Friday, January 31, 2014

Washington University professor Robert Morley levels charges against Square

Patent dispute over Square technology

EnOcean wins appeal at the CAFC


EnOcean GmbH (“EnOcean”) appeals from an order of the U.S. Patent and Trademark Office (“PTO”), Board of Patent Appeals and Interferences (“Board”), finding all of EnOcean’s claims involved in Patent Interference No. 105,755 with Face International Corporation (“Face”) unpatentable over a combination of prior art that includes PCT Application No. PCT/GB01/00901 to Burrow (“Burrow reference”). See J.A. 50. Because the Board erred in treating certain EnOcean claims as means-plus-function claims and in finding that certain EnOcean claim limita- tions lack support in its priority German and PCT appli- cations, we vacate-in-part1 the Board’s order with respect to EnOcean’s claims and motions, and we remand for further proceedings.

Of the issues

Here, EnOcean challenges the Board’s construction that its receiver claims invoke § 112, ¶ 6.


Notably, these claims all lack the word “means,” thus entitling them to a presumption that they are not means-plus-function claims. Despite the benefit of this presumption, the Board concluded that “the recited ‘re- ceiver’ element of the involved EnOcean claims invokes § 112, ¶ 6.” J.A. 47. The Board found “that there is no distinction in meaning between ‘receiver’ and ‘signal receiving means,’” and stated that “the receiver of the EnOcean claims is defined in the claims solely in terms of functional language.” Id.
On appeal, EnOcean challenges the Board’s determi- nation that its receiver claims invoke § 112, ¶6. EnOcean argues that the claim limitation “receiver” is reasonably well understood in the art as a name for a structure which performs the recited function. See Greenberg v. Ethicon Endo-Surgery, Inc., 91 F.3d 1580, 1583 (Fed. Cir. 1996) (applying this test to the claim term “detent mechanism”).

We agree with EnOcean. The term “receiver” (i.e., the absence of the term means) presumptively connotes sufficiently definite structure to those of skill in the art. See Personalized Media, 161 F.3d at 703-04. And in this case, Face has not overcome that presumption. Indeed, the record indicates that the term “receiver” conveys structure to one of skill in the art—the Board itself made a factual finding that that the “skilled worker would have been familiar with the design and principles of the types of components utilized in the claimed invention, includ- ing . . . receivers.” J.A. 18.


For the reasons articulated in section II.A, supra, EnOcean has demonstrated that a person of ordinary skill in the art could understand the bounds of the invention merely by reading the term “receiver,” which is present in EnOcean’s German and PCT applications. In requiring that the German and PCT applications “expressly describe the structure of the receiver,” the Board applied an incorrect standard. J.A. 45. Since the inventors did not invent the receiver, and the Board found that the structure was well known as of the filing date, the inventors were “not obliged . . . to describe . . . the particular appendage to which the im- provement refers, nor its mode of connection with the principal machine.” Webster Loom Co. v. Higgens, 105 U.S. 580, 586 (1881). “This enables patents to remain concise statements of what is new, not cumbersome repetitions of what is already known and readily provided by reference.” Pressure Prods. Med. Supplies, Inc. v. Greatbatch Ltd., 599 F.3d 1308, 1324 (Fed. Cir. 2010).

Wednesday, January 29, 2014

In re Payne on arguments of counsel

Ex parte Lin discusses "arguments of counsel." (Payne, Greenfield, Pearson)

Can an intermediate product anticipate?

95/000,609 concerning US 7,326,210

See In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) ("Inherency, however, may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient." (quoting Continental Can Co. v. Monsanto Co., 948 F.2d 1264, 1268 (Fed.Cir.1991))).

The Requester argues that an intermediate product can anticipate a claimed device "even if the intermediate product is merely a stage in the final product of a non- anticipatory product." (App. Br. 22, citing In re Mullin, 481 F.2d 1333, 1335-36 (CCPA 1973).

Lovin cited as to "naked assertions"

Ex parte Ferguson

Of naked assertions:

Appellant’s argument amounts to a recitation of the claim elements and a “naked assertion” that the elements are not found in the prior art. Such assertions do not constitute a separate argument for patentability of claim 11. See In re Lovin, 6562 F.3d 1349, 1357 (Fed. Cir. 2011) (holding that the Board had reasonably interpreted 37 C.F.R. § 41.37(c)(1)(vii) as requiring “more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art”).

Ex parte Dick on secondary considerations

Ex parte Dick

As to long-felt need:

The burden also rests with Appellants to establish long-felt need with objective evidence that an art-recognized problem existed in the art for a long period of time without solution. In particular, the evidence must show that the need was a persistent one that was recognized by those of ordinary skill in the art. Orthopedic Equip. Co. v. All Orthopedic Appliances, Inc., 707 F.2d 1376, 1383 (Fed. Cir. 1983); see also In re Gershon, 372 F.2d 535, 538 (CCPA 1967). Further, the claimed invention must in fact satisfy the long-felt need. In re Cavanagh, 436 F.2d 491, 496 (CCPA 1971).

Commercial success is also not apparent where there is demand for a product that fills a need, and the claimed product merely satisfies that need, e.g., for more versatile designs for removable lampshade covers. See In re Fielder, 471 F.2d 640, 646 (CCPA 1973) (“In any event, it is not at all clear from the evidence that any successful use which might be credited stems from the advent of the claimed ballots as distinguished from the contemporary drive toward the greater use of automated data processing techniques. A nexus between the claimed invention and the alleged success has not been established.”).

Of secondary considerations

In addition, we emphasize that, although secondary considerations such as unexpected results must be taken into account, they do not necessarily control the obviousness conclusion. See Agrizap, Inc., v. Woodstream Corp., 520 F.3d at 1344; see also, Sud-Chemie, Inc. v. Multisorb Techs., Inc., 554 F.3d 1001, 1009 (Fed. Cir. 2009) (“[E]vidence of unexpected results and other secondary considerations will not necessarily overcome a strong prima facie showing of obviousness”); Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1372 (Fed. Cir. 2007) (“[T]his secondary consideration does not overcome the strong showing of obviousness in this case. Although secondary considerations must be taken into account, they do not necessarily control the obviousness conclusion.”); see also Newell Cos., Inc. v. Kenney Mfg. Co., 864 F.2d 757, 769 (Fed. Cir. 1988).

Inventorship dispute sparks lawsuit involving the University of Pittsburgh

In another case of academic patent intrigue, Karen Norris, a University of Pittsburgh immunology professor, and Heather Kling, a postdoctoral student in her lab, have filed a DJ lawsuit in federal court against the University of Pittsburgh and Jay Kolls and Mingquan Zheng.

The Pittsburgh Post-Gazette states:

In September 2011, Dr. Norris accused Dr. Kolls of inaccurately claiming in two federal grant applications that he had collaborated with her on monkey research involving pneumocystis and of wrongly citing the research in the patent application he had filed with Dr. Zheng.

(...)[ Pitt medical school dean Arthur Levine did an initial investigation ]

In July, a Pitt faculty committee that followed up on Dr. Levine's original probe found that Dr. Kolls was not guilty of research misconduct but was responsible for a lesser violation, research impropriety.

[as to issues in determining inventorship]

[the committee noted] it was difficult to determine who first developed the idea of using a portion of the pneumocystis fungus known as "mini-kexin" as a potential vaccine or antibody treatment target.

Judge Whyte in ND Cal gets bizarre Joseph v NASA case

CV 14-00385 seeks a writ of mandamus compelling NASA to examine the Mars jelly doughnut.


Within the court papers, Courthouse News Service observed:

"Petitioner immediately recognized that bowl-shaped structure, hereafter referred to as Sol 3540, as resembling a mushroom-like fungus, a composite organism consisting of colonies of lichen and cyanobacteria, and which on Earth is known as Apothecium. ...

See also Scientist sues NASA, alleges it's failing to investigate alien life on Mars

Of Judge Whyte, see for example previous IPBiz post: Judge Ronald M. Whyte affirmed by CAFC in Nazomi case

Tuesday, January 28, 2014

CAFC in Chaganti: We read this as a statement that common sense would have provided a reason to combine these references.


The Board found that a person of ordi- nary skill would have had a reason to use “the online print service of Manolis to provide licensed access to copyrighted images in order to provide account users with the ability [to] control access to their copyrighted images” while “at the same time providing concurrent access to the images as suggested by Glassman.” S.A. 11 (citing S.A. 115-116). We read this as a statement that common sense would have provided a reason to combine these references. We find this persuasive given that, while Manolis does not specify that the images distributed by the system are copyrighted, they almost certainly are. See 17 U.S.C. § 102 (“Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression . . . .”). Common sense would have provided a person of ordinary skill with reason to use the teachings of Glassman to distribute these copyrighted images under the appropriate licenses. Substantial evidence supports the Board’s finding.


Nonetheless, Mr. Chaganti’s argument regarding the lack of a stated reason to combine is not unreasonable. We caution the Board and the PTO that such reasons must be clearly articulated. It is not enough to say that there would have been a reason to combine two references because to do so would “have been obvious to one of ordi- nary skill.” S.A. 115. Such circular reasoning is not sufficient—more is needed to sustain an obviousness rejection.

REALTIME DATA, LLC (doing business as IXO) loses at CAFC

Note the various cases involving plaintiff-appellant REALTIME DATA, LLC (doing business as IXO)

Realtime Data, LLC (“Realtime”) appeals from multi- ple decisions of the United States District Court for the Southern District of New York, granting motions filed by several companies in the financial services industry (the “Defendants”) for summary judgment of (i) noninfringe- ment of various claims of U.S. Patents 7,417,568 (the “’568 patent”), 7,714,747 (the “’747 patent”), and 7,777,651 (the “’651 patent”), and (ii) invalidity under 35 U.S.C. § 112 of several claims of the ’651 and ’747 patents.

As to claim construction

Realtime first argues that the district court erred in its construction of three claim terms: “descriptor indicates,” “data field/block type,” and “data stream.”

The CAFC noted:

Dr. Modestino concluded that “[i]t should be understood that the passive process of receiving a data stream [from an external source] as practiced in the ’506 patent is quite different from the active process of retrieving, or fetching, a block of data from a storage device internal to a computer system using standard storage device access techniques,” id. (emphasis added), and that “one of ordi- nary skill in the art would distinguish this active process of retrieving a data block from an internal storage device as fundamentally different from the passive process of receiving a data stream as recited in independent claims 1, 69 and 86 of the ’506 patent,” id. at 972 (emphasis added).

Although Dr. Modestino’s declaration dealt, in part, with a narrower term “receiving a data stream,” the declaration makes clear that a person of ordinary skill would understand that a data stream as disclosed in the written description of the ’747 patent means a data stream received from an external source. Given this distinction advanced by Realtime’s own expert in the reexamination, the district court did not err by including the external source requirement in the construction of “data stream” in claims 15, 20, 22, and 32 of the ’568 patent; claims 1, 7, 8, 13, 14, and 19 of the ’747 patent; and claims 1, 4, 6, 7, 12, 13, 18, 19, 21, 22, 25, 26, 29, 34, 35, 43, 47, 49, 95, 97, 108, and 112 of the ’651 patent.

As to infringement:

We agree with the Defendants. The decoding claims disclose the limitation “wherein the lossless encoders are selected based on analysis of content of the data blocks” ’651 patent col. 31 ll. 36–37, col. 33 ll. 10–11. The parties stipulated that this limitation means that “the system (or method) selects the lossless encoders based on an analysis of content of the data blocks (or data fields).” J.A. 5341, 5334. According to the stipulated claim construction, these decoding claims thus require the selection of an encoder. Realtime cannot now change the construction that it had agreed to in the district court. Versata Soft- ware, Inc. v. SAP Am. Inc., 717 F.3d 1255, 1262 (Fed. Cir. 2013). The district court thus did not err in granting the Defendants’ motion for summary judgment of nonin- fringement of claims 95, 97, 108, and 112 of the ’651 patent.

In conclusion, we agree with the Defendants in all respects concerning the district court’s holding of nonin- fringement.

As to written description

The Defendants contend that the limitation lacks written description support under § 112, ¶ 1 because there is no mention of content-based or content-dependent decompression in the written descrip- tion of the ’651 and ’747 patents.
We agree with the Defendants that the ’651 and ’747 patents lack adequate written description of the “content dependent data decompression” limitation. The written description is a statutory requirement set forth in 35 U.S.C. § 112. The written description “must clearly allow persons of ordinary skill in the art to recognize that [the inventor] invented what is claimed.” Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc) (citation and quotations omitted).

The test is whether the disclosure “conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date.” Id.

As the district court found, the written descriptions of the ’651 and ’747 patents do not contain any definition of “content dependent data decompression.” Written De- scription Opinion, 2012 WL 2545096, at *8. The written description describes the process of data decompression as determining “whether the data compression type de- scriptor is null” (meaning that the content is not com- pressed), or not null meaning that “the corresponding decoder or decoders” matching the compression type descriptor used to encode the data are selected to decode the data block. ’747 patent col. 15 ll. 11–25; ’651 patent col. 17 ll. 10–28 (describing the process of extracting the data compression type descriptor to determine the decod- ers to use).

As to DOE

Realtime finally argues that the district court abused its discretion in precluding Realtime from arguing in- fringement under the doctrine of equivalents, applying its local rules in doing so. We affirm the district court in its decision concerning the doctrine of equivalents. As a general matter, we “defer[] to the district court when interpreting and enforcing local rules so as not to frus- trate local attempts to manage patent cases according to prescribed guidelines.” Genentech, Inc. v. Amgen, Inc., 289 F.3d 761, 774 (Fed. Cir. 2002). Particularly in re- viewing the district court’s exercise of discretion, we determine whether: “(1) the decision was clearly unrea- sonable, arbitrary, or fanciful; (2) the decision was based on an erroneous conclusion of law; (3) the court’s findings were clearly erroneous; or (4) the record contains no evidence upon which the court rationally could have based its decision.” In re Cambridge Biotech Corp., 186 F.3d 1356, 1369 (Fed. Cir. 1999). (...)

We agree with the Defendants on this point. The dis- trict court was well within its discretion to preclude Realtime from asserting infringement under the doctrine of equivalents. In asserting its allegations of infringe- ment under the doctrine of equivalents two and a half years into the litigation, Realtime failed to comply with the local rules of both the Eastern District of Texas and the Southern District of New York, which require com- plete infringement assertions within 10 and 14 days, respectively. Additionally, because Realtime asserted such contentions after fact discovery had closed, the Defendants were prejudiced from developing adequate discovery and developing theories of noninfringement under the doctrine of equivalents. The district court thus did not abuse its discretion by precluding Realtime from asserting infringement allegations under the doctrine of equivalents.

Sunday, January 26, 2014

"60 Minutes" on January 26, 2014

*Senator Deeds on mental illness. Nowhere to Go.

*YearUp on internships

*Jay Leno talks about his future. Show business pays you a lot of money because eventually you are going to get screwed.

Scott Pelley does the story on Senator Creigh Deeds. The story is a warning that cannot wait. Gus Deeds went to William & Mary. In 2011, Gus Deeds was diagnosed as bipolar. Gus had posted weird things on his Facebook page. As to psychiatric problems: 500,000 beds to fewer than 100,000. Yale/New Haven has 52 beds. Ernie Ridington. The only option is the emergency room. Since 2008, states have cut 4.5 billion dollars from mental health funding.

Second story by Morley Safer. YearUp started by Gerald Chertavian, who earlier co-founded Conduit Communications in 1993. CEO Jamie Dimon (JP Morgan Chase) took on a number of interns. Relentless focus on networking. Hire for skills; fire for behavior. A template which has demonstrated measureable success. Miami-Dade College.

Steve Krofft on Jay Leno. Demographic shift. Baby boomers out. In 1992, 60 Minutes interviewed Jay when he was about to take over Today. In 2004, Conan threatened to leave NBC, with Conan replacing Leno in 2009. March 1, 2010: Jay Leno back at Tonight show.

Friday, January 24, 2014

"We Are Everyone"

Following the theme in CSI on Jan. 22, CBS on Jan. 23 in the "We Are Everyone" episode of Elementary showcased a contractor leaking classified information.

CAFC affirms 101 rejection in Smartgene

The CAFC cited Cybersource v. Retail Solutions.

Thursday, January 23, 2014

Renewable Energy Group acquires LS9, subject to meeting milestones; what a difference one year makes!

Patents played a role in the acquisition. As noted by Daily Finance:

An impressive patent portfolio protects its {LS9's] single-step fermentation process and engineered microbes, which create immiscible products that naturally separate from the fermentation broth and make for an easy, high-yield recovery.


While few outsiders know the exact financial position of the company, it seems difficult to believe that a (potential) $61.5 million exit was what Vinod Khosla of Khosla Ventures or other private investors had in mind. Exiting now may not prove to be a bad deal in the long run, especially considering that there is still a long way to go developing the platform and commercializing products. However, successful commercialization could pay tremendous dividends for a company willing and able to finance development. REG could be just that company.


Note the rather coincidental timing of this announcement. Exactly one year ago, on 23 Jan 2013, Biofuels Digest announced
"hail and farewell" to LS9:

[from Gigaom: An LS9 spokesperson, as well as company investors, told me on Wednesday [Jan. 23] that the company is not shutting down. An article in Biofuels Digest on Wednesday reported that LS9 has been struggling, would soon see its staff disperse and could shut down. That article has now been changed to reflect the switch in leadership and de-emphasize the previous assertion that it could shut down. ]

[If nothing else, the LS9 story reflects the "here today, gone tomorrow" nature of posts on the internet.]

Separately, previous IPBiz post:

CAFC chides Medtronic for "linguistic gymnastics"

The CAFC affirms CD Cal in Medtronic CoreValve,
LLC v. Edwards Lifesciences Corp.

Medtronic’s proposed meaning of “this application” is
an attempt at linguistic gymnastics and makes little
sense relative to the straightforward, plain language
meaning of the phrase.

As to the appropriate burdens:

The patentee is the person best suited to understand
the genealogy and relationship of her applications; a
requirement for her to clearly disclose this information
should present no hardship. Accord Sticker Indus. Supply
Corp. v. Blaw-Knox Co., 405 F.2d 90, 93 (7th Cir. 1968).

On the contrary, Medtronic’s “reasonable person” test
improperly places the burden of deciphering a priority
claim upon the reader or the public.

Wednesday, January 22, 2014

CSI does Project Jericho and domestic spying on January 22, 2014

The story begins with a handoff of a flash drive, a car chase, and an explosion, with a crispy corpse in the remnants of the car.

The dead body seemed to be that of an investigative reporter, doing a story on domestic spying. General Lansdale. John Murchison is the reporter. Lansdale on "The cost of misplaced loyalty.". The giver of the handoff "Emily Ray" ends up dead. Suvari is the mystery leaker.

Willful communication of national defense information.

Fake fingerprint: Ridge detail but no pores.

Wifi technology that allows one to take control of a car?

Boston Breaks.

Cheryl Perez, an earlier victim.

Zolpidem bottle shown.

Joseph Powers, a contractor, was Suvari, and ends up dead.

Another child of the '60's.

The episode ends without resolution. The implication is of a rogue general.

Sunday, January 19, 2014

Does the 7th Amendment require jury trials on patent invalidity?

Related to the Lemley draft Why Do Juries Decide if Patents Are Valid? discussed in PatentlyO


Nor are there any public mischiefs which will result from the view which the Court takes of this section. On the contrary, it will subserve the purposes of general justice. If a patent has been fraudulently obtained, or upon false suggestions, it may be repealed within three years, if a jury,
upon a trial, shall be satisfied of the fact. If such a repeal be not had, still the public have a perfect security. They may violate the patent with impunity, and if sued for the violation, any person may show the same facts in his defence, and they will constitute a complete bar to the suit, by the express provisions of the 6th section of the patent act. Here, also, the trial will be ordinarily by a jury, and if the verdict is found, upon such facts, in favour of the defendant, the law expressly declares, that "judgment shall be rendered for the defendant, with costs, and the patent shall be declared void." Many patents, under this section, have already, in such suits, been adjudged void; so that the danger of extensive imposition or injury is wholly chimerical. On the other hand, if, by any accident or mistake, the patentee should neglect to appear to oppose the rule, upon the argument on the other side, he may be remediless. But, upon the exposition of the statute adopted by the Court, he will still be entitled to appear to the scire facias, and have a more deliberate opportunity to defend his rights.

"60 Minutes" on January 19, 2014

A special edition of "60 Minutes" does "Tales of Survival."

The Rescue of Jessica Buchanan by Seal Team 6.

The Lost Boys of Sudan. One of the most successful re-settlements in US history.

The story on a secret mission by Seal Team 6 to rescue Jessica Buchanan is done by Scott Pelley. Jessica was 32 years old at the time. She was in Somalia, working with a Danish charity, teaching children how to avoid land mines. Paul Pfisted was also taken. The bandits asked for $45 million. All phone numbers were disconnected on her cell phone, except a number to a hostage negotiator in Nairobi. She ate tuna fish and bread. The bandits were chewing "kaat."
Nicknames for bandits: "Crack Baby." "Helper" After three months in desert, Jessica had urinary tract infection. A phone call was made. Issue: may be just two weeks to live. January 25: new moon. Eruption of gun fire. Jessica hears her name spoken with an American accent. "Jessica; we're with the American military."

Book "Impossible Odds" published by Shuster.

The story on "The Lost Boys" is a reprise from 21 July 2013:

Bob Simon first met the Lost Boys in a Kenyan refugee camp in 2001 after they had fled civil war in the Sudan. Some of the young men were relocated to the U.S. -- how are they doing now?

Saturday, January 18, 2014

Plagiarism and dialogue

Note text in How plagiarism hurts knowledge-building: Obligations of scientists (part 4)

But this comparison often involves a dialogue as well. As part of the knowledge-building project, from the earliest planning of their experiments to well after results are published, scientists are engaged in asking and answering questions about the details of the experience and of the conditions under which the phenomenon was observed.

Misrepresenting someone else’s honest observation report as one’s own strips the report of accurate information for such a dialogue. It’s hard to answer questions about the little, seemingly insignificant experimental details of an experiment you didn’t actually do, or to refine a description of an experience someone else had.

This, of course, does not address the issues of self-plagiarism, wherein the observer is thinking he/she is observing something new, which is not in fact new, to the observer or the author, but does allow "dialogue". Recall the SIU business. Walter Wendler copied material he created while at Texas A&M into a proposal while he was employed at SIU.

And recall the Ward Churchill matter.

And, one wonders if various travel reviews are not salted by comments of the establishment owner/manager, praising the establishment?

Vague patents encouraged by the CAFC?

As to the Nautilus/Biosig case, Max Cherney writes:

The case is interesting for the [Supreme] Court because it tackles a long-time precedent that tolerates such vague patent claims, according to the EFF. The vague patents are a problem because the practice, encouraged by the Federal Circuit Court, results in patents so broad that with a little bit of lawyering they can be stretched to cover technology discovered after the original claim was made, they explained in their brief. The patents are especially prevalent in the software industry, and are one of patent trolls’ favored legal implements. It’s also probably why—as in the Akamai vs. Limelight case—Google and others have encouraged the Supreme Court to review the case.

See The Supreme Court Is Taking on Copyright and Patents with Three Important Tech Cases

Joe Mullin wrote of the issues under 35 USC 112 P 2:

The Biosig inventor told the US Patent Office a patent should still be allowed, because he described something that the earlier application didn't: a design that involved a "spaced relationship" between the electrodes.

That phrase wasn't really defined in the patent, however. The district court judge who heard the case found that Biosig's attempts to define the term were all over the place. The competing definitions were internally inconsistent "gibberish," noted Nautilus lawyers. That rendered the patent indefinite and invalid in the judge's view.

On appeal, a panel of Federal Circuit judges ruled otherwise. Unless the patent was "insolubly ambiguous," it was the lower court judge's job to give definition to those unclear claims through the process of claim construction. The appeals court defined the claim and allowed the case to go forward.

See Supreme Court looks to rein in top patent court with two new cases

Friday, January 17, 2014

Appellant loses on obviousness in Ex parte HASHIMOTO

from Ex parte HASHIMOTO

The Examiner finds that the combination of Kanefuji and Kroyer
discloses many of the elements of claim 1, but does not disclose securing a
core to an upper mold. Ans. 5-7. The Examiner finds that
it would have been obvious to a person of ordinary skill in the
art at the time of the invention to implement controlled closing
motion of the upper mold similar to Kroyer in the method of
Kanefuji because doing so would avoid problems associated
with closing the molds too slowly or too quickly and provide
smooth displacement of the molten metal to yield an efficient
casting part (Kroyer).
Id. at 7. The Examiner finds that claim 1 “would have been obvious to an
artisan since a particular known technique (utilizing cores) was recognized
as part of the ordinary capabilities of one skilled in the casting art and would
only have yielded predictable result of obtaining target product

Appellant unsuccessfully argued non-analogous art. PTAB noted
In re Kahn, 441 F.3d 977, 986-87 (Fed. Cir. 2006).

An issue of attorney argument arose: Attorney argument unsupported by
evidence of record cannot overcome the Examiner’s factual findings.
See Estee Lauder Inc. v. L’Oreal, S.A.
, 129 F.3d 588, 595 (Fed. Cir. 1997) (citing
Knorr v. Pearson,617 F.2d 1368, 1373 (CCPA 1982) (counsel
argument cannot take the place
of evidence lacking in the record)).

And, reference to KSR:

We find the Examiner’s motivation statement articulates
sufficient reasoning having a rational underpinning to support the
obviousness conclusion. See KSR Int’l Co. v. Teleflex, Inc.,
550 U.S. 398,418 (2007) (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).

Use of γ-valerolactone solvent to extract carbohydrates from cellulosic materials for use in creating biofuels

Related to obtaining biofuels from cellulosic sources, work from the University of Wisconsin discusses use of a γ-valerolactone solvent.

The Abstract from the paper published on January 17, 2014:

Widespread production of biomass-derived fuels and chemicals will require cost-effective processes for breaking down cellulose and hemicellulose into their constituent sugars. Here, we report laboratory-scale production of soluble carbohydrates from corn stover, hardwood, and softwood at high yields (70 to 90%) in a solvent mixture of biomass-derived γ-valerolactone (GVL), water, and dilute acid (0.05 weight percent H2SO4). GVL promotes thermocatalytic saccharification through complete solubilization of the biomass, including the lignin fraction. The carbohydrates can be recovered and concentrated (up to 127 grams per liter) by extraction from GVL into an aqueous phase by addition of NaCl or liquid CO2. This strategy is well suited for catalytic upgrading to furans or fermentative upgrading to ethanol at high titers and near theoretical yield. We estimate through preliminary techno-economic modeling that the overall process could be cost-competitive for ethanol production, with biomass pretreatment followed by enzymatic hydrolysis.


Science 17 January 2014:
Vol. 343 no. 6168 pp. 277-280


from the specification

Significant advances have been made in recent years with respect to using heterogeneous catalysts for converting biomass-derived compounds to fuels and chemicals. Conventional approaches deconstruct solid lignocellulose into smaller molecules that are soluble in various solvents (e.g., water, ionic liquids), thereby allowing transport of these reactants to the active sites on the heterogeneous catalyst, the majority of which are located within the pores of a high-surface area material. A difficulty in implementing this strategy is that chemical components used to deconstruct solid cellulose (e.g., sulfuric acid) may alter the performance of heterogeneous catalysts used subsequently to convert the soluble biomass-derived reactants to the desired fuels and/or chemicals. As a result, costly purification steps are required to implement a cascade catalytic process. Thus, the present method addresses a long-felt and unmet need by providing a route to levulinic acid, gamma-valerolactone, furfural, and downstream value-added chemicals that uses gamma-valerolactone itself as a reaction solvent in a monophasic reacti

Thursday, January 16, 2014

CAFC orders remand in Superior Industries v. Masaba

Superior Industries v. Masaba

Superior conceded that it could not prevail on
its infringement claims against Masaba
and successfully moved for summary judgment of non
-infringement and dismissal of Masaba’s invalidity counterclaims.

What happened?

because it is unclear from the record
how the disputed construction
s relate to infringement, we vacate
the district court’s judgment and remand for further

Judge Rader noted

relevant to this case, a system claim
generally covers what the system is,
not what the system does. Hewlett-Packard Co. v. Bausch
& Lomb Inc., 909 F.2d 1464, 1468 (Fed. Cir.
1990); see also Roberts v. Ryer
, 91 U.S. 150, 157 (1875) (“The inven-
tor of a machine is entitled to the benefit of all the uses to
which it can be put, no matter whether he had conceived
the idea of the use or not.”). Thus, it is usually improper
to construe non-functional claim terms in system claims
in a way that makes infringement or validity turn on
their function. Paragon Solutions, LLC v. Timex Corp.,
566 F.3d 1075, 1091 (Fed. Cir. 2009).

Wednesday, January 15, 2014

Marvell Technology Group's request for reduction in verdict amount denied

Judge denies request to reduce $1.17 billion CMU patent verdict

U.S. District Judge Nora Barry Fischer denied Marvell's request to reduce a jury verdict to Carnegie-Mellon University [CMU]. The work was done by Professor Jose Moura.

CAFC addresses patent term adjustment in Novartis v. Lee

Novartis v. Michelle Lee.

While we thus disagree with Novartis on its first § 154(b)(1)(B) issue, we agree with Novartis on its second §154(b)(1)(B) issue. Novartis argues that the “time consumed by continued examination” should be limited to the time before allowance, as long as no later examination actually occurs. In contrast, the PTO contends that any time up until the patent issues, even after allowance, should be excluded from the adjustment awarded to the patentee. We reject the PTO’s view that the time after allowance, until issuance, is “time consumed by continued examination” and so is excluded from adjustments given to the patentee. Such time from allowance to issuance undisputedly would count toward the PTO’s three-year allotment in a case not involving a continued examina- tion. There is no basis for distinguishing a continued- examination case.

The CAFC cites Blacklight Power v. Rogan, 295 F.3d 1269, 1273-74 (Fed. Cir. 2002) (even after payment of the issue fee, but before issuance, PTO officials can take “extraordinary action to withdraw a patent from issue” and “return the . . . application to examination”); 37 C.F.R. § 1.313(a) (applicant may request resumption of examination).

Google/Nest v. Honeywell in the thermostat business

Within a post on January 15, 2014 titled Google steals innovation crown from Apple: Isaacson

[Walter Isaacson] said Google-Nest exemplifies the "amazingly strong integrated strategy that Google has to connect all of our devices, all of our lives, from our car, to our navigation system, to how our garage doors are going to open."

The Nest portfolio of smart thermostats and fire detectors will be added to Google's gee-whiz tool shed of giant robots, self-driving cars and Google Glass.

Isaacson also pointed out that Nest co-founder and CEO Tony Fadell will be joining Google as part of this deal. "Fadell was one of the team that created the iPod. He was very deep into the Apple culture ... when Apple was so innovative."

Isaacson did not mention the Honeywell/Nest patent litigation.

from an IPBiz post [
Honeywell, Nest, and thermostats
] on April 12, 2012: There is reference to a patent infringement suit brought by Honeywell against Nest in February 2012.

from IPBiz post CBS Sunday Morning on August 12, 2012 :

Only at this point did the cover story by David Pogue on thermostats appear. Tony Fadell who did the iPod, transformed the thermostat. The Nest Thermostat. You can adjust your thermostat when you are not home.

See also

Nest Counters Honeywell Allegations of Patent Infringement including the text

This lawsuit is a bald effort by Honeywell to inhibit competition from a promising new company and product in a field that Honeywell has dominated for decades. Nest Labs, with its Nest Learning Thermostat, has generated consumer and critical enthusiasm around the home thermostat—a device that most people had long since written off as a bland, dumb appliance. No less than the New York Times, Wall Street Journal, and USA Today have lauded the Nest Learning Thermostat as “gorgeous, elegant and very, very smart”; “intuitive … sophisticated … [and] right on the money”; and “hot”—unlike “the thermostat on your wall [that] is probably a blah-looking controller you face only when it’s time to warm or cool the house.”

And note the 14 January 2014 post by Tony Rizzo Nest vs. Honeywell: Who Will Win the Thermostat Patent Wars? including the text

For Nest it was instantly clear that Honeywell wasn’t interested in licensing fees or constructive dialog. It was clear that Honeywell wanted Nest entirely out of the thermostat market. Fortunately for Nest Fadell and Rogers came equipped with plenty of experiences in dealing with such tactics from their Apple iPod and iPhone days. Soon enough they brought on board Apple’s former chief patent counsel Richard Lutton Jr. as VP and general counsel and they began to build their defense strategies.

Fadell has been quoted in the past (over on The Verge website) as saying, "They are not trying to get money out of us. They are trying to maintain the status quo…In seven decades, there appears to be little more technological improvement to the flagship Honeywell thermostat than the replacement of a mechanical display with an LCD."

Rizzo's text --Honeywell wasn’t interested in licensing fees -- should be noted by sometimes flip licensing attorneys whose response to IP issues is "We'll just license it." Sometimes patent holders don't want to license, and, under US law, patent holders do not have to license.

Sadly, Rizzo really misses the mark in his text

As we noted in our Google-Nest deal analysis, there is certainly the possibility – even given the above patent issues Nest has uncovered – that Honeywell will win the patent lawsuit. But in that case Google may have to shell out a few dollars (and if the judge ends up having a proper sense of humor he or she would set penalties at $1.00) but Nest will still be there competing head on with Honeywell.

The danger to Nest if Honeywell were to win is not in damages ("a few dollars") but in an injunction, which would put Nest out of business.

Tuesday, January 14, 2014

Pro se appellant loses at CAFC

Hemphill v. Johnson and Johnson

Of relevance in the case:

The district court correctly ruled that
“reexamination certificates do not alter the term of a patent” and
therefore,the certificate did not change the fact that
even if J&J had infringed the ’720 patent before its expiration
in 2002, recovery was time-barred when Hemphill sued in 2012 .

no recovery “for any infringement committed more than
six years prior to the filing of the complaint,” 35 U.S.C. § 286

Of interest as to "what isn't" plagiarism

From the article Student accuses academician of plagiarism related to charges leveled against Wang Zhengmin :

The Academic Committee of Fudan University said Wang's behavior was not plagiarism. It said that depicting many graphs from original works without giving references didn't meet the internationally accepted academic standards, but they were not plagiarism.

Plagiarism in thesis at UIC College of Nursing?

Of note in the article by the Chicago Tribune on alleged plagiarism by one Angela Henderson:

The [Chicago] Tribune ran Henderson's 129-page dissertation through iThenticate, plagiarism detection software used by universities to check the originality of students' work, and asked three independent experts who study academic integrity to examine the dissertation and the allegations.

The experts said Henderson had errors in attribution that violate the UIC College of Nursing's policy on academic integrity included in the student handbook.

One commenter stated: The dissertation committee should be investigated and punished if not removed for allowing such actions to occur.

One could say the same thing about Poshard's thesis committee at SIU.

Supreme Court will not hear the Newegg/Soverain case

The Supreme Court has declined to hear the Newegg case; see U.S. Supreme Court refuses to hear Internet shopping patent case . Lee Cheng of Newegg was quoted: "The witch is dead, hurray. We are very, very pleased that the Supreme Court has recognized ... these patents should never have been granted in the first place. What we have showed in the Soverain case is the fighting back works."

Certain law professors had written a brief in November 2013 which included the text:

It is critically important that this Court grant certiorari in this case because the consequences of leaving the Federal Circuit’s error uncorrected are far-reaching.

PatentlyO had written about the Newegg case: This Federal Circuit decision is fairly big news as far as its legal results.



On appeal, the Federal Circuit took the almost unprecedented stance of reversing the non-obviousness decision. One reason for the rarity of a full-reversal (rather than vacatur) is largely explained by the substantial factual foundation that serves as the basis of an obviousness decision. In its opinion, the Federal Circuit couched its discussion in terms of questions of law – following the Supreme Court's lead from KSR International Co., v. Teleflex, Inc., 550 U.S. 398 (2007). In that case, the Supreme Court was able to make the legal conclusion that the asserted claims were obvious because the factual underpinnings of obviousness were seemingly not in material dispute.


I [Crouch] also see this case as asking for clarification of the KSR decision in terms of what elements of the "common sense" analysis should be considered determinations rightfully before a jury. I suspect that the brief strategically avoided that issue because the Federal Circuit is a much riper target for review than a recent unanimous and popular Supreme Court opinions.

CAFC discusses "what is" prior art; attorney diligence in IN RE ENHANCED SECURITY RESEARCH


With respect to obviousness, the critical issue is whether the Manual in combination with Liepins teaches a person of ordinary skill in the art how to assess the severity of an attempted security breach and then block that attempted breach based on its severity. (For the purposes of this discussion, we assume that the Manual constitutes valid prior art. This assumption is discussed in Section II.)

As to arguing dependent claims before the Board

Finally, ESR argues that the Board “failed to address the limitations contained in dependent claims 9, 15, and 17.” Appellant’s Br. at 47. As the PTO points out on appeal, ESR waived this argument when it failed to separately argue these claims. As this court explained in In re Lovin, 652 F.3d 1349 (Fed. Cir. 2011), the Board may reasonably interpret 37 C.F.R § 41.37, the rule governing the briefing requirements in ex parte appeals, “to require applicants to articulate more substantive arguments if they wish for individual claims to be treated separately.” Id. at 1356. ESR asserts that it separately argued claims 9, 15, and 17 when it quoted the claims in its appeal brief and stated that these limitations did not appear in the prior art. Lovin specifically held that this type of argument was insufficient, stating that “a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art” is insufficient under Rule 41.37. Id. at 1357.
Here, ESR did not argue the dependent claims under separate subheadings as Rule 41.37 (2012)7 required. Instead, ESR grouped the dependent claims with their independent claims.

As to "what constitutes prior art"

We have so far proceeded on the assumption that NetStalker constitutes a valid prior art reference. Howev- er, ESR contends that the Board erred in treating the Manual as prior art. Whether a document qualifies as a “printed publication” that is “available to the public” for the purposes of 35 U.S.C. § 102(a)(1) is a question of law based on underlying findings of fact. See In re Hall, 781 F.2d 897, 899 (Fed. Cir. 1986). Under 35 U.S.C. § 102(a)(1), prior art encompasses any matter that “was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.” This court has interpreted § 102 broadly, explaining that even relatively obscure documents qualify as prior art so long as the public has a means of accessing them. See, e.g., Hall, 781 F.2d at 899.

Our leading case on public accessibility is In re Hall, 781 F.2d 897 (Fed. Cir. 1986). In Hall we concluded that “a single cataloged thesis in one university library” consti- tutes “sufficient accessibility to those interested in the art exercising reasonable diligence.” Id. at 900. Thereafter, in Constant v. Advanced Micro-Devices, Inc., we explained that “[a]ccessibility goes to the issue of whether interested members of the relevant public could obtain the infor- mation if they wanted to.” 848 F.2d 1560, 1569 (Fed. Cir. 1988). Therefore, “[i]f accessibility is proved, there is no requirement to show that particular members of the public actually received the information.” Id.
In this case, the title page of the Manual contains an inscription dating it to May 1996. ESR, however, chal- lenges the Manual’s claimed date of priority, arguing that the version of the Manual that the examiner relied on may not have been available in May 1996 and that there are indications that this version was a draft rather than a final document available to the public. However, Stephen Smaha, the Chief Executive Officer of the company that produces the NetStalker software, filed a declaration (“Smaha Declaration”) with the PTO averring that the version of the Manual before the examiner was available in May 1996. Smaha explained that “[m]embers of the public showing an interest in buying or licensing the NetStalker product could have obtained a copy of the manual by contacting Haystack or Network Systems Corporation and requesting one,” and, indeed, “[t]he NetStalker product was sold to or installed for approxi- mately a dozen customers.” JA 9705 (footnote omitted). In view of the Manual’s inscription date, the Smaha Declara- tion, and evidence of NetStalker advertisements pub- lished in 1995, we conclude that substantial evidence supports the Board’s finding that the Manual constituted publically-available prior art under § 102(a)(1).

ESR also argues that the Manual should not be con- sidered in the circumstances of this case because it was missing pages. To support this proposition, ESR relies on Panduit Corp. v. Dennison Manufacturing Co., wherein this court explained that prior art “must be considered in its entirety, i.e., as a whole, including portions that would lead away from the invention in suit.” 810 F.2d 1561, 1568 (Fed. Cir. 1987). ESR contends that because the Manual was missing pages, it “cannot be considered as a whole” and therefore “should not be considered at all.” Appellant’s Br. at 26. (...)

We agree that missing pages may sometimes be nec- essary for understanding a prior art reference. But noth- ing in the Manual here suggests that the missing pages were necessary to an understanding of the pertinent parts of the reference. (...)

ESR claims that the missing sections were necessary because they could: “(1) clarify the often cryptic disclosure in the NetStalker Manual and thus alter its meaning; or (2) disparage or teach away from application of the relied upon teachings to the ʼ236 invention.” Appellant’s Br. at 29. However, ESR fails to point to anything in the Manual that might support this conclusion.

Footnote 14 states

Had the missing pages been necessary to a full understanding of the software, the examiner, of course, could not have relied on the Manual without securing the missing pages. In Star Fruits S.N.C. v. United States, 393 F.3d 1277 (Fed. Cir. 2005), we held that the examiner could request further information from the applicant, and 37 C.F.R. § 1.156, see supra note 8, permits requests to others associated with the applicant. However, the rele- vant regulations do not provide a mechanism through which the PTO may request further information from a third party. This is clear from the history of the America Invents Act’s new Third Party Preissuance Submission procedure, codified at 35 U.S.C. § 122(e).

As to diligence

Finally, ESR argues that even if the ’236 patent would have been obvious in light of NetStalker and Liepins, NetStalker should not be considered invalidating prior art because ESR conceived of the invention before the publi- cation of the NetStalker Manual, and was diligent in reducing it to practice. The Manual contains an inscrip- tion that dates it to May 1996, and the ’236 patent is a continuation in part of an application filed on October 7, 1996. Even if ESR had established a conception date before May 1996 (earlier than the publication date of the Manual), we find no error in the Board’s decision that there was no showing of diligence in reducing the inven- tion to practice. (...)

A party may prove due dili- gence by showing his attorney’s efforts to achieve a con- structive reduction to practice. Bey v. Kollonitsch, 806 F.2d 1024, 1026 (Fed. Cir. 1986).
In order to establish attorney diligence, ESR submit- ted declarations from Peter M. Shipley, the inventor of the ’236 patent (“Shipley Declaration”), and F. Eric Saun- ders, the attorney who filed the ’236 patent application (“Saunders Declaration”). In their declarations, Saunders and Shipley described meetings and telephone calls that took place from February 28, 1996 (when Shipley and Saunders first met in person) to October 7, 1996 (when the patent application of which the ’236 patent is a con- tinuation was filed). ESR argues that these declarations demonstrate the requisite attorney diligence during the critical period. (...)
In this case, the critical period in which ESR must demonstrate diligence spans from May 1996, when the relevant version of the Manual became available, to October 7, 1996, when Saunders filed Shipley’s patent application. The record reveals that over the course of five months, Saunders had a few conversations with Shipley, conducted a prior art search, billed for under 30 hours of work, and drafted the patent application. Citing Bey’s emphasis on the importance of supplying specific dates of activity when attempting to establish diligence, the Board found that, apart from records showing work on “May 4, 6, and 20, and activity in July,” JA 13, ESR failed to provide “records or other evidence showing the exact days when activity specific to this application occurred.” JA 13.


In sum, we hold that the examiner and Board proper- ly treated the NetStalker Manual as publically-available prior art and, having done so, correctly concluded that the teachings of the Manual and Liepins render the amend- ed ’236 patent claims at issue obvious under 35 U.S.C. § 103. We further hold that ESR has failed to demonstrate the requisite attorney diligence under Rule 131, and, therefore, the ’236 patent does not predate the publication date of the Manual.

Judge O’MALLEY dissented. The issue of proving a negative arose:

While Smaha submitted a declaration in support of the reference, he neither claimed that a more complete refer- ence existed—at any time—explained why the reference was submitted in its incomplete state, or explained what the missing portions discussed. The government asserts no positive theory allowing it to rely on such a reference, arguing simply that it was ESR’s burden to prove a nega- tive—i.e., that the pages of the manual to which it has been denied access teach away from or undercut the teachings in the pages Smaha and the requestor selective- ly chose to provide to the Patent and Trademark Office (“PTO”). The government is mistaken, as is the majority. The PTO should have refused to rely on the NetStalker manual as a reference, and should have refused to insti- gate or maintain a reexamination on such grounds. (...)

The Smaha declaration was telling more for what it failed to state than for what little it actually did say with regard to accessibility. Given his undisputed bias, the Board and majority should demand precision with respect to such important facts, and not rely on what appeared to be half-truths. If the manual really was publicly accessible as of the critical date, it would not have been difficult for Smaha to actually say so, and to support his statements with verifiable facts.

Yeda's US Patent No. 8,629,259 directed to tailor-made thermotolerance for photosynthetic organisms

In US Patent No. 8,629,259 (issued January 14, 2014), Yeda Research and Development Co. Ltd. notes

Numerous studies showed that the photosynthetic energy conversion by PSII RC is highly sensitive to irradiation and temperature variations [Takahashi et al., Plant Cell Physiol 45, 251-5 (2004); Murata et al Biochim Biophys Acta 1767, 414-21 (2007)]. Also, recent studies have suggested that the PSII RC is a key player in regulating the rate of photosynthetic energy conversion in response to the prevailing temperature [Yamasaki et al., Plant Physiol 128, 1087-97 (2002)].

Taking into consideration the global warming effect, annual and even daily changes in temperature in aquatic areas (e.g., oceans, small lakes and ponds), dramatically narrow the efficiency of biomass production of thermophilic and mesophilic microalgal strains as well as of different strains of cyanobacteria and thus limits their growth to the tropical arena. Even there, current global heating is expected to exceed the thermotolerance and production efficacy of these organisms [Wraight, Front Biosci 9, 309-37 (2004); Behrenfeld et al. Nature 444, 752-5 (2006)]. Although the expected changes in global temperatures are only in the order of several degrees, it is predicted that biomass production may be dramatically effected.

The increased need for biofuel and the concomitant shortage of food across the world underscores the urgent need for methods of increasing resistance of plants, algea and microalgae to ambient temperature changes.

Claims of US '259 include:

Claim 1. An isolated polynucleotide comprising the nucleic acid sequence encoding a D1 polypeptide as set forth in SEQ ID NO: 36 of a Type II reaction center of a photosynthetic organism, wherein said D1 polypeptide comprises amino acid sequence modifications at a D1/D2 interface position corresponding to Serine 209 of SEQ ID NO: 36 and a position corresponding to Serine 212 of SEQ ID NO: 36, said amino acid modifications impart said type II reaction center with an activity under a higher temperature range than that of a type II reaction center endogenous to said photosynthetic organism.

Claim 7. A method of increasing activity of a type II reaction center of a photosynthetic organism under non-physiological temperature, the method comprising introducing into the photosynthetic organism the isolated polynucleotide of claim 1, thereby increasing the activity of a type II reaction center under a non-physiological temperature.

Monday, January 13, 2014

Landis paper related to biofuel policy

From paper by Douglas Landis et al.

Our study suggests that bioenergy policy that supports coordinated land use can diversify agricultural landscapes and sustain multiple critical ecosystem services.


" But one thing is clear: before attempting to create something new, it is vital to have a good appreciation of everything that already exists in this field. "

Mikhail Kalashnikov : But one thing is clear: before attempting to create something new, it is vital to have a good appreciation of everything that already exists in this field.

from wikipedia AK-47

The CAFC reverses PTAB on obviousness in In re Giannelli

The CAFC found the examiner had not made a prima facie [iPad: facile] case.

U.S. Environmental Protection Agency issues notice of violation to Imperial Petroleum

The EPA has issued a notice of violation to Imperial Petroleum and its wholly owned subsidiary, Middletown, Ind.-based e-Biofuels.

See Biofuels scam allegations against company widen to fraud

"The quality of a technology company’s patents, rather than volume, is the most important issue "

From the Financial Times article titled Google catches up in technology patent wars :

Patent experts warn that the quality of a technology company’s patents, rather than volume, is the most important issue affecting its legal defences. Apple has won the upper hand in its US legal battles against Samsung despite having a far smaller patent portfolio.

However, the sheer quantity of patent holdings also helps deter attack and has led to an intellectual property arms race.
“A large patent portfolio deters competitors from filing suit in the same way that an arsenal of nuclear weapons deters war,” Mr Love said. “It implies that any attack will be met with an equally destructive counterattack.”

Of the first point, one notes that litigations now tend to focus on a few patents and a few claims of those patents.

Of the second point, the "nuclear" analogy has been around for a long time. For example

from 2006:
Dr. Strangelove: still cause for worry

from 2007:
Microsoft says FOSS infringes 235 patents, up from 228 in 2004
, which included the text

** Fortune brings up the now over-used mutually assured destruction (MAD) symbolism:

It's a cold war, and what keeps the peace is the threat of mutually assured destruction: patent Armageddon - an unending series of suits and countersuits that would hobble the industry and its customers. IPBiz wonders if they have any original writers at Fortune? **

from 2009:
"Mutually assured destruction" in patent litigation viewed as a porcupine fight

Any original writers at the Financial Times?

Playtex loses in re-exam of US 6,890,324

The PTAB decision in the appeal of re-exam 95/001,654 of the Playtex patent US 6,890,324 was mixed:

For the above reasons, we REVERSE the Examiner's decision to
reject claims 14, 15, and 17 as anticipated by Paul; claim 16 as unpatentable
over Paul and Dohzono; and claim 36 under 35 U.S.C. §305 as enlarging the scope of the claims being reexamined. Further, we AFFIRM the Examiner's decision to reject claims 29 under 35 U.S.C. §305; claims 1-15, 17-27, 30- 32, 34, and 37 as unpatentable over Lichstein and Paul; and claims 14, 16, 29, and 36 as unpatentable over Lichstein, Paul, and Dohzono.

Claim 14 of US '324 recited:

A tampon applicator comprising:

a barrel for housing [adapted to house] a pledget therein
and for receiving [to receive] a plunger therein, said barrel having a central body for housing said pledget and a fingergrip area for [adapted to] partially housing [house] and engaging [engage] said plunger, said fingergrip area having at least one convex gripping surface, said at least one convex gripping surface having at least one gripping structure other than a plurality of ribs or treads,
wherein said fingergrip area has a [reduced diameter relative to said barrel] first diameter at said central body and a second diameter at an end that engages said plunger, said second diameter being smaller than said first diameter, said fingergrip area tapering in a single direction from said first diameter to said second diameter,
wherein said at least one convex gripping surface and said at least one gripping structure provide gripping ability to overcome ejection forces applied to said barrel by said pledget and/or said plunger.

PTAB determined that claim 14 was not anticipated but was obvious, and thus invalid.

Ex parte Potekhin: appellants win on 112 written description and obviousness but lose on 101

Ex parte Potekhin cites Vas-Cath on written description.

No prima facie case of anticipation in Ex parte Ryan

The appellants won reversal in Ex parte Ryan

We agree with Appellants that the Examiner has not set forth a prima facie case of anticipation. “It is well settled that a claim is anticipated if each and every limitation is found either expressly or inherently in a single prior art reference.” Celeritas Techs. Ltd. v. Rockwell Int’l Corp., 150 F.3d 1354, 1361 (Fed. Cir. 1998). Here, claim 1 requires a stent structure comprising upper and lower flange portions that are each attached at first and second ends to the tubular body portion and comprise a generally U-shaped or a generally V-shaped structure. Yet, the Examiner has not explained how the asserted flange portion of Revuelta has a generally V- shaped structure or a generally U-shaped structure.
Thus, we reverse the rejection of independent claim 1 and dependent claims 6-9 and 13-17 as being anticipated by Revuelta.

Rejection under 102(e) reversed.

Sunday, January 12, 2014

"60 Minutes" does Alex Rodriguez/Anthony Bosch on 12 January 2014

Scott Pelley interviews Anthony Bosch (Biogenesis); "The Case of Alex Rodriguez."

On gummies/troches:

"How could he?" I felt I had a responsibility: do it the right way. Let me show you how to this. Let's do it the right way.

If you hadn't been caught, you would still be doing it.

Blackberry BBM text message.

Gummie at 10:45am?

Code words were used:

Cojete = injectible drug
night cream

Pelley: did you think about the integrity of the game? Bosch: this is part of baseball. Fair play if everybody is on it?

Rodriguez: evidence false and unreliable. Scandal first broke in 2013. Miami New-Times.
Seelig: a battle to save the game. Seelig: I have never seen anything like it. The penalty fit the evidence.
The things he did to impede our investigation. 211 games was a very fair penalty.

Friday, January 10, 2014

Judge Ronald M. Whyte affirmed by CAFC in Nazomi case

Nazomi loses in Nazomi v. Nokia.

Contrary to Nazomi, there is nothing unusual or improper in
construing device claims to require particular functionality.
See, e.g., Typhoon Touch Techs., Inc. v. Dell, Inc. ,
659 F.3d 1376, 1381 (Fed. Cir. 2011); K-2 Corp. v. Salomon S.A.,
191 F.3d 1356, 1363 (Fed. Cir. 1999).

The cases on which Nazomi relies do not support its position.
For example, in Intel Corporation v. U.S. Inter-national Trade Commission
, the claims only required “programmable selection means,”
and the accused product infringed because it could be programmed to
perform the infringing use. 946 F.2d 821, 832(Fed.Cir. 1991) .

Vesicles in Prochlorococcus?

Published Jan. 10, 2014, in the journal Science:

Many heterotrophic bacteria are known to release extracellular vesicles, facilitating interactions between cells and their environment from a distance. Vesicle production has not been described in photoautotrophs, however, and the prevalence and characteristics of vesicles in natural ecosystems is unknown. Here, we report that cultures of Prochlorococcus, a numerically dominant marine cyanobacterium, continuously release lipid vesicles containing proteins, DNA, and RNA. We also show that vesicles carrying DNA from diverse bacteria are abundant in coastal and open-ocean seawater samples. Prochlorococcus vesicles can support the growth of heterotrophic bacterial cultures, which implicates these structures in marine carbon flux. The ability of vesicles to deliver diverse compounds in discrete packages adds another layer of complexity to the flow of information, energy, and biomolecules in marine microbial communities.


by S. J. Biller, et al., Science 10 January 2014:
Vol. 343 no. 6167 pp. 183-186

In Ex parte FITZPATRICK appellant loses on anticipation, wins on obviousness


In a non-precedential decision, our reviewing court reminded us of the 2 applicability of the precedential In re Gulack, 703 F.2d 1381 (Fed. Cir. 3 1983), In re Bernhart, 417 F.2d 1395 (CCPA 1969) and In re Lowry, 32 4 F.3d 1579 (Fed. Cir. 1994) decisions. We have held that patent applicants
5 cannot rely on printed matter to distinguish a claim unless “there exists [a] 6 new and unobvious functional relationship between the printed matter and 7 the substrate.” In re Lowry, 32 F.3d 1579, 1582 (Fed. Cir. 1994) (citing In 8 re Gulack, 703 F.2d 1381, 1386 (Fed.Cir.1983)

[T]he Board did not create a new “mental distinctions” rule in denying patentable weight . . . . On the contrary, the Board simply expressed the above-described functional relationship standard in an alternative formulation—consistent with our precedents—when it concluded that any given position label’s function . . . is a distinction “discernable only to the human mind.”. . . . see In re Lowry, 32 F.3d 1579, 1583 (Fed.Cir.1994) (describing printed matter as “useful and intelligible only to the human mind”) (quoting In re Bernhart,
417 F.2d 1395, 1399 (CCPA 1969)). In re Xiao, 2011-1195 WL 4821929, at *3-4 (Fed. Cir. 2011) (Non- precedential). Thus non-functional descriptive material, being useful and 21 intelligible only to the human mind, is given no patentable weight. “The rationale behind this line of cases is preventing the indefinite patenting of known products by the simple inclusion of novel, yet functionally unrelated limitations.” King Pharmaceuticals, Inc. v. Eon Labs, Inc., 616 F.3d 1267, 1279 (Fed Cir 2010). See also In re Ngai, 367 F.3d 1336, 1338 (Fed. Cir. 2004). (The relevant inquiry here is whether the additional instructional limitation has a “new and unobvious functional relationship” with the method, that is, whether the limitation in no way depends on the method,
and the method does not depend on the limitation).


The rejection of claims 1-4 under 35 U.S.C. § 102(b) as anticipated by Currans is proper.
The rejection of claim 56 under 35 U.S.C. § 103(a) as unpatentable over Currans and Franklin is improper.
The rejection of claim 57 under 35 U.S.C. § 103(a) as unpatentable over Currans, Franklin, and Rast is improper.

Appellant loses in Ex parte Pantalone

From with Ex parte Pantalone

Appellants contend “that instead of considering the claim as a whole,
the Examiner has dissected the [disputed] feature of claim 1 into discrete elements and evaluated the elements in isolation, which is expressly forbidden by the above-cited section of the M.P.E.P.”2 App. Br. 15. However, this argument relates to a petitionable matter and not to an appealable matter, because it relates to the manner in which examination has been conducted. See In re Schneider, 481 F.2d 1350, 1356-57 (CCPA 1973) and In re Mindick, 371 F.2d 892, 894 (CCPA 1967). See also MPEP § 1003 (“All unusual questions of practice may be referred to the Technology Center Directors”) and MPEP §§ 1002.02(c)(3) and 1201. Furthermore, we find that the Examiner has provided a sound rejection on the basis of the prior art references that makes obvious the present invention as claimed. Thus, we find that the Examiner has presented a prima facie case of obviousness based on the combination of Lazaridis and Lean and as such find Appellants’ arguments unpersuasive as to a piecemeal examination.

In return, PTAB noted

Nonobviousness cannot be established by attacking the references individually when the rejection is predicated upon a combination of prior art disclosures. See In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).

PTAB brings up KSR automaton in Ex parte Sabic

Within Ex parte Sabic , PTAB asserted that appellant reduced the man of ordinary skill to an automaton, counter to what KSR states.

Examiner reversed by PTAB in Ex parte Gadkaree

Although the rejections in Ex parte Gadkaree were for obviousness, the legal issue turned on inherency.

In re Robertson and In re Spada were cited.

Thursday, January 09, 2014

Mostly a loss for appellant in IPPISCH

from Ex parte IPPISCH

In re De Blauwe , 736 F.2d 699, 705 (Fed. Cir. 1984)
(Arguments and conclusions unsupported by factual evidence carry no
evidentiary weight.)

The outcome

we affirm the rejection of claims 19 and 38 under
35 U.S.C. § 103(a) as obvious over Donofrio, Deng, and Hartley. Pursuant
to 37 C.F.R. § 41.37(c)(1), we also affirm the rejection of claims 20, 23, 25,
26, 28-31, 33, 34, and 39-41 as these
claims were not argued separately.
We affirm the rejection of claims 24 and 32 under 35 U.S.C. § 103(a)
as obvious over Donofrio, Deng, Hartley, and Eggers.
We affirm the rejection of claim 27 under 35 U.S.C. § 103(a) as
obvious over Donofrio, Deng,
Hartley, and Konstorum.
We affirm the rejection of claim 35 under 35 U.S.C. § 103(a) as
obvious over Hara, Donofrio, and Deng.
We reverse the rejection of claims 36, 37, and 42 under 35 U.S.C. §
103(a) as obvious over Hara, Donofrio, and Deng.

Wednesday, January 08, 2014

CAFC in Pacific Coast v. Malibu: the principles of prosecution history estoppel apply to design patents, but patent holder wins

In Pacific Coast Marine v. Malibu Boats, the CAFC found that prosecution estoppel applies to design patents and, in this case, that an exclusive license was an assignment.

Yes, Gorham v. White is cited, as is Festo, and Egyptian Goddess.

The disposition:

Pacific Coast Marine Windshields Limited (“Pacific Coast”) is the assignee of all rights in U.S. Patent No. D555,070 (“the ’070 patent”) for an ornamental boat windshield design. Pacific Coast brought suit against Malibu Boats, LLC, Marine Hardware, Inc., Tressmark, Inc., MH Windows, LLC, and John F. Pugh (collectively “Malibu Boats”) in the Middle District of Florida, alleging infringement. The district court granted Malibu Boats’ motion for summary judgment of non-infringement, finding that prosecution history estoppel barred the infringement claim. Pacific Coast appeals. We hold that the principles of prosecution history estoppel apply to design patents, but reverse the district court’s summary judgment of non-infringement because the accused in- fringing design was not within the scope of the subject matter surrendered during prosecution, and remand for further proceedings.

Of note for this case

Although treatises2 and district court decisions going back to 18893 have recognized that the concept of prosecu- tion history estoppel applies to design patents as well as utility patents, this issue is one of first impression for our court.

The accused product did not fall within the scope of surrendered material:

The final question is whether the accused design is within the scope of the surrender. Prosecution history estoppel only bars an infringement claim if the accused design fell within the scope of the surrendered subject matter. See Wang Labs., Inc. v. Mitsubishi Elecs. Am., Inc., 103 F.3d 1571, 1578 (Fed. Cir. 1997) (“Once prosecution history estoppel limits the scope of a patent, the patentee may not recover for infringement where infringement would require an equivalence between a claim element and an aspect of the accused item that falls within the estoppel.”). Determining the reach of prosecu- tion history estoppel thus “requires an examination of the subject matter surrendered by the narrowing amend- ment.” Festo, 535 U.S. at 737.


Claiming different designs does not necessarily suggest that the territory between those designs is also claimed. As the defendant conceded during oral argu- ment, the record does not show that the submitted figures claimed “a design . . . that has zero to four holes.” Oral argument at 32:01-32:10, available at 13-1199.mp3. The applicant surrendered the claimed design with two holes on the windshield corner post, but neither submitted nor surrendered any three-hole design. The record only reflects the surrender of the two-hole embodiment.

As to colorable imitation:

We note that the defendant here did not argue that the scope of the surrendered two-hole embodiment ex- tended to the three-hole embodiment because the three- hole embodiment was not colorably different from the two-hole embodiment. At oral argument, the defendant disclaimed the theory that the three-hole design was a colorable imitation of the surrendered two-hole embodi- ment. Under these circumstances, we need not decide whether the scope of the surrender is measured by the colorable imitation standard. Since the patentee here does not argue that the accused design was within the scope of the surrendered two-hole embodiment, no presumption of prosecution history estoppel could arise.

Inter partes Reexamination 95/001,567 concerning US 7,376,388

Inter partes Reexamination 95/001,567

As to enablement

Patent Owner’s arguments regarding the alleged non- enablement of van Zoest regarding delivering live video are unavailing not only because they are inapposite to the Examiner’s basis for declining to reject the claims based on van Zoest’s perceived deficiencies as noted above, but it is well settled that published subject matter is prior art for all that it teaches in obviousness determinations—even if the reference itself is not enabling. See In re Antor Media Corp., 689 F.3d 1282, 1292 (Fed. Cir. 2012) (citing Symbol Techs. Inc. v. Opticon Inc., 935 F.2d 1569, 1578 (Fed. Cir. 1991)).


Under § 103, the Examiner erred by not rejecting claims 5-7 and 15 as
obvious over (1) Verna alone, or, alternatively, (2) Verna and van Zoest. Because our decision is dispositive regarding patentability of all
claims on appeal based on these references, we need not reach the propriety of the Examiner’s decision not to adopt the other proposed cumulative rejections of those claims on a different basis. Cf. In re Gleave, 560 F.3d 1331, 1338 (Fed. Cir. 2009).

Appellant loses in Ex parte Nicol

Ex parte Nicol

The Examiner looks to a reference for all that it teaches and does not limit a reference to its preferred embodiments. Beckman Instruments, Inc. v. LKB Produkter AB, 892 F.2d 1547, 1551 (Fed. Cir. 1989). Thus, we are persuaded that, as found by the Examiner, Goldberg teaches or suggests a receive only mode in which the receiver and signal processing circuits are powered on, as well as a transmit only mode in which the receiver is powered off, but the signal processing circuits may remain powered, as recited in claim 1.

As to obviousness

Although Goldberg does not mention that components of the communications circuit are powered or are not powered independently of the receiver, Willey teaches that a mobile station “can take many steps to conserve power, including, but not limited to one or more of” turning off/removing power from a radio receiver or turning off/removing power from associated hardware. Ans. 7-12; see Willey, col. 4, l. 45-col. 5, l. 4. As the U.S. Supreme Court has explained, “[w]hen there is a design need . . . to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 421 (2007) (emphasis added).

Appellant wins on obviousness in Ex parte Frazer; Unigene v. Apotex cited

From Ex parte FRAZER

As to obviousness:

Obviousness requires more than a mere showing that the prior art includes separate references covering each separate limitation in a claim under examination. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418, 127 S.Ct. 1727, 167 L.Ed.2d 705 (2007). Rather, obviousness requires the additional showing that a person of ordinary skill at the time of the invention would have selected and combined those prior art elements in the normal course of research and development to yield the claimed invention. Id. at 421, 127 S.Ct. 1727.
Unigene Laboratories, Inc. v. Apotex, Inc., 655 F.3d 1352, 1360 (Fed. Cir. 2011).

Examiner failed to establish an evidentiary basis on this record to support a conclusion that Schiller or the combination of MacInnes and Dietrich makes up for the foregoing deficiencies in the combination of Tobery, Hinkula, and Delogu (see FF 4-5; App. Br. 20 (“Examiner proposes to apply to Schiller the teachings of Tobery [] in order to achieve what is achieved in Schiller alone”);

Result: The preponderance of evidence relied upon by Examiner fails to
support a conclusion of obviousness.

Tuesday, January 07, 2014

Ex parte Gross on the use of and/or in claims

Intervenor Motorola loses on motion at CAFC in Microsoft v. ITC

The issue in Microsoft v. ITC : Motorola contends that the dispute over the ’133 patent is moot because (as Microsoft and Motorola agree) the patent expired on December 13, 2013, and that mootness automatically requires the requested partial dismissal and vacatur.

First, we conclude that the case is not moot: there remains a live controversy. As Motorola explained in its Statement of Related Cases, Br. for Intervenor Motorola Mobility at ix, there is a pending case in the Western District of Washington in which Microsoft alleges in- fringement of the ’133 patent by Motorola and seeks damages. Microsoft Corp. v. Motorola, Inc., Case No. 2:10-CV-01577-RSM (W.D. Wash. filed Oct. 1, 2010). With the agreement of the parties, the district court stayed that case pending resolution of the Commission proceeding here, precisely because it “involves the same issues involved in the proceeding before the Commission.” 28 U.S.C. § 1659. Our ruling on the ’133 patent has a concrete legal effect on the Microsoft-Motorola dispute over the same issues in the pending Washington litiga- tion. Powertech Tech. Inc. v. Tessera, Inc., 660 F.3d 1301, 1308 (Fed. Cir. 2011) (this court’s rulings in cases coming from the Commission have precedential effect on the parties in related litigation).


It does not matter for the constitutional sufficiency of this controversy whether the present proceeding produces a judgment granting monetary, conduct-ordering, or other coercive relief, whether within this court or on remand to the Commission. Such relief is not a constitutional re- quirement, as has been established since the Supreme Court approved of declaratory-judgment actions concern- ing the interpretation of insurance policies or clarification of other legal rights. See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126-27 (2007); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 264 (1937); 10B C. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2757 (3d ed. 2013). Here, there are concrete collateral conse- quences of our decision—beyond the relief available in this proceeding. It would “strain the concepts of moot- ness” to deem the ’133 patent issues moot when they are presented in a pending parallel case between two of the parties disputing them here. Bank of Marin v. England, 385 U.S. 99, 100-01 (1966) (collateral consequence for other litigation kept controversy alive); see Minnesota Mining & Mfg. Co. v. Barr Labs, Inc., 289 F.3d 775, 780- 81 (Fed. Cir. 2002) (no mootness if collateral consequences are not unduly conjectural).


Second, even if the present case were moot as to the ’133 patent, vacatur would not be warranted. Motorola’s sole argument is that vacatur of an already-rendered decision is automatic upon finding mootness. But the Supreme Court’s decision in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994), confirms that, contrary to Motorola’s position, what action to take regarding an issued decision is not automatically deter- mined by mootness, but is a matter of equitable discretion (to be exercised, like all discretion, within governing legal constraints, see Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005)).
In U.S. Bancorp, the Court held that, upon mootness, an Article III court may not decide the merits of the case, 513 U.S. at 20-22, but that it is a matter of discretion, governed by equitable principles, whether an Article III reviewing court should vacate the judgment of a reviewed court and order dismissal, id. at 21-25. The Court then held that the reviewing court should not do so merely because mootness results from a settlement that calls for vacatur. Id. at 29. The Court indicated, too, that a dis- trict court may consider whether to vacate its own judg- ment under Fed. R. Civ. P. 60(b). U.S. Bancorp, 513 U.S. at 29.
The Court’s holding and analysis effectively establish that mootness does not automatically require vacatur of a previously made decision, which, instead, is a matter of reasoned discretion. (...)

In addition, the great weight of authority, through holdings or analysis, supports not only (a) treating the question of what a court should do when mootness arises after decision as subject to equitable and pragmatic considerations, but (b) refusing to disturb a decision when an issue becomes moot only after denial of rehearing on a controversy-specific issue that is not within the normal standards for Supreme Court review, so that no further decision is needed, available as of right, or likely. See Finberg v. Sullivan, 658 F.2d 93, 96 n.4 (3d Cir. 1983) (en banc); Humphreys v. Drug Enforcement Admin., 105 F.3d 112, 114-16 (3d Cir. 1996); Bastien v. Office of Sen. Ben Nighthorse Campbell, 409 F.3d 1234, 1235-36 (10th Cir. 2005); In re Grand Jury Investigation, 399 F.3d 527, 529 n.1 (2d Cir. 2005); United States v. Payton, 593 F.3d 881, 883-85 (9th Cir. 2010); see also TiVo Inc. v. Echostar Corp., 429 F. App’x 975 (Fed. Cir. 2011) (en banc) (non- precedential order). That authority supports denial of Motorola’s motion here: Motorola does not deny that the matter was a live controversy when this court decided it; nothing remained upon denial of rehearing but the minis- terial act of issuance of the mandate by the clerk’s office; the ’133 patent issues are far from being certworthy, so that there is neither entitlement to nor a substantial chance of further review that disturbs the patent-specific merits rulings; and the fully considered decision matters for party-specific collateral litigation, as indicated by Motorola’s course of conduct in seeking to alter the ruling on rehearing (without suggesting mootness) and in seek- ing the present vacatur. In these circumstances, we would find vacatur unwarranted even if the dispute were moot. Compare In re Pattullo, 271 F.3d 898 (9th Cir. 2001) (vacating where event determined to moot case occurred before appellate decision was rendered); Clarke v. United States, 915 F.2d 699, 712 (D.C. Cir. 1990) (vacating where dispute became moot while rehearing was pending); In re Ghandtchi, 705 F.2d 1315 (11th Cir. 1983) (vacating where case became moot while time to seek rehearing remained); United States v. Caraway, 483 F.2d 215 (5th Cir. 1973) (same).
Two final points. We see no need to dismiss the ap- peal in part. As explained, we do not think that the dispute is moot even now. Even if it were, we would not vacate the decision for the reasons given; and Motorola has not explained how dismissal alone matters or why it is required where vacatur is not. In addition, even with- out this Order, but certainly with it, the Commission is not compelled to take action that the post-decision expira- tion of the patent now makes unlawful. See, e.g., Tronzo v. Biomet, Inc., 236 F.3d 1342, 1349 (Fed. Cir. 2001).

Judge Prost, concurs:

However, I agree with the majority that whether we should dismiss the appeal or vacate our ruling is a discre- tionary matter, and I would deny Motorola’s motion on that basis. In addition to the reasons provided by the majority, I believe that the existence of the Washington case weighs strongly in favor of exercising our discretion not to vacate our opinion, as the parties would be required to “start all over again” with respect to the disputes already resolved therein. Bank of Marin v. England, 385 U.S. 99, 100-01 (1966).

Followup on "The Cleantech Crash"

Dana Hull commented on the Stahl piece "The Cleantech Crash:"

The piece was puzzling for several reasons.

First, there was absolutely no mention of climate change. None. That’s the whole point of cleantech, after all: using the promise of technology and innovation to try to wean our economy off of fossil fuels.

It’s unclear why this piece aired now: what, exactly, is the news hook?

And it seems to confuse the federal support for clean technology that arose from the stimulus funding with the bets that venture capitalists in Silicon Valley have made on the sector, as Katie Fehrenbacher astutely notes at GigaOm.

Hull alluded to Bloom Energy:

Since Stahl spent so much time on Bloom Energy four years ago, why not check in on them? IPBiz notes that Bloom uses solid oxide fuel cells which are typically fed with natural gas, a fossil fuel. Thus, no weaning off fossil fuels. Fuel cells are more efficient than combustion, but still make CO2 and H20 as products. There was recently an installation of the Bloom technology at a building in Fukuoka, Japan owned by Softbank.

Of Jonathan Silver and DoE, BiofuelsDigest wrote in May 2011:

Silver’s unit had offered $4.8 billion in solar energy loan guarantees and conditional commitments in the month prior to the notices, but during the life of the program had not closed a single loan guarantee for biofuels – though the Diamond Green renewable diesel project had received a $241 million conditional commitment in the past six months.

Of the relation to KiOR, note the post KiOR IPO and DOE money.

Greg Pollowitz questions whether Ivanpah is a DoE success story.

Ted Bauer broke the "60 Minutes" piece into three segments: the KiOR beginning, DoE funding with taxpayer money, and China buying things that had been funded with taxpayer money (e.g., A123)

The story focused on a couple of angles, as you can see in the video above — essentially, it started by talking about Kior, which seems to be able to turn wood chips into gasoline in 30 minutes (as opposed to the millions of years it would take gasoline to form naturally). The report made it all seem really simple, and that adoption of the technology has been slow. That’s not completely true, but more on that in a second. Then the piece shifted to talking about all the failures involved in clean tech as relates to taxpayer money — people essentially being paid to sit around and do nothing, etc. The bow on the narrative was strung with “OMG, China is coming in and buying all our tech on the cheap even though it was developed with U.S. taxpayer money!!!” Those were essentially the three acts.

As to "wood chips to gasoline," note that on January 7, 2014, KiOR obtained US Patent No. 8,623,634 titled Growing aquatic biomass, and producing biomass feedstock and biocrude therefrom. This is a bit different from taking already fixed carbon (wood chips), and begins to look more like the "green crude" of Sapphire Energy. More on biofuels from algae.

In a piece titled TOO LITTLE, TOO LATE: CBS'S 60 MINUTES TAKES APART GREEN TECH MOVEMENT , Breitbart included text about the interview portion with Steven Koonin and Pin Ni.

Sunday, January 05, 2014

"The Good Wife" does copyright in "Goliath and David" on 5 January 2014

One of the plotlines in the 5 January 2014 episode titled "Goliath and David" of "The Good Wife" involved copyright.

Will was on one side and Alicia was on the other in an intellectual property case. Alicia represented a band suing a TV show for copyright infringement of what was initially a rap song. The TV show owned derivative rights. Alicia argued the work of the band, although using the same lyrics, was transformative because it changed the beat and style, and thereby became a satire of rap.

Of the audio recording at issue, at a minute 23 seconds in the bass track, there is a sound of bowling balls hitting pins in the Swedish version, showing that the TV show took the band's video.

Alicia asserts that this is actual theft. Alicia: you got your hand caught in the cookie jar; I wouldn't suggest the cookie jar does not exist. Thus, the IP angle evaporated, and the case turned into simple theft of a tangible item. [Query: where was digital analysis, such as Shazam?]

A surprise cameo by Peter Bogdanovich as the father of the baby! But the second plotline took an unexpected turn, which will appear in the next episode, along with a Bruce Springsteen cut.

**In passing, from

As noted in Campbell v. Acuff-Rose Music, Inc, “The central purpose of this investigation is to see...whether the new work merely [supersedes] the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message; it asks, in other words, whether and to what extent the new work is transformative.” Consequently, copyright owners do not control transformative uses that result in the creation of transformative works. Anyone can lawfully undertake a transformative use of another’s copyright protected work even before the copyright expires. No permission is required from the copyright owner.