Monday, June 30, 2008

Pitfalls in bioinformatics patenting?

From crim law library blog, discussing SCITECH e-Merging News:

Claiming Pitfalls in Bioinformatics Patent Applications

Analysis by category patent data from the USPTO shows that the number of patents issued for bioinformatics-related subclasses is relatively low. One explanation offered for this decline is "the relative difficulty of patenting bioinformatics innovations." This article provides practical suggestions to overcome this difficulty and thus to obtain meaningful IP protection for inventions in bioinformatics.

CIRM prejudiced against funding SCNT work?

In a post titled Cascade LifeSciences Critiques CIRM Grant Review Process; Questions Raised about Fairness and Facts, californiastemcellreport presents evidence that CIRM may be prejudiced AGAINST funding SCNT work. Comments from Cascade:

"Cascades Experience with the Grant Review

"Grant review comments were factually incorrect. Not a matter of subjective scientific debate. Hence, the conclusions were fundamentally flawed. For example, reviewer #1 comment was 'lack of novelty, pure translation of the non-human primate work into humans.' This seems to defy logic and the mission of human therapeutics. Moreover, this does not seem to be consistent with the objectives published by CIRM in its RFA, which specifically calls out the 'hurdle' of human SCNT as a fundable goal.

[IPBiz: ironically, sort of like the argument made by FTCR. Trounson, and Loring, against WARF, which argument failed rather badly at the USPTO. Appears to have worked against Cascade!]

"Moreover, at the CIRM IROC meeting Dr. Uta Grieshammer, specifically presented the review committees grant criteria and noted specifically that the review team was advise that 'novelty' was NOT a priority for these types of grants. Also at the meeting, Dr. Trounson announced that no SCNT grants had been made due to some sort of vague policy concern about access to human oocytes and the challenges this had created in other countries. First, this was 'moving the goal posts' after we had submitted our grant application. Second, we appreciate the challenge of securing oocytes but we at Cascade had been fortunate enough to secure commitment from LJ IVF clinic to supply all the oocytes we need to proceed with our effort. Moreover, if this was truly the reason for flagging our grant application as non fundable, CIRM should have just told us that in writing and explain how they were going to proceed, if at all, in the area of SCNT.

[IPBiz to Cascade: CIRM still hasn't articulated a thorough IP policy, and, in fact, retained an attorney NOT registered before the USPTO to render IP advice. What exactly did you expect from CIRM?]

There was another interesting comment from Cascade:

Comparing not-for-profit grants (institutions that are grant writing machines) with the grant applications of fledgling biotech companies is fundamentally unfair.

"Coalition for Patent Fairness" morphs into Allied Security Trust?

The WSJ noted:

Several tech-industry heavyweights are banding together to defend themselves against patent-infringement lawsuits. Their plan: to buy up key intellectual property before it falls into the hands of parties that could use it against them, say people familiar with the matter.

Verizon Communications Inc., Google Inc., Cisco Systems Inc., Telefon AB L.M. Ericsson and Hewlett-Packard Co. are among the companies that have joined a group calling itself the Allied Security Trust.

The WSJ also stated:

The new Allied Security Trust aims to buy patents that others might use to bring infringement claims against its members. Companies will pay roughly $250,000 to join the group and will each put about $5 million into escrow with the organization, to go toward future patent purchases, the people familiar with the initiative said.

Tech companies have tried various ways to protect themselves, including investing in Intellectual Ventures LLC, a patent-holding firm founded by former Microsoft Corp. executive Nathan Myhrvold. The companies provide money to help Mr. Myhrvold buy patents, and he in turn grants them a license to his portfolio. But some in the tech industry fear Mr. Myhrvold's venture, which has collected thousands of patents in areas such as networking and software, may itself become an aggressive patent enforcer down the road. Mr. Myhrvold has said litigation isn't part of IV's strategy, but hasn't ruled it out.

CNET, discussing the WSJ piece, stated:

Allied Security Trust isn't intended to be a revenue generator for the companies involved, but rather a protective shield against patent trolls big (Intellectual Ventures, which was recently torched in The New Yorker) and small (Acacia).

Will it succeed? Who knows? But any efforts intended to bring some sanity to the patent-litigation racket are very welcome.

IPBiz notes this as further evidence that the issue was NOT "patent quality," but simply "patent damages." Patent quality, and the (fantasy) high grant rate of Quillen and Webster were merely props to get to patent damages. Nobody in the CPF really cared about patent quality.

****UPDATE (July 3)

EE Times added some information.

Allied Security Trust I came out of stealth mode this week following a report Monday (June 30) in the Wall Street Journal. In an interview with EE Times Wednesday (July 2), the group's chief executive, a former vice president of IP and licensing at IBM, provided the most detailed disclosure to date about the group's goals and operations.


Allied's members include Cisco Systems, Ericsson, Google, Hewlett-Packard and Verizon and six other companies who do not want to be named. As many as three other companies are expected to become members in the next 30 days, said Brian Hinman.

"I am interested in only the patents that are strategic or potentially problematic for a subset of our members," said Hinman, who refused to disclose the number of patents he has bought or sold since the group was formed with four members in March 2007.

IPBiz notes that March 2007 is shortly after the Berman hearing on patent reform. Apparently, the IT folks were hedging their bets all along.

EE Times also stated:

Allied works with a network of 38 patent brokers who compile a weekly list of available patents that Allied circulates to its members. They can choose to contribute any amount they wish to buy any number of the patents on the list. Allied eventually re-sells the patents with proceeds going back to the companies who paid to buy them.

"It's a catch-and-release formula handled on an opt-in basis," said Hinman.

"Patents have to be gone is a fixed amount of time," he added. "The objective is to recoup a portion of the cost of the investments because we are not a patent-holding company."

Allied's name was deliberately generic to provide a degree of confidentiality. The company creates an independent legal entity when it buys and sells patents to further obscure its identity so that buyers and sellers do not realize its big-company backing and raise or lower prices accordingly.

To keep its costs low, Allied operates on something of a shoestring with a chief technologist and finance officer and small administrative staff but all legal and IT functions outsourced. It does plan to expand its technical staff to increase its capability for handling due diligence on patents.

Patently-O features Bessen and Meurer, again

Once more, you can almost hear him say: "now, there you go again."


In the article titled "THE CONTROVERSY SURROUNDING CONTINUING APPLICATIONS AND REQUESTS FOR CONTINUED EXAMINATION," [7 J. Marshall Rev. Intell. Prop. L. 545], Scott D. Barnett concludes:

It is evident that there is a real need to increase patent prosecution efficiency, improve the quality of patents that issue, and decrease the current backlog. n215 Further, permitting applicants to file an unlimited number of continuing applications and RCEs has led to occasional abuses of the patent system. n216 (...)

This proposal suggests that the Federal Circuit, if it gets the opportunity, should affirm the district court's decision to void the Final Rules. In doing so, the Court would protect a process that serves as a vital means of obtaining adequate patent protection and compel the USPTO to seek less intrusive means of achieving its goals. Such more narrowly tailored means of achieving the USPTO's goals include: (1) modifying the Final Rules to enable applicants to file more continuing applications or RCEs without a petition and showing for patent applications directed to the unpredictable arts, n222 (2) increasing the hiring and training of examiners, n223 and (3) charging higher fees for filing multiple continuing applications or RCEs to deter abuse. n224

LBE was cited in footnote 181: Letter from Lawrence Ebert, to the U.S. Pat. & Trademark Office 2 (Apr. 30, 2006), available at comments/fpp-continuation/ebert2.pdf [hereinafter Ebert Letter] (quoting the just-n-examiner blog, http://just-n, as saying: "I would think limiting continuations would hurt examiner productivity, as applicants will be unlikely to ever cancel claims to expedite issuance, thereby further increasing the number of appeals").

that is, cited for citing someone else, in this case, an anonymous blog.

LBE's article on the continuation issue, which appeared in 88 JPTOS 743 was not cited.

The Lemley and Moore "Ending Abuse" article appeared in footnote 3:

But cf. Mark A. Lemley & Kimberly A. Moore, Ending Abuse of Patent Continuations, 84 B.U.L. Rev. 63, 64 (2004). This article suggests that an applicant's right to file an unlimited number of continuing applications is "[o]ne of the oddest things about the United States patent system." Id. The right to file an unlimited number of continuing applications is criticized because it "introduces substantial delay and uncertainty into the lives of a patentee's competitors," wears down examiners, may be used to broaden a patentee's claims through hindsight, and allows for "submarine patenting." Id. at 65.

Footnote 66 observes: ); Lemley & Moore, supra note 3, at 74-75 (noting that the only way an examiner can dispose of an application is by allowing it and therefore, when faced with a determined applicant, the examiner has an incentive to allow the application).

Mark Lemley was also cited in footnote 197: John R. Allison & Mark A. Lemley, Who's Patenting What: An Empirical Exploration of Patent Prosecution, 53 VAND. L. REV. 2099, 2125 (2000). "There is a strong relationship between area of technology and the total number of applications filed before a patent issued." Id.

and in footnote 203: Allison & Lemley, supra note 197, at 2154 tbl.9. While the average patent in 1996-1998 issued from 1.50 applications, the aver-age pharmaceutical patent issued from 2.27 applications and the average biotechnology patent from 2.38 applications

Wegner on Bessen/Meurer in LA Times

Harold Wegner's piece on Bessen/Meurer that appeared in the Financial Times was reproduced in the Los Angeles Times. Text included:

In this new book, "Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovation at Risk," economist James Bessen and law academic Michael Meurer show that the system no longer provides predictable property rights. They go on to offer solutions based on empirical evidence from history, law and economics.

The book is timely, despite the apparent demise of Sen. Patrick J. Leahy's proposed legislation to overhaul the U.S. patent system. The Vermont Democrat's proposal is backed by the electronics, information technology and manufacturing industries in the U.S.; they complain that patents bring meager income compared with the high cost of litigation.

See also

Harold Wegner takes a walk on the dark side


Wegner was fried by the patenthawk blog. First sentence:

Hal Wegner displays astonishing senility in a disjointed and practically schizophrenic review of pulp fiction by academics Bessen and Meurer (B&M).

Also: Wegner does the patent community a grievous disservice by granting B&M any credibility. Or, perhaps it would be better put to observe that Wegner's views towards B&M destroys his credibility.

IPBiz already stuck a fork in S.1145. Do we need another fork?

Sunday, June 29, 2008

Pearlstein on patent reform

Steven Pearlstein wrote of "patent reform 2008":

Consider the fate of a patent reform bill that has been on the agenda after years of complaints from inventors and high-tech companies about frivolous patents, endless litigation, excessive court judgments and conflicting signals from the federal courts.

Last year the House reported out a bill that would make it harder to get a patent but easier to challenge one while changing U.S. law to a “first to file” system that conforms more closely to patent rules in the rest of the world.

The legislation was a response to widespread complaints that by tilting too heavily in favor of existing patent holders, a patent system meant to encourage innovation was beginning to stifle it. To most neutral observers, the bill seemed to strike a reasonable balance between the need of industries that have business models based on breakthrough products that take decades to develop and those in which innovation tends to be incremental and products very quickly become obsolete.

So where is patent reform? Like so much other policy, it is stuck in the Senate. The problem is with a single line in the massive legislation that requires any damages awarded in a patent infringement case to be roughly proportionate to the importance of the disputed patent to the success of the overall product.

Although you rarely hear this from economists and business leaders, one big reason for the strength of the U.S. economy over the years has been that we have had a government willing to fix mistakes, respond to crises and adapt to changing conditions. Unless we recapture that ability to make Washington work again, it is a pretty good bet that, a generation from now, the next new thing will be developed somewhere else.

IPBiz suspects there were not many individual inventors within the Coalition for Patent Reform, or individual inventors that were aligned with the beliefs of CPR. The House (under the guidance of Berman) did not even let an individual inventor speak. Pearlstein does not have a clue of what was going on in "patent reform 2008."

Duh, really?

Californiastemcellreport has a post with the text:

Several directors [of CIRM] have noted in the past that it is companies that most directly bring therapies to the marketplace – not academic institutions.

CIRM still flounders with a poorly-defined intellectual property policy, and recently engaged an attorney, not registered before the USPTO, to advise on IP matters.

Somewhat like Charlie on the MTA, CIRM will likely never return a dime to California taxpayers from patent royalties:

Did he ever return,
No he never returned
And his fate is still unlearn'd

Effectively claiming an invention

Patently-O has a post by Ron Slusky on claiming: Ron Slusky: Five Prescriptions for Effective Analyzing an Invention and then Claiming It. The first of the five:

Identify the inventive concept by beginning from the problem that the inventor set out to solve and then asking how, broadly and functionally, the inventor solved that problem

"Minimal bacterial genome"

Black Enterprise presents an article by Matthew Rimmer "Don't Feed the Trolls" which includes a reference to J. Craig Venter filing. a patent application in 2006 in respect of a "minimal bacterial genome." Refer to earlier posts on IPBiz, including

Mycoplasma laboratorium coming soon?

Rimmer also writes: patents have been granted in respect of human tissues, genes, stem cells and somatic nuclear cell transfer (so-called "therapeutic cloning").

Angels no-hit Dodgers, but lose game

In a related vein, remember Haddix's 12 perfect innings in 1959? Mejias (not Clemente) played right field for the Pirates, and Schofield (not Groat) was at shortstop. Lew Burdette won the game.

Harvey Haddix would win two World Series games against the Yankees in 1960.

Saturday, June 28, 2008

TechDirt: plagiarism as re-imagination and collaboration

On the subject of inevitability, TechDirt has a post titled Is It Really So Bad If A Student Plagiarizes A Speech? specifically on the Palo Alto High plagiarism matter, but definitely extend-able. Some text:

We've discussed how silly the concept of "plagiarism" is in many contexts once you look at the details. It's a concept that needs to be rethought -- as it often really represents someone reimagining a work in a different, and potentially valuable context. In fact, we've seen a few plagiarized defenses of plagiarism that are pieces of art by themselves.

Some of the TechDirt material:

It can be especially silly in school, where what some people consider plagiarism is really no different than collaboration.

is closely related to earlier TechDirt material, as, for example, to the spin TechDirt put on the "burning pajamas" plagiarism incidents [wherein hundreds of college applications mentioned "burning a hole in pyjamas at age eight" working with a chemistry set].

However, a more reasonable way of looking at it, is that it's teaching students the value of collaborative work (...) it's not all about just getting off easy by copying content, and more about a more collaborative approach to content.

Same old, same old at TechDirt.

Of the Palo Alto incident, comments from paloaltoonline:

**These two 18 year old college bound students lifted all or a portion of their speeches from the internet. Having attended both speeches and heard both the originals on the internet, I am appalled. They plagiarized word for word. And all they had to do was attribute their words to the original writer. Is that so hard?

**[Compare]The article states :"Most of Abid's speech is original, but he copied a joke that compares the college application process to the experience of wooing a bride". So borrowing a joke and incorporating it into the speech to make it entertaining is not plagiarism.

**[HOWEVER]First of all, this article makes it sound as though these were minor incidents of plagiarism. For those of you that were at the graduation, you may recall that the marriage joke was not "part" of the speech -- it basically WAS the speech. To refresh your memories, here is the link to the Mountain View speech:

Web Link [which is from Mountain View High School and includes "Suck it Yale."]

Fast forward about 2 minutes in and you'll see what I mean.

Second, and perhaps more distrubingly -- I was blown away by the nonchalant attitude towards cheating in general which appeared in these speeches. This is a point not mentioned in the article, but both speeches included jokes about cheating. When Veerappan quipped about copying answers from students I was sort of dumbfounded -- apparently this is the quality of education one can expect from schools which are barred from teaching anything related to personal conduct or ethics. Yet, judging from the posts on the facebook group, many studuents (though certainly a minority) DO think that intellectual dishonesty is a joke.

Perhaps this ought to be taken as a lesson that "life isn't fair" for those who were denied in favor of Abid and Veerappan's cribbing abilities.

**As one of the Paly seniors who graduated and actually listened to both Malini and Mohammed's speeches, I'd like to give my take on the situation. First of all, it was not a "small part" of Mohammed's speech that was plagiarized--the joke took up the majority of his speech. And I'm still dumbfounded as to why he would credit the joke to a "teacher," when he could just as easily have given the proper credit to where it was due. He obviously didn't "mess up" when saying that he heard the joke from a teacher; it's kind of hard to confuse what your teachers say with youtube videos.
As for Malini's speech, I watched the video on youtube and it was literally almost entirely plagiarized. Given that she VOLUNTEERED to give a speech, I don't understand why anyone would volunteer just to submit a speech they didn't actually write.

I do think that this has gotten out of hand. I know both Malini and Mohammed, and I know that people make mistakes. But I AM disappointed that they couldn't come up with their own heartfelt speeches to mark what was an incredibly important time in our lives. And while those of us who are questioning the ethics of Mohammed and Malini may seem as though they are attacking the two of them, I can see where they're coming from. To plagiarize a speech at graduation, when there is NO INCENTIVE to do so (you don't HAVE to give a speech), obviously would lead to questions about their school performances, when there is much more incentive to cheat. Yes, a lot of people cheat at Paly. But that does not make it okay for Malini and Mohammed, even though they were unlucky enough to get caught.

**Suppose we passed off a Shakespearean play as an original work by a Paly student?

**[sarcastic] All "creative" work is derivative, mere rehashing of the same old themes. Since so many people do it, especially those who are affluent and educated, it must be okay. And if members of the audience enjoy the results, then don't bother pointing out the ethical issues unless you too want to be slammed as a whistleblower.

**Also, what does it say when you can't write your own speech?

**No, it really wasn't okay and, sorry, I don't have a problem with names being used here. If those kids were bright enough to get the honor of speaking, they're bright enough to understand plagiarism.

On some other college plagiarism (collaboration?) incidents:

plagiarism at UC/Davis

At the University of Minnesota:

"Nevertheless, my students hear me say that passing off someone else's writing as their own is an academic felony."

Note that the University of Louisville is confused over the interrelation of plagiarism and copyright (intellectual property):

The concept of intellectual property (the ownership of ideas) underlies all definitions and policies about plagiarism; it is the foundation for the logic behind documentation styles and citation practices. Because academics, such as university instructors, are in the business of creating new knowledge for their field, they are especially concerned with giving and receiving credit for ideas.

IPBiz notes that one can plagiarize "public domain" material (e.g., passing off Shakespeare's words as your own). One can infringe a copyright without plagiarizing.

"Storyline" patent application (Zombie Stare) fares poorly at USPTO

On 3 November 2005, IPBiz had a post titled: "Storyline" patent application, The Zombie Stare, to be published by the USPTO. On 27 June 2008, the 271 blog has a post titled A Different Kind of Battle At the USPTO Over 35 U.S.C. 101, which updates the status of Knight's patent application at the USPTO.

Within the post, a quote from the examiner:

Some people are critical of the patent system because there are people who have patents for invention they have no intention of making or using. Examiner will not join in this debate, but will make two observations:

(1) To the extent that this represents a problem, it would be unwise to add to the problem by creating yet another class of intellectual property to be held by those who are not going to make or use their invention.

(2) In defense of the holders of patents for inventions currently patentable, they at least provide an increase in human knowledge upon which others can improve. If A. Lincoln invents a device for lifting boats over shoals, others can improve upon the invention - whether Lincoln builds such a device or not. Thus science and technology advance. Storyline patents, on the other hand, are not amenable to "improvement".

An IPBiz reader wrote:

If Abe Lincoln, an employee of a national lab, patented a device to lift boats over shoals,
nobody would improve the device!

A) they owe the gov. a license fee.
B) the barrier to innovation may well be too small, someone else will make another patent, so your "investment" to manufacture and sell would be gone.
C) And I promise, there are thousands of patents for fusion energy....but the patents will long expire, before anyone builds the first tokomak, stellerator, or torus. These patents are like tritium....they all have a short half life.

If you asked me, the US gov should not be issued patents!!!

Ramblings in Science

Within the 20 June 08 issue of Science (volume 320):

Australian's minister of science, Kim Carr, was a history teacher at a technical school and has no background in science.
Carr: "There is the expectation among universities that business is there to be plundered, that is, that industr will fund whatever we say. And there is the view in some sectors of business that universities are there simply to do the research that companies won't do themselves and that scientists should be at the direction of the private firm. (...) We are also looking at [ways] to get universities to take more responsibility for what they do with the money they receive from the government." [p. 1576]

Page 1584 discusses a membrane by Balu Balachandran at Argonne to make ethylene. The membrane comprises palladium and yttria-stabilized zirconia.

Page 1585 gives an account of work from Steven Novack of Idaho National Lab on harvesting solar IR photons for use in solar cells.

Page 1593 has "The MPG Illusion" by Richard P. Larrick and Jack B. Soll.

In "How Bacteria Change Gear," Richard M. Berry and Judith P. Armitage discuss biofilms, slimy carpets a fraction of a millimeter thick [page 1599]. They reference work on page 1636 by Kris M. Blair on Bacillus subtilis, which in turn cites work by Kolter and Greenberg, 441 Nature 300 (2006).

Is gun ownership a fundamental right? More cases to come.

A story on DC v. Heller (District of Columbia gun law case) ended with a quote from Alan Morrison:

"The bottom line is, it looks like a full-employment decision for lots of gun lawyers and state, federal and municipal lawyers."

IPBiz notes that one of the great ironies of "patent reform 2008" (S. 1145) was that so-called reformers were pushing "for" post-grant review (aka opposition) AND, at the same time, complaining about the self-interest of patent lawyers. The introduction of oppositions would have been a full-employment decision for lots of patent lawyers. Needless to say, the "reformers" would never mention the patent lawyers, like Joe Hosteny, who vigorously opposed oppositions on the basis such things would hurt inventors.
Of course, once damages apportionment went away, and the Coalition for Patent Fairness packed up and went home, one saw that the patent quality issue was a smokescreen, merely a prop for a different agenda.

CrossCheck: effort to curb academic plagiarism

It had to happen. Academic publishers have now taken action to curb plagiarism. The Chronicle of Higher Education reported:

Plagiarists beware. A group of 12 publishers have begun using CrossCheck, software that ferrets out plagiarized articles submitted for publication in scholarly journals. The software was created by CrossRef, a publishing industry association, and iParadigms, a company that sells Turnitin, software that checks student papers for plagiarized material. CrossCheck is targeted at scholars. It flags passages that a submitted journal article may have in common with published journal articles.

See also Elsevier to Contribute 9 million Articles to CrossCheck

It's a start. Imagine if the thesis database were included.

Elberta's Roadkill Cafe gonzo

In January 2008, IPBiz, in covering another dreary "NBC Nightly News" report of an old story, observed that NBC, for a little pizzaz, had thrown in a mention of the Roadkill Cafe in Elberta, Alabama into a story about a teacher from China teaching Chinese in a rural Alabama town [Elberta].

Sadly, IPBiz notes that the Roadkill Cafe is no more. WTVM reported: A fire last night destroyed one of the most popular restaurants in Baldwin County, the Roadkill Cafe in Elberta [on US 98, 25076 State St].

Also, WTVM's full report of this tragedy was Sikahema'd. Information on the internet, here today, but gone tomorrow, like the Roadkill Cafe.

Friday, June 27, 2008

Double-patenting "does in" Boehringer's Mirapex

Barr Pharmaceuticals Inc. and Mylan Inc. invalidated a patent (4,886,812) of Boehringer Ingelheim on Mirapex in D. Delaware (Judge Joseph J. Farnan Jr. ).

Bloomberg noted: Barr, based in Montvale, New Jersey, fell 45 cents yesterday to $43.05 in New York Stock Exchange composite trading. Mylan, based in Cannonsburg, Pennsylvania, dropped 56 cents to $11.56 on the NYSE. [IPBiz notes Mylan has large facilities in West Virginia.]

The Motley Fool pointed out another angle:

When Barr does finally launch, the big loser -- other than Boehringer -- will be GlaxoSmithKline, which sells a competing drug, Requip. Some patients taking Requip may switch over to generic Mirapex to save a few bucks on copayments every month -- or a lot of bucks, if they don't have insurance.

The title of the Fool article: Barr's Lawyers Earn Their Keep

Wednesday, June 25, 2008

Flashback: what Trump University taught about mortgages in 2006

Back on 15 Dec 2006, Trump University Prez Michael Sexton interviewed E. J. Ridings:

Michael Sexton: I just read an article that described homeowners who use their homes like --cash registers--
EJ Ridings: In general, there are three reasons to refinance your mortgage. First, to lower your monthly payments. Second, to get your mortgage paid off faster. And third, to take cash out of your property.

Less than two weeks later, it turned out E. J. Ridings had falsified his resume.

Less than two years later, well, you know what happened to those "cash register" folks....

See also

Exxon wins in limitation on Valdez punitive damages

The Supreme Court on June 25 lowered the $2.5 billion punitive damages award in the 1989 Exxon Valdez disaster to $500 million.

Heuft: CAFC rules on infectious prosecution disclaimers

In Heuft v. Industrial Dynamics, the CAFC got into prosecution disclaimer issues, citing Elbex Video and Omega.

Prosecution disclaimer occurs when a patentee, either through argument or
amendment, surrenders claim scope during the course of prosecution. Elbex Video,
Ltd. v. Sensormatic Elecs. Corp., 508 F.3d 1366, 1371 (Fed. Cir. 2007). Amendments
or arguments that are merely vague, ambiguous, or subject to other reasonable
interpretation are not sufficient to surrender claim scope. Omega Eng’g, Inc. v. Raytek
Corp., 334 F.3d 1314, 1325 (Fed. Cir. 2003). Rather, in order for prosecution disclaimer
to attach, the patentee’s actions must be “clear and unmistakable.” Id. at 1326.

Here, disclaiming arguments made in the prosecution of the '408 patent infected the claims of the '974 patent.
The '974 is a divisional of the ’408 patent.

The CAFC noted that disclaimer could arise from statements made in PRIOR applications:

It is well-settled that “prosecution disclaimer may arise from disavowals made
during the prosecution of ancestor patent applications.” Ormco Corp. v. Align Tech.,
Inc., 498 F.3d 1307, 1314 (Fed. Cir. 2007) (quoting Omega Eng’g, Inc. v. Raytek Corp.,
334 F.3d 1314, 1333 (Fed. Cir. 2003)).

The CAFC cited no caselaw to support the decision of this fact pattern.

See also

"Naked Cowboy" trademark suit against Mars goes forward

U.S. District Judge Denny Chin ruled on Monday, June 23 that the trademark infringement claim made by "the naked cowboy" Robert Burck against candy maker Mars can proceed.

The right of privacy claim was dismissed with New York law said to protect only the "name, portrait, or picture of a living person" and not a character "created or a role performed by a living person."

See the previous post on IPBiz:
"The Naked Cowboy" trademark and lawsuit

Plagiarism at PALY High (Palo Alto, CA)

See Mercury News story concerning plagiarism of graduation speeches at Palo Alto High School.

EPO Board concludes hearing on WARF stem cell patent application

from EarthTimes:

After hearing the arguments, the board said it would not need to continue the hearing Wednesday [June 25] as originally planned. EPO spokesman Rainer Osterwalder said he expected the board to rule before Europe's summer holidays.


One of the main reasons for the EPO refusal was that the method used a human embryo which was destroyed in the process.
Justin Turner, the lawyer for WARF, told EPO's supreme judiciary body, the seven-member Enlarged Board of Appeal, "There are no grounds whatever to deny a patent for embryonal stem cells."

He said EPO guidelines prevented patenting human embryos themselves, but not the cells derived from them.
EPO defended its refusal, saying an embryo had clearly been used and EPO rules obliged the Munich based office to protect the human dignity of the embryo.

[Certain opponents to WARF's U.S. patents have neglected to point out this underlying reason for WARF's failure to get patents in Europe, which reason had nothing to do with the reasons put forth in the ill-fated re-examination initiated by FTCR and PubPat.]

**See also


In the quirky world of California politics, a lobbying group of Robert Klein, who happens to be head of CIRM, is opposing legislation to alter CIRM (SB1565). One might have thought there was a conflict of interest somewhere here.

Californiastemcellreport writes:

The private stem cell lobbying group run by Robert Klein [Americans for Cures], who also serves as chairman of the $3 billion state stem cell agency, is formally opposing legislation aimed at ensuring that state-financed therapies are affordable and accessible to Californians.


IPKat has a post on the WARF stem cell matter: EPO hears WARF arguments, which includes the text:

The firm's [Shepherd and Weddesburn's] conclusion is that the imposition of moral criteria upon patent application decisions in the stem cells field may well drive investment from Europe to jurisdictions where patent criteria will be decided upon solely on the basis of merit [the IPKat has never understood why this should make any difference: wherever the R&D cash is spent, the results will be either patentable or non-patentable in the same markets -- and even the absence of patent protection has never stopped people commercialising their products if they see a profit ahead. Can someone assist him?].

IPBiz notes the tremendous irony in an argument that "denial of patents drives investment away" when, concurrently, in the US, one has the argument that "granting of patents drives investment away." Which is it, folks?

For example, The Business Journal of Milwaukee reported:

Three patents [of WARF] were challenged through re-examination proceedings initiated in October 2006 at the request of New York City-based Public Patent Foundation and the Santa Monica, Calif.-based Foundation for Taxpayer and Consumer Rights [FTCR].

The groups had argued that the work done by University of Wisconsin researcher James Thomson to isolate stem cell lines was obvious in the light of previous scientific research, making his work unpatentable. The groups claimed the three WARF patents were "impeding scientific progress and driving vital stem cell research overseas."

IPBiz notes that, shortly after the USPTO rejected the arguments made by FTCR, FTCR changed its name to ConsumerWatchdog. The net effect of the re-exam was to strengthen the WARF patents, not exactly good news for California taxpayers, who were hosed by the poorly-planned efforts of FTCR.

The declarations gathered from the likes of Loring and Trounson by FTCR for use at the USPTO were not well-received; the bizjournal noted:

The patent office rejected the arguments by the groups that Thomson's discoveries were obvious in light of previous research, finding that the expert declarations they submitted were "flawed by hindsight reasoning."

IPBiz notes that the prior art references relied upon by FTCR were found not to be enabled.

Tuesday, June 24, 2008

More RCEs --> lower allowance rate?

Within a post titled --Docs at BIO: Panel Discusses Impact of USPTO Rules Changes and Patent Reform Legislation on Biotech Patenting --, Patent Docs has some text discussing some gaming by the USPTO of patent grant rate in terms of RCEs:

Turning her focus to allowance rates, Ms. Kepplinger presented a graph (originally presented by Director Dudas) that clearly indicated that allowance rates had remained fairly constant between 1975 and 2000 (ranging from 60% to just over 70%), and had dropped significantly since 2000. Ms. Kepplinger primarily blamed increased RCE filings for the drop in allowance rate (noting that when RCEs are subtracted from the post-2000 totals, the allowance rate returns to pre-2000 levels). According to Ms. Kepplinger, other causes for the drop in allowance rate include:

1. The USPTO's goal to achieve a 3.5% error rate (Ms. Kepplinger noted that supervisor bonuses are keyed to this goal, and that the USPTO recently began including design applications in its error calculations – presumably to keep the rate at or below 3.5%);
2. The USPTO's desire to have a "second set of eyes" review applications prior to allowance;
3. Massive hiring of new (and inexperienced) examiners;
4. The reluctance of examiners to allow applications (Ms. Kepplinger noted that "you can't make a mistake if you don't allow"); and
5. The KSR Int'l Co. v. Teleflex Inc. decision.

IPBiz notes that, to some extent, this is a recycling of Quillen/Webster, who argued that numerous continuation applications made the allowance rate lower than it really was. At least with an RCE, one is talking about continued procecution on a given patent application.

"NBC Nightly Olds" strikes again

NBC Nightly News on June 24 discussed the case of the government contract of AEY, Inc. of Miami Beach.

From the NYT of 27 March 08, three months earlier:

But to arm the Afghan forces that it hopes will lead this fight, the American military has relied since early last year on a fledgling company led by a 22-year-old man whose vice president was a licensed masseur.

With the award last January of a federal contract worth as much as nearly $300 million, the company, AEY Inc., which operates out of an unmarked office in Miami Beach, became the main supplier of munitions to Afghanistan’s army and police forces.

[AEY's prez --Efraim E. Diveroli]

The "Nightly Olds" strikes again.

***Also on Nightly News

Undiagnosed diseases program with an example "Irak 4"

Legal doings at Pfizer

Further to the demise of Pfizer's chief patent person, Alan Hesketh, over child pornography, the pharma log blog has some other items in a post, Rumors, innuendo, criminal charges and changes inside Pfizer Inc's legal department, which has some suggestions about a link to the Spitzer/prostitution thing.

IPBiz was more interested in the blog's mention of "superlawyer" Amy Schulman, otherwise mentioned in a WSJ:

If Amy Schulman’s schedule as a product liability litigator at DLA was cramped, it probably won’t be any less busy in her next gig. Pfizer has announced that, effective next month, Schulman, 47, will replace Allen Waxman, who left in March for personal reasons according to the firm, as the pharma company’s new GC. The WSJ’s Nathan Koppel has the story.

Schulman, who in addition to defending Pfizer against lawsuits over Celebrex and Bextra, has rep’d GE and Altria Group, among other companies, and made a pretty penny doing it. Last year at DLA, one of the largest law firms in the world, she pulled down $5.75 million. Pfizer didn’t say what her pay would be.

Separately, Schulman writes:

I get around 600 e-mails a day. I divide them into four categories, and I deal with them immediately, by and large. First are e- mails that I forward to someone else. Next are where somebody's giving me information that I need to cascade to somebody else with instructions. Third are the ones that I can read later on an airplane. Fourth are those that require me to respond immediately.

Constantine fired by Columbia on June 23

Marc Santora of the NYT reported that Constantine was "fired on Monday [June 23] after months of wrangling over charges that she plagiarized the work of two former students and a former colleague."

The NYT also noted:

A letter announcing the decision, sent Monday to the faculty of the college, indicated why the punishment had escalated. “During the months since the college levied sanctions against her, Professor Constantine continued to make accusations of plagiarism, including in at least one instance to the press, against those whose works she had plagiarized,” the letter stated.

See also

Nuijten: no matter how useful

The question presented for cert in Nuijten ends with the words: "no matter how innovative, unique or useful they are."

One notes "innovative" is not a criterion in patent law.

Novelty is a criterion, but one wonders how to evaluate "how" unique something is. It's either unique (novel) or it's not.

"Useful" (utility) is a criterion in patent law, but it's a threshold one. If it's useful, we're done, and we don't worry about "how" useful it is.

Who formulates these questions?

Lab Corp. v. Metabolite, 548 US 124 (2006) gets a work-out in the professors' amicus brief, but, gosh, the Supreme Court did not decide the case!

The brief does quote Justice Harlan in Katz for the text: "bad physics as well as bad law."

Known position wobbler Mark Lemley is on the same side of the Nuijten issue as he was in Lab Corp. Trouble was the "pro-patentee" side of Lab Corp. was VERY troubling, a fact the amicus profs in Nuijten overlook.

Law reviews: nobody reads them

A post on politico titled Obama kept Law Review balanced gives some analysis of Barack Obama's tenure as President of the Harvard Law Review.

One has the obligatory:

Obama might have had it right while he was running the journal, when he reportedly ended minor disputes with the words, "Just remember, folks: Nobody reads it."

There is reference to Michael McDonnell (then a prof at UChicago Law, and, separately, brother of Senator Mitch McConnell):

Once a piece is set, the president also sends a letter or fax and makes a follow-up phone call to each author. Federal Judge Michael W. McConnell, who was nominated by President Bush and has frequently been mentioned as one of Bush’s potential Supreme Court nominees, recalls receiving one such letter and call in early 1990 for his article “The Origins and Historical Understanding of Free Exercise of Religion.”

McConnell told Politico, “A frequent problem with student editors is that they try to turn an article into something they want it to be. It was striking that Obama didn’t do that. He tried to make it better from my point of view.” McConnell was impressed enough to urge the University of Chicago Law School to seek Obama out as an academic prospect.

[Obama did teach at UChicago Law.]


"To understand what someone else is trying to say isn't just an editorial skill," said McConnell. "It's a life skill.”

Lemley astonished that apportionment was controversial

Patent reform 2008 (S.1145) died over damages apportionment.

Here's what Mark Lemley said:

“I have to say I’m frankly astonished that apportionment has been this controversial,” said Mark A. Lemley, an intellectual-property scholar at Stanford who has testified in support of the legislation. “I can’t think of a straight-faced argument that you as a patent owner are entitled to more than your invention has contributed to a product.”

What, me worry?

With Obama getting patent advice from Lemley and Lessig, we can see where Obama is on patent reform.

[Above quote from Patent reform: Stopping the insanity or inventor ripoff?, Richard Koman, ZDNet Government] One can find on zdnet:

Is Cisco CEO John Chambers’ aggressive commitment this morning to a 25 percent reduction in greenhouse gas emissions by 2012 just a ploy/play for green headlines? Actually, I think this very public very high-level move represents just the first part of a multi-layered program to get Cisco better positioned as a force to be reckoned with in the green tech space. And, I know that when you rally John Chambers behind something, things get done.

but nothing on Cisco's Rick Frenkel as the (once) anonymous patent troll tracker.

Hansen on global warming: 'This is the last chance"

Within a discussion about global warming, one has the text:

that the world has long passed the "dangerous level" for greenhouse gases in the atmosphere and needs to get back to 1988 levels.

IPBiz notes that, while the term "greenhouse gas" is ever-present in the environmental discussion, it is a misnomer. More than thirty years ago, this misnaming was pointed out in the journal Science:

From The "Greenhouse Effect",
Robert G. Fleagle and Joost A. Businger,
190 Science 1042 (1975):

[G]reenhouses are warmer than
the surrounding air because the glass pre-
vents the warm air inside from rising and
removing heat from the greenhouse. Ab-
sorption of infrared radiation by the glass
contributes only a little to the warming ef-
fect. Polyethylene sheets, even though they
are largely transparent to infrared radi-
ation, are just about as effective as glass in
greenhouses The essential facts were es-
tablished by a simple experiment carried
out by Johns Hopkins University physicist
Robert W. Wood in 1909. He found that
two model greenhouses, one covered with
glass and the other with rock salt (which is
transparent to both short- and long-wave
radiation) reached very nearly the same
high temperatures. Thus the "greenhouse
effect" results from suppression of vertical
convection by a rigid lid.

The earlier paper in question is
Robert W. Wood,
Philosophical magazine , 1909, vol 17, pp. 319-320.

One would hope after one hundred years, scientists
would get the "greenhouse" issue right.

Another fraud: the "lost Amazon tribe"

Yahoo buzz notes: Even in an age when cynical sleuths can hyper-analyze stories for truth and accuracy, the occasional hoax still slips through the cracks. Such was the case with a so-called "lost Amazon tribe."

A few months ago, mainstream news outlets (including, ahem, Yahoo!) reported that a photographer had found a lost tribe of warriors near the Brazilian-Peruvian border. Photos of the tribe backed up his claim.

As it turns out, the story is only half true. The men in the photo are members of a tribe, but it certainly ain't "lost."

IPBiz asks about the "occasional" hoax. The journal Science published the fraud of Jan-Hendrik Schon, and quickly followed up with the fraud of Hwang Woo Suk. Frauds happen frequently. Then, of course, there's Lesley Stahl and the hot dog hoax.

Bayer, Barr do deal over Yasmin

Forbes reports:

Bayer AG. said it agreed to supply a generic version of its Yasmin contraceptive to Barr Pharmaceuticals Inc. but will continue to pursue an appeal against a court decision in favour of Barr, which voided Bayer's U.S. patent on Yasmin.

Barr will sell the copycat version of the Yasmin pill in the United States only and Bayer will receive a fixed percentage of the revenues, Bayer said in a statement, without disclosing financial details.

The deal is a risk-mitigator. Forbes notes:

Should Bayer fail to defend its patent in court Bayer will still get a share of the U.S. market for generic versions of its best-selling pill.

But the deal will also allow Barr to stay in the market even if Bayer wins the patent dispute, albeit with Barr paying higher royalties to Bayer.

See also

Drive-in theater in Vineland, NJ

For the record, WMGQ (98.3) discussed a drive-in theater located in Vineland, New Jersey. They still exist.

Delsea Drive-In, 2203 S Delsea Dr., Vineland, NJ 08360 Phone: (856) 696-0011

Academic patent dispute in Europe

A university patent (held by Switzerland's University of Neuchatel) has been invoked against the SunFab thin film solar technology of Applied Materials.

Oerlikon licensed the Neuchatel technology.

Query: If a "maker" licenses the academic technology, does that make the technology "non-troll"? Does the "maker" have to "make" according to the academic patent to render the technology non-troll?

For the record, Applied Materials Inc denies infringement.

EPO/EBA to review WARF stem cell applications on 24-25 June

John Simpson of FTCR (now ConsumerWatchDog) had written of the U.S. WARF patents on stem cells:

The groups said the patents' dubious validity is underscored by the fact that no other country in the world honors them. As a result, U.S. researchers have sent research monies abroad where they can avoid paying royalties to WARF. California voters approved the nation's largest publicly funded stem cell research program in 2004 with Proposition 71, which allocated $3 billion in grants over the next 10 years. More information about FTCR and PUBPAT's challenges to the WARF stem cell patents (U.S. Patents Nos. 5,843,780, 6,200,806 and 7,029,913), including copies of the Patent Office's Orders rejecting the patents, can be found at

On 24-25 June 2008, there are public oral proceedings before the Enlarged Board of Appeal of the European Patent Office (EBoA) over the WARF patent applications before the EPO.

Of the past, the EPO notes:

On 13 July 2004, an EPO Examining Division refused to grant a patent for the application on the grounds that it was found to be not consistent with the European Patent Convention (EPC), which regulates and harmonises patent practice across Europe. One of the main reasons for the refusal was that the disclosed method of obtaining stem cells used as the starting material a primate (including human) embryo which was destroyed in the process. Somehow, John Simpson neglected to mention this in his attacks on the WARF patents.

The FTCR/PubPat re-examination challenge to the U.S. WARF patents went down in flames. The references they cited were deemed non-enabled, and the declarations were found conclusionary.

See also

Monday, June 23, 2008

Cognex aggressive with VCode on defamation matter

Of the Cognex v. VCode [Acacia] case, the 271 blog noted:

While the district court dismissed the deceptive trade practices claim, the court denied Acacia's motion for summary judgment on the issue of defamation.

College rankings

US News' "America's Best Colleges 2008" has New Jersey's Princeton as #1, followed by Harvard, Yale, and Stanford.

UPenn at 5 beats the University of Chicago, at 9.

The first public school is UC/Berkeley at 21. UCLA and UMichigan are tied at 25. NYU is at 34. The University of Florida is at 49, and Rutgers is at 59.

The bottom ranking is 124, which includes New Jersey's NJIT and Kansas State University.

For another area of ranking:

RealSource whacked by CAFC

In a battle over phone cards that turned on the doctrine of claim differentiation, RealSource lost to Best Buy, Circuit City and CostCo.

Note the appearance of "attorney estoppel"/"attorney admission":

In addition, we note that counsel for Realsource frankly
admitted during argument that his client had no intention to expand the scope of the
asserted claims by making the change in claim language. Oral Arg. at 39:13-39:24,
available at; see also 35
U.S.C. § 112 (permitting an inventor to Aclaim[] the subject matter which [he] regards as his
invention@) (emphasis added); Phillips, 415 F.3d at 1316 (AUltimately, the interpretation to
be given a term can only be determined and confirmed with a full understanding of what the
inventors . . . intended to envelop with the claim.@).

What an attorney says in oral argument can and will be held against the client.

Should Obama, McCain debate patent reform?

Chris O'Brien in the San Jose Mercury News suggests a debate, in Silicon Valley, between the presidential candidates on issues including:

lifelong worker training, e-waste and patent reform

The text also notes:

Stanford University's Lawrence Lessig is a tech adviser for Democratic Sen. Barack Obama. Cisco Systems Chief Executive John Chambers is advising Republican Sen. John McCain on tech, while former eBay CEO Meg Whitman is raising money for the Republican candidate..

IPBiz notes that if Cisco (home of the formerly anonymous "patent troll tracker" Rick Frenkel) is "advising" McCain and "Red guerilla leader" Lessig is advising Obama, then who is speaking for America's real inventors? This is really sad.

Other possible debate topics included:

• H-1B visa/immigration reform: Not a huge surprise. Besides patent reform, this seems to be the topic that elicits the most passion.
• Net neutrality: This was a popular one, with several folks worried that telecommunications companies might hinder the growth of an open Internet.
• Green/clean technology: This actually included a broad range of related issues, including tax credits, support for research and environmental policies that would encourage adoption of such products.

See also:

On network neutrality, see also heartland post:

The afternoon session of the forum considered "Whose Pipe Is It--The End of 'End to End'?" Skydeck CEO Jason Devitt pointed out what he saw as a need for net neutrality rules on the Internet because of high financial barriers to entry for small companies such as his own.

Stanford University professor Mark Lemley and AT&T Vice President Jeff Brueggeman discussed concerns about Internet service providers (ISPs) blocking content for subscribers. Lemley said government regulation was necessary because "ISPs might block eBay." Brueggeman stated his company's position in support of existing regulations guiding network management.

Lemley said, "Clearly the panelists were not of one mind on the question of network neutrality," following his participation on the panel. He noted, "If there is a consensus, it is that there is a middle ground between intrusive regulation and doing nothing."

Lemley painted a stark picture of the net neutrality debate, where artists want to reach consumers while producers with legal wherewithal would like to work with providers such as AT&T to fight against piracy.

How do patent lawyers do in a recession?

BlackEnterprise has text including a quote by Mark Kesslen:

"In a good economy people build portfolios and protect their innovations. In a recession, they look for ways to generate royalty revenues or litigate to protect their patents. They also look to make sure their licensing agreements are being enforced properly," Kesslen says. "We continue to see growth from mid-sized pharmaceuticals and life science companies and we're seeing more start-ups in Internet and telecom businesses." Kesslen says the state may see a slowdown in patent applications in the summer months as companies adjust their budgets and start to confront the recessionary period we appear to be in now.

Sunday, June 22, 2008

Can Kanzius cure cancer?

MATT CLARK at Naples [FL] News asks about John Kanzius: Can this man cure cancer?

Within the article are several interesting statements, including:

At 22, Kanzius worked at RCA as a technical assistant. He remembers the time when the company couldn’t solve a problem with its color television transmitters, which had put RCA at odds with Federal Communications Commission specifications and some of its customers.

“I was able to do in one day what they couldn’t do in two years with all of their Ph.D.’s, and it got me well-recognized,” Kanzius says proudly. “I was able to fix that with a 50-cent part, in like an hour.”

[IPBiz notes a previous IPBiz post mentioning John Ewen talking about John Ewen:
What inspired me? Simple: The skepticism of those around me and the desire to succeed. I needed to be right and above the prejudices against my pedigree. The academic standards needed to be wrong. I would never quit. I needed to prove that my ideas were worthwhile. ]

Although Kanzius has filed some patent applications, he has received no patents. Yet Clark wrote:

Soon after Kanzius acquired patents for his work, the machine was featured in a newspaper article in the Erie Times-News. That got the attention of Dr. David Geller, then co-director of the Liver Cancer Center at the University of Pittsburgh Medical Center. Geller says he was skeptical at first.

See also

Bob Park's WN merely referred to Kanzius' hydrogen work as a "similar" scam [when referring to another hydrogen scam] on 20 June 08:

Genepax uses a membrane to breaks the water down into hydrogen and oxygen, and then uses the hydrogen as fuel. A year ago there was a similar scam (WN 10 Aug 07) .

See also

Salt water fuel gets major university review



In 1996, a district court granted the United States a permanent
injunction against the Quadro Corporation, enjoining Quadro from
selling a class of devices variously called the Quadro Tracker, Golfball
Gopher, Trailhook, or Treasure Hunter.1 The marketing literature for
these devices claimed that they could detect unseen objects by directing
the bearer of the device in the correct direction, much like a dowsing
rod acts to conduct its bearer towards water.2 For example, it claimed
that the Quadro Tracker was capable of detecting contraband such as
illegal drugs and explosives.3 X-rays of the device determined that it
consisted of nothing more than a hollow plastic shell with an attached
radio antenna.4 Thus, like the classic dowsing rod, the Quadro Tracker
was incapable of detecting anything.5 The primary victims of this fraud
were law-enforcement agencies, correctional institutions, and school

On generating a privacy summary: 20080046976

The first claim of published US application 20080046976:

A method for dynamically generating a privacy summary comprising:

generating a profile for a user;

receiving one or more privacy setting selections from the user associated with the profile;

updating the profile associated with the user to incorporate the one or more privacy setting selections; and

generating a privacy summary for the profile based on the one or more privacy setting selections.

The inventor is Mark Zuckerberg and the assignee is Facebook, Inc.

Paragraph 6 says:

There are existing mechanisms that allow the user to display information about the user or to not display their information. Some mechanisms may allow the user to select settings that display only certain information to the users. Typically, however, these mechanisms are all or nothing. In other words, the user can choose to display pieces of the information or not. Further, often the user is unaware of what the settings selected represent with respect to the information that will, or will not, be displayed about the user.

e^(ip) blog: exalted head of the unseen

IPBiz noticed the e^(ip) blog of E.M. Gill, advertising Weekly IP insights, typically with wit and brevity which included text:

So while the title Chief Intellectual Property Officer (or something similar: IP Managing Director, VP of Intangibles, Exalted Head of the Unseen) is important to differentiate IP from other functions, it is absolutely critical that we do not unintentionally disassociate our function with the core business. As an industry, instead of creating another peripheral function, our goal should be to make CEO's, CIPO's themselves.

Brian Williams "sits in" for Russert on June 22

"Meet the Press" on 22 June 08 opened with a logo "Meet the Press with Tim Russert" and an announcement "sitting in for Tim Russert" is Brian Williams. An inadvertent tribute to Russert was the manifest incompetence of Brian Williams in handling the show. Perhaps the lowest point, in a show filled was lows, was when Williams asked Joe Biden if he would be vice-president, and Biden said "no," and then Williams, a la Russert, put up a clip from a previous time, at which Biden also said he would NOT be vice president. Duh! That's a real gotcha.

Unlike Russert, who used his own knowledge to set up issues, Williams was about as forceful as Captain Kangaroo talking to Mr. Greenjeans. The guests, initially (admitted plagiarist) Joe Biden and Lindsey Graham, were carrying Williams.

They walked through Obama's change on accepting public financing. Somehow 1,400,000 contributors to Obama, yielding $265 million was considered to be an average of $88 per contributor. Now that's voodoo math. Andrea Mitchell later pointed out that 55% of Obama contributors did donate significant money. Biden and Graham didn't get to any common understanding of off-shore drilling.

Williams announced at the end of the show that Tom Brokaw would handle "Meet the Press" through the election season.
Someone should bring David Brinkley out of retirement, or the various Captain Kangaroos will run Sunday morning tv into the ground.

See also

Educational hobos?

CBS Sunday Morning on 22 June 08, noting the 64th anniversary of the GI Bill, referenced a quote of University of Chicago's Robert Maynard Hutchins:

"Colleges and universities will find themselves converted into educational hobo jungles, and veterans...will find themselves educational hobos."

Who would have known that IP professors at law schools would become the educational hobos feared by Hutchins?

Ranbaxy to settle with Takeda over Actos (pioglitazone)?

The Business-Standard reports:

The Indian drug major [Ranbaxy] , which last week announced a high-profile patent settlement deal with Pfizer on Lipitor, the world's largest selling drug, may now review its litigation with Japan's Takeda on Actos (pioglitazone).

The blockbuster medicine for diabetes clocked annual sales of over $1 billion in the US alone. Ranbaxy is known to be the first one to have challenged the patent of Actos and expects a six-month marketing exclusivity in the US.

If the report is correct, it would appear that there is a major patent litigation strategy shift at Ranbaxy.

See also

Pfizer, Ranbaxy settle Lipitor matter

****Also note article on July 5-->

Even almost a month after the Singh family exited the company [Ranbaxy], nobody seems to have a clear idea why they decided to sell their entire stake. Analysts, experts and sources close to the company have given their own version behind the move. However, one fact was that the generic industry was becoming a hugely competitive space both globally and in the domestic market.


According to sources closely tracking developments in the country’s largest pharma company, there were also operational and managerial challenges Ranbaxy was fighting. In addition, the group company had a good alternative in other businesses such as the financial services company Religare — a hassle-free and lucrative business compared with the complex pharma sector. More importantly, Daiichi Sankyo’s offer of Rs 737 per share (a 31.4% over the company share price a day before the announcement) was an attractive offer that any promoter would have considered anyway.


Ranbaxy also realised that betting on the first to file challenges alone, which give generic companies exclusive marketing rights for 180 days, was not going to take the company to its target. The company had even decided to hive off the new drug discovery division into a separate company. It is believed that Ranbaxy and Daiichi were initially exploring a strategic partnership for the new research unit.


In view of the paradigm shift at Ranbaxy, what happens to Jay R. Deshmukh and George E. Heibel?


Jay joined Knobbe, a patent firm which represented Ranbaxy. See

Jay R. Deshmukh has joined Knobbe Martens Olson & Bear, LLP as a partner in the firm’s Washington D.C. office. He will focus his practice on generic pharmaceutical counseling and litigation.

Former Senior Vice President of Global IP at Ranbaxy Laboratories Limited, an international generic pharmaceutical company, Deshmukh was responsible for the creation of the company’s global IP department, which grew to more than 50 employees. He has extensive experience in the area of generic pharmaceuticals, including the Abbreviated New Drug Application Process and the complexities of litigation involving pharmaceuticals under the Hatch-Waxman Act. He also has immense experience counseling generic pharmaceutical companies regarding the best strategy they should pursue to launch new products.

Teachers remembered from Stanford

In 2003, the Stanford Magazine started a feature: Teachers we remember (and why).

There was much feedback from students. For example: Burnham Carter Jr., PhD ’55, wrote that the late, great poetry scholar Yvor Winters left him discouraged and deflated when he responded to Carter’s first paper with one word—“nonsense”—and a D. Carter finished the course with a B-, however, and took two more classes with Winters. The legendary curmudgeon “taught me to have standards and to stick to them,”

One of LBE's more interesting profs at Chicago was one Art Winfree, who taught math bio (things like the Lotka-Volterra equations) but also taught about how scientists should interact with one another.

Returning to Stanford, recall

Saturday, June 21, 2008

Does the Supreme Court still matter?

When Tim Lee took on the Federal Circuit in a recent post on TechDirt, it was apparent he had not read Judge Plager's piece in 101 Nw. U.L. Rev. 1735 (2007) titled RETHINKING PATENT LAW'S UNIFORMITY PRINCIPLE: A RESPONSE TO NARD AND DUFFY.

which includes the text:

Unlike the situation with many federal administrative agencies, the United States Patent and Trademark Office ("PTO") has no substantive rulemaking authority, at least under our decisions, and accordingly we have afforded no Chevron deference to its interpretation of the substantive provisions of the patent statute. n20 Moreover, Congress has not so far created a significant role for the PTO in the infringement litigation process, either with respect to issues of claim construction, validity, or enforceability, though the reexamination process is perhaps becoming increasingly significant as an adjunct to litigation. This is not to suggest that the PTO does not play a critical role in the patent system. However, the courts, rather than the PTO, have the responsibility under the statute with developing the substantive law of patents - a kind of common law of patents - much as in the area of antitrust. n21 In this environment, Supreme Court review is even more important than in areas where the statutes are more detailed or Chevron applies and the courts have a less central role.

See also

Paul H. Jensen citing Quillen/Webster in 2008

Query: how many criticisms of the Quillen/Webster methodology must be published before Paul H. Jensen wakes up and takes notice?

This bias is however probably small since the proportion of all original patent applications granted by
the USPTO is as high as 80-90 per cent (Quillen and Webster 2006).

Brits' handling of Persaud case shows what SIU should have done with Poshard

Both Raj Persaud and Glenn Poshard copied from the published works of others and passed it off as their own. Southern Illinois University in Carbondale created a pass for Poshard by invoking the concept of "inadvertent plagiarism," a construct that doesn't pass the straight-face test. In contrast, in Britain, the General Medical Council (GMC) found that dishonestly plagiarizing the work of colleagues brings the profession into disrepute. Poshard argued there were no clearly defined standards. The Brits invoked the standards held by ordinary people. Poshard and Persaud matters, which was handled better?

Jeremy Laurance wrote in the Independent:

Dr Anthony Morgan, the chairman of the GMC Fitness to Practise panel sitting in Manchester, told Dr Persaud: "The panel is of the view that you must have known that your actions in allowing the work of others to be seen as though it was your own would be considered dishonest by ordinary people. The panel has therefore determined that your actions were dishonest."

The punishment for Persaud is that Persaud is suspended from practising for three months. The Guardian noted: Anthony Morgan, the chairman of the fitness to practise panel, said: "The panel has determined that a three-month period of suspension is sufficient to send out a signal to you, the profession and the public that plagiarism is unacceptable behaviour."

Poshard had to revise his thesis. What signal did SIU send out to the academic profession and to the public?

See also

Page 54 of the Poshard Ph.D. thesis: a real problem as to plagiarism

And, lest we forget, an article in the Harvard Business Review wrote "plagiarize with pride."

Patent devaluation at BIO in San Diego?

Of BIO, RedOrbit discussed the words of the San Diego Union-Tribune, which declared in a Page 1 story earlier this week that ethanol from corn was "yesterday's news."

A second generation of biofuels created from the likes of switchgrass is emerging as a key ethanol source for the future, the newspaper said.

And the Ardmore-based Noble Foundation has invested its scientific research heavily in developing a type of switchgrass that can be grown easily, cultivated and converted into ethanol. The foundation recently planted a 1,000-acre test plot in the Panhandle and has another 114 acres planted near Maysville.

RedOrbit mentioned Steve Burrill:

In a "state-of-the-industry" report to about 1,500 participants at the BIO show before the exhibition hall opened Wednesday morning [June 18], industry analyst Steve Burrill described the key role that agriculture and biofuels play in the biotechnology sector.

"Ag bio is with us and is being very, very successful," Burrill said. "In the last year you couldn't have read a newspaper anywhere in the world without being aware that biofuels are transforming the nature of the fossil fuel world."

How industry has been shaken

The biofuels industry has undergone a "little bit of a shakeout" because the cost of production and fuel needed to produce it has driven investment away from corn-based ethanol, Burrill said.

"We see not only large amounts of ethanol, but cellulosic (switchgrass) biofuels becoming the real future," Burrill said. "We are very concerned today about exploiting the food crops for fuel, and there is a backlash going on because of that. We need to be engaged in dialogue that we are not part of the problem in the food crisis but part of the solution."

There was no mention of alternatives, for example, like those of Coskata.
GM aligns with Coskata on cellulosic ethanol; good plan or Exxon's Reliance re-visited?

Contemplate also the work of Lonnie Ingram.

Californiastemcellreport also mentioned Burrill at BIO on the pharma area:

Say goodbye to those blockbuster, high-margin drugs. Hello to even more generics. Consumers will drive the market. Big Pharma, already suffering the anguish of expiring patents, will suffer more. Can you spell patent devaluation, he basically asked his audience. The biopharmaceutical industry will have to be re-invented. He said:

"Our friends in Pharma are in deep yogurt."

Could this explain CIRM's fumbling with its own IP policy, and the hiring of a not-registered patent attorney to give it IP advice?


See Patent Docs post, Docs at BIO: Panel Discusses IP Strategies after KSR which mentioned a panel on KSR comprised of Eric Marandett, a Partner at Choate, Hall & Stewart LLP; Kerry Flynn, Vice President, Intellectual Property and Licensing for Shire Human Genetic Therapies, Inc.; Dr. Christine Bellon, Senior Patent Counsel and Director of Intellectual Property for Infinity Pharmaceuticals, Inc.; and Dr. Hans Sauer, the Associate General Counsel of the Biotechnology Industry Organization.

There was text: With respect to recent biopharma obviousness cases, Ms. Flynn stated that 30 decisions have been issued since KSR (16 pharma cases and 14 biotech cases). In those cases, the patentee prevailed 60.9% of the time and the accused infringer prevailed 39.1% of the time.

Copyright on state statutes

James Grimmelmann has a discussion over the recent fracas created by the state of Oregon's claim to copyright in its statutes, Copyright, Technology, and Access to the Law: An Opinionated Primer.

In passing, I recently learned that the copy of the ordinances of the Township of Bridgewater (New Jersey) available in the library are NOT the same as the copy available over the internet. One problem that comes to mind is the Sikahema Effect.

Thursday, June 19, 2008

InformationWeek blog: clueless on Red Hat?

Note the following text about the patent system:

Worse, most of the people caught in its gears aren't deliberate offenders -- they're companies that don't do patent investigations because of the cost, time, and effort involved. (And even if their detective work turns up anything, it often isn't of much use.)

Gee, why bother to study what others have done before when you can just go out and re-discover the wheel, and plead, a la Glenn Poshard, "inadvertent patent infringement"? Gee, I did not have the time or money to read previous work, but I did have the time and money to re-do the previous work. Now that's an efficient system!

Referencing the Red Hat Summit, this post also extolled Michael Meurer.

Wednesday, June 18, 2008

Pfizer, Ranbaxy settle Lipitor matter

AP reports: Pfizer Inc. and India's Ranbaxy Laboratories Ltd. said June 18 they have settled their patent dispute over the blockbuster cholesterol drug Lipitor, delaying the release of generic versions in the U.S. until Nov. 30, 2011.

Forbes gave a more complete account of the event, and noted an immediate drop in Ranbaxy stock of 5%:

Under the terms of the agreement, Ranbaxy will have a license to sell generic versions of Lipitor and Caduet in the United States, as of Nov. 30, 2011. Ranbaxy will have exclusive marketing rights for 180 days. Ranbaxy will also be able to sell generic versions of Lipitor in Canada, Belgium, the Netherlands, Germany, Sweden, Italy and Australia.

Pfizer and Ranbaxy have also resolved their disputes regarding Lipitor in Malaysia, Brunei, Peru and Vietnam, and regarding hypertension drug Accupril in the United States and Viagra in Ecuador.

However, litigation between the two companies relating to Lipitor will continue in five other European countries -- Finland, Spain, Portugal, Denmark and Romania, Ranbaxy said in a statement.

Apparently, the marketplace had expected more favorable terms for the generic maker Ranbaxy.

Tuesday, June 17, 2008

Barack Obama, patents, and Flint, Michigan

The WSJ has excerpts from an interview with Barack Obama on a campaign bus in Flint, Michigan (remember Roger and Me?)

The 271 blog noted a discussion of patent reform:

We've got offices like the patent office that are outdated to take advantage of new discoveries here in the United States. We need to retool our government so that it works with a 21st century economy and in some ways our campaign has shown what happens when you retool political campaigns to a new requirement. I think we need to do the same thing with government as well.

The 271 blog also noted the similarity of the use of terms like "outdated" to themes of the Coalition for Patent Fairness. However, full text like --outdated to take advantage of new discoveries-- does not resonate with CPF, who were complaining about patent damages, not the INABILITY to take advantage of new discoveries, like the airplane toilet queue and employee monitoring.

See also

Tessera shares up on re-exam action

Thomson Financial reported:

Shares of Tessera Technologies Inc. rallied Monday after the San Jose, Calif.-based company said the U.S. Patent and Trade Office (PTO) extended the reexamination of the company's patent related to semiconductor packaging technologies used in the wireless industry.

Tessera said the examiners' decision is known as an action closing prosecution, and gives Tessera the opportunity to respond within one month to questions raised by the PTO examiners. Tessera said it plans to respond.

Shares of Tessera rose 11% to $19.18 on heavy volume of 1.4 million. The issue's 30-day average volume is about 1 million.

Barron's covered the same event in the following way:

Chip industry miniaturization specialist Tessera Technologies (TSRA) said the U.S. Patent and Trademark Office late Friday [June 13] issued an “office action” which rejects certain claims of the company’s patent No. 6,433,419. Tessera said it will respond to the decision, which it said is known as an “Action Closing Prosecution.” The examiners may then reopen prosection [sic: prosecution], issue another ACP, or issue a notice that Tessera may appeal to the Board of Patent Appeals and Interferences.

Here’s the really interesting part: in its release, Tessera contends that the average patent re-examination takes 5-8 years. Tessera figures this case is not going to finish before the patent expires in September 2010. They are going to drag this out as long as possible, is what they are basically saying. And until the process is concluded, the patent remains in force. The patent is at the heart of two pending U.S. International Trade Commission cases in which Tessera makes claims against a number of companies.

So despite what is on the surface a negative ruling, the Street seems happy to have this drag on as long as possible: TSRA today is up $1.82, or 10.5%, at $19.16.

Here's the Tessera press release:

Tessera Technologies, Inc., a leading provider of miniaturization technologies for the electronics industry, today announced the U.S. Patent and Trade Office (PTO) late on Friday, June 13, 2008, issued an office action in the ongoing inter partes reexamination of Tessera's U.S. Patent No. 6,433,419 (the '419 patent), which relates to semiconductor packaging technologies used in the wireless industry, among other applications. The examiners’ decision, which rejects certain claims of the '419 patent, is known as an Action Closing Prosecution (ACP), and gives Tessera the opportunity to respond within one month to questions raised by the PTO examiners.

Tessera plans to respond to the ACP. The examiners may then reopen prosecution, issue another ACP, or issue a notice that Tessera may appeal the examiners’ decision to the Board of Patent Appeals and Interferences. There is no deadline for further action by the examiners. Tessera anticipates it ultimately will be required to appeal the examiners’ decision.

According to a recent study of inter partes reexamination statistics by the Institute for Progress, the average pendency of inter partes reexaminations where appeals are involved is five to eight years, which means that the reexamination of the ‘419 patent likely will not be completed before the ‘419 patent expires in September 2010. The claims of a patent undergoing reexamination are not invalidated until a reexamination certificate cancelling the claims is issued. A certificate can only be issued after all actions closing prosecution are concluded, and all appeals have been exhausted.

A first ACP was issued by the examiners on February 19, 2008. Following review of submissions in response to that ACP, the examiners issued the second ACP on June 13, 2008.

The press release announcing the "Action Closing Prosecution" is titled PTO Extends Reexamination of Tessera Patent.

On the surface, strictly Alice-in-Wonderland, but this process could drag on until patent expiry.


The third party challenging US 6,433,419 was SiliconWare, who wrote on 9 June 2008 that claim terms must be assigned their meaning to one of ordinary skill AT THE TIME OF THE INVENTION, citing Phillips v. AWH, 415 F.3d 1303. The challenger also noted the PTO must give claims their broadest possible meaning (MPEP 2111) and that limitations from the specification must not be read into the claims, citing Superguide, 358 F.3d 870.

The action closing prosecution in re-exam 95/000,227 on 13 June 2008 is 379 pages long. Claims 1-19, 22-24, and 27 were rejected in re-exam. Pages 8-9 mention six (6) pieces of prior art brought up by the requestor. Pages 12-13 note how the USPTO utilized the references supplied by the requestor. Most arguments of the requestor were adopted with modification, or NOT adopted at all. The requestor had the most success with the Freyman reference US 4,700,473, for which arguments were accepted as to claims 1-15. Arguments involving Freyman and Otsuka were accepted as to 16, 24, and 27. Arguments supplied by the requestor as to other claims (and other references) failed.

See also Afloat

Monday, June 16, 2008

The "Indian Option" for Outsourcing IP Work

The InventBlog on 12 June noted:

Perhaps that is what I didn’t get about “outsourcing.” It isn’t about the price (which in this case was competitive with what I was paying in the US). It isn’t about quality (the quality I can get from US searchers is fine). It’s about speed. Perhaps you can have “cheap, fast and good,” instead of just two of the three.

Over the past couple of months (after having them sign a confidentiality agreement), I have sent LawScribe a number of searches (both trademarks and patents). Each time, I have been impressed with the quality of work and the quick turn around. Based on my experience, I’m now at the point where I propose the Indian option to most of my clients when they ask me to perform a search. Surprisingly, every patent client I’ve proposed it to as an option (same price, same quality, but weeks faster) has chosen the India route. Perhaps our (lawyers’) belief that clients don’t want outsourcing is unjustified.

In passing, IPBiz notes that the price of GE stock is at a local minimum.

Another inadvertent plagiarism case

The Independent reported:

Raj Persaud, 45, consultant psychiatrist, broadcaster and prolific author, told a misconduct hearing of the GMC in Manchester yesterday that he had passed off other researchers' work as his own in books and articles. He admitted his actions were "inappropriate" and "misleading".


At the opening of the hearing yesterday, which is expected to last five days, Dr Persaud, wearing a grey suit and black spectacles, admitted plagiarising four articles for his 2003 book, From the Edge of the Couch. He also admitted reproducing other material as if it was his own in articles for journals and newspapers, including The Independent.

Jeremy Donne QC, for the GMC, said: "The articles, we say, speak for themselves and they all demonstrate the extent Dr Persaud has appropriated the work of others as his own. We further allege that Dr Persaud has been dishonest ... Dishonesty can be inferred from his repeated conduct in plagiarising the work of academics ... thereby enhancing his professional reputation and standing with the public as well as enhancing himself in the press."


His troubles began in April 2006 when allegations of plagiarism first surfaced in an article in the Sunday Times. The Times Educational Supplement admitted he had "copied" another academic's work and the British Medical Journal and Progress in Neurology both retracted articles by him following allegations of plagiarism. The latter case prompted an apology from Dr Persaud, who said a "cutting and pasting error" meant some references had been omitted.

IPBiz notes that we can thank Glenn Poshard and SIU for advancing the defense of "inadvertent plagiarism."

See also:

On inconsistency in dealing with plagiarism, see

Plagiarism at Hearst: A tale of two Texas newspapers

Apple settles with Klausner over iPhone

Reuters: Klausner Technology Inc said on June 16 that Apple Inc, eBay Inc and AT&T Inc have agreed to license its "visual voicemail" technology and settled a lawsuit against them.

Klausner had sued Apple in ED Texas.

Slashdot chomps Jeff Bezos


"On June 2nd, almost two-and-half years after the USPTO initiated a reexamination of Amazon CEO Jeff Bezos' 1-Click Patent, Amazon dumped another load of documents on the USPTO Examiner assigned to the case, asking for consideration of the 185 or so listed references and 'favorable action.' Peter Calveley, the LOTR actor whose do-it-yourself legal effort prompted the reexam, notes that he was cc'ed on 20 kg of documents that Amazon sent earlier to the USPTO as it tried to stave off last October's nonfinal rejection of all but 5 of Amazon's 26 1-Click patent claims. So much for Bezos' 2000 pledge of 'less work for the overworked Patent and Trademark Office'."

IPBiz: once there's a rejection in a re-exam, things should be over [?] as to prior art.

Sunday, June 15, 2008

PatentHawk blog whacks Joff Wild

In a post titled The Snake, the PatentHawk blog takes on Joff Wild of IAM:

Criticism of the USPTO has reached comical proportions, and the joke is on us: inventors and prosecutors. When there is a universal howl from the U.S. patent bar about the agency, while the PTO itself crows about a lurch down in allowance rate, and a federal court rules that the PTO acting illegally, you may think something afoot. Jeff Wold of IAM Magazine, sitting comfortably across the pond in merry old England, wonders.


Wold, showing how he thinks by projection, thinks that all patent attorneys should think about is what's good their business.

Gee Jeff, perhaps it should occur to you that maybe Mr. Quinn is a bit less self-interested, less concerned about what foreigners will think, and more worried about a return to sanity in examination practice, for the sake of integrity in the U.S. patent system.

First, IPBiz thinks the guy's name is Joff Wild, not Jeff Wold.

The post of Wild that offended PatentHawk included the text:

Written by patent attorney and law firm partner Gene Quinn, they begin with the chronicling of an alleged revelation by one unspecified senior patent examiner working in one unspecified arts group says that he and his colleagues no longer issue any patents because the way the office is run means that they earn more money and get less hassle if they do it that way. Most of the nine people commenting on the story have very little problem with its veracity, although the final response from someone who seems to work inside the office is very dismissive.
Following on this from this first post, Mr Quinn then goes on to detail another example of USPTO dysfunctionalism that he received in an email after writing his original blog. This is followed by a piece which focuses on what he considers to be a junk patent that has issued (in contrast to some more legitimate applications that have not been granted) and another one which suggests that the time may have come to rework the US patent system completely to allow for both petty patents and a higher-level examined patent right that retains a presumption of validity.
“With the ever growing backlog and examiners refusing to issue patents in certain groups it is time for action and we need to put on the table in a serious way the privatizing of the Patent Office. Clearly the federal government does not have the ability, resources and knowledge to handle innovation and something radical needs to be done before this starts affecting our economy,” Mr Quinn writes.

When Joff wrote: "It is also a fantastic get-out for the office itself, which can say its critics are nothing more than serial moaners who have lost a relatively easy life and never back up their complaints with facts," IPBiz thought of the wildly exaggerated patent grant rate numbers of Quillen and Webster, which were never backed up by facts.

The same could be said about "irresponsible scaremongering" in the text: To do otherwise is irresponsible scaremongering that harms everyone who has a stake in the ongoing development of the US patent system and plays straight into the hands of those who would like to see it reined in.

****Separately, on IAM -->

However one big difference between the dotcom gold rush and the present green-tech boom is that in the latter you are not going to get by without doing meaningful R&D. The internet companies of the late 1990s could talk a great game, but did not have anything much more than dreams underpinning their plans; green-tech businesses have no option but to produce something palpable, something that people can hold on to.

Among the items that these companies can put in front of potential investors is patents. And it looks like these are becoming very important. In an article originally published by Dow Jones newsletters, we are told that green-tech litigation is now beginning to rear its head. "I think we're really starting to see just the beginning of it," the report quotes Morrison & Forrester LLP attorney Eric Walters as saying. "There have been cases across the board of different clean technologies' trade-secret litigations and patent litigations filed in the last year or two." Of course, when companies start slugging it out over patents, you can be sure that they feel something very valuable is at stake. Investors may not like the expense and the worry a court case produces, but it is a confirmation of sorts that they might have put their money in the right place. And if their side wins, well it can be very exciting news indeed.

IPBiz notes that it is not clear that a patent application on Coskata's bioreactor has published. And then there is the "burning water" of Kanzius. Talking a great game can still be a winner; Kanzius certainly fooled Lesley Stahl and viewers of "60 Minutes."

Tim Russert

The June 15 "Meet the Press" was a tribute to Tim Russert, who died on June 13. Panelists led by Tom Brokaw discussed the life of Russert in the foreground, while Russert's empty chair from the set was in the background.

In an article in the New York times on June 16 titled --Recalling Russert as Political Operative in New York--, one has the text

Mr. Russert worked in the early 1980s as a counselor to Mario M. Cuomo, the Queens Democrat who had just been elected governor of New York; I was covering the new administration for The Daily News. Albany was a political roughhouse, and all the more so with a hard-driving new administration with big goals for Mr. Cuomo, working in what was a fiercely competitive media atmosphere.


Mr. Russert, who had previously worked [for] Senator Daniel Patrick Moynihan of New York — where a well-timed leak of damaging information by Mr. Russert about a potential Moynihan foe knocked the opponent out of the race — at first seemed taken aback by the ferocity of this battlefield. One of his earliest lessons came when one of Albany’s toughest reporters walked into his refuge of an office — with its 20-foot ceiling and view down State Street toward the Hudson River — and accused Mr. Russert of leaking a story to a competitor as a way of currying favor with a rival newspaper. (Mr. Russert denied doing any such thing, for what that’s worth).

“If you want to play hardball, Russert, we can play hardball,” this reporter said, proceeding to promise, should he do this again, to — well, let us just say to perform a bit of surgery on Mr. Russert that he no doubt would have found unpleasant. In all the years since, I have never seen him look quite so terrified.

IPBiz notes that Tim Russert was a law school grad (Cleveland State).

See also

Russert lapses on "Meet the Press" on 24 Feb 08 [Note that Doris Kearns Goodwin was a panelist on June 15, and that there was a clip of Goodwin popping out of a cake during Russert's 50th birthday party.]

Mike Barnicle was also on the June 15 tribute. Barnicle, who had been a speechwriter for Robert Kennedy, John Tunney, Edmund Muskie, and Sargent Shriver , was forced to resign in 1998 from the Boston Globe amid questions about the sources of two of his columns.

As noted in the June 15 tribute, Russert was loyal to his friends, and a continuing cheerleader for Buffalo, New York.

See also Tribute in Russert's studio

See also Tim Russert warmly remembered on 'Meet the Press'

See also Bill Kristol's Big Tim, which included the line from Moynihan to Russert:

“What they know, you can learn. What you know, they can’t learn.”

Kristol also noted:

I met Tim in the summer of 1976 during Pat Moynihan’s primary election campaign for the Senate. Tim had just graduated from law school, and was dispatched by the Democratic boss of Buffalo, Joe Crangle, to see what was going on at Moynihan campaign headquarters in Manhattan.

Tim showed up one day, looked around, and took a few of us out for a beer. It took me about two minutes of conversation to realize that Tim was far savvier about politics — especially New York Democratic politics — than we at headquarters were, but he was polite and pretended to listen to our observations. In fact, as Tim told me later, he quickly concluded that most of us had no idea what we were doing — which was certainly the case.


In a city consumed by relationships and networking, Tim was known for his friendships and generosity.