Friday, November 30, 2007

Poorly presented arguments on patent reform

The Concord Monitor on Nov. 30 has a particularly poor letter to the editor concerning patent reform:

I recently read that since 1998, the U.S. Patent Office has been approving patents for "business methods" that companies had used for years, and those businesses are now being sued for licensing infringements.

The U.S. Senate is considering a bill that would guard our companies here in New Hampshire from these types of dubious lawsuits. The Patent Reform Act of 2007 would protect our small manufacturing and technology companies from having to spend large amounts of time and money in court, and allow them to focus on innovation and job creation. I urge Sens. Sununu and Gregg to vote for the Patent Reform Act.

Contemplate the facts. In 1998, the CAFC issued the State Street v. Signature decision, 149 F.3d 1368, which reversed a district court decision (United States District Court for the District of Massachusetts) granting summary judgment of invalidity of Signature's U.S. Patent No. 5,193,056. The '056 patent was issued by the United States Patent Office [USPTO] March 9, 1993 on an application filed 11 March 1991.

Claim 1 stated:

1. A data processing system for managing a financial services configuration of a portfolio established as a partnership, each partner being one of a plurality of funds, comprising:

(a) computer processor means [a personal computer including a CPU] for processing data;

(b) storage means [a data disk] for storing data on a storage medium;

(c) first means [an arithmetic logic circuit configured to prepare the data disk to magnetically store selected data] for initializing the storage medium;

(d) second means [an arithmetic logic circuit configured to retrieve information from a specific file, calculate incremental increases or decreases based on specific input, allocate the results on a percentage basis, and store the output in a separate file]

for processing data regarding assets in the portfolio and each of the funds from a previous day and data regarding increases or decreases in each of the funds, [sic, funds'] assets and for allocating the percentage share that each fund holds in the portfolio;

(e) third means [an arithmetic logic circuit configured to retrieve information from a specific file, calculate incremental increases and decreases based on specific input, allocate the results on a percentage basis and store the output in a separate file] for processing data regarding daily incremental income, expenses, and net realized gain or loss for the portfolio and for allocating such data among each fund;

(f) fourth means [an arithmetic logic circuit configured to retrieve information from a specific file, calculate incremental increases and decreases based on specific input, allocate the results on a percentage basis and store the output in a separate file] for processing data regarding daily net unrealized gain or loss for the portfolio and for allocating such data among each fund; and

(g) fifth means [an arithmetic logic circuit configured to retrieve information from specific files, calculate that information on an aggregate basis and store the output in a separate file] for processing data regarding aggregate year-end income, expenses, and capital gain or loss for the portfolio and each of the funds.

In making its decision, the CAFC relied on precedent of the US Supreme Court: After Diehr and Chakrabarty, the Freeman-Walter-Abele test has little, if any, applicability to determining the presence of statutory subject matter. [One notes that the US Supreme Court declined cert on the State Street decision.]

Of the business-method "exception", the CAFC wrote: The business method exception has never been invoked by this court, or the CCPA, to deem an invention unpatentable. 11 Application of this particular exception has always been preceded by a ruling based on some clearer concept of Title 35 or, more commonly, application of the abstract idea exception based on finding a mathematical algorithm. Illustrative is the CCPA's analysis in In re Howard, 55 C.C.P.A. 1121, 394 F.2d 869, 157 USPQ 615 (CCPA 1968), wherein the court affirmed the Board of Appeals' rejection of the claims for lack of novelty and found it unnecessary to reach the Board's section 101 ground that a method of doing business is "inherently unpatentable." Id. at 872, 55 C.C.P.A. 1121, 394 F.2d 869, 157 USPQ at 617. 12

Any application for a patent must meet the tests set forth in 102, 103, and 112. Patents would not be granted for "business methods" that companies had publicly used for years.

Crowell entirely missed the problem with post-grant oppositions when he wrote: --having to spend large amounts of time and money in court--. The creation of a post-grant opposition procedure would generate a mechanism wherein patent opponents could force patentees to spend large amounts of time and money in administrative proceedings costing hundreds of thousands of dollars. Not surprisingly, many small businesses, including many New Hampshire businesses, have vocally opposed the post-grant review procedure. Crowell should check the record.

Senators Sununu and Gregg should oppose the bill on patent reform.

[William L. Patton of Ropes & Gray was the losing attorney in the State Street case.]

See also

Thursday, November 29, 2007

More discussion of authorship problems at Harvard Law School

Lawrence Velvel has a piece titled: Read 'Em And Weep For Harvard, which discusses an article by Jacob Russell, called A Million Little Writers, which is in the November/December 2007 issue of 02138.

One has the text: And, whether in the sciences or the humanities, the world of scholarship has always prioritized the proper crediting of sources and co-contributors.


Still, the blurring of authorial lines might be a particular problem for Harvard’s faculty. Harvard professors are, in theory, held to a high standard, but they also have more tempting opportunities for lucrative, popular writing than professors at lesser-known institutions. (And, frequently, larger budgets with which to pay researchers.) The cult of celebrity that Harvard’s high-profile professors often cultivate requires a production line of unnamed accomplices who help maintain the professor’s prolific output—and status as an intellectual star.

Outsourced work is partly a response to time constraints; it allows a professor to both produce more—more books, more op-eds—and have more time for non-research work, such as appearing on television, taking on pro bono legal cases, and starting research centers. With such aims, a professor is often pursuing fundamentally different goals than the pursuit of knowledge: The frequent publication of quickly written popular books generally has more to do with the pursuit of fame and material success.

Of Dershowitz: Instead, as a lawyer might, he writes his conclusions, leaving spaces where he’d like sources or case law to back up a thesis.

Of Dershowitz and others: “They write first, make assertions, and farm out [the work] to research assistants to vet it. They do very little of the research themselves.” [IPBiz: sort of like Mark Lemley's research assistant on Gary Boone as the inventor of the integrated circuit.]

See also

Of the words --prioritized the proper crediting of sources--, one can ask "how high" the priority is given. One notes a discussion of Student Government at SIU on the Poshard plagiarism:

Later in the [student government] meeting, the senate unanimously passed a resolution in support of the Faculty Review Committee's recent finding that SIU President Glenn Poshard committed "inadvertent plagiarism" in his 1984 doctoral dissertation.

The committee released its findings Oct. 12.

David Loftus, a senator representing the west side of Carbondale, worked on the resolution with White.

Loftus said he understood the passion of those on both sides of the controversy surrounding Poshard.

"Listen, it is unfortunate that these events had to occur, but we support our president. He [Poshard] has done great things for this university," Loftus said. "It's time that we put things behind us and move on."

At page 54 of Poshard's thesis, Poshard copied a summary from a previous book to describe Poshard's summary of the literature. Poshard did not footnote the previous work at (or near) page 54 and did not use quotation marks to delimit the copied text. Apart from plagiarizing the work, Poshard's use of an old summary was not even technically appropriate to describe work which had developed AFTER the copied text was written.

Wegner: CAFC continued its misunderstanding in In re Lew

Harold Wegner, on IPFrontline, criticized the CAFC decision in In re Lew as to "written description," continuing the academic assault on the CAFC written description doctrine. Wegner began:

Today in In re Lew, __ Fed Appx. __ (Fed. Cir. 2007)(Gajarsa, J.), the court continued the misunderstanding of 35 USC § 132 “new matter” and its relationship to the 35 USC §112, ¶ 1, “written description” requirement.

The 1952 Patent Act as drafted – and today under 35 USC § 112, ¶ 1 – contains no “written description” requirement, per se. Rather, the “written description” language of the statute refers to the provision of an enabling disclosure – the sole objective disclosure requirement under that paragraph of the patent law.

Because the US Supreme Court has already mentioned written description separately from enablement (a fact noticed by the CAFC), the "train has left the station" on these academics.

Wegner notes the citation to Noelle v. Lederman within In re Lew: In the 1990’s, panels of the court judicially created a “possession” requirement even against original claims, as manifested in the cited Noelle case. One notes, counter to Wegner, Noelle v. Lederman was decided in 2004, not in the 1990's (355 F.3d 1343 (CAFC 2004)) The CAFC also cited In re Wright, which was decided in 1989. The CAFC also cited Chiron v. Genentech, 363 F.3d 1247 (CAFC 2004), the case which was so thoroughly confused by Eli Kintisch in the journal Science.

The issue in the case was replacing the term "ball bearing" by the term "curved member."

See also

TiVo patent claims survive re-exam intact; EchoStar doomed?

Bloomberg reported on 29 Nov 07:

TiVo Inc. had its biggest gain in 2 1/2 years in Nasdaq Stock Market trading after reporting a narrower loss and saying the U.S. Patent and Trademark Office upheld its patent for digital-video recorders.

TiVo said today the agency found its patent valid, a decision that may bolster its position in a lawsuit against satellite-television provider EchoStar Communications Corp. EchoStar is trying to overturn an $89.6 million patent- infringement verdict won by TiVo.

The decision ``clearly represents a reinforcement that the appeals process with EchoStar should result in a favorable outcome for TiVo,'' Fred Moran, an analyst at Stanford Group in Boca Raton, Florida, said in an interview. He recommends investors hold TiVo shares and doesn't own any.

See Sept 06 IPBiz post: Re-examination . Hmmm, how long did the re-exam take?

Bloomberg also wrote:

JPMorgan Chase & Co. analyst Barton Crockett raised his recommendation on the stock to "overweight," which means he expects the stock to outperform the average total return of the shares he covers. He previously rated TiVo "underweight."

TiVo has a 70 percent chance of winning its patent- infringement litigation against EchoStar, the New York-based analyst wrote in a note to clients today.

EchoStar is appealing TiVo's win in court, saying the trial judge erred in defining what TiVo invented concerning DVRs. The U.S. Court of Appeals for the Federal Circuit [CAFC] in Washington is considering the validity of the patent and whether Englewood, Colorado-based EchoStar uses the technology.

Analyst Gould said the odds of TiVo winning the case are better than the one in five chance that was reflected in the stock. He said his best guess is a 50-50 chance.

money.cnn wrote:

TiVo Inc. Thursday [Nov. 29] said it is pleased the Patent and Trademark Office [USPTO] has found all the claims of its 'time warp patent' to be valid after conducting a re-examination at the request of EchoStar Communications Corp.


'Today's decision by the PTO brings us another step closer to ending EchoStar's continued infringement and we are hopeful that the U.S. Court of Appeals for the Federal Circuit will uphold the district court judgment of patent infringement and reinstate the injunction,' TiVo said.

See also:

In terms of dull stupidity, Mass High Tech: The Journal of New England Technology wrote:

The U.S. Patent Office has issued patent No. 10/669,101, for spectral imaging of deep tissue, to Cambridge Research and Instrumentation Inc. The patent covers the use of multispectral imaging combined with spectral unmixing, which is intended to increase clarity of images taken from living creatures.

Of relevance to the Boston area, James Niccolai, IDG News Service reports:

Google has been given an extension until January to reply to a patent infringement lawsuit brought by Northeastern University and a company in Massachusetts that develops distributed search technologies.The professor at Northeastern is Kenneth Baclawski and the company is Jarg.

As IPBiz asked before, are Northeastern, Baclawski, and Jarg to be considered patent trolls?

Vonage, Apple make list of top tech train wrecks of 2007

Ben Patterson at includes among the Top 10 Tech Train Wrecks of 2007:


Talk about a slow-motion train wreck. Vonage, the once high-flying VoIP provider with all those clever TV commercials, is facing a mountain of debt, while customers—most of them frustrated by poor customer service—have been steadily defecting. At the center of it all: a pair of court rulings from late 2006 that held Vonage responsible infringing patents owned by Sprint Nextel and Verizon Communications. Vonage has settled all of the infringement charges, including a new set of charges brought by AT&T, but it's still in debt to the tune of $250 million and climbing, according to BusinessWeek, along with more than $200 million in payments now due to Sprint, Verizon, and AT&T. That's pretty bad news when you've only got about $355 million left in your bank account. Whether Vonage survives, gets bought out, or declares bankruptcy is still an open question. Meanwhile, long-suffering Vonage customers are left hanging in the balance (although service is reportedly improving).

See also:

Apple's iPhone:

Steve Jobs never saw it coming. In September, along with announcements of a new family of iPods, Jobs dropped a bombshell: Apple was cutting the price of the 8GB iPhone to $399 (from $599). How generous, right? But early adopters were outraged: just weeks before, they'd paid more than $600 for their precious iPhones, and now here's Sir Steve, essentially telling them they'd wasted a couple of C-notes. Jobs ultimately bowed to the howls of protest, offering a $100 store credit for everyone who had bought an iPhone before the price cut. Then, another stumble: Apple released an iPhone update in October that re-locked (and in some cases, bricked) hacked iPhones, sparking another wave of anger. Jobs has since announced that the iPhone will support third-party apps (which must now be hacked onto the iPhone) starting next year, but the damage is done. All those warm fuzzies for Apple upon the original release of the iPhone? Buh-bye.

See also

New stem cell work bypasses ethical debates [?]

The journal Science devoted a two page story to the new work in stem cells -->

318 Science 1224 (23 Nov 07): Field Leaps Forward With New Stem Cell Advances

The Science article includes text: Such a recipe would not need human embryos or oocytes to generate patient specific stem cells--and therefore could bypass the ethical and political debates that have surrounded the field for the past decade.

There is a reference to Science, 7 July 2006, page 27, discussing earlier work by Yamanaka.

The final line quotes Cibelli: "People working on ethics will have to find something new to worry about."

There is a discussion of parthenotes.

Mention of work by David Cram of Monash University in Clayton, Australia making sure cell lines [of the Oregon work] had same genotype as donor of skin cells. At this point, there was a reference to "recent history in the cloning field." [obliquely referring to the fraud of Hwang Woo Suk. Recall Cibelli was a co-author on first Hwang paper.]

See also

CIRM Media Coverage: Conflicts to Anachronisms [IPBiz notes californiastemcellreport STILL has not covered EITHER the Oregon work OR the reprogramming work (Yamanaka and Thomson group). By not mentioning Yamanaka's discovery, californiastemcell report avoids another unpleasant reality: Yamanaka's work at Gladstone will not be funded by grants from Proposition 71. Gladstone, not the state of California, is funding work that promises to be a break-out in stem cells. One suspects that the co-discovers of the reprogramming work (Thomson's folks in Wisconsin) are not funded by Proposition 71 either. Hmmm, did IPBiz spell anachronism right? While californiastemcellreport discusses all the ethical lapses involved with Prop 71, other guys, who don't have Prop 71 funding, are getting the job done.

A note to Cibelli (People working on ethics will have to find something new to worry about): there's plenty for ethicists to worry about with the folks at Proposition 71, here and now. [recall Aldous Huxley's birds in Island]

Monday, November 26, 2007

Impact of eBay on the granting of injunctions

The 271blog discusses an analysis of rulings on injunctions, post-eBay.

See also previous IPBiz post Some post-eBay district court cases


What eBay does for the individual seller, the case of Bernice Gallego pulling a baseball card from 1869 from a box of antiques. "But for" eBay, Gallego might have sold the 1869 card, featuring the "Red Stocking B.B. Club of Cincinnati" [aka the Cincinnati Reds] for $10.

On California's CIRM: unwieldy dinosaur of times past?

Of the recent Klein/Reed problem at California's stem cell organization CIRM, californiastemcellreport writes:

It is difficult to understand what led Klein, an attorney, to give Reed the bad advice. Whatever the reason, the Oversight Committee is riddled with conflicts of interest, something Klein should be keenly aware of. More than half of its members have links to institutions that could stand to benefit from the upcoming round of $227 million in lab construction grants. And it was the Oversight Committee itself that set the standards for those grants – not some detached, third-party organization.

New Jersey voters just said "No!" to such venal conflicted-interest back on November 6, 2007 when the stem cell bond issue, which concerned money for new buildings to be built in locations of political constituencies, took a whopping 53-47 beating. The voters said "no" to political pay-offs for unneeded buildings. The current Reed/Klein matter in California could be viewed as an alternative history "ghosts of problems future" that New Jersey simply will not have to visit.

Californiastemcellreport made an oblique reference to significant new work on reprogramming cells which became public on Tuesday, November 20 and which has been greatly discussed in quarters OTHER THAN californiastemcellreport:

The Reed/Klein affair has also come to light at a time when some are contending that human embryonic stem cell research is unnecessary in light of the recent research news about other ways to reap its benefits without the untidy matters associated with hESC experiments. Some are already questioning the necessity of CIRM's efforts.

The New York Times conveyed some of the significance of the new work.
See IPBiz: New York Times on the sea change in stem cells: the past debate as a funny footnote?

Klein and californiastemcellreport are fast becoming anachronisms.

See also

Sunday, November 25, 2007

"Easy counts" still easy, contrary to Lemley and Moore

Back on April 30, 2006, LBE, in comments to the USPTO on the proposed rules on continuing applications, quoted the Just a Patent Examiner blog to negate one of the dumber comments in Lemley and Moore's ENDING ABUSE OF PATENT CONTINUATIONS, 84 B.U.L. Rev. 63 (Feb. 2004).

The blog's text: Examiners have always told me they like continuations (or RCEs)... seemed far more believable than Lemley/Moore saying: it scarcely seems credible an examiner will remember enough...

In a 20 Oct 07 post titled -- Hard Counts, Easy Counts, and the New Rules --, the blog has the text:

The second thing is the easy counts. Abandonments (both final abandonments and abandonments as part of an RCE) are essentially free counts. Allowances usually take a minimal amount of time to write up. The first actions of RCEs should take no more time than any other amendment, but I get the bonus of a count for it. First actions of continuations, while of course requiring a search, don't require as much time to do because I am already familiar with the invention, and have already performed a search on the disclosed invention. IPBiz notes that there simply does not seem to be the "memory problem" unbelievably asserted by Lemley and Moore.

See also a 15 Nov 2007 post titled -- A First Glance at the Proposed New BPAI Rules--, in which the blog writes:

First of all, I always thought that an appeal was supposed to resolve an impasse between the examiner and attorney/applicant. But if the Appellant is going to raise new issues that haven't yet been presented to the examiner, where's the impasse? It just doesn't seem to me as if the application is ripe for appeal if the Appellant has arguments that still have yet to be made to the examiner.

**Returning to ENDING ABUSE OF PATENT CONTINUATIONS, 84 B.U.L. Rev. 63 (Feb. 2004), a really dumb commentary remains footnote 22.

More on the 97% grant rate that never was

Gorbach on Merrill matter: a question of compassion?

Julien Gorbach in the columbiamissourian has a piece obliquely about the Merrill matter but more directly about "what to do" after plagiarism is identified, as can be seen from the title: Plagarism pits integrity, compassion against each other.

As to Merrill, Gorbach wrote at the end of his piece:

And now I’m faced with the story of Dr. Merrill. There’s a lot to debate and discuss here, obviously, about the importance of attribution, about where to draw lines, about taking care and responsibility, and other things. But what is clearest to me at the moment is the basic human dimension to this problem: namely our inherent frailty, which is, after all, just our mortality. And who can blame the guy, for whom it’s a battle at this point just to keep on going, for wanting to hang on to some semblance of pride after all these years?

As IPBiz has written, this event could have, and should have, been handled differently. HOWEVER, saying that quotes, taken by others, are in the public domain is not the correct approach. Writers who use quotes, taken by others, should verify the accuracy of the quotes, taken by others. PERIOD.

In passing, there is a sort of microcosm of the problem in the use by Sheppard of arguments made by Reavy, which separately reminds IPBiz of the use by Mark Lemley of the "transistor as hearing aid" saga proposed by someone other than Lemley (which separately was totally untrue). A story for another day.

IPBiz challenges Noel Sheppard on quote lifting and the Merrill matter

Connecticut as stem cell central??

THOMAS KAPLAN of the New York Times writes:

To Dr. David W. Rowe and researchers like him, however, using human embryonic stem cells offers the best hope of being able to apply the lessons of the mice experiment to humans, and to do it on a wide scale.


Scientists’ quarters are lined with new, modern laboratory hoods and incubators, and dozens of researchers have been hired. The result, scientists say, is that Connecticut is gaining international recognition for stem cell research.

“There’s no question that this program is going to have a huge impact, and already has, actually,” said Dr. Michael Snyder, a biology professor at Yale who received the largest single grant, $3.8 million, in the program’s first year.


Ren-He Xu left a laboratory in Wisconsin, where he said state funding was limited, to become director of UConn’s human embryonic stem cell facility. The state’s largesse “was the main reason I came here,” he said. [IPBiz notes that the breakthrough reported on Tuesday, Nov. 20, 2007 was co-discovered by workers in Wisconsin.]

In New Jersey, voters in a Nov. 6 referendum rejected a proposal to borrow $450 million over 10 years to finance more stem cell research. The state has already committed $10 million for research and $270 million to build research centers. [IPBiz notes that Kaplan's reporting may be incorrect. The rejected $450 million was for the buildings; the $270 million is for the research.]

Three Apple patent applications published on 22 Nov. 07 claim priority to 1998 provisional

Coolest-gadgets writes: Apple has just filed a trio of patents slightly over a month after the iPhone debuted in the US, bringing the world of curved multi-touch surfaces that will be capable of recognizing more than just plain old fingertips. These new patents, when pieced together, will result in a sensor layout as well as those for mobile sensors and compliant conductors, whereby the collective technology used will bring improved touch input notes which accurate enough to create a sensor image of different parts of the hand without being bound to any particular size, shape or resolution.

This is based on a post at appleinsider.

These are of course published patent applications, for example US 20070268275, published on November 22, 2007 based on application 11/830815, filed July 30, 2007. The first claim of the '815 application states:

A touch-sensitive apparatus comprising:
a. a deformable touch layer having a top surface accessible to a user and a bottom surface;
b. a compliant sense object layer mounted below the deformable touch layer and adjacent to the bottom surface;
c. a compliant dielectric layer mounted below the deformable sense object layer; and d. a plurality of sensors spaced apart from each other and mounted below the compliant dielectric layer, each sensor capable of providing an indication of proximity to the sense object layer.

For those interested in the currently enjoined rules on continuing applications, note

This application is a continuation of Ser. No. 11/015,434, entitled "Method and Apparatus for Integrating Manual Input," filed Dec. 17, 2004, which is a continuation of Ser. No. 09/919,266 (now U.S. Pat. No. 6,888,536), entitled "Method And Apparatus For Integrating Manual Input" filed Jul. 31, 2001, which is a division of application Ser. No. 09/236,513 (now U.S. Pat. No. 6,323,846) filed Jan. 25, 1999, which claims the benefit of provisional application 60/072,509, filed Jan. 26, 1998, each of which is hereby incorporated by reference in its entirety.

Given that there are no cip's in the chain, one notes that the '815 application is hardly a "new" disclosure, as wrongly suggested by coolest-gadgets, but rather dates back to technology disclosed in an application filed on January 25, 1999, claiming provisional priority to January 26, 1998, almost ten (10) years ago!!

Published application 20070268273 has a similar history:

This application is a continuation of Ser. No. 11/015,434, entitled "Method and Apparatus for Integrating Manual Input," filed Dec. 17, 2004, which is a continuation of Ser. No. 09/919,266 (now U.S. Pat. No. 6,888,536), entitled "Method And Apparatus For Integrating Manual Input" filed Jul. 31, 2001, which is a division of application Ser. No. 09/236,513 (now U.S. Pat. No. 6,323,846) filed Jan. 25, 1999, which claims the benefit of provisional application 60/072,509, filed Jan. 26, 1998, each of which is hereby incorporated by reference in its entirety.

Published application 20070268274 is also similar:

This application is a continuation of Ser. No. 11/015,434, entitled "Method and Apparatus for Integrating Manual Input," filed Dec. 17, 2004, which is a continuation of Ser. No. 09/919,266 (now U.S. Pat. No. 6,888,536), entitled "Method And Apparatus For Integrating Manual Input" filed Jul. 31, 2001, which is a division of application Ser. No. 09/236,513 (now U.S. Pat. No. 6,323,846) filed Jan. 25, 1999, which claims the benefit of provisional application 60/072,509, filed Jan. 26, 1998, each of which is hereby incorporated by reference in its entirety.

Note that all three applications published on Nov. 22, 2007 all claim priority to the SAME provisional application 60/072,509, filed January 26, 1998, and the same nonprovisional application, 09/236,513.

Friday, November 23, 2007

PCT applications

On Nov. 20, patenthawk had a post titled International Feel which gave some scary background on the way PCT searches are done at the USPTO.

Patenthawk quoted an attorney on outsourced art searches:

This was the first inkling I had that these reports are being done by untrained nonexaminers who may have no clue what the law regarding novelty and obviousness/inventive step is (insert gratuitous comment about recent USPTO examiner performance HERE). These reports are the basis on which the examiners in many non-US countries rely (and form the basis for the stance of the US examiner who handles the case from that point forward).

Of examination:

Although this all looks depressingly bad for the state of US examined PCT applications, there is a silver lining. The quality of examination of PCT applications in house at the USPTO might be even worse. Although examiners are not paid per application, examiner production and therefore performance is directly tied to how quickly work is completed. Written opinions and search reports for PCT applications are rarely reviewed by supervisors and are only reviewed by quality assurance specialists for form not substance. Therefore, PCTs have always been considered easy counts for examiners. Last Friday of the quarter? Need to bump your production? Fly through a few PCTs. Furthermore, many PCT applications are examined concurrently with their US equivalents. This is known as the 2-for-1 special.

Amendments forthcoming to Amazon's one-click patent?

Claims of Amazon's US Patent number 5,960,411, "method and system for placing a purchase order via a communications network," may be undergoing amendment in re-examination.

The Sydney Morning Herald reports:

According to documents lodged in the aftermath of an adverse ruling handed down last month by the US Patents and Trademarks Office (USPTO), Amazon has proposed amendments to its claim over the famous 1 Click patent.

Those changes, according to Auckland-based Peter Calveley, amounts to a narrowing down of claims over the patented payments process, leaving it open to many more people to use or adapt for use.

See also

Plagiarizing principal praised [!?]

Phillipsburg, NJ High School principal Mary Jane Deutsch, who shamelessly plagiarized, has defenders, who bring up issues similar to the defenders of SIU President Glen Poshard. Lehighvalleylive has some posts defending her, which are reproduced here:

RICHARD MCQUADE, Lopatcong Township-->

Mary Jane Deutsch discovered words of importance relating to her topic that made an impression upon her. She disseminated those impressionable words to her students and their parents in a student body newsletter, targeting her audience.

How convenient for critics to seize an opportunity to attack her stellar reputation and character as an educator and administrator. Haven't we all, at one time or another, been impressed by words, phrases and/or ideas of others and, in turn, passed them on in conversation or in writing without crediting their source or even remembering who authored the source?

IPBiz notes that Deutsch apparently cut and pasted a lot of text. This deliberate act of copying is far distinct from talking or writing after the fact an approximation of someone else's words. Further, when one is cutting and pasting, the name of the author of the original text is staring directly at one's face.

SUSAN FLANAGAN, Lopatcong Township-->

As a mother and former employee I have had the experience working under Deutsch and now as a parent of a student who is a freshman.

I have yet to see an administrator who takes to heart a job as she does. She puts kids first and truly cares about the school, its children and parents. She works in a physical environment that is extremely challenging, given the size of the student body. She instills in students the values that many of their own parents appreciate (how to dress, act and respect each other). I believe she has apologized, has a full understanding of her mistake and takes full responsibility for it.

This reminds one of the defense of Poshard which brought up all the good things Poshard did for SIU. Further, Poshard at least promptly acknowledged there might have been a problem with what he did, whereas Deutsch initially denied there was a problem. In that sense, what Deutsch did was worse. If a principal does not know that copying without attribution is wrong, who does?

DAN AND NANCY ROTH, Phillipsburg-->

We have known Mary Jane Deutsch for the past 20 years in both a professional and personal capacity in her roles as teacher, administrator, coach and mentor. She has proven to be a person of tremendous quality and integrity. With regard to her recent article in "The Messenger," she wasn't looking to gain anything other than to relay valuable information to the students and their parents. We think it's a travesty to blast such an upstanding individual whose only concern has been and always will be the youth of this town.

IPBiz notes that, while Deutsch might advance a "fair use" defense to her copyright infringement, plagiarism concerns copying without attribution. Professors, who gain little monetarily by writing papers, still cannot pass off as their own the work of others. If we can't rely on people in the education business to give credit, who can we rely on? Recall, the Harvard Business Review counsels "plagiarize with pride."

New York Times on the sea change in stem cells: the past debate as a funny footnote?

In a Nov. 22 article titled -- Man Who Helped Start Stem Cell War May End It --, Gina Kolata of the New York Times presents some interesting quotes:

The fact is, Dr. Thomson said in an interview, he had ethical concerns about embryonic research from the outset, even though he knew that such research offered insights into human development and the potential for powerful new treatments for disease.

"If human embryonic stem cell research does not make you at least a little bit uncomfortable, you have not thought about it enough. I thought long and hard about whether I would do it." [James Thomson]


Now with the new technique [direct reprogramming approach], which involves adding just four genes to ordinary adult skin cells, it will not be long, he says, before the stem cell wars are a distant memory. "A decade from now, this will be just a funny historical footnote," Dr. Thomson said in the interview.

Merely as a commentary on the old "flash of genius" approach in patent law, Kolata also wrote:

As for the science behind it, the thrill of discovery, [Thomson] said, “Surprisingly, there is no ‘Wow’ moment,” either from 1998 or now. Both times, the discovery came after he had spent months rigorously testing the cells to be sure they really were stem cells, worrying all the while that they could die or be lost to contamination. When he knew he had succeeded, the suspense was gone.

IPBiz notes that, while the ethics wars may be winding down, the patent wars may just be beginning.

LA Times discusses Flamm's win over Cha

Charles Ornstein, who had covered earlier aspects of the Cha / Flamm controversy, had a piece in the Nov. 21 issue of the Los Angeles Times that began:

A Los Angeles County Superior Court judge Tuesday [Nov. 20] threw out a defamation lawsuit filed by a prominent South Korean fertility scientist against a Riverside doctor who has been critical of his work.

Dr. Kwang-Yul Cha, who has been president of hospitals and research labs in Los Angeles and South Korea, accused Dr. Bruce Flamm of conducting a "bitter personal vendetta" against him after Cha published a 2001 study suggesting that prayer might help women become pregnant.

As IPBiz has noted, Flamm was concerned with an article published in the Journal of Reproductive Medicine [JRM] about the impact of prayer on success in IVF. In the context of discussing the JRM paper, Flamm wrote in the March 15, 2007 issue of Ob. Gyn. News. is the following (concerning the authors of the JRM article):

"This may be the first time in history that all three authors of a randomized, controlled study have been found guilty of fraud, deception, and/or plagiarism."

The plagiarism issue pertained to a DIFFERENT paper on a DIFFERENT subject co-authored by Cha, one published in Fertility & Sterility, a journal of the American Society of Reproductive Medicine [ASRM]. The defamation allegation arose out of the words "found guilty of ... plagiarism." In the 15 March 07 piece, Flamm cited a February 2006 article in the Los Angeles Times [written by Ornstein] in which Dr. Alan DeCherney, editor of the journal Fertility and Sterility, said the 2005 article appeared to be plagiarized. The article in Fertility & Sterility seems to include text which is nearly a paragraph-for-paragraph, chart-for-chart copy of Jeong-Hwan Kim's Ph.D. thesis, which later appeared in a Korean medical journal [in the Korean language in KJOG of the Korean Society of Obstetrics and Gynecology [KSOG]], all before the F&S manuscript was submitted. IPBiz notes that the editorial guidelines for Fertility & Sterility, which were on the internet at the time, basically define "duplicate publication" to be plagiarism.

That the Fertility & Sterility paper [in English] used the same words as an already-published paper in KJOG [in Korean] seems beyond dispute. After Cha threatened both F&S/ASRM and the LAT with defamation suits, F&S determined that plagiarism had not happened, and an apology was issued to Cha (the editor termed the earlier remarks: "inaccurate and regrettable." )

Of the specific issue of "guilty of ... plagiarism," IPBiz recalls the interesting lawsuit, Groden v. Random House, 35 USPQ2d 1547, involving the phrase "guilty of misleading the American public," in which the writer of "guilty of misleading the American public" survived the lawsuit. [As a side comment to the 19 May 07 IPBiz post, LBE saw many "Bimbo" trucks in his recent visit to Cadiz.]

The Ornstein piece is titled Scientist's defamation suit is tossed out

Bob Grant at The Scientist blog also has comments.

As of Nov. 23, californiastemcellreport has NOT reported the outcome of Flamm's success, but otherwise is enmeshed in the uproar concerning John Reed.

Wednesday, November 21, 2007

Flamm prevails over Cha on November 20, 2007

On November 20, Los Angeles Superior Court Judge James Dunn heard oral arguments from both sides and then granted Flamm's Anti-SLAPP motion, thus ending, at the trial level, Kwang Cha's defamation suit against Flamm.

Flamm's comment about plagiarism appeared in a journal. InsideHigherEd discussed issues with book reviews in journals alleging plagiarism:

...journal editors are not only called upon to consider allegations about work they have published, but allegations that come in the form of book reviews of material published elsewhere.

“When accusations emerge before publication, for example during peer review of a manuscript, journals are in a position to handle the matter informally, either by rejecting the manuscript outright or by asking for changes,” the report says, noting (without offering an opinion of whether this is appropriate) that some journals just reject such pieces. “More serious are accusations that emerge during preparation of a book review, which anecdotal evidence suggests to be a frequent way that plagiarism charges come to the attention of journal editors. A journal that publishes a review containing such a charge risks involving itself in ensuing legal wrangles, including countercharges of defamation, which from the courts’ perspective is a serious matter indeed.”

One approach being used, the report says, is for journals receiving plagiarism allegations to submit them to an outside panel for review. One publication (not named in the study) has used that approach twice, and as a result in one case ran a review with a plagiarism accusation in it, and the accused author publishing a reply (acknowledging a problem but denying intent). In the other case, the outside review “in effected exonerated the accused author,” the report says.

Remarkably poor timing by Mondaq!

IPBiz will cut and paste from this article by Lyrissa Di Fiore and Ivan Rajkovic on Mondaq DATED November 23, 2007, because it is a prime candidate to be sikahema'd:

Australia: US Adopts New Rules For Patent Examination

23 November 2007
Article by Lyrissa Di Fiore and Ivan Rajkovic
In an attempt to reduce the backlog of patent applications awaiting examination, the United States Patent & Trademark Office (USPTO) has recently published new patent prosecution rules relating to:

continued examination and continuation application practice;
the number of claims allowable in a patent; and
related application (common claims) practice.

These new rules will take effect on 1 November 2007 and will be retroactively applied to pending US patent applications. Basically, the rules will restrict the number of "bites at the cherry" available to patent applicants – that is, they will effectively reduce the number of times a set of claims relating to a particular invention can be put before a US examiner. This constitutes the most significant change to USPTO prosecution practice in recent years and is likely to have a major impact on the patent strategy of players across all technologies.

[For those not familiar with the verb "sikahema," IPBiz coined the term to pay tribute to Vai Sikahema's famous, but vanished, op-ed [aka "Vai's View"] in August 2006 entitled "Rutgers is Wrong." When something you publish turns out to be wrong or stupid, you simply make it disapper. In some corners, this is done to people, see los desaparecidos.]

Hugo Chavez and patents?

A post on AzCentral on patent reform is more notable for the first comment than for the rather poorly written content of the post itself. The comment -->

What happened to my previous comment. You know, the one that exposed the fact that you guys are six months behind on this issue? Is Hugo Chavez running azcentral now?

"The US patent process is 'ridiculously broken'"[?]

Techworld has an article on a WiFi patent which begins:

Nicholas Miller is hoping for a patent that he admits himself is "absurd". His advisors tell him he has a good chance of getting it, so he's going for it, even though it's essentially a minor tweak to block a wireless weakness in Windows.
In 2003, Miller, then at a tiny Wi-Fi company called Cirond, told us Wi-Fi switches were dead and that we could get more out of 2.4GHz by using four not-quite-so overlapping channels. None of that seemed to happen.

The article concludes:

AirSafe is a basic tweak that adjusts the settings in Windows XP, to turn off the automatic Wi-Fi connection - a tweak that everyone should make to their laptops by default. And Miller is applying for a patent for it.
"That's ludicrous," I said. "It's like applying for a patent for software that turns off the annoying Windows start-up chime."
"I agree 100 percent you shouldn't be able to patent this sort of thing," he replied. "I think it's completely absurd. But if you look at some of the patents filed by our competitors, they are ridiculously narrow. I filed this from a defensive standpoint."
The US patent process is "ridiculously broken" he said.

Elsewhere, note the existence of

"Patents made simple"

Tuesday, November 20, 2007

Further revolution in stem cells?

Following Ian Wilmut's abandonment of SCNT approaches in favor of work by Yamanaka and others, MALCOLM RITTER of AP in an article Stem cell breakthrough uses no embryos gives further "push" to the direct reprogramming approach, which yields "iPS" cells. The work is reported by TWO different groups in online papers in Cell and Science. The Cell paper is from a team led by Dr. Shinya Yamanaka of Kyoto University; the Science paper is from a team led by Junying Yu, working in the lab of in stem-cell pioneer James Thomson of the University of Wisconsin-Madison.

Ritter writes:

Laboratory teams on two continents report success in a pair of landmark papers released Tuesday [Nov. 20]. It's a neck-and-neck finish to a race that made headlines five months ago, when scientists announced that the feat had been accomplished in mice.

The "direct reprogramming" technique avoids the swarm of ethical, political and practical obstacles that have stymied attempts to produce human stem cells by cloning embryos.

Scientists familiar with the work said scientific questions remain and that it's still important to pursue the cloning strategy, but that the new work is a major coup.

There are likely going to be patent issues. Ritter writes: The Wisconsin Alumni Research Foundation, which holds three patents for Thomson's work, is applying for patents involving his new research, a spokeswoman said. Two of the four genes he used were different from Yamanaka's recipe.

There were also patent allusions in the Ritter article:

"This work represents a tremendous scientific milestone — the biological equivalent of the Wright Brothers' first airplane," said Dr. Robert Lanza, chief science officer of Advanced Cell Technology, which has been trying to extract stem cells from cloned human embryos.

"It's a bit like learning how to turn lead into gold," said Lanza, while cautioning that the work is far from providing medical payoffs.

"It's a huge deal," agreed Rudolf Jaenisch, a prominent stem cell scientist at the Whitehead Institute in Cambridge, Mass. "You have the proof of principle that you can do it."

There is a catch. At this point, the technique requires disrupting the DNA of the skin cells, which creates the potential for developing cancer. So it would be unacceptable for the most touted use of embryonic cells: creating transplant tissue that in theory could be used to treat diseases like diabetes, Parkinson's, and spinal cord injury.

Will the "Patent Reform Act of 2007" return in 2008?

Acknowledging that patent reform is dead in 2007, the 271blog wrote on Nov. 19:

the Patent Reform Act will probably go to the Senate floor after Congress returns from the holidays in early 2008, claims Matthew Sandgren, counsel to Sen. Orrin Hatch (R-Utah).

PatentHawk wrote on Nov. 20: Another bullet dodged as the Patent Reform Act of 2007 crumbles to dust

IPBiz had written on November 15:

AND, patent reform seems dead for 2007:

On Capitol Hill, the U.S. Senate is unlikely to take up before January a patent bill sought by many high tech firms, an aide to the Senate majority leader [Reid] said on Wednesday [Nov. 14].

IPBiz ponders: is there a way out on apportionment of damages OR on the second window of post-grant review (which was removed in the altered HR 1908) such that 40 senators won't block the bill?

Acacia settles patent dispute with Universal City Studios

AP reports: Patent developer Acacia Research Corp. said Tuesday [Nov. 20] that its Safety Braking Corp. subsidiary settled a patent dispute with Universal over the use of safety brake technology on amusement park rides. Neither side revealed the terms of the settlement.

IPBiz notes that AP refers to Acacia as a "patent developer."

SIU has fostered the "inadvertent" plagiarism trend

Apart from the issues surrounding the soft treatment of the plagiarism of President Glen Poshard, SIU's more enduring contribution to academe may be the legitimizing of the concept of inadvertent plagiarism.

In the egregious case of plagiarism in New Jersey by Phillipsburg High School Principal Mary Jane Deutsch, plagiarist Deutsch is now retreating into the safety net of inadvertent plagiarism thoughtfully created by the Trevino committee at SIU. The Express-Times noted:

Deutsch, who did not cite the author in her column, apologized Thursday for the mistake she said was completely inadvertent.


Failing to properly cite Murrah in the newsletter was a careless oversight, and she won't make a similar mistake again, she said. While she accepts responsibility for that, she said she's "really not sure" if it falls under the category of plagiarism, stressing she wasn't trying to take credit for the work.

"I'm certainly not denying it could be (plagiarism)," she said.

IPBiz notes that the Deutsch defense is basically a copy of the Poshard defense.

See also Principal plagiarism report gets people talking which contains the text:

Mary Jane Deutsch first denied she plagiarized the essay about the virtues of modesty, then apologized for a mistake she called inadvertent.

Southern Illinois University truly ought to be ashamed for setting guidelines for new lows in ethics.

See also:

HOWEVER, for a different case with different facts, see
Journalism prof refutes plagiarism charge with the text:

"Certainly, if what I did is plagiarism, it was unintentional and could, at the most, be considered technical, not unethical," Merrill said.

Merrill's column was dropped by the Missourian after the Maneater accused him of plagiarism in a piece he wrote Nov. 4.

He is a professor emeritus at the University of Missouri School of Journalism where he taught from 1964-80.

Monday, November 19, 2007

Environmentally well-designed houses in Princeton area

Anne Neumann of Princeton Borough designed an exciting tour given on November 17, 2007 of environmentally friendly homes in the Princeton area.

The exterior, southern exposure of the "envelope house" on Great Road.

The interior of the glassed in southern exposure of the envelope house.

Various factors are used to generate an air-flow within the outer envelope of the envelope house, which air-flow reduces energy demands.

Separately, there were homes included on the "Self-guided Green Home and Garden Tour" with solar panels (including those on Hawthorne Avenue and Moore Street), with one home featuring lower efficiency (but lower cost) amorphous silicon solar photovoltaics. George Cody, formerly a scientific advisor at Exxon Corporate Research Laboratory and an expert on photovoltaics, was present on the tour and at the later reception at the Greenway Land Trust's Johnson Education Center.

In re Chatani: order of steps in a method claim

The CAFC addressed claim construction issues in In re Chatani, which claims were directed to a method for managing participants in an online session of a multi-user application.

For giving claims their "broadest reasonable interpretation," the CAFC cited In re Hyatt, 211 F.3d 1367, 1372 (CAFC 2000). In re Morris, 127 F.3d 1048 was also cited.

Although Chatani argued the claim steps had to be performed in the order recited, the CAFC found the claim language on its face did not require sequential performance.

Famously bad predictions

Laura Lee in the Sept/Oct 2000 issue of Futurist recounted some fabulously bad predictions:

"Law will be simplified [over the next century]. Lawyers will have diminished, and their fees will have been vastly curtailed." Journalist Junius Henri Browne, 1893.

"Before man reaches the moon your mail will be delivered within hours from New York to Australia by guided missiles. We stand on the threshold of rocket mail." Arthur Summerfield, U.S. Postmaster General under Eisenhower in 1959.

"The concept is interesting and well-formed, but in order to earn better than a 'C,' the idea must be feasible." A Yale University management professor in response to student Fred Smith's paper proposing reliable overnight delivery service. Smith went on to found Federal Express.

"However fascinating it may be as a scholarly achievement, there is virtually nothing that has come from molecular biology that can be of any value to human living." Nobel Prize-winning immunologist Frank MacFarlane Burnet (1899-1985).

"Inventions have long since reached their limit, and I see no hope for further developments." Roman engineer Julius Sextus Frontinus, A.D. 10.

"That's an amazing invention, but who would ever want to use one of them?" President Rutherford B. Hayes to Alexander Graham Bell, 1876.

"It doesn't matter what he does, he will never amount to anything." Albert Einstein's teacher to his father, 1895.

"I have anticipated [radio's] complete disappearance -- confident that the unfortunate people, who must now subdue themselves to 'listening-in' will soon find a better pastime for their leisure." H.G. Wells, The Way the World is Going, 1925.

"The problem with television is that the people must sit and keep their eyes glued on a screen; the average American family hasn't time for it." The New York Times, after a prototype television was demonstrated at the 1939 World's Fair.

"It would appear we have reached the limits of what it is possible to achieve with computer technology, although one should be careful with such statements; they tend to sound pretty silly in five years." Computer scientist John von Neumann, 1949.

"Man will never reach the moon, regardless of all future scientific advances." Radio pioneer Lee De Forest, 1957.

IPBiz has not verified the accuracy of these quotes. Separately, IPBiz has heard a different variant of one quote:

"I had the idea of a new kind of pen that used a ball instead of a nib. But I decided it wouldn't work, so I dropped the project." Chester Carlson (1906-1968), inventor of the Xerox copier.

IPBiz heard that Carlson dropped the idea of a ball point pen because he found prior art in the patent literature, not because he thought it would not work.

Sunday, November 18, 2007

Tee-shirts with logos of entities of 20th century fiction

Rob Walker writes about, which makes tee-shirts and the like featuring logos depicting "some of the most memorable places, corporations and companies in 20th-century fiction." For example, a shirt with the logo Nostromo, the fictional ship in the movie Alien.

Trademark issue? Not likely. Hopefully, most consumers would not think that a tee-shirt sporting the name "Duff beer" of Simpson's fame was associated with the maker of (fictional) Duff beer.

Copyright issue? You bet.

Of IP, Walker writes:

Also, the intellectual-property issues involved are a bit weedy. (Though Ford has yet to hear from any of the creators of the movies that have inspired his T-shirts — he figures he’s helping keep the films fresh in consumers’ minds. He adds, helpfully, that he would be happy to work out a deal or stop selling any particular item if he is “stepping on anyone’s toes.”) Finally, fake brands — the parodic Simpsons products, Mooby’s in Kevin Smith movies, Big Kahuna burgers in “Pulp Fiction,” etc. — tend to be appealing partly because they are fake and often encompass a kind of critique of the absurdity of branding itself.

IPBiz challenges Noel Sheppard on quote lifting and the Merrill matter

In a post about the Merrill matter titled Was Former Journalism Professor Fired for Plagiarism or Sexism?, Noel Sheppard writes:

However, a former student of Merrill's, Matthew M. Reavy, who is now an associate professor in the Department of Communication at the University of Scranton, believes the plagiarism in question was way overstated. In a Thursday column entitled "If Merrill is Guilty of Plagiarism, is Ted Rall as Well?," Reavy pointed out how commonplace his former professor's supposed transgressions are in the industry:

Unfortunately, Merrill is being vilified for doing what is a matter of routine for many columnists, using a quote already in the public domain without noting where that quote came from.

Take nationally syndicated columnist Ted Rall, for example. He leads his Nov. 5 column with a quote:

"The fact that a lot of people dislike you is troubling," says the director of the Quinnipiac University poll, talking about Hillary Clinton (D-Carpetbagger, Slept Her Way Into National Prominence, NY).

Where did that quote come from? Did Rall pull it from a press release? Did he interview the poll director personally? No. In fact, the quote was taken from an Oct. 31 article in the Connecticut Post. Here's the quote as it appears in the cached version of the article:

"She has very high unfavorable numbers and that is a concern. The fact that a lot of people dislike you is troubling," said Maurice Carroll, director of the Quinnipiac University Polling Institute.

When contacted by e-mail, Rall readily acknowledged getting the quote from the Post, noting that "it is commonly accepted practice to quote from newspaper articles and other outlets in opinion columns."

As to Merrill, Rall said, "If things are as you say, his critics are ignorant of the norms of opinion writing. Taking quotes from media accounts occurs in every day's New York Times Op/Ed page."

Reavy went on to address how "quote lifting" in opinion pieces is rather common and not considered plagiarism by most in the field: (...)

Apart from the question of whether copying quotes from a publication without attribution to the publication is appropriate, one notes thata writer ought to at least verify the quotes are accurate.

Years ago, Chemical & Engineering News completely fabricated a quote by LBE in the area of buckminsterfullerene. Months after, a "correction" of sorts was issued. HOWEVER, years later, people were still "quoting" LBE on the basis of the initial C&E News fabrication. [See for example Buckminsterfullerene, Chemistry & Industry, p. 814 (Oct. 16, 1995).] If one is going to "lift quotes" from a third party article, one ought to verify with the quoted person that the quote is accurate. In the verification process, the plagiarism issue vanishes.

"Quote lifting" in the absence of quote verification should be considered to be bad journalism AND to be plagiarism. If journalists don't understand that, there is a problem. [In passing, though, IPBiz agrees that the "punishment" was not commensurate with the "crime," and that this matter might better have been handled differently. Still, the episode has highlighted issues about "quote lifting" which should be discussed.]

As an alternative, consider a quote done by LBE of Walter Cronkite .

In an article titled Foreseeing A Not Obvious Future in Intellectual Property Today (Sept. 2004, page 34), LBE used the text:

In 1952, a UNIVAC computer (with tubes) was used to accurately predict the landslide victory for Eisenhower over Stevenson, but Walter Cronkite, the election anchor for CBS, postponed discussing the results because he did not believe they were accurate.

Cronkite later stated: "But I don't think that we felt the computer would become
predominant in our coverage in any way." The first set of computer predictions
gave an electoral vote of 438 for Eisenhower and 93 for Stevenson. The
official count was 442 for Eisenhower and 89 for Stevenson.

Prior to submitting the article to IPT, LBE emailed Walter Cronkite to verify the accuracy of the quote and received a response from a spokesperson for Walter Cronkite that the quote was accurate.

"Quote lifting" can create urban legends, as in the attribution to Everett Dirksen about "a billion here, a billion there." Dirksen never said it, but allowed the quote-lifting to continue because he thought it was a good line.

[As an aside, one wonders what happened to computer-based election predictions when the Eagleton poll completely miscalled the result of New Jersey's stem cell bond vote on November 6, 2007.]

Pertinent IPBiz posts:

November 2007: landmark month in stem cell research. Wilmut drops SCNT approach.

First, New Jersey rejected the $450 million bond issue; then, monkey cloning was announced in the journal Nature by researchers at the Oregon Primate Center; now, Ian Wilmut, of Dolly the Sheep fame, announces he is abandoning SCNT. Curiously, these monumental developments have transpired approximately on the second anniversary of the unraveling of the monstrous fraud of Hwang Woo Suk.

Roger Highfield reported in The Telegraph:

Prof Ian Wilmut's decision to turn his back on "therapeutic cloning", just days after US researchers announced a breakthrough in the cloning of primates, will send shockwaves through the scientific establishment.

Prof Wilmut, who works at Edinburgh University, believes a rival method pioneered in Japan has better potential for making human embryonic cells which can be used to grow a patient's own cells and tissues for a vast range of treatments, from treating strokes to heart attacks and Parkinson's, and will be less controversial than the Dolly method, known as "nuclear transfer."

His announcement could mark the beginning of the end for therapeutic cloning, on which tens of millions of pounds have been spent worldwide over the past decade. "I decided a few weeks ago not to pursue nuclear transfer," Prof Wilmut said.

Most of his motivation is practical but he admits the Japanese approach is also "easier to accept socially."

His inspiration comes from the research by Prof Shinya Yamanaka at Kyoto University, which suggests a way to create human embryo stem cells without the need for human eggs, which are in extremely short supply, and without the need to create and destroy human cloned embryos, which is bitterly opposed by the pro life movement.

One significant comment at the Telegraph:

I agree with comment on lowering journalistic standards. Roger Highfield didn't check his facts:
"the Oregon research was reproduced by Dr David Cram and colleagues at Monash University, Melbourne"
Dr. Cram didn't reproduce Mitalipov's research, HE VERIFIED THAT RESULTS WERE TRUE.


Dr. Wilmut is a brilliant and pragmatic geneticist. Unlike many in the media, he is simply acknowledging a scientific fact: the nuclear transfer technique that is so hyped up doesn't seem to work. None of us really understand why. It should work. It would be helpful if it worked. But it doesn't. For those of us with limited research budgets, therefore, the Japanese technique is more useful and more likely to yield workable medical treatments, and it's time for all of us to devote more effort to further developing it.

See other IPBiz posts:

Saturday, November 17, 2007

USPTO reviewed 362,227 patent applications in fiscal 07

K.C. Jones writes on USPTO performance:

The USPTO released its fiscal year 2007 Performance and Accountability Report Thursday, Nov. 15. It showed that examiners reviewed 362,227 patent applications, more than any other year, and that attorneys analyzed a record 323,527 trademark applications.

The average time from submission of an initial trademark application to preliminary decision by an examining attorney was below three months. The USPTO's patent appeals board upheld examiners' decisions 69% of the time, up from 51% in 2005.


As a measure of success, Dudas pointed to a lower percentage of approved patent applications and higher rates of patents affirmed on appeal. In fiscal year 2000, 72% of all applications were approved, while only 51% were granted in fiscal year 2007. The office's focus on internal quality control accounts for the lower grant rate, and the quality of the trademarks was graded around 97% in 2007, [PTO Director] Dudas said.

Judge to hear anti-SLAPP arguments in Cha/Flamm matter on Nov. 20

As noted previously in IPBiz, K. Y. Cha filed a lawsuit against Bruce Flamm concerning alleged defamation against Cha related to the issue of whether an article in Fertility & Sterility was plagiarized. The relevant written text is:

"This may be the first time in history that all three authors of a randomized, controlled study have been found guilty of fraud, deception, and/or plagiarism."

One has to pay close attention to detail here. The "three authors" (one of which is Cha) related to an article published in Journal of Reproductive Medicine [JRM] which article Flamm has been discussing for years, although the plagiarism issue relates to a different article published in Fertility & Sterility, of which Cha was an author.

On Tuesday, November 20, 2007 in Dept 26 of Los Angeles Superior Court, Judge James Dunn will hear oral arguments on the anti-SLAPP motion filed by Flamm's attorneys in the case against Flamm filed by Cha.

SLAPP is an abbreviation for "strategic lawsuit against public participation," and is intended to provide protection to those who speak out on matters of significant public interest.

Here, K. Y. Cha is a major player in the in vitro fertilization [IVF] area, and the accuracy of his paper on prayer influencing the results of IVF [in JRM] is of potential interest to many undergoing or planning to undergo IVF treatments, which can be expensive, time-consuming, and sometimes painful. Separately, interests of K. Y. Cha controlled the hospital in South Korea where Dr. Kim obtained his results, which were presented first in Dr. Kim's thesis and then in the journal KJOG of KSOG. The later presentation of these results in the American journal Fertility & Sterility became the subject of the plagiarism controversy.

Plagiarism, while having a bad connotation, is not a defined offense in federal law. Plagiarism is not the same thing as copyright infringement. As the recent matter involving SIU President Poshard illustrates, all people do not agree on the definition of plagiarism. The panel convenved by SIU Chancellor Trevino to analyze the Poshard matter came up with the concept of "inadvertent" plagiarism, to create a category of plagiarism wherein copying without attribution was acknowledged, but said copying was done unintentionally.

Discussing the issues surrounding plagiarism is of significant public interest to define some sort of societal norm on what will, and will not, be tolerated as to the copying of the works of others.

As an aside, LBE mentioned the Flamm inquiry about the JRM paper in LBE's article in JIP:

footnote 13: I contacted both Professor Moore and the Boston University Law Review about the basis for the criticism in footnote 22, but to date have not received a response. In the area of scientific research, inquiries are not always answered, as Leon Jaroff has illustrated for the inquiries of Bruce Flamm about the paper by Kwang Y. Cha, Daniel P. Wirth, and Rogerio Lobo, 46 J.Repro. Med. 781 (2001); see,9565,660053,00.html.

IPBiz notes that, to this day in November 2007, LBE never received a response from Moore, who is now a judge on the CAFC.

Friday, November 16, 2007

Acacia loses patent case in Texas!

In a patent case against Microsoft, Acacia lost. CNN reported: A U.S. District Court jury in Texas found that the patent was not infringed and invalid.

Loring "at it again" in attack on Thomson stem cell patents

Californiastemcellreport, while still not covering monkey cloning, does have a recent post on Jeanne Loring, who gave a declaration against the Thomson / WARF patents.

The report quotes Loring from a recent piece on "Nature Reports: Stem Cells:"

"We were surprised when WARF responded (to the challenge) with a press release saying, correctly, that I and the other scientists also have patents. This isn't relevant to the validity of the WARF patents, and seems to be an attempt to undermine our credibility. Our patents, like (Jamie) Thomson's, are assigned to companies or to our universities, and we have little control over how they are enforced. We are not challenging Thomson; we're challenging the patent owner, WARF."

Loring is correct about the credibility issue, although she does not explore it closely enough. What Loring did certainly was not "prior art" to Thomson; her relevant work was filed after Thomson filed. What is is highly material to credibility is the fact that her claim was BROADER then the Thomson claim which she is currently attacking. It's hard to take Loring seriously when she says Thomson's claim is too broad when she claimed MORE broadly.

Loring splits hairs on "challenging Thomson." It is correct that the legal party at this time would be WARF, the assignee of the patents. However, it is the claims of the patent she is attacking, for which claims the inventor is Thomson.

See previous IPBiz posts: [which points out the recent work on monekey cloning seriously undermines the premise of Loring's attack on Thomson, that work on mice is predictive of work on humans]

Thursday, November 15, 2007

Dudas: In the near term, we'll see pendency grow for a few years

Diane Bartz of Reuters writing on issues at the USPTO:

The length of time it takes to get a patent -- also called "pendency" -- remains a problem and will not go away soon, said Jon Dudas, director of the U.S. Patent and Trademark Office, in a telephone interview.

"In the near term, we'll see pendency grow for a few years," he said.

AND, patent reform seems dead for 2007:

On Capitol Hill, the U.S. Senate is unlikely to take up before January a patent bill sought by many high tech firms, an aide to the Senate majority leader said on Wednesday.

Bartz mentions "hiring" of examiners, but not "departures" of examiners:

To tackle its backlog, the patent office said it hired 1,215 patent examiners in the 2007 fiscal year. The office currently has between 5,400 and 5,500 examiners, a spokeswoman said.

And, of the currently enjoined rules on continuing applications:

Dudas said he expected the patent office to win a legal fight with pharmaceutical company GlaxoSmithKline. The drugmaker has challenged the agency's new rules that put limits on both "claims," or how an applicant defines an invention, and on "continuations," the number of times an applicant can file on behalf of the same innovation.

Egregious plagiarism case in New Jersey by school principal

While views are split on the Merrill and Poshard plagiarism matters, this story from Phillipsburg, New Jersey is hard to believe:

Principal Mary Jane Deutsch doesn't believe she plagiarized when she copied the work of a Texas therapist without permission for her column in the high school newsletter.


But copying the essay is not plagiarism, she said, because, "I'm not being graded. I'm trying to provide messages for parents.

"I just don't get where this is plagiarism," she said, adding she's "not taking credit" for the column, which has her name on it. Murrah is not cited.

IPBiz: what can one say?

[The italicized material is by DOUGLAS B. BRILL of the Express-Times.]

Remember another "hard-to-believe" plagiarism story out of New Jersey:

NJ School Superintendant plagiarizes in speech given to National Honor Society students

New Jersey and you: copying together.

[IPBiz notes: "getting permission" is more related to copyright issues; "giving attribution" is the plagiarism issue.]


Note further discussion AND

Deutsch's copying of Murrah's prior work without attribution is plagiarism, much as SIU President Poshard's copying of text from a prior work into his Ph.D. thesis without attribution is plagiarism. However, note that Poshard acknowledges that his copying was an inadvertent mistake, while Deutsch seems to think copying without attribution is all right. It isn't. On a related point, note that copyright infringement and plagiarism are two different concepts, and one can infringe copyright without plagiarizing AND one can plagiarize without infringing a copyright. [see for example]
Also, allowance is made for situations in which "borrowed" material is understood to be borrowed. Thus, no one accused Abraham Lincoln of plagiarizing from the Bible when he noted that a house divided against itself cannot stand.

Lawrence B. Ebert
November 17

Major newspapers report on Oregon stem cell work

Further to a discussion by The Independent on November 11, major newspapers are now reporting the "monkey cloning" story. The Los Angeles Times says:

After years of false starts and an international scientific scandal, researchers said Wednesday [Nov. 14] that they had achieved a feat that some scientists believed was impossible -- cloning a monkey embryo from a skin cell of an adult and using it to harvest embryonic stem cells.

Scientists have previously cloned embryos and adult animals of a variety of species, including rats, dogs and cattle. But primates -- the family that includes monkeys and humans -- have proved remarkably resistant to the most sophisticated techniques in the cloner's arsenal.

Reproductive biologist Shoukhrat Mitalipov of Oregon Health & Science University and his colleagues reported in the online version of the journal Nature that they had successfully cloned rhesus macaque embryos using DNA from skin cells taken from the ear of a 9-year-old male. The resulting stem cells grew into viable heart and nerve cells, among others.

"This is a giant step toward showing that human therapeutic cloning is possible," said Dr. Robert Lanza, an embryonic stem cell researcher at Advanced Cell Technology in Worcester, Mass., who was not involved in the research. "It proves once and for all that primate cloning is not impossible . . . as many people had thought."

One can only wonder about the accuracy of the line "It proves once and for all that primate cloning is not impossible . . . as many people had thought" in light of the ready acceptance by stem cell workers of Hwang's false claims about human SCNT [somatic cell nuclear transfer] in the years 2004 and 2005.

The Times article got into issues with SCNT:

The team of researchers, from Oregon and the University of Nebraska Medical Center, used a technique called somatic cell nuclear transfer, in which genetic material from a somatic cell -- any cell other than a sperm or egg -- is transferred into the nucleus of an unfertilized egg.

The problem is that the DNA from the donor is not at the same stage of life as the material in the egg, and getting the two into rhythm can be difficult.

The process has been likened to a ballroom dance in which one partner starts on the beat while the second starts on the off-beat, destroying the rhythmic flow.

In terms of Jeanne Loring's arguments against the Thomson / WARF patents on the basis that "knowing about mice yields an obvious recipe for humans," note the following text:

Each species studied has required its own set of technical modifications to coax the two cellular constituents into step.

In many species, for example, researchers use dyes to see the part of the cell that holds the DNA in place. Mitalipov concluded that the stains were impeding the cloning process in primates and developed a technique using polarized light that avoided the problem.

They also discovered a variety of other technical tricks, including removing calcium and magnesium from the medium in which the cells were grown.

Gina Kolata of the New York Times was more direct about the lack of a mouse / human correlation:

In previous attempts, the investigators had used a method that worked well in mice. They marked the egg’s chromosomes with a dye that glowed under ultraviolet light. That let them see the chromosomes and be sure that they were removed before they inserted the adult cell with its genes into the egg.

The dye and ultraviolet light, the researchers surmised, might damage the egg. So they used a new method that shines polarized light through the egg, allowing them to see the chromosomes directly, without dyes.

Note a quote within the LA Times article:

This study is "really a combination of refinements of technologies that results in a better end result," said Paul J. Simmons, director of the Center for Stem Cell Biology at the University of Texas Health Science Center in Houston, who was not involved in the research.

Gina Kolata of the NYT also stated:

An advantage of using cloning to obtain stem cells is that they would genetically match a patient’s cells, making it unnecessary to suppress the immune system if the stem cells are used in treatment. Cloning could also produce stem cells that genetically match patients with complex diseases like Alzheimer’s. That might let scientists study those cells and understand how the diseases progress.

With the monkey work, some researchers say, cloned human embryonic stem cells seem more feasible. There is no way to know, of course, whether it will be harder or easier to repeat the work with humans. “I’m very enthusiastic,” said Dr. Leonard Zon, director of the stem cell program at Harvard’s Children’s Hospital. “The next step is definitely doing it in humans.”

[In passing, as of 10:30am (eastern) Nov. 15, californiastemcellreport still has not reported on the Oregon work which work is an obvious "plus" for stem cell workers/advocates. Asleep at the switch?]


Incredibly, californiastemcellreport (as of about 5:30pm) still has not mentioned the Oregon work. HOWEVER, there is a November 15 post at the report titled:

Celebrity Leeza Gibbons Named as CIRM Director

In this case, californiastemcellreport can be judged BOTH by what it didn't say AND by what it did say.

Scandal at WIPO over (alleged) faked credentials of director-general

Kamil Idris, director general of the World Intellectual Property Organization [WIPO] has moved up his departure date from 2009 to 2008 amid accusations of faked documents and credentials.

The AP reports that there was "an internal [WIPO] report that said Idris had claimed his year of birth as 1945 when he applied to join the agency, then changed it to 1954last year.

The earlier date would have helped him get his first job at WIPO in 1982 and subsequent promotions until 1997, when he landed the post of director-general at the agency. The later birth date could have enhanced his retirement benefits, the report said. Idris denies the allegations."

AP also noted "that Idris made differing claims about his qualifications when he applied for jobs.

Idris' 1982 application said he obtained a master's degree in international law from Ohio University in 1978. But Jessica Stark, spokeswoman for the university, told the AP Idris attended from Sept 12, 1977, to June 10, 1978, when he received a Master of Arts in African Studies.

Idris later issued a statement saying that he received a Master of Arts in International Affairs at Ohio University, omitting the reference to a law degree originally mentioned in the 1982 job application."

Hmmm, is there due diligence at WIPO? And, Ohio University again...

IPBiz has noted other "faked job resumes," including that of Trump's E. J. Ridings
[Resume of Trump's E.J. Ridings questioned ]

A challenge to Mark Chandler, general counsel of Cisco Systems

Mark Chandler of Cisco has an "open forum" piece on page B7 of the San Francisco Chronicle titled Patent reform is crucial for innovators, consumers which begins "Innovation is the cornerstone of America's economy" and quickly launches into a subjective attack on opponents of patent reform (HR 1908/S 1145):

The act, now before the Senate, has three principles that are not controversial except for those who benefit from an imbalanced system that encourages lawsuits and is favorable to plaintiffs: (...)[forum, post-grant opposition, apportionment of damages]

Those who are more familiar with published work in patent reform than Chandler is may recall a similar attack on opponents of post-grant opposition made by Charles Gholz in the March 2007 issue of IPT ["Who You Gonna Call?" (Intellectual Property Today, March 2007, page 8)]:

[opposition to post-grant cancellation proceedings based on] "a reflexive desire to maintain the status quo and a thoroughly human desire to preserve vested interests."

In response to Mr. Gholz's March 2007 article, I cited work by several people, published before the Gholz article (and obviously published LONG BEFORE Chandler's propaganda piece) who had NO VESTED INTERESTS but who opposed post-grant opposition. I included text from an article I published in 2005:

In an article in Intellectual Property Today in October 2005 ("Things Are Not Always What They Seem To Be," page 20), I had written:

The patent "quality" issue is one of several motivating the reforms proposed within H.R. 2795, which will be much discussed in the coming months. In my opinion, the most direct approach is to end fee diversion, give the USPTO sufficient funds to do the job of examination, and then evaluate its performance.n10 Adding on new responsibilities for the USPTO, without resolving the issue of resources for its core function, is questionable policy. In the specific case of patent oppositions, the addition of a product inspection step when there are foreseeable, identifiable remedies to the production itself violates the basic teachings of Deming.

Although submitted to IPT at the beginning of April 2007, the article did not appear in IPT until September 2007. The IPT article ended with an invitation to Mr. Gholz: Finally, this letter should be considered an invitation to Mr. Gholz to identify any elements of a "desire to preserve vested interests" of the authors that he might find in the above-referenced prior art to his March 2007 article. To date, Mr. Gholz has not responded. A similar invitation is extended to Mr. Chandler to show evidence that those who oppose oppositions are those who benefit from an imbalanced system that encourages lawsuits and is favorable to plaintiffs. Mr. Chandler can start with me, but he should also note that Cecil Quillen also opposes oppositions. At the end of the day, Mr. Chandler has no credibility in this matter.

[Work discussing why post-grant oppositions are a bad idea, all published BEFORE the articles by Gholz and Chandler, was presented on IPFrontline on 4 April 2007 in an article titled Post-Grant Opposition: a Bad Idea. In passing, note that Carlson has a recent article on the bad experiences of foreign patent offices with post-grant oppositions.]

LBE wrote to the SF Chronicle in response:

Of the words in Mark Chandler's piece:

The act, now before the Senate, has three principles that are not controversial except for those who benefit from an imbalanced system that encourages lawsuits and is favorable to plaintiffs: (...) second, give those accused of infringement, who have relevant evidence bearing on whether the patent should have been granted in the first place, the opportunity to bring that to the Patent Office for review

as one who who does NOT benefit from an imbalanced system that encourages lawsuits AND who has discussed objectively the problems with the proposed post-grant opposition procedure in S.1145, I take issue with accuracy of Chandler's statement.

Curiously, the approach of subjective attacks on opponents of patent reform, specifically opponents of the opposition procedure, has been tried before but when facts are presented the accusers run and hide. (see

In passing, note that Chandler's text:

second, give those accused of infringement, who have relevant evidence bearing on whether the patent should have been granted in the first place, the opportunity to bring that to the Patent Office for review

might leave the uninformed reader with the impression that "those accused of infringement" don't already have the opportunity to bring relevant evidence to the Patent Office for review. It should be self-evident that "those accused of infringement" can initiate patent re-examination proceedings, and, in fact, many accused of infringement HAVE INITIATED re-examination proceedings.

In a not-unrelated piece on "patent reform" on patenthawk titled Smoking Obama, patenthawk savages recent proposals by Senator Obama in the area of patent reform. In view of the telling last paragraph, the post might better have been captioned "Smoking Lemley?":

Law professor Mark Lemley, Douglas Lichtman, and Bhaven Sampat wrote a paper titled "What to do About Bad Patents," that reads like a blueprint for Obama's patent agenda. The fallacious premise for this is that the value of a patentable technology can be known from the get-go; news flash: it can't. Anyone sufficiently experienced in the patent business knows this. But if you're just a law professor...

One hopes that former law professor Obama doesn't adopt Professor Lemley's position that Gary Boone invented the integrated circuit [IC].

Is this the blind leading the fools or the fools leading the blind?

Wednesday, November 14, 2007

Daily Iowan: soft on plagiarists?

Following up on an earlier questionable analysis of the Poshard plagiarism matter, the Daily Iowan was fast to "go easy" on Professor John Merrill, who earned a doctorate in journalism in 1961 at the University of Iowa and who is in the UI Journalism and Mass Communication School Hall of Fame.

In an article titled Prof: Not a cheater, the DI quoted Merrill: "This has already been blown up all out of proportion. It's already gotten too much play, and there has been no plagiarism as far as I'm concerned."

As IPBiz has noted before, plagiarism is pretty easy to prove. If someone publishes text from an earlier publication, without attribution to the earlier publication, that's plagiarism. What Merrill did, in publishing text from Anna Koeppel's article in the Maneater without attribution, was plagiarism. If Professor Merrill does not understand that, there is a real problem.


Merrill, in a Nov. 14 article titled >Carelessness is not plagiarism writes:

I was, undoubtedly, careless in not naming The Maneater, the MU student newspaper, as the news source from which I got the several direct quotes from Women’s and Gender Studies departmental spokespersons. These direct quotes I used to spin off into my column published Nov. 4. I did not lift any sentences or paragraphs from anybody else’s writing. I look on these short, directly quoted expressions from the two women in the news story as “news-facts” and see them as in the public domain. Certainly, if what I did is plagiarism, it was unintentional and could, at the most, be considered technical, not unethical.

IPBiz notes that Merrill seems to be rather foggy on key concepts here. The works of Shakespeare are in the public domain. So are the works of various 19th century authors. The 20th century work involved in the Dastar case was in the public domain. Copying words and images from the work at issue in Dastar WITH false attribution would likely be deemed plagiarism by almost everyone but the copying and false attribution were neither copyright infringement nor a Lanham Act violation according to the US Supreme Court.


Other words used by Merrill --Careless, I'll admit, but not intentional-- evoke the defense of SIU's President Glen Poshard, whose cause was backed in an earlier piece from the Daily Iowan. In the patent business, "intent" is not an element considered in patent infringement, which is a strict liability offense. If you steal someone else's work, it's a problem, whether you intended to steal or not. If you indeed were willful in stealing, damages can be multiplied, but the liability itself does NOT depend on intent. So should it be in plagiarism. Both Merrill and Poshard plagiarized. What one does about it is a different question. Whether Merrill's "punishment" is appropriate can be highly questioned as being too severe. Poshard's punishment can be questioned as being too lenient.

And, the comparison between the Patriots and Poshard made by the DI was silly, and one notes the Patriots matter has been quickly forgotten while the Poshard matter drags on. The Patriots were deemed to have violated a rule of the NFL. They were punished. There was nothing for the coach, or anybody else, to explain. President Poshard, while talking about the matter, has not explained the plagiarism on page 54 of this Ph.D. thesis.


IPBiz notes text from a third party comment to an earlier IPBiz post on the Merrill plagiarism: This would have happened already had Mr. Merrill besmirched the name of Northwestern, Columbia, Berkeley, Harvard or the University of Georgia. If the University of Missouri continues to shrug off this matter, then whenever that University is mentioned in any context within my earshot, it will not escape the most injurious opprobrium. Moreover, truth will have vindicated me against slander.

As to the specific mention of Harvard, IPBiz reminds readers that the Harvard Law School has repeatedly let demonstrated plagiarism "slide by," as for example in the matter of Laurence Tribe. The truth of the matter is that academic institutions "wink" at plagiarism without doing much of anything. Further, we have page 54 of the Ph.D. thesis of SIU President Poshard, a rather clear case of plagiarism that Poshard's defenders refuse to discuss.


In a post titled Defining plagiarism: Is there a gray area?, has some suggestions for looking at the Merrill matter:

...our dean emeritus Ralph Lowenstein recommends that you read the following, in this order, before coming to judgment:

-->A Nov. 9 column about the situation by Tom Warhover, the Columbia Missourian’s executive editor for innovation.
Missourian forced to re-affirm its standards — the hard way

-->Merrill’s column of Nov. 3, which started the controversy.

-->An Oct. 5 article by Anna Koeppel in a student newspaper, The Maneater, from which Merrill apparently copied quotes without attribution.


The Baltimore Sun covers an issue with a quote of Martin Luther King, and confuses plagiarism with copyright:

There is no suggestion of plagiarism here. Dr. King's soaring rhetoric is in the public domain, and many politicians in many parties have used his words. But it's rather odd that the two leading Democrats would use the same phrase in less than two weeks. Urgency can be rather fierce if you need a good line.

That something is in the "public domain" is a copyright issue. Failing to cite the source is a plagiarism issue, whether or not the material used is in the public domain.

The text in question was Martin Luther King's famous phrase about the "fierce urgency of now." In passing, one notes that Martin Luther King's Ph.D. thesis at Boston University involved plagiarism of text from a previous BU thesis.


A piece strongly defending Merrill appears on

Missouri j-prof John Merrill gets more support from Romenesko readers. "In this case the ethical requirement to attribute is debatable," writes Edward Wasserman. "What is not debatable, in my opinion, is the ethical requirement on the part of the Missourian's management to show respect for a professor of genuine stature and bring proportionality to responding to an exceedingly minor instance where an optional courtesy was withheld." || Bob MacDonald: "Dr. Merrill is the last person in the world to do anything unethical. He has been treated unfairly and deserves better."

Note that the issue of attribution is described as an ethical requirement. There is no "law" on this and, as noted above, plagiarism is different from copyright infringement. There is a comment on "proportionality," and IPBiz agrees that the punishment was not commensurate with the offense, and, as well, that this has been blown out of proportion. HOWEVER, given that this matter was placed under a microscope, a lot of what was found has been troubling, at least to IPBiz.

Separately, of the attribution of quotes of third parties to the source receiving the quotation, IPBiz notes the Lemley matter of "transistor only foreseen in hearing aid applications." The origin of that allegation traced back NOT to anything the inventors of the transistor (Shockley, Bardeen, Brattain) ever said, but rather to a misunderstanding by an economics professor of a short news piece in the New York Times, which separately was critically mis-dated. In doing later research, it is imperative that a scholar have access to "where" a quotation came from. Merrill's lack of attribution is wrong BOTH because it took from the "work product" of someone else without attribution AND because it created a "missing link" in ever tracking back the story. Quotes have to be understood in the context they were given.

Separately, a different post on notes:

Merrill lifted a couple of quotations from a news story there -- only the words in published statements stuck between quotation marks -- and used them as a set up in the lede for his column. I would have done it differently. But if you read it, you will find it can reasonably be seen as legitimate borrowing, though in a fashion not used much anymore. Plagiarism is something else entirely.

IPBiz: one might ask Terry Carter what plagiarism is. When Poshard lifted a "summary" section from a book into the "summary" section at page 54 of his Ph.D. thesis (without attribution) was that legitimate borrowing?

The post at also included the text:

What the editor of The Missourian did was take up his toy gun and shoot at an old lion relegated to a carnival. He hit the target and did great damage only because he runs the sideshow.