Thursday, April 29, 2010

Remember "Joe Friday" when prosecuting

The CAFC in Bradford v. Conteyor noted:

However, we also agree with the district court that Bradford is estopped from
arguing for an earlier priority date for the ’096 patent by the prosecution history of that
patent. In one of his earlier rejections, the examiner rejected the claims as obvious in
light of the ’119 patent combined with the Rader patent. The examiner specifically
stated that the Rader patent taught a “side wall having [an] opening.” In response,
Bradford told the patent examiner that the ’119 patent did not teach the very feature that
makes the invention of the ’096 patent side loading. Specifically, Bradford argued that
the ’119 patent “clearly does not teach a dunnage structure having an open end which
is in alignment with an open area of a side structure to allow access of the dunnage
structure for transferring product into and out of the dunnage structure from a side of the
container.” Bradford further argued that when combined with the side opening taught by
the Rader patent, the ’119 patent would still not render the ’096 patent claims obvious.
Bradford’s arguments were apparently successful. In the next office action, the
examiner relied on a different prior art reference, Kupersmit, in rejecting the claims as
The applicants’ statement to the examiner is a compelling disclaimer of scope
such that the ’096 patent is not entitled to an earlier priority date. See Microsoft Corp. v.
Multi-Tech Sys., Inc., 357 F.3d 1340, 1350 (Fed. Cir. 2004) (“We take the patentee at its
word and will not construe the scope of . . . [a] patent’s claims more broadly than the
patentee itself clearly envisioned.”). That is because arguments made to persuade an
examiner to allow an application trump an ambiguous disclosure that otherwise might
have sufficed to obtain an earlier priority date. See Standard Oil Co. v. Am. Cyanamid
Co., 774 F.2d 448, 452 (Fed. Cir. 1985) (holding that any argument made to convince
the examiner of the patentability of the claimed invention “limits the interpretation of
claims so as to exclude any interpretation that may have been disclaimed or disavowed
during prosecution in order to obtain claim allowance”). We therefore affirm the court’s
decision limiting the priority date of the ’096 patent to its own filing date.

Mentalist ripped from Philly headlines?

The opening of "The Mentalist" on April 29 involved a list of "who's going to be fired" at a newspaper, in the same week as there might be a really belt-tightening list at the newly-purchased Philly Inquirer.

Letterman on April 29 led off with yet another Mentalist joke: being able to tell the difference between a Goldman-Sachs crook from a Goldman-Sachs weasel. Gee, maybe a former New Jersey governor. And look to elections future.

Plagiarism as a reputation-destroying mistake?

Within a piece on career no-no's, one finds the line:

While some workers make big, reputation-destroying mistakes (think plagiarism or sexual harassment), the vast majority make a series of choices that can quietly build or ruin their professional image in the workplace.

Think Joe Biden or Glenn Poshard.

Elsewhere in the piece, email comes up:

Large-audience E-mails are rarely wise for dealing with a controversial issue or for being humorous. A regular habit of insensitive, unwise digital communications can leave coworkers with a negative impression that's "almost irreversible," Allgeier says.

The piece included understatement:

Similarly, employees who interrupt their boss or embarrass their boss in a meeting will quickly chip away at their reputations. Chip away???


Note piece by Conley L. Smith, Punishing plagiarizers.
Does public exposure fit the sin?

On Biden. The Biden Plagiarism Scandal

Wednesday, April 28, 2010

Newman on experts in B-K Lighting

In a separate opinion in B-K Lighting, Judge Newman writes:

On cross-motions for summary judgment, the district court granted the motion of
Fresno Valves & Castings (“FVC”), and ruled that United States Patent RE 39,084,
owned by B-K Lighting, is invalid on the ground of obviousness. The panel majority now
holds, solely for the reason that there were opposing expert opinions, that the question
of obviousness could not be resolved on summary judgment. This is an unnecessary
departure from the procedure that this court and the Supreme Court have accepted and
endorsed, in the interest of efficient resolution of patent disputes:

In KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 427 (2007), the Court stated that
while a “court can and should take into account expert testimony, which may resolve or
keep open certain questions of fact,” summary judgment should not be withheld
whenever parties present contradictory expert opinions, thereby manufacturing a
“conflict,” however attenuated. My colleagues on this panel hold that since there were
opposing expert opinions, without more, the question of obviousness requires trial. If
this procedure is to be the rule in patent cases let us be clear, to avoid the expensive
redundancy that is today achieved, whereby the parties and the district court pursued
the procedures of summary judgment through depositions, briefs, written opinion, final
judgment, and appeal. It is not a trivial matter to require the parties, the trial judge, and
perhaps ultimately this court, to repeat in the trial context much of what they have
already done.

DJ Robinson's SJ in Oracle vacated

In Oracle v. Parallel Networks, the CAFC noted that because a reasonable jury could find that the accused Oracle products meet the “releasing” limitation, this court vacates the D. Del’s grant of Oracle’s motion for
summary judgment of non-infringement and its denial of Parallel Networks’ motion for
summary judgment of infringement.

Plagiarism in Texas: wikipedia masquerading as de Tocqueville?

Plagiarism charges arise in interesting contexts and can involve tortured inquiries. One of the more interesting quests of 2010 involves a charge made by Dr. Michael Soto arising in the area of the Texas State Board of Education [SBOE]. The queblog details the twists and turns, but it leads to plagiarism of wikipedia, and false attribution to de Tocqueville.

The story includes mention of Bryan, Texas, one of two news stories on April 28 about Bryan (the other relating to Dan Pastorini, the guy who greased the skids for Jim Plunkett to win a SuperBowl.)

Artie Rai does cameo on Patent Docs

Patent Docs had analyzed a USPTO "white paper" and, subsequently, posted comments by Artie Rai.

Within the comments upon Rai's comments was the following by Noonan:

I am happy Dr. Rai took the time to respond. To clarify, the Paper itself contained three references that appeared to be unavailable to the public, which is why we asked that they be made available. As it turns out, two of the articles were available, as my intrepid editor discerned and included as links. Of course, these citations to SSRN were not in the Paper, and unfortunately left the impression (as mentioned in the post) that there was unavailable data that could be helpful in assessing the Office's position. Happily, that data is available (and while I'm sure economists and academics could find it, I'm not as sure that interested members of the public could - but that's another matter).

As it turns out, the only unlinked reference (or at least one we couldn't locate) is Dr. Graham's [Graham, 2010, "Slow courts and the cost of uncertainty: How patent post-grant reviews may offer a partial solution" ], and perhaps the Office will post that to make it available.

Thanks for all the comments, and for keeping the discussion on the merits.

Noonan later added: Actually, even if you disagree with her (and we have), Dr. Rai is hardly just another political appointee. Recent history of truly political appointees (former Congressional staffers, for example) should teach us that. Dr. Rai bears the handicap of coming from academia, and thus may believe perfectly rational ideas that just turn out, in practice, to be wrong (or at least impractical to implement).

It's rather generous of Kevin Noonan to grant Artie Rai the title of "Dr." but it doesn't seem to fit the facts of Rai's bio:

HARVARD LAW SCHOOL, J.D., cum laude, 1991
Best Brief and Team, Harvard (Ames) Moot Court Competition
Instructor, first-year Legal Methods course
Executive Editor, Harvard Civil Rights-Civil Liberties Law Review

HARVARD MEDICAL SCHOOL, medical student for 1987-88 academic year
Award for research analyzing use of cost-benefit analysis in studies of biomedical
innovation (resulted in publication)

HARVARD COLLEGE, A.B., magna cum laude, in History and Science
(Biochemistry), 1987
John Harvard Scholarship for highest academic achievement
National Merit Scholar
Radcliffe science award for research on link between apolipoprotein E2
homozygosity and retinitis pigmentosa, University of Strathclyde, Glasgow,
U.K. (resulted in publication)

**Comment to Patent Docs on 28 April 2010:

"Dr." Rai?

Separately, related to the quality of the references, one notes that SSRN articles are merely postings, not refereed journal articles. Further, given that law review articles themselves are typically cite-checked but not reviewed for content, one might ask whether law review articles are "refereed" or merely comprise gray literature.

Finally, Graham's CV page does not reference the paper you are seeking ["Slow courts and the cost of uncertainty: How patent post-grant reviews may offer a partial solution" ], tho Graham has written on post-grant review in other articles.


[Life is harsh at Patent Docs. After more than 3 hours, LBE's comment is not posted.]

UPDATE on 4/29: tho LBE's comment was never published on Patent Docs, a different commenter linked to Artie Rai's bio, to show she wasn't a registered patent attorney.

UPDATE on 4/29: LBE's comment (sent via email per request of K. Noonan) was published.


Obama disappoints with picks for bioethics panel

**On Stuart Graham, from Patently-O

Stuart Graham (now Chief Economist at the PTO)

***UPDATE. From 271Blog on 27 Aug 2010:

Hal Wegner has just broke the news that Arti Rai, Administrator for External Affairs, is leaving the PTO to an unspecificed position that has not been announced by the government.

Lost iPhone saga: "Initially it's just a theft investigation."

The worldview of IPBiz commenter James Katt on the "lost" iPhone seems to be coming true. Declan McCullagh writes at CNET of the search/computer seizure at gizmodo editor Chen's home:

Stephen Wagstaffe, chief deputy district attorney in San Mateo County, CA: "My prosecutor who is handling it considered this issue right off the bat when it was being brought into him and had some good reasons why he and the judge felt the warrant was properly issued." (...) "Initially it's just a theft investigation. But ultimately could it lead to more? That's going to depend on what they learn. That's why they would like to be able to look at the computer and interview everybody that they can so they can determine the extent of what's involved."

The iPhone saga may add an interesting dimension to trade secret law. In the Uniform Trade Secrets Act, a trade secret

(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and
(ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

How the Apple person came to have, and to lose, the 4G prototype iPhone in a Redwood City bar will be in an issue as to "reasonable efforts," of relevance to the fate of the trade secret.

Then, we have the intersection of "trade secret" with the law of lost property. Assuming the "first finder" and gizmodo were aware of the iPhone's status as a prototype, and further aware of its true owner, then, at the least, this looks like theft under California law (and the buying of stolen property). But how much does that get amplified when the stolen property is a trade secret? An interesting IP case.

See also story at PCMag: Police Know Who Found the Prototype iPhone

Text from gwabble which may be of relevance to "trade secret" issue:

One day, [Apple engineer Gray Powell] left the Apple iPhone 4 disguised in an iPhone 3GS case on a bar stool, so that nobody will notice that it’s the latest iPhone that was not yet released to the public.

A stranger inside the bar played with it, never realizing that it was more powerful and more advanced than the current 3GS. After a few minutes, he noticed that the phone was superior to the standard Apple iPhone 3GS.

Apple apparently “killed” the iPhone 4 remotely and the passer-by is understood to have called the Apple switchboard to contact Mr Powell. When that failed, the passer-by then sold it to technology blog Gizmodo.

Previous IPBiz posts:

Apple's missing iPhone: First Amendment vs. lost property

Tuesday, April 27, 2010

DDB targets Yahoo in WD Texas

DDB (Dr. David Barstow, Prez) is suing Yahoo in WD Texas.


Gizmodo computers snagged

ComputerWorld reported officials from San Mateo County, CA grabbed six computers belonging to Jason Chen, an editor of Gizmodo and the guy who wrote the story on the "lost/found" iPhone prototype.

See ya...

Tokyo gets tough on plagiarists

Following up on the Anilir matter [
Plagiarist prof's PhD goes poof
], the University of Tokyo promises tighter screening and tougher penalties in the Ph.D. exam process.

In addition to plagiarizing about 40% of his thesis, Anilir falsely claimed to have graduated from the Illinois Institute of Technology [IIT].


from the Montreal Gazette on theChinese pavilion at Expo 2010:

The trouble started more than a week ago when Expo organizers were confronted with suspicions a high-profile promotional song advertising the World's Fair featuring action hero/singer Jackie Chan and a host of other Chinese stars, 2010 Waiting for You, borrowed freely from a 13-year-old Japanese tune, Stay the Way You Are, by Mayo Okamoto.

Expo organizers did not actually admit plagiarism, but they hastily pulled the song from the airwaves because of "copyright issues," according to their website.

The next potential shanzhai problem came to light at a news conference late last week when a U.S. reporter noted the similarity between the Expo mascot Haibao and Gumby, the title character in a cartoon series that ran on North American television for 35 years, starting in 1957.

UPDATE on 29 April 2010:

Pavilion plagiarism refuted including

"We have attached great importance to IPR protection. … Any IPR conflicts with regard to the Expo should be dealt with according to relevant laws," Hong Hao, director of the Bureau of Shanghai World Expo Coordination, said Wednesday [4/28] at a press conference amid public suspicion of plagiarism over the design of China's pavilion, mascot and theme song.

Monday, April 26, 2010

Johnny Appleseed: Kazakhstan frontman?

In an article on genetic testing within Science [328 Science 298, 302], one finds the text:

"Unfortunately, Chapman, no geneticist, had drawn on a narrow stock of European apples--itself a narrow selection of wild apples, which are native to Kazakhstan."

**Elsewhere in Science

on a piece on "homeostatic engineering," the sentence "Not so many years ago, adding a heterologous set of enzymes in order to augment the biosynthesis capacity of a microbe was acknowledged as a remarkable feat of rational design." 328 Science 286.

an "In memoriam" piece on Constance Holden, who was killed while riding a bicycle.

Obama disappoints with picks for bioethics panel

IPBiz almost fell off its chair reading the headline in Science of the article titled "Obama Picks Pragmatists for New Bioethics Panel," which included as a second sentence

The 12-member group, selected more for practical advice than for philosophizing, as the last one was prone to, will hold its first meeting in Washington, DC in July." [see 328 Science 291 (16 April 2010)]

One notes that 8 of the 12 members are academics [of the others, one is Muhammad Ali's wife, one is with Homeland Security, one is NIH, and one is Walter Reed.] But for Ali's wife, the members are all academics or government, hardly good locations for finding pragmatists.

One suspects the issue is politics, not pragmatism. Science quoted Robert George of Princeton: "I don't like the politics of most of them, but the records of achievement are great."

There are two lawyers among the 12, with each of the lawyers having a Ph.D. in, you guessed it -- philosophy. Anita Allen, of UPenn (like commission chairman Amy Gutmann and like foggy IP prof Polk Wagner), has an interesting distinction on her wikipedia entry: She is the first African American woman in history to hold both a J.D. and Ph.D. in philosophy.
Nita A. Farahany of Vanderbilt is the other lawyer, and holds JD and PhD degrees from Duke. An entry on her Vanderbilt page notes: In her current research, she uses biosciences to study agency and responsibility theory, and to challenge existing interpretations of the Fourth, Fifth and Eighth Amendments of the U.S. Constitution, not exactly the stuff of stem cell debates.

So, these selections look like "politics as usual," with liberal people replacing conservative people, all selected from among clueless academics. "Meet the new boss, same as the old boss."

**The cover of the May 2010 issue of Scientific American states "From your cells to stem cells. New cures may come from 'reprogramming' any adult cell." The author Konrad Hochedlinger talked about Shinya Yamanaka's groundbreaking study published in August 2006 on induced pluripotent stem cells. [referring to 126 Cell 663 (online Aug 10, 2006)]

Konrad writes "So stem cell scientists were surprised and a little bit skeptical of the Japanese group's results at first. But that morning in the lab, I could see firsthand the results of following Yamanaka's recipe."

Konrad notes that the first commercially marketed product from human iPSCs is a heart cell line called iCell Cardiomyocytes.

Konrad does not mention the Bayer patent applications that preceded Yamanaka's work. Konrad does cite a paper in Nature Reviews Genetics, the journal which housed Sticklen's now retracted paper.

[Scientific American, pages 46-53 (May 2010)]

More on Kagan role in Tribe plagiarism

In a post titled Supreme Court: Kagan Accused of Plagiarism Scandal Whitewash, the Institute for Public Accuracy brings up past discussion of Elena Kagan's role in the plagiarism by Laurence Tribe.

One does not expect this story to get much traction. Joe Biden copied five pages of a law review article into a first year paper at Syracuse Law School and almost no one remembered or cared.

The IPA post notes: Both Tribe and Ogletree taught Obama at Harvard

Separately, like Michelle Obama and Justice Sotomayor, Kagan was an undergrad at Princeton (degree 1981). She became a professor at University of Chicago Law School in 1991, and likely overlapped with Barack Obama at UChicago after 1994. (As a disclaimer, LBE was at UChicago Law, but did not talk to Prof. Kagan, but did talk to Lessig, among others).

So, yes, Obama knows Tribe, Ogletree, and Kagan from a time well before his political rise.

Prior IPBiz post:

Pure and irresponsible speculation on the blogger's part

Mishandled software redactions: the Blagojevich subpoena request

In previous posts (e.g.,
Disasters with Word's "track changes"
), IPBiz has highlighted downsides to using the "track changes" feature of Word. In the recent matter of attorneys for former governor Rod Blagojevich's defense team asking on 22 April 2010 for a subpoena of President Obama, one sees the consequences of not handling redactions properly.

From the capitolfaxblog, Blagojevich hurls allegations at Obama in bid to force testimony :

Rod Blagojevich’s attorneys filed a motion today to subpoena President Obama to testify at the former governor’s trial…

“President Obama has direct knowledge to allegations made in the indictment. In addition, President Obama’s public statements contradict other witness statements, specifically those made by labor union official and Senate Candidate B,” the motion said.

The motion is here. Several parts are redacted, but you can easily copy and paste the entire motion into a text file and view all the redacted material. Oops on somebody’s part.

See also
Redactions Revealed: The Six Secrets You Need to Know From the Obama Subpoena Request

***Separately, in terms of other blunders, from a CBS Nightly News piece done around 19 April 2010:

Nearly every digital copier built since 2002 contains a hard drive - like the one on your personal computer - storing an image of every document copied, scanned, or emailed by the machine.

In the process, it's turned an office staple into a digital time-bomb packed with highly-personal or sensitive data.

If you're in the identity theft business it seems this would be a pot of gold.

"The type of information we see on these machines with the social security numbers, birth certificates, bank records, income tax forms," John Juntunen said, "that information would be very valuable."

There was a New Jersey connection:

This past February, CBS News went with Juntunen to a warehouse in New Jersey, one of 25 across the country, to see how hard it would be to buy a used copier loaded with documents. It turns out ... it's pretty easy.

Most people don't know about the problem:

Ed McLaughlin is President of Sharp Imaging, the digital copier company.

"Has the industry failed, in your mind, to inform the general public of the potential risks involved with a copier?" Keteyian asked.

"Yes, in general, the industry has failed," McLaughlin said.

In 2008, Sharp commissioned a survey on copier security that found 60 percent of Americans "don't know" that copiers store images on a hard drive. Sharp tried to warn consumers about the simple act of copying.

"It's falling on deaf ears," McLaughlin said. "Or people don't feel it's important, or 'we'll take care of it later.'"

Further in the Pangilinan matter

Filomeno S. Sta. Ana III writes of the Pangilinan matter, and additionally brings up a student plagiarism matter involving applied physics students at the University of the Philippines, which students submitted a technical paper as part of the course requirement titled "Observation of biometric properties of leg movement and gait analysis using a geniometer."

The paper was a multi-student effort, and two of the students plagiarized their contributions to the paper. The non-plagiarizing students did suffer.

Returning to the Pangilinan matter, the plagiarism concerned a graduation speech given by Pangilinan. The speech was apparently ghost-written, so that Pangilinan himself may have been unaware of the plagiarism (so-called inadvertent or unintentional plagiarism). Nevertheless, Pangilinan resigned and, even in the face of a refusal to accept the resignation, Pangilinan persisted. Pangilinan did the honorable thing, even though these circumstances were murky as to "knowing bad acts" by Pangilinan. It may separately be the case that the university needed Pangilinan more than Pangilinan needed the university.

An irony here is that Pangilinan, a businessman, is not within the realm of academics, from where most of the taboos of plagiarism arise. Nevertheless, Pangilinan dealt promptly and concisely with the problem, unlike the situation with academics such as Laurence Tribe, Doris Kearns-Goodwin, Glenn Poshard or Professor Sticklen of Michigan State, all of whom committed acts far worse than what Pangilinan did. Go figure.

See previous IPBiz posts:

Manuel Pangilinan offers to resign over plagiarism

Ateneo de Manila University does NOT accept Pangilinan resignation

More unintended consequences

In August 2009, IPBiz, in the post
Unintended consequences of Clunkers program?
, likened the unintended consequences of "Cash for Clunkers" program to the unintended consequences of the USPTO's "reject, reject, reject" philosophy.

Another example of the government not working through something is found in new banking regulations; from the NY Times:

Stringent new banking regulations — aimed both at curbing tax evasion and, under the Patriot Act, preventing money from flowing to terrorist groups — have inadvertently made it harder for some expats to keep bank accounts in the United States and in some cases abroad.

Some U.S.-based banks have closed expats’ accounts because of difficulty in certifying that the holders still maintain U.S. addresses, as required by a Patriot Act provision.

“It seems the new anti-terrorist rules are having unintended effects,” Daniel Flynn, who lives in Belgium, wrote in a letter quoted by the Americans Abroad Caucus in the U.S. Congress in correspondence with the Treasury Department.


In response, Treasury Secretary Timothy F. Geithner wrote Ms. Maloney on Feb. 24 that “nothing in U.S. financial law and regulation should make it impossible for Americans living abroad to access financial services here in the United States.”

But banks, Treasury officials note, are free to ignore that advice.

One could also say "nothing in the proposed S.515 should make it impossible for small entities to obtain, and defend patents, in view of the post-grant review (aka opposition) procedure. But small entities are free to ignore that advice."

Sunday, April 25, 2010

Apple's missing iPhone: First Amendment vs. lost property

Of the iPhone 4G left in a Redwood City bar, Apple is working with local authorities; according to CNET:

Apple has spoken to local police about the incident and the investigation is believed to be headed by a computer crime task force led by the Santa Clara County district attorney's office, the source said. Apple's Cupertino headquarters is in Santa Clara County, about 40 miles south of San Francisco.

In Apple's favor is a California statute on lost property: any person who finds lost property and knows who the owner is likely to be but "appropriates such property to his own use" is guilty of theft.

On the flip side, the US Supreme Court in Bartnicki v. Vopper 532 U.S. 514 (2001) contemplated:

In New York Times Co. v. United States, 403 U.S. 713, this Court upheld the press’ right to publish information of great public concern obtained from documents stolen by a third party. In so doing, this Court focused on the stolen documents’ character and the consequences of public disclosure, not on the fact that the documents were stolen. Ibid. It also left open the question whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may punish not only the unlawful acquisition, but also the ensuing publication. Florida Star v. B. J. F., 491 U.S. 524, 535, n. 8. The issue here is a narrower version of that question: Where the publisher has lawfully obtained information from a source who obtained it unlawfully, may the government punish the ensuing publication based on the defect in a chain? The Court’s refusal to construe the issue more broadly is consistent with its repeated refusal to answer categorically whether the publication of truthful information may ever be punished consistent with the First Amendment.

The majority wrote of the case (which originated in Pennsylvania and concerned school pay issues):

We think it clear that parallel reasoning requires the conclusion that a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.22 The months of negotiations over the proper level of compensation for teachers at the Wyoming Valley West High School were unquestionably a matter of public concern, and respondents were clearly engaged in debate about that concern. That debate may be more mundane than the Communist rhetoric that inspired Justice Brandeis' classic opinion in Whitney v. California, 274 U. S., at 372, but it is no less worthy of constitutional protection.

Here, one might question whether Apple's trade secrets are a matter of public concern. In an earlier case, Apple invoked California's 3426.1. An effort to unmask the identity of blogger's sources ended at the California Appellate Court level; see
O'Grady v. Superior Court, 139 Cal.App.4th 1423 (Cal.App. 2006)

**In passing recall the '60's show Thunderbirds:

International Rescue guards its secret base, as its technology can be used to destroy life if it falls into the wrong hands. Determined to acquire their secrets and sell their technology to the highest bidder is a Malaysian criminal known only as The Hood, a master of disguise who is brother to Kyrano (manservant of Jeff Tracy ) and who possesses mysterious and powerful hypnotic ability.

Accidental plagiarism?

In describing a situation wherein a poet (later) discovered a substantial similarity between a poem he wrote and one in a book he owned, Tom Bartlett wrote:

This kind of plagiarism—if that's even the right word—is a different beast entirely from the cut-and-paste variety. Copying is obviously wrong. But where, exactly, is the line between being influenced by a writer and ripping him or her off?

The concept of "plagiarism" is an academic construct. In the legal world, the issue is one of copyright infringement. As to federal law, one is free to copy unprotected works, but one cannot copy protected works without permission (license).

The issues in copyright infringement are laid out in a recent Sixth Circuit case, Bridgeport v. UMG:

To establish that it has been copied, a plaintiff must either introduce direct evidence of the
defendant’s copying or prove it indirectly by showing that the defendant had access to
the plaintiff’s work and that there is a substantial similarity between it and the
defendant’s work, thus giving rise to an inference of copying. See Ellis v. Diffie, 177
F.3d 503, 506 (6th Cir. 1999). Even if access cannot be proven, a plaintiff may prevail
by showing a high degree of similarity between the two works. See id. at 507.

Of "substantial similarity,"

The Sixth Circuit has condensed the substantial-similarity inquiry into a two-part
test: first, the court must “‘identify[] which aspects of the artist’s work, if any, are
protectible by copyright’” and, second, “‘determin[e] whether the allegedly infringing
work is substantially similar to the protectible elements of the artist’s work.’” Kohus,
328 F.3d at 855 (quoting Sturdza v. United Arab Emirates, 281 F.3d 1287, 1295-96
(D.C. Cir. 2002) (internal quotation marks deleted)). Put another way, “copying is an
essential element of infringement and substantial similarity between the plaintiff’s and
defendant’s works is an essential element of copying.” Wickham v. Knoxville Int’l
Energy Exposition, 739 F.2d 1094, 1097 (6th Cir. 1984). To complete the first step, the
court must “filter” out elements of the work that are not original to the author. Murray
Hill Publ’ns, Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312, 318 (6th Cir.
2004) (noting that the standard for originality is quite low and that the “vast majority of
works make the grade quite easily”) (quoting Feist, 499 U.S. at 361). Scènes à faire,2
the indispensable or standard aspects of a work, or those that “follow directly from
unprotectable ideas” should be filtered out as well. Id. at 319.

*A comment->

One has to distinguish the concepts of "plagiarism," which is primarily an academic construct, from "copyright infringement," which is a federal legal term (and which was at issue in the Harrison matter). As to federal law, one is free to copy that which is not protected, and one could indeed claim to be the author of Hamlet, without federal penalty (see Dastar). As to federal law, intent is not an issue, and one analyzes whether there is a substantial similarity of protectable elements. The case of Glenn Poshard at SIU raised the issue of inadvertent plagiarism in the context of Poshard's Ph.D. thesis.

*Comment on April 26-->

As a general matter, I agree with the remarks of esautovar72. The general rule is what makes the Sticklen case at Michigan State so remarkable.

As to tebartlett, there are at least two interesting aspects to the Poshard matter. First, several of the professors argued that proper citation procedures were not well-defined for Ph.D. theses at the time of Poshard's thesis. [!] Second, of more interest to me (and far less discussed), is the copying done at page 54 of the thesis, wherein a section summarizing the "state of the art" was taken from someone else's book, without attribution [a bad thing] but the time frame of the copied text was entirely inappropriate for use in the context it was copied! [a serious academic error that none on the committee noted] It wasn't just copying without attribution, it was irrelevant and inappropriate copying.

Neither the Sticklen case nor the Poshard case appear to be cryptomnesia.

Google's Street View a problem in Germany?

From The Register, of the problem:

Google's roving Street View spycam may blur your face, but it's got your number. The Street View service is under fire in Germany for scanning private WLAN networks, and recording users' unique Mac (Media Access Control) addresses, as the car trundles along.

Germany's Federal Commissioner for Data Protection Peter Schaar says he's "horrified" by the discovery.


But Google's uniquely cavalier approach to privacy, and its potential ability to cross reference the information raises additional concerns. Google CEO Eric Schmidt recently said internet users shouldn't worry about privacy unless they have something to hide. And when there's nowhere left to hide...?

Street View used by crooks?--

A UK-based milkman and former football manager has questioned whether Google Street View played a role in a series of attempted burglaries on his home - one successful - after Google's virtual window onto the world's very real streets exposed a photo of his wide open garage.

Gordon Rayner, 54, suspects that burglars may have used Street View to target the contents of his garage, which are clearly visible in the photo snapped by one of Google's roving camera cars as it rode through the streets of Bradford. "People need to be aware of this: it's a serious invasion of privacy," Rayner tells The Reg. "It's basically shopping online for these crooks."

On 25 April, CBS Sunday morning did a piece on the "Google doodle."
Dennis Wong was the original Google doodler, and he noted the first rule in business (trademarks) is to leave the logo alone.
Two very different doodles were in barcode and in braille. A Halloween doodle had four different images, advanced by clicking.

Friday, April 23, 2010

NJ jury smokes Teva on Protonix (pantoprazole )

On April 23, 2010, a New Jersey jury found claims of a Pfizer patent covering the Protonix acid reflux drug (pantoprazole ) valid and infringed by Teva Pharmaceutical Industries.

See previous IPBiz post:

Wyeth undercuts Teva on Protonix

The original patent was to Swiss drugmaker Nycomed and was licensed to Wyeth, which is now owned by Pfizer.

Thursday, April 22, 2010

Letterman highlights inventor Nissen

On 22 April 2010, Dave Letterman did a piece on George Nissen who developed the trampoline and trademarked the name.

"Tomorrow belongs to me"?

The episode of CSI: Crime Scene Investigation on 22 April 2010 titled World's End had a Nazi-related theme. [Note song "Tomorrow Belongs to Me" performed by students in uniforms wherein the teacher says: a romantic dream; you've got to do it like you have genocide on your minds, tho there's a more intense line later about banana eaters]

In the real world, in Hamilton Township, NJ, on 20 April 2010, a man with a Nazi armband crossed WhiteHorse-Mercerville Road, going toward the library.
[For a picture, and commentary, see OK nazi or not a nazi ]

See also

Hitler, and the bunker, re-visited

Holes in the safest city conclusion?

from wikipedia on Cabaret:

The rise of the Nazis and their increasing influence on German society is dramatically demonstrated in the beer garden scene: A boy—only his face seen—sings to the seated guests what first seems an innocent lyrical song about the beauties of nature. This gradually becomes the strident "Tomorrow Belongs To Me" as the camera shifts to show that the boy is wearing a brown Hitler Youth uniform and lifts his hand in the Nazi salute. One by one, nearly all guests in the beer garden get up and voluntarily join in the singing and saluting.

***As a headsup, the plotline on the janitor's identity has been borrowed from another tv show. If one applied plagiarism standards of academe to tv, everyone would be expelled.

Artistic plagiarism from Winnipeg

The Winnipeg Free Press wrote:

Two Winnipeg artists are involved in a copyright dispute that is earning national attention.

The Globe and Mail reported Wednesday that the Montreal Museum of Contemporary Art (MMCA) has stopped screening a film by New York-based artist Marcel Dzama after he was accused of plagiarism by experimental filmmaker Deco Dawson.

At issue is Dzama's 19-minute film The Lotus Eaters, which he made in 2005 and which Dawson claims borrows uncredited footage from his 23-minute 2001 production, FILM (dzama).

IPBiz notes that the actual LEGAL issue involved is one of COPYRIGHT infringement, not an accusation of plagiarism.

On the facts in the story, the museum was showing a film which had (allegedly) taken copyrighted material without permission.

**Separately, Steve Duin in The Oregonian:

* On Thomas Mallon's Stolen Words: Forays into the Origins and Ravages of Plagiarism: "Fascinating stuff. As with kleptomaniacs, the thieves don't need what they take, and often leave clues suggesting they want to be caught. E.B. White divided plagiarists into thief, dope and total recall guy. The University of Oregon plagiarized Stanford University's handbook on plagiarism ... Joe Biden plagiarized from Neil Kinnock, R.F. Kennedy and Steinbeck. J.F. Kennedy and Theodore Sorenseon stole from O.W. Holmes, who had already been robbed by Harding. This 1990s book was too early for the outrages of Stephen Ambrose and Doris Kearns Goodwin."

The big plagiarism done by Joe Biden was NOT of Neil Kinnock's speech, but from a law review while Biden was a first year at Syracuse Law School. Biden was caught dead to rights and given an F. The problem with the Kinnock speech was that the facts taken by Biden from Kinnock did not apply to Biden. They were untrue as to Biden.

Of White's three classes, one wonders where inadvertent plagiarism resides. Glenn Poshard would not say he was thief, or a dope, and he definitely was not a "total recall guy" (who is a total recall guy in a Ph.D. thesis?)

The better "plagiarism definition" theft case is Poshard's SIU stealing its plagiarism definition from Indiana University. Stupidity and irony rolled up into one.

As to speechwriting, if we get wrapped up in phrases lifted without credit in speeches, we are going to have a lot to write about.

Of Ted Sorenson (not Sorenseon), wikipedia writes:

Theodore Chaikin "Ted" Sorensen (born May 8, 1928) is of counsel (retired Senior Partner) at the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP and writer, best known as President John F. Kennedy’s special counsel and adviser, legendary speechwriter, and alter ego. President Kennedy once called him his “intellectual blood bank.”

How does the image of an intellectual blood transfusion comport with ghostwriting, which is a form of plagiarism (copying the words of others without attribution)?

CAFC finds no 1338 jurisdiction in licensing case

In finding it had no jurisdiction in the licensing case involved in CLEARPLAY v. MAX ABECASSIS and NISSIM CORP, the CAFC quoted the Supreme Court in Christianson:

“a claim supported by alternative theories in the complaint may not form the basis for § 1338(a) jurisdiction
unless patent law is essential to each of those theories.” Id. We have consistently
applied those governing principles to determine whether particular claims, including
state law claims, can be said to arise under section 1338. See, e.g., Davis v. Brouse
McDowell, L.P.A., 596 F.3d 1355, 1359-62 (Fed. Cir. 2010); Thompson v. Microsoft
Corp., 471 F.3d 1288, 1291-92 (Fed. Cir. 2006); Uroplasty, Inc. v. Advanced
Uroscience, Inc., 239 F.3d 1277, 1279-80 (Fed. Cir. 2001); Hunter Douglas, Inc. v.
Harmonic Design, Inc. 153 F.3d 1318, 1325, 1328-29 (Fed. Cir. 1998).

The bottom line:

The first part of the Christianson test is plainly not satisfied in this case.
ClearPlay’s second amended complaint, which was before the court when the
preliminary injunction order was entered and appealed from, is entirely devoted to state
law causes of action. Thus, federal patent law does not “create[] the cause of action” as
to any of the claims in the complaint.


In sum, we have no jurisdiction over this appeal. Because it appears that the
district court had jurisdiction over this case based on diversity of citizenship, and
because an appeal to the Eleventh Circuit would have been proper when the appeal
was taken to this court, we conclude that it is in the interest of justice to transfer the
case to the Eleventh Circuit. See 28 U.S.C. § 1631.

If one wants to see "what can go wrong" in licensing,
the text of the CAFC decision is a good read.


Christianson v. Colt Industries Operating Corp., 486 U.S. 800 (1988)

Wednesday, April 21, 2010

Permanent injunction vacated over prosecution history disclaimer

In Ilight v. Fallon, a jury verdict is overturned, with the CAFC noting:

For the foregoing reasons, we hold that the district court erred in its construction
of the claim terms “rod” and “rod-like.” The jury should have been instructed that the
claimed invention did not include “hollow” structure for the waveguide and that, in order
to infringe, structure in the accused Fallon products corresponding to the waveguide
could not be “hollow.” We think that Fallon’s proposed claim construction, augmented
by appropriate instruction to the jury with respect to the “solid” requirement, would have
accomplished this.

Tuesday, April 20, 2010

Odd Horten learns from inventor posing as diplomat

In the Norwegian film O'Horten, the character Trygve Sissener passes himself off as a diplomat who has an inventor brother diagnosed as a schizophrenic (but who may be merely shy). The brother held a patent on a sewing machine to sew up people, but no one would buy it.

As viewers learn, Trygve was the problematic inventor and his brother Steiner Sissener is the diplomat. Trygve, the inventor, dies in the movie while driving a Citroen blindfolded, tho not directly because of driving blindfolded. The protagonist Odd Horten has a life change BECAUSE OF his odd encounter with the inventor.

To some, this movie might appear more coherent than "patent reform 2010" or S. 515.

Sadly, none of the discussion of inventorship within the movie appears in the wikipedia account.

**Separately, on theater of the absurd

Patent Absurdity , with Jim Bessen and others

Nike at the CAFC

The conclusion of the CAFC decision in Gillig vs. Nike states:

we affirm the [ND Tex] district court’s judgment that the
trade secret claims are barred by the statute of limitations. We reverse the court’s
judgment that the inventorship claims are barred by res judicata (except as to Triple
Tee’s claims based on the alleged 2000 assignment), and remand for further
proceedings on those claims.

Of the part of the decision in which Nike lost:

We agree that res judicata in general does not bar the
inventorship claims. Therefore, we reverse the district court’s dismissal of the
inventorship claims, with one exception.


In any event, we need not decide whether in this case Gillig controlled the
litigation in Triple Tee I, because the “control of litigation” exception does not apply to
claim preclusion but only to issue preclusion or collateral estoppel. Montana, 440 U.S.
at 154 (“Preclusion of such nonparties falls under the rubric of collateral estoppel rather
than res judicata because the latter doctrine presupposes identity between causes of
action. And the cause of action which a nonparty has vicariously asserted differs by
definition from that which he subsequently seeks to litigate in his own right.”);


To the extent
that Triple Tee is asserting an inventorship correction claim based on a purported 2000
assignment, that claim is, of course, barred, since the district court already found that
there was no assignment of rights in 2000. However, to the extent that Triple Tee is
asserting an inventorship correction claim based on a later 2005 assignment, there is no
bar. The first lawsuit did not address Triple Tee’s claims based on the 2005
assignment. The district court held that any 2005 assignment could not retroactively
resolve the standing issue of Triple Tee I. 2007 WL 4260489, at *22. Indeed, the court
stated that in light of the events occurring after the filing of the first action, “the court
would be at a loss as to what parties have ownership interests in the intellectual
property involved in this litigation.” Id. at *28.

CAFC test: whether a reasonable examiner would be so befuddled

The issue in the case pertained to "incorporation by reference" of an application
filed on the same day, at a time when the application number of the incorporated
reference was not known.

Within the CAFC decision in Harari v Hollmer :

In other words, the relevant inquiry is whether a
reasonable examiner would be so befuddled by the language
of the original disclosure,
despite the explanation provided in the transmittal and preliminary amendment, that he
could not determine what document was intended to be incorporated by reference. See
In re Fouche, 439 F.2d 1237, 1239 (CCPA 1971); see also 37 C.F.R. § 1.57(g)(2).

Of the practical question of "how to update" previously incomplete information (e.g., a
previously unknown application number), the CAFC notes:

It is not inappropriate for an application to identify for the purposes of
incorporation by reference a co-pending application by title, inventors, and a context-
specific filing date, where such information is sufficient to identify the application at the
time the information is presented. 37 C.F.R. § 1.57(g)(2). It is not new matter, and
indeed it is strongly encouraged, to later amend the identifying language to recite a
serial number and filing date, when that information becomes available. Id.; see also
Scarring Corp. v. Megan, Inc., 222 F.3d 1347, 1352-53 (Fed. Cir. 2000) (holding that
renaming or re-identifying items in the disclosure to comport with later-developed and
more precise nomenclature is not new matter). There is no specific deadline by which
such a clarifying amendment must be made.

Background on incorporation by reference:

Whether and to what extent a patent incorporates material by reference is a
question of law reviewed de novo. Cook Biotech Inc. v. Acell, Inc., 460 F.3d 1365, 1376
(Fed. Cir. 2006).

Within the case:

Harari argues that the ’880 application filing makes
clear to any reader that the “same day as the present application” is the day on which
the parent application was filed. He argues that the inventor’s declaration need not
refer to the preliminary amendment in order for the examiner to enter the amendment
because the preliminary amendment does not contain any new matter compared to the
initial parent application. 37 C.F.R. § 1.63(d)(1)(iii).

Monday, April 19, 2010

Do exclusive licenses block competition in the gene testing market ?

There's some buzz on Gene patents and licensing: Case studies prepared for the Secretary’s Advisory Committee on Genetics, Health, and Society by Robert Cook-Deegan, MD, and Christopher Heaney, BA, with abstract:

Researchers at the Center for Public Genomics at Duke
University analyzed how patenting and licensing affect clinical access
to genetic testing in the United States. The research was requested by
the Secretary’s Advisory Committee on Genetics, Health, and Society. [(SACGHS) ]
Conditions studied were breast and ovarian cancers, colon cancers,
Alzheimer disease, cystic fibrosis, hearing loss, hereditary hemochro-
matosis, long QT syndrome, spinocerebellar ataxia, Tay-Sachs disease,
and Canavan disease.In January 2007, the graduate and professional student cap-
stone section of Duke’s Health Policy Certificate program made
the task force its client. Students enrolled in Professor Christo-
pher Conover’s course were joined by Dr. Subhashini Chan-
drasekharan of the CpG, Julia Carbone, a LLM student at Duke
Law, and Dr. Robert Cook-Deegan.


Anthony D. So et al., Is Bayh-Dole Good for Developing Countries? Lessons from the US Experience, 6 Plos Biol 2078, 2081 (2008), available at

And from IPBiz

CBS copying CBS?

The Backfire episode of CSI: Miami on April 19, 2010 starts with a flaming home, with a child inside, and some interesting flame special effects. The kid is saved, but later is pronounced dead. Borrowing a page from CBS GhostWhisperers/Medium shows. CSI shows the kid's ghost looking at the kid's body, saying I'm not dead. With so much self-borrowing going on at CBS, it's getting tough to recognize which show you're watching. The show summary A murder victim's spirit won't leave Calleigh alone until she solves his case sounds straight out of Medium. Yes, Calleigh sees, and talks to, the dead kid.

Query: is self-plagiarism plagiarism? SIU said no.

Chemistry note on turpentine: Turpentine is a fluid obtained by the complex distillation of resin obtained from trees, mainly various species of pine (Pinus). It is composed of terpenes, mainly the monoterpenes alpha-pinene and beta-pinene.

iPads Problematic at Princeton

from TechNewsDaily :

The problem stems not from the iPad's popularity but from the way it connects to wireless networks. Princeton University in New Jersey has blocked 20 percent of the iPads on campus because of "malfunctions that can affect the entire school's computer system."
In a report, Princeton said the iPad causes DHCP client malfunctions, which basically means the tablet causes interference for other devices using the school's wireless network. In order to prevent that interference, Princeton has been blocking the offending iPads.

Bernards man victimized by volcano

Of a New Jerseyan stranded in Europe because of the Icelandic volcano, AP wrote:

Many stranded travelers are also fretting over lost paychecks. Tom Napier - an American stuck in Oslo, where he had been visiting a friend - said his prolonged absence from his job as a high school history teacher in Bernards, New Jersey, will "more than likely" affect his salary.
"I am a little afraid that my pay will be docked," said Napier, 35. "I also have tutoring jobs during the week that usually supplement my salary. That will be gone. And even if I don't get my pay docked, all my days off will have to be charged as sick days."


Nicolas Ribard, 29, from Avignon, France, was among about a dozen stranded tourists squatting on sleeping bags that Narita airport officials had lent them. He and three other friends had about 3,000 yen between [sic: among?] them, and were surviving on airport-issued crackers, bottled water and coupons for one free shower a day.

[No credit cards?]

Judge Michel to speak on April 20: ‘How to Revise the PTO and the Patent System’

Chief Judge Michel
‘How to Revise the PTO and the Patent System’

Tuesday, April 20, 2010
Madison Auditorium South
10:00 am – 11:00 am

Chief Judge Michel is the recipient of the 2009 PTOS Federico Award, which recognizes outstanding contributions to the Patent and Trademark Systems of the United States of America.

Paul Michel was appointed to the United States Court of Appeals for the Federal Circuit in 1988. He was elevated to Chief Judge in 2004.

Toyota to accept fine over sticky pedals?

Back on 23 March 2010, Jerry Flint had a piece in Forbes titled: Toyota, Flying Saucers And Bigfoot which included text about the Toyota acceleration issues:

Then The New York Times ran an op-ed piece by a UCLA psychology professor (emeritus) questioning all such claims. The writer, who had worked on the issue years ago, wrote that they were usually driver error--stepping on the accelerator pedal instead of the brakes--and noting that older drivers tend to make these mistakes more often.

Flash forward to 19 April 2010, and AP has a story titled Toyota set to agree on record fine, AP source says which includes:

Toyota faces a Monday [April 19] deadline to accept or contest the $16.4 million fine, the largest ever assessed by the government against an automaker, over evidence it knew about the defective gas pedals in September but did not issue a recall until January.
The fine was based upon timelines provided by Toyota that showed it had known about the sticky pedal defect at least since Sept. 29, 2009, when it issued repair procedures to distributors in 31 European countries to address complaints of sticking pedals, sudden increases in engine RPM and unexpected vehicle acceleration.
The documents also indicated that Toyota knew that owners in the U.S. had experienced the same problems.

Hmmm, this time the "blaming the old people" defense may not have worked.

See also

Thinking about Sikes' Prius: issues of proof

**Separately, see the article titled Toyota response to complaints takes on a confrontational tone;
Special teams are sent to investigate, and sometimes discredit, reported problems
in April 9, 2010 Los Angeles Times,
including text

Critics say the company is acting prematurely and in some cases spreading misinformation.
"It is a very aggressive and misleading campaign," said Clarence Ditlow, executive director of the Center for Auto Safety. "Toyota can't win this battle by slinging mud, but they are trying."


Ditlow is furious over an e-mail Toyota sent to some reporters, a copy of which he provided to The Times, alleging that he was on the payroll of plaintiff attorneys. Ditlow said that neither he nor his organization takes money from law-yers. Ditlow said his funding comes from nonprofit foundations, auto insurers, consumers and its publications.
Congressional investigators, meanwhile, complain that Toyota has sent multiple teams of lobbyists after them to sow discord among committee staffers. Toyota lobbyists are trying to disrupt the House Oversight and Government Reform Committee's investigation, a staffer on the committee said.
Toyota has also taken on several congressional witnesses.
David Gilbert, a professor of automotive technology at Southern Illinois University at Carbondale, testified before the House Energy and Commerce Committee in February that his experiments showed potential flaws in Toyota's elec-tronic engine control system.
Two Toyota employees resigned from a board of advisors for Gilbert's academic department.

Cheating at Stanford

From an article in networkworld by Carolyn Duffy Marsan:

Stanford University disclosed in February that 23% of its honor code violations involved computer science students, although these students represent only 6.5% of the student body. Of 123 honor code violations investigated last year by Stanford's Judicial Panel, 28 involved computer science students.

"The tools that we employ make it easy to catch students cheating," says Professor Mehran Sahami, associate professor of computer science at Stanford University. "I wouldn't say that computer science students violate the honor code more often or are any more dishonest."

Sahami says computer science students mistakenly believe that writing software code is similar to solving a mathematical proof, where one correct answer exists. What students don't realize is that software code is more akin to writing an essay and that a significant amount of creativity is involved.

"One of the things that happens in computer science and contributes to the cheating rates is that students are unaware of how dissimilar programs that do the same task really look," Sahami says. "They tend to think that it's OK if they copy portions of someone else's program. But our tools can discover this."

IPBiz notes that -- significant amount of creativity -- sounds a bit different than the TechDirt view of software writing.

"60 Minutes" on stem cells and 21st Century Snake Oil

On 18 April 2010, "60 Minutes" used hidden cameras to expose medical conmen who prey on dying victims by using pitches that capitalize on the promise of stem cells to cure almost any disease. The targets were heavy duty fraudsters.

Ironically, at a different level, the charge of 21st century snake oil might also apply to the backers of California's Proposition 71 who also preyed on victims by promising that stem cell research could offer cures to many diseases. One of the victims in the "60 Minutes" story was quoted "Oh, I wanted to believe.", which could just as well apply to voters for Proposition 71.

Of the "60 Minutes" story, one of the fraudsters was one Larry Stowe, of whom "60 Minutes" stated:

Larry Stowe is not a medical doctor. He claims two PhDs, but we found he only has one in chemical engineering. He had a career at Mobil Oil and holds patents in the oil industry.

IPBiz notes that Lawrence R. Stowe is the named inventor on US 4,441,986, titled Shale retorting with inorganic removal prior to combustion, assigned to Mobil. The first claim states:

A process for the recovery of hydrocarbon products and energy from oil shale, including separation of coke from shale, comprising:

(a) feeding raw shale into a surface retort;

(b) retorting the raw shale in the retort to recover hydrocarbon products and produce coke on the inorganic matrix;

(c) removing the retorted shale from the retort;

(d) recovering sensible heat from the retorted shale;

(e) crushing the retorted shale to a size sufficient so that the coke and inorganic matrix may be separated;

(f) separating the crushed, retorted shale into a coke fraction and an inorganic matrix fraction;

(g) contacting the coke fraction with either superheated steam or air in order to form carbonaceous product gases at a temperature of to C.; and

(h) recovering process heat from said product gases.

Separately, Lawrence R. Stowe is co-author of "Mass transfer with heterogeneous and first order homogeneous reaction using the film theory" out of the Department of Chemical Engineering at the University of Illinois, published in Chemical Engineering Science.

Of Proposition 71 as snake oil, see, for example:

Proposition 71: a $3 billion jug of snake oil?

New Jersey voters reject bond measure on stem cell research on 6 Nov 07

Stem cell research: disservice in the eye of the beholder?

Lilly's first quarter earnings drop

Back at the time of the Cipro/anthrax story, drug companies were worried about government involvement in drug pricing.
Later, of course, a certain Louisiana Congressman helped out big time. Now, there is a cutback.

From a story at WSJ by Nathan Becker about Lilly:

The charges stem from taxing subsidies given to companies for covering retirees' prescription drugs—similar to many other firms' recent announcements—and higher government rebates cutting revenue up to $400 million.

[from DJN: But the company said anticipated impacts from recently passed U.S. health-care reform would cut this year's profit some 35 cents a share from taxing subsidies given to companies for covering retirees'; prescription drugs--similar to many other firms' recent announcements--and higher government rebates cutting revenue up to $400 million.]

Not to worry: Sales of Zyprexa, Lilly's antipsychotic drug, rose 8.2%, while depression treatment Cymbalta jumped 13%.

IMS may have missed the issue from the new health plan:

Adding to the pressure of patent expirations, European governments will tighten price cost controls to manage increasing health care expenses of aging baby boomers. Unlike in the U.S., many European governments set national price limits for drugs dispensed within their countries.

Taxing subsidies vs. price limits?

from powerstrokenation on the situation at Caterpillar:

Since the Medicare drug program was enacted in 2003, Caterpillar and more than 3,500 companies that already provided drug benefits for retirees have received tax-free subsidies from the federal government as an incentive to maintain their drug programs.

The subsidies average $665 per person covered under a company-sponsored prescription program, according to benefits consultant Towers Watson, which recently completed a study on the health-care legislation's effects.

Watson Towers estimates federal taxes on the drug subsidies would amount to $233 per person receiving drug benefits under such programs.

About 40,000 Caterpillar retirees receive company-sponsored drug benefits, which are more generous than Medicare's drug plan, in which recipients are required to pay some out-of-pocket expenses.

Proponents of subjecting the drug benefit subsidies to federal income taxes argue that Caterpillar and other companies are already able to deduct health care benefit costs, including the drug program, from their taxes as a business expense.

Sunday, April 18, 2010

Clinton alludes to Christie on "This Week"

from blogs.abcnews: Clinton added, “I worry about these threats against the president and the Congress. And I worry about more careless language even against -- some of which we've seen against the Republican governor in New Jersey, Governor Christie.” A recently leaked memo from a New Jersey teachers union contained a joke suggesting that Governor Christie should die.

One might ask Clinton: if you really want to change the climate, why aren't there consequences to these remarks? Looking at the details of the Christie matter, it might seem that the biggest concern of the NJEA was "getting caught," not with the problematic statement itself.

The Newark Star Ledger on April 16, 2010 said in a page one article "For an NJEA leader, his 'joke' gets old"

After it was made public by the Record a week ago, union officials apologized for the inappropriate 'joke" that was meant to stay private.

The "meant to stay private" comment evokes the emails of ClimateGate. The problem with the emails was the actions that were revealed, including fiddling with the refereeing process, not that the emails were meant to stay private.

Returning to the Christie matter, NJEA President Barbara Keshishian has been quoted: “I really think this is being blown totally out of proportion. It’s a very unfortunate incident. … I don’t believe that NJEA members will consider it anything to be ashamed of, especially when they know their state organization has issued a formal apology.”

Kevin Ferris in the Philly Inquirer wrote:

And it turns out he [Christie] was serious when he said he'd take on special interests and unions.

This last, inadvertently, has brought prayer back into the schools - even if it is just a teachers union official praying for the governor's demise. I know it was just a joke, and, yes, the apology was swift and unequivocal. But Christie is right to call the jest "beyond the pale," and to wonder what the punishment would be for a third-grader who made a similar remark.

IPBiz notes the dichotomy in punishment has parallels in the plagiarism area. Students who commit plagiarism generally face stern punishment (ask Allison who literally walked the plank at Semester at Sea) but "adult" academics who plagiarize get wrist slaps (Laurence Tribe at Harvard).

Saturday, April 17, 2010

CAFC affirms ED Va in Verizon case

The substantial evidence standard appears at various places in the opinion for Verizon v.
Cox Fibernet.

infringement is a question of fact, reviewed for substantial evidence when tried to a jury.
Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1309 (Fed. Cir. 2009).

Of conflicting expert testimony:

Both of these factual disputes were properly for the jury to decide. The jury was
entitled to credit Cox’s experts over Verizon’s experts and thus it was not unreasonable
for the jury to find that claim 1 of the ’481 patent was not infringed. See Kinetic
Concepts, Inc. v. Blue Sky Med. Group, Inc., 554 F.3d 1010, 1024 (Fed. Cir. 2009)
(finding that a jury is at liberty to accept or reject expert testimony); accord Aldridge v.
Balt. & Ohio R.R. Co., 789 F.2d 1061, 1065 (4th Cir. 1986), aff’d en banc, 814 F.2d 157
(4th Cir. 1987).

The bottom line:

For the foregoing reasons, we affirm the district court’s denial of Verizon’s motion
for a new trial on all issues based on Cox’s allegedly improper arguments regarding
claim scope. We also affirm the district court’s denial of both parties’ motions for JMOL
of validity or invalidity and Verizon’s alternative request for a new trial on validity of the
Feature Patents. Finally, we affirm the district court’s denial of Verizon’s request for
JMOL on infringement of claim 1 of the ’481 patent and its request for a new trial on
infringement of the asserted claims of the Quality of Service Patent.

"Crash Dummies" survive CDM collision

William C. Rooklidge defended Mattel in a trademark challenge
brought by The Crash Dummy Movie, LLC.

The issue in the case came from a failure to file by Mattel:

While Mattel was developing new toys, the USPTO cancelled the
registrations for the CRASH DUMMIES marks on December 29, 2000, because Mattel
did not file a section 8 declaration of use and/or excusable nonuse for the marks.

The nub:

The only disputed issue before the Board was whether Mattel was entitled to claim common law trademark
rights to the CRASH DUMMIES marks predating CDM’s March 2003 filing date.

At the TTAB:

However, the
Board concluded that Mattel rebutted the presumption of abandonment of its common
law trademark rights by showing “reasonable grounds for the suspension and plans to
resume use in the reasonably foreseeable future when the conditions requiring
suspension abate.”

The substantial evidence standard was in play:

Abandonment of a trademark is a question of fact, which this court reviews for
substantial evidence. On-Line Careline, Inc. v. Am. Online, Inc., 229 F.3d 1080, 1087
(Fed. Cir. 2000). The substantial evidence standard requires this court to ask whether a
reasonable person might find that the evidentiary record supports the agency’s
conclusion. Id. at 1085. “[T]he possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency’s finding from being supported
by substantial evidence.” Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966).

Evidentiary rulings were at issue:

In addition, this court reviews evidentiary rulings for an abuse of discretion. Chen
v. Bouchard, 347 F.3d 1299, 1307 (Fed. Cir. 2003) (citation omitted). This court
reverses the Board’s evidentiary rulings only if they: (1) were clearly unreasonable,
arbitrary, or fanciful; (2) were based on an erroneous conclusions of law; (3) rest on
clearly erroneous findings of fact; or (4) follow from a record that contains no evidence
on which the Board could rationally base its decision. Id. (citation omitted).

Common sense (recall KSR?) appears in the case:

Second, common sense supports the conclusion that Mattel would not have
recorded Tyco’s trademark assignment with the USPTO in 1998 unless it intended to
use the CRASH DUMMIES mark within the foreseeable future.

Friday, April 16, 2010

KSR: "the justices just did not seem to get it"

Joff Wild reprises the "biggest IAM blog story of all time," which happened to be about KSR v. Teleflex, and which included

When you see Supreme Court justices struggling, hasn’t something gone very wrong? If they don’t get it, what hope for anyone else that has not spent years and years studying the subject?

IPBiz notes that the Supreme Court likely initially thought this was a simple matter (generating a lot of noise), which they could easily sort out. To rule on obviousness, the court selected a nonprecedential case of the Federal Circuit (CAFC), which did not actually comprise a holding on obviousness itself. Sensing the seriousness of the situation, the CAFC issued a number of rulings on obviousness AFTER the Supreme Court granted cert.

At this point, there may be greater appreciation that the determination of "what is obvious" is not such a simple task.

On obviousness, at BPAI, Ex parte Baxter

Pure and irresponsible speculation on the blogger's part

Buried within a story about the Kagan/Domenech flap, Howard Kurtz of the Washington Post writes:

The [Washington] Post's Web site briefly hired Domenech as a conservative blogger in 2006. He resigned three days after his debut after a flurry of plagiarism allegations that were trumpeted by liberal Web sites.

Plagiarism is frequently used as a pretextual device by conservative/liberal critics to get rid of opposing liberal/conservative advocates. Domenech was accused of plagiarism in a movie review and in stuff in a college newspaper. On the flip side, Biden was attacked for plagiarism in a law school writing class at Syracuse.

In the present incident related to Kagan, CBS "re-broadcast" Domenech's allegations and initially stood by the decision:

Dan Farber, editor in chief of, said that Domenech's column "just got through our filters" and that if his staff had seen "a controversial statement like that, we'd want to get more evidence of its accuracy" before publishing it. "But once it is out there," Farber said, "the better approach is just to address it head-on rather than trying to sweep it under the rug."

The Kurtz article also included:

Farber said in a statement that "after looking at the facts we determined that it was nothing but pure and irresponsible speculation on the blogger's part."

IPBiz had discussed the earlier Domenech plagiarism business:

Concerning lists of blogging tips
, which post included some potentially troubling things about Kagan:

Has it occurred to you that the reason Summers and Kagan were so "firmly convinced" Tribe's plagiarism was the product simply of "inadvertence" was that Tribe's defense was, basically, "my ghostwriter did it"? That would be a valid defense to intentional plagiarism, wouldn't it? Kagan seems to have some personal experience with Tribe's extensive use of ghostwriters, as it seems she was one of Tribe's ghostwriters in the1980s as a student. Someone with a sense of humor (maybe a warped one) is impersonating Tribe at, and there "Tribe" talks about the 32 students who wrote the second edition of his treatise. I thought it was a joke, but the preface actually lists 32 students (obviously they drafted much of it, which is why he needed so many students; as you pointed out with Judge Posner, it takes many fewer helpers if one writes a book oneself, and typically Posners books have only one to three research assistants). And one of the students is "Elena Kagan," who I assume is the same Elena Kagan who is now dean.

Washington Post blogger accused of plagiarism

WH blasts CBS News blogger's column about Kagan's sexuality


On "Face the Nation" on April 18: "People will say anything when they have the cloak of anonymity." In context, the comment was about anonymous bloggers. However, in light of the ghostwriting issues above, it apparently applies to anonymous ghostwriters.

[Kathleen Parker piece on Face the Nation]


from Michael Yaki:

But there is another ethics side of blogging that has had me hit the "pause" button on occasion. Indeed, it caused me to take down a post just a few days ago -- not because of any factual problems, which were all taken from Chronicle stories, but because, in the end, as much as I thought I made a valid point, it was something that I didn't need to say.

"A quoi sert un enfant nouveau-né?"

In response to an inquiry about the value of hot air balloons observed in Paris in 1783, Benjamin Franklin supposedly re-queried:

"A quoi sert un enfant nouveau-né?"

When an invention is in its infancy, all the possible uses are not foreseeable. Ben Franklin understood this in 1783. More than 200 years later, Mark Lemley would suggest that the inventors of the transistor thought it was only good for hearing aids, a conjecture that is simply not true.

[See WHAT THE STORY OF THE INVENTION OF THE TRANSISTOR TEACHES US ABOUT 21ST CENTURY PATENT PRACTICE and articles cited within, including Lawrence B. Ebert, Foreseeing a Not Obvious Future, INTELL. PROP. TODAY, Sept. 2004, at 34, 34–37 (discussing the history of the transistor), and Lawrence B. Ebert, Foreseeability and the Transistor, INTELL. PROP. TODAY, Oct. 2004, at 41
mentioning that Professor Holonyak wrote:

It is “untrue” (not the least correct) that the originators of the transistor foresaw
only hearing-aid applications. That is a totally naive thought-wrong to even
contemplate that scientists so ingenious as to devise a totally new amplifying and
switching element in a semiconductor, uncover an entirely new idea and device (in
a solid substance!) and then would be so limited and think it might have only one
application, only hearing aids. What a naive, ridiculous view! No first rate
scientist, or patent attorney drawing up claims, is that one dimensional. ]

In the meantime, Franklin's clever rejoinder is largely forgotten, but Professor Lemley is the most cited IP professor according to Dennis Crouch at Patently-O, who searched for the number of law review citations associated with each IP-professor using the Westlaw JLR database.

Within an article on Franklin, author Andrew Alden describes Franklin's approach to analysis of the
haze in the Northern Hemisphere in 1783:

All he knew was that this strange fog dimmed the sun, as measured by actual experiment. Nowadays scientists may lay claim to a speculative idea by slipping it into an unrelated paper, but that was not the style in Franklin's time.

One notes that in the Michigan State plagiarism business, one had an initial set of authors slipping their (arguably original) idea into their "review" article, only to have it taken by the referee, who placed the idea into her review article.


Plagiarism by Michigan State professor

The eruption that changed Iceland forever, discussing the Laki eruption of June 8, 1783. Benjamin Franklin had included the Icelandic eruption of 1783 in his thoughts about the haze.

**See Mark A. Lemley & R. Anthony Reese, Reducing Digital Copyright Infringement Without Restricting Innovation, 56 Stan. L. Rev. 1345 (2004)

n160. See, e.g., Richard R. Nelson & Sidney G. Winter, An Evolutionary Theory of Economic Change 130 (1982); AnnaLee Saxenian, Regional Advantage: Culture and Competition in Silicon Valley and Route 128 (1994); Carol
Haber, Electronic Breakthroughs: Big Picture Eludes Many, Electronic News, June 13, 1994, at 46 (detailing numerous examples of fundamental inventions that the inventor herself did not fully appreciate); Nathan Rosenberg, Factors Affecting
the Diffusion of Technology, 10 Explorations in Econ. Hist. 3 (1972). Among the inventors who did not recognize the potential of their ideas are Marconi, who expected the radio to be used only for point-to-point communications
rather than mass broadcast; the inventors of the transistor, who anticipated its use in hearing aids; and the inventors of the VCR, who anticipated it would only be used by television stations. Id.; cf. Michael A. Carrier, Unraveling the Patent-
Antitrust Paradox, 150 U. Pa. L. Rev. 761 (2002) (arguing that innovation should be the paramount concern in setting intellectual property policy, albeit in a different context).

**A further thought on innovation:

From the printing press to instant cameras, from pay-per-view to VCRs, pornographers -- both professional and private -- have been among the quickest to jump on board with newly developed gadgets.

The first public screening of a movie was in 1895. Less than two years later, Coopersmith notes, the first "adult" film was released.

"The classic example is the VCR," said Oliver Marc Hartwich, an economist and senior fellow with Centre for Independent Studies, a conservative Australian think tank. "When it was introduced, Hollywood was nervous because the big studios feared piracy. They were even considering suing the VCR producers.

"Not so the adult industry. They saw it as a big new market and seized the opportunity."

**Winter of 1780

While most people think the 1777-1778 Valley Forge encampment had a bad winter, in reality it was just an average winter. The following winter at Middlebrook [1778-1779] was mild. Weather historians agree that the Morristown winter of 1779-1780 was the worst winter of the 18th century.


Winter of 1779-1780: This winter was so cold that ice was piled 20 feet high along the Delmarva Coast and stayed there until spring! The upper portion of the Chesapeake Bay froze solid south to the mouth of the Potomac River. People were able to walk from Annapolis to Kent Island. Even sleighs and loaded vehicles made the crossing. Even the lower Virginia portion of the bay was frozen across. Jefferson noted that such an extensive freeze of the tidal waters had not been noted before including the hard winter of 1740-1741.

Winter of 1783-1784: This was considered "The Long Winter" and while not as cold as 1780, it lasted longer into the spring making it harder for some of the settlers. The winter was thought to have ranked near the top of the extremes for both cold and snow depth. It began with snow at Christmas and was followed by cold and more snow. Jefferson noted morning temperatures in Annapolis of around 0� for four consecutive days. Later in the month colder days occurred that were too cold to be registered by his thermometer. The prolong cold froze up the harbors and channels of the Chesapeake Bay. Baltimore Harbor was frozen up on January 2nd and did not reopen until March 25th and then only with the assistence of an ice cutter! The Bay was reported to have frozen nearly to its entrance. Many ships were lost from the ice.

Revolutionary Minds[Jefferson & Madison "revolution" against UK weather-monitoring practices]

**Daniel Fahrenheit proposed his scale in 1724. A mixture of ammonium chloride and ice form a frigorific mixture at -17.8 degrees Celsius or 0 degrees Fahrenheit. When salt is placed on ice when the ambient temperature is greater than −17.8 °C (0°F), then the salt melts some of the ice and the temperature drops to −17.8. Since the mixture is colder than the ambient, heat is absorbed and the temperature rises. This causes the salt to melt more of the ice to drive the temperature down again. The process continues until all of the salt is dissolved in the melted ice. If there is enough salt present, then all of the ice will be melted. [from wikipedia ]

Thursday, April 15, 2010

US government use of US patents

In Hornback v US, the CAFC discusses issues with the Invention Secrecy
Act, 35 U.S.C. § 183 and with 28 U.S.C. § 1498.

***See articles by LBE:

Where have you gone, Richard K. Lyon?, Int. Prop. Today, p. 20 (Dec. 2001) (discussing patent issues with CIPRO during the anthrax scare)

The Impact of World War I on Present Day Patent Issues, Int. Prop. Today p. 35 (Feb. 2005).

***See also


***See also

Crater Corp. v. Lucent Techs., Inc., 255 F.3d 1361, 1364 (Fed. Cir. 2001).
Exclusive jurisdiction for the Court of Claims has been established since 1918. 40 Stat. 705 (1918).

Journal publication the opposite of patents??

Within a post titled Office for Technology Commercialization supports Congress’ patent reform bill , one finds the urban legend:

“A professor’s job is to do research, discover and publish — the opposite of the goal with patents, where you’re looking for monopolies and keeping things secret for a while.” [attributed to David Poticha, senior licensing manager at the University of Colorado Denver’s Anschutz Medical Campus Technology Transfer Office by author TARA BANNOW ]

Compare to the bottom line in 8 JMRIPL 80:

The story of the invention of the transistor illustrates a case in which journal
publication and patenting worked hand-in-hand. Society promptly got the benefits of
the knowledge of the inventors, which impacted upon a number of areas.79 These
areas were readily developed by other researchers and by patent licensees.

Elsewhere in the article by Bannow:

Universities, which tend to be more strapped for cash than major corporations, have a difficult time defending themselves in court against patent infringement accusations, said Stephen Heinig, lead science policy analyst of the Association of American Medical Colleges. The AAMC, along with five other higher education associations, wrote a letter to Congress in March supporting the reform.

A patent lawsuit currently costs about $5 million, Hines said.

He said it’s unclear whether the bill will alleviate the biggest roadblock to patenting university ideas: the “publish or perish” motto that convinces faculty members to write papers rather than file patents on their discoveries.

In academic circles, publishing continues to be the main avenue to tenure, Poticha said.

“You don’t go to major meetings and conventions and have people put up patent citations on the PowerPoint,” he said. “It’s always journal articles.”

But if the paper comes before the patent, third parties have the opportunity to snatch the idea with a patent before the actual investigator can.

The bill would put the United States in line with the rest of the world by moving to a “first to file” system in which the invention’s creator gets priority through the creation of a grace period.

The article suggests universities are worried about being patent infringement defendants. Most big cases (eg, Ariad v. Lilly; URochester v. Searle) have the university in the role of plaintiff. What was Bannow thinking?

IPBiz notes that S.515 has nothing to do with the concept expressed in the sentence: He said it’s unclear whether the bill will alleviate the biggest roadblock to patenting university ideas: the “publish or perish” motto that convinces faculty members to write papers rather than file patents on their discoveries. Obviously, the professors at MIT and Harvard related to the Ariad case were NOT "convinced" to write papers rather than file patents on their discoveries. Bannow should read

Missing the point on Bayh-Dole

USPTO found "too broad" in giving "broadest reasonable construction"

In Suitco Surface, an appeal of a re-exam, the CAFC found: Because the PTO’s rejection was
based on an unreasonable construction, this court vacates and remands.

Within the case:

“During reexamination, as with original examination, the PTO must give claims
their broadest reasonable construction consistent with the specification.” In re ICON
Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (citing In re Am. Acad. of
Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004)). This Court thus reviews the PTO's
interpretation of disputed claim language to determine whether it is “reasonable.”
In re Morris, 127 F.3d 1048, 1055 (Fed. Cir. 1997).

The rub:

Although the PTO emphasizes that it was required to give all “claims their
broadest reasonable construction” particularly with respect to claim 4’s use of the open-
ended term “comprising,” see Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed.
Cir. 1997) (“the open-ended term comprising . . . means that the named elements are
essential, but other elements may be added”), this court has instructed that any such
construction be “consistent with the specification, . . . and that claim language should be
read in light of the specification as it would be interpreted by one of ordinary skill in the
art.” In re Bond, 910 F.2d 831, 833 (Fed. Cir. 1990) (quoting In re Sneed, 710 F.2d
1544, 1548 (Fed. Cir. 1983)) (emphasis added).

Too broad:

The PTO’s construction here, though certainly broad, is unreasonably broad.
The broadest-construction rubric coupled with the term “comprising” does not give the
PTO an unfettered license to interpret claims to embrace anything remotely related to
the claimed invention. Rather, claims should always be read in light of the specification
and teachings in the underlying patent. See Schriber-Schroth Co. v. Cleveland Trust
Co., 311 U.S. 211, 217 (1940) (“The claims of a patent are always to be read or
interpreted in light of its specifications.”).



During prosecution of the reexamination, it seems the Patent Holder failed to point out that the broadest reasonable interpretation applied to MPF claims is constrained by 35 U.S.C. 112, 6th paragraph. Instead, this argument was first presented in the appeal brief.

Caraco loses at CAFC, but...

In a Hatch-Waxman case involving Prandin®, one has three opinions. Novo Nordisk did
come out the winner, but one sees a lot of disagreement here.

On statutory construction:

Statutory construction “begins with ‘the language of the statute.’” Hughes Aircraft
Co. v. Jacobson, 525 U.S. 432, 438 (1999) (quoting Estate of Cowart v. Nicklos Drilling
Co., 505 U.S. 469, 475 (1992)). This court derives the plain meaning of the statute from
its text and structure. Electrolux Holdings, Inc. v. United States, 491 F.3d 1327, 1330
(Fed. Cir. 2007) (citation omitted). If the statutory language is unambiguous, the inquiry
ends. Id. Nevertheless, this court may “look at the legislative history ‘only to determine
whether a clear intent contrary to the plain meaning exists.’” Sharp v. United States,
580 F.3d 1234, 1238 (Fed. Cir. 2009) (quoting Glaxo Operations UK Ltd. v. Quigg, 894
F.2d 392, 396 (Fed. Cir. 1990)). To overcome the plain meaning of the statute, the
party challenging it must establish that the legislative history provides “an ‘extraordinary
showing of contrary intentions.’” Id. (quoting Garcia v. United States, 469 U.S. 70, 75

The issue: In other
words, Novo reads “an approved method” in the counterclaim statute as “any approved
method” while Caraco reads it as “all approved methods.”

The CAFC opinion by Judge Rader found no ambiguity:

This court detects no ambiguity in the statutory language. When an indefinite
article is preceded and qualified by a negative, standard grammar generally provides
that “a” means “any.” See, e.g., American Heritage Dictionary of the English Language
1 (4th Ed. 2006) (defining “a” as “[a]ny” in the example “not a drop to drink”); Random
House Webster’s Unabridged Dictionary 1 (2d ed. 2001) (defining the indefinite article
“a” as “any” or “a single” in the example “not a one”); see also Barnhart v. Thomas, 540
U.S. 20, 26 (2003) (adopting a construction that is “quite sensible as a matter of
grammar”) (citation omitted).

The bottom line:

This court therefore reverses the district court’s grant of summary judgment on
Caraco’s attempted, but unsuccessful, counterclaim and vacates the injunction ordering
Novo to correct its use code for the ’358 patent listed in the Orange Book for PRANDIN.

Wednesday, April 14, 2010

Mighty Leaf Tea not so mighty at CAFC

Mighty Leaf Tea tried to register the mark ML, in standard character form but Mark Lees had already registered ML in stylized form (shown in the decision). Judge Newman upheld the TTAB decision against Mighty Leaf Tea, after a review of the DuPont factors [ In re E.I. DuPont De Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) ].

CAFC finds that "Nintendo rules" over Anascape

Judge Newman wrote the opinion reversing the judgment of ED Texas. Anascape didn't have enough "written description" in an earlier application to support the later claims.

Of note is Judge GAJARSA, concurring, taking a shot at the recent en banc CAFC decision in Ariad Pharm., Inc. v. Eli
Lilly & Co., No. 2008-1248, 2010 WL 1007369 (Fed. Cir. March 22, 2010). In the recent interview of Judge Rader by Gene Quinn, one might ask where this sort of opinion fits in?

See also Appeals court overturns ruling against Nintendo in patent case: Anascape alleged that Nintendo controllers for the Game Cube and the Wii infringed on its patent.

Tuesday, April 13, 2010

SiRF's down!

Of the CAFC decision on 12 April 2010 in SIRF Technology v. ITC a Citi analyst is quoted:

"We believe this appeal was simply an attempt by SiRF to restore its reputation."

SIRF has been acquired by CSR and the opponent in the case is Broadcom.

SIRF tried a standing argument somewhat like Microsoft did against Lucent, but SIRF lost at the CAFC, failing its burden of proof on the standing issue.

The "next step" is that a 2006 patent case between SiRF and Broadcom will become unstayed and proceed.