Sunday, May 31, 2015

CBS "Sunday Morning" on May 31, 2015

Charles Osgood in the Low Country of South Carolina. The cover story is by Lee Cowan, on a tale of two cities, Charleston and Savannah. Second, a story on good design. Third, Anthony Mason with Jerry Seinfeld. Fourth, Mo Rocca talks about cleaning windows on skyscrapers. Richard Schlesinger. Jane Pauley. Seth Doane.

Christine Johnson for headlines. Beau Biden died of brain cancer. John Kerry broke his leg and cancelled the remainder of his trip. Rand Paul on the Patriot Act. Martin O'Malley. More rain in parts of Texas. Chicago Blackhawks.
Weather: Thunderstorms from Texas to Montana. Week ahead: stormy in northeast.

Quote from Frank Lloyd Wright: give me the luxuries of life and I will willingly do without the necessities.
Link, for example, at

Auldbrass in South Carolina. Joel Silver owns it since 1986; did The Matrix.

Cover story by Lee Cowan. John Duncan, lives on Monterey Square in Savannah. Joe Reilly is mayor of Charleston. Rainbow Row. Piazzas. Charleston has a board of architectural review. Charleston Place. Christian Satielle; "Museum of Art" in Savannah. Creative Preservation. SCARD Museum of Art. 22 Squares in Savannah. Jepson Center for the Arts.

Quote from Ada Louise Huxtable (who died at the age of 91 in 2013) Huxtable said: And we will probably be judged not by the monuments we build but by those we have destroyed.

Frank Lloyd Wright did furniture. Next piece by Richard Schlesinger. Leslie Herzburg on Shaker furniture. New ways to solve old problems. Swivel on back legs of chair. Mother Ann. No dirt in heaven. Shaker built-ins. Shakers invented flat broom. Hang up chairs on pegs. Ian Ingersoll in West Cornwall, CT. To Shakerize is to simplify. There are a handful of Shakers living in Maine.

Next: mousetrap.

Osgood on Eric Lloyd Wright to introduce Susan Spencer doing a story on animal traps. Picture of first patent on a mousetrap. Wikipedia notes: The classic spring-loaded mousetrap was first patented by William C. Hooker of Abingdon, Illinois, who received US patent 528671 for his design in 1894. Note US 1085970 from 1914. CBS showed a picture of the US Patent Office and included pages of the following issued patents: A.W. Ager, US 641,356, G. Mutz, 1,214,860
1,317,220, Snider, 1,792,774, 3,992,803 USPTO still gives patents on mousetraps. Picture of the "iron cat."

Jane Pauley on architecture of banks. Iron Hall. Panic of 1893. Bowery Savings built a skyscraper. A castle in the clouds. Transparent bank building for Manufacturers Trust, now a place for "Joe Fresh."

Seth Doane on sand castles in Japan. Sue LaGrew. Bach, Einstein. Jill Harris. Secret is compaction. Beach sand is not useful. City of Tatorri Japan. Museum of sand. Ephemeral aspect. Make it and enjoy. Fleeting beauty is by design. The Sand Museum first opened by the Tottori Sand Dunes, Tottori, Japan in 2006

Luke Burbank on design. Watch, sports car? Something that makes our lives easier. Yves Behar: industrial designer.
Hughes Project. A pair of five dollar eyeglasses. Grylamide. Cheap durable computer. $100 laptop. Rwandan money.
Dean Still. Aprovecho. Wood burned as clean as natural gas. Wood smoke is a hazard, like smoking cigarettes. $ million people per year die from inhaling wood smoke. 1 in 5 people live without electricity.
The Firefly, cooks and provides light. Design that truly makes a difference.

Quote: Less is more.
Ludwig Mies van der Rohe

Less is a bore.
Robert Charles Venturi, Jr.

Mo Rocca on window washing in skyscrapers. Andy Horton. Jesus Rosario.

Whistling tea kettles by Susan Spencer. Michael Graves in Princeton, NJ. Strom worked on tea kettle. Alberto Alessi commissioned the project. Conic shape. Red spout. Blue handle. Trademark little bird.

Comedians in cars, interview by Anthony Mason of Jerry Seinfeld (preceded by mention of Frank Lloyd Wright's auto). A little bit of support and a little bit of freedom. "Comedians" is now entering its sixth season. Isolate a gene and put it one display. Smoke ring of nothing, that nobody can pin down. Gotham Comedy Club. Bucket list, and turned a b to an f.
In marriage, you've got to listen. Interpretive opinion culture. It's not funny to me; I wrote that for you.
Remain an artist, and not a star. I have not become a giant show biz as--hole. I don't want to be spared the grime.
Every joke is a cool thing that didn't exist in the world before you made it.

Marc Strassman. Highway 17 out of Charleston. Working art gallery. Henrietta Snipe, weaving basket. The Gullah. Lynette Huson. Sea grass.

What's old is new. BandAid. Sarita T. Finney. A great design is simple, intuitive and timeless. Barry Manilow.
Earl Dixon in the year 1920. CBS shows a page of US Patent 1,612,267, filed 29 Dec. 1925 and issued 28 Dec. 1926, titled Surgical Dressing . Bandaids are in 1 in 7 American homes.
New York Times: top 100 inventions of all time.
Wikipedia notes: The Band-Aid was invented in 1920 by Thomas Anderson and Johnson & Johnson employee Earle Dickson for his wife Josephine, who frequently cut and burned herself while cooking.
As to trademarks, wikipedia also notes: Trademark genericization eventually resulted in the "Band-Aid" trademark losing its protective status over the Johnson & Johnson brand, becoming a generic term for all adhesive bandages. The company attempted to avoid this outcome with an advertising campaign, but failed.
Note the appearance of the incorrect year at -- --: Earle Dickson was granted US Patent 1,612,267 for his invention on December 28, 1929. That site also mentions: Thrilled at the personal success of his invention, Earle Dickson brought the concept to his bosses at Johnson and Johnson.
…they were not impressed. Not at first, anyway.

Museum of Modern Art: Collection of 28,000 designs.

Osgood on Bob Schieffer moving on. This is his final Sunday on Face the Nation.

Moment of nature. Savannah National Wildlife Refuge.

Saturday, May 30, 2015

CAFC to hear arguments in Amgen v. Sandoz over Neupogen biosimilar

The CAFC will interpret parts of the Biologic Price Competition and Innovation Act (BPCIA) in the case Amgen v. Sandoz related to Neupogen / Zarxio.

From The Recorder

Specifically, the court will be asked to decide whether biosimilar-drug makers must disclose their product and manufacturing process to the brand-drug maker and exchange patent contentions before Food and Drug Administration approval and commercial launch. That eight-month-long procedure, outlined in the BPCIA, is already known as "the patent dance."

U.S. District Judge Richard Seeborg of San Francisco ruled in March that the law permits either side to opt out of the dance and proceed directly to litigation. Amgen and its amici curiae say that would let biosimilar makers profit off their research and development without providing the fair warning Congress provided to protect their patents and resolve cases in a quick and orderly manner.

"Just as Hatch-Waxman patent litigation has become ubiquitous over the past three decades, the same is likely to happen with biosimilars litigation," Latham & Watkins partner Melissa Arbus Sherry writes for ami­cus AbbVie Inc. "If Sandoz were to prevail, the entire biosimilar litigation process would become a free-for-all" in which brand manufacturers "blindly guess as to which patents they should sue on and when." That would lead to "inefficient and protracted litigation for years to come."


Fudan University removes promotional video after allegations of copying

Concerning allegations that a promotional video for Fudan University borrowed heavily from a film from Tokyo University,
the Wall Street Journal had text:

Social media users were quick to mock the video, which the university explained earlier this week was produced in English in keeping with its increasingly internationalized campus. Some said that Fudan University would be more aptly named “Fuzhi” University: in Chinese, fuzhi means to copy.

“Such a famous school shouldn’t need to plagiarize for their promotional films,” wrote one user on Weibo. Another complained that the Chinese version, twice the length of the University of Tokyo film, was still inferior. “If you’re going to learn from something, then what you create should be better than the original. If you look at the two, it’s obvious the Japanese one is better,” the user wrote.


Friday, May 29, 2015

Ford, patents, and Autoharvest

The magazine Fortune notes that Ford's offer of patents in electric vehicle technology does not reflect a new IP strategy by Ford:

In other words, Ford is not forging into new territory. Instead, the company’s decision signals a larger movement within the automotive industry to get people on board—and starting innovating—in electric vehicle technology.

Separately, Fortune does allude to the "not invented here" philosophy, which is a negative for patent licensing:

The automotive industry has traditionally adopted a we-invented-it-here culture—desperately holding onto and protecting the technology its created in house. So, Ford’s announcement Thursday that it will open up its portfolio of patents to competitors in an effort to accelerate the development of electric vehicles was met with oohs and aahs—as well as comparisons to Tesla Motors.

As noted earlier on IPBiz, the unwillingness of company technology people to acknowledge the value of licensed technology is neither new, nor surprising.

See Survey evidence of Feldman/Lemley criticized; the story of Copaxone

link to Fortune piece:

Success of Butamax in using IPRs against Gevo

Note the discussion of the success that Butamax has had against Gevo in IPR proceedings which appears in the post
Butamax Successfully Using IPR to Knock out Competitor Gevo’s Patents

Note several earlier posts on IPBiz, including that titled

Gevo suffers losses to Butamax at PTAB

which includes the text:

In a decision filed March 3, 2015 on an IPR filed by Butamax against Gevo's US patent 8,273,565, the PTAB found contested claims invalid. Butamax wins. Part of the decision involved a lack of support in provisional applications for later-filed claims. See IPR 2013-00539. The decision was written by Judge Kerry Begley.

Of relevance to this loss by Gevo, note the document at

Which suggests Gevo may not have the resources to continue fighting.

Law 360 covered a different defeat for Gevo at the hands of Butamax:

By Vin Gurrieri
Law360, New York (March 16, 2015, 7:14 PM ET) -- The Patent Trial and Appeal Board on Friday determined that Butamax Advanced Biofuels LLC has shown in an America Invents Act review that a renewable jet fuel patent belonging to rival Gevo Inc. is not patentable in light of prior art.


Separately, from a press release in May 2013, two years ago:

ENGLEWOOD, Colo., May 10, 2013 (GLOBE NEWSWIRE) -- Gevo, Inc. (Nasdaq:GEVO) today announced that it has agreed to temporarily dismiss its lawsuit against Butamax Advanced Biofuels, LLC (Butamax) and E. I. du Pont de Nemours and Company (DuPont) for infringing one of Gevo's three GIFT® patents, US Patent No. 8,101,808 ( '808 Patent). Gevo maintains all of its other lawsuits against Butamax and DuPont for infringing Gevo's biocatalyst technology.

"When we filed this lawsuit, we expected Butamax to have a commercial biobutanol plant by now. We decided to dismiss the '808 lawsuit, for now, because Butamax doesn't have a commercial plant that infringes the '808 patent and according to DuPont, they will not have a commercial plant by the time of the trial," said Brett Lund, executive vice president and general counsel of Gevo.

At DuPont's May 2, 2013 Analyst Day, a DuPont spokesperson said, "We would expect to start the first conversion in 2015." "Butamax had stated plans to begin commercializing their biobutanol technology in 2010, and now this date has slipped to at least 2015," said Lund. "Accordingly, it makes sense for us to hold off on this litigation for now and, in doing so, we will save significantly in legal costs," continued Lund. "In addition to the '808 patent, we have two additional GIFT® patents that we have not yet asserted against Butamax and we are free to assert these at any time in the future. Additionally, Gevo is maintaining all of its other lawsuits against Butamax and DuPont for infringing our biocatalyst patents including our trial in August 2013 for infringing our '375 and '376 Patents."

See also the 14 Feb 2012 post on IPBiz

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

From Cedar Grove, NJ: US patent application 20150148720 titled Discreet Sexual Stimulation Apparatus

The abstract of US 20150148720:

A device for discretely providing sexual stimulation, the device being in the form of a plush animal having a head portion, a body portion, at least one appendage wherein the head portion includes a face region formed at least in part from an impermeable flexible material, the face region having a hollow interior defining an inner surface including at least one internally mounted vibrator motor provided with a rotatably drivable eccentric mass is securely affixed therein, said vibrator motor positioned in close proximity opposite an outer surface of the face region for transferring vibrations to a region of said face defining a vibration area, said vibrator motor being operatively connected to a power source and a control circuit and wherein said vibration area provides an operative portion for applying vibratory sensations to a part of the human body.

The first published claim:

A device for sexual stimulation comprising: a plush animal having a head portion, a body portion, at least one appendage; said head portion comprising an outer surface of impermeable flexible material which covers at least partially a face region of said animal, said face region having a hollow interior defining an inner surface, wherein said inner surface includes at least one mount for at least one vibrator motor provided with a rotatably drivable eccentric mass is securely affixed therein, said vibrator motor positioned in close proximity opposite the outer surface of said face region for transferring vibrations to a region of said face defining a vibration area, said vibrator being operatively connected to a power source and a control circuit and further wherein said vibration area provides an operative portion for applying vibratory sensations to a part of the human body.

From within the specification:

[0005] Sexual stimulation apparatus are well known and come in a variety of shapes and sizes. They have been commercially available for many decades. For example, the American company Hamilton Beach patented the first electric vibrator available for personal use as opposed to medical usage, making the vibrator the fifth domestic appliance to be electrified, after the sewing machine, fan, tea kettle, and toaster, and about a decade before the vacuum cleaner and electric iron. The home versions soon became extremely popular, with advertisements in periodicals such as Needlecraft, Woman's Home Companion, Modern Priscilla, and the Sears, Roebuck catalog; however, these disappeared in the 1920s, apparently because their appearance in pornography made it no longer tenable for mainstream society to avoid the sexual connotations of the devices.

[0006] In the 1960's the modern "personal" vibrator re-emerged as a by-product of the sexual revolution. In 1966, an application was made for a patent for the "Cordless Electric Vibrator for Use on the Human Body". That application referenced an earlier patent issued in 1940, for a flashlight with phallic shape which left little doubt as to a possible alternate use. The cordless vibrator was patented on Mar. 28, 1968, and was soon followed by such improvements as multi-speed and one-piece construction, which made it cheaper to manufacture and easier to clean.

[0007] Conventional sexual stimulation masturbation apparatuses and devices include dildos, vibrators and the like and are typically made from plastic, metal, silicone, rubber or other similar materials. Many of these devices have a straight or curved shaft that is typically shaped to resemble a phallus. The shaft typically does not include a handle and at best, the shaft may include a bulbous end to assist in a user gripping the sexual stimulation apparatus during use.

[0008] However, because the shaft of a conventional sexual stimulation apparatus does not often include a handle, it is difficult for a user to grip a conventional sexual stimulation apparatus comfortably during use. This can be particularly problematic for women when using these types of devices because of the anatomical position of a woman's vagina in relation to their arms and hands. Thus, a user, and particularly a female user, may experience tension, fatigue, discomfort or pain in their wrist, upper arm, and shoulder and/or back when using a conventional sexual stimulation apparatus when masturbating.

[0009] Without a handle, a conventional sexual stimulation device may be difficult to hold comfortably by a user, and particularly a female user, with their wrist in a natural and comfortable orientation. It is difficult for a female user of a conventional sexual stimulation apparatus to insert the conventional sexual stimulation apparatus comfortably into their own vagina during masturbation and keep their wrist in a natural and comfortable orientation.

Wednesday, May 27, 2015

Plagiarism at university in Missouri?


with text

The Jefferson City News Tribune reports that Atlanta-based motivational speaker Patricia Russell-McCloud quoted or paraphrased at least eight others during the May 16 commencement[at Lincoln University].

More on Led Zeppelin and "Stairway to Heaven"

Jawbone suing Fitbit over poaching of employees and confidential information

On employees joining competitors, from the NYTimes on Jawbone suing Fitbit in California State Court :

According to the complaint, recruiters for Fitbit contacted nearly a third of Jawbone’s employees early this year. Some of those employees then decided to leave, but before doing so downloaded information like Jawbone’s current and future business plans and products. Those individuals used thumb drives to download files and used programs to cover their tracks or deleted system logs, according to the court filing.

One now-former employee, Ana Rosario, was hired by Fitbit as a user experience researcher around April 16, but did not disclose that she planned to leave Jawbone until April 22, the complaint said. On April 20, according to the complaint, Ms. Rosario held a meeting with Jawbone’s senior director of product management to discuss the company’s future plans and then downloaded what the company said was a “playbook” outlining its future products.

During her exit interviews, Ms. Rosario initially denied taking confidential information, but later admitted to downloading its “Market Trends & Opportunities” presentation.

Another employee who specialized in audio products, Patrick Narron, told Jawbone on April 8 that he planned to leave in two weeks to take another job — but did not disclose that he was heading to Fitbit, and was allowed to stay. The complaint claims that Mr. Narron sent confidential information about future products to his personal email address several times, in violation of corporate policy.


US Patent 9,040,264 to ExxonMobil: Recombinant cyanobacterium expressing a transcription factor domain protein

The first published claim of US 9,040,264 :

A recombinant cyanobacterium comprising an exogenous nucleic acid molecule encoding a transcription factor domain protein, wherein the transcription factor domain protein has transcription factor activity and comprises an amino acid sequence having at least 85% amino acid sequence identity to the amino acid sequence of SEQ ID NO:4, SEQ ID NO:6, SEQ ID NO:10, or SEQ ID NO:12, and wherein the recombinant cyanobacterium produces a greater amount of at least one free fatty acid or at least one fatty acid derivative than does a control cyanobacterium that does not comprise the exogenous nucleic acid molecule encoding the transcription factor domain protein, and further wherein the exogenous nucleic acid molecule is operably linked to a promoter that is heterologous relative to the cyanobacterium and/or the exogenous nucleic acid molecule.

The listed inventors:

Kristof; Jessica (Portland, OR), Seshadri; Rekha (San Diego, CA)

Kristof was at Synthetic Genomics from 2007 to 2011. Seshadri was at Synthetic Genomics from 2008 to 2013.

The application leading to US '264 claims benefit of priority to U.S. Provisional application 61/470,178 filed Mar. 31, 2011 entitled "Metabolic Pathway Targeting by Transcription Factor Overexpression."

Tuesday, May 26, 2015

Cisco loses at Supreme Court in case involving Commil USA LLC

The US Supreme Court vacated the CAFC decision in a case involving Cisco and Commil. This action makes life a bit tougher for accused infringers who believe the asserted patents are invalid.

For the question before the Supreme Court, note the text of a prior IPBiz post:

The question is whether an accused company [here Cisco, accused of inducing infringement] can defend itself by arguing it had a good-faith belief the disputed patent was invalid because the invention was obvious, vague or insufficiently novel.

The CAFC had stated as to inducement of infringement:

It is axiomatic that one cannot infringe an invalid patent. [] Accordingly, one could be aware of a patent and induce another to perform the steps of the patent claim, but have a good-faith belief that the patent is not valid. Under those circumstances, it can hardly be said that the alleged inducer intended to induce infringement. Thus, a good-faith belief of invalidity is evidence that may negate the specific intent to encourage another’s infringement, which is required for induced infringement. Several district courts have considered this question and come to the same conclusion.[]

We now hold that evidence of an accused inducer’s good-faith belief of invalidity may negate the requisite intent for induced infringement.

*** Reuters noted on 26 May 2015:

The high court ruled in an opinion by Justice Anthony Kennedy that Cisco's belief that the patent was valid [sic: invalid (?)] was not a legitimate defense.

Justice Antonin Scalia wrote a dissenting opinion in which he was joined by Chief Justice John Roberts.


In a brief filed at the invitation of the high court, the U.S. government had warned that companies accused of inducing patent infringement were likely to raise the "good faith" defense in most cases, if not all of them.

The case was closely watched by Silicon Valley and biotechnology firms alike to see whether such a defense would be endorsed by the high court.

The case is Commil v. Cisco, U.S. Supreme Court, No. 13-896.


***The majority referenced Judge Newman of the CAFC:

Judge Newman dissented on that point. In Judge
Newman’s view a defendant’s good-faith belief in a patent’s invalidity
is not a defense to induced infringement.
She reasoned that “whether there is infringement in fact
does not depend on the belief of the accused infringer that
it might succeed in invalidating the patent.” Id.,
at 1374 (opinion concurring in part and dissenting in part).

***Within the dissent of the Supreme Court case, one has the text

The Court makes four arguments in support of the
contrary position. None seems to me persuasive. First, it
notes that the Patent Act treats infringement and validity
as distinct issues.
Ante, at 9–10. That is true. It is also
irrelevant. Saying that infringement cannot exist without
a valid patent does not “conflate the issues of infringement
and validity,”
at 10, any more than saying that water
cannot exist without oxygen “conflates” water and oxygen.
Recognizing that infringement requires validity is entirely
consistent with the “long-accepted truth . . . that infringe-
ment and invalidity are separate matters under patent
law.” Ibid.


Next, the Court says that “invalidity is not a defense to
infringement, it is a defense to liability.” Ante, at 11.
That is an assertion, not an argument. Again, to infringe
a patent is to invade the patentee’s right of exclusivity.
An invalid patent confers no such right. How is it possible
to interfere with rights that do not exist?


That brings me to the Court’s weakest argument: that
there are “practical reasons not to
create a defense based
on a good-faith belief in invalidity.”
Ante, at 12 (emphasis
added); see also ibid.
(“Creating a defense of belief in
invalidity, furthermore, would have negative consequences”
(emphasis added)). Ours is not a common-law court.
Erie R. Co. v. Tompkins, 304 U. S. 64, 78 (1938). We do not, or at least should not,
create defenses to statutory liability—and that is
not what this dissent purports to do.
Our task is to interpret the Patent Act, and to decide
whether it makes a good-faith belief in a patent’s invalid-
ity a defense to induced infringe
ment. Since, as we said in Global-Tech, supra,
the Act makes knowledge of infringe-
ment a requirement for induced-infringement liability;
and since there can be no infringement (and hence no
knowledge of infringement) of an invalid patent; good-
faith belief in invalidity is a defense. I may add, however,
that if the desirability of the rule we adopt were a proper
consideration, it is by no means clear that the Court’s
holding, which increases the in terrorem power of patent
trolls, is preferable.

***In terms of the conservatives of the court, Justice Alito aligned
with the majority; Justice Thomas joined only parts II-B and III, and Justice
Scalia dissented.

If hypothetically the conservatives Thomas and Alito had aligned with Scalia, the vote would have been 4 to 4, and the decision of the CAFC would have stood.

link to Supreme Court text:


Of PatentlyO text:

This is a split decision for patentees. On the one hand, it pushes away an entire set of defenses to inducement. But, on the other hand, the court solidifies a high wall by requiring proof that an accused inducer have known that the induced acts would constitute infringement of the asserted patent claims

In the "patent troll" cases involving broad claims, there is usually little doubt that there is infringement, with the question being whether the broad claims are valid.

Saturday, May 23, 2015

Apple's US patent application 20150141083 titled HOTSPOT DEVICE

The first published claim of Apple's application titled --HOTSPOT DEVICE -- is

A wireless device for communicating with a portable computing device comprising: a first portion including: a main logic board; an antenna electromagnetically connected to said main logic board; a security information management card electromagnetically connected to said main logic board; a second portion including a power source, said second portion rotatably connected to said first portion; and whereby rotation of said second portion with respect to said first portion electromagnetically connects said power source to said main logic board.

Claim 10 is directed to a system, rather than to a device:

A system for use in a wireless communication network comprising: a computing device; a hotspot device electromagnetically connectable to said computing device, said hotspot device including: a first portion, said first portion including: a main logic board; an antenna electromagnetically connected to said main logic board; a security information management card electromagnetically connected to said main logic board; a second portion including a power source, said second portion rotatably connected to said first portion; and wherein said second portion is rotatable with respect to said first portion to electromagnetically connect said main logic board with said power source thereby providing wireless communication between said computing device and said wireless communication network.

The specification includes the text:

[0003] Closed public networks use a hotspot management system to control the hotspot. This software runs on the router itself or an external computer. With this software, operators can authorize only specific users to access the Internet, and they often limit the free access. Operators are also now able to limit each user's available bandwidth--each user is therefore restricted to a certain speed to ensure that everyone gets a good quality service. Often this is done through service-level agreements. Other hotspot providers charge a fee to users in order to provide internet access through the hotspot.

[0004] Roaming services are expanding among major hotspot service providers. With roaming service the users of a commercial provider can have access to other provider's hotspots with extra fees, in which such a user will usually be charged on the basis of access-per-minute. Hotspots may be provided by retail establishments as an incentive for users to frequent their stores. For example, coffee shops offer free internet connections over Wi-Fi networks. These connections, while free, suffer from limitations such as security and privacy. These networks also suffer from signal limitations such that a user must be within range of the signal to access the connection. Sheer volume of traffic due to many users may also slow down the transfer of information and make the connection less than optimal.

[0005] Many Wi-Fi adapters built into or easily added to consumer computers include the functionality to operate as hotspots. Some third-party software vendors offer applications to allow users to operate their own hotspot, whether to share an existing connection or extend the range of another hotspot. Other methods provide for a user to join a Wi-Fi subscriber service. The intention is to provide better bandwidth and services-on-demand to end-users, while also alleviating traffic overloads of mobile carrier infrastructure.

[0006] Security is a serious concern in connection with hotspots. In particular the wireless connection between the client and the access point is often encrypted to prevent the connection from being compromised. A hotspot gateway is a device that provides authentication, authorization and accounting for a wireless network. This can keep malicious users off of a private network even in the event that they are able to break the encryption. A wireless hotspot gateway helps solve guest user connectivity problems by offering instant Internet access without the need for configuration changes to the client computer or any resident client-side software. Thus the user can still get access to the network with their existing network configuration.

[0007] Existing wireless hotspot devices are limited in their usefulness in that, while more convenient and secure than public hotspot access, they may not be convenient to operate and carry. These devices include external control which may accidentally be activated by a user. It would be useful therefor to have a device which minimizes inadvertent activation. In addition, hotspot gateways should be convenient to carry and have a conveniently available power supply.

Garfum drops case against BytePhoto

Infozine reported of the dropped patent infringement case:

But after all the briefing had been completed and just one day after the court scheduled a hearing on the motion to dismiss, Garfum capitulated: it dropped its case with a promise not to sue again rather than defend its patent before a judge.

“We’re pleased that Garfum has abandoned its claims against our client. But it’s a travesty that this case was ever filed in the first place,” said EFF Staff Attorney Daniel Nazer, who is also the Mark Cuban Chair to Eliminate Stupid Patents. “Our client began running online ‘favorite photo’ competitions years before this patent was filed. The idea that you could patent this abstract idea, find innocent enthusiasts online and demand settlement money—and then slink away once challenged and before the court issues a ruling—goes against any sense of fair play.”


Friday, May 22, 2015

Google's anthropomorphic device described in application 20150138333

The first claim is directed to a METHOD in which an anthropomorphic device (not a human) is detecting a social cue:

A method comprising:

an anthropomorphic device detecting a social cue, wherein the anthropomorphic device includes a camera and a microphone, and wherein detecting the social cue comprises the camera detecting a gaze directed toward the anthropomorphic device;

the anthropomorphic device aiming the camera and the microphone based on the direction of the gaze; while the gaze is directed toward the anthropomorphic device, the anthropomorphic device receiving an audio signal via the microphone; and based on receiving the audio signal while the gaze is directed toward the anthropomorphic device, the anthropomorphic device (i) transmitting a media device command to a media playback device, wherein the media playback device is separate from the anthropomorphic device, and (ii) providing an acknowledgement of the audio signal, wherein the media device command is based on the audio signal and instructs the media playback device to play out selected content.

The specification notes:

[0002] In an example embodiment, an anthropomorphic device may detect a social cue. The anthropomorphic device may include a camera and a microphone, and detecting the social cue may comprise the camera detecting a gaze directed toward the anthropomorphic device. The anthropomorphic device may aim the camera and the microphone based on the direction of the gaze. While the gaze is directed toward the anthropomorphic device, the anthropomorphic device may receive an audio signal via the microphone. Based on receiving the audio signal while the gaze is directed toward the anthropomorphic device, the anthropomorphic device may (i) transmit a media device command to a media device, and (ii) provide an acknowledgement of the audio signal. The media device command may be based on the audio signal.

[0003] A further example embodiment may involve an article of manufacture including a non-transitory computer-readable medium. The computer-readable medium may have stored thereon program instructions that, upon execution by an anthropomorphic computing device, cause the anthropomorphic computing device to perform operations. These operations may include detecting a social cue at the anthropomorphic computing device, wherein the anthropomorphic computing device includes a camera and a microphone, and wherein detecting the social cue comprises the camera detecting a gaze directed toward the anthropomorphic computing device. The operations may also include aiming the camera and the microphone based on the direction of the gaze, and, while the gaze is directed toward the anthropomorphic computing device, receiving an audio signal via the microphone. Additionally, the operations may include, based on receiving the audio signal while the gaze is directed toward the anthropomorphic computing device, (i) transmitting a media device command to a media device, and (ii) providing an acknowledgement of the audio signal, wherein the media device command is based on the audio signal.

Elsewhere, one has Qualcomm's US 20150142252 with first claim

A robotic device, the robotic device comprising: a housing configured to house a mobile device; and an articulating image director aligned with a field of view of a camera of the mobile device.

Morinville on "hunting a comic book character – a patent troll"

Paul Morinville wrote:

To slay the patent trolls, since 2005, virtually every significant change to patent law has had the by-product of increasing the risks and costs for inventors. The America Invents Act did this in 2011, and now, four years later, we are told the patent troll problem has worsened and we need to pass the Innovation Act, which would further raise those risks and costs. The result is that the solution is creating a new problem.

I have invested tens of thousands of my own dollars and many years of my life in my inventions. It turned out I was wrong to feel safe talking to big companies. The big companies I met with in search of a partnership just stole my inventions and, using their financial and market power, saturated the market with infringing products and ran me out of business. And that was before many of the recent changes that have weakened the patent system even further.

Our nation’s patent policies are going the wrong way, and this is severely damaging our innovation economy. We need to strengthen patent rights, so patent pirates know the patent can be enforced and the price of infringement is high. They need to know any inventor can assert his patent rights and can win.


Obama's patent reform as a " horror story of abandoning what works in the name of what’s politically trendy?"

See the post by Michelle Malkin on May 22, 2015 at 8:46am
titled How Obama Radically Transformed America’s Patent System


The AIA’s primary agenda? “Harmonizing” our patent laws with the rest of the world to reward paper-pushers who are “first to file” at the patent office, instead of those who are “first to invent.” These and other measures enacted by Obama threaten to drive garage tinkerers and small inventors — the designers, engineers, and builders of American prosperity — out of the marketplace. Longtime venture capitalist Gary Lauder noted that the first-to-file system has suppressed solo and small-business innovation in Europe and Japan. “The U.S. gets 10 times the angel and venture capital of Western Europe — which recently declared an ‘innovation emergency,'” Lauder observed. “So why are we harmonizing with them? They should be harmonizing with us.”

CAFC decides Allvoice v. Microsoft

Allvoice did not do well in its appeal to the CAFC:

Allvoice Developments US, LLC (“Allvoice”) appeals
the district court’s grant of summary judgment that
Microsoft Corporation’s (“Microsoft”) accused products do
not infringe the asserted claims of U.S. Patent No. 5,799,273
(the “’273 Patent”) and that claims 60–68 of the ’273 Patent
are invalid under 35 U.S.C. § 101 (2012).1

The district court’s December 23, 2013 judgment of non-infringement
depended upon its findings that Allvoice’s
infringement contentions did not disclose
Allvoice’s only infringement theory for the “link data” limitation and
that Allvoice was not
diligent in seeking to amend its
infringement contentions. Because we find that the
district court did not abuse its discretion in reaching those
conclusions, we affirm the judgment of non-infringement.
Because claims 60–68 are not directed to one of the four
statutory categories of inventions
identified in 35 U.S.C. §101 , we also affirm
the judgment of invalidity as to
those claims.

Thursday, May 21, 2015

Indictment against Chinese nationals for economic espionage as to FBAR technology

An AP story discusses a 32-page indictment for theft of trade secrets by six Chinese nationals and includes the text

In 2006, Hao Zhang worked for Skyworks Solutions Inc. in Woburn, Massachusetts, and Wei Pang took a job in Fort Collins, Colorado, with Avago Technologies, which has headquarters in San Jose, California, and Singapore.
Wei Pang allegedly sent an email to two other defendants soon after, forwarding notes he took during a work meeting in 2006.

"My work is to make every possible effort to find out about the process's every possible detail and copy directly to China," Wei Pang is alleged to have written.

Related to theft of trade secrets by persons related to Tianjin University , see the post
Federal prosecutors charge Chinese nationals with trade secret theft including text

With their insider access at U.S. technology firms, Zhang and Pang were suspected of soliciting Chinese universities and other entities to develop FBAR technology [ Film Bulk Acoustic Resonator ], between 2006 and 2007. Through their efforts, the two “established relationships with officials at Tianjin University," one of the oldest universities in the country, which eventually “agreed to support Pang, Zhang and others in establishing an FBAR fabrication facility in the PRC," DOJ alleged.

In 2009, the pair resigned from their jobs in the U.S., became full professors at Tianjin University, and started a joint venture with the school, ROFS Microsystem, a company that would facilitate the mass production of FBARs using stolen trade secrets from Avago and Skyworks, prosecutors alleged.

See also:

Indictment at

**In passing, one notes that professors at Tianjin University also work with biofuels.
For example, see -- Proteomic analysis reveals resistance mechanism against biofuel hexane in Synechocystis sp. PCC 6803 --in Biotechnology for Biofuels 2012, 5:68 .

PricewaterhouseCoopers says patent lawsuits in US down in 2014

Susan Decker's post Drop in Patent Lawsuits, Damages Blunts Call for Congress to Act discusses results of a study by PricewaterhouseCoopers LLP’s PwC which showed that patent lawsuits went down in the year 2014.

Within Decker's text:

“I see a tapering of what was seen as a big problem five years ago,” said lead study author Chris Barry, a PwC partner focused on Forensic Services.

US application 20150140640 on microorganisms capable of growing on crude glycerol


Disclosed herein are microorganisms capable of growing on crude glycerol and/or glycerol and/or methanol, or combinations thereof. In some embodiments the microorganisms are knallgas bacteria that produce or secrete at least 10% of lipid by weight. Also disclosed are methods of converting crude glycerol and/or glycerol and/or methanol produced as byproduct of processes including but not limited to biodiesel production, into organic carbon molecules such as triacylglycerol useful for industrial processes including but not limited to the production of additional biodiesel. Also disclosed are methods of manufacturing chemicals or producing precursors to chemicals useful in oleochemicals, jet fuel, diesel fuel, and biodiesel fuel. Exemplary chemicals or precursors to chemicals useful in fuel and/or oleochemical production are alkanes, alkenes, alkynes, fatty acid alcohols, fatty acid aldehydes, methyl esters, ethyl esters, alkyl esters, with carbon chains between five and twenty four carbon atoms long.

**A recent post on biofuelsdigest, titled Kiverdi: Biofuels Digest’s 2015 5-Minute Guide, did not mention glycerol conversion. The post did note:

Kiverdi is in the class of gas fermentation companies – like, say, Coskata, INEOS Bio or LanzaTech, and a modular bolt-on to syngas production processes, such as commercially available gasification or steam reforming technologies. Their differentiating point? The ability to produce a wide range of commercially useful mid- and long-chain carbon molecules using proprietary microbes, co-designed bioreactors, and integrated operations.

Wednesday, May 20, 2015

NATURE gets it wrong on patent reform bills

The post in the journal Nature titled

Congress seeks to quash patent trolls

Revised legislation would spare universities from being penalized in the same way as unscrupulous companies.


incorrectly relates the Senate PATENT Act and the House Innovation Act:

The process is moving quickly. The Senate Judiciary Committee plans to vote on the bill by the end of the month, readying it for a final Senate vote this summer, and the House of Representatives’ Judiciary Committee is likely to vote this week on a similar measure.


They are not "similar" as to "loser pays." The Innovation Act presumes "loser pays" but the PATENT Act does not.


Apple's US application 20150070276: Transparent Electronic Device

The first published claim:

A portable electronic device, comprising: a housing; a display comprising first and second overlapping display screens disposed within the housing; a motion sensor; and a processor disposed within the housing, wherein the processor generates a movable transparent window on the second display screen, wherein external objects behind the electronic device are viewable through the movable transparent window and the first display screen, and wherein the processor positions the movable transparent window on the second display screen based on motion sensor data.


Inventor: Aleksandar Pance.

Tuesday, May 19, 2015

On judges seeking guidance

Note the article by Benjamin Reiser titled:

Faced With Legal Puzzles, Judges Often Turn to Fellow Jurists


which includes

The judges interviewed said they would not seek guidance from an outside source, like a law professor or a jurist on another court. However, a legal ethics professor said making such calls to a judge on the same court about a question of law, for example, is permitted by the judicial conduct rules.

“What the inquiring judge, in my experience, does not do,” said Judge Charles S. Haight Jr., a member of the federal bench for almost 40 years in Manhattan and New Haven, “is to abdicate his or her responsibility as the judge of that case. He or she is the decider.”


US 9,034,619 to DEINOVE titled Recombinant bacteria and the uses thereof for producing ethanol

The first published claim of US '619:

A recombinant Deinococcus bacterium comprising a recombinant nucleic acid construct encoding a pyruvate decarboxylase (PDC) from Zymomonas and an alcohol dehydrogenase (ADH) from Zymomonas, wherein the PDC and ADH coding sequences are placed in an operon in the recombinant nucleic acid construct, and wherein said recombinant nucleic acid construct is integrated into the genome of the bacterium.


The introduction states:


Bacteria having the capacity to reassemble their genome when disrupted by a stress have been reported in the literature, such as Deinococcus bacteria. Deinococcus is a gram positive bacterium that was isolated in 1956 by Anderson and collaborators. This extremophile organism is resistant to DNA damage by UV and ionizing radiations or by cross-linking agent (mitomycin C) and is tolerant to desiccation.

WO01/023526 shows the unusual resistance of Deinococcus to radiation and further proposes their engineering and use in bioremediation. Patent application no WO2009/063079, unpublished at the priority date of the present application, shows that Deinococcus bacteria can resist to solvents and transform biomass to generate ethanol.

Other stress-resistant bacteria are disclosed in patent application no EP09 305041.7, presently unpublished, as well as methods for their isolation and/or selection, and their ability to produce metabolites such as antibiotics.

Genetically altered gram-positive or Geobacillus strains have been mentioned in WO95/27064 and WO2006/131734. From the industrial perspective, no satisfactory metabolite production has been disclosed for these strains. Furthermore, Geobacillus strains produce spores, which is a substantial drawback for industrial use.

The present invention now shows that the genome of stress-resistant bacteria, particularly Deinococcus bacteria, can be modified to improve their capacity to produce ethanol. More specifically, the present invention shows that it is possible to modify metabolic pathways within stress-resistant bacteria, particularly Deinococcus bacteria in order to increase their performance in the production of ethanol.

Separately, note US 9,029,124 to Joule Unlimited.

CAFC on Apple v. Samsung on 18 May 2015

A jury found that Samsung
infringed Apple’s design and utility patents
and diluted Apple’s trade dresses.
For the reasons that follow, we affirm the jury’s verdict on the
design patent infringements, the validity of two
utility patent claims, and the damages awarded for
the design and utility patent infringements appealed by Samsung.

However, we reverse the jury’s findings
that the asserted
trade dresses are protectable. We therefore
vacate the jury’s damages awards
against the Samsung products
that were found liable for trade dress dilution and remand
for further proceedings consistent with this opinion.



**See also New York Times article

Appeals Court Upholds Apple’s Patent Victory Over Samsung

which included the text

Separately on Monday, Carl C. Icahn, the activist investor, published an open letter to Apple. In the 2,200-word letter, he said Apple’s shares were still “dramatically undervalued,” and urged Timothy D. Cook, the chief executive, to buy back more of Apple’s stock because the company was sitting on too much cash.

Sunday, May 17, 2015

Lauren Faits: 3 types of plagiarism that go beyond copy and pasting

Based on the post -- 3 types of plagiarism that go beyond copy and pasting --, one infers that Faits has a different worldview from that of Techdirt.

Text: Plagiarism is about stealing the original ideas and footwork of others- not just their specific word usage.


CBS Sunday Morning on May 17, 2015

Charles Osgood introduced the stories for May 17, 2015. The first mentioned was on David Letterman. The second mentioned was the cover story, titled Places, on the economics of film locations. Third, Nora O'Donnell on the Whitney Museum. Fourth, Conor Knighton on Sun City, Arizona. Rita Braver. Steve Hartman. Jim Gaffing.

Headlines. Tornados in rural Oklahoma. Top ISIS leader killed. Amtrak says emergency braking system will be installed in area of crash of Amtrak 188. Girl gored by bison in Yellowstone.

Weather: 80s in northeast.

Letterman kept Sullivan Theater at 61 degrees F.

Lee Cowan does the cover story, titled Places, on Hollywood. Issue of "runaway production." David Lancaster: most bang for movie-making buck. Location shooting around Los Angeles is down 50% since 1996. Mayor Eric Garsetti: 330 million dollar incentive package. Louisiana is the "other LA." PitchPerfect-2 shot in Louisiana. Hollywood-South.
Tax credits in 2002. Green Lantern. Got 37 million back from state of Louisiana. Celtic Studios. Fantastic Four. Jan Moeller criticizes film subsidies. The first Hunger Games done in North Carolina, but next two in Georgia.

Almanac. May 17, 1992 Lawrence Welk died at age 89. At age 21, Welk did not speak English. In 1951, Welk got a show in Los Angeles. For 27 years, the Lawrence Welk show was on tv. Final show in 1982. Strasberg was birth homestead; in 1992 debate in Congress over funding for homestead.

Pulse: Letterman got 16 Emmys.

Whitney Museum first opened its doors 101 years ago. Now a new site, trendy meat packing district downtown. Whitney focusses on art of the United States. Adam Wineburg. Renzo Piano was architect. Negro sunshine. There are 50,000 square feet of indoor space. Mary Heilman's multi-colored chairs outside. The art is part of the whole world. There has been criticism: clunky or dull. You do what the truth is for you. Whitney Studio in Greenwich Village in 1914.
Edward Hopper; Georgia O'Keefe were given a home at the Whitney. Last Whitney opened in 1956. "America is hard to see."

Conor Knighton on Sun City, AZ which has 40,000 residents. Age-restricted retirement community. Average age is over 70.
Uke-lady. Every time you heard a siren, there was a house up for sale. Del Webb's biggest gamble was Sun City.
Initial homes were 860 square feet. January 1, 1960 was first day. 100,000 people came through over first three days.
Rich Hopper interviewed; three generations. Sun City is now getting a face lift. Piffle ball. Sun City is now 55 years old.

Steve Hartman on second chances. Belinda Smith on wanting to go to high school prom. Didn't go. Son took her to prom.

Jane Pauley on Dave Letterman. Bill Murray was first guest. Football into garbage can. Letterman took ten tries.
There were 18,000 guests. It's like robbing 7-11: the money is good but you know you are going to get caught. In high school, took public speaking. Wow, that was easy. College at Ball State. The weather and weekend movies.
Moved to Los Angeles. On Tonight Show, with Johnny Carson. Like sitting at Lincoln Memorial and talking to Lincoln.
Like standing on overpass watching a chain reaction collision. NBC gave him a slot after Johnny Carson.

Alcohol-ism. Started at age 11. Scotch and soda. In college, it was mandatory. Where are all my drunk buddies. Kept on until age 34. Then quit. In 2009, liasons with staffers. After surgery, joyful weepiness. Shingles.
Brian Williams told helicopter story on Letterman show. Williams lobbied to do Letterman show. Son born when Letterman was 56. Pauley was guest on Letterman the year Pauley left Today. This Wednesday is Letterman's last show.

Jim Gaffigan on Dave Letterman.

B.B. King. Clip with Ed Bradley. King was 89.

Week ahead. Monday: Annual Webby Awards. Tuesday: Melissa McCarthy, Hollywood Star. Thursday: Fleet week.

Rita Braver interviews Judy Blume. Clips from Elizabeth, NJ. Three plane crashes, Dec. 1951 to Feb. 1952.
Book "In the Unlikely Event." Judy Blume born in 1938. Determination is what gets you through. Blume now lives in Key West. Book "Forever..." The lesson of human resilience. Terrible things happen. We go on.

Next week: Anthony Mason on tour with U2.

Moment of Nature (Viking). Indiana Dunes along Lake Michigan.

Saturday, May 16, 2015

TechDirt discusses Hersh copying matter

In a post titled No, Just Because Seymour Hersh Had The Same Story As You, It's Not 'Plagiarism', Techdirt notes:


Seymour Hersh's story, "The Killing of Bin Laden," in the London Review of Books has a fundamental problem: it's either plagiarism or unoriginal.
If it's fiction--as some have implied, it's plagiarism. If it's true, it's not original. The story was broken here on The Spy Who Billed Me four years ago, in August 2011
[ RJ Hillhouse ]

That's silly. First of all, it's not plagiarism, even if it's not true. Just because he heard the same thing from other sources, that wouldn't make it plagiarism. As for the "not original" claim -- well, who really cares? There's this weird obsession some people have with who "broke" a particular story. But the fact is that the story itself happened to others before whoever reported it learned about it. Yes, breaking a story is a nice thing, but it's weird how some people seem to want to claim "ownership" over a story just because they were the first ones to write about it. [Techdirt]


Yes, it's interesting that Hillhouse had a very similar story a few years ago -- which may lend some additional credence to Hersh's story -- but being first isn't always the most important thing. Getting the story widely spread seems a lot more important, which is evidenced by the fact that the story is only now "news" -- whereas Hillhouse's version more or less faded away. It seems like yet another case in which people overvalue being "first" as opposed to actually getting something more widely accepted and understood. [Techdirt]


As to what TechDirt says about Hersh have plagiarized, plagiarism is simply copying without attribution. Hersh probably did not copy the exact words of Hillhouse, but he did use the same idea. If, for sake of argument, the story is pure fiction, and first created by Hillhouse, then there might be issues with both plagiarism and copyright infringement. If the story was created by someone else, and reproduced by Hillhouse, that might be a different situation.

Techdirt's text -- it's interesting that Hillhouse had a very similar story a few years ago -- which may lend some additional credence to Hersh's story --, IPBiz notes one might have said Hersh's account lends credibility to Hillhouse's initial account, rather than the other way around.

Some of the issues related to Hillhouse's charges against Hersh are similar to issues raised earlier concerning Carhart's book about the Civil War action at East Cavalry Field at Gettysburg.

**For example, from the IPBiz post titled Was Tom Carhart's book on Gettysburg pre-empted?

In the law review business, if someone has already addressed a particular issue, a later person is not supposed to write on the same question. Of Carhart's suggestion of Lee's "real plan" at Gettysburg, one notes the following from a review by Steven Leonard of a 2002 book by Paul D. Walker:

In The Cavalry Battle that Saved the Union:
Custer vs. Stuart at Gettysburg, Paul D. Walker
reveals the apparent genius behind the plan:
Confederate General Robert E. Lee's grand scheme was
to attack with infantry from the front while
Confederate General J.E.B. Stuart's cavalry swept into
the rear of the Union formations.

Sadly, the 2004 review also states:

Only David F. Riggs' relatively short account of the
battle East of Gettysburg: Custer vs. Stuart (Old Army
Press, Fort Collins, CO, 1970 [revised 1985]),
chronicles the engagement.

Unfortunately, among other sources, Wert's 2001 "Gettysburg Day 3" spends much time discussing the cavalry engagement.

D. Scott Hartwig got it right when he wrote:

Our final book this month is yet another revelation of Robert E. Lee’s real plan at Gettysburg. Tom Carhart, in Lost Triumph: Lee’s Real Plan at Gettysburg—and Why it Failed (G.P. Putnam’s Sons, New York, 2005), contends that Lee planned to attack the Union rear with Jeb Stuart’s cavalry while James Longstreet’s assault struck their front on Cemetery Ridge, and that the plan failed due to the bravery and impetuousness of George Custer. Carhart is not the first to advance this notion of Lee’s plan for July 3. It has been around for many years, but lacks evidence to support it.

Once again (as with patent grant rate), we have a situation wherein the federal employee called it correctly, and the professor at the elite institution (here Princeton University) was way off base. Proxies for good scholarship don't always work. Separately, we have a moral for the business method/software patent area: what can appear to be novel might only be so for lack of a thorough search.


As to the Carhart matter, although, without more, one could NOT say Carhart copied (plagiarized?) the idea of Walker (and others), one can definitively say it was not "new." Of Techdirt's text -- As for the "not original" claim -- well, who really cares? --, if a book buyer of Carhart's book bought the book because they buyer was told it had a "new" theory (when the theory was not in fact new), the book buyer might care. Maybe some scholars might care too.

**As to pure plagiarism, one might consult the post
JEB Stuart travels to India
which includes the text:

In a March 2007 post, Still plagiarizing after all these years?, IPBiz noted

The onlypunjab web site still has the article:

Edison as a Patent Troll, or Where is California Going in Stem Cell Research? -
By: Annie Kaszina

in which "Annie Kaszina" had substituted her name for LBE in an article which had appeared on ezines in June 2006. Unfortunately for "Annie," the bio of LBE was left at the bottom of the article, and as of May 12, 2007, the bio still is within the plagiarized article on theonlypunjab site:

Lawrence B. Ebert is a registered patent attorney located in central New Jersey. He holds a Ph.D. from Stanford, a J.D. from the University of Chicago, maintains a blog at, and is the author of LESSONS TO BE LEARNED FROM THE HWANG MATTER: ANALYZING INNOVATION THE RIGHT WAY, published in the Journal of the Patent & Trademark Office Society [88 JPTOS 239 (March 2006)]. The above material is based on a submission to Intellectual Property Today [IPT] which was supposed to have been published in April 2006, but which was not published. Most endnotes of the IPT submission have not been reproduced here. The contents of Endnote 18 of the IPT submission did appear within comments to the USPTO concerning proposed rulemaking about continuing patent applications. Ezine draft submitted June 16, 2006.

As a different blog noted, if one is going to copy the work of another, one should be careful NOT to include the bio of the original author in the copied text [!]


"Letter to editor" in Iowa on the PATENT Act

In a letter to the editor captioned It’s time to change the game that is patent trolling, Matthew Mitchell, West Des Moines manages to cite the following sources:

$1.33 million is the cost of the average troll settlement paid by a small or medium company (Collen V. Chien, Santa Clara University )
$1.75 million is the cost of the average in-court patent defense case paid by a small or medium company (Chien)
$80 billion is the total amount trolls directly and indirectly cost operating companies in 2011 (Boston University study )


Mr. Mitchell might want to consult the following:

**As to the work of Prof. Chien:

**As to the work of Bessen and Meurer of Boston University:

Friday, May 15, 2015

CAFC says TTAB applied the incorrect legal standard in assessing whether the term PRETZEL CRISPS is generic

Princeton Vanguard, LLC (“Princeton Vanguard”) appeals
from the final decision of the Trademark Trial and
Appeal Board (“the Board”) cancelling its registration of
the mark PRETZEL CRISPS for pretzel crackers on the
Supplemental Register and denying its application to
register PRETZEL CRISPS on the Principal Register.
Frito-Lay N. Am., Inc. v. Princeton Vanguard, LLC, 109
U.S.P.Q.2d 1949 (T.T.A.B. Feb. 28, 2014) (“Board Decision”).
Because the Board applied the incorrect legal
standard in evaluating whether the mark is generic, we
vacate and remand for further proceedings.


Princeton Vanguard argument:


On appeal, Princeton Vanguard argues that the Board
erred in its genericness analysis when it assessed the
PRETZEL CRISPS mark as a compound term instead of a
phrase. Specifically, Princeton Vanguard contends that
the Board “took the short-cut of analyzing whether the
words ‘pretzel’ and ‘crisps’ are each generic for a pretzel
and a cracker, and then it merely assumed the public
would understand the combined mark PRETZEL CRISPS
to be generic for ‘pretzel crackers’ without due consideration
of the actual evidence of record.” A


The CAFC noted:

The Board appears to believe that there is a dichotomy
in the standard applicable to a particular mark depending
on whether it is a compound term or a phrase.
According to the Board, if the mark is a compound term,
then Gould applies, and it can focus on the individual
words, but if it is a phrase, American Fertility requires
that the Board consider the mark in its entirety. Id. at
1953. Because the Board found “no additional meaning
added to ‘PRETZEL CRISPS’ in relation to ‘pretzel crackers,’
when the individual terms are combined,” the Board
analyzed it as a compound term. Id. The Board then
considered the terms individually and concluded that
“pretzel” is generic for pretzels and pretzel snacks, and
“crisps” is generic for crackers. Id.
The problem with the Board’s analysis is that there is
only one legal standard for genericness: the two-part test
set forth in Marvin Ginn. Am. Fertility, 188 F.3d at 1348.


As noted, here, the Board determined that PRETZEL
CRISPS is a compound term, not a phrase, and evaluated
the terms individually under Gould. Board Decision, 109
U.S.P.Q.2d at 1953. The Board concluded that the “commonly
understood meaning of the words ‘pretzel’ and
‘crisps,’ demonstrates that purchasers understand that
‘PRETZEL CRISPS’ identifies ‘pretzel crackers.’” Id. at
1959. Where, as here, the record is replete with evidence
of the public’s perception of the term PRETZEL CRISPS
as a whole, it is unclear why the Board would resort to
analyzing the terms individually or why it would believe
doing so would aid its analysis. In any event, as we have
explained, the appropriate legal standard set forth in
Marvin Ginn requires consideration of the mark as a

At the end of its decision, the Board stated in passing
that, although it analyzed the term PRETZEL CRISPS as
a compound term, “were we to analyze it as a phrase, on
this record, our conclusion would be the same, as the
words strung together as a unified phrase also create a
meaning that we find to be understood by the relevant
public as generic for ‘pretzel crackers.’” Board Decision,
109 U.S.P.Q.2d at 1960. But the Board’s decision lacks
any indicia that it actually engaged in such an analysis.

Of "substantial evidence"

We reiterate, however, that substantial
evidence review “requires an examination of the
record as a whole, taking into account both the evidence
that justifies and detracts from an agency’s opinion.”
Falkner v. Inglis, 448 F.3d 1357, 1363 (Fed. Cir. 2006).
Our review under that standard “can only take place
when the agency explains its decisions with sufficient
precision, including the underlying factfindings and the
agency’s rationale.” Packard Press, Inc. v. HewlettPackard
Co., 227 F.3d 1352, 1357 (Fed. Cir. 2000).



Susan Golden gets honorary degree from Missouri

Susan Golden, an MU graduate and a prominent researcher in microbiology will receive an honorary degree during the Honors College ceremony at 8:30 a.m. Saturday in Mizzou Arena.

Golden's discovery of a biological cycle of cyanobacteria, which gets its energy through photosynthesis, reversed the previous notion that organisms with lifespans shorter than one day could not maintain an internal clock. According to a MU News Bureau release, the findings of this study could affect the development of biofuel or improve chemotherapeutic drugs.

Golden is a professor at the University of California, San Diego, and director of the Center for Circadian Biology. She graduated from MU with a doctorate in genetics in 1983.



Former CJ Michel on patent licensing: "attorneys are now advising their clients not to take a license"

Former CAFC Chief Judge Paul Michel comments on the current state of patent licensing:

“If a company was practicing an invention you made and you pointed that out to them, they would take a license,” he said. “Because they would see that they’re infringing a patent and they want to avoid a lawsuit and they want to be a good corporate citizen, they’d say, OK, I better pay and buy a license.

“We’ve totally gone the other way now.”

Attorneys are now advising their clients not to take a license and to fight the claim, Michel said.

“They’re telling these company owners that they can probably get it knocked out and that even if they don’t succeed, that they can outlast the patent owner, so don’t take a license no matter how clearly you’re infringing,” he explained.


Separately, see IPBiz post

Dan Rosenberg on "a patent crisis that doesn't exist"


Survey evidence of Feldman/Lemley criticized; the story of Copaxone

"Daily Californian" discusses CRISPR patent matter

See the post -- UC Berkeley, MIT scientists argue over patent rights to gene-editing tool --

If the [UC] regents’ request for a patent interference is approved, both sides will argue before a panel over who first invented the CRISPR-Cas9 process. The ensuing legal battle could take years and cost millions of dollars, according to Greg Aharonian, director of the Center for Global Patent Quality, which advises clients on patent procedures.

In an interference, the party who filed an earlier patent application is called the "senior party".

The not-senior party bears the burden of proving that he or she is the first inventor.

Thursday, May 14, 2015

Clothing that produces biofuel? Mushtari, an artwork 3D printed by Stratasys

The on-the-go technologist can make biofuel from cyanobacteria within clothing.

Oxman explains that she was “Inspired by the human gastrointestinal tract, Mushtari is designed to host synthetic microorganisms – a co-culture of photosynthetic cyanobacteria and E. coli bacteria – that can fluoresce bright colors in darkness and produce sugar or biofuels when exposed to the sun. Such functions will in the near future augment the wearer by scanning our skins, repairing damaged tissue and sustaining our bodies, an experiment that has never been attempted before.”


Matter of disclosure of drug trial results: Orexigen Therapeutics and Contrave

See the post on Forbes titled -- Did Orexigen Have The Right To File Its Controversial Patent? -- for issues on including drug test results in a patent application.

The first paragraph of the Forbes post:

Shares in Orexigen Therapeutics, the maker of a weight-loss drug called Contrave, have dropped 24% to $5 since Tuesday, when news came out that data that the drug maker had originally presented as showing Contrave prevented heart attacks and strokes were part of a study that, in the end, showed no such thing.

Of relevance to the issue is the text

But Nissen [Steven Nissen of the Cleveland Clinic, who ran the trial ] says it just meant that Orexigen could file for a patent based on excluding a doubling of risk. “It doesn’t mean the exact data in the trial can be published,” Nissen says. “We work with industry with the expectation that there is not an effort to game the system.”

link to Forbes post:

Separately, from within the Medscape post titled -- US Endocrinologists React to Contrave Safety Study Halt --

Dr Michael Gonzalez-Campoy, medical director and CEO of the Minnesota Center for Obesity, Metabolism, and Endocrinology, in Eagan, agrees that the events of this week are regrettable.

"A trial is designed to go from beginning to end. There's a board that monitors safety, and unless there are safety signals, it should not be [disclosed] prematurely.…It's only at the end of the trial that you can make valid analyses of the data," he told Medscape Medical News.

But he believes the decision to halt the trial was the right one. "I think it would be very difficult to justify moving forward on a study where data have been prematurely released. It's really truly unfortunate that it happened. It really does hurt this particular study, and possibly future studies as well."

Link to Medscape article:

from the beginning of the Medscape post:

News that a cardiovascular-safety study of the weight-loss drug Contrave (naltrexone/bupropion, Orexigen/Takeda Pharmaceuticals, marketed as Mysimba in Europe) had to be halted due to early release of data has prompted outrage and concern about the public's perception of the pharmaceuticals industry's drug trial conduct.

Concerning the Symantec/Veeam patent matter

Of the Symantec/Veeam matter, from eWeek:

"In February 2012, Symantec filed its first patent infringement lawsuit against Veeam and in October 2012, Symantec filed a second patent suite," Doug Hazelman, Veeam's vice president of Product Strategy, told eWEEK. "At the time, we felt that that the lawsuit was without merit, and here we are three years later and we have successfully worked with the courts and the U.S. Patent and Trade Office [USPTO] to review the patents."



From the specification

[0003] Microalgae, like other organisms, contain lipids and fatty acids as membrane components, storage products, metabolites and sources of energy. Some algal strains, diatoms, and cyanobacteria have been found to contain proportionally high levels of lipids (over 30%). Microalgal strains with high oil or lipid content are of great interest in the search for a sustainable feedstock for the production of biofuels.

[0004] Some wild-type algae are suitable for use in various industrial applications. However, it is recognized that by modification of algae to improve particular characteristics useful for the aforementioned applications, the relevant processes are more likely to be commercially viable. To this end, algal strains can be developed which have improved characteristics over wild-type strains. Such developments have been made by traditional techniques of screening and mutation and selection. Further, recombinant DNA technologies have been widely suggested for algae. Such approaches may increase the economic validity of production of commercially valuable products.

[0005] For the production of some commercial products of interest, organisms producing the products may be grown in liquid environments. It is sometimes beneficial to remove the organisms from the liquid environments. One method of removing organisms is to flocculate or aggregate the organisms to facilitate removal. Flocculants or flocculating agents promote flocculation by causing colloids and other suspended particles (e.g., cells) in liquids to aggregate, forming a floc. Flocculants are used in water treatment processes to improve the sedimentation of small particles. For example, a flocculant may be used in swimming pool or drinking water filtration to aid removal of microscopic particles which would otherwise cause the water to be cloudy and which would be difficult to remove by filtration alone.

[0006] Many flocculants are multivalent cations such as aluminium, iron, calcium or magnesium. These positively charged molecules interact with negatively charged particles and molecules to reduce the barriers to aggregation. In addition, many of these chemicals, under appropriate pH and other conditions such as temperature and salinity, react with water to form insoluble hydroxides which, upon precipitating, link together to form long chains or meshes, physically trapping small particles into the larger floe.

[0007] Flocculation of microalgae using chemical flocculants is known. Long-chain polymer flocculants, such as modified polyacrylamides, are manufactured and sold by the flocculant producing business. These can be supplied in dry or liquid form for use in the flocculation process. The most common liquid polyacrylamide, for example, is supplied as an emulsion with 10-40% actives and the rest is a carrier fluid, surthetants and latex.

[0008] Use of chemical flocculants, however, has multiple drawbacks. For instance, use in water treatment and other processes require subsequent removal of flocculants. The addition and removal of flocculants adds to the cost of commercial production of a product of interest, thus decreasing the economic feasibility of production.


The first published claim:

A method of flocculating a non-vascular photosynthetic organism, comprising expressing an exogenous nucleic acid encoding a first flocculation moiety as a cell surface component of a first non-vascular photosynthetic organism; and contacting said organism with a second flocculation moiety, thereby flocculating said organism.

More on the CRISPR patent matter

IPBiz has been covering the patent issues with CRISPR (e.g.,
Will there be an interference between the Zhang and Doudna work on CRISPR?
CRISPR is high profile in science, patents; competitor labeled a mere second comer )

Further to IPBiz posts on the CRISPR matter, note

UPDATE on 22 July 2015

Note the text: On the other hand, a third party has filed documentation in support of a claim against the Doudna application for failure to comply with the duty of candor and good faith, which encompasses the duty to disclose prior art; thus, invalidating any patent that might issue from the Doudna application.

A finding of inequitable conduct renders the claims of the associated patent unenforceable, not invalid.

Fox News on "patent scandal" at WIPO

See the post at


The first published claim of the application titled --METHOD FOR SELECTIVELY CULTURING MICROORGANISM USING PHOSPHITE DEHYDROGENASE GENE AS MARKER -- to Hiroshima University Hiroshima :

A method for selectively culturing a microorganism, the method comprising the step of culturing, in a culture medium containing phosphorous acid as a sole phosphorous source and containing no antibiotic substance, a recombinant microorganism into which a phosphite dehydrogenase gene has been introduced, the microorganism having introduced thereinto a plasmid containing the phosphite dehydrogenase gene, the method making it possible to, in a case where the microorganism is subcultured, stably maintain the number of copies of the plasmid.

Paragraph 110 notes

[0110] Although not particularly limited, an NADP-utilizing phosphite dehydrogenase can be used as appropriate in the selective culturing method of the present invention. Photosynthetic organisms including cyanobacteria are known to generally have high intracellular NADP concentrations, as Calvin cycle is used. Meanwhile, heterotrophic bacteria such as E. coli generally have high intracellular NAD concentrations.

Dan Rosenberg on "a patent crisis that doesn't exist"

From a letter in the New York Times by Dan Rosenberg concerning patent reform bills such as the Innovation Act:

The bills are influenced by headline-catching “studies” using privately held and generated data to paint the picture of a patent crisis that doesn’t exist. According to federal data and respected academics whose data are available to all, the number of patent litigation cases as a percentage of patents issued has been shown to be stable over decades.


See also IPBiz post of Tuesday, February 24, 2015:

Katznelson on Lemley/Feldman paper on licensing


Survey evidence of Feldman/Lemley criticized; the story of Copaxone

See also IPBiz post titled -- Katznelson's "A Federal Information Quality Act Challenge to the White House 'Patent Troll' Report" --

Wednesday, May 13, 2015

Survey evidence of Feldman/Lemley criticized; the story of Copaxone

An earlier IPBiz post More on the Feldman/Lemley argument about licensing criticized the basic premise of the Feldman/Lemley work:

Generally, licensing of third party work is always going to face the "not invented here" syndrome. Yes, we licensed it but only because it was easier than fighting. Our work is the real innovation. The Feldman finding is not a big surprise and not an indictment of the patent system

The obstacle of the "not invented here" was faced by Chester Carlson, inventor of xerography. Of more recent vintage is the story of Copaxone.

Arnon: "Not really. It wasn’t as if other companies were waiting by my door. At the time, I had ties with scientists at several companies, but they weren’t happy bringing outside products to their management. What, they'd reveal to their superiors that in-house R&D wasn’t good enough? At Teva, Michael had a direct relationship with the company's management, and it didn’t have an in-house innovative R&D department anyway.

From Globes article, Copaxone's inventors hope for improved treatment

**Separately, one notes that the discovery of Copaxone was not part of a coordinated drug discovery effort.

From the Globes article:

Prof. Michael Sela and Prof. Ruth Arnon from the Weizmann Institute of Science discovered Copaxone for the treatment of multiple sclerosis while seeking to develop a product to induce the disease. The serendipitous discovery became the drug with the biggest sales by an Israeli pharmaceutical company. It would be no exaggeration to say that the discovery has even affected the Israeli economy.

Teva Pharmaceutical Industries Ltd. (NYSE: TEVA; TASE: TEVA) is expected to report $3.7-3.9 billion in Copaxone sales in 2013, after steady growth from $2.3 billion in 2008 to $4 billion in 2012.

Arnon and Sela have repeatedly said that they did not embark on their study to develop a drug. Sela told "Globes", "For me, curiosity is the determining factor; curiosity and truth. I am allergic to lies, but I can wake up at 2 am because something interests me. What interested me during the discovery of Copaxone was immunology - how the immune system works."

Arnon, who was Sela's doctoral student when Copaxone's development was initiated, has stressed that she was not seeking to develop a drug, but to complete a detective story to create understanding where previously there was only ignorance.

The year was 1967, and Arnon and Sela attempted to induce multiple sclerosis in animals to discover the causes of the disease and to create a model for understanding it.

Tuesday, May 12, 2015

Criticism of the Innovation Act of Congr. Goodlatte

From Wayne Winegarden in the News Observer on Goodlatte's Innovation Act:

However, provisions of the Innovation Act, such as forcing inventors to pay damages for actions taken by other users of the invention, reduce the value of developing patented technologies for universities. Therefore, provisions of the Innovation Act could result in fewer innovations being developed in academia.
Recent events illustrate a better path for reform.
Due to the 2014 U.S. Supreme Court decisions in the Octane Fitness and Highmark cases, judges now have greater discretion to enforce legitimate patent rights and also are empowered to punish patent trolls through provisions that include requiring plaintiffs that filed abusive litigation to cover the defendants’ legal costs.

Read more here:



The outcome

affirm finding of D. Del.  :  claims 1 through 23 of the RE153 are invalid

reverse:  finding that claims 24 and 25 invalid


US Patent 9,029,120 to Matrix Genetics: Modified photosynthetic microorganisms for producing triglycerides

Text of first claim:

A modified Cyanobacterium comprising: an exogenous polynucleotide encoding a diacylglycerol acyltransferase (DGAT) that uses acyl-ACP as a substrate, wherein the modified Cyanobacterium produces a triglyceride, a wax ester or both.

Monday, May 11, 2015

Rush Holt's US Patent 4,249,518: Method for maintaining a correct density gradient in a non-convecting solar pond

Rush Holt was the Congressman representing the area of New Jersey including Princeton University.
Holt had a good grasp of issues in patent "reform."

The first claim of his US '518 patent:

 A method for automatically controlling the salt gradient region in a non-convecting salt gradient pond comprising the steps of: 

A. providing a solar pond having an upper fresh water region, an intermediate salt gradient region and a lower heat storage region; 

B. automatically removing salty water from a first level of said lower heat storage region of said solar pond in response to a sensed ambient condition; 

C. feeding said removed salty water to a spillway where said water is exposed to sun and air; 

D. evaporating said saltly water by said sun and air on said spillway so as to form a concentrated brine; 

E. collecting said concentrated brine from said spillway; and 

F. automatically returning said collected concentrated brine to a second level of said solar pond above said first level. 

Ericsson expands the patent battle against Apple

Ericsson, a large holder of standard essential patents ("SEP assets") in the mobile world, has recently filed infringement actions against Apple in Germany, the Netherlands and the UK. It claims it wants Apple to license its technologies on the same Frand (fair, reasonable and non-discriminatory) terms as everyone else, but that the US firm has refused to do so, since their previous contract expired in January.

At the bottom of the dispute is "how" licensing fees are calculated.

From MacWorld Australia:

Sources suggest the way the licence fee is calculated is the main issue. Apple wants to lay the fee based on the cost of components that use Ericsson’s technology, whereas Ericsson wants the fee calculated based in the final cost of a complete iPhone or iPad.
However, Ericsson claims that even that action excludes most of the 41 patents that it asserts all iPhones and cellular capable iPads use. In an official statement, Ericsson says, “Apple does not currently have any licence for Ericsson’s technology, but continues to sell products, for which its licences have expired, on a global scale.”


See also

Joule Unlimited announcement in May 2015: more funding and transitioning to commercial production?

Joule announced the round Monday [11 May 2015] and said it is a mix of private equity and venture debt. Flagship Ventures, the Boston-area venture capital firm that created Joule in 2007, led the round, which also included investments from Joule’s other backers. With the new cash, Joule has raised a total of $200 million.

Joule will use the new money to expand its pilot production plant in Hobbs, NM, the company said in a release.


Worrying about inadvertent plagiarism?

Note the discussion of plagiarism anxiety which appears in the post titled

The Plagiarism Jitters

 written by    .

which ends with the words:

O.K., one last time. I just went back on the Internet and searched again for that opening phrase, “pain and death are the physician’s familiars.” Nothing came up except my book review. No one else had said it first, and no one has borrowed it since.


CAFC affirms PTAB in Tadayon case

Note the text:

See, e.g., In re Inland Steel Co., 265F.3d 1354, 1361 (Fed. Cir. 2001)
(“The fact that [a prior art reference] teaches that [a second step] in addition to [a
first step] produces optimal results does not negate [the
reference's] additional teaching that [the first step] is
effective even in [the absence of the second step.]”


Top Agent v. Zillow: need to plead trade secrets with specificity

ACC on trade secret case   Top Agent Network, Inc. v. Zillow, Inc.:

In February, 2014, Top Agent’s Chief Executive Officer contacted Zillow’s Chief Revenue Officer about a potential investment by Zillow in Top Agent.

On a call, Zillow’s executive assured Top Agent’s executive that all information provided by Top Agent to Zillow would be kept confidential and used by Zillow solely to evaluate a potential investment. The Zillow executive also said that he intended to sign a nondisclosure agreement (NDA).

After this call, Top Agent provided Zillow with access to its member-only content, including the “Upcoming Listings” feature.
Zillow later told Top Agent that Zillow would not be making the contemplated investment.
In June, 2014 Zillow launched its own “Upcoming Listings” feature. According to Top Agent, this Zillow offering contained all the core features of the Top Agent offering.

The Lawsuit

Top Agent sued Zillow in October 2014, alleging causes of action including:
  • misappropriation of trade secrets under California’s Uniform Trade Secrets Act (CUTSA)
  • misappropriation of ideas
  • breach of confidence
Zillow moved to dismiss most of the causes of action.
The court dismissed Top Agent’s trade secret claims because Top Agent failed to plead the existence of trade secrets with sufficient specificity.

The court noted that:
trade secret laws do not protect “ideas,” or “conceptual” data, but rather facts, or “empirical data” — “such as the customer’s preferences, or the location of a mineral deposit”… It is far from clear that the “features” and “strategy” to which the complaint vaguely refers are comprised of empirical data, protectable under CUTSA, rather than ideas or functions, which are not.
The case is Top Agent Network, Inc. v. Zillow, Inc.

Protecting Ideas

The case illustrates the challenges of protecting a business “idea” from use by others, even when the idea is revealed subject to an NDA. A business idea that rises to the level of an “invention” can be protected via a business method patent, but these types of patents are increasingly challenged in the courts.