Sunday, August 31, 2014

Washington Times reports on Ruichuan IPR Funds: the deck may be stacked against American companies in China

A Washington Times post begins:

When the Chinese government announced in April it was establishing a government-controlled patent-operations fund in April, there were few people besides Asian trade analysts who gave the news much attention

The Chinese are investing big money in the patent fund:

The Beijing-backed effort, Ruichuan IPR Funds, was seeded with the equivalent of nearly $50 billion to assist in “the development and acquisition of core patents to boost market power and profitability of domestic companies.”

The post includes the text: "the deck may be stacked against American companies in China."

CBS Sunday Morning on August 31, 2014

Lee Cowan sits in for Charles Osgood. The cover story is by Martha Teichner. Forbes: best companies to work for. What workers really want. Second, Ather Hussein cameraman from Iraq. Third, Serena Altschul on Christopher Cross. Fourth, Mo Rocca om DC burning by British. Carter Evans on walk in a woods. Faith Salie.
Headlines: European leaders meeting in Brussels discuss Ukraine. Australia prime minister Tony Abbott said Australia will help in Iraq. Heart failure drug. Showboat is closing its doors after 27 years. Michael Sam was cut by St. Louis Rams. California shoppers can't have single use plastic bags. Weather: rain in northeast.

10 million unemployed Americans won't be going back to work on Tuesday. In June, Board of Market Basket dismissed Arthur T. Demulis. Workers protested. Is there a connection between workers feeling well-treated and the bottom line. Robert Levelling: trust creates "family like"/"team like" environment. John Mackey co-founder of Whole Foods.
Fortune started publishing list in 1998. Whole Foods employs 85,000. Employees themselves hire co-workers. Bonuses based on team performance. Louis Carp: store team leader (manager). Being ambassador in a store. "Drinking the KoolAid." According to Gallup survey, only 3 out of 10 workers are engaged. Robert Passan, CWO, of Radio Flyer. Radio Flyer is no. 13 on small company list. There are 64 employees. Little Red Rule: every time we touch people's lives they will feel great about Radio Flyer. Robert Levering. Arthur T. will buy out Arthur S.

Almanac. August 31, 1803. Start of Lewis and Clark's adventure with Lewis leaving Pittsburgh. Camp Wood near St. Louis. Fort Clatsop.

Carter Evans quoting John Muir. Muir Woods National Monument. Glen Plum, biologist. Videocamera on a pole. Bioblitz. 24 hour inventory of species living. Organized by National Geographic and National Park Service.

Mo Rocca. 4000 British soldiers laid siege to Washington, Dc. William Almon, White House curator. William Allen, historian. Corbcob columns of Senate vestibule. Steve Vogel noted slaves were fighting for British. George Coburn.

Reprise of 2002 Joan Rivers interview. A woman of a certain age. Arm candy for Strom Thurmond and the Pope.
You're not wise; it's just that the people who know how stupid you are, are dead.

"Starting Over." Iraqi immigrant who went to Lancaster, PA. KYW in Philadelphia phoned him after seeing Sunday Morning story. An American reality.

Steve Hartman in Spartanburg, SC on Danny (and Ryan (with Down's Syndrome)) Holcomb. Clemson has a program for people with disabilities. Two year program will teach job skills and how to live independently.

Christopher Cross. Ride like the Wind began as a jam.

Faith Salie on taking a holiday. Unplug and re-boot. Time to re-think American work ethic. US does not require paid vacation. Wokers in EU guaranteed 20 vacation days per year. Boldness is not bread and cubicles.

Pulse. What makes your job worthwhile? 52% said co-workers.

Anthony Mason on Tavi Gevinson. Oak Park, Illinois. I'm just a hoarder basically. This is our youth. Steppenwolf Theater. Vogue's Anna Wintur. Movie "Enough Said."

Next week. King of Boardwalk Empire, Steve Buscemi.

Moment of Nature. by Viking River Cruises. Beaver Lake near Buffalo, NY.

Saturday, August 30, 2014

CBS News covers new Novartis drug to address heart failure

CBS Nightly News on Saturday, August 30, 2014 led off with a story on the Novartis drug LCZ696 (a combination of valsartan ( Diovan ) and sacubitril to treat heart failure), which story, including comments by Jon LaPook, was quite favorable.

There was no mention of Diovan having gone off patent.

Reuters' coverage of the story ( New Novartis drug may upend heart failure treatment ) included:

The experimental treatment, known at LCZ696, cut the risk of both cardiovascular death and admissions to hospital by a fifth, boosting hopes for a product seen as a multibillion-dollar seller - thanks, in part, to its expected premium price.

“Given the survival advantage of LCZ696 over currently available drugs, once this drug becomes available, it would be difficult to understand why physicians would continue to use traditional (drugs) ... for the treatment of heart failure," said Milton Packer of the University of Texas.

Packer was joint-principal investigator on the study with John McMurray of the University of Glasgow, who called the result "astonishing".

The magnitude of the benefit was only disclosed on Saturday, August 30 at the annual meeting of the European Society of Cardiology (ESC) in Barcelona.

See the earlier IPBiz post The PARADIGM-HF study; a new use for valsartan?

"Media corporations exist to assemble audiences for profit, not to inform the public"

Within a post at Salon titled Fareed Zakaria’s real sins: Not plagiarism but neoliberal know-it-all-ism , one finds the text

Media corporations exist, after all, not to inform the public or help it deliberate but to assemble and re-assemble audiences for profit on any pretext, however sensationalist or degrading, that will assemble them. To keep your eyeballs glued, they’ve become expert at bypassing your brain and the heart on the way to your lower viscera and your wallet.

In context, "media corporations" here are things like -- Time, The Washington Post and CNN --.

And thus the media corporations might be turning a "blind eye" to the problems with Zakaria's work: Whenever he has passed off someone else’s work and authorial voice as his own, he has crossed a line that Time, the Post, and CNN shouldn’t be blurring as shamelessly as they’ve been doing.

However, the argument could be extended even to scientific journals.

From a talk given by LBE at SSI-11:

In my own experience, I came across one episode which illustrated the inability of the scientific
community to deal with each side of the coin. In a paper by D. L. Wertz and M. Bissell, Energy &
Fuels, 1994, 8, 613-617 on the diffraction of the graphene layer ["(002)"] peak in bituminous coals, the
authors stated that the diffraction peak was "far too intense to be caused by amorphous scattering and far
too broad to be caused by conventional diffraction." The authors cited three papers to justify this
assertion. Of three papers relied upon to prove the statement, which was the key assumption in the
paper, one was non-existent, one was irrelevant and one supported a contrary position. Following use of
the key assumption, the authors utilized an undefined short range interference function to manipulate the
x-ray diffraction data of the paper. The modified data led to a remarkable conclusion: that analysis of a
peak related to interference between aromatic entities (sp2 hybridized carbon) could predict the amount
of aliphatic carbon (sp3 hybridized carbon). Pertinent prior work on diffraction of "poorly crystalline"
carbonaceous systems with sp2 and sp3carbon was ignored.
I contacted the editor of the journal. Of the non-citation and mis-citation issues, nothing was
done, and in fact the mis-citation was repeated in a later paper. Of the issue of arguably bad science, the
key assumption was re-characterized as the existence of amorphous and crystalline phases in the coal.
For reference, the "crystalline" (002) peak in one coal had a full-width at half-maximum (fwhm) of 3.4°
(Cu) while the other coals had fwhm of 6-10°. Thus, the "crystalline" peak was in the range most people
would consider "poorly crystalline." For example, the fwhm (° 2θ Cu) of liquid 1,3 dimethyl adamantane is 2.75, of liquid hexadecane 5.00 and of liquid 1-methyl naphthalene 5.71. The undefined short range interference function was found to be empirical data on
carbon black, which was no where presented in the paper. Thus, no reader of the paper had the
information on the short range interference function to perform manipulations on the data of the paper,
or on any other system.
In analyzing the cites of this paper to other papers, and the cites of other papers in this journal, I
noticed that there was an interesting trend of papers in the journal to cite other papers in the same
journal. In less than five years of existence, articles in the journal cited more to other articles in the
journal than to articles in any other single journal, in spite of the existence of a comparable journal
(Fuel) which had been in existence for more than 50 years. The magazine of the American Chemical
Society "ACSess" (March 1997) noted that Energy & Fuels ranked #5 in impact factor in its area in the
1995 Journal Citation Reports published by the Institute for Scientific Information. Impact factor here is
the number of times a journal was cited in the scientific literature in a give year, divided by the number
of papers the journal published in the prior two years. Thus, an issue in analzying journal cites is one of
self-citation or channeling. For more details of the scientific and citation issues involved, see L. B.
Ebert, Petroleum Science & Technology, 1997, 15, 171-183.

Science journals, as the magazine Time, are a business. And the first order of business is to protect the business.
Even if that means turning a blind eye to the truth.

Recently, EFF criticized the USPTO for the issuance of the Hwang Woo Suk patent, US 8,647,872. What EFF did not mention was the publication in the journal Science of a paper involving the same fraudulent work, or of the publication in Science of the fraudulent work of Jan-Hendrik Schon. [See the IPBiz post EFF re-visits Hwang Woo Suk; perhaps an award for stupid comment of the month? ]

Returning to Zakaria matter, as to the one point of plagiarism, "unattributed copying" is plagiarism, no matter "who" identified it and no matter "why" it occurred. The "who" and the "why" may be newsworthy, but they are not defenses to plagiarism.

As one footnote, the compound -- 1,3 dimethyl adamantane-- identified above is a first cousin of the drug Namenda, referenced in a recent IPBiz post [ ]

As another footnote, it has been about a year since

Science journalism and truth...
September 10, 2013


The PARADIGM-HF study; a new use for valsartan?

What does a drug company, facing a patent expiration, do? One option is the forced switch [see IPBiz post:
CBS News on August 28 covers "forced switch" related to drug Namenda ] Another option is to find a new use. In the post 3 Questions That Remain After Novartis' Blockbuster Trial Result , Forbes talks about a new use for the now-patent expired valsartan (Diovan):

The release of PARADIGM-HF trial, with its stunning results for Novartis’ combination drug, is good news for patients with heart failure and their doctors. The trial was ended early because the combination drug, which included sacubitril (an experimental drug) and valsartan (a current therapy), demonstrated superiority over enalapril (another current therapy).

The first issue/question raised by Forbes:

Heart failure is primarily a condition that affects the elderly. In PARADIGM-HF the average age was 64 years old, considerably younger than the typical patient with heart failure. The study also excluded patients with decreased kidney function. This situation is not unlike what we have seen in other trials of heart failure, including those that are the foundation for what is now considered standard therapy.

The actual question:

What will we do to ensure that once the drug is approved, that the learning about it does not stop?

The third issue related to data analysis:

The published article states that the sponsor, Novartis, collected, managed, and analyzed the data. The article states that the analysis followed a pre-specified plan and that an independent academic statistician replicated the analyses. However, it is not clear whether that person had access to all the raw data and forms and to what extent the statistician could assess what was done by the company.

The Forbes post did not mention the previous heart attack issue; from wikipedia:

Whether angiotensin receptor blockers may or may not increase the risk of myocardial infarction (heart attack) was announced in BMJ[6] and was debated in 2006 in the medical journal of the American Heart Association.[7][8] To date[when?], there is no consensus on whether ARBs have a tendency to increase MI, but there is also no substantive evidence to indicate that ARBs are able to reduce MI.

Friday, August 29, 2014

EFF re-visits Hwang Woo Suk; perhaps an award for stupid comment of the month?

In an August 28, 2014 post, Magical Drug Wins EFF’s Stupid Patent of the Month
, EFF obliquely mentions the patent to Wang Woo Suk
from February 2014:

frankly, we wonder whether the examiner even read the application. In a similar case, the Patent Office issued a patent to an applicant whose work was widely known to be fraudulent. (The purported inventor had even spent time in jail for the fraud.) As Professor James Grimmelmann observed at the time: “The USPTO is an armory handing out legal howitzers on the honor system. What could possibly go wrong?”

Recall the IPBiz post
US 8,647,872, titled Human embryonic stem cell line prepared by nuclear transfer of a human somatic cell into an enucleated human oocyte
which included

The claim requires that the embryonic cell line be derived from the cell line deposited under accession number KCLRF-BP-00092. A cell line not so derived does not fall within the literal scope of claim 1.

As such, Grimmelmann's remark about howitzers is incredibly stupid in the context of US 8,647,872. If the work is fraudulent, it would be impossible to infringe the claims to a non-existent cell line.

[Grimmelmann is currently at the University of Maryland and holds a J.D. from Yale.]

See also the IPBiz post

Woo Suk Hwang revisited? Mouse Stem Cell Researcher Wakayama retraction of papers from 'Nature'

Patent litigator commits ethical breach; client suffers

The post In a patent case, a lawyer misleads a judge - and is rebuked describes
questionable actions by one Glenn A. Ballard Jr. who misrepresented facts to federal judge Keith Ellison.

The patents in question were to Tesco inventor Kevin J. Nikiforuk. The infringement defendants found a sales brochure of Tesco, prepared more than one year before application filing; Nikiforuk, examined the brochure and acknowledged it was his.

At this point, Ballard asked the judge for additional time.

As reported by Lisa Falkenberg:

He came back on Monday morning claiming his firm talked to two men who did the illustration of the tool for the marketing brochure and they assured him, "unequivocally," it was not the same tool at issue in the case. (...) "I think the issue has been put to bed," Ballard assured U.S. District Judge Keith Ellison, adding that both animators were prepared to swear to it in court. "… In fact, there is no doubt it's not Mr. Nikiforuk's invention."

At the time, Judge Ellison took Ballard at his word, as federal judges with heavy caseloads are sometimes forced to do. Trust is essential in a system that relies upon attorneys to produce evidence.

In fact, the judge decided this week that Ballard was lying to his face.

Ellison, known as a fair, mild-mannered jurist, imposed the so-called "death penalty" of the civil court system on Tesco and counsel. He dismissed the now-6-year-old case with prejudice, meaning it can't be refiled. And he opened the door for awarding attorney fees for the other side, which could total several million.

In his order, Ellison takes the company to task as well, writing that Tesco's misrepresentations "irrevocably poisoned these proceedings" and amount to "an abuse of the judicial system."

Patents involving Nikiforuk:




Cattle feed as a "new" application for algae?

BiofuelsDigest has a post on August 28 Algae to be used for cattle feed in Australia which begins

In Australia, algae may have a new application: cattle feed. Research sponsored by Meat and Livestock Australia and conducted by the University of Queensland was unveiled last week, debuting an on-farm algae growing prototype in Queensland.

How "new" this application may be is open to question.

Contemplate text in US 3,951,805 (issued in 1976): The ultimate aim is primarily to remove the algae and the fibrous material as an entity from the machine and to utilize the removed materials as an entity for cattle feed. The inventor Joseph Dodd was from Werribee, Victoria 3030, Australia .

More recently, contemplate the work of a company once known as PetroAlgae; from Biodiesel Magazine in 2012:

Melbourne, Fla.-based PetroAlgae Inc. has changed its name to Parabel Inc. According to information released by the company, the new name better reflects its strategic changes and commercial milestones.

“In the past year, the company has significantly accelerated its commercialization as a result of key strategic changes,” said Anthony Tiarks, CEO of Parabel. “We have developed a scalable and flexible customer licensee model, and our technology is now being implemented at pilot scale around the world. Our priority is to facilitate the commercial-scale production of animal feed and potentially human food ingredients, using nongenetically modified and nonalgae microcrops. We believe it is the right time for these important developments and achievements to be given expression through a new name.”

Information issued by Parabel noted that its proprietary technology addresses global demand for new sources of feed, food and fuel. According to the company, its open-pond bioreactor technology enables customer licensees to grow, harvest, and process locally available, aquatic microcrops. Biorefining Magazine’s prior coverage of the company notes that the Parabel’s technology is used to cultivate microcrops from the Lemnaceae family, including duckweed.

Along this line note US Patent 8,679,352 (priority to US provisional patent application 61/314,736, filed on Mar. 17, 2010 ) :

Dried duckweed can be a good cattle feed. It can contain 25-45% protein (depending on the growth conditions), 4.4% fat, and 8-10% fiber, measured by dry weight.

Contemplate also text from US Patent 8,343,753 : For example, in some embodiments, when used as animal feed (e.g., cattle feed, dairy feed, aqua feed, poultry feed), the one or more PUFAs produced by the microalgae can be incorporated into the flesh or other products of animals including, but not limited to, livestock, poultry, cattle, and fish. The PUFAs also can be used for pharmaceutical or nutritional purposes and industrial applications.

And then there is US Patent 8,747,916, titled Selecting, producing, and feeding whole algae as a feed supplement for cattle and bison to produce meat high in omega 3's for human health which includes the text

It is an object of the present invention to provide a new and improved method and system to create and use an algae based food supplement for but not limited to beef cattle.

**Sadly, the entry on the August 28 post on BiofuelsDigest contains the following oxymoronic text:

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Thursday, August 28, 2014

CBS News on August 28 covers "forced switch" related to drug Namenda

Namenda ( memantine; 3,5-dimethyladamantan-1-amine. an adamantane derivative ) is a drug marketed by Forest for the treatment of Alzheimers. CBS network news on August 28, 2014 did a story on a "forced switch" created by Forest, making patients who were using the previous formulation change over to Namenda XR, by stopping production of the previous drug. Jon LaPook presented the story, which suggested that the motivation was the continued patent coverage on Namenda XR.

Forest had made an announcement on February 14, 2014: Forest Laboratories, Inc. (NYSE:FRX), a leading, fully integrated, specialty pharmaceutical company largely focused on the United States market, today announced that it plans to discontinue the sale of NAMENDA® (memantine HCl) 5 mg and 10 mg tablets effective August 15, 2014. Forest has notified the U.S. Food and Drug Administration of this decision. The oral solution of NAMENDA and once-daily NAMENDA XR® (memantine HCl) extended-release capsules will continue to be available. Both NAMENDA and NAMENDA XR are indicated for the treatment of moderate to severe Alzheimer’s disease.

Six years ago, LaPook did a story on the promise of Namenda. New Alzheimer's Drug Shows Promise

It was of interest to note that commercials on CBS following the story included for Levemor (Novo Nordisk) and for Brisdelle (Noven, low dose paroxetine).

From the CBS story:

Fifty-four-year-old Michael Hitch of Maryville, Tennessee, has early onset dementia and says he is helped by an Alzheimer's medication called Namenda. The drug is due to go generic next year.

But Forest Laboratories, the company that makes Namenda, plans to stop the sale of the version that Hitch takes at least six months before a less expensive, generic product could become available.


The purpose of a forced switch is "to get patients over to this new product as fast as possible," said David Maris, a stock analyst with BMO Capital Markets who covers pharmaceuticals. Thus, when the patent ends on the old product, "patients are already on the new product and there's no existing product left."

"All of a sudden you don't have that cliff, you don't have a drop off in sales like you would otherwise," Maris said.

Wednesday, August 27, 2014

Hot peppers deterring insects but encouraging anti-patent crowd-funding?

In an article in "Intellectual Property Today" in June 2003 titled "Good Night Gracie," LBE noted

On May 12, [2003] the New York Times discussed U.S. 6,523,298, n16 which claims the use of hot pepper extract (capsicum) in water solution to kill ants and termites. Jim Johnson of Seedman of Gautier, Mississippi has been selling powder from capsicum annum for dilution in water to kill insects for about ten years. n17

Endnote 16: Figure 1 of the '298 patent has an error in chemical formula similar to the methylene tribromide error of the Schon/Lucent patent applications. The principal active ingredient of hot peppers is capsaicin (trans-8-methyl-N-vanillyl-noneamidc, C18H27NO3, CAS 404-86-4), which is practically insoluble in cold water. With a side chain comprising 10 carbons, capsaicin is soluble in organics, and a "hot pepper wax" is commercially marketed for use on insects (e.g., Bonide Products; Jerry Baker; separately NIT/NouGuard). Also, capsaicin is a topic of current interest in the medical literature: E. Prescott, Science, 2003, 300, 1284; "Spicing Up Medicine," Science, 2003, 299, 1289; H. Rashid, et al., J. Pharmacology Exp. Therapeutics, 2003, 304, 940

Endnote 17: On his website, Jim teaches using 4 tablespoons of pepper powder, 1 tablespoon of dishwashing detergent with one gallon of water, steeping overnight, straining and spraying on insects. The Pacific Northwest District of the American Rose Society also notes that hot pepper sprays are insecticides and there has been experimental research on extract of capsicum frutescens as a natural insecticide in Natal, Botswana and Zambia and traditional uses in Zimbabwe, Kenya, and Uganda. Separately, there is a report that Grady Glen, of Texas A&M, used Habaneros on wood to deter termites.

IPKat has a post in August 2014: "Cultivated capsicums!" Peppers resist insect, breeders resist patent

which includes the text

This Kat has received information concerning the publication in a national Dutch newspaper of a double page item calling for crowd-funding of opposition proceedings against a European patent. The patent in question, granted last year to Syngenta, relates to EP2140023 relating to insect-repellent pepper plants.

Separately, Endnote 11 of "Good Night Gracie" includes the text:

John P. Walsh and Wei Hong, "Secrecy is increasing in step with competition," Nature, 2003, 422, 801-802. In a cross-section of biologists, mathematicians, and physicists, the authors noted that willingness to talk about research had gone from 50% in 1966 to 26% in 1998. One notes that the Rosalind Franklin/DNA episode had already occurred by 1966. The authors suggested that focus on commercialization [of academic work] as the cause of secrecy is misplaced. While I would agree that informal industry/academic collaborations actually foster greater openness, I would suggest that industrially-sponsored academic programs do enhance secrecy, although the data indicate separately that there is already a high baseline of secrecy created by intra-academic competition. See L. B. Ebert, Implicitly Zurko, Intellectual Property Today, p. 22, July 1999. As one footnote, note that the pivotal "research exemption" case of Madey v. Duke University, 307 F.3d 1351 (CAFC 2002), arose from intra-academic competition and disagreement, although the legal decision may impact industrial/academic interaction. See also, Rebecca Eisenberg, "Patent Swords and Shields," Science, 2003, 299, 1018 ["As universities have become increasingly aggressive as patent owners, they have compromised their claim to disinterested stewardship of knowledge in the public interest."] and John P. Walsh, Wesley M. Cohen and A. Arora, "Working through the Patent Problem," Science, 2003, 299, 1021. Separately, note that Genentech sued Columbia University in April 2003. See Paul Elias, AP, Suit Against Columbia University Highlights Issues of University Patents, April 28, 2003. Separately, note the issues with the Ponikau/Mayo patents such as US 6,207,703 as discussed in Peter Landau, Critics Turn Up Noses at Mayo's patent for inflamed sinus cure, Wall St. Journal, May 1, 2003.

Recall an argument made more than 50 years earlier, as discussed by IPBiz:

In that 1945 period, physicist Philip Morrison noted that the desire to patent results would spread from industrial labs to the universities and destroy the traditional free cooperation of science, an argument re-cycled into the 21st century.

Citing "Good Night Gracie" is

Nitrogen-starvation of algae to produce more lipids

A post in Inhabitat titled 14-Year-Old's Biofuel Breakthrough Boosts Algae Production 500% includes the text

“The purpose of this experiment is to explore the possibility of naturally depleting the nitrogen of algae’s media to boost its lipid yields,” said Gregory. “This is an improvement of the normal methods that involve harvesting the algae and physically transferring it into a nitrogen depleted environment. With my technique it should be possible to bypass the transferring step and grow the culture in a single media. This reduces the labor and material costs of growing algae for its lipid.”

Natural nitrogen depletion is a process where nitrogen is depleted naturally through the algae’s consumption. This method allows the algae to stay in one media while consuming the nitrogen, eventually depleting it. This process is an improvement over normal methods because it improves lipid content – and thus the amount of biofuel that can be produced. These higher lipid yields are expected because nitrogen depletion has already been proven to increase the lipid in algae – and this is an improved way of doing it.

As noted in the text, the idea that depletion of nitrogen nutrients causes an increase in lipid content is known.

For example, from K.K. Sharma, High Lipid Induction in Microalgae for Biodiesel Production, Energies 2012, 5, 1532-1553; :

Nitrogen is the single most critical nutrient affecting lipid metabolism in algae. A general trend
towards accumulation of lipids, particularly TAG, in response to nitrogen deficiency has been
observed in numerous species or strains of various microalgae [24–26]. Hu et al. [27] conducted a
study on nitrogen stress responses of several green microalgae, diatoms and cyanobacteria and all
tested species showed a significant rise in lipid production. A detailed and large-scale model of lipid induction by nutrient starvation (nitrogen, phosphorus) on several diatoms, green algae, red algae, prymnesiophytes and eustimatophytes is presented in a study carried out by Rodolfi et al. [28].

A problem is that nitrogen starvation can lead to the production of less biomass; from published US patent application 20120322157 (to Sapphire):

[0006] Much research has been conducted over the last few decades regarding using microalgae as an alternative and renewable source of lipid-rich biomass feedstock for bio fuels. Microalgae are an attractive model in that they are capable of producing substantial amounts of lipids such as TAGs and DAGs under stress conditions, such as nitrogen starvation. However, a decrease in growth of the microalgae under nitrogen starvation makes it harder to use microalgae in the large scale production of biofuels.

Bryan Willson noted in US 20080160591 :

In other cases, the algae may be subjected to environmental stress conditions designed to enhance lipid production, such as nitrogen starvation or other nutrient deficient conditions. The amount of nitrogen in depleted media may vary from 0 to 75% of the normal amount, depending on the medium used and the type of algae to be stressed.

As to amounts, from US 20140162330 :

[0003] Under optimal growth conditions, diatoms and other microalgae synthesize fatty acids primarily for esterification into glycerol-based membrane lipids, which constitute about 5-20% of their dry cell weight. However, under unfavorable environmental conditions, such as during nitrogen deprivation, many algae shift their lipid profile towards the formation and accumulation of neutral lipids, principally in the form of triacylglycerol. Under such unfavorable growth conditions, the total lipid composition of certain microalgae can increase to above 50% of the algae's dry cell weight.

One issue is that the desired target is increasing total lipid produced (say per unit time and/or per surface area), not simply increasing lipid per biomass. Another issue is that the organic phase from the biomass (obtained for example through hydrothermal liquefaction) still contains nitrogen, which is undesirable for biofuels.

The intersection of anti-SLAPP and patent re-examination requests

Note the discussion of the Landmark Technologies/eBay matter at Techdirt in the post
Patent Troll Sues eBay For Daring To Ask Patent Office For Patent Re-Exam

Here, eBay is using a Texas anti-SLAPP statute to shield it from litigation from Landmark arising from eBay's re-examination request.

Note that IPBiz had covered an anti-SLAPP matter in Judge to hear anti-SLAPP arguments in Cha/Flamm matter on Nov. 20

CAFC in Ferring v. Watson: " but silence does not answer the question of infringement "

There was good news and bad news for Ferring in the case involving Watson concerning Lysteda® .
The good news: the claims were not obvious. The bad news: Watson did not infringe.

The determination of non-obviousness was direct.

In this case, the cited prior art references neither set
forth the limitations
required by the asserted claims, nor
provided any reason or motivation to combine those
teachings to derive the claimed formulations
with specific dissolution profiles. Accordingly, the asserted claims
have not been shown to be invalid under §103.

As to infringement, the filing of an ANDA alone does not mean that
a produced product infringes.

The [ANDA] filing only constituted a technical act of infringement for juri
sdictional purposes. J.A. 2192–93, 2248–56, 2316.
As we have explained, once jurisdiction is established,
the ultimate infringement inquiry provoked by such filing is
focused on a comparison of the asserted patent claims
against the product that is likely to be sold following
ANDA approval and determined by traditional patent law
principles. Warner - Lambert Co. v. Apotex Corp., 316 F.3d
1348, 1365 (Fed. Cir. 2003); Abbott Labs. v. TorPharm, Inc.
, 300 F.3d 1367, 1373 (Fed. Cir. 2002); Bristol - Myers
Squibb Co. v. Royce Labs., Inc. , 69 F.3d 1130, 1135 (Fed.
Cir. 1995)

Ferring relied on experimental outliers for infringement.

We accordingly do not agree
with Ferring or the district court
that reliance on such anomalies proves infringement by a
preponderance of the evidence in this case.

Link to case:

As to dependent claims:

Becton Dickinson & Co. v. C.R. Bard, Inc.
, 922 F.2d 792, 798 (Fed. Cir. 1990);
Wahpeton Canvas Co. v. Frontier, Inc., 870
F.2d 1546, 1552 n.9 (Fed. Cir. 1989) (“One who does not infringe an
independent claim cannot infringe a claim dependent (and
thus containing all the limitations of) that claim.”).

Planet Bingo is Alice'd by CAFC

Planet Bingo lost under 35 USC 101 both before and after Alice v. CLS, 134 S. Ct. 2347.
See Planet Bingo v. VKGS

In the case, no difference was found between method and system claims.

As a preliminary matter, we agree with the district
court that there is no meaningful distinction between the
method and system claims or between the independent
and dependent claims. See Planet Bingo, 961 F. Supp. 2d
at 854, 857.

As to "abstract ideas,"

Abstract ideas may still be patent-eligible if
they contain an “‘inventive concept’ sufficient to ‘
transform’ the claimed abstract idea into a patent-
eligible application .” Alice , 134 S. Ct. at 2357 (quoting
Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S.
Ct. 1289,1294,1298 (2012)).

Monday, August 25, 2014

Scientific American discusses the lithium batteries of Sakti3,

Within a post titled Secretive Company Claims Battery Breakthrough , one finds text about trade secrets:

Avestor used a polymer separator to replace the electrolyte in its batteries. We don’t know what Sakti3 is using—that’s a trade secret. The composition of the positive electrode also remains a secret; Sastry says it is nothing unusual—“a very well understood electrochemistry.” We do know that, like most of the promising post-lithium-ion battery chemistries identified so far, the Sakti3 battery has a metallic-lithium anode, or negative electrode.

But in the comments section, one has

Looks like they have substantial investment in patent protection. They seem to have plenty of resources. It would be interesting to know what level of vacuum is needed. Manufacturing under vacuum would reduce contamination. Since they are not resource limited, designing to manufacture in a vacuum chamber shouldn't be a deal breaker. Sounds like they might pull it off.

In fact, there are 24 published US applications including the word --Sakti3 --.

In US 20120058380 , there is discussion of an electrolyte material:

[0015] In a specific embodiment, the solid-state glassy electrolyte of this electrochemical cell device comprises amorphous lithiated oxynitride phosphorus with ionic conductivity ranging from 10.sup.-5 to 10.sup.-4 S/m. The ionic conductivity of glassy electrolyte can be tuned by the nitrogen concentration and evaporation process conditions. This glassy electrolyte material can be configured as an electrolyte overlying the cathode electrode material. This glassy electrolyte material is capable of shuttling lithium ions during a charge process and a discharge process, and is characterized with layer thickness between about 0.1 and about 1 micrometers.

US 20140072837 mentions ceramic separators:

[0031] The results of the invention are a solid state battery that has energy density above 300 Wh/L. Although this has been achieved using some battery systems that are designed with liquid or gel electrolytes, no solid state batteries with ceramic electrolytes have come close to achieving this level of energy density. Furthermore, the ceramic electrolytes and the design that is employed by Sakti3 eliminates the occurrence of lithium dendrites and other undesirable side reactions that occurs between the liquid or gel electrolyte and the battery materials in conventional wound lithium-ion batteries. Additionally, the solid ceramic electrolyte that is utilized in this invention also eliminates the occurrence of internal short circuits that are a major failure mechanism in lithium-ion battery cells that utilize a polymer separator.

[0054] The potential benefits of solid state batteries with ceramic separators have been discussed for over a decade, but to date few have truly commercialized this product. One challenge that plagued the commercialization of this product is the development of product design parameters with high levels of performance. Another challenge that has not been previously overcome is the development of a roll-to-roll production process that is required to make larger format-sized (greater than 1/ amp-hour) solid state batteries and winding them and packaging them in a format that can power products that require greater than a micro-amp of electrical current.

New York Times editorial encourages Congressman Issa to look into USPTO

In a piece by its editorial board titled Questions for the Patent Office , the New York Times concludes:

It’s important that Mr. Issa take a hard look at how the office is being managed.

Sunday, August 24, 2014

"Sunday Morning" on August 24, 2014: "by design" show

The opening is in Santa Fe, with a special edition from Charles Osgoode. Anthony Mason does the cover story. Living Large. Second, mobile homes. Third, Rita Braver interviews Venus Williams. Fourth, Serena Alschul on the mysteries of duck tape. Fifth, John Blackstone. Lee Cowan. Tracy Smith.
Don Daylor in the newsroom for headlines. 6.0 earthquake near American Canyon, near Napa, CA. Obama orders a review of programs on used military gear to police. On Staten Island, march about Eric Garner.
Israel pounds Gaza. Joshua Houston helps Chicago beat Las Vegas. Weather: hot and humid in west.

Luminous landscape in northern New Mexico. La Luz. In 1610, Santa Fe established. Oldest state capitol city in US. The Kline residence. Anthony Mason and Mark Strassman. Woolworth Skyscraper in NYC. to be made into 34 condos. Alchemy Properties. Tierre des Fon. Ultra luxury market is booming. Robert A. M. Stern. New York's Perry Street. Richard Meyeer architect. The Surf Club in Miami BEach. Price is $35 million. Number of billionaires is increasing. Competition for better units is fierce. Copper domed cupola of Woolworth will be five story penthouse.

Atocha Mobile Home Park owned by Eduardo Ramirez in Santa Fe. Trailer trash, but hardworking.
There are 8.5 million mobile homes in US. 97% of mobile homes never move again. Mike Bustamente is mobile home guy in Santa Fe. Jennifer Siegel innovator in mobile design. The future of what the trailer can become. Paradise Mobile Home in Malibu, CA. 7 figure prices. Homeowners rent land which can be $3000 per month. Sense of community in Paradise Cove. Marty King is a contractor.

Georgia O'Keefe art museum.

Lee Cowan on Ra Paulette. Man-made caves of art. Wilderness shrines. Tree of human kindness. Film: Cave Digger. Realtor: Tom Abrams, selling caves. "Magnum Opus" . linke:

Santa Fe's historic plaze; Osgood's tie made of duck tape. Serena Alschul. Prom clothers from 42 rolles of cuk tape. How to paint a pictue with duct tape. Duck brand duct tape from Avon, Ohio. Scott Summers. Move duct tape from hardware stores craft shops. Permicell Division of J&J: tape for coverning ammunition. Housing boom of 1950's: duct tape.

Maria Benitez and Joaquin Gallegos. Santa Fe Opera.

John Blackstone. Coaxing music from unlikely instruments. Emeryville. Johnnyrandom. Dorito crunch sound.

Martin DuBois, architect. Richard Schlesinger. Thatcher Wine on bookcover design. Custom design libraries. Juniper Books in Boulder, Colorado. Bespoke Libraries. Custom library for $750 per foot.
Used law books for "picture window" design. Don't want people to use them. Cool and practical.

Mo Rocca. There are no words. On Emoticons. Sept. 1982. Scott Fahlman at Carnegie Mellon. 19Sept1982. Imogees. Matt Weinberg; Vector Media Group in NYC. Custom Emoticons. A personal emoticon.

Tracy Smith on transportation. Nashville as source of skateboards. Salemtown board company.
Will Anderson makes skateboards. I am selling July in every month. $200 per board. Jacob Henley started company to teach discipline and dedication. It's a lot harder to teach. Not about shaping boards, but about shaping lives. Pride in good work. When you have a job you really like, it don't seem like a job. AND

Klein House in Santa Fe. Seth Doane goes to Bali. Houses of bamboo. Laura Hardy. Jewelry designer John Hardy. The Green School: think about impact on environment. Inspiring magical place. Ibuku brand. Peter Barge. Sharma Springs.

Rita Braver on Venus Williams. Jupiter, Florida studio.

Jeannie and Michael Klein. Allan Pizzi in Italy. Castille d'Brolio in Tuscany. In sight of Siena. Corned gunpowder. Dining room: family shows wealth and power. The "Iron Baron." Design of Chianti. 3 million bottles of Chianti per year. Colledila. From passiionatefoodie: stablished in 1141, it may be the oldest winery in Italy, the second oldest in the world. In 1141, the family of Barone Ricasoli was granted the Brolio Castle and it became a powerful stronghold for Florence, later helping defend the land against Siena

Mo Rocca on "treadmill desks." Joanna Coles: sitting is the new smoking. By the 1800s chairs were everywhere. Joanna does 2 miles per hour. Steelcase is largest maker of office furniture. LifeSpan.
Never go on it when you are drunk.

Next week: Christopher Cross.

Moment of nature. spiriva. Red rocks near Abiquiú, New Mexico. This is location where the opening shot of the Kingdom of the Crystal Skull was shot, as well as parts of "Red Dawn" (which nominally was supposed to be in Colorado).

Saturday, August 23, 2014

Mformation Techs., Inc. v. Research in Motion Ltd.; RIM wins

Research-in-Motion wins in Mformation Techs., Inc. v. Research in Motion Ltd. :

This appeal concerns Mformation’s challenges to the
district court’s grant of JMOL of no infringement

Because the district court correctly found that there was
no legally sufficient evidentiary basis on which a reasona-
ble jury could have found that BlackBerry infringes the
asserted claims of the ’917 patent, we affirm.

The expert gets bashed

Mformation’s expert based his infringement opinion on his
understanding that the claims do not require a connection
to be established between the server and the wireless
device before transmission.

Based on his mistaken view, Mformation’s expert testified that (...)

Order of steps within a method claim arises

We now turn to the issue of whether claim 1 of
the ’917 patent requires that a connection be completely
established before transmission.
As a general rule, “[u]nless the steps of a method [claim] actually recite an
order, the steps are not ordinarily construed to require one.”
Interactive Gift Express , Inc. v. Compuserve Inc.,
256 F.3d 1323, 1342 (Fed. Cir. 2001)(citation omitted).
However, a claim “requires an ordering of steps when the
claim language, as a matter of logic or grammar, requires
that the steps be performed in the order written, or the
specification directly or implicitly requires” an order of
steps. TALtech Ltd. v. Esquel Apparel, Inc., 279 F. App’x974, 978 (Fed. Cir. 2008);
see also Function Media, LLC v. Google, Inc., 708 F.3d 1310, 1320 (Fed. Cir. 2013)

Thursday, August 21, 2014

CAFC explores double-patenting in Abbvie v. Kennedy Institute; Kennedy loses.

In Abbvie v. Kennedy Institute;, Judge Dyk gives an expansive review of double-patenting.

We now make explicit what was implicit in Gilead:

the doctrine of obviousness-type double patenting contin-
ues to apply where two patents that claim the same invention
have different expiration dates.
We hold that Kennedy is not entitled to an extra six
years of monopoly solely because it filed a
separate application unless the
two inventions are patentably distinct.

The concept of a dominating patent arose:

To be sure, obviousness is not demonstrated merely
by showing that an earlier expiring patent dominates
a later expiring patent. Nor do we think that the district
court here relied on any such principle.
It is well -settled that a narrow species can be non-
obvious and patent eligible despite a patent on
its genus. See Eli Lilly & Co.
v. Bd. of Regents of Univ. of Wash.
, 334 F.3d 1264, 12 70 (Fed. Cir. 2003) ;
In re Kaplan, 789 F.2d 1574, 1577 78
(Fed. Cir. 1986); In re Sarett
, 327 F.2d 1005, 1014 (CCPA 1964); 3A
Donald S. Chisum, Chisum on Patents § 9.0 3

But not every species of a patented genus is separate-
ly patentable.

First, when a “genus is so limited that a person of
ordinary skill in the art can ‘at once envisage each member of this limit
ed class,’ . . .a reference describ-
ing the genus anticipates every species within the genus.”
In re Gleave, 560 F.3d 1331, 1337-38 (Fed. Cir. 2009)
(quoting Eli Lilly & Co. v. Zenith Goldline Pharms
., Inc.,471 F.3d 1369, 1376 (Fed. Cir. 2006),and citing
Perricone v. Medicis Pharm. Corp.
, 432 F.3d 1368, 1377 (Fed. Cir. 2005));
see also Bristol-Myers Squibb Co. v. Ben Venue
Labs., Inc., 246 F.3d 1368, 1380 (Fed. Cir. 2001)

Bottom line: Kennedy loses.

we conclude that the ’442 patent is invalid for
obviousness-type double patenting in light of the ’766

Wednesday, August 20, 2014

What is a reasonable interpretation of the teachings of the prior art?

PatentDocs, in discussing the recent Apotex case on inequitable conduct, wrote

The opinion did draw an important distinction:

To be clear, we agree with Apotex that Dr. Sherman had no duty to disclose his own suspicions or beliefs regarding the prior art. There is nothing wrong with advocating, in good faith, a reasonable interpretation of the teachings of the prior art. The misconduct at issue, however, goes beyond failing to disclose a personal belief or alternative interpretations of the prior art; here, Dr. Sherman affirmatively and knowingly misrepresented material facts regarding the prior art.

As to intent, the Federal Circuit states that "[Dr. Sherman] knew enough to recognize that he was crossing the line from legitimate advocacy to genuine misrepresentation of material facts."

Finally, the Federal Circuit did not reach the "egregious misconduct" determination because the evidence of materiality and intent were sufficient and thus the District Court's inequitable conduct determination was not an abuse of discretion.

As to the point about "advocating," IPBiz notes the CAFC cited Rothman v. Target Corp.
, 556 F.3d 1310, 1328–29 (Fed. Cir. 2009). That case was an appeal from the United States District Court for the District of New Jersey, Garrett E. Brown, Jr., with the decison written by CJ Rader. Note the outcome: Because the district court erred in upholding the jury's inequitable conduct finding, this court affirms-in-part and reverses-in-part. The relevant text is:

The boundaries on a patent attorney's conduct are not so narrow, however. While the law prohibits genuine misrepresentations of material fact, a prosecuting attorney is free to present argument in favor of patentability without fear of committing (p. 1329) inequitable conduct. See Young v. Lumenis, Inc., 492 F.3d 1336, 1348 (Fed. Cir. 2007) ("We therefore fail to see how the statements . . . which consist of attorney argument and an interpretation of what the prior art discloses, constitute affirmative misrepresentations of material fact."). This court has little basis to find deceptive intent in the routine back and forth between examiner and applicant. Moreover, this court recognizes that the Patent Act gives the examiner the discretion to reject or accept an applicant's arguments based on the examiner's own conclusions regarding the prosecution record.
In any event, this type of conclusory analysis betrays no intent to deceive the PTO and obtain a patent with objectively false information. Rather, it is an attempt to characterize the prior art in a manner favorable to the attorney's client — far from deception. No reasonable jury could rely on Mr. Jacobson's statements as clear and convincing proof of inequitable conduct.

See also IPBiz post
CAFC affirms inequitable conduct against Apotex in Moexipril case

and earlier post
CAFC: "Apotex’s conduct in this case is particularly egregious"

Forbes criticizing Forbes on patents; one poseur dumping on another poseur?

A definition of a poseur is a person who pretends to be what he or she is not. Writers at Forbes pretend to be knowledgeable about patents. Criticizing an earlier Forbes piece [covered in IPBiz as Forbes dipping into yellow journalism on patent reform? ], Tim Worstall Tim Worstall in Forbes notes:

OK, I’ve no doubt that the problem itself occurs. But I’d hesitate hugely before accepting the actual numbers on offer. Because the paper doesn’t make a crucial sitinction: that between a Non-Practicing Entity and a patent troll. The second is a subset of the first but we cannot term all of the first as being the second. But that, sadly, is what the paper itself does: (...)

Worstall has a revelation in 2014 that universities might be deemed NPEs, even though they should not be labelled trolls:

Patent trolls exist, yes, patent trolls are largely non-proactising entities, yes, but it does not therefore follow that all NPEs are patent trolls. Let me take a hypothetical example. We have a university (we might call it “Harvard” for example) where professors and students create a new drug with interesting properties. They patent it. This is actually the sort of thing that happens quite a lot actually, small research organisations (whether universities or not) find something of interest. They’ve absolutely no intention whatsoever of trying to take that drug to market though.

Gene Quinn wrote in 2010: I hate the term patent troll because it has over time become synonymous with “non-practicing entity.” Not all non-practicing entities are bad though. For example, universities are non-practicing entities but the research they do is fundamentally important to our economy.

Note also the 2008 post on IPBiz:

And see the IPBiz post
Patent law academics make troll studies a growth industry

Worstall's punch line:

Harvard, or the little corporation Harvard sets up, are clearly an NPE here. But they’re in no manner a patent troll if they do end up suing someone for breaching their patent. And that’s where I spot the error in this paper.

Perhaps Worstall needs to review the Ariad/Lilly and Rochester/Searle cases to see the error in Worstall's thinking.

And then Universities licensing to patent trolls?

And recall: "It is as reasonable to represent one kind of imprisonment by another, as it is to represent anything that really exists by that which exists not." –Daniel Defoe

Zakaria plagiarism issue revived?

Renewed charges of plagiarism against Zakaria made by Our Bad Media include lifting full paragraphs and copying a single sentence and copying facts and figures produced by the research of others.

In a post Columnist Fareed Zakaria faces new accusations of plagiarism , the Washington Post discusses new charges against Zakaria and includes the text

The Post’s editorial page editor, Fred Hiatt, said the Post column alleged by Our Bad Media to contain plagiarism or failure to use attribution did not constitute any journalistic offense.

But Newbusters points to a different example of Zakaria plagiarism:

The Washington Free Beacon liked this one (#1):

Of the 500 big companies in the well-known Standard & Poor’s stock index, 115 paid a total corporate tax rate — both federal and otherwise — of less than 20 percent over the last five years, according to an analysis of company reports done for The New York Times by Capital IQ, a research firm. Thirty-nine of those companies paid a rate less than 10 percent. – David Leonhardt, New York Times, February 1, 2011.

Cain's second 9 is a 9% rate for corporate taxes, except that it's not really a corporate tax but a business-transaction tax. Still, the basic idea has value. The U.S. today has the second highest corporate tax rate in the industrialized world. And yet, of the 500 big companies in the Standard & Poor's stock index, 115 paid a total corporate tax rate--both federal and otherwise--of less than 20% over the past five years. Thirty-nine of those companies paid a rate of less than 10%. – Fareed Zakaria, “Complexity Equals Corruption," October 31, 2011 Time.

Read more:

Breitbart. Fareed Zakaria Faces New Plagiarism Accusations

Huffington Post Fareed Zakaria Accused Of Plagiarism... Again (UPDATE) Hiatt is quoted:
There's no lifting of language, and I'm sure I could find the same data in a dozen other reports. I honestly think it is reckless even to suggest this is plagiarism.

Tuesday, August 19, 2014

CAFC affirms inequitable conduct against Apotex in Moexipril case

The CAFC affirmed the district court (SD Fl) holding of inequitable conduct
against Apotex as to the prosecution of US '556 in
Apotex v. UCB
. Judge Reyna authored the precedential opinion,
which is a useful guide for understanding "inequitable conduct" post-Therasense.

The drug at issue is Moexipril, an ACE inhibitor, and is available
from Schwarz Pharma under the trade name Univasc.

During prosecution before the U.S. Patent and
Trademark Office (“PTO”)the ’556 patent
received three obviousness rejections.

First, the Examiner rejected the claims
based on the combination of the ’450 patent and
U.S. Patent No. 4,344,949, which discloses using
moexipril tablets to treat hypertension

The problem for Apotex and Dr. Sherman began at the point where
they argued "combination was not reaction" in the case of Univasc®:

In response, Dr. Sherman’s counsel argued that
the cited prior art did not disclose a reaction,
but disclosed only combining moexipril
hydrochloride and an alkaline magnesium compound

Thus, Apotex argued Univasc includes magnesium oxide “unreacted but com-

In all, the Examiner made three rejections, and Apotex appealed to the Board.
Apotex also submitted the expert declaration of Dr. Michael Lipp who asserted the
magnesium compound was a stabilizer, which by the meaning of a stabilizer, was

In view of this, an agreement was reached with claim 1 including
a limitation requiring “greater than 80%” conver-
sion of the moexipril or moexipril acid addition salt to
moexipril magnesium.

The CAFC appeal related to a lawsuit filed by Apotex against UCB on April 20, 2012.

The district court had found inequitable conduct on the part of Apotex.
Among other things:

Lastly , the district court found that Dr.
Sherman lied in the ’556 patent
application by including certain examples
of experiments that were never conduct-
ed. The court noted that each example is written in the
past tense as if it had occurred, but
Dr. Sherman admit-
ted at trial that the experiments
were made up in his head

Also, a relevant PCT application of Apotex was not disclosed during
the prosecution of the '556 case.

the district court found that Dr. Sherman would
have known about the ’560 PCT and understood
its rele-
vance to the prosecution of the ‘556 patent.
The ’560 PCT , however, was never disclosed to the Examiner handling
the prosecution of the ’556 patent.

The district court found Dr. Sherman's action met the "but-for" standard
of Therasense, but further noted:

In the alternative, the district court found that a find-
ing of but-for materiality was not necessary because Dr.
Sherman engaged in egregious misconduct during prose-
cution of the ’556 patent application

The CAFC affirmed the but-for determination, but did not explicitly reach the
consequences of the past-tense use or of not citing the PCT.

District court decision: Apotex, Inc. v. UCB, Inc. ,
970 F. Supp. 2d 1297 (S.D. Fla. 2013)

As to ACE inhibitors, increased levels of bradykinin stimulate in the
production of prostaglandin E2 (PGE2) [13] and nitric oxide (NO).

Lauren Cohen et al. go after "patent trolls"

The abstract for Patent Trolls... states

We provide theoretical and empirical evidence on the evolution and impact of
non-practicing entities (NPEs) in the intellectual property space. Heterogeneity in
innovation, given a cost of commercialization, results in NPEs that choose to act as
\patent trolls" that chase operating rms' innovations even if those innovations are not
clearly infringing on the NPEs' patents. We support these predictions using a novel,
large dataset of patents targeted by NPEs. We show that NPEs on average target rms
that are ush with cash (or have just had large positive cash shocks). Furthermore,
NPEs target rm pro ts arising from exogenous cash shocks unrelated to the allegedly
infringing patents. We next show that NPEs target rms irrespective of the closeness of
those rms' patents to the NPEs', and that NPEs typically target rms that are busy
with other (non-IP related) lawsuits or are likely to settle. Lastly, we show that NPE
litigation has a negative real impact on the future innovative activity of targeted rms.

The first paragraph shows that the authors are confused about what a patent right is:

Clearly defined property rights are essential for well-functioning markets. In the case of
intellectual property (IP), however, property rights are complex to define; unlike ownership
of physical assets, the space of ideas is di cult to clearly delineate. A solution employed
by the United States and many other countries is the patent, a property right allowing an
idea's owner sole commercialization rights for a period of time.

As the ancient diode/triode saga illustrates, having a patent does NOT give one a sole commercialization

Yes, the first person mentioned in the acknowledgements on the first page is "Jim Bessen," and the first footnote
is --Bessen et al. (2011) estimate that from 2007 to 2010, these litigation (and settlement) losses averaged
over $83 billion per year in 2010 dollars (just summing over the losses to publicly traded rms). This is
equivalent to over 25% of annual United States industrial R&D investment --

Of the supporting data: -- Using proprietary data, we provide strong empirical evidence for the model's main
predictions. --

Monday, August 18, 2014

Forbes dipping into yellow journalism on patent reform?

from VC/DC: The Patent Crisis Deteriorates

The bigger problem, as we discussed, is that many of the patents should probably never have been granted in the first place. The U.S. patent office in particular has in the last ten years been so overwhelmed with applications that they grant patents for inventions that are anything but, leaving it to the courts and so-called “patent trolls” to sort out which ones really deserved legal protections and which ones were too obvious.

Why has the patent office become so generous with such dubious applications? Last week there were reports of an internal investigation at the patent office, initially suppressed, that revealed widespread fraud by patent examiners, nearly half of whom work from home full time, of inflated hours and unearned bonuses.

While that report (and the attempt to cover it up) are pretty shocking, chaos at the patent office is just the tip of the iceberg. Between the courts, the patent office, and abusive litigation, the U.S. patent system is in dire need of reform. Congress keeps trying, but can’t seem to pass anything of substance—on this or any other subject.

Does the article imply that the business with telecommuting caused the patent office to be generous in granting patents on dubious applications?

Did the USPTO "attempt to cover up" the first report? The same author wrote both reports.

Even assuming everything in the first report is true, did this behavior cause improper patent grants?

Saturday, August 16, 2014

"Patents are for the limitation of invention"

The text "Patents are for the limitation of invention" might seem to be from patent reformers of the 21st century. In fact, it came at a 1945 conference, and arose from one Harry Grundfest. The background debate concerned "how" government funding of science would be conducted post-World War II. A bill by Senator Kilgore proposed that patents from government-funded work would inhere in the federal government. A different bill by Senator Magnuson, which was favored by Vannevar Bush, left patent rights the way they were. A compromise bill was created, but the House offered an alternative that Vannevar Bush backed. The creation of the NSF was delayed for four years, in part because of the issue over patent rights. When Congress sees significant differences of opinion, it does not act, whether in 1945 or in 2005. In that 1945 period, physicist Philip Morrison noted that the desire to patent results would spread from industrial labs to the universities and destroy the traditional free cooperation of science, an argument re-cycled into the 21st century.

Vannevar Bush got his BS/MS degrees from Tufts, with his MS degree leading to US Patent No. 1,048,649, which issued Dec. 31, 1912 (application filed Feb. 2, 1912), before Bush graduated in 1913. [In the time of the prosecution of the Bush patent application, the Titanic sank on April 15, 1912 (recall the message interchange: Californian to Titanic: “Say, old man, we are stopped and surrounded by ice.” and R.M.S. Titanic to R.M.S. Californian: Keep out! Shut up, shut up! I am busy, I am working Cape Race. AND later RMS OLYMPIC: We're in charge here. Our ship is bigger and has a more powerful transmitter. Any requests to talk to TITANIC come through us. ) and Wilbur Wright died May 30, 1912, as the result of eating tainted seafood while in Boston meeting with patent lawyers.]

background: Jessica Wang, American Science in an Age of Anxiety

Friday, August 15, 2014

Homer Simpson sued for patent infringement?

Use of a 3D representation of Homer Simpson at this year's Comic-Con convention in San Diego has produced a patent infringment suit by Alki David's Hologram USA .


Wednesday, August 13, 2014

Politically motivated charges of plagiarism and things vanishing from the internet

There has been some discussion of whether or not a book titled “The Invisible Bridge: The Fall of Nixon and the Rise of Reagan” by Rick Perlstein improperly borrowed from a book by Craig Shirley .
Within a post titled Was an Accusation of Plagiarism Really a Political Attack? by Margaret Sullivan, there is text questioning the motivation of the plagiarism charge

[Jeffrey] Toobin called the claim “a political attack on Perlstein dressed up as a journalistic ethics controversy.”

and a brief allusion to a citation issue

Mr. Brink also said that a number of elements combined to make the piece valid — the criticism, for example, about a paucity of primary sources in the book and the discussion about placing source citation not in the book itself but on Mr. Perlstein’s website. The article described “the growing practice of shifting endnotes out of print books and onto the web.” These factors, combined with the polarized reaction to the book and the plagiarism claim, added up to something newsworthy, the editors and Ms. Alter told me.

As a first matter, one needs to disconnect "plagiarism" from "political attack." For example, one suspects the charges against Senator John Walsh were politically motivated, but that motivation does not negate the plagiarism of John Walsh. Similarly, the charges against Glenn Poshard were politically motivated, but Poshard did plagiarize within his Ph.D. thesis.

As a second matter, the procedure of separating identifying endnotes/footnotes from the related text is problematic when the endnotes are placed on a pliable web and the related text is not. Things on the web can be changed, or simply disappear. Thus, putting endnotes onto the web is not all right.

Of vanishing things on the internet, IPBiz noted the disappearance of the "Rutgers is wrong" piece by Vai Sikahema in 2006, and later coined the verb "sikahema" for removal from the internet [ An issue with things posted on SSRN is that they can be later removed ("Sikahema'd"), for example, if the authors publish in a journal that prohibits internet posting (recall Dan Hunter's "Walled Gardens," ] [The article by Judge Mathesius that provoked the uproar seems to have vanished from the internet, likely another Sikahema.

A post at (Bob Ingle ) has a brief excerpt:

Take boat-rocker extraordinaire Superior Court Judge Bill Mathesius, a former prosecutor who was unafraid to speak his mind using colorful language and biting wit. Mathesius wrote a scathing article about former Chief Justice Deborah Poritz, a political insider who never sat on a bench that wasn't in a park until Gov. Christie Whitman appointed her to the top court's top job. He described Poritz like this:

"The Chief swept in, clad in diaphamous tulle and a high-fashion shahtoosh. Her diamante' Harlequin glasses provided interesting accent. The picture collectively brought to mind a hint of mature Andrea Dworkin with a touch of Dick Cheney." He went on to suggest she took management tips from Kim Jong II, the North Korean dictator. ]


Even LEXIS will alter reported decisions without reference to the earlier, now altered, decision.

Washington Post follows up on issues with teleworking at the US Patent Office

In a post titled Six useful findings from the patent office’s filtered telework report , the Washington Post follows up on its reporting of teleworking at the Patent Office. Note the first comment to the post

This is bizarre... you write a followup to the PTO article and still don't clarify that our work is monitored extremely closely every biweek and that everything we do is a matter of public record. If anyone has a serious question or issue with the quality of our work they can look at it.

The only issue is the question of how close an accounting of day to day, hour to hour activities is necessary for PTO management and appropriate for GS 12-14 employees who are meeting all of their production goals. Some managers want better tools to discourage end-loading or perceived shirking... Examiners, as a rule, want to be allowed to work on their own schedule (within reason).

End loading was mentioned again by the Post:

“End-loading”: Some examiners do the lion’s share of their work toward the end of the quarter, a practice known as “end-loading.” The concern is that some employees slack off until it’s time to submit their work. This may not seem like a big deal as long as the work is done. But the report noted that “it is widely believed that end-loading produces a lower quality work product and, thus, is not a desired practice.”

From a comment on Joe Mullin's discussion of the USPTO reports (Patent examiners are routinely abusing work-from-home privileges ):

As I understand things at the USPTO:

- For each Office Action an Examiner writes, he/she gets a certain number of hours to complete that work.
- The number of hours allotted is based on the technology area and Examiner tenure, to account for varying complexity and experience.
- The metric used to judge Examiners is "Counts", which can be earned in a variety of ways, with diminishing returns in some cases, but issuing an Action is the most common Count.
- If an Examiner becomes good at their job, they become efficient, and can complete an Action in less than the allotted time.
- Ideally, the efficient Examiner then moves onto the next application, earning more Counts; when he/she gets ahead of their expected Count production, they move into earning what is effectively overtime pay.
- BUT this is the Government, and somebody (*cough* Congress *cough*) has from time-to-time forbidden overtime work because they don't want to pay for it.
- So, the Examiner is presented with a choice: (1) do more work and get chastised on your employee record for trying to earn "overtime" pay (and making everyone else look bad), (2) work slowly to fill out their hours with exactly as many Counts as they are "supposed" to be producing, (3) do the work efficiently and account for time accurately, then get penalized for not working the required number of hours, or (4) do the work efficiently and just plug in the hours expected of such work, leaving yourself some free time.

The rational actor chooses to do the work efficiently, plug in the expected hours, and get free time. Is this a systemic problem? Yes, obviously. But fault lies more with agency administration and Congressional monkey-wrenches than with most individual Examiners.

If I ever worked at a place where I was chastised for making others look bad because I was good at my job, I'd quit. But, I agree with you in that the incentive (and disincentive) structure needs to be such that good behavior is rewarded and bad behavior is punished. They can't simply depend on the ethics of their workforce.

Tuesday, August 12, 2014

The Aunt Jemima matter

See The great-grandchildren of the woman who once served as Aunt Jemima filed a class action suit seeking royalty back payments.

Hunter’s lawsuit accuses the companies of lying to cover up Quaker Oats’ employment of Harrington, adding that the heirs determined they were owed royalties when they say they discovered last October that the company had trademarked the image of their great-grandmother with the U.S. Patent and Trademark Office in 1937 and after they found a death certificate for Harrington that named the company as her employer. Hunter has accused the companies of breach of contract, conspiracy, and fraud, among other charges, while alleging that Quaker Oats engaged in “industrial espionage” to procure Harrington’s trade secrets before failing to compensate her estate on an annual basis following her death.

For China, indigenous innovation is re-innovation based on the assimilation of imported technologies

See the post Microsoft, Audi, Chrysler and others are facing pressures from Chinese regulators that have been building for years. on “The National Medium- and Long-Term Plan for the Development of Science and Technology (2006-2020)” [aka "MLP"] which includes the text related to James McGregor

“Indeed,” he goes on, “the MLP defines indigenous innovation as ‘enhancing original innovation through co-innovation and re-innovation based on the assimilation of imported technologies.’”

This would easily encompass copying ideas from US published patent applications which have no counterpart in China. Patent protection in the US does not extend to protection in China. No need for hacking into computer systems.

Google Nest thermostats vulnerable to simple hack attack

Following up on an earlier IPBiz post [
Google/Nest v. Honeywell in the thermostat business
], note some interesting issues with Google Nest thermostats:

When Google bought Nest Labs for $3.2 billion seven months ago, I described the move as the start of a home invasion. Google already knows a lot about you, including where you live, what your interests are, where you go on the Internet and in the real world (via Android), and its acquisition of Nest, which makes smart thermostats and (not so smart) smoke detectors, meant it would potentially also know what you get up to in your own home.

As it turns out, Google using Nest products to find out what customers are doing is just one worry. A team of researchers has discovered an easy hack that allows anyone to gain control of Nest’s smart thermostat and turn it into a spying device which can reveal when you’re at home or away, and even divulge your Wi-Fi credentials.

The work was done by University of Central Florida students and reported at the Black Hat security conference in Las Vegas.

Essentially, all the attacker has to do is hold down the power button and insert a USB flash drive in order to enter developer mode. From there, they can load a custom compiled kernel to gain access to the software protocols used by the device.


the researchers said, "Although OS level security checks are available and are claimed to be very effective in defeating various attacks, instead of attacking the higher level software, we went straight for the hardware and applied OS-guided hardware attacks. As a result, our method bypasses the existing firmware signing and allows us to backdoor the Nest software in any way we choose". This includes introducing rootkits, spyware, rogue services and other network scanning methods.

"Entering into that mode allows you to upload your own code, your custom code, which allows you to attack existing code, implant your own and reboot normally, but maybe have something else running in the background," Hernandez adds. "We have access to the device on the highest level, and we can send stuff that Nest sends to us as well".

link for quoted material:

Monday, August 11, 2014

-- “review is unavailable no matter how plain the legal error in ordering the remand.” --

The underlying action in State of Vermont v. MPHJ Technology was an allegation by Vermont that MPHJ engaged in unfair and deceptive trade practices
under the Vermont Consumer Protection Act , stating that [patent demand] letters
contained threatening, false , and misleading statements.

StateAGMonitor had written about the district court decision by William K. Sessions (once Senator Leahy's campaign manager):

MPHJ removed the case to federal court (No. 2:13-cv-00170, D. Vt.), arguing that it involved issues of patent law implicating a federal question, as well as asserting that diversity existed between the State of Vermont and MPHJ.

Yesterday, Federal District Judge William K. Sessions III rejected those arguments and ordered the case back to Vermont state court. Judge Sessions rejected the diversity argument quickly, citing the well-established principle that a state is not a “citizen” for diversity purposes. He further held that the AG’s suit based on harm allegedly caused to individuals and businesses did not render those individuals and businesses “real parties-in-interest” for diversity purposes.

Next addressing the federal question argument, the Court held that the state’s complaint is based entirely on Vermont state law, not federal patent law.


While this decision stands as a victory for AG Sorrell, the case itself is far from over. As the Court noted, MPHJ has asserted constitutional and federal patent law defenses—as it also has in litigation against Nebraska AG Jon Bruning and the Federal Trade Commission seeking to invalidate enforcement actions similar to Vermont’s—that remain pending. The expected substantive decision on those issues will have a far-reaching impact not only on AG consumer protection authority, but on the broader national debate of striking the right balance to protect intellectual property, limit abuse of the judicial system, and encourage innovation and economic growth.

The issues before the CAFC:

Without deciding any other motions, the district court granted the State’s motion to remand. The district court stated that the complaint did not raise a substantial question of patent law, and that “the State is targeting bad faith conduct irrespective of whether the letter recipi- ents were patent infringers” or the patents were invalid. State of Vermont v. MPHJ Tech. Invs., LLC, No. 13-cv- 00170, slip op. at 14 (D. Vt. Apr. 14, 2014). The court pointed out that MPHJ’s preemption assertion was a defense to its allegedly unfair and deceptive practices, and that a defense cannot provide a basis for federal subject matter jurisdiction. See Metro. Life Ins. v. Taylor, 481 U.S. 58, 63 (1987).

MPHJ appeals the remand to state court, and has filed a petition for a writ of mandamus.

The analysis by the CAFC:

We start with the issue of appellate jurisdiction over this remand order. Section 1447(d) of Title 28 provides that:
An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise[.]
The Supreme Court has held that this provision ap- plies only to remands based on the grounds specified in § 1447(c)—namely, a defect in removal procedure or lack of subject matter jurisdiction. Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 343–45 (1976). In Kircher v. Putnam Funds Trust, the Court stated that “we have relentlessly repeated that ‘any remand order issued on the grounds specified in § 1447(c) [is immunized from all forms of appellate review] . . . .’” Kircher, 547 U.S. 633, 640 (2006) (citing Thermtron, 423 U.S. at 351).

And the interesting point:

Section 1447(d) pre- cludes this court from second-guessing the district court’s jurisdiction determination regarding subject matter. If the § 1447(d) bar applies, “review is unavailable no mat- ter how plain the legal error in ordering the remand.” Briscoe v. Bell, 432 U.S. 404, 413 n.13 (1977) (citing Gravitt v. Sw. Bell Tel. Co., 430 U.S. 723 (1977)).

In the CAFC case, MPHJ appealed a remand to state court. The CAFC noted Section 1447(d) pre-
cludes this court from second-guessing the district court’s
jurisdiction determination regarding subject matter. The remand stands, even if the reasoning was faulty.

CAFC affirms PTAB In In re Index Systems

The patentee appealed an unfavorable decision by PTAB in re-examination of claims related to "A system for restricting access to television programs." The CAFC affirmed obviousness.


Hatch-Waxman action between Teva and Dr. Reddy's over 40 mg Copaxone

Teva Pharmaceutical Industries intends to file a Hatch-Waxman infringement law suit against Dr Reddy's Laboratories related to Reddy's paragraph IV filing as to the patents of Copaxone (glatiramer acetate) injection 40mg/mL.


Copaxone is the subject of the pending Supreme Court case between Teva and Sandoz involving a dispute over claim language asserting molecular weight. The United States Supreme Court rejected Teva's application for an injunction seeking to prevent launch of a generic version of Copaxone involving Natco Pharma.

Five US Senators take stand against trolls

A letter of August 6, 2014 to Dept. of Commerce Secretary Pritzker from five Senators has a first sentence including the words "high quality patents." The second sentence has the words "patent trolls." Footnote 2 cites to Nautilus v. Biosig and to In re Packard.

The fifth signatory to the letter is that of Mark R. Warner, the senior senator from Virginia.

The very popular Warner is up for re-election this year. A recent Washington Post story begins

Turkey hunting, NASCAR and a bluegrass campaign ditty: not the most obvious path to the governor’s mansion for a multimillionaire raised in Connecticut. Yet it worked for Mark R. Warner, running in Virginia in 2001, and still looks like a stroke of genius to many an admiring Democrat.

Mark Warner made money in telecommunications. Wikipedia notes that Warner -- used his knowledge of federal telecommunication law and policies as a broker of mobile phone franchise licenses, making a significant fortune. As founder and managing director of Columbia Capital, a venture capital firm, he helped found or was an early investor in a number of technology companies. He was one of the early investors in Nextel, co-founded Capital Cellular Corporation, and built up an estimated net worth of more than $200 million.[4][5] He is the wealthiest US senator with a rising average net worth.[6]--

As to patents to Columbia Capital note United States Patent no. 8,041,631, issued on Oct. 18, 2011 assigned to Columbia Capital Management LLC (Overland Park, Kan.) with first claim

A computer-implemented secure-bidding process comprising: providing a broker user interface on a computer system that elicits and receives information from one or more brokers to setup a plurality of bid processes including a first bid process, administers a database of bidders on the computer system, and performs one or more reporting functions; defining, in the computer system, an expiration time for a bid period of the first bid process; electronically receiving into the computer system a plurality of bids submitted by a plurality of bidders for the first bid process only at times before the expiration time for the first bid process; encrypting, in the computer system, the plurality of bids for the first bid process upon receipt or earlier to form a plurality of encrypted bids; automatically generating and logging at least one digital checksum, in the computer system, for each of the plurality of bids received for the first bid process; securely storing on the computer system the plurality of encrypted bids in a secure electronic vault, wherein the vault includes a directory in which specific information, including encrypted bids and digital checksums, about each one of the plurality of bid processes is automatically retained, and wherein the specific information for the first bid process is retained in an inaccessible state until the expiration time of the first bid process; decrypting using the computer system and delivering to one or more transaction participants bid information for the first bid process from the vault only following the expiration time of the first bid process; receiving into the computer system a bid summary report based on the decrypted bid information and a decision from the one or more brokers to award the first bid; delivering the bid summary report to the plurality of bidders for the first bid process; and using the computer system, automatically creating an electronic archive of information relating to the plurality of bid processes, including the encrypted bids and the bid summary report, for the first bid process, wherein the electronic archive of information includes the digital checksum information.

As to Sprint, note the article Sprint Nextel's innovation push yields almost a patent a day
Sprint Nextel had sued Vonage. Link:

Washington Post discloses internal USPTO report critical of Patent Office teleworking program; next probe: "are the examinations accurate?"

In a second article critical of the USPTO, the Washington Post took aim at telecommuting practices at the Patent Office in the post Patent office filters out worst telework abuses in report to its watchdog . Along the theme of Watergate's "the coverup is worse than the initial act," the Washington Post spoke of a final report that was "cleansed" of abuses identified in an initial internal report:

But when it came time last summer for the patent office to turn over the findings to its outside watchdog, the most damaging revelations had disappeared. The report sent to Commerce Department Inspector General Todd Zinser concluded that it was impossible to know if the whistleblowers’ allegations of systemic abuses were true.


The Washington Post obtained copies of the internal report and the version provided to the inspector general, which at 16 pages is half the length of the original.

As to the matter of teleworking:

Some of the 8,300 patent examiners, about half of whom work from home full time, repeatedly lied about the hours they were putting in, and many were receiving bonuses for work they didn’t do. And when supervisors had evidence of fraud and asked to have the employee’s computer records pulled, they were rebuffed by top agency officials, ensuring that few cheaters were disciplined, investigators found.

Oversight of the telework program — and of examiners based at the Alexandria headquarters — was “completely ineffective,” investigators concluded.


The agency’s telework system has served as a model for the Obama administration, which has sought to attract talent by extending similar programs to many corners of the government. In addition to the approximately 3,800 patent examiners who work full time from home, about 2,700 telework on a part-time basis.

While the examiners were under scrutiny, patent officials received a separate referral from the inspector general after whistleblowers at the agency’s appeals board complained that paralegals there were idle. That referral resulted in an investigation that Zinser’s office disclosed in July, revealing that dozens of paralegals, who also work from home, were paid full salaries during a four-year period while they surfed the Internet, did laundry and read books instead of working. The investigation found that managers gave the paralegals limited assignments as they waited for new judges to be hired to handle a backlog of appeals. But because of a hiring freeze, the judges were not brought on until last year.

End-loading was mentioned:

The final, condensed version noted only that patent officials have no policy that prohibits the practice and that examiners suspected of “end-loading” may well have been working throughout the quarter. “Some examiners . . . spend long periods on search and examination because they . . . want to make their actions perfect before submitting” their patent reviews, the document says.

"Big brother" showed up:

The version supplied to the inspector general, though, explained that managers did not provide full access to computer records that could substantiate allegations of fraud because officials did not want to be seen as “big brother” through electronic surveillance.

Investigators found a lax system for monitoring employees who work from home — some as far away as California. Examiners do not have to log into the agency’s computer network or tell their supervisors the hours they work. They do not have to respond to a phone call from their boss the same day it comes in.

The Washington Post atory ended on an open note:

Zinser, however, said the agency was responsible not just for providing “raw data” but an accurate analysis.

He said he did not do his own investigation because he trusted that patent officials had the issues under control. But he said the copy of the original report he was given prompted him to launch a probe of the patent workforce’s quality control — whether its examinations are accurate. His office also is investigating time and attendance fraud at several other Commerce Department agencies.

A relevant comment to the post:

I have no knowledge of whether or not patent examiners cheated. HOWEVER: 1) You can't tell if patent examiners are working by monitoring their computers. That is just stupid. The examiners could be reading printed-out material, and making hand-written notes on it. They could be walking around, debating pro/con points in their heads. Examiners could be on the phone with somebody. 2) Even if you could keep track of exactly what the examiners are doing, all day long, that still wouldn't be proper supervision, because some examiners are simply more efficient than others. They should (and do) get judged by throughput, not by time served. The supervisors ought to be spot-checking the throughput for quality, not trying to play "time-clock gotcha" with professionals.


That's not how the USPTO works. A supervisor does not have to sign an action if he doesn't agree with it. Examiners are on production. If you fall below and stay below, you get fired. It's very clear. You refer to the article, but the article isn't worth the memory it's stored on. Too many falsehoods and half-truths.

You're aggrieved because you don't know how the PTO works. Everyone who knows the workings of the PTO knows that a supervisor makes or breaks your career. It's common knowledge.