Friday, July 31, 2009

"Cash for clunkers" and the USPTO: both out of money?

Back on July 24, IPBiz noted similarities between the USPTO and "Cash for Clunkers" in that both changed underlying data within an internet website. Now, 6 days after the program began, Cash for Clunkers ran out of money, not having foreseen adequately what was going to happen. But, wait, the patent part of the USPTO is out of money too, not having foreseen the consequences of dropping the grant rate.

Bloomberg writes on clunkers:

The U.S. government’s $1 billion “cash for clunkers” program to spur new car sales ran through the money six days after it began, Senator Debbie Stabenow said.


Officials at the White House and the Transportation Department declined to comment on the program’s status. A White House official, who asked not to be identified because no announcement had been made, said the administration was assessing the situation facing what had turned out to be an overwhelmingly popular program.

Transactions Honored

All valid transactions that have taken place so far under the clunkers program will be honored, the official said.

The Transportation Department had said this week that the money wasn’t running out.

See also Cash for clunkers

***On the economy generally, note the following from Robert Reich's blog at blogspot:

I don't want to minimize the bad consequences of this lousy economy. Too many Americans can't even afford a road trip, let alone a fancier summer vacation. But in many ways, the economy is causing us to slow down, and that's not all bad. There are pleasures to be had, for example, in taking a few days with your kid and maybe a big dog, and doing nothing all that special except listening to music and talking and looking at the country.

Thursday, July 30, 2009

British science paper on "sperm from stem cells" retracted!

On July 24, IPBiz posted on a paper from the group of Karim Nayernia, on the creation of human sperm from stem cells. Although IPBiz noted scientific peers had questioned some of the results, a commenter going under the name "Medical Information" asserted that this had been "proved."

Alison McCook at The Scientist noted on July 29 that the paper had been retracted. The manifest problem was plagiarism from a 2007 review article in Biology of Reproduction. When confronted by the journal editor, Graham Parker, Nayernia blamed a post-doc. The editor didn't bite on the excuse. Congrats to the editor for taking a firm stand against plagiarism.

Mary Spiro, Baltimore news examiner at, has posted on July 30 that the paper has been retracted, for among other things, plagiarism. Apparently, there is a separate issue that the paper had talked about the organisms being "sperm-like" rather than sperm, although the various news agencies overlooked this distinction. Spiro talked about news media outlets who are too easy to hype claims of research findings to make the story more sexy to readers.

Joff Wild at the IAM Blog: where are you? Plagiarism and hype at your own back door?
This is a recent example of why your world view on "patent law reform" news coverage fails. Hype rules; just don't plagiarize, too!

As to "Medical Information," whoever you are, you're a fool.

**Bloomberg reported

“It obviously put a question mark on the actions of at least one of the authors” of the Stem Cells and Development paper, said Parker, an assistant professor of pediatrics at Wayne State University School of Medicine in Detroit. “There’s no reason at the moment to question the actual data in the paper.”

The stem cell study was led by Karim Nayernia of Newcastle University in Newcastle Upon Tyne, England. A phone call and e- mail to Nayernia weren’t immediately returned.

AP noted:

Experts said Parker was right to retract the paper.

"This is clearly scientific misconduct," said Allan Pacey, secretary for the British Fertility Society. "I can understand why people might think, if they were sloppy here, maybe they were sloppy elsewhere."


Critics said the sperm did not have the specific shape, movement or function of real sperm.

**IPBiz would like to remark on the comment below

On matters of scientific fact and interpretation, the general policy of journals is that the authors must retract. This policy is not always followed. Jan-Hendrik Schon did not agree to retract, but several papers were retracted anyway. Imanishi-Kari did not agree to retract in the Baltimore/O'Toole business.

On failure to comply with journal policy, such as multiple publication or plagiarism, presentation of evidence of violation would invalidate the terms of the agreement of publication, and allow the journal to void the contract.

On the preliminary discussion (Parker seems to be talking more than Nayernia), it might seem that Parker was not happy with Nayernia's explanation of the plagiarism. If that is the problem, then a subsequent correction would not remedy the perceived problem. Blaming the post-doc, rather than taking responsibility, is poor form for a principal investigator. A secondary issue, lurking in the background, seems to be the perception that the work was mis-represented in the media, with the journal a vehicle for the misrepresentation.

The preliminary reporting suggests that the plagiarism was in the background section of the Nayernia paper. The issue of the significance of such plagiarism has been discussed in great detail in the Ohio University Masters Theses cases. There are different opinions. Graham Parker took a strong stand that unattributed copying will have consequences. Ohio University did not take such a strong stand. The position of Southern Illinois University (SIU) is pathetic, as is the position of Harvard University, School of Law. So far, the term inadvertent plagiarism has not arisen in the Nayernia matter, although it might.
Perhaps, TechDirt will mention that Nayernia was collaborating with the earlier workers.


Bob Park's WN on 2 Oct. 09--> But, as today's Science put it, "climate researchers are responding in their preferred venue, the peer-reviewed literature."

Earth to Park: "peer review" doesn't make it right, but likely shows it follows consensus. And, where was the peer review on Nayernia's plagiarism?

"Green Goo", the movie?

Remember the 1998 movie "A Civil Action" starring John Travolta as lawyer Jan Schlichtmann and Robert Duvall as the pragmatic attorney Facher?

Note the news report on Rebecca Morlock who noticed what she calls "a green goo" seeping out of the ground below a former zinc-smelting plant in the town of Spelter.

An inspection team had missed it: "How this missed us is, to this point, a mystery," says Ron Potesta, president of Potesta & Associates.

Reminds one of missing relevant prior art in patent litigations. But keep in mind, in the world of patent law, one goes down for enhanced damages only if one knew about the prior art.

Wednesday, July 29, 2009

Patent reformer morphs into patent troll?

Bedrock Computer Technologies (owned by Dave Garrod) has sued Google, Yahoo, Amazon and others in ED Texas over US Patent 5,893,120.

In discussing Dave Garrod's actions in initiating a lawsuit in ED Texas, Ryan Paul wrote:

Another characteristic that makes this case unusual is the person behind it. Bedrock Computer Technologies is owned by David Garrod, a former Goodwin Procter lawyer who is an active contributor to patent reform efforts. Garrod is leading an initiative against false patent markings in collaboration with PubPat, a nonprofit organization that was founded in 2003 to fight against abuses of the patent system.


IP reporter Joe Mullin tracked down PubPat founder Dan Ravicher and asked if he was aware of Garrod's outside activities. Ravicher has a pragmatic view of the issue and says that Garrod's commitment to fighting against false marking makes him a valuable partner for PubPat despite his outside trolling work.

"Without Dave's assistance we couldn't do this campaign, which I'm convinced is a public good," Ravicher told Mullin. "We disagree about software patents. Dave's going to do that other stuff, with or without the false marking campaign."

Ryan Paul seemed to be confused about the strategic role of naming defendant CityWare:

Bedrock Computer Technologies, the company that filed the patent suit, likely named CityWare in the suit solely to increase the chances of having the case heard in that region.

Ryan, ED Texas likes all patent suits. Say VW and ask the Federal Circuit. But the CAFC's ruling in TS Tech has changed that game a bit.

Of PubPat, Ravicher led the ill-fated re-exam expedition against the stem cell patents of WARF using non-enabled references and conclusionary declarations, and was smoked by the USPTO. PubPat's glow was already tarnished long before this expose on Garrod.

**Going to the bottom of Ryan Paul's post, one sees that this came from TechDirt, which in turned relied on Joe Mullin.
This would seem to be another example of the TechDirt/Mullin "connection." [See previous IPBiz post:
Joe Mullin on copying .
The TechDirt post is If You're An East Texas Company, Are You Now More Prone To Patent Infringement Lawsuits? , which includes the text:

Mullin speculates reasonably that the two companies may have been added as a strategy to fight off any attempt to change the venue outside of East Texas.

The argument of TechDirt in the captioned post seems to run: Companies WITHIN ED Texas are NOW more likely to be sued in multi-defendant cases BECAUSE their presence as named defendants would limit the likelihood that the case would be transferred out of ED Texas. Plaintiffs will seek out ED Texas companies as defendants to increase the likelihood of staying in ED Texas.

As a first matter, under current law, venue must be proper for ALL defendants in multi-defendant law suit. As has been discussed in recent matters on patent reform: The amendment to Sec. 1400(b)(1) also does not affect the rule that, in case of multiple defendants, venue must be proper for all of them. Thus, unless the principal place of business or state of incorporation are common, paragraph (1) may not be used as a basis for venue. See
House Report 110-314 - PATENT REFORM ACT OF 2007

After the Federal Circuit's ruling in TS Tech, companies marginally connected to ED Texas have a good chance to change venue. See
In re TS Tech to shut down patent biz in ED Texas?
. Does adding, as a defendant a company "really" connected to ED Texas, change the calculus? Likely not.

One place to look is the Tamburo case, citing to
Wild v. Subscription Plus, Inc., 292 F.3d 529 (7th Cir. 2002):

Tamburo’s reading of Wild, however, is highly and self-
servingly selective, for the appellate court goes on to say:

But that leaves the question whether a defendant in a multidefendant suit
who cannot be served can be forced to defend in the transferee district or,
as most cases hold, must be severed from the rest of the suit and the suit
against him either dismissed or … transferred back to the district in which
the suit was first filed or to a district in which service upon him is possible
…. The argument for the latter course … is that the transfer statutes do
not purport to alter the rules governing personal jurisdiction; and of course
the outer bounds of those rules are set by the Constitution.

That is, including a defendant who can ONLY be served in the initial district
(in our discussion, ED Texas) does NOT preclude transfer as to the OTHER
defendants. Transfer CAN occur, with severance or dismissal as to the ED Texas party.

As with the matter of copying, TechDirt and Joe Mullin kick up a lot of
dust, without much substance. Further, the language in Tamburo:
highly and self-servingly selective does seem to fit
the approach of TechDirt and Mullin to patent law, wherein the
accurate "big picture" is missed.

***See also

Mullin's "Prior Art" blog tries to smoke Ebert

Kappos at the Senate on July 29

William New, at Intellectual Property Watch, wrote of David Kappos before the Senate:

But in the process, Kappos showed possible weaknesses in separating himself from his job at IBM and the need for international diplomacy on IP enforcement.

Of nuts and bolts issues at the USPTO:

Kappos said he has been asked by Commerce Secretary Gary Locke to “refashion the patent examination process.” He said he will “completely remake” the count system, which will help morale and to get to applications that matter. A key focus, he said, is the huge backlog in patent applications, and to “refashion the fee system” to make it more accurately associate fees with the work that is being done. He also would work on “fixing” fee diversion from USPTO.

Webcast of Kappos proceeding on 29 July 09

In a post Senators See Patent Office Nominee as Possible Ally, the Blog of LegalTimes noted:

Kappos, testifying before the Senate Judiciary Committee, said little today about the position the Patent and Trademark Office should take on legislation. Under questioning from Sen. Arlen Specter (D-Pa.), Kappos said his decisions would not be unduly influenced by his recent work as vice president and assistant general counsel for IBM Corp. His priority would be “doing the right thing for the American people,” Kappos said.

Specter, employing apparent sarcasm, replied to Kappos: “Doing that will satisfy everybody.”

IBM, and certain Senators, have been pushing for patent reform, including such things as "oppositions." The headline of the LegalTimes blog item is quite accurate.

See also

**Of the desire of Kappos to remake the count system at the USPTO-->

Background from Volpe-Koenig:

Each USPTO examiner is allocated a specific number of hours to spend during the prosecution of a patent application. Various performance parameters, such as the examiner's "percent of expectancy" and "percent allowed of disposals," are carefully monitored by supervisors on a biweekly basis to determine performance review results, promotions and bonuses.

Unlike in a law firm where attorneys bill for each hour worked, patent examiners work on a piecemeal basis whereby the examiner is credited only for the number of applications examined. An examiner earns two "counts" per patent application examined. A count is equivalent to half the amount of time that the examiner has to complete the examination of a patent application and "dispose" of it. The number of expected hours per disposal is dependent upon the examiner's experience level and the number of hours allocated to the art examined. The more experience that an examiner has, the fewer hours the examiner is allotted to dispose of an application.

An examiner earns a first "count" upon issuing a first report (office action) regarding the patentability of the patent application and a second "count" when the application is disposed of (allowed, abandoned, or when the examiner responds to an appeal). It is not unusual for an examiner to spend more than the time equivalent to one "count" to complete a first office action. The examiner does not receive extra credit for issuing a second non-final office action, a final office action, telephone interviews or an advisory action. The examiner is allowed to charge one hour of "other" time for each instance when a personal (in office) interview is held with an applicant and/or the applicant's representative.

An examiner earns two "easy counts" when the prosecution of an allowed patent application that has not yet issued is continued such that new references submitted by the applicant can be considered. This, of course, assumes that the references are not deemed relevant enough by the examiner to warrant the withdrawal of the allowance.

On gaming the count system, from patent docs:

According to Ms. Kepplinger, the ill-fated continuation and claims rules serve as a perfect example of the Patent Office's flawed logic, which blamed the backlog on applicants' filing of increasing numbers of continuation applications. Citing a study conducted at the George Mason University School of Law (see "Improving Patent Examination Efficiency and Quality: An Operations Research Analysis of the USPTO, Using Queuing Theory"), Ms. Kepplinger noted that contrary to the Office's hypothesis, the backlog has been caused by the issuance of too many non-final Office actions. In particular, the George Mason study found that divisional and continuation filings have remained fairly stable over the past seven years, while RCEs have increased from 8.3% to 19.6% of total filings. Ms. Kepplinger argued that this actually indicates that some examiners have been "gaming the count system."

IPBiz notes that once one recognizes that RCEs are the most predominant form of continuing application, one sees that the
analysis by Lemley and Moore in "Ending Abuse..." [BULR] is completely wrong. In turn, the USPTO cited, and relied upon, "Ending Abuse..." in justifying its proposal on rules on continuation applications.

Kappos may have a good idea in suggesting changes to the count system, but if relies upon the false logic of Lemley and Moore, he may create a bigger problem.

Tuesday, July 28, 2009

Technology Review speaks of 20,000 gal/(acre year) biofuel production

Back in March 2009, IPBiz wrote:

As noted by IPBiz, IAM used material in MIT's Technology Review to prop up Intellectual Ventures against a "troll smear" by Matt Asay. The IAM argument would seem to run: if it's discussed favorably by MIT Technology Review, it must be good technology, and thus IV has good technology in addition to whatever else it's doing.

Of course, IPBiz recalled how favorably MIT Technology Review discussed the completely fraudulent work of Jan-Hendrik Schon:

IPBiz notes the following commentary by the same MIT Technology Review on the fraudulent work of Jan Hendrik Schon:

Hendrik Schön is reinventing the transistor at the place it was born. He and his Bell Labs coworkers have produced single-molecule transistors whose electrical performance is comparable to that of today’s best silicon devices but which are hundreds of times smaller. Making such molecular transistors, which could lead to ultrafast, ultrasmall computers, has been a goal of researchers for years; Schön’s clever design established Bell Labs as a leader in the race. But Schön is not interested in simply reinventing the transistor. He wants to change the very materials that form microelectronics,replacing inorganic semiconductors with organic molecules. Schön has made an organic high-temperature superconductor, renewing hopes that superconductors could have widespread electronic applications. He also helped devise the first electrically driven organic laser, which could mean cheaper optoelectronic devices. The soft-spoken Schön recalls being “very surprised” by how well his molecular transistors worked. But it won’t be a surprise if Schön helps transform microelectronics.

This rosy, but highly unrealistic, picture put forth by MIT Technology Review was vaporized when it turned out that all of Schon's work was fabricated. What was a surprise was how easily Technology Review was duped.

On July 27, Kevin Bullis writing for Technology Review may have suffered a Schon moment in his article titled: A Biofuel Process to Replace All Fossil Fuels which started with the text:

A startup based in Cambridge, MA--Joule Biotechnologies--today revealed details of a process that it says can make 20,000 gallons of biofuel per acre per year. If this yield proves realistic, it could make it practical to replace all fossil fuels used for transportation with biofuels. The company also claims that the fuel can be sold for prices competitive with fossil fuels.

One might ask how many photons per (acre-year) are needed to make 20,000 gallons of any biofuel? Perhaps, Jan-Hendrik is alive and well and in Cambridge? For some background on issues, one might look at "Closed photobioreactors as tools for biofuel production " Current Opinion in Biotechnology 2009, 20:280–285, which notes a photoconversion efficiency [PCE] of about 9%, and states: for reaching the ceiling of 9% PCE, photo-bioreactors have to be
almost ideal concerning mass and light transfer.
That is, of photosynthetically active photons in sunlight [PAR, 400-700 nm], only about 9% go into photosynthesis. Then, one must consider "how many" photons are needed per molecule of biofuel.

Elsewhere, Brendan Borrell speculated on what the organism (asserted NOT to be algae) might be:

One striking possibility is that Joule’s organism is an aquatic plant.

Todd Michael, a plant ecologist at Rutgers, The State University of New Jersey, who has been studying the potential of freshwater duckweed to be used as a biofuel was surprised by the new announcement. His team speculates that Joule’s organism is the duckweed Wolffia, sometimes called watermeal. The genus includes the smallest flowering plants on Earth.

Bill Sims is CEO and president of Joule Biotechnologies.

**Past post


Algae: The next biofuel bet

Hedrick loses appeal on inventorship of stem cell patent

The CAFC decision begins:

Marc H. Hedrick, Prosper Benhaim, Hermann Peter Lorenz, and Min Zhu appeal
the judgment of the United States District Court for the Central District of California
finding that they were not co-inventors of U.S. Patent No. 6,777,231, and granting a
misjoinder motion pursuant to 35 U.S.C. § 256. Univ. of Pittsburgh v. Hedrick, No. 2:04-
cv-09014 (C.D. Cal. June 9, 2008). Because we agree that University of Pittsburgh
researchers Adam Katz and Ramon Llull completed conception of the claimed invention
before the appealing researchers contributed their efforts, we affirm.

Note mention of a document titled “What’s So Great About Fat?” in February 1997.

Note that research proposals got involved in the patenting process:

In July of 1997, Hedrick joined the Pittsburgh laboratory for a yearlong fellowship.
During his time in the lab, Katz submitted a grant proposal summarizing his work with
Llull, stating that their “lab has developed techniques to harvest, isolate, culture,
passage, dedifferentiate, differentiate, and genetically alter” adipose-derived progenitor
cells efficiently. While some researchers other than Katz and Llull were listed in the
proposal, Hedrick was not. Hedrick was also not mentioned in Katz’s laboratory
notebook in connection with any work on adipose-derived stem cells, though other
researchers involved in the work were mentioned. Hedrick, however, wrote his own
research proposal setting forth some experiments on Katz’s cells.

See also

Apotex takes its last swings against Plavix

Peter Loftus at wsj in a post titled Apotex Asks US Supreme Court To Overturn Plavix Patent discusses the attempt of Apotex, through the vehicle of KSR, to attack the validity of claims of the Plavix patent through obviousness.

The CAFC decision, discussed on IPBiz, was well post-KSR, so this appeal would involve convincing the Supreme Court that the CAFC was NOT practicing KSR the right way. Don't hold your breath on this one! If, hypothetically, the Supreme Court took the case, it would open up the whole "patenting enantiomer" can of worms, a fact-intense area of the type that the Supreme Court tends to avoid (note the "facts" in the KSR case).

The criminal matters of BMS in actions with Apotex were mentioned in the Loftus article. [Previous IPBiz post:
BMS to plead guilty to making false statements to federal agency

Note how the criminal disposition was handled as to the guilty executive:

Bristol's mishandling of a proposed Plavix patent settlement with Apotex in 2006 led to the ouster of then-CEO Peter Dolan and criminal charges against the company and a former executive, not to mention other legal headaches. Bristol pleaded guilty in 2007 to lying to the government about the terms of the proposed settlement and paid a $1 million fine. The former executive, Andrew Bodnar, pleaded guilty in April and was recently given the unusual sentence of writing a book about his experience.

Query: was the Bessen/Meurer book a sentence on the rest of the world in patent law, and, if so, was it cruel and unusual?

Reiffin loses (again) at CAFC over written description

Back in the URochester v. Searle case, the CAFC, when looking for text to cite about "written description," reached back to the 2000 case Reiffen v. Microsoft:

“[T]he purpose of the written description requirement is to ‘ensure that the scope
of the right to exclude, as set forth in the claims, does not overreach the scope of the
inventor’s contribution to the field of art as described in the patent specification.’” Univ.
of Rochester v. G.D. Searle & Co., 358 F.3d 916, 920 (Fed. Cir. 2004) (quoting Reiffin
v. Microsoft Corp., 214 F.3d 1342, 1345 (Fed. Cir. 2000)).

The more recent Reiffen case turned, in part, on a more subtle "written description" issue.

the CAFC addressed issues arising from Reiffin's reliance on Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1438 (Fed. Cir. 1984). The CAFC noted:

The Board explained that where there is a continuous chain of copending
applications, matter from an earlier application can be added through amendment to a
continuation-in-part application, and for priority purposes that matter will be entitled to
the filing date of the parent application from which the added matter was derived. (...)
The Board held, however, that it is impermissible to add material from a
previous application to an issued patent during reexamination

The CAFC agreed with the Board on this point: Although there appears
to be no authority directly on point with regard to this
unusual issue, we find the Board’s reasoning sound.

The CAFC noted: And although a patentee is permitted to amend both the
claims and the specification of his patent on reexamination, see 35 U.S.C. § 305; 35
C.F.R. § 1.530(d)(1), he is not allowed to do so in a manner that has the effect of
enlarging the scope of the patent’s claims, see Creo Prods., Inc. v. Presstek, Inc., 305
F.3d 1337, 1344 (Fed. Cir. 2002); In re Freeman, 30 F.3d 1459, 1464 (Fed. Cir. 1994)
(a claim is impermissibly enlarged on reexamination “if it includes within its scope any
subject matter that would not have infringed the original patent”).

Footnote 2 presented an interesting issue:

The Director cites our nonprecedential decision in In re Reiffin, 199 Fed.
Appx. 965 (Fed. Cir. 2006), in which we upheld the PTO’s rejection of a related
application of Mr. Reiffin’s. Although the court in that case held that Mr. Reiffin’s
description of the editor/compiler programs did not constitute a disclosure of “concurrent
execution” of “multiple threads,” the Director has not argued that our 2006 opinion
collaterally estops Mr. Reiffin from contesting the Board’s ruling on those issues in this
case, and we do not reach that question.

*** See also

Quillen and Webster alive and well at Patently-O?

One finds the text Most notably, around ten percent of the published applications will never issue and would not have been otherwise published. within the Patently-O post titled Published Applications as Prior Art in the larger text:

In 2001, the USPTO published its first patent application. Since then, almost two-million patent applications have published. During this same time period, about 1.3 million patents issued. There are a couple of ways that the prior art created by patent applications change the prosecution game. First, published applications increase the sheer volume of prior art. Most notably, around ten percent of the published applications will never issue and would not have been otherwise published. And, even if published elsewhere at a later date, applicants would be faced with the later 102(a) effective date rather than the 102(e) effective date associated with a published application. This ties in with the second importance of published patent applications — they bring innovations to light more quickly and in a manner that patent examiners can readily use. Along these lines, the early publication of published applications triggers the clock for the statutory bar of 102(b).

IPBiz surmises this might have come from the 90% allowance rate suggested by Quillen and Webster. The allowance rate (factoring in continuing applications) at the USPTO has not been 90%. LBE has been publishing on that since 2005. MOREOVER, even if the allowance rate WERE 90%, the Patently-O statement would NOT follow from Quillen/Webster, who took overall allowance data and did NOT normalize to patent families. One would need to know "how many" publications were of the SAME specification (continuations, divisionals) and "how many" publications were not. Quillen and Webster didn't do this analysis.

A commenter wrote:

"""""Most notably, around ten percent of the published applications will never issue and would not have been otherwise published."""""

Um. 1) Doesn't tie in to Provisional misunderstanding and 2) is incorrect. The number of published applications that would never have otherwise seen the light of day is equivalent to 100%-(allowance rate). Give or take a few patents. In the old days, that means that about 25% fit your criterion. Today, about 75%.

therein recognizing the error at Patently-O but not grasping fully the above IPBiz point.

The same commenter also wrote:

"""""And, even if published elsewhere at a later date, applicants would be faced with the later 102(a) effective date rather than the 102(e) effective date associated with a published application."""""

Um. Really not sure what you're groping for here. A publication is 102(e) art the same as an issued patent was. What publication does is . . . put the 102(e) art in the public domain if the patent never issues, put the 102(e) art in the public domain earlier, create an earlier 102(a) art date relative to the patent publication, and create an earlier 102(b) art date relative to the patent publication.

"""""This ties in with the second importance of provisional patent applications — they bring innovations to light more quickly and in a manner that patent examiners can readily use."""""

Um. Not published, and the "readily use" thought is flat out odd. Why would provisionals, if they were published, be "readily used?"

"""""A long these lines, the early publication of provisional applications triggers the clock for the statutory bar of 102(b)."""""

True, but completely scattered to have this thought in this part of your paragraph.

"""""The evidence shows that examiners are using the patent applications."""""

Wow. Coffee.

EDIT . . .

"""""A long these lines, the early publication of provisional applications triggers the clock for the statutory bar of 102(b)."""""

FALSE - not published - but WOULD be true, and completely scattered to have this thought in this part of your paragraph, IF you were referring to 102(b) effect of non-prov publication.

Again, the commenter spotted flaws at Patently-O but didn't get the full story himself/herself.

***Paul Morgan wrote:

Just to add one more bit to what above commentators have already accurately noted:
40+% of U.S. applications have a foreign priority claim, their USPTO publication date runs from their foreign priority claim date [so is often only six months after their U.S. filing date], and that publication cannot be optionally avoided [unlike U.S.-only filers].
This is a HUGE increase in more EASILY searchable in ENGLISH prior art as compared to the pre-1999 U.S. AIPA statute situation.
I also do not think it is at all coincidental that the number of new interferences being declared is now also VERY much lower than before this statutory publication change and its associated 135(b)(1)&(2)change on both interferences and Rule 131 usage, and electronic application publication searching, all took full effect. [Notwithstanding the later, additional, In re Winter case law effect of now requiring "cross-reading" of claims for interferences.]

***See also

Ta-tah to Quillen/Webster/Lemley?

Patent reformers take the last train for the coast which notes:

Hot off the press: the paper by Cecil D. Quillen, Jr. and Ogden H. Webster, Continuing Patent Applications and
Performance of the U.S. Patent and Trademark Office—One More Time, The Federal Circuit Bar Journal, 379 (2009)

which begins: This Article is the fourth by the authors reporting the effect of continuing
patent applications on performance of the United States Patent and Trademark
Office (“USPTO”) and updates our earlier studies through the USPTO’s 2008
fiscal year (“FY”) and through 2007 for the European and Japanese Patent
Offices (“EPO” and “JPO,” respectively).1

manages not to cite the variety of papers criticizing the first three papers in the series.


In recent proposals for patent reform made by the Federal Trade Commission and by the National Academy
of Sciences, there has been discussion of the possibility that the grant rate of patents by the United States
Patent and Trademark Office [USPTO] is high compared to that of other industrialized countries, including
that of Japan and those of Europe. This discussion began with papers of Quillen and Webster that
suggested that the grant rate might be as high as 97% and more reasonably is at least 85%. Although the
actual grant rate at the USPTO is typically in the range 62% to 68%, Quillen and Webster suggested the
higher numbers based on an analysis of continuing applications (including continuations, divisionals, and
continuations-in-part). The present paper suggests that the analysis of Quillen and Webster is flawed both
legally and methodologically, and that recent work by Clarke, which places the corrected grant rate at less
than 75%, is more accurate.


The need to be "up to date" in Shepardizing cases is well recognized within the legal community.14 In the
present situation pertaining to patent grant rates, the impact of the first paper by Quillen and Webster,
which asserted a 97% patent grant rate, extended later in time than the second paper by Quillen and
Webster which withdrew the 97% patent grant rate and posited (among other numbers) an 85% patent grant
rate. Thus, the Harvard Law Review15and the chief patent counsel of Intel16 referred to the conclusions of
the first Quillen and Webster paper in the year 2003, after the conclusions had been modified in 2002.17


The patent grant rate studies of Quillen and Webster are flawed and the published grant rate numbers
should not be relied upon in making arguments about patent reform. The models of Quillen and Webster
erroneously assume that all continuing applications are repeated attempts to patent the invention of the
parent application. The methodology of Quillen and Webster, even as modified in 2002, involves double
counting of patents and artificially inflates the patent grant rate. The approximations of Clarke are more
reliable than those of Quillen and Webster.

See also 4 CHI.-KENT J. INTELL. PROP. 186

While Quillen and Webster based grant rate on applications
"allowed," Clarke based his studies on applications "issued." In this paper, we use data
from the USPTO to show that the difference between "allowed" and "issued" applications
is not the reason for the divergence in grant rates. Instead, we suggest that Quillen and
Webster's elevated grant rates arise from a flawed numerical approach.


John R. Allison and Emerson H. Tiller, The Business Method Patent Myth, 18 Berkeley Tech. L.J. 987,
at footnote 139 of QWII: "adjusting assumptions from previous study to correct a probable flaw, but still
producing an estimated allowance rate much higher than reported, and higher than in Japan and Germany."


In a different area, in the context of the plagiarism issue involving Professor Laurence Tribe
of Harvard Law School,20 Professor Allan Dershowitz suggested there was a “cultural
difference” between sourcing in the legal profession and other academic disciplines.21
One would hope that there is no cultural between law and other academic disciplines as
to the correction of published text which is indisputably wrong.22


Medtronic, Abbott settle patent litigation over stents

Press release (MarketWatch) on July 27: Medtronic Inc. said Monday, July 27 that it has resolved all outstanding intellectual-property litigation with Abbott Laboratories As part of the agreement, Medtronic will pay $400 milion to Abbott and $42 million to evYsio Medical Devices LLC. The medical-technology company said that under terms of the settlement, neither party will sue the other in the field of coronary stent and stent-delivery systems for at least 10 years, subject to certain conditions.

See also

Medtronic 3Q net $571M, but 3Q law expenses $266M

WSJ noted the "stent wars" aspect of things:

The new agreement follows deals Medtronic reached earlier this year to resolve stent-patent disputes with both Boston Scientific Corp. (BSX) and Johnson & Johnson (JNJ), its other two big stent rivals. The market for the tiny artery scaffolds has sparked a litigious sideshow involving patent scrapes that can run on for years and that, when they finally reach a conclusion, can prove costly.

Medtronic said it has now resolved or settled "substantially all" intellectual property litigation regarding the design and delivery of stents, including bare-metal and medicated versions.

"As a result, Medtronic will now focus more resources on efforts to improve health care for patients with vascular disease," the company said in a statement.

Medtronic still has a stent-related intellectual property dispute with drug-maker Wyeth (WYE) that concerns the medication coated on Medtronic's "Endeavor" stent. Medtronic, which pays Abbott royalties for access to that coating, is indemnified from Wyeth's infringement claim, a Medtronic spokesman said.

keyword: indemnification

Monday, July 27, 2009

Searching the web for copied articles

Although the title of the article is Start-up aims to make plagiarism profitable, the text is more along the line
"start-up aims to make --being plagiarized-- profitable."

The article by Clifford-Marsh states:

Attributor's model is based on scanning web pages and identifying articles produced by participating publishers. It will then inform the ad network that sells inventory on the website that it must pass on a share of the revenue to the copyright holder.

However, in order to succeed it needs to work in partnership with ad networks run by Google and Yahoo!, which have been reluctant to back the venture. Attributor aims to take a cut of the ad money to run its service.


The blog Democurmudgeon ["A liberal journey into the depths of conservative deception and Republican failures" ] noted: Looking at traffic data, Attributor calculated that five times as many people read each article on pirate sites as on the site of the [original] publisher.

The blog also asserted an advantage of the blog over the original publisher:

Blog “pirates” have the reputation of being news aggregators. This collection of specific reporting is a blog “pirates” advantage over the sites that originate the stories, and a benefit to those same sites that receive the linked attribution. For instance, I often go back to blog “pirates” that aggregate the most stories I’m interested in. Searching out these same topics would be prohibitively time consuming. In fact, I would most likely miss the story completely.

LBE was of course flagrantly plagiarized by a certain author in India, an event now memorialized by fark. Her version of LBE's article likely gets a comparable number of hits to LBE's. That plagiarizing author was an aggregator of sorts.


"This blatant rip-off is unacceptable, even for a blogger."
, which included the following advice to would-be plagiarists from fark:

Helpful hint: when plagiarizing an article just go ahead and skip the last paragraph if it is a bio of the real author

**Also, yes, IPBiz checked:

+"A conservative journey into the depths of liberal deception and Democratic failures" - did not match any documents.

**As to the matter of scraping, IPBiz wouldn't transfer any text if one could be sure that Vai Sikahema (and/or Channel 3) wouldn't remove "Rutgers is Wrong" or Lucent/Alcatel wouldn't dispose of the Beasley report on Schon. But stuff gets removed. It's there one day, and gone the next.

Capturing infringers in the 21st century

IPBiz notes how quickly infringers/copyists can be snagged in the 21st century:

Tweetmeme, an aggregator that finds popular content on Twitter, accused a still-unlaunched competitor called of copying its code verbatim. Although hasn’t yet opened to the public, Tweetmeme’s founder Nick Halstead discovered some code through a commenter, who left a link to his rival’s development environment on a review of the site over the weekend. acknowledged parts of its code were based on Tweetmeme’s scripts and agreed to remove them.

Text from the originator:

We are happy for others to learn from our endeavors and flattered by the copying but some of our more complex JavaScript was obfuscated to deter others from attempting to re-use our code. We take a dim view of trying to pass off our code especially when it is attempting to create a competitor.

[from an article by Kim-Mai Cutler]

Contrary to the world vision of Mike Masnick, this incident was not deemed one of "re-imagination" and, yes, copying was asserted.

See also

Is it real or is it Masnick?

Techdirt plays fast and loose with the patent facts about India

***On twitter

In a study of 2000 messages on Twitter, Pear Analytics, based in San Antonio, Texas, found 40.55% of them to be pointless babble. Masnick better not let these guys analyze TechDirt.

BlackBoard whacked by CAFC

BlackBoard's case took a bad turn at the CAFC, as it continued to lose on claims 1-35 and additionally lost on claims 36-38.

CampusTechnology wrote:

Blackboard's patent on learning management system technologies has been overturned by the United States Court of Appeals for the Federal Circuit [CAFC]. The court ruled July 27 in favor of Desire2Learn and invalidated some claims in patent No. 6,988,138, also known as the "Alcorn patent" or the "138 patent."

BlackBoard's "worse off then before" situation arose with the meaning of "single login".
The CAFC wrote -->

Desire2Learn argues that two prior art references anticipate claims 36-38 as a
matter of law. That argument turns on whether those claims contain a “single login”
limitation. Blackboard asserts that the “single login” feature is the ’138 patent’s
essential improvement over the prior art and is a part of every claim of the patent.
According to Blackboard, under the prior art systems “[a] person could not be a student
in one course and a teacher in another using one user name and password,” whereas
the ’138 patent enables a person “to access all his roles in all his courses at once. With
a single login and password, a person could be a student in one course and a teacher in
another during one interaction with the system.”

After analysis of the term "single login," the CAFC finished off BlackBoard:

Desire2Learn argues that if claims 36-38 of the ’138 patent do not require that a
person using the claimed method be able to access multiple roles in multiple courses
using a single login, then the claims are anticipated and rendered obvious by two
references in the prior art, CourseInfo 1.5 and Serf.


Instead, once the claims are properly construed, the conclusion of anticipation is
dictated by the testimony of Blackboard’s own witnesses and the documentary evidence
that was presented to the jury. Based on that evidence, and in the absence of a “single
login” requirement in claims 36-38, it is clear that the prior art contains every limitation of
those claims.

Of means plus function:

It is well settled that “if one employs means-plus-function language in a claim,
one must set forth in the specification an adequate disclosure showing what is meant by
that language.” In re Donaldson Co., 16 F.3d 1189, 1195 (Fed. Cir. 1994) (en banc). If
the specification does not contain an adequate disclosure of the structure that
corresponds to the claimed function, the patentee will have “failed to particularly point
out and distinctly claim the invention as required by the second paragraph of section
112,” which renders the claim invalid for indefiniteness. Id.


In Aristocrat Technologies Australia Pty Ltd. v. International Game Technology,
521 F.3d 1328, 1331 (Fed. Cir. 2008), we addressed the question whether a general
reference to “a standard microprocessor-based gaming machine with appropriate
programming” constituted a sufficient disclosure of structure to support a claimed
function in a means-plus-function claim. We concluded that it did not. First, we
explained that “[t]he point of the requirement that the patentee disclose particular
structure in the specification and that the scope of the patent claims be limited to that
structure and its equivalents is to avoid pure functional claiming.” Id. at 1333.

Bottom line -->

In summary, we affirm the district court’s decision that claims 1-35 are invalid as
indefinite. Because we hold that under the proper construction of claim 36, claims 36-
38 are anticipated as a matter of law, we reverse the district court’s failure to grant
JMOL on that issue. We do not reach Desire2Learn’s assertion that claims 36-38 are
obvious. We also do not address the parties’ contentions with respect to infringement of
those claims. Based on our rulings in appeals No. 2008-1368 and 2008-1396,
Blackboard’s appeal in No. 2008-1548, which pertains to the award of costs in the
district court, is dismissed as moot.

**See also

***EduGeek Journal wrote:

But, really… how long can a poorly run business stay afloat in this economy? Much wiser companies than Blackboard have vanished overnight because of their minor missteps. Bb is making massive mistakes and has still managed to hang on. Might be something to consider if you are thinking of sinking any more money into any form of the Bb LMS.

Hmmm, "how long?" -- as long as universities keep buying their product?

If Sessions can vote against Sotomayor, voting against patent reform is easy

Senator Jeff Sessions concluded a piece in USAToday on the nomination of Judge Sotomayor with the text:

I don't believe that Judge Sotomayor has the deep-rooted convictions necessary to resist the siren call of judicial activism. She has evoked its mantra too often. As someone who cares deeply about our great heritage of law, I must withhold my consent.

Along the way, Judge Sotomayor's attempt to rebrand her previously stated judicial approach was, as one editorial page opined, "uncomfortably close to disingenuous."

[Everyone understands Judge Sotomayor will be confirmed.]

Nevertheless, if Senator Sessions can vote against Judge Sotomayor this easily, voting against patent reform is a walk in the park. And, in the case of patent reform, not every Democrat is lined up.

In the House, in the 2007 vote, there were a few Democratic Congressmen (including one from Princeton) that voted thumbs down.

***See previous IPBiz post

Post-grant oppositions: another pothole in the road for patent reform?

***IPWatchDog noted: Patent reform has died this time, and given the contentious nature of the debate and the growing tensions in Congress I don’t see it returning this year, and maybe not even next year because the 2010 election will soon start, assuming it hasn’t already started.

Also: Why would we expect a new post-issuance review to work any better than the current prosecution process? Why are we to expect the Patent Office, who is certainly not equipped to handle litigation-like proceedings, could adequately and appropriately resolve issues of patentability in an adversarial proceeding? Why would anyone think this is a good idea? If a whole new division within the Patent Office needs to be created in order to handle these new post grant review proceedings that will take examiners away from other areas within the Patent Office, which will further lead to less examiner hours being spent on the backlog, which is a horrible way to attempt to move forward

See LBE's In Re: "Who You Gonna Call" by Chico Gholz, March 2007 to learn what the "opposition" proposal was really about. Note also that Chico Gholz never responded to LBE or to the points made.

***UPDATE as to Sotomayor.

Senator Lamar Alexander (R-Tn), voting "for" Sotomayor: "In the same way, it is my hope that my vote now not only will help to confirm a well-qualified nominee but will help to return the Senate to the practice, only recently lost, of inquiring diligently into qualifications of a nominee and then accepting that elections have consequences, one of which is to confer upon the president the constitutional right to nominate justices."

Think back to Bork as to "recently lost."

Law Review on continuation application issue

An article by Hedwig Murphy titled CURRENT ISSUES IN PUBLIC POLICY: LIMITING CONTINUATIONS: A PHARMACEUTICAL BASED PERSPECTIVE [6 Rutgers J.L. & Pub. Pol'y 856 ] contains the text:

Accordingly, the statistics provided by the Patent Office "show a steadily growing inventory of unexamined patent applications that currently exceeds 900,000." n28 "[E]ach continued examination filing, whether a continuing application or request for continued examination, requires the [Patent Office] to delay taking up a new application and thus contributes [*862] to the backlog of unexamined applications before the Office." n29 The Patent Office "claims that the various types of continuing applications make up about one-third of all applications filed, and the number of such applications has been increasing." n30 It is suggested that the elimination of these continuations would increase the efficiency of the Patent Office, since some studies have suggested grant rates as high as 97% and, more reasonably, at least 85% due to continuing applications. n31 A case study examining the numerically calculated grant rate suggests that the rate is closer to 75%. n32 The average wait time "between filing a new application and receiving a first Office Action . . . ranges from eight months . . . to 130 months" depending on the technology area. n33 Therefore, according to the Patent Office, continuation applications produce the backlog of patents at the Patent Office.

As the Patent Reform Act of 2007 attempts to change an inventor's unlimited use of continuation applications, the justification for this drastic change lies in the Patent Office's hope "that the proposed change will 'improve the quality of issued patents, making them easier to evaluate, enforce, and litigate' and give 'the public a clearer understanding of what is patented.'" n34 Advocates for limitation of continuation state that unlimited continuation application ultimately abuses the patent system. It has been stated that applicants abuse the system by filing divisional patent applications which incorporate new or revised claims to obtain multiple patents that all cover [*863] essentially the same invention. n35 In the case of MedImmune, Inc. v. Genentech, Inc., the question of "evergreening" patents was presented as both abusing and compromising the integrity of the patent system. n36 Evergreening allows inventors to file endless continuation applications, issuing patent after patent based upon on a single original patent filing.

The process of continuing and patenting and continuing and patenting can continue until the 20-year patent term is finally exhausted. The entire 20-year patent term can be consumed before the public has a full and final understanding of what can be patented based upon that single, original patent filing. This is not how the patent system was ever intended to work. n37

It has been stated that "continuation clearly does not meet . . . the goal of shortening the time between filing a patent application and receiving a patent." n38

Endnote 10: Continuation, continuation-part, and divisional applications are commonly referred to as continuing applications.

Endnote 35: Mark A. Lemley & Kimberly A. Moore, Ending Abuse of Patent Continuations, 84 B.U. L. Rev. 63, 101 (2004).

Endnote 40: Stephen T. Schreiner & Patrick A. Doody, Patent Continuation Applications: How the PTO's Proposed New Rules Undermine an Important Part of the U.S. Patent System with Hundreds of Years of History, 88 J. PAT. & TRADEMARK OFF. SOC'Y 556, 564 (2006).

IAM on TechDirt post: "palpable nonsense"

Joff Wild takes on TechDirt in the IAM post titled Techdirt plays fast and loose with the patent facts about India.

See also: [On Masnick's conception of plagiarism as

"Substantial evidence" vs "sufficient credible evidence"

In federal IP cases, one encounters the "substantial evidence" standard. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Note the discussion of "sufficient credible evidence" in a New Jersey criminal case, following on State v. Carty.

See also

Saturday, July 25, 2009

July 28, 1932: tanks deployed in Washington, DC

An AP story, titled Report: Bush mulled sending troops into Buffalo, concerning proposed actions related to what would become the Lackawanna Six, concludes with the text:

Scott L. Silliman, a Duke University law professor specializing in national security law, told the Times that a U.S. president had not deployed the active-duty military on domestic soil in a law enforcement capacity, without specific statutory authority, since the Civil War.

One recalls the use of the US Army in Washington, DC on July 28, 1932. From -->

During the same summer [1932], 25,000 World War I (1914–1918) veterans, led by former sergeant Walter W. Waters, staged the Bonus March on Washington, DC, to demand immediate payment of a bonus due to them in 1945. They stood passively on the Capitol steps while Congress voted it down. After a riot with police, Hoover ordered the U.S. Army to clean the veterans out of their shanty-town, for fear they would breed a revolution.

[In passing, the link also includes: In 1932, a crowd of 50 men fought for a barrel of garbage outside the back door of a Chicago restaurant. ]

The americanheritage website gives more details:

And, in fact, the troops had been called out by the President at the written request of the District commissioners before the two bonus marchers had been killed. They were under the direct command of Brigadier General Perry Miles, but General MacArthur, accompanied by Major General George Van Horn Moseley, his deputy Chief of Staff, personally took the field. (Contemporary accounts virtually ignore the Army’s liaison man with the police department, an amiable West Pointer named Dwight Eisenhower.) A cavalry squadron, an infantry battalion, and a platoon of tanks were to participate in the operation—General MacArthur explained in his official report that in dealing with “riotous elements” a display of “obvious strength gains a moral ascendancy.”

The bonus marchers read in the early editions of the afternoon papers that the troops had been summoned. For nearly three hours they waited in the summer sun, some taking front-row seats in windows of the partly wrecked buildings to be evacuated, others napping in the shade of Pennsylvania Avenue’s sycamores or hawking the B.E.F. newspaper to the gathering crowd of women shoppers, civil servants, and curious passers-by. Street vendors bobbed up with cold lemonade and frozen puddings. As the Star reported next day, “It might have been a crowd at a country fair.”

At 4:45 P.M. [July 28, 1932] four troops of cavalry appeared, sabers raised, with six tanks lumbering behind them, their machine guns hooded. Infantrymen in steel helmets, with blue tear-gas bombs dangling from their belts and bayonets drawn, trotted on the double behind the tanks. The crowd, still in a carnival mood, set up a loud cheer that was echoed from the windows of the old red-brick hulks packed with veterans. “No one in the crowd, any more than the veterans from their high perches, seemed disposed to take the cavalry seriously,” the Star reported. The cavalry might well have been riding to the rescue of an embattled wagon train. Laughter and applause greeted an anonymous wag in one of the tanks who thrust a wire through an opening in the armor and waved a white handkerchief.

In the shadow of the Capitol the cavalry deployed along the north side of Pennsylvania Avenue, the infantry column along the south side. “As the soldiers approached more closely, a few brickbats, stones and clubs were thrown,” according to the official report, but Thomas L. Stokes of the United Press saw no evidence of resistance, nor did his colleague Paul Y. Anderson, who heard a command and saw the cavalry charge the crowd with drawn sabers: “Men, women and children fled shrieking across the broken ground, falling into excavations as they strove to avoid the rearing hoofs and saber points. Meantime, infantry on the south side had adjusted gas masks and were hurling tear gas bombs into the block into which they had just driven the veterans.”

***Scott Silliman is a Professor of the Practice of Law, as well as Executive Director of Duke's Center on Law, Ethics, and National Security. He teaches national security law not only at Duke, but also in adjunct status at the University of North Carolina and at North Carolina Central University. He is the author of the law review article Teaching National Security Law, 1 J. Nat'l Security L. & Pol'y 161

The oldest case cited in the 2005 law review involves the Curtiss-Wright company (yes, going back to Glenn and Wilbur and Orville), delegation of powers and sets the facts:

On January 27, 1936, an indictment was returned in the court below, the first count of which charges that appellees, beginning with the 29th day of May, 1934, conspired to sell in the United States certain arms of war, namely fifteen machine guns, to Bolivia, a country then engaged in armed conflict in the Chaco, in violation of the Joint Resolution of Congress approved May 28, 1934, and the provisions of a proclamation issued on the same day by the President of the United States pursuant to authority conferred by § 1 of the resolution. In pursuance of the conspiracy, the commission of certain overt acts was alleged, details of which need not be stated. See US v. Curtiss-Wright, 299 U.S. 304; 57 S. Ct. 216; 81 L. Ed. 255; 1936 U.S. LEXIS 968

And yes, the topic of intellectual property arises in the case:

In Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57, the constitutionality of R. S. § 4952, conferring upon the author, inventor, designer or proprietor of a photograph certain rights, was involved. Mr. Justice Miller, speaking for the court, disposed of the point by saying: "The construction placed upon the Constitution by the first act of 1790, and the act of 1802, by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive."

***US Army troops, under famed Civil War general John Gibbon, were deployed in Seattle, Washington during the Anti-Chinese riots of 1886. Ten years earlier, Gibbon was involved in a coordinated attack against the Sioux, which ended badly for George Armstrong Custer.

***Whiskey rebellion

In 1794, President Washington called up state militia to combat citizens of the State of Pennysylvania.
From wikipedia: The militia force of 12,950 men was organized, roughly the size of the entire army in the Revolutionary War. Under the personal command of Washington, Hamilton, and Revolutionary War hero General Henry "Lighthorse Harry" Lee, the army assembled in Harrisburg and marched to Bedford, Pennsylvania the site of Washington's headquarters, then on to western Pennsylvania (to what is now Monongahela) in October of 1794.

**Thirteen years later on July 28, 1945:

A U.S. Army bomber crashed into the 79th floor of New York City's Empire State Building. 14 people were killed and 26 were injured.

Tuscaloosa News story mangles facts in Meehan plagiarism matter

On July 25, Adam Jones of the Tuscaloosa News wrote about the Meehan plagiarism matter:

JSU professor David Whetstone claims JSU President Bill Meehan, while a graduate student at UA in 1999, used large parts of Whetstone’s dissertation in work Meehan submitted as his own dissertation.

IPBiz, observing from a distance in New Jersey (where mayors were paraded off in handcuffs by the FBI on July 23), notes this is NOT true. Whetstone is pursuing a case against Meehan which has NOTHING to do with plagiarism by Meehan of work by Whetstone. It does involve ownership of a plant collection. To show tendencies (habits, patterns) of Meehan as to "taking things", Whetstone's attorneys have brought up an issue that Meehan's thesis involves copying (without attribution} of text of a previous thesis by Carl Boening, now chair of the behavioral studies division at Shelton State Community College. The idea being along the lines "take words one day" links to "taking plants" on a later day.

How plausible that legal theory is might be questioned. Whether Meehan copied the words of Boening is a different matter, and JSU seems to have been unwilling to tackle the issue, doing even less than SIU did in the Poshard matter. The inability to deal with plagiarism, manifested by both universities, is sad, but then, in this, the state schools are really no different from Harvard University.

Returning to the news story, the information about Boening was previously published in the Tuscaloosa News. See
Plagiarism, not about intent, but sloppiness?
. If the Tuscaloosa News can't get the story straight from one article to the next, there is a problem.

Also in the Jones article:

Earlier this month, Judge Joel Laird denied motions by UA and JSU to stop the deposition of two UA administrators. An attorney for a JSU professor who claims his work was copied wants to ask UA Provost Judy Bonner and education dean Jim McClean what they have done to investigate.

The judge also denied JSU’s motion to strike the plagiarism accusation from the case.

It might seem that this is an evidentiary matter as to Whetstone's case. But, Whetstone would have no standing to pursue a copyright infringement action concerning copying of Boening's thesis.


KCI wins "negative pressure" US re-exams

A press release on July 24 from patent challenger Smith & Nephew indicates that Kinetic Concepts [KCI] has won a round in the US re-examination fight but suggests outcomes have been different in other jurisdictions (countries):

Smith & Nephew Inc.'s Advanced Wound Management division announced that the United States Patent and Trademark Office (Patent Office) has issued actions in re-examination proceedings involving three of the negative pressure wound therapy (NPWT) patents licensed to Kinetic Concepts, Inc. , confirming the patentability of the re-examined claims. The re-examination proceedings are still pending, and Smith & Nephew intends to pursue its appeal rights.

These actions from the Patent Office do not affect Smith & Nephew's ability to defend the pending U.S. district court lawsuit, and do not affect Smith & Nephew's ability to continue to sell any of its NPWT products in the U.S., including foam products.

"Smith and Nephew entered the NPWT marketplace to meet the clear demand for options that enable clinicians to use NPWT with their own best clinical judgment," said Tom Dugan, President, North America, Advanced Wound Management. "We have been confident in our IP position from the onset, and convinced that competition in this marketplace would bring value to customers and ultimately help physicians and their patients. Our position has been validated by courts in Germany and the United Kingdom, which revoked KCI's European counterpart patent in lawsuits KCI brought against Smith & Nephew in those countries, and we remain confident of our position as we approach pending litigation in the U.S. and Australia."

The patents originated in work done at Wake Forest University.

Friday, July 24, 2009

Cash for clunkers

The relevant website is, which reportedly crashed today. Somewhat reminds one of some performance at . To participate, one needs a registered, working 1984 (or newer) vehicle with combined mileage figures of 18 mpg (or less).

****Also reminding one of the USPTO, it seems that the EPA altered miles per gallon figures for various cars AFTER the program began. See Clunker Confusion: MPG Figures:

Another car shopper emailed saying he went to the Environmental Protection Agency's Web site on Saturday to double-check the fuel economy rating for his 1987 Mercury Grand Marquis. When he had visited previously, the car's combined city and highway fuel economy was rated at 18 miles per gallon, making it eligible for the program.

But on Saturday, he found something different: The fuel economy for his car had been raised to 19 mpg -- one mile per gallon over the maximum fuel-efficiency allowed under the Car Allowance Rebate System (aka Cash for Clunkers). As a result, he became ineligible for a trade-in credit worth up to $4,500.

Even though the program's basic requirements have been known since it was created by Congress earlier this year, Cash for Clunkers didn't become official until July 24. So as part of the official launch, the EPA conducted "quality assurance and quality control effort regarding fuel economy calculations on more than 30,000 vehicle model types spanning the past 25 years," according to an e-mail sent by EPA spokesman Dale Kemery.

As a result, eligibility for roughly 100 vehicles was affected, Kemery wrote. However, roughly equal numbers became newly eligible and newly ineligible.

Dealers who entered into agreements with customers before last Friday, based on a fuel economy figure listed at, have only themselves to blame, said Tyson.

"We made it very clear that they would be holding themselves out to some risk if they consummate a deal before the program officially begins," Tyson said.

Of the USPTO-->

Internet Publishing: Online Today, But What About Tomorrow Or Where Have You Gone, 406,302?

cross-reference: Sikahema

Teva, J&J settle over Tri-Cyclen

Reuters quoted &J spokesman Greg Panico: "This settlement compensates us for loss caused by their [Teva's] at-risk launch and recognizes the patent is valid and enforceable," suggesting that Teva was folding the tent on this Hatch-Waxman case [but see below].

Teva gets a license to re-enter the market on December 31, 2015, or earlier in certain circumstances, even though the patent does not expire till 2019.

Of the patent case itself, the Reuters report noted:

Teva said the settlement will not become effective until the U.S. District Court for the District of New Jersey overseeing the case upholds the validity and enforceability of J&J's patent.

Teva had issued a press release on 1 July 09:

Teva Pharmaceutical Industries Ltd. (Nasdaq: TEVA) announced today that the U.S. Food and Drug Administration has granted approval for the Company's Abbreviated New Drug Application (ANDA) to market a generic version of Ortho McNeil Janssen's oral contraceptive, Ortho Tri-Cyclen® Lo. Shipment of this product, for which Teva's trade name is Tri-Lo Sprintec, has commenced.

As the first company to file an ANDA containing a paragraph IV certification for this product, Teva has been awarded a 180-day period of marketing exclusivity.

Annual sales of Ortho Tri-Cyclen® Lo were approximately $400 million in the United States for the twelve months that ended March 31, 2009 based on IMS sales data.

Teva is currently involved in patent litigation concerning this product in the U.S. District Court for the District of New Jersey. A trial date has not been set.

Controversy surrounds research on "human sperm" from stem cells

AP noted the publication by the research group of Karim Nayernia, of Newcastle University in the journal Stem Cells and Development on the topic of creating human sperm from embryonic stem cells but separately noted the work had been criticized by Allan Pacey, a senior lecturer in andrology at the University of Sheffield and Azim Surani, a professor of physiology and reproduction at the University of Cambridge.

Of Nayernia, note previous IPBiz posts:

***Although IPBiz published the comment below, it is merely a link to a discussion about the Nayernia paper and does NOT answer the criticisms raised by Pacey and Surani [see above.] Of the paper-->

Derivation of Human Sperm from Embryonic Stem Cells
Jae Ho Lee, Majlinda Lako, Lyle Armstrong, Mary Herbert, Manyu Li, Wolfgang Engel, David Elliot, Miodrag Stojkovic, John Parrington, Alison Murdoch, Tom Strachan, Karim Nayernia.
in Stem Cells and Development.

***One notes that Nayernia's development transpired outside the US, and outside the scope of California's CIRM, but during the time period CIRM existed. While things are happening in stem cell technology, the blog californiastemcellreport gave information on lobbying efforts, which included the memorable line:

“in the age of Obama, it’s a particularly good time to be named Podesta.”

referencing the successful lobbying efforts of Tony Podesta (brother of John Podesta of the Obama team) on behalf of an pharma industry-backed bill to stall competition from generic companies. Yes, you got that right, a pro-pharma bill.

***An additional example of puzzling lobbying by the Podesta group from

Recently, efforts by Sallie Mae have now come to light. Sallie Mae, the nation's largest student-loan company, spent $3.4 million on lobbying in the first half of this year in an effort to persuade lawmakers to consider alternatives to President Obama's plan to end bank-based lending to students and replace it with direct lending, according to an analysis by the Chronicle, the Center for Responsive Politics andThe Huffington Post.

Sallie Mae is pushing a counterproposal that would allow student-loan companies to originate loans before selling them to the government. Such a great idea that Sallie Mae felt it necessary to hire several Washington-based lobbying firms, including a group led by Tony Podesta, a top Democratic fund raiser with longstanding ties to members of Congress, to push it. According to the Chronicle of Higher Education, its key hire was Jamie Gorelick, a deputy attorney general in the Clinton administration and partner in the law firm of Wilmer, Cutler, Pickering, Hale and Dorr. The firm billed Sallie Mae $270,000 for its work in the first half of 2009, according to the analysis.

Hmmm, the Democrat-based Podesta group gets money to lobby AGAINST Obama-initiatives. Who better to get traction against an Obama initiative than Obama-connected people?

"Microsoft's Five Fatal Flaws"

The "five fatal flaws" refer to problems ("fatal flaws") in the decision by the CFI [the European Court of First Instance] in the Microsoft case. In a law review article titled "Microsoft's Five Fatal Flaws" [ Alan Devlin and Michael Jacobs, 2009 COLUM. BUS. L. REV. 67 }, one has the text:

Nevertheless, we cannot confidently assert that the CFI was mistaken. Although the duty to share arises only with respect to the most valuable inventions, the pecuniary rewards flowing to the inventors of such technologies are apt to be far larger than those accompanying more modest discoveries. If an inventor has already earned a sufficiently high return to have spurred the relevant activity ex ante, there is weaker normative ground for providing him with yet further monopoly returns. On this parsimonious approach to the appropriate rewards for invention, the CFI would be correct to facilitate interoperability if the dominant company has already earned, or will earn, a "sufficient" return in spite of the duty to share, assuming of course that a workable consensus can form around the notion of "sufficiency."

IPBiz: Huh? Duty to share? The patent process as to invention is the quid pro quo: public disclosure for right to exclude. The public gets the information written down and publicly available on the front end, and gets to use the knowledge for free on the back end, after the "right to exclude" ends. Once issued, the patent enters the marketplace, which sets the value, a different matter than the patent issuance process. The marketplace defines the "most valuable inventions," not the patent office.

Note the text:

Microsoft's strongest argument may have been that its refusal to supply intellectual property-protected information was justified by the need to protect its incentives to innovate. n103 But the Commission's reaction to this argument was dismissive and unsettling. It concluded that "the central function of intellectual property rights is to protect the moral rights in a right-holder's work and ensure a reward for the creative effort. But ... [a] refusal by an undertaking to grant a license may ... be contrary to the general public good." n104

Such deontological conceptions of intellectual property have no place in U.S. law n105 - and for good reason. In particular, moral rights theories not only fail to yield reliable policy predictions, they fail to even provide a guiding, normative framework. n106 Although a teleological economic approach can be legitimately criticized for sometimes failing to yield black-letter policy conclusions, n107 its underlying conceptual framework is at least coherent and susceptible to unanimous agreement. Moreover, the moral rights tradition faces a serious reconciliatory problem with the un-questionable social costs that would follow a legal regime that departs from the utilitarian framework.

"Ending Abuse..." being re-invented?

Elizabeth Pesses in the article PATENT AND CONTRIBUTION: BRINGING THE QUID PRO QUO INTO EBAY V. MERCEXCHANGE [ 11 Yale J. L. & Tech. 309] wrote of "Ending Abuse...":

Id. For various legal scholarship attempting to calculate better sized patent terms, see Mark A. Lemley & Kimberly A. Moore, Ending Abuse of Patent Continuations, 84 B.U.L. REV. 63, 95 n.127 (2004).

"Ending Abuse...." was mainly about alleged abuses of the continuation system and proposed changes to the procedure involving continuation applications. There are significant issues with the scholarship therein.

See for example

Comments on continuation practice proposal appearing in the Federal Register
(Jan. 2006)
, which concluded: The USPTO's reliance on a law review with known, uncorrected, factual errors
might be questioned.

The 97% grant rate that never was

The myth of the first-mover advantage

Embedded within a story about Predator UAVs is the text:

For his part, Singer draws another historical parallel, comparing the U.S. and the UAV to the British invention of the tank in the early 20th century.

"There is no such thing as a permanent first maneuver advantage," Singer says.

"The British came out of WWI with the most tanks, they invented the tank and yet they didn't figure out the best way to use it in the wars they would be fighting. It was the Germans that figured that out and it was the Germans that would be fighting and would win with the tank when WWII starts."

[Also in warfare, the Japanese, early in World War II exposed the vulnerability of the battleship, a lesson they did not completely master.]

IPBiz notes, of more recent history, that Lipitor was neither the first nor the second statin in the marketplace, but it became the best seller. [Members of the statin generation, and certain IP professors, likely suffering from
amnesia of some sort
, tend to overlook this.]

Xerox with the mouse, and the ethernet, is also illustrative. An invention, without a cogent business plan, is likely not going to become an innovation.

****See also

****Of Peter Singer

Robotic warfare expert Peter Singer, who advised President Barack Obama's campaign team and has authored "Wired for War," says that remote warfare is changing mankind's monopoly on how conflict is fought for the first time in 5,000 years. All that limits its advance is its application, not the technology.

IPBiz notes Singer (who understands innovation) might be a better choice for USPTO director than Kappos.

Thursday, July 23, 2009

History detectives on patents

Note US patent 251,231 to Thomas Howell for an exploding device to discourage grave robbers. ["Grave Torpedo"]

Park vents on NASA, twice?

IPBiz was wondering what Bob Park would say about some of things coming from NASA and from former astronauts.

Park's post of July 17 had a predictable message, but seemed oddly unedited (or tediously repetitive):

This is the 21st century. Telerobots have been invented. Our two Mars rovers, Spirit and Opportunity, are merely robust extensions of our fragile human bodies. They don't break for lunch or complain about the cold nights, and they live on sunshine. They do suffer the afflictions of age. Their teeth are worn down from scraping rocks, and one has an arthritic foot that he drags behind him. But their brains are still sharp since they are the brains of their PhD handlers. No need to bring them home when they are no longer able to explore, they will just be turned off. Bolden also said he wants to go to Mars. How incredibly old-fashioned! We are on Mars now. This is the 21st century. We have discovered robotics. More than that, we have telerobots. Spirit and Opportunity are merely robust extensions of our fragile human bodies. They don't break for lunch, or complain about the cold nights, and they live on sunshine. We have been on Mars for more than five years, looking for evidence of water and life. A human on Mars would be locked in a spacesuit with only the sense of sight. Our rovers have better eyes than any human, and we don't have to take their word it; everyone can see what they see. How wonderfully democratic! Moreover, they have the IQ of their PhD operators back on Earth

Park's post look like a "Sikahema in the making." Meanwhile, IPBiz had been looking (without success, so far) for (former) Judge Mathesius's article "Reflections of a Disreputer ", which once was in New Jersey Lawyer. Electronic vestiges of that may have been Sikahema'd. NJ Lawyer wrote in Dec. 07:

Mathesius had been suspended without pay for a month in a November 2006 Supreme Court decision. Two of his sins were asking a jury "What the hell" it was thinking in acquitting a defendant and sending a letter to an Appellate Division judge highly critical of her for writing an opinion that reversed an armed-robbery conviction in a case in which he presided.
He was told by the court "to reflect" on his actions. His response was the lengthy and sarcastic "Reflections of a disreputer," published by New Jersey Lawyer in June.
In it, he accused the high court of an "assault on judicial independence" by "the dangerous, repressive and chilling practice of disciplining judges who write opinions with which one or another or all justices disagree."

L'affaire Mathesius has entered the realm of law reviews. See BRUCE A. GREEN AND REBECCA ROIPHE, 64 N.Y.U. Ann. Surv. Am. L. 497 (2009) for the text:

For example, in contrast to opinions recognizing the legitimacy of judges' personality and of their diverse judicial philosophies, the New Jersey Supreme Court opinions have emphasized the need "'to subordinate one's personal pulls and one's private views.'" In re Mathesius, 910 A.2d 594, 614-15 (N.J. 2006) (quoting Dunlap v. Friedman's, Inc., 582 S.E.2d 841, 850 n.4 (W. Va. 2003) (Davis, J., dissenting) (citations and internal quotations omitted)). Likewise, that court has emphasized the importance of preserving "the independence of the judi-ciary" as an institution (as distinct from the independence of individual judges) by disciplining judges whose conduct undermines public confidence in, and respect for, the judiciary. Id. at 608 (quoting In re Seaman, 627 A.2d 106, 121 (N.J. 1993)).

Green and Roiphe didn't say anything about "Reflections of a disreputer." There has been a "sort of" comparison of Mathesius and Posner. LBE has met both. Evokes Senator Lloyd Bentsen in 1988.

For all those who thought patents were a priority in the Obama administration, recall NASA guy Bolden was nominated long before Kappos. Park noted: While most of the media must have been at the tedious Sotomayor confirmation, Andrew Lawler of Science was covering the smooth Senate confirmation of Maj. Gen. Charles Bolden as NASA Administrator.

"it feels better to reject than to allow, simply because it's more conclusive"

Just-n-Examiner has the line: The truth of the matter, though, for me, is that it feels better to reject than to allow, simply because it's more conclusive.


Making the decision to allow an application, though, is somewhat less conclusive. Sure, once I've done a thorough search and satisfied myself that I've found the best prior art available, I'm not reluctant to allow an application (OPQA be damned!)

Still, who knows what unavailable prior art might be out there? Some hardcopy of a journal that is sitting in some school's technical library in Boise? Perhaps an advertisement in a newspaper on microfiche in Berlin?


Obviously, you have to stop searching sometime. (The count system makes sure of that.) When you do, you just have to trust yourself that you've found the best art that is out there and allow the thing.

Query: Once David Kappos is director of the USPTO, what can he do to improve the effectiveness of searches for "just-n-examiner"? Can he change the count system so there's more time to search? Can he make the library in Boise more available?

Stay tuned.

Plagiarism Thursday in Minnesota

A line from "citypages":

One day you're hitting Ctrl+C then Ctrl+V into blog software, the next someone's making an unflattering movie about you called Shattered Glass and you're being played by Darth Vader.

neglected to add

OR you could be Vice-President of the United States, President of a major Illinois university, or a University Professor at Harvard.

The plagiarism in question related to gang-tackling of Sarah Palin:

"Even Fox News has started to turn on Sarah Palin. In the midst of a segment about the Alaska Governor's battle against "liberal" attacks, Liz Trotta went off-message. Frankly, "the woman is inarticulate, undereducated," Trotta said, arguing that for once liberal criticism was "well-deserved.""

Kappos, IBM options, and the hearing for 29 July 09

The TechDailyDose reported:

Senate Judiciary Chairman Patrick Leahy has released the committee's completed questionnaire pertaining to David Kappos, President Obama's pick for Patent and Trademark Office director, which could signal that his confirmation hearing is around the corner.

Of money ties to IBM: According to the form, he owns vested IBM options valued at approximately $147,000 and those options would be sold within 90 days of his appointment as the PTO's top dog. He also owns unvested IBM options and restricted stock valued at about $1.5 million.

The confirmation hearing is scheduled for July 29.

In her WSJ article on July 22, Amy Schatz wrote: Some intellectual-property bloggers have criticized him [Kappos] for publicly supporting better-quality patents even as IBM has filed some applications they consider questionable. IBM declined to comment.

In that context, "intellectual-property bloggers" might be deemed to be inconsequential, wild-eyed loonies, whose comments were beneath IBM's dignity for response. One thing Schatz didn't mention was IBM's OWN statements about one of those very questionable patent applications; from a previous IPBiz post:

The same day the Times Herald-Record reported IBM had applied to patent a computerized system to help businesses outsource offshore jobs while maximizing government tax breaks, Big Blue did an about-face.

The application "was filed in error and will be withdrawn," IBM spokesman Steve Malkiewicz said Monday, 30 March 09.


Some 17 months ago, IBM abruptly withdrew a similar application immediately after it was made public.

"A method for identifying human-resource work content to outsource offshore of an organization," was submitted for a patent in January 2006.

IBM withdrew the application in October 2007, saying it lacked "substantial technical content."

At that point, though, the second application had already been filed — in September 2007. But it was not made public until yesterday — only days after IBM reportedly fired thousands of American workers to shift their jobs to India.


Malkiewicz said the filing would be withdrawn because it "is contrary to our patent policy on business methods."

So, Amy, it's not just the crazy bloggers who have identified problems with IBM filings. IBM has identified problems, too. But you didn't write about that.

Incidentally, Schatz did not respond to my earlier email. As a point to Joff Wild at the IAM Blog, one notes that while journalists expect an immediate response from patent attorneys when the journalists are seeking information, the response of journalist TO inquiring patent attorneys is glacial.

New Jersey--July 23, 2009. FBI nabs NJ mayors.

The NYT reports: The mayors of Hoboken and Secaucus, a state assemblyman and dozens of others were rounded up early Thursday [July 23, 2009] as the F.B.I. swept across four counties in New Jersey as part of a two-year corruption and money-laundering investigation that ranged from the Jersey Shore to Brooklyn and has even reached into the State House in Trenton.

A lengthy press conference was presented on NJ public television (channel 23, 52, 58 etc). The speakers made clear this was a ten (10) year investigation. They seemed to indicate that three mayors, a deputy mayor, and a NJ commissioner were among those caught in this "pay to play" sting. The discussion of the recently-elected Hoboken mayor was brutal (paraphrase of text attributed to mayor: there are three kinds of people, those who were with us, those who joined later (and will have to wait in line), and those who were against us, who we will grind into dust.) Life IS harsh in New Jersey. But at least we don't have CIRM, and we aren't releasing felons from prison, as California plans.

Political corruption in NJ may be a forever thing. For "not forever" things

100 Things Your Kids May Never Know About

Are people who lose jobs history?

Back in June 2004, LBE noted the following text:

Other labor statistics appear to support the bleak
long-term outlook for professionals. U.S. Department
of Labor unemployment figures for 2000-2003 show a 95
percent increase in unemployment among workers with
college degrees, compared to a 40 percent increase
among those with a high school diploma or less. Worse,
long-term unemployment for those with college degrees
rose by nearly 300 percent over the same period. The
Economic Policy Institute (EPI) recently reported that
the unemployment level of college graduates now
surpasses that of high school dropouts. "Such a large
and enduring increase in unemployment among those with
college degrees is unusual, even in a recession," said
EPI economist Jared Bernstein

De-jobbing, mentioned in the 1990's

Nine million jobs have been lost in the Fortune 1,000 companies
alone. In the summer of 1993, the Bureau of Labor Statistics
noted that the ratio of terminated workers to temporarily laid
off workers was 4:1, as compared to the 1982 ratio of 2:1.
A U.S. News and World Report cover story, "Where Did My Career
Go?", noted that the current annual rate of job recovery is only
20% of the average rate of recovery in recessions since 1950.
James Medoff, a Harvard economist, stated "Today, people who lose
their jobs are history."
Eighty-five percent of those who lost
white collar jobs will never get them back--an all time high for
any recession.
This permanent job loss is the result of a restructuring of work
in America. Two leading causes of this trend are technology and
the use of temporary workers.


William Bridges, author of Job Shift stated "All jobs in today's
economy are temporary. The job as a social artifact is on the
wane...Work arrangements that are taking its place...are
themselves temporary in the sense that they are created to meet
productivity needs in an immediate but changing situation." An
increasing number of corporations are designing their work
environment to be project focused rather than job focused. When
the project ends, the job ends.

**On unemployment statistics, from States Where the Unemployed Are Giving Up:

In some U.S. states, nearly half of the job seekers who have stopped looking for work have done so because they simply don't believe they'll find anything. Indeed, the number of discouraged workers nationwide has more than doubled in the past year. This trend won't be reflected in the widely publicized unemployment rate, as discouraged workers aren't included among the unemployed.

The marginally attached-->

Most jobless people who have stopped looking for work are otherwise engaged--they're back in school, taking on family responsibilities, or too sick to search. They, along with workers who have stopped because they're discouraged, make up a group that the Labor Department calls the "marginally attached." They're included in some of the broader measures of unemployment, but they're officially not part of the workforce. While discouraged workers make up about a third of the marginally attached nationwide, their numbers have been increasing.