Monday, August 31, 2009

Trademark rights as to Cuban products

Trademark issues concerning Cuban products are a big deal.

From Rum, cigars Cuban in name only [AP]:

Cuba said it registered the Havana Club trademark in the United States in 1976 after the Arechabalas let their claim on it expire. It has sold the rum internationally since 1993 in a joint partnership with French spirits consortium Pernod Ricard.

So far the U.S. courts have sided with Bacardi based on a 1998 federal law that prevents the registration or renewal of U.S. trademarks tied to companies nationalized by the Cuban government. Cuba has appealed its most recent case to the U.S. District Court of Appeals in Washington.

Of cigars:

Cuba never registered its version of Cohibas in the United States but still sued General Cigar. The U.S. Supreme Court sided with General Cigar, which has factories in the Dominican Republic and Honduras and produces versions of signature Cuban brands Partagas, Hoyo de Monterrey, Bolivar and Punch.

U.S. industry estimates show 85 million Cuban cigars could be shipped to the United States annually in a post-embargo world, slashing profits for U.S. companies that sell about 255 million premium cigars a year.

Geographically misdescriptive?

See also

Cuba honors Herbert Matthews, the man who "invented" Fidel Castro

**Of the comment below about trademark law, we have such laws to minimize confusion among consumers. The laws are for the benefit of the consumer.

“At best plagiarism, at worst outright theft.’’

Michael Schroeder, publisher of the Bristol Press and New Britain Herald [CT], described certain re-publication without attribution practices of the Hartford Courant:

“at best plagiarism, at worst outright theft." [as quoted in an AP story]

As they say at the Harvard Business Review: Plagiarize with pride!

Superluminal propagation: nine years later

In a post on 12:01Tuesday titled Patented: Formula for Computing Wind Chill about US 7,578,615, there is a comment about a DIFFERENT patent, US 7,126,691:

I like to think of it more as an "exercise" or an "experiment" than a "joke". I believe that the U.S. patent system is badly broken, and I thought I could demonstrate how broken it was by getting a patent on a device that violates the laws of physics. Unfortunately, the system is so badly broken that no one noticed.

A commenter referred to this as a device for performing super luminal communication although the title of the patent (filed January 6, 2003 ) is Communications method and apparatus using quantum entanglement .

The comment, however, ignores all the press coverage of superluminal propagation which appeared in the year 2000, three years BEFORE the application was filed. See for example:

Lawrence B. Ebert, Anatomy of a Superluminal Technical Story;
FASTER THAN A SPEEDING PHOTON?, Int. Prop. Today, p. 14 (Sept. 2000), which included the text:

The coverage by Associated Press n15 stated: "Scientists have
apparently broken the universe's speed limit . . . Researchers say it is the most
convincing demonstration yet that the speed of light - supposedly an
ironclad rule of nature - can be pushed beyond known boundaries, at least under
certain laboratory circumstances."

See also

Neither the popular stories nor the technical articles were retracted or modified. And the commenter wants to blame the USPTO?

Patent reform and political realism

On June 19, 2007, IPBiz presented text of Ted Kennedy on patent reform:

U.S. Sen. Edward M. Kennedy said today [June 18] that the biotech and traditional high tech industries need to come to agreement about how patent laws should be updated rather than pursue conflicting agendas through Congress.

He said the two sectors should work it out themselves -- otherwise, "it comes down to who has more lobbyists."

On August 30, 2009, one had Sen. Hatch saying:

“Kennedy could bring together all of the base groups of the Democratic Party,” Hatch said on ABC’s “This Week,” recalling that Kennedy worked on health legislation for more than three decades. “In every case, he fought as hard as he could, but when he recognized that he couldn’t get everything he wanted, he worked with the other side. If he was here, I don’t think we’d be in the mess we’re in right now.”

One notes we have a mess in both "reform" areas: health care AND patents.

See also

John Gray on Kennedy

Ted Kennedy must have skipped that page in the politician’s handbook that says — before you take a position on anything you will put a poll in the field to gage public support. If, and only if, 60 percent of the people are in favor of “said issue” will you open your mouth. Otherwise stay quiet and hang out at the yacht club with a gaggle of sycophants.


Mike Barnicle the celebrated and scolded columnist told a wonderful story about the time Ted Kennedy reached out to him in his darkest hour. Barnicle was caught up in a plagiarism scandal and not only was his mistake plastered on the cover of the New York Times but he had TV crews camped out on his front lawn in Hyannis.

After spending the entire day locked up inside his house in shame Barnicle heard a knock on the back screen door. It was Teddy telling Mike to collect his family and come down to the Kennedy compound across town. The senator said, “We Kennedy’s know how to hide out,” and smiled that broad Irish smile breaking the tension.

"More of a business"?

A post Wolverines blow the whistle on Michigan's 'absurd' workouts contains the words:

Three returning offensive linemen quit the team [before the first spring practice in 2008], including starting guard Justin Boren, who blasted the new administration for eroding the program's "family values" en route to arch rival Ohio State. This summer, another departing lineman recruited by Carr, Kert Wermers, echoed Boren when he complained the new regime was "more of a business." Altogether, 20 holdovers from Carr's last team have exited for various reasons under Rodriguez.

One recalls the contract disputes associated with Rodriguez leaving WVU:

Contract issues concerning former West Virginia University football coach

One recalls "who" the highest paid New Jersey employee is:

Salaries of coaches at public schools

College football is a business, despite any winks to the contrary.

Similarly, "patent reform" since 2005 has been about conflicting business models, not about "low quality" patents.

In Britain, they speak of being “tipped the wink.”

Sunday, August 30, 2009

Patent applications from prison?

IPBiz has discussed the matter of Jonathan Nyce previously. [22 Jan 2006: The Bayh-Dole Act and murder [the case of Jonathan Nyce]].

IPBiz noticed two patent applications, filed in 2008 and published in 2009, from Jonathan Nyce. US 20090054385 (12/196233), titled SOLID INHALATION FORMULATIONS OF DEHYDROEPIANDROSTERONE DERIVATIVES, was filed August 21, 2008 and lists as inventor: NYCE; Jonathan W.; (Titusville, NJ). [The law firm listed on the application is: WILSON SONSINI GOODRICH & ROSATI].

Jonathan Nyce DID once live in Titusville. [from epinions: Dr. Nyce was a professor and up and coming asthma researcher at East Carolina University. The two would relocate to the tony suburb of Titusville in Hopewell Township, near Princeton, New Jersey. , from a review of Never Leave Me]

In 2008, Jonathan Nyce was resident in South Woods State Prison, 215 S Burlington Rd, Bridgeton, NJ 08302-3479.

Of Nyce's trial attorney Robin Lord:

Lord was hospitalized Thursday [30 July 09], absent from the courtroom of Mercer County Superior Court Judge Mitchell Ostrer, when a jury came in with a guilty verdict for her client, retired Ex-Windsor detective John Fiore, accused of taking a $16,000 kickback (deck for his home) for funneling work to his buddy the crooked contractor/cop.

Courthouse sources said relatives and colleagues feared Lord, 47, suffered a mild stroke Monday before leaving her Monmouth County home for Trenton.

Of Nyce's appeal attorney:

“I expected a totally different outcome,” said Nyce, who filed his appeal pro se after problems developed with lawyer Paul W. Bergrin, who he hired then fired after Bergrin missed a deadline and belatedly filed what Nyce believed was an unacceptable brief. In a strange twist, Bergrin, 53, of Marlboro, recently admitted to conspiracy in a New York court to promote prostitution. [Since press time, Bergrin has also been charged with murder in New York in the death of a witness. - Ed.]

Of Never Leave Me: Sometime in the early morning hours of January 16, 2004, Michelle apparently came in after a tryst with Enyo at the Mount's Motel and Jonathan was lying in wait for her in the garage. From what we know, Michelle parked the couple's Land Cruiser suv in the cavernous garage and it was there that Jonathan attacked her after she ostensibly informed him that she wanted a divorce. Not being able to face a life not being married to Michelle, he struck her with a baseball bat and bludgeoned her to death, smashing her head into the garage's concrete floor numerous times. Jonathan would claim that Michelle called him some expletive and began trying to stab him with a knife.


On the concept of derivative work right in copyright law, relating to an unauthorized encyclopedia of all things Harry Potter.


The NJ Supreme court rejected Nyce's appeal in December 2009. See Trenton Times article: High court rejects appeal for wife-killer Nyce

See also article in People in 2004, including the text:

Aside from jealousy, some friends wonder if business pressure played a role. While Nyce's asthma drug had been tested and found to be effective with a limited number of patients, it didn't seem to be a blockbuster, and funding appeared to be drying up. In any case, Mercer County prosecutor Joseph Bocchini Jr. cautions against having any sympathy for Jonathan, regardless of his wife's misdeeds. "Obviously [Michelle's] past history may have played a role in the doctor's ultimate act," says Bocchini. "But that's apples and oranges, because the guy killed his wife."

Saturday, August 29, 2009

Intellectual Ventures travels to India

Like JEB Stuart, Intellectual Ventures has travelled to India. Note the Forbes interview with Ashok Misra, Chairman, India and Head of Global Alliances, Intellectual Ventures, which article is titled We Aren't a Patent Troll.

See also

JEB Stuart travels to India

Friday, August 28, 2009

Medical ghostwriting: like steroids and baseball?

An article by NATASHA SINGER in the NYT titled Medical Papers by Ghostwriters Pushed Therapy includes the text:

“It’s almost like steroids and baseball,” said Dr. Joseph S. Ross, an assistant professor of geriatrics at Mount Sinai School of Medicine in New York, who has conducted research on ghostwriting. “You don’t know who was using and who wasn’t; you don’t know which articles are tainted and which aren’t.”

Because physicians rely on medical literature, the concern about ghostwriting is that doctors might change their prescribing habits after reading certain articles, unaware they were commissioned by a drug company.

Ghost-written review articles are common:

The ghostwritten papers were typically review articles, in which an author weighs a large body of medical research and offers a bottom-line judgment about how to treat a particular ailment. The articles appeared in 18 medical journals, including The American Journal of Obstetrics and Gynecology and The International Journal of Cardiology.

Ghost-written articles in the medical literature are not exactly a news flash.

JAMA duped by ghostwritten paper about VIOXX

"Patent litigation will be reduced to a free-for-all"?

Microsoft's appeal brief in the i4i case (which produced an injunction as to Word) states:

if the ED Texas ruling stands, "Patent litigation will be reduced to a free-for-all, unbounded by the requirements of the substantive law or the rules of evidence or trial procedure. While that mode of dispute resolution might enrich some plaintiffs and their investors, it hardly can be said to "promote the Progress of Science and the useful Arts."

Elsewhere: "This case stands as a stark example of what can happen in a patent case when a judge abdicates those gatekeeping functions." Of the gatekeeper image, the Microsoft brief also stated:

And after the jury has rendered its verdict, it is the judge who, before
allowing that verdict to become an enforceable judgment, must ensure that the
verdict is adequately supported by the evidence and supportable under the law.
This gatekeeping function is especially important in patent cases because of the
delicate balance struck by patent law to achieve its objective of promoting, rather
than stifling, innovation. That balance can be lost if the district court does not
protect the process, and patent litigation then becomes a tax on innovation rather
than its guardian.

Hearing on the appeal: Sept. 23.

Dell and HP have filed amici briefs supporting Microsoft. Gavin Clarke suggests the amici are more concerned about businesses who buy computers with Word than about individuals buying single PCs: "So it looks like Dell and HP are talking more about business users who might get their PCs with Word and Office pre-installed as part of a volume purchasing agreement from the OEMs or Microsoft."

See also


DeRose, which has a priority date of July 19, 1991, is prior art under 35
U.S.C. § 102(e).

DeRose, 6,101,512:

This application is a divisional of application Ser. No. 08/885,578, filed Jun. 30, 1997, entitled DATA PROCESSING SYSTEM AND METHOD FOR GENERATING REPRESENTATION FOR AND RANDOM ACCESS RENDERING OF ELECTRONIC DOCUMENTS, and now U.S. Pat. No. 5,983,248 which is a continuation of application Ser. No. 08/480,611 filed Jun. 7, 1995, issued as U.S. Pat. No. 5,644,776 which is a divisional application of Ser. No. 08/419,051 filed Apr. 7, 1995, issued as U.S. Pat. No. 5,557,722, which is a file-wrapper continuation of application Ser. No. 07/733,204 filed Jul. 19, 1991, abandoned.

Thursday, August 27, 2009

TiVo sues Verizon and AT&T

In still another chapter in the TiVo story, TiVo is now going after Verizon and AT&T, alleging three patent infringements by the country’s two biggest wireless carriers.

See earlier IPBiz post:

Another chapter in TiVo versus EchoStar, and another chapter in bad reporting of patent matters

A right to Terceva?

In 2005, wrote of the drug Terceva:

The New York Times recently reported on the high prices paid for drugs to treat cancer, notably the newer "targeted therapies." Some examples included:

$54,000 per year for Avastatin, made by Genentech,
$31,000 per year for Terceva, made by Genentech, and
$25,000 for Thalidomid, made by Celgene.

The article shows how the prices of these drugs drastically ratcheted upwards in the 1990's, starting with Taxol, made by Bristol-Myers-Squibb, at $4,000 per year, starting in 1992, through Herceptin, made by Genentech, at $20,000 per year, in 1998, to Erbitux, at $100,000 per year, made by Bristol and ImClone Systems.

The article stated that these prices are unrelated to manufacturing costs, and simply based on what the market will bear.

In March 2009, one had the post Terceva rash/pustules around the eyes ? AARRGGHH!!. See also
Genentech Receives Blow from FDA Warning on its Cancer Drug

Now, we have on YouTube The Death Panels Are Real about a woman who could not get the State of Oregon to cover her use of Terceva.

LBE was once told that some huge fraction of health care costs go to cover people in their last two weeks of life.

Wednesday, August 26, 2009

Monkeys, or humans?

A headline:

GM monkeys with DNA of THREE parents raises hope of eradicating incurable diseases

Scientists have produced four baby monkeys who each have three biological parents.

IPBiz newsflash: courtesy of cytoplasmic transfer (done in NJ) , we already have HUMANS with the DNA of THREE parents.

Ortho gets mixed decision in appeal of D NJ case

ORTHO-MCNEIL PHARMACEUTICAL v. TEVA is a patent law appeal from a D NJ order granting summary
judgment of invalidity based on anticipation and obviousness, related to the drug Ultracet.

In view of the dissent, one needs to carefully observe what happened in the case. As to the
decision of D NJ, what CHANGED is the judgment of obviousness of claims 43-48, 51, 54, 67, 69, 72, and 74.
Patentee wins on this point. The CAFC found claim 6 NOT to be invalid for anticipation,
but still invalid for obviousness. Patentee loses on this point.

Of the "news" aspect of the case, Bloomberg wrote:

Teva’s Barr unit and Caraco Pharmaceutical Laboratories Ltd. [owned by Sun Pharmaceutical] have been selling copies of the medicine [Ultracet] for more than three years. New Brunswick, New Jersey-based J&J, the world’s largest health-products company, was trying to get the generic medicines pulled from the market.

Ultracet combines acetaminophen, the main ingredient in Johnson & Johnson’s Tylenol, with tramadol hydrochloride, a compound used in the painkiller Ultram. The patent, which expires in August 2011, covers the ratio between the two components.

Of the legal aspect of the case-->

The majority and dissent disagreed on the outcome as to claims 43-48, 51, 54, 67, 69, 72, and 74.
Does (A + B +C +D) render (A + B) obvious?

The majority said "no" and wrote:

Each of claims 43-48, 51, 54, 67, 69, 72, and 74 recites a pharmaceutical
composition with active ingredients consisting of tramadol and acetaminophen in a ratio
of about 1:5 to about 1:19. A single tablet containing only tramadol and acetaminophen
in a fixed dose ratio within the claimed range is not disclosed in the cited prior art. Flick
discloses a four-compound combination comprising tramadol, acetaminophen, and two
other active ingredients. Flick does not suggest that the pentobarbital sodium and
ethoxy benzamide are merely optional for the combination to work as desired.
parties dispute whether Flick suggests that the composition in example 23 exhibits a
synergistic effect.

The majority credited expert testimony:

Ortho submitted uncontroverted expert testimony that one of ordinary skill in the
art would not find it obvious to try to remove two of the four active ingredients disclosed
in Flick example 23 to arrive at the claimed composition.

In dissent, Judge Mayer said "yes."

Example 23 of the Flick patent discloses a combination of
phenacetin and acetaminophen in a ratio that falls squarely within that claimed in the
RE221 patent. The only alleged difference between the tablet disclosed in the asserted
claims of the RE221 patent and the tablet disclosed in example 23 is that the latter also
contains two additional ingredients, pentobarbital sodium and ethoxy benzamide.
that ethoxy benzamide was a known carcinogen and pentobarbital sodium was known
to have antagonistic interactions with analgesics, it would have been obvious to remove
these two drugs from Flick’s formulation.

In his dissent, Judge Mayer invoked KSR:

“If a person of ordinary skill can implement a
predictable variation [of the prior art], § 103 likely bars its patentability.” KSR Int'l Co. v.
Teleflex Inc., 550 U.S. 398, 417 (2007). Here, the removal of pentobarbital sodium and
ethoxy benzamide was a predictable and simple variation on the Flick formulation. See
id. at 421 (“A person of ordinary skill is . . . a person of ordinary creativity, not an
automaton.”); Bayer Schering Pharma AG v. Barr Labs., Inc., No. 2008-1282, 2009 U.S.
App. LEXIS 17372 (Fed. Cir. Aug. 5, 2009) (affirming an obviousness determination
where the patentee was confronted with a limited number of options for modifying a
prior art pharmaceutical composition).

The bottom line is that the patentee won, as to eliminating the summary judgment. Trial remains.
We therefore vacate the district court’s summary judgment invalidating RE’221 claims 43-48,
51, 54, 67, 69, 72, and 74 based on obviousness and remand the case for a trial on the merits.

Of claim 6-->

With respect to the obviousness of claim 6 [as distinct from anticipation], the majority wrote:
With respect to obviousness, there is no dispute that the only difference between
claim 6 and example 23 of Flick is the weight ratio—the additional compounds in the
example are irrelevant because of the transitional phrase “comprising” in the claim.
Example 23 discloses a 1:10 ratio of tramadol to acetaminophen: 25 mg to 250 mg.
Because the difference between 1:7.1 and 1:10 is so slight, Flick creates a prima facie
case of obviousness with regard to claim 6.

As to claim 6, an issue in the case was whether (A + B + C + D) rendered (A + B) anticipated.
The majority found there was a disputed issue of material fact and found summary
judgment as to claim 6 was inappropriate [Whether Flick discloses all of the
limitations of claim 6 is a material question of fact over which Ortho has raised a
genuine dispute. We therefore vacate the district court’s summary judgment that claim
6 is invalid for anticipation. ]

The punchline: the majority found claim 6 to be obvious. [For these reasons, we agree with the district court that Ortho has failed to raise a genuine dispute of material fact regarding the obviousness of claim 6.

Part of the determination on claim 6 turns on a failed showing of unexpected results:

Ortho-McNeil can rebut the prima facie case if it can show that the prior art
teaches away from the claimed range, or the claimed range produces new and
unexpected results over the prior art range. See Iron Grip Barbell Co. v. USA Sports,
Inc., 392 F.3d 1317, 1322 (Fed. Cir. 2004). Before the United States Patent and
Trademark Office, the district court, and now us, Ortho-McNeil principally relies on
unexpected results in the form of synergy between tramadol and acetaminophen. As
described in RE’221, the observed analgesic effect of tramadol-acetaminophen
combinations exceeds what one would predict from merely adding the effects observed
upon administering each drug individually. See, e.g., RE’221 fig. 1. Ortho-McNeil’s
problem, however, is that its own evidence indicates no perceptible difference in
synergy between a weight ratio of 1:7.1 and 1:10—and indeed over a much broader
range of ratios. Id. Ortho-McNeil does not dispute this. Thus, Ortho-McNeil has failed
to create a material dispute of fact regarding whether “the claimed range achieves
unexpected results relative to the prior art range.” In re Woodruff, 919 F.2d 1575, 1578
(Fed. Cir. 1990) (emphasis added); cf. Ormco Corp. v. Align Tech., Inc., 463 F.3d 1299,
1311-12 (Fed. Cir. 2006) (“Evidence of commercial success, or other secondary
considerations, is only significant if there is a nexus between the claimed invention and
the commercial success.”).

** An expert went down the tubes:

Dr. Stanski did not opine on that option, and therefore did not create a
material issue of fact regarding whether the prior art teaches away from the claimed
invention. We have considered Ortho’s other arguments and find them to be without

As noted, Ortho did better on OTHER claims:

Ortho’s proffered reading of Flick and the German references, as well as expert
testimony regarding the understanding of one skilled in the art, raises material questions
of fact as to whether a skilled artisan would have found the claimed combination of
tramadol and acetaminophen to be obvious. We therefore vacate the district court’s
summary judgment invalidating RE’221 claims 43-48, 51, 54, 67, 69, 72, and 74 based
on obviousness and remand the case for a trial on the merits.

CAFC judges soon to fall like dominos?

Marcia Coyle [Tom Schoenberg ] at Legal Times wrote on 26 Aug 2009:

President Obama this fall will have his first opportunity to put his stamp on the patent-heavy U.S. Court of Appeals for the Federal Circuit. Judge Alvin Schall recently told the White House that he will take senior status in October. That will create the first of what could be as many as eight vacancies on the appellate court in the president's first term.

Eight of the court's 12 judges will be eligible to retire or to take senior status in less than two years. The judges currently eligible for senior status include Chief Judge Paul Michel, Pauline Newman, Haldane Mayer and Alan Lourie. Those eligible this year are Schall, Timothy Dyk, Arthur Gajarsa and, in early 2010, William Bryson. Four senior judges now sit on the court: Daniel Friedman, Glenn Archer, S. Jay Plager, and Raymond Clavenger.

The post ends with the line: patent reform legislation, like the crocus in springtime, is perennial. Could one say, patent reform is the legislation of the future, and always will be?

Will Judge Whyte get another shot?

Plagiarism punished in Canada

Claude Robinson began a $2.53-million Quebec Superior Court copyright infringement lawsuit against Cinar and other defendants in July 1996 asserting they stole a cartoon character he created, and won a judgment of $5.2-million in August 2009, 13 years later.

The character involved was "Robinson Curiosité".

**In passing, from a post about freshmen likely to play for LSU in 2009-->

Plagiarism is the Sincerest Form of Flattery:

Never let it be said that I am not willing to "incorporate" a good idea from another site into this blog. Recently, the SBNation Alabama blog, Roll Bama Roll, made a post giving their thoughts on which members of the Bama class of 2009 were most likely to play as true freshmen. We've already kind of gone through this with our Class of 2009 feature, but it will be helpful to do so in a more formal way.


Comparing Kennedy's 1980 Democratic convention speech to Obama's present policies, someone wrote:

And health care is not the only plank in his 1980 platform that is eerily familiar. If Barack Obama had been seated beside him in poli-sci class, the new president might have been accused of plagiarism.


In the suit of Professor Mehta against Ohio University, Judge Joseph Clark ruled August 18, 2009 that Mehta did not prove his case and ordered him to pay court costs. Guess Mehta's expert on plagiarism (Patrick Scanlon, a faculty member at the Rochester Institute of Technology ) wasn't very credible.

See also
Does plagiarism require intent?

The answer is "No, it doesn't."

IPBiz #10 blawg on blawgsearch

Once again, IPBiz barely managed to squeak by "Patent Troll Tracker" in rankings by blawgsearch. The top 15 blawgs:

Most Popular Blawgs Today

Sex Offender Issues [feed]
Covers sex offender laws and cases.
Last Updated: August 25, 2009 - Rank Today: 1

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News and information gateway to web based services provided by the New York State Supreme Court Criminal Term Library in New York County.
Last Updated: August 14, 2009 - Rank Today: 2

Judging Crimes [feed]
Covers criminal law, violent crime and the judiciary. By Joel Jacobsen.
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Covers business, law, economics and society. By Professors Gordon Smith, Christine Hurt, Vic Fleischer, Fred Tung, and Lisa Fairfax.
Last Updated: August 24, 2009 - Rank Today: 4

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Covers Kentucky Supreme Court (SCOKY) and Court of Appeals (COA) decisions, minutes, arguments, and news.
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The Indiana Law Blog [feed]
Covers Indiana law, as well as interesting developments in law and government. By Marcia Oddi.
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Covers legal malpractice basics, cases and news. By Andrew Lavoott Bluestone.
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Legal news and information blog covering a wide range of legal practice areas. From which has a consumer legal Website, with a certified lawyer directory and provide law firms Web site development and other marketing solutions.
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Covers law and business and the business of law. By the Wall Street Journal.
Last Updated: August 25, 2009 - Rank Today: 9

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Intellectual property news affecting business and everyday life. From patent lawyer Lawrence B. Ebert.
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Established with the goal of aggregating key compliance and electronic discovery news for further review, study, and consideration by legal and corporate professionals. Published by Rob Robinson.
Last Updated: August 19, 2009 - Rank Today: 11

DealBook [feed]
Covers mergers and acquisitions, investment banking, IPOs, private equity, hedge funds, venture capital and law. A Financial News Service of The New York Times.
Last Updated: August 25, 2009 - Rank Today: 12

Legal Pad [feed]
Cal Law blog.
Last Updated: August 25, 2009 - Rank Today: 13

PrawfsBlawg [feed]
By Professors Dan Markel, Ethan J. Leib, Rob Howse, Paul Horwitz, Rick Garnett, Matt Bodie, Steve Vladeck and Orly Lobel.
Last Updated: August 24, 2009 - Rank Today: 14

Patent Troll Tracker [feed]
Tracks patent litigation.
Last Updated: February 23, 2008 - Rank Today: 15

See also

Blawg ranking by blawgsearch

Tuesday, August 25, 2009

Cardiac Pacemakers and 271(f)

An August 24 post at istockanalyst begins:

Technology majors Intel, Apple, Cisco and Microsoft have won an appeals court ruling that limits the amount of patent damages they will have to pay for products shipped outside the US.

Huh? The case in question is the CAFC's Cardiac Pacemakers v. St. Jude. The connection to Cisco is through an amicus brief filed by Ed Reines, who was one of McCain's IP advisors, even though Cisco/Yen et al. might be deemed more tied to Democrats.

The Cardiac side is the patentee side [U.S. Patent 4,407,288 ] and the decision is complex, with the "big deal" about 271(f) [and Newman's dissent]:

For the foregoing reasons, we reverse the district court’s grant of summary
judgment of invalidity of the ’288 patent and reinstate the jury verdict that the patent has
not been shown to be invalid. We also reinstate the jury’s verdict that the ’288 patent is
not unenforceable for inequitable conduct and reverse the district court’s grant of a
conditional new trial on that issue. We remand to the district court for a determination of
damages. We affirm the district court’s rulings limiting damages to instances in which
the patented method has been performed. Finally, we reverse the court’s decision that
35 U.S.C. § 271(f) is applicable to this case and hold that St. Jude’s ICDs that practice
the method of claim 4 outside the United States do not infringe that claim under
Section 271 (f).

The district court judge was Judge David F. Hamilton of SD Ind.

The University of Chicago is also mentioned:

The Court stated in Cannon v. University of Chicago, 441 U.S.
677, 696-97 (1979), that “it is always appropriate to assume that our elected
representatives, like other citizens, know the law . . . and that an evaluation of
congressional action taken at a particular time must take into account its contemporary
legal context.”


Sunday, August 23, 2009

"Accidental emailer" Alycia Lane lands job at KNBC

A Los Angeles Times story on Alycia Lane, former Philadelphia KYW TV news anchor who has landed a job at KNBC, includes the text:

In May 2007, Lane defended sending e-mails and suggestive photos of herself in a bikini to NFL Network anchor Rich Eisen and, accidentally, his wife.

The Lane story is wrapped up with the Larry Mendte story, which has already been used as a plotline in Law & Order.

"Law & Order" plotline follows Larry Mendte story and Madoff scam

Meanwhile, Mendte garnered three local Emmy nominations, for work done prior to his dismissal from KYW:

Former CBS3 anchor Larry Mendte garnered three nominations - for his role as host/writer/producer of a human interest special, for features-human interest reporting and for writing.

CBS3 fired Mendte in June 2008 after federal charges were filed accusing him of hacking into fellow anchor Alycia Lane's e-mail. He pleaded guilty to those charges, but has since asked that the court alter or vacate his sentence on grounds of "ineffective" counsel.

Plagiarism in Huffington Post?

Aisha Curry has accused Tameka Foster [Raymond] of plagiarism in an article of Foster's in the Huffington Post, She's Pretty For A Dark Skinned Girl, which begins:

I am a dark-skinned African American woman with features that reflect my ancestry. Debates regarding Light vs. Dark and other biases have plagued our race for years and continues to impact millions of Black women.


The response was primarily a brush-off:

But Foster, who is currently in the process of divorcing the R&B singer [Usher], is adamant she came up with the article on her own.
Her publicist tells, "Tameka has never even heard of the book you referenced nor does she believe you even deserve a response."

The successful receipt of a message can depend on the identity of the messenger, rather than on the content of the message.

See also TechDirt
Can You Plagiarize An Idea?

Unintended consequences of Clunkers program?

In a post titled Cash for Clunkers to end Monday [Aug. 24] night, Jenny Munro writes:

The program, expected to produce 250,000 new-car sales by November, will have generated more than 700,000 in about a month.

Someone had a post back in July that few people would benefit from the program [below]. That "prediction" obviously wasn't reliable.

Munro's article touched on some of the downsides of the clunkers [CARS] program:

Clunkers traded in for the CARS program are destroyed, so used car prices could increase as the supply diminishes, dealers and auction operators said. And charities that accept auto donations are concerned that taking so many used cars out of circulation will cause them to take a donation hit, decreasing money used to fund their operations.

Moreover, shortages of the popular models of new fuel-efficient cars could develop, Thomas said. Although prices wouldn’t be expected to increase, dealers could decide to dump the dealer incentives since the buyer would get the government credit and manufacturer incentives.

The unintended consequences of Clunkers evoke the unintended consequences of the USPTO's recent philosophy of "reject, reject, reject...".

At the beginning of the program [July 24], ABCNews had a post, the first comment to which underlined the stupidity of the way the program was implemented:

This program would actually pay for itself if all the cars were junked or parted out, actually it might make a profit..."

One asks: who benefitted by the total destruction of the clunkers, as opposed to junking them, and recovering the value of car parts within the clunkers?

***On "limited eligibility"

from via edmunds, Cash for Clunkers, each car sale to cost taxpayers $20k apiece -->

Much has been written — both pro and con — about the Cash for Clunkers program that officially launched July 27th. Complexity, limited eligibility and minimal funding are common criticisms. But so far, the chief failing has been overlooked., the premier online resource for automotive information, has determined that even if Cash for Clunkers reaches its budgeted cap, the program will only help drive about 50,000 incremental new car sales, so each one will cost taxpayers a whopping $20,000.
How is this possible?'s research shows that typically 200,000 vehicles worth less than $4,500 are traded in for new vehicles every three months. At best the current Cash for Clunkers program will fund 250,000 such transactions in the same time period — a gain of only 50,000 vehicles. Given that this program is budgeted to cost $1,000,000,000, this increase will come at the cost of $20,000 per extra sale.
"The incremental sales will be limited and at a considerable cost. In effect, we are paying consumers to do something most would do anyway," said Jeremy Anwyl, CEO of "So as a stimulus, the program fails. One could make a slightly stronger argument about the environmental benefits, but even there, the program could have been better designed."
"Really, the best consequence is that many consumers are getting interested in the idea of a new vehicle after hearing about Cash for Clunkers; we have to hope that even if they don't qualify, they will buy a vehicle anyway," Anwyl told Edmunds' "But, how long-lived will that be? Once the program reaches its cap, interest will die down, and sales volume will fall as quickly as it rose. What will motivate shoppers to brave the marketplace in the months following Cash for Clunkers?

**from newsfeedresearcher-->

Where's my reward for not polluting? I have a 1993 Honda del Sol and a 2000 Honda Odyssey. These older cars are not eligible for the Cash for Clunkers program because they get good gas mileage. The result of this program is that people who have been polluting the air with their SUVs get a huge break on new cars, but people who have been driving environmentally responsible vehicles for many years get squat. Government meddling in the free market causes injustices like this every time.


At least one industry analyst argues that the government is getting less bang for its stimulus buck than it appears by stealing sales from future months. And, he says, the program will result in higher car prices for everyone else.

**Previous IPBiz posts:

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

**Note also that there were European clunkers programs:

VW also "benefited much more than Toyota from the European cash-for-clunkers programs," though Toyota saw more sales than VW spurred by the U.S. version of the car-swap program.

Friday, August 21, 2009

On herding entrepreneurs and innovation

In July 2009, Michael Arrington (founder of TechCrunch and proclaimed undisputed king maker of Silicon Valley Internet startups) interviewed Gary Reback, antitrust lawyer. Within the text Google’s Looming Antitrust Issues, one found a line about the

recovery by major companies of the ability to dominate their markets and to herd entrepreneurs and innovation and to damage consumers.

Sounds like a reprise of George Scott in "The Formula." It's too bad no one made a major movie about Chester Carlson, and how "major companies" ignored one of the greatest innovations of the 20th century, the Xerox machine.

Flash forward to August 2009 and Reback is in the news as to Google. The WSJ story titled Tech's Bigs Put Google's Books Deal In Crosshairs begins:

Three technology heavyweights and some library associations are joining a coalition led by a prominent Silicon Valley lawyer to challenge Google Inc.'s settlement with authors and publishers.

Peter Brantley, a director at coalition co-founder Internet Archive said the group, whose members will be formally disclosed in the next couple of weeks, is being co-led by Gary Reback, a Silicon Valley lawyer involved in the Department of Justice's antitrust investigation against Microsoft Corp. last decade. Microsoft, Inc. and Yahoo Inc. have agreed to join the group.

Separately, a BBC report titled Tech giants unite against Google gives more detail AND has quotes of John Simpson>

** Of detail-->

Back in 2008, the search giant reached an agreement with publishers and authors to settle two lawsuits that charged the company with copyright infringement for the unauthorised scanning of books.
In that settlement, Google agreed to pay $125m (£76m) to create a Book Rights Registry, where authors and publishers could register works and receive compensation. Authors and publishers would get 70% from the sale of these books with Google keeping the remaining 30%.
Google would also be given the right to digitise orphan works. These are works whose rights-holders are unknown, and are believed to make up an estimated 50-70% of books published after 1923.

**Of Simpson-->

"We simply don't like the settlement in its current form," said Consumer Watchdog advocate John Simpson.
"There are serious questions about privacy and Google seems to be taking the view 'let us put this in place and we will do the right thing down the road'. That is simply not good enough."

In another embodiment, Simpson has discussed CIRM, and has watched as Proposition 71 mercilessly fleeces California taxpayers, pointing out details but missing the big picture that taxpayer-financed venture capitalism is a bad idea. Here, Simpson doesn't want to trust Google. As to stem cells, Simpson didn't trust WARF.


Is what Google doing as to Google Books, etc., a matter of herding entrepreneurs and innovation?

**to Californiastemcellreport on 23 August 2009-->

Analogies between what is currently going on at CIRM with themes from the novel Arrowsmith should be self-evident. On the subject of prizes (here, for the "lucky 8"), recall that, although Sinclair Lewis was awarded the 1926 Pulitzer Prize for Arrowsmith, he declined the prize and observed:

"I wish to acknowledge your choice of my novel Arrowsmith for the Pulitzer Prize. That prize I must refuse, and my refusal would be meaningless unless I explained the reasons.

All prizes, like all titles, are dangerous. The seekers for prizes tend to labor not for inherent excellence but for alien rewards; they tend to write this, or timorously to avoid writing that, in order to tickle the prejudices of a haphazard committee.

Talk of "paradigm-shifters" by CIRM should be measured in this context.

**Also, note the discussion of Van Zandt on Legal Rebels:

The legal profession often has a guild mindset, he posits: Members value perceived intelligence and craftsmanship. What the group sees as perfection is often rewarded by other guild members. But clients don’t always want something that is technically perfect, and they are often equally concerned with time and cost savings. Also, they value social skills as well as perceived, measurable intelligence.

“Guilds are always giving out awards and badges,” Van Zandt says, “and clients don’t really care about that sort of thing.”

IPBiz posits: maybe California taxpayers don't care about that sort of thing, either!

Thursday, August 20, 2009

US 20090195392, Sony's laugh detector patent application


Information in the form of emotional responses to a media presentation may be passively collected, for example by a microphone and/or a camera. This information may be tied to metadata at a time reference level in the media presentation and used to examine the content of the media presentation to assess a quality of, or user emotional response to, the content and/or to project the information onto a demographic. Passive collection of emotional responses may be used to add emotion as an element of speech or facial expression detection, to make use of such information, for example to judge the quality of content or to judge the nature of various individuals for future content that is to be provided to them or to those similarly situated demographically. Thus, the invention asks and answers such questions as: What makes people happy? What makes them laugh? What do they find interesting? Boring? Exciting?

Claim 1 states:

An apparatus for passively collecting information in the form of emotional responses to a media presentation, comprising:a media presentation perceivably exhibited to at least one individual;a detector for capturing emotional responses of said at least one individual to said media presentation during exhibition of said media presentation;a processor for correlating said emotional responses with portions of said media presentation which contained stimuli that elicited said emotional responses.

The background states:

[0002]Khiet P. Truong and David A. van Leeuwen, Automatic discrimination between laughter and speech, Speech Communication, Volume 49, Issue 2, February 2007, Pages 144-158 suggest a technique that detects laughter as a component of speech. As well, Carlos Busso, Zhigang Deng, Serdar Yildirim, Murtaza Bulut, Chul Min Lee, Abe Kazemzadeh, Sungbok Lee, Ulrich Neumann, Shrikanth Narayanan, Analysis of Emotion Recognition using Facial Expressions, Speech and Multimodal Information, Emotion Research Group, Speech Analysis and Interpretation Lab, Integrated Media Systems Center, Department of Electrical Engineering, Department of Computer Science, Viterbi School of Engineering, University of Southern California, Los Angeles, have suggested a technique that detects emotion from facial expressions

[0003]Unfortunately, there is as yet no suggestion to engage in passive collection of emotional responses during playback of media to judge or analyze the quality of segments of content or to assess the quality of content with respect to attributes of the content, user profiling, demographic mining and targeting of future content. Thus, there is a need in the art, for a technique that both recognizes emotionand that employs this information in some useful way.

***UPDATE on 21 Aug

One writer, wanting to do a story, questioned IPBiz on "how" this patent application is related to Sony. As one piece of evidence, one goes to (WO/2009/097337) LAUGH DETECTOR AND SYSTEM AND METHOD FOR TRACKING AN EMOTIONAL RESPONSE TO A MEDIA PRESENTATION, and reads

Pub. No.: WO/2009/097337 International Application No.: PCT/US2009/032246
Publication Date: 06.08.2009 International Filing Date: 28.01.2009
IPC: G06F 3/00 (2006.01)
Applicants: SONY COMPUTER ENTERTAINMENT AMERICA, INC. [US/US]; 919 East Hillsdale Blvd., 2nd Floor, Foster City, CA 94404 (US) (All Except US).
ZALEWSKI, Gary [US/US]; (US) (US Only).

The first claim of the PCT is

An apparatus for passively collecting information in the form of emotional responses to a media presentation, comprising: a media presentation perceivably exhibited to at least one individual; a detector for capturing emotional responses of said at least one individual to said media presentation during exhibition of said media presentation; a processor for correlating said emotional responses with portions of said media presentation which contained stimuli that elicited said emotional responses.

IPBiz goes one step further and notes an international search report was filed in March 2009, before all the internet junkies picked up on the story.

The search, done by our own much maligned USPTO, found two "X" references [US 7,120,880 and 6,001,065] suggesting the claims to be anticipated (and/or obvious] and three "Y" references.

In passing, of bad things happening at the USPTO, note the story Minister pleads guilty to stealing $500K from U.S. patent office with text:

Reid coordinated with a patent office employee, referred to as "K.L.P." in court documents, to have $451,252 transmitted from patent office accounts to a Redeemed Music House bank account, he admitted.

Does the USPTO put the zz in embezzle, like they put the "no" in innovation?

The money case is still under investigation. The Washington Examiner story states:

According to court documents, the unnamed patent office employee was a financial analyst who had access to accounts in which customers deposited funds that later could be drawn down to pay application expenses. That analyst has not been charged, and the investigation is ongoing, a federal prosecutor said.

Merck beats Teva on Singulair in D NJ

As had been predicted, Merck beat Teva on Singulair in D NJ in Trenton before Judge Garrett Brown, who previously had been involved in the Florida Prepaid Postsecondary case.

Text at Bloomberg suggested Merck prevailed by presentation of secondary considerations to rebut a prima facie case of obviousness:

Merck “put forth sufficient evidence of the failed attempts of others to develop a leukotriene antagonist,” Brown said in his opinion.

In spite of the legal victory, Merck plans to cut 16,000 jobs:

Schering-Plough shareholders approved Merck’s $46.7 billion takeover offer this month.

Schering-Plough has said it plans to file for approval of seven drugs, which may each generate more than $1 billion in peak annual sales. Merck plans to eliminate 16,000 positions as part of the merger and to help stem the generic losses.

In a story by Ransdell Pierson , Reuters mis-reported the location of the trial: Teva had challenged the validity of patent '473 during a trial in February before Judge Garrett Brown in Newark federal court in New Jersey.

***In passing, there have been allegations of inequitable conduct relating to US Patent 5,565,473 directed to montelukast.
These are described in a blog post by Jim Edwards:

The suit claims that Dr. Robert Young of the Merck Frosst Center for Therapeutic Research wrote two articles about the processes behind Singulair before its application to the PTO was made. It alleges that Merck attorney Gabriel Lopez reviewed the articles and then decided to omit them in his filing for Merck.

Young also presented his work to Merck scientists, the suit claims:

A primary inventor named in the ‘473 patent has conceded in deposition testimony that key insights behind the purported invention in the ‘473 patent first occurred to Merck scientists either during that presentation or shortly thereafter.

A third article was mentioned in Merck’s patent but a copy was not provided to the PTO examiner, and a fourth abstract also was not disclosed, the suit claims.

Thus Merck’s 2007 suit against Teva to prevent it from making a generic Singulair is a sham, the suit says. Roxane Labs was also prevented from producing a generic.

Is a bazaar economy based on innovative technology?

A thread at the 271blog, titled Revisiting the Presumption of Validity, and seemingly directed to Alan Devlin's 2008 law review article in Southwestern University Law Review, has re-channeled into a discussion of "why" Germany is the world's leading exporter.

The last post by one "MaxDrei" stated the following:

"As to exports, Germany is slightly ahead of China."

Germany is also ahead of China, I might add, on cost of labour, per hour. Remind me Lawrence (as you know all the stats) how much does a production line worker cost i) in socialist Germany and ii) in communist China and iii) in the flexible labour market of the USA? And nevertheless, German goods are outselling the rest!? It can't be the price, can it. Maybe the quality?

IPBiz notes, as to exports, that Germany is slightly of China, which in turn slightly ahead of the US. Why Germany? MaxDrei would have us believe it's about the innovative technology of Germany:

Germany is still "export Weltmeister" isn't it? Somebody still wants to buy innovative technological products that carry the "Made in Germany" tag.

If you advocate a system in which Applicants for patents should, in their own self-interest, "be careful what they ask for", then I agree with you. My perception of the present system in the USA is that it is one of "gamekeepers and poachers" each trying to be one step ahead of the other (like in tax law). If you can bamboozle the PTO you can then blackmail the rest. But, unlike in tax law, one can make patent law much simpler, on the basis of "OK, if that's what you want, you can have it. But you might regret it later, in court". Then you arrange that, in court, the loser pays, and if there is one invalid claim in the patent, the patent owner loses. To be fair, you have to give the patentee an equitable chance to amend, by excision of the bad claim, for example when previously unknown prior art emerges, but the American way of litigationg can easily manage that.

Some people have a different opinion. From

According to the 2005 theory of Hans-Werner Sinn, Germany export success is not the result of an innate strength but a pathological phenomenon, as it reflects a persistent rise in the value-added of German exports accounted for by intermediate imports. Germany has thus developed into a bazaar, where most of the goods are imported, a relatively minor amount of value-added applied, and exported at a profit. What appears to be a competitive export market is in reality nothing but a reflection of Germany's industry's increasing use of oursourcing and offshoring. With this theory, Sinn also tried to explain why there has been negative employment growth in Germany's manufacturing industry despite the rise in exports.

IPBiz reminds readers of the interesting patent applications of IBM, Bank of America, and others on aspects of outsourcing.
Perhaps they (and Germany) have seen the future, and it has something to do with a giant sucking sound.

**Previous comments-->

to the 271Blog-->

As to MaxDrei's Germany, from eurointelligence:

According to the 2005 theory of Hans-Werner Sinn, Germany export success is not the result of an innate strength but a pathological phenomenon, as it reflects a persistent rise in the value-added of German exports accounted for by intermediate imports. Germany has thus developed into a bazaar, where most of the goods are imported, a relatively minor amount of value-added applied, and exported at a profit. What appears to be a competitive export market is in reality nothing but a reflection of Germany's industry's increasing use of oursourcing and offshoring. With this theory, Sinn also tried to explain why there has been negative employment growth in Germany's manufacturing industry despite the rise in exports.

As to the initial theme of the 271Blog post, there is no evidence that the degree of deference of courts to the USPTO has a significant impact on most patent cases. The papers of Lemley and Devlin are thus not relevant to real world problems.

to the 271Blog on 23 Aug-->

As to MaxDrei, one can read The Pathological Export Boom and the Bazaar Effect: How to Solve the German Puzzle.
As to the deference of courts to the USPTO, another factor that must be included in the discussion is the difference between courts and the USPTO as to presumptions of claim scope. A different 271Blog post brought up this issue. Time To Do Away With "Broadest Reasonable Interpretation?" Paper Says "Yes!" Additionally, it remains true that no one has shown, as a practical matter, that the issue raised by Lemley et al. and then by Devlin, is of great concern to anyone who actually practices patent law. The results of Markman hearings matter a lot; level of deference is not such a big deal.

[Dawn-Marie Bey and Christopher Anthony Cotropia published a paper recently titled "The Unreasonableness of the Patent Office's 'Broadest Reasonable Interpretation' Standard," and it's a very interesting look at the PTO's claim interpretation methodology. While there have been many articles and studies regarding claim interpretation in the courts, few have looked at claim interpretation in the PTO. Bey and Cotropia took a good look - and they didn't like what they saw.]

paper: American Intellectual Property Law Association Quarterly Journal, Vol. 37, No. 3, 2009

Geron blames air-bags for lack of progress?!?

IPBiz has posted on Geron many times, including some rather interesting patent stories. A post on TheStreet on August 19 concerning an FDA clinical hold on Geron tests included some rather interesting text.

First, one had a complaint about lack of achievement:

My beef with Geron is the company's chronic under-achievement, except when it comes to spending shareholders' money. One could say the same thing about Proposition 71 and CIRM.

Second, was an allusion to an excuse offered by Geron:

In this case, Geron promised to enroll the first paralyzed patients into its stem cell trial during the summer. That announcement was made in January. Yet August is rolling toward a hot and humid finish here in the Northeast, and the study is nowhere close to starting. Last month, the company told investors that car airbags were partly to blame for the delay. (Airbags protect drivers and passengers in accidents, making it hard to find traffic accident victims with paralysis severe enough to be eligible for the clinical trial, or so Geron CEO Tom Okarma said on his company's quarterly conference call.)

What can one say?

**Of the past, there is much of interest to patent attorneys in the interference between ACT and Geron.

From an IPBiz post in 2005:
Geron prevails in patent interference against ACT in stem cell area


***One commenter at californiastemcellreport wrote:

Did Okarma really use an airbag excuse on an investor call?! Wow.
I thought I read somewhere that the delay was due to concerns about new animal results on dose escalation. If true, this could be a serious setback, but might not be.

I agree with Steve Johnson and Adam Feurstein though that Geron hasn't impressed in the execution department and unfortunately for investors and patients hoping for a cure, execution is 90% of success. Geron has received multiple passes for attempting to be first to the clinic with ES cells but it is looking like their inability to move forward has more to do with life science management than the pesky ES cell. Dose escalation studies and a strategy to overcome limitations should have been a no-brainer from the get go. To have this problem at the 11th hour is telling (if indeed that is the issue).

***From David Granovsky's blog:

Geron Corp. rose as much as 5 percent in Nasdaq trading after saying a hold placed by U.S. regulators on its plan for the first human embryonic stem-cell study was due to “non-proliferative” cysts in test animals.

Stephen Brozak, an analyst with WBB Securities LLC in Westfield, New Jersey, said investors would be reassured that the animals didn’t develop a type of tumor known as a teratoma.

“I think it provides people with a reasonable explanation,” Brozak said. “Everybody was afraid of the T- word, teratomas, and it clearly wasn’t that.”

Wednesday, August 19, 2009

X-ray fluoroscopy and paintings

A story by Alan Boyle details results from an interesting paper by Jennifer Mass, an expert on art conservation at the University of Delaware, presented at the national meeting of the American Chemical Society in Washington DC about the use of x-ray fluoroscopy to image paintings beneath paintings. The featured painting is one by N.C. Wyeth.

CIRM to share “instructive negative research” results

A post on californiastemcellreport notes:

One matter that may trouble many scientists is what may be a reluctance to share information outside of the CIRM research community. The strategic plan discusses sharing “instructive negative research” results within its own community.

The post doesn't actually say that positive research results will be shared WITHIN the CIRM research community, much less with outsiders. The California taxpayer is serving as venture capitalist to a bunch of independent operators, and the taxpayer is not going to get a return on money invested.

The report also mentions "patient advocates, who may also not be pleased with the 10 to 14 year timetable for therapies."

IPBiz has noted for years that therapies would be beyond the 10 year lifetime of CIRM. Hope californiastemcellreport isn't surprised at this foreseeable timetable.

Examiners: “We’re the ones who put ‘no’ in innovation”

A rambling story by John Schmid and Ben Poston titled Patent rejections soar as pressure on agency rises includes the text:

“We’re the ones who put ‘no’ in innovation,” goes a joke that circulates in the agency’s corridors, according to an examiner who requested anonymity because the agency won’t let examiners speak with reporters.
At the same time, because of heavy turnover, the staff of examiners became younger and less experienced.

The article suggests a "culture of fear" at the USPTO is responsible for the current 59% rejection rate:

“If you tell an examiner that you’ll be penalized or lose your bonus if you allow things that shouldn’t be, what’s going to happen? The examiner will reject more,” said Joseph Mallon, a research scientist and patent attorney with the Knobbe Martens law firm in San Diego.

Robert Budens, president of the trade union for the agency’s 6,300 examiners, said “a culture of fear” has taken hold, a feeling that, “If I make the wrong step, I could lose my job.”

As a result, critics contend, inventors are routinely discouraged.

And, arguably, the "culture of fear" may owe its origin to the "97% allowance rate" urban legend perpetrated by Quillen and Webster, which 97% assertion generated an opposing force of reject, reject, reject...

The Schmid/Poston story of course mentions the swinging on a swing patent, without giving the context of patent attorney father/son:

When the “invention” received patent No. 6,368,227 — later revoked — it helped unleash a pent-up backlash from serious-minded inventors whose applications were backed up. Harvard professor Josh Lerner, co-author of an acerbic 2004 book called “Innovation and its Discontents,” was a prominent critic of low-quality patents, which he said encourage more weak applications that clog the system and invite costly litigation — at the expense of legitimate creativity.

Schmid/Poston seem unaware of the criticisms of Jaffe and Lerner.


Here come the 'Twitter, we did it first' lawsuits , including:

And, as Wired points out, Twitter is well aware of this: leaked internal documents say that "We will be sued for patent infringement, repeatedly and often." Earlier this summer, the company hired its first general counsel right out of Google's legal ranks.

Tuesday, August 18, 2009

ED Mich invalidates Lilly Gemzar patent

Back in March 2007, IPBiz noted that generic drug companies were arguing Lilly could not have both a composition patent and a method of use patent on Gemzar ["The paragraph IV challengers argue that either the compound or method of use are obvious and can't be protected by a patent." ] Challenger Sun has prevailed at ED Michigan.

AP reported on August 18, 2009:

Eli Lilly and Co. said a court has granted a motion by generic drug maker Sun Pharmaceuticals for a partial summary judgment in the companies' years-long lawsuit over cancer treatment Gemzar [gemcitabine ]- invalidating Lilly's method-of-use patent which had been set to expire in 2013.

Prior IPBiz post:

Monday, August 17, 2009

Gold-plating, again

To the 271 blog, concerning Revisiting the Presumption of Validity

Your link to the Lichtman/Lemley work takes one to an SSRN abstract. Note that this Lichtman/Lemley work appeared in the Stanford Law Review in 2007: Rethinking Patent Law's Presumption of Validity, 60 Stanford Law Review 45 (2007), right around the time then-candidate Obama started talking about gold-plated patents. Professor Lemley, with co-authors, had already proposed gold-plated patents two years earlier in “What to do about bad patents?” [28 Regulation 10 (December 22, 2005)]. As discussed in Special Feature: On Aspects of Barack Obama’s Technology Policy, published in Intellectual Property Today in November 2008, the plan is neither new nor particularly useful. A patent applicant is free to seek out and identify to the USPTO all relevant prior art, thereby making sure that the application is as strong as applicant can make it.

See also

If it were true that --How then can the validity of any patent claim be credibly settled by anything other than inter partes contested adversarial proceedings? --, then we are wasting our time with examination of patent applications, and Einstein was merely twiddling at the Swiss patent office. In reality, worrying about preponderance, etc. is applying analog thinking to what is mostly a digital world. As to "where" technology advances, is it the US, or the rest of the world? And, what did the Germans do with the invention of the Wright Brothers?

The text --where he expands on previous studies -- perhaps requires expansion. Footnote 16 of Devlin's text alludes to the 2007 SLR paper of Lichtman/Lemley (but not the 2005 paper) and highlights the distinction of his 2008 paper: . In particular, the author believes that a heightened presumption of validity would, in itself, be insufficient to spur optimal use of the "gold-plated" review process. This Article argues that those electing elevated review should also benefit from an immunity from obscure prior art never realistically within their purview. In addition, such inventors should be charged with conducting a full search of the prior art, absent a compelling excuse such as financial hardship. Of the former, with the internet there is increasingly little "obscure" prior art not within a scientist's purview [and how to define such; would the Indian Journal of Chemistry in "In re '639 Litigation" qualify?]. Of the latter, if the applicant has to pay for the USPTO's search, why is there not sufficient practical motivation simply to let applicants who want to fare well later to do a search and prepare a 1449 form? As an overall question, is there any evidence that the differences in legal presumption impact a significant fraction of litigation outcomes? (analog thinking of academic lawyers in a mostly digital litigation world). As a footnote to Devlin's concern about obscure references, contemplate the obscure (ie, nonexistent) 1947 NYT article relied upon in various law review articles. [see WHAT THE STORY OF THE INVENTION OF THE TRANSISTOR TEACHES US

****Note also MaxDrei posted a comment about the advanced state of technology of German cars. One wonders "where" and "by whom" most cars are going to be sold in the next ten years. In China by Chinese?

**August 20 at 10am

As to exports, Germany is slightly ahead of China. Are people buying all those Chinese products because they are innovative? An argument that export level implies "innovative" is problematic.

Going back to the theme of the initial post [Of all the proposed reforms in patent law, one of the most controversial reform measures involves the level of deference courts should give to PTO decisions ], I re-state my query: is there any evidence that a significant number of litigation outcomes hinge on "level of deference" to the USPTO?

As to Devlin's paper, Devlin distinguished himself from Lemley et al (whose proposals went back to 2005) on the business of obscure references. Is there any evidence that a significant number of prosecution outcomes hinge on the presence of an obscure reference?

The main sticking point on patent reform since 2005 has been about the way damages are calculated. The talk about "patent quality" was mainly a pretext, and the Quillen/Webster assertions about patent grant rate (eg, 97%) were based on both legal and numerical misunderstandings.

On when to read the scientific literature [?]

from an interview with Irving Weissman:

Probably the best advice came from the late Donald Michie; he was both an immunologist and one of the founders of the field of artificial intelligence. He told me in 1962 that when he began a project, he quit reading the literature. He'd work at his project until it was done, and then he'd read the literature so he could write up what he was doing. What that meant to me was that the greatest pleasure is being the scientist who is doing the science, not looking over your shoulder to see if you can make it go faster.

UPDATE. One IPBiz reader wrote in:

I'm appalled that someone could say

Probably the best advice came from the late Donald Michie; he was both an immunologist and one of the founders of the field of artificial intelligence. He told me in 1962 that when he began a project, he quit reading the literature. He'd work at his project until it was done, and then he'd read the literature so he could write up what he was doing.

Now, obviously someone had been reading BEFORE he began a project..but to keep working without reading the literature means
* duplication of efforts (a waste of $$)
* a poor example for any grad student
* he could actually fail to recognize his own errors and go down wrong paths.

I did know one Berkeley prof who wrote and won a proposal, without reading the literature. After he won the proposal, he looked at literature, and found everything he had proposed to do, had already been done!!

IPBiz notes that in the world of patent law, infringement is strict liability; one cannot say I'm innocent because I didn't know about the patent. This gives an incentive to read patents, notwithstanding what Torvalds has said, Reading patents, and the scientific literature, helps avoid duplication of efforts,

"Where does inspiration become plagiarism?"

In a post on the latest Stephenie Meyer flap, Tim Martin asks the question Where does inspiration become plagiarism?
Mike Masnick at TechDirt would likely answer Never!

Martin also asks And most importantly, can the plagiarism of intellectual property ever be proved?

IPBiz, of course, notes that plagiarism and copyright infringement are two different matters.

Can infringement of copyright be proved? You bet. Happens all the time. George Harrison got fingered once. Ian Fleming had an interesting problem with Thunderball.

Can plagiarism be proved? If plagiarism is simply copying without attribution, then proving plagiarism amounts to showing copying has taken place and showing there is no attribution. In the Poshard Ph.D. thesis plagiarism, the students at the SIU Daily Egyptian laid out original and copied texts side by side. This is not rocket science. Poshard never said he didn't copy; he lapsed into a discussion of inadvertent plagiarism. Then, in following up, SIU copied, without attribution, its definition of plagiarism from Indiana University. The case is closed on SIU. Plagiarism proved, but it doesn't really matter, after all.

Martin talks about one of the more recent examples of plagiarism related to Harvard:

Kaavya Viswanathan’s How Opal Mehta Got Kissed, Got Wild and Got a Life – greeted with rapturous advances from its publishers in 2006 and swiftly signed for a film deal – turned out to contain passages with strong phrasal similarities to five separate writers, including chick-litters and Salman Rushdie.

Strong phrasal similarities? Readers of chick-lit spotted evidence of copying of text, showing that the readers were more familiar with the product than the editors.

Martin doesn't answer (or even ask)the obvious question: why didn't all those publishers spot the plagiarism on sight? Indeed, why didn't Poshard's thesis committee recognize that plagiarism on sight?

**In passing

Martin writes of Kaavya: she retreated into obscurity. There are many who would love to retreat into the "obscurity" of Harvard.

Acushnet gets new trial in Callaway infringement assertion

In a story on 17 August, AP brushed aside the impact of the 14 August CAFC decision in the Callaway case:

KeyBanc analyst Scott W. Hamann, who rates the stock "Buy," also said investors will find the ruling not as negative as initially thought. Hamann said the timing of a resolution has now been delayed, but that a trial will likely be expedited this time around.

"This litigation has little to no impact on our long-term fundamental investment thesis on Callaway," Hamann wrote in a client note.

The CAFC, in the decision of Friday, noted:

We conclude that Acushnet raised a genuine question of material fact concerning
anticipation, and we reverse the district court’s entry of summary judgment on that issue
and remand. As to obviousness, we affirm the district court’s determination that
Acushnet was not entitled to judgment as a matter of law that the asserted claims are
invalid for obviousness. But because the judgment on obviousness was based upon
irreconcilably inconsistent jury verdicts, we vacate the judgment of the district court and
remand for a new trial. Thus, for the reasons that follow, we affirm-in-part, reverse-in-
part, vacate-in-part, and remand for a new trial.

The products of Acushnet at issue:

Callaway sued Acushnet for patent infringement on February 9, 2006, in the
United States District Court for the District of Delaware. The accused products are the
Titleist Pro V1, Pro V1 , and Pro V1x golf balls, which Acushnet introduced to the
market in 2000, 2002, and 2003 respectively. The Pro V1 has a three-piece
construction consisting of a solid core, an ionomer-blend inner cover, and a
polyurethane outer cover. The Pro V1 (since discontinued) and Pro V1x balls are
“dual-core” balls having an inner core, an outer core, an ionomer inner cover, and a
polyurethane outer cover.

The concept of "incorporation by reference" is at issue:

Acushnet argued that Nesbitt [4,431,193] incorporates by
reference U.S. Patent No. 4,274,637 (“Molitor ’637”), which teaches both polyurethane
and ionomer blends as cover materials and, Acushnet maintains, inherently discloses
the necessary hardness limitations for those cover layers. Thus, according to Acushnet,
when properly viewed as a single reference, Nesbitt/Molitor anticipates the Sullivan
patents as a matter of law. In support of its anticipation argument, Acushnet also
prepared test golf balls combining the polyurethane outer cover described by Molitor
’637 with the core and ionomer-blend inner cover of Nesbitt and proffered
measurements of the resulting balls.


To incorporate matter by reference, a host document must contain language
“clearly identifying the subject matter which is incorporated and where it is to be found”;
a “mere reference to another application, or patent, or publication is not an incorporation
of anything therein . . . .” In re de Seversky, 474 F.2d 671, 674 (CCPA 1973). Put
differently, “the host document must identify with detailed particularity what specific
material it incorporates and clearly indicate where that material is found in the various
documents.” Adv. Display Sys., 212 F.3d at 1282. Nesbitt identifies with specificity
both what material is being incorporated by reference (foamable polymeric compositions
suitable for golf ball cover layers) and where it may be found (the Molitor patent).
Nesbitt col.3 ll.51–61. We have previously held that language nearly identical to that
used in Nesbitt (“[r]eference is made to”) can be sufficient to indicate to one of skill in
the art that the referenced material is fully incorporated in the host document. See In re
Voss, 557 F.2d 812, 815–16 (CCPA 1977); In re Hughes, 550 F.2d 1273, 1275–76
(CCPA 1977). Here, however, the district court held that Nesbitt satisfies the
requirements for incorporation only with regard to the ionomer resins disclosed in
Molitor, stating that “Molitor ’673 is mentioned in Nesbitt to identify examples of suitable
resins, preferably ionomer resins, and not to specifically incorporate polyurethane.”
Summary Judgment Order, 523 F. Supp. 2d at 396.


Accordingly, we hold that Nesbitt incorporates by reference the
potential cover layer materials described in Molitor ’637, including polyurethane and
ionomer resin blends.

The issue of inconsistent jury verdicts arose:

There is no dispute that the verdicts with respect to claim 5 of the ’293
patent (invalid) and claim 4 of that patent (not invalid) were inconsistent. A broader
independent claim cannot be nonobvious where a dependent claim stemming from that
independent claim is invalid for obviousness. See Ormco Corp. v. Align Tech., Inc., 498
F.3d 1307, 1319 (Fed. Cir. 2007).


Under Third Circuit law, in a case
where a reading of the verdicts that would solve the apparent inconsistency proves
impossible and the evidence might support either of the two inconsistent verdicts, “‘the
appropriate remedy is ordinarily, not simply to accept one verdict and dismiss the other,
but to order an entirely new trial.’” Mosely, 102 F.3d at 90

Callaway v. Acushnet

See also

Golf ball patent wars continue
[Zenon vs. US Filter]

On the DOWNSIDE of incorporation by reference, see the article
Incorporate with Care on the CAFC decision in
Cook Biotech v. Acell

As noted, the ’389 patent specification expressly incorporates by reference
the procedure for preparing intestinal submucosa from the ’508 patent.

“Incorporation by reference provides a method for integrating material from
various documents into a host document . . . by citing such material in a manner that
makes clear that the material is effectively part of the host document as if it were
explicitly contained therein.” Advanced Display Sys., Inc. v. Kent State Univ., 212 F.3d
1272, 1282 (Fed. Cir. 2000) (citations omitted). “To incorporate material by reference,
incorporates and clearly indicate where that material is found in the various documents.”
Id. (citations omitted). Whether and to what extent material has been incorporated by
reference into a host document is a question of law. Id.

the host document must identify with detailed particularity what specific material it

Who is Rick Clark?

In a nearly throw-away line at the end of a post on resume-writing, one had the text:

When a job opening gives you a chance to write a cover letter, write a good one! Take 15 or 20 minutes to research the employer online (visiting the company's own website and news sites, for starters) in order to say something company-specific in your cover letter. "I am interested in the job because it sounds interesting" doesn't cut it in this job market. Try, "Given your recent acquisition of Sun Microsystems, I'm guessing that the IT Integration Specialists you're seeking now should be folks who've been through data-integration projects in the past, as I have. At IBM, I ..." and so forth.

The writer, Liz Ryan, created an example wherein the (hypothetical) resume writer was a former IBM employee, now trying to find a job with the acquirer of Sun Microsystems.

Back in March 2009, a lot of people became former IBM employees, right around the time IBM's second patent application on outsourcing started to get discussed a lot. The IAM blog was talking about IBM reviewing the intellectual property of Sun Microsystems. [See IPBiz post titled
IAM on IBM's Kappos, not touching the political or patent pulse?

Since March 2009, Oracle put in a bid for Sun Microsystems [see Oracle Faces Scrutiny Over Sun Deal: Oracle Corp.'s proposed acquisition of Sun Microsystems Inc. is facing close antitrust scrutiny on both sides of the Atlantic, raising challenges for the company in closing the $7.4 billion deal within the timetable it gave investors. ] and David Kappos has become USPTO Director.

Further, if IAM was right about the "100 IBM lawyers", then Liz Ryan's (hypothetical) resume writer doesn't have much of a chance. Perhaps Liz should ask Rick Clark.

***See also

IBM to withdraw second patent application on outsourcing

and think about the point about Google-searching in the movie "Confessions of a Shopaholic", wherein Liz's advice is one notch above
what Rebecca Bloomwood was found doing.

and think about text from an essay by William R. Brody, College Goes Global:

a diploma from the "right" university is incomparably more valuable than just any old degree. Meritocracy be damned: pedigree counts.

**UPDATE 25 Feb 2011.

Two Myths About Resumes by Susan Adams

Sunday, August 16, 2009

Lerner says patent reform is "cold war"; IPBiz says "doughnuts!"

The Milwaukee Journal-Sentinel quoted "Innovation and Its Discontents" co-author Josh Lerner:

"I see it as a cold war between pharmaceuticals and the IT industry," said Josh Lerner, a professor at the Harvard Business School.

While the "cold war" analogy to the 1950's is a simple, if inapplicable, image, IPBiz goes back further. The first patent act was passed in 1790, and one year later one had a tax on whiskey, which led to the "whiskey rebellion" in 1794. The "whiskey tax" was a big guy/little guy issue, and the current patent reform debate has a significant big guy/little guy dimension, which Lerner chooses to overlook in viewing this as a battle among big guys. Wikipedia writes of the whiskey tax of 1791:

Congress designed the tax so smaller distillers would pay by the gallon, while larger distillers (who could produce in volume) could take advantage of a flat fee. The net result was to affect smaller producers more than larger ones. George Washington, the president at the time, was one such large producer of whiskey.

The details of the proposed patent reform favor the big guys. As to "first to file," larger companies have more resources than smaller ones to file numerous applications, which will be the winning strategy in "first to file." While some reformers point out that "little guys" lose most patent interferences, the reformers don't point out that little guys will basically lose all the time in "first to file." As to oppositions, larger companies have more resources to implement, and pursue, costly opposition proceedings, which do not foreclose later, and more costly, litigations. As to damages, current proposals of the IT industry would harm prospects of the little guy inventors.

As to "special interests," the IT industry, strongly pushing for the reform, supported current President Obama.

Underneath much of patent reform is the assertion that there is a serious patent quality issue, and that persistent patent applicants can get basically anything allowed if they keep trying. Although this bad behavior is attributed to "patent trolls," and the like, one of the greatest mis-directions of the patent reform debate is in ignoring the reality that the IT folks, otherwise pushing reform, are the major guilty parties in persistence in obtaining questionable patents. This could be termed the great doughnut hoax. [See
Demise of the (anti-)Doughnut campaign: a parable of patent reform?
Here, the larger produces of doughnuts want to make life difficult for the smaller producers; they don't want to eliminate the doughnut.

Elsewhere in the Journal Sentinel article, there was text getting to what the important issue in "patent reform" should be:

Hank Nothhaft, chief executive of chipmaker Tessera Technologies in San Jose, says the bill fails to address the core issues: how to better fund the U.S. Patent and Trademark Office, improve the quality of patents and shorten the amount of time it takes to get one.

"It's like fiddling while Rome is burning," said Nothhaft, a prominent advocate for reform.

Hans Sauer, associate general counsel at the Biotechnology Industry Organization, a trade group for pharmaceutical and environmental companies, shares the sentiment.

"Patent reform is curiously unconcerned with fixing the Patent Office and making sure it can issue quality patents in the shortest amount of time," Sauer said.

As Deming would say, if there is a problem in "examination of patents," one should expend resources to fix "examination of patents," not waste resources on "inspection of examination of patents" (eg, oppositions).


Fark on patent examiners at the patent office

Lots of picture variants and the lines on Fark included:

GeeGee LOL, nice touch on the one in his hand. I wonder what could be patented in that field...
Thank you for noticing that! I've been wanting to add a little steampunk to a shop for a while now. Thought the Patent Office might be a good choice.
I can't see what's the big deal about "colorizing" all this shiat. Why in the early days of TV all we'd have to do is put a nice piece of colored plastic over the round screen and - VOILA!! colored TV!

Photoshop as the 21st century L.H.O.O.Q. (French slang -- "Elle a chaud au cul." [referring to the postcard image of Mona Lisa with a moustache])


Collage culture and mashups

L.H.O.O.Q.--Internet-Related Derivative Works [Duchamp laboriously altered the postcard before adding the moustache]


***Update. As of August 20, 2009, no one commented on the detail of the "adjusted" photo on Fark. An enlargement is included:

One IPBiz reader "connected the dots" between the Fark picture and the reference to LHOOQ:

Poor clerk needs to find himself a woman. For his sake I hope elle a chaud au cul.

Saturday, August 15, 2009

In a Sikahema move, R. Ebert labels A. White a troll

In the movie review business, a contrarian can be labelled a “troll,” an Internet term for someone whose intent is to provoke others. In the patent law business, to some corporate infringers, a troll can include a patent holder, who does not make product, who sues an infringer, who does.

Likely, a side impact of the lawsuit is to "provoke" the accused infringer. [In passing, although Peter Detkin of Intel tried to take credit for coining the name "patent troll," that assertion is mere urban legend, as the use goes back to at least 1994 if not 1993. (see wikipedia on patent trolls AND below)]

The linked story describes how Roger Ebert, famous movie critic and graduate of the University of Illinois, labelled Armond White, another movie critic, a troll.

But wait, there was a Sikahema here. As described in the post Ebert Calls New York Press Critic Armond White a Troll:

Enter Ebert, who has become the de facto champion of criticism by being the most famous critic alive. He wrote a blog post titled “In Defense of Armond White” on Thursday night. In it Ebert explained how the Tomatometer isn’t a measure of quality (and he’s right), but that White shouldn’t be taken to task for having a passionate opinion or for upsetting the sanctity of the 100% score. However, White invoking the foreign film You, the Living prompted a “WTF?” from the 67-year-old writer. Ebert concluded the entry by writing, “Armond White was pretty much on the money.”

Well, until this morning when Ebert updated his post withdrawing his defense. Someone pointed out White’s voting history, causing Ebert to rethink his stance. Here’s a quote from the blog post, “It is baffling to me that a critic could praise Transformers 2 but not Synecdoche, NY. Or Death Race but not There Will be Blood. I am forced to conclude that White is, as charged, a troll. A smart and knowing one, but a troll. My defense of his specific review of “District 9″ still stands.”

Elsewhere in the post by Leins:

What’s worse is he rarely backs up these arguments with anything substantial, instead resorting to seemingly random art house comparisons and bitter insults.

Well, they ARE movies (not patents), and perhaps Iron Man speaks more to an “infantilized culture” than to anything substantial.

**Of Intel

Intel folks did NOT invent the term "patent troll"

The original patent troll returns[Paula N. Chavez of Intellectual Property Videos, LLC]

Detkin's false claim about "patent trolls" is not the only tricky business concerning Intel and patents.

From a comment to the USPTO on the rules on continuing application practice:

[list of numerous Intel continuing applications]

Separately, the Merritt article suggested that continuing application process might be
misused to wear down examiners, a suggestion that has appeared before. Merritt quoted
David Simon: With continuations, people are "basically refiling the same application
over and over again," said David Simon, chief patent counsel at Intel Corp. "If you are
not happy, you can just come back again, and the patent office can never be sure when
they are finished with a case. In some instances, examiners just give up." One notes that
Intel is no stranger to continuation practice, as the following (partial) list of patents
assigned to Intel illustrates:

See also

EE Times on Patent Reform