Wednesday, September 30, 2009

Rhode Island patent jury “lacked a grasp of the issues before it"; Microsoft gets win in Uniloc case

Bloomberg notes that U.S. District Judge William Smith in Providence, Rhode Island, on Sept. 29 vacated an April 2009 jury verdict of patent infringement of a Uniloc patent by Microsoft.

In his order, Judge Smith wrote that the jury “lacked a grasp of the issues before it and reached a finding without a legally sufficient basis.”

See also

***Nick Farrell at the Inquirer wrote:

Smith and Richardson are not the best of friends. During the first appeal his lawyers asked that a new judge be appointed to handle the case but that request was denied.
Richardson's company Uniloc had claimed the judgment was tainted because Judge Smith had employed an intern with ties to Microsoft to help review the evidence, although the appeals court found that did not have a material impact.
The appeals court didn't think the judge was biased because the intern had no financial stake in the outcome of the case.

In Australia, Microsoft is "the Vole."

The journal "Engineering with Computers" publishes plagiarized article, retracts

IPBiz has covered plagiarized texts which have appeared in science journals (eg,
British science paper on "sperm from stem cells" retracted!
). There's another one out, this time
involving plagiarism by Kamran Daneshjou, Iran's science minister, wherein the journal "Engineering with
Computers" published in 2009 a paper copied from a 2002 published article.

The journal Nature wrote: Anthony Doyle, publishing editor for the Springer journal Engineering with Computers, in which the paper was published, also told Nature that the journal will label it as "retracted" online, and include an erratum in the next issue drawing attention to the matter. "Springer takes plagiarism very seriously."

What one will not find in the Nature article is any discussion of "how" the plagiarized article came to
be published in the first place.

Facts presented in the Nature article suggest the copying is egregious:

"The introduction is copied practically word-for-word," comments Muhammad Sahimi, an Iranian materials scientist at the University of Southern California in Los Angeles, adding that so too are large parts of the methods, results and discussion section. "The English of the paper is not uniform," he notes, "Where they have copied from other papers, it reads smoothly. Where they have tried to add things themselves, it does not read as smoothly."

Similarly, almost all the figures, and their captions, are copied from the South Korean paper, although their order is sometimes different, he notes, adding that some are mirror images of those in the earlier paper.

How come nobody at the journal noticed this stuff BEFORE publishing?

The plagiarized article is Daneshjou, K. & Shahravi, M. Eng. Comput. 25, 191-206 (2009).

The copied, source article is Lee, W., Lee, H-J. & Shin, H. J. Phys. D: Appl. Phys. 35, 2676–2686 (2002)..

Tuesday, September 29, 2009

Should bloggers be Teflon-coated?

In a post titled Don’t Like a Blog, Sue It on the ipeg blog, one has the text:

Bloggers should be given almost unlimited freedom of speech. Only in the rarest of circumstances would we agree to limitations (have problems finding an example).

The ipeg blog refers to Joff Wild at IAM, who wrote:

Instinctively, I believe that there has to be a very good reason indeed to over-rule someone's right to freedom of speech. What complicates things, though, in this case is the Cisco factor. Freedom of speech is important, but so is disclosure. Readers of the Troll Tracker blog should have been told that Frenkel was a Cisco employee, especially as others at the company knew what he was doing and Cisco itself has a very strong anti-troll agenda. There is no reason to believe that Frenkel did anythng other than act on his own initiative, and you can see why he would have wanted to remain anonymous; but I can also see why someone who had been frequently criticised on the blog with, as he felt, no right of reply, would see red once the truth emerged.

IPBiz agrees with Joff that Rick Frenkel had a conflict of interest, which should have been disclosed. IPBiz further believes that Mallun Yen of Cisco was aware of what Frenkel is doing.

Neither the ipeg nor IAM posts get into the issue of the possible falsity of what Frenkel wrote. Bloggers are not different from anyone else, and should not get a pass on falsity. This is especially true for anonymous bloggers. Thus, IPBiz rejects the general proposition: bloggers should be given almost unlimited freedom of speech. Of course, when one thinks of Mike Masnick...

See also the IPBIz post
Hosteny's "The Cowardice of Anonymous Bloggers"
on an article by Joe Hosteny in IPT.

**The comment below from ipeg materialized on 15 Nov 09. IPBiz believes bloggers should not get a pass on re-publishing known falsities.

New Jersey's patent bank website

On 25 Sept 09, a collaboration among New Jersey's Office of Information Technology, the Commission on Higher Education, the Commission on Science & Technology and the Governor’s Office of Economic Growth launched a website on patents,
New Jersey Patent Bank [ ], which directs on to patentbank.

The website notes:

The New Jersey Patent Bank is a free and searchable web portal that allows innovators to post their New Jersey-based patents. The Patent Bank is designed to encourage the transfer of technology among the state’s 50 institutions of higher education, New Jersey companies and individuals.

Whether you are an entrepreneur looking to market your intellectual property or an organization that wants to collaborate with the university community on a new technology, the NJ Patent Bank can help you.

but is otherwise fairly sparse.

Of more interest is a story concerning Cuban entities obtaining US patents through the PCT process. US 7,556,726 is mentioned. The article notes: PTO records show the firm of Hoffmann & Baron in Syosset, N.Y., handled a large number of the Cuban cases. which law firm was involved in Festo.

On the flip side, the article notes: President Clinton amended the embargo in 1995 to permit U.S. companies for the first time since 1962 to pay the costs of registering patents and trademarks in Cuba.

**Separately, for New Jersey news

Monday, September 28, 2009

Patenting the matchbook

On Sept. 27, 2009, CBS Sunday Morning presented "The first matchbook patent " as its Almanac feature. Showing a copy of the patent, CBS mentioned the name of the "inventor" Joshua Pusey but omitted discussion of the rest of the story, which unfolded in the 1890's. Pusey was a attorney and shortly after Pusey's patent there was another patent, by one Charles Bowman. There was a patent fight, and Pusey later sold his patent rights (for $4000) to the Diamond Match Trust, and became an attorney for them. Bowman's company flopped. describes the story in the following way: Joshua Pusey invented the matchbook, he called his matchbook matches "Flexibles". Pusey's patent was unsuccessfully challenged by the Diamond Match Company who had invented a similar matchbook (their striker was on the outside, Pusey's was on the inside). His patent was later purchased by the Diamond Match Company in 1896 for $4,000 and a job offer.

Part of Pusey's story sounds quite familiar: [Pusey] tried to interest people in his invention, but for eight years, no one seemed to care. Then in 1897, Pusey got his break. The Mendelsohn Opera Company wanted a special way to advertise their New York opening. They used books of paper matches with their name printed on them.

Another part of the story (concerning a different patent) is ALSO familiar (as to, for example, AIDS drugs): United States President William H. Taft publicly asked Diamond Match to release their patent for the good of mankind. They did on January 28, 1911

The Sept. 27 CBS show also had a story on the "right of publicity" of dead people, which does not seem to show up on their website. Yes, they had a clip of Celine Dion with Elvis. Yes, Graceland was mentioned (as the #2 historic residence visited per year) although it was described as modest compared to present day standards for entertainer residences. More interesting, and of relevance to the Princeton area, the story emphasized the high economic value of rights in "Albert Einstein," which are controlled by the Hebrew University of Jerusalem. IPBiz has covered some of the recent spats over the use of the Einstein name. The greater Princeton area has signs pushing "Einstein's Alley."

The Sept. 27 began with the cover story Ford — A Better Idea?, which mentioned that Ford had mortgaged "the blue oval" (presumably meaning its loans were secured via trademark rights). Although one might have thought this was an upbeat story, Ford came off merely as "the least bad of the worst" of the Big Three.

Tweets of exit polling results in German 9/27 election prematurely released?

AFP reports: It is illegal in Germany to publish exit polls before the cut-off point for voting but a number of tweets claiming to show the scores for the main parties surfaced one hour before polling stations closed.

The exit polls of the Twitter tweets gave numbers comparable to the first official exit polls. But what would be the case if the tweets were mis-information?

Angela Merkel's group won.

See also

Netlist files infringement suit against Inphi over US 7,532,537

Inphi Corporation issued a press release responding to a press release by Netlist asserting that Inphi’s newly developed iMB ™ technology infringes on Netlist’s U.S. Patent No. 7,532,537. Inphi described this as a nuisance lawsuit, which (at the time) was filed but not served.

The patent in question is titled Memory module with a circuit providing load isolation and memory domain translation and the first inventor is Jeffrey C. Solomon.

The first claim is

A memory module comprising: a plurality of memory devices, each memory device having a corresponding load; and a circuit electrically coupled to the plurality of memory devices and configured to be electrically coupled to a memory controller of a computer system, the circuit selectively isolating one or more of the loads of the memory devices from the computer system, the circuit comprising logic which translates between a system memory domain of the computer system and a physical memory domain of the memory module, wherein the system memory domain is compatible with a first number of chip selects, and the physical memory domain is compatible with a second number of chip selects equal to twice the first number of chip selects.

and the application was prosecuted by Knobbe.

Sunday, September 27, 2009

The Holder plagiarism case: from 1998 to 2009

In 2005, the Florida state Judicial Qualifications Commission cleared Hillsborough Circuit Judge Gregory Holder of plagiarism charges. The issue was one of judicial fitness in view of a charge that Holder, an Air Force reservist in 1998, copied portions of a research paper by a fellow reservist, E. David Hoard, and submitting it for a course at MacDill Air Force Base in 1998. There were suggestions that the plagiarism charge was pretextual, to muddy the waters as to whistle-blowing actions by Holder, which impacted other circuit judges.

The evidentiary issue is captured in a quote from Holder's attorney: "Not one witness has sat on the witness stand and told you that the purported Holder paper was the one that was received by the Air Force in 1998,"

The Holder matter recently came up in the news: The Florida Supreme Court has ordered the state to reimburse $70,000 to Hillsborough Circuit Judge Gregory Holder for his expenses in successfully defending himself against plagiarism charges.

Webcam at Denali National Park

The webcam at Denali National Park, which offers a view of Mt. McKinley under appropriate conditions, runs on solar power and is basically down for the winter. However, there are some "signs of the times" which can be seen without a webcam, as discussed further below.

From the website:

This web camera documents visibility conditions in Denali National Park & Preserve during the summer months as part of the NPS air quality monitoring program. The camera has been temporarily relocated to Wonder Lake while a new visitor center is being constructed at the former camera location. The webcam now runs on solar power.

Air quality in Denali is usually excellent, although small amounts of pollution are measured in the park each year. Contaminant concentrations in Denali show a strong seasonal pattern, with a peak in the late winter and spring. The peak coincides with intercontinental transport of pollutants primarily from industrial sources, and can be seen throughout interior Alaska. In the summer, it is not uncommon for smoke from naturally-occurring wildland fires to obscure the view, but the most common reason the Alaska Range cannot be seen from Wonder Lake is cloudy weather.

As of 9/27, the last picture [of Mount McKinley] on the website is from 23 Sept 09. If you were wondering, Mount St. Elias (18,008'), is the second highest peak in the United States.

In the current economy, as people leave such sunny states as California and Florida (the latter seeing its first decline in population since 1946), Alaska, up 6% in the last measure, is the fast growing state.

As a different "sign of the times," LBE recently heard on CBS-AM radio (880 in New York City) an ad directed to individuals to buy California state bonds. The ad pointed out that the bonds were exempt from federal and California tax, but was silent on New York (or New Jersey) tax. Maybe New Yorkers will buy some California CIRM bonds!

For those that don't remember, from AP on 14 July 09, Moody's downgraded California bonds from A2 to Baa1, which is near junk status.

Meanwhile, californiastemcellreport reported an agreement between CIRM and Germany: The agreement is intended to make it easier for researchers in California and Germany to obtain joint funding. As with the other agreements, no California funds are permitted to be spent outside of the state. Oh yes, and buy bonds.

**Of webcams

Alaska Webcams , including Dutch Harbor - Aleutian Islands, view from hill looking northwest, McNeil River - Southwestern Alaska, watch grizzlies on the Bearcam!, North Pole - Interior Alaska, the "Red Squirrel Cam", views around Sitka, Wasilla - Southcentral Alaska, view of Lake Lucille, Musk Ox farm, and Reindeer farm.

Webcams of the Department of the Interior

web cam links

Friday, September 25, 2009

Customer printing a secured document (such as a stamp or an airline ticket)

A note to Quillen and Webster from the CAFC in KARA TECHNOLOGY v. STAMPS.COM :

The claims, not specification embodiments, define the scope of patent protection.
The patentee is entitled to the full scope of his claims, and we will not limit him to his
preferred embodiment or import a limitation from the specification into the claims. See Phillips, 415 F.3d at 1323.

On NDA's:

The district court granted summary judgment dismissing Kara’s claim for breach
of the NDA after concluding that the claim was barred by the four-year statute of
limitations under the applicable state law and, as an alternative grounds for dismissal,
that the NDA did not protect Kara’s trade secrets because Kara had publicly disclosed
them. Kara alleges two separate breaches of the NDA. The first is based on’s admitted note-taking during a May 15, 2000 business meeting, in
violation of Paragraph 5 of the NDA. The second is based on’s alleged
use of Kara’s confidential information to develop’s PC-based postage
products, in violation of Paragraph 3 of the NDA. The district court focused solely on
the note-taking and subsequent failure of to destroy the notes, stating that
the October 2004 complaint clearly fell outside the four-year statute of limitations and
thus there was no issue of material fact as to the breach of contract claim.

As stated above, Kara alleges two separate breaches of the NDA. The first
occurred when at least two employees took notes at a meeting between
the parties on May 15, 2000. There is no real dispute that Kara knew or should have
known of this breach at the time it occurred, as the meeting was attended by several of
Kara’s employees, including its President and Chief Operating Officer. Kara did not file
its complaint until October 22, 2004, and therefore any claim based on this breach is
barred by Texas’s four-year statute of limitations. While we agree with the district court
that this note-taking breach is barred by the statute of limitations, Kara alleged a second
breach that was not addressed in the district court’s summary judgment order—that misused the information it learned at the May 15, 2000 meeting to develop
its PC-based postage products, which allowed consumers to print stamps from home.

Thursday, September 24, 2009

WhoGlue sues FaceBook for patent infringement

The first claim of US 7,246,164 states:

A method for managing the sharing of personal information among a plurality of users of an online relationship management system, the method comprising the steps of:

receiving, from a first user of said plurality of users, an identification of a second user of said plurality of users and an assignment of a second user information access right level for said second user and

receiving, from the second user, an identification of the first user; associating said second user with said first user responsive to receipt of the identification of said second user from said first user, the identification of said first user from said second user, and the second user information access right level from said first user;

receiving, from said first user, first information having a first information access right after associating said second user with said first user, wherein said first information is to be entered into at least one input template of said online relationship management system to provide first structured information automatically generated from at least one output template based on said first information;

transmitting, to said second user, said first information if said second user has provided the first user identification and the first information access right is consistent with the second user information access right level; receiving, from said first user, second information having a second information access right, wherein said second information is to be entered into said at least one input template of said online relationship management system; and

not allowing transmission, to said second user, of said second information if the second user information access right level is inconsistent with said second information access right.

The Baltimore Sun [ Gus G. Sentementes ] reported on 24 Sept 09 that WhoGlue had filed suit against Facebook on 21 Sept 09 for infringement of the '164 patent: "WhoGlue Inc., a Canton [MD] company with fewer than five employees, filed the lawsuit Monday in the U.S. District Court for Delaware, where Facebook is incorporated." WhoGlue retained Ray Niro of Chicago, who works for a firm that handles infringement cases on a contingency basis, and who was peripherally related to the recently settled "patent troll tracker" case in Texas.

The article suggests that WhoGlue is NOT a troll with Jason Hardebeck of WhoGlue stating: "We didn't patent something that we thought would be an opportunity to license" to other companies, he said. "We patented it because it was core to our business." Hardebeck is NOT an inventor of the '164 patent, and all inventor addresses are in California.

The Baltimore Sun presents text from Max Oppenheimer of the University of Baltimore:

For a company to survive, it usually needs either deep pockets or a law firm willing to take up the fight on a contingency-fee basis, Oppenheimer said.

"It's not a question of whether the patent is valid or not," Oppenheimer said. "It is: Can you stay in the game long enough to get the court to rule on it?"

Since WhoGlue holds the patent and has filed an infringement claim, the defendant - Facebook - now must show that the U.S. Patent and Trademark Office erred in issuing the patent, Oppenheimer explained.

"When a patent is issued, it has a presumption of validity," Oppenheimer said. "So the burden is on the defendant to show the agency made a mistake. ... The system is tilted in favor of the patent owner. [The courts] start with the presumption that the government did its job properly."

IPBiz notes that an infringement defendant can present invalidity AND/OR non-infringement AND/OR unenforceability defenses, so that it is incorrect to say Facebook "must" show the USPTO erred in issuing the patent.

As a footnote to the story, the WhoGlue patent was on an Ocean Tomo auction and did NOT sell. The Sun reported:

After WhoGlue was awarded the patent two years ago, it tried to sell it on the open market a year later. It listed U.S. Patent No. 7,246, 164 B2 - "Distributed Personal Relationship Information Management System and Methods" - for sale on June 26 with Ocean Tomo, an online auction site for intellectual property rights. But the patent didn't sell.

One might question whether trying to auction the patent is consistent with the text: "We patented it because it was core to our business.

"Troll tracker case" settles

Joe Mullin reported that the Frenkel/Albritton defamation case settled before jury deliberations. The key factor was a ruling by the judge that the jurors would have to find "actual malice" on the part of Cisco/Frenkel, even though Albritton was not found to be a public figure. The judge found Frenkel's writing on "patent troll tracker" to be about an issue of public concern, the workings of the clerk at ED Texas.

In passing, the holding of New York Times v. Sullivan, 376 U.S. 254 was: A State cannot, under the First and Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official conduct unless he proves "actual malice" -- that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.

Note also from findlaw: Where speech is directed at a person who is neither a public official nor a public figure, the case of Gertz v. Robert Welsh, Inc. (1974) and subsequent decisions have set forth different standards. The Court in Gertz determined that the actual malice standard established in New York Times v. Sullivan should not apply where speech concerns a private person.

"Plagiarism and the College Culture": a microcosm of the patent reform debate?

A review of the book by My Word!: Plagiarism and College Culture by Sara D. Blum suggests that the plagiarism debate on university campuses is quite similar to the patent debate:

However, Blum suggests, the real problem of academic dishonesty arises primarily from a lack of communication between two distinct cultures within the university setting. On one hand, professors and administrators regard plagiarism as a serious academic crime, an ethical transgression, even a sin against an ethos of individualism and originality. Students, on the other hand, revel in sharing, in multiplicity, in accomplishment at any cost. Although this book is unlikely to reassure readers who hope that increasing rates of plagiarism can be reversed with strongly worded warnings on the first day of class, My Word! opens a dialogue between professors and their students that may lead to true mutual comprehension and serve as the basis for an alignment between student practices and their professors' expectations.

In the patent debate, pharma people and small inventors (among others) regard patent infringement as a serious matter, whereas IT people view technology more in terms of sharing, with patents some sort of annoyance. To the extent the analogy is valid, the history of patent reform in the years 2005-2009 suggests that there will be no "alignment between student practices and their professors' expectations." HOWEVER, unlike the patent reform debate, wherein there are economic differences underlying the positions, inspection of the behavior of some professors (eg, Laurence Tribe) shows that they also plagiarize, and thus that the "do as I say, not as I do" position could be undermined.

Further, as to plagiarism, recall the words of Mike Masnick:

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

**The Blum book begins with a quote from Thomas Jefferson on the ploughman and the professor.

Wednesday, September 23, 2009

Is the Karma an innovation?

One might file the following under "what were they thinking"?

Fisker Automotive, a California manufacturer of luxury electric vehicles, will receive more than $500 million in federal loans to develop a plug-in hybrid sports car with a sticker price of nearly $90,000 and a new plug-in hybrid vehicle to be built in the United States.

The Energy Department said Tuesday it would lend $528.7 million to Fisker from a $25 billion fund to develop fuel-efficient vehicles, making the Irvine, Calif., startup the fourth automaker to receive loans from the program. The government awarded $8 billion in loans to Ford Motor Co., Nissan Motor Co. and Tesla Motors Inc. in June to develop environmentally friendly cars.

"This investment will create thousands of new American jobs and is another critical step in making sure we are positioned to compete for the clean energy jobs of the future," said Energy Secretary Steven Chu. He estimated it would save or create about 5,000 jobs.


The remaining $359.36 million in loans will be directed to Fisker's Project Nina, an effort by the automaker to develop a lower-cost, higher-volume plug-in hybrid car by late 2012. Fisker has said the next-generation plug-in will sell for $39,900 and be built in the United States with an annual production of about 100,000 vehicles.


Fisker has raised tens of millions of dollars from top venture capital firms such as Palo Alto Investors and Kleiner Perkins Caufield & Byers, of which former Vice President Al Gore is a partner. The company has pre-sold more than 1,500 Karmas and recruited a network of 45 dealers.

The company has promoted the Karma as an example of green mobility. The vehicle's average fuel economy can exceed 100 miles per gallon and company officials say the Karma could use as little as one tank of gas per year if driven fewer than 50 miles per day and fully charged overnight.

As to technology advance:

One year after the debut of the Fisker Karma concept, the company revealed the 2011 Fisker Karma S. It's based on the same plug-in hybrid technology and Q-Drive combination of gasoline engine and dual electric motors powered by lithium-ion batteries.

***from howstuffworks:

So how does the all-electric Tesla Roadster manage to pack 6,831 Li-ion batteries under its hood without risking a major blow-up? The Tesla's energy storage system that propels the car is equipped with a cooling system, which ensures the batteries don't overheat. It also regulates the speed of the flow of ions to keep them from re-charging or draining too quickly.

Since car companies and scientists realize the broad potential of Li-ion batteries, they have poured time and money into finding ways to reduce any safety hazards. For instance, nanotechnology, the study of atoms and nanostructures, may be able to prevent those dangerous explosions. New nanomaterials, such as nanophosphate, aren't prone to shorting out like graphite, the traditional Li-ion electrolyte [source: Peter].

IPBiz notes that graphite is NOT an electrolyte, in Li-ion batteries or in anything else. It is an electronic conductor.

Howstuffworks also writes:

There's also an issue with the battery life. Like the AA batteries that you put into your TV remote control, Li-ion batteries eventually die. Even if you aren't using them, they'll begin to degrade as soon as they're made. You can recharge them, but only a limited amount of times. It's like trying to fill up a pitcher of water that has a tiny hole that grows bigger and bigger with each use.

We measure battery longevity in cycle lives, or the number of times that you can run it down, charge it up and use it again. With Li-ion batteries, starting from a 100 percent fully-recharged battery will give you a longer individual cycle life, but will reduce the total number of cycles you'll get from it. For that reason, the Tesla Roadster doesn't allow you to re-charge more than 95 percent of the original power or let it drain down to less than 2 percent [source: Eberhard and Straubel]. Also, the company projects the battery pack to last 100,000 miles, or five years. At that point, you would have to replace the battery.

As with the safety issue, researchers are looking for a longer-lasting Lithium alternative. And once again, nanotechnology seems to be leading the pack of potential solutions. One company, Altair Nanotechnologies announced in 2006 that it had found a new material that would far outlast Li-ion batteries and recharge faster for the same price, called lithium titanate [source: Bullis]. Canadian car company Phoenix Motorcars is using lithium titanate batteries in its line of electric cars that have a 100-plus mile range.

Tuesday, September 22, 2009

To all the "next big things" that weren't

Within a post titled Kappos on the US Economy, Music to My Ears at IPWatchDog, one has the text:

On March 30, 2009, I wrote A Patent Proposal for Green Technology, suggesting:

On July 28, 1987, President Ronald Reagan set forth what became known as the “11-point superconductivity initiative” in a speech to the Federal Conference on Commercial Applications of Superconductivity. As a part of President Reagan’s superconductivity initiative he proposed amendments to the antitrust laws to make it easier for companies to collaborate with respect to basic research, he requested changes to the Freedom of Information Act to allow national laboratories to keep basic scientific research secret and he required the United States Patent Office to proceed with all due speed on applications relating to superconductivity technologies. In this speech President Reagan explained: “We need to strengthen patent laws to increase protection for manufacturing processes and speed up the patent process so that it can keep pace with the fast-paced world of high technology.” This caused the US Patent Office to allow Petitions to Make Special to be filed along with applications relating to superconductivity inventions so as to accelerate the examination process. See MPEP 708.02. This is exactly what we need to do today for green technologies. While I am not foolish enough to suspect much of Reagan’s agenda will be adopted by President Obama, this is one lesson President Obama should learn from. Expediting patent applications on green innovations will help the economy, make the world more environmentally friendly and improve US national security.

Given the fate of 1-2-3 superconductors in the time since 1987, any argument based on anything related to the "commercial applications of superconductivity" is like arguing for hydrogen-filled zeppelins after the Hindenburg.

As pointed out in the IPBiz post
Flashback on peer review
, AT THE TIME these superconductors were big in the press (say 1987), the NYT observed
Patent lawyers were chaperoning the research teams like pilot fish surrounding sharks. But this was based on perception, not reality. LBE can remember the photo op of President Reagan with Al Schriescheim (once of Exxon) pouring liquid nitrogen out of a Dewar. But did the world change? Was there an innovation? No. Were there inventions? Yes. Did the superconductivity inventions need to be expedited? No. Did the later buckyball inventions need to be expedited? No.

Do we need to expedite patent applications on green technologies? It's absolutely true that we do not need a huge backlog of patent applications, wherein some applications languish for more than three years without an Office Action on the merits. Does the experience with superconductors argue for expedited patent applications? No, it argues against them. There was nothing there that was going to change the world, as has become evident in the following twenty plus years. Does the popular press "know" what the "next big thing" is? No. The experience with superconductors, buckyballs, superluminal propagation, etc. show they do not. Do big companies (like IBM) know what the next big thing is? No. The experience of Chester Carlson, xerography, and IBM vividly illustrates that big companies will ignore disruptive innovations, even when placed right in front of them. The USPTO should make the patenting process facilely available to the guy who really has the "next big thing." Just getting the system to work on a reasonable time scale might be enough. Expediting applications claiming 20,000 gallons of biofuel per (acre-year) probably is not needed.

See also

IP in the movie "Duplicity"
: one recalls the real-world stories of 1-2-3 superconductors and buckyballs, wherein true discoveries had little or no value, and did not represent innovations, despite many popular press stories to the contrary, and one large US company buying up Chu's patent rights on 1-2-3 superconductors. [Nobody seems to hold the patent in a buckyball, and, at this point, no one cares.]

from , on a significant message from the saga of 1-2-3 superconductors as to "special handling":

Chu had pleaded with the journal for special handling, insisting on secrecy, fearful that the editors would leak. ''Which we now know they did - like a sieve,'' says Arthur J. Freeman, a theoretical physicist at Northwestern University. ''Only they leaked ytterbium instead of yttrium. I had heard for weeks that the material was ytterbium, and now I know where it came from.''

There was little doubt that Chu's "ytterbium" idea was stolen through leaks at PRL. Chu however had placed an incorrect idea in the PRL drafts, so the thieves got worthless chaff, but had the audacity to complain about it.

Also in the NYT article:

As news of the yttrium-ytterbium affair spread through the scientific world, the journal's editors denied vehemently that they had divulged the secret. They privately expressed anger at Chu, suspecting an intentional deception on his part to mislead competing researchers. (Chu's friends share the suspicion. They have been retelling the joke about the king who leaves to his favorite knight the key to his queen's chastity belt, only to hear the knight gallop up behind him, shouting angrily, ''It's the wrong key.'')

**Also on the topic of leaks

A D.C. whodunit: Who leaked and why? has text:

The simplest theory — and one most administration officials Monday were endorsing — is that a military or civilian Pentagon official who supports McChrystal’s policy put it out in an attempt to pressure Obama to follow McChrystal’s suggestion and increase troop levels in Afghanistan.

But not everyone in Washington is a believer in Occam’s razor, so all manner of other theories flourished.
There are believers in the reverse leak, in which the leak itself is meant to damage McChrystal’s position by inducing White House anger at the general. There’s the fake leak, in which the White House may have been trying to back itself into a corner. A former government official with ties to the Pentagon said the talk in the building was that a senior military official had given it to the reporter for his book on the Obama White House — not realizing it could end up in print sooner.


But some said all this speculation may be overthinking the matter. Many people in Washington, after all, are motivated by personal vanities as much as by policy convictions.
“It’s most likely someone who has or is cultivating a personal relationship with Bob Woodward and positioning himself to look good in Woodward’s next book,” said Matt Bennett, vice president at the Democratic-leaning think tank Third Way, echoing the views of many inside government and out.

**UPDATE. Biofuels Digest in Nov. 09 which includes:

As we head into the last day of voting for the 50 Hottest Companies in Bioenergy, here are a few that have been making conspicuous progress, if not always conspicuous noise.

University of Virginia to change definition of plagiarism?

Following the ghastly treatment of Alison Routman during the "Semester at Sea" program, the University of Virginia is working on a new definition of plagiarism.

The Cavalier Daily noted:

The present definition begins with, “Plagiarism is using someone’s ideas or work without proper or complete acknowledgment.”

To emphasize the question of whether the writer is attempting to pass someone else’s ideas off as his own, Litchford proposed the sentence:

“Plagiarism is attempting to represent someone else’s ideas or work as your own original ideas or work.”

This change seems to be motivated, at least in part, by the Routman incident. [Although there were problems with the way UVa handled the Routman incident that go beyond a mere definition of plagiarism.]

JJ Litchford, vice chair for community relations noted: “To center only on citation is grossly ineffective and insufficient to deal with plagiarism.”

The PROBLEM with this approach is that it goes from an "objective" criterion (citation: yes or no?) to a "subjective" criterion: the presence of "intent" inherent in the word "attempting." The Poshard case at SIU illustrated the concept of "inadvertent" plagiarism and why that is likely not a good way to analyze plagiarism. Few people are going to say: yes, I attempted to represent someone else's work as my own. Poshard certainly did not. Verbatim copying of text not generally known without citation is plagiarism. End of story. The punishment should fit the circumstances.

The Cavalier article also noted: Litchford also chose to add a sentence about paraphrasing in the new definition of plagiarism.

The UVirginia approach is like putting a thumb in the hole in the leaking dyke of the "cut and paste" culture. When the Harvard Business Review has an article saying "plagiarize with pride," the train has left the station.

On the Routman incident:

Allison Routman, Frank Zappa, and plagiarism

Routman's copied lines from wikipedia: enough to walk the plank?

to the Cavalier-->

The PROBLEM with this approach is that it goes from an "objective" criterion (citation: yes or no?) to a "subjective" criterion: the presence of "intent" inherent in the word "attempting." The Poshard case at SIU illustrated the concept of "inadvertent" plagiarism and why analysis of intent is likely not a good way to analyze plagiarism. Few people are going to say: yes, I attempted to represent someone else's work as my own. Poshard certainly did not. Verbatim copying of text not generally known without citation is plagiarism. End of story. The presence of copying is something that is self-evident. After copying is established, the punishment should fit the circumstances.


UPDATE. to the Cavalier-->

My first question would be "what intent clause"? The text above notes: --The present definition begins with, “Plagiarism is using someone’s ideas or work without proper or complete acknowledgment.” -- Is there something about intent that follows? Generally, plagiarism is copying without attribution, period. See the definition from Indiana University, below. In the SIU matter with Poshard, there was no denial that the copying was plagiarism, but there was a re-labeling to create a category of inadvertent plagiarism. Inadvertent plagiarism is still plagiarism.

In the world of copyright (which is NOT co-extensive with plagiarism), intent is NOT an element. Access is an element, but can be inferred. Why do you think intent is an element of plagiarism? The presence of copying is something that is self-evident. Once the copying is demonstrated, then you analyze the circumstances. UVa failed miserably in handling the Routman affair. That is what UVa needs to look into.

From Indiana University: Plagiarism is defined as presenting someone else’s work, including the work of other
students, as one’s own. Any ideas or materials taken from another source for either
written or oral use must be fully acknowledged, unless the information is common

UPDATE. to the Cavalier-->

I ask the question again: what intent clause? The UVa honor code currently defines plagiarism: --Plagiarism is using someone else's ideas or work without proper or complete acknowledgment. Plagiarism encompasses many things, and is by far the most common manifestation of academic fraud. For example, copying a passage straight from a book into a paper without quoting or explicitly citing the source is blatant plagiarism. In addition, completely rewording someone else's work or ideas and using it as one's own is also plagiarism. It is very important that students properly acknowledge all ideas, work and even distinctive wording that are not their own.-- This is not significantly different from the University of Indiana definition and doesn't mention intent. Changing the definition of plagiarism, in the manner reported by the Cavalier, doesn't address intent AND separately begins a departure from the definition of other schools, such as that of Indiana, with no identified advantage. Separately, there is no such thing as a federal "crime" of plagiarism; there is copyright infringement, which does not require a showing of intent. Intent is irrelevant to a showing of copying, whether as plagiarism or as copyright infringement. Copying is something that one DOES know when one sees it. Certainly, the circumstances would dictate the form of penalty. If you see "degrees" of threat to the UVa community, then you should change the form of penalty ["single sanction"}, not the definition of plagiarism. What Alison Routman did in her paper did not constitute a threat to the UVa community, and, under the guidelines given to her for the paper, may not have constituted plagiarism at all. If you think the coverage of the Routman affair was inaccurate, why don't you present some facts, instead of a veiled allusion (illusion?)?

UPDATE. to the Cavalier-->

Although Sam Leven spends much time saying intent IS an element of an Honor Offense, his conclusion on intent is: "Because the Intent Clause is ambiguous in many ways, however, adding intent to the definition of plagiarism would solve multiple problems." The CURRENT UVa definition of plagiarism does NOT include an element of intent. In an upcoming paper on academic plagiarism, researchers survey definitions of plagiarism at universities on four continents, and find that NONE include intent as an element of plagiarism. In dealing with the PUNISHMENT phase AFTER plagiarism is found, intent IS a factor. Because UVa chooses to have only one punishment (expulsion) for an Honor Code violation, UVa would tinker with the definition of the "crime." Apart from the general silliness of this approach against a background where other universities have a fairly uniform definition of plagiarism, the proposed UVa change would foster the concept of "inadvertent plagiarism" as exemplified in the Poshard matter at SIU.

As to the outcome of the Routman case, however ambiguous UVa's Intent Clause may be, Routman was found guilty, meaning there was a finding of intent. Measured against the facts of the Routman case, this finding is difficult to understand, and should cause UVa people concern. Nevertheless, the "Alice in Wonderland" approach of changing the definition of plagiarism is not the answer. [from the book: ‘When I use a word,’ Humpty Dumpty said, in a rather scornful tone, ‘it means just what I choose it to mean, neither more nor less.’]

As to the "copied" lines of Routman, see also

**Update. 30 Sept 09-->

As to Mr. Weinberger, one might ask how his recollection of the Honor Code applies to the facts of the Routman matter. ["that the actor knew, or should have known, that the Act in question was or could have been considered Lying, Cheating, or Stealing. Ignorance of the scope of the Honor System shall not be considered a defense." ] Alison didn't come forward on the ship because she didn't think what she had done was Lying, Cheating, or Stealing (or something else bad). But she was made to walk the plank, with the UVa folks on the ship punishing her for something that does not appear to be a deliberate dishonest act, or even plagiarism as understood by people outside of UVa. Plagiarism is copying without attribution, as defined by universities on at least four continents, but does not extend to fragmentary copying of well-known facts. If the Honor Code was well applied in the Routman matter, one suspects that UVa would not be working to adjust its particular definition of plagiarism. As to "not dishonest unless the student intended to commit it, " this theme was well-worked in the Poshard matter. As to " density makes one wonder about your sincerity, " if Mr. Weinberger's arguments were better grounded, perhaps he wouldn't feel the need to lead off with an ad hominem attack.

As to Lucas, his writing " I fail to understand Mr. Ebert’s refusal to accept the concept of the honor code requiring both an actus reus and a mens rea " betrays a lack of understanding of what this argument concerns. At least Sam Leven disclosed the issue: “Because the Intent Clause is ambiguous in many ways, however, adding intent to the definition of plagiarism would solve multiple problems.” If UVa is happy with its Honor Code, and its application to Alison Routman, why is it CHANGING the definition of plagiarism to add the word "attempt" to include an intent element in the definition of plagiarism, counter to the definition of universities on four continents? If a respected school like UVa creates an outlier definition, such action will have an impact beyond the confines of Virginia. People outside of UVa do care about what UVa does, especially when it's wrong and is going to adversely influence others.

***from the Cavalier editorial, Trying Times, 29 Sept 09 :

The vague intent clause, for example, has been the source of several controversies in recent years.

**to the Cavalier

The Cavalier, on September 29, said basically the same thing as Sam Leven: "The vague intent clause, for example, has been the source of several controversies in recent years," which realization is not reflected in the commentary of Casper or Lucas, who otherwise don't address the Alison Routman matter, wherein there is basically no evidence that Alison intended to do anything bad, but she was convicted anyway.

For those not exposed to criminal law, actus reus and mens rea are terms of art in assessing whether or not a crime has occurred. There is no such thing as a federal crime of plagiarism. [In fact, in the Dastar case, the Supreme Court recognized that the defendant was a plagiarist, but the defendant won the case.] As to copyright infringement and patent infringement, which are generally civil matters, intent is not an element of either, and one does not assess whether the defendant knew or should have known infringement was a violation. Infringement is infringement, no matter what the intent. If one finds infringement (liability), then one addresses the damages.

UVa's problem is that there is one punishment to fit all Honor Code violations. Changing the definition of plagiarism does not solve that problem; it only moves the problem somewhere else. It is a bad idea.


The concept of "one penalty for all offenses" was firmly rejected in the case of Zachary Christie (age 6) of Newark, Delaware.
Initially, Zachary got a 45 day suspension for bringing to school a camping utensil which included a knife. The New York Times wrote of the (now changed) policy:

The case prompted an angry reaction from parents because several other students hade been expelled or suspended in the past several years for similar offenses, including an elementary school student who was expelled for a year after she took a birthday cake to school, along with a knife to cut it.

The only reason the board relented was the adverse publicity. The NYT noted: “We are doing this because we got egg on our face, but it doesn’t address the underlying issues with zero-tolerance rules,” said John M. Young.

Whether at the Christina School or at UVa, the problem is the inflexible penalty. Changing definitions of the "crime" does not resolve the problem of a draconian penalty.

See also Delaware 1st grader has 45-day suspension lifted

****As one piece of irony,
"Semester at Sea" teaches the Scaffold Plank Incident

***Update on 25 Sept 2010-->

For the sake of history, here is some discussion from September 2009:

Although Sam Leven spends much time saying intent IS an element of an Honor Offense, his conclusion on intent is: "Because the Intent Clause is ambiguous in many ways, however, adding intent to the definition of plagiarism would solve multiple problems." The CURRENT UVa definition of plagiarism does NOT include an element of intent. In an upcoming paper on academic plagiarism, researchers survey definitions of plagiarism at universities on four continents, and find that NONE include intent as an element of plagiarism. In dealing with the PUNISHMENT phase AFTER plagiarism is found, intent IS a factor. Because UVa chooses to have only one punishment (expulsion) for an Honor Code violation, UVa would tinker with the definition of the "crime." Apart from the general silliness of this approach against a background where other universities have a fairly uniform definition of plagiarism, the proposed UVa change would foster the concept of "inadvertent plagiarism" as exemplified in the Poshard matter at SIU.


A question in 2010 would simply be: how would the Routman matter come out under the proposed changes?

Mylan, AMD bankruptcy candidates?

Two companies who have been involved in patent litigation (Mylan and AMD) showed up in's Ten Big Companies That Are Veering Toward Bankruptcy:

Mylan: In a classic case of management empire building, Mylan overpaid big time when it bought Merck’s generic business back in 2007 and is now stuck with $5 billion of long-term debt as a result.

AMD: When will AMD actually make money again? The question is becoming more important by the day since it carries over $5 billion in long-term debt.

See IPBiz posts, including

Monday, September 21, 2009

Litigation over U.S. Patent No. 5,302,021, a patent with one claim

The single claim of U.S. Patent No. 5,302,021, which reads

A method of preventing the formation of an air pocket around
rotating blades positioned in a pitcher of a blender, the air pocket
being created from an air channel of a cross-sectional size defined
by a member associated with the blades, comprising the steps of
supplying a fluid into the pitcher, and positioning a plunger, having
a cross-sectional size approximating the cross-sectional size of the
member, adjacent to and above the rotating blades while
maintaining the plunger free of contact with the pitcher thereby
preventing the formation of an air pocket in the fluid around the
rotating blades.

generated a significantly more lengthy CAFC decision.

The applicant had worked to distinguish his invention from the prior art:
During prosecution, the applicant explained that the claimed method differed
from the prior art due to its preventative capability.

Much of the case centered around "disclaiming":

During the hearing, the court examined the prosecution history and
determined that the patentee expressly disclaimed any stirring operation that breaks up
or dislodges air pockets after they have begun to form, and limited the scope of the
claimed invention to positioning the plunger such that it prevents air pockets from
forming. The court construed claim 1 to exclude “stirring to disperse, dislodge, or break-
up an air pocket after it has begun to form.” The court also construed the term “plunger”
as a “device that can be inserted into a blender.”

This disclaimer arose from a determination about the claim preamble:

“a method of preventing the formation of an air pocket around the rotating blades positioned in a pitcher of a
blender” was necessary to give life, meaning and vitality to the body of the claim. See,
e.g., MBO Labs., Inc. v. Becton Dickson & Co., 474 F.3d 1323, 1330 (Fed. Cir. 2007); In
re Cruciferous Sprout Litig., 301 F.3d 1343, 1347 (Fed. Cir. 2007).

The district court was accused of inconsistency:

Vita- Mix contends that the district court erred in finding no direct infringement based, in part,
on applying to the accused device a claim construction inconsistent with its claim
construction order.


Vita- Mix argues on appeal that the exclusion of all stirring was a new construction, and
represents a change in the district court’s position. Vita-Mix argues that the original
claim construction order correctly construed the term “preventing the formation of an air
pocket” to exclude breaking up or dislodging already formed air pockets, and not to
exclude stirring for other reasons. Vita-Mix points out that the district court even noted
that the ’021 patent specification disclosed that the plunger could also be used to stir
the ingredients of the blender. Vita-Mix Corp. v. Basic Holdings, Inc., No. 1:06-cv-2622
(N.D. Ohio Sept. 10, 2007) (Claim Construction Order at 7).

The CAFC agreed with the patentee that the district court had been inconsistent:

We agree with Vita-Mix that the district court’s finding that the patentee
disclaimed all stirring appears to be inconsistent with its earlier claim construction. We
further agree with Vita-Mix that the earlier claim construction is correct for all the
reasons articulated by the district court in its claim construction order. To find that the
patentee disclaimed all stirring, regardless of whether and how the stirring acts on air
pockets, ignores the nature of the distinction between a positioning that prevents air
pockets from forming and an operation that breaks up air pockets after they have begun
to form.

The CAFC also found the district court erred on the question of infringement in a summary
judgment context:

We find that the district court erred as a matter of law in disposing of the direct
infringement claims by requiring direct evidence of infringement. The court discounted
the accusations against Mr. Oldroyd and Mr. Daniels because there was no testimony
or footage showing actual infringement in those cases. Such evidence, however, is not
required. Direct infringement can be proven by circumstantial evidence. Moleculon
Research Corp. v. CBS, Inc., 793 F.2d 1261, 1272 (Fed. Cir. 1986). Dr. Swanger’s
testimony, accepted as true for summary judgment purposes, establishes that the
accused blenders will necessarily infringe under certain circumstances.

The CAFC also found the district court erred on evidentiary issues:

Dr. Traylor’s testimony need not establish the
ultimate question of infringement to be relevant. See Daubert v. Merrell Dow Pharms.,
509 U.S. 579, 591 (1993) (holding that evidence is relevant if it may assist the trier of
fact in resolving a factual dispute); Moleculon, 793 F.2d at 1272. Dr. Traylor’s testimony
is relevant to the question of whether users tend to insert the stir stick into the pitcher
without stirring. See Fed. R. Evid. 402 (evidence is relevant if it has any tendency to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence).

On the topic of contributory infringement:

Contributory infringement imposes liability on one who
embodies in a non-staple device the heart of a patented process and supplies the
device to others to complete the process and appropriate the benefit of the patented
invention. See Ricoh Co. v. Quanta Computer, Inc., 550 F.3d 1325, 1337 (Fed. Cir.
District courts have found, and we agree, that non-infringing uses are substantial
when they are not unusual, far-fetched, illusory, impractical, occasional, aberrant, or
experimental. Cf. Hilgraeve Corp. v. Symantec Corp., 265 F.3d 1336, 1343 (Fed. Cir.
2001) (finding inducement where the accused device was capable of non-infringing
modes of operation in unusual circumstances); D.O.C.C. Inc. v. Spintech Inc., 36
USPQ2d 1145, 1155 (S.D.N.Y. 1994) (“Contributory infringement liability is not meant
for situations where non-infringing uses are common as opposed to farfetched, illusory,
impractical or merely experimental.”); Haworth Inc. v. Herman Miller Inc., 37 USPQ2d
1080, 1089 (W.D. Mich. 1994) (“The focus is not the utility or ubiquity of the infringing
configuration; the focus is the utility, presence, and efficiency of the non-infringing

There were trademark issues in this case:

In the Sixth Circuit, a registrant must meet two criteria to succeed in a trademark
infringement case: (1) the plaintiff must possess a protectable mark, Leelanau Wine
Cellars, Ltd. v. Black & Red, Inc., 502 F.3d 504, 512-13 (6th Cir. 2007), and (2) the
plaintiff must show a likelihood of confusion, Tumblebus Inc. v. Cranmer, 399 F.3d 754,
763 (6th Cir. 2005). Where a mark is not registered, a claimant must show that it has
used the mark at issue as a trademark, and that the defendant has used the accused
mark as a trademark. Rock & Roll Hall of Fame & Museum, Inc. v. Gentile Prods., 134
F.3d 749, 753 (6th Cir. 1998).

An unregistered mark is entitled to protection as a trademark if it is inherently
distinctive or has acquired secondary meaning. Homeowners Group, Inc. v. Home
Mktg. Specialists, Inc., 931 F.2d 1100, 1105 (6th Cir. 1991). A mark is inherently
distinctive if its intrinsic nature serves to identify a particular source. Abercrombie &
Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 635 (6th Cir. 2002).

There was bad news for the patentee as to the claim construction analysis by the CAFC:

As a preliminary matter, the court made a point of explaining that it was reviewing
the validity issues under “its own” claim construction and not Vita-Mix’s proffered claim
construction. While it is not entirely clear what claim construction the court refers to as
its own in this explanation, it appears that the court is applying a construction that
excludes all stirring. As explained in Part I.A. above, we find that a construction that
excludes all stirring is inconsistent with the district court’s original claim construction
order. We find that the court’s original claim construction order is correct, and that the
validity issues, remanded for the reason explained below, should be reconsidered under
the proper claim construction.

As to a false statement by the inventor:

Basic’s inequitable conduct charge on appeal is that an inventor of the ’021
patent made a false statement in a declaration when he distinguished low-powered prior
art blenders as incapable of forming air pockets around the blades. In response to a
prior art rejection, inventor John Barnard submitted a declaration to the patent office that
the cited prior art reference was irrelevant because it disclosed a low-powered blender.
Mr. Barnard stated that such blenders did not usually form air pockets around the
blades, and thus do not bear on the claimed solution to the air pocket problem in high-
power blenders. Basic offers an additional prior art reference as evidence that this
statement is false. In his deposition, Mr. Barnard explained that, regardless of whether
the statement is actually false, he believed the statement to be true at the time that he
made it. With no other evidence in the record, the district court correctly found that
Basic made no genuine showing of deceptive intent.

Article One makes more awards

From a press release of Sept. 21, 09 by Article One:

Article One Partners, LLC has discovered new prior art impacting the validity of two Minerva Industries, Inc. patents for mobile entertainment and communications devices. Article One also announced the discovery of new evidence which can show Eli Lilly & Company’s patent for Cymbalta to be invalid, as verified by outside counsel. The discovery of this patent validity evidence can impact the industry litigation and continued innovation surrounding both cases.

“With Minerva, a non-practicing entity filed suit against an entire industry. And with Cymbalta, the patent has been asserted to prevent generic drug manufacturing. Both are great examples of patent disputes where the true cost is born by the public,” said Cheryl Milone, founder and CEO of Article One Partners. “Article One Partners not only allows the public to weigh in directly, but provides rewards for a citizen review of the patent system. The community helps ensure the validity of patents that are being widely enforced.”
Minerva Industries, Inc. filed a lawsuit on January 22, 2008, alleging that Nokia, Palm and more than 30 cell phone manufacturers and providers infringed on its U.S. Patents for “Mobile Entertainment and Communication Device” (Patent Nos. 6,681,120 and 7,321,783). The patents relate to add-on functional features for cellular phones and mobile devices. More than 200 references of prior art evidence were submitted by Advisors – members of the Article One Community. The key evidence was provided by three Advisors with usernames Columbo, Ramesh and Singh, who will share the monetary reward of $50,000.

Cymbalta is the brand name for a drug used in the treatment of depression. Patent holder Eli Lilly and Company has claimed infringement by Sandoz, Inc. and others. Lilly’s Patent (U.S. Patent No. 5,023,269) covers a pharmaceutical composition including a selective serotonin and norepinepherine reuptake inhibitor (SSNRI). It is orally administered for depression and other disorders. With more than 150 references of prior art submitted, Advisor Columbo was first to identify the key evidence and will receive the $50,000 primary reward.

From a previous IPBiz post, titled
Article One announces prize award concerning US 6,784,873

Future targets of Article One:

Sony (alleged infringer) Blue-Ray disc drives technology (Sony is accused of patent infringement)
Apple's (patent owner) iPhone multi-touch technology
Emergency 911 location technology for mobile phone industry, including Verizon, AT&T, etc. (alleged infringers)
Eli Lilly's (patent owner) Cymbalta drug
AstraZeneca's (patent owner) Crestor drug
Penwest Pharmaceuticals (patent owner) Opana ER drug
Sepracor's (patent owner) Xyzal drug


[From the "winner" on US '873]-->

Ultimately I submitted tens of US Patents for consideration to AOP and none of them were the one that got me the GRMN prize. Only when I kept going and dug into WIPO patents did I come across the winner – and I didn’t even know it when I found it. It was just one more item in a batch submission I made one week.

See also

**In passing, note that Lupin filed a paragraph IV certification [ ANDA 90-694 ] stating that the claims of the '269 patent are either invalid or would not be infringed. [Refer to filing within patent jacket of 4 Feb 09 mentioning SD Ind case 08-CV-1596].

Sept. 2009: the New York Times discovers the world of patent auctions

In an article on 20 Sept 09 titled Now, an Invention Inventors Will Like, Steve Lohr "discovers" the concept of buying and selling and licensing patents:

Other players in the emerging patent marketplace are specialized investment banks, brokers and licensing companies including Acacia Technologies, Altitude Capital Partners, Intertrust, IPotential, Ocean Tomo, Rembrandt IP Management and Thinkfire. Venture capitalists are also interested in this field — Kleiner Perkins Caufield & Byers, for example, is backing Rational Patent Exchange, a company that buys reservoirs of patents in crucial fields and charges fees to corporate “members,” who participate as a defensive tactic to limit potential patent litigation costs.

Lohr illustrates the concept by discussing how Zoltar will sell its patents in an auction run by Pluritas, "hoping for a faster, simpler and less risky payoff," than by litigating, on its own, against the likes of Qualcomm.

Lohr mentioned Josh Lerner:

“Yes, you can move in the direction of trading markets for patents, but these are complicated assets that are individualized and hard to value,” said Josh Lerner, an economist at the Harvard business school. “They are more like works of art than stocks.”

but failed to mention how Lerner had praised (in Innovation and its Discontents) Qualcomm as a good player in the patent landscape in spite of what happened in the Broadcom matter and in spite of the Zoltar/Qualcomm disagreement.

Obama to talk about innovation, but what about the USPTO?

At a talk at Hudson Valley Community College in Troy, NY on 21 Sept 09, President Obama will talk about

developing an advanced information technology system,
restoring U.S. leadership in basic research,
improving education,
development of clean energy,
advanced vehicle technology,
information technology for use in healthcare, and
promotion of U.S. exports.

There was no explicit reference to improvements at the USPTO. It took a long time to name David Kappos as nominee for Director at the Patent Office. Is the USPTO high on the priority list?

**In terms of the text of the speech, the word "patents" appears once, and that is in the context of a tax credit:

My budget finally makes the research and experimentation tax credit permanent. This is a tax credit that helps companies afford the often high costs of developing new ideas, new technologies, new products -- which means new jobs. And this tax incentive returns two dollars to the economy for every one dollar we spend. Time and again, I’ve heard from leaders -- from Silicon Valley to the Tech Valley -- about how important it is. I’ve also proposed reducing to zero the capital gains tax for investments in small or startup businesses, because small businesses are innovative businesses; they produce 13 times more patents per employee than large companies do.

President Obama made reference to the locale:

That's what led to the building of the Erie Canal, which then helped put cities like Troy on the map; that linked east and west and allowed commerce and competition to flow freely between. That's what led a pretty good inventor and a pretty good businessman named Thomas Edison to come to Schenectady and open what is today a thriving mom-and-pop operation known as General Electric.

One notes from PBS: The board of Edison General Electric decided to adopt AC power, and dropped Edison's name; the company was now called "General Electric." Edison would refuse to set foot in any General Electric plants for the next 30 years

Sunday, September 20, 2009

Was Doll pushed?

In an article on John Doll titled Patent office overseer quits agency, John Schmid and Ben Poston wrote:

Maryland patent attorney John White said the general view is that Doll was expected to resign under the new director.

"All of us felt that John Doll was not long in his job once the administration had changed, simply because he was the key architect of what Dudas had tried to do," said White, a former examiner. "Was he shoved or did he jump? I think he got a little of both."

David Boundy, a Boston patent attorney, said a culture of rejection characterized Doll's leadership. After consistently rejecting applications at a rate of about 35% since at least 1975, the rejection rate soared under Doll and reached over 59% in the quarter that ended June 30.

"Any patent attorney will tell you that the quality of rejections went way down," Boundy said. "Adherence by examiners to the agency's procedural guidance manual went from very high to very low. Rules and predictability were replaced by subjectivity."

One notes that what was going at the USPTO during the reign of the "culture of rejection" was in large part a meat cleaver response to the allegations made by Quillen and Webster that the allowance rate might be as high as 97% at the USPTO. In the early stages of discussion of the Quillen/Webster allegations, Robert Clarke published in JPTOS a reasoned response which was dismissed by academics such as Lemley and Moore in "Ending Abuse...." When the USPTO got around to proposing its new rules on continuing applications, it was the Lemley and Moore article which was cited. Observant patent attorneys might well credit Quillen/Webster and Lemley/Moore for the reign of rejections.

Comments at Patently-O:

As for John Doll, until someone has worked for the government in a highly political position for at least a decade, please reserve criticisms for the policies not the man. While I have not always agreed with John, I did work with him for over a decade. Recall that when he was in charge of 1600 (Biotech/Pharma), he was instrumental in opening the allowance gate, encouraging interviews, and turning the 112 standard into something that was possible to meet. When he moved into upper management, a lot of things changed, but unless one was there, it is unclear as to what were John's ideas and what were his marching orders. Whatever they were, he dedicated almost thirty years of 12 hour days to doing what he thought was right. Even when I disagreed with his policies, I always tried to respect the man.


John Doll appears to have been Bob Stoll's primary/SPE for an extensive period of time. 145 out of 190 allowances that Stoll had as an assistant examiner list John Doll as the primary.

Saturday, September 19, 2009

DoJ weighs in AGAINST Google Books settlement

AP wrote on 19 Sept 09:

The U.S. Justice Department advised a federal judge Friday [Sept. 18] that a proposed legal settlement giving Google Inc. the digital rights to millions of out-of-print books threatens to thwart competition and drive up prices unless it's revised.

As has been the standard in the "patent reform" debate, the competitors noted adverse effects on innovation:

"The current settlement proposal would stifle innovation and competition in favor of a monopoly over the access, distribution, and pricing of the largest collection of digital books in the world," said the Open Book Alliance, a group that includes, Microsoft and another Google rival, Yahoo Inc.

With names like "Open Book Alliance" and "Coalition for Patent Fairness", one can only think back to issues in the naming of the Bolsheviks.

**See also

Lose patents, lose jobs

On the announcement that Lilly will cut about 5,500 jobs, or 14 percent of its workforce:

Chris Schott, an analyst with JP Morgan Chase & Co.: “Lilly’s move is consistent with announcements by its major pharma peers and was to some degree inevitable given the company’s 2011-2014 patent cycle.”

OR as Lilly CEO John Lechleite put it:

“The major emphasis is to prepare us to enter what’s going to be a challenging period for the company, as we see patent expirations, and to speed up new products as we enter that period."

Friday, September 18, 2009

IP in the movie "Duplicity"

The word "patent" is mentioned twice in the movie, and text from an issued patent appears at the end, signaling the final twist in the plot. The molecule was known! [Those into patents figure out the ending seconds before the rest of the audience.]

There's lots of stuff about industrial espionage, although this is about a trade secret which isn't really a secret. One wonders if this plotline comes from the real world. Would one CEO set up a trap for another CEO to steal "bad" information, knowing that the "thief CEO" would not know good information from bad? As to patents, there's an implicit acceptance of "first to file" (untold wealth to the company that lands the patent first, in a situation wherein the first filer would likely not be the first to invent). But 35 USC 102(g) does exist. And a story about "idea theft ' / patent litigation would be boring, unless it's "big guy" vs. "little guy" {Flash of Genius.]

In this story, there are two separate entities stealing the "secret." For the egotistical American CEO who steals, the theft is the thing, not the value. Once he's got the thing, the next step is to talk about the thing to the shareholders, without ever checking whether what's he's got is valuable. For the retired CIA/MI6 operatives who steal (and who are double-crossing the egotistical CEO), getting money for the thing is the top priority. Only the Europeans who would buy the stolen information from the operatives understand due diligence, prior art, and valuation. Of the last point, one recalls the real-world stories of 1-2-3 superconductors and buckyballs, wherein true discoveries had little or no value, and did not represent innovations, despite many popular press stories to the contrary, and one large US company buying up Chu's patent rights on 1-2-3 superconductors. [Nobody seems to hold the patent in a buckyball, and, at this point, no one cares.]

And, the movie has a great line about scientists who want to publish first in journals, given within the egotistical CEO's speech to shareholders. A humorous, heightened contrast between the business guy who knew nothing about the idea complaining about the technical guys who would study the idea too much. The shareholders come across as a flock of sheep bobbing their heads in approval, perhaps not much different from many venture capitalists looking at biofuels or stem cells from the outside.

And, there is an inclusion about academic plagiarism. The funny thing is that this inclusion only works in the plot if the corporate CEO believes that academic plagiarism is a likely thing for an academic "star" to do. And the CEO believes that it is. But then, the CEO himself is trying to steal, and to take credit for, the work of another. As an article in the Harvard Business Review has, in fact, said: Plagiarize with Pride. CEOs stealing from others is quite credible, as is academics stealing from others. The background presumptions of the movie work for the audience: businessmen and academics steal.

[If, for sake of argument, the egotistical CEO had questioned the plausibility of an academic all-star plagiarizing, he might have wised up to the scheme of the other CEO, and would not have been duped. As a related point, the whole scheme of the other CEO was based on manufactured evidence, made available on the internet (and elsewhere), which the minions of the egotistical CEO fell for, hook line and sinker. Something to look forward to in a world where a patent attorney would suggest to you, if it isn't on the internet, it doesn't exist. Maybe paper documents still have some value.]

***Separately, of plagiarism by (law) professors at Harvard, see

Harvard Clown School?

IP in the Annie Le case?

One poster at websleuths has speculated on the involvement of intellectual property in the Yale murder case involving Annie Le:

I agree with most of the theories so far -- workplace rage. But, I also agree that it just seems like there must be more to this. An affair is one possibility, but if that was the case, there might well be rumors in the lab -- hard to keep 100% secret. I keep going back to some sinister issue with research and financial stakes, or the pride of researchers. Here is an article that shows the stakes people will go to in regard to the fruits of research. I just wonder if Annie had made a major discovery that others wanted credit for, or maybe she discovered that someone else's research was wrong and it was going to hurt someone's royalties.

In the above case, notebooks were allegedly tampered with and falsified which which led to an arrest, and a Judge's life was threatened. Maybe Annie had some evidence, and Clark was paid to get that evidence or threaten Annie to back off.

[Relevant IPBiz post:]

The Yale case even created comment at Boise State:

"Well Boise State is a safe place to live and learn," said Frank Zang, BSU spokesman. "But anytime that you have a violent crime, such as what we've seen at Yale University or in the past at (Virginia Tech), it certainly does heighten awareness for personal safety." [ ]

One can also think back to Ted Streleski at Stanford.

"A high level of scientific illiteracy in the investment community"

On the topic of biofuels, see the article "Interest in algae's oil prospects is growing," by Tiffany Hsu in the Los Angeles Times, which has quote from, among others, Biofuels Digest editor Jim Lane. Of companies mentioned:

National energy companies are converging on the fledgling industry. Exxon Mobil Corp. announced a $600-million partnership with La Jolla biotech company Synthetic Genomics Inc. in July. San Diego companies General Atomics and Science Applications International Corp. have received nearly $50 million from the Defense Department for algae fuel research.

The "valley of death," much mentioned in stem cell research, is discussed:

The problem is translating successful lab experiments to an industrial scale. Mass algae biofuel production could require enormous pools or photobioreactors while growing a proportionally small amount of algae. Technology needs to be developed to systematically extract the oil from the organisms.

"There's a valley of death between research and development and commercial development," said Lisa L. Mortenson, chief executive of Community Fuels in Encinitas.

In the old days, one had programs to turn [very expensive] buckyballs into [less expensive] diamonds and now we have:

"The majority [of the efforts] are a gigantic hassle of time and capital because they're trying to make coal out of diamonds," said David Andresen, a clean-tech investment banker at Oracle Capital Securities. "There's such a high level of scientific illiteracy in the investment community that you can really wow investors."

Yes, including talk of 20,000 gallons per acre. Recall that venture capitalists are NOT primarily looking at the science. See

Venture capitalist stresses management; ideas are a dime a dozen

Are patents a key factor for venture capitalist investment?

Of stem cells, CIRM's loan program ostensibly targets firms facing a “financial valley of death.”

**from algaehub: Unfortunately, the algae energy industry is haunted by exaggeration and irrational exuberance.

Thursday, September 17, 2009

IP issues in "The Protector" (Tom Yum Goong )

For future reference as to the movie "The Protector", contemplate

#1. The use of "Quentin Tarantino presents"

#2. The use of a Jackie Chan double in a scene in the movie

A coming Sikahema on patent oppositions: good news and bad news

In a post titled Tech cos. protest patent reform in letter to Locke in the Microsoft Blog at SeattlePI, one has the text

Lawrence Ebert, of the Center for the Study of Digital Property, explains on the center's blog why post-grant review is controversial.

The post-grant oppositions are not a sure bet. The positive side is that the procedures seem to have worked reasonably well in defeating questionable patents in Europe. But third parties may be less likely to come up with prior art than proponents hope – even if they can become aware of every patent application's implications, they benefit competitors at their own expense by getting involved. And a post-grant opposition is unlikely to work well if the technology that supports the examiner's work in the first place is inadequate, or if measures of what it means for patents to be of sufficient quality or non-obvious are hollow. Often, lawyers benefit more than business by multiplying procedures, and the current legislation is thus viewed very skeptically by innovators who do rely on patents, such as those in biotech.

Microsoft's position is that post-grant reviews would strengthen patents and make the patenting process more efficient.

**IPBiz is authored by Lawrence Ebert, and Lawrence Ebert has strongly criticized the proposed post-grant reviews/oppositions contained within patent reform proposals since 2005. But Lawrence Ebert is NOT of the Center for the Study of Digital Property and didn't write the above-quoted text.

Ebert has criticized the opposition proposals first of all because they are inconsistent with the notions of quality expressed by Deming. If one has a problem in the quality of a patent examination, one fixes the patent examination. One does not add an additional inspection step, which is what an opposition amounts to. Ebert has mentioned that patent attorneys would likely benefit from the implementation of oppositions, which makes the criticism of such opposition proposals by patent attorneys such as Hosteny and Ebert all the more significant. Ebert has also noted that opposition procedures would likely be misused by larger entities against smaller entities. The procedure would be readily gamed to inflict harm on smaller players, and would be much less likely to be used to weed out bad patents.

The good news about the seattlepi post: it's always nice to be mentioned. The bad news: the post wasn't accurate.

To see what happened, one can go to the link used by SeattlePi and show additional text:


The post-grant oppositions are not a sure bet. The positive side is that the procedures seem to have worked reasonably well in defeating questionable patents in Europe. But third parties may be less likely to come up with prior art than proponents hope--even if they can become aware of every patent application's implications, they benefit competitors at their own expense by getting involved. And a post-grant opposition is unlikely to work well if the technology that supports the examiner's work in the first place is inadequate, or if measures of what it means for patents to be of sufficient quality or non-obvious are hollow. Often, lawyers benefit more than business by multiplying procedures, and the current legislation is thus viewed very skeptically by innovators who do rely on patents, such as those in biotech.

Changes that start further back in the PTO process are therefore well worth considering. For a start, supporting better technology to support the Office's search to discover whether a patent application is really a new idea would help.

Perhaps the area where there is the greatest room for improvement is the traditional weakness of the unelected public sector--accountability. With the patent office, one tends to get what one measures. Patent examiners get one point for the first "office action" and another for the second. This invites a tendency to deny the patent application, merited or not (one point), and then grant it, merited or not (second point). Granting a meritorious application the first time around? One loses the chance at a second point. Denying a weak application the second time around? One loses the chance to move on to another application and rack up more points. This is not the examiner's fault, but the fault of a system that values speed of processing over all else.

Likewise, the measurement of patent quality causes problems. The patent office consistently finds that their patents are measuring up quality-wise. This flatly contradicts the sense of many technologists. This should raise a red flag--what standard is the patent office looking to? How effective is it, for example, at measuring whether the patent office is finding older ideas, “prior art,” that relate to the patented claim but which are not themselves patented? The answer seems to be, not very.

The Patent and Trademark Office is not the only government office that could use some reform. But because of its role in delineating the rights that form and inform trades and investment in tech, its dysfunction matters more than some. Setting the standards for quality and productivity straight will help the courts straighten out even thornier tangles where it matters down the litigation road.
posted by Solveig Singleton @ 3:30 PM | Legislation and Legislators, Patents

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment(3)

On post-grant opposition:

On elements in the patent quality discussion:

Lawrence B. Ebert
April 22, 2007

Posted by: Lawrence B. Ebert at April 22, 2007 10:23 PM

Legal issues in proxy marriages

An AP story titled Proxy wedding means Marine's widow, baby unwelcome on the case of Hotaru Ferschke presents issues of conflicting law in the matter of Hotaru's marriage to the now-deceased Sgt. Michael Ferschke.

Michael and Hotaru had been together in Japan for more than a year, and she was pregnant when he deployed. They subsequently married by proxy (not physically present in the presence of each other), and did not see one another, in marriage, and then Michael was killed in Iraq. Were they actually married?

The Immigration & Nationality Act says that, for the purposes of immigration law, the definition of spouse does not include a "wife or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated."

The law is being read such that the consummation has to take place AFTER the marriage, which was not done in this case.

Here is a place where someone needs to define a "constructive" consummation. In patent law, we have a constructive reduction to practice, even though there is not an actual reduction to practice. In Hotaru's case, there was an actual "reduction to practice" but is said not to count because it was too early.

Advice on the "background" section of a patent application

from the 12:01Tuesday blog:

If you are going to have a "Background" section, try to keep it SHORTER than the rest of the specification. Remember that the Background is the one section that is not required by statute (i.e., 112) or rule (e.g., 1.71 - 1.75), yet it is the one section that is admitted prior art. You do the math.

Note also from a post from Baker & Botts:

But should a patent application specifically reference the prior art, eg, should the background section of the patent applica
tion specifically identify the closest prior art, and attempt to point out distinctions between the invention and the prior art? Some patent drafters commonly elect to include this sort of characterization in the background of a patent application. Given that this specific identification and discussion of the prior art is purely optional — MPEP §608.01(c) only requires that the background include a brief general statement of the field of art to which the invention pertains — is this a good practice or a mistake?

Our position is that this practice is a mistake because it is risky and unnecessary.

IPBiz gives further information:

** 37 CFR §1.71 Detailed description and specification of the invention.

The specification must include a written description of the invention or discovery and of the manner and process of making and using the same, and is required to be in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which the invention or discovery appertains, or with which it is most nearly connected, to make and use the same.


The specification must set forth the precise invention for which a patent is solicited, in such manner as to distinguish it from other inventions and from what is old. It must describe completely a specific embodiment of the process, machine, manufacture, composition of matter or improvement invented, and must explain the mode of operation or principle whenever applicable. The best mode contemplated by the inventor of carrying out his invention must be set forth.

**37 CFR §1.72 Title and abstract.

The title of the invention may not exceed 500 characters in length and must be as short and specific as possible. Characters that cannot be captured and recorded in the Office's automated information systems may not be reflected in the Office's records in such systems or in documents created by the Office. Unless the title is supplied in an application data sheet (§ 1.76), the title of the invention should appear as a heading on the first page of the specification.

A brief abstract of the technical disclosure in the specification must commence on a separate sheet, preferably following the claims, under the heading "Abstract" or "Abstract of the Disclosure." The sheet or sheets presenting the abstract may not include other parts of the application or other material. The abstract in an application filed under 35 U.S.C. 111 may not exceed 150 words in length. The purpose of the abstract is to enable the United States Patent and Trademark Office and the public generally to determine quickly from a cursory inspection the nature and gist of the technical disclosure.

**37 CFR §1.73 Summary of the invention.
A brief summary of the invention indicating its nature and substance, which may include a statement of the object of the invention, should precede the detailed description. Such summary should, when set forth, be commensurate with the invention as claimed and any object recited should be that of the invention as claimed.

**37 CFR §1.74 Reference to drawings.
When there are drawings, there shall be a brief description of the several views of the drawings and the detailed description of the invention shall refer to the different views by specifying the numbers of the figures and to the different parts by use of reference letters or numerals (preferably the latter).

**37 CFR § 1.75 Claim(s).

(a) The specification must conclude with a claim particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention or discovery.

(b) More than one claim may be presented provided they differ substantially from each other and are not unduly multiplied.

(c) One or more claims may be presented in dependent form, referring back to and further limiting another claim or claims in the same application. Any dependent claim which refers to more than one other claim ("multiple dependent claim") shall refer to such other claims in the alternative only. A multiple dependent claim shall not serve as a basis for any other multiple dependent claim. For fee calculation purposes under § 1.16, a multiple dependent claim will be considered to be that number of claims to which direct reference is made therein. For fee calculation purposes also, any claim depending from a multiple dependent claim will be considered to be that number of claims to which direct reference is made in that multiple dependent claim. In addition to the other filing fees, any original application which is filed with, or is amended to include, multiple dependent claims must have paid therein the fee set forth in § 1.16(j). Claims in dependent form shall be construed to include all the limitations of the claim incorporated by reference into the dependent claim. A multiple dependent claim shall be construed to incorporate by reference all the limitations of each of the particular claims in relation to which it is being considered.

**from an intelproplaw forum on Applicant's Admitted Prior Art (AAPA) in August 2009:

I have seen examiner's make 103 rejections, where one of the references is AAPA. This is usually based on a Background statement. It sounds so prejudicial to the applicant, that I hate repeating it (as in, "claims x, y, and z stand rejected over Smith in view of AAPA"). It's as if I concede it as an admission of prior art. Anyone have a clever way of recharacterizing the term for use in responses?

One comment: On the other hand, if you've called stuff "conventional", "notoriously old and well known" or "part of our national heritage" it probably doesn't matter what section of your application you've put it in.

**From patentablydefined:

Many applications, not incorrectly or improperly, discuss known art when explaining the need for the solution provided by a claimed invention. Typically, these discussions, located in the background section of the application, are fair game to apply against the claims of the application. And, when cited by an Examiner, these discussions are commonly characterized as “Applicant’s Admitted Prior Art (AAPA).”

Even if this characterization by the Examiner is not incorrect, a practitioner, as an advocate for an applicant, can produce a far more valuable prosecution history by using a more benign characterization of any such discussion. Like the term “limitation,” based on my experience, for some reason, judges and juries seem to attach increased significance to the word “admitted.” So, when possible, I usually characterize art discussed in an application as “conventional.” Thus, for example, I may write:

Claim 1 stands rejected under 35 U.S.C. 102 as anticipated by the widget discussed in the background section of Applicant’s disclosure (hereinafter “the conventional widget”).

* * * * *
The Office Action contends that the conventional widget includes the aforementioned feature of independent claim 1.

**From page 54 of Michael H. Jester's book: "The USPTO may deem statements made in the background section to be admitted prior art."

**From US 20090030906:

The subject matter discussed in the background section should not be assumed to be prior art merely as a result of its mention in the background section. Similarly, a problem mentioned in the background section or associated with the subject matter of the background section should not be assumed to have been previously recognized in the prior art. The subject matter in the background section merely represents different approaches, which in and of themselves may also be inventions.

**Also from Baker & Botts:

Mistake #5: Using Inconsistent
Terminology in the Specification
and the Claims — Don’t Confuse
the Markman Hearing