Saturday, April 30, 2011

Another false marking case dies

One has an interesting fact pattern in this qui tam case:

Juniper makes and sells computer networking prod-
ucts to businesses, including a variety of firewall prod-
ucts. Juniper asserts that Shipley, an alleged computer
“hacker,” has maintained a website at the URL
(the “Website”) since 1995, ostensi-
bly for the “hacker community.” Am. Compl. ¶¶ 9, 12
(May 19, 2009). Juniper further alleges that Shipley has
maintained the Website at his homronment connected to the internet.

Juniper is asserting 35 U.S.C. § 292 against Shipley.

Juniper loses: Because Juniper’s Amended Complaint does not
reasonably allege an “unpatented article” within the
meaning of 35 U.S.C. § 292, this court affirms.

Within the case:

“Without jurisdiction the court cannot proceed at all
in any cause.” Ex parte McCardle, 74 U.S. 506, 514
(1868). In Stauffer, 619 F.3d at 1325, decided after Ship-
ley filed his brief, this court addressed the issue of qui
tam standing under the false marking statute. The court
held that (a) “a violation of [§ 292] inherently constitutes
an injury to the United States”; (b) a qui tam plaintiff
“has standing to assert the injury” to the United States,
regardless of whether the plaintiff has suffered any
individual injury; and (c) the qui tam plaintiff’s standing
“does not depend upon the alleged injury to the United
States being proprietary, as opposed to sovereign.” Id. at
1325-26. Thus, even if the United States suffers no
proprietary injury involving diminishment of the federal
treasury, the Patent Act makes deceptive patent mis-
marking “an injury to the United States.” Id. at 1325.
Because the United States suffers an injury when the
false marking statute is violated, Juniper had standing to
assert a qui tam claim against Shipley under 35 U.S.C. §

Eastman Chemical win on "best mode" affirmed by CAFC

The CAFC decision was a mixed bag as to the Wellman patents:

Because the specifica-
tions of the Wellman patents do not set forth the best
mode of carrying out the invention contemplated by at
least one of the inventors, this court affirms the district
court’s judgment with respect to best mode. Because a
person of ordinary skill could understand the bounds of
the patent claims, however, this court reverses the district
court’s judgment with respect to indefiniteness.

The technology relates to polyethylene terephtha-
late (“PET”) resins for use in plastic beverage containers.

The problem related to lack of disclosure:

By the time Wellman filed the application leading to
the ’317 patent in May 2004, it had commercialized a
slow-crystallizing, hot-fill PET resin called Ti818. (...)
Wellman did not disclose the recipe for Ti818 in its pat-
ents. Nor did Wellman disclose any other specific PET
resin recipes. Instead, Wellman provided ranges of con-
centrations for categorized lists of possible ingredients.

At district court:

On August 14, 2009, Eastman moved for summary
judgment of invalidity on the grounds of indefiniteness
and failure to set forth the best mode of practicing the
claimed invention. The district court granted-in-part
Eastman’s best mode summary judgment motion, holding
invalid all of the asserted claims except dependent claims
5, 17, and 94 of the ’317 patent and claims 6 and 9 of the
’863 patent—the five claims that Wellman contends do
not encompass Ti818. Wellman, Inc. v. Eastman Chem.
Co., 689 F. Supp. 2d 705, 712, 716 (D. Del. 2010).


The district court found that at least inventor Dr.
Nichols viewed Ti818 as the best mode of practicing the
invention at the time of filing.


The district court ac-
knowledged that the disclosure of ranges of ingredients
encompassing the best mode can satisfy the best mode
requirement, but found that the patents disguise Ti818 by
disclosing “preferred” ranges for certain ingredients that
do not encompass the actual concentrations of those
ingredients in the Ti818 formula.

Of the legal background on best mode:

The best mode inquiry pro-
ceeds on a claim by claim basis. Pfizer, Inc. v. Teva
Pharms. USA, Inc., 518 F.3d 1353, 1365 (Fed. Cir. 2008).
“Best mode issues can arise if any inventor fails to dis-
close the best mode known to him or her” as of the date
the application for patent is filed. Pannu v. Iolab Corp.,
155 F.3d 1344, 1351 n.5 (Fed. Cir. 1998). “The best mode
requirement creates a statutory bargained-for-exchange
by which a patentee obtains the right to exclude others
from practicing the claimed invention for a certain time
period, and the public receives knowledge of the preferred
embodiments for practicing the claimed invention.” Eli
Lilly & Co. v. Barr Labs., Inc., 251 F.3d 955, 963 (Fed.
Cir. 2001). “A violation of the best mode requirement
must be proved by clear and convincing evidence.” All-
Voice Computing PLC v. Nuance Commc’ns, Inc., 504 F.3d
1236, 1240 (Fed. Cir. 2007).

The best mode requirement has two parts. Green
Edge Enters., LLC v. Rubber Mulch Etc., LLC, 620 F.3d
1287, 1296 (Fed. Cir. 2010). First, the court must deter-
mine whether, at the time of patent filing, the inventor
possessed a best mode of practicing the claimed invention.
Id. (citing U.S. Gypsum Co. v. Nat’l Gypsum Co., 74 F.3d
1209, 1212 (Fed. Cir. 1996)). This first prong is subjec-
tive, focusing on the inventor’s personal preferences as of
the application’s filing date. N. Telecom Ltd. v. Samsung
Elecs. Co., 215 F.3d 1281, 1286 (Fed. Cir. 2000). Second,
if the inventor has a subjective preference for one mode
over all others, the court must then determine whether
the inventor “concealed” the preferred mode from the
public. Green Edge, 620 F.3d at 1296 (quoting Chemcast
Corp. v. Arco Indus. Corp., 913 F.2d 923, 928 (Fed. Cir.
1990)). The second prong inquires into the inventor’s
disclosure of the best mode and the adequacy of that
disclosure to enable one of ordinary skill in the art to
practice that part of the invention. Id. This second
inquiry is objective, depending on the scope of the claimed
invention and the level of skill in the relevant art. Id.

Of claim construction:

At the outset, this court notes that the district court
did not construe the claims before engaging in the best
mode inquiry. This court has explained that “[t]he best
mode inquiry is directed to what the applicant regards as
the invention, which in turn is measured by the claims.”
Engel Indus., Inc. v. Lockformer Co., 946 F.2d 1528, 1531
(Fed. Cir. 1991). Because “[s]ubject matter outside the
scope of the claims falls outside of the best mode require-
ment,” a “threshold step in a best mode inquiry is to
define the invention by construing the claims.” Ajinomoto
Co., Inc. v. Int’l Trade Comm’n, 597 F.3d 1267, 1272-73
(Fed. Cir. 2010).
While the best mode inquiry typically requires a claim
construction, claim terms need only be construed “to the
extent necessary to resolve the controversy.” Vivid
Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803
(Fed. Cir. 1999). In this case, the parties dispute only
whether claims 5, 17, and 94 of the ’317 patent and claims
6 and 9 of the ’863 patent encompass Ti818—the parties
agree that the remaining asserted claims encompass
Ti818. Because the district court limited its best mode
holding to the uncontroverted claims, Wellman, 689 F.
Supp. 2d at 713, the district court had no need to construe
the disputed terms.

Best mode at the time of filing:

Although the record shows that Dr. Nichols preferred
the 2003 recipe of Ti818, the district court found that Dr.
Nichols believed that the 2004 recipe of Ti818 was the
best mode of practicing the invention. Wellman, 689 F.
Supp. 2d at 713. This harmless misstatement does not
rescue the relevant claims from a best mode violation.
Rather than a nullifying conflict, this only shows that Dr.
Nichols had an obligation to disclose the recipe he be-
lieved to be the best mode at the time of patent filing—the
2003 recipe. The applicant did not do so. See Dana Corp.
v. IPC Ltd. P’ship, 860 F.2d 415, 418 (Fed. Cir. 1988)
(requiring disclosure of the best mode contemplated by the inventor at the time of filing).

Inventor testimony sank Wellman:

On summary judgment, this court must resolve fac-
tual inferences in favor of the non-movant. Anderson, 477
U.S. at 255. In this context, an evolving recipe potentially
means that the inventors had no best mode of practicing
the invention. See Bruning v. Hirose, 161 F.3d 681, 687
(Fed. Cir. 1998) (finding inventor had no best mode be-
cause of concern about certain characteristics of his
invention). However, even when viewed in the light most
favorable to Wellman, this evidence cannot overcome the
testimony of the inventors, including Dr. Nichols’ testi-
mony regarding his subjective belief that the 2003 recipe
of Ti818 was the best method of practicing the invention
at the time of filing. Put simply, at the time of filing, an
inventor belibest mode.

Trade secrets and patents don't mix:

Wellman did not disclose carbon black N990 in its
patent applications. Instead, Wellman chose to protect
this ingredient of Ti818 as a trade secret. Thompson
testified that his boss, James Bruening, instructed him to
maintain carbon black N990 as a trade secret


Bruening acknowledged that he
instructed his department to maintain N990 as a trade
secret. Wellman continued to protect the use of N990 in
its PET resin products as a trade secret from its discovery
in 2002 through February of 2010. Indeed, Wellman
requested that the district court seal the courtroom dur-
ing the arguments on summary judgment expressly to
maintain the confidentiality of N990.

Wellman ran into problems fighting the carbon black


Third Circuit law holds that in chal-
lenging a summary judgment order on appeal, a party
cannot “advance new theories or raise new issues in order
to secure a reversal of the lower court’s determination.”
Union Pac. R.R. Co. v. Greentree Transp. Trucking Co.,
293 F.3d 120, 126 (3d Cir. 2002). Wellman has therefore
forfeited its right to argue the significance of these ab- sorption ratios on appeal.

Substantively, no comparison was made:

The disclosure added to the nonprovi-
sional application does not suggest a new-found prefer-
ence for spinels relative to carbon black N990, because the
additional disclosure does not compare PET recipes
containing spinels to those containing carbon black N990.
Instead, it compares PET resins containing spinels to
those without a HUR additive. ’317 patent col.16 ll.4-9;
’863 patent col.17 ll.35-40. Moreover, while Dr. Moore’s
belatedly filed declaration states that he believes spinels
would produce “better color characteristics” than PET
using thermal carbon black, he testified that as of filing
date of the ’317 patent, he preferred using carbon black as
the best way of making PET to achieve the claimed TCH, absorbance, and luminosity values.

Wellman's patent attorney showed up:

Wellman’s patent attorney testified that Wellman
would have revised its commercial PET resins to include
spinels instead of carbon black N990, but for concerns
over a third-party patent. A party’s failure to disclose its
commercial mode does not ipso facto result in a § 112
violation because the focus of a best mode inquiry remains
on the claimed invention rather than the marketed prod-
uct. Zygo Corp. v. Wyko Corp., 79 F.3d 1563, 1567 (Fed.
Cir. 1996). In this case, however, Wellman concedes that
its commercial Ti818 PET resin is within the scope of the
claims invalidated by the district court.

Wellman's problem:

The Wellman patents do not expressly disclose the
Ti818 recipe, but instead describe many possible ingredi-
ents with varied ranges of concentrations. While an
inventor may represent his contemplated best mode just
as well by a preferred range of conditions as by a working
example, In re Honn, 364 F.2d 454, 462 (CCPA 1966),
some of the ingredients for Ti818, namely isophthalic acid
and diethylene glycol, fall outside of the disclosed pre-
ferred ranges and therefore lead away from the Ti818

The bottom line:

Moreover, “[e]ven where
there is a general reference to practicing the claimed
invention, the quality of the disclosure may be so poor as
to effectively conceal it.” Transco Prods. Inc. v. Perform-
ance Contracting, Inc., 38 F.3d 551, 560 (Fed. Cir. 1994)
(citing Randomex Inc. v. Scopus Corp., 849 F.2d 585, 587
(Fed. Cir. 1988)). By masking what at least one inventor
considered the best of these slow-crystallizing resins,
Wellman effectively concealed its recipe for Ti818.
Wellman admittedly spent millions of dollars and thou-
sands of hours developing its claimed slow-crystallizing
PET resins. Dr. Nichols declared that the inventors
“unlocked in our research . . . the secret to making an
effective slow-crystallizing bottle resin by understanding
the proper balance of the parameters of catalyst concen-
tration, comonomer concentration, intrinsic viscosity, and
heat-up-rate [HUR] additive in order to make high clarity
bottles.” J.A. 5117. Wellman had an obligation to ade-
quately disclose the best mode of practicing this “unlocked
secret” under the best mode requirement, yet did not do
The record also shows that Wellman intentionally
concealed the best mode. “Invalidation based on a best
mode violation requires that the inventor knew of and
intentionally concealed a better mode than was disclosed.”
High Concrete Structures, Inc. v. New Enter. Stone &
Lime Co., 377 F.3d 1379, 1384 (Fed. Cir. 2004). As shown
by the testimony of Thompson and Bruening, Wellman
intended to conceal carbon black N990, an ingredient in
Ti818, by choosing to maintain it as a trade secret. As the
district court correctly stated, this choice “does not excuse
Wellman’s compliance with the best mode requirement.”
Wellman, 689 F. Supp. 2d. at 716. Accordingly, this court
affirms the invalidity of claims 1-4, 7, 8, 11-14, 16, 18-21,
24, 32, 33, 36, 38, 39, 44, 93, 96-102, and 104 of the ’317
patent and claims 1, 3-5, 8, 11, 15, 17, 24 and 62 of the
’863 patent for failure to comply with the best mode

Eastman Chemical did not win on 112 P 2:

Claims need not be plain on their face in order to
avoid condemnation for indefiniteness; rather, claims
must only be amenable to construction. Exxon Research
& Eng’g Co. v. United States, 265 F.3d 1371, 1375 (Fed.
Cir. 2001). “[B]ecause claim construction frequently poses
difficult questions over which reasonable minds may
disagree, proof of indefiniteness must meet ‘an exacting
standard.’” Haemonetics Corp. v. Baxter Healthcare
Corp., 607 F.3d 776, 783 (Fed. Cir. 2010) (quoting Halli-
burton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244, 1249 (Fed. Cir. 2008)).


Chef America Inc. v. Lamb Weston, Inc., 358 F.3d
1371, 1374 (Fed. Cir. 2004), among other cases, prohibits
courts from rewriting claims instead of interpreting the
claims as written. In Chef America, the court refused to
redraft the claims to replace the term “to” with the term
“at,” even though that refusal produced a nonsensical
result. Id. Unlike in Chef America, however, construing
the claim to require testing on an “amorphous PET mate-
rial” does not replace any claim term with a different
term, but instead interprets the claimed DSC measuring
technique in light of the specifications, which clearly,
repeatedly, and unambiguously state that such tests
should be performed on amorphous PET material.


this court reverses the district court’s summary judgment
that the asserted claims are indefinite under 35 U.S.C. §
112 ¶ 2 and remands for further proceedings in adance with this opinion.

BILLUPS-ROTHENBERG loses at CAFC over written description, anticipation

a summary judgment of invalidity based on lack
of written description and anticipation was affirmed by the
CAFC. At issue as a genetic test for Type I hereditary hemochro-

**Ariad was cited to give background to the written
description requirement:

Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d
1336, 1351 (Fed. Cir. 2010) (en banc) (internal quotations
omitted). “Requiring a written description of the inven-
tion limits patent protection to those who actually per-
form the difficult work of ‘invention’—that is, conceive of
and complete the final invention.” Id.

**The written description requirement keeps a patent
applicant from preempting the future:

The written de-
scription requirement exists to ensure that inventors do
not “attempt to preempt the future before it has arrived.”
Fiers v. Revel, 984 F.2d 1164, 1171 (Fed. Cir. 1993). In
Fiers, a party’s priority application failed to provide an
adequate written description as it purported to cover all
DNAs coding for a specific protein but did not describe the
DNA. The party only provided a generic reference that
the DNA could be obtained by reverse transcription and
this court held that “[c]laiming all DNA’s that achieve a
result without defining what means will do so is not in
compliance with the description requirement.” Id.

**University of California v. Lilly arises:

The “level of detail required to satisfy the written de-
scription requirement varies depending on the nature and
scope of the claims and on the complexity and predictabil-
ity of the relevant technology.” Ariad, 598 F.3d at 1351
(citing Capon v. Eshhar, 418 F.3d 1349, 1357-58 (Fed. Cir.
2005)). “[A]n adequate description of a DNA requires
more than a mere statement that it is part of the inven-
tion and reference to a potential method for isolating it;
what is required is a description of the DNA itself.”
Regents of the Univ. of Cal. v. Eli Lilly & Co., 119 F.3d
1559, 1566-67 (Fed. Cir. 1997) (internal quotations omit-
ted). Complementary DNA (“cDNA”) is a form of DNA
that only contains exons, stretches of DNA that code for
genes. In Regents, a claim to a cDNA invention was held
invalid as lacking written description because such a
claim “requires a specificity usually achieved by means of
the recitation of the sequence of nucleotides that make up
the cDNA.” Id. at 1569.

**Later-acquired knowledge not helpful:

Given the lack of knowledge of
sequences for the hemochromatosis gene and its muta-
tions in the field, the limited extent and content of the
prior art, and the immaturity and unpredictability of the
science when the ’681 patent was filed, Billups cannot
satisfy the written description requirement merely
through references to later-acquired knowledge. This
case is like Regents and Fiers, in which the DNA se-
quences at issue were unknown in the art. Regents, 119
F.3d at 1567-69; Fiers, 984 F.2d at 1171.

**One species is not enough to support a genus:

Under Ariad, a patent
must set forth “either a representative number of species
falling within the scope of the genus or structural features
common to the members of the genus.” Id. at 1350. The
’681 patent does not identify even a single species that
satisfies the claims. In this case, the eventual discovery
of only one species—the C282Y mutation—within the
claimed genus does not constitute adequate written
description of that genus.

**Failure to disclose structure/function relation:

The district court, however, found that the art did not
establish a correlation between structure and function
because the “[p]atentee’s general location disclosure is too
imprecise to constitute structural features necessary to
meet the written description requirement.” Summ. J.
Order 6-9. As explained in the district court’s order, the
“specification for the ’681 patent contains only functional,
not structural, characteristics of the predicted mutations.”

***As to anticipation:

A patent claim is anticipated if each and every limita-
tion is found either expressly or inherently in a single
prior art reference. 35 U.S.C. § 102. The asserted claims
of the ’425 patent are invalid because they are anticipated
by the ’130 patent. The ’130 patent was filed nearly three
years be§ 102(e).

Celeritas came up:

Although the ’130 patent discounts the utility of the
S65C mutation in diagnosing hemochromatosis, we have
held that a “reference is no less anticipatory if, after
disclosing the invention, the reference then disparages it.”
Celeritas Techs., Ltd. v. Rockwell Int’l Corp., 150 F.3d
1354, 1361 (Fed. Cir. 1998). Indeed, in Celeritas, this
court explained that “whether a reference ‘teaches away’
from the invention is inapplicable to an anticipation
analysis.” Id. (quoting Kalman v. Kimberly-Clark Corp.,
713 F.2d 760, 772 (Fed. Cir. 1983)). In Celeritas, this
court considered prior art stating that “de-emphasis
would cause severe inter-symbol interference in a single-
carrier data signal; it may be feasible only for multicarrier
signals.” Id. (emphasis added). This court held that the
disclosure was sufficient to anticipate and invalidate the
claims of the asserted patent, as “[t]he fact that a modem
with a single carrier data signal is shown to be less than
optimal does not vitiate the fact that it is disclosed. The
modem in the article is not disclosed to be inoperative.”

Oral argument is cited:

At oral argument, Billups conceded that it waived its
argument that the ’130 patent cannot be used to antici-
pate because the relevant teachings were not enabled.
Oral Arg. at 25:23-25:50; 29:23-29:56, available at
recordings/all/billups.html. Even if this argument had
not been waived, the district court presumes the enable-
ment of the material in a prior art patent, and Billups
failed to present evidence of nonenablement that the
district court found persuasive.

Friday, April 29, 2011

Biofuels exec murdered in "Blue Bloods" episode

Iowa biofuel exec "Lance Olsen" got whacked outside a trendy lower East Side restaurant ("Kississime"?) in the April 29, 2011 episode of "Blue Bloods." Commissioner Regan has to defend the safety of the $30 billion tourist industry. Regan notes that all deaths are equally unacceptable.

Lance had tipped Maya (the hostess) $200 in the restaurant, and had flashed a lot of cash. Maya became suspect number one. However, Maya (and boyfriend Brian) proved innocent, alibi'd by their drug dealer (they were doing ecstasy when the police visited). The next suspect is Pierre Dornay, a Haitian cab driver, who is ID'd by a bodega owner from a sketch given by Brian and Maya. Pierre runs when the police arrive at his apartment, is apprehended, and the press are out in full force when he is brought to the precinct. Pierre, a former policmen in Haiti, was a victim of the earthquake. Pierre IDs a person wearing a hoodie over a nice pair of trousers and shiny shoes.

Meanwhile, the storyline identifies Lance as a pioneer in the development of "sustainable biofuels."

Some other lines:

A restaurant that gets $50 a plate for mac & cheese.

The real culprits are previewed. Karl Perry a friend of the family who mentions something about A fancy restaurant in a hell hole. Separately: Get my brother-in-law's body and fly back to Iowa.

There's discussion of eyewitness testimony. "What's she going to gain by lying?" A good question in this case. Re-visited phone records; lots of calls to Karl Perry. Wife was at hotel (Mandolin) with Karl Perry.

Ray Lawrence and Karl Perry were at the same restaurant one month earlier.

"I really hate when people do bad things and blame it on my city. "

"Exploring new avenues" makes unemployment sound exciting. Waterback.

Separate keyword: Lydia Gonsalves.

Thursday, April 28, 2011

Plagiarizing principal promises to "model the integrity that you expect of me"

From a plagiarizing high school principal in Colorado:

At times, in preparing and writing my communications this year, I used statements from educational sources and did not reference those sources.

The statement concludes

I have learned a difficult and painful lesson from this experience. I am committed to doing a better job of attending to the details of my communications. I will model the integrity that you expect of me and I expect of myself.

See also Overland HS principal accused of plagiarism

Lilly wins in Eli Lilly and Company v. Wockhardt Limited, et al. over duloxetine

The court order in SD Ind requires that the remaining defendants not make generic Cymbalta during the patent term and that they tell the FDA that they are no longer seeking approval for a generic duloxetine product during the patent term.

Selling music via fictional tv groups

In an article relating to "Glee Presents the Warblers," one has text:

That said, Glee has spawned more top 10 albums than any other TV show in history. Four TV series are tied for second place, with five top 10 albums each: Sing Along With Mitch (the tally just counts albums released during the run of the show), The Monkees, American Idol (not counting albums by individual contestants) and Hannah Montana (not counting the movie soundtrack or strictly solo albums by star Miley Cyrus).

Does one need a special trademark category protecting names of "unreal" groups, such as the Monkees?

Also, from the story:

Lemonade Mouth, which played to 13.5 million viewers in its first two airings, joins a long line of Disney Channel movies to spawn hit soundtracks. It follows The Cheetah Girls, High School Musical, Jump In!, Camp Rock and Wizards Of Waverly Place.

US 7,753,759: a bra with a pocket for a cell phone

There is apparently litigation over the claims of US 7,753,759, titled Article of apparel for concealing objects , which has a first claim:

An article of apparel for wearing in contact with the breasts of a wearer, the article comprising a pair of breast covers; each breast cover having an outer surface and an inner surface; a medial side and a lateral side; and an upper portion and a lower portion, each breast cover being joined to breast cover support means attached to the upper torso of the wearer for holding the breast cover in place; a layer of padding encompassed between the inner surface of the breast cover and the outer surface of the breast cover; the inner surface of each breast cover being the innermost side of the breast cover that lies adjacent to the wearer's body; wherein the inner surface of each breast cover defines a wearer's body side surface lying against the skin of the wearer and a padding side surface facing toward the layer of padding; the article further comprising a pocket layer having a perimeter; wherein a majority of the perimeter of the pocket layer is attached to the wearer's body side surface of the inner surface of at least one breast cover such that the pocket layer is located between a wearer's breast and the wearer's body side of the inner surface of the breast cover defining a pocket between the pocket layer and the wearer's body side surface of the inner surface of the breast cover; the pocket having a mouth for receiving objects to be carried in the article; wherein the pocket is disposed toward the lateral side of the breast cover with the mouth toward the upper lateral portion of the breast cover; wherein the pocket layer is attached to the wearer's body side surface of the inner surface of the breast cover at an angle of about 10 degrees to about 30 degrees and laterally located relative to the center of the breast cover; such that when the article is worn on the body of a wearer with the breast cover held in place over a breast; an object received in the pocket is biased against the lateral side of the breast, so that the pocket deforms inwardly toward the skin surface of the wearer, and the object is concealed from view.

AND, note claim 7:

7. The article of claim 1, wherein the article is one of a halter top, tank top, and a dress.

The patentee is Tammy Pintor, owner of TJ Secret in Menomonee Falls, WI. The accused is Leslie Van Dorf of Nashota, WI / Purse-Les .

Within the description of related art:

Thus, there is a need for a bra or related article of apparel with one or more pockets designed to hold cellular phones, personal listening devices, cosmetics, valuable items, medical objects, supplies, and other concealed objects securely so that they do not become lost or damaged. There is also a need for a bra or related article of apparel with one or more pockets that does not allow others to readily detect the presence of concealed objects in the pockets, or that does not create a bulky appearance to the breasts or clothing.

Wednesday, April 27, 2011

Why the esteemed Prof. Epstein is wrong on first-to-file

In a piece titled Patent deformation: US Congress sails into dangerous waters, Professor Richard Epstein, once of University of Chicago Law, wrote of first-to-file:

The single reform that makes the most sense is the displacement of the first-to-invent rule with the first-to-file rule for patent priority. The current American rule, which is out of sync with the rest of the world, has many defenders who think that this rule gives some advantage to the small inventor.

I doubt very much that this defence of the old order will withstand scrutiny. A simpler rule offers greater clarity, and it is that clarity that prevents the small inventor who files first from being outgunned by a larger firm which is prepared to spend a small fortune to muscle its later filing to a priority position. This transition, moreover, is relatively easy to execute, for it sweeps away the major complexities that dog litigation in this muddy area. On this point, at least, the presumption in favor of the status quo can be overcome.

The benefit to the U.S. public of having a patent system is the public disclosure of useful information. The public does not care "who" gets the right to exclude. The public wants the information out there. The small inventor does not have money to file applications at every step of the invention; the larger company does. That's a bias against small inventors in the proposed change. Moreover, the "risk" to any applicant is NOT merely getting scooped by another inventor; the inventor's idea can be disclosed publicly, through publication, use, or offers to sell. In "first to file," that means "too bad." In "first to invent," the inventor gets to prove the inventor was working on the invention before the disclosure. In terms of the impact of the proposed change to "first to file," declarations under Rule 131 are far more frequent than interferences. Epstein focuses on the less frequently occurring issue; not the big picture. Further, if the "prior art" risk were merely one of anticipation, the change would be a wash as to the public; it gets the information either way. Unfortunately, most rejections are for obviousness. The inventor, large or small, gets blown away by disclosures which are not directly on-point to the elements of the invention. That's a disincentive.

And, speaking of disincentives to disclosure, consider the prior use defense to patent infringement, also in the proposed reform. Somebody using something commercially, but not publicly, gets a pass on infringement. Hmmm, is that a benefit to the small inventor, who is trying to commercialize something, or the bigger company, who already has? Talk about a return to the guild system. Do we really want to harmonize with European ideals of the middle ages? Simpler, yes, but not designed to promote public disclosure. In fact, quite the opposite.

Tuesday, April 26, 2011

Patent reform 2011 over?

In an editorial titled Sticky fingers, the Milwaukee Journal Sentinel nails the obvious: if Congress is willing to raid the patent office piggy bank in April 2011, then all the talk about ending fee diversion is empty chatter, signifying nothing. The problems will continue, especially with a hiring freeze and no overtime at the USPTO.

Monday, April 25, 2011

New Jersey leads the nation in new legislation area concerning employment ads

In the story on a recently passed New Jersey law, it was the comments that were most interesting.

The news is that the state of New Jersey now has a law that prohibits employers from publishing job advertisements in print or online that state unemployed individuals can't apply for the position.

The comments quickly got to the core of the matter.

just because unemployed people can apply doesn't mean they will have any chance of getting hired

Toothless, meaningless, feel good legislation.

Employers can still exclude those not working currently. Bah humbug to the law. (...) The clueless are running the ship when it comes to screening job candidates and hiring a job candidate.

There is no penalty for later discovering that the person is unemployed and then not hiring him/her.

Why dont we give a tax break to the companies who hire people from Unemployment. But they have to keep the people for at least a year. There is not penalty if they dont keep them. this would help both the unemployed and the companies getting a tax break.


see Looking for work? Unemployed need not apply , which includes the text:

"Most executive recruiters won't look at a candidate unless they have a job, even if they don't like to admit to it," said Lisa Chenofsky Singer, a human resources consultant from Millburn, NJ, specializing in media and publishing jobs. She said when she proposes candidates for openings, the first question she is often asked by a recruiter is if they currently have a job. If the answer is no, she's typically told the unemployed candidate won't be interviewed.

The Unemployed Need Not Apply , which includes the text:

Another question for the E.E.O.C. is whether it is acceptable for employers to use current employment as a proxy for relevant experience, or as an expedient to screen applicants. Testimony at the forum by Helen Norton, associate professor at the University of Colorado Law School, rebutted those and other possible justifications. Current employment is not relevant to jobs that provide on-the-job training. And even for jobs that require up-to-date skills, an interview or a test would be a more accurate and less discriminatory way to evaluate a candidate’s qualifications.

Norton, in her testimony before the EEOC, gave an example specific to New Jersey:

Several examples of such help-wanted ads were offered: A Texas electronics company said online that it would "not consider/review anyone NOT currently employed regardless of the reason"; an ad for a restaurant-manager position in New Jersey said applicants must be employed; a phone manufacturer's job announcement said "No Unemployed Candidates Will Be Considered At All," from Unemployed need not apply, some firms say

The fate of COPA at the USPTO?

Recall in February 2011:

** From a USPTO press release on 2 Feb. 2011:

The USPTO also announced today a new effort to eliminate the “tail” of backlog applications that were more than 16 months old at the beginning of the fiscal year and had not yet received a first Office Action, known as “Clearing the Oldest Patent Applications” (or COPA). This initiative is a critical first step in reaching the agency’s strategic goal of providing first Office Actions on all new applications in an average of 10 months from their date of filing by 2014.

The goal for fiscal year 2011 is to have a first Office Action completed on nearly all of the 313,000 oldest backlog applications. Reaching this goal, however, is highly dependent on the passage of a fiscal year 2011 budget that would provide sufficient resources for hiring and examiner overtime.

** Then, recall the Kappos' blog post on April 22, 2011:

Effective immediately and until further notice:

Hiring—both for new positions and backfills—is frozen;

All overtime is suspended.

Is COPA dead? Will the backlog continue?

See previous IPBiz posts

USPTO's COPA: “Clearing the Oldest Patent Applications”

Kappos komments on kuts by Kongress

Hamilton, NJ-patentee prevails at CAFC in Radio Systems v. Accession

The case related to jurisdiction in a declaratory judgment action,
and the outcome was that the Hamilton, NJ-based patentee (one Thomas Sullivan )
was NOT hauled into a Tennessee court:

This is another in a series of cases presenting us with
the question whether a patentee’s activities directed at
the forum state were sufficient to give the forum court
personal jurisdiction over the patentee in a declaratory
judgment action. The district court in this case held that
the defendant’s activities were not sufficient to give it
personal jurisdiction over the defendant, and we agree.

The case is about something Sullivan (Accession) named a Wedgit, a portable rf-activated pet access door.
The history of communication between Sullivan and his potential patent licensee
Radio Systems went back to 2006:

In November 2006, Mr. Sullivan sent an unsolicited
letter to Radio Systems designed to interest the company
in licensing the Wedgit.

Sullivan obtained US 7,207,141 (“the ’141 patent”), which issued on April
24, 2007.

For relevance to discussion further below, the reader should note the
existence of US 20100218427 to Radio Systems [titled "Selective Access Electronics Pet Door "], with the following
claim of priority:

This application is a continuation of U.S. application Ser. No. 11/971,553,
filed Jan. 9, 2008, which claims the benefit of U.S. Provisional Application No. 60/888,526, filed Feb. 6, 2007.

In resolving the jurisdiction dispute, the CAFC relied on the Avocent case:

The district court’s exercise of jurisdiction over
an out-of-state defendant must be consistent with both
the forum state’s long-arm statute and the requirements
of due process. See Avocent Huntsville Corp. v. Aten Int’l
Co., 552 F.3d 1324, 1329 (Fed. Cir. 2008).


In Avocent Huntsville
Corp., we explained that an action for a declaratory
judgment “arises out of or relates to the activities of the
defendant patentee in enforcing the patent or patents in
suit,” and that the relevant inquiry for specific jurisdic-
tion is “to what extent . . . the defendant patentee pur-
posefully directed such enforcement activities at residents
of the forum and the extent to which the declaratory
judgment claim arises out of or relates to those activities.”
552 F.3d at 1332 (internal quotation marks and citations
omitted). Thus, only those activities of the patentee that
relate to the enforcement or defense of the patent can give
rise to specific personal jurisdiction for such an action.
Id. at 1336; accord Autogenomics, 566 F.3d at 1020.


While the facts of this case differ from those in Avo-
cent, the principles of Avocent govern this case. We have
characterized the rule in Avocent as follows: that “only
enforcement or defense efforts related to the patent rather
than the patentee’s own commercialization efforts are to
be considered for establishing specific personal jurisdic-
tion in a declaratory judgment action against the pat-
entee.” Autogenomics, 566 F.3d at 1020, citing Avocent,
552 F.3d at 1336. Mr. Sullivan’s attempts to interest
Radio Systems in a business transaction relating to his
product were not “enforcement or defense efforts.” In-
stead, Mr. Sullivan’s correspondence with Radio Systems
was focused on generating a market for the Wedgit, not
on enforcing or defending the ’141 patent. Moreover,
Avocent did not distinguish between commercialization
efforts directed generally at residents of the forum state
and efforts directed specifically at the plaintiff. See also
Hildebrand v. Steck Mfg. Co., 279 F.3d 1351, 1356 (Fed.
Cir. 2006) (dismissing declaratory judgment action for
lack of personal jurisdiction despite patentee’s efforts to
license products to plaintiffs). The fact that Mr. Sullivan
focused on Radio Systems in his effort to commercialize
his invention therefore does not render his activities in
Tennessee sufficient for the exercise of specific personal

** HOWEVER, there is a message in this case for small inventors that
is not directly related to the legal issues decided by the CAFC in April 2011. It relates
to contacting potential licensees and to the effectiveness of confidentiality agreements
provided by the potential licensees.

From the case:

In June 2009, the PTO issued a notice of allowance for
Radio Systems’ patent on the SmartDoor device. Mean-
while, Accession retained legal counsel in New Jersey.
On August 20, 2009, Accession’s counsel left a voice
message with the PTO examiner for the SmartDoor
application, alerting the examiner to the existence of
Accession’s ’141 patent
. On the same day, Accession’s
counsel telephoned Radio Systems’ counsel and stated his
position that the SmartDoor infringed the ’141 patent and
that interference proceedings would be warranted be-
tween the ’141 patent and the SmartDoor application.
Later that day, Accession’s counsel left a voice message
with Radio Systems’ counsel indicating that Mr. Sullivan
should be named as a co-inventor on the SmartDoor
On August 25, 2009, Accession’s counsel sent
an e-mail to Radio Systems’ counsel asking whether Radio
Systems had brought the ’141 patent to the attention of
the PTO. The next day, the PTO examiner returned the
phone call of Accession’s counsel. As a result of that
conversation, the PTO withdrew the notice of allowance
previously issued for the SmartDoor application.

On November 5, 2009, Radio Systems filed a com-
plaint in the United States District Court for the Eastern
District of Tennessee seeking a declaratory judgment of
noninfringement and invalidity with respect to the ’141

The presence of a confidentiality agreement was invoked in
the jurisdiction battle:

Finally, Radio Systems argues that Accession con-
sented to jurisdiction in Tennessee by entering into the
nondisclosure agreement in connection with the April
2009 meeting in Tennessee.


The stated purpose of the agreement was to facilitate
“discussions for the purpose of evaluating the interest of
Radio Systems to engage in a transaction or enter into a
relationship with [Accession] pertaining to the Confiden-
tial Information and, if desired, to pursue such relation-
ship or transaction.” The entire agreement addressed
confidential information that may be furnished by Acces-
sion to Radio Systems.


Within an article about an incident in Buffalo, NY on 7 March 2011 involving ICE, a homeowner, and WiFi, one finds the following text:

"I think it's convenient and polite to have an open Wi-Fi network," said Rebecca Jeschke, whose home signal is accessible to anyone within range.

"Public Wi-Fi is for the common good and I'm happy to participate in that — and lots of people are," said Jeschke, a spokeswoman for the Electronic Frontier Foundation [EFF], a San Francisco-based nonprofit that takes on cyberspace civil liberties issues.

Google and US Patent 5,893,120

Google lost to Bedrock in a case heard by an ED Texas jury.

The Financial Times [FT] noted:

The ruling is believed to be the first patent infringement award over the Linux kernel, which is used in all versions of the operating system, including the Android smartphone software.

Sunday, April 24, 2011

CBS "60 Minutes" on April 24, 2011

First story: visit to Mt. Athos in Greece.
Second story: On benefactor Eli Broad.

Father Jacovos (an American) stated that the words used at Mt. Athos are the same as used by Christ. Separately, the last tv interview here was in 1981. There are 20 monasteries on Mount Athos, a 130 square mile peninsula. Tapping on a piece of chesnut is a call to prayer. The monks eat two meals a day, each meal lasting 10 minutes; there is no meat. There are 54 monks from 8 countries. There are no newspapers or radio on Mt. Athos. There are telephones. St. Paul says we are to pray unceasingly. The monks get no more than 3 hours of sleep per night. It is harder to get into Mount Athos than into Harvard. Every day at 3am in the morning a bell rings. Services last 8 hours a day. There are no musical instruments in the church. Just chanting. Lord have mercy.

The most miraculous thing about Mt. Athos is that it is still there. To go there, one needs a visa. Ouranapolis is the point of debarcation. "60 Minutes" filmed the trip, via a ferry, with pilgrims. There is a six hour time gap vs. normal time; the day starts at sunset, using Byzantine time. The Byzantine empire fell in 1453. The spiritual leader at Mt. Athos is Abbott Aprem. There is a ceremony honoring Gabriel and Michael. There is a relic of fabric of a garment worn by Mary. Women are excluded from visiting the peninsula. The monastery is private property, and is an all-male bastion. Mt. Athos is to be a place of silence. At the smallest monastery, there is no electricity and the icons are illuminated by candle light. Seventy years ago, in spring of 1941, the Nazis invaded Greece. The monks wrote a letter to Hitler, and asked Hitler to place the holy mountain under his protection. In 1943, pictures were taken, as a form of cataloging. By the time the Nazi scholars finished, the Nazis were bogged down with the Russians. The monks have their own fishing boat. "60 Minutes" showed the vaulted inner sanctum. Everything inside was at least 600 years old. The highlight: a 14th century icon of Christ. The first thing a monk does is to embrace and to love death. Every day the monk prepares for death. There is an ossuary on the peninsula. "These are my future roommates." The monks invited "60 Minutes" back anytime.

The second "60 Minutes" story. Eli Broad. More than half a billion to LA. "Eli, buy the Dodgers." Venture philanthropy. Michael Bloomberg praised Eli Broad. Be innovative and be philanthropic. "The Broad Institute" in Cambridge, MA; all discoveries are free, available to anyone. In 1957, launched a no frills home building business. Richard Serra sculpture. Almost all Broad's art is available for loan. Art by Jeff Koons. Balloon dog. A chimp (Bubbles) and Michael Jackson. Banality series. Three basketballs in an aquarium. Architect Frank Gerry. Disney Hall; Disney people insisted on Gerry. Christopher Knight refers to Broad: Eli "strings attached" Broad. --If they don't play, he won't pay.-- I'm not a bully, but I'm not a potted plant, either. You're a rich guy, and therefore a powerful guy. Bloomberg: #1, it's his money. You don't have to play the game if you don't want to. Los Angeles Museum of Contemporary Art. "I want to be the most respected person." Who is the biggest foot in Los Angeles now.

CBS Sunday Morning on Easter 2011, April 24

Charles Osgood introduced the stories for Easter, April 24, 2011. All over the world Christians are celebrating the most joyous holiday. The cover story, Spreading the Word, is about high tech spreading the word. The second story introduced was about the American Civil War. Has it ever really ended? The third preview was on the British royal wedding. Marriage and the monarchy. Fourth, Russ Mitchell on Mavis Staples (I'll take you there). We have to take the church to them. Notre Dame. King James Bible.

Headlines. St. Peter's Square Easter Services. St. Louis tornados of Friday night, including at Lambert Field. Misurata, Libya. Call for UN intervention in Syria. Yemen. Arizona Republic says Gifferts can stand up.

Weather. Line of storms coast to coast. Last days of April will be wet ones.

The cover story of CBS Sunday Morning was about divine digital intervention, where religion is on-line and on the go. The Bible app for the iPhone. RustyBrick is for Jewish apps. One nation under God and Google. Should the Church leverage these tools. Bobby Gruenewald., the second largest independent church in America. Baptisms via Skype. John Mark Reynolds involved in Christian web conference. Unintended consequences of moving life on-line? Potential church on line. Drew Goodmanson of the Kaleo Church of San Diego.

Almanac. April 24, 1907. Anchors Aweigh was copyrighted by Wurlitzer. Fight song for Naval Academy football. 1945 movie with Sinatra and Kelly. Charles A. Zimmerman.

Longest baseball game, a recycle of a Steve Hartman story from CBS Evening News (Couric). Pawtucket, Rhode Island. The game went from 8pm till sunrise, around 4am, 32 innings, ending in a tie. It was re-started, with Pawtucket winning in the 33rd inning. A study in commitment. Stay till the job is done.

150 years later and Americans cannot agree on the real meaning of the Civil War. Martha Teichner in South Carolina. Carry on the history. Terry "Squirrel" Franks. 11 slave states seceded. Pew poll on origin of Civil War: 38% say slavery 48% say states rights. Drayton Hall. Reference to 1961 Centennial, a time period of Civil Rights revolution. April 12, 1861: Confederate troops fired on Sumter. Old Slave Mart Museum in Charleston. First Confederate Flag on display at the Confederate Museum. Lithograph of the ordinance of secession. 171 signatures. Williams Middleton. Charles Duell is a descendant of Williams. Middleton's great grandfather was in Continental Congress. Middleton Place is a national historic landmark. 2800 slaves had belonged to owners of Middleton Place. Switch to Franklin, Tenn. Robert Hicks, "The Widow of the South." 750 men and women crawl out and find 10,000 casualties. It's something to be honored and commemorated and remembered. It's how we got to here.

Sunday Journal. Story began with deaths in Libya of Hondros and Hetherington and got into discussion of rebels in Libya.

Sunday Provile on Mavis Staples, currently 71, of the Staples Singers. Roebuck Pops Staples started out in Mississippi, and moved to Chicago. Mention of Sam Cooke. Bob Dylan asked to marry Mavis Staples. "Let's do it again." Trip to Meridian, Mississippi.

The Royal Wedding set for Friday (April 29) morning. Middleton born in 1982, as was William. Charles II was called "the merry monarch." Edward VIII gave up the throne, but was a lightweight.

Prince William 6th in descent from Queen Victoria. William is 1/16 American. Contemplate George III. 1738 to 1820.

Notre Dame Cathedral. 387 stairs to top of the cathedral. Almost 850 years old. 30 to 60,000 visitors per day. August 15 celebration for Virgin Mary. The "great bell" weighs 15 tons.

Pulse. Progress in environment? A lot: 17%; some: 43%.

King James Bible. my cup runneth over; in the twinkling of an eye; wit's end; fight the good fight; powers that be; fell by the wayside; pearls before swine; there's nothing new under the sun (Eccl.)

Next week: Archibald Leach--Cary Grant.

Moment of Nature: Big Horn Recreation Center along Montana-Idaho border.

[IPBiz post 7010]


Note work of Peer Bork of the European Molecular Biology Laboratory in Heidelberg, Germany on enterotypes. Enterotype 1 produces more enzymes for making vitamin B7 (also known as biotin), for example, and Enterotype 2 more enzymes for vitamin B1 (thiamine). The work on the microbiomes (a term coined by Joshua Lederberg ) was reported in Nature.

See Enterotypes of the human gut microbiome :

This indicates further the existence of a limited number of well-balanced host–microbial symbiotic states that might respond differently to diet and drug intake. The enterotypes are mostly driven by species composition, but abundant molecular functions are not necessarily provided by abundant species, highlighting the importance of a functional analysis to understand microbial communities.

Saturday, April 23, 2011

Post-grant review: at best an academic exercise?

Over at ReexamLink , one might get the idea that post-grant review is some kind of exercise for the benefit of prosecutors and litigators:

If you are a prosecutor, think of all of the time and energy it takes to understand an invention, get to know the prior art, and draft the patent application, claims, and responses to Office Actions. And how many months did you have to draft and file the patent application, or respond to that Office Action? And how many years trickled by after issuance before the patent was litigated? PGR is a way to quickly see how well you did on technical matters, because (as the bill is currently pending) it is not limited to issues of new prior art. (Of course, PGR will likely also test the issued patent in view of new prior art.) So, instead of years before you get some “feedback” on your work, it could happen in less than a year or two.

If you are a litigator, think of all of the time and energy it takes to understand the technology, get to know the prior art, and sift through the facts. If you are litigation counsel for the Patent Owner, then PGR provides at least an initial litmus test of the strength of the patent. It also provides the Patent Owner more confidence to allow you to move ahead aggressively, depending on how well the patent survives the PGR process.

As Deming would note, if there's something wrong with the process of examination, fix the process; don't add an inspection step. And certainly don't add a step for the benefit of third parties, like litigators. Currently available re-examinations can be used to challenge issued patents.

If one wants to see re-examination in action, see

US 7,910,531 overcomes KSR obviousness by asserting unpredictable outcome via allusion to Popular Science [!]

As to the deficiencies of post-grant oppositions:

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

Mike at TechDirt has it wrong on post-grant opposition

Samsung sues Apple, its number #2 customer!

A week after Apple sued Samsung, Samsung, on 22 April 2011, sued Apple. But Apple is supposedly Samsung's number two customer!

In addition to a suit in ND Ca, Samsung has also filed infringement suits in Japan, Germany, and South Korea.

See Samsung Countersues Apple in Ongoing Patent Silliness

Plagiarism costs New Hampshire lawyer

See the 23 April 2011 story by Maddie Hanna in the Concord Monitor.

An unsuccessful argument by the attorney was that -- "rewriting" articles "was a widely approved practice." --.

And the usual "gotcha"--> "Even typographical errors in the original stories were repeated in Mr. Bosse's versions."

Good evening, Baltimore...

There are a variety of reports on a customer being beaten at a McDonalds in Rosedale, Maryland, near Baltimore, on April 18, 2011 around 8pm. Various internet postings put different "spins" on the incident. One, at SFGate, brings up the issue of the vanishing internet post:
his since removed Facebook page. Of patent relevance, one recalls the story of US 7,910,531 , wherein the examiner apparently credited a factually incorrect posting on the internet. And, how will the patent office handle removed, or altered, internet postings?

Of the incident at the McDonalds:

Monsters & Critics: Maryland woman beaten to seizure by two women in McDonalds

CBS: Video Shows Woman Being Beaten At Baltimore Co. McDonald’s

ABC: Equality Maryland: McDonalds beating is a hate crime

As a sidelight on legal professional ethics, note the remark from TMR : I am sure the two girls have already been called by attorneys willing to take the case pro bono, trying to make a name.

[IPBiz post 7005]

Proterro’s Kasdin at the Advanced Biofuels Leadership Conference

Biofuels Digest on Proterro’s Kasdin at the Advanced Biofuels Leadership Conference :

For example, take Proterro’s cyanobacteria, which naturally detects an increase in the salt concentration in water – such as those evolutionary moments when the shallow, life-teeming, brackish pond is drying up – and responds by making sucrose as a form of osmotic protection – basically a biohazard suit made of sugar.

What is Proterro doing? Locating that trigger in the genome, swapping it for a trigger that Proterro can control, and amping up the sucrose producing response. Voila, a sugar producing cell without all the inconvenience of encasing the sugars in a bunch of cellulose and lignin. Then, developing a solid-phase bioreactor that hosts those cyanobacteria. Proven at scale? Not yet. Game changing? If its viable and scalable, for sure.

Elsewhere in the Digest article was a comment to the effect the ideas themselves have been around:

Kef Kasdin, Proterro’s CEO, pooh-poohed the idea that there is a sudden revolution in feedstock technologies. “If you have been going to some of the more technical conferences, you’ll know that these ideas have been worked on for quite some time by a lot of talented people.

Of salt, Proterro wrote in paragraph 5 of PCT/US2009/030162 :

It is known that some cyanobacteria produce sucrose through the action of sucrose phosphate synthase and sucrose phosphate phosphatase, where it has been studied exclusively as an osmoprotectant. With respect to salt tolerance, cyanobacteria can be divided into three groups. Strains having low tolerance (less than 700 rnM) synthesize either sucrose, as is the case with Synechococcus elongatus PCC 7942, or another dissaccharide known as trehalose [Blumwald et al, Proc Natl Acd Sci USA (1983) 80:2599-2602 and Reed et al, FEMS Microbiol Rev (1986) 39:51-56]. Glucosylglycerol is produced by strains having moderate halotolerance (0.7-1.8 mM), such as Synechocystis sp. PCC 6803. High salt tolerance (up to 2.5 M) results from the accumulation of either glycine betaine or glutamate betaine. Miao et al. [FEMS Microbiol Lett (2003) 218:71-77] determined that when glucosylglycerol biosynthesis is blocked by deletion of the agp gene, however, Synechocystis sp. PCC 6803 produces sucrose as its osmoprotectant. Desiccation tolerant cyanobacteria also produce sucrose and trehalose in response to matric water stress [Hershkovitz et al., Appl Environ Microbiol (1991) 57:645-648].

The PCT claims priority to US provisional application 61/018,798, filed January 3, 2008 and to 61/085,797. An "international search report" was mailed May 22, 2009. Note also US application 20090181434, published on July 16, 2009 . Curiously, the preliminary amendment thereto references PCT/US08/69659, an entirely different case of the law firm Sonnenschein Nath & Rosenthal LLP.

Friday, April 22, 2011

CAFC affirms ND Ill in Lexion case

The bottom line:

The United States District Court for the Northern
District of Illinois entered summary judgment that De-
fendants-Appellants Northgate Technologies, Inc., Smith
& Nephew, Inc., and Linvatec Corp. (collectively, “North-
gate”) infringe United States Patent No. 5,411,474 (“’474
patent”). Lexion Med., LLC. v. Northgate Techs., 618
F. Supp. 2d 896 (N.D. Ill. 2009). Contesting this judg-
ment, Northgate questions the district court’s construc-
tion of the claim limitation “having a temperature within
2°C of the predetermined temperature.” Because the
record amply supports the trial court’s interpretation of
this claim term and we find no genuine issue of material
fact regarding infringement, this court affirms.

Text in the case:

The district court correctly interpreted “having a tem-
perature within 2°C of the predetermined temperature”
not to require the claimed device to always be with 2°C of
the predetermined temperature.


The district court found, and this court agrees, that
the Humi-Flow can heat gas that varies, at times, from
within 2°C of the predetermined temperature and can
still literally infringe the ’474 patent. Because the prede-
termined temperature is a single temperature point (even
if selected from a range of possibilities), the term “within
2°C of the predetermined temperature” means just that,
within 2°C of the predetermined temperature, subject to
minor fluctuations. This court detects no inconsistency
and sustains the trial court’s determination.

Kappos komments on kuts by Kongress

from the PTO director's blog on April 22, 2011 (one week after the budget slash of April 15):

Effective immediately and until further notice:

Track One of the Three-Track program, which offers expedited patent examination and was scheduled to go into effect on May 4, 2011, is postponed;
The opening of the planned Nationwide Workforce satellite office in Detroit, as well as consideration of other possible satellite office locations, is postponed;
Hiring—both for new positions and backfills—is frozen;
IT projects will be scaled back;
Funding for Patent Cooperation Treaty (PCT) outsourcing will be substantially reduced;
Employee training will be reduced;
All overtime is suspended.

***UPDATE. A comment to Richmond:

Mr. Farmer makes some excellent points about the problems associated with fee diversion from the Patent Office.

Of --That isn't possible because of the diversion of the office's fees. The Patent and Trademark Office acknowledged in its publication about the fast-track rules that this program would have slowed down regular applications for the rest of the current fiscal year. That's ultimately why fast track was postponed. --, it is likely that Track One of the Three-Track program, which offered expedited patent examination and was scheduled to go into effect on May 4, 2011, was postponed simply because there was no money to implement it. Similarly, the Patent Office postponed the Detroit satellite office for lack of funds, and has suspended all overtime.

Thursday, April 21, 2011

Sneaky smartphones

From a post by online wsj:

Apple Inc.'s iPhones and Google Inc.'s Android smartphones regularly transmit their locations back to Apple and Google, respectively,(...)


The business of collecting location information begain in 2003, when Boston-based Skyhook Inc. launched and began the practice of "wardriving"—cruising around in cars to collect information about Wi-Fi hotspots. Comparing the names and signal strengths of nearby Wi-Fi hotspots against a database allows for a cellphone's location to be determined within 100 feet, in many cases, Skyhook says.

"For the first four or five years, people thought we were nuts," said Ted Morgan, Skyhook's founder and CEO. "We invented this whole concept of driving around and scanning for Wi-Fi and tuning these algorithms."

See also

[IPBiz post 7001]

Patent reform 2011: litigating away the little guy?

The New York Times on 4/21 had several letters under the title How to Improve Our Patent System. The first criticized Doug Lichtman:

Under Mr. Lichtman’s plan, those with the best lawyers could simply litigate away the little guy. Obtaining a patent would be an invitation for large corporations to decide it’s cheaper to drag the patent’s holder into court to convince the jury that the idea was “obvious,” rather than negotiate for the value of his or her invention.

Accidentally failing to cite properly

Note the opinion piece titled In justice, intention matters by CONNOR MUI in the Daily Princetonian on 21 April 2011.

One gets the gist of the piece from the first paragraph:

Princeton’s “Rights, Rules, Responsibilities” states that before the Committee on Discipline, “The only adequate defense for a student accused of an academic violation is that the work in question does not, in fact, constitute a violation.” This statement is like saying that the only defense against a first-degree capital murder charge is that the victim isn’t really dead!

Intellectual property comes up in the piece:

It’s true that intellectual property is essential to the institution of academia and unattributed or improperly attributed use of sources is a serious offense. Nevertheless, to maintain a system in which the lack of intent does nothing to differentiate the type of punishment given is an injustice to the students who accidentally fail to cite properly and are therefore given the same permanent stigma of a year-long suspension as those who knowingly plagiarize.

Connor's beef is with the punishment phase. Maybe "intent" should be a factor in deciding "what to do" with the copyist. As to the fact of "copying without attribution," that's generally fairly plain on its face. You don't need to to analyze intent to determine if something was copied, without attribution. On the far side of Connor's argument is the Glenn Poshard / SIU argument, wherein copied text in a Ph.D. thesis was passed off as inadvertent plagiarism. At some point, as for example in a Ph.D. thesis, one has to take responsibility for separating one's own thoughts from what was already done.

Of news in April 2011, one does not know what intent Michigan State professor Sharif Shakrani may have had, but a reader of a piece destined to sway opinion needs to know what came from Shakrani and what came from elsewhere. Similarly, a Princeton professor needs to know what came from the student and what came from elsewhere. As between the professor and the student, one suspects the student would be in a better position to know what went into the student's paper.

Plagiarism at Princeton went through the New Jersey court system a few decades ago, and the detailed record of the case
[186 N.J. Super. 548; 453 A.2d 263 ]suggests Princeton can be quite lenient, even in a case of rather explicit, intentional, plagiarism. Refer to the previous IPBiz post Plagiarism in academic contexts: a look at the past .

Patent reform 2011 creates uncertainty and is bad for business

David Boundy comments on how the "patent reform" bill would create uncertainty:

The bill also destroys commercial certainty and corrupts the incentives in the system:

• Various statutory requirements that an applicant act “without deceptive intention” are repealed—in the future, applicants will have incentive to act with deceptive intent.
• Key terms of art are redefined—you’ve spent a career learning the meaning of “on sale” and “public use,” but the legislative history fundamentally redefines these terms. It will take decades for courts to establish new precedent to provide any meaningful commercial certainty.
• The Metallizing Engineering “secret commercial use” bar is repealed—a company will be able to use an invention as a trade secret, and then spring a patent on the public years later. That favors market incumbents, but makes innovation harder for everyone else.
• The “best mode” requirement is reduced to a sham: a patentee will be permitted to disclose only a fictitious embodiment, while holding the best as a trade secret.
• The bill gives companies the right to patent and repatent inventions for years, to keep them locked up, neither using them nor permitting them to be used, for far longer than 20 years.
• Several aspects of the “first-inventor-to-file” provision—the ones that give patents to second inventors, and to companies that kept inventions in secret for years before filing patent applications—violate constitutional limits on Congress’ authority—years more litigation and commercial uncertainty.
• The Act allows Wall Street banks to attack “business method” patents that they are infringing. This doesn’t extend to any other industry, only business methods—another Wall Street giveaway.

Legal action over Yankees' top hat/bat logo

A headline on Reuters New York woman claims copyright to Yankees top hat logo but the underlying dispute is over a trademark, specifically the Yankees' top hat perched on a baseball bat. The ultimate issue might reside in contract, as to whether Kenneth Timur was compensated for his 1936 design work.

A suit was filed in SD NY by Tanit Buday, niece of the now-deceased Timur.

Of the current dispute, CNN writes

Buday explains that her uncle was not aware that the Yankees adopted the logo until he immigrated to America in 1947 and was asked to revise the logo for their 1952 celebration of 50 years based in New York City.

She claims Timur was hopeful that this time the sports franchise would offer him some kind of recognition, but took the opportunity to "sign" his work with a "P." Instead of 1903 to 1952, the logo appears as "1P03-1952" on the patches of the uniform.

Rights lost by an inventor under the proposed "patent reform"

David Boundy points out:

Typical inventor activities that no longer “work”

Most startups, and many inventions at established companies, go through at least one of two “stories.” They’re reasonable commercial practice under today’s law, but not under the bill:

• An entrepreneur with nothing but an idea typically has to present his idea to dozens of venture capitalists and potential manufacturing or marketing partners, without formal confidentiality agreements, to get a company started. (VC’s never sign confidentiality agreements for first meetings.) This works under today’s law, because of the implied obligation of confidentiality and the protection of § 102(a), but under the bill, these conversations will create commercially-unacceptable risks to the investor and partner. U.S. inventors will be under the same “Catch-22” as European inventors—unable to talk to potential investors until a patent application is filed, but unable to file a patent application without an investor. Startups will die before being born.

• Companies that need a long “invention incubation” period—trial and error, conceive, test and discard, until finding the “magic combination” of techniques—use the § 102(a) grace period to do their R&D in confidence, and file patent applications only when it’s clear which inventions are valuable, and how they work. Under the bill, a company will have to file a continuous stream of patent applications, many directed to inventions that are dumped under current law. This will increase patent costs remarkably.
Almost every startup goes through one of these two, many through both, as new companies create new wealth and new jobs under today’s law. Inventors wait to file quality patent applications until they have quality inventions. America’s unique and strong right to file in the future, after the inventor and investor know whether the invention is valuable, makes business easy, and prevents wasted costs for inventions that prove worthless.
The “America Invents Act” revokes this historic right. Property rights turn on non-business legal technicalities created to satisfy bureaucrats, technicalities that will cost $1 billion annually. The bill requires a company to file premature, hasty, and expensive patent applications on every baby-step idea to preserve rights against third parties who are dabbling in the field without intent to develop a commercial product. The America Invents Act makes these two stories nonviable for startups—because the authors “didn’t think” about them, or didn’t want to.
In 2010, the Kauffman Foundation and Census Bureau released two studies on job creation. Both found that “net job growth occurs in the U.S. economy only through start up firms.” If creating new jobs is Congress’s Job One, then killing the America Invents Act is a good place to start.

The meaning of "mixture"

Memorable words of claim construction:

Thus, it appears the court construed
“mixture” to mean “a mixture.” We agree that “mixture”
does not require any additional construction.

Of comprising:

We note,
however, that the phrase construed by the trial court is
actually “a mixture comprising” various ingredients.
While the claimed mixture must include the listed ingre-
dients, it is not limited to them, and may optionally
include other components in addition to those explicitly
recited. CIAS, 504 F.3d at 1360-61.

Righthaven case against Thomas DiBiase on copyright infringement related to blog post

Of a copyright infringement charge brought by Righthaven, and an attempt to transfer blog ownership, Courthouse News wrote:

Chief U.S. District Judge Roger Hunt denied Righthaven's request in an order signed Friday, finding that "Congress has never expressly granted plaintiffs in copyright infringement cases the right to seize control over the defendant's website domain."

Michigan State professor Shakrani found to have plagiarized

Michigan State professor Sharif Shakrani has been found to have plagiarized work in a 2010 report related to the potential economic effects of school district consolidation in Michigan.

Wednesday, April 20, 2011

En banc CAFC tosses two-step KSM analysis in Tivo v. Echostar

The outcome of the case:

As a result of our consideration of this case en banc,
we hold that the two-step KSM analysis is unsound in
contempt cases
and we clarify the standards governing
contempt proceedings in patent infringement cases. We
therefore vacate the district court’s finding of contempt of
the infringement provision of the permanent injunction,
and remand to the district court to make a factual deter-
mination of colorable differences under the new standard
we lay out here. We thus vacate in part the damages
awarded to TiVo for EchoStar’s continued infringement.
However, we once again affirm the district court’s finding
of contempt of the disablement provision of the perma-
nent injunction and its sanctions award in its entirety
because we conclude that EchoStar waived arguments of
overbreadth and vagueness with regard to that provision.

Of the new approach:

Instead of
focusing solely on infringement, the contempt analysis
must focus initially on the differences between the fea-
tures relied upon to establish infringement and the modi-
fied features of the newly accused products.

The primary question on contempt should be whether
the newly accused product is so different from the product
previously found to infringe that it raises “a fair ground of
doubt as to the wrongfulness of the defendant’s conduct.”
Cal. Artificial Stone Paving Co., 113 U.S. at 618. The
analysis must focus not on differences between randomly
chosen features of the product found to infringe in the
earlier infringement trial and the newly accused product,
Additive Controls, 154 F.3d at 1350, but on those aspects
of the accused product that were previously alleged to be,
and were a basis for, the prior finding of infringement,
and the modified features of the newly accused product.
Specifically, one should focus on those elements of the
adjudged infringing products that the patentee previously
contended, and proved, satisfy specific limitations of the
asserted claims. Where one or more of those elements
previously found to infringe has been modified, or re-
moved, the court must make an inquiry into whether that
modification is significant. If those differences between
the old and new elements are significant, the newly
accused product as a whole shall be deemed more than
colorably different from the adjudged infringing one, and
the inquiry into whether the newly accused product
actually infringes is irrelevant. Contempt is then inap-
propriate. Arbek Mfg., Inc. v. Moazzam, 55 F.3d 1567,
1570 (Fed. Cir. 1995) (“[T]he modifying party generally
deserves the opportunity to litigate the infringement
questions at a new trial.”).

In dissent, Judge Dyk wrote:

In particular, I dissent
from the majority’s decision to uphold the finding of
contempt of the disablement provision. In my view, the
disablement provision does not bar the installation of
modified software that renders the devices non-infringing,
and, even if the provision were unclear, an unclear injunc-
tion cannot be the basis for contempt. The majority’s
holding that lack of clarity provides no defense is incon-
sistent with established law reflected in numerous deci-
sions of the Supreme Court, our own court, and our sister

In the context of statutory construction, identical lan-
guage is assumed to have the same meaning. See, e.g.,
Clark v. Martinez, 543 U.S. 371, 378 (2005); Dept. of
Revenue of Or. v. ACF Indus., Inc., 510 U.S. 332, 341–42
(1994). In Clark, the Supreme Court held that identical
language in two separate provisions of a statute must be
interpreted in the same manner even though the two
provisions had different purposes. 543 U.S. at 378–380.

accused party cannot be held in contempt for violating an
injunction which does not clearly reach the accused con-
duct. This is so because contempt is improper where
there is “a fair ground of doubt” as to whether the defen-
dant’s conduct is barred by the injunction. Cal. Artificial
Stone Paving Co. v. Molitor, 113 U.S. 609, 618 (1885);
MAC Corp. of Am. v. Williams Patent Crusher & Pulver-
izer Co., 767 F.2d 882, 885 (Fed. Cir. 1985) (citing Cal.
Artificial Stone Paving Co., 113 U.S. at 618). The fair
ground of doubt principle is itself reflected in Rule 65(d) of
the Federal Rules of Civil Procedure, which the Supreme
Court has interpreted to require that an injunction con-
tain a clear and unambiguous statement of “what the
court intends to require and what it meant to forbid.”
Int’l Longshoremen’s Ass’n v. Phila. Marine Trade Ass’n,
389 U.S. 64, 76 (1967); see also Square Liner 360, Inc. v.
Chisum, 691 F.2d 362, 378 (8th Cir. 1982) (“An enjoined
party ought not to be compelled to risk a contempt cita-
tion unless the proscription is clear.”).

NJ grand jury hands down 15-count indictment in Clementi death

The AP reported The indictment charges Ravi with bias intimidation, invasion of privacy, witness and evidence tampering, and other charges stemming from the suicide of 18-year-old Tyler Clementi in September.

Of the evidence counts, the AP reported Ravi deleted a Twitter post letting others know how they could view a second encounter involving Clementi and replaced it with a false tweet; deleted text messages sent and received by witnesses; and gave false information to police — all actions intended to mislead investigators.

One can only wait to see similar manipulations of electronic evidence in the prior art world of patent law.

See also previous IPBiz post:

Clementi case: right of privacy in New Jersey

Tuesday, April 19, 2011

"You're contradicting Cardozo?"

Online wsj said this of oral arguments in the i4i/Microsoft case:

But Mr. Hungar's argument ran smack into a 1934 precedent from one of the court's most revered justices, Benjamin Cardozo, who in a case involving radio technology wrote that once issued [Radio Corporation of America v. Radio Eng’g Labs., Inc., 293 U.S. 1 (1934) ], patents enjoy a presumed validity "not to be overthrown except by clear and cogent evidence."
"You're contradicting Cardozo?" said Justice Antonin Scalia, the court's senior member, who presided over the hearing because Chief Justice John Roberts, who owns Microsoft stock, recused himself.
Mr. Hungar said the Cardozo opinion concerned a narrower and different subset of patent challenges,
"But Justice Cardozo certainly didn't limit his holding in the way you suggest," retorted the court's newest member, Justice Elena Kagan. "The language of that opinion is extremely broad."

Within the 1934 case, one does find broad language, as Justice Kagan stated:

A patent regularly issued, and even more obviously a patent issued after a hearing of all the rival claimants, is presumed to be valid until the presumption has been overcome by convincing evidence of error. The force of that presumption has found varying expression in this and other courts. Sometimes it is said that, in a suit for infringement, when the defense is a prior invention, "the burden of proof to make good this defense" is "upon the party setting it up," and "every reasonable doubt should be resolved against him." Cantrell v. Wallick, 117 U. S. 689, 117 U. S. 695-696; 85 U. S. 124; The Barbed Wire Patent, 143 U. S. 275, 143 U. S. 285; Washburn v. Gould, 3 Story, 122, 142; H. J. Heinz Co. v. Cohn, 207 F.5d 7, 554; Detroit Motor Appliance Co. v. Burke, 4 F.2d 118, 122; Wilson & Willard Mfg. Co. v. Bole, 227 F.6d 7, 609; Stoody Co. v. Mills Alloys, Inc., 67 F.2d 807, 809; cf. Morgan v. Daniels, supra,@ p. 153 U. S. 123. Again, it is said that
"the presumption of the validity of the patent is such that the defense of invention by another must be established by the clearest proof -- perhaps beyond reasonable doubt."
Austin Machinery Co. v. Buckeye Traction Ditcher Co., 13 F.2d 697, 700. The context suggests that, in these and like phrases, the courts were not defining a standard in terms of scientific accuracy or literal precision, but were offering counsel and suggestion to guide the course of judgment. Through all the verbal variances, however, there runs this common core of thought and truth -- that one otherwise an infringer who assails the validity of a patent fair upon its face bears a heavy burden of persuasion, and fails unless his evidence has more than a dubious preponderance. Cf. Philippine Sugar E.D. Co. v. Philippine Islands, 247 U. S. 385, 247 U. S. 391. If that is true where the assailant connects himself in some way with the title of the true inventor, it is so a fortiori where he is a stranger to the invention, without claim of title of his own. If it is true where the assailant launches his attack with evidence different, at least in form, from any theretofore produced in opposition to the patent, it is so a bit more clearly where the evidence is even verbally the same.

Furthermore, the 1934 case does represent a fact pattern in which the "first to file" (Langmuir) did NOT ultimately receive the patent. De Forest was the fourth to file, but ultimately got the valuable patent rights. The whole history of radio would have been different if the current patent reform bill were then the operative patent law. De Forest, the actual inventor, would have been out of luck.

Radio Corporation v. Radio Laboratories

See prior IPBiz posts on i4i:

Monday, April 18, 2011

Congress STILL diverting funds of USPTO in April 2011

from the Milwaukee Journal Sentinel on 17 April 2011:

Legislators siphoned the funds as part of the emergency spending bill drafted hastily to avert a shutdown of the government this month. The stopgap measure, which President Barack Obama signed into law Friday, cuts federal spending by $38 billion and quietly offset a fraction of that amount by draining more than $100 million in fee income from the patent office.

Does anyone believe "patent reform 2011" will end fee diversion?

Sunday, April 17, 2011

CSI: Miami's "Paint it black"

The punch line for the story: the right hand doesn't know what the left is doing, literally.

CSI: Miami gets into "cognitive deficit." Ideopathic memory loss. Finally, the CSIs get to dissociative identity disorder.

The victim had traces of artist's paint in the wound. Poly terpene, linseed oil and paraffin. Traces of copper. There is an allusion to a color wheel, but it isn't developed.

The perp makes a comment in the end: A lot of the greats suffered from mental illness [eg, Jackson Pollock].

Alexis Taymore/Monica Dow.

On the accuracy of “Three Cups of Tea” by Greg Mortenson

"60 Minutes" in its first story on April 17 raises some issues concerning the accuracy of items in “Three Cups of Tea” by Greg Mortenson. In response to these allegations of inaccuracy, AP notes in a statement issued Saturday, April 16, the publisher, Penguin, said, “We rely on our authors to tell the truth and they are contractually obligated to do so.”

The second story concerned the rape of a college athlete, and the third story was Paul Allen on Bill Gates. No Andy Rooney.

Steve Kroft introduced the story on Greg Mortenson, and noted that last fall, "60 Minutes" began an investigation into Mortenson. Mortenson's speaking fee is $30,000 per engagement. In 1993, he tried and failed to climb K-2. A clip from UCSB was shown on 60 Minutes. Jon Krakauer was one of Mortenson's earliest backers, but later withdrew his support. An early account in "The American Himalayan" didn't mention Korfe. 60 Minutes talked with a person named Masoud who negated a claim by Mortenson that Mortenson had been kidnapped by the Taliban. "Pennies for Peace." Daniel Borokov of American Institute for Philantropy (AIP). Most of the program of Morenson's spending is for "domestic outreach." There were 1.7 million dollars in book-related expenses, more than for schools in Pakistan. Central Asia Institute contacted 60 Minutes and noted they receive no royalties from the books. Jon noted in 2002 the board's treasurer quit; no accounting; no receipts. 141 schools mentioned in last year's IRS return. 60 Minutes sought out Mortenson at a book signing in Atlanta; the videoclip was shown. 60 Minutes, at the end of the piece, quoted Mortenson to the effect that the attacks against Mortenson are unjustified.

On the other side of the coin, see a response by Mortenson on April 17, 2011, including

The Board of Directors and I made the very difficult decision to not engage with "60 Minutes" on camera, after they attempted an eleventh hour aggressive approach to reach me, including an ambush in front of children at a book signing at a community service leadership convention in Atlanta. It was clear that the program's disrespectful approach would not result in a fair, balanced or objective representation of our work, my books or our vital mission. We also turned down a last minute request for an interview with Jon Krakauer.

Katie Couric did the case of Beckett Brennan at the University of the Pacific in Stockton, CA. Beckett was a high school All American basketball player. In May, 2008 whe went to the University Townhouse Apartments, and she was raped by three college basketball players. According to one study, 95% of rapes on campus are not reported. The school suggested testifying before an internal school investigation [judicial review board hearing, made up of three students, a teacher, and an administrator.] At the hearing, there were many questions about Beckett's behavior. The three players were actually found guilty; one student was expelled, and two were suspended. Katie asked an administrator if the review board had the appropriate experience. Joelle Gomez was interviewed. In June 2008, Beckett returned to UoP for the summer semester. In Oct. 2008, Beckett left UoP for good.
[In passing, Barry Brennan lettered for the Marquette Golden Eagles in 1973, 1974, 1975, 1976.]

Lesley Stahl did "The Co-Founder" on Paul Allen, about the book "Idea Man." Allen, on Gates: Some days working with you is like being in hell. In 2009, Allen had stage 4 lymphoma. Allen was the creative dreamer; Gates the pragmatist. Allen: he was always popping my balloons. One idea in 1974 that didn't get shot down: write software for the Altair. Allen had seen the Altair 8800 in Popular Mechanics. Allen pitched the software. In 1977, Gates was interviewed on a tv show, talking about software stores. Gates got 60% of the company. Allen on Gates: tough taskmaster. A 1994 CBS news profile: browbeating. Allen felt he was being marginalized. Allen overheard Gates/Balmer trying to reduce Allen's share to about zero. Allen ended up with about 1/3 of Microsoft. Allen bought Jimi Hendrix Woodstock guitar. Allen Institute for Brain Science. Stahl to Allen: I get this Howard Hughes'y feel. Allen: in technology most things fail. Stahl talked about Allen's patent lawsuits. Stahl: how do argue that you had something to do with Google. Allen: all I'm trying to do is get back my investment. Stahl: what's your reaction to the book being a revenge book, a bitter book. Allen talked about Gates coming to Allen in 2009, when Allen was sick. About talking about the book with Gates: I'm sure there will be a heated discussion.


Frey, Glass, and Blair: Where are they now?

CBS Sunday Morning on April 17, 2011

Charles Osgood introduced the stories for Sunday Morning on April 17, 2011. These are taxing times. The cover story is by Seth Doane relates to turmoil over taxes, understanding America's tax code. The second story related to The Great Gatsby. The third story was about Robin Williams, done by Harry Smith. The fourth story was by Bill Geist, on a new star on the Hollywood Walk of Fame. Stories on Jerry Seinfeld. Molly Ringwald.

Headlines. Death toll at least 35 from storm system in the US. FAA taking action after another controller fell asleep. Hillary Clinton met with Japan's Emperor. Palm Sunday at St. Peter's Square.

Weather: Drying out after rains.

Taxing times. Turmoil over taxes, starting with a quote from Barack Obama. "A mess." Nina Olsen, the "national taxpayer advocate" of the IRS. The IRS does what Congress tells them. Last year, 579 changes in the tax code, more than one a day. Joe Thorndike of TaxAnalysts. The US Constitution as a tax document. The Civil War prompted income tax and tax on consumer goods. World War II made income tax: class tax to mass tax. Highest rate: 94% to 35%. David K. Johnston at Syracuse Law School. Individual and corporate tax breaks. GE spent 39 million lobbying. Chris Edwards of the Cato Institute: bulk of tax breaks are for middle class. Leo Hendry, a multimillionaire was interviewed; member of "Patriotic Millionaires." Nina talked about "unreported income" as being the biggest tax loss. If everyone reported properly, everyone would pay $2200 per year less. Paying taxes: moment of awareness. How much civilization do you want. Pulse (poll) stated 51% of people thought they paid fair share.

April 17, 1970. Apollo 13 landed. It was to be third manned lunar mission. James Lovell: much like playing solitaire. NASA: "a successful failure." Lovell and Hayes are still alive.

1983 film Yentl. Passover starts tomorrow. Rita Braver talks about Museum of Jewish History, the opening hosted by Jerry Seinfeld. I didn't learn all this; some of this was put in me by other Jews. Pipe of Einstein; glove of Koufax; piano of Irving Berlin. Josh Perlman on Estee Lauder (matzo as well as makeup). Michael Rosenzweig. A Torah dating from colonial times. Levi Strauss. Jacob Garfinkel. Emmanual Goldenberg.

Molly Ringwald. In 1984 movie "16 Candles." Jazz music as comfort food. In "Facts of Life." John Hughes saw Ringwald as a kindred spirit. Hughes remembered his locker combination. Charismatic normality. Turned down leads in Ghost and "Pretty Woman." Movie to Paris and died her hair blond.

"In stiches." Holbein picture: Henry VIII wearing his wealth. Hampton Court Palace. In 1539, Henry may have taken up embroidery. Susan K. Williams, Royal School of Needlework. Carpenter's Coat. Naturalistic silk shading. French notes. Black work. In 1872, Lady Victoria Wellby opened school of embroidery. Kirsten Fitzgerald is a student. In Henry VIII's time, embroiderers were all men.

Randy Wood. Dot Records. Ain't That A Shame. Tutti Frutti. Covered by Pat Boone. Little Richard on the covers: I later recognized that it gave me recognition, but at the time I didn't feel that way. Tab Hunter. 1978: Dot was shut down for good.

The Great Gatsby. House that served as inspiration torn down yesterday [April 16, 2011] Land's End. Built in 1902 at Sands Point. Gold Coast: Great Neck to Huntington Bay. The "Sunday Morning" piece put a "loss of history" take on the demolition. However, the New York Post put a different spin on the historical significance:

Pace professor Walter Raubichek said that no one can be sure of Lands End's claim to fame.
"It's certainly possible," he said. "But Fitzgerald never made any direct statement about it. Because he knew that area well, there are a few homes that people sometimes think could have served as an inspiration."
The current owners believe that its pedigree has been overstated. "To be honest with you there isn't anything really special about it," said David Brodsky, who along with his father bought the property for $17.5 million in 2004 from Virginia Payson, the late wife of former Mets owner Charles Payson.
"We did a lot of research on its history and there is really no evidence that Fitzgerald was even ever there," he said.

The father is Bert Brodsky, chairman and chief executive of Sandata Technologies Inc. [Sandata's mission: To be at the forefront of Home Healthcare, driving quality, efficiency, and outcomes across the continuum of care. History: In 1980, the City of New York formed its Human Resources Administration (“HRA”) to administer the Medicaid program. Sandata worked with the HRA to design systems that met the specialized needs of the home care agencies under contract with the HRA.]

"Bengal Tiger at the Baghdad Zoo." Robin Williams. British Royal Family: All that money and no dental plan. Weapons of self-destruction. Cow valve. Of life: just enjoy it, there's no rush.

Opinion by Ben Stein. Are we about to go broke? No. debt about = to gnp. The Federal Reserve can print money. Ben quotes Herbert Stein. Social security and Medicare will be changed a lot. No more voodoo economics.

Johnny Grant, of the Walk of Fame. Bill Geist filled out form. Lassie made first film in 1943. 2437th star.

Next week: Mavis Staples.

Moment of nature: Sonoran desert of Arizona.