Wednesday, June 29, 2016

US published application 20160183695: Crib With Embedded Smart Sensors

The first claim:

A baby crib, comprising: a horizontal support platform; a base structure disposed below and physically supporting the horizontal support platform; a plurality of vertical surfaces connected to the horizontal support platform and arranged to form a contained area at least 50 cm above the horizontal support platform; a first sensor physically integrated with the horizontal support platform; and a second sensor physically integrated with at least one of the plurality of vertical surfaces.

CAFC handles USPTO roughly in LF Centennial Limited: the fallacy of the undistributed middle

From the CAFC decision, as to the PTO Director:

...the Director suggests a side panel can be a spine. That suggestion is fallacious: it employs a version of the fallacy of the undistributed middle, ...

To put this in context, from the opinion:

To support the Board’s contrary construction, the
Director of the Patent and Trademark Office, as intervenor,
asks us to hold LF Centennial to the construction
that it proposed—and the district court adopted—in the
prior litigation against Bell’O. But that construction is
not in tension with what LF Centennial proposes here: it
says nothing that contradicts the relevant ordinary nontechnical
meaning of “spine” or, specifically, its distinction
from side panels or legs. In the district court, LF Centennial
proposed only that “first short spine” means “[a]
component, as described in the claim, having a length
shorter than the [second long] spine,” J.A. 561, and that
“second long spine” means “a component, as described in
the claim, having a length longer than the first short
spine,” J.A. 563. The defendants, in turn, argued that the
first short spine and second long spine cannot be used
together and that the first short spine must be removable.
As the district court explained, the parties’ dispute centered
on “whether the two different spines described in
the claims can be used together.” J.A. 582. Nothing
supporting the Board here was said about the location of
the spines, in relation to the console as a whole or to the
side panels.

Nor did any post-claim-construction ruling in the
court case turn on any implicit view of “spine” different
from what LF Centennial urges here. In this circumstance,
there could be no basis for judicial estoppel, which
generally prevents a party from advancing a position that
is “clearly inconsistent” with an earlier position on which
it succeeded. See Zedner v. United States, 547 U.S. 489,
504 (2006); New Hampshire v. Maine, 532 U.S. 742, 750
(2001). Similarly, there could be no basis for issue preclusion,
which is limited to issues that were “actually litigated”
and whose resolution was “essential” to the outcome
in the first round of litigation. See B & B Hardware, Inc.
v. Hargis Indus., Inc., 135 S. Ct. 1293, 1303 (2015); Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 (1979);
Restatement (Second) of Judgments § 27 (1982).

The Director also points to the specification’s description
of a short spine in one embodiment as reaching from
the ground to the top of the console. See ’311 patent, col.
2, lines 6–9 (short spine “extends between the floor or
lowest shelf support to the level of the upper most shelf
support”). Because a side panel does the same, the Director
suggests, a side panel can be a spine. That suggestion
is fallacious: it employs a version of the fallacy of the
undistributed middle, under which the two statements, “a
dog is a four-legged pet” and “a cat is a four-legged pet,”
are asserted to give rise to the inference that a dog is a
cat. A common characteristic of a spine and a side panel
does not allow a conclusion that one can be the other.
Under the appropriate construction (which applies to
all of the claims), the Board’s anticipation and obviousness
rejections must be reversed. The challenger Bell’O,
the examiner, and the Board pointed only to the curved
legs or side panels shown in Figure 8 of Saxton as constituting
the disclosure of a “short spine.” Those components
were merely identified as the “short spines,”
without elaboration as to Saxton’s teaching to a relevant
skilled artisan. Because we hold that such components
cannot be considered “spines” under the ’311 patent, there
has been no showing of a disclosure or teaching of a “first
short spine” in the prior art of record. We reverse the
anticipation and obviousness rejections based on Saxton
and Pfister.


Opinion by Taranto.

A version of the fallacy, from wikipedia:

All Z is B
All y is B
Therefore, all y is Z


In this case,

Short spine has property X
Side panel has property X.
Therefore, some side panels are spines.

Monday, June 27, 2016

Bascom beats AT&T on 101 issue at CAFC

Bascom won a vacating of an order from ND Texas.

However, we disagree with the district court’s analy-
sis of the ordered combination of limitations. In light of
Mayo and Alice, it is of course now standard for a §101
inquiry to consider whether various claim elements
simply recite “well-understood, routine, conventional
activit[ies].” Alice, 134 S. Ct. at 2359. The district court’s
analysis in this case, however, looks similar to an obvi-
ousness analysis under 35 U.S.C. § 103, except la
cking an explanation of a reason to combine the limitations as
claimed. The inventive concept inquiry requires more
than recognizing that each claim element, by itself, was
known in the art. As is the case here, an inventive con-
cept can be found in the non-
conventional and non-generic
arrangement of known, conventional pieces.
The inventive concept described and claimed in the ’606 patent
is the installation of a filtering tool at a specif-
ic location, remote from the end-users, with customizable
filtering features specific to each end user.


While the claims of the ’606 patent
are directed to the abstract idea of filtering content,
BASCOM has adequate-
ly alleged that the claims pass step two of
Alice’s two-part framework.

Judge Newman wrote separately:

As this case
illustrates, these cumbersome
procedures for sepa-
rate determinations of patent eligibility
and patentability have added
to the cost and uncertainty of
commerce, with no balancing benefit.


Sunday, June 26, 2016

CBS Sunday Morning on June 26, 2016 does Teflon

CBS Sunday Morning on June 26, 2016 discussed the invention of Teflon in its almanac feature, noting this was the 106th anniversary of the birthday of Roy Plunkett:

Plunkett was a DuPont chemist working with gases in the late 1930s when an experiment unexpectedly produced a mysterious white powder. The slippery stuff turned out to have multiple military applications ... and even helped in making the first atomic bomb.

In 1945, DuPont trademarked its miraculous discovery, mercifully shortening its chemical name (Poly-tetra-flouro-ethylene) to the more user-friendly name: Teflon.


[Plunkett] died in 1994, just shy of his 84th birthday. But his name lives on in the form of DuPont's annual Plunkett Award.

Plunkett's US Patent 2,230,654 (filed July 1, 1939; granted Feb. 4, 1941) was assigned to Kinetic Chemicals, a joint venture between DuPont and General Motors.

The moment of nature was from Tallulah Gorge State Park in Georgia.

*Separately, as to interviewing on Fridays:

Wednesday, June 22, 2016

CAFC in Immersion v. HTC case: same day continuation filing is all right

This case involves one necessary condition, under 35
U.S.C. § 120, for treating a patent application, filed as a
continuation of an earlier application, as having the
earlier application’s filing date, not its own filing date.
That timing benefit shrinks the universe of “prior” art for
determining validity. The condition at issue, as relevant
here, is that the continuation application be “filed before
the patenting” of the earlier application. The question is
whether, for that condition to be met, the continuing
application has to be filed at least one day before the
earlier application is patented, or whether an application
may be “filed before the patenting” of the earlier application
when both legal acts, filing and patenting, occur on
the same day.

We adopt the latter position. The statutory language
does not compel, though it certainly could support, adoption
of a day as the unit of time for deciding if filing is
“before” patenting. And history is decisive in permitting
the same-day-continuation result, under which, using
units of time of less than a day, a “filing” is deemed to
occur before “patenting.” The Supreme Court approved
same-day continuations in 1863, and the 1952 Patent Act,
which introduced section 120, was broadly a codification
of existing continuation practices. And same-day continuations
have been approved by a consistent, clearly
articulated agency practice going back at least half a
century, which has plausibly engendered large-scale
reliance and which reflects the agency’s procedural authority
to define when the legal acts of “filing” and “patenting”
will be deemed to occur, relative to each other,
during a day.


This is not a case, as we have explained, where the
language of the statute actually contradicts the
longstanding judicial and agency interpretation. Nor is it
a case in which the longstanding agency position is plainly
outside the agency’s granted authority. Here, the
position is an essentially procedural one establishing
when the agency will consider an input into its process
(the legal act of “filing”) and an output of its process (the
legal act of “patenting”) to occur relative to each other—
neither one being a precisely identifiable self-defining
physical act, but a legally defined event. Similar “deeming”
determinations in the federal courts, e.g., Fed. R.
App. P. 4(a)(2), 4(a)(7)(A)(ii), 25(a)(2)(A) & (B), have long
been treated as non-substantive, procedural matters
under the Rules Enabling Act, 28 U.S.C. § 2072. See
Hanna v. Plumer, 380 U.S. 460, 463–65 (1965) (methods
of serving process to initiate litigation). The PTO has
been granted authority to establish procedures that
organize its processing of requests to issue (or cancel)
patents, from entry to exit. See 35 U.S.C. § 2; Cooper
Techs. Co. v. Dudas, 536 F.3d 1330, 1336–38 (Fed. Cir.
2008); Lacavera v. Dudas, 441 F.3d 1380, 1383 (Fed. Cir.
2006); In re Sullivan, 362 F.3d 1324, 1328 (Fed. Cir.
2004); see also Tafas v. Doll, 559 F.3d 1345, 1352–53 (Fed.
Cir. 2009), vacated, 328 F. App’x 658 (Fed. Cir. 2009); id.
at 1365 (Bryson, J., concurring).

Judge Newman dissents in Ethicon v. Covidien,DENIAL ON PETITION FOR REHEARING EN BANC

The term "rulemaking" appears four times in the dissent of Judge Newman.

Monday, June 20, 2016

US Supreme Court on Cuozzo

The Supreme Court had no trouble with the USPTO utilizing the BRI standard.

The concurring opinion by Justice Thomas discussed issues with Chevron, and stated:

The Court avoids those constitutional concerns today because the provision of the America Invents Act at issue contains an express and clear conferral of authority to the Patent Office to promulgate rules governing its own proceedings. See 35 U. S. C. §316(a)(4); ante, at 13. And by asking whether the Patent Office’s preferred rule is reasonable, ante, at 17–20, the Court effectively asks whether the rulemaking was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” in conformity with the Administrative Procedure Act, 5
U. S. C. §706(2)(A). I therefore join the Court’s opinion in full.

Of the amendment issue, the majority noted:

In inter partes review,however, the broadest reasonable construction standard may help protect certain public interests, but there is no absolute right to amend any challenged patent claims.This, Cuozzo says, is unfair to the patent holder.
The process however, is not as unfair as Cuozzo suggests. The patent holder may, at least once in the process,make a motion to do just what he would do in the examination process, namely, amend or narrow the claim.§316(d) (2012 ed.). This opportunity to amend, together with the fact that the original application process may have presented several additional opportunities to amend the patent, means that use of the broadest reasonable construction standard is, as a general matter, not unfair to the patent holder in any obvious way.

Cuozzo adds that, as of June 30, 2015, only 5 out of 86 motions to amend have been granted. Brief for Petitioner 30; see Tr. of Oral Arg. 30 (noting that a sixth motion had been granted by the time of oral argument in this case).But these numbers may reflect the fact that no amendment could save the inventions at issue, i.e., that the patent should have never issued at all.

To the extent Cuozzo’s statistical argument takes aim at the manner in which the Patent Office has exercised its authority, that question is not before us. Indeed, in this particular case, the agency determined that Cuozzo’s proposed amendment “enlarge[d],” rather than narrowed,the challenged claims. App. to Pet. for Cert. 165a–166a; see §316(d)(3). Cuozzo does not contend that the decision not to allow its amendment is “arbitrary” or “capricious,” or “otherwise [un]lawful.” 5 U. S. C. §706(2)(a).

Of the different standards issue

Second, Cuozzo says that the use of the broadest reasonable construction standard in inter partes review,together with use of an ordinary meaning standard in district court, may produce inconsistent results and cause added confusion. A district court may find a patent claim to be valid, and the agency may later cancel that claim in its own review. We recognize that that is so. This possibility, however, has long been present in our patent system, which provides different tracks—one in the Patent Office and one in the courts—for the review and adjudication of patent claims. As we have explained above, inter partes review imposes a different burden of proof on the challenger. These different evidentiary burdens mean that the possibility of inconsistent results is inherent to Congress’ regulatory design. Cf. One Lot Emerald Cut Stones v. United States, 409 U. S. 232, 235–238 (1972) (per curiam).

Of note, inconsistency is not unreasonable:

And we cannot find unreasonable the Patent Office’s decision to prefer a degree of inconsistency in the standards used between the courts and the agency,rather than among agency proceedings. See 77 Fed. Reg.48697–48698.

This inconsistency had been an argument for those supporting the Cuozzo position; Reuters noted:

Cuozzo was supported by several industry groups and companies, which urged the justices to take the case.

One friend-of-the-court brief filed in the case on behalf of 3M Co, Caterpillar Inc, Eli Lilly and Co and Qualcomm Inc said the patent office reviews and litigation in district court needed to be streamlined for the "proper functioning of the patent system as a whole."


The Wall Street Journal noted:

The Supreme Court acknowledged the Patent Office rules differ from those in court, but said the agency had taken a reasonable approach.

Justice Stephen Breyer, writing the court’s opinion, said the Patent Office approach “helps to protect the public” by preventing individuals and companies from claiming overly broad patents.

According to recent government data, trials completed so far in front of a Patent Office board have resulted in the cancellation of some or all of a patent more than 80% of the time.

[One notes that proposed patent reform legislation, such as the Goodlatte bill, specified the review standards would be the same.]

Sunday, June 19, 2016

CBS Sunday Morning on June 19, 2016: Fathers Day

Lee Cowan, not Charles Osgood, hosted Sunday Morning for June 19, 2016.

There were several "intellectual property" themes, including the Almanac feature, which noted:

June 19th, 1931, 85 years ago today ... the day the door opened to a whole new world of technology.

For that was the day the Stanley Works company installed the world's first automatic doors at Wilcox's Pier Restaurant in West Haven, Connecticut.

Placed between the kitchen and the dining room, the doors sprang open the moment a photoelectric eye detected a person's approach.

"Through the invention," wrote the Hartford Courant, "there is no longer need for waitresses to kick open doors or use their hands for anything other than carrying in the trays."

StanleyAccess gives some details on the related patent:

On Nov. 23, 1931, Raymond submitted an application for his “apparatus for operating doors” with the U.S. Patent Office. Three years later, a patent for the world’s first pneumatic operator with photo-electric, or light beam, controls was published (No. 1978093A).

Novelty, as well as the practical value of The Stanley Works “Magic Door,” appealed to progressive business people of this era, particularly owners of retail stores. The first installation was at Wilcox Pier Restaurant in West Haven, Conn. The Massachusetts Institute of Technology also had the door operator installed on the institute’s iconic entrance hall in Cambridge, Mass. This door operator is still in place and running today, more than 80 years later.


Anthony Mason did a "fathers day" story on photographer William Eggleston and his daughter, textile designer Andra Eggleston.
Some of the father's designs have been incorporated into fabrics produced by the daughter. Mason commented that he could not see the repeat unit in the fabric.

Seth Doane talked with Richard Gere, beginning with "Time out of mind," and getting into refugees at Sant Egidio and Lampadusa.
Gere's 94 year old father was mentioned. The Pope Francis/Lesbos refugee matter was discussed, with one of the "adopted" refugees interviewed.

Mo Rocca linked socks and Fathers Day, and talked with Vivek "V.K." Nagrani. Of creativity and socks:

Rocca asked, "The man who's wearing carefully-chosen socks is sending a message that says what?"

"That he pays attention to detail," Vagrani replied. "You naturally will start to think of that person a little bit different. You start to almost see an insight into his personality."

"Maybe that person's a bit creative, an out-of-the-box thinker?"

"Yes. And this is what gives the man an opportunity to quietly express himself."

There was mention of socks taking off with the invention of the knitting machine. This could be
an allusion to William Lee who invented the first stocking frame knitting machine in 1589.

Anna Werner interviewed actor Tim Daly, brother of Tyne Daly.

Luke Burbank did a piece on BeardedVillains, a group that got started on InstaGram.
A 1976 Supreme Court case, believed to be Kelley v. Johnson, 425 U.S. 238, , was alluded to. IndianaLegalArchive notes:

Few federal cases have applied Kelley’s rational basis test in deciding due process questions related to facial hair. In 1978, however, the Seventh Circuit Court of Appeals, in Pence v. Rosenquist, 573 F.2d 395, held that a public high school’s “policy of not permitting a person with a mustache, no matter how neatly trimmed, to drive a school bus lacks any rational relationship with a proper school purpose.” In so deciding, the court overruled one of its earlier decisions, Miller v. School District No. 167, 495 F.2d 658 (7th Cir. 1974),

The "moment of nature" evoked a Fathers Day theme: Monument Valley, located near the Utah-Arizona border, and was a familiar setting for John Ford, one of the Founding Fathers of the Hollywood Western. One of the access points is Kayenta, AZ.

Friday, June 17, 2016

GrafTech loses at the CAFC

Related to evidentiary issues:

GrafTech’s argument suffers from two flaws.

First, GrafTech’s argument asks us to reweigh the evidence, which we may not do under the substantial evidence standard of review. See In re NTP, Inc., 654 F.3d 1279, 1292 (Fed. Cir. 2011) (explaining that, under the substantial evidence standard of review, “[t]his court does not reweigh evidence on appeal, but rather determines whether substantial evidence supports the [PTAB’s] fact findings”); Nutrinova Nutrition Specialties & Food Ingredients GmbH v. Int’l Trade Comm’n, 224 F.3d 1356, 1359 (Fed. Cir. 2000) (“Even if we might have found some of the facts differently, or even if we might have drawn some inferences from the facts differently, . . . that is not the role of an appellate court.”).

Second, the record does not support GrafTech’s argument. During cross-examination, Mr. Bagot testified that he worked extensively with graphite and that his education in Britain is equivalent to a bachelor’s degree in science engineering in the United States. J.A.-1796, at 2579–80. Mr. Bagot also testified that he possesses over five years of experience in thermal management and electronics and that he has worked with flexible graphite sheets for over five years. J.A.-1796, at 2581–82. These are the qualifications that GrafTech alleged an individual should possess to qualify as an expert. See GrafTech I, 2015 WL 1385390, at *5. Thus, substantial evidence supports the PTAB’s decision to rely upon Mr. Bagot’s testimony.

Footnote 7:

In In re Cuozzo Speed Techs., LLC, the Supreme Court is considering whether the PTAB “may construe claims in an issued patent according to their broadest reasonable interpretation rather than their plain and ordinary meaning.” Brief for Petitioner at *II, In re Cuozzo Speed Techs., LLC (No. 15-446), 2016 WL 737452 (Feb. 22, 2016). Even if the Supreme Court finds that the PTAB should construe terms consistent with their plain and ordinary meaning, that holding would not change our conclusion in this case because GrafTech’s proffered construction improperly would impose an extraneous limitation on the disputed claims, as discussed below.

Note also

specification “includes both the written description and the claims” of the patent in question. In re Packard, 751 F.3d 1307, 1320 n.11 (Fed. Cir. 2014). If a specification does not assign or suggest a particular definition to a claim term, and the PTAB relies upon evidence extrinsic to the specification to construe a claim, “[w]e review [the] underlying factual determinations concerning extrinsic evidence for substantial evidence and the ultimate construction of the claim de novo.” In re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1280 (Fed. Cir. 2015) (citation omitted), cert. granted sub nom., Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 890 (2016).

CAFC affirms PTAB in In re Zhang

The CAFC made short work of "In re Zhang."

We conclude that the Board’s findings on obviousness, including that Doi does not teach away from using the non-coated yarn of Weinle, are supported by substantial evidence. While a prior art reference may indicate that a particular combination is undesirable for its own purposes, the reference can nevertheless teach that combination if it remains suitable for the claimed invention. See In re Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006) (“[T]he teaching of [a reference] is not limited to the specific invention disclosed.”). Though using the non-coated yarn of Weinle to make the knitted fabric of Doi may eliminate the advantage in hand feel provided by Doi’s coated yarn, “[a] known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). Moreover, the claims of the ’047 application are not limited to fabrics that are soft to the touch. Rather, they only require a knitted fabric made of two yarns, one that is non-coated with a lower relative melting point that is heat-bonded to itself “at a percentage of . . . crossover points.” J.A. 189. Substantial evidence supports the Board’s findings that the prior art teaches the claim elements and that a skilled artisan would have been motivated to combine the non-coated yarn of Weinle to make the heat-bonded fabric thermally bonded at the crossover points as disclosed in Doi. Mr. Zhang does not make additional arguments regarding the rejection of claim 6. We thus affirm the Board’s rejection of claims 1–13 for obviousness. Because we affirm the rejection of all pending claims under § 103(a), we decline to reach the rejection under § 112, paragraph 1. See In re GPAC Inc., 57 F.3d 1573, 1577 (Fed. Cir. 1995).

Mr. Zhang was represented by Mr. Wang, of Millington NJ.

The Register slams the Financial Times over patents: "Maybe the FT's editor needs to get his story straight."

From the post at The Register

In a separate piece last week ("Brexit vote would harm EU unitary patent plans"), the FT reported that: "The long-awaited single European patent, protecting inventions through out the EU, is set to arrive next year - unless Britain votes to leave" the EU.

Everyone quoted in this pro-EU piece was an IP lawyer, yet according to the paper, these same IP lawyers represent a serious existential threat to innovation in the US and Europe. Maybe the FT's editor needs to get his story straight. The paper is living up to the jibe that it has become "the Daily Mail of the Europhile elite".

You're probably reading this thinking, "Oh no, not more anti-EU scare stories. Besides, it probably won't affect me."

Believe me, if you work for (or intend to found) an innovative startup developing some kind of e-business, web-service, AI, app, IoT service, analytics, or electronics this WILL affect you. It will also affect you if you intend to purchase any products or services that contain these technologies. The reason I am writing this piece is because - even under the current European regime - I have been personally affected on a number of occasions by the EPO (European Patent Office) failing to scrutinise illegitimate US patents. US-based entities have tried to assert patent rights in Europe for technologies that I pioneered here in the UK, when details (and even videos) of these technologies had been available in the public domain.


But The Register relies on James Bessen!

Although patent trolling is now increasing rapidly in Germany, Professor James Bessen of Boston University School of Law says that it is not currently a major problem in the UK – where fewer software patents and a "loser pays" litigation costs regime are real disincentives for that sort of “opportunistic behaviour".

Thursday, June 16, 2016

The legacy of game five of the 1961 World Series

In a post titled THE MOST UNLIKELY PITCHERS TO CLINCH A WORLD SERIES , Paul Sullivan discusses Bud Daley in game five of the 1961 World Series.

As a few footnotes, Daley went from the Kansas City Athletics to the Yankees AFTER Finley took over (and was traded for a "goat" of the 1960 World Series, Art Ditmar), and Daley had a losing record (8-9; 17 games started (5th most on the team); 7 complete games;) for the 1961 regular season Yankees. Bob Turley, the hero of the 1958 World Series, was the only other pitcher on the 1961 Yankees with a losing record (3-5). Bill Stafford was the only Yankee starter with an ERA under 3.00. Had the Yankees not won game five, Stafford likely would have started game 6; the Yankees had won game 3 (which Stafford started) only by a score of 3-2 (on a Maris home run, one of only two hits for Maris in the 1961 Series).

The Yankees at game five were hurting: Mantle and Berra were not in the lineup, and Ford had been hurt. Daley's effort was major.

"There are no second acts" but there can be re-invention

Brian O'Neill of the Pittsburgh Post-Gazette makes some interesting comments on the Hamlet plagiarism matter in his post
titled How plagiarism brings about job openings .

Mr. O'Neill's interesting article (which discusses, in part, the alleged plagiarism of Phil Musick in 1987) ends with

It should be mentioned that Mr. Musick, a gifted writer, bounced back to become a terrific talk show host. Contrary to what F. Scott Fitzgerald wrote, there are second acts in American lives. But you have to write your own

As one point, one recalls the confirmed plagiarism of Joe Biden in Syracuse Law School, which did not impede Mr. Biden from a very successful later career. SO, if we are looking for poster children for "plagiarist makes good," Biden beats Musick.

BUT, as a second point, the simplistic interpretation by Mr. O'Neill of a line in "The Last Tycoon" may be questioned.

From a post at readthespirit:

In a 2010 column in The Atlantic, writer Hampton Stevens pointed out that Fitzgerald wrote for the theater at Princeton and later Broadway (and Hollywood). “With ‘no second acts,’ he was almost certainly referring to a traditional, three-act drama, in which Act I establishes the major conflict, Act II introduces complications, and Act III is for the climax and resolution.”

Of course, Fitzgerald left us with a puzzle when he died prematurely at age 44 in late 1940. He was only about half finished with his final novel, The Last Tycoon. His friend Edmund Wilson assembled enough of the book so that an edition could be published in 1941. To accomplish this, Wilson searched through hundreds of pages of notes and, in the final published pages, simply listed some one-liners from those notes. That’s where the famous line appears: “There are no second acts in American lives.” Then, right after that, Wilson placed this line from Fitzgerald’s notes: “Tragedy of these men was that nothing in their lives had really bitten deep at all.”

Maybe Fitzgerald was saying we’d be better off if we took a little time for character development, for figuring out who we are, before we race to the finish line. That explanation seems to make a lot more sense than the more common interpretation of the line.


See also 2003 post:

AND, from the LAReviewOfBooks:

F. Scott Fitzgerald famously wrote, in his notes on The Last Tycoon, that “there are no second acts in American lives,” which in common usage has come to mean something like, “There are no second chances.” If anything, both Fitzgerald’s writing and his life show us that there are infinite chances, endless do-overs, that the American mind has no choice but to forge ahead, trying, trying again. There’s probably scholarship to contradict me, but I think Fitzgerald was getting at something more like the idea that there are no true endings — but rather, that what’s wrapped up with a bow is only waiting to come undone; our stories are constantly unfolding, scene after scene.


And from a comment at NPR (which includes the text "invent"):

Fitzgerald was a pretty smart guy; he knew that people everywhere reinvent themselves. As a veteran screenwriter, he also knew that a good story has a time between the first and third acts when things get really complicated and messy. That's what he found lacking in the lives of Americans, who prefer to bring the problems introduced in Act I to a happy resolution in Act III, skipping the messy second act


LBE (whose father knew Fitzgerald) believes this more nuanced version of the words "second acts" is the correct take.

As a separate issue, when one attributes to Fitzgerald a line taken out of context, from a novel Fitzgerald never completed, is one committing a form of inverse plagiarism, incorrectly attributing to someone a meaning not intended BECAUSE it is taken out of context?

**Returning to the Hamlet matter [ ],
LBE talked to an NJ school superintendent, who opined that there was no excuse to represent
incorrectly on a resume an actual enhancement from C to B, as one being from F to B, which effectively embellished the accomplishment on the resume. This sort of thing also goes back to Biden, who may or may not have plagiarized a story from Neil Kinnock but who incorrectly adopted the facts of the Kinnock story as his own.

As background to Kinnock matter, see

In such cases, obfuscation about plagiarism can "cover up" a deeper problem.

Led Zeppelin copyright case moves along

In 'Stairway to Heaven' trial: When does inspiration become plagiarism?, Lisa Suhay in the ChristianSM explores
the copyright case involving Led Zeppelin.

The suit is brought by the trustee of the estate of deceased guitarist and composer Randy Wolfe of the band Spirit, a rock band formed in 1967 in Los Angeles, and claims that the iconic opening riff of Stairway was lifted from the song "Taurus," performed at a 1970 concert in Britain that Mr. Plant allegedly attended.

"Taurus" would have been created before the Copyright Act of 1976 and would fall under the copyright law of 1909 (which does not have an explicit fair use provision).

Within the CSM piece, one has the text

“The line is, and always has been pretty much, whether you're creating a new work or something that's meant to replace or compete with the original,” Bailey says. “Taking something I've seen or heard and going a new direction with it is one thing, creating an imitation is another.”

"Fair use" in the current US copyright law (17 USC 107) includes consideration of

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

One might also note a post in TIME ( ), which includes

The defendants deny these allegations, arguing that Wolfe was a writer for hire and that the chord progression was too commonplace to copyright.

When Plant and Page explain the song’s origins in court next month, their lawyers have asked the judge to forbid any argument that the rockers’ memories may be flawed due to “adverse effects of drinking or drug use in the 1960s or later,” Bloomberg reports.

Wednesday, June 15, 2016

CAFC affirms PTAB decision in Allied Erecting

The CAFC affirmed the Board’s (“PTAB”) decision, on inter partes reexamination,
concluding that claims 1–21 of U.S. Patent No. 7,121,489
(“the ’489 patent”) would have been obvious over German
prior art reference DE 297 15 490 U1 (“Caterpillar”) (J.A.
131–44) and U.S. Patent No. 4,283,866 (“Ogawa”) (J.A.
145–51). See Genesis Attachments, LLC v. Allied Erecting
& Dismantling Co., No. IPR2014-001006, 2014 WL
7274949 (P.T.A.B. Dec. 19, 2014); (PTAB decision denying
rehearing) (J.A. 2–8).

An argument made by Allied was that the features of Ogawa and Caterpillar
could not be physically combined. This argument was rejected:

Contrary to Allied’s position, “it is not necessary that
[Caterpillar and Ogawa] be physically combinable to
render obvious the [’489 patent].” In re Sneed, 710 F.2d
1544, 1550 (Fed. Cir. 1983); see also In re Etter, 756 F.2d
852, 859 (Fed. Cir. 1985) (en banc) (“Etter’s assertions
that Azure cannot be incorporated in Ambrosio are basically
irrelevant, the criterion being not whether the
references could be physically combined but whether the
claimed inventions are rendered obvious by the teachings
of the prior art as a whole.”).

“The test for obviousness is
not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary
reference,” In re Keller, 642 F.2d 413, 425 (CCPA
1981). See also In re Mouttet, 686 F.3d 1322, 1332 (Fed.
Cir. 2012) (citing In re Keller, 642 F.2d at 425), but rather
whether “a skilled artisan would have been motivated to
combine the teachings of the prior art references to
achieve the claimed invention,” Pfizer, Inc. v. Apotex, Inc.,
480 F.3d 1348, 1361 (Fed. Cir. 2007).

The CAFC also rejected Allied's "teaching away" argument:

Caterpillar does not expressly teach away from Ogawa.
“A reference may be said to teach away when a
person of ordinary skill, upon reading the reference,
would be discouraged from following the path set out in
the reference, or would be led in a direction divergent
from the path that was taken by the applicant.” In re
Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994).


There is no teaching
away from the combination of Caterpillar and Ogawa
because the combination does not utilize the pivot pin
attachment mechanism of Ogawa. There is no teaching
away in Caterpillar from using the Ogawa feature of two
movable jaws.


Monday, June 13, 2016

Supreme Court ruling favors punitives for patentees

The Supreme Court favored patentees Stryker and Halo Electronics in June 13's decision on punitive damages in patent cases. The Supreme Court found that the standard of the CAFC was too rigid and that trial judges should have more leeway.


In one, medical-device maker Stryker Corp. convinced a jury that subsidiaries of rival Zimmer Biomet Holdings Inc. willfully infringed its patents on hand-held devices used to clean wounds. Jurors awarded Stryker $70 million for lost profits. The presiding judge, citing testimony that Zimmer deliberately copied Stryker’s devices, then tripled the damages award.

Stryker lost the enhanced award at the U.S. Court of Appeals for the Federal Circuit, which ruled Zimmer shouldn’t have to pay the extra money because its legal defenses, while unsuccessful, weren’t unreasonable or entirely baseless.

The Supreme Court said that ruling was incorrect.

In a second case, Halo Electronics Inc., which makes components used in computers and other devices, obtained $1.5 million in infringement damages from Pulse Electronics Corp., but failed to persuade the Federal Circuit that enhanced damages were merited.


Sunday, June 12, 2016

Plagiarism issue plagues Pittsburgh

There is a controversy, in part about plagiarism, surrounding the proposed appointment of Anthony Hamlet as Pittsburgh schools superintendent.

The Tribune notes:

Hamlet, a former Palm Beach administrator, is set to replace outgoing Superintendent Linda Lane on July 1. The district has been paying Hamlet $808 per day since June 1 as he participates in “transition activities,” in accordance with an agreement with the school district.

“This is obviously fluid; we'll deal with issues as they arise,” said district Solicitor Ira Weiss, who called the emergency, closed-door meeting — which included all nine board members, the district's special counsel and district spokeswoman Ebony Pugh.


questions have arisen about a sentence describing his “educational philosophy” that appears to have been taken verbatim from a 2015 Washington Post article without attribution.


An act of plagiarism could be considered an act of immorality — though it's a somewhat gray area of the education code that could be open to interpretation and hinges on facts specific to each case, said Richard Stewart, a Cumberland County attorney and past president of the Pennsylvania School Solicitors' Association.


A different Tribune post addressed issues with Hamlet's resume:

“To be honest, as this world goes, is to be one man picked out of 10,000.” — Shakespeare, “Hamlet.”

Hamlet's resume clearly reveals on which side of that equation he falls. The former Florida educator stated he raised two schools' state grades from “F” to “C”; boosted one high school's graduation rate by 13 percentage points; and had direct supervision of 20 schools in his final job with the school district. The Palm Beach Post reported those claims appeared to be embellishments or exaggerations.

Hamlet on Monday vehemently denied embellishing his resume. “You will see fully there are no discrepancies whatsoever,” he told reporters.

“The (person) doth protest too much, methinks.” — Shakespeare, “Hamlet.”

On Tuesday, he acknowledged one of the schools whose state grades he reportedly raised did not have an “F.” But he insisted the other school grade went from F to “C,” information that differs from Florida state records.

That's a discrepancy.


CBS Sunday Morning on June 12, 2016 devoted to the Tonys

The cover story titled Remembering the Titanic of Shark Attacks has a New Jersey theme, relating to shark attacks that happened near Matawan 100 years ago.
One might suspect that shark attacks on survivors of the sinking of the Indianapolis might rate higher than those in New Jersey;
as pointed out on wikipedia: a 2007 episode of the Discovery Channel TV documentary series Shark Week, states that the Indianapolis sinking resulted in the most shark attacks on humans in history. And, there is another theme in the Indianapolis sinking related to the Titanic:

The Indianapolis sent distress calls before sinking. Three stations received the signals; however, none acted upon the call. One commander was drunk, another had ordered his men not to disturb him and a third thought it was a Japanese trap. For a long time the Navy denied that a distress call had been sent. The receipt of the call came to light only after the release of declassified records.


Almanac. On June 12, 1967, the United States Supreme Court unanimously struck down state laws banning interracial marriage in
Loving v. Virginia.

James Corden does carpool karaoke for Broadway stars.

Moment of Nature. Yellowstone National Park.

Friday, June 10, 2016

Judge Newman discusses the AIA in the SAS INSTITUTE, INC. case

Of the CAFC decision:

SAS Institute, Inc. filed an inter partes review (“IPR”)
petition with the Patent Trial and Appeal Board (“Board”)
to review the patentability of ComplementSoft’s U.S.
Patent No. 7,110,936. The Board instituted an IPR
proceeding on some, but not all, of the ’936 patent claims
challenged in SAS’s petition. The Board ultimately found
all of the instituted claims, except for claim 4, unpatentable
in view of the prior art. SAS argues on appeal that
the Board misconstrued a claim term and that the Board
erred by not addressing in the final written decision
claims SAS petitioned against, but that the Board did not
institute as part of the proceeding. ComplementSoft
cross-appeals two of the Board’s claim constructions. For
the reasons below, we agree with the Board on all of the
challenged constructions and determine that the Board
did not need to address in its final written decision claims
it did not institute. We also vacate the Board’s determination
that claim 4 is patentable and remand so that the
parties may address a new construction that the Board
adopted in its final written decision after interpreting the
claim differently before.

Judge Newman writing separately:

I write separately because the PTAB’s practice of deciding
the validity of only some of the patent claims
challenged in the petition does not conform to the America
Invents Act. I stated these concerns in Synopsys, Inc., v.
Mentor Graphics Corp., 814 F.3d 1309, 1324, 117
U.S.P.Q.2d 1753, 1765 (Fed. Cir. 2016) (Newman, J.,
dissenting). The facts and rulings in the present case
further illuminate the error in the PTO’s adoption of rules
that depart from the legislative plan. The exclusion of
some of the challenged claims from the statutory procedures
and estoppels of the AIA, accomplished by accepting
some of the claims for which review is sought while ignoring
others, in the PTO’s absolute discretion, serves no
purpose other than to negate the intended legislative
purpose of the AIA.
The PTO practice replaces the benefits of the America
Invents Act with new disadvantages, for, after the extensive
(and expensive) proceedings of inter partes review,
the parties are left with unaddressed claims to the same
patented invention, claims that can be litigated as if no
post-grant proceeding had occurred. This departure from
the legislative purpose is illustrated in this case more
strongly than in Synopsys, for here the PTAB issued a
split final decision, invalidating eight petitioned claims
while validating one of the petitioned claims, simultaneously
ignoring seven other petitioned claims that were
properly presented for review. The split decision, following
a partial institution, adds to the uncertainty of the
claims that the PTAB chose not to review. The legislative
plan contains no hint of such intentional irregularity


These universally emphasized AIA purposes fall flat
when the PTO chooses to review some but not all of the
challenged claims in the petition, leaving the other claims
presumably alive and well. The legislation does not
contemplate such a procedure. The legislation provides
only for a PTO proceeding that subjects “any patent
claim challenged by the petitioner and any new claim
added” during the proceeding to be fully and finally
decided through the PTO proceeding and its subsequent
appeal, bringing “more certainty in litigation.” 157 Cong.
Rec. S948 (Feb. 28, 2011) (statement of Sen. Leahy on
Senate consideration of S. 23) (emphasis added).
This finality is achieved by the estoppel provisions as
applied to the decision on every claim challenged by the
petitioner as to every issue raised or that could have been
raised. America Invents Act: Hearing on H.R. 1249 Before
the House Comm. on the Judiciary, 112th Cong. 12 (2011)
(statement of David Kappos, Director, USPTO) (“Those
estoppel provisions mean that your patent is largely
unchallengeable by the same party.”). However, when
review is declined as to some claims that may be of litigation
interest, the partial institution practice cannot be a
“complete[] substitute for . . . [a] portion of civil litigation.”
This contravenes a primary purpose of the AIA.
During oral argument of this appeal, the court questioned
PTO counsel on the relationship between the
conduct of reexamination proceedings, the conduct of inter
partes review proceedings, and the legislative purpose of
the AIA’s post-grant procedures. Oral Argument at

The Yankees and "first base"

The 2016 Yankees have a problem at first base. As noted:

Yikes. That makes four legitimate first baseman the Yankees have lost this season, a string of injuries perhaps unlike anything else in the big league for one position.

"You don't see this," Girardi said Thursday (9 June 2016). "People ask about depth—you're usually not four deep, five deep at first base. You might have kids in A-ball, as you go down, but it's hard, but we gotta find a way to overcome it."

Flash back to the Yankees of 1925. The Yankees entered play on June 2, 1925 with a 15–26 win-loss record, good for seventh (of eight) in the American League. Lou Gehrig replaced Wally Pipp. The Yankees went on to finish seventh in the American League.

Wally Pipp is remembered as the guy who preceded Lou Gehrig, who missed one game, and never started at first base for the Yankees again. In fact, Pipp was the first Yankee to lead the American League in home runs (did it twice in fact; 1916, 1917).

And as to a trademark issue, Pipp was a member of what was FIRST called "murderers' row," which preceded the one of the 1927 Yankees.

As noted on wikipedia:

The term was originally coined in 1918 by a sportswriter to describe the pre-Babe Ruth Yankee lineup of 1918. A 1918 newspaper article described it: "New York fans have come to know a section of the Yankees' batting order as 'murderers' row.' It is composed of the first six players in the batting order—Gilhooley, Peckinpaugh, Baker, Pratt, Pipp, and Bodie. This sextet has been hammering the offerings of all comers."


Tuesday, June 07, 2016

EPO blocks access to IPKat blog!

See the post at the Register:

Is the CAFC decision in RUCKUS WIRELESS a gamechanger?

Tony Dutra in the post THE PATENT SPECIFICATION IS THE NAME OF THE GAME NOW argues for a change in focus in "what is important" in the patent application based on the CAFC decision in RUCKUS WIRELESS.

HOWEVER, it is worth reading the dissent of Leonard P. Stark, Chief District Judge, United States District Court for the District of Delaware.

The matter of absence of written description arises in the majority opinion:

The canons of claim construction provide additional
reason to limit the scope of the claims to wired communication.
If, after applying all other available tools of claim
construction, a claim is ambiguous, it should be construed
to preserve its validity. Phillips, 415 F.3d at 1327. Because
the specification makes no mention of wireless
communications, construing the instant claims to encompass
that subject matter would likely render the claims
invalid for lack of written description. See Gentry Gallery,
Inc. v. Berkline Corp., 134 F.3d 1473, 1480 (Fed. Cir.
1998) (holding that a claim “may be no broader than the
supporting disclosure”). The canon favoring constructions
that preserve claim validity therefore counsels against
construing “communications path” to include wireless

But that issue would go away if --“communications
path” -- was found to include wireless communications.

As Judge Stark pointed out, this interpretation was accepted at
one point in the case.

As to "disclaiming" an embodiment, this is generally thought
to require an explicit repudiation, rather than an implicit
surrender through absence of examples (of wireless)

Conmil v. Cisco does not change NuVasive result

This case returns to this court on vacatur and remand
from the Supreme Court, “for further consideration in
light of Commil USA, LLC v. Cisco Systems, Inc., [135 S.
Ct. 1920 (2015)].” Medtronic Sofamor Danek USA, Inc. v.
NuVasive, Inc., 136 S. Ct. 893 (2016) (Mem.). On remand,
we reaffirm the district court’s judgment with respect to
U.S. Patent No. 7,470,236 (“the ’236 patent”) and reinstate
our earlier judgment in other respects.


The ’236 patent is directed to a method for detecting
the presence of and measuring distance to a nerve during
surgery. Warsaw, 778 F.3d at 1372. The patented method
requires sending a series of electrical pulses that
gradually increase in strength until a pulse reaches
sufficient strength to elicit a nerve response. Id. Proximity
to the nearest nerve is proportional to the strength of
the pulse that elicited the response.

The issue before the CAFC

There is no dispute that the jury was correctly instructed
as to the standard for induced infringement
under Global-Tech (and Commil). The jury was instructed
that it was NuVasive’s burden to prove that “the
alleged infringer knew or was willfully blind to the fact
that the induced acts constituted patent infringement of
at least one patent claim,” in addition to the other elements
of induced infringement. J.A. 213. MSD does not
dispute that the jury was correctly instructed as to the
relevant claim limitations of the ’236 patent and as to
NuVasive’s burden to prove infringement by a preponderance
of the evidence.

Thus, the question before us now is a limited one:
whether the jury was presented with substantial evidence
that MSD knew (or was willfully blind to the fact) that it
was instructing doctors to infringe the ’236 patent. MSD
acknowledges that its “challenge is to the sufficiency of the
evidence that it indirectly infringed.” Appellants’ Supp.
Br. at 14. In the earlier appeal we did not address that
question explicitly, stating only that “[t]here was evidence
that MSD was aware of the patent prior to the litigation
and that MSD specifically taught doctors to use the
product during the surgical procedures in an infringing
manner.” Warsaw, 778 F.3d at 1373. We now address the

MSD loses

MSD argues that no reasonable jury could have inferred
from the evidence before it that MSD had
knowledge of (or was willfully blind to) its customers’
infringement of the ’236 patent. However, here we conclude
that there was substantial evidence that MSD’s
infringement position was objectively unreasonable and
that the jury, based on this evidence, could reasonably
have concluded that MSD had knowledge (or was willfully
blind to the fact) that it was infringing.

Footnote 2 of the majority opinion:

The concurrence expresses concern that the majority
opinion could be read to suggest “that any time a
defendant’s products are found to directly infringe, the
plaintiff has sufficiently established the defendant’s
intent to induce infringement.” Concurrence at 4. To be
clear, we do not suggest that inducement liability is that
broad. To show the intent to induce infringement, it is
sufficient that the plaintiff establish that a defendant’s
asserted belief in non-infringement was unreasonable.

The last words of Judge Reyna's concurrence:

In Global-Tech, the Supreme Court cited evidence that
the accused infringer had intentionally withheld key
information from its patent attorney when seeking a
right-to-use opinion. Global-Tech Appliances, Inc. v. SEB
S.A., 563 U.S. 754, 131 S. Ct. 2060, 2071 (2011). In
Global-Tech, the evidence demonstrated the defendant’s
willful blindness. The opinion here cites no similar evidence.
The opinion’s analysis suggests that any time a
defendant’s products are found to directly infringe, the
plaintiff has sufficiently established the defendant’s
intent to induce infringement. This proposition conflicts
with Global-Tech, Commil, and our caselaw.


Facebook wins at the CAFC in the Indacon case

The outcome

Following the district court’s claim construction order,
Indacon, Inc. and Facebook, Inc. stipulated to noninfringement,
and the district court entered final judgment
in favor of Facebook. Indacon appeals, disputing the
district court’s construction of several claim terms. Because
the district court correctly construed the claim
terms “alias,” “custom link,” “custom linking relationship,”
and “link term,” we affirm.

As to the term "alias"-->

Several of the claims require a link to be established
between an “alias” or “alias term” and a plurality of files.
The district court construed the claim term “alias” as a
“textual expression that the user can define to serve as an
alternative name or label.” Indacon, Inc. v. Facebook, Inc.
(Claim Constr. Order), No. 5:10-cv-966-OLG,
Dkt. No. 111, at 22 (W.D. Tex. Sept. 6, 2013) (emphasis
added). Indacon acknowledges that “alias” and “alias
term” are used interchangeably in the ’276 patent. Indacon
argues that this term encompasses a “textual or
graphical hyperlink,” and not just “textual expression.”
Appellant Br. 19. Thus, Indacon essentially raises two
disputes with the district court’s construction: (1) whether
“alias” encompasses graphical expression as well as
textual expression, and (2) whether an “alias” is a hyperlink.
We agree with the district court that “alias” and “alias
term” are limited to textual expression. The district court
first construed “term” as “textual expression, such as
words,” finding an express definition of “term” in the
specification as “words, numbers, spaces, etc.” Claim
Constr. Order at 17–18 (citing ’276 patent col. 12 l. 55).

If a term has no "art accepted" meaning-->

Facebook argues that the link claim terms have no
accepted meaning in the art. We agree with Facebook
that these terms have no plain or established meaning to
one of ordinary skill in the art. As such, they ordinarily
cannot be construed broader than the disclosure in the
specification. Irdeto Access, Inc. v. Echostar Satellite
Corp., 383 F.3d 1295, 1300 (Fed. Cir. 2004) (“[A]bsent
such an accepted meaning [in the art], we construe a
claim term only as broadly as provided for by the patent
itself.”). The specification explains that “[t]he link module
enables association of any selected link term with any of
the plurality of files in the selectable database.” ’276
patent col. 5 ll. 62–64 (emphasis added).

Of claim differentiation:

In contrast, Indacon points to
claims 14 and 15, which both recite “automatically generating
links between all instances of the link term within
the plurality of selected source files and the designated
file.” Id. col. 38 ll. 65–67, col. 40 ll. 1–3 (emphasis added).
Importantly, however, all of claims 2, 9, 14, and 15 are
independent claims, and we have declined to apply the
doctrine of claim differentiation where, as here, the claims
are not otherwise identical in scope. See World Class
Tech. Corp. v. Ormco Corp., 769 F.3d 1120, 1125–26
(Fed. Cir. 2014); Andersen Corp. v. Fiber Composites,
LLC, 474 F.3d 1361, 1370 (Fed. Cir. 2007). Further,
“[a]lthough claim differentiation is a useful analytic tool,
it cannot enlarge the meaning of a claim beyond that
which is supported by the patent documents, or relieve
any claim of limitations imposed by the prosecution
history.” Fenner, 778 F.3d at 1327.


Is the journal SCIENCE correct on the employment of scientists?

The May 20, 2016 issue of the journal Science has a story entitled " 'Employment Crisis' for New Ph.D.s is an illusion".
Within the story, author Jeffrey Mervis mentions the NSF's "survey of doctorate recipients." Although Mervis refers to this as a survey of "all" Ph.D. recipients in the United States, the NSF notes: The survey follows a sample of individuals with SEH doctorates throughout their careers from the year of their degree award until age 76. The NSF also notes: Approximate population size: 840,000; Approximate sample size: 47,000. [link: ]

In a fixed-sample panel design, data are collected from the same set of individuals in each analysis year, with the sampled individuals here comprising about 5.6% of all Ph.D. recipients.

Mervis reported a sampling of 120,000.

Mervis points to a distinction between the federal government definition of unemployed (no job and looking) vs. the NSF/SED (merely no job). HOWEVER, Mervis does not point out that ANY paying job makes one "not unemployed" by federal standards.
This would include the spectrum from mowing grass through post-doc positions (the latter unmentioned in the Mervis article).

Of the postdoc matter, from galacticinteractions:

In my very early years of graduate school (1990-1992 or thereabouts), there was a statistical continuum of letters to the editor to Physics Today talking about the sea of physics post-docs out there: PhDs who could get a temporary post-doc position, or two, or three, but who couldn't find permanent positions. The astronomy journal club (I believe it was) at Caltech dedicated one of their meetings to talking about this issue. And, the professors there all gave lip service to "training students so that they can go into other careers." But I could practically hear each and every professor there thinking "but not my students— they will be the ones who get the coveted academic positions." (Some may even have been generous enough to think "Caltech" students.)

From an IPBiz post -- Unemployment and technology --:

There's another reason why the official [unemployment] rate is misleading. Say you're an out-of-work engineer or healthcare worker or construction worker or retail manager: If you perform a minimum of one hour of work in a week and are paid at least $20 -- maybe someone pays you to mow their lawn -- you're not officially counted as unemployed in the much-reported 5.6%. Few Americans know this.

Yet another figure of importance that doesn't get much press: those working part time but wanting full-time work. If you have a degree in chemistry or math and are working 10 hours part time because it is all you can find -- in other words, you are severely underemployed -- the government doesn't count you in the 5.6%. Few Americans know this.

A post at OECD highlights a different problem:

But these overall figures do not show where particular types of scientist are working. In fact, the NSF found that some 4.2% of science and engineering PhDs were working outside their field of training, chiefly for financial reasons, a change in professional interests or lack of opportunities in their field.

In other words, while few scientists are out of work, a significant proportion of them are not finding jobs in occupations that are closely related to their studies. This would weaken the claim of a widespread shortage of science and engineering graduates, but may signal another problem: “mismatches” between what the market (industry or academia) needs and is willing to pay in terms of research, and the skill sets, interests and salary aspirations that graduates have.


And Mervis did not mention the words of Alan Hale:

the words of Alan Hale (of Hale-Bopp) from the year 1997:

I am Alan Hale, the co-discoverer of Comet Hale-Bopp which, as I'm sure you're aware, is getting a tremendous amount of media attention at this time. Like I'm sure is true for many of you, I was inspired by the scientific discoveries and events taking place during my childhood to pursue a career in science only to find, after completing the rigors of undergraduate and graduate school, that the opportunities for us to have a career in science are limited at best and are which I usually describe as "abysmal." Based upon my own experiences, and those of you with whom I have discussed this issue, my personal feeling is that, unless there are some pretty drastic changes in the way that our society approaches science and treats those of us who have devoted our lives to making some of our own contributions, there is no way that I can, with a clear conscience, encourage present-day students to pursue a career in science. It really pains me a great deal to say something like that, but I feel so strongly about this that I have publicly made this statement at almost every opportunity I have been given.

I am trying to use the media attention that is currently being focused upon me to raise awareness of this state of affairs, and perhaps start to effect those changes that will allow me to convey a more positive message to the next generation. So far, I'm sensing a certain reluctance among the media to discuss this issue, as they seem far more interested in items which I consider to be irrelevant and unimportant. But I intend to keep hammering away at this, and I'd like to believe that eventually some are going to sit up and take notice. I am also attempting to schedule meetings with some of our government leaders, to see if I can at least get some acknowledgement from Washington that this is a problem that needs to be dealt with.

See previous IPBiz post:


And recall the recent issue with reduced labor force participation

which is relevant to an earlier IPBiz post:

Saturday, June 04, 2016

But I saw it on Deep Space Nine, or Donald Duck already did it

A post on ArsTechnica begins:

Have you ever read a patent and thought, "I feel like I've seen that in a Star Trek episode?"

Well, this month the Electronic Frontier Foundation's patent sharpshooters have found a patent that quite literally had all of its key claim elements described by Star Trek—specifically, a 1998 episode of Deep Space Nine.

Earlier this week, EFF lawyer Vera Ranieri described the latest "Stupid Patent of the Month." US Patent No. 6,612,985 is a "method and system for monitoring and treating a patient" and is owned by My Health Inc. That company appears to be a non-practicing entity, and it has filed at least 30 lawsuits in the Eastern District of Texas, a well-known patent troll haven.


Merely fyi, from a 2009 post on IPBiz:

Innovation and invention, again

**Of a different "prior art" story, recall Donald Duck and carbene:

In 1963, in an article about Methylene published by Californian Institute, the Carbene element is explained in detail, with a note “Among experiments which have not, to our knowledge, been carried out as yet is one of a most intriguing nature suggested in the literature” referencing the Donald Duck comic. One year later , in another article, Carbene is explained a bit more in detail by a scientist named Greenwald. He refers to Donald Duck also

“ Let me say that carbenes can be made but not isolated; i.e. they cannot be put into a jar and kept on a shelf. They can, however, be made to react with other substances. Donald was using carbene in just such a manner, many years before 'real chemists' thought to do so.”

See also

Friday, June 03, 2016

Talking on sunshine: Alexander Bell transmits voice via light modulation on June 3, 1880

What did Alexander Graham Bell think his greatest invention to be? If you believed him to say the telephone, you would be wrong. Bell considered the photophone his greatest invention.

On June 3, 1880 (four years after he patented the telephone and four years after Custer's "Last Stand"), a wireless voice message was transmitted via light modulation about 700 feet.

On Aug 28, 1880, Bell filed his patent application for what would become US Patent 235199. On August 30, 1880, the New York Times ridiculed the utility of the photophone.


About 100 years later US Patent 4002897 (assigned to Bell Labs) noted the following:

Almost 100 years ago, Alexander Graham Bell invented a completely optical communication system including apparatus which he named "photophone". The system was fairly simple, utilizing a transmitter for converting human voice signal waves into correspondingly power-modulated optical signals. These optical signals were detected by a (remote) receiver for converting the optical signals into audible acoustic signals which were a faithful representation of the original human voice signals. Several of the patents issued on this system include U.S. Pat. No. 235,199, (Dec. 7, 1880) to A. G. Bell; U.S. Pat. No. 235,496 (Dec. 14, 1880) to A. G. Bell and S. Tainter, and U.S. Pat. No. 241,909, (May 24, 1881) to A. G. Bell and S. Tainter. In addition, a paper on this subject was published by A. G. Bell in Philosophical Magazine, Vol. 11 (Series 5), pp. 510-528 (1881), entitled "Upon the Production of Sound by Radiant Energy." Such an optical communication system relied upon a rather intense source of light, which then could be provided only by sunlight, a relatively unreliable source, and upon transmission of the light through the air, a relatively unreliable transmission path. With the advent in recent years of intense optical laser sources and of optical fibers, the possibility of a reliable optical communication system is thus more realistic. Such a system includes at one end a transmitter feeding an optical fiber. The optical fiber would ordinarily bring the optical signal to a repeater which then feeds an amplified optical signal to another optical fiber, ultimately bringing the optical signal to an opto-acoustic receiver. The receiver then converts the optical signal into an audible acoustic signal for delivery to a receiving human ear.

Trademark issues with The Avengers

IPBiz notes that IPKat has raised the marking issue as between the 1960s tv show "The Avengers" and the use of the Avengers name in the “Marvel Cinematic Universe (MCU) films”:

What is interesting is that, in the exchange regarding the title, The Avengers, for entertainment services, there clearly had been an instance of actual confusion between my colleague and me about what entertainment program was being discussed. This Kat tried to find any instance where the production company of the television series ever sought to challenge Marvel Comics (or later, Disney, which bought Marvel Entertainment in 2009 with the intention of turning the comic series and related entertainment outlets into a movie franchise), or vice versa, but he could not. It seems that each was content to allow the other to make use of the same name, even in the face of actual confusion.

At one level, this apparent “live, and let live” situation may simply reflect the position that ultimately, whether or not to enforce one’s rights about confusion is a commercial matter for the parties concerned. “The Avengers” of the 1960’s has little commercial significance today and it is prized mainly for its cult and nostalgia value. As such, the confusion evinced by this Kat’s colleague has nothing to do about the commercial source of the two entertainment series; the 1960’s television series is simply irrelevant. For this Kat, his intention was clearly the 1960’s television series; in discussing The Avengers and Emma Peel, the 2012 movie never came to mind. As such, it would appear that the confusion was in communication rather than in the source of the respective entertainment series.


In the U.S., the primary issue is whether the similarity of the marks is likely to confuse customers about the source of the products. The customer does not need to know the name of the source (e.g., how many buyers of Entenmann's know the ultimate source is Bimbo Bakeries?), simply that there is a particular source.

With the Avengers issue, one has to identify the relevant customer body. Is it people who watch 1960s tv shows or more contemporary movies? Not likely much overlap there. And would any customer think the movies were made by the producers of the tv show?

As a general proposition, the revival of an old mark, years later, in a slightly different area is an interesting question.

In passing, cozi-tv is currently showing the Avengers tv show on broadcast television.

Wednesday, June 01, 2016

Google et al. lose claim construction issue in HBAC case at CAFC

The outcome was adverse to Google, and the other defendants

HBAC Matchmaker Media, Inc. appeals from stipulated
final judgments of noninfringement entered by the
United States District Court for the District of Delaware
following claim construction of U.S. Patent No. 6,002,393
(the “ ’393 patent”). Because the district court erred in
construing the term “head end system,” we vacate the
stipulated judgments of noninfringement and remand for
further proceedings consistent with this opinion.

The CAFC noted that the district court judge Robinson had

In this case, the district court erred in construing the
term “head end system” to require a TV system that
“necessarily utilizes” a conventional television set or settop
box. First, the claims themselves nowhere indicate
that a “head end system” is limited to a TV system. To
the contrary, independent claims 55 and 56 specifically
add a TV limitation, reciting “a method for targeting TV
advertisements from a head end system.” ’393 patent
col. 19 ll. 29, 58. The district court’s construction thus
introduces avoidable redundancy into the language of the
claims. We have repeatedly emphasized that a “claim
construction that gives meaning to all the terms of the
claim is preferred over one that does not do so.” Merck &
Co. v. Teva Pharm. USA, Inc., 395 F.3d 1364, 1372
(Fed. Cir. 2005).

Extrinsic evidence is considered:

We thus look outside the specification of
the ’393 patent to discern the meaning of “head end
system” to a person of ordinary skill in the art at the time
of the invention. Contemporaneous technical dictionaries
demonstrate that, at the time of the invention, “head end”
was broadly understood as the origination point in a
communication system and was not limited to a conventional
TV or cable system. For example, a 1995 technical
dictionary defines “head end” as “[t]he originating point in
a communications system.” J.A. 923, The Computer
Glossary 177 (7th ed. 1995). It describes that in cable TV,
“the head end is where the cable company has its satellite
dish and TV antenna for receiving incoming programming.”
Id. It further states, though, that in the context of
“online services, the head end is the service company’s
computer system and databases.” Id. Another 1995
technical dictionary describes “headend” as a term that is
“becoming a general purpose term for describing source
nodes in the architecture of the information superhighway
that are responsible for storing and serving up the various
elements of content that users of the highway want.”
J.A. 928, Multimedia Technology from A to Z 77 (1995).
The dictionary continues, stating that “[a]s the superhighway
takes greater shape, headends will provide mass
storage of multimedia content . . . .” Id. Other contemporaneous
dictionaries demonstrate that a cable head end is
just one example of a head end system. See, e.g., J.A. 941,
Novell’s Complete Encyclopedia of Networking 437 (1995)
(“Head end: In a broadband network, the starting point
for transmissions to end users.

In THIS case, the CAFC found NO disavowal:

Appellees argue that the specification focuses on conventional
TV delivery systems, and therefore, the term
“head end system” should be so limited. While the specification
discloses and the figures depict a preferred embodiment
in which the invention is used in a conventional
TV system, the specification does not disclaim or disavow
the use of a “head end system” with the internet as a
video-content delivery system. In this respect, the specification
does no more than describe preferred embodiments,
and we have repeatedly “cautioned against limiting the
claimed invention to preferred embodiments or specific
examples in the specification.” Williamson v. Citrix
Online, LLC, 792 F.3d 1339, 1346–47 (Fed. Cir. 2015)
(quoting Teleflex, 299 F.3d at 1328). As such, the specification
should not be used to limit the term “head end
system.” The district court thus erred in restricting the
construction of “head end system” to a conventional TV

Appeals from the United States District Court for the
District of Delaware in Nos. 1:13-cv-00428-SLR-SRF,
1:13-cv-00429-SLR-SRF, 1:13-cv-00430-SLR-SRF, 1:13-cv-
00433-SLR-SRF, 1:13-cv-00436-SLR-SRF, 1:13-cv-00437-
SLR-SRF, 1:13-cv-00438-SLR-SRF, 1:13-cv-00962-SLRSRF,
Judge Sue L. Robinson.

**Separately on 1 June 2016:

Doran, TIME get the Wright/Curtiss story wrong

Peter Doran wrote in TIME:

Since the Wright brothers were the pioneers of a new technology, they claimed that U.S. patent law gave them a sweeping monopoly over every possible design for airplanes, even ones they had not invented. The brothers did not care that Curtiss had actually built a better aircraft, or that his innovation for controlled flight was superior to their outmoded technology; because they were first, Curtiss had to cough up royalties for the privilege of flying.

Curtiss was hell-bent on fighting that absurd claim. What was the use of improving technology if someone else—in this case, the Wright brothers—got to profit from his own hard-won inventions? Today this same fight is being waged across the computer and software industries. In 1910 the battleground of intellectual property law was the sky.


Thanks to his prize money, the pioneering aviator prevailed in his legal fight against the Wright brothers. The original inventors of powered flight wasted too much of their energy on litigation instead of further innovation. Hard-charging inventors like Curtiss were poised to leave them far behind. And for one spectacular moment, he owned the skies.

[Excerpt from Breaking Rockefeller: The Incredible Story of the Ambitious Rivals Who Toppled an Oil Industry by Peter B. Doran, published on May 24, 2016 by Viking; if you are wondering, the Wrights appear in Chapter 18.]


As to Doran's text --The original inventors of powered flight --, the Wright's patent (and invention) was about three-dimensional control of flight, not about "powered flight." The embodiment of Curtiss (with ailerons) was deemed an equivalent of the Wright's invention of three-dimensional control, embodied with wing warping.

As to Doran's text -- the pioneering aviator prevailed in his legal fight against the Wright brothers -- , note the entry on Wikipedia -- In January 1914, a U.S. Circuit Court of Appeals upheld the verdict in favor of the Wrights against the Curtiss company, which continued to avoid penalties through legal tactics. --. The litigation died after Orville Wright sold his interests and the patent pool was created, but it cannot be said Curtiss prevailed.


Is anybody fact-checking at TIME?

For further detail, see

And, as to previous disinformation in TIME about the Wright Brothers:

As to "who" was more dedicated to aviation:

As to the matter of damages, in the face of World War I, Franklin Roosevelt (then in the Navy Department, which was a separate Cabinet branch at the time) arranged a "patent pool" so the "big guys" in the aviation business shared the spoils; the $10,000 buy-in blocked the "little guys." The on-going patent litigations were placed in abeyance, and were not re-initiated after World War I. Orville did not leave the aviation business. He did have interest in preserving the Wright legacy, which involved some fractious dealing with the Smithsonian, which had helped Curtiss in the patent dispute. Glenn Curtiss was selling real estate in Florida by 1920, and was not innovating in aviation.


Everyready loses appeal to CAFC of inter partes re-exam 95/001,683 (CAFC docket 015-1824)

The outcome of the CAFC case was unfavorable to Eveready.

The technology

The ’360 patent is directed to a lithium/iron disulfide
(“Li/FeS2”) electrochemical cell or battery. Li/FeS2 cells
were well known when the application for the ’360 patent
was filed on June 5, 2002.1 The claimed invention of the
’360 patent is focused on improving the design of such
cells. Specifically, the patent describes the need for a
Li/FeS2 cell “with an increased energy density and discharge
efficiency that accommodates the volume increase
of the reaction products generated during discharge.” ’360
patent, col. 2, ll. 7-9.

The one independent claim:

Claim 1 of the ’360 patent, the only independent
claim, reads as follows:

An electrochemical cell comprising
a cathode assembly, said cathode assembly comprising
a metallic cathode current collector having
two major surfaces and a cathode coating disposed
on at least one of said two major surfaces, said
coating comprising iron disulfide,
said cell further comprising a metallic lithium anode
alloyed with aluminum,
wherein the anode to cathode input ratio is less
than or equal to 1.0.

The issue:

We focus on whether claim 1 would have been obvious
in light of Gan, the European Patent Application. Gan is
directed to the control of swelling in electrochemical cells
that use alkali metals, such as lithium.

A procedural point appears in footnote 2:

A footnote
allusion to combinations of references, without more, does
not present a cognizable argument on appeal, see Kennametal,
Inc. v. Ingersoll Cutting Tool Co., 780 F.3d 1376,
1383 (Fed. Cir. 2015), nor may a party raise in this court
rejections that it did not appeal to the Board, see In re
Watts, 354 F.3d 1362, 1367 (Fed. Cir. 2004). Accordingly,
with respect to the dependent claims that were rejected
based on combinations of prior art using Gan as the
primary reference, we treat Eveready’s argument as
confined to its challenge to the Board’s analysis of Gan.

The outcome is unfavorable to Everyready:

The Board’s findings are supported by substantial evidence.
The record contains ample evidence that Gan
discloses a jellyroll cell, that the A/C input ratio of a
jellyroll cell is closely correlated to the total A/C ratio in
the cell, that Gan teaches an A/C ratio less than or equal
to 1.0, and that the principles of Gan apply to a Li/FeS2
cell. In light of that evidence, we affirm the Board’s
finding that claim 1 of the ’360 patent would have been
obvious in view of Gan.