Friday, February 21, 2020

Choirock loses at CAFC on 2 to 1 vote

The dissent in Choirock:

The ’504 patent is directed to a transformable toy
shaped like a ball that can open to reveal a figurine. The
prior art references—Maruyama ’693 and Maruyama
’258—disclose a nearly identical toy that can open to reveal
a robot figurine. While the Board may have been correct in
finding that Choirock did not establish that claims 1–4 and
7–8 were anticipated, I think the Board demonstrably
erred in holding that Choirock failed to show that claims 1–
4 and 7–8 would have been obvious. I respectfully dissent
from the majority’s decision to affirm the Board with respect to those grounds.
I join the majority opinion as to
standing and claim 9 and its dependent claims.

There was a matter of ignoring arguments:

The expert’s testimony is of no significance here. He
labeled the torso of Maruyama ’258’s robot toy as the “display member” using a different definition of “display member.” Maruyama ’258 plainly shows a “display member”
under the Board’s construction.
Due to the above error, the Board did not address Spin
Master’s other arguments why the prior art would not have
rendered claims 1–4 obvious in light of other limitations in
those claims. I therefore would remand for further proceedings.

And, in Choirock’s Reply in response to the rotatability issue raised by Spin Master, Choirock argued that
it “would have been obvious to . . . add rotatability to the
head, arms[,] and feet” of the figurine in Maruyama ’258 in
light of Obara “so as to reveal a previously unseen image.”
J.A. 514. This response was proper. Chamberlain, 944
F.3d at 925. The Board erred by ignoring Choirock’s arguments.

Thursday, February 20, 2020

Mexican President Andrés Manuel López Obrador and the DNC debate of February 19, 2020

The topic of Klobuchar's not knowing/remembering the name of Mexico's president arose in the Las Vegas debate on 19 Feb. 2020. The New York Times noted:

Ms. Klobuchar, who dismissed the error as “momentary forgetfulness,” instead took umbrage with the attacks that Mr. Buttigieg had lobbed at her over the lapse, at one point accusing Mr. Buttigieg of calling her “dumb” and being overtly personal. And Senator Elizabeth Warren jumped in to defend Ms. Klobuchar, saying her mistake was trivial and had drawn undue attention.


“Are you trying to say that I’m dumb — are you mocking me here, Pete?” Ms. Klobuchar said. “I said I made an error. People sometimes forget names. I am the one that has, No. 1, has the experience based on passing over 100 bills.”


As to knowing names:

When asked about former South Bend, Ind., Mayor Pete Buttigieg, who correctly identified Obrador, Klobuchar said, “So, I would say to the mayor, this isn’t like a game of 'Jeopardy!' This is about, to me, experience, and I have so much respect for him and his experience, but my experience is different.”

Both Klobuchar and billionaire candidate Tom Steyer were unable to name Obrador when asked by Univision interviewer Guad Venegas ahead of the Nevada caucuses, the first contest in a state with a significant number of Latino voters.


Perhaps Klobuchar could have said at least I know who Alfred E. Neuman is.


Wednesday, February 19, 2020

The CAFC analyzes 35 U.S.C. § 287 in Arctic Cat

The outcome:

Arctic Cat Inc. (“Arctic Cat”) appeals from a judgment
of the United States District Court for the Southern District of Florida that Arctic Cat is
not entitled to recover precomplaint damages from Bombardier Recreational Products Inc. (“Bombardier”) due to the failure of Arctic Cat’s
licensee to mark products in accordance with 35 U.S.C.
§ 287. Arctic Cat Inc. v. Bombardier Recreational Prods.,
334 F. Supp. 3d 1238, 1240 (S.D. Fla. 2018). Because we
agree with the district court that § 287 continues to limit
damages after a patentee or licensee ceases sales of unmarked products, and that willful infringement does not
establish actual notice under § 287, we affirm.


This case presents a discontinuous situation in which
unmarked products were sold, such that Arctic Cat could
not receive damages before providing notice, but the sales
of unmarked products allegedly stopped for a period of time
prior to the filing of Arctic Cat’s complaint. Thus, the issue
presented is whether the cessation of sales of unmarked
products excuses noncompliance with the notice requirement of § 287 such that a patentee may recover damages
for the period after sales of unmarked products ceased but
before the filing of a suit for infringement. We hold that it
does not.

An argument about "verb tense" was presented:

Arctic Cat argues that, because § 287 is written in the
present tense, the statute by its terms only applies while a
patentee is “making, offering for sale, or selling” its products. Thus,
according to Arctic Cat, the statute limits damages only during periods when the patentee is actually
making, offering for sale, or selling the patented article.
Bombardier responds that, to begin recovering damages after sales of unmarked products have begun, § 287 requires
that a patentee either begin marking its products or provide actual notice to an alleged infringer; cessation of sales
of unmarked products is not enough. We agree with Bombardier.

Also of note

Arctic Cat also argues that, regardless of its failure to
mark, it should nevertheless recover the maximum amount
of pre-suit damages allowed by 35 U.S.C. § 286 because the
jury’s finding that Bombardier willfully infringed the asserted claims should be sufficient to establish actual notice
under § 287. Arctic Cat acknowledges, as it must, that this
argument is foreclosed by our precedent. In Amsted Indus.
Inc. v. Buckeye Steel Castings Co. we held that the determination whether a patentee provided actual notice under
§ 287 “must focus on the action of the patentee, not the
knowledge or understanding of the infringer,” and that “[i]t
is irrelevant . . . whether the defendant knew of the patent
or knew of his own infringement.” 24 F.3d 178, 187 (Fed.
Cir. 1994) (citing Am. Med. Sys., Inc., 6 F.3d at 1537 n.18)).
Accordingly, we reject Arctic Cat’s argument.
Aside from our inability to reverse the decision of an
earlier panel, see Newell Cos., Inc. v. Kenney Mfg. Co., 864
F.2d 757, 765 (Fed. Cir. 1988)
, we reiterate the conclusion
that willfulness, as an indication that an infringer knew of
a patent and of its infringement, does not serve as actual
notice as contemplated by § 287. While willfulness turns
on the knowledge of an infringer, § 287 is directed to the
conduct of the patentee. The marking statute imposes notice obligations on the patentee, and only the patentee is
capable of discharging those obligations. It is not directed
to the infringer and does not contemplate mere knowledge
of the infringer as sufficient to discharge the notice requirements placed on the patentee.

The matter of typographical error arises:

Arctic Cat bases its argument for reversing Amsted on
a supposed typographical error in that opinion in a quotation from the Supreme Court’s decision in Dunlap v.
Schofield, 152 U.S. 244 (1894). Where the Supreme Court
stated that notice “is an affirmative fact,” id. at 248, our
opinion in Amsted quoted Dunlap as characterizing notice
as “an affirmative act,” 24 F.3d at 187. Arctic Cat argues
that this discrepancy undermines the reasoning in Amsted
and that, properly understood, Dunlap stands for the proposition that notice is a fact that can be proved by knowledge
of the infringer. But the alleged mistranscription in Amsted is inconsequential to our analysis of Dunlap because
the relevant fact is the act of the patentee. T

Tuesday, February 18, 2020

Followup on the Lieber/Harvard/Thousand Talents matter

In a 18-19 Feb 2020 post titled US sets sights on Harvard professor and universities over Chinese funding amid heightened fear of IP leaks . Mark Magnier works through some of the issues in the Lieber/[Chinese] Thousand Talents affair.

Of the escalation to a scientist of the stature of Charles Lieber, Kei Koizumi, a science consultant and White House science and technology adviser in the Obama administration, is quoted:

“This wake-up call is far louder because of who this person is, his ethnicity and the institution for which he works. Now it affects everyone, not just Chinese or other Asians like myself."

Andrew Lelling, US attorney for the District of Massachusetts is quoted: “You can take money from the Chinese. But you can’t lie about it. If you lie, and it’s in the NIH grant-making process, it’s a crime.”

To date, the crime charged seems to be that of lying to a federal agency, rather than Espionage under the Economic Espionage Act. The Magnier article states:

[Lieber] has been charged with one felony count of making false statements to US government agencies and faces up to five years in prison and a maximum fine of US$250,000.

Also within the Magnier article:

Zeidenberg, Xi and others say most cases can be handled without public shaming and harsh prosecutions. A prestigious National Science Foundation study released in December concurs, finding that many foreign influence issues “can be addressed within the framework of research integrity” without walling off core areas of science.
The NIH acknowledged in an email that funding applications can be burdensome but denied that the US punishes researchers for “honest mistakes”.
“When a grant application misrepresents, fabricates or falsifies information or data, it could be considered a serious violation,” it added.

Elsewhere, a comment to a post in the Harvard Crimson titled In Wake of Lieber Arrest, Dean of Science Says FAS ‘Limited’ In Its Ability to Track Unauthorized Research Activity contains the text:

Details of Lieber’s alleged offences appear in a charging document submitted by the FBI in connection with his arrest. It says that for periods of time between 2012 and 2017, Lieber agreed to be paid a salary of $50,000 per month, as well as about $150,000 a year in personal and living expenses, by WUT, and was given more than $1.5 million to set up a research lab there. According to a contract cited in the document, Lieber was to work at or for WUT for at least nine months a year. Lieber also agreed to host visiting scientists for two-month stints at his US lab, according to the FBI, an agreement that Harvard was not aware of.

At the same time, Lieber continued his tenure at Harvard University and applied for funding from US agencies, receiving at least $15 million in federal grants from the Department of Defense (DOD) and the NIH since 2008. NIH policies require that researchers applying for federal funds disclose any funding they receive from other governments or universities outside the United States. Lieber was asked about his participation in the Thousand Talents Plan in April 2018 by DOD investigators, and by Harvard in late 2018 in response to an enquiry from the NIH. In both instances, the FBI says, he denied being part of it.

These facts seem to be consistent with a 3 February 2020 post in Nature

Details of Lieber’s alleged offences appear in a charging document submitted by the FBI in connection with his arrest. It says that for periods of time between 2012 and 2017, Lieber agreed to be paid a salary of $50,000 per month, as well as about $150,000 a year in personal and living expenses, by WUT, and was given more than $1.5 million to set up a research lab there. According to a contract cited in the document, Lieber was to work at or for WUT for at least nine months a year. Lieber also agreed to host visiting scientists for two-month stints at his US lab, according to the FBI, an agreement that Harvard was not aware of.

At the same time, Lieber continued his tenure at Harvard University and applied for funding from US agencies, receiving at least $15 million in federal grants from the Department of Defense (DOD) and the NIH since 2008. NIH policies require that researchers applying for federal funds disclose any funding they receive from other governments or universities outside the United States. Lieber was asked about his participation in the Thousand Talents Plan in April 2018 by DOD investigators, and by Harvard in late 2018 in response to an enquiry from the NIH. In both instances, the FBI says, he denied being part of it.


**UPDATE. 5 March 2020, from the Harvard Crimson:

On Feb. 11, the U.S. Department of Education launched an investigation into Harvard over its foreign funding from the governments of China, Iran, Russia, Qatar, and Saudi Arabia.

Bacow said Monday that Harvard appropriately disclosed its foreign gifts, contracts, and grants “in a timely way” and in compliance with the law. He said the University is currently working on a response to the Education Department probe.

Bacow noted that there are a “variety of ways” in which Harvard safeguards its intellectual property, including filing patents and seeking judicial protections. He said the University does not conduct “classified research” and that all of the research the school does is ultimately published.


CAFC applies Rule 8 in Arunachalam case

Of interest

Rule 8 requires “a short and plain statement of the claim showing that the
pleader is entitled to relief,” and Rule 41(b) allows a district
court to dismiss a case for failure to follow the court’s order.
FED. R. CIV. P. 8, 41(b).

As the district court correctly found, Dr. Arunachalam’s “robust 144-page complaint is confusing, disorganized, and contains legal terminology without setting
forth facts showing that she is entitled to relief
.” Arunachalam, 2018 WL 5023378, at *2. The Complaint describes alleged conspiracies that have been perpetrated by
numerous companies and members of the judiciary, the
legislature, the PTO, and the bar. Yet no facts are presented to support these allegations other than Dr. Arunachalam’s assertions that it is so. Under the
circumstances, the district court was justified in dismissing
the Complaint under Rule 8. See Cafasso, 637 F.3d at
1058–59; Hearns, 530 F.3d at 1130–31.

When the district court dismissed the Complaint for
failure to follow Rule 8, the district court specifically
warned Dr. Arunachalam that failure to follow the court’s
order would result in dismissal of the case. Id. at *6. But
rather than follow the district court’s instructions, Dr. Arunachalam used her amended complaint to levy additional
attacks against Judge Davila, who was not a named party
in the action.

CAFC Google decision analyzes mandamus, venue

Of interest:

Since our decision in Google, three related developments have convinced us that mandamus is appropriate to
resolve this venue issue. First, the prediction of our dissenting colleagues has proven accurate, and there are now
a significant number of district court decisions that adopt
conflicting views on the basic legal issues presented in this
case.2 Second, experience has shown that it is unlikely
that, as these cases proceed to trial, these issues will be
preserved and presented to this court through the regular
appellate process. “[W]hile an appeal will usually provide
an adequate remedy for a defendant challenging the denial
of an improper-venue motion, there may be circumstances
in which it is inadequate.” In re HTC Corp., 889 F.3d 1349,
1354 (Fed. Cir. 2018). While not alone sufficient to justify
mandamus, the substantial expense to the parties that
would result from an erroneous district court decision confirms the inadequacy of appeal in this case. See In re BP
Lubricants USA, Inc., 637 F.3d 1307, 1313 (Fed. Cir. 2011)
(“Not all circumstances in which a defendant will be forced
to undergo the cost of discovery and trial warrant mandamus.”). Finally, the wisdom of our decision to allow the issues to “percolate in the district courts” has been borne out,
Google, 2018 U.S. App. LEXIS 31000, at *8, as additional
district court decisions have crystallized and brought clarity to the issues: (1) whether a server rack, a shelf, or analogous space can be a “place of business” and (2) whether a
“regular and established place of business” requires the
regular presence of an employee or agent of the defendant
conducting the business.
3 The district courts’ decisions on
these issues are in conflict. This court has not addressed
this fundamental and recurring issue of patent law. We
thus conclude that mandamus is an available remedy.

Footnote 2

In re Google LLC, 914 F.3d 1377, 1380 (Fed. Cir.
2019) (Reyna, J., dissenting); see, e.g., CUPP Cybersecurity
LLC v. Symantec Corp., No. 3:18-CV-01554, 2019 U.S. Dist.
LEXIS 37960, at *7–8 (N.D. Tex. Jan. 16, 2019) (holding
that the defendant’s servers hosted in an datacenter operated by a third party were not a regular and established
place of business); CDX Diagnostic, Inc. v. US Endoscopy
Grp., Inc., No. 13-CV-5669, 2018 U.S. Dist. LEXIS 87999,
at *7 (S.D.N.Y. May 24, 2018) (holding that the defendant’s
storage units had “no ‘employee or agent’” conducting business and were therefore not regular and established places
of business); Peerless Network, Inc. v. Blitz Telecom Consulting, LLC, No. 17-CV-1725, 2018 U.S. Dist. LEXIS
49628, at *9 (S.D.N.Y. Mar. 26, 2018) (holding that a regular and established place of business “requires some employee or agent of the defendant to be conducting business
at the location in question”); Tinnus Enters., LLC v. Telebrands Corp., No. 6:17-CV-00170, 2018 U.S. Dist. LEXIS
79068, at *14 (E.D. Tex. Mar. 9, 2018) (holding that the defendant’s leased shelf space in the district was a regular
and established place of business where the defendant paid
“agents to monitor, clean, restock, and affix price signage”
to the shelf space); Automated Packaging Sys. v. Free-Flow
Packaging Int’l, Inc., No. 5:14-cv-2022, 2018 U.S. Dist.
LEXIS 5910, at *27–28 (N.D. Ohio Jan. 12, 2018) (holding
that the defendant’s equipment that was “moved onto the
customer’s property, and may be removed by [the defendant] or relocated by the customer with [the defendant]’s
permission, precludes any finding that this equipment
could serve as a physical, geographical location” for purposes of establishing venue under § 1400(b)); Pers. Audio,
LLC v. Google, Inc., 280 F. Supp. 3d 922, 935 (E.D. Tex.
2017) (holding that Google’s GGC servers were not regular
and established places of business). See also Rensselaer
Polytechnic Inst. v. Amazon, No. 1:18-cv-00549, 2019 U.S.
Dist. LEXIS 136436, at *34, *36 (N.D.N.Y. Aug. 7, 2019)
(noting that “[t]he Federal Circuit has not decided whether
a natural person must conduct business at the location for
it to be a ‘place of business’”).

Note also

We agree, however, with Google’s alternative argument that under the second Cray factor, a “place of business” generally requires an employee or agent of the
defendant to be conducting business at that place. This is
apparent from the service statute for patent cases, now codified at 28 U.S.C. § 1694. That provision originally appeared as the second sentence of a two-sentence statutory
section whose first sentence is now the patent venue
statute, 28 U.S.C. § 1400(b). Thus 54 Cong. Ch. 395, 29
Stat. 695 (1897), provided:
[I]n suits brought for the infringement of letters patent the circuit courts of the United States shall
have jurisdiction, in law or in equity, in the district
of which the defendant is an inhabitant, or in any
district in which the defendant, whether a person,
partnership, or corporation, shall have committed
acts of infringement and have a regular and established place of business. If such suit is brought in
a district of which the defendant is not an inhabitant, but in which such defendant has a regular and
established place of business, service of process,
summons, or subpoena upon the defendant may be
made by service upon the agent or agents engaged
in conducting such business in the district in which
the suit is brought.
54 Cong. Ch. 395, 29 Stat. 695 (1897) (emphasis added).4
Thus, the venue and service provisions were not just enacted together but expressly linked, and both have always
required that the defendant have a “regular and established place of business.” Id.

Utah's Pharmacy Tourism Program includes the MS drugs Aubagio, Avonex, Copaxone, and Tecfidera

A post on "medical tourism" at titled Why Utah is sending workers to Mexico to buy medicine begins:

The insurance plan for Utah government employees decided two years ago it had to do something to curb prescription drug costs.
Its solution? Pay for workers to travel to Canada or Mexico to buy the same medications they’d been getting in the United States, just at much lower prices.

Today, the Utah insurer is saving hundreds of thousands of dollars a year on drugs for a handful of patients who need expensive medicines and make the trip abroad to get them. It’s not as much as they were originally hoping for, but enough that paying airfare plus a $500 bonus is still a worthwhile deal for the state to make.

Utah's Pharmacy Tourism Program includes several drugs used for the treatment of multiple sclerosis [MS}:

To help you save money on your prescriptions, PEHP offers members who are not enrolled in Medicare the option to fill select medications (from table below) at a designated pharmacy tourism location in Canada or Mexico. If you’re enrolled in the Traditional Plan, the medications are covered by your PEHP pharmacy benefit at no extra cost. If you’re enrolled in The STAR HSA Plan, the cost is covered by your PEHP pharmacy benefit once you meet your deductible. The PEHP Pharmacy Tourism Program allows you to fill 90-day supply of medications you are currently taking.

If you want to fill a prescription (from table) from a designated pharmacy in Canada or Mexico, PEHP will coordinate travel and cover the following costs associated with the program:

Roundtrip airfare from Salt Lake City International Airport to either San Diego or Vancouver International Airport
If needed, transportation to and from clinic location and/or overnight hotel stay
You are responsible for food expenses and the cost to acquire a passport, Visa, etc. Please visit for travel requirements to Canada and Mexico.

Medications currently included in the PEHP Pharmacy Tourism Program

» Aubagio 14mg

» Avonex

» Copaxone 40mg

» Tecfidera

See also the piece on NPR Utah Funds Public Employees Traveling To Mexico, Canada To Save Money On Costly Prescription Drugs
by Peter O'Dowd on 14 February 2020 which includes the text:

The cost of international airfare to get drugs available in the U.S. may sound expensive. But PEHP managing director Chet Loftis
says the program has saved the nonprofit around $250,000 since just last year when it started.

“There are certain drugs that cost an awful lot of money. We're talking about $50,000 for a year,” Loftis says. “And in those situations,
the variance between the cost of the drug here in the United States and what's available either in Canada or Mexico is such that it makes economic sense for us to be able to send them to those locations.”

See also

Trump administration unveils plan to allow states to buy cheaper drugs from Canada

CAFC in Serta Simmons: We conclude that a binding settlement agreement generally moots the action even if the agreement requires future performance

The outcome:

Serta Simmons Bedding, LLC and Dreamwell, Ltd. (together, “Serta Simmons”) own U.S. Patent Nos. 7,036,173
(“the ’173 patent”), 7,424,763 (“the ’763 patent”), and
8,918,935 (“the ’935 patent”). Serta Simmons sued Casper
Sleep Inc. (“Casper”) for infringement of certain claims of
those patents. The parties executed a settlement agreement and advised the district court of the settlement. The
district court nevertheless granted Casper’s summary
judgment motions of non-infringement. It later denied
Serta Simmons’s motions to vacate the summary judgment
order and to enforce the settlement agreement.
We vacate the district court’s judgment and remand
with instructions to enforce the settlement agreement. We
affirm the district court’s denial of Casper’s motion for fees
and costs pertaining to proceedings before the parties entered into the settlement agreement.

The issue:

Generally, a “[s]ettlement moots an action” because
there is no longer a case or controversy with respect to the
settled issues. Gould v. Control Laser Corp., 866 F.2d
1391, 1392 (Fed. Cir. 1989) (citations omitted). Nevertheless, Casper argues that the parties’ Settlement Agreement
did not moot the action because it called for future performance providing that Casper had ten days to pay $300,000,
after which the parties would file papers to dismiss the
claims and then “be obligated to ‘release[] . . . [the other
party] from all liabilities.” Appellee’s Br. 38–39 (citing
J.A. 1867–68)). We disagree.

The CAFC alludes to decisions of the Seventh Circuit:

Casper contends that two Seventh Circuit decisions are
to the contrary and that the case was not mooted by the
Settlement Agreement, citing Selcke v. New England Ins.
Co., 2 F.3d 790 (7th Cir. 1993) and Gould v. Bowyer, 11
F.3d 82 (7th Cir. 1993). Those cases are not binding on us,
are questionable on the merits, and in any event, are distinguishable since one involved a settlement agreement
that was not yet binding (Selcke, 2 F.3d at 791–92), and the
other potentially required further action by the court (Brief
of Defendant-Appellant Larry Bowyer, Gould v. Bowyer, 11
F.3d 83 (7th Cir. 1993) (No. 92-3697), 1993 WL 13036997,
at *5).

We conclude that a binding settlement agreement generally moots the action even if the agreement requires future performance.
While the issue is not before us in this case, we note
that there are circumstances where a district court may refuse to enforce a settlement agreement or where the district court is obligated to refuse to enforce such an
agreement. For example, district courts will not enforce
settlement agreements that are contrary to law or public
policy. See Hurd v. Hodge, 334 U.S. 24, 34–35 (1948); Oscanyan v. Arms Co., 103 U.S. 261, 267–68 (1880); FombyDenson v. Dep’t of Army, 247 F.3d 1366, 1373–75 (Fed. Cir.

The 1993 Selcke opinion was authored by Judge Posner.

CAFC in Acoustic Technology: We hold that time-bar challenges under § 315(b) are not immune from waiver.

The outcome

On September 8, 2017, the Patent Trial and Appeal
Board instituted inter partes review based on two petitions
filed by Silver Spring Networks, Inc. Nine days after institution,
Silver Spring agreed to merge with Itron, Inc., an
entity undisputedly time-barred under 35 U.S.C. § 315(b).
Silver Spring and Itron completed the merger during the
proceedings. The Board later issued a final written decision and found the challenged claims unpatentable.
On appeal, Acoustic asks that we vacate the Board’s final written
decision on grounds that the inter partes review was timebarred due to Silver Spring’s and Itron’s
merger-related activities. Acoustic also challenges the Board’s obviousness
findings. Because we find that Acoustic waived its timebar and obviousness arguments, we affirm.

Of arguments

Itron advances several arguments in response to
Acoustic’s time-bar arguments. First, Itron argues that
Acoustic waived its time-bar challenge of the IPRs because
Acoustic did not raise those arguments before the Board.


We hold that Acoustic has waived its time-bar challenge to the IPRs because it
failed to present those arguments before the Board. We retain case-by-case discretion
over whether to apply waiver. Monsanto Tech. LLC v. E.I.
DuPont de Nemours & Co., 878 F.3d 1336, 1342 n.8 (Fed.
Cir. 2018). We have “frequently declined to hear arguments that the applicant failed to present to the Board.” In
re Watts, 354 F.3d 1362, 1367 (Fed. Cir. 2004). When a
party raises arguments on appeal that it did not raise to
the Board, they “deprive[] the court of the benefit of the
[Board’s] informed judgment.” In re NuVasive, Inc., 842
F.3d 1376, 1380 (Fed. Cir. 2016) (explaining the importance of “a comprehensive record that contains the arguments and evidence presented by the parties”).
There is no dispute that Acoustic failed to raise § 315(b)
time-bar arguments before the Board. Acoustic became
aware of the merger as of January 8, 2018, more than seven
months before the Board issued its final written decisions.
J.A. 7026. Yet, Acoustic does not provide any reason for its
failure to challenge the proceedings as time-barred. Because Acoustic failed to present its time-bar arguments to
the Board and “deprive[d] the court of the benefit of the
[Board’s] informed judgment,” we exercise our discretion to
apply waiver. In re NuVasive, 842 F.3d at 1380.

Of interest:

Acoustic attempts to excuse its waiver by asserting,
without legal authority, that the time-bar is “jurisdictional” and thus “may be raised at any time.” Appellant
Br. 29. We disagree.

Acoustic is correct that we have previously described
the time-bar restrictions on the Board’s institution powers
as “jurisdictional.” Appellant Br. 29–32 (citing Click-to
Call Techs., LP v. Ingenio, Inc., 899 F.3d 1321, 1325
(Fed. Cir. 2018); Wi-Fi One, LLC v. Broadcom Corp., 878
F.3d 1364, 1373 (Fed. Cir. 2018)). But our application of
waiver differs between challenges to an agency’s “jurisdiction” and challenges to a federal court’s jurisdiction. PGS
Geophysical AS v. Iancu, 891 F.3d 1354, 1362 (Fed. Cir.
2018). As we explained in PGS:
Even if the Board could be said to have acted “ultra
vires” in refusing to institute reviews of some
claims and grounds . . . the Board’s error is waivable, not one we are required to notice and act on
in the absence of an appropriate request for relief
on that basis. Several courts of appeals have recognized the same for a challenge to an agency’s “jurisdiction,” after the Supreme Court, in City of
Arlington v. FCC, rejected a distinction between
agency “jurisdiction” errors and other errors for
certain deference purposes . . . .”
Id. (compiling cases) (citations omitted). We hold that
time-bar challenges under § 315(b) are not immune from

To permit litigants to raise § 315(b) time-bar challenges for the first time on appeal would encourage what
the Supreme Court has referred to as “sandbagging,” i.e.,
“suggesting or permitting, for strategic reasons, that the
[tribunal below] pursue a certain course, and later—if the
outcome is unfavorable—claiming that the course followed
was reversible error.” Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 895 (1991). Here, had Acoustic raised a
time-bar challenge before the Board, the Board was fully
empowered to dismiss the petitions for untimeliness if the
challenge had merit. But allowing Acoustic to raise a timebar challenge for the first time on appeal would afford it a
significant and unfair advantage: Acoustic could wait for
the Board’s decision on the merits, which if favorable would
have estoppel effect, and then challenge the Board’s jurisdiction on appeal only if the Board finds the claims obvious.
Although we do not address the merits of Acoustic’s
time-bar argument, we note Acoustic’s concerns about the
concealed involvement of interested, time-barred parties.
But because Acoustic never raised this issue to the Board,
we decline to resolve whether Itron’s pre-merger activities
render it a real-party-in-interest, or whether the Board has
any authority or obligation to reevaluate § 315(b) post institution

As to obviousness,

Because Acoustic never presented to the Board the
non-obviousness arguments it now raises on appeal, we
find those arguments waived. In re Watts, 354 F.3d at 1367
(explaining that we have “frequently declined to hear arguments that the applicant failed to present to the Board”);
In re NuVasive, Inc., 842 F.3d at 1380 (explaining that failure to raise arguments to the Board “deprives the court of
the benefit of the Board’s informed judgment.”); see, e.g.,
J.A. 576–578.


Drifting out of public consciousness??

In a 12 February 2020 post entitled Just 'Mayor Pete'? -- Trump struggles for killer nickname , Jerome CARTILLIER

"I have little nicknames for all of them," [Trump] says, but Buttigieg appears hard to nail down.

In one badly failed attempt, the 73-year-old Trump compared Buttigieg last year to Alfred E. Neuman -- the cartoon boy with a wide grin and protruding ears who once graced every cover of humor magazine "Mad."

The likeness is good, but Mad magazine drifted out of public consciousness long ago.

"I'll be honest. I had to Google that," Buttigieg said. "I guess it's just a generational thing. I didn’t get the reference."

As noted in a 16 February 2020 post on IPBiz:

During "CBS Sunday Morning" on 16 February 2020, in a report by Martha Teichner on the holocaust, one finds the text:

According to a recent Pew poll, fewer than half of U.S. adults (45%) know that six million Jews died in the Holocaust.
A 2018 study found that more than six out of ten American millennials can't identify what Auschwitz is, and more than one out of five haven't heard of the Holocaust, or aren't sure.


Although some people may forget history, and thus not appreciate its relevance, there are some that do remember.

Of comments to Cartillier's article:

If Buttigieg does win the nomination, all President Trump would have to do at the first debate is slowly pull out a copy of Mad Magazine & show it to the audience.



Alfred E. Neuman NAILED IT. Trump isn't having trouble "coming up" with a name... you're just not bright enough to grasp it.
THat was HILARIOUS and TIMELY and ACCURATE... which I believe is what the younger generation refers to as NAILED IT.

MAD Magazine taught readers not to take things at face value, such as Cartillier's comment: " Mad magazine drifted out of public consciousness long ago "

Sunday, February 16, 2020

Remembering history, per George Santayana

George Santayana noted: "Those who cannot remember the past are condemned to repeat it."

During "CBS Sunday Morning" on 16 February 2020, in a report by Martha Teichner on the holocaust, one finds the text:

According to a recent Pew poll, fewer than half of U.S. adults (45%) know that six million Jews died in the Holocaust. A 2018 study found that more than six out of ten American millennials can't identify what Auschwitz is, and more than one out of five haven't heard of the Holocaust, or aren't sure.


An opinion piece by Charlotte Alter, also on the February 16 episode, included the text:

Here's the thing: Baby Boomers who grew up during the Cold War were taught that socialism led to communism, and communism threatened American freedom. When they think of socialism, they think of the Soviet Union – its gulags and bad economy.

But the millennials who support Sanders, or Elizabeth Warren, didn't grow up with that history. The oldest of them turned eight the year the Berlin Wall fell. To many of them, "socialism" means universal health care, child care, and free college – like in many parts of Europe.


One suspects that George Santayana would assert that millenials DID GROW UP with [potential] knowledge of the 1950s and 1960s, whether or not they decided to learn from it.

In the IPBiz post The TODAY show of NBC began on January 14, 1952 , one had the text:

Recall back in May 2019

“Alfred E. Neuman cannot become president of the United States,” the president told POLITICO in a 15-minute telephone interview, when asked what he thought of the South Bend, Ind., mayor. Neuman’s freckled, gap-toothed face and oversized ears have for decades graced the cover of the humor magazine Mad.


"I’ll be honest. I had to Google that," he said. "I guess it’s just a generational thing. I didn’t get the reference. It's kind of funny, I guess. But he’s also the president of the United States and I’m surprised he’s not spending more time trying to salvage this China deal." (Trade talks between the U.S. and China in Washington ended Friday without an agreement, raising the prospect of an extended tariff war.)



Newsweek reported on 17 Feb 2020:

Forty-six percent of voters say they would not consider casting their ballot for a presidential candidate who calls themselves a "democratic socialist," a recent poll has found.

The primary survey, conducted by Yahoo! News and YouGov between February 12 and 13, found that only 35 percent of voters would consider voting for a "democratic socialist," while 18 percent said they were "not sure."

While the poll's findings might sound like bad news for 2020 presidential candidate Vermont Sen. Bernie Sanders, a self-proclaimed democratic socialist, the same study also put Sanders ahead of each of his Democratic rivals in a one-on-one race. In many cases, the Vermont senator was ahead by double-digit margins.


Of course, that result might be colored by what people think a democratic socialist is.

Is it a person who advocates the imposition of socialism (government control of production) by democratic means, or is it a person who wants merely to modify capitalism without imposing socialism? Salvador Allende might be considered to have been a democratic socialist. So might Francis Julius Bellamy.

Merely for interest,

Friday, February 07, 2020

Full employment

The history of the meaning of "full employment," including references to Keynes and Beveridge, may be found in
the Bloomberg article Even the Fed Struggles to Nail Down the Meaning of ‘Full Employment’

Full employment does not mean everyone who wants a job commensurate with one's skills gets such a job. Rather, the condition of "full employment" means everyone willing to work at the going wage rate is able to get a job. Thus, a scientist, working on a 10th postdoc and unable to get a permanent position, but who is able, in principle, to get a job at the going wage rate, is "employed" and counting toward the condition of "full employment." Unless, of course, such person just says no.

Of interest in the Bloomberg article:

Since 2015 the biggest factor in measuring employment gains among individuals aged 25 to 54 has been not those counted as unemployed or as discouraged, but those who say they aren’t looking for work. While that number has been coming down rapidly, the proportion of prime-working age individuals who aren’t working because they say they don’t want a job still stands at 15.9%. That’s well above the 1995-2007 average of 14.7%

And, in terms of the matter of high employment/not so high wage growth, the Bloomberg article notes:

there’s evidence that inflationary risk from the low unemployment rate may be in fact diminishing. Wage growth—which arrived late in the economic expansion and hasn’t exactly been gangbusters—is showing signs of flagging. Average hourly earnings advanced 2.9% in 2019, according to the Labor Department, well below the 3.3% pace in 2018.

At his regular press conference following the FOMC’s most recent policy meeting on Dec. 11, Powell conceded that the data weren’t consistent with the hallmarks of a fully-employed economy. “I’d like to say the labor market is strong. I don’t really want to say that it’s tight,” he told reporters.

See also

Too many lawyers with technical degrees, or too many underemployed scientists?

Startup Act 2.0: are you turning up your nose at $150K/year jobs?

Chasing purple squirrels

IAM on IBM's Kappos, not touching the political or patent pulse?
, including the text

On the layoffs themselves, from the Times Herald-Record online:

IBM fired some 5,000 U.S. workers Thursday [26 March 09] — including employees at IBM Sterling Forest in Tuxedo and IBM Poughkeepsie.

One by one, thousands of IBM workers entered managers' offices with a sense of dread to learn if they'd get the ax.

At Sterling Forest, which had been spared from a wave of firings earlier this year, an employee described the mood as grim and the building whisper quiet.

Big Blue is shifting work to India, where labor and production costs are significantly lower.
Of the piece on the economy (including mention of IBM's Rick Clark), note an irony in that IBM just had a patent application on outsourcing [20090083107, titled METHOD AND SYSTEM FOR STRATEGIC GLOBAL RESOURCE SOURCING ], which IBM now plans to withdraw.

Buttigieg's predictions

Buzzfeed noted the Buttigieg forecast:

Of the five top candidates, Buttigieg took the stage last. He briefly acknowledged the fact that the results were not known but then straight-up declared victory — to the earsplitting delight of about 2,000 supporters inside a Drake University gymnasium.

"By all indications, we are going on to New Hampshire victorious," Buttigieg said.

The crowd soon began chanting at the former South Bend, Indiana, mayor, who a year ago began introducing himself to unfamiliar voters as “Mayor Pete” as a means of navigating around his tricky last name: "President Pete! President Pete!"



Around midnight after the caucuses, Buttigieg declared victory in Des Moines, releasing a set of numbers that he said proved he would win the caucuses.

“So we don’t know all the results,” Buttigieg said. “But we know, by the time it’s all said and done: Iowa, you have shocked the nation. Because, by all indications, we are going on to New Hampshire victorious.”

But Sanders’ campaign had suggested they were pretty sure that he had won and produced its own numbers.


Wednesday, February 05, 2020

Biogen wins in Tecfidera patent case; share price goes up.

From Barron's on Wednesday, 5 Feb. 2020 :

Shares of the biotech firm Biogen jumped more than 23% midday Wednesday [Feb. 5]
after the company won a long-awaited decision in a patent case defending its
multiple sclerosis drug Tecfidera against a challenge by Mylan.


IPR2018-01403 on US 8,399,514

See also: : Biogen's Multiple Sclerosis Drug, Tecfidera, Faces Another IPR Threat

Appellant HVLPO2 wins reversal of ND Fl in OXYGEN FROG case

The outcome was reversal of the decision of the Northern District of Florida:

HVLPO2, LLC (HVO) sued Oxygen Frog, LLC and its
CEO, Scott Fleischman (collectively, Oxygen Frog) in the
Northern District of Florida for infringement of the claims
of U.S. Patent Nos. 8,876,941 and 9,372,488. A jury concluded that
claims 1 and 7 of both the ’941 and ’488 patents,
the only claims tried, would have been obvious under 35
U.S.C. § 103. After the jury verdict, HVO moved for judgment as a
matter of law that Oxygen Frog had failed to establish obviousness, or in the alternative, for a new trial
based on the admission of lay opinion testimony on the issue of obviousness.
The district court denied HVO’s motion, and HVO appealed. Because the district court abused
its discretion by admitting lay witness testimony regarding
obviousness, we reverse and remand for a new trial

Of note:

The Federal Rules of Evidence and those of Civil Procedure carefully govern expert testimony. Federal Rule of
Civil Procedure 26 requires for example that experts be disclosed to the opposing party along with a written report
which contains all opinions of the expert, the reasons and
bases for those opinions, and all facts relied upon in the
formation of the opinion. Fed. R. Civ. P. 26(a)(2). HVO was
not provided with any such disclosure of Mr. Piebes.
Oxygen Frog argues that it did not have to comply with the
Rules regarding experts because Mr. Piebes was not proffered as an expert. Oxygen Frog argues that Mr. Piebes’
testimony was lay testimony regarding Mr. Piebes’ perception and experience.
According to Oxygen Frog a lay witness should be permitted to testify that modifying one of
the prior art references to include additional claimed features would have been obvious. We do not agree, because
Mr. Piebes’ opinion testimony was directed to the central
legal and technical question at trial: whether HVO’s asserted patent claims were invalid for obviousness. This
testimony from Mr. Piebes is thus in the clear purview of
experts and lay witness testimony on such issues does not
comply with the Federal Rules of Evidence or Civil Procedure.

Mr. Piebes’ testimony, which is directed to the conclusion of obviousness and its underlying technical questions,
is the province of qualified experts, not lay witnesses. See,
e.g., J.A. 704 (“Q. Did you think that modifying the Cornette system to support two circuits to be obvious? A. Yes,
I did.”); J.A. 708 (“Q. So would you consider it obvious if you
have a pressure switch with instructions, a two pole pressure switch with instructions to wire it to turn on and off
two circuits? A. Yes.”). Mr. Piebes’ testimony was therefore

Footnote 1 is worth viewing:

Oxygen Frog also argues that any error associated
with the admission of Mr. Piebes’ testimony was harmless
“because the jury did not decide the ultimate issue of obviousness and invalidity . . . [and any] prejudice was cured
by the Court because the Court made its own independent
analysis of obvious[ness].” Appellees’ Br. at 33–34. Although the issue of obviousness is a legal one, it is an issue
that may be properly submitted to, and decided by a jury.
See R.R. Dynamics, Inc. v. A. Stucki Co., 727 F.2d 1506,
1515 (Fed. Cir. 1984).
A district court’s decision on a motion for judgment as a matter of law after a jury verdict of
obviousness is not an independent inquiry. It does not convert the jury verdict into a bench trial.

Sunday, February 02, 2020

Christine Todd Whitman on "moral compass"

From "Meet the Press" on February 2, 2020:


It's in our Constitution, no foreign interference. It's literally in our Constitution. You know, former Republican Governor Todd Whitman tweeted that Republicans have lost their moral compass. Because it's hard to follow morally what Lamar said. If in fact the president is guilty of this, "But I like his policies, so I'm not going to remove him," you're morally corrupt. Guys, it's in the Constitution, right? But how does this play politically? I don't think it hurts Donald Trump politically. I don't. I think when you look at the NBC --

Christine Todd Whitman had tweeted:

How do we function as a democracy when we acknowledge that our President is allowed to break the law and yet look the other way? Not calling witnesses shows that #Republicans have lost any moral compass. Shame on you,
#RepublicansEnablingTrump #RepublicanShamTrial (4/4)

Back in 2008, Ms. Whitman had stated:

Ms. CHRISTINE TODD WHITMAN (Former Governor of New Jersey; Former EPA Chief): If I have learned nothing else during the course of my life, I've learned to listen to my inner voice. Everyone has one. We call it different things - our moral compass, our gut feeling, following our heart. Whatever we name it, we should always pay attention to it. It makes us who we are.

Merely as an observation, to Whitman in 2008, "moral compass" was something internal to the individual, a voice telling the individual what to do. In 2020, to the extent the comment is about Senator Alexander, or like-minded individuals, the "moral compass" of Whitman refers to what a third party thinks is the right choice.

As Ben Butler observed in 1868, impeachment is a political, not a legal construct. Alexander's position to let the voters decide is a political choice.

link to Meet the Press:

link to NPR-2008: