Friday, October 31, 2014

Consumer Watchdog / PubPat seek Supreme Court review of standing issue in stem call case concerning WARF's US 7,029,913

In the year 2008, IPBiz discussed the challenge to WARF's US Pat. 7,029,913 made by PubPat and Consumer Watchdog. See post
How significant was the PubPat wiff on re-exam of US 7,029,913?

A headline in the San Diego Union-Tribune on October 30, 2014 Stem cell patent to reach Supreme Court actually means that a petition for cert is being filed, not that the Supreme Court has agreed to hear the case. The legal issue is NOT about the patenting of the stem cell material, but rather about whether Consumer Watchdog has standing to bring the case.

Earlier in 2014, PatentDocs described the issue presented in the case, and the viewpoint expressed by the Federal government:

While noting that "Congress may -- and commonly does -- authorize administrative agencies to take action or issue decisions at the behest of parties who lack any particularized interest in the subject matter of the proceeding," the government states that "[w]hen the petitioner in such a proceeding later seeks judicial review in an Article III court, . . . 'the constitutional requirement that it have standing kicks in.'" The government suggests that in many cases, the petitioner's standing to appeal will be apparent. For example, the brief notes that if the Board had determined that the '913 patent was unpatentable, "there would have been little doubt regarding WARF's standing to appeal that adverse decision." However, the government argues that Consumer Watchdog cannot appeal the Board's decision affirming the patentability of the '913 patent "unless it can identify some particularized, real-world consequence of that decision for Consumer Watchdog itself." Although "Consumer Watchdog is plainly adverse to WARF and believes the ’913 patent to be invalid," the brief asserts that this alone is insufficient to demonstrate the existence of a justiciable case or controversy. The government explains that Consumer Watchdog "claims no commercial interest in the subject matter of the ’913 patent; it faces no plausible risk of an infringement claim; it is neither a prospective competitor nor a prospective licensee of WARF[; n]or does Consumer Watchdog assert any basis for associational or representative standing." As a result, the government contends that Consumer Watchdog lacks standing to appeal the Board's reexamination decision because, "as far as the organization's own concrete interests are concerned, it does not matter whether PTO got the right answer."

See WARF's arguments against standing for Consumer Watchdog.

Thursday, October 30, 2014

Teva optimistic about outcome in Teva v. Sandoz (!)

Note Reuters post Teva optimistic U.S. top court to rule in favor of MS drug patent with text

Teva Pharmaceutical Industries is optimistic the U.S. Supreme Court will decide in its favor regarding patent protection for Copaxone, its multiple sclerosis treatment, Chief Executive Erez Vigodman said on Thursday.

IPBiz suspects, no matter what legal formalism is adopted, Teva will lose the case.

Harvard's terminal disclaimer argument fails at CAFC

The bottom line in Harvard vs. Lee:

We find that the record contains a rational basis to
support the PTO’s factual finding that Harvard paid the
terminal disclaimer fee. (...)

We conclude that the evidence as a whole provides a
rational basis for the PTO’s conclusion that the terminal
disclaimer fee was paid. As such, we find that the district
court properly concluded that the PTO’s decision was not
arbitrary or capricious. We affirm.

More on Rader's "death squads"

About one year ago, on Oct. 29, 2013, Judge Rader made his remark about the PTAB "death squads":


" the PTAB, there will soon be as many as 300 administrative patent judges “acting as death squads, killing property rights.”


IPBiz link: One year anniversary of Rader's "death squads" remark

Now, on October 30, 2014, one has the post Developing a patent portfolio that can withstand the ‘death squad’ for patents

One notes that the Patent Board affirms the examiner more than 50% of the time.

Tuesday, October 28, 2014

Google Doodle tribute to Jonas Salk questioned in view of the patenting of the Google Doodle

See story at National Post suggesting the Google Doodle celebrating Jonas Salk was rich with irony [text: Google spent 10 years lobbying to get Google Doodles patented, and eventually succeeded. ]

But also see the IPBiz post Contemplation of patenting the Salk vaccine prior to the quote "Could you patent the sun?”

Thus, the Google Doodle is doubly ironic. Google patented the Doodle AND Salk looked into patenting the vaccine.

See also post by Michael Hiltzik.

Monday, October 27, 2014

Google has obtained 14% of US track 1 patents that have issued

The Washington Post reports that Google has obtained more track 1 patents than any other company, in fact 14% of all track 1 patents issued to date.

Hussein is second.

Sunday, October 26, 2014

60 Minutes on October 26, 2014

Lee Silver of Genepeeks was interviewed. Silver is the sole inventor of US Patent 8,805,620.

The first claim is

1. A method of selecting a donor or reproductive partner for a potential parent from a pool of sperm donors, or from a pool of oocyte donors or from a pool of potential reproductive partners, the method implemented by a computer processor executing program instructions, the method comprising the steps of: (a) using the processor, generating a recipient haplopath H.sub.i.sup.recipient={h.sub.1, h.sub.2, . . . , h.sub.N} including a single allele h.sub.x.di-elect cons.(1,2) of a genotype at each of a plurality of loci (1, . . . , N) from a recipient genome profile of a potential parent; (b) using the processor, generating a donor haplopath H.sub.i.sup.donor={h.sub.1, h.sub.2, . . . , h.sub.N} including a single allele h.sub.x.di-elect cons.(1,2) of a genotype at each of the plurality of loci x=1, . . . , N from a donor genome profile of a member of a pool of sperm donors, oocyte donors or potential reproductive partners; (c) using the processor, combining said recipient haplopath H.sub.i.sup.recipient with said donor haplopath H.sub.i.sup.donor to generate a virtual progeny genome sampling ##EQU00005## including two alleles h.sub.x.sup.recipient and h.sub.x.sup.donor of a genotype at each of the plurality of loci x=1, . . . , N for a potential progeny; (d) using the processor, comparing genotypes of said virtual progeny genome sampling to one or more databases of genotype-phenotype associations to determine a likelihood of expression of one or more phenotypes for the potential progeny having said virtual progeny genome sampling; and (e) repeating steps (a)-(d) for a plurality of recipient and donor haplopaths from, respectively, the recipient and donor potential parents i=1, . . . ,p to generate a virtual progeny genome G.sup.VP including a plurality of the virtual progeny genome samplings G.sup.VP=G.sub.1.sup.VP, G.sub.2.sup.VP, . . . , G.sub.p.sup.VP); (f) generating probabilities or probability distributions for said potential progeny expressing said one or more phenotypes based on the likelihoods determined for the plurality of virtual progeny genome samplings in the virtual progeny genome G.sup.VP; and (g) repeating steps (a)-(f) for each member of said pool of sperm donors, oocyte donors or potential reproductive partners.

Mark Hughes of a Genesis Genomics was also interviewed. Hughes had a problem at NIH back in 1997.

Saturday, October 25, 2014

On government involvement in patent acquisition

An op-ed in the Lincoln, Nebraska Journal-Star by a former Novartis employee includes the text:

Patent trolling has proven so profitable that it has lured foreign governments into the field. China, Taiwan, Japan and South Korea all have created their own companies that exist for the sole purpose of obtaining patents and suing companies over them. These companies are more dangerous than regular Patent Assertion Entities (PAEs), which is what patent trolling companies are called, because they have the financial backing of foreign governments. Their resources are virtually unlimited.

The Chinese Government’s troll is probably the most ominous threat. China is known for its lack of respect for intellectual property rights. In April 2014, the United States Trade Representative included China in its list of 10 “Priority Watch List” countries, which threaten innovation and creativity through their abuse of intellectual property rights. Portentously it was in April of this year that China also launched its government controlled troll, which they are calling Ruichuan IPR Funds. If China were able to make it on this list of the 10 most concerning offenders before their government got into patent trolling, just imagine of what they are capable now?

Friday, October 24, 2014

Apple after jury verdict: GPNE is nothing more than a “patent troll”

Bloomberg reported on Apple after a jury verdict against GPNE:

Kristin Huguet, a spokeswoman for Cupertino, California-based Apple, said in an e-mail after the verdict that GPNE is nothing more than a “patent troll” attempting to “extort money from Apple for 20-year-old pager patents that have expired, wasting time for everyone involved.”

“Patent troll” is an often-derisive term referring to firms that acquire patents for the purpose of demanding high royalties or winning settlements from established manufacturers. Such firms have been the target of intense lobbying in Washington by technology companies looking for the fastest and cheapest way to dispose of such cases.

Lex Machina, related to Mark Lemley, was referenced for a report on patent litigation:

Of the 6,092 patent-infringement suits filed nationwide, a 12 percent increase over the previous year, 10 companies -- all patent monetization entities or, more pejoratively labeled, patent trolls -— were responsible for almost 13 percent,

Michelle Lee speaks to AIPLA on Oct. 23 about unified patent classification system

The Bloomberg post Patent Offices Seek to Plug Global System's Black Holes contains several patent news items, including the goal of unifying patent classification systems among the world's patent offices. Michelle Lee, now nominated as the permanent director of the USPTO, was quoted:

“That should make patent examination both faster and better, supporting our focus on patent quality,” Michelle Lee, the deputy director of the U.S. patent office, said in prepared remarks delivered today [Oct. 23] to the American Intellectual Property Law Association [AIPLA] conference in Washington

The post also mentioned Google translate:

A program developed by Google Inc. (GOOG) helps translate documents from 32 languages to determine if an idea is actually new, eliminating what could be “black holes in the system,” Battistelli said. As many as 20,000 translation requests are being made each day, mostly between English and Chinese or English and German, he said.

Wednesday, October 22, 2014

Halo Electronics loses appeal at the CAFC; the Federal Circuit analyzes the meaning of a sale.

In HALO ELECTRONICS, INC. v. PULSE ELECTRONICS, INC. , the CAFC affirmed decisions of D. Nevada against the appeal of Halo.

There are issues of on-sale, willful infringement, and limitations from the claim preamble.

Of products sold by Pulse, the defendant in this case, patentee Halo argued:

Halo argues that the district court erred in
granting summary judgment of no direct infringement with respect
to products that Pulse delivered abroad. Halo contends
that those products were sold and offered for sale within
the United States because negotiations
and contracting activities occurred
within the United States, (...)

The CAFC noted

We agree with Pulse that the district court did not err
in granting summary judgment of no direct infringement
with respect to those products that Pulse manufactured,
shipped, and delivered outside the United States
because those products were neither sold nor offered for sale by
Pulse within the United States

Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 441 (2007)
(“It is the general rule under United States patent law that no infringement
occurs when a patented product is made and sold in
another country.”).

And Deepsouth is invoked

Any doubt as to whether
Pulse’s contracting activities
in the United States constituted a sale
within the United States under § 271(a) is
resolved by the presumption
against extraterritorial application of
United States laws.
“The presumption that United States law governs domes-
tically but does not rule the world applies
with particular force in patent law.”
Microsoft , 550 U.S. at 454 -55.
As the Supreme Court has stated
on multiple occasions,
“[o]ur patent system makes no claim to extraterritorial
effect; these acts of Congress do not, and were not intended to, operate beyond
the limits of the United States, and
we correspondingly reject the claims of others to such
control over our markets.” Id. at
444 (quoting Deepsouth
Packing Co. v. Laitram Corp., 406 U.S. 518, 531 (1972)

Of alleged willfulness by Pulse:

Halo also contends that after
Pulse received Halo’s notice letters
in 2002, the Pulse engineer
only performed a cursory review of the Halo
patents and Pulse did not rely on that
analysis to assess whether it was infringing a valid patent.
Halo asserts that the court erred in holding that
the objective prong was not met simply
because Pulse raised a non-frivolous
obviousness defense

Pulse presented evidence that the prior art
disclosed each element of the asserted claims,
that itwould have been predictable to combine and
modify the prior art to create the claimed electronic packages
, and that there were differences between the prior art consid-
ered by the PTO and the prior art introduced at trial.
See Halo , 2013 WL 2319145, at *15 (summarizing evidence
presented by Pulse on obviousness).

CAFC discusses 28 U.S.C. § 1498(a) in IRIS v. Japan Airlines; JAL wins dismissal of infringement complaint

The outcome of IRIS v. Japan Airlines

IRIS Corporation brought suit in district court, alleg-
ing that Japan Airlines Corporation
committed patent infringement by examining the electronic passports of its
passengers within the United States.
Because the alleg-
edly infringing acts were carried out “for the United
States ” under 28 U.S.C. §
1498(a), we affirm the district
court’s decision to dismiss IRIS’s complaint.

The patent in question relates to security

IRIS owns U.S. Patent No. 6,111,506 (the ’506 pa-
tent), titled “Method of Making an Improved Security
Identification Document Including Contactless Communi-
cation Insert Unit.”
The ’506 patent discloses methods for making
a secure identification document containing
an embedded computer chip that stores
biographical or biometric data.
’506 patent col. 20 ll. 11 – 64.

Japan Airlines argued 1498(a):

Among other things, JAL argued that federal laws requir-
ing the examination of passports conflict with
the patent laws and therefore exempt JAL from infringement liabil-
ity. It also argued that IRIS’s exclusive
remedy is an action against the United States under 28 U.S.C. § 1498(a)

Of 1498(a):

The statute further clarifies that
an accused activity is “for the United
States” if two requirements are met:

(1) it is conducted “for the Government,”and
(2) it is conducted “with the
authorization or consent of the Government.”
accord Advanced Software Design Co. v. Fed. Reserve
Bank of St.Louis, 583 F.3d 1371, 137 5–76 (Fed. Cir. 2009).

Footnote 1 addresses 271(g):

When the district court ruled on JAL’s motion to
dismiss, the law strongly suggested that alleged acts of
infringement under §271(g) fell outside the scope of §1498(a).
See , e.g. , NTP, Inc. v. Research in Motion, Ltd.,
418 F.3d 1282, 1316 (Fed. Cir. 2005);
Zoltek Corp. v. United States
, 51 Fed. Cl. 829, 838 (2002). Relying on those
suggestions, the district court concluded that § 1498(a) did not
apply in this case. We have subsequent-
ly ruled, however, that §1498(a) does
encompass alleged acts of infringement under § 271(g).
Zoltek Corp. v.United States, 672 F.3d 1309, 1323 (Fed. Cir. 2012) (en

Madey v. Duke University is cited:

To qualify, the alleged use or manufacture
must also be done “for the benefit of the government.”
Advanced Software, 583 F.3d at 1378;
see also Madey v. Duke Univ., 413 F. Supp. 2d 601, 607
(M.D.N.C. 2006)(“A use is ‘for the Government’if it is‘
in furtherance and fulfillment of a stated Government policy’
which serves the Government ’s interests and which is ‘for the Govern-
ment’ s benefit.’

Oral argument is cited:

Oral Argument at 16: 52–17: 26,
IRIS Corp. v. Japan Airlines Corp.,
No. 2010-1051 (Fed. Cir.Sept.8, 2014),
available at
(Counsel for the United States as amicus curiae : “
If [JAL] weren’t doing this, [the government]
would have to do it.
We have to know who is going in and
out of our country.. .. So this is a uniquely governmental
function that we’re talking about here.”).

Of the Plant Feedstocks Genomics for Bioenergy research program

Concerning the use of plants to produce biodiesel:

A Kansas State University biochemist is improving biofuels with a promising crop: Camelina sativa. The research may help boost rural economies and provide farmers with a value-added product.

Timothy Durrett, assistant professor of biochemistry and molecular biophysics, is part of collaborative team that has received a four-year $1.5 million joint U.S. Department of Agriculture and Department of Energy grant. The project, led by Colorado State University, was one of 10 projects funded this year as part of the federal Plant Feedstocks Genomics for Bioenergy research program.

Durrett and collaborators are developing Camelina sativa as a biodiesel crop for the Great Plains. Camelina, a nonfood oilseed crop, can be a valuable biofuel crop because it can grow on poorer quality farmland and needs little irrigation and fertilizer. It also can be rotated with wheat, Durrett said.

"Camelina could give farmers an extra biofuel crop that wouldn't be competing with food production," Durrett said. "This research can add value to the local agricultural economy by creating an additional crop that could fit in with the crop rotation."


Sunday, October 19, 2014

DNJ: Zydus Pharmaceuticals's ANDA to sell a version of Prevacid does not infringe on Takeda’s patents

No infringement of Takeda patent

There had been an issue about the claim element: “fine granules having an average particle diameter of 400 microns or less.”

Foley had discussed the CAFC decision:

The Federal Circuit first noted that “the claim language [at issue] is not qualified by the word ‘about’ or any other indicator of imprecision,” even though the hardness strength is recited as “about 1 to about 20 kg.”

Turning to the specification, the Federal Circuit noted:

The specification explains that conventional granules of that size “produce a feeling of roughness in the mouth”—one of the very problems the claimed invention purports to solve. …. That clear dividing line between the “fine” granules of 400 μm or less (which avoid a feeling of roughness in the mouth) and “conventional” granules of 400 μm or more (which do not) disappears if the “fine granules” are construed as incorporating a 10% deviation. Thus, there can be little doubt that the narrower construction “most naturally aligns with the patent’s description of the invention.”

Takeda pointed to passages in the specification that refer to a particle size of “about 400 μm or less,” but the Federal Circuit found that those same passages indicate that a smaller particle size is desired.

In the present invention, “fine granules having an average particle diameter of 400 μm or less … have an average particle diameter of about 400 μm or less, in order that roughness is not felt in the mouth. Preferably, the average particle diameter of the fine granules is 300 to 400 μm.

[T]he average particle a [sic] diameter of the included granules must be about 400 μm or less, preferably about 350 μm.

The “fine granules” have an average particle diameter of about 400 μm or less, preferably 350 μm or less. Preferably; the average particle diameter of the fine granules is 300 to 400 μm.

Overall, the Federal Circuit found that “[n]owhere does the specification suggest that an average particle size greater than 400 μm (even within 10% of that figure) could achieve the inventive result of avoiding a feeling of roughness in the mouth.”

Bloomberg post: "a strong preference by the Supreme Court to tell the Federal Circuit that it should stop thinking of itself as Lord of the Patents"

The Bloomberg post Ready for a Patented Supreme Court Smackdown? echos the conventional wisdom that the Supreme Court took Teva v. Sandoz to take the CAFC behind the woodshed:

Last year’s patent decisions revealed a strong preference by the Supreme Court to tell the Federal Circuit that it should stop thinking of itself as Lord of the Patents, and that "supreme” means just what it sounds like. Look for the court to continue pushing that message this year. The Federal Circuit may be special -- but the Supreme Court is more special. Just ask the justices.

The Bloomberg post acknowledges that Teva is destined for a loss

Oddly, none of this may help Teva: The solicitor general's office has also advised the Supreme Court justices that the appeals court’s ultimate decision was based more on its interpretation of the law that its non-deferential determination of the facts, and thus that their intervention may make no practical difference. The solicitor general clearly knows the court’s main interest is not to resolve the case in favor of Teva, but to show the Federal Circuit who’s boss -- a result the solicitor general is willing to embrace.

Teva v. Sandoz is about indefiniteness of a claim term not defined in the specification, and thus how one of ordinary skill in the art would contrue said term. That is what Teva's expert spoke to. That was the legal issue.

Saturday, October 18, 2014

The relative value of patents compared to journal publications?

From the post Scientists Share What They Really Think Of Lockheed Martin's Fusion "Breakthrough"

Although Lockheed Martin issued a press release saying it had several pending patents for its approach, the company has yet to publish any scientific papers on this latest work.

"It's really great that Lockheed has taken an interest in this important challenge of providing carbon-free energy to the world," Michael Zarnstorff, deputy director for research at the Princeton Plasma Physics Laboratory, told Business Insider in an email. "We haven't seen any results from the Lockheed experiments but the design is an interesting concept and it looks like they are at a very early stage of exploring this configuration."

More Teva v. Sandoz: what factual issue?

The underlying legal issue in Teva v. Sandoz is "how" one of ordinary skill in the art would have construed the term molecular weight when said term was not defined in the specification. The Teva expert rendered an opinion, which was directed to this legal issue. Should that opinion of an expert directed to the determinative legal issue be considered a factual issue?

A commenter on PatentlyO cites to a PatentDocs post from July 29, 2013 for the text

The Appellants challenged the lower court’s determination that “molecular weight” could be defined, because one of skill in the art would not understand which measurement (Mp, Mw, Mn, or something else) should be used. The specification of the patents-in-suit was silent as to which measurement was appropriate, other than to describe the use of SEC (which can be used to obtain all three values). Statements made in the prosecution history compounded the problem. In response to an indefiniteness rejection in one of the patents, the patentees said that “[o]ne of ordinary skill in the art, upon reviewing the specification, would understand that ‘average molecular weight’ refers to the molecular weight at the peak of the molecular weight distribution curve,” or Mp. However, in response to an identical rejection in an earlier related application, the patentees said that “”[o]ne of ordinary skill in the art could understand that kilodalton units implies [sic] a weight average molecular weight,” or Mw.

Teva argued that one skilled in the art would have understood that average molecular weight could only be Mp. Teva asserted that use of SEC without more suggests Mp because determining Mn and Mw required additional calculations. The Court appeared skeptical of this argument, because SEC can be used to calculate all three values. Teva also downplayed the prosecution history by explaining that a skilled artisan would recognize that the statement in the earlier application was false — because “kilodalton units” does not imply weight average. Teva appears to have alleged that the second statement rectified the earlier misstatement. However, there is no indication that the patentees in the later application retracted the earlier statement. Therefore, the Court was left with two contradictory statements that could not be rectified. As such, the claims in Group I were held to be indefinite.

From an IPBiz post, July 27, 2013:

As to the group I claims, Teva had a problem because of arguments made in file histories. For one application, Teva argued molecular weight was Mp (peak average) but for another Mw (weight average). As the CAFC observed, Teva's two definitions cannot be reconciled. There was also an inconsistency within a figure as between the graph itself and the legend for the figure.
[The CAFC stated the peak average molecular weight Mp is the molecular weight of the most abundant molecule in the sample, so that it is not an "average" molecular weight." The CAFC also noted that Mn is the total mass of all molecules divided by the number of molecules, but did not give a definition for Mw. For completeness, Mw is the sum of the (square of molecular weight X number with that molecular weight) divided by sum of (molecular weight X number with that molecular weight).)

From IPBiz post, Why did the Supreme Court take Teva v. Sandoz? , April 22, 2014:

The CAFC found "group I" claims, which recited "molecular weights" of 5 to 9 kilodaltons, to be ambiguous because these claims did not specify how to measure the molecular weights. The district court construed the claims to reflect the molecular weight measure Mp (peak average molecular weight). Viewed in this light, the CAFC merely observed the self-evident legal problem: the claim did not say "which measure" of molecular weight was intended. End of story.

That is, without going into any "facts," one observes that the claim itself does not specify "which" measure of molecular weight is to be be used. This ambiguity was specifically identified by the Examiner during prosecution of the '539 and '847 patents. One might have thought the Examiner would have required insertion into the respective claims of the specific molecular weight measure. However, the Examiner apparently accepted arguments without requiring an amendment to achieve clarity. For the '539 patent, Teva said it was peak average, but for the '847 patent it was weight average. The contradictory resolution is a self-evident problem.

The matter of "facts" in the case enters in with the testimony of Teva's expert, Dr. Grant. The gist of his argument seems to be that because only Mp can be read directly from a size exclusion curve, Mp must have been intended for the "group I" claims. One wonders "why" the ability to read a parameter directly from a graph is proof of "which parameter" was intended in a claim.

As to legal matter of "clear error," the clear-error standard “requires
us appellate judges to distinguish between the situation in
which we think that if we had been the trier of fact we would
have decided the case differently and the situation in
which we are firmly convinced that we would have done so.”); Carr v. Allis
on Gas Turbine Div., Gen. Motors Corp., 32 F.3d 1007,
1008 (7th Cir. 1994)

Arguably, the crediting of the reasoning of Dr. Grant by the district court could be deemed clear error, and the debate rendered moot. [same outcome under either standard]

One year anniversary of Rader's "death squads" remark

From BNA on October 29, 2013, Rader Regrets CLS Bank Impasse, Comments on Latest Patent Reform Bill

On one side of the PTO, he [Rader] said, “You have 7,000 people giving birth to [intellectual] property rights,” while in the PTAB, there will soon be as many as 300 administrative patent judges “acting as death squads, killing property rights.”

US 3,819,974: Gallium nitride metal-semiconductor junction light emitting diode

US 3,819,974, with a claim to a light emitting diode comprising gallium nitride and magnesium doped gallium nitride, issued on June 25, 1974.

One notes that the "description of preferred embodiment" in US '974 is written in the present tense, not in the past tense.

Wally Rhines has a post in EE Times titled "Nobels Should Celebrate Invention and Optimization."

A comment to the Rhines post by Rick Merritt correctly distinguishes between innovation [what the Nichia people did] and invention [what Maruska, Rhines, Stevenson did].

See also a post in Physics Today Wall Street Journal op-ed disputes physics Nobel achievement’s provenance . The Wall Street Journal post How America Lighted the Way for a Japanese Nobel

See also Nobel Shocker: RCA Had the First Blue LED in 1972

Newsworks has a story on an experiment done on Maruska's initial device, which includes the text

After hearing of the Nobel announcement, and the omission of Maruska, Gross wanted to see if the prototype blue LED still worked. (...)

First thing they do is check the power source, a 22.5 volt battery attached to the back.

"Son of a gun, it actually has some poop," Allen says after plugging it into a volt meter.

"How much voltage are we talking here?" says Gross.

"20 volts," replies Allen.

"That's not bad," Gross says. (...)

"We got it, it is lighting faintly. We've got blue, it is glowing, that is definitely blue. It is beautiful!" says Gross.

A voice crackles with joy over the phone: "After all these years?"

These guys are over the moon. This little blue light, this artifact from the tale end of the golden age of American technology still fires.

The Nobel may have overlooked this contribution, but the foundation for the light bulbs of the future was laid in America.

Separately, a discussion by Paul Maruska appears at

which includes mention of how RCA failed to followup on Maruska's work.

In passing, one notes that blue LED story illustrates a number of aspects of patent strategy. That LED's could be used as a (white) light source was predicted in a 1963 in a Reader's Digest article, is mentioned in the 1974 patent, but did not "change the way we live" (an innovation) for more than thirty years later.

Different elements of patent strategy are illustrated in the story of Richard K. Lyon. Both Lyon and Maruska left Exxon Corporate Research Laboratory in the year 1986.

**See also

Friday, October 17, 2014

CardSoft loses big time at the CAFC

From CardSoft v. Verifone:

CardSoft alleges that Appellants infringe two patents
directed to software for small, specialized computers,
like payment terminals. In construing the patent claims, the
district court adopted
CardSoft’s proposed construction for
the claim term “virtual machine.”
Applying the district
court’s construction,
a jury returned a verdict for CardSoft.
Because the district court erred in
its construction of
“virtual machine,” and because CardSoft waived any
argument that Appellants infringe under the correct
construction, we reverse.

Senator John Walsh, post-plagiarism: "You have to pick yourself up, dust yourself off and move forward."

Yahoo has an interview with Senator John Walsh, after his degree from the War College was stripped,
On the back of a Harley, John Walsh reflects on what could have been

Within the post:

The document that would ultimately lead to his political demise was a 14-page research paper he wrote to receive a master's degree from the War College in 2007. The paper, titled "The Case for Democracy as a Long Term National Strategy," borrowed heavily from work done by the Carnegie Endowment for International Peace and a Harvard paper.

"I admit I made a mistake. I've made mistakes before in life, and I will probably unfortunately make mistakes again," Walsh told Yahoo News before his Harley ride here in July. "You have to pick yourself up, dust yourself off and move forward."

Thursday, October 16, 2014

Fast hydrothermal liquefaction of algae

A paper in the journal Algal Research reports on increased liquid yields from algae using "fast" hydrothermal liquefaction:

Using small quartz tube "reactors" – which look like tiny sealed straws – Tran heated the reactor containing a slurry made from the kelp biomass and water to 350 degrees C at a very high rate of 585 degrees C per minute.

An issue is that such liquids tend to have a level of nitrogen not suitable for use as fuels.

As to making more oil from algae, there is recent work at Michigan State University:

“Algae provide us with model organisms that rival, or possibly exceed, traditional yeast models,” Benning said. “It’s quite difficult to grow many types of human cells in test tubes. However, we can readily grow, manipulate and study algae, which have the genomic repertoire that make them relevant in their capacity to drive advances in human medicine.”

The discovery was made while tackling the conundrum of algae’s vexing inverse relationship with growing mass versus producing oil. When algae are awake, they grow; when they’re asleep, they produce oil.

“Producing oil is part of the cells’ survival strategy when it’s under stress,” said Chia-Hong Tsai, doctoral candidate with MSU’s Department of Energy Plant Research Laboratory and Department of Plant Biology and co-author. “They go into quiescence to conserve energy and nutrients. That’s when they produce the equivalent of vegetable oil. But to convert them into truly viable biofuel producers, we need them to grow and produce oil simultaneously.”

The secret for making this happen was CHT7 – the gatekeeper that cues cells to wake up or fall asleep. By engineering this protein, Benning’s team might one day develop an organism that can’t figure out how to doze and is always active. For biofuels, this would remove a major hurdle and gives scientists a way to potentially produce high amounts of oil and biomass.

Oral argument in Teva v. Sandoz

Reuters covered the oral argument in Teva v. Sandoz in the post Supreme Court divided in battle over Teva MS drug patent .

The Reuters text included:

Several justices, including Chief Justice John Roberts and Justice Samuel Alito, appeared reluctant to tinker with the existing system in which the appeals court is accorded great latitude in rethinking lower court findings.

"Is it worthwhile as a practical matter?" Alito asked, referring to the notion of disrupting the status quo.

Justice Sonia Sotomayor added, "Why don't we defer, as has been done now forever, to the Federal Circuit?"

Other justices seemed more concerned about the appeals court exerting too much power over lower court judges. Justice Stephen Breyer cited other areas of the law in which lower court judges have discretion.

The oral argument may be found here

William M. Jay presented the argument on behalf of petitioner (Teva), and started off with the proposition "trial judges find the facts." Justice Ginsburg immediately asked about the "facts" at issue in this case.

Later, Jay recommends "deference to classic fact-finding."

Justice Ginsburg brought up the point that inferences from facts get de novo review.

Justice Kagan got to the point of expert opinion testimony.

Justice Alito brought up a law review which suggested there is no practical difference between de novo review and clear error review.

There was some tense interplay between Mr. Phillips and Justice Breyer.

Justice Breyer stated that most amici favored fact-finding by the district court. (page 42) [This point seems in conflict with material at PatentDocs, Teva v. Sandoz -- Is Deferential Review a Boon for Patent Trolls? , which stated that the amici briefs favored de novo review: Interestingly, of the three amicus briefs submitted by operating companies themselves (representing 20 companies in total), all supported maintaining the de novo standard of review.]

At page 47 and page 48, there was a question of "how many" patents issue per year. No answer.

At page 49, one has the text "misstatement of science."

As to errors in science by district courts, one egregious chemistry mistake happened in 52 USPQ2d 1418, 1429 (D.Az. 1998) as later corrected in Durel Corp. v. Osram Sylvania Inc., 256 F.3d 1298, 59 USPQ2d 1238 (CAFC 2001). In various issues of "Intellectual Property Today" [IPT], LBE discussed the scientifically incorrect analysis of stoichiometry which underlay the district court decision. See the March 2002 issue of IPT: Omissions and Commissions: Durel v. Osram Revisited

***See discussion at PatentlyO including comment by Ned Heller:

Michel on Michelle, as Lee gets the nod for permanent appointment as USPTO Director

From a Reuters post titled White House nominates former Google exec Lee to head patent office :

Paul Michel, who retired from the U.S. Court of Appeals for the Federal Circuit in 2010 [and formerly Chief Judge], once employed Lee to clerk for him on the court, which specializes in patent and trademark cases.

"Her academic record was just astronomically impressive. If my memory serves me right, she got an A in every class she took at MIT," Michel told Reuters.

Wednesday, October 15, 2014

CAFC affirms D. Arizona in Thermolife v. Creative Compounds

There was a Rule 36 judgment in Thermolife v. Creative Compounds.

For material related to the case, see

Note the citation to Juicy Whip.

Teva v. Sandoz: alternative universe

Much is being written about Teva v. Sandoz in the context of de novo review.
The actual case at the CAFC was about indefiniteness of the meaning of
molecular weight, in part because the term was not defined in the specification.

Had the initial examiner raised, and persisted in, a rejection based on
indefiniteness, one would likely have obtained a result as in the recent Tay case.
Broadest reasonable interpretation indicates all reasonable meanings of
molecular weight are included. Teva loses.

Instead we are at the Supreme Court discussing de novo review and deference
to a district court which relied upon an expert opinion as a fact.

See also previous Ipbiz post on Cookie Cockatoo.

Tuesday, October 14, 2014

Sanctions under Rule 11 more powerful tool against "trolls" than eliminating Rule 84

Some discussion Rule 84 / Form 18 has appeared; see the two comments to the post The Judicial Conference of the U.S. makes small rules change for patent infringement and
One weird legal trick that makes patent trolls cry

Yes, Ultramercial v. Hulu does cite Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)

and one also should consider Rule 11.

From a 2008 IPBiz post:

as the district court noted, this court has explained that
[i]n bringing a claim of infringement, the patent holder, if challenged, must
be prepared to demonstrate to both the court and the alleged infringer
exactly why it believed before filing the claim that it had a reasonable
chance of proving infringement. Failure to do so should ordinarily result in
the district court expressing its broad discretion in favor of Rule 11
sanctions, at least in the absence of a sound excuse or considerable
mitigating circumstances.
View Eng’g, Inc. v. Robotic Vision Sys., Inc., 208 F.3d 981, 986 (Fed. Cir. 2000).

See also article by Hana Oh Chen , Jurimetrics, Vol. 54, No. 2, 2014, including text:

Sanctions under Rule 11 can be such a tool in curbing frivolous infringement suits. Rule 11 is particularly useful in the patent litigation context because it applies throughout the stages of litigation, including the initial stages, and its provisions help prevent the overdeterrence of claims with merit. A technology-specific application of the prefiling investigation requirement under Rule 11 can be an effective weapon in deterring plaintiffs from bringing meritless claims.

Patentees don't do well in court

PatentlyO mentions work of Allison, Lemley & Schwartz on Patent Litigation noting

Overall, patent challengers tend to win: Overall, patent holders tended not to win in cases that went to a definite merits resolution. Overall, patentees won only about 26% of the time (164/636 definitive merits rulings). In addition to invalidity, patent holders lost on frequently-brought motions for summary judgment of noninfringement 54% of the time (257/473) and infrequently obtained summary judgment on more rarely-brought motions for summary judgment of infringement (41/128). Thus, although patentees had a fairly high success rate at trial (winning on 59% of patents when juries made the decision and 64% when the bench did), the 1-2 punch of summary judgment followed by trial meant that most patent cases that went to judicial resolution were resolved in favor of the patent challenger.

One recalls the earlier PriceWaterhouse study. From IPBiz on the study:

Chart 9a suggests that the overall success rate for patentees is only 33%, with only two judicial districts [ED TX and MD FL) giving patentee success rates above 50%.

Pro se appellant Tay loses at the CAFC

An undefined term in the application was given its broadest reasonable interpretation and anticipatory art was identified.

The term contact is not defined in the
’864 application. Based on our review of the ’864 application
and the prior art, we agree that the broadest reasonable
construction of contact encompasses the reflective
layer disclosed by the prior art ’053 application.


SSL prevails over Citrix on the '011 patent

As to willful infringement, from
SSL v. Citrix:

To establish willful infringement, the patent holder
must show clear and convincing evidence that: (1) “the
infringer acted despite an objectively high likelihood that
its actions constituted infringement” and (2) “that this
objectively-defined risk . . . was either known or so obvious
that it should have been known to the accused infringer.”
In re Seagate Tech., LLC, 497 F.3d 1360, 1371
(Fed. Cir. 2007) (en banc). We review the first objective
prong de novo and the second subjective prong for substantial
evidence. See Bard Peripheral Vascular, Inc. v.
W.L. Gore & Assocs., 682 F.3d 1003, 1005–08 (Fed. Cir.
2012), cert. denied, 133 S. Ct. 932 (2013).

After the district court found the objective prong satisfied,
it submitted the issue of willful infringement to the
jury. The jury returned a verdict finding that Citrix
willfully infringed the relevant claims of the ’011 Patent.
SSL and the district court pointed to several items to
support the jury’s finding of willfulness, including the VOne
Agreements, V-One executives’ confirmation of
Citrix’s knowledge of the ’011 Patent, Citrix’s full access
to the V-One technology, and a Citrix executive’s admission
of knowledge of the ’011 Patent based on the V-One
Citrix disagrees, claiming that substantial evidence
does not support the subjective prong of willfulness.

As to opinions about infringement by non-legal

Citrix argues that it should receive a new trial on
willfulness because the court prevented the jury from
hearing fact testimony from its Chief Engineer, Marco
Murgia, that: (1) Citrix believed in good faith that its
products were non-infringing; and (2) that reexamination
proceedings had been initiated at the PTO. The district
court held that Murgia could not opine on whether the
accused products infringed claims of the ’011 Patent to
support Citrix’s good faith belief of non-infringement.
SSL Servs., 940 F. Supp. 2d at 500–01. Specifically, the
district court found that “it would be significantly prejudicial
to allow a fact witness[ ] to testify as to his opinions
on the issues of infringement and validity, particularly
when the testimony expressing such an opinion would be
rendered without regard for how this Court has construed
the claims.” Id. at 500. The district court also precluded
testimony on the then

As to obviousness:

We review the ultimate legal conclusion of
obviousness de novo in light of the underlying factual
findings. Kinetic Concepts, 688 F.3d at 1356–57.


For the reasons stated above, we affirm the district
court’s judgment of non-infringement of the ’796 Patent,
willful infringement of the ’011 Patent, no invalidity of
the ’011 Patent, award of prejudgment interest, and find
no error in its evidentiary rulings. We also vacate the
district court’s finding of no prevailing party and remand
for further proceedings consistent with this opinion.


Bosch loses to SnapOn at the CAFC

In Bosch v. Snap-On, the CAFC affirmed ED Michigan's determination that the claims of the Bosch '313 patent were invalid with no support in the specification for a claim under 112 P 6.

Of the law

Section 112, ¶ 6 (now § 112(f)) allows a patentee to
express a claim limitation as “a means or step for performing
a specified function without the recital of structure,
material, or acts in support thereof,” and the section
provides that claim limitations expressed in this manner
“shall be construed to cover the corresponding structure,
material, or acts described in the specification and equivalents


If we conclude that a claim term invokes § 112, ¶ 6,
we proceed to the second step and attempt to construe the
disputed claim term by identifying the “corresponding
structure, material, or acts described in the specification”
to which the claim term will be limited. Welker Bearing
Co. v. PHD, Inc., 550 F.3d 1090, 1097 (Fed. Cir. 2008). If
we are unable to identify any “corresponding structure,
material, or acts described in the specification,” the claim
term is indefinite. Noah Sys., Inc. v. Intuit Inc., 675 F.3d
1302, 1312 (Fed. Cir. 2012) (“[A] means-plus-function
clause is indefinite if a person of ordinary skill in the art
would be unable to recognize the structure in the specification
and associate it with the corresponding function in
the claim.”) (citations omitted).

Of one nuance in the case

On this initial issue we agree with Bosch. We are unaware
of any precedent stating that the presumption is
triggered by a claim’s use of the expression “by means of.”
In the past we have applied the presumption when a
claim uses the word “means” as a noun in the claim: a
“means” for doing something. We have not done so for the
phrase “by means of.”

Therefore, we conclude that the district court erred in
adopting a presumption that “program recognition device”
is a means-plus-function term based on the phrase “by
means of” in claim 1. However, for the reasons discussed
in the Part III.B, infra, that error was harmless, as even
without the benefit of the presumption, “program recognition
device” still invokes § 112, ¶ 6.

But Bosch still had problems

Although both “program recognition device” and “program
loading device” are presumed not to invoke § 112,
¶ 6, we must next turn to the issue of whether this
“strong” presumption against means-plus-function claiming
is overcome. See Lighting World, Inc. v. Birchwood
Lighting, Inc., 382 F.3d 1354, 1358 (Fed. Cir. 2004). In
undertaking this analysis, we ask if the claim language,
read in light of the specification, recites sufficiently definite
structure to avoid § 112, ¶ 6. Inventio, 649 F.3d at
1357. The question is whether the claim language names
particular structures or, instead, refers only to a general
category of whatever may perform specified functions.
See Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1536
(Fed. Cir. 1991) (“[t]he recited structure tells only what
the means-for-joining does, not what it is structurally”).
In the latter case, § 112, ¶ 6 then commands a construction
of the limitation as referring to specificationidentified
corresponding structures and their equivalents.
Snap-On argues that the claim terms “program recognition
device” and “program loading device” each lack
sufficiently definite structure. Indeed, this court has
found the word “device” to be a non-structural, “nonce”
word. See Mass. Inst. of Tech. v. Abacus Software, 462
F.3d 1344, 1354 (Fed. Cir. 2006); Personalized Media
Commc’ns, LLC v. Int’l Trade Comm’n, 161 F.3d 696, 705
(Fed. Cir. 1998). And the other words do nothing more
than identify functions for the “device” to perform.

Of expert witnesses:

Finally, Bosch argues that the district court improperly
disregarded the declaration of its expert witness, Dr.
Wagner, who is also a named inventor. At a minimum,
Bosch alleges that this declaration created a disputed
issue of material fact.

merely listing examples of possible structures is insufficient
to avoid invocation of § 112, ¶ 6.

Bottom line

Since we agree with the district court that both “program
recognition device” and “program loading device”
are means-plus-function terms and that the specification
does not disclose the requisite corresponding structures,
we affirm the district court’s holding that all claims in the
’313 patent are invalid as indefinite.

Monday, October 13, 2014

US Patent 8,851,081 to Philip Morris: electrically heated smoking system

The first claim of US 8,851,081 :

An electrically heated smoking system for receiving an aerosol-forming substrate, the system comprising:

a substrate;
at least one heating element for heating the substrate to form an aerosol;
a power supply connected to the at least one heating element and operable to supply power thereto;
programmable electrical hardware connected to the power supply and the at least one heating element, the electrical hardware being configured to communicate over a bidirectional communications link with a remote host and control the at least one heating element in heating the substrate based on the control parameters received over the communications link.

The inventors are European and priority is claimed to European Patent Application No. 0 825 1450, filed Apr. 17, 2008 .

Sunday, October 12, 2014

Cookie Cockatoo: alive and well in Chicago

As to the longevity of parrots, there are many apocryphal stories. However, one firmly documented case is the life of "Cookie Cockatoo," a Major Mitchell cockatoo who has been at the Brookfield Zoo in Chicago since it opened in 1934. Thus, Cookie is at least 80 ( Cookie hatched June 30, 1933 )

Cookie is the only surviving initial animal of the Brookfield Zoo.

Wikipedia notes: Cookie is Brookfield Zoo's oldest resident and the only surviving member of the animal collection from the time of the zoo's opening in 1934

Why mention Cookie Cockatoo in an IPBiz post?

First, IPBiz is partial to cockatoos. And Major Mitchell cockatoos are distinctive:

Second, Cookie's age is a fact which may be objectively
demonstrated. This is quite unlike the "fact" at issue in Teva v. Sandoz, which is truly an opinion not subject to objective demonstration.
The issue framed by Teva in Teva v. Sandoz is

Whether a district court’s factual finding in support of its construction of a patent claim term may be reviewed de novo, as the Federal Circuit requires (and as the panel explicitly did in this case), or only for clear error, as Rule 52(a) requires.

Crediting an opinion is not finding a fact.

see previous IPBiz post
Why did the Supreme Court take Teva v. Sandoz?
, including the text

The matter of "facts" in the case enters in with the testimony of Teva's expert, Dr. Grant. The gist of his argument seems to be that because only Mp can be read directly from a size exclusion curve, Mp must have been intended for the "group I" claims. One wonders "why" the ability to read a parameter directly from a graph is proof of "which parameter" was intended in a claim.

This is something like saying "Cookie Cockatoo" is old because his feathers look a bit frayed. It is an opinion which might be true, but alternative explanations are available.

"60 Minutes" on October 12, 2014 on NSA surveillance program

The first story was Scott Pelley interviewing James B. Comey, who was sworn in as the seventh Director of the FBI on September 4, 2013. The general topic was the NSA surveillance program. Early in the interview, Comey noted Americans should be skeptical of government power and oversight of courts will be at the head of the FBI's mission. We should not be doing anything we cannot explain. No surveillance by FBI without court order. This is an extremely burdensome process and I like it that way. There was discussion of CyWatch. The interview showed a copy of an FBI document ordering surveillance of Martin Luther King, signed by then Attorney General Robert F. Kennedy. Comey noted it was important that the FBI never be untethered to oversight and accountability.

The second story was Lesley Stahl interviewing James Risen. Issue of NSA surveillance being inconsistent with a 1978 law requiring a court order. Did authority of president as commander-in-chief trump the 1978 law? Jim Risen is threatened with jail for not revealing his sources. Bill Keller then of NYT was summoned to the White House. If the NYT published story, would it cost lives? Keller decided not to run Risen story. In Dec. 2004, the NYT killed the story again. Jill Abramson was second in command at the NYT. By 2005, the atmosphere had changed, and the NYT put Risen story back in play.
Meeting at White House. The NYT ran story on Dec. 16, 2005. Book by Risen: State of War. Chapter 9: A Rogue Operation.
Operation Merlin. Obama administration has prosecuted more government leakers than all previous administrations combined.
Former head of NSA does not think Risen should be prosecuted. How to redress Risen's wrong?

Third, a story on Joaquin "El Chopo" Guzman, a drug dealer, done by Bill Whitaker. After the death of Bin Laden, El Chopo became the most wanted man in the word. The drug cartel was run like a Fortune 500 company. Drugs were placed into fake cucumbers and bananas. A routine investigation in Nogales, AZ started the demise of Guzman. The communications structure.

CBS Sunday Morning on October 12, 2014

Charles Osgood presented the stories for October 12, 2014. The cover story by Susan Spencer was on coincidences, which included mention of Thomas Jefferson and John Adams both passing on July 4, 1826. Second, Lee Cowan on Michael Keaton.
Third, Rita Braver on Walter Isaacson, with a line about innovators who knew how to collaborate. Fourth, Anthony Mason on Sam Smith. Fifth, Faith Salie on Madeleine. Also, Steve Hartman and Chip Reid. Of the headlines, a health care worker who attended the US Ebola patient tested positive. More problems with enterovirus. The town of Kobani, Syria. Scandal in Parlin, NJ. Weather: thunderstorms in the plains; nice in northeast.

Spencer's story started with facts about the Solomon family, including Hillary Kimmelman Solomon and included comments by Professor Jay Kohler of the Northwestern University School of Law. There was mention of Godwinks [SQuire Rushnell ] and evidence for coincidences being of divine origin. the "law of truly large numbers." Matt Hudson. The universe flips a lot of coins. Matt Fletcher. Actress Diane Lane. 6F99.

Pulse. 49% think coincidences are of divine origin. 39% think chance.

Almanac. Medal of Honor to Desmond Doss of Lynchburg, VA on Oct. 12, 1945. Doss was a conscientous objector and a 7th Day Adventist.

Saturday, October 11, 2014

Self-plagiarism in an Illinois university, again

Some time ago, at Southern Illinois University (SIU), there was an issue of "self-plagiarism" when a certain employee [Chancellor Walter Wendler] "recycled" material from work at a different university without citing the earlier work in the later work. This was prior to the Poshard plagiarism matter, and SIU determined self-plagiarism was not problematic, but did re-assign the employee. See for example
SIU's Wendler out
Self-plagiarism and the "repurposing" of research
and SIU reassigns Wendler

Now, at the University of Illinois, there is another matter related to "self-plagiarism." See the post
at the Chronicle for Higher Education titled U. of Illinois Chancellor Corrects ‘Serious Errors’ in 2006 Paper including the text

Phyllis M. Wise, chancellor of the University of Illinois at Urbana-Champaign, has made a significant correction to a paper, published in 2006, that presents non-original work as original, the blog Retraction Watch reports.

See also the post by Ali Abunimah titled Illinois chancellor who fired Salaita accused of serial self-plagiarism

Evidence has emerged of several instances of duplicate publishing – a widely condemned form of unethical behavior sometimes called “self-plagiarism.”

It occurs when an author publishes the same research or the same or substantially similar paper in multiple venues without acknowledging the fact, in effect passing off the old research as something new.

Duplicate publishing is considered especially damaging in the medical sciences: the same results for a drug study published multiple times in different journals can give the false impression of numerous independent studies showing that the drug is effective.

Genetic engineering of cyanobacteria to make biofuels

There is a recent post on work by Patrik Jones of Imperial College London:

Dr Patrik Jones and his team have genetically engineered E-coli, a common bacteria found in the gut.

He says changing the metabolism in the cells can produce propane.

"Once you've optimised that system and get those different components to work together, then we can observe an impact on the metabolism, which is the production of propane", Jones said.


Jones is excited by something else though, the prospect of moving his team's genetic engineering into cyanobacteria, using cells that feed on sunlight.

"The nice thing with moving it into cyanobacteria is you then can utilise the fact that they harvest solar energy and use that to produce chemical energy. We can then tap into that chemical energy that it generates and divert that into a fuel instead of a biomass."

Note that Jones gave a talk in July 2014 titled Engineering cyanobacteria for biofuel production . Also speaking at Systems Biology Summer School - SBSS 2014 [Photosynthesis in Cyanobacteria -
Computational Modeling of a Cyanobacterial Cell ] was Krishna Mahadevan of the University of Toronto on Model based optimization of metabolic networks.

One recalls the 1999 paper titled Ethanol Synthesis by Genetic Engineering in Cyanobacteria which appeared in Appl. Environ. Microbiol. February 1999 vol. 65 no. 2 523-528, with the last sentence of the abstract stating As cyanobacteria have simple growth requirements and use light, CO2, and inorganic elements efficiently, production of ethanol by cyanobacteria is a potential system for bioconversion of solar energy and CO2 into a valuable resource.

**In terms of more recent work, from Journal of Biotechnology, Volume 184, 20 August 2014, Pages 100–102

Deletion of pathways for carbon-storage in the cyanobacterium Synechocystis sp. PCC6803 has been suggested as a strategy to increase the size of the available pyruvate pool for the production of (heterologous) chemical commodities. Here we show that deletion of the pathway for glycogen synthesis leads to a twofold increased lactate production rate, under nitrogen-limited conditions, whereas impairment of polyhydroxybutyrate synthesis does not.

**Separately, note of the recent ABO summit in San Diego:

Dr. Nikolaos Katsikis of SCHOTT and Raz Rashelbach of Algatech will present the study’s results to date at the Algae Biomass Summit, held from September 29 to October 2 in San Diego, Calif.

with the photograph

Senator John Walsh's name ground to dust, literally, over his plagiarism at the U.S. Army War College in Carlisle, PA

AP reported an unfavorable conclusion to Senator John Walsh (D-Mon) on the plagiarism matter, following analysis by an academic review board and appeal of the decision.

Sen. John Walsh's name has been removed from the U.S. Army War College's academic rolls and grinded from a plaque listing the members of the graduating class of 2007 after the college stripped him of his degree for plagiarism.

The announcement that the war college revoked the Montana Democrat's 2007 master's degree on Friday marked the end of a swift-moving controversy that began with a newspaper story in July and led to Walsh's withdrawal from the U.S. Senate race weeks later.

The review board's report found the plagiarism "egregious." A review of Walsh's paper by the school's director of communicative arts found little, if any, original language or research and that it was "primarily composed of verbatim liftings from other sources" presented as if they were Walsh's own work.

On October 11, 2014, The Patriot News/ Pennlive picked up an AP story Army War College finds senator committed 'egregious' plagiarism which included the following text

"In short, the paper was plagiarized and ... the plagiarism was intentional," the review board said in its report.


Former Gov. Brian Schweitzer, who appointed Walsh adjutant general, was among those who wrote a letter of support to the college's review board. Schweitzer told The Associated Press on Friday that Walsh should be judged on "a lifetime of leadership" based on his three-decade rise through the National Guard and service in Iraq.

"That was the John Walsh I selected, not the John Walsh that was a literary scholar or a person who understood the nuances of grammar and putting things in quotations," Schweitzer said.

See previous IPBiz posts, including

Major plagiarism scandal brewing as to Senator John Walsh

Plagiarism charge hampers Walsh's campaign in Montana

John Walsh and unintentional plagiarism

Lemley and Lex Machina

A post by Timothy B. Lee includes the text

New data from the legal analytics firm Lex Machina suggests that the newfound judicial hostility toward software patents is making plaintiffs gunshy (...)

But one obvious explanation for the apparent trend is that the Alice decision (and the related rulings from lower courts that followed) spooked software patent plaintiffs.

That's the view of Stanford legal scholar (and Lex Machina co-founder) Mark Lemley. "In the last two months, we’ve seen over a dozen decisions invalidating software and business method patents on the basis of Alice," Lemley says. "That’s a pretty strong deterrent to software plaintiffs whose patent isn’t directed to specific new computer technology."

Mandamus denied by CAFC in IN RE FUJITSU LIMITED AND FUJITSU NETWORK COMMUNICATIONS, INC. but granted in Google case

The CAFC noted:

In seeking a writ of mandamus, petitioners must es-
tablish a “clear and indisputable” right to relief and
that they “lack adequate alternative means to obtain the
relief” they seek. Cheney v. U.S. Dist. Court, 542 U.S.
367, 380-81 (2004)


But note that the Cheney case was also cited in the Google case (2014-147 ), wherein
the CAFC granted mandamus.


See also Google finally wrests Rockstar patent suit out of East Texas

Wednesday, October 08, 2014

Statements from the 2014 Algae Biomass Summit in San Diego

The San Diego Union Times covered the recent ABO meeting [ 2014 Algae Biomass Summit ] in the post Algae's promise rebounds after setbacks

Sapphire CEO James Levine said

“You have to look at the products you can make and the customers you can serve. Green Crude is absolutely an important part of Sapphire’s future, but there will be other parts that will be equally important. ... We look forward to providing more information on that over time.”

Stephen Mayfield is quoted:

"A reasonable extrapolation would be that a 50 percent yield increase can be achieved in the next five years, and a doubling of yield in the next 10,” Mayfield wrote in the March issue of the Applied Phycology newsletter.

His prediction: “Algae oil achieves economic parity with fossil crude oil at $140 a barrel in 2019 and beats it by $50 a barrel by 2024, when algae oil is at full commercial production scale.

This is based on the more complete text:

A price for algae oil was recently determined in a paper by Benneman et al (2012) and placed at $240 a barrel, based on
some conservative assumptions. So let us say that $240 a barrel is today’s price for algae oil, and then
assume that as a result of logical biological and process decisions, algae fall into an agricultural model
of increased productivity and reduced price over the next ten years. Viewing Americ
an agriculture for the last 50 years, it is clear that crop yields have increased dramatically over this period, with corn yields for example going up almost 400%. It seems reasonable to assume that algae yields will follow a similar
path, especially over
the next few years, when large gains should be easier to come by as genomic and
molecular technologies begin to be applied to a crop that has yet to benefit from these proven
innovations. A reasonable extrapolation would be that a 50% yield increase can be
achieved in the next
five years, and a doubling of yield in the next ten. So, even if no other breakthroughs emerge in process
development, harvesting, extraction or any other technology (which is unlikely), based on agricultural
productivity and innovation precedents, algae oil costs should reasonably decrease by 50% with the next
five years and be half of today’s cost within a decade. Process engineering developments will also
contribute to decreased cost and perhaps increased yields, so even assuming no
new inventions, these
trends point to algae oil nearing the $100 a barrel cost floor within five years, and potentially a further
decrease in cost over the five following years. This increase will not have the same impact, but will
reduce cost below the $100 a barrel floor.

The 2012 reference: Life Cycle Assessment for Microalgae Oil Production. Benemann, J., Woertz, J., Lundquist, T.
Disruptive Science and Technology. 2012, 1(2): 68

2014 complaint about stolen comedy sketch: there's a culture of plagiarism in the business

The quote is within the post Comedian says Lorne Michaels should fire 'Saturday Night Live' writers who steal material about an allegation that SNL people stole a Groundlings sketch.

One recalls fall-out ten years ago from the plagiarism done by Laurence Tribe:

Seizing upon Dershowitz's public mention of "cultural differences" between the legal profession (where judges routinely take the work of lawyers and clerks in writing their opinions) and the rest of academia, Dean Velvel expressed disbelief that Dershowitz would make such a distinction the basis for an excuse.

Dershowitz responded to Velvel, acknowledging that he stood by his comment of cultural differences but explaining that it was meant to serve as an observation on how accidental plagiarism may occur, not a defense of such actions. "There is never under any circumstances any justification for plagiarism and nothing I said was intended to serve as a justification," wrote Dershowitz. Dershowitz also suggested the establishment of a committee to set out clear guidelines for the use of research assistants by law professors.

quoted from 2004 post in IPBiz titled Accuracy in publication--time for law reviews to wise up?

Of course, no discussion of Harvard plagiarism is complete without mention of "Plagiarize with Pride":

One notes that the Harvard Business Review was not so timid. At page 68 in the April 2004 issue of HBR, one has in the article that became the basis for Hardball:

Plagiarize with pride.

Softball competitors like to think that their bright ideas are sacred. But hardball players know better. They're willing to steal any good idea they say --as long as it isn't nailed down by a robust patent -- and use it for themselves. Ray Kroc didn't invent McDonald's; he took the idea from brothers Dick and Maurice McDonald when he bought their small chain of burger joints. Home Depot founders Arthur Blank and Bernie Marcus didn't invent the first warehouse-outlet hardware chain; they got the "big box" concept from their earlier employer, Handy Dan Home Improvement.

quoted from 2006 IPBiz post Harvard Business Review article: Plagiarize with Pride

Nakamura, the Nobel Prize, and compensating inventors

With Shuji Nakamura sharing the 2014 Nobel Prize in Physics, it was foreseeable someone would bring up the patent award business. See for example One of the Physics Nobel Prize Winners Sold His Patent for the Discovery for $180 .

IPBiz has covered the story for some time. See the 2005 post
Nichia/Nakamura settle over blue LED
, which includes the text

Separately, of the Shuji Nakamura/Nichia flap over patents to blue light emitting diodes [LEDs], please see [from Just The Facts, Ma'am, Intellectual Property Today, Jan. 2003 on the failure of RCA to capitalize on its work on the blue LED]

[Paul Maruska obtained his Ph.D. from Stanford, and overlapped in time with LBE.]

Of the mention of LEDs as light sources in the Slate article, note the text

Holonyak himself foresaw applications long before they materialized, predicting the use of light emitting diodes as useful light sources in the February 1963 issue of Reader's Digest. Harland Manchester, Light of Hope—Or Terror?, READER’S DIG., Feb. 1963, at 97, 100.


Monday, October 06, 2014

MonoSol Rx gets IPR against Arius Two's US Patent No. 7,579,019

From a press release:

WARREN, N.J., Oct. 6, 2014 (GLOBE NEWSWIRE) -- The United States Patent and Trademark Office (USPTO) has granted MonoSol Rx, LLC's (MonoSol Rx) petition for inter partes review (IPR) of all claims of US Patent No. 7,579,019 ("the '019 patent") and has instituted the IPR. The '019 patent, owned by Arius Two, Inc, a wholly-owned subsidiary of BioDelivery Sciences International, Inc. (Nasdaq:BDSI) ("BDSI"), is cited by BDSI as a key patent in their BEMA drug delivery technology.


CBS "The Good Wife" episode titled "Dear God" reprises Monsanto seed patent cases

IPBiz has covered many of the lawsuits brought by Monsanto against individual farmers (e.g., Monsanto whacks farmer David at CAFC ). In the episode "Dear God" broadcast on October 5, 2014, "The Good Wife" added a religious flavor to the discussion, AND had the matter resolved by an agreement made directly by the parties while the lawyers were arguing in the background.

A New York Times blog discussed the scene this way:

What “Dear God” really meant was quite a bit of Richard Thomas, Robert Joy and Robert Sean Leonard as guest stars, which was fine. Mr. Thomas played a Florrick Agos Lockhart client, a wealthy agribusinessman suing a neighboring farmer (Mr. Joy) for infringing on his patent for genetically modified corn. When the two litigants, who were also old friends, both grew upset with the courtroom sparring of their lawyers, they chose to dispense with a judge and have their case settled by a Christian arbitrator (Mr. Leonard) whose gentle approach included ignoring most of the lawyers’ requests for rulings.

It was one of those “Good Wife” episodes in which the tables are turned and we laugh at the lawyers’ frustration when the thing they’re so good at — the courtroom back-and-forth — is taken away from them.

This is not the first dramatization of the Monsanto saga, with "Eleventh Hour" doing a more pernicious version in 2008.
From the IPBiz post
"Eleventh Hour" depicts evil university/industry cabal in biotech

The CBS show "Eleventh Hour" on Dec. 18 [ Agro, a re-broadcast] depicted biotech work gone bad at the fictional University of California/Fillmore. The "buying" of academic research by industry also came in.

Sunday, October 05, 2014

CBS Sunday morning on October 5, 2014

The cover story by Erin Moriarty on mandatory sentencing. Second, Lesley Stahl on It's only a play. Third, Tracy Smith on Billy Idol. You must become naked. Fourth, Rita Braver on Gone Girl. Martha Teichner. Luke Burbank.
Headlines. NJ Ebola ? Peter Cassy. Baby Doc died at age 63. San Francisco wins 2-1. Weather: cool in northeast; showers coming.

Story of Lee Woolard in Davenport, Fl. May 14, 2008: loud noise in house. Grabbed a .357. Fired a shot into a wall. Judge sentenced him to 20 years. Aggravated assault involving a firearm. Mandatory sentencing law.
Steven Jansen prosecutor. Blind justice. Julie Stewart. Polk County prosecutor declined to discuss the case.

Almanac. Oct. 5, 1989: Nobel peace prize to dalai lama.

Pulse on jury verdicts: 22% always right ; 57% sometimes right.

Cork story discusses cork skin. Cork umbrella. Cork baseball cap.

Ben Affleck in Gone Girl. The character was really interesting.
Gillian Flynn. Daughter of two community college professors. Reporter for Entertainment a Weekly.

Medical first in Sweden. Transplanted womb. The donor in this case was a 61 year old. Baby is named Vincent.

University of Goteburg.

Lesley Stahl on Break a Leg. F. Murray Abraham as a vicious critic. In the play, Ben Brantley is mentioned.
The play is basically sold out. Stockard Channing mentions -no hard feelings-

Opinion piece on Amazon buying twitch. The real world is the most interesting game any of us will ever play.

The week ahead. Monday-customer service week begins. Robert de aniro wins a Friars award.
Oct 10 Nobel peace prize announced. Thursday: stamp at Comecon.

Tensions in Hong Kong. Seth Doane does Sunday Journal. The umbrella revolution.
In 2017, Hong Kong gets to vote on its executive. Current: one country two systems.
Peoples Daily Newspaper. Fight for democracy in China taken onto the streets,

Next week on Sunday Morning: Michael Keaton.

Moment of nature. California sea lions at Seal Rock in Pebble Beach.

Charles Osgood had a purple bow tie.

Friday, October 03, 2014

Syracuse grad resigns over plagiarism matter

A writer covering FSU sports has resigned because of a plagiarism issue:

Natalie Pierre, who earned her master's degree from Syracuse University, has resigned
from her position as Florida State beat writer for the Tallahassee Democrat amid allegations of plagiarism.


See also

One recalls the "big" plagiarism matter for Joe Biden occurred at Syracuse Law School.

From a 2008 IPBiz post:

It began when Cooper and Biden were first-year law students at SU, after Biden married college sweetheart Neilia Hunter of Auburn, now deceased. In a course on legal writing, Biden and Cooper were asked to critique papers they had anonymously swapped.

“In critiquing Joe’s, I found five or six pages out of a law journal without citation,” Cooper said Sunday. “I told Joe about it, but he said he didn’t think there was a problem. I told him I thought I had to bring it up to the professor.”

Cooper, 63, said the university took action, indicating he believed that Biden had to repeat the course.

The violation might have been inadvertent, Cooper says now, but it especially became an issue in 1987 when the aspiring presidential candidate was also accused of lifting passages from British politician Neil Kinnock’s speeches, without attribution, for his own.

“My opinion was that he probably knew what he was doing,” Cooper says now of the SU incident.

Reasons for filing more than one inter partes review on a single issued patent

Note the article Filing Multiple IPRs for One Patent in Corporate Counsel, which concludes

As a strategic matter, filing multiple IPR petitions may provide a net benefit in terms of attempts at invalidation, flexibility, and perhaps obtaining a preview of the Board's thinking. While filing multiple IPRs might be more expensive, some of the commonalities across the proceedings may ameliorate the cost increase.

Michelle Lee considered for permanant (not acting) Directorship of USPTO

from Reuters

The acting head of the U.S. Patent and Trademark Office, former Google Inc executive Michelle Lee, is being seriously considered to permanently head the agency, sources have told Reuters.

Wednesday, October 01, 2014

Teaching plagiarism at Harvard?

From CNN

I don't think they were teaching plagiarism at Harvard Business School. I don't think they were teaching you to cut and paste other peoples' work and call it your own," Christie said at an event for Republican Gov. Scott Walker in Hudson, Wisconsin.

Maybe the Guv should check out "Plagiarize with Pride" in the Harvard
Business Review.

From a 2006 post on IPBiz:

One notes that the Harvard Business Review was not so timid. At page 68 in the April 2004 issue of HBR, one has in the article that became the basis for Hardball:

Plagiarize with pride.

Softball competitors like to think that their bright ideas are sacred. But hardball players know better. They're willing to steal any good idea they say --as long as it isn't nailed down by a robust patent -- and use it for themselves. Ray Kroc didn't invent McDonald's; he took the idea from brothers Dick and Maurice McDonald when he bought their small chain of burger joints. Home Depot founders Arthur Blank and Bernie Marcus didn't invent the first warehouse-outlet hardware chain; they got the "big box" concept from their earlier employer, Handy Dan Home Improvement.

Apple wins SJ motion against WiLan in SD Ca

Judge Dana Sabraw granted Apple's motion for summary judgment.