Thursday, April 30, 2015

Microsoft's US Patent 9,019,174: Wearable emotion detection and feedback system

The first claim of 'Wearable emotion detection and feedback system':

A see through head mounted display apparatus, comprising: a see through, head mounted display; a plurality of sensors cooperating with the display to detect audible and visual behaviors of a subject in a field of view of the apparatus; one or more processing devices in communication with display and the sensors, the one or more processing devices automatically monitor the audible and visual behaviors of the subject by receiving data from the sensors; determine a scenario of use for the see-through, head mounted display; compute an emotional state of the subjects based on the audible and visual behaviors weighted relative to the scenario; provide feedback to the display indicating computed emotional states of the subject.

UCLA Bruin trashes choice of Myhrvold as commencement speaker

Complaints about patent trolls have reached into university selection of commencement speakers.

In an editorial titled "Students need a voice in commencement speaker decisions," Ara Shirinian doesn't specifically call for Myhrvold to be disinvited, but does use the school's speaker selection to urge UCLA's higher-ups to give students more say in such decisions going forward.


The main complaint about Myhrvold is that Intellectual Ventures has a reputation as more of a patent troll -- it buys patents that can then be used to extract money from companies -- than as an innovator. Although Shirinian acknowledges that Intellectual Ventures also has a research arm and applies for patents of its own.


Cornyn/Schumer "PATENT ACT" does not have presumption of "loser pays"

From the Wall Street Journal Law Blog :

The bill requires plaintiffs bringing patent suits to make their initial allegations with more clarity and specificity. It also places limits on the amount of discovery a patent-holder can extract from companies during early stages of a case, in order to shield defendants from fishing expeditions. It allows courts greater leeway to award attorneys’ fees to the losing side of the lawsuit, including plaintiffs perceived by a judge to have brought a lawsuit with little basis in fact.

The bill also aims to curb the practice of some patent holders who embark on letter-writing campaigns against companies to scare them into settling.

The introduction of the Cornyn/Schumer bill — known as the PATENT Act — has garnered some early applause from the tech sector.

In a statement, Mark MacCarthy, the vice president of public policy for the Software & Information Industry Association, called the bill “an important step” that “we believe will be effective in curtailing abusive litigation.”

The bill isn’t identical to the House’s Innovation Act, which passed the House by a 325-91 vote during the last Congress. But that bill’s chief sponsor, House Judiciary Committee Chairman Bob Goodlatte (R., Va.) said he largely supported the Senate’s effort.

Of the text It allows courts greater leeway to award attorneys’ fees to the losing side of the lawsuit,, one presumes the WSJ meant to say "winning" side, not "losing" side.




device, comprising: a processor configured to: receive a request for a peer list from a first wireless transmit/receive unit (WTRU); determine one or more peer list candidate devices; place at least a first peer in the peer list; send the peer list to the first wireless transmit/receive unit (WTRU); receive a request from the first peer for one or more data segments, the one or more data segments requested by the WTRU; identify which of the one or more data segments are stored on the first peer; dynamically obtain any of the one or more data segments not stored on the first peer from at least one other node via a P2P protocol; and send at least one of the identified one or more data segments, or the obtained one or more data segments to the first WTRU



A robotic submersible comprising: a housing including a body and a tail; a pump and a pump tank adjusting a buoyancy of the housing; a first linear actuator controlling the pump; a battery powering a plurality of electronics; a second linear actuator controlling a position of the battery and adjusting a center of gravity; a controller controlling the pump and second linear actuator; the pump, first linear actuator and second linear actuator controlling gliding movements of the housing; at least one motor coupling the tail with the body, the motor controlling the movements of the tail to create a swimming movement; and the controller selectively operating the pump, first linear actuator, second linear actuator, and motor to control when the swimming and gliding movements occur.



A method of culturing Chlorella in non-axenic mixotrophic culture conditions, comprising inoculating an aqueous culture medium with a culture comprising Chlorella in an open culturing vessel in the presence of: a. light comprising photosynthetically active radiation (PAR); b. an organic carbon source comprising at least one selected from the group consisting of acetic acid, acetate, and acetic anhydride, at a concentration in the range of 15-50% (v/v); c. a pH in the range of 6-9; d. an initial concentration of sodium acetate, sodium hydroxide, or potassium hydroxide in the range of 0.05-10 g/L; and e. a dissolved oxygen (DO) concentration in the range of 1-6 mg O.sub.2/Liter of culture.

Tuesday, April 28, 2015

Apple's US 9,019,300: Framework for graphics animation and compositing operations

First claim:

A method of rendering a user interface of an application operating on a computer system, the method comprising: constructing a first data structure by interfacing with the application, the first data structure having first objects associated with the user interface of the application; constructing a second data structure separate from the first data structure, the second data structure having second objects associated with the first objects of the first data structure; making implicit animations available for automatically animating properties of the second objects in response to changes received from the application; receiving from the application a change for at least one property of at least one of the first objects from a first state to a second state; changing the at least one property of the at least one first object from the first state to the second state; determining one of the implicit animations for animating the change of the at least one property for at least one of the second objects associated with the at least one first object from the first state to the second state, the implicit animation being automatically determined independent of the application and being determined based on what the at least one property is that is subject to the change, wherein the application does not include explicit animation code for the automatically determined implicit animation; and rendering from the second data structure for display with the computer system by implementing the determined animation on the at least one property of the at least one second object.

Senate Judiciary Committee: patent reform without presumption of fee shifting to losing party

TheHill suggested a new patent reform bill is coming out of the Senate Judiciary Committee:

Bipartisan senators on the Judiciary Committee are close to unveiling legislation to fight so-called patent trolls.

Judiciary Chairman Chuck Grassley (R-Iowa) told reporters at the National Press Club that negotiators are "close to getting a final agreement," with his office later saying it could come as soon as this week. Another aide familiar with the talks said senators are close to a bill.


The Senate bill will not go as far as the House. While the Senate bill would give judges more latitude to award fees, it will not contain a fee shifting presumption.


US 9,018,013 to Life Technologies Corporation (Carlsbad, CA) titled Molecular biology tools for algal engineering

The first claim of US '013 states

A method for transformation of DNA into an algal cell comprising: (a) suspending the algal cells in a buffer, wherein the pH of the buffer is from pH 8 to pH 10, (b) adding DNA to be transformed to the algal cell suspension, (c) applying an electric pulse to the DNA Algal cell suspension thereby transforming the algal cell with the DNA.

Monday, April 27, 2015

Microsoft loses to Interdigital at ITC

Judge Theodore Essex ruled against Microsoft.

The Dexter Suggs plagiarism affair and the title "Doctor"

An editorial in Arkansas Business, talking about the Suggs affair, begins:

Under Associated Press style rules, most of which we have adopted at Arkansas Business, the honorific Dr. is reserved for medical doctors, dentists, veterinarians and the like — not for Ph.Ds. Therefore, we would never have called the interim superintendent of the Little Rock School District “Dr.” Dexter Suggs in the first place.

But unless Indiana Wesleyan University, which granted Suggs his doctorate, decides to rescind it, the taxpayers of Arkansas are on the hook for another $250,000. A quarter million dollars. As much as the median household in Arkansas earns through more than six years of honest labor.


This is not a correct statement of the Associated Press Style Book.
See page 85 of The Associated Press Stylebook 2013
By Associated Press.

Ironically, the title "Dr." was, at one time, more associated with those who held a degree granted by a university to learned individuals who had achieved the approval of their peers and who had demonstrated a long and productive career in the field of philosophy (in the broad sense of the term philosophy, the pursuit of knowledge). The appellation of "Doctor" (from Latin: teacher) was usually awarded only when the individual was in middle age. (from wikipedia)

The Arkansas Business editorial ends with the text:

So Suggs, kept in place by the Department of Education after it seized control of the LRSD, is gone, as he should be. But it wasn’t the DOE’s fault that a plagiarist was hired in the first place, and the state should never have agreed to reward such intellectual dishonesty.

Politicians talk a lot about incentives, both good ones and bad ones. The lesson our state government is teaching in the Dexter Suggs Affair is this: If you cheat, you might get a really good job. And if your bosses find out that you cheated, you might really hit the jackpot.

As one point, "who" is at fault for approving Suggs' thesis, or Glenn Poshard's?

As another point, lots of copyrists are still floating around: for example, Laurence Tribe, Doris Kearns Goodwin, and even the Vice President (who committed plagiarism at Syracuse Law School, but was quickly caught).

Google buying US Patents, for two weeks

Google will be buying patents in the time window May 8, 2015, through May 22, 2015.

Google Launches A Marketplace To Buy Patents From Interested Sellers


Google launches Patent Purchase Promotion program

Nichia loses to Everlight on white LED patents

From Digitimes:


In April 2012, Everlight Electronics filed for declaratory judgment of invalidity and non-infringement of Nichia's US patents related to white LEDs, including US Patent Nos. 5998925 and 7531960. These two patents are directed to YAG phosphor being used with blue LED chip to emit white light, and its phosphor concentration. The jury before the US District Court for the Eastern District of Michigan found on April 22, 2015 that all asserted claims of these patents are invalid for obviousness and/or lack of enablement.


Sunday, April 26, 2015

CBS Sunday Morning on April 26, 2015

Lee Cowan did the stories for April 26.  David Pogue  did the cover, Hacked!   Second, Martha Teichner on paper weights.  Third, Lee Cowan on Helen Hunt.  Fourth, Scott Simon on cowboy cooking.  Tracy Smith, Mary Peterson.

Headlines.  6.7 aftershock in Nepal.  Protests in Baltimore over Freddie Gray.  Storm in Mobile Bay.
Correspondents dinner.  Weather.  Rain in NE.

Holly Williams in Kathmandu.  Airport opened this morning.

David Pogue shows high school students taking cyber security jobs. In Huntsville, AL.
Leviathan in Seattle.   Admin / admin was left as user password.
Cyber threat intelligence information center.  Lisa Monaco.  Ed scotus built CyberCity.
CyberPatriot competition.  Terrifyingly normal business.

Almanac.  April 26, 1977:  Studio 54 opened.  Now home of Roundabout theater company.

NJ artist Paul Stankard on paperweights.  Arthur Rubloff.

Moment of nature.  Kirby Canyon preserve in Morgan Hill, Ca.

The Bay Area Checkerspot only lives 10 days: it hatches (from chrysalis in the ground), eats, mates, lays eggs & dies.

This year they, AND the wildflowers, are VERY early: normally, they would peak in April, but *they are peaking NOW: in a week or so they will be GONE*.

The Kirby Canyon Landfill Conservation Trust funds and oversees activities related to conservation of the Bay checkerspot butterfly. The wildlife team fenced off 250 acres of prime butterfly habitat (The Kirby Canyon Butterfly Preserve) and placed grazing restrictions on the area to protect the plant community the butterfly depends on for food, protection, and reproduction. The Trust is involved in monitoring the Bay checkerspot butterfly habitat, its population, and the planting of rare or native plant food sources. To encourage the spread of Bay checkerspot butterflies throughout Coyote Valley, Kirby Canyon Landfill, in cooperation with the Creekside Center for Earth Observation, provided 4,000 larvae for translocation to a nearby Mateo County habitat. In early 2013, 10,000 larvae were introduced on two sites, Tulare Hill in Santa Clara Count and Edgewood Park. Increases in the Bay checkerspot butterfly population have been observed, which is wonderful news for this avid program.

Saturday, April 25, 2015

Judge Stark invalidates two IV patents under 101 on April 22

The memorandum opinion includes an interesting discussion of evidentiary burdens.

The Dr. Oz response

In incidents of plagiarism, the accusers frequently have ulterior motives. The charges against Glenn Poshard at SIU  were likely motivated by treatment handed out to a professor.

But it is not a defense to a charge of plagiarism to impugn the accuser..

Similarly, as to the Dr. Oz affair:

“It’s ironic that I’m being accused of conflict of interests by these doctors,” Oz declared, “when some of them…have their own conflicts of interest.”

Separately, as to. First Amendment issues, from a letter in USA Today:

Our governmental regulations regarding obscenity and commercial speech specifically state that radio and television receives "less than full protection" under the First Amendment. Stringent broadcast scrutiny with restrictions when necessary could be applied to protect public health against physician recommendations of treatments without clear disclosure regarding their possible side effects and true substantiated efficacy. An independent supervisory body functioning as an FDA regarding alternative medicine, similar to the German Commission E,would significantly curtail outrageous claims of miracle cures and would also support better utilization and understanding of alternative, non-western medicine by identifying the contexts in which it is effective scientifically rather than empirically.


Vizio lists its victories over patent trolls

Vizio's list starting with allusion to April victory over Oplus:


The Federal Circuit decision marks the eighteenth notable VIZIO victory against patent assertion entities; the wins are listed below in alphabetical order:

Advanced Display Tech. (E.D. Tex.) – Dismissal with prejudice and $0 to plaintiff.
Bluestone Innovations (N.D. Cal.) – Pending dismissal with prejudice for $0 to plaintiff.
Cyberfone Systems (D. Del.) – Dismissal with prejudice and $0 to plaintiff.
E-Contact Techs. (E.D. Tex.) – Dismissal with prejudice for $0 and plaintiff to pay costs.
Freeny (E.D. Tex.) – Dismissal with prejudice and $0 to plaintiff.
Lochner Techs. (C.D. Cal.) – Dismissal with prejudice and $0 to plaintiff.
Man Machine Interface Techs. (C.D. Cal.) - Dismissal with prejudice.
Nazomi Commc'ns (I) (N.D. Cal.) – Won summary judgment of non-infringement, upheld on appeal.
Nazomi Commc'ns (II) (N.D. Cal.) – Won summary judgment of non-infringement, upheld on appeal.
NPE case – Dismissal with prejudice and $0 to plaintiff.
Olivistar (E.D. Tex.) – Dismissal with prejudice and $0 to plaintiff.
Oplus Techs. (C.D. Cal.) – Won summary judgment of invalidity and non-infringement.
Oplus Techs. (Fed. Circ.) – Won appeal that vacated and remanded lower court decision of denial of fees.
Orinda Intellectual Prop. USA (N.D. Cal.) – All patent claims canceled in reexamination and $0 to plaintiff.
Patent Harbor (E.D. Tex.) – Won claim construction dispositive of non-infringement, stipulated judgment of non-infringement upheld on appeal.
Penovia (E.D. Tex.) – Dismissal with prejudice and $0 to plaintiff.
Pragmatus Telecom (D. Del.) – Dismissal with prejudice and $0 to plaintiff.
Walker Digital (ITC and D. Del.) – Withdrawal of ITC complaint by Walker Digital on the eve of the ITC hearing and dismissal with prejudice in district court for $0.


Friday, April 24, 2015

IPR petition of Kaspersky denied in IPR2015-00178

Uniloc's patent survives.

District court claim construction reversed in INFO - HOLD , INC . v. APPLIED MEDIA TECH . CORP .

The CAFC noted: Because the district court erred in limiting the claims
to require that all communications between the server
and message playback devices be server-initiated, we
reverse the construction of the term “transmit ...


Info-Hold scores partial victory over Muzak at CAFC

In the case, Info-Hold, Inc., the owner of U.S. Patent No. 5,991,374,
was the appellant against Muzak the defendant.

The outcome of the case:

Following claim construction, the district court grant-
ed summary judgment to Muzak that, notwithstanding
infringement, Info-Hold was not entitled to reasonable
royalty damages, and that Muzak did not induce in-
fringement of the ’374 patent.
For the reasons set forth below, we reverse
the grant of summary judgment of no damages for infringement, we
vacate the summary judgment of no induced infringement, and
we affirm the district court’s construction of the sole cla
im term in dispute.

In terms of history

In 2006, Info-Hold contacted Muzak on at least two
occasions regarding the possibility that Muzak’s products
infringe the ’374 patent.
On February 21, 2006, Info-Hold’s in-house counsel,
Daniel Wood, sent a letter to
Muzak’s General Counsel, Michael Zendan,
drawing attention to the ’374 patent and
asking whether any of
Muzak’s products might practice the patented technology.
Mr. Wood specifically requested to be informed
of the results of any
“detailed analysis of the ’374 patent”
already conducted by Muzak.
Mr. Wood also requested that Muzak
conduct such an analysis.
J.A. 2890. Muzak did not respond to Info-Hold’s letter.

Info-Hold filed suit in May 2011, alleging
that Muzak infringed the ’374 patent through the manufacture and
sale of Muzak’s Encompass LE 2 and Encompass MV

As to damages, the CAFC observed:

In light of the foregoing, we reverse
the district court’s grant of summary judgment because there was no evi-
dence of record supporting a zero royalty and the evidence
of record which could be used to determine a non-zero
royalty was ignored.
We further remand the case to the
district court for further proceedings consistent with this opinion

The topic of "willful blindness" arose:

This record raises issues
of material fact as to wheth-
er Muzak may have subjectively believed there was a high
probability it infringed the ’374 patent and took deliberate
actions to avoid learning whether it actually did. In other
words, the record raises the issue of whether
Muzak willfully blinded itself to
whether it acted to induce in-
fringement after becoming aware of the existence and
alleged functionality of the ’374 patent.
See Global-Tech, 131 S. Ct. at 2070.
Therefore, we vacate
the district court’s grant of
summary judgment of no induced infringement and
remand for further consideration on the issue of Muzak’s
willful blindness

Teva v. Sandoz is cited:

Our review of a district court’s claim construction
based solely on the patent’s intrinsic record is de novo.
Teva Pharm. USA, Inc. v. Sandoz, Inc.,
135 S. Ct. 831, 841 (2015).
The words of a claim are
generally given their
ordinary and customary meaning, as understood by one of
ordinary skill in the art reading the claims in the context
of the specification and prosecution history.
Thorner v. Sony Computer Entm’t
Am. LLC, 669 F.3d 1362, 1365
(Fed. Cir. 2012).“
Claims must be interpreted with an eye
toward giving effect to all terms in the claim.”


Hybrid photosynthesis to make biofuel, chemicals

The abstract of the article in Nanowires:


Direct solar-powered production of value-added chemicals from CO2 and H2O, a process that mimics natural photosynthesis, is of fundamental and practical interest. In natural photosynthesis, CO2 is first reduced to common biochemical building blocks using solar energy, which are subsequently used for the synthesis of the complex mixture of molecular products that form biomass. Here we report an artificial photosynthetic scheme that functions via a similar two-step process by developing a biocompatible light-capturing nanowire array that enables a direct interface with microbial systems. As a proof of principle, we demonstrate that a hybrid semiconductor nanowire–bacteria system can reduce CO2 at neutral pH to a wide array of chemical targets, such as fuels, polymers, and complex pharmaceutical precursors, using only solar energy input. The high-surface-area silicon nanowire array harvests light energy to provide reducing equivalents to the anaerobic bacterium, Sporomusa ovata, for the photoelectrochemical production of acetic acid under aerobic conditions (21% O2) with low overpotential (η < 200 mV), high Faradaic efficiency (up to 90%), and long-term stability (up to 200 h). The resulting acetate (∼6 g/L) can be activated to acetyl coenzyme A (acetyl-CoA) by genetically engineered Escherichia coli and used as a building block for a variety of value-added chemicals, such as n-butanol, polyhydroxybutyrate (PHB) polymer, and three different isoprenoid natural products. As such, interfacing biocompatible solid-state nanodevices with living systems provides a starting point for developing a programmable system of chemical synthesis entirely powered by sunlight.


Article description:

Nanowire–Bacteria Hybrids for Unassisted Solar Carbon Dioxide Fixation to Value-Added Chemicals

Chong Liu †⊥, Joseph J. Gallagher ‡, Kelsey K. Sakimoto †, Eva M. Nichols †, Christopher J. Chang *†‡§#, Michelle C. Y. Chang *†‡#, and Peidong Yang *†⊥∥%
†Department of Chemistry, ‡Department of Molecular and Cell Biology, §Howard Hughes Medical Institute, and ∥Department of Materials Science and Engineering, University of California, Berkeley, Berkeley, California 94720, United States
⊥Materials Sciences Division and #Chemical Sciences Division, Lawrence Berkeley National Laboratory, Berkeley, California 94720, United States
% Kavli Energy NanoSciences Institute, Berkeley, California 94720, United States


Who files inter partes review actions at the USPTO?

Kenyon & Kenyon re-published work on users of The IPR procedure:


Although inter partes review proceedings are designed to provide those accused (or at risk of being accused) of patent infringement with a faster and less costly proceeding to challenge the validity of a patent, they have also drawn the attention of outsiders. There are several types of Patent Trial and Appeal Board (PTAB) 'crasher', each with its own motivation for challenging the validity of one or more patents. What they have in common is that each has filed one or more inter partes review petitions despite having no risk of being charged with infringement of the subject patent(s). To date, PTAB crashers have accounted for 47 inter partes review petitions.

One type of PTAB crasher is patent defence firms. These firms usually make revenue from eliciting fees from practising companies and then file inter partes reviews targeting patents that potentially pose risks to their clients (however, Iron Dome is a patent defence firm that has (or at least had) a different business model). Patent defence firms are often subject to the accusation that they are in privy with their clients and, in some cases, their inter partes review petitions have been denied for failing to list all real parties in interest.

Financiers are another type of PTAB crasher. The number of inter partes review petition filings by financiers has been increasing rapidly. These PTAB crashers challenge patents owned by publicly traded companies and appear to be gambling on shifts in stock prices. Inter partes review petition filings of this kind are on the upswing. Of the nine inter partes review petitions filed by financiers, five were filed in the past several months and two were filed very recently by the Coalition for Affordable Drugs.

Patent monetisation firm Intellectual Ventures has also jumped into the inter partes review arena by filing inter partes reviews against patents owned by district court litigation foes, presumably to put additional settlement pressure on them.

Finally, there are activists that challenge patents because they believe it is in the public interest. The US Patent and Trademark Office fees of $23,000-plus per petition may be a significant deterrent for these types of filer, but by our count two such petitions have been filed to date.


**To elaborate on Intellectual Ventures, in one situation, Xilinx challenged the validity of IV patents in a district court action and IV retaliated by challenging the validity of four Xilinx patents in IPR actions.

The background of this case is complicated, because Xilinx was an investor in IV. As Reuters
reported on May 2, 2014
Chipmaker Xilinx invested in two Intellectual Ventures funds and licensed a portion of IV's patents, but resisted IV's entreaties to license more patents in 2010, court filings show. Xilinx eventually asked a California federal judge to declare those IV patents invalid, while IV countersued in Delaware, accusing Xilinx of infringement.
May 2 (Reuters) - Patent owner Intellectual Ventures has settled a lawsuit against one of its own investors, chipmaker Xilinx, a case that had been closely followed by advocates seeking to change the U.S. patent system.

A court filing on Thursday disclosing the settlement did not discuss terms. Intellectual Ventures and Xilinx Inc had been scheduled for trial this month.


**at this point! Kyle Bass is involved in at least five IPRs against drug patents.
It is suspected his interests are shorting the stock of the target companies prior to filing
the IPR, in anticipation of a stock price drop. The stock of Acorda did drop about 10%
after the IPR filing. The active ingredient of that drug was 4-amino pyridine.

**Activists used the previous inter partes re-examination procedure to challenge patents
prior to IPR. So nothing new here. An example, well-covered in IPBiz, was Consumer Watchdog
challenging WARF in the stem cell area.

**In passing, Kenyon & Kenyon was the law firm representing AGIS against Life360:
A piece in Ars Technica begins:


In May 2014, Life360 CEO Chris Hulls received an aggressive patent demand letter. The letter, from lawyers representing a company called Advanced Ground Information Systems (AGIS), told him he needed to pay for a "royalty-bearing license" to its four patents, or Life360 and its customers would have to "cease and desist" from infringement.

In other words: pay up, or shut down your company. The letter demanded a response within three days. Hulls wrote back: (...)

Thursday, April 23, 2015

IPRs can be filed against small companies

Related to the text --The Inter Partes Review was created as a quick and relatively inexpensive way for technology companies and retailers to deal with so-called patent trolls -- which appeared in a recent Bloomberg post about Kyle Bass, one notes a post in the Quad City Biz Journal titled Prophetstown company wins patent battle which shows not all IPRs are filed against trolls. This confusion by Bloomberg is emblematic of supporters of Goodlatte's Innovation Act who point to what the Act will do to trolls, but neglect to point out its consequences to universities, small businesses, and other non-troll entities.

From text within the Quad City post:

On Jan. 22, in Jacobs Corp. vs. Genesis III, Inc., the Patent Trial and Appeal Board, or PTAB, denied the IPR petition in all respects, finding that it "failed to demonstrate a reasonable likelihood that any of the challenged claims would be held invalid under any of several proposed theories."

“Contrary to what patent infringers may believe, the (United States Patent and Trademark Office) post-grant proceedings do not allow infringers to act with impunity against the exclusive rights enjoyed by a patent owner,” Jay Hamilton, founder and principal of Hamilton IP Law, said in a news release. "This decision denying the trial demonstrates that patent challenges at the USPTO can be defeated before expenses become crippling. The PTAB’s decision has strengthened the ‘569 Patent, recognizing the validity of all the patent claims in view of the three different proposed grounds of invalidity.”

Written opinion for PCT/US2012/056063 shows one can patent a steak.

On May 22, 2012, Eric Limer had a post titled Oklahoma State University Discovers New Steak, Trying To Patent It which began with the text

You might not think it would be possible, but through some sophisticated knife-wizardry, Oklahoma State University and their resident meat expert discovered a new cut of steak: The Vegas Strip. Supposedly, it’s secreted away inside the slab of meat that’s traditionally ground up for hamburger. Why only “supposedly” you ask? Well, OSU won’t say exactly what the Vegas Strip really is, because they want to patent it.

Limer did note the trade secret alternative:

Generally, this is the area where a company would opt for the trade secret route. You can make anything a trade secret (well, anything involved in the production of a physical product that is then sold for a profit) and trade secrets will never expire. Since you can’t patent recipes, companies like Coca Cola and KFC have opted to make their formula and blend of herbs and spices trade secrets. As a bonus, trade secrets never expire like patents do. But if a trade secret is stolen, you’re out of luck; you can’t sue anyone to stop them from using it. Considering a lot of people would have to know the secret to this steak in order to mass produce it, the trade secret route would be pretty tricky. That’s why OSU is opting for the patent, so they can license the steak to specific plants. “License the steak.” Man that sounds wrong.

Patenting methods of food production, however, isn’t completely unheard of. Steak-Umms and KFC Popcorn Chicken both had patents on them. It’s a thin line to draw between an industrial production process and a recipe, but this new steak patent might give us reason to start considering it. Given that the huge collection of increasingly restrictive patents has been clearly affecting innovation in a negative way, it’s probably best that this steak remain unpatented because, after all, a patented steak does sound absurd. That doesn’t mean it won’t be awarded a patent. Much, much more unworthy things have been issued patents, but if this doesn’t bring the “patent everything!” train to a halt, I’m not sure what will. Now if you’ll excuse me, I’m going to go patent my method of making salad. You know, the one that involves the tossing of lettuce.

[IPBiz notes that it is not clear that there was a patent on Steak-Umms]

On 25 September 2014, application 20140287133 was published, titled METHOD OF OBTAINED A STEAK FROM SUBSCAPULARIS AND PRODUCT OBTAINED BY SUCH METHOD and assigned to Oklahoma State University.

The first two claims were

1. A method of preparing a cut of meat, wherein is provided at least a portion of a Subscapularis muscle having some amount of lean tissue, fat tissue, and connective tissue, wherein said at least a portion of said Subscapularis muscle has a cranial side, a caudal side, a ventral end, a dorsal end, a medial surface and a lateral surface, comprising the steps of: trimming from said cranial side, said caudal side, said ventral end, said dorsal end said medial surface and said lateral surface at least a portion of said lean tissue, said fat tissue, and said connective tissue, thereby preparing said cut of meat.

2. A meat product produced by the method of claim 1.

The US case is related to PCT/US2012/056063, filed 19 Sept. 2012. The written opinion for the PCT found claims 7-20 of the PCT to be patentable.

For reference, claims 7 and 8 of the PCT:

7. A method of preparing a cut of meat, wherein is provided at least a portion of a Subscapulars muscle, and wherein said at least a portion of said Subscapulars muscle has a cranial side, a caudal side, a ventral end, a dorsal end, a medial surface, and a lateral surface, comprising the steps of:

a. making a longitudinal cut of said at least a portion of said Subscapulars muscle from said ventral end to said dorsal end proximate to an edge of said cranial side, at least a portion of said longitudinal cut being at least approximately parallel to a caudal side edge of said at least a portion of said Subscapulars muscle;

b. making a cut from said dorsal end into said at least a portion of said Subscapulars muscle until a prominent white fissure is at least approximately reached; and,

c. making a cut from proximate to said prominent white fissure to said caudal side, wherein said cut from proximate to said prominent white fissure is chosen to said caudal side is oriented so as to sever said prominent white fissure from said at least a portion of said Subscapulars muscle, thereby forming said cut of meat.

8. A meat product produced by the method of Claim 7

The patentability of claim 8 suggests it is true that one can patent a steak. As to recipes, the earlier
IPBiz post, Can one patent a recipe? established that one can patent a recipe.

[There has been no substantive examination of US 20140287133 .]

Kyle Bass files two more IPRs against drug patents on April 23, 2015

On April 23, 2015, Kyle Bass filed IPRs against a patent on Shire's Gattex and against a patent on Celgene's Thalomid.

In covering this in the post Bass Expands Drug Patent Fight as Celgene, Shire Make Five , Bloomberg made some statements which require clarification.

As to the text --Bass said he’s not targeting the entire drug industry and won’t accept settlement payments in order to drop the challenges --, the Engellener article [below] notes that in the first year, only 8% of IPRs resulted in settlements.

As to the text --The Inter Partes Review was created as a quick and relatively inexpensive way for technology companies and retailers to deal with so-called patent trolls --, one notes that the Engellener article places costs for an IPR at $300-500K, a bit steep for a small retailer taking on a troll alone. Furthermore, an IPR does not resolve infringement, so if the retailer does not invalidate all the asserted claims, the retailer still has a problem.
One separately notes that "inter partes review" was meant to replace the previously existing procedure of "inter partes re-examination."

See AIPLA paper by Tom Engellenner titled Comparison of Federal Court, ITC, and USPTO Proceedings in IP Disputes (Jan. 2014)

As background on selling short, see
Trade Secret For being Positioned to Profit When Stocks Fall

The CAFC tackles disparagement in In re Tam

In the case In re Tam, decided by the CAFC on 20 April 2015, the appellate court affirmed the TTAB's affirming
the examining attorney’s refusal to register the mark THE SLANTS because it is disparaging.

As to the legal analysis of

Section 2(a) of the Lanham Act provides that the Patent
and Trademark Office (PTO) may refuse to register a
trademark that “[c]onsists of or comprises immoral,
deceptive, or scandalous matter; or matter which may
disparage or falsely suggest a connection with persons,
living or dead, institutions, beliefs, or national symbols, or
bring them into contempt, or disrepute.” 15 U.S.C.
§ 1052(a).

A disparaging mark “‘dishonors by comparison
with what is inferior, slights, deprecates, degrades, or
affects or injures by unjust comparison.’” In re Geller, 751
F.3d 1355, 1358 (Fed. Cir. 2014) (quoting Pro-Football,
Inc. v. Harjo, 284 F. Supp. 2d 96, 124 (D.D.C. 2003))
(alterations omitted). In Geller, we applied a two-part
test to determine if a mark may be disparaging:
(1) what is the likely meaning of the matter in
question, taking into account not only dictionary
definitions, but also the relationship of the matter
to the other elements in the mark, the nature of
the goods or services, and the manner in which
the mark is used in the marketplace in connection
with the goods or services; and
(2) if that meaning is found to refer to identifiable
persons, institutions, beliefs or national symbols,
whether that meaning may be disparaging to a
substantial composite of the referenced group.

The text in Geller is as follows:

A mark may disparage when it “ ‘dishonor[s] by comparison with what is inferior, slight[s], deprecate[s], degrade[s], or affect[s] or injure[s] by unjust comparison.’ “ Pro–Football, Inc. v. Harjo, 284 F.Supp.2d 96, 124 (D.D.C.2003) (quoting Harjo, 50 U.S.P.Q.2d at 1737 n. 98). - See more at:

Note the words "may disparage." The text in Tam is not an accurate representation of what is in Geller.

Within the district court memorandum opinion on Harjo [284 F.Supp.2d 96 (2003) ]:

At issue in this appeal is the decision of the Trial Trademark and Appeal Board ("TTAB" or the "Board") to cancel six federal trademark registrations involving the professional football team, the Washington Redskins, because it found that the marks "may disparage" Native Americans or "bring them into contempt, or disrepute." Harjo v. Pro-Football, Inc., 50 U.S.P.Q.2d 1705, 1749, 1999 WL 375907 (Trademark Tr. & App. Bd.1999) ("Harjo II").


In September 1992, Suzan Shown Harjo and six other Native Americans (collectively, "Defendants" or "Petitioners") petitioned the TTAB to cancel the six trademarks, arguing that the use of the word "redskin(s)" is "scandalous," "may ... disparage" Native Americans, and may cast Native Americans into "contempt, or disrepute" in violation of section 2(a) of the Lanham Trademark Act of 1946 ("Lanham Act" or "Act").
None of the parties argue that the TTAB's decision to treat "disparage" in the same manner as "contempt or disrepute" was error. Therefore, the Court has not reviewed this legal determination and in assessing the TTAB's decision, only reviews whether the marks at issue "may disparage" Native Americans, which includes whether the marks bring Native Americans into contempt or disrepute.


The TTAB first defined the term "disparage" in accordance with the ordinary and common meaning of the term. Id. From this review, the Board concluded that the trademarks may disparage if they may "dishonor by comparison with what is inferior, slight, deprecate, degrade, or affect or injure by unjust comparison." Id. The Board then observed that unlike the inquiry into whether a trademark is scandalous, where the test looks to the reaction of American society as a whole, a disparagement test is much more circumscribed and is limited by section 2(a) of the Lanham Act. Id.

Note again that the district court used the words "may disparage."

Within the case Rain v. Rolls-Royce : the court looked to Black's Law Dictionary to identify the plain and ordinary meaning of the term “disparage,” which it found to be: “[t]o dishonor (something or someone) by comparison” or “[t]o unjustly discredit or detract from the reputation of (another's property, product or business).” - link:

In the Tam case, the proposed mark "The Slants" is not making a comparison. Also, it is not discrediting or detracting from the reputation of another's property, product, or business.

The final words of Judge Moore's concurring remarks, in which the limitation on "may disparage" is questioned on
constitutional grounds:

We have yet to be presented with any substantial government interests that would justify the PTO’s refusal to register disparaging marks. Without this, § 2(a) cannot satisfy the Central Hudson test. It is time to revisit the holding in McGinley in light of subsequent developments in the law and the trademark registration funding re-gime.

And note the words of the statute are "may disparage." What does that mean?

The CAFC deals with word count in an opening brief [FRAP 32(a)(7)]

There is a post on the ABA Journal [Squished-together words don't count as one, Federal Circuit says; appeal is tossed ] discussing the case PI-NET INTERNATIONAL, INC. and DR. LAKSHMI ARUNACHALAM vs. JPMORGAN CHASE & CO., which has text at the top of the published CAFC case: Case: 14-1495 Document: 74 Page: 1 Filed: 04/20/2015.

Within the order of April 20, 2015 [available through a link at the ABA Journal], one has some detail:

On March 17, 2015, this court directed Appellants to
show cause why the first filed corrected brief should not
be stricken and why this appeal should not be dismissed
for failure to file an opening brief in compliance with the
court’s rules. That order was in response to a motion from
JPMorgan that noted that Appellants’ opening brief
exceeded 14,000 words if, inter alia, Appellants had not
deleted spaces between various words in the brief.

The Federal Rules of Appellate Procedure limit an
appellant’s opening brief to 14,000 “words.” Fed. R. App.
P. 32(a)(7). Appellants attempted in their first corrected
brief to create “words” by squeezing various words together
and deleting the spaces that should appear between the
words. For example, the following is not one word, although
that is how it appears on page 3 of Appellants’ first
corrected opening brief:

[catentated text of a cite ]

Instead, when written properly, it is 14 words: Thorner v.
Sony Computer Entm't Am. LLC, 669 F.3d 1362, 1365
(Fed. Cir. 2012). Similar matters appeared throughout
the brief.

In the alternative, Appellants move for leave to file a
new “corrected brief.” The new corrected brief does not
bring the actual word count below 14,000 words. For
example, the new corrected brief would, instead of deleting
spaces between words in case citations, replace various
phrases or case citations with abbreviations such as
“TOA1” and list those citations only in the table of authorities.
The Appellants also use abbreviations such as
“CR1” to cross-reference to something that was stated
earlier in the brief, although it is so poorly explained that
it is nearly incomprehensible. Neither the previously filed
brief nor the most recent proffered corrected brief comply
with the court’s rules. Instead, they represent an attempt
to file briefs that, if written properly, exceed the permitted
word limitation.

Appellants have failed to show cause why the brief
should not be stricken and why the appeal should not be
dismissed. Pursuant to the court’s March 17, 2015 order,
the appeal is dismissed.

On the CAFC website, there are three cases for April 20, 2015, including
IN RE: SIMON SHIAO TAM, but NOT including 14-1495.

Further, a search for 14-1495 yielded the following response at the CAFC website:

Your search has not returned any results. Please refine your search and try again.

Separately, merely for information:

Apple's US application 20150112593 : Humanized Navigation Instructions for Mapping Applications

From the specification of Apple's application:

[0003] Conventional navigation instructions are mechanical and not easily understood by many users. For example, a conventional navigation instruction may be "turn right in 0.3 miles to street x." Many users cannot estimate 0.3 miles, and if the street sign for "street x" is not visible the turn can be missed. Another example instruction may be "head north." Heading north is not easy if the user does not know the direction of north. Another instruction may be "in 600 feet, arrive at your destination on the right." In cities with densely packed POIs, it may not be obvious where the destination is located, especially since the location accuracy may not be good enough for the `600 feet` number to be trusted.

[0004] In addition to being overly mechanical, conventional navigation instructions do not account for the mental state of a user and can often confuse and frustrate the user who may be lost in an unfamiliar location.


[0005] A humanized navigation system provides humanized instructions that mimic a real human navigator, focuses on comprehension rather than precision, and attempts to make the navigation session less stressful for the user. In some implementations, complex navigation situations are classified according to shared common navigation problems. Once a class is determined, humanized navigation instructions are generated and/or selected based on the class and the current location of the user. The humanized navigation instructions include information to aid the user in navigating a route.

The first claim: A method comprising: determining a complex navigation situation has been encountered by a navigation device; determining one or more landmarks or attributes associated with a current location of the navigation device; and generating a humanized navigation instruction using the one or more landmarks or attributes, where the method is performed by one or more hardware processors.

Published US application 20150111269 to Butamax


First 7 claims:

1. A mutant ketol-acid reductoisomerase enzyme comprising the amino acid sequence as set forth in SEQ ID NO: 29.

2. A nucleic acid molecule encoding the mutant ketol-acid reductoisomerase enzyme of claim 1.

3. A nucleic acid molecule encoding a mutant ketol-acid reductoisomerase enzyme having the amino acid sequence as set forth in SEQ ID NO:19.

4. A mutant ketol-acid reductoisomerase enzyme as set for in SEQ ID NO:19

5. A recombinant cell comprising the mutant ketol-acid reductoisomerase enzyme of claim 1.

6. A mutant ketol-acid reductoisomerase enzyme as set forth in SEQ ID NO:17 comprising at least one mutation at a residue selected from the group consisting of 24, 33, 47, 50, 52, 53, 61, 80, 115, 156, 165, and 170.

7. A mutant ketol-acid reductoisomerase enzyme according to claim 6 wherein: a) the residue at position 47 has an amino acid substation selected from the group consisting of A, C, D, F, G, I, L, N, P, H, T, E and Y; b) the residue at position 50 has an amino acid substitution selected from the group consisting of A, C, D, E, F, G, M, N, V, W and I; c) the residue at position 52 has an amino acid substitution selected from the group consisting of A, C, D, G, H, N, Y, and S; d) the residue at position 53 has an amino acid substitution selected from the group consisting of A, H, I, W, Y, C, and R; e) the residue at position 156 has an amino acid substitution of V; f) the residue at position 165 has an amino acid substitution of M; g) the residue at position 61 has an amino acid substitution of F; h) the residue at position 170 has an amino acid substitution of A; i) the residue at position 24 has an amino acid substitution of F; j) the residue at position 33 has an amino acid substitution of L; k) the residue at position 80 has an amino acid substitution of I; and l) the residue at position 115 has an amino acid substitution of L.

Inventing Steak-Umms and popcorn chicken; the patenting of food items

Eugene Gagliardi invented Steak-Umm [ At 3 in the morning, he had an idea. He got up out of bed and went to the plant and tried it. His idea was complicated — he put the meat through the grinder a bunch of times, then he mixed it, put it in a mold, froze it, then he tempered it, then sliced it — and, finally, he cooked it and ate it to see if it was any good. ] He also invented the original popcorn chicken, disclosed in US 5,266,064. Some of his other patents are mentioned below.

[As to other aspects, see GAGLIARDI v. TRIFOODS INTERNATIONAL, INC., 683 A.2d 1049 (Del. Ch. 1996) . IPBiz had covered the death of Edwin Traisman, the inventor of what became McDonald's frozen French fries; see ]

Some patents of Gagliardi:

**US 7,857,687 titled Disk-like steak product having a plurality of truncated pie wedge shaped portions

First claim: A steak product made by cutting a piece of meat which is initially generally in the shape of a parallelepiped comprising the steps of: cutting the meat along four generally curved first cut lines extending generally parallel to the grain of the meat to remove four corners of meat and to thereby create a meat portion which is generally cylindrically shaped and elongated; cutting the generally cylindrically shaped meat portion along each of a plurality of generally parallel second cut lines, each of the second cut lines being generally perpendicular to the grain of the meat and being spaced from each other by a first predetermined distance to create a plurality of disk-like cylindrical meat portions each having a predetermined thickness corresponding to the first predetermined distance and each having a predetermined diameter corresponding to the diameter of the cylindrically shaped meat portion; and cutting at least one of the disk-like meat portions along each of a plurality of third cut lines, each of the third cut lines extending generally radially inwardly from a curved outer circumferential edge of the at least one disk-like meat portion toward but not entirely through the axial center of the at last one disk-like meat portion to create an uncut center portion, the third cut lines being circumferentially spaced apart by a second predetermined distance to produce a steak product having a plurality of generally truncated pie wedge shaped portions held together by the center portion.

**US 7,780,507 titled Method of cutting beef short ribs and beef products produced by the method

First claim: A method of cutting beef short ribs to create beef rib products having enhanced per pound value, the short ribs comprising a plate having a plurality of rib bones taken from between the fifth and thirteenth ribs of beef and the meat surrounding the rib bones, the short ribs having a first, generally concavely shaped inside surface and a second generally convexly shaped outside surface, the method comprising the steps of: separating the short ribs into a plurality of generally equally sized individual rib meat portions, each having a rib bone, by cutting completely through the short ribs from the first surface to the second surface along cut lines extending generally midway between and generally parallel to the rib bones; and making a series of generally parallel cuts into the meat on at least one of the first and second surfaces of each of the rib portions, the cuts made into each rib portion extending generally perpendicular to the rib bone along the entire length of the meat from one end of the rib bone to the other end of the rib bone and being spaced apart from each other by a first predetermined distance.

**US 7,134,958 titled Method of making bird wing and breast products and products made in accordance with the method

First claim: A method of cutting a whole bird to form bird meat products comprising: removing a portion of the wing of the bird including the wing tip section and the center, two bone section; removing the breast and the drumette of the wing from the remainder of the bird leaving the drumette attached to the removed breast; and cutting through the removed breast along a cut line extending approximately one third of the distance along the length of the removed breast and generally parallel to the bone of the removed drumette to create a breast product and a breast/drumette product.

** US 6,428,838 titled Method for making a food product from the thigh of a bird or other animal and a food product resulting therefrom

First claim: A method of making a food product, comprising: selecting a thigh of an animal, the thigh comprising a thigh bone at least partially surrounded with thigh meat, the thigh bone having a first end and a second end; partially deboning the thigh causing the first end of the thigh bone to extend from the thigh meat to form a handle for holding the food product, the thigh meat being generally positioned proximate to the second end of the thigh bone after the partial deboning; and forming a plurality of cuts in the thigh meat, the plurality of cuts forming a plurality of sections of thigh meat extending from an uncut portion of the thigh meat which is generally secured to the second end of the thigh bone, the plurality of sections simplifying the removal of individual portions of the thigh meat from the thigh.

US 6,238,281 titled Method of making a bird meat product

First claima: A method of making a meat product from a bird, comprising the steps of:

cutting a first boneless breast lobe from the bird;

cutting a second boneless breast lobe from the bird;

cutting each of the first and second boneless breast lobes lengthwise into at least two boneless breast portions;

cutting a first whole leg from the bird;

cutting a second whole leg from the bird;

removing the bones from the first and second whole legs;

cutting each of the first and second whole legs lengthwise into at least two boneless leg portions, each leg portion containing both thigh meat and drumstick meat; and

assembling the boneless breast portions and the boneless leg portions to simulate the appearance of a bird.

co-assignee: Bojangles' International, L.L.C. (Charlotte, NC)

**US 5,976,608 titled Method for cutting a pork butt to provide pork products with enhanced value

First claim: A method for cutting a pork butt to provide pork products, the method comprising:

removing the blade bone from the butt;

locating and identifying the principal shoulder muscles of the butt;

cutting along one or more seams extending through the butt and around portions of at least one of the shoulder muscles to remove at least one principal shoulder muscle from the remainder of the butt;

denuding the removed shoulder muscle by removing all cartilage, fat, connective tissue, membrane, and other non-muscle material from each outer surface thereof to provide a solid pork muscle; and

feeding the denuded shoulder muscle through a meat grinder having an output plate which includes a plurality of elongated slot-like openings such that the ground pork emerging from the output plate comprises a plurality of relatively thin ribbon-like strips, the strips thereafter being placed in a hot sauce.

***As to the invention of Steak-Umm, note GAGLIARDI BROS., INC. v. CAPUTO , 538 F.Supp. 525 (ED Pa 1982), which includes text


Plaintiff, Gagliardi Bros. Inc. (Gagliardi), a Pennsylvania corporation with its principal place of business in Pennsylvania, is in the business of processing and marketing portion controlled meat products, including but not limited to a sliced sandwich steak marketed under the trade-name Steakumm, for sale to retail, institutional, and restaurant outlets. Gagliardi was a family owned business until February, 1980, when it was sold to a subsidiary of H. J. Heinz Company (Heinz). Eugene Gagliardi, Sr., the founder of the business, remains active in its affairs, and his sons Nick and Ralph are Vice Presidents. The current President and Chief Executive Officer is Richard A. Blott (Blott), a Heinz manager.

Defendant, Dan J. Caputo (Caputo), is a 53 year old individual residing in Delaware and was employed as a controller by Gagliardi from September 1972 until his termination on July 7, 1981. As its controller Caputo was one of Gagliardi's key employees, and attended all Board of Directors (pre-1980) and Management Board (1980 to 1981) meetings. As a result of his responsibilities at Gagliardi, Caputo became familiar with Steak-umm and its beef formula and fat content, information also obtainable by means of chemical analysis. He knew also that Gagliardi had spent hundreds of thousands of dollars developing modifications and improvements to Steak-umm, and to develop a new sophisticated steak slicing machine and an improved, innovative packaging. These developments are trade secrets of competitive value which Gagliardi has a financial interest in keeping confidential. Caputo also knew of valuable, confidential marketing research studies conducted on behalf of Gagliardi with regard to consumer rating of sandwich steak characteristics. At no time did Caputo deal with Gagliardi customers.

When hired by Gagliardi in 1972, Caputo did not execute any employment contract. In November 1974, following rejection of its patent application for Steak-umm, Gagliardi required Caputo, as well as several other employees, to sign such contracts. Caputo thus executed a two-page document entitled "Reappointment as Comptroller and Raise in Salary", together with a written Addendum. If he had not, his employment would have been terminated. Neither Caputo's job title nor duties changed at that time. Caputo did receive a $50.00 per week, $2,600.00 annual increase in salary at approximately the time he executed the contract. Similar increases were paid him in May, 1974, May, 1975, and October, 1975. Furthermore, in pertinent part, the contract provided as follows:
You further agree that in the event of termination of your employment, with or without cause, you shall not, for a period of one year after termination of said employment, either directly or indirectly, enter into the portion controlled meat business, nor will you enter into the employ of anyone who is engaged in a similar business within one hundred miles of West Chester, Pennsylvania.


The one year restriction on employment although perhaps reasonable in the sense of not being excessively long, nevertheless bears no reasonable relationship to the protection of Gagliardi. For one, there is no evidence to show that Gagliardi would in any way be harmed by permitting Caputo to work for Devault before a year has passed. Indeed, there has been no showing that there is any information which Caputo may possess and which might be revealed to a new employer to the detriment of Gagliardi. Gagliardi has not established that Caputo has any technical knowledge regarding the new slicing machine technology, innovative packaging, or marketing data, from which Devault, or some other competitor of Gagliardi, could develop and produce a new slicing machine similar to that contemplated by Gagliardi, or institute use of the new innovative packaging planned by Gagliardi before Gagliardi could itself make that packaging available, or devise new marketing strategy based on the results of the market research conducted on behalf of Gagliardi. In addition, Gagliardi has not established that Devault could change its beef formula based on any information it might receive from Caputo which it could not otherwise discover through, for example, chemical tests.

Caputo's expertise is as a controller, not as an engineer, designer, marketing analyst, or chemist. His general knowledge about Gagliardi poses no real threat to Gagliardi, so that a time limit on his employment eligibility is unnecessary and unreasonable.

As for the 100 mile limit, that restriction no longer makes sense. Caputo could work for a competitor of Gagliardi beyond that limit. Since Gagliardi's marketing area is no longer confined to that 100 mile radius, as it was when the covenant was imposed, even if there is the need to protect it, a showing which we have determined has not been made, there is no reason to think that such protection could not be needed as to those other marketing areas. The conclusion we draw is that restricting Caputo's employment opportunity to the 100 miles of West Chester radius is not reasonable when the Gagliardi marketing area is no longer so restricted, regardless of what might have been the reasonableness of such a geographic limitation when the covenant was established.

Additionally, it is significant that imposition of a restrictive covenant has not been required of employees of Gagliardi since 1977, yet its business has grown considerably since that time. Thus, neither Caputo's successor, nor even as vital an executive as Gagliardi's President, Mr. Blott, are subject to restrictive employment covenants. Unless we are to believe that only Caputo can hurt Gagliardi by working as a controller for a competitor, this evidence strongly suggests that Gagliardi, despite the initiation of this action, does not perceive any need for the imposition of restrictive covenants, or else others would be subjected to agreements such as that sought to be enforced here.

Finally, we consider the fact that Caputo received but rejected employment offers which would have required relocation, and that he and his wife operate their own accounting service. As the above cited cases make clear, the focus of an inquiry on the issue of enforcement of a restrictive covenant is on the reasonableness of the covenant itself, and on the employer's need to enforce it, and on the ancillary agreement and consideration which support it.
[538 F.Supp. 530]
The availability, or lack thereof, of alternative employment opportunities or sources of income is not a direct factor to consider. Of course, the obvious hardship of a restrictive covenant in preventing an individual from earning a livelihood, is the basis of the law's disfavor of such agreements. See, Minnesota Mining and Manufacturing Company v. Prosceno, slip op. at 5; Morgan's Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d 838 (1957). This is so regardless of the particular financial circumstances of the employee against whom it is sought to be enforced.

Since we find the restrictive covenant unenforceable, there is no basis for issuance of an injunction, and judgment is entered in favor of the defendant and against the plaintiff.



Note that Gagliardi also holds design patents, e.g., USD293041.

Wednesday, April 22, 2015

Plagiarism and the H1B visa issue

IPBiz touched on the subject of H1B visas in the post Big companies trying to feed castor oil to little companies on patent reform?.

Something to think about as to foreign students arises in the post Plagiarism on rise at Australian universities as academics face pressure to pass international students, including the text

“There are students that are falling through the cracks, and yes, they could end up being unsafe practitioners,” one academic, who worked for the University of Western Sydney and the Australian Catholic University told the ABC’s Four Corners.


Academics told the ABC the pressure to pass underperforming full-fee paying international students, with one lecturer saying she was “staggered” by the increase in plagiarism.

The report also shed light on the murky world of the offshore agents used by Australian universities to recruit hundreds of thousands of students, mainly from China.

In one case, a Beijing agent who represents universities including Monash, Queensland, Sydney, Newcastle, Southern Cross, ACU, ANU and UTS, was caught on tape saying he would accept a forged school transcript if a student had a poor academic record.

Kyle Bass files IPR challenge to Biogen's blockbuster MS drug, Tecfidera

Earlier on April 22, IPBiz had reported the IPR challenge of Kyle Bass to Imbruvica :
Kyle Bass files IPR against patent related to Imbruvica (Ibrutinib)
. This followed a challenge to Ampyra, a treatment for multiple sclerosis. Now, Bass has filed another challenge, again related to a drug for MS.

The Boston Business Journal reported on 22 April 2015:

In a filing with the U.S. Patent and Trademark Office today [22 April 2015], the so-called Coalition for Affordable Drugs — which has already challenged patents held by Lexington-based Shire Pharmaceuticals (Nasdaq: SHPG) and Acorda Therapeutics (Nasdaq: ACOR) in New York and Chelsea, Massachusetts — challenged Biogen's patent No. 8,759,393 for Tecfidera by Biogen (Nasdaq: BIIB). That patent covers the twice-a-day dosage of the drug, which is currently Biogen’s top seller.

from Hedge fund manager targets patent for Biogen's blockbuster MS drug, Tecfidera

See also previous IPBiz post
Hedge funds and patents

Patent attorney sues former employer over wrongful termination for not filing applications

Bloomberg picked up the story of patent attorney Steven Trzaska suing L'Oreal after being terminated for not filing patent applications.  The suit was filed in federal district court in Newark on
16 April 2015.  Bloomberg noted:

A lawyer formerly in charge of applying for patents in cosmetics company L’Oreal SA’s U.S. office claims he was fired in December for refusing to make filings for dubious inventions just so the company could fill an annual quota. L’Oreal pledged to fight the allegations.


See post

Fired L’Oreal Lawyer Says Patent Push Was Only Cosmetic

From the New Jersey Law Journal

Two weeks later, according to the suit, Trzaska was called into a meeting with the company’s head of human resources for research, Diane Lewis, who offered him 15 weeks of severance if he would leave the company. He did not accept, but on Nov. 25, 2014, he received a call from Thomas Sarakatsannis, general counsel of L’Oreal USA, who offered him 40 weeks of severance if he would leave, the suit alleges. Trzaska again declined, according to the suit, but on Dec. 8, he was told he was being terminated immediately.
Trzaska was told at the time of his dismissal that his position was no longer needed, but the same position was advertised soon thereafter, the suit alleges. The stated reason for dismissal was a pretext for the actual reason for his discharge, which was his refusal to sign patent applications for inventions that he did not believe to be patentable, and his refusal to supervise such conduct by patent attorneys and patent agents under his supervision, the suit claims.
A patent attorney or patent agent is legally and professionally responsible when reviewing a patent application “to make a good-faith determination whether the subject matter in an invention disclosure is potentially patentable,” according to the suit.
L’Oreal’s exposure in the case is “heavy” because Trzaska, 52, earned roughly $400,000 per year and could have reasonably looked forward to another 15 years of work, said Gerard Jackson, the Cherry Hill attorney representing Trzaska. Furthermore, jobs for lawyers in Trzaska’s speciality are scarce and his age makes it harder for him to get hired, Jackson said.


The ABA Journal noted


The quota in 2014 was 40 patent applications in the U.S. research division and 500 applications worldwide, according to details of the suit covered by the New Jersey Law Journal. The company then put “patent pending” claims on products in an effort to persuade consumers and shareholders its products were innovative, the suit alleges.

Trzaska’s suit says the patent quotas put him at risk of violating rules barring lawyers from bringing frivolous proceedings and making false statements to a tribunal. His suit, filed in federal court in Newark, New Jersey, based on diversity grounds, alleges violation of New Jersey’s Conscientious Employee Protection Act.




Background of Trzaska:

Widener University School of Law

JD, Jurisprudence

Activities and Societies: Moot Court Multiple American Jurisprudence Award Winner

Santorum, Shapiro spar over conservative position on patent reform

The American Spectator has an interesting exchange between former Senstor Rick Santorum and Gary Shapiro in the post titled:


Conservatives and Patent Reform Continued: Rick Santorum Responds

With a reply from Gary Shapiro.



Shapiro's tact seems to be to impugn Santorum rather than to address issues:

But I think you need a basic primer on this topic,

P.S. I am paid by the Consumer Electronics Association’s 2,000-plus member companies, which together employ millions of Americans. If you are being paid by troll lawyers or others with an interest in scuttling this legislation please disclose this information.


Shapiro does not address the problem that universities and small inventors have with the "loser pays" aspect of Goodlatte's Innovation Act.  Shapiro does not say why "loser pays" is necessary to resolve his troll problem.

The "loser pays" provision applies to all patent cases.  If universities or small inventors lose because they are outgunned by a richer adversary, they presumptively pay.  Understandably, they don't like this.  Gary Shapiro has no answer.  Rather Shapiro's response is that his opponents are ignorant or in the thrall of trolls.  No substance there.

Kyle Bass files IPR against patent related to Imbruvica (Ibrutinib)

FiercePharma reports on another IPR filed by hedge funder Kyle Bass against a drug patent.  This one relates to the '090 patent on Imbruvica:

After Bass' petition was filed Monday, Pharmacyclics shares dropped. Not by a huge amount, as Acorda's did after the Ampyra challenge. But plenty to deliver a significantly bigger profit--provided you were short enough.


Ibrutinib was first designed and synthesized at Celera Genomics .  
Approved by the FDA for treatment of mantle cell lymphoma, it is being studied for use against other afflictions, including diffuse large B-cell lymphoma and multiple myeloma.

Rapid action in Arkansas plagiarism matter: the accused resigns

From Arkansas Business:


In a statement, the state Department of Education said Commissioner Johnny Key reached an agreement with Suggs that "resulted in Dr. Suggs’ immediate resignation …" It named Marvin Burton as the district's new interim superintendent. 



"It's a little upsetting. You had more than enough ammo to fire him outright. He was an at will employee there was no contract. There's no reason. Unless you're trying to hide something. There was no reason to tell him here's a quarter of a million dollars," added Campbell.



US patent 9,015,037 to LinkedIn on fact checking

The first claim states

1. A device comprising: a. a memory for storing an application for performing steps of: i. fact checking information by comparing the information with source information to determine factual accuracy of the information; ii. indicating a status of the information based on a result of the comparing of the information with the source information in real-time; iii. receiving a response from a user related to the status of the information; and iv. presenting additional information based on the response; and b. a processor for processing the application. 


The specification notes:


Information is easily dispersed through the Internet, television and many other outlets. One major problem is that the information dispersed is often not correct. Although there are fact checking websites available online, these websites check facts in a slow manner; typically not truly providing a fact check response for several hours or even days. 

Priority chain

This application is a continuation-in-part application of co-pending U.S. patent application Ser. No. 13/565,013, filed on Aug. 2, 2012, and titled "CANDIDATE FACT CHECKING METHOD AND SYSTEM" which is a continuation-in-part application of U.S. Pat. No. 8,321,295, filed on Jun. 20, 2012, and titled "FACT CHECKING METHOD AND SYSTEM" which is a continuation application of U.S. Pat. No. 8,229,795, filed on Apr. 17, 2012, and titled "FACT CHECKING METHODS" which is a continuation application of U.S. Pat. No. 8,185,448, filed on Nov. 2, 2011, and titled "FACT CHECKING METHOD AND SYSTEM" which claims the benefit of U.S. Provisional Patent Application Ser. No. 61/495,776, filed Jun. 10, 2011, and titled "FACT CHECKING METHOD AND SYSTEM," all of which are hereby incorporated by reference in their entireties for all purposes. This application also claims the benefit of U.S. Provisional Patent Application Ser. No. 61/736,181, filed Dec. 12, 2012, and titled "FACT CHECKING METHOD AND SYSTEM," which is hereby incorporated by reference in its entirety for all purposes.

Tuesday, April 21, 2015

PH.D. Thesis plagiarism flap brews in Little Rock

There is a plagiarism flap in Little Rock, Arkansas involving the PH.D. thesis of Dexter Suggs at Indiana Wesleyan University.  Some of the copying was alleged to be from a 2005 thesis at the University of Oklahoma.  KATV wrote:

Dr. Georgann Scott, who wrote her dissertation in 2005, was shocked to find her work in Suggs' 2009 dissertation without giving him permission to use it.
On Thursday, when Channel 7 News asked Suggs if the allegations first made by the Blue Hog Report were true, he denied it saying it was his original work.
“I was angry, that was the first thought that came to my mind,” said Dr. Scott.
Dr. Scott is a retired educator who in 2005 wrote this dissertation at the University of Oklahoma. Fast forward to 2009, when LRSD's Dr. Suggs wrote his dissertation at Indiana Wesleyan University with paragraphs almost identical to Scott's without Suggs citing her work.
“He used large sections of my dissertation without any notation or any signature from he says he has these papers and he doesn't have my signature on anything,” added Scott.


To unpack this text, the granting of permission to use relates to copyright infringement, which is distinct from plagiarism,  which is unattributed copying.  One can plagiarize Shakespeare without infringing copyright.

**As a historical point, one recalls inter-thesis plagiarism was involved in the Martin
Luther King affair.  As reported by the LA Times in 1991:

Worse, in the view of most academic standards, was King's appropriation of works by other writers about Tillich, including a 1952 doctoral dissertation by another Boston University student. In the general bibliography of his thesis, King referred to the other student's dissertation but did not cite particular passages.

--the 1952 thesis was that of Jack Stewart Boozer 

Someone has posted Scott's 2005 thesis on the internet.  Aspects of it caught the attention of

Given that the thesis is dated 2005, which is in the 21st century, one notes that page xi of the thesis talks about the 20th century in the present tense--"The populace of the twentieth century is increasingly obsessed..."-

The first paragraph on page 1 sets a time of 75 years and of 76 years.  What was special about
1929 or 1930?

On page 1, the 20th century goes into the past tense:  "the populace of the 20th century was obsessed..."

One could continue, but the central allegation is copying of this material rather than the quality thereof.

And, as with the King thesis (copying of one BU thesis by a later BU student), why did not the thesis committee pick up on the copying?

The New York Times on the color green

Within a New York Times article titled "Our Ever Green World" one finds the text


Green was changeable, capricious, as uncontrollable as fate, no more to be trusted than a green-skinned goblin or sprite. “From the 16th century on,” Mr. Pastoureau writes, “gaming tables were covered with green baize, the color symbolizing chance, the stakes, the ante, and the money to be won or lost.”
Later, chemists invented far more stable green dyes, including the chromium trioxide ink that put the green in our bank notes beginning in the 1860s. The green ink can’t be destroyed by acid or base or other chemical agent, it’s resistant to fading, and it’s extremely difficult to counterfeit. It’s the perfect backdrop for a Founding Father’s face.


One notes that the pigment to make paper money green is chrome green, which is a chromium (III)
Oxide., Cr2O3.  Chromium trioxide, CrO3, is chromium (VI), and is not green.

Singer Lulu is back; is there a copying issue?

From an interview with singer Lulu:

If you could go back in time, where would you go?
To the 60s, when I was 16, at the Marquee in Soho, and Eric Clapton asked what I was doing that night. I would give him a better answer.

If you could bring something extinct back to life, what would you choose? 
Vinyl, and the feeling of anticipation and excitement when they announced the release date of the new Beatles record.

--from the Guardian, March 28 <-- p="">
**Separately, Dionne Hickery has suggested the possibility that Lulu copied a song.

"The first line is similar and in the same key and the chorus has a few similarities too. I'm not sure if Lulu has copied my song. I wouldn't be too happy because I'm really proud of it."
News of the investigation comes just days after the Shout hitmaker spoke of her pride at writing her own songs for the first time in her 50-year career.

Intel's US 9,013,861: Charge storage device, method of making same, method of making an electrically conductive structure for same, mobile electronic device using same, and microelectronic device containing same

The first claim of Intel's patent titled -Charge storage device, method of making same, method of making an electrically conductive structure for same, mobile electronic device using same, and microelectronic device containing same - reads as follows:

1. A charge storage device comprising: a first electrically conductive structure and a second electrically conductive structure separated from each other by an electrical insulator, wherein: at least one of the first electrically conductive structure and the second electrically conductive structure comprises a porous structure containing multiple channels; the charge storage structure further comprises nanostructures located within at least some of the channels of the porous structure; and each one of the channels has an opening to a surface of the porous structure. 

Google's US 9,014,905: Cyclist hand signal detection by an autonomous vehicle

The first claim of Google's issued patent titled - Cyclist hand signal detection by an autonomous vehicle - is

1. A method, comprising: a computing device receiving a plurality of data points corresponding to an environment of an autonomous vehicle; the computing device determining one or more subsets of data points from the plurality of data points, wherein the one or more subsets of data points are indicative of at least a body region of a cyclist, wherein the body region of the cyclist comprises an upper-body region of the cyclist including at least one arm of the cyclist; based on an output of a comparison of the one or more subsets with one or more predetermined sets of cycling signals, the computing device determining an expected adjustment of one or more of a speed of the cyclist and a direction of movement of the cyclist; and based on the expected adjustment, the computing device providing instructions to adjust one or more of a speed of the autonomous vehicle and a direction of movement of the autonomous vehicle. 


The law firm was  McDonnell Boehnen Hulbert & Berghoff LLP .

From the specification:


Autonomous vehicles use various computing systems to aid in transporting passengers from one location to another. Some autonomous vehicles may require some initial input or continuous input from an operator, such as a pilot, driver, or passenger. Other systems, for example autopilot systems, may be used only when the system has been engaged, which permits the operator to switch from a manual mode (where the operator exercises a high degree of control over the movement of the vehicle) to an autonomous mode (where the vehicle essentially drives itself) to modes that lie somewhere in between.


The present application discloses embodiments that relate to an autonomous vehicle detecting cyclist hand signals. In one aspect, the present application describes a method. The method may involve a computing device receiving a plurality of data points corresponding to an environment of an autonomous vehicle. The method may also involve the computing device determining one or more subsets of data points from the plurality of data points, where the one or more subsets of data points are indicative of at least a body region of a cyclist. The method may further involve, based on an output of a comparison of the one or more subsets with one or more predetermined sets of cycling signals, the computing device determining an expected adjustment of one or more of a speed of the cyclist and a direction of movement of the cyclist. The method may still further involve, based on the expected adjustment, the computing device providing instructions to adjust one or more of a speed of the autonomous vehicle and a direction of movement of the autonomous vehicle.