Wednesday, February 29, 2012

CSI Unplugged on February 29, 2012

In -- CSI Unplugged -- on Feb. 29, 2012, the writers took a leaf from a previous NCIS episode in which the crime investigators had to work without electricity.

Light was furnished by combining luminol with permanganate.

In the "Power Down" episode of NCIS [original air date Nov. 17, 2009, more than two years before "CSI Unplugged" ], Gibbs passed out Polaroid SX-70 cameras, even though film for them has been long gone.

See also IPBiz post
TV questioning "high tech" forensics?

On Tuesday, Nov. 17, NCIS had its black-out episode, showing how the investigators were held-back without their computers.

The episode included "Gibbs using the mimeograph," even though Gibbs didn't use a stencil. How many viewers have used a mimeograph, or know how it works?

The value of NDAs: the Cook/Scientology matter

ABC News with Diane Sawyer, and later Nightline, on 29 Feb. 2012, discussed the flap between Debbie Cook and the Church of Scientology ( with Flag Base in Clearwater, Florida ) :

When Cook and her husband decided to leave the Church of Scientology in October 2007, they signed lengthy contracts agreeing not to publicly criticize Scientology or its leaders, and in return received checks for $50,000 apiece.

CAFC order in PerkinElmer v. Intema

From the order of 29 Feb. 2012 in PerkinElmer v. Intema :

Appellees may present "all arguments supported by the record and advanced in the trial court in support of the judgment as an appellee, even if those particular arguments were rejected or ignored by the trial court." Bailey v. Dart Container Corp. of Michigan, 292 F.3d 1360 (Fed. Cir. 2002). The appellees presented arguments to the district court with respect to the above-noted issues during summary judgment briefing. Thus, PerkinElmer may present the same arguments here, even if as Intema asserts the district court did not consider the issues in reaching its ultimate determination. However, the relevance and merits of those arguments are left to the discretion of the merits panel.

Peter Tosh in the Monkees??

A USA Today story on the death of Davy Jones of the Monkees:

With an infectious smile and easy humor, the diminutive Briton played the Paul McCartney role in the Beatles-inspired quartet, which also included Peter Tosh, Micky Dolenz and Mike Nesmith.

Jones sang lead on some of the group's biggest hits, including Last Train to Clarksville and I'm a Believer.

Jones, who like his bandmates had continued to perform, had dates scheduled for March.

Formed in 1966 by Hollywood producers Bob Rafelson and Bert Schneider, The Monkess quickly stormed radio and TV airwaves with a string of chart-topping songs that went on to sell an estimated 65 million copies worldwide

Peter Tork, anyone?

Musical Patents in Memory of Davy Jones

CAFC rules on GE's wind turbine case at ITC

The conclusion stated:

The ruling that Mitsubishi’s turbines do not violate section 337 because they do not infringe the ’221 patent is affirmed. The ruling that the domestic industry requirement is not met as to the ’221 patent is vacated as moot. The ruling that there is no domestic industry corresponding to the ’985 patent is reversed, and the case is remanded for further proceedings with respect to the ’985 patent.

Thus GE lost as to the claims of US 7,321,221, but got a reprieve as to US 6,921,985.

**Claim 5 of US '221 states:

claim 5 (emphases added) [sic: no emphasis in published decision]:

5. A wind turbine, comprising: a rotor with at least one rotor blade, the rotor
being rotatably arranged with regard to a substantially horizontal rotor axis;
an induction generator whose rotor windings are coupled to the rotor and whose stator coils can be coupled to a voltage grid;
a feed-in unit for feeding currents into the rotor windings;
a control unit for controlling the frequency of the fed-in currents depending on the rotor rotation frequency, and
an emergency unit which can be operated to electrically decouple the feed-in unit from the rotor windings in case of variations of the grid voltage amplitude, wherein the emergency unit comprises a release arrangement for releasing the rotor current feed-in after decoupling, when the currents gener- ated in the rotor windings by variation of the grid voltage amplitude triggering the decoupling are de- clined to a predetermined value.

General Electric, citing Honeywell International, Inc. v. ITT Indus- tries, Inc., 452 F.3d 1312, 1318 (Fed. Cir. 2006), argues that because the specification refers to a predetermined time constant “within the framework of the method according to the invention,” the passage of a fixed period of time is included in the scope of the claims.

The CAFC did not agree with GE:

No embodiment in the patent, no drawing, no circuitry, shows recoupling solely after a predetermined period of time. Although the specification shows that General Elec- tric knew that various electrical disturbances for which this protective circuitry is intended occur within a known dura- tion, the ’221 invention as claimed is explicitly limited to recoupling when the actual end of the specific disturbance has been determined by measurement of when the current has declined to a predetermined value. Although General Electric recognized and described the usual duration of such electrical disturbances, a possibly broader disclosure accom- panied by an explicit narrow claim shows the inventor’s selection of the narrow claim scope. See 35 U.S.C. §112 ¶2 (“The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.”).


The Commission held that the ’221 claims are directed to a predetermined value of current or a proxy for current. The inclusion of a proxy for current comports with Linear Technology Corp. v. International Trade Commission, 566 F.3d 1049, 1060 (Fed. Cir. 2009), which held that “monitor- ing the current to the load” could be indirectly measured by voltage, for “once voltage is known, one skilled in the art would recognize that Ohm’s Law4 easily allows current to be calculated, therefore monitoring current indirectly by moni- toring voltage.” The Commission’s construction of “prede- termined value” as a value of current or a proxy for current “stays true to the claim language and most naturally aligns with the patent’s description of the invention.” Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) (en banc) (quoting Renishaw PLC v. Marposs Societá per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998)). This claim construction is affirmed.

Footnote 4 cites a case to support Ohm's Law:

“Ohm’s Law is a principle of electrical circuits and is represented by the equation I (current) = V (voltage) / R (resistance). Thus, it states that the current through a conductor between two points is directly proportional to the voltage across the two points, and inversely proportional to the resistance between them.” Linear Tech., 566 F.3d at 1059 n.4.

The doctrine of equivalents arose:

General Electric argued that even if there is not literal infringement, the doctrine of equivalents applies because the system in the ’221 patent and the Mitsubishi system perform substantially the same function in substantially the same way to achieve the same result, whether recoupling is measured by current drop or by the passage of time. See Voda v. Cordis Corp., 536 F.3d 1311, 1326 (Fed. Cir. 2008) (summarizing the criteria of infringement based on equivalency).

**As to matters with the '985 patent:

However, the function of the shunt circuit does not depend on whether the shunt circuit is entirely outside of the inverter, and the ’985 specification does not require separation of the inverter and the shunt circuit in order for that circuit to be coupled with the input of the inverter and with the converter con- troller; rather, the term “coupled with” indicates a connec- tion. See Johnson Worldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 992 (Fed. Cir. 1999) (“‘[C]oupled’ generically describes a connection, and does not require a mechanical or physical coupling.”).
A similar argument was rejected in NTP, Inc. v. Research in Motion, Ltd., 418 F.3d 1282 (Fed. Cir. 2005), where some of the claims recited a receiver “connected to” or “coupled to” a processor or that the receiver “transfers” information to the processor. The accused infringer in NTP had argued that “connected to,” “coupled to,” and “transfer from” each requires the receiver and the processor to be separate, but the court concluded that “the two components could be connected, joined, or linked together by wires or other electrical conductors and still be located in the same housing or even on the same circuit board.” 418 F.3d at 1310-11. The court also held that the function that informa- tion is transferred between two entities does not require physical separation of the entities. Id. at 1310. NTP does not support the Commission’s ruling that the word “from” requires physical separation of the shunt circuit and the inverter.
We conclude that claim 15 requires that the circuit is coupled with the input of the inverter and the converter controller, whereby the current is shunted from the inverter and the rotor; this requirement does not limit the placement of the shunting circuitry to a location entirely external to the inverter. As in Linear Technology, “there is nothing in the claim language or specification that supports narrowly construing the terms to require a specific structural re- quirement or entirely distinct [circuits]. Rather, the [cir- cuits] must only perform their stated functions.” 566 F.3d at 1055.6

Of contradictory positions, footnote 6:

Mitsubishi submitted a letter in accordance with Fed. R. App. P. 28(j), arguing that General Electric stated a position before the PTO during the ongoing reexamination of the ’985 patent that contradicts its arguments here. General Electric responds that its argument distinguishing a certain reference does not conflict with its position here. On the information before us, the reexamination arguments do not affect our conclusion.

Of the concept of dominating patent:

Mitsubishi states that if General Electric’s turbines practice the subject matter claimed in a separate patent, they cannot practice the invention of the ’985 patent. That is not correct, for a separately patented invention may indeed be within the scope of the claims of a dominating patent. See Hoechst Celanese Corp. v. BP Chems. Ltd., 78 F.3d 1575, 1582 (Fed. Cir. 1996) (“The fact of separate patentability presents no legal or evidentiary presumption of noninfringement . . . .”); Atlas Powder Co. v. E.I. du Pont De Nemours & Co., 750 F.2d 1569, 1580 (Fed. Cir. 1984) (an improvement in a step of a patented method, even if separately patentable, may not avoid infringement). The scope of the ’985 patent is determined on its own terms, independent of whether other aspects or modifications of the technology are separately patented.

The bottom line on US '985 favored GE:

The domestic industry requirement is not negated if the technology as employed in the domestic industry has been modified from its form when the patent was obtained.

We conclude that claim 15, correctly construed, covers the domestic industry turbines. The Commission erred in determining that General Electric does not meet the domestic industry requirement with respect to the ’985 patent. That ruling is reversed. See Osram GmbH v. Int’l Trade Comm’n, 505 F.3d 1351, 1359 (Fed. Cir. 2007) (reversing finding of no domestic industry, on corrected claim construction).

There was another issue, more between the ITC and the CAFC:

Thus the Commission holds that when the full Commission does not review an issue that it noticed for review, that issue is removed from access to judicial review. This inter- pretation conflicts with the statutory right of judicial review of Commission determinations, provided in 19 U.S.C. §1337(c). Such interpretation also conflicts with the princi- ples of 19 C.F.R. §210.42(h) and §210.45(c), for no statutory or regulatory provision contemplates excluding a fully litigated ITC decision from access to judicial review.
The Commission has stated that the 2008 amendments are simply “procedural rules” promulgated “in order to increase the efficiency of its section 337 investigations.” Rules of General Application and Adjudication and En- forcement, 73 Fed. Reg. 38,316, 38,318 (July 7, 2008). The public comments on the 2008 amendments were directed to the proposed extensions of the time limits, and did not perceive the possibility of removal of fully litigated issues from finality. This consequence is not stated in the regula- tion, and is not explored in the comment record, where most commentators stated their concern for the lengthening of the target dates for Commission proceedings. For example:
[O]ne of the great advantages of Section 337 pro- ceedings is their speedy adjudication. The role that the Commission and Section 337 have achieved as one of the key forums for protection of valuable U.S. intellectual property rights rests on the speed and high quality of its adjudicatory process.
ITC Trial Lawyers Association, Comment to Notice of Pro- posed Rulemaking, ITC Doc. No. 296282, at 6 (Mar. 31, 2008). Speedy adjudication requires finality.
The amendment to §210.45(c) does not state that any is- sue on which the Commission takes no position is removed from access to the judicial review of Commission proceed- ings as provided by §210.42(h). Such a purpose would surely have occasioned comment; for example, the Intellec- tual Property Owners Association commented on the au- thorized extension of target dates, stating that:
IPO members place much value in the Commission’s prompt and effective resolution of Section 337 inves- tigations “at the earliest practicable time.” (quoting 19 U.S.C. §1337(b)).
Comment to Notice of Proposed Rulemaking, ITC Doc. No. 296810, at 2 (Mar. 31, 2008). “Prompt and effective resolu- tion” is not served by removing finality from the decision of issues on which Commission proceedings are over, thereby barring judicial appeal of those decisions.
The Commission states that this court held in Beloit Corp. supra, that any “noticed” issue of the Initial Determi- nation on which the Commission took no position cannot be appealed to the court. That is inaccurate, for Beloit dealt with the situation in which the prevailing party in the Commission sought judicial review of other issues that the Commission did not reach. This court held that the prevail- ing party had no right of appeal, and that issues which had not been reviewed by the Commission were not appealable by the party that prevailed in the Commission.
Of course a prevailing party cannot appeal, for there is no controversy. Am. Tel. & Tel. Co. v. Int’l Trade Comm’n, 626 F.2d 841, 842 (CCPA 1980) (“Since the ITC determined that there was no §1337 violation by Bell, Bell is without standing to appeal.”). The court in Beloit did not authorize the Commission to deprive the losing party of its right of judicial appeal. 19 C.F.R. §210.42(h)(2) provides that issues decided by Initial Determination and not reviewed by the full Commission become final, and are appealable to the Federal Circuit. This right cannot be negated by taking no position on the issue. The result propounded by the Com- mission is anomalous: if the issue decided by initial deter- mination is “noticed” and then reviewed by the Commission, the decision of that issue is routinely subject to appeal by the losing party; if the issue is not “noticed” by the Commis- sion, the decision is again routinely subject to appeal by the losing party; but if the issue is “noticed” by the Commission and then not reviewed, the decision is not subject to appeal by the losing party. The consequences of this practice are illustrated in this case, for all contested issues concerning the ’985 patent were investigated by the Commission, tried to the ALJ, decided by Initial Determination, yet nearly all were held unavailable for judicial review. Thus we are obliged to remand to the Commission for undefined further proceedings, for which one may be confident only of further time and cost in the Commission and upon re-appeal to this court. The legislative purpose of expedited ITC resolution of unfair competition issues requires attention, in accord with statute and regulation, that issues decided by initial determination and not substantively reviewed by the full Commission are deemed determinations of the Commission in accordance with 19 C.F.R. §210.42(h)(2), and entitled to appeal in accordance with 19 U.S.C. §1337(c).

Tuesday, February 28, 2012

FORT PROPERTIES, INC. prevails at CAFC in 101 case

The CAFC noted:

Four seminal Supreme Court precedents provide guidance regarding when an invention qualifies as a patent-eligible process as opposed to an abstract idea: Bilski, 130 S.Ct. 3218; Diamond v. Diehr, 450 U.S. 175 (1981); Parker v. Flook, 437 U.S. 584 (1978); and Gottschalk v. Benson, 409 U.S. 63 (1972). First, in Benson, the Court found that an algorithm capable of convert- ing binary-coded decimal numerals into pure binary code was an unpatentable abstract idea. 409 U.S. at 64-67, 71- 72. In reaching this conclusion, the Court explained that allowing such an invention to qualify as patent-eligible subject matter “would wholly pre-empt [a] mathematical formula and in practical effect would be a patent on the algorithm itself.” Id. at 72.


Third, in Diehr, the Court explained that while an abstract idea could not be patented, “an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.” 450 U.S. at 187. The invention at issue in Diehr was a method for “molding raw, uncured synthetic rubber into cured precision products” using a mathematical formula and a computer. Id. at 177. This invention qualified as patentable subject matter under § 101 because it was not “an attempt to patent a mathematical formula, but rather [was] an industrial process for the molding of rubber products.” Id. at 192-93.

In the present case:

For the reasons provided below, claims 1-31 of the ’788 patent do not satisfy the patent-eligibility requirements of § 101.


Fort Properties disagrees, arguing that the claimed method of aggregating property, making it subject to an agreement, and then issuing ownership interests to multiple parties consists entirely of mental processes and abstract intellectual concepts. Fort Proper- ties counters that under Bilski, 130 S.Ct. at 3218, the invention’s intertwinement with deeds, contracts, and real property does not transform the abstract method into a patentable process.
We agree with Fort Properties. Indeed, the claims in Bilski were tied to the physical world through at least two tangible means: commodities and money. Id. at 3223-24. These ties, however, were insufficient to render the abstract concept of hedging patentable. See id. at 3231. We view the present case as similar to Bilski.

Bottom line

Because claims 1-41 of the ’788 patent attempt to cap- ture unpatentable abstract subject matter, they are invalid under 35 U.S.C. § 101. Therefore, we affirm the district court’s grant of summary judgment in favor of Fort Properties.

Monsanto prevails over Pioneer at CAFC


For the above stated reasons, the judgment of the Board stands

NCIS on 28 Feb. 2012

Chief Petty Officer Leland Wiley is the decedent in the episode "Need to Know." Wiley worked at the Navy Research Lab. Wiley copied information on drones/stealth aircraft.

Wiley's pacemaker was internet addressable. The murderer addressed the victim's pacemaker via the internet and set the hard rate to 400. Extreme tachycardia. The signal originated from a cell phone of Michael (Mickey) Reardon of Herndon, VA.. Reardon does a great escape run from Tony and Zeva until intercepted by Gibbs in a car. Reardon gets to meet Wiley face to face in the morgue.

Katia Winter guest stars as model Ava Baransky, who gets intercepted at the Philadelphia Airport. Inspector Challis told NCIS that DIA said to grease the skids for Ava's entry into the US. Dorneget manages to get locked up in ladies room off of I-95, as Ava escapes. But then Gibbs tells Tim to let her go (after she had escaped). The "secrets" are bogus plants.

Line: "THe Buick is out of the garage, Dorneget "

In front of Teaton's, Gibbs is told by DIA "You don't have the need to know."

Tim gives Dorneget Gibbs Rule No. 1: you don't screw over your partner. Rule No. 10: never get involved personally in a case.

***Last line of the episode, from Agah Bayar:

Come on Gibbsie, let me buy you a drink.

Football coach Tommy Tuberville accused of fraud

A lawsuit filed on Friday, Feb. 24 in U.S. District Court in Montgomery, Ala. names Tommy Tuberville as a defendant, accusing him of defrauding several investors, via TS Capital Management.

Wikipedia notes: While at Ole Miss, Tuberville made the statement, "They’ll have to carry me out of here in a pine box," in reference to not leaving to coach at another school. Two days after he made that statement, it was announced that he was departing for Auburn.

FDA warning as to memory loss from statins

Scott Pelley on CBS Evening News on 28 Feb. 2012 noted that the FDA had issued new guidelines for a warning label as to memory loss issues from statins (such as Zocor and Lipitor).

See previous IPBiz
Do statins cause transient global amnesia?

From the AP story titled FDA adds new safety information to statin drugs : New labeling on all such drugs will warn of memory loss and confusion reported among certain patients taking statins. In general the problems were not serious and went away after patients stopped taking the drugs, according to the FDA.
The updated labels will also mention elevated levels of blood sugar, associated with diabetes, that have been reported in some patients taking statins. A growing number of studies published over the last five years have found a link between statin use and type 2 diabetes. Last June, a report in the Journal of the American Medical Association analyzed five older randomized trials and concluded the increased risk was small but real for people taking higher doses of any statin.

See also FDA: New Warning Labels for Statins

Tobacco for biofuel?

From a post at labmanager:

Their goal is to engineer tobacco plants that use energy from sunlight to produce fuel molecules directly in their leaves. The leaves would then be crushed, and the fuel extracted and separated. The scientists estimate that about 1000 acres of tobacco could yield more than one million gallons of fuel.

One million gallons per 1000 acres is 1000 gallons per acre, a figure currently beaten by algae/cyanobacteria.

High risk? Yes. But is it even needed? Does not sound like high payoff.


If this sounds promising—albeit a bit of a long shot—that’s by design. The $4.9 million project is funded by DOE’s Advanced Research Projects Agency-Energy (ARPA-E), which focuses on “high risk, high payoff concepts—technologies promising genuine transformation in the ways we generate, store and utilize energy.”

The project is led by Christer Jansson, a plant biochemist with Berkeley Lab’s Earth Sciences Division. He’ll discuss the project at the 3rd Annual ARPA-E Energy Innovation Summit, to be held February 27-29 near Washington, D.C.


UMinn shifts plagiarism detection software from Blackboard Inc.’s SafeAssign to Turnitin

The University of Minnesota will have a campus-wide license to Turnitin, which provides a plagiarism detection service.

The University’s Academic Misconduct Policy defines plagiarism as the use of “another person’s ideas, processes, results or words without giving appropriate credit.”

Facebook: "Yahoo contacted us at the same time they called the New York Times and so we haven't had the opportunity to fully evaluate their claims"

Reuters discussing the assertions made by Yahoo to Facebook in the article, Yahoo, Facebook Patent War Looms.

IPBiz reminds Facebook of the COX-2 inhibitor case, wherein the University of Rochester sued Searle the day the patent issued, without bothering to inform the New York Times.

Similarly, note also the law suits in the Butamax/Gevo biofuels area.

***Separately, on the subject of Facebook, see the complaint filed in CD California,
EveryMD v. Rick Santorum, ... with paragraph 4:

Defendant RICK SANTORUM (“SANTORUM”) is a Facebook business account holder whose Facebook page has a URL of SANTORUM has a place of business at Post Office Box 37, Verona, PA 15147.

"They are a predictable corporation; in other words that they’re capable of being scared that something might affect their profits"

See the article in The Scientist: Elsevier Abandons Anti-Open Access Bill, wherein Elsevier dropped its support of the RWA bill sponsored by US Representatives Darrel Issa (R-CA) and Carolyn Maloney (D-NY).

Scale-up issues in biofuels

Note the post by Zachary Russ titled For Biofuels, Escaping from Titer Binds Is Key which includes the text:

With new technologies such as novel hybrid strains or different biochemical pathways the results in the lab bench can be very deceptive. The move from a 1 liter desktop fermenter to a 1,000 liter tank to a 100,000 liter plant usually entails several unforeseen difficulties—differences in pressure, mixing, heat dissipation, and plumbing abound. (...)

Several biofuel companies have suffered from technical and financial scale-up troubles. Range Fuels went bankrupt trying to fix its process problems, KiOR is still getting loans to pay for its production facility, and Amyris (farnesene diesel) saw its stock price plummet after it had to drop its farnesene-production estimates. Companies such as Gevo also scaled back their technological expectations, focusing less on the use of cellulosic sources (grasses, etc.) and more on producing specialty fuels with common sugary feedstocks and retrofitted ethanol plants.

For Amyris, LS9 (diesel/jet fuel), Codexis (ethanol), and other synthetic biology-based biofuel companies, putting off the scale-up makes sense. Alternative products are where their platforms can truly shine: engineered organisms (or their enzyme products) are excellent at green chemistry and manufacture of commodity and specialty chemicals such as biodegradable plastics, pharmaceuticals, cosmetics, and flavors/fragrances. Though the market value may be much smaller, so is the competition and the volume of product demanded.

Monday, February 27, 2012

GE/Mitsubishi wind turbine patent case goes to trial in Texas

GE asserts that Mitsubishi has infringed patent claims of GE in the wind turbine area.

Obama energy speech at UMiami on Feb. 23, 2012

Within President Obama's speech on energy at the University of Miami on February 23:

Today we’re taking a step that will make it easier for companies to save money by investing in energy solutions that have been proven here in the University of Miami -- new lighting systems, advanced heating and cooling systems that can lower a company's energy bills and make them more competitive.

We’re launching a program that will bring together the nation’s best scientists and engineers and entrepreneurs to figure out how more cars can be powered by natural gas, a fuel that’s cleaner and cheaper and more abundant than oil. We’ve got more of that. We don’t have to import it. We may be exporting it soon.

We’re making new investments in the development of gasoline and diesel and jet fuel that’s actually made from a plant-like substance -- algae. You’ve got a bunch of algae out here, right? (Laughter.) If we can figure out how to make energy out of that, we’ll be doing all right.

Believe it or not, we could replace up to 17 percent of the oil we import for transportation with this fuel that we can grow right here in the United States. And that means greater energy security. That means lower costs. It means more jobs. It means a stronger economy.

Immediately later in the speech, one has text:

There is no silver bullet. There never has been.

(...) We got to look at the facts, look at the science, figure out what we need to do.

We may not have a silver bullet, but we do have in this country limitless sources of energy, a boundless supply of ingenuity, huge imagination, amazing young people like you -- (applause) -- all of which can put -- all of which we can put to work to develop this new energy source.

In a post titled Obama's Favorite Algae Company, Jeff McMahon at Forbes identified the source of the "17 %" number used by President Obama AND, separately, talked about Algenol Biofuels in Ft. Myers/Bonita Springs (although the company's name was misspelled as "Alganol Biofuels" and "Alganon" within the article).

The "17%" number arises from National microalgae biofuel production potential and resource demand. The abstract of the paper notes: Optimizing the locations for microalgae production on the basis of water use efficiency can greatly reduce total water demand. For example, focusing on locations along the Gulf Coast, southeastern seaboard, and Great Lakes shows a 75% reduction in consumptive freshwater use to 350 L per liter of oil produced with a 67% reduction in land use. These optimized locations have the potential to generate an oil volume equivalent to 17% of imports for transportation fuels The antecedent number on "land use" was 5.5% of the land area in the conterminous United States , so a 67% reduction of land area would require 0.33 X 5.5% or 1.8% of the land area in the coterminous United States.

**The first commenter to the article wrote:

As a former Obama supporter and voter, I was sad to see that he is no better informed about the realities of the limitations of algae and biofuels than the general public. Algae and all biofuels are dependent on petroleum based and dependent chemical fertilizers (NPK) to produce any significant scale of production. Four different mass balances studies have shown that biofuels are neither renewable or sustainable because of their NPK dependence and their competition with food crops which are also 95% dependent on NPK. Since we know that both petroleum and phosphates in the NPK have now peaked – it makes no sense to risk food production by using those chemicals for biofuels. Some studies have suggested a large scale biofuel industry would require 2-4 times the NPK that our foods do. Shame on you Mr. Obama for not doing your science home worki.

[But see previous IPBiz post
Phosphorous requirements for algae: as to biofuels?
] which shows that the phosphorous arguments of Rhodes may not be applicable to processes such as that of Algenol. Specifically, Rhodes' arguments pertain to a system such as biomass harvesting, wherein the consumed phosphorous is in the biomass (and assumed to be lost by Rhodes). Those systems in which a product such as ethanol is excreted by a still-living organism will consume less phosphorous/product than assumed by Rhodes.]

Sunday, February 26, 2012

Mentalist on 26 Feb. 2012 recycled from 13 Oct 2011

The "Ring Around the Rosie" episode first aired on October 13, 2011. The character "Luther Wainwright" is introduced, and Luther has a different view of dealing with criminals than does Patrick. Wainright observes Jane shows most of the hallmark signs of being a high-functioning clinical psychopath

"60 Minutes" on February 26, 2012: going to extremes

Special episode on "Going to Extremes."

Flying at 140 miles per hour ("The Birdmen"). Separately, rock climbing (free soloing) by Alex Honnold. Separately, great white sharks.

Steve Kroft did the story on "The Birdmen." The Ramsdall Valley of Norway near Oslo was the scene of the video. for every two feet forward, a drop of one foot. The speed increases stability. There is margin.

The stories seemed to be recycled from previous episodes.

For example
"60 Minutes" on October 2, 2011. Tsunami, free soloing, and Rooney's last regular appearance.

Taking Flight With The Birdmen This story was first published Oct. 11, 2009. It was updated Dec. 16, 2009

Umbrella cockatoo does cameo in story of "identity theft"/fake income tax refunds

CBS Nightly News on 26 Feb. 2012 showed an umbrella cockatoo in its piece on (fraudulent) tax refunds done by Pete Williams, titled "Securing your refund." Tax thieves are going after your money by filing fake income tax returns. Bart Cohen of Miami had the cockatoo (which was shown flying off his hand), but had someone else file for his refund last year. Fake refund filings were 49,000 two years ago but up to 261,982 last year. Stolen social security numbers are key to the scam of filing falsely for income tax returns. Advice: Safeguard your social security number. Also, file early.

As to other bad news:

Average price of gas is now $3.69/gallon.

With 96,000+ Americans still in Afghanistan, there is a problem with the current unrest about the Quran burning, including a grenade attack in Kunduz on February 26, 2012. Ryan Crocker noted that civilian imbeds are being withdrawn.

Passenger train derailment in Ontario. from usatoday: Burlington, Ontario.
Lamarche said no passengers died but dozens were injured. She said 75 people were on board the train traveling from Niagara Falls to Toronto when it derailed Sunday afternoon near Aldershot station.

***As to the income tax matter, the Sun-Sentinel presented a scarier picture:

from May 25, 2011: Criminals who commit tax fraud using stolen Social Security numbers — many of them based in South Florida — have victimized nearly half a million taxpayers since 2008 and collected millions of dollars of refunds

***As to Cohen:

from April 19, 2011: Bart Cohen, who lives west of Boynton Beach and is a retired Miami-Dade police officer, had been counting on a $4,000 tax refund to pay his real estate taxes or insurance premium.

A ruling in Dickstein Shapiro/Encyclopedia Britannica malpractice matter

On February 2, 2012, U.S. District Judge John D. Bates (D DC) dismissed a breach of fiduciary duty claim against Dickstein Shapiro in the case brought by Encyclopedia Britannica. The negligence claim remains.

See previous IPBiz post
Britannica torched at CAFC
which included n light of our determination that the ’955 application
is not entitled to the priority date of the ’917 application
because it failed to specifically reference the ’917 applica-
tion as required by § 120

CBS "Sunday Morning" on February 26, 2012

Charles Osgood introduced the stories for Sunday Morning for February 26, 2012. Tonight is Oscar night. Could the movie theater be facing its very end? Tracy Smith does the cover story on this question. Second, Lee Cowan on extras and Central Casting. Third, Keeping Score by Martha Teichner. Allan Menkin has more Oscars than anyone else alive. Fourth, Mo Rocca on Roger Corman and his B movies. King of the B's. Fifth, Mary Peterson on Wings. Sixth, Anthony Mason. Headlines: Two Americans murdered in Kabul. Mandy Clark covers the story on the Koran burning. All NATO advisors have been pulled back. Syrians voting on a constitutional amendment. Polling in Michigan. Nelson Mandela discharged from hospital. Bin Laden compound being destroyed. Adam Sandler up for Razzy awards. Midweek rain in northeast.

fans worried by "the end" of the movie theater. Paul Degarabedian for The economy is a factor. In 1946, the best year for movies: 60% of Americans went to theaters every week. Sharon Waxman runs The Wrap. Malco Theater. Joe Picarillo of NYU's Tisch School. Profit and successful box office, not good movies, drives Hollywood. There were only two 400 million dollar movies in 2011. What end's up in theaters is dictated by international sales. Words are not as important as visuals. Right now, theater receipts are up over 18% over same time last year.

Almanac. February 26, 1916. John Herbert Gleason born in Brooklyn, New York. In early 1950s, Jackie Gleason show on Saturdays on CBS. The Honeymooners. Clip from 1984 "Sixty Minutes" interview with Morley Safer. Movie "The Hustler". ?Requiem for a Heavyweight" as Maish Rennick (1962). Statue of Ralph Cramden in front of the Port Authority in New York City.

Silence is Golden. First Oscar winner. Wings in 1927 by Paramount. William Wellman was director. I'm going to do this right. Stars had to fly planes themselves, risking their lives for the shot. Jesse Lasky asked what qualified Wellman for the job. Clara Bow was in Wings. The issue of the belt on Bow's uniform. Gary Cooper had one scene in Wings as "Cadet White." The nitrate stock of the movie decomposed. Andrea Callas film archivist. A backup print made in 1950s. The makers of Top Gun studied dogfight scenes from Wings.

A Whole New World from Aladdin. Keeping score with the music. Alan Menken wrote the music for Little Mermaid. Won first two Oscars for Menken. Then Beauty and the Beast. Then Aladdin. Then Colors of the Wind from Pocohontas. Music for animated musicals. From a family of dentists. Little Shop of Horrors. In movie version, Steve Martin is a dentist. Howard Ashman did the lyrics. Original musical theater brought back into film. Infectious, vulnerable, unguarded, childlike. Best for Hunchback of Notre Dame. His latest is for Mirror, Mirror. Julia Roberts as evil queen. Menken's has a synthesizer hooked up to a computer program. Country compound north of New York City. Tortorium, environment for tortoises. Petunia. Songs for Leap of Faith, to be on Broadway. Sister Act. Turning movies into Broadway musicals. Newsies. You have created something that is real.

David Edelstein gives his Oscar picks. Best picture: The Artist. Edelstein's favorite movie is War Horse, but Dave says won't win.
Best Actor: Jean Dujardin Best supporting actor: Christopher Plummer. Best Supporting Actress: Octavia Spencer from The Help. Best Actress: Viola Davis over Meryl Streep?

Anthony Mason, what's black and white and all over the red carpet? The tuxedo. Where did it come from? Tuxedo Park, New York of the 1880s. 150th anniversary of the dinner jacket. Saville Row. Henry Poole & Company. 1865 Prince of Wales ordered a smoking jacket. Edward Prince of Wales. Make a short jacket for Edward. Records of every order at Poole since 1846. A blue silk smoking jacket lined silk was ordered in 1865. Deborah Harman. Pierre Lorillard founded Tuxedo Park. "The men from tuxedo." The lavendar monaco; the orange crush. Now, black is back. Angus Cundee on the dinner jacket. The tuxedo as an American invention? The Brits created it; Americans gave it a name.

Lee Cowan on extras in movies (from Central Casting). Cinematic wallflowers. Jennifer Bender is a VP at Central Casting.
Central Casting has been around since 1925. Cecil B. DeMille was a customer. MoneyBall had thousands of extras. Brad Pitt got his start in Central Casting. John Wayne and Ronald Reagan, too. Summer Wesson. Jessie Hyman, world's greatest extra: Glee, the Social Network. Embrace the humility. Person who sat behind Travolta in Welcome Back, Kotter. "The cross."
Yvonne Lavolette. A Hollywood Badge of Honor.

War of the Satellites by Roger Corman. Mo Rocca tracks Corman down. Attack of the Fifty Foot Cheerleader. Corman has directed about 59 movies; produced around 350. Corman shot Machine Gun Kelly in 15 days. Charles Bronson was in the movie. Used shadows of people in bank robbery. Corman was in Navy for two years; Corman's duty to break rules. Not of this Earth. The Cry Baby Killer. Teen age crime. Piranha. Fly Me. Exploitation movies. The Arena. Cover Girl Models. The Big Bird Cage. The Big Doll House. The Beast with a Million Eyes. Schlock-Meister. War of the Satellites. Little Shop of Horrors, with Jack Nicholson. Francis Coppola. Fire on the Amazon with Sandra Bulloch. Not of This Earth. In 2009, Corman got a lifetime achievement Oscar. Corman as the cool but slightly weird teacher.

Best animated short film. La Luna. Landscape of fallen stars. Wild Life. An English dandy as a pioneer in the Old West. Fantastic Flying Books.

Pulse: 52% say Oscar nod does NOT influence choice of movie [!]

Steve Hartman's story on "Home Run" about things he have saved at his home. His wife Andrea. This story is recycled from CBS Evening News with Scott Pelley. Got Toledo Mud Hens Jersey 26 in 1986: Billy Beane. He really changed the entire philosphy of the game (baseball). Dennis the Menace paper plates.

Next week. Cindy Crawford.

Moment of Nature. HandiHaler. Snowstorm at Yosemite National Park. The Park is a veteran of more than 70 films.

Saturday, February 25, 2012

"Trapped by Television": Hollywood doing inventor movie in 1936.

Plot: An inventor looking for backing for his television invention gets involved with a crooked businessman and gangsters who try to steal his invention.

Release date: 15 June 1936

Starring Mary Astor.

From wikipedia: Regularly scheduled electronically scanned television began from Alexandra Palace in London on 2 November 1936, to just a few hundred viewers in the immediate area. It was reaching an estimated 25,000-40,000 homes before the outbreak of World War II

from IPBiz
Television and the movie Rebecca (1940)
: On September 1, 1939, the BBC Television Service was suspended, about 20 minutes after the conclusion of a Mickey Mouse cartoon (Mickey's Gala Premiere), due to the imminent outbreak of the Second World War, amid fears that the VHF transmissions would act as perfect guidance beams for enemy bombers attempting to locate central London.

Herb Vigran, actor but law school grad

Herb Vigran, a bushy-browed character actor who appeared in roles as a villain in the tv Adventures of Superman (e.g., Legs Lemmy; Mugsy Maple), various roles in both Dragnets, and Judge Brooker in Gunsmoke, was a law school graduate (Indiana University School of Law).

See post George Reeves
Hall of Fame: Herb Vigran
, which includes several pictures.

A great bonanza for the lawyers?

In a post The Patent War to End All Patent Wars, John C. Dvorak reviews some of the issues in the upcoming patent fight/litigation between Apple and Microsoft on one side and Google, Motorola, and Samsung on the other. In the future, Nokia will likely come in with Microsoft while IBM will likely side with Google.

Within the Dvorak post, one has the text:

If they [patents] indeed protect inventions, then why do they have to be licensed at all? Seriously, if I invent something, the patent system is supposed to give me a 26-year monopoly on the invention, after which it is passed into the public domain for all to use.

Separately, Timothy B. Lee analyzes the "inventiveness" of Apple in a piece in Forbes titled >Apple (Mostly) Isn't to Blame for the Patent Mess , which includes the text:

The problem is that once you have the full context, it’s surprisingly difficult to draw a line between ideas Apple “invented” and already-existing ideas that Apple merely put to use in a new context. For example, NYU’s Jeff Han demonstrated a set of sophisticated multi-touch applications at a 2006 TED Talk. Apple’s genius was largely to recognize that these same multi-touch gestures could be usefully translated to the form-factor of a cell phone. So was Apple’s application of Han’s techniques to the cell phone context a new invention or just a relatively obvious translation of Han’s work to a new form factor?

Another example: Apple pioneered the “slide to unlock” paradigm. But it wasn’t actually the first company to use this gesture. A 2005 phone called the Neonode N1m employed a slide-to-unlock feature that was virtually identical. The only difference: the iPhone features a graphical “slider” that gives the user feedback as he slides his finger across the screen. The N1m didn’t provide any such feedback. Does adding a graphical indicator to the N1m’s slide-to-unlock gesture make it a new invention or a straightforward enhancement to existing technology?

I have my personal opinions on these questions, but the broader point is that it’s hard to see how this kind of question could ever be settled in an objective fashion. From the perspective of patent law, the question is whether the improvements in question (putting multitouch on a phone, adding a graphical indicator to slide-to-unlock) would have been “obvious” to someone of ordinary skill in the art. But thisis just re-stating the same subjective question in slightly different terms. If you polled a bunch of engineers or patent lawyers, you’d likely get widely varying opinions.

In the end, Lee blames the patent office:

It’s not anti-Apple to say that patent law puts Google in an impossible situation. Any effective system of property rights needs clear boundaries so market participants know which resources they’re allowed to use and which ones require the permission of third parties. The patent system is a miserable failure in this respect.

Apple has taken full advantage of the opportunities our broken patent system has given them to hamstring its biggest competitor. But while Apple deserves a small share of the blame, most of the blame should be directed at the institutions—Congress, the courts, and the patent office—that broke the patent system in the first place.

Friday, February 24, 2012

U.S. Patent 1,661,058 directed to the theremin

US 7939742 cited the theremin patent, which has a first claim directed to a "tone generating system."

C.N.R. Rao: "This should not be really considered as plagiarism"

On the matter of C.N.R. Rao's copying [
C.N.R. Rao involved in copying matter
], Rao noted:

"This should not be really considered as plagiarism, but an instance of copying of a few sentences in the text,"

iPad trademark dispute

Reporting on a trademark dispute over "ipad," the Chicago Tribune reports:

Proview accuses Apple of creating a special purpose entity -- IP Application Development Ltd., or IPAD, -- to buy the iPad name from it, concealing Apple's role in the matter.


Apple on Friday reiterated its statement saying that it had bought Proview's worldwide rights to the iPad trademark in 10 different countries several years ago.

"We go where the technology leads us"

See the Reuters post by Gary M. Stern titled Solazyme shoots high with algae makeover noting:

It was a busy year for Solazyme in 2011, one which saw an IPO floated in May and shares halving in value since then, due to prospects for the renewables industry declining.

CEO Jonathan Wolfson is quoted: "After the first year as we were scaling up the technology, we couldn't envision how the economics would work to hit high volume and low margin markets. Unlike an academic lab, this is a commercial business (...) In order to succeed, we had to pivot. It was adapt or die. We had to make adjustments to our business plan and the technology,"

Separately, note US 8,119,583 to Solazyme issued on Tuesday, 21 Feb. 2012:


Soap and cosmetic products can be made from oil-bearing microbial biomass via the alkaline hydrolysis of glycerolipids and fatty acid esters to fatty acid salts. The saponified microbial oils/lipids can be combined with a variety of additives to produce compositions for use as soaps and other cosmetic products, which may also contain other constituents of the biomass, including unsaponified oils, glycerol and carotenoids, among others.

Thursday, February 23, 2012

"Ultimately the character we created is an invention"

Kobi Libii on the character "Jay Bennett", meant as Jayson Blair, in the play CQ/CX: "ultimately the character we created is an invention, based on him but not intended to be some biographical representation of him. It's a fictional creation, really."

Within the post is a quote "Intellectual property theft is not something you normally see done on stage."

Heroin vaccine patented?


Researchers at the country's [Mexico's] National Institute of Psychiatry say they have successfully tested the vaccine on mice and are preparing to test it on humans.

The vaccine, which has been patented in the United States, works by making the body resistant to the effects of heroin, so users would no longer get a rush of pleasure when they smoke or inject it.

The patent application identified by the commenter below [ 20120046232 ] is to inventor Peter Kalivas of the Medical University of South Carolina and is titled COMPOSITIONS AND METHODS FOR REDUCING RELAPSE OF ADDICTIVE BEHAVIOR.

The patent application identified in the post is likely published US 20110318381 titled PROCESS FOR THE PREPARATION AND USE OF A BIVALENT VACCINE AGAINST MORPHINE-HEROINE ADDICTION first inventor Benito Anton Palma, assignee Instituto Nacional De Psiquiatria Ramon De La Fuente Muniz.

Fracking shows up on "Person of Interest"

The episode of "Person of Interest" on 23 Feb 2012 titled "Risk" involved stock manipulations of a company called Tritak, which was in the gas pipeline construction business. In the storyline, the bad guys (an investment guy (Paul Ashton) and a SEC guy (Doug Rasmussen)) had sold the stock short, knowing that a bill on fracking in New York would pass thereby (according to the storyline) rendering Tritak stock useless.

The two apparent bad guys are thwarted but the actual mastermind of the plot is a previous "Person of Interest" bad guy, Elias, aka Charlie Burton. The "Risk" episode leaves one with the impression that the New York legislature is being manipulated on fracking by evil person Elias. Fracking also got bad PR in a CBS episode on CSI (Las Vegas).

CSI does Cable Spings, NV and natural gas drilling


Fracking issues at Dimock, PA

Tuesday, February 21, 2012

Supreme Court denies cert to J&J subsidiary, Janssen Biotech, in Humira case noted that the Supreme Court declined to review a decision of the Court of Appeals for the Federal Circuit that was adverse to J&J:

The appeals court ruled the patent claims asserted by the J&J unit were invalid and the patent thus could not be infringed. It overturned the award of $1.67 billion by a jury in 2009 in federal court in Texas for lost profits and damages.

The brief on behalf of Abbott. addresses the "written description" issues.

In addition to Janssen, New York University was also a losing petitioner.

C.N.R. Rao involved in copying matter

C.N.R. Rao, Scientific Adviser to the Prime Minister of India is involved in a matter involving copying of text FROM a paper published in 2010 INTO a 2011 paper co-authored by Rao. The authors of the COPIED text which appeared in 2010 in Applied Physics Letters were S Ghosh, B K Sarker, A Chunder, Lei Zhai and S I Khondaker.

from the Hindu Times:

The paper in question, “Infrared Photo-detectors Based on Reduced Graphene Oxide and Graphene Nanoribbons” published in Advanced Materials online on July 22, 2011 was authored by Basant Chitara (IISc), L.S. Panchakarla (Jawaharlal Nehru Centre for Advanced Scientific Research), Prof. Krupanidhi and Prof. Rao.

On July 28, 2011 the editorial office of Advanced Materials wrote to Prof. Rao and Prof. Krupanidhi seeking a clarification “about the possible overlaps between your publication and a paper that was published in Applied Physics Letters last year (April 2010).

Verbatim overlap

The editors cited the following paragraph, as an example of an almost verbatim overlap:

“In addition, controlled reduction of GO [graphene oxide] by chemical or thermal means allows the tunability of optoelectronic properties. Thin films prepared from solution-processed GO offer ease of material processing, low cost of fabrication, mechanical flexibility, and compatibility with various substrates, making them attractive candidates for large-area devices. GO-based thin films have already been used as transparent and flexible materials for electronic devices.”

Professor Krupanidhi said the editorial office of Advanced Materials, which pointed out the similarity in text to the authors, had not used the word ‘plagiarism' in their communication, and instead referred to the sentences as “direct overlap” and “possible overlaps.”

See also PM's science advisor apologises for plagiarism in science journal

CNR Rao apologises for plagiarism in science journal

Major CAFC trademark case: Coach v. Triumph

In the trademark case of Coach v. Triumph, the CAFC concluded:

For the foregoing reasons, and because we find that CSI’s remaining arguments are without merit, we affirm the Board’s decision dismissing CSI’s opposition on likeli- hood of confusion and dilution grounds. With respect to acquired distinctiveness, however, we vacate and remand for further proceedings consistent with this opinion.

The CAFC noted of an evidentiary issue about "printed publications":

The Trademark Rules of Practice, which govern inter partes trademark proceedings before the Board, provide, in part, that “printed publications” which are “available to the general public in libraries or of general circulation among members of the public or that segment of the public which is relevant under an issue in a proceeding . . . may be introduced in evidence by filing a notice of reli- ance on the material being offered.” 37 C.F.R. § 2.122(e). Historically, corporate annual reports were not considered printed publications available to the general public and thus were not admissible via a notice of reliance without any authentication. See Jeanne-Marc, Inc. v. Cluett, Peabody & Co., Inc., 221 U.S.P.Q. 58, 59, n.4 (T.T.A.B. 1984) (“It is well settled that annual reports do not fall within the category of printed publications as contemplated” under the Trademark Rules.); see also Midwest Plastic Fabricators Inc. v. Underwriters Labs. Inc., 12 U.S.P.Q.2d 1267, 1270 n.5 (T.T.A.B. 1989) (“[P]rinted material in the nature of annual reports is not considered printed publications available to the general public such that it may be relied on pursuant to Rule 2.122(e). Rather, such material must be introduced in connection with the deposition testimony of a competent witness.”); VTech Holdings Ltd. v. Varian Semiconductor Equip. Assocs., Inc., Opp. No. 91156936, 2007 TTAB LEXIS 245, at *11 (T.T.A.B. Sept. 21, 2007) (“Opposer’s corporate annual reports, newsletters and other house publications are not self-authenticating printed publications or official records and may not be made of record by notice of reli- ance. We sustain applicant’s objection to all such docu- ments and shall give them no consideration.”) (internal citations omitted).


In a 2010 decision, however, the Board expanded the types of documents that can be introduced by way of a notice of reliance. Safer Inc. v. OMS Investments Inc., 94 U.S.P.Q.2d 1031, 1039 (T.T.A.B. 2010). In Safer, the Board held that:
if a document obtained from the Internet identifies its date of publication or date that it was accessed and printed, and its source (e.g., the URL), it may be admitted into evidence pursuant to a notice of reliance in the same manner as a printed publica- tion in general circulation in accordance with Trademark Rule 2.122(e). . . The Board will hence- forth deem a document obtained from the Internet displaying a date and its source as presumptively true and genuine. Of course, the document must be publicly available. The date and source infor- mation on the face of Internet documents allow the nonoffering party the opportunity to verify the documents. Id. (emphasis in original). In a footnote, the Board recog- nized that documents could be treated differently depend- ing on their format. For example, “a corporate annual report available only in paper form may not be admissible through a notice of reliance because it is not a document in general circulation,” while a report “in digital form publically available over the Internet would be admissible through a notice of reliance because its publication on the Internet places it in general circulation.” Id. at 1039 n.18.


On appeal, CSI argues that the Board should have considered the annual reports in light of the Safer deci- sion. According to CSI, because its annual reports from 2001 to 2008 were available online, the Board should have accepted the printed versions of the reports. In the alter- native, CSI argues that, if the court agrees with the Board that the paper versions of the annual reports are not admissible via a notice of reliance, but that “identical copies printed off the Internet are admissible, Coach submitted the testimony of its Vice President and General Counsel that Coach’s sales and advertising information is reported publicly because it is a public company.” Appellant’s Br. 29-30.


Despite CSI’s contentions to the contrary, we find that the Board’s decision to exclude the annual reports is consistent with both the Trademark Rules and the Board’s related case law.

As to the trademark issue:

The Board found that two of the DuPont factors weighed in favor of CSI, in whole or in part: (1) CSI’s COACH mark is famous for likelihood of confusion; and (2) the classes of consumers may overlap. In contrast, the Board found that the following factors weighed in favor of Triumph: (1) the goods of the parties are not similar or related; (2) the goods move in different trade channels; (3) the marks used by the parties have different meanings and engender different commercial impressions; and (4) Triumph markets to sophisticated purchasers.5 After balancing these factors, the Board determined that no likelihood of confusion would arise between the parties’ marks.

On appeal, CSI argues that the Board should have given more weight to its determination that its COACH mark was famous. As the Board correctly found, however, fame, while important, is insufficient standing alone to establish likelihood of confusion. On the record before us, and after weighing the relevant DuPont factors de novo, we agree with the Board that customer confusion is not likely between the parties’ respective COACH marks. Although CSI’s COACH mark is famous for likelihood of confusion purposes, the unrelated nature of the parties’ goods and their different channels of trade weigh heavily against CSI.


The TDRA, which was signed into law on October 6, 2006, amended Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c). It provides that:

the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner’s mark has become famous, commences use of a mark or trade name in commerce that is likely to cause di- lution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competi- tion, or of actual economic injury.
15 U.S.C. § 1125(c)(1). Therefore, to prevail on a dilution claim under the TDRA, a plaintiff must show that: (1) it owns a famous mark that is distinctive; (2) the defendant is using a mark in commerce that allegedly dilutes the plaintiff’s famous mark; (3) the defendant’s use of its mark began after the plaintiff’s mark became famous; and (4) the defendant’s use of its mark is likely to cause dilu- tion by blurring or by tarnishment.

US Supreme Court takes Fisher v. University of Texas at Austin

The case is an affirmative action matter brought by a white student. The student in question, Abigail Noel Fisher, did not get into school at the University of Texas at Austin, but did enter LSU. Of Fisher's background, the Houston Chronicle noted:

At the time [of her application to UTexas], Fisher was a senior at Stephen F. Austin High School with a 3.59 GPA, a high SAT score of 1180, and an extracurricular résumé that include playing cello in her high school orchestra. She also was in the top 12 percent of her graduating class, making her ineligible for automatic admissions under the top 10 percent law.

Fisher's lawsuit doesn't challenge the top 10 percent law, instituted after a 1996 appeals court ruling outlawed the use of race in admissions. Rather, the suit claims that Fisher was rejected under a UT-Austin policy that includes race as a factor in choosing students who fall short of the top 10 percent.

The Houston Chronicle framed the issue:

Fisher's lawsuit argues that the UT policy is unconstitutional and violates a basic tenet of the 2003 ruling, which allows colleges and universities to use race-based admissions criteria only after race-neutral alternatives have failed to achieve a diverse student body.

"At UT, they have a very successful race-neutral means, which has proven to be a better avenue for increasing diversity," said [Edward] Blum, referring to the top 10 percent law. "UT chose to add racial preferences on top of the top 10 percent."

In the vote by the Supreme Court agreeing to hear Fisher v. University of Texas at Austin, Justice Elena Kagan didn’t take part and probably won’t participate when the court hears the case, so there will likely be only 8 justices voting. A key change from the year 2003, when the Supreme Court last addressed the issue, is the replacement of Justice O'Connor by Justice Alito. One may get a 5-3 vote, but if 4-4, then the decision below would stand.

Keywords: Grutter v. Bollinger

Monday, February 20, 2012

Phosphorous requirements for algae: as to biofuels?

In a post Why Algal Biofuels May Never Hold the Key to the Future, Chris Rhodes raises the issue of the amount of phosphorous needed to sustain algae.

A key part of Rhodes' analysis:

(...)however, for algae to grow, vital nutrients are also required, as a simple elemental analysis of dried algae will confirm. Phosphorus, though present in under 1% of that total mass, is one such vital ingredient, without which algal growth is negligible. I have used two different methods of calculation to estimate how much phosphate would be needed to grow enough algae, first to fuel the UK and then to fuel the world:

(1) I have taken as illustrative the analysis of dried Chlorella [2], which contains 895 mg of elemental phosphorus per 100 g of algae.

UK Case: To make 40 million tonnes of diesel would require 80 million tonnes of algae (assuming that 50% of it is oil and this can be converted 100% to diesel).
The amount of "phosphate" in the algae is 0.895 x (95/31) = 2.74 %. (MW PO4(3-) is 95, that of P = 31).

Hence that much algae would contain: 80 million x 0.0274 = 2.19 million tonnes of phosphate. Taking the chemical composition of the mineral as fluorapatite, Ca5(PO4)3F, MW 504, we can say that this amount of "phosphate" is contained in 3.87 million tonnes of rock phosphate.

From the internet, for the cyanobacterium Microcystis aeruginosa :

The P quota of these cells was high (mean concentration 132 mmol per kg dry weight)

One converts 132 mmol P X (31 mg/mmol) = 4092 mg = 4.092 g P. This gives 4092 mg P per 1000 g of dry cyanobacteria, or 409.2 mg per 100 gram of dry cyanobacteria. The number 409 is less than half of Rhodes' 895, but who wants to quibble?

The "amount of phosphorous" matter is not the biggest problem with the analysis of Chris Rhodes. Rhodes assumes that the phosphorous is lost. In many algal/cyanobacterial biofuel production schemes (e.g., US 6,306,639; US 6,699,696; US published application 20090155871 ), carbon dioxide and water lead to secretion of biofuel in the absence of consumption of any biomass. The phosphorous argument presented by Chris Rhodes is inappropriate against those schemes.

As Ramachandra said, “We do not harvest milk from cows by grinding them up and extracting the milk. Instead, we let them secrete the milk at their own pace, and selectively breed cattle and alter their environment to maximize the rate of milk secretion” [ Ramachandra TV, Mahapatra DM, Karthick B (2009) Milking diatoms for sustainable energy: Biochemical engineering versus gasoline-secreting diatom solar panels. Ind Eng Chem Res 48:8769–8788. ]

Sunday, February 19, 2012

"It's very hard to find an error by reading a paper"

On the topic of neutrinos traveling faster than light.

Recall claims for supraluminal propagation were made about 10 years ago (in New Jersey) and were discredited.

The Good Wife's "Live from Damascus” on lawyer disciplinary proceedings

Although Wendy Scott-Carr failed to indict Will Gardner, the evidence goes to state disciplinary committee, with an interesting result.

Will is given an option of suspension from the practice of law for six months. Will takes the option.

Quote: Technology doesn't take sides.

Software: CoursePoint.

Diane to Will: Trying to hit a home run with your last at bat?

There is mention of a "tax case" that Will was handling on behalf of Kalinda. Alisha now gets the case.

The turning point on the case: Every user who calls the help desk must identify their license agreement. Thus, the software company knew "who" was using its software.

"60 Minutes" on February 19, 2012

A teaser for the first "60 Minutes" story on unemployment: A resume will become an obsolete tool in job search.
Scott Pelley noted the persistence of the unemployment problem. There is something stubborn about the current unemployment. Four million people have been out of the workforce for more than one year. The focus of the 60 Minute story was a visit to Stamford, CT with Scott Pelley. Feb. 2008, O'Neill was a consultant for an IT company. Unemployment benefits end after 99 weeks. Pelley introduced Joe Carbone. We ought to be angry. The WorkPlace in southwestern Connecticut. Carbone noted two years of unemployment erode your self-esteem. "My job is to get people into a career." Carbone has 12,000 people who exhausted their 99 weeks. Program: Platform to Employment. Vernon Downs was a project manager; working to get a job for 2 1/2 years. Diane Graham has been looking.
The people are in class 4 days a week. The resume very soon will become an obsolete tool in the job search process. The new employer will look to the internet. Navigate the new bias against the unemployed. "If you are unemployed, you need not apply." The long term unemployed face a stigma. Of this: it's unfair and it's wrong. The Carbone program brings back confidence. Platform to Employment has internships to employers who potentially have jobs. The office intern may be 50. The internship lasts 8 week. 100 people are enrolled; 53 got jobs. Lex Products is one of the companies. This has become about dignity. Frank O'Neill. Vernon Downs. 38,000 people per week run out of their 99 weeks of benefits. Joe Carbone says "help is on the way."

The second story on "60 Minutes" was by Lesley Stahl. Harvard's Irving Kirsch on anti-depressants. Kirsch: Largely the placebo effect. Money: 11.3 billion per year. An expectation of healing. Kirsch has been studying placebos for 26 years. The doctors who prescribe the pills become part of the placebo effect. Kirsch found it did not matter what kind of pill people took for anti-depression. Kirsch noted drug companies tend to publish only the successful studies, not the unsuccessful ones. The issue is "why" the patients get better. Dr. Michael Face at the University of Pennsylvania. Face argues for 14% better over the placebo. Dr. Walter Brown at Brown University largely corroborates Kirsch's findings. The drugs work mainly for the severely depressed.
The seratonin theory is largely a gross oversimplification. The FDA only requires two successful trials, no matter how many unsuccessful trials occur. The negative trials are discarded. Is the effect is clinically relevant? In Great Britain, there was a change in prescription policy. For moderate depression, the drugs are not worth having. Great Britain analyzed the unsuccessful studies, which showed no benefit. The outcome is not suitable from the drug companys' point of view.
An army of talk therapists. Eli Lilly wrote in an email that antidepressants work.

Magnus Carlsen and chess. "The Mozart of Chess." The London Chess Classic. Carlsen v. Nakamura. Carlsen enjoys when his opponent is suffering. An allusion to Bobby Fischer in 1972. Magnus grew up outside Oslo. Magnus' father Henrik noted Magnus had a good memory. Magnus vs. Kasparov, when Magnus was 13 years old. Bullet chess.

***From the New Haven Register:

Connecticut unemployment assistance program to be featured on 60 minutes Sunday :

By the end of 2012, a record 4.6 million people will have exhausted their unemployment benefits and essentially been discarded from the work force.

“These numbers eclipse all other special populations the American work force system has ever had to deal with. You have got to look at this and say, ‘Wow,’” Joseph Carbone, president and chief executive officer of WorkPlace Inc., said in a recent interview.

***From Huffington Post
Antidepressants: The Emperor's New Drugs?

CBS Sunday Morning on February 19, 2012.

Charles Osgood introduced the stories for February 19, 2012. Tomorrow is President's Day. And remembering the golden age of air travel. Cover story by Barry Peterson. Boeing 787. Second, Going Hollywood by Rita Braver. Third, Peter Frampton by F. Lee Mason. Fourth, Hail to the Chiefs, by Mo Rocca. Jacky Kennedy's White House Tour. Headlines: Iran appears to be following through; won't sell crude to France or Great Britain. Gas is $3.53 per gallon. Whitney Houston to be buried today. Elaine Quijano.
Maryland House of Delegates approved same sex marriage. Elizabeth Smart has married in Hawaii yesterday. Weather: stormy in southeast.

The Boeing Stratoliner was iconic. Now, the Dreamliner. Recapture the magic that flying really is. ANA, All Nippon Airways. Bigger windows make cabin more airy. Fuselage: carbon-fiber re-enforced plastic. 30 billion dollar development cost? Concept of hub-buster. Denver is wooing ANA to fly direct flights to Denver. $100 million economic impact. Airbus A350 under development, with over 600 orders. In next 20 years, 7300 such jets needed. 787 changes interior colors, eg sunrise. That sense of being a pampered passenger.

Almanac. February 19, 1942. German troops appeared to invade Winnipeg. Demonstration to show what life would be like if Germans won. Mock attack.

Funeral services for Whitney Houston in Newark, New Jersey on February 18, 2012. Dionne Warwick: don't grieve for me because now I'm free.

Hail to three presidents, done by Mo Rocca, starting with William Henry Harrison. Wife never made it into the White Office. Campaign of 1840. Tippecanoe and Tyler Too. Log cabin and hard cider. Harrison was born in a plantation in Virginia. 80% of eligible voters turned out. Average life expectancy at time 39 years.

Steve Hartman on story of a grandson Noah. Steven's Point, Wisconsin. There are no foster homes for foster parents. Noah made a webpage to get $10,000 his grandmother needed to avoid foreclosure. Restored faith in family, community. Noah LeMade, what America really is.

Jackie Kennedy's tour by Tracy Smith. August 24, 1814: burning. George Kaplan. Benjamin LaTrobe. In 1829, North Portico.
Charles Dickens: English clubhouse. The public shabby-house. Jan. 1, 1898: New Year's Day was open house. South Lawn: green houses. In 1924, Mrs. Coolidge re-did the interior. The building is standing up by force of habit. Truman added balcony on south portico. Jackie was 32 at time of tour. Jacky spent 1.5 million on furniture. Correspondent Charles Collingwood. Enigmatic first lady. People discovered substantive side. Perry Wolf produced tour show for CBS. More than 50 million people tuned in. Jacky got Emmy for her tour; she asked Lady Bird Johnson to accept it. Jacky created position of White House curator.
The Gilbert Stuart portrait of Washington. The Red Room.

Feb. 19, 2012. the 500th episode of The Simpsons. Over 22 years. Ideas aren't good or bad, they are just free. Julian Assange

Hail to the Chiefs. Sherwood Forest, the plantation of John Tyler. Tyler's grandson, Harrison, is alive and interviewed by Mo Rocca. Harrison's father born in 1853. He was 73 when Harrison born. On his death, John Tyler was member of Confederate Congress.

Peter Frampton is subject of Sunday Profile, done by Anthony Mason. Frampton Comes Alive. At the time, biggest selling live album, ever. Earlier, his guitar was lost and Frampton lost his mojo. Frampton lives in Cincinnati. In 1976, formerly of Humble Pie. He was 25 when album took off. Ringo came to show in LA. Was in movie Sergeant Peppers Lonely Hearts Club Band in 70s. Then, "The Lean Years." In 1987, David Bowie asked him to tour. A musician's career lasts a lifetime. Gary's Classic Guitars in Cincinnati. Gibson Les Paul lost in 1980. Caracas, Venezuela. Curacao. Last night, in Beacon Theater, guitar and artist reunited in concert.

Movie Props, by Rita Braver. The Artist: Look and feel of late 1920's. "History for Hire," in North Hollywood. 33,000 square foot facility, with over 100,000 props. Lawrence Bennett of The Artist. We're trying to take the viewer on a trip. MovieMistakes. BraveHeart on kilts. Taylor Hackford, Ray Charles. Wrap around sunglasses: trademark of Ray Charles. People get most of their history lessons from movies and tv.

Hail to the Chiefs. Warren G. Harding. Dog: Laddie Boy. Marion, Ohio. Al Jolson played Harding's porch. Harding is only present elected on his birthday. Size 12 feet.

Next week on Sunday Morning: off to the Oscars.

Moment of Nature. HandiHaler. Washington State's Skagit Valley, home to bald eagle. See Skagit River Bald Eagle Awareness Team (SRBEAT).

"Right on the cusp of 'told you so' "?

In a post at, one has the text:

Policy stability is important for investors in advanced biofuels, which Ellerbusch [ BP Biofuels North America Presiden ] says boost the prospects of a US future heavy on domestic energy sources and contributing to the "all of the above energy strategy" both sides of the US political debate have claimed to support.

Also in the post,

Ellerbusch mentions the company's large facility under construction in Florida and says that the next facility built will be even larger. She acknowledges competitors in the space like Abengoa and DuPont, pointing out that more broadly "the momentum is there."

One notes that Butamax, a joint venture of DuPont with BP, is engaged in a patent war against Gevo related to isobutanol.

Saturday, February 18, 2012


Of ION wins $25 million patent infringement jury verdict against Sercel, note CAFC disposition on Feb. 17, 2012.

Toronto Star erred in reporting Ryerson/Iran plagiarism story

Friday, February 17, 2012

Pearl River wins on appeal at CAFC over ClearValue

Patent infringement defendant Pearl River appealed from a case tried in ED Texas, and ended up winning the appeal. The technology: The ’690 patent is directed to a process for clarifying low alkalinity water using a blend of a high molecular weight quaternized polymer (e.g., DADMAC) and an aluminum polymer.

As to anticipation, the CAFC noted:

This case is not Atofina. ClearValue has not argued that the 50 ppm limitation in claim 1 is “critical,” or that the claimed method works differently at different points within the prior art range of 150 ppm or less. Nor does ClearValue argue that the Hassick reference fails to teach one of ordinary skill in the art how to use the claimed invention, i.e., that Hassick is not enabled to the extent required to practice claim 1 of the ’690 patent. Hassick discloses the exact process claimed and explains that the chemical treatment can be used for clarification of water with 150 ppm or less. Hassick col.2 l.53-col.3 l.6. More- over, Hassick gives examples, including one with water with “a total alkalinity of 60-70 ppm.” Id. col.4 l.40-col.5 l.29. Certainly if this example had been at 50 ppm there would be no dispute but that Hassick anticipates. To be clear, it is not this example at 60-70 ppm that anticipates because 60-70 ppm is not 50 ppm or less as the claim requires. But rather the disclosure that this chemical process works for systems with 150 ppm or less is what anticipates. The disclosure of 150 ppm or less is a genus disclosure as in Atofina. But unlike Atofina where there was a broad genus and evidence that different portions of the broad range would work differently, here, there is no allegation of criticality or any evidence demonstrating any difference across the range. In fact, the example in Has- sick at 60-70 ppm supports the fact that the disclosure of 150 ppm or less does teach one of skill in the art how to
make and use the process at 50 ppm. Unlike Atofina, here there is no “considerable difference between the claimed range and the range in the prior art.” See 441 F.3d at 999. Hassick teaches one of ordinary skill to use a high molecular weight DADMAC in combination with ACH to synergistically clarify water with alkalinity of 150 ppm or less. Hassick col.2 l.53-col.3 l.6. Hassick thus teaches and enables each and every element of claim 1. For these reasons, we find that the jury lacked substantial evidence to find Hassick did not anticipate that claim 1. We thus reverse the district court’s denial of Pearl River’s JMOL of invalidity.
Thus, Pearl River wins.

As to trade secret misappropriation:

ClearValue cross-appeals the district court’s grant of Pearl River’s motion for JMOL that it did not misappropriate Trade Secret #1, which was presented to the jury as the “use [of] a combination of a high molecular weight organic polymers, specifically DADMACs or Epi-DMAs, and aluminum chlorohydrate, ACH, to clarify water.” J.A. 1549. The district court granted JMOL because it found no evidence to support the jury’s finding that Trade Secret #1 was, in fact, a trade secret. J.A. 11. In particular, the district court found that the Hassick reference publicly disclosed the elements of Trade Secret #1 before the alleged misappropriation by Pearl River.


We agree with the district court that Hassick publicly disclosed Trade Secret #1 before ClearValue communicated the alleged secret to Pearl River, and thus that the jury’s verdict of trade secret misappropriation was not supported by substantial evidence. As presented to the jury, the alleged trade secret contained no effectiveness requirement. (...) We thus affirm the district court’s grant of Pearl River’s motion for JMOL that it did not misappropriate Trade Secret #1 Thus, Pearl River wins.

Pearl River was represented by JOHN T. GALLAGHER, of Dickstein Shapiro, LLP, of New York, New York.

See 22 Feb 12 post CAFC Makes Murky Anticipation Ruling on Overlapped Process Ranges in ClearValue


In light of the comment below, IPBiz reproduces the claim, and footnote, in question:

A process for clarification of water of raw alkalinity less than or equal to 50 ppm by chemical treatment, said process comprising:

adding to the water and, prior to or after adding to the water, blending at least one aluminum polymer with a high molecular weight quaternized ammonium polymer in an amount sufficient to form a flocculated suspension in the water and to remove turbidity from the water, said high mo- lecular weight quaternized ammonium polymer comprising at least an effective amount of
high molecular weight di-allyl di-methyl ammonium chloride (DADMAC) having a molecular weight of at least approximately 1,000,000 to approximately 3,000,000 and
said aluminum polymer including at least an effective amount of poly-aluminum hy- droxychloride [ACH] of a basicity equal to or greater than 50%.

Footnote on page 6:

Hassick teaches that a combination of high mo- lecular weight DADMAC polymer with ACH “synergisti- cally reduce[s] turbidity in aqueous systems, particularly low-turbidity . . . low-alkalinity systems (i.e., 150 ppm or less).” Hassick col.3 ll.2-6; see also Hassick col.2 ll.53-65. Example 15 of Hassick teaches using a blend of ACH and DADMAC with a molecular weight between 1-2 million to clarify water with alkalinity of between 60-70 ppm. Id. col.4 l.5-col.5 l.29.

Thursday, February 16, 2012

Pyle rips Vilsack on cellulosic ethanol

A post by THOMAS PYLE noted:

Perhaps Secretary Vilsack missed the memo on recent reports that the Renewable Fuel Standard (RFS2) trading program has been fraught with fraud and abuse, with biofuels producers having pocketed over $70 million—and counting—from trading fraudulent credits associated with each gallon of fuel. Perhaps he also missed the memo that, under the RFS mandate that a certain amount of biofuel be used every year, refiners are charged $1.13 per gallon for failing to use non-corn biofuel that doesn't exist, because the industry responsible for producing it hasn't been able to get off the ground. For this reason, the Environmental Protection Agency recently cut its target of producing 500 million gallons of cellulosic ethanol by 2012 to a mere 8.62 million gallons this year. This is a far cry from creating a million jobs.

Meanwhile, Platts noted on 16 Feb 2012:

Biofuels producers urged US regulators on Thursday [Feb. 16] to ignore refiners' request for leeway in carrying out the renewable fuel mandate on the grounds that the industry failed to produce any cellulosic biofuels last year.

The Environmental Protection Agency required petroleum refiners and importers to blend 6.6 million gallons of cellulosic biofuels in 2011 or buy waiver credits by the end of this month to make up for the difference. The cellulosic target represented the smallest share by far of the 13.95 billion gallon Renewable Fuel Standard for 2011.

Trade groups for refiners and oil producers asked EPA in late January for a waiver from that requirement, given the absence of cellulosic biofuel production last year. Because of the looming February 28 deadline to buy credits, the petitioners asked the agency to respond faster than the standard 90-day deadline.

On Thursday, the Advanced Ethanol Council asked EPA to resist those calls to weaken the mandate.

Additionally, one notes that the group BIO weighed in on the side of the biofuels producers:

Brent Erickson, executive vice president for BIO’s Industrial & Environmental Section, said, “The Renewable Fuel Standard is the key policy supporting rapid commercial development of advanced biofuels. Companies have made measurable progress in moving from concept to demonstration scale in their drive to open commercial facilities and make a significant contribution to energy security. Progress may not have been as fast as anyone would like, but the changes to the RFS that petroleum interests are requesting are solely designed to impede further progress. Commercial-scale advanced biofuels projects are just starting to come on line and it makes little sense to disrupt this progress now. We ask that EPA continue its consistent implementation.”

Intellectual Ventures sues AT&T and Sprint: where is the the cream of the country’s patent bar going?

In a post titled Goliath vs. Goliath: Patent Beast Intellectual Ventures Sues AT&T about a lawsuit in D. Delaware brought by Intellectual Ventures against AT&T, Sprint, and T-Mobile. , one has the interesting text about Intellectual Ventures:

The company’s most high-profile work so far has involved the use of chemistry techniques to cook a hamburger..

The post also asserts: The America Invents Act, passed last fall, has made it more difficult for patent plaintiffs to sue.

Neither statement is correct, but the lawsuit of Intellectual Ventures is of interest.
[Note New Patent Regs May Inspire More Litigation, Not Less]

The post also states: The Wall Street Journal reported last month on how the cream of the country’s patent bar are leaving their firms to join entities like Round Rock, a shell company backed by billionaire investment funds.


Nathan Myhrvold

**In passing, about the WSJ and cellulosic ethanol:

Law professor debate on PatentlyO

Within a guest post by Professor Colleen V. Chien on PatentlyO:

Along this vein, Petherbridge and Kesan et al provide thoughtful suggestions and questions about how the analysis could be verified, refined, and extended. Their input is timely as efforts to do so are just getting underway, as part of adapting this exploratory project to commercial settings. Looking at more, and more recent patents, replicating the analysis, and adding additional variables, where it makes sense, will necessarily be part of this effort.

The abstract for the Petherbridge paper [ Texas Law Review, Vol. 90, No. 75, 2012 ] includes the text: Perhaps the most surprising message from the analysis is just how difficult it might be to predict patent litigation to a level sufficient to provide any real practical utility to innovators.

"You take what you learn from them and then you riff on that."

Anne Thornton's show "Dessert First" will not be renewed by the Food Network. There was some evidence that Thornton was copying her recipes from elsewhere.

Thornton's comments were of interest.

"I get inspiration from all my heroes. You take what you learn from them and then you riff on that. As for lemon squares, there's only so many ways you can make them, so of course there will be similarities."

"It's chemistry; it's not just cooking. So there are always going to be things that are the same."

Now, apply that to patent law. It's chemistry.

Wednesday, February 15, 2012

Supply shortages for generics

From a story titled Methotrexate Shortage: Doctors Urge More Production Of Scarce Cancer Drug:

Most of the medicines that have become scarce are sterile injected drugs that are the workhorses of hospitals and are normally inexpensive because they've long been available as generics.

The FDA says the main reason for the shortages is manufacturing deficiencies leading to production shutdowns. Shortages also are resulting from companies halting production of drugs with low profit margins, companies consolidating in the generic drug industry and supplies of some ingredients shrinking.

Keyword: Sen. Amy Klobuchar, D-Minn

The downside of having a third party use your camera

From the New York Daily News:

The 55-year-old McGee’s camera had more than 200 pictures, including many from the Super Bowl weekend with his son Chris and brother John — a New York firefighter.

McFaul, of Northport, L.I., mistakenly took the camera with her after snapping a victory shot of McGee and his son in the craziness following the Giants’ Feb. 5 win over the Patriots.

McGee called Lucas Oil Stadium for 10 straight days, hoping for a hit at their lost and found — only to come up empty.

The healing began when a Chicago television station, contacted by McFaul, ran the Super Bowl picture during the news. McFaul reached out after finding pictures on the Samsung camera of Chris McGee in a Blackhawks jersey.


Truth in advertising [?]: Triple Bypass burger

AP noted that Jon Basso of the Heart Attack Grille in Las Vegas was aware that a customer in his 40s eating a Triple Bypass burger was having trouble. He was sweating, shaking and could barely talk.

FLIR Systems vs. Gambaro

Note the CAFC order in FLIR Systems v. Gambaro, especially as to following court rules.

See also orders in district court.

Tuesday, February 14, 2012

Trouble ahead for Gevo's US 8,101,808?

IPBiz has frequently mentioned "The Simpsons Already Did It" episode of South Park. Now, we may have a "Simpsons already did it" moment in the Gevo/Butamax isobutanol saga.

Specifically, Biofuels Digest refers to one Adriano Marino as saying a research paper titled An Alternative Process for Butanol Production: Continuous Flash Fermentation was published in August 2008, prior to the filing date of Gevo's US 8,101,808 , filed December 23, 2008. One does note that US '808 claims priority to four different provisional patent applications, including 61/017,141 filed Dec. 27, 2007.

A legal question would be whether or not the provisionals provide written description and enablement support for the claims of US '808, including the base claim:

A method to recover a C3-C6 alcohol from a fermentation broth comprising microorganisms and the C3-C6 alcohol, comprising: a. increasing the activity of the C3-C6 alcohol in a portion of the fermentation broth to at least that of saturation of the C3-C6 alcohol in the portion; b. forming a C3-C6 alcohol-rich liquid phase and a water-rich liquid phase from the portion of the fermentation broth; and c. separating the C3-C6 alcohol-rich phase from the water-rich phase.

One would also ask whether the disclosure in the Brazilian paper anticipates, or renders obvious, the claims of Gevo's US '808.

The examples of US '808 include:

Example 1

Enrichment of C3-C6 Alcohols from Aqueous Solutions Using Solvents

This example illustrates the enrichment of C3-C6 alcohols, such as propanol (PrOH), butanol (BuOH), isobutanol (i-BuOH) and pentanol (PenOH), from aqueous solutions using various solvents.

Example 2

Extraction of Isobutanol from Aqueous Solutions Using Solvents

Example 3

Enrichment of C3-C6 Alcohols from Aqueous Solutions Using Gasoline

Example 4

Enrichment of C3-C6 Alcohols from Aqueous Solutions Using Gasoline and Glucose Addition

Example 5

Enrichment of C3-C6 Alcohols from Aqueous Solutions Using Gasoline and Calcium Chloride Addition

Example 6

Enrichment of C3-C6 Alcohols from Saturated Aqueous Solutions Using Gasoline and the Addition of a Hydrophilic Compound

Example 7

Phase Separation of Propanol from Aqueous Solutions by Addition of a Hydrophilic Compound

Example 8

Phase Separation of Tertiary-Butanol (or t-Butanol) from Aqueous Solutions by Addition of Glucose

Example 9

Phase Separation and Concentration of Sub-Saturated Butanol and Isobutanol Solutions by Addition of Glucose

Example 10

Phase Separation and Concentration of Sub-Saturated Isobutanol Solutions by Addition of Glucose

Example 11

Phase Separation of Sub-Saturated Aqueous Butanol and Isobutanol Solutions by Addition of Calcium Chloride

Example 12

Enrichment of Butanol by Adsorption

Example 13

Enrichment of Isobutanol from Aqueous Solutions with Acidic Amine-Based Extractants

Example 14

Enrichment of Isobutanol from Dilute Aqueous Solutions with Low Amounts Acidic Amine-Based Extractants

Example 15

Enrichment by Contact with Molecular Sieves

Example 16

Enrichment by Generation of Isobutanol and Water Azeotrope Composition

Example 17

Enrichment by Generation of 1-butanol and Water Azeotrope Composition

Example 18

Enrichment by Generation of Iso-Butanol and Water Azeotrope Composition

Example 19

Enrichment by Generation of Iso-Butanol and Water Azeotrope Composition

Example 20

Production and Recovery of Isobutanol Using an Integrated Fermentation and Recovery System
["The fermentor vessel was attached by tubing to a smaller 400 mL fermentor vessel that served as a flash tank...
Heat and vacuum were applied to the flash tank. The vacuum level applied to the flash tank was initially set at 45 mBar and the flash tank was set at about]

The Brazilian paper discloses: The process consists of three interconnected units, as follows: the fermentor, the cell retention system (tangential microfiltration) and the vacuum flash vessel (responsible for the continuous recovery of butanol from the broth).

As a separate point, the Brazilian paper relied primarily on modeling [ The evaluation was carried out through mathematical modeling and computer simulation ]. Would the modeling tools, and predictions, have been available PRIOR TO the Brazilian publication?

***Footnote as the Simpsons, South Park

"So I shouldn't care if I come up with an idea, and the Simpsons already did it"

Concerning RFS in the biofuels area

Within a post at Biofuels Digest titled What do we do with Rufus? RFS [Renewable Fuel Standard ], that is, the elephant in the room , one has the text:

At the Advanced Biofuels Leadership Conference this year in Washington, we are expecting to see a new technology option emerge – a new capital-light, built-in technological option for the production of drop-in cellulosic biofuels at massive scale, and with rapid scale-up options for industry.

No, it is not just an expectation that companies like Sapphire Energy and Joule Unlimited will be scaling their technologies using their advanced microorganisms – or that pyrolysis technologies like KiOR’s will find affordable project financing to massively accelerate their build-out. Just to mention a number of companies who already have known technologies that may scale drop-in fuels before 2022.

Of text from the National Corn Growers Association on cellulosic biofuels: “Much as parents may tell stories about unicorns and fairies, some players in the ethanol and environmental industries pushed a product which they were not prepared to deliver,” one notes that biofuels from cellulose and biofuels from CO2 are two different propositions.

“In my field, this would be an international scandal.”

Ryerson University chemistry professor Russell Viirre on the plagiarized work in Journal of Electromagnetic Waves and Applications:
“In my field, this would be an international scandal.”

IPBiz questions whether plagiarism in chemistry rises to "international scandal" proportions.

“In comparative studies, you can copy others’ published works.” [?]
wherein direct copying in the chemistry area barely raised a ripple.

See discussion of the CHIRANJEEVI matter in
The "wearing down" fallacy as to examiners and editors
: Christian, who is professor emeritus of chemistry at the University of Washington, Seattle, says Chiranjeevi's tactic was to flood journals with manuscript submissions in the hopes of wearing down editors who would eventually publish some of his work.

Chemistry plagiarism at University of Kentucky?

Ex-UPitt prof snagged for plagiarism

Plagiarism by Michigan State professor

Another mechanical engineering plagiarism scandal
[Keywords: Viktor Verijenko; Chippy Shaik]


Mehdi Dehghan and Pouya Derakhshan-Barjoei, professors at Amirkabir University of Technology and Islamic Azad University

Xavier Fernando: “It’s a complete copy. Except for the title and the authors’ names, the paper is identical.”

**And recall from IPBiz post
Searching the web for copied articles

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

**In passing

As to Shaik, note the post Chippy Shaik stripped of doctorate including text:

"The claim is absurd, as Prof Piskunov was an external examiner for the thesis. As he wrote the text and examined the thesis he is the person best placed to say if there was any plagiarism."

Shaik argued that it was Pishkunov himself, the man whose work Shaik is accused of plagiarising, who served as examiner for the thesis and recommended that the a doctorate be awarded.

"He made no claim that the work was copied or that any correction be made to the thesis," said Yunis.


Chippy Shaik is the brother of jailed businessman Schabir Shaik -- the former financial advisor to African National Congress president Jacob Zuma -- who is challenging his conviction for fraud

Frankie's vs. Woolworths: Good old-fashioned David-and-Goliath battle