Wednesday, April 30, 2008

NY Times on patent reform, inequitable conduct

Within a New York Times article titled Patent Law Battle a Boon to Lobbyists, one finds the recent argument by Jon Dudas:

Jon W. Dudas, the under secretary of commerce for intellectual property, said: “We are getting more and more unpatentable ideas, worse and worse quality applications. Historically, in the last 40 years, the allowance rate — the percentage of applications ultimately approved — hovered around 62 percent to 72 percent. It went up to 72 percent in 2000, but dropped to 43 percent in the first quarter of this year.”

Of various discussions involving Mike at TechDirt, one notes that the Dudas statement is based on the low allowance rate of the first quarter of 2008. There was a high allowance rate in 2000, which was all right for Dudas, but not all right for Jaffe and Lerner. The Dudas position is that bad applications have always been rejected, but that is not at all what Jaffe and Lerner said. What Jaffe and Lerner said does NOT presage the comments of Dudas, which are based on a phenomenon of first quarter 2008 (and which may have been "artificially" created by the USPTO).

The Times piece by ROBERT PEAR, although titled about lobbyists, begins:

A fight has erupted in Congress over the question of whether drug makers and other companies should be allowed to keep patents they obtained by misrepresentation or cheating.

Although patent reform involved issues about inequitable conduct, the major point of contention was apportionment of damages. The article by Pear got to damages in the 24th paragraph [!]. It did at least get to lobbyists in paragraph 3:

The legislation, affecting a wide swath of the American economy, has been a boon to lobbyists. In 15 months, two dueling business coalitions have spent $4.3 million lobbying on the legislation, which calls for the biggest changes in United States patent law in more than 50 years. Companies from almost every major industry have joined the battle.

Pear gave dollar numbers suggesting the Coalition for Patent Fairness outspent the 21st Century Patent Reform, $2.5 million to $1.8 million. IPBiz notes that the Coalition for Patent Fairness was very effective in its manipulation of the news surrounding various Congressional hearings.

New database of Australian patent applications

Marcus Browne of zdnet notes on May 1:

The AusPat database, launched this week as part of a joint initiative between the Department of Innovation, Industry, Science and Research (DIISR) and IP Australia, will allow researchers and the innovation industry to crosscheck patent applications with records dating back as far as 1979.


IP Australia's Johnson said that the database is divided up according to types of technology, and employs some search approximations similar to Google — such as a fuzzy logic — which takes into account potential spelling mistakes in a user's search terms.


IP Australia will also be working on uploading historical patent opposition data on to AusPat, with Johnson saying his aim is to include "as much information and as much specific detail about individual patents on the database as possible".

Tuesday, April 29, 2008

Patent law "survived" Edison?

Text by Brad Smith of Microsoft:

And none of us claim to have anything even remotely approaching all of the answers, but as we thought more about this it struck us that a few things may be pertinent. And one is what we really need is that there is a multifaceted approach. I can stand up here as a lawyer and say the law will continue to be important. It always has. It has survived inventions that began in 1878 when Thomas Edison invented the phonograph, and continues to this day, and it will continue to be important in the future.


And finally let me introduce the other two speakers. We wanted to provide you with some perspective about what were doing as a company in the technological space and give you a sense of where our technology fits in. We as a company are really in two very different spaces when you think about it. On the one hand the market will give you this description that we are a platform and tools provider. We are creating DRM tools for other content holders to use. I think its fair to say that our philosophy is that we need to create technology that is broad and flexible enough to meet their needs, but not dictate their choices.

Google patent application filed by New Jersey firm

Google's published patent application 20080097833 , titled RENDERING ADVERTISEMENTS WITH DOCUMENTS HAVING ONE OR MORE TOPICS USING USER TOPIC INTEREST INFORMATION , was filed by STRAUB & POKOTYLO of Tinton Falls, NJ. The first claim states:

A computer-implemented method comprising:
a) providing, responsive to a received search query, a document with a plurality of search results, the plurality of search results including a first search result associated with a first document having content concerning a first topic and a second search result associated with a second document having content concerning a second topic;
b) determining which of the first topic and the second topic a user is most interested in;
c) selecting one of a first set of one or more ads relevant to the first topic and a second set of one or more ads relevant to the second topic using, at least, the determination of user topic interest; and
d) serving, for rendering to the user, in association with the document, the selected one of the first and second set of one or more ads.

Note that this application of Google is a continuation application --> This application is a continuation of U.S. patent application Ser. No. 10/610,322 (incorporated herein by reference), titled "RENDERING ADVERTISEMENTS WITH DOCUMENTS HAVING ONE OR MORE TOPICS USING USER TOPIC INTEREST INFORMATION," filed on Jun. 30, 2003, and listing Krishna Bharat as the inventor.

Note that the parent application (10/610322) received a notice of allowance on 20 Sept. 2007. In the world of Quillen and Webster, Google would be trying to patent the same invention in 11/962,846. An RCE was filed in 10/610322 on 28 March 2007.

Paragraph 5 of the published application states: Advertising using traditional media, such as television, radio, newspapers and magazines, is well known. Unfortunately, even when armed with demographic studies and entirely reasonable assumptions about the typical audience of various media outlets, advertisers recognize that much of their ad budget is simply wasted. Moreover, it is very difficult to identify and eliminate such waste.

Monday, April 28, 2008

Graphene (single layer graphite) in nanoelectronics

The 18 April 2008 issue of Science has an article "Graphene Nanoelectronics" which introduces a paper by Ponomarenko et al. (page 356), which discusses quantum dots.

A figure on page 324 has a pyrene fragment, which along with other graphene fragments, is postulated to be a graphene-based single electron transistor.


From Synchrotron Radiation News, 21(2), 2008:

The Shirley Award for outstanding scientific achievement went to Alessandra Lanzara and Eli Rotenberg, "for their groundbreaking work measuring the electronic structure of graphene and the use of high-resolution angle-resolved photoemission spectroscopy (ARPES) to understand the unusual transport properties of graphene associated with Dirac fermions."

April 08 press release from "peer to patent"

The first non-final rejection by the USPTO in the "peer to patent" program pertained to a rejection of a claim of an HP patent based on prior art of an IBM employee (the second non-final rejection pertained to a claim of an IBM patent )

In sending the program’s first non-final rejection, the USPTO examiner used prior art and commentary submitted by Steven Pearson, a senior software engineer at IBM, to reject claims of an HP application. The second non-final rejection relied upon prior art and commentary submitted by Rob Cameron, a Professor of Computer Science at Simon Fraser University, to reject claims of an IBM application. As a result, Pearson and Cameron have been awarded the title “prior artist” on the pilot Web site.

The release also noted:

Because the USPTO agreed to examine patent applications in the pilot ahead of other applications, the time between application filing and the onset of examination shrank from four to two years.

The problems faced by a pioneering inventor

Further to an earlier IPBiz post related to the aluminum engine of the Wright Brothers, note the difficulties a "first inventor" faces.

After having returned to Dayton and caught up on work, the brothers sent out letters to the leading internal combustion manufacturers around the world, soliciting information on obtaining an engine producing at least 8 horsepower and weighing no more than 180 pounds. Most companies ignored the inquiry or sent at best dismissive or overly optimistic replies. At worst the brothers found this an annoyance, for they had, after all, already designed and built the engine that powered the bicycle "factory."

[from Richard P. Hallion, Taking Flight, Oxford, 2003, page 200]

***Of Langley

As a result of [of the War Department's interest in an airplane because of the Spanish American War in 1898], Congress granted Langley $50,000 and asked him to go ahead and build such a machine.
Langley was now convinced that a gasoline engine offered more promise of powered flight than steam. He went to one manufacturer after another, asking for an engine that would deliver 12 horsepower and weigh only 100 pounds. When these requirements proved too formidable, he turned the problem over to his gifted assistant, Charles M. Manly.

[from the American Heritage History of Flight, page 84]

Langley was a great pioneer, but --like Maxim and Ader-- he was too concerned with power plants and wing surfaces. It was not enough. The line of endeavor that finally resulted in victory did not go through these ground-based engineers; rather it went through those men who had not only mechanical ingenuity but also the skill, imagination, and daring to seek, first of all, control in the air through gliding experiments: through Lilienthal, Pilcher, and Chanute to the Wright brothers.

[from the American Heritage History of Flight, page 85]

In contrast, Heppenheimer, "First Flight" wrote of Langley:

"He wanted 12 horsepower--with a total weight of less than 60 pounds, a demanding specification indeed for that day. It was to run for three hours without overheating, with the cost for the research and development being under $2,100.

No one responded." [p.175]

Heppenheimer described the efforts of the Wright Brothers:

"To provide a suitable reserve of power, leaving 5.5 horsepower for useful thrust, the motor was to put out 8 to 9 horsepower.

Even in 1902, such performance did nto seem difficult to attain. Accordingly, the Wrights sent letters to a number of engine manufacturers, presenting their request. They wanted considerably less power than Langley's specification of 12 horses, four years earlier, with the Wrights being willing to accept twice the weight. Even so, no one has a stock engine that was ready for sale." [pages 181-2]

There is a discussion of Charlie Taylor's work for the Wrights:

The body of the first engine was of cast aluminum, and was bored out on the lathe for independent cylinders. The pistons wer cast iron, and these were turned down and grooved for piston rings. The rings were cast iron, too...

Dry batteries were used for starting the engine and then we switched onto a magneto bought from the Dayton Electric Company. There was no battery on the plane...

[pp. 182-3. T.A. Heppenheimer, First Flight, Wiley 2003]

Controversy over attorney billing in RIM v. Visto: mowing the lawn with your teeth?

Ben Moshinsky in an article titled A&O's BlackBerry patent win soured as costs inquest criticises hours tally noted:

One source said: "It's a generalisation, but North American clients do like to spend three hours every night going through the documents to make them more American. They spend hours on it, and it's a bit like mowing the lawn with your teeth." The context is important. It is not the first time RIM's legal piggybank has been smashed. In 2006 the company had six firms working flat-out for almost two years on its patent dispute with NTP, and it still had to pay out more than $600m (£302.83m) to settle the case. Opposing US firm Wiley Rein & Fielding grabbed a third of the settlement in fees, putting A&O's £5.2m in the shade.

Separately, of billing differences between an IP firm and a GP firm:

But what has made the most impact is the discrepancy in fees between A&O, a magic circle firm, and Taylor Wessing, a true IP heavyweight. The quantity of hours, rather than the rate, was the problem.
Market sources put Taylor Wessing's hourly IP partner rate at around £475 and A&O's at between £550 and £600, which implies that the two firms' prices are closer than their different bills suggest. But Floyd J noted that A&O had two associates who together worked more than 4,500 hours on the case, billing £2m.

A Mylan connection in improper WVU degree matter

A panel at West Virginia University [WVU] determined that there was no academic justification for retroactively granting Heather Bresch, the daughter of Gov. Joe Manchin III.

The Mylan connection, as reported by the New York Times, is as follows:

Ms. Bresch, 38, works for Mylan Inc. It is the world’s third-largest generic drug company and employs 2,000 people in Morgantown, W.Va. The company’s chairman, Milan Puskar, is a major campaign contributor to Mr. Manchin, a Democrat, and is the university’s largest donor, having given it $20 million in 2003.

Sunday, April 27, 2008

Judge Linn whacks BPAI in Reuning case

Judge Linn: "This is not a reflection of the Board's finest work."

More darkly -- I would like to believe it represents an aberration [but] I am concerned that it does not.

Patent reform discussion in Delaware

The News Journal has text on patent reform:

It may seem like an insider issue, but patent policy affects the public, said Dan Ravicher, executive director of the nonprofit Public Patent Foundation. He said policy makers need to consider the effect poor patent quality and other issues have on product prices, innovation and civil liberties.

"The patent system is one that benefits a very small group of people, and it has a corresponding harm on a very large group of people," said Ravicher, a patent attorney who started the foundation in 2003.

From DuPont's perspective, the U.S. patent system is the "gold standard in the world," said Uma Chowdhry, DuPont's chief science and technology officer.

DuPont holds more than 6,000 active U.S. patents, and they're coming at a greater rate -- since 2000, DuPont's U.S. patent filings have more than doubled, and patents granted have increased more than 50 percent, according to company financial filings.

Ravicher, who spearheaded a frivolous, and losing, challenge to WARF's patents, is wrong to say the patent system benefits a small group of people, unless you think
only a small group of people benefit from patented drugs, airplanes, transistors, integrated circuits, or photocopiers.

Facts, relied upon, must be verified, when challenged

Of IPBiz's comparison of news coverage for

#1. CIRM's claim for credit for the myelofibrosis research (with californiastemcellreport challenging CIRM's claim)

#2. Californiastemcellreport's quote of someone saying Yamanaka accepted a CIRM grant in August 2007 (with californiastemcellreport crediting CIRM for luring Yamanaka to California)

californiastemcellreport noted:

Thanks for your comment, Larry. I can't speak to the law journal question. I am not familiar with their practices. However, newspapers print falsehoods or dubious assertions on a daily basis. They are contained in material provided by government officials, attorneys, public relations people, letters to the editor, etc. Most of the time the material is in quotes but not always. As a practical matter, it is not possible for the media to check every single assertion made by persons quoted in stories. Just as it is impossible for me to check every assertion made by persons who comment on this blog, nor is it possible for you, Larry, to check claims made on your blog by others. The persons making those assertions have to take to primary responsibility for them.

and IPBiz refers to a previous post on IPBiz [ Accuracy in publication--time for law reviews to wise up? ]:

An editorial in the Trenton Times (22 Sep 04, p. A18) states:

-->If there was a time for the responsible news media to exert every effort to get it right, it's now... The democratic process can work only if the public is well informed and has faith in the information it gets, which is why it's essential that the traditional newspapers and networks retain -- or in some cases, recover -- their reputation for accuracy...

Beginning journalism students are taught to verify information before presenting it as fact... <--

IPBiz does not think californiastemcellreport verified the assertion that Yamanaka accepted a CIRM grant in August 2007 AND IPBiz does not think Yamanaka did accept a CIRM grant in August 2007. Californiastemcellreport RELIED on the truth of the statement to make arguments. IPBiz finds the overreaching by californiastemcellreport as to Yamanaka puzzling in light of the criticism of CIRM's overreaching in the myelofibrosis matter (with the latter overreaching criticized by californiastemcellreport).

***UPDATE. April 28***

In response to a comment by californiastemcellreport below, IPBiz notes a description of English 227 on the internet:

This is a course on the fundamentals of journalism. The most fundamental tasks a journalist must accomplish are:

Know the community
Gather facts
Verify facts
Put facts together in a news story
Compose on the computer
Edit and revise
Meet a deadline.

Separately from that, IPBiz discussed much of the commentary on the Merrill matter at the University of Missouri. IPBiz already wrote that the bigger problem with Merrill was his failure to verify that the quotes were accurate (not his so-called "plagiarism"), and some journalism professors were of the same mind.

An interesting, and frightening, observation is that law review cite checkers do NOT verify facts. They verify that the information (be it true or false) referenced in the later article (the "checked" article) can be found in the earlier article (the "cited" article). In such a way, the inventors of the transistor can be made to appear like fools, and, in the blink of an eye, Gary Boone becomes the inventor of the integrated circuit, with Noyce and Kilby the invisible men. It's great sport, but hardly something to build upon.

Further, IPBiz distinguishes a blog post which amounts "hey look at this" from a blog post which relies on a third party's facts, and fashions an argument based on the truth of the third party facts.

Saturday, April 26, 2008

Gold nanoparticles and Curley paper

Steven A Curley and co-workers have an article: Intracellular gold nanoparticles enhance non-invasive radiofrequency thermal destruction of human gastrointestinal cancer cells

Of the rf field: A variable power 0–2 KW 13.56 MHz RF field generator (Therm Med LLC, Erie, Pennsylvania, USA) was built to specifications for use in these experiments.

Of "gold nanoparticles" [GNPs], the paper states:

GNPs were prepared using previously described methods. In brief, 50 mL of aqueous solution containing 4.3 mg of solid sodium borohydride was added to 100 mL of 100 μmol/L aqueous solution of tetrachloroauric acid under vigorous stirring for at least 12 hours. Nanogold particles formed and were then filtered through a 0.22 μm filter. Transmission electron microscopy (TEM) was utilized to confirm uniform creation of 5 nm GNPs [25].

IPBiz notes that there seems to be an acceptance of ANY particle which passes 0.22 microns (ie, smaller than 0.22 X 10-6 meter).
Does the text "uniform creation" mean that the ONLY particles formed (and used) were 5 nm in diameter? It would seem so.

Merely as background.

Analytical Biochemistry
Volume 236, Issue 1, 5 April 1996, Pages 168-170: Preparation of Colloidal Gold Particles of Various Sizes Using Sodium Borohydride and Sodium Cyanoborohydride

1906 discussion of conductivity of colloidal gold

Stahl's "60 Minutes" piece on Kanzius: patents and conflict matters?

Although the Lesley Stahl "60 Minutes" piece on the Kanzius machine to treat cancer did mention the topic of patents, the piece did not mention that doctors are among the listed inventors. For example, in


-->we have Michael J. KEATING, 5754 Stillbrook Lane, Houston, Texas 77096 [Note that the mdanderson site mentions Keating in a 2004 post but separately discusses radiofrequency ablation work of S. Eva Singletary:

One of her ongoing clinical studies involves using high frequency
radio waves (radiofrequency ablation) to destroy small invasive breast
tumors without surgery. She is editor-in-chief of Breast Diseases and
editor of the breast sections for Annals of Surgical Oncology and the
journal Cancer.

--> we have William H. Steinbrink, 1608 South Shore Drive, Erie, Pennsylvania 16505

--> we have Robert J. McDonald, 821 Sand Dollar Drive, Sanibel, Florida 33957 [from ArizonaSports: One of them, Dr. Robert J. McDonald, director of nuclear medicine at the Southwest Florida Regional Medical Center in Fort Myers, Fla., said the invention was "absolutely amazing" and "pretty incredible."]

Although Lesley Stahl made it appear that Kanzius would be content if the invention were stolen [see videoclip available on yahoo captioned John Kanzius doesn't mind if someone steals his idea ], Stahl might have discussed how the three above-noted doctors have a financial interest in the success of the invention. Stahl of course did not even mention that the doctors are listed co-inventors on patent applications.

Most internet traffic on the Lesley Stahl piece was favorable. One exception is a University of Minnesota blog piece (by Gary Schwitzer) titled:
60 MINUTES PIECE ON KANZIUS CANCER CURE NOT WORTH 60 SECONDS. This post in turn cites to an unfavorable report from healthnewsreview.

Neither of these touch on the science fraud being perpetrated in the copper sulfate in the hot dog clip. IPBiz has discussed that.

Lesley Stahl duped on "60 Minutes" on 13 April 2008

Fool born every minute? Lesley Stahl's shameful piece on Kanzius.

People who are impacted by dread diseases such as cancer are looking for hope. It is a shame to exploit them.

Merely for general interest:

Text related to "60 Minutes": The Kanzius Machine: A Cancer Cure?

DAVID BRUCE at goerie has information in Kanzius’ waves of change . Of Bruce's text:

[Steven] Curley is reluctant to talk about the progress he and his team are having. He has submitted results to a major medical journal and is under an embargo until it is published.

"I can't jeopardize that," Curley said. "A colleague of mine at another institution talked about his project with a local television station and the journal sent back his paper without publishing it. It put their project way behind. We can't afford that."

IPBiz notes that if the embargo issue is in effect, then (likely) Curley's paper has been accepted. [depends on how accurately one is using the term embargo] Further, IPBiz wonders if Curley disclosed the patent aspects of the work to the journal.

Bruce's text --He [Kanzius] showed the device to Michael Keating, his leukemia physician at M.D. Anderson.-- might (possibly) raise some inventorship issues.

Bruce gives some detail on some of the people involved.

Separately, video clips of the Stahl piece are available on yahoo.

Of the PCT application [PCT/US2005/016071; publication no. WO/2005/118065 ], the filing date was May 9, 2005, the application was published December 15, 2005, and a written opinion was put out on July 11, 2006.

See also
Cancer victim's invention could kill tumours

Friday, April 25, 2008

UFlorida prof admits plagiarism

AP quotes the professor: "I have used the words of others and not properly attributed them. I am always in a hurry to get past descriptions to make my points, a hurry that has now rightly resulted in much shame and embarrassment. I have cheated by using pieces of descriptions written by others."

A more honorable response than that from SIU president Poshard, who brought us inadvertent plagiarism.

***Separately, the Harvard Crimson writes about anti-plagiarism software for JOURNALS -->

Despite the popularity of anti-plagiarism programs used on student work in college campuses, such programs are rather rare in academic publications. Many journals simply rely on experts to manually catch copied work during peer-review sessions.

“In days before electronic copies of articles, [peer reviews] were all we could rely on,” said Stuart M. Shieber ’81, a professor of computer science and a co-director of Harvard Law School’s Berkman Center for Internet and Society. “Now that we have computer tools, we don’t need to rely on just peer reviews.”

IPBiz suspects there might be great difficulty in such an approach, as applied to law reviews, because whole law review articles would be found to be little more than a catenation of text from the work of others.


JACK STRIPLING in an article titled Student vs. faculty plagiarism has text:

Rick Yost [Department of Chemistry, University of Florida] , chairman of UF's Faculty Senate, said the greatest consequence for faculty found to have plagiarized is reputation damage.

"I would guess the ultimate penalty for most academics would be disapproval by their peers," Yost said.

Yost added that a known plagiarist might have trouble publishing again, but Simon & Schuster officials said Friday that they would "absolutely" publish more Twitchell books.

Yost seemed to ignore the known disparity in treatment for plagiarism between faculty and students:

Given the seriousness with which student plagiarism is dealt with at UF, Yost said faculty should be treated accordingly.

"What's good for the goose is good for the gander," said Yost, a chemistry professor.

Of course, the SIU case with Poshard showed that "current" status can be the dominant factor, with Poshard's plagiarism while a student excused years later at a time when Poshard was president of SIU, with authority over the people investigating him.

[The UF matter involves James Twitchell.]

Patent reform 2008 as a house of mirrors?

The words could describe intellectual property professors in 2008:

Ah, we used to meet for strategy sessions at the University Club --and we were like ten guys in a house of mirrors entrancing each other. We satisfied each other with how smart we were...

No, not about a MENSA get together, but the words described another group of advisors to a lost cause. Unlike "patent reform 2008" (S. 1145), that cause at least got a vote, and later was redeemed. How will patent reform 2009 do?

Looking at the residue of "patent reform 2008," one sees that the Coalition for Patent Fairness was interested in apportionment of damages, and not much else. The "patent quality" problem was so much eye-wash, a predicate prop to the reform
two-step: there are tons of bad patents which lead to bad damages. SO --> Let's apportion damages. BUT, if we don't apportion damages, forget about that stuff about fixing bad patents. We didn't really care about that part.

Mike at TechDirt missed the point of Jon Dudas on bad applications. Dudas never said that bad applications turned into bad patents (bad patents were the issue of Jaffe/Lerner and of Quillen/Webster). Dudas in fact said the opposite, that quality of issued patents was quite good. Dudas was arguing that there were (recently) lots of bad applications, and the USPTO was rejecting them. Dudas (obliquely) indicated that the bad applications were the fault of big companies, who were trying to accumulate lots of patents. Dudas mentioned the toilet queue patent of IBM, tho he didn't mention IBM by name. In linking Dudas and Jaffe/Lerner, Mike Masnick demonstrated he did not understand what was going on.

The actions of the Coalition for Patent Fairness are consistent with this model. Many members thereof never really cared about "patent quality" because they are among the biggest abusers of poor quality applications and of repeated continuing applications. They were concerned about apportionment of damages as it impacted their status as DEFENDANTS in patent litigation. When that issue could not be resolved, it turned out that the other issues were not so important after all. This should be remembered in 2009.


Further to comments below by Mike of Techdirt, let's return to Mike's words:

[Dudas] is now complaining that the Patent Office is being overwhelmed with really crappy patent applications. You think? Lerner and Jaffe pointed this out years ago and it's not difficult to see why. With the USPTO approving tons of bad patents, and the courts all too often siding with the patent holder and expanding what's patentable, combined with people who have done nothing getting hundreds of millions just for holding a piece of paper, is it really any surprise that the incentive structure would push people to file for as many bogus patents as possible, in hopes of getting them through the obviously questionable process?

[See also earlier IPBiz post.]

It's self-evident that Mike confused what Jon Dudas said [more bad applications lately but, don't worry, we are rejecting them] with what Jaffe and Lerner said [USPTO and courts are allowing bad (issued) patents]. Jon Dudas is definitely NOT saying the USPTO is approving tons of bad patents, which IS what Jaffe and Lerner were saying.

IPBiz does not agree that rejection numbers for one quarter [which comprise applications submitted over MANY (earlier) quarters] are proof of a sudden decline in the quality of applications. So Jon Dudas may be playing a game here, but it's a game inspired by Quillen and Webster, and later Jaffe and Lerner. In the land of the blind (Mike's world), the man with one eye is king.

IPBiz has repeatedly asked Mike for proof of his assertion that the USPTO is approving tons of bad patents. Although Mike has made many comments, he hasn't provided evidence of any kind. Mike can't cite Jon Dudas, who would deny such a claim.
As is evident from page 144 of Innovation and Its Discontents, Jaffe and Lerner don't know what a bad issued patent is. They had to copy their one "example" from someone else, and they got it wrong anyway. Other than mumble Jaffe/Lerner Mike does not seem to have anything on his own. Copyists typically don't have much in the way of original thoughts.


Another comment by Mike below and still no evidence to support his assertion that the USPTO is approving tons of bad patents. Dudas didn't say that. Jaffe and Lerner did say that, but had no evidence. Apparently Mike doesn't either. If Mike didn't have Jaffe/Lerner, he would have nothing, except perhaps Bessen/Meurer. Dudas was talking about the bad patent applications of the IT people, like the airplane toilet queue patent. He could just as well have been talking about IBM's outsourcing application, Microsoft's employee monitoring application, or Apple's virtual store application. The people pushing the "patent quality" argument WERE the "patent quality" problem.

Of course, the people pushing the "patent quality" argument didn't really believe in it. They were worried about "apportionment of damages." When Senator Specter pulled the plug on "apportionment of damages" (as understood by the Coalition for Patent Fairness), the "reformers" went home. Befuddled Mike is still looking at the smoke and mirrors. Mike, the train left the station! It's over for 2008. The only people listening to you are the gerbils, or maybe Disney's suicidal lemmings (another construct without evidence).


There's a third comment by Mike below. For the first time, Mike tries to present evidence for his assertion of "tons of bad patents", in the form of re-exam statistics. He doesn't quite get the numbers right, but it's what he didn't tell you that matters most.

Mike didn't tell you the number of re-exam requests. Between July 1, 1981 (when re-exams started) and December 31, 2007, there were 9,060 re-exam requests. Let's consider ISSUED patents. US 4,275,500 issued on June 30, 1981. US 7,275,500 issued on October 2, 2007. Mike is talking about an effect of magnitude 10,000/3,000,000 = 0.3%. Does Mike's invocation of re-exam numbers prove the existence of "tons of bad patents"? Not unless you believe something at the level of 0.3% represents the whole of the thing.

The true numbers for re-exams are a bit different than Mike's. 26% of re-exam certificates issued with ALL claims confirmed. [For all the smoke, the Eolas patent was one of these.] 10% issued with all claims canceled. The rest have some claim change. As in the re-exam of the WARF patents, the claim change may be trivial.

Mike is still looking at the smoke and mirrors, whether in his invocation of Jaffe and Lerner or in his using re-exam results without mentioning the scope of their significance. He says he didn't support patent reform; he didn't mention that he was proposing worse things.

***UPDATE on May 1***

Mike has a fourth comment below. Mike writes: You point out the full numbers, but the 0.3% is not an accurate number at all. Just because most patents don't get re-examined doesn't mean that they're all good. Of course, the 0.3% number derives directly from (# of re-exams)/(# of issued patents) over about the same time period. The number is accurate, and Mike provided no counter-evidence except the usual ipse dixit.

Mike has not learned the logical point about "you can't prove a negative." If Mike says the USPTO is issuing tons of bad patents, it's Mike burden to present some evidence backing up his affirmative assertion. Mike can't do that.

Further, one could look at Mike's invocation of re-exam numbers the other way. Only 0.3% of issued patents get re-examined, and only 10% of the re-exams result in the invalidation of ALL claims, the "trademark" of a really bad patent.
That's an error rate of 0.03%. And, if the re-exam rate is only 0.3%, then there is no evidence that innovation is really being held up. If there were tons of bad patents that were bothering people, then the re-exam rate would be a lot higher than 0.3%.
BUT IS ISN'T ! Mike shot himself in the foot on this one.

John Duffy and Translogic Technology and the BPAI

Marcia Coyle of the National Law Journal highlighted work of Professor John Duffy of GWU related to the case Translogic Technology v. Dudas, No. 07-1303, which work questions the constitutionality of appoints of BPAI judges by the USPTO director:

Such a constitutional flaw, if legitimate, could call into question the hundreds of decisions worth billions of dollars in the past eight years. The flaw, discovered by highly regarded intellectual property scholar John Duffy of George Washington University Law School, could also afflict the appointment of nearly half of the agency's trademark appeals judges.

One recalls that CAFC Judge Plager wrote about Professors Nard and Duffy in 2007:

We recognize that it is always easier to critique someone else's work than to be original in one's own thinking. (...) The fact that, in our view, the authors' particular solution fails to address the problem in a useful way does not detract from the contribution they make in exploring these issues, and relating the academic and legal literature to the needs of the patent system.

See IPBiz post Judge Plager takes on Nard and Duffy: easier to critique than to be original talking about 101 Nw. U.L. Rev. 1735 (2007)

Recall also text from a different IPBiz post:

Within the legal academic literature, one can also find unusual statements about the invention of the xerographic process. For example, John F. Duffy, in Rethinking the Prospect Theory of Patents, 71 U. Chi. L. Rev. 439 (2004) wrote:

Seeking a better way to copy images, Chester Carlson, the eventual inventor of the xerographic process, decided to investigate electrostatic methods of copying because he knew that "a lot of big companies were deeply involved in research using chemical or photographic processes, and [in the inventor's words]--'Who was I to compete against Eastman Kodak.'" n97 Although today xerography is seen as a great invention of the twentieth century, that was not true even in 1959, nearly two decades after Carlson had received his first patent. Then, as Xerox was introducing its first plain-paper copier, the conventional wisdom was that the new machine would "find plenty of competition" in the "crowded field" of office copying, and that Xerox's business strategy was a "calculated risk" and a "gamble." n98 [page 464] That some such gambles pay off handsomely does nothing to demonstrate that rents are preserved, for the many less famous failures must be considered. n99 Any claim that competitive rivalry poses a diminished threat at some stage of technological development is speculation, supported by neither intuition nor empirical proof.

IPBiz notes that Chester Carlson worked on what would later be named the xerographic process because he believed it was better than the existing processes. Recognizing that he individually lacked the resources to develop his invention, he tried to make deals with other companies, INCLUDING Eastman Kodak, by using the patents he possessed.

Perhaps the treatment by Duffy is not as bad as Lemley writing that Gary Boone invented the integrated circuit, but Duffy
did not get the history right.

David Freeland, CIO at USPTO, leaving

FCW reports: David Freeland, who has been chief information officer [CIO] at the Patent and Trademark Office [USPTO] since 2005, has announced his plans to leave the agency.

On 22 February 2005, one had the release:

Jon Dudas, the Under Secretary of Commerce for Intellectual Property and Director of the Commerce Department’s United States Patent and Trademark Office (USPTO), today administered the oath of office to David J. Freeland, the USPTO’s new Chief Information Officer.

“I am delighted to welcome David Freeland to our senior management team,” Under Secretary Dudas said. “The position of Chief Information Officer is vital to meeting the major goals of our 21st Century Strategic Plan—effectively using electronic tools to support the processing of high quality and timely patents and trademarks. I am confident that David has the experience and leadership we need to realize our objectives.”

Patently-O had reported on 20 Dec. 2004:

The position of CIO is critical for the PTO as the office is undergoing a transfer to a paperless office. Doug Bourgeois, Freeland's immediate predecessor, is credited with initiating the move to electronic format:

LINK: If it weren't for Doug Bourgeois, his colleagues say, patent examiners would still be examining paper submissions as they had for 200 years.

See previous IPBiz post on Bourgeois.

More on Cha/Flamm and the californiastemcellreport

There are two comments on the californiastemcellreport post titled Flamm Wins Latest Round Against Korean Stem Cell Researcher, one of which is from
a spokesman for Dr. Cha who said, in part:

The [Los Angeles] Times quoted the editor of the Korean Journal of Obstetrics and Gynecology saying he was certain it was “a case of multiple publication,” which is not plagiarism, and casts doubt on the truth of the plagiarism allegation.

IPBiz notes this is tricky. The editorial policy of Fertility & Sterility, in place at the time of the infraction, states

Previously published material can be cited in a manuscript, but it must be indicated by quotation marks. If more than 200 words from a previously published manuscript appear in a manuscript that is submitted as an original work and if this material is not indicated with quotation marks, the material will be considered to be plagiarized. Plagiarism is also a serious offense. [Contained in earlier IPBiz post.]

There was more than 200 words, not in quotes, from a paper previously published in KJOG. As far as the policy of Fertility & Sterility was concerned, this was plagiarism. What KJOG calls this is irrelevant. As a separate matter, when authors copy the results of a first published paper into a second paper, without citing the first paper in the second paper, IPBiz considers that plagiarism. Although there was some sleight of hand involving authors common to the KJOG and FS papers (Lee and Sung Won Cho ), no one mentions that the plagiarism criteria of FS, which don't involve a common author safe harbor, clearly label this behavior plagiarism. QED. The Cha spokesman did not address this problem.

The Cha spokesman also pointed out:

As we all now know, these causes for doubt in the L.A. Times article were borne out by the F&S editor’s subsequent retraction and apology in which he stated publicly: “Considering the facts of the matter, I consider my references to ‘plagiarism’ and ‘perjury’ to be inaccurate and regrettable.”

From an analytical point of view, does editor DeCherney's apology erase the objective conclusion based on the uncontested facts?

Further, the spokesman did NOT mention, that, at the relevant time, F&S, its parent, and the LA Times had been threatened with lawsuits by Cha.

The irony of the Flamm matter is that an individual (Flamm) ended up carrying the legal weight that F&S, its parent, and the LA Times declined to carry. Additionally, the legal issues in the Flamm matter were a bit different than those that would have been confronted if the Fertility & Sterility people had gone to court.

As some additional matters, there is no federal crime, or tort, of plagiarism. There is a cause of action for copyright infringement in both the U.S. and South Korea. The Cha spokesman conspicuously avoided discussion of "what happened" as to copyright infringement in South Korea.

In passing, IPBiz does not distinguish much between the complaints discussed on
californiastemcellreport about CIRM taking "too much" credit for the myelofibrosis work (at UCSD) with californiastemcellreport giving "too much" credit to CIRM for Yamanaka.

See also

**Comment submitted to californiastemcellreport on 26 April 2008 -->

I am curious about the journalistic ethics dimensions of text surrounding -- But because of the use of a single, anonymous source, many newspapers would not have carried the story as matter of policy. -- In some earlier posts on californiastemcellreport (for example 17 March 08, with comments on 19 March 08), there was discussion of the reliance by californiastemcellreport on a single, not anonymous, source, which seemed to convey false information to the effect that Yamanaka accepted a state [CIRM] grant in August 2007. Are you suggesting that a journalist may properly rely, without verification, on a single, not anonymous, source, and, when challenged, direct the reader to that single, not anonymous source? This sort of deflection has been a problematic area with "cite checking" in law journals, wherein a student cite checker merely checks the cited material is present in the earlier work, not whether the earlier work is accurate. Thus, all published errors in history become fair game for re-telling, with impunity. You seem to suggest journalists play by the same rules as law review cite checkers. True?

See also

Semantic ramblings on the meaning of "accept"

National Review on Biomedical Patent

Makan Delrahim writes:

Heads, I win! Tails, I win! That is essentially how the state of California views the issue of patent infringement. States own thousands of patents and raise millions by licensing them — and that is good innovation policy. And, when someone infringes their patents, they aggressively use the federal courts to enforce their rights. Yet, when states violate the rights of other inventors and innovators, they unfairly hide under a troubling view of the 11 Amendment’s sovereign immunity to get off scot-free. This is bad innovation policy.

Perhaps Delrahim should read Florida Prepaid Postsecondary before making incorrect statements [scot-free]. States must provide a forum in which to be sued. Not unlike suing the FEDERAL government in the Court of Claims. Irresponsible journalism by Delrahim.

Thursday, April 24, 2008

Plenty of lawyers available to staff boutiques, contrary to PatentHawk blog

In a post titled A New Kind of Patent Boutique? on 20 April 08 on the PatentHawk blog, Michael Martin wrote text which included:

When will our profession give up our pretentious game of arguing that law is so different from any other kind of professional practice? The benefits of cross-disciplinary work would more than outstrip the costs of less uniformity in our thinking about legal doctrine. I would love to try the experiment of teaching business students a single class on how to read case law and then sending them off to a firm as summer associates without telling the firm which students were business and which law school students. How many law firms would be able to tell the difference by the end of the summer?

Of the sentence -- How many law firms would be able to tell the difference by the end of the summer? --, IPBiz states firmly that IPBiz would be able to tell the difference at the beginning of the summer AND at the end of the summer. IPBiz additionally states that any lawyer who can't tell the difference between a B-school student and a law school student, doesn't have an eye or an ear for law.

As an additional matter, IPBiz had a post titled Are MBAs competent to analyze patent law? which directed three inquiries to PatentHawk, the blog. Although Michael Martin did make a comment, he did not attempt an answer to any of the three inquiries. Relevant to the inquiries, IPBiz notes that Mike at Techdirt has an MBA from Cornell and has more familiarity with IP caselaw than any student will learn in a summer AND his commentary can be distinguished from that of any law student or IP lawyer. Thus, Mike Masnick is a counter-example to Michael Martin's conjecture.

A separate aspect of Michael Martin's piece is a commentary suggesting there have not been enough lawyers to handle legal jobs in recent years. There are many pieces of data that Michael Martin did not address. Merely fyi, IPBiz includes some employment rates, at graduation, for graduates of certain law schools, taken from Barron's Guide to Law Schools, 17th edition (2007)-->

University of Chicago (law school of Jon Dudas and LBE, among others): 99%

University of Akron: 60%

University of Alabama: 60%

University of Arizona: 65%

University of Arkansas: 48%

University of California, Hastings: 61%

University of California, Boalt: 83%

University of California, Davis, 75%

UCLA, 89%

University of Cincinnati, 63%

University of Florida, 66%

Florida State, 62%

Florida Coastal, 40%

University of Hawaii/Manoa, 60%

University of Illinois, 72%

University of Kansas, 60%

University of Kentucky, 63%

University of Miami, 64%

University of Missouri/Columbia: 57%

Seattle University: 36%

Saint Thomas University: 23%

Regent University: 51%

Pepperdine: 59%

Pennsylvania State: 61%

NIU: 49%

North Carolina Central: 49%

New England School of Law: 34%

Mercer University: 56%

Inter American University of Puerto Rico: 20%

IIT/Kent: 72%

Hamline: 45%

Gonzaga: 41%

Franklin Pierce: 60%

Duquesne: 60%

Cleveland State: 65%

CUNY: 28%

California Western: 49%

Boston College: 72%

Baylor: 65%

Ave Maria (Ann Arbor, MI): 38%

Appalachian: 41%

These numbers do NOT suggest that the economy is snapping up the lawyers that are out there.


Comment at

A comment of sorts to Michael Martin/"PatentHawk the blog" may be found at

Whether "" passes branding 101, trademark 101, or Raffles v. Wichelhaus is a topic for the blogmaster. If you allow stuff on the blog with which you don't agree (? --> I was even polite enough to not comment on it), the ambiguity is yours. A related issue may be found in commentary on the ill-fated patent troll tracker about Niro. Was Frenkel responsible for the (tasteless) comments of others?
Opinions differ.

Individually, I would have trouble with ANYONE who thinks Gary Boone invented the integrated circuit doing ANY patent work for me. Is that platinum work, or fool's gold work? Again, opinions differ.

April 24

***Also, which "Michael Martin" are we dealing with?

Effects of Ion Irradiation on Microstructure and Mechanical Properties of Sputtered Cu/V Nanolayers. Engang Fu1, Jesse Carter2, Michael Martin2, Greg Swadener3, Amit Misra3, Nan Li1, Lin Shao2, Haiyan Wang4 and Xinghang Zhang1; 1Mechanical Engineering, Texas A&M University, College Station, Texas; 2Nuclear Engineering, Texas A&M University, College Station, Texas; 3Mater. Sci. Tech. Div., Los Alamos National Laboratory, Los Alamos, New Mexico; 4Electrical Engineering, Texas A&M University, College Station, Texas.

Michael F. Martin is a 2006 grad of Stanford Law and is listed on the attorney roster as a "patent agent." What is his science background?

***Update. April 25. The following was posted on patenthawk the blog -->

Concerning your words --I noticed you wouldn't stoop so low on your blog to mention other bloggers in the patent community. --, had PatentHawk (the person) bothered to check, he would have found PatentHawk (the blog) is explicitly cited in 53 posts on IPBiz (Patently-O 60 times).

IPBiz does not have a blogroll, but does mention other bloggers in the patent community. The two are different concepts. Blogrolls sound in the mutual backscratching of citation daisy-chaining in the science (and academic legal) communities: "I'll cite you if you cite me." Many patent blogs (NOT including patenthawk the blog) do not mention IPBiz, likely for that reason. As one specific story, shortly after IPBiz discussed the topic of citations to blogs, by law review articles, using Patently-O as an example (Patently-O being the most cited patent blog), IPBiz (listed as "Ebert") was removed from the Patently-O blogroll ("friends"). On the flipside, Patently-O lists
troll tracker TWICE as a friend, even though that link, for most mortals, is now useless. In the end, do you think your comment about "stoop so low" was a platinum concept? It might appear that patenthawk the person elevated form over substance, a base metal concept.

I don't understand your point about --Michael Martin does not work for me--. First, no one said he did. Second, are you implying that if he did, you would not post his material? Third, the issue is the posting on patenthawk the blog of material with which patenthawk the person (apparently) does not agree. Many news organizations post a spectrum of views, but they typically have disclaimers like "the views expressed ..." Otherwise, one has the maxim "silence implies consent." (Thomas More lost his head anyway.) I seem to remember that when Martin posted (the day after the "Gary Boone invented the integrated circuit" discussion) there were a few warnings in his post. In the end, it's your blog.

The text --Individually, I would have trouble with ANYONE who thinks Gary Boone invented the integrated circuit doing ANY patent work for me.-- was directed to how I do business, not how you do business. I generally find it useful to know "who" made an invention, "when" they made it, and "what" the consequences were, all of which were missing in Lemley's law review article "Patenting Nanotechnology."

On the mutual backscratching of "blog rolling", as seen in the peer review business, note ezine:

Any researcher will tell you that lots of bad research is done that gets published. However, it's a publish or perish world. Since researchers and their peers are all caught in this same publish or perish demand, and review one another's work, they subtly collude to get as much research as they can funded and published. You scratch my back and I'll scratch yours. They argue among themselves in the journals as to the quality of their work, and for sure there is some competition among scientists as they solicit grants from the same sources to do pretty much the same thing. But there is overall an understanding that, as peers, united they stand and divided they fall.

Of course, this means that peer review is nothing more than a political arrangement for research workers, like a guild or union. It's goal is to keep control over their field, suppress the competition, and assure continued cash flow. It has nothing to do with science, the systematic search for truth, which must not be tainted by financial motives or tempted by personal gain.

Separately, some time in June 08, IPBiz appeared as a link on patently-o.

New activity on European patent front?

IAM reports of a major breakthrough in the creation of a Community patent in Europe – a single patent prosecuted at, and granted by, the EPO that would be valid in all EU member states.

Wednesday, April 23, 2008

Former BMS VP Bodnar indicted for lying about patent deal

The Wall Street Journal reports: The Department of Justice indicted Andrew Bodnar, former senior vice president of Bristol-Myers Squibb Co., for allegedly lying to the federal government about a patent deal for the blood-thinning drug Plavix.

See also:

The homes of Bush and Gore

An email is circulating comparing the eco-friendliness of the homes of Bush and Gore.

Laura Bush was interviewed on national television about the Crawford, Texas home this week.

Fortune on pond scum and biofuels

The last two paragraphs of the Fortune article:

That sounds about right: Algae-energy research is bubbling with new ideas and talent and is beginning to get backing from venture capital. "In the past the money in this area went only to academics," says Matt Caspari, CEO of Aurora BioFuels in Alameda, Calif. "Now it's reaching entrepreneurs who are applying technologies that didn't exist ten or 15 years ago."

Two-year-old Aurora is developing biodiesel from oil-rich algae cultivated in labs at the University of California at Berkeley. Solazyme, a South San Francisco biotech, is working to develop algae that produce more gallons of biodiesel per acre. And several players, including Kent SeaTech (San Diego), A2BE Carbon Capture (Boulder), and LiveFuels (Menlo Park, Calif.), plan to combine aquaculture with algae farms.

The article also noted: A 2004 analysis at the University of New Hampshire concluded that all the transportation fuels in the United States could be supplied by algae grown on less than 30 million acres of desert - an area equal to about 3% of the U.S. land devoted to farming crops and grazing for animals.

Because of its scope, the article did not discuss Coskata.

Someone arguing "too few lawyers"; say it's not so!

The blog PatentHawk (through Michael Martin) wrote:

That pool of talent hasn't grown much in decades, even as the demand for legal services has exploded.

In further support of this, there was a comment:

The number of JD/LLBs awarded at ABA schools in 1975: 28,729.

The number of JDs/LLBs awarded at ABA law schools in 43,518.

That's about 1.5% per year, far slower than the growth of our economy, much less the demand for legal services (think about globalization), over the same period.

IPBiz notes from Google Answers :

According to the American Bar Association, there are 1,049,751
currently practicing lawyers in the US as of the end of 2002.

This is up from 1,048,903 in 2001.

This information was sourced from the following American Bar
Association document, which has a breakdown per state:

American Bar Association Market Research Department

Unfortunately, both the American Bar Association and American Bar
Foundation are unaware of non-practicing lawyer statistics. This
statistic is a tough one to come by. A rep from Forbes magazine who
does a lot of the legal writing for the magazine agrees with this,
citing that the definitions of "non-practicing" could be ambiguous and
difficult to nail to a demographic.

Here's a brief excerpt on the topic, for what it's worth:
"Forbes magazine reports that in California the number of inactive
attorneys has risen by 50% from a decade ago and in Massachusetts the
number of inactive attorneys grew 3% in three years. Further, Forbes
says, a full 38% of attorneys say that they somewhat regret their
career choice. Additionally, Harvard Law School counselors estimate
that 20% to 30% of active attorneys are considering another career."

The Google site also notes:
This 1996 publication says there were 720,000 lawyers practicing in
the U.S. at that time
, and 25,000 new graduates per year

As rough numbers, IPBiz notes 25 X 103 / 106 =0.025. The number of law school grads
in any year is a tiny fraction of "all" lawyers, and there seem to be a lot of lawyers leaving
the profession every year.

As additional data that might be accumulated, one might think back to the "massacre" of
patent attorneys that took place after the "dot com" bubble broke. One could also contemplate

A lot more can be said about this. It's not difficult to find "underemployed" patent attorneys to hire.

Variants of Martin's argument are found in the science area. Think back to the Hale-Bopp comet saga.

This is not unrelated to the scam perpetrated by IT companies pertaining to immigration visas. There's
nobody in the U.S., so let's hire more foreign nationals.

This author (LBE) had an inadvertent involvement in one DOL case (available somewhere on the internet).
To see how the pathetic the "there's nobody in the U.S. to hire" arguments are, when actually countered by someone,
that case is instructive.

Returning to "too few lawyers" argument, perhaps there's some underemployed patent attorney who might comment.
But then again, they are probably not reading blogs.

*** As a separate, unrelated point -->

footnote 158 of 16 Tex. Intell. Prop. L.J. 151 (YouTube or YouLose: Can YouTube Survive a Copyright Infringement Lawsuit?) :

17 U.S.C. ß 512(g)(2)(C) (2006). The NFL has provided an interesting example of how content providers can abuse this takedown provision if a service like YouTube does not adhere to this requirement. After a video clip of the Super Bowl was removed following proper notification, YouTube reposted the video after the poster claimed educational fair use in his counter-notification. Mike Masnick, NFL Continues to Help Professor Demonstrate How Copyright Owners Abuse the DMCA, Techdirt (Mar. 20, 2007), The NFL filed another DMCA takedown notice, at which time the video was removed again. Id. Under the DMCA, the video should have remained posted and the courts should have decided the ultimate outcome. Id. The Masnick article calls into question whether the fair use defense has any traction in preventing video removal.

CADC smokes FTC on Rambus; another Jaffe/Lerner argument blown away

In a CNNMoney story titled US Appeals Court Throws Out FTC Ruling Vs Rambus , Riva Richmond writes:

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously vacated the agency's decision [on 22 April 2008] and said a new trial would have to address "serious concerns about the sufficiency of the evidence" in the case.

Richmond also noted: The court's position conforms with a March jury decision of the U.S. District Court in San Jose, Calif., that ruled Rambus wasn't guilty of fraud or violating antitrust laws in its dealings with Jedec. The ruling marks another key step toward a future when Rambus may be able to collect lucrative royalties on its technologies, which are now widely used by chip makers, by removing a key defense used by chip makers that have already been found in violation of Rambus' patents.

The clear signal sent from BOTH courtrooms demonstrates the intellectual vacuity of arguments made by Jaffe and Lerner in Innovation and Its Discontents on the Rambus matter. Jaffe and Lerner did not understand what was going on, much as they did not understand other points about the patent system. Jaffe and Lerner have no credibility in this area.

It's sad to see that Mike Masnick of TechDirt relies on Jaffe and Lerner for his knowledge of patent quality. Jaffe and Lerner showed on page 144 of Innovation and Its Discontents that they have no understanding of prior art, or of patent quality.


Note that Micron was a losing defendant in the ND Ca patent litigation. From the Recorder: In March, a San Jose jury rejected claims by Hynix Semiconductor Inc., Micron Technology Inc. and Nanya Technology Corp. that Rambus violated antitrust laws. A lawyer representing Hynix did not return calls seeking comment on the latest ruling.

Note also that losing defendant Micron is a member of the Coalition for Patent Fairness:

The Coalition for Patent Fairness is committed to the passage of
legislation that will foster innovation and economic growth. Representing a
broad range of companies and trade associations in the technology,
financial services, energy, manufacturing and media industries, the
Coalition's members include, Apple, Autodesk, Business Software
Alliance, Cisco Systems, Comcast, Dell, Electrolux, Financial Services
Roundtable, Hewlett-Packard, Information Technology Industry Council,
Intel, Micron Technology, Microsoft, Oracle, Palm, Inc., SAP, TechNet, Time
Warner and Visa.

Note that when the Coalition for Patent Fairness could not get what it wanted on
"apportionment of damages" in S. 1145, it walked away from patent reform, mumbling something
about the heart of the issue. The real issue was damages, and never "patent quality."

Going back to Mike Masnick talking about Jon Dudas on patent quality, one sees that this
is a sideshow. Certainly an ironic one, in that the IT industry itself is largely responsible
for the massive number of low quality applications bogging down the patent office. But
still a sideshow. The Coalition for Patent Fairness wanted to curb patent infringement damages,
not low quality patents. When they could not curb damages, the Coalition for Patent Fairness
walked away. They did not stay at the table to do patent oppositions. They didn't care.
Patent quality was always a smokescreen in the patent reform debates, a prop
used to carry the debate to the real issue, money. And the Rambus case illustrates the real
problem with the Coalition for Patent Fairness. If the patents they are complaining about are
SO bad, they would be getting such patents invalidated somewhere. Yet, as illustrated in Rambus,
they seem to be losing, everywhere.

See Mike Masnick, unbundled

***UPDATE. April 24.

Of Mike's comment below, note text from the previous IPBiz post

[Mike said]-->I merely pointed out that they [Jaffe and Lerner] *ACCURATELY* pointed out that the USPTO was being overhwelmed [sic] with questionable patent apps. , IPBiz asks what evidence Jaffe and Lerner had that the "USPTO was being overwhelmed with questionable patent applications"?

Mike is clearly relying on Jaffe and Lerner for this point, and Mike has produced no evidence to support this reliance. In fact,
Mike has produced NO EVIDENCE to support ANYTHING he is saying. Mike is sound and fury, signifying nothing.

Of Mike's --feel threatened by what I have to say --, IPBiz does not feel threatened by anyone who has NO EVIDENCE to back up opinions. Mike can talk the talk, but that's about it.

***See also

Memory Lapse in Litigation by John Danforth.

***UPDATE. 7 Aug 08


Are MBAs competent to analyze patent law?

In a post on April 20 titled A New Kind of Patent Boutique?, PatentHawk wrote about the possibility of business students (e.g., persons pursuing MBAs) analyzing patent law for law firms:

The benefits of cross-disciplinary work would more than outstrip the costs of less uniformity in our thinking about legal doctrine. I would love to try the experiment of teaching business students a single class on how to read case law and then sending them off to a firm as summer associates without telling the firm which students were business and which law school students. How many law firms would be able to tell the difference by the end of the summer?

Mike Masnick of TechDirt has an MBA from Cornell [The TechDirt website states: Mike has a bachelor's degree in Industrial and Labor Relations and an MBA -- both from Cornell University.] Indeed, the TechDirt website also states:

Techdirt’s core mission is to help people make better business decisions consistently, by getting the right information to the right people at the right time. We do this by combining the power of human experts, with the latest technologies, to turn raw data into valuable, relevant, accurate, reliable and (most importantly) useful information.

IPBiz invites PatentHawk to analyze the last four comments of Mike Masnick on IPBiz to determine

#1. If PatentHawk can tell the difference between Mike Masnick's analytical approach to answering a question and that of an average law student at an intellectual property firm.

#2. If PatentHawk thinks Mike Masnick's commentaries amount to valuable, relevant, accurate, reliable and (most importantly) useful information.

As a further point, IPBiz invites PatentHawk to investigate the impact of TechDirt on the legal literature of patents, as manifested, for example, in the LEXIS law review database.

See Mike Masnick, the "emperor" with no clothes

See Mike Masnick, unbundled

Tuesday, April 22, 2008

Patents and the Commercialization of Innovation

May 15, 2008, Arlington, VA: Patents and the Commercialization of Innovation

Will Richard Epstein devour Michael Meurer?

Where's the beef, Mike?

Mike has posted four comments in about two days, but not one of them offers any evidence to back up the remark he made on TechDirt: With the USPTO approving tons of bad patents ... Mike writes It's funny (laughably funny) that you assume that a lack of studies showing something means that bad patents aren't getting through. illustrating the obvious, that Mike never mastered "Logic 101." One can't prove a negative. If Mike makes an assertion, Mike has to present evidence "for" his assertion. So far, in the last two days, Mike is 0 for 4. Mike, if you can't think at a college level, at least read what Abraham Lincoln said in the Lincoln-Douglas debates about proving a negative.

In his remark to JD, Mike is still sticking by Jaffe and Lerner:

I merely used L&J's book to point out that they correctly spotted that there has been a huge increase in questionable patent applications, in part due to some changes to the way the patent system has operated.

Yet, Mike has no evidence that Jaffe and Lerner are correct. Mike does not want to talk about the screw-up of Jaffe and Lerner on page 144 of Innovation and Its Discontents, which proves Jaffe and Lerner don't understand the concept of prior art, and therefore are unable to know what a "questionable patent application" is.

IPBiz notes how appropriate it is that the most thorough example of an (alleged) missed piece of prior art by the USPTO in the whole Jaffe and Lerner book was copied by Jaffe and Lerner from Greg Aharorian. Jaffe and Lerner could not even think up an example on their own. And, similarly, Mike can't produce any evidence on his own to support his conclusory statement about the USPTO approving tons of bad patents. Copyists citing copyists citing copyists, with no original thought in view. Mike should take up residence in Patna; at least he might get some basmati rice to eat.

Jaffe and Lerner alleged on page 144 that the USPTO did not consider prior art in granting U.S. Patent No. 6,049,811 which is directed to a "Machine for Drafting a Patent Application and Process for Doing So." Jaffe and Lerner alleged that the disclosure in the '811 patent was anticipated by a paper by workers from Hitachi published in 74 JPTOS 315.

J. Steven Rutt had written in NANOTECH AND THE PATENT SYSTEM: A REVIEW OF INNOVATION AND ITS DISCONTENTS, 2 Nanotechnology L. & Bus. 111, 113 (2005), a book review of "Innovation and Its Discontents" available in both LEXIS and Westlaw which appeared before the review of Professor Dreyfuss:

The Innovation authors, however, utterly fail to discuss the seminal point of whether the Hitachi prior art teaches this required feature of the invention.

Dudas unbundled, by Mike [?]

**UPDATE. April 25.

Mike Masnick still hasn't mastered the basic concept: one cannot prove a negative. Better go back to college, Mike. Perhaps we can get a scholarship for you at RVCC.
Jon Dudas was using the application rejection rates in first quarter 2008 to infer a tremendous drop in application quality. IPBiz rejects that logic. Mike fails to mention that the same Jon Dudas defended the quality of ISSUED patents. Mike mixes modes, confusing Dudas on application quality with Jaffe/Lerner on issued patent quality. Duh, Mike, can you get any dumber?

The major challenge to applications is "prior art." If Jaffe/Lerner don't understand prior art, then they don't understand patent quality.

**UPDATE. April 25.

There are some people that like TechDirt:

Erik J. Heels Apr 21
Greetings Adam,

I like TechDirt (and Mike Masnick’s writing in particular):

I find TechDirt much better than Slashdot (which I stopped reading years ago, for the same reasons you cite).

Regards, Erik

Mike Masnick, the "emperor" with no clothes?

Once again, Mike Masnick took exception to a post on IPBiz. One response to Mike's content-less arguments is simply
res ipsa loquitor. But take a look at how he avoided giving any substance to his position:

IPBiz said: IPBiz notes that the National Academy of Sciences report on patents does NOT confirm what Mike says. The report of the National Academy of Sciences (NAS/STEP) did not actually find evidence of a decline in patent quality. Page 3 of the report states: "The claim that quality has deteriorated in a broad and systematic way could be, but has not been, empirically tested. Therefore, conclusions must remain tentative."

Thus, IPBiz asks Mike Masnick: where's your evidence? what do you know that the National Academy of Science doesn't know? What substance backs up your conclusory arguments?

Mike Masnick's response: As for your questions, I didn't say that there was a *decline* in patent quality. I said that a lot of bad patents were getting approved. Note the difference. One is directional, one is absolute. The NAS study was on the question of whether there was a directional change -- and the conclusion wasn't that there wasn't, but that it didn't test it. Besides, only someone making a living off of bad patents could honestly believe that bad patents aren't being applied for on a regular basis.

IPBiz notes first, Mike still did NOT present any evidence to support what he wrote [ the USPTO approving tons of bad patents ]. Mike doesn't have any evidence. Second, with the text from the NAS/STEP report staring Mike in the face, he could not even accurately recite it. NAS/STEP stated that the claim that quality has deteriorated has not been empirically tested. NAS/STEP means "tested by anyone." Thus, the NAS/STEP conclusion was not limited to a statement "not tested by NAS/STEP." Third, Mike's lawyerly distinction between directional and absolute is meaningful only if the USPTO has always "approved tons of bad patents." Even Jaffe/Lerner and Bessen/Meurer don't say that. And, finally, we are left with the fact that Mike couldn't muster a single bit of evidence to back up his tall tales.

Of Mike's query --do you think that with the massive increase in patent applications recently, that the quality of those applications has remained constantly good?--, IPBiz first notes that Mike switches gears from absolute to directional (e.g., "increase," "remained constantly"). IPBiz has no evidence to suggest that the "number of applications" is correlated with "quality," so IPBiz does not think "quality" [of submitted applications] changes with the "number" of applications. This general sort of argument, made for example by Quillen and Webster that "patent application grant rate" correlates with a lack of "quality", has been rejected by a number of authors. The USPTO, sadly, to respond to political pressure, has been dropping the grant rate, and argues that the causative factor is a drop in quality of applications. IPBiz categorically rejects the notion that the fact that applications examined in the first quarter of 2008 have a rejection rate of 44% indicates that, suddenly, the quality of applications deteriorated. [One notes, separately, that the 44% number is not consistent with Mike's "tons of patents" statement, but Mike said nothing. Mike similarly has said nothing about how the Quillen/Webster assertion of a 97% patent grant rate has been demolished.]

Mike's Techdirt piece was citing an EE Times report of a Dudas talk on Wednesday (April 16). Mike did not reference an earlier Dudas talk on March 27 which presented the same material (including the reference to the toilet queue patent). Mike did not reference commentary on the March 27 talk. Mike's always a day late and a dollar short. Ever the over-hyping incrementalist. [ Dudas, IBM's toilet queue patent, and patent quality] And, Mike missed Dudas' understated point: the IT companies pushing for patent reform are the biggest offenders in pushing silly patents like the toilet queue patent. Mike, it's not solo inventors or patent trolls that are flooding the USPTO with incremental concepts; it's IBM, Microsoft, Cisco, Apple, et al. Mike, Jon Dudas was telling you it's the IT guys who ARE the current problem.

For a recent "advance" by the IT folks, check out Apple's published application 20080091553.


See also

Dudas unbundled, by Mike [?]

[In the way of disclosure, Jon Dudas and LBE graduated from the University of Chicago Law School in the same year.]

Victoria's Secret: sellers of "Very Sexy 100-Way Strapless Convertible Bra " sued for patent infringement

The New York Times reports: The [Victoria's Secret] bra is, according to the lawsuit, the intellectual creation of Katerina Plew, a Long Island paralegal, who registered it under United States Patent No. 6,733,362 in May 2004. Ms. Plew, who is 38, contends that Victoria’s Secret stole, then mass-produced, her specialized design.

Monday, April 21, 2008

Mike Masnick, unbundled

Mike Masnick took exception to some remarks in the IPBiz post, Dudas unbundled, by Mike [?]

Mike had posted at TechDirt:

With the USPTO approving tons of bad patents, and the courts all too often siding with the patent holder and expanding what's patentable, combined with people who have done nothing getting hundreds of millions just for holding a piece of paper, is it really any surprise that the incentive structure would push people to file for as many bogus patents as possible, in hopes of getting them through the obviously questionable process?

IPBiz notes that the National Academy of Sciences report on patents does NOT confirm what Mike says. The report of the National Academy of Sciences (NAS/STEP) did not actually find evidence of a decline in patent quality. Page 3 of the report states: "The claim that quality has deteriorated in a broad and systematic way could be, but has not been, empirically tested. Therefore, conclusions must remain tentative."

Thus, IPBiz asks Mike Masnick: where's your evidence? what do you know that the National Academy of Science doesn't know? What substance backs up your conclusory arguments?

Of Mike's I merely pointed out that they [Jaffe and Lerner] *ACCURATELY* pointed out that the USPTO was being overhwelmed [sic] with questionable patent apps. , IPBiz asks what evidence Jaffe and Lerner had that the "USPTO was being overwhelmed with questionable patent applications"?

On the subject of Jaffe and Lerner, the only case where Jaffe and Lerner worked through a prior art issue was on page 144, wherein they borrowed an example from Greg Aharonian. IPBiz asks Mike Masnick if he believes that example is accurate, or if Jaffe and Lerner merely demonstrated on page 144 that they don't know what prior art is, and thus don't know what a questionable application is at all?

IPBiz reminds readers that, about two years ago, Mike Masnick was raving about "new, peer-reviewed" work by Bessen which had been ignored in the patent community. When the Masnick foggy FUD had cleared, it became apparent that the work by
Bessen was not new, not peer-reviewed, and not ignored in the patent community. Hyperbole is a Masnick trademark (don't know if he goes after infringers; nobody really tops him, anyway). Curiously, his over-hyped, yet incrementalist, style is a microcosm of the IT positions he seeks to represent.

See also

Getting the Patent Reform Wars Back on Track

Patent Grant Rate Lower Than Many Academics Think

Do patents tend to harm inventors? Part 2.

Do patents tend to harm inventors?--part 3

of page 144 of Jaffe and Lerner

Inadvertent Argument Against Peer-to-Patent

Dudas unbundled, by Mike [?]

Slashdot refers to Techdirt on Dudas:

Techdirt is reporting that Jon Dudas, head of the US Patent Office, is lamenting the continuing quality drop in patent submissions. Unfortunately, while this problem is finally getting the attention it deserves, the changes being implemented don't seem to be offering the correct solution.

Of course, the guy quoted at TechDirt is Mike Masnick, who has blazed new pathways in cluelessness about patents over the last few years.

Mike's "bible" is Jaffe and Lerner. You may remember them? The ones that praised Qualcomm for the way it handled patents, shortly before Qualcomm went down for inequitable conduct and its head lawyer was summarily fired. The ones that referred to "George" Clarke, and who no better understanding of Robert Clarke's paper than they did of his name. Go for it, Mike -->

[Dudas] is now complaining that the Patent Office is being overwhelmed with really crappy patent applications. You think? Lerner and Jaffe pointed this out years ago and it's not difficult to see why. With the USPTO approving tons of bad patents, and the courts all too often siding with the patent holder and expanding what's patentable, combined with people who have done nothing getting hundreds of millions just for holding a piece of paper, is it really any surprise that the incentive structure would push people to file for as many bogus patents as possible, in hopes of getting them through the obviously questionable process?

Even the NAS/STEP study admitted there was no evidence for an increase in low quality patents, but a lack of evidence has never stopped Mike, and likely never will.

Further evidence of Mike's cluelessness resides in the link he was citing, which began:

The U.S. Patent and Trademark Office recently received an application seeking a patent for what was claimed to be a better way to stand in line while waiting to use an airplane toilet.

Mike Masnick, wake up! That application (by IBM) already issued as a patent, and has been withdrawn. Nothing "recent" about it.

Further, Dudas had already used that story in Hollywood. San Jose was a recycle of old news. Mike, maybe you can try your schtick in the Catskills, or in Miami Beach, with the 80 year olds, but you're too dated for prime time. Maybe you should go on ice, with S.1145.

K.Y. Cha's suit against Flamm tossed by Superior Court (again!)

K.Y. Cha's defamation suit against Bruce Flamm was dismissed on 21 April 2008. It had previously been dismissed, but then re-instated.

The following is a press release from Dr. Flamm:


April 21, 2008--Los Angeles, CA -- In 2001, a study was published in the Journal of Reproductive Medicine claiming that prayers from the USA, Canada, and Australia caused a 100% increase in pregnancy rates among infertility patients in Korea. The surprising results announced by Kwang Cha and associates were widely reported in the news media, including on the ABC news program Good Morning America. The following year, the study's credibility was undermined when one of the co-authors, Daniel Wirth, was arrested by the FBI and later pled guilty to fraud. Cha's other co-author, Columbia University's Rogerio Lobo, later revealed that he had not participated in the research and withdrew his name from the published findings.

Even with one of his co-authors in federal prison and the other disgraced, Korean fertility specialist Kwang Yul Cha stood by the supernatural study. He eventually filed a defamation lawsuit against Bruce Flamm, a California physician who had published several articles questioning the validity of the Cha/Wirth report. The lawsuit, filed in Los Angeles Superior Court in August 2007, was thrown out last November but reinstated in January. The lawsuit was dismissed today.

In response to the ruling, Dr. Flamm issued the following statement: "Today's ruling is a victory for science and freedom of speech. Scientists must be allowed to question bizarre claims and correct errors. Cha's mysterious study was designed and allegedly conducted by a man who turned out to be a criminal with a 20-year history of fraud. A criminal who steals the identities of dead children to obtain bank loans and passports is not a trustworthy source of research data. Cha could have simply admitted this obvious fact but instead he hired Beverly Hills lawyers to punish me for voicing my opinions."

Dr. Flamm is a partner physician with Kaiser Permanente and a Clinical Professor of Obstetrics and Gynecology at the University of California. He has been the senior investigator on numerous medical studies and has written several books and book chapters.

CIRM had given an entity, related to K.Y. Cha, a research grant, which grant was later not pursued.


See Citizen Media Law Project

"Florida Prepaid" to be re-visited in "Biomedical Patent?

The case is Biomedical Patent Management Corp. v. California Department of Health Services, 07-956, and it relates to 11th Amendment sovereign immunity in patent cases, a topic previously covered in Florida Prepaid Postsecondary, a case which declared part of the patent act unconstitutional.

The AP reported: California has filed 21 patent infringement suits since 1990, winning more than $900 million in judgements since 2000, according to the filings, while using sovereign immunity to get suits dismissed at least six times since 1987, including suits by Genentech Inc. and Eli Lilly & Co.

Unmentioned by AP is that states have to provide a forum. The cases mentioned got dismissed from FEDERAL COURT, but that
does NOT mean that plaintiff could not bring the cases elsewhere. If not so, then Florida Prepaid could be re-visited.

AP also stated: The case is particularly important for California's university system, which owns more than 3,300 patents that generate $210 million in annual revenue, according to court filings by a company that sued California's Department of Health Services.

Sunday, April 20, 2008

Duh, why do law firms hire only from law schools?

PatentHawk in a post A New Kind of Patent Boutique? wrote:

But law firms hire only from law schools. Why should that be? State bar exams have little or nothing to do with practicing securities or patent law. The multi-state portion of these exams is based on the common law of England from over 500 years ago! It has to be -- that's the only body of law in English that doesn't change from year to year. The corporations that got Congress to create exceptions for patent agents and CPAs to practice before their respective administrative agencies knew that there was nothing special about law schools a long time ago. When will our profession give up our pretentious game of arguing that law is so different from any other kind of professional practice? The benefits of cross-disciplinary work would more than outstrip the costs of less uniformity in our thinking about legal doctrine. I would love to try the experiment of teaching business students a single class on how to read case law and then sending them off to a firm as summer associates without telling the firm which students were business and which law school students. How many law firms would be able to tell the difference by the end of the summer?

IPBiz is reminded of a certain non-lawyer IP professor who attempted to explain the concept of "prosecution history estoppel" without understanding the concept of estoppel. It was very interesting. IPBiz is also reminded of a certain IP professor (not a patent attorney) who did not know the difference between novelty and obviousness-type double-patenting. One could go on and on. The chief patent counsel of Cisco is not a registered patent attorney. PatentHawk seems to think "reading case law" could make a B-schooler look like a law student. Not that IPBiz thinks that the law school is other than an extension of third grade, but one can sniff out law students from B-schoolers at a kilometer. Among other things, the B-schoolers know more math, and, on average, are more dishonest.

PatentHawk also wrote:

Another reason that was obvious after hearing the panelists is the relatively inelastic supply of talent graduating from law schools every year. That pool of talent hasn't grown much in decades, even as the demand for legal services has exploded.

IPBiz doesn't believe that for a minute.

***See also

Is Apple Computer going troll?

There's some buzz about a patent application of Apple published on 17 April 08, titled Enhancing online shopping atmosphere, which has a first claim:

A method of representing activity in an online store comprising:

receiving information associated with the activities of a second visitor to the store;
receiving an indication of the presence of a first visitor at the store; and
displaying to the first visitor a representation of the activities of the second visitor.

IPBiz notes that this sort of thing might be designated troll-like by certain members of the IT community, but here it is, pushed by Apple [published application 20080091553, based on 11/541071.]

Curiously, the patent application has no "summary of invention," but one gets the gist from the background section:

[0001]The goals of both online shops and physical stores are generally the same--facilitating the purchase of goods and services by customers. In some cases, online shopping offers advantages over shopping in a physical store. For example, online shops are often open continuously, whereas most physical stores have set hours. Online shoppers are also able to leverage features such as search functionality while physical shoppers are not. However, one drawback of online shopping is that the experience can feel sterile and isolating. Customers in such an environment may be less likely to have positive feelings about the online shopping experience, may be less inclined to engage in the online equivalent of window shopping (e.g., will not linger in front of a display), and may ultimately spend less money than their counterparts who shop in physical stores.

For all the talk of the Coalition of Patent Fairness, and Apple Computer, on the need for patent reform, and escape from "low quality" patents, one sees that Apple "talks the talk," but does NOT "walk the walk." No matter how many Lemley's they support to write law review articles, they are, under the surface, complaining about what they themselves do all the time.

AUTM on prizes and patent pools

In a post titled -- University patent managers versus developing countries--, James Love discusses positions of AUTM [Association of University Technology Managers] on prizes and patent pools.

On prizes themselves, see previous IPBiz post:
New Look for journal Science on 28 March 2008
about Prize4Life and InnoCentive.

[Love should try spellcheck.]

[IPBiz post 3700]

**separately, submitted to New Scientist:

The "giants of technology" mentioned in the article are in fact incrementalists of a mature industry who seek patents on things like methods of waiting in line for toilets on airplanes (see US 6,329,919 to IBM, now withdrawn), waiting in line in restaurants, or monitoring employee heartrates to enhance productivity (Microsoft). The giants pay academics to write articles supporting their position (a practice somewhat related to the ghostwriting issues involving VIOXX at JAMA): 85 Tex. L. Rev. 1991 (2007) began: We are grateful to Apple Computer, Cisco Systems, Intel, Micron Technology, Microsoft, and SAP for funding the research reported in this Article. Patent reform should not be directed to serving the interests of yesterday's thinkers, but rather should support the needs of people who will change the future.

***separately, see a thread on infoworld from last year -->

Saturday, April 19, 2008

Plagiarist suffers on Law & Order

On 19 April 2008, Law & Order: Criminal Intent viewers got to see that Detective Goren (Vincent D'Onofrio) really does not like
plagiarists ("voice stealers") as he grabbed the Peter Coyote character (named Lionel Shill ) by the arm and forced a verbal admission. The Coyote character remarked it seems personal with him.

Glen Poshard got off a lot easier than Coyote.

Book reviewing at the New York Times took a hit, too, as it was depicted as involving personal favors and conflicts of interest. A slimy agent (named Gareth Sage) in the show was given a great line commenting on the situation. The gist was that, if book reviewing at the Times were as depicted by Goren, Sage would be disgusted. As it turned out, book reviewing was as depicted by Goren. The Shill character had actually done what the Sage character believed could not be done and would have found offensive.

The murder victim, an aspiring black writer, was shot with a gun used to kill a police officer in the Newark riots of 1967.

There were a lot of "things are not what they seem to be" elements in the story. The aspiring black writer had been tortured earlier in the night of her death by drug dealers looking for drugs her boy friend had taken. The drug dealers, however, did not kill her. The plagiarist arranged her death by sending one of his colleagues [Hawkins], with the 1967 gun from one of his other author-associates. The aspiring black writer knew that a book of Hawkins, pushed by Shill, was a complete fraud, and died because of that. In living at an interface between a stereotyped ghetto black world and an upscale white world, the black writer was killed by the white world over a fraud issue, not by the world of drugs. It was separately true that Shill had plagiarized the work of the aspiring black author. The story also played off the differences between Shill, portrayed on-screen as refined, elegant, and in the company of Nobel laureates, and Sage, portrayed on-screen as a slick (yes, greased down hair), woman-exploiting, do-anything to win, slime ball. The irony in the story was that "Sage" would not believe that the New York Times could be manipulated in book reviews, as "Shill" actually did. As seemingly world-wise and street-savvy as "Sage" was, "Sage" did not understand what "Shill" was getting away with. [Think about the VIOXX articles, written by ghost writers, published in JAMA, that JAMA has belatedly recognized!]

The episode, titled "Self-Made," originally aired on 15 Nov. 2007, but has not been much discussed on the internet.

One mention of the plagiarism angle is found on televisionwithoutpity :

But manhandling the old plagiarist (much as I despise plagiarists--not to mention pompous ones) seemed a bit hamfisted and brutal for Goren.

Then again, Old Plagiarist Guy did, in fact, ruin two lives with his conniving, so I guess he kinda deserved the shakedown.

Also, was Old Plagiarist Guy planning on bumping Freykins ["TJ Hawkins"?] off? OPG couldn't have thought Freykins would never, ever read the plagiarized book. Maybe he was planning to blackmail Freykins into keeping quiet, as in, you don't tell people I'm a fraud, and I won't tell people you're a murderer?

Guests--> Peter Coyote (Lionel Shill), Pablo Schreiber (TJ Hawkins), Fisher Stevens (Gareth Sage), Al Thompson (Dante 'D Tour' Heath), Barbara Walsh (Ariana Cypher), Victoria Dillard (Sharon Adams), Sharon Hope (Ida Danforth), William Jackson Harper (Chayne Danforth), Shamika Cotton (Kira Danforth), Amy Flanagan (Paige Aldwyn), Ron Simons (Detective Willis), Zack Robidas (Chad), Cherelle Cargill (D Tour's Mother), Derek Milman (Amos), Marlon Morrison (Driver), Patricia Cardello (Constance), Nicole Beckwith (Tina), Dustin Olson (Tom)

IPBiz wonders if Glen Poshard of SIU and Laurence Tribe of Harvard can be referenced as "old plagiarist guys"?

[IPBiz post 3699]