Lake, Amoco, SRI, Texas A&M, Los Alamos, Mitsubishi Res. Center, BARC Bombay, Tsinghua U. and hundreds of other world-class laboratories. Hundreds of positive, peer-reviewed papers on cold fusion were subsequently published in mainstream journals. I suggest you review this literature before commenting on this research. You can find over 500 full text reprints of scientific papers from all of the institutions listed above, and many others, at our web site: There were a few incidents of fraudulent data in cold fusion but they were in the other direction: fake negatives. For example, after researchers at MIT attack cold fusion, they observed excess heat in their own experiment. They altered the data and published a version showing no excess heat. - Jed Rothwell Librarian, "


Of the comment below:

Your comment was not rejected by It appeared later. There is apparently a considerable delay before comments are posted there.

I noted your comments here because you quoted me.

IPBiz notes that after about five (5) submissions to the SouthernIllinoisan, one variant of the above comment was printed, without any reference to the distinction between copyright and plagiarism. Additionally, followup comments were NOT published by the SouthernIllinoisan. Thus, the comment below is not entirely accurate as to what happened with commentary on the Wallis piece. The SouthernIllinoisan did NOT publish all commentary.

Rothwell is invited to read the IPBiz post of Sept. 29, the salient points of which were submitted to the SouthernIllinoisan but which never have appeared as a comment. Although the text on copyright/plagiarism is a bit tricky in the way it is presented, it does NOT say what Wallis said. Separately, of the substantive issue, there is no federal law with the text quoted by Wallis. Separately, quoting a commercial internet site ( is run by iParadigms, the people who sell turnitin) for a legal proposition is risky behavior.

Wednesday, September 26, 2007

Lex Luther challenges Howard Berman on patent reform, HR 1908

Of Howard Bermans's willingness to listen to critics of HR 1908, one IPBiz reader wrote:

I was told that Berman was trying hard to prevent that [Kamen testifying during the hearings on patent reform of the 110th Congress.] In his subcommittee hearing before HR 1908 was introduced, Berman said that a representative from the inventor community was invited but was "unable to come" to the hearing due to "last minute" conflicts. He also promised that there will be an opportunity for inventors to contribute to the record.

Lex Luther, a macaw, has challenged Berman to allow Luther to speak on the defects in H.R. 1908.

Lex Luther, macaw

When Lex Luther doesn't understand something, he says "What?", giving him an immediate leg up on Berman. Further, when Luther sees something he likes, he says "Wow!", suggesting a discussion with Lex might be more interesting than Berman's hearings on H.R. 1908 to date which have amounted to a cheerleader contest in Texas. Someone reportedly heard Luther mutter under his breath that Berman's slavish devotion to the advancement of patent interests only of the IT industry was giving "parrots a bad name."

Lex Luther practicing for going up the steps on Capitol Hill.

See also discussion on IPFrontline about Berman's Feb. 2007 hearing.

Newsweek on electric vehicles

The October 1, 2007 Newsweek has a puff piece on hybrid vehicles. Newsweek discusses Dave Vieu of A123systems and Carl Lawrence of Hybrids-Plus, in addition to V2G technology.

See also

"It's the battery." Thomas Edison was going to solve the problem 100 years ago, and we're still waiting.

Law School creates Giant Microbes?

Drew Oliver of the University of Chicago Law School founded GiantMicrobes, Inc., which makes stuffed animals designed after microbes such as H. Pylori and Giardia.

"The Attack on Intellectual Property Law - Is It Justified?"

On September 27, Andrew Beckerman-Rodan presents a talk at Clason Speaker Series at Western New England College School of Law: "The Attack on Intellectual Property Law - Is It Justified?"

Bodog and 1st Technologies contest patent

In a sequel to "scalping patent trolls," online-casinos in BODOG TO APPEAL NEVADA PATENT RULING IN OCTOBER has a post which runs through a variety of patent (trademark?) issues. It must be read to be appreciated. The patent involved is 5,564,001.

The final line: succinctly observes: "Raymond Niro sues first, settles fast, and collects millions..." [Another mention of Raymond Niro appears on the 271 blog in the post Troll Tracker: Tracker of "Patent Trolls", Blogger . . . Patent Infringer? ]

Of patent litigations, patenthawk had noted in Nov. 2006:

In fact, the number of patent litigations doubled between 1991 and 2004 before dropping 11% last year.

ManagingIP noted:

With the new focus on IP has come an even greater rise in the number of patent litigations filed in federal district courts throughout the United States (see chart 2).

Chart 2 shows patent litigations at 2,500 in the year 2000, at 3,000 in the year 2004, and indeed dropping below 3,000 in the year 2005.

IPBiz notes that when one realizes that patent litigations are in the range 2,500 to 3,000, numbers for re-exams in the range of 100's do not justify the term "rarely used." PatentHawk observed:

The PTO recently released reexamination stats through 3Q of the fiscal year (ending June 2007). Both ex parte and inter partes filings are heading towards record totals. 477 ex parte reexam requests have been filed year-to-date, compared to 340 last year; a 40% jump. Inter partes reexam outings more than doubled: 90 versus 40. 70 requests were filed for all of fiscal 2006.

Further, note that re-exams pertain to questions of validity, whereas an accused patent infringer may simply argue non-infringment. Patent litigations are broader in scope than are re-examinations.

Vonage loses VoIP case to Sprint Nextel

New Jersey-based Vonage, having lost a patent case to Verizon, now has lost to Sprint. Vonage shares dropped one third.

Forbes reported on 9/25:

After three weeks of testimony and two days of deliberations, the Kansas City jurors determined that Vonage deliberately violated the patents. U.S. District Judge John Lungstrum could triple the damages if he agrees with the decision.

The damages were $69.5 million for infringing on six of Sprint's patents.

**See also AP report on Verizon case-->

Vonage Patent Ruling Partly Upheld, which included:

The U.S. Court of Appeals for the Federal Circuit [CAFC], which hears patent cases from around the country, partially upheld the March verdict [in the Verizon case], directing the trial court to reconsider the verdict on one of the three patents. It also remanded the damages and royalty awards for the lower court to decide.

The awards were remanded because the lower court did not specify which portion of the damages was attributable to which patent, Blair Levin, an analyst with Stifel Nicolaus, said in a note to investors.

The appeals court found that the district court improperly construed part of the third patent, which involves wireless access to Voice over Internet Protocol (VoIP) service. Vonage spokesman Charles Sahner said the technology pertains to less than 10 percent of the company's customers.

Economic implications of patent reform

While Senator Leahy's staff was meeting on patent reform, the following also happened on September 24, 2007 in Washington, DC:

8:30 a.m. - 12:15 p.m. BIOTECH PATENTS — The American Enterprise Institute hosts a forum, “Biotechnology and the Patent System: The Economic Implications of the Proposed Patent Reform Act of 2007.”

9 a.m. Panel I: The Patent System and Biomedical Research. Panelists: Ashish Arora, Heinz School, Carnegie Mellon University; Richard Johnson, Arnold & Porter; and Mark Rohrbaugh, NIH Office of Technology Transfer.

10:25 a.m. Panel II: The Patent Reform Act of 2007. Panelists: Robert Armitage, Eli Lilly and 21st Century Coalition; Mark Chandler, Cisco and Coalition for Patent Fairness; E. Anthony Figg, Rothwell, Figg, Ernst & Manbeck and ABA; and Bryan Lord, AmberWave and Innovation Alliance. Moderator: Ted Frank, AEI.

Location: Wohlstetter Conference Center, 12th Floor, AEI 1150 17th St. NW.

***Of Richard Johnson-->

In addition to receiving his JD from the Yale Law School where he was editor of the Yale Law Journal, Johnson received his MS degree from the Massachusetts Institute of Technology where he was a National Science Foundation National Fellow.

***Rohrbaugh has noted:

The NIH Office of Technology Transfer administers over
1,500 active licenses and approximately 2,400 patents and
patent applications. In fiscal year 2002, we received more than
$51 million in royalties from licensees. This accounts for
about two-thirds of the royalties collected by all Federal
laboratories combined.

This leads me to a brief discussion of the Bayh-Dole Act of
1980, which applies to recipients of Federal funds. As you
mentioned, Mr. Chairman, the Act provides incentives to move
federally funded inventions to the private sector where they
benefit the public. With a few exceptions, the legislation does
not prescribe methods to be used in the licensing of these
inventions, but the institutions must agree to pursue practical
application of inventions, and to provide the U.S. Government
with a royalty-free right to use the inventions for government

Tuesday, September 25, 2007

Supreme Court will hear Quanta v. LG Electronics

The Supreme Court announced it will hear the case Quanta v. LG Electronics.

AP describes the case in the following manner:

The case was brought by a group of Taiwanese computer makers, who have accused a South Korean rival [LG Electronics] of using its patents in an effort to "shake down the entire computer industry for several billion dollars in duplicative licensing fees."

At issue is whether a patent holder can seek royalties from multiple companies as a patented product works its way through the manufacturing process.

See the previous IPBiz post.

of the patent exhaustion aspect

Another cornfield swastika near Trenton, New Jersey

JACK KNARR wrote in The Trentonian on Sept. 25:

Authorities are trying to find out who cut a huge Nazi swastika into a picturesque corn field here just off Hankins Road near South Lane, along “the last vista left in Washington Township,” one resident said.

“Oh, God, this is the third time!” exclaimed Esther Everett, mother of Richard Everett, the West Windsor farmer who rents the fields from Bryce Thompson Realty.

Mr. Everett was dumbfounded to hear that someone had once again desecrated his fields — hand-cut, over several acres. The last swastika was 130-by-130 feet.

“You’re talking a lot of work,” he said. “That’s not easy. If he’s that ambitious, I’ll give ’im a job!”

Everett said the dirty work had been done on fresh fields.

A youthful hate gang calling itself “The Crew” in North Hanover, Burlington County, did a variety of no-jail “punishment” after authorities charged in 1996 they had terrorized area African Americans by carving a swastika in a Mansfield cornfield, throwing dead animals on porches and eggs at houses, and spray-painting “KKK” on Mary Street.

One of the “Crew,” 20-year-old Ryan Kennedy, was the son of North Hanover Deputy Mayor and Police Commissioner Pat Kennedy. Another gang member, Jeffrey Harvey, 22, was the son of town clerk Elaine Hinkle.

ALEX ZDAN wrote in the Trenton Times on Sept. 25:

This is not the first time the cornfield bordered by Hankins Road and South Lane has been de faced. A 130-foot-square swastika was carved in the field in July 1998. And a bigger 600-by-600 foot ver sion of the Nazi emblem was found in a nearby cornfield at South Lane and Hankins Road near the West Windsor border almost a year later. No arrests were ever made.

The newest swastika was discovered Friday [Sept. 21, 2007] by a State Police helicopter, which stumbled onto the cut-out during a maintenance mission. Police say it covers several acres.

IPBiz had earlier written of the Nazi bunker in Hamilton, NJ.

SIU plagiarism matter good for legal recruiting?

An article in the SIUDE contains the lines:

Not all students agree that the reputation of the university [SIU] is on the line, though.

Lance Camp, a second year law student from Loda, said he has actually seen an increase in employers seeking students from the law school.

"I think our administration has done a great job to increase SIU's profile, both at the law school and at the university wide level..."

The SIUDE also notes:

Jones and Adams said large portions of plagiarized text tend to be obvious because the style and language change.

"It would be easy to catch since we have the Internet," Adams said.

Adams teaches 100-level English classes and said he uses to check his students' work, which was not available when Poshard's 1984 dissertation and 1975 master's thesis were written.

"It's hard to see how it's going to play out and what the implications will be," he said. "We live in a time when Brittany Spears and Lindsay Lohan's latest exploits or Paris Hilton's latest stint in jail are seemingly more important than anything else," he said. "It's hard to know how long these issues will last."

IPBiz agrees with the last line. Who remembers the Laurence Tribe plagiarism matter these days? Fewer still recall the matter with the Ph.D. thesis of Martin Luther King at Boston University.

A letter to the Southern Illinoisian made the following point:

bugler wrote on Sep 25, 2007 12:50 PM:

" Whether Poshard "is well-educated" is the whole question. Jerianne has a good point, the dissertation section is supposed to be analyzing the work others have done. But the words he is accused of stealing consist of other people's ANALYSIS of the literature. If his accusers are correct, he stole analysis. He is not being accused of stealing original results, he's being accused of stealing his literature/research summary. That would be plagiarism, if true. You can't assert that he's innocent without more information. It is possible to plagiarize in your "Review of the Literature." That's why an investigation is necessary. "

IPBiz previously noted that one Poshard non-quote was NOT in the "Review of the Literature," and that is problematic. Hopefully, the original aspects of the Poshard Ph.D. thesis are NOT in the section on "review of the literature" and SIU could do a Boston University/King defense to the thesis.

Johnson & Johnson loses to Boston Scientific over coated stent

Johnson & Johnson tried to prove non-infringement of a claim of a Boston Scientific patent by asserting that J&J's product did NOT have a "non-thrombogenic" coating, that is, a coating that does not cause clots. Presenting evidence that J&J's accused product (Cypher) has a significant clotting problem, J&J tried to evade the scope of Boston Scientific's claim, although perhaps, in so doing, J&J might not be encouraging users of Cypher.

Going back to earlier discussion on IPBiz, the judge noted that the FDA had concluded that it was not clear whether the drug-coating or some other aspect of the devices was at fault. Thus, J&J's argument failed at trial court, and J&J infringes.

The current situation evokes memories of the patent wars in the early radio industry. The juries in the stent cases have decided that each company has infringed patent claims of patents owned by the other. Sort of a Mexican standoff that might require a licensing solution.

[BARNABY J. FEDER of the NYT has coverage.]

Monday, September 24, 2007

Sen. Leahy's staff holds meeting on patent reform on 9/24?

A release by PIUSA suggests that Senator Leahy had a meeting on patent reform on September 24:

Senator Leahy's staff is conducting an insider meeting today between 2 and 4 PM.

Trying to patent an older idea with a new employer?

Steven Sereboff attempts an answer to the following question:

A few years ago, I submitted about one dozen patent leads to a previous employer; they were all ignored. One idea in particular was probably not suitable for implementation by that employer at the board and module level.

I am now working for a major chip design company, and I submitted the same idea for patenting, which appears to be more feasible on a chip. This company is interested and started the patent process. I told the patent attorney about having applied the idea before to another company. He concluded that because there was disclosure of the idea in written form, it was legally a trade secret belonging to my former employer and could be prosecuted as theft of trade secrets, so we have not proceeded.

I recently did a search of patents issued and pending that are assigned to my previous employer, and nothing even close to my idea is in there. Is there any chance of patenting this idea now?

and brings up the story of Dr. Lukas van Ginneken who left Synopsys to work at Magma.

Recall also the story of Ewen, Fina, and Exxon.

Recall also the story of Joe Jackson and patent attorney Michael R. McKenna. As an aside, LBE has been attempting to contact Rev. C.L. Sparks, without any success.

**From IPBiz in September 2004 on Ewen:

--> John Ewen on Ewen:

I wanted to do academic research but my pedigree was not good enough to get a teaching position at a University. I therefore pursued employment in a long range oriented group at Exxon where I formulated some of my early research proposals. When Exxon eventually rejected some of my dearest ideas as impractical I moved on to be a plant chemist and pursued them as a hobby at night while working at Fina. What inspired me? Simple: The skepticism of those around me and the desire to succeed. I needed to be right and above the prejudices against my pedigree. The academic standards needed to be wrong. I would never quit. I needed to prove that my ideas were worthwhile.


"I am deeply honored to receive this recognition from the President of the United States," Ewen said. "It is gratifying to realize the benefit that has resulted in our daily lives as a result of metallocene technology -- creating thousands of jobs worldwide and enhancing everyday items such as golf balls, medical IV bags, CD oysters, food wrapping, luggage and automobile parts, clothing, and more."

Wheelbarrows of stem cell research papers, containing trivia?

IPBiz notes the following words which appear on californiastemcellreport:

All it takes is a handful of folks like Reijo-Pera to make a bigger difference than a wheelbarrow of research papers involving relative trivia, although I may be overstating the case a bit.

IPBiz notes that one has to watch the wheelbarrows containing patent applications.

More noise in area of Wi-Fi patents

David Meyer of ZDNet writes of Wi-Fi patents:

Australia's government-backed research body, the Commonwealth Scientific and Industrial Research Organisation (CSIRO) has, for a long long time, been battling with the major Wi-Fi vendors over patents it holds in OFDM technology.

OFDM is integral to 802.11a/g and, now 802.11n, the high-speed, high-bandwidth etc etc latest version of the Wi-Fi standard that is notoriously yet to be set in stone by the IEEE. Now it looks like that process might be held up, because CSIRO are back, and apparently refusing to promise not to sue those who use its patented technology in their products.

IPBiz asks: does the fact that CSIRO brought suits in ED Texas against the likes of
Microsoft, Hewlett-Packard, Intel, Apple and Netgear qualify CSIRO as a patent troll?

Meyer also wrote: the IEEE will have a statement about this mess later this week...

Patent philosophy in the car industry

John Scott-Thomas has an article in EETimes titled Silicon in autos stirs patent plans which includes the text:

The automobile is transforming from an essentially mechanical device to an electrical one. In 1980, electronic equipment made up less than 1 percent of the cost of a vehicle. In 1990, this had grown to 7 percent, and in 2007, it's 22 percent.

IPBiz notes that the automobile industry tends to buy finished products (in the electrical realm) from third party vendors, rather than developing these products itself, which is relevant to patent infringment considersations (indemnity?).

Scott-Thomas also notes:

The large difference in IP culture between the two industries has a number of causes. The semiconductor industry has always had an active IP licensing policy. R&D costs are high. Technical innovation causes rapid obsolescence in semiconductors, and profitable product cycles are often measured in months. As well, reverse engineering and advanced measurement techniques enable reliable technical support for patent infringement. Aggressive patent licensing is natural in this environment, and semiconductor companies are experienced in this. Notably, Freescale, Infineon and ST all have large product lines outside the automotive sector and are accustomed to active licensing campaigns.


A common licensing strategy in semiconductor campaigns is to use a semiconductor patent to negotiate a license with a "downstream" product vendor. Downstream products incorporate the offending semiconductor device. For example, if a patent assignee can assert the patent against an integrated circuit (IC) manufacturer, and that circuit is used in a cell phone, the assignee can apply to the larger cell phone maker (and concomitant larger revenue stream) for further compensation.

The high silicon content in vehicles exposes auto companies to this tactic. Automobiles can be reverse-engineered to provide technical support in the same way semiconductor patents are analyzed.

IPBiz notes that folks such as Intel are the ones pushing for "weak patents" in patent reform 2007. IPBiz also notes that Scott-Thomas did not mention the Selden patent, or Henry Ford's take on patents.

Puffery on peer-to-patent? Drew Carey to head USPTO?

Andrew Schrock has a puff piece ("Opening Up the Patent Process") on peer-to-patent in the MIT Technology Review. The piece includes the text: harness the power of online collaboration to streamline patent review. Sounds like a tv game show in the making; Drew Carey as director of the USPTO?

See also:

Inadvertent Argument Against Peer-to-Patent

On a separate, but related point, note a thread at the New York Times on patent reform, which begins with the opposition of the IEEE to the current bill [HR 1908]:

IPBiz wanted to make a comment at the technologyreview website ( but a detailed registration process is required (Ironically, one of the commenters TO the Schrock piece complained about navigating the USPTO website!!).

Anyway, Schrock wrote:

Amazon's 1-Click patent describes how a single button press by a customer performs an immediate online purchase. It was granted in 1999, but Peter Calveley's grassroots campaign in 2006 led to a post-grant examination. He publicly criticized the patent in his blog and collected donations online to pay for the reexamination fee. The prior art and previous patents he uncovered proved to the patent examiners that, rather than being innovative, 1-Click described a common way for online retailers to conduct business using established technologies. Calveley's case demonstrates the drawbacks of the USPTO system: an unworthy patent nearly made it through the vetting process because the examiner didn't have access to prior art and enough technical knowledge to make the correct determination.

For those interested in what REALLY has happened, a re-examination was granted on US Patent 5,960,411, and the most recent event in that re-examination (90/007,946) was the filing of a supplemental IDS by Rajiv Patel of Fenwick & West on 5 September 2007. There has been NO Office Action in the re-examination, so that one may really question the accuracy of Schrock's statement: The prior art and previous patents he uncovered proved to the patent examiners that, rather than being innovative, 1-Click described a common way for online retailers to conduct business using established technologies. This is just one more example illustrating that those advocating peer-to-patent are totally clueless on what is happening at the USPTO. They don't understand how a re-examination works. Noveck has illustrated that she does not understand the concept of prior art, as detailed in Inadvertent Argument Against Peer-to-Patent.

Separately, see an entry on the igdmlgd blog.


IPBiz got a mention in Patent Baristas: Should Peer-To-Patent Review Be Made Compulsory? [Posted October 1st, 2007 by Stephen Albainy-Jenei]

Hillary Clinton turns up everywhere on Sunday morning, Sept. 23, 2007

Someone looking at the Sunday morning news shows on September 23, 2007 found Hillary Clinton on CBS (Meet the Press), NBC (Face the Nation), and ABC in the realm of 10:30am on, wearing a brown outfit with pearls, with a book backdrop. Who says you can't be at more than one place at the same time?

Anne E. Kornblut of the Washington Post discussed some of the material, and noted:

Clinton did two hours of interviews by remote from a furnished barn in her back yard in Chappaqua, N.Y., part of an aggressive media blitz in the week after she offered up her plan for universal health-care coverage.

Tim Russert employed the usual Russert format for illustrating inconsistencies in Clinton's position on a scheduled withdrawal from Iraq.

But see Clinton campaign kills negative story

Sunday, September 23, 2007

Student government at SIU monitoring the Poshard situation

Ann Niccum had a piece on the Poshard matter at observing that SIUE student government leaders wanted people to know that they are "monitoring the situation."

IPBiz notes that most of the accusations of plagiarism in the Poshard Ph.D. thesis are in a section on previous work. Thus, although Poshard may not have given appropriate credit, Poshard himself was not taking credit for previous work in failing to appropriatly cite others in a section on previous work.

IPBiz got a comment from a reader:

Per your discussion of Poshard thesis, most "failures to cite" were in
one review section:

Maybe in this brave new world of cut/paste, it would be very easy to
move text from a region with citation, to a separate page without
citation. Ten minutes to 10 years later, no one can figure out where
initial location and citation are located.

just a random thought.

IPBiz notes that when Poshard did his Ph.D. thesis, cutting meant using scissors and paste meant using paste. Someone has already commented on the technology available at the time Poshard did his thesis, noting that making a mistake about a citation would have to be pretty deliberate. Of course, does the fact that it is easier to "cut and paste" NOW offer a defense to not citing to other people's work?

In all of this, IPBiz notes that there are levels of badness. Not citing the work of others is bad. Taking credit for the uncited work of others is worse. HOWEVER, publicizing FALSITIES (as in saying Gary Boone invented the integrated circuit) is still worse. Some members of the public will be tricked into believing something that is NOT true. As far as IPBiz can tell, what Poshard wrote was true, or at least arguably true. In contrast, there is no argument at all that Gary Boone did NOT invent the integrated circuit. Furthermore, the case of Hyatt v. Boone bears no similarity to what happened in the actual case on the inventorship of the integrated circuit, which case involved Noyce and Kilby.

Saturday, September 22, 2007

Ranbaxy drops Hatch-Waxman challenge to Novartis' Diovan

The HinduBusinessLine reports: Ranbaxy Laboratories has dropped its patent challenge of Novartis AG’s hypertension drug Diovan.

The Gurgaon-based company has changed its Para IV application with the US Food and Drug Administration, into a Para III application, committing not to sell its generic version of Diovan before its patent expires in September 2012 or is invalidated before the date. Generic makers file Para IV applications challenging the validity of the innovator’s patent.

Ranbaxy had filed a Para IV challenge against the patent covering ‘valsartan’, the active ingredient of the hypertension drug. Following which the Swiss company, filed a suit against Ranbaxy in August claiming infringement of its patent.

Novartis is reported to have asked a federal court in Newark, New Jersey, on Friday, Sept. 21, 2007, to drop the case.

Diovan is Novartis’ biggest seller; it notched up sales of $2.4 billion in the first half of the year accounting for 20 per cent of the company’s sales.

Pfizer wins at CAFC in Neurontin/gabapentin matter

In another chapter in the Neurontin (gabapentin) story, Reuters reported on Sept. 21:

Pfizer Inc said a federal appeals court [CAFC] overturned a lower court ruling [D NJ] that several generic-drug makers did not infringe its patent on gabapentin, the active ingredient in Neurontin, a shingles-pain treatment.

Pfizer said the ruling will allow it to seek a judgment of infringement and, if successful, pursue full compensation for the damage it suffered from the 2004 launch of generic versions of Neurontin.

IPBiz notes that the story was reported by Supantha Mukherjee and Neha Pathania in Bangalore.

The details of charges against Poshard of SIU

The August 30 SIUDE [Daily Egyptian] had laid out some specifics of the issues of improper citation within Poshard's Ph.D. thesis. One thing that is troubling is the following:

On page 54 of his dissertation, Poshard appears to have modeled his chapter summary, without citation or quotations, after a passage from author James Gallagher.

The last time Poshard cites Gallagher is on page 49, leaving Poshard at a loss to explain the nearly verbatim text on page 54.

"Unless I just failed to cite it," Poshard said. "What else can I say?"

Page 54 of the thesis might seem to be in the "original" as opposed to "background" portion of the thesis, and a reader might have the expectation that unquoted (or not footnoted) portions were original thoughts of the thesis author.

HOWEVER, note that the SIUDE also says:

All but one of the suspect sections is in the 41-page second chapter, entitled "Review of Related Literature."

Although it is not a good idea to fail to give proper cites to "prior art," it is separately true that incomplete citations in a "review" section do NOT cause the reader to think the thesis author is claiming prior work as being original to the thesis author. The same point could be made about many of the charges against former students at Ohio University. It's not good to fail to cite, but in a review or background section, the author is NOT claiming the work as his/her own.

A different portion of the SIUDE article had the text:

Tricia Bertram Gallant, academic integrity coordinator at University of California, San Diego, said by most contemporary standards, Poshard's dissertation contained instances of unquoted verbatim text and insufficient citation.

However, Bertram Gallant, who viewed the report without knowing the author's name, said there is no academic consensus on the definition of plagiarism and special citation rules sometimes apply to a thesis, on the graduate or undergraduate level.

IPBiz agrees that there is no single accepted definition of plagiarism. This was recently illustrated vividly in the Cha / Kim matter involving a duplicate publication in the journal Fertility & Sterility. HOWEVER, given that many theses are made publicly available (not only AT the school but also through services such as University Microfilms), a thesis author should NOT be able to rely on "special citation rules" which would be unknown to a member of the public who obtained the thesis WITHOUT knowledge of the special citation rules.

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

Friday, September 21, 2007

Science discusses Trounson appointment as head of CIRM

The journal Science discusses the appointment of Trounson as head of CIRM in the September 21 issue, 317 Science 1667.

See also

Separately, for those interested, Trounson is a named inventor on US 6,875,607, which is based on application 09/436,164, filed 9 Nov. 1999. The patent is assigned to ES Cell International Pte Ltd. The '607 patent does cite to

US 5843780 issued December 1998 to Thomson

Bongso is also a named inventor on the '607 patent. The FIRST named inventor on the '607 patent is Benjamin Eithan Reubinoff.

Claim 1 of the '607 states:

A method of modulating the differentiation of undifferentiated, pluripotent human embryonic stem (hES) cell in culture, comprising providing a fibroblast feeder layer which has been selected based on its ability to induce differentiation of undifferentiated, pluripotent human embryonic stem (hES) cells in culture, and growing said undifferentiated, pluripotent human embryonic stem (hES) cells on said fibroblast feeder layer, wherein said fibroblast feeder layer modulates the differentiation of said undifferentiated, pluripotent human embryonic stem (hES) cell in culture.

The '607 includes the following text:

James Thomson and coworkers (1998) derived ES cells from surplus blastocysts donated by couples undergoing treatment for infertility. The methodology used was not very different from that used 17 years earlier to derive mouse ES stem cells: the trophectoderm, thought to be inhibitory to ES cell establishment, was removed by immunosurgery, the inner cell mass was plated on to a mouse embryonic fibroblast feeder cell layer, and following a brief period of attachment and expansion, the resulting outgrowth was disaggregated and replated onto another feeder cell layer. There were no significant departures from mouse ES protocols in the media or other aspects of the culture system and a relatively high success rate was achieved. The phenotype of the cells was similar to that outlined above in the human EC studies of Pera et al.

To date, no US patent has cited the '607 patent.

Separately, in a discussion of a study by Benjamin E. Reubinoff, M.D. PhD., Principal Investigator, Hadassah Medical Organization, one finds the statement:

It has been proposed that the essential characteristics of primate ES cells should include (i) derivation from the preimplantation or periimplantation embryo, (ii) prolonged undifferentiated proliferation, and (iii) stable developmental potential to form derivatives of all three embryonic germ layers even after prolonged culture (Thomson, 1996). We have derived stem cell lines from early human embryos that meet these criteria (Reubinoff et al., 2000). Our group was second in the world to derive hESC lines, and the first to show their potential to undergo somatic differentiation in vitro (Reubinoff et al., 2000).

To exploit the remarkable potential of hESCs, improvement of currently used methods for culturing and manipulating the cells as well as controlling their differentiation are required. In this context, we have developed novel approaches to cryopreserve (Reubinoff et al., 2001), to genetically modify (Gropp et al., 2003; Ben-Dor et al., 2006) and to control the differentiation of hESCs cells (Reubinoff et al., 2001, Itsykson et al., 2005).

Human ES cell lines are derived from embryos produced by in vitro fertilization (IVF) for clinical purposes. Surplus frozen embryos that are no longer required for infertility treatment are recruited for this purpose after donor informed consent and institutional/national review board approvals are obtained. The embryos are thawed and cultured to the blastocyst stage (5-6 days), the inner cell mass (ICM) comprised of pluripotent cells is isolated, and the stem cells are most commonly cultured on mouse embryonic fibroblast feeder cell layer. The feeder layer is required to prevent differentiation and to promote the proliferation of the stem cells.

Of infertility clinics in Britain, note:

This clinic moved to the Mile End area of London before being closed down by the HFEA in the early 1990s. Dr. Jack Glatt, who ran the clinic is now known as Jack Gilliat. Please list as much identifying information as possible, as donor numbers may not be enough. Also, visit

***On Reubinoff at UCSB:

US companies using existing stem cell lines include BioTransplant, Aastrom Biosciences
(Nasdaq:ASTM), StemCells Inc. (Nasdaq:STEM), OrganoGenesis (AMEX:ORG) and Nexell Therapeutics

Hadasit Medical Research Services and Development promotes and markets the intellectual property
generated by the Hadassah Medical Organization. Israeli start-up Embryonic Stem Cell International
(ESI) was founded in July 2001, just before the official NIH policy directive on stem cell research. ESI
developed out of research by Dr. Reubinoff, and three colleagues from Australia, the Netherlands and
Singapore. The researchers developed a technique to develop embryonic stem cells from surplus
embryos, “in order not to waste them”. ESI’s discovery earned it a $10 million investment, at a $20
million company value, from Life Science Investments of Singapore and ES Cell Australia Pty Ltd. ESI’s
first market is a treatment for Parkinson’s disease, and the company is trying to develop stem cells for
the pancreas and heart. ESI has signed a development agreement with Quark Biotech (QBI) to use
QBI’s proprietary technology platform to discover new genes such as growth and cell differentiation
factors derived from embryonic stem cells.

Sun-Times runs quotes critical of Poshard/SIU: Poshard survival at issue?

The Chicago Sun-Times included the following text in discussing the plagiarism allegations against SIU President Poshard:

"This is very damaging to his [Poshard's] status as a person on campus who all the students can look up to as an example of integrity in academic and personal life," said Charles Lipson, a University of Chicago political science professor and author of Doing Honest Work in College, a guidebook used at hundreds of schools nationwide. "I don't see how he can survive this as a leader of a university."

Margaret Soltan, an English professor at George Washington University who earned her Ph.D. at the U. of C., called SIU a "laughingstock" on her University Diaries blog.

"Things were looking up for that university, but now, with the Poshard case and all the others, I think they've suffered a serious setback,'' she said in an interview.

Terry Clark, a member of the executive council of the faculty senate and chairman of the marketing department, admits the school has to "address some image issues. It's not good.''

The school's response hasn't helped, some said. The SIU board of trustees has known about the allegations for months; chair Roger Tedrick has publicly defended Poshard. Although the chancellors at the school's Carbondale and Edwardsville campuses were accused of using previously published work without proper attribution, neither faced significant repercussions. A school committee said former Carbondale chancellor Walter Wendler committed "intellectual dishonesty," but Poshard specifically said the findings were not the reason Wendler was asked to later step down.

On Sept. 21, the SIU Daily Egyptian noted:

Despite two accusations of plagiarism against SIU President Glenn Poshard, the Board of Trustees reiterated its support for the president on Thursday [Sept. 20].

After a board meeting in Edwardsville, chairman of the board Roger Tedrick said Poshard was hired two years ago because the board had confidence in his ability to move the university system forward.

"He has done nothing to undermine that confidence," Tedrick said in a statement.

The Belleville News-Democrat noted:

Under Poshard's contract, he can be fired from his $291,764-a-year job as president of the university system if the trustees decide his actions draw disrespect to the university.

The deal permits the board to oust Poshard for any conduct "that constitutes moral turpitude, or that would tend to bring public disrespect, contempt or ridicule upon the university."

See also

IPBiz reminds folks that Laurence Tribe survived his plagiarism episode without leaving Harvard Law School.

The unintended consequences of HR 1908 are harmful to innovation

Frank Davies of the San Jose Mercury News covered the recent efforts of Innovation Alliance against the unintended, bad consequences of HR 1908.

Dean Kamen was quoted: "You don't shut down the national pastime of baseball because some players are using steroids. You can go after 'trolls' and other bad actors without unintended consequences that are harmful."

The mechanism of post-grant review within HR 1908 was challenged:

The inventors and CEOs from more than a dozen companies said they object to a provision in the House bill that would allow companies to challenge patents after they are awarded in a new administrative review process.

"This would lead to less certainty, further delay in securing a valid patent, and expose emerging companies to meritless or commercially motivated challenges by deep-pocketed rivals," the Innovation Alliance, a coalition of groups opposing elements of the bill, said in its analysis.

See also Post-Grant Opposition: a Bad Idea

The lack of preparedness among some in Congress was mentioned:

"Two days before the House vote, I was at a meeting with 20 to 30 staffers who were trying to learn this stuff in one day," said Bruce Bernstein, chief intellectual property officer for InterDigital, which makes wireless systems. "My concern is that we're going to get something jammed down people's throats."

IPBiz notes that many staffers get their viewpoints from Jaffe and Lerner's Innovation and Its Discontents, which is probably NOT a good idea:

Getting the Patent Reform Wars on Track


The post-grant review procedure proposed in HR 1908 ("a provision in the House bill that would allow companies to challenge patents") is predicated on an undemonstrated assertion of a pervasive "lack of quality" in issued U.S. patents. When the National Academy of Sciences (NAS/STEP) investigated this assertion, they stated at page 3 of their report: "The claim that quality has deteriorated in a broad and systematic way could be, but has not been, empirically tested. Therefore, conclusions must remain tentative." Congress should not be acting on "tentative conclusions." In fact, when more detailed analysis of the "lack of quality" conjecture was undertaken, the conjecture was found wanting.

See the following articles available on IPFrontline:

Getting the Patent Reform Wars on Track
Patent Grant Rate Lower Than Many Academics Think

Lawrence B. Ebert
author of On Patent Quality and Patent Reform
Bridgewater, New Jersey
September 21, 2007

Thursday, September 20, 2007

Issue of confidentiality of experts in patent cases

Robert J. Ambrogi has an article at IPFrontline titled Ruling Endangers Expert Confidentiality which discusses issues in a case brought by Nidec Corporation against Victor Company of Japan.

Patriots' (illegal) sideline videotape collection destroyed

The Canadian Press has reported: The NFL has received and destroyed all materials it requested from the New England Patriots concerning videotaping of opponents' sidelines. A league statement Thursday said the team was in compliance with a request for tapes and other documents. "The Patriots have fully co-operated and complied with the requirements of the commissioner's decision," the statement said. "All tapes, documents and other records relating to this matter were turned over to the league office and destroyed, and the Patriots have certified in writing that no copies or other records exist.

Of the radiofrequency issue (possibly): When asked if the Patriots' defensive players also used microphones or other recording devices in their shoulder pads to pick up Jets audibles, NFL spokesman Greg Aiello said: "We have no evidence to support that claim."

See also

HR 1908: bad for start-up companies?

In an article titled: Patent law overhaul: Bad for start-ups?, Anne Broache discussed some efforts by Innovation Alliance to convey the message that the proposed patent reform legislation (HR 1908) will devalue patents and discourage investment, by making it easier to challenge patents and more difficult for patent holders to receive the damage awards they believe they deserve in infringement suits. [Dean] Kamen, for one, said the bill would be bad for anyone like him who holds many patents but does not actually build his own products, leaving that instead to deeper-pocketed companies through licensing arrangements.

IPBiz notes text of Shanna Winters, chief counsel to Congr. Berman:

"From the beginning, Mr. Berman reached out to independent inventors to try to get their perspectives and in fact made a number of changes to the bill based on what the independent inventors asked for," she said, adding that an inventor was asked to testify at a hearing about the bill earlier this year but was unable to attend.

In the full text version of GETTING THE PATENT REFORM WARS BACK ON TRACK, LBE had written:

On February 15, 2007, Congressman Berman opened a hearing on patent reform with the statement that there needs to be “an effort to improve patent quality, deter abusive practices by unscrupulous patent holders, and provide meaningful, low-cost alternatives to litigation for challenging patent validity.” Those testifying that day included Adam Jaffe, a co-author of the book Innovation and Its Discontents, and Mark Myers, Co-Chair of the National Academy of Sciences' study on intellectual property (The Patent System for the 21st Century). In a hearing that was supposed to develop the case for the need for patent reform, the testimony amounted to re-presentation of old, and questionable, arguments, but no one was speaking on February 15, 2007 to present alternative analyses. This paper is directed to such, to address the above-noted line: "But I'd like to see if other people agree."

There was much opportunity for Congr. Berman to obtain alternative viewpoints to the "input" he got on February 15, 2007, but Congr. Berman was not listening. In fact different issues have been raised: Did Howard Berman strong arm opponents of his patent reform bill, HR 1908?

IPBiz thanks a few Congressmen from New Jersey, who did take the time to listen.

Broache also wrote:

Perlman, who now runs a venture called Rearden Companies that bills itself as an "incubator of art and technologies," knows something about having his inventions scooped up by bigger firms. After all, Microsoft bought his WebTV venture back in 1997.

Although Perlman admitted he was "late to the party" and only found out about the patent reform proposal after it passed the House two weeks ago, others present at the press conference claimed the bill's sponsors have been ignoring the interests of engineers and inventors more generally. (Kamen, for his part, has testified at patent law-related hearings in recent years.)
[Kamen was not at the hearing on February 15, 2007.]

Slashdot mentioned the meeting of Kamen et al. and one commenter wrote:

I really don't understand what effects this proposed tweak to the patent system will have. I expect no one really does: the system is so unjust and complicated that it needs to be ripped out by the roots and replaced by something simple that merely "promotes science and the useful arts", without infringing our rights to free expression (including copying) more than is absolutely necessary to protect essential commerce. But if these rich guys are protesting the tweak, which would reduce their own protection (and evidently increase the rights of the rest of us to invent freely, using other inventions), then it starts to look like the reform is at least worth trying. Because they're making their money off their monopolies under the current law, and didn't seem to be so motivated by its existing injustice as to protest the old way, or to propose a workable new regime that protects the rest of us as well as it's protected them.

IPBiz notes: like they say at the Harvard Business Review --> plagiarize with pride!

SIU committee gives definition of plagiarism

Further to the report in the Daily Iowan on the Poshard matter, the SIU Daily Egyptian discusses a definition of plagiarism created by a committee at SIU:

Plagiarism is defined as presenting existing work as one's own.

IPBiz notes that IF that is the controlling definition, THEN copying one's own work without attribution IS plagiarism. That would place what SIU Wendler did in the past as plagiarism by the current definition.

See also

And of the Daily Iowan's connection of the Patriots' videotaping to Poshard,


note that the SIU report distinguishes plagiarism from cheating.

SEPARATELY, IPBiz will discuss inadequacies in the Daily Iowan editorial at a future date.

Starbucks sued for patent infringement; Microsoft beats At Home

The Seattle Times reported on 20 Sept 07: Starbucks was sued for allegedly infringing another company's patented design for a nonelectric coffee maker.
Bodum USA, based in New York, accused Seattle-based Starbucks of copying its silver-domed glass carafe design and selling the copy as its own "Anniversary Press" coffee maker. Both products are available in the U.S., according to the complaint filed Wednesday in federal court in Chicago. The suit seeks more than $10 million in damages.

SEPARATELY, the Seattle Times also reported on a CAFC decision favorable to Microsoft:

Microsoft won its bid to have a patent-infringement lawsuit by creditors of defunct Internet service provider At Home thrown out.

The U.S. Court of Appeals for the Federal Circuit in Washington ruled Wednesday [Sept 19] that a trust set up to pay At Home's creditors lacked authority to sue Microsoft over a patent they received in payment of bankruptcy claims.

The court ruled that U.S. patent law, not bankruptcy law, governs who has power to sue over patents transferred to help pay off a bankrupt company's debt.

Wednesday, September 19, 2007

Should SIU conduct the Poshard review within SIU?

The SIU Daily Egyptian has an editorial on Sept. 19 titled "Get Your Tickets," which includes text that a fifth grader could figure out that an evaluation outside of SIU was needed.

One commenter said this issue is not one of plagiarism, but of fairness.

A different commenter stated that no real university would handle this via an internal committee. IPBiz recalls Harvard handled the Laurence Tribe incident (and other plagiarism matters) via an internal group, and Boston University, after being told by Stanford of the King matter, reviewed the King matter itself. Of course, at SIU, one is dealing with the SIU president, which complicates things.

Qualcomm changing its tactics (not strategy) on patent litigation?

Bartash has an article in MarketWatch talking about Qualcomm adjusting its patent litigation tactics although the article doesn't really explain what would be changing.

CEO Paul Jacobs is quoted as saying patent reform (ie, HR 1908) favors large established companies over innovative companies. IPBiz says: not surprising in terms of who is advocating the bill.

Roy Mark in eWeek has an article Qualcomm again in ITC's crosshairs concerning the Nokia business.

Science: why do team-authored papers get cited more?

The Sept. 14 issue of Science has commentary on an earlier May 18 paper by S. Wuchty et al. on why team-authored papers get cited more than solo papers.

Alexander Bentley of Durham University writes: "In demonstrating the increasing dominance of teams in academic and patent publishing, Wuchty et al. use a circular argument regarding scientific progress, defining impact as 'the number of citations each paper and patent receives.'

Bentley continues: In academic publishing, authors clearly COPY THE CITATIONS FROM OTHER PAPERS... With COPYING underlying much of popular cultural change, the real question is, how does number of citations relate to quality? [IPBiz has added the emphasis]

In defense of the paper Wuchty of Northwestern includes an argument:

Second, a self-promotion argument does not explain the team citation advantage for patents, where citation decisions are primarily made by disinterested third-party experts, with a citation to J. Alcacer in Rev. Econ. Stat., 88, 774 (2006). As IPBiz and LBE have both noted, economists are not the best source of information on patent law and regulations. A patent applicant can submit a 1449 form and those references will appear within the references cited.

See 317 Science 1496-8 discussing an artilce on page 1036 of the May 18, 07 issue of Science.

***Separately, see various prior IPBiz posts on citation issues.

For those interested, the 14 Sept issue of Science also carries an article "Checkers is solved by J. Schaeffer et al. 317 Science 1518.

Tuesday, September 18, 2007

"Daily Iowan" gets it wrong on cheaters

In an editorial titled --The care and feeding of cheaters--, the Daily Iowan compares the Patriots/Belichick matter to the SIU/Poshard matter, and seems to come out more favorably to Poshard:

Poshard has reacted to the allegations openly and with acceptance of their seriousness, and he has aggressively sought their public dismissal. Belichick has turned up his nose at the press upon questioning, preferring to talk instead about his opponents and, in doing so, simply encouraging further speculation. Whether both end up guilty of the accusations made, it should be remembered that where there is smoke there is usually fire.

IPBiz has been discussing both matters, and finds the analysis of the Daily Iowan to be flawed. IPBiz will be returning to this. In the meantime, note SOME relevant IPBiz posts-->

On the Patriots:

On Poshard:

NJBiz criticizes patent reform (HR 1908)

In NJBiz, Thomas Gaudio wrote:

Topping the list of concerns among biotechnology companies is a provision that “would require the courts to calculate [patent infringement] damages by only taking into account the value of the particular improvement to the prior art [what was known about the invention before the patent] instead of the entire value of the product,” says Robert Paradiso, head of the life sciences patent practice at the law firm Lowenstein Sandler in Roseland. Patent infringement damages are typically based on lost sales or what the infringer would have paid the patent holder in royalties for licensing the patent, he says.

Paradiso gives the following scenario: A company has a new version of a drug whose improvement to its predecessor is that the medicine is released over time, instead of immediately, to have a longer-lasting effect. The controlled-release drug has annual sales of $100 million while the immediate-release version has annual sales of $75 million.

Under the current law, if the controlled-release drug is infringed and the company loses $100 million, the violator would typically be ordered to pay $100 million to the patent holder. The proposed legislation says the infringer would only be charged $25 million, or the difference between the products’ revenues.

Some blogs have written that the favorable House vote was BECAUSE the controversial provision on damages in HR 1908 was amended. IPBiz notes that this is not clearly the case. There may have been promises to change it LATER and there may have been strong-arming by Congr. Berman.

Monday Night Football flops on Patriots' videotaping

On Sept. 17, 2007, Monday Night Football tried to used videoclips of Ron Jaworski from 1975 to illustrate what the Patriots were doing. It merely illustrated that MNF is clueless about the archival nature of the Patriots' sin. The whole "defense" of the Patriots was that they were NOT using the clips during the current game. Jaworski illustrated the impact on a current game of sign-stealing.

Charles Barkley was Jaworski's set-up man, perhaps asking the right question, but getting the wrong answer. The right answer was "No, Charles, the videotaping had no impact on that game."

See also
Goodell on NBC on Sept. 16 about Patriots' videotaping of Jets

Patent litigations and settlements around 17 Sept 07

AT&T was ordered to pay $156 million after losing a jury verdict in a patent infringement case brought by TGIP Inc. over technology related to activated calling cards, which case was tried in the Beaumont division of the infamous United States District Court for the Eastern District of Texas. [The case had been brought against the old AT&T, prior to the SBC merger. Due diligence? See Reuters.]

SEPARATELY, TruePosition (Berwyn, PA, of LibertyMedia of Englewood, Colo) prevailed in a patent infringement suit against Andrew Corp. in D. Delaware, winning 45.3 million in damages concerning a patent directed to a method of locating wireless phones.
[Philly BizJournal]

MEANWHILE, Angiotech Pharmaceuticals, Inc. , announced on 17 Sept 07 that it reached a favorable agreement [settlement] with Johnson & Johnson's subsidiary, Conor Medsystems ["Conor"] to settle all outstanding patent litigation with respect to Conor's CoStar(R) paclitaxel [TAXOL] stent. [See CNN Money

ADDITIONALLY, Cree and Nichia reached an agreement which covers some of Cree's technology related to white light-emitting diodes as well as the company's nitride lasers, used primarily in colored LEDs. [see bizjournals]

Monday, September 17, 2007

Congr. Mike Kirk got it right on H.R. 1908

The Daily Herald had a "letter to the editor" by Jack Strom criticizing Congr. Mark Kirk for voting against HR 1908. Strom says: Lately, patent law has been widely seen to stifle innovation rather than encourage it. Far too many frivolous patents have been filed as a means to unfairly limit competition. Sounds like Strom has a case of Laffe/Jerner-itis. Strom should consider himself lucky that he has a Congressman who could see through the voodoo math of the patent "quality" folks.

EETimes has an article touching on the lack of coordination in patent reform.

Rick Merritt's article begins: The U.S. patent system is shifting under a building head of political steam. But just what all the changes and their fallout will be is still unclear, given the lack of coordination among those driving the changes in Congress, the courts and the patent office itself.

The House passed a broad and controversial patent reform bill on Sept. 7 that aims to raise the quality of patents and reduce patent litigation and abuse. A companion bill could come before the Senate within a month, setting up a tussle among legislators, lobbyists and the administration on a final bill.

Some critics have already slammed the House legislation. For one thing, they said, a handful of decisions in the past year from the nation's top courts have already rendered some of the legislation's mandates redundant or unnecessary. (...)Ocean Tomo CEO James Malackowski complained that there has been "virtually no" coordination in Washington on patent reform.

Pharmtech had the following on H.R. 1908:

Specifically, the Patent Reform Act of 2007 would grant patents to the first to file, rather than the first to invent, and would change how damages are calculated—including no longer considering the full value of a product. Some say this change, along with the bill’s post-grant review policy, which allows only one opportunity to challenge a patent, will make it more difficult for inventors to prove willful infringement on patent claims, according to Associated Press. IPBiz suspects that paragraph is filled with non sequitors, as it is not clear what those factors would have to do with proving willful infringement. Of post-grant review, HR 1908 had PREVIOUSLY been changed to eliminate the "second window" BUT inter partes re-exam (which can occur ANYTIME in the patent's life) was beefed up.

OpenCongress posts recent blog articles on H.R. 1908 ( Blog articles for H.R.1908).


Email confidentiality issue in flap about poll over whether Poshard should resign

The SIU Daily Egyptian discussed the poll by the Springfield State Journal Register about whether or not SIU President Poshard should resign over plagiarism charges.

An issue is the involvement of Poshard friend Hugh Muldoon who apparently emailed people urging them to vote "no" in the poll.

The SIUDE noted:

As a friend of Poshard's for more than 20 years, Muldoon said he felt he could help by sending the messege.

"Him coming into the presidency was a breath of fresh air for me," Muldoon said. "His passion, his vision, his commitment have been unparalleled. So when I see this opportunity for the university under threat and at risk, I feel something."

IPBiz notes that the primary matter at hand is whether or not Poshard conformed to proper citation practices at the time of his graduate work. The university is not under threat. If, hypothetically, Poshard did not conform to proper practices, SIU could determine what, if anything, to do with Poshard. Laurence Tribe committed plagiarism, and is still at the Harvard Law School. The treatment of the thesis of Martin Luther King at Boston University is even more directly on point.

The SIUDE also noted:

He [Muldoon] said responses to the e-mail varied from support to discomfort at participating in the poll to frustration that the focus is on plagiarism and not larger world issues.

University spokesperson Mike Ruiz [University of Chicago Law School, 1993] said the university would not take an official position or comment on what any person sent from his or her personal e-mail address to another.

"I don't think employees would want the university to comment on that," Ruiz said.

Goodell on NBC on Sept. 16 about Patriots' videotaping of Jets

The interview with NFL Commissioner Roger Goodell on NBC (Sept 16, 2007 at 8pm eastern) seemed to indicate that the penalties against the Patriots were for rules violations involving old-fashioned technology, videotaping. Goodell did NOT talk about radiofrequency issues.

HANK GOLA of the New York Daily News stated:

As Patriots fans were giving Belichick a rousing standing ovation before last night's game against the Chargers last night [16 Sept 07], NBC reported the Jets probably will ask the NFL to look into the Patriots' use of unauthorized radio frequencies. There have been reports the Patriots were wiring their defensive players' helmets to pick up the quarterback's audibles, a practice that could be especially beneficial against no-huddle offenses such as the one the Jets were using.

Furthermore, although Goodell, during the 16 Sept 07 interview, declined to discuss Belichick's argument that his videotaping was allowed, Gola did discuss it:

That was the crux of Belichick's argument - that his "interpretation" of the rule meant he could not apply the video data on that particular day.

IPBiz notes that this might explain why the topic of the Patriots' forfeiting the Jets game is not coming up. The rules violation, as to videotaping, did not impact that game. The "radiofrequency issue," which Goodell did not discuss, might be a different matter, assuming the charges are accurate.

MARK FARINELLA of the SUN CHRONICLE mentioned the radiofrequency issue:

Back on ESPN, Mortensen said the commissioner is also expected to issue a memo to all 32 NFL teams to reinforce existing rules about radio frequencies in use by the teams during the game.

Some teams have complained that their sideline headsets regularly go out in games against the Patriots at Gillette Stadium. This past week, the league office also questioned team officials about four radio frequencies they were utilizing, three of them suspicious.

Farinella also got into audio issues:

NBC's Andrea Kremer also reported Sunday that the New York Jets have asked the league office to investigate accusations that the Patriots trained high-powered microphones at their defensive linemen as part of the effort to steal signals in Sunday's game.

Karen Guregian of the Boston Herald mentioned:

[Charley] Casserly claimed that along with videotaping opposing coaches, the Pats are allegedly jamming the other team’s radio signals.

NBC commentator Chris Collinsworth criticized Goodell's decision:

"I think Commissioner Roger Goodell blew this one. Bill Belichick should have been suspended without question. The violation of the league rules occurred in this football season and yet the punishment hit only their wallets and future draft choices. There is nothing that impacted this season. He should have been suspended for at least the Jets game because that's where the violation occurred and, in my opinion, a playoff game. This was a great opportunity for the Commissioner to lay down the law like he's done with the players and he didn't do it."

Goodell made clear that he was looking more to future deterrence than to punishment of a particular past infraction.

Re-examination of patents of StemCells, Inc.

A press release of September 17, 2007 noted: StemCells, Inc. today announced it will begin a patent-reexamination process with the U.S. Patent and Trademark Office (PTO) following the agency’s decision, which was expected, to preliminarily reject all claims in the company’s four patents which are the subject of its lawsuit against Neuralstem, Inc.

Part of the press release is of relevance to the re-exam of WARF patents brought by John Simpson and FTCR:

“We fully expected the PTO’s preliminary decision. In a patent reexamination, the patent office will routinely reject all claims under reexamination in order to shift the responsibility of proof back to the patent holder. We remain confident that we will be able to reaffirm the novelty of these inventions and that broad claims protecting the manufacture and use of neural stem cells will emerge from this process,” said Martin McGlynn, president and chief executive officer of StemCells. “At that time, we will press forward with our case against Neuralstem.”

IPBiz had noted in April 2007:

In patent prosecution the examiner is entitled to reject application claims as anticipated by a prior art patent without conducting an inquiry into whether or not that patent is enabled or whether or not it is the claimed material (as opposed to the unclaimed disclosures) in that patent that are at issue.[21] In re Sasse, 629 F.2d 675, 681, 207 USPQ 107, 111 (C.C.P.A. 1980) (“[W]hen the PTO cited a disclosure which expressly anticipated the present invention . . . the burden was shifted to the applicant. He had to rebut the presumption of the operability of [the prior art patent] by a preponderance of the evidence.” (citation omitted)). The applicant, however, can then overcome that rejection by proving that the relevant disclosures of the prior art patent are not enabled.

See also

More on the bad coverage by Union-Tribune on stem cell matters which commented on an article by Terri Somers entitled: Embryonic stem cell pioneer chose to publish, not patent, concerning the work of Ariff Bongso. Careful reading of Trounson's bio shows that Bongso and Trounson formed a company together to exploit patents in the stem cell area.

See also

Sunday, September 16, 2007

Epstein mentions Jaffe/Lerner

Professor Epstein of the Law School at the University of Chicago mentioned Jaffe and Lerner's Innovation and Its Discontents:

Patents. Relman is equally fearless when he takes on the patent issues. He references the interesting work of Adam Jaffe and Josh Lerner, Innovation and Its Discontents (2004), who think that the standards for patents are too lax, and thinks that it supports the charges that Marcia Angell makes in her book (which I have reviewed unfavorably) that too many patents are given for me-too drugs that do not represent real product advances. But Jaffe and Lerner are talking about a different problem. Me-too drugs are not double-click patents. No one doubts that the spate of me-too drugs on the marketplace meet whatever patent standards Jaffe and Lerner would propose; and they surely meet the recent Supreme Court standards of nonobviousness in KSR International v.. Teleflex (2006), which dealt with the positioning of sensors in gas pedals. How could these me-too drugs not be nonobvious extensions of existing molecules when the FDA requires that they go through separate testing. Two molecules may look similar but their behaviors could be quite different, so the hard matter never concerns patentability, which is a given, but regulatory approval.

IPBiz notes

#1. The recent Supreme Court case of KSR was in the year 2007, not in 2006. [127 S. Ct. 1727, 167 L. Ed. 2d 705 (2007)]

#2. As perhaps seen more clearly in the debate in India [and in the praise by certain folks in India over the KSR decision], Professor Epstein is quite wrong about the asserted irrelevance of KSR to me-too drugs. Professor Epstein separately should read the contents of In re Deuel, criticized by the Supreme Court in KSR.

#3. Professor Epstein ought to look in more detail at the "interesting" work of Jaffe and Lerner. For example, Is the Jaffe/Lerner Analysis of Patent Law Correct?

#4. As to patentability issues, Professor Epstein should look into the recent enantiomer case, or, in a more conventional area, "In re '639 litigation."

Poshard: the story of the "good" plagiarist?

In a twist on the "good acts as a defense to plagiarism" story, it now appears that a recent online poll was a bit rigged to favor Poshard:

AP reports:

An online newspaper poll found resounding support for Southern Illinois University President Glenn Poshard, but a Poshard friend's admission that he rallied colleagues to vote is casting suspicion on the results.

The Springfield State Journal-Register's poll asked whether Poshard should resign over plagiarism allegations. Respondents voted 3-1 in Poshard's favor.

That was after a longtime friend of Poshard's, Hugh Muldoon, e-mailed friends and colleagues urging them to vote "no" to Poshard's resignation. Muldoon, director of the University Christian Ministries in Carbondale, said he has a "couple hundred friends" who agree that Poshard has been good for SIU.

The e-mail read, in part, "Public opinion has a significant influence with the Board of Trustees and other political figures. Poshard thinks it is important to have a substantial majority in favor of his staying."

Poshard spokesman Dave Gross acknowledged that Poshard called Muldoon, but he said Poshard was joking about getting help with the poll.

IPBiz notes whether in taking the easy way out in not placing quotation marks around the work of others OR in getting friends to sway a supposedly objective poll, Poshard's approach is becoming clearer.

More on the bad conduct of lawyers for Qualcomm

In another chapter of the unraveling of Qualcomm in the Broadcom dispute, Bruce Bigelow discusses the fate of some of the lawyers:

For the second time this year, Qualcomm has replaced the Silicon Valley law firm that was representing the wireless giant in a major patent infringement dispute.

At one level, the move to replace the Cupertino law firm of Day Casebeer Madrid & Batchelder was a minor procedural matter in a lawsuit Qualcomm filed against Nokia two years ago.

San Diego federal Judge Roger Benitez signed an order Tuesday that approved Qualcomm's request to substitute Steven Strauss as its lead attorney in the case. Strauss is a partner in the San Diego office of Cooley Godward Kronish.

But the switch also offers more fodder in the continuing saga of “The Qualcomm 14” – the 14 lawyers who face judicial sanctions for misconduct that was detailed in a 54-page ruling by U.S. District Judge Rudi Brewster.

Brewster ordered the 14 lawyers to face a sanctions hearing, scheduled for next month, after presiding over a separate patent lawsuit that Qualcomm filed against Broadcom, a rival chipmaker in Irvine.

Of the details of the misconduct by the lawyers:

Nine of the 14 lawyers facing sanctions were from Day Casebeer, including James Batchelder, who led Qualcomm legal team in both cases. The other five were from the Heller Ehrman law firm, including San Diego partners David Kleinfeld and Barry Tucker.

A federal jury deliberated six hours before finding that Broadcom not only did not infringe on two Qualcomm patents, but that Qualcomm also had withheld patent information from official patent bodies.

In the months after the trial, Qualcomm acknowledged it had not produced 230,000 pages of internal e-mails and other relevant evidence for the trial.

Judge Brewster cited the Qualcomm 14's “inexplicable” failure to find such material in his August ruling, which found “exceptional” misconduct and ordered Qualcomm to pay Broadcom's legal fees in the case.

See also

Is the Jaffe/Lerner Analysis of Patent Law Correct?

Note also that Jesse Seyfer had a piece in The Recorder on 8 Aug 07. Seyfer gets into a discussion of Qualcomm's involvement in standards setting. This reality makes the discussion by Jaffe and Lerner in Innovation and Its Discontents of Qualcomm and of Rambus a complete joke. One simply cannot believe what is in Innovation and Its Discontents.