Friday, August 30, 2019

"Reasonable" rebels?

This post is a placeholder to discuss the article The reasonable rebels
authored by Eve Fairbanks , who wrote of her background:

My childhood home is just a half-hour drive from the Manassas battlefield in Virginia, and I grew up intensely fascinated by the Civil War.
I loved perusing soldiers’ diaries. During my senior year in college, I studied almost nothing but Abraham Lincoln’s speeches.
I wrote my thesis on a key Lincoln address, Civil War rhetoric was almost all I read: not just that of the 16th president but also that of his adversaries.

[Fairbanks is a 2001 high school graduate, who went on to Yale obtaining a degree in political philosophy]

Abraham Lincoln on "the invention of negroes"

Most patent attorneys are aware that Abraham Lincoln is the only U.S. President to obtain a
U.S. patent. Many know that the words "fire of genius" originated from a speech given by Lincoln, first in
1858 (April 6, 1858), and then in 1859. See "Fire of genius" speech and Google Books

Less well-appreciated are some other words that appear in the Fire of Genius speech:

Though not apposite to my present purpose, it is but justice to the fruitfulness of that period, to mention two other important events
-- the Lutheran Reformation in 1517, and, still earlier, the invention of negroes, or, of the present mode of using them, in 1434.

Prior to the "fire of genius" speech, Lincoln had done research for a speech to the Colonization Society in the year 1855, with notes therefrom including:

1434- A portaguse [sic] captain, on the coast of Guinea, seizes a few Affrican lads, and sells them in the South of Spain.

1501-2-3. Slaves are carried from Africa to the Spanish colonies in America.

1516-17 Charles 5th. of Spain gives encouragement to the African Slave trade.

1562- John Hawkins carries slaves to the British West Indies.

1620 A dut[c]h ship carries a cargo of African slaves to Virginia.

1626- Slaves introduced into New-York.

1630 to 41. Slaves introduced into Massachusetts.

link: Collected Works of Abraham Lincoln. Volume 2.

Lincoln was noting the 1434 "invention," on the basis that this was the first time humans had made slaves of others purely on racial grounds, unrelated to other factors,
such as conquests in war.

Separately, see also Fourth Debate: Charleston, Illinois, September 18, 1858

CAFC affirms DNJ in Combigan® case; Sandoz loses

The case is of interest because of the concurring opinion of CJ Prost:

Therefore, I would affirm the district court’s decision
for the reasons stated in the majority’s opinion, except that
I would start by explaining why the plain language of the
claim compels us to reject Sandoz’s position that the
“wherein” clauses here are mere statements of inherent or
intended results.

The issue in the case was whether or not two "wherein" clauses
expressed meaningful claim limitations. The majority opinion (by J. Wallach)

The District Court found the disputed “wherein”
clauses to constitute claim limitations. Allergan Sales,
2018 WL 3675235, at *7. Specifically, the District Court
“f[ound] that the ‘wherein’ clauses are limiting because
they are material to patentability and express the inventive
aspect of the claimed invention,” viz.,
“Combigan®’s ability to reduce daily administrations from
TID to BID without a loss of efficacy, and with reduced adverse events.”
Id. at *5–6. On appeal, Sandoz disputes the
District Court’s construction, arguing, inter alia, that:
(1) the “wherein” clauses “merely state the intended results
of administering Combigan[®] twice daily,” Appellant’s
Br. 36; see id. at 36–49; and (2) the recited results are not
“material to patentability,” id. at 50; see id. at 50–62. We
disagree with Sandoz.


Sandoz contends that these clauses
“merely state . . . intended results,” Appellant’s Br. 36, because they
reflect the results of administering the Example I formulation, viz., Combigan®,
as witnessed during
the Example II clinical study, see, e.g., id. at 36 (“The asserted method claims
have one and only one step: administration of the claimed composition. Everything else is
literally the results observed during clinical trials of
Combigan[®].”); see also Minton v. Nat’l Ass’n of Sec.
Dealers, Inc., 336 F.3d 1373, 1381 (Fed. Cir. 2003) (“A
whereby [or wherein] clause in a method claim is not given
weight when it simply expresses the intended result of a
process step positively recited.”); Bristol–Myers Squibb Co.
v. Ben Venue Labs., Inc., 246 F.3d 1368, 1376 (Fed. Cir.
2001) (explaining that claim language that “is only a statement of purpose and intended result” and that “does not
result in a manipulative difference in the steps of [a] claim”
is generally not limiting). We disagree. While we recognize
some overlap between the language of the “wherein”
clauses and those results, we must read the claims in view
of the “entire specification.” Sinorgchem Co., Shandong v.
Int’l Trade Comm’n, 511 F.3d 1132, 1145 (Fed. Cir. 2007)
(emphasis added); see Trs. of Columbia Univ. v. Symantec
Corp., 811 F.3d 1359, 1363 (Fed. Cir. 2016) (“[T]he specification is always highly relevant to the claim construction
analysis and is, in fact, the single best guide to the meaning
of a disputed term.” (internal quotation marks and citation

The majority noted that the "wherein" clauses were material in
securing allowance, and cited Southwall:

Consistent with this understanding, Allergan relied on
the efficacy and safety of the claimed methods during prosecution of the Patents-in-Suit
in responding to the examiner’s rejections. See Southwall Techs., Inc. v. Cardinal IG
Co., 54 F.3d 1570, 1579 (Fed. Cir. 1995) (“[A]rguments
made during prosecution regarding the meaning of a claim
term are relevant to the interpretation of that term in
every claim of the patent absent a clear indication to the

The only mention of "inherent" in the majority opinion appears in discussion of
the prosecution history

[Allergan] disagreeing with the Examiner “that
the reduction in side effects is inherently present in the
prior art combination”

The end of the concurring opinion states:

I offer one final point about the importance of the plain
language of the claim here. Sandoz’s arguments raise general concerns about the role of claim language in claim construction.
Sandoz attempts to label over half the claim language
in claim 1 as a mere “intended result.” By doing so, Sandoz
invites us to start from a place of uncertainty about
whether most of the text in the body of the claim is limiting.
Accepting that invitation threatens the broader notice
function of the patent claim. “It is a ‘bedrock principle’ of
patent law that ‘the claims of a patent define the invention
to which the patentee is entitled the right to exclude.’”
Phillips, 415 F.3d at 1312 (quoting Innova/Pure Water,
Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111,
1115 (Fed. Cir. 2004)). Indeed, “[b]oth the Supreme Court
and this court have adhered to the fundamental principle
that claims define the scope of patent protection . . . . The
claims thus give notice of the scope of patent protection.”
Johnson & Johnston Assocs. v. R.E. Serv. Co., 285 F.3d
1046, 1052 (Fed. Cir. 2002) (en banc).
As it is, claim construction can be difficult. For instance, litigants often encounter uncertainty over whether
a claim’s preamble is limiting or not. I see no reason to
inject further uncertainty into the notice provided by the
body of a claim. Given the specificity, clarity, and material
limits the “wherein” clauses add to the scope of claim 1 on
their face, Sandoz’s position deserves rigorous scrutiny
from the start. We should not begin with the presumption
that text in the body of the claim may be meaningless and
can only be saved by clear statements in the specification
or prosecution history.
Therefore, I would affirm the district court’s decision
for the reasons stated in the majority’s opinion, except that
I would start by explaining why the plain language of the
claim compels us to reject Sandoz’s position that the
“wherein” clauses here are mere statements of inherent or
intended results.

One notes that "intended results" and "inherent results" are two different things.

Wednesday, August 28, 2019

MALLINCKRODT case raises significant 101 questions

Judge Newman's dissent which began as follows raised significant issues with the way the CAFC treated the 101 issue in this case:

I concur in correction of the technical error, where the
district court included in its decision some claims that were
not there at issue. However, I respectfully dissent from the
majority’s rulings that the claims at issue are ineligible for
patenting under Section 101. The claims are for a method
of medical treatment—a class of subject matter whose eligibility under section 101 is established by precedent.

Judge Newman discussed past 101 cases [102 and 103 were not implicated in this case]:

Heretofore, Federal Circuit precedent has been reasonably consistent in holding that
methods of medical treatment are eligible for patenting. See Athena Diagnostics,
Inc. v. Mayo Collaborative Servs., LLC, 927 F.3d 1333,
1367–68 (Fed. Cir. 2019) (Newman, J., dissenting from denial of rehearing en banc)
(collecting cases on eligible methods of treatment and ineligible methods of diagnosis).
The subject matter herein routinely complies with section 101;
the court mis-steps in holding that “[t]he natural phenomenon here is undisputed,” whereby the method of treatment
is also deemed to be a natural phenomenon. Maj. Op. at 9.


The majority’s argument that a method of treatment of
an affliction affecting human physiology is ineligible under
section 101 contravenes precedent. See, e.g., Rapid Litig.
Mgmt. Ltd. v. CellzDirect, Inc., 827 F.3d 1042, 1048–49
(Fed. Cir. 2016) (method of treating disease “to achieve ‘a
new and useful end,’ is precisely the type of claim that is
eligible for patenting” (quoting Alice Corp. Pty. Ltd. v. CLS
Bank Int’l, 573 U.S. 208, 217 (2014))). My colleagues
acknowledge that the claims include “[a] treatment step of
administering,” Maj. Op. at 11, but state that this step is
“not the focus of the claimed invention,” id., and that “[t]he
claimed invention is focused on screening for a natural
law,” id. at 14–15. However, patent eligibility is determined not for isolated steps, but for the claimed invention
as a whole. Eligibility does not depend on whether some of
the claim steps were known. The Court reiterated in Diamond v. Diehr, 450 U.S. 175 (1981):

ND Illinois reversed by CAFC

The outcome

Because we conclude that claims 1, 5, and 15 of CGI’s
U.S. Patent No. 7,224,275 (’275 patent) are directed to an
abstract idea and therefore patent-ineligible, we reverse
the district court’s JMOL decision with respect to the ’275
patent on 35 U.S.C. § 101 grounds. We affirm the jury’s
verdict with respect to its finding of no anticipation of
claims 14, 17, and 18 of CGI’s U.S. Patent No. 7,635,966
(’966 patent) by U.S. Patent No. 6,484,784 (Weik). Accordingly, we vacate the district court’s injunction and its
awards of enhanced damages and attorney fees, and remand to the district court for reconsideration of enhanced
damages and attorney fees with respect to only the ’966 patent.

Arthrex loses at CAFC

Of note:

Arthrex first contends that the Board impermissibly
relied on a new theory of motivation to combine in its final
written decision. As we have often explained, IPR proceedings are
formal administrative adjudications subject to the
procedural requirements of the APA. See, e.g., Dell Inc. v.
Acceleron, LLC, 818 F.3d 1293, 1298 (Fed. Cir.
2016); Belden, 805 F.3d at 1080. One of these requirements is that
“‘an agency may not change theories in midstream without giving respondents reasonable notice of the
change’ and ‘the opportunity to present argument under
the new theory.’” Belden, 805 F.3d at 1080 (quoting Rodale
Press, Inc. v. FTC, 407 F.2d 1252, 1256–57 (D.C. Cir.
1968)); see also 5 U.S.C. § 554(b)(3). Nor may the Board
craft new grounds of unpatentability not advanced by the
petitioner. See In re NuVasive, Inc., 841 F.3d 966, 971–72
(Fed. Cir. 2016); In re Magnum Oil Tools Int’l, Ltd.,
829 F.3d 1364, 1381 (Fed. Cir. 2016).


In any event, even if Arthrex’s patent had issued prior
to the passage of the AIA, our court recently rejected arguments similar to Arthrex’s in Celgene Corp. v. Peter.
No. 18-1167, 2019 WL 3418549, at *12–16 (Fed. Cir.
July 30, 2019). As we explained, pre-AIA patents issued
subject to both district court and Patent Office validity proceedings. Though IPR differs from these existing proceedings, we held that the differences between IPRs and the
district court and Patent Office proceedings that existed
prior to the AIA are not so significant as to “create a constitutional issue” when IPR is applied to pre-AIA patents.
Id. at *15; see also id. at *12 & n.13 (affirming that our
prior decisions ruling that retroactive application of reexamination does not violate the Fifth Amendment, the Seventh Amendment, or Article III “control the outcome” of
similar challenges to IPR).


The outcome:

Alison appeals the
Commission’s final determination that certain claims of
the ’359 patent are not indefinite based on their use of the
term “lofty . . . batting.” Alison also challenges the Commission’s
final determination that certain claims of the
’359 patent are not invalid on anticipation and obviousness
grounds. Because the written description of the ’359 patent
informs the meaning of “lofty . . . batting” with reasonable
certainty, we affirm the Commission on the indefiniteness
ground. And because we conclude that the Commission’s
factual findings are supported by substantial evidence, we
also affirm the Commission on the anticipation ground
without reaching the subsidiary obviousness ground.

Of interest:

We now turn to the Commission’s anticipation and obviousness determinations. The Commission affirmed the
ALJ’s initial determination that claims 1, 7, and 9 of the
’359 patent are not anticipated by Ramamurthi. The Commission also affirmed the ALJ’s separate determination
that claim 9 is not anticipated by and would not have been
obvious over Ramamurthi. We affirm the Commission on
the anticipation ground without reaching the subsidiary
obviousness ground.


We are not persuaded that the Commission’s determination is unsupported by substantial evidence.
Substantial evidence review must be guided by the applicable
substantive evidentiary standard. See Checkpoint Sys.,
54 F.3d at 761 n.5. Here, Alison bore the elevated burden
of clearly and convincingly proving that the “glass wool” or
another fiber of Ramamurthi necessarily presents the properties of a “lofty . . . batting.”
See Rosco, 304 F.3d at 1380;
see also Motorola Mobility, LLC v. Int’l Trade Comm’n,
737 F.3d 1345, 1350 (Fed. Cir. 2013) (holding that “substantial evidence supports the Commission’s conclusion
that Motorola did not present clear and convincing evidence that the operating system necessarily required any
additional capacity”). The ’359 patent itself expressly discusses and distinguishes Ramamurthi,
which was also considered by the patent examiner during prosecution and
later by the Board in denying Alison’s IPR petition. Arguments and references already considered by the Patent Office may carry less weight with the fact finder. Sciele
Pharma Inc. v. Lupin Ltd., 684 F.3d 1253, 1260 (Fed. Cir.
Aspen’s expert, furthermore, rebutted Alison’s expert testimony with detailed testimony supported by industry references.5 Alison’s expert, for his part, merely
presented a photo of glass wool pulled from a Wikipedia
article, which he identified as lofty without any supporting
analysis or testing.


The Commission also affirmed the ALJ’s separate determination that claim 9 is not anticipated by and would
not have been obvious over Ramamurthi. Claim 9 depends
from claim 1 and additionally recites a specific range of dopant that the parties agree is not expressly disclosed in
Ramamurthi. On appeal, Alison asserts that the recited
range is inherently disclosed by or would have been obvious
over Ramamurthi’s disclosure. Because we affirm the
Commission’s determination that the “lofty . . . batting”
limitation of claim 1 is not expressly or inherently disclosed
by Ramamurthi, we need not reach this separate ground
for claim 9.

Tuesday, August 13, 2019

Iridescent Networks loses appeal at CAFC

The outcome was affirmance of an ED Texas claim construction; defendants win:

Iridescent Networks, Inc. sued AT&T Mobility, LLC
and Ericsson Inc. in the U.S. District Court for the Eastern
District of Texas for infringement of U.S. Patent
No. 8,036,119. Following claim construction, the parties
jointly stipulated to noninfringement, and the district
court entered judgment in favor of AT&T Mobility, LLC
and Ericsson Inc. Iridescent Networks, Inc. appeals on the
ground that the district court erred in its construction of
the term “high quality of service connection.” Because the
district court correctly construed this term, we affirm.

The claim construction went back to the opinion of a

Iridescent subsequently objected to the magistrate
judge’s construction, raising the same arguments it renews
on appeal. Iridescent Networks, Inc. v. AT&T Mobility,
LLC, No. 6:16-CV-01003, 2017 WL 10185852, at *1–3 (E.D.
Tex. Dec. 1, 2017) (“Order Adopting Constructions”). The
district judge overruled Iridescent’s objections,
determining that the magistrate judge’s construction was not clearly
erroneous or contrary to law. Id. at *3.

[Note the proper terminology is that of
overruling and objection.]

Of standards of review:

Whether a district court’s construction of a claim is correct presents
a legal question that we review de novo. InfoHold, Inc. v. Applied Media Techs. Corp., 783 F.3d 1262,
1265 (Fed. Cir. 2015). We review underlying factual findings related to extrinsic evidence for clear error. E.I. du
Pont De Nemours & Co. v. Unifrax I LLC, 921 F.3d 1060,
1067 (Fed. Cir. 2019). When claim construction is based
solely upon intrinsic evidence, as in this case, our review is
de novo. Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct.
831, 841 (2015).

Claim construction seeks to ascribe the meaning to a
claim term as understood by a person of ordinary skill in
the art at the time of invention. Phillips v. AWH Corp., 415
F.3d 1303, 1312–14 (Fed. Cir. 2005) (en banc). The meaning of a term
“must be considered in the context of all the
intrinsic evidence, including the claims, specification, and
prosecution history.” Biogen Idec, Inc. v. GlaxoSmithKline
LLC, 713 F.3d 1090, 1094 (Fed. Cir. 2013) (citing Phillips,
415 F.3d at 1314).

The issue here:

This appeal turns on whether the term “high quality of
service connection” is a term of degree that is limited to the
minimum connection parameter requirements disclosed in
Figure 3 of the ’119 patent. We conclude that it is.


Iridescent argues that the term “high quality of service
connection” is a mere requirement that the connection assure
the level of quality that meets the service parameter
needs of a particular service or application.

Of disavowal:

We have
explained that “[a]ny explanation, elaboration, or qualification
presented by the inventor during patent examination is relevant,
for the role of claim construction is to
‘capture the scope of the actual invention’ that is disclosed,
described, and patented.” Fenner Invs., Ltd. v. Cellco
P’ship, 778 F.3d 1320, 1323 (Fed. Cir. 2015) (quoting Retractable Techs.,
Inc. v. Becton, Dickinson & Co., 653 F.3d
1296, 1305 (Fed. Cir. 2011)); see also Aptalis Pharmatech,
Inc. v. Apotex Inc., 718 F. App’x 965, 971 (Fed. Cir. 2018)
(relying on the prosecution history to inform a claim construction
analysis without finding a disavowal of claim
scope). Although the prosecution history may not in some
cases be as clear a guide as the specification, it nonetheless
“can often inform the meaning of the claim language by
demonstrating how the inventor understood the invention
and whether the inventor limited the invention in the
course of prosecution, making the claim scope narrower
than it would otherwise be.” Phillips, 415 F.3d at 1317

The hazards of coined terms

The question here, however, is not whether Iridescent narrowed
the scope of the disputed term during prosecution
from its full ordinary and customary meaning. Rather,
because the disputed term is a coined term, meaning it has
no ordinary and customary meaning, the question is
whether the intrinsic evidence provides objective boundaries to the scope of the term. Interval Licensing LLC v.
AOL, Inc., 766 F.3d 1364, 1371 (Fed. Cir. 2014). In these
circumstances, where there is no clear ordinary and customary meaning of a coined term of degree, we may look to
the prosecution history for guidance without having to first
find a clear and unmistakable disavowal.

Of enablement rejections

Iridescent argues that unlike an indefiniteness rejection,
an enablement rejection is not issued “to force the applicant to define the metes and bounds of the claim.”
Appellant’s Br. 27. This is not correct. It is long-settled
that “[e]nablement serves the dual function in the patent
system of ensuring adequate disclosure of the claimed invention
and of preventing claims broader than the disclosed invention.
This important doctrine prevents both
inadequate disclosure of an invention and overbroad claiming that
might otherwise attempt to cover more than was
actually invented.” MagSil Corp. v. Hitachi Glob. Storage
Techs., Inc., 687 F.3d 1377, 1380–81 (Fed. Cir. 2012) (internal citation omitted);
see also Nat’l Recovery Techs., Inc. v.
Magnetic Separation Sys., Inc., 166 F.3d 1190, 1195–96
(Fed. Cir. 1999). Thus, Iridescent’s statements made to
overcome the examiner’s enablement rejection inform the
claim construction analysis by demonstrating how Iridescent understood the scope of the disputed term.

Of the word "high"

Iridescent also argues that this court’s precedent forecloses
limiting the term “high” to numerical values. We
disagree. In each case on which Iridescent relies, this court
concluded that importing numerical limits into the independent claim
at issue would have rendered a dependent
claim meaningless. See Honeywell Int’l Inc. v. Universal
Avionics Sys. Corp., 488 F.3d 982, 993–94 (Fed. Cir. 2007);
In re Cruciferous Sprout Litig., 301 F.3d 1343, 1348–49
(Fed. Cir. 2002); Am. Seating Co. v. USSC Grp., Inc., 91 F.
App’x 669, 676 (Fed. Cir. 2004). That is not a concern here.
Additionally, in American Seating, the claim language itself defined
the disputed term. 91 F. App’x at 675. By contrast, the claims here provide no clear meaning or
definition of “high quality of service connection.”

Monday, August 12, 2019

PTAB decision vacated for not identifying "means plus function" claim

The outcome in MTD Products:

The Toro Company sought inter partes review of
claims 1–16 of U.S. Patent No. 8,011,458 before the U.S.
Patent and Trademark Office’s Patent Trial and Appeal
Board. The Board instituted review and, in its final written decision,
held the challenged claims obvious under
35 U.S.C. § 103. Critical to its decision, the Board determined that
the claim term “mechanical control assembly . . . configured to” perform certain functions is not a
means-plus-function term subject to 35 U.S.C. § 112, ¶ 6.
MTD Products Inc., owner of the ’458 patent, appeals the
Board’s decision.

We conclude that the Board erred by conflating corresponding structure
in the specification with a structural
definition for the term, and by misinterpreting certain
statements in the prosecution history. Under the appropriate legal framework,
we conclude that the term “mechanical control assembly” is a means-plus-function term
governed by § 112, ¶ 6. We therefore vacate the Board’s
obviousness conclusion, which was predicated on its incorrect claim construction,
and remand for further proceedings consistent with this opinion. Because we are
persuaded by MTD’s primary argument, we do not reach
its alternative arguments.

Of the Board's error:

We conclude that the Board erred, however, when it relied on the specification’s
description of a “ZTR control assembly” to conclude that the claim term “mechanical
control assembly” has an established structural meaning.
While the parties agreed that the ZTR control assembly in
the specification is the structure “corresponding to” the
claimed mechanical control assembly, MTD did not agree
that the specification expressly defines the claim term “mechanical control assembly.”
That the specification discloses
a structure corresponding to an asserted means-plus-function claim term
does not necessarily mean that the claim
term is understood by persons of ordinary skill in the art to
connote a specific structure or a class of structures.


Interpretation of an asserted means-plus-function limitation involves two steps.
First, we determine if the claim
limitation is drafted in means-plus-function format. As
part of this step, we consider whether the claim limitation
connotes “sufficiently definite structure” to a person of ordinary skill in the art.
If we conclude that the limitation is
in means-plus-function format, the second step requires us
to review the specification to identify the structure that
performs the claimed function(s) and thus “corresponds to”
the claimed means. While related, these two inquiries are
distinct. In this case, however, the Board conflated these
distinct inquiries, holding that the specification’s disclosure of corresponding
structure demonstrates that the alleged means-plus-function term is sufficiently definite so
as to not invoke § 112, ¶ 6. The Board’s analysis implies
that so long as a claim term has corresponding structure in
the specification, it is not a means-plus-function limitation.
This is not consistent with our prior decisions. Indeed, this
view would seem to leave § 112, ¶ 6 without any application: any means-plus-function limitation that met the
statutory requirements, i.e., which includes having corresponding structure in the specification, would end up not
being a means-plus-function limitation at all.
While we agree with the Board that the specification
plays a role in assessing whether particular claim language
invokes § 112, ¶ 6, we do not agree that the patent specification at issue here renders the nonce term “mechanical
control assembly” sufficiently structural to a person of ordinary skill in the art.

Sunday, August 11, 2019

More on Biden and Syracuse Law

With respect to text in the previous post

Biden, who plagiarized a paper while a 1L at Syracuse Law School, has been saying things that sound like mistakes for years.

One notes that text in wikipedia might suggest otherwise:

Later in 1987, the Delaware Supreme Court's Board of Professional Responsibility cleared Biden of the law school
plagiarism charges regarding his standing as a lawyer, saying Biden had "not violated any rules"


With wikipedia relying upon text in a New York Times article titled: Professional Board Clears Biden In Two Allegations of Plagiarism, with the relevant text being: The court's Board on Professional Responsibility, consisting of lawyers and non-lawyers, ruled on Dec. 21, 1987, that Mr. Biden had not violated any rules.

Ref. 100 of the wikipedia article: "Professional Board Clears Biden In Two Allegations of Plagiarism". The New York Times. Associated Press. May 29, 1989

The "trick" here is what the issue was before the body in Delaware. The issue was NOT whether Biden committed plagiarism at Syracuse.

In the book -- Matters of Principle: An Insider's Account of America's Rejection of Robert Bork's Nomination to the Supreme Court (Simon & Shuster, 2019) -- , author Mark Gitenstein notes that the question pertained to Biden's application to the Delaware bar in 1968, in particular his answer of "no" to the question whether Biden had ever been disciplined for an ethical violation. Gitenstein noted that the Delaware body concluded Biden's act was an academic rather than an ethical violation. One notes that Syracuse gave Biden an "F" in the course related to the plagiarism and required Biden to repeat the course.

Of Gitenstein's relationship to Biden, wikipedia notes: "Prior to his work at Mayer Brown, Gitenstein served as Chief Counsel (1987–1989) and Minority Chief Counsel (1981–1987) to the United States Senate Committee on the Judiciary, serving under then-Senator Joe Biden. Gitenstein also served as Counsel to the United States Senate Select Committee on Intelligence (1975–1978) "


In 2008, IPBiz had written:

The Buffalo News recounts Arthur M. Cooper's story of the Biden plagiarism incident at Syracuse Law in 1965-->

Cooper was asked to recall the experience he last detailed during Biden’s 1988 presidential campaign. And while Biden’s alleged flirtations with plagiarism emerged as a major controversy back in 1988, Cooper now notes that it seems so tame in comparison with to-day’s political scandals.

“Since then, Gary Hart and Bill Clinton have trumped him for sure,” said Cooper, a retired state workers’ compensation judge.

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

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

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

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

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

IPBiz notes a key point: Biden was told that copying five pages without footnoting was wrong BUT he didn’t think there was a problem. Allison didn't think copying three sentence fragments about history was a problem, but she walked the plank from "Semester at Sea." Anybody who thinks Allison did something wrong has to think a long, long time about voting for Biden.

The link to the Buffalo News story on Cooper is no longer active.

See also the 2008 IPBiz post
Googling --plagiarism and joe biden--

The idea that an academic violation can't be an ethical violation is problematic. Given that Biden was disciplined, the Delaware body is saying that plagiarizing a paper is not an ethical violation. The Delaware body did NOT "clear" Biden of plagiarism; rather, they said plagiarism was not an ethical violation. When Biden was cautioned by Cooper that there was a problem in copying without attribution, this became more than a case of sloppy citation practice. Cooper knew it was wrong. So did Syracuse Law.

An extreme example of "academic violation pigeon-holing" would be saying the 1978 murder of Stanford professor Karel de Leeuw by (former) student Theodore Landon "Ted" Streleski was merely an academic violation.

Shawna Thomas on "Face the Nation": do older people, as a class, say things that sound like mistakes?

"Face the Nation" on August 11, 2019 had an interesting discussion of Joe Biden's "poor kids/white kids" flap.

MARGARET BRENNAN: Shawna, Joe Biden had a few missteps this week. Steve Scalise in this interview on our show hit him on a few of those things. But one of them was also he-- he seemed to say something to the effect of poor kids are just as good as white kids. The-- the right jumped on him for that.

SHAWNA THOMAS: Yeah. And, you know, here's the deal, Joe Biden is an older person, and sometimes he is going to-- he is going to say things that sound like mistakes. That is something that he and his campaign are going to have to deal with, because in the world we currently live in with, you know, social media, twenty-four-hour cable news, everything else, every little thing you do is going to be under a microscope. And Republicans are going to jump on him for that. I think it is clear what he was trying to say. I don't think he was trying to in any way in this type of commentary be racist or-- or anything like that. But this is a problem they are going to have to continue to deal with. And it's going to happen in debates. He-- this-- he's just going to have to figure out how to speak a little bit more carefully.

While rationalizing Biden's mistake on the basis of age, Shawna Thomas dealt an insult to older persons.


Biden, who plagiarized a paper while a 1L at Syracuse Law School, has been saying things that sound like mistakes for years. Please don't blame his age.

For completeness, Scalise's comment on Biden on "Face the Nation" was NOT about the "poor kids" statement of Biden:

REPRESENTATIVE STEVE SCALISE: Well, first of all, the President was very clear just the other day that there's no place for this. He spoke out against racism; he spoke out against these kind of attacks. And so to try to assign blame, you know, go look at some of these presidential candidates who made some of the most ridiculous statements. I mean Joe Biden just said that he was vice president when the Parkland kids--


REPRESENTATIVE STEVE SCALISE: --came and met with him, he wasn't vice president. You know, so some of these things that are being said are-- are beyond ridiculous. I-- I know they're running for President, and they might not like Donald Trump's views, but stop this-- this ridiculous assessment of blame to somebody other than the person who's responsible.


REPRESENTATIVE STEVE SCALISE: And again, you know, just-- just-- you talk to-- to other people who were motivators--look at the Dayton shooter and what his motivations were. Is anybody asking about that? Anybody from the left--


REPRESENTATIVE STEVE SCALISE: --who he was inspired by. There's no right-- there's no place for it. The shooter's--


REPRESENTATIVE STEVE SCALISE: --responsible. Let's try to identify these shooters in a better way which right now we're working on doing; let's put more emphasis there.

Brennan's ability to interview is about on the level of Captain Kangaroo.