Friday, July 31, 2020

CAFC analyzes 101 issues as to Hooke's Law in AMERICAN AXLE & MANUFACTURING V. NEAPCO HOLDINGS

This was a 101 case:

The district court granted Neapco’s motion and held
that the asserted claims are ineligible under § 101. We affirm in part and vacate and remand in part.

Hooke's Law arises:

In light of the district court’s construction of claim 1,
which requires only controlling characteristics and positioning the liner, we cannot conclude that it is merely directed to Hooke’s law. In contrast with claim 22, which as
construed recites nothing more than a desired result and
an instruction to apply Hooke’s law, we cannot say claim 1
as construed is directed to a particular natural law and
nothing more. The mere fact that any embodiment practicing claim 1 necessarily involves usage of one or more natural laws is by itself insufficient to conclude the claim is
directed to such natural laws. The district court’s opinion
suggests that the broader concept of tuning is an abstract
idea, J.A. 16–17, and the same question may be raised
about the broad concept of positioning. On appeal, Neapco
relied on both the natural law and abstract idea categories
of ineligibility in defending the district court’s decision.
See, e.g., Neapco Resp. Br. 21, 24. But the abstract idea
basis was not adequately presented and litigated in the
district court. We think that it is appropriate to vacate the
judgment as to claim 1 and its dependent claims and remand the case for the district court to address this alternative eligibility theory in the first instance

Takeda loses appeal at CAFC in colchicine case

The outcome:

Takeda Pharmaceuticals U.S.A., Inc. appeals the decision of the United States District Court for the District of
Delaware denying a preliminary injunction based on the
court’s conclusion that Takeda failed to show that it was
likely to succeed on the merits or that it would be irreparably harmed absent a preliminary injunction. For the reasons described below, we affirm.

The matters at issue:

In 2016, Takeda sued Mylan Pharmaceuticals Inc. for
patent infringement based on Mylan’s recently submitted
Abbreviated New Drug Application (“ANDA”) for a generic
version of Takeda’s Colcrys® product, which is a branded
version of the drug colchicine.
Takeda alleged that Mylan
infringed seventeen patents listed in the Food and Drug
Administration’s Orange Book as covering Colcrys® (“Licensed Patents”). See Takeda Pharm. U.S.A., Inc. v. Mylan
Pharm. Inc., No. 1:16-cv-987-RGA (D. Del.). The parties
ultimately resolved the litigation through a Settlement
Agreement and License Agreement, effective November 7,
2017 (“License Agreement”)

The opinion does mention the use of colchicine:

Both Colcrys® and Mitigare® are 0.6 mg colchicine products that are administered orally, and both are
indicated for the prevention of gout. Compare J.A. 719,
with J.A. 763.

The drug colchicine has been used to treat gout for a long time (Ben Franklin used it) but the proper dosage was not worked out in the old days.

Judge Newman's dissent begins:

This appeal is from the district court’s denial of injunctive relief, despite the explicitly agreed provision for an immediate injunction on breach of the License Agreement. I
respectfully dissent, for judicial refusal to enforce settlement terms violates fundamental principles of contract law
and commerce, and negates the strong public policy favoring settlement of litigation on agreed terms.

Thursday, July 30, 2020

At a New Jersey concert on 29 July 2020

Merely fyi, at a concert on July 29, 2020

The warning sign:



Fanduel loses appeal at CAFC

The outcome:

This is a patent case involving a system for remote
gambling. FanDuel, Inc., appeals the final written decision
of the Patent Trial and Appeal Board in an inter partes review of claims 1,
6–9, and 19 of U.S. Patent No. 8,771,058,
which found unpatentable all challenged claims except
claim 6. FanDuel, Inc. v. Interactive Games LLC,
No. IPR2017-01491, 2018 WL 6112966 (P.T.A.B. Nov. 20,
2018) (Board Decision). The Board found that FanDuel, as
petitioner, had failed to prove that claim 6 was obvious in
view of the asserted prior art. On appeal, FanDuel argues
that the Board violated the Administrative Procedure Act
by basing this finding on obviousness issues that the patent
owner did not raise in its responses. FanDuel also challenges the Board’s
factual findings regarding claim 6. Because the Board complied with the APA and its obviousness
findings are supported by substantial evidence, we affirm.

Within the decision:

Following institution, Interactive Games submitted a
patent owner response. As in its preliminary response, Interactive Games’s only argument specific to claim 6 was
that claim 6 could not be obvious over any combination including the Slot Payouts Webpage, because it was not prior
art. Interactive Games also submitted an expert declaration, but it did not rely on that declaration to rebut FanDuel’s arguments and evidence specific to claim 6.
FanDuel then filed a reply. As to the obviousness of
claim 6, FanDuel’s reply argued exclusively that the Board
should maintain its institution decision view that the Slot
Payouts Webpage is prior art.1

Footnote 1 is of interest:

After FanDuel filed its reply, the Board modified
its institution decision to comply with SAS Inst., Inc. v.
Iancu, 138 S. Ct. 1348 (2018). The parties filed supplemental papers on the initially non-instituted grounds, one
of which challenged claim 6 as obvious over the Slot Payouts Webpage in combination with two different references. In its final written decision, the Board concluded
that FanDuel did not establish the unpatentability of
claim 6 on this additional ground, Board Decision at *20,
and FanDuel has not appealed that determination.

Part of the APA issue:

To comply with the APA in an IPR proceeding, the
Board must “timely inform[]” the parties of “the matters of
fact and law asserted,” 5 U.S.C. § 554(b)(3); it must give the
parties an opportunity to submit facts and arguments for
consideration, id. § 554(c); and it must permit each party
to present oral and documentary evidence in support of its
case or defense, as well as rebuttal evidence, id. § 556(d).
See Hamilton Beach Brands, 908 F.3d at 1338; Rovalma,
S.A. v. Bohler-Edelstahl GmbH & Co. KG, 856 F.3d 1019,
1029 (Fed. Cir. 2017); Belden Inc. v. Berk-Tek LLC,
805 F.3d 1064, 1080 (Fed. Cir. 2015). “Pursuant to these
provisions, the Board may not change theories midstream
without giving the parties reasonable notice of its change.”
Hamilton Beach Brands, 908 F.3d at 1338 (citing Belden,
805 F.3d at 1080 (interpreting § 554(b)(3) in the context of
IPR proceedings)).

Of relevance:

There is nothing inherently inconsistent about the
Board instituting IPR on obviousness grounds and then ultimately finding that the petitioner did not provide preponderant evidence that the challenged claim was obvious.
This happens with some frequency. Indeed, we have encouraged the Board to “change its view of the merits after
further development of the record, . . . if convinced its initial inclinations were wrong.” TriVascular, 812 F.3d at
1068; see Magnum Oil, 829 F.3d at 1377 (“[T]he Board has
an obligation to assess the question anew after trial based
on the totality of the record.”). FanDuel does not argue that
the Board is bound by its institution decision findings, but
it contends, based on this statement from Trivascular, that
some further record development on a given issue must occur post-institution in order for the Board to change its
TriVascular cannot be read so narrowly. For one thing,
the court in TriVascular was not reviewing an IPR proceeding that lacked record development. After institution in
that case, both parties submitted expert reports regarding
the petitioner’s obviousness challenge. TriVascular, 812
F.3d at 1060. Our statements regarding the added benefits
the Board might gain from a fully developed record postinstitution simply reflected the circumstances of that case.
See id. at 1068 (explaining that at institution the Board is
considering matters “preliminarily without the benefit of a
full record” and remains “free to change its view of the merits after further development of the record”). We did not
thereby announce a condition precedent that the Board can
only change its view of the record when additional argument or evidence relevant to that change is added after institution.

Judge Dyk agreed on the procedural point, but disagreed on the substantive point:

I join Part II-A of the majority opinion rejecting FanDuel’s procedural challenge, but I respectfully dissent from
the majority’s affirmance of the Board’s obviousness determination. I would hold that the Board erred when it determined that FanDuel failed to show that claim 6 of the ’058
patent would have been obvious because the Board used an
incorrect standard for obviousness.

Yes, "common sense" appears:

The Board’s view of what was required is simply wrong.
KSR requires an “expansive and flexible approach.” KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415 (2007). “The
combination of familiar elements according to known methods is likely to be obvious when it does no more than yield
predictable results.” Id. at 416. We have repeatedly
acknowledged this aspect of KSR. See Uber Techs., Inc. v.
X One, Inc., 957 F.3d 1334, 1338 (Fed. Cir. 2020); CRFD
Rsch., Inc. v. Matal, 876 F.3d 1330, 1347 (Fed. Cir. 2017);
Wyers v. Master Lock Co., 616 F.3d 1231, 1238 (Fed. Cir.
2010). In Uber, we explained that, when the record shows
“‘a finite number of identified, predictable solutions’ to a
design need that existed at the relevant time, which a person of
ordinary skill in the art ‘ha[d] a good reason to pursue,’” “common sense” can supply a motivation to combine.
Uber, 957 F.3d at 1339–40 (alteration in original) (quoting
KSR, 550 U.S. at 421). In CRFD, we explained that “a person of
ordinary skill [provided] with a simple design choice”
to address a problem is presumed to “‘ha[ve] a good reason
to pursue the known options within his or her technical
grasp.’” CRFD, 876 F.3d at 1347 (quoting KSR, 550 U.S.
at 421).

Obviousness is particularly apparent where “the alleged novelty of the . . . patent is not related to the differences between” “‘a finite number of identified, predictable
solutions,’” identified in the prior art. Uber, 957 F.3d at
1339 (quoting KSR, 550 U.S. at 421). Because the use of a
look-up table and an ordered list was only one of a number
of finite, “predictable solutions,” it would have been obvious
to “us[e] a technique that was known to one of ordinary
skill in the art.” Id. at 1340. The Board erred by requiring
FanDuel to supply a specific motivation to use a look-up
table and ordered list in this particular context when that
choice would have been a simple alternative design choice
to a skilled artisan.

Because, as a matter of law, the Board incorrectly concluded that FanDuel failed to show that claim 6 of the ’058
patent would have been obvious, I would reverse the
Board’s obviousness determination.

Tuesday, July 28, 2020

CAFC addresses 101 issues in proposed substitute claims in IPR proceedings in UNILOC 2017 LLC v. HULU, LLC

The outcome

Appellant Uniloc 2017 LLC (“Uniloc”) appeals the U.S.
Patent and Trademark Office’s (“USPTO”) Patent Trial
and Appeal Board’s (“PTAB”) denial of its motion for rehearing in the inter partes review (“IPR”) of Uniloc’s U.S.
Patent No. 8,566,960 (“the ’960 patent”), arguing that
“[t]he PTAB misapprehended the law in concluding it is
permissible in an IPR proceeding for the [PTAB] to consider a § 101 challenge” to Uniloc’s proposed substitute
claims (“the Substitute Claims”). J.A. 597; see J.A. 596–
602 (Uniloc’s Request for Rehearing). In denying Uniloc’s
request, the PTAB concluded that it may analyze § 101
patent eligibility for proposed substitute claims. See, Inc. v. Uniloc Lux. S.A. (“Rehearing Denial”), No.
IPR2017-00948, 2019 WL 343802, at *5 (P.T.A.B. Jan. 18,
2019). The USPTO Director designated the Rehearing Denial as precedential. See id.
Uniloc timely appealed under 35 U.S.C. §§ 141(c), 142,
and 319. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(4)(A). We affirm.

CAFC tackles standing issue in trademarks in AUSTRALIAN THERAPEUTIC v. NAKED TM, LLC

The outcome

The Trademark Trial and Appeal Board determined
that Australian Therapeutic Supplies Pty. Ltd. (“Australian”) lacks standing to petition for cancellation of a trademark registration. The Board reasoned that Australian
could not show an interest in the cancellation proceeding
or a reasonable belief of damage because it had contracted
away its proprietary rights in its unregistered marks. We
disagree. An absence of proprietary rights does not in itself
negate an interest in the proceeding or a reasonable belief
of damage. We hold that a petitioner seeking to cancel a
trademark registration establishes an entitlement to bring
a cancellation proceeding under 15 U.S.C. § 1064 by
demonstrating a real interest in the cancellation proceeding and a reasonable belief of damage regardless of
whether petitioner lacks a proprietary interest in an asserted unregistered mark. Because Australian has a real
interest in the cancellation proceeding and a reasonable belief of damage, Australian satisfies the statutory requirements to seek cancellation of a registered trademark
pursuant to § 1064. We reverse and remand.

CAFC tackles Eleventh Amendment immunity in GENSETIX, INC. v. BAYLOR COLLEGE OF MEDICINE

The outcome:

The District
Court for the Southern District of Texas determined that
the Eleventh Amendment barred joinder of UT as an involuntary plaintiff. Gensetix, Inc. v. Baylor Coll. of Med., 354
F. Supp. 3d 759, 766 (S.D. Tex. 2018). The court also concluded that, under Rule 19(b), the suit could not proceed in
UT’s absence. Id. at 773–74. Accordingly, the court dismissed the suit. This appeal followed. For the reasons
stated below, we affirm-in-part, reverse-in-part, and remand.

Some relevant text:

Gensetix’s attempt to limit the Eleventh Amendment
to its text—i.e., to cases “against” a state—is contrary to
Supreme Court guidance. “[T]he sovereign immunity reflected in (rather
than created by) the Eleventh Amendment transcends the narrow text of the Amendment itself.”
Coll. Sav. Bank v. Fla. Prepaid Postsecondary Ed. Expense
Bd., 527 U.S. 666, 687 n.5 (1999). The Supreme Court has
“understood the Eleventh Amendment to stand not so
much for what it says, but for the presupposition . . . which
it confirms.” Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 54
(1996) (quoting Blatchford v. Native Vill. of Noatak, 501
U.S. 775, 779 (1991)). Importantly, the Court has made
clear that “[t]he Eleventh Amendment does not exist solely
in order to prevent federal-court judgments that must be
paid out of a State’s treasury; it also serves to avoid the
indignity of subjecting a State to the coercive process of judicial
tribunals at the instance of private parties.” Seminole Tribe, 517 U.S. at 58 (citations and internal quotation
marks omitted).

Gensetix provides no basis for suggesting that these
principles are inapplicable in cases where the state is
joined as an involuntary plaintiff. Indeed, Gensetix’s reliance on our decision in Regents of UC is misplaced. Regents
of UC involved a suit initiated by the University of California in the Northern District of California. 119 F.3d
at 1559.


Gensetix erroneously reads Regents of UC to broadly
hold that Eleventh Amendment immunity is inapplicable
in all cases where the state is a plaintiff (even if involuntarily) and there are no counterclaims against the state.
But Regents of UC did not create a rule whereby parties
may drag a sovereign into the federal court system against
its will simply because there is no claim “against” the sovereign.


In sum, neither Supreme Court case law, nor the decisions of this circuit or our sister circuits, support Gensetix’s
arguments that, absent waiver, a sovereign may be joined
as an involuntary plaintiff under Rule 19(a). Accordingly,
we affirm the district court’s conclusion that UT may not
be joined as an involuntary plaintiff.


We next consider whether the district court properly
concluded that this case cannot proceed in UT’s absence. A
district court’s analysis under Rule 19(b) is a matter of regional circuit law. Univ. of Utah v. Max-Planck-Gesellschaft zur Forderung der Wissenschaften E.V., 734 F.3d
1315, 1320 (Fed. Cir. 2013). The Fifth Circuit reviews a
district court’s decision to dismiss a suit pursuant to the
Rule 19(b) inquiry for abuse of discretion. Hood v. City of
Memphis, 570 F.3d 625, 628 (5th Cir. 2009). “Determining
whether [a suit should be dismissed in the absence of a required party] is a highly-practical, fact-based endeavor,
and . . . a district court will ordinarily be in a better position
to make a Rule 19 decision than a circuit court would be.”
Id. (internal citations omitted).7 “A district court abuses
its discretion if it: (1) relies on clearly erroneous factual
findings; (2) relies on erroneous conclusions of law; or
(3) misapplies the law to the facts.” In re Volkswagen of
Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008) (en banc)).


The proper analysis of the Rule 19(b) factors is far more
nuanced than the district court’s. As to the prejudice to
UT, the interests of UT and Gensetix are aligned. Despite
UT’s sovereign status, given Gensetix’s identical interest
in the validity of the patents-in-suit, any prejudice to UT is
greatly reduced. There is also no risk of multiple suits because, under the express terms of the parties’ agreement,
UT may not sue Baylor once Gensetix has commenced litigation. And, as an exclusive licensee with less than all substantial rights in the patents-in-suit, Gensetix cannot
enforce its patent rights without the court allowing the suit
to proceed in UT’s absence. Given this clear factual record,
we conclude that it was an abuse of discretion to find that
the suit may not proceed in UT’s absence. Accordingly, we
reverse the district court on this point.

Judge Newman disagreed, in part:

The panel majority holds that the Board of Regents of
the University of Texas System (“the University” or “UT”)
has Eleventh Amendment immunity that shields it from
involuntary joinder in this infringement suit against Baylor College of Medicine and others. Respectfully, I disagree.


Just as the State must pay its bills, it also must comply
with its contracts. The purpose of the Eleventh Amendment is to shield a State’s sovereign functions of governance from judicial oversight in federal courts. See William
A. Fletcher, The Eleventh Amendment: Unfinished Business, 75 Notre Dame L. Rev. 843, 854 (2000). When a State
agency enters into commercial transactions, it is subject to
the rules of commerce.

Friday, July 17, 2020

Appellant Mayborn loses at ITC, and then at the CAFC

The outcome

Mayborn Group, Ltd., and Mayborn USA, Inc.,
(collectively, “Mayborn”) appeal from a decision of the
United States International Trade Commission (the
“Commission”), denying its petition for rescission of a
general exclusion order prohibiting importation of products
that infringe U.S. Patent 8,028,850 (the “’850 patent”).
Certain Self-Anchoring Beverage Containers, Inv. No. 337-
TA-1092, USITC Pub. 4984, 2019 WL 2174055, at *1 (May
17, 2019) (Rescission Petition) (“Decision”). Because the
Commission did not err in denying the petition, we affirm.

The technology

The Complainants own the ’850 patent, which discloses
a self-anchoring beverage container that prevents spills by
anchoring the container to a surface by means of a “flexible
nonporous base member adapted to seal to a reference surface.” ’850 patent, Abstract. The seal is broken when the
handle is lifted, and a user can move the container normally.

Consumer Watchdog is cited:

We agree with Mayborn that it has standing to appeal.
“[A]ny person” may petition the Commission for rescission
or modification of an exclusion order, subject to certain conditions. 19 C.F.R. § 210.76(a)(1). Nonetheless, a party
seeking judicial review of a Commission determination
must establish that it presents a case or controversy for
which the federal courts have jurisdiction under Article III
of the United States Constitution. See Phigenix, Inc. v. Immunogen, Inc., 845 F.3d 1168, 1171 (Fed. Cir. 2017) (citing
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016); Hollingsworth v. Perry, 570 U.S. 693, 704 (2013)). A party has
Article III standing to appeal from a decision of an administrative agency when it has: (1) suffered a particularized,
concrete injury in fact that is (2) fairly traceable to the challenged conduct of the defendant and is (3) likely to be redressed by a favorable judicial decision. Spokeo, 136 S. Ct.
at 1547; Consumer Watchdog v. Wis. Alumni Research
Found., 753 F.3d 1258, 1261 (Fed. Cir. 2014).

Tuesday, July 14, 2020

Judge Reyna in Packet Intelligence: it was clear error for the district court to base its finding of inventiveness on the abstract idea itself

There was a mixed decision in Packet Intelligence:

NetScout Systems, Inc. and NetScout Systems Texas,
LLC (“NetScout”) appeal from the judgment of the U.S.
District Court for the Eastern District of Texas after a jury
verdict and bench trial that (1) NetScout willfully infringed
claims 10 and 17 of U.S. Patent 6,665,725 (“the ’725 patent”), claims 1 and 5 of U.S. Patent 6,839,751 (“the ’751
patent”), and claims 19 and 20 of U.S. Patent 6,954,789
(“the ’789 patent”); (2) no asserted claim is invalid under 35
U.S.C. §§ 101, 102(a), 102(f); (3) Packet Intelligence LLC
(“Packet Intelligence”) is entitled to $3.5 million in damages for pre-suit infringement; (4) Packet Intelligence is entitled to post-suit damages of $2.25 million; (5) Packet
Intelligence is entitled to $2.8 million in enhanced damages; and (6) Packet Intelligence is entitled to an ongoing
royalty for future infringement of 1.55%. Packet Intelligence LLC v. NetScout Sys., Inc., No. 2:16-cv-230-JRG,
2018 WL 4286193, at *1 (E.D. Tex. Sept. 7, 2018).

Because the district court erred in denying NetScout’s
motion for judgment as a matter of law on pre-suit damages, we reverse the district court’s pre-suit damages
award and vacate the court’s enhancement of that award.
We affirm the district court’s judgment in all other respects.

Judge Reyna's issue:

I join the majority’s reasoning and conclusions as to all
issues except the patentability of the asserted claims under
§ 101. In my view, the claims are directed to the abstract
idea of identifying data packets as belonging to “conversational flows” rather than discrete “connection flows.” While
the claimed implementations of this idea may ultimately
contain inventive concepts that save the claims, it was
clear error for the district court to base its finding of inventiveness on the abstract idea itself and its attendant benefits.

Dana Farber prevails over Ono in inventorship dispute

The outcome was affirmance of D. Mass.:

Ono Pharmaceutical Co. Ltd., Tasuku Honjo, E.R.
Squibb & Sons, L.L.C., and Bristol-Myers Squibb Co.
(collectively, “Ono”) appeal from the judgment of the United
States District Court for the District of Massachusetts after a bench trial ordering that Dr. Gordon Freeman and Dr.
Clive Wood be added to U.S. Patents 7,595,048 (“the ’048
patent”), 8,168,179 (“the ’179 patent”), 8,728,474 (“the ’474
patent”), 9,067,999 (“the ’999 patent”), 9,073,994 (“the ’994
patent”), and 9,402,899 (“the ’899 patent”) as co-inventors.
Dana-Farber Cancer Inst., Inc. v. Ono Pharm. Co., 379 F.
Supp. 3d 53 (D. Mass. 2019) (“Decision”).
Because we conclude that the district court did not err in its inventorship
determination, we affirm.


We have considered the parties’ remaining arguments
but find them unpersuasive. Because we conclude that the
district court did not err in holding Drs. Freeman and Wood
should be included as joint inventors of the ’048, ’179, ’474,
’999, ’994, and ’899 patents, we affirm the district court’s


Ono’s argument that work from Drs. Honjo, Freeman,
and Wood’s collaboration was too speculative until the October 2000 knockout mice studies is likewise misguided.
Conception is the touchstone of the joint inventorship inquiry, Sewall v. Walters, 21 F.3d 411, 415 (Fed. Cir. 1994),
and conception is complete when an idea is definite and
permanent enough that one of skill in the art could understand the invention, Burroughs Wellcome, 40 F.3d at 1228.
An inventor need not know, however, that an invention will
work for its intended purpose in order for conception to be
complete, as verification that an invention actually works
is part of its reduction to practice. Id. (citing Applegate v.
Scherer, 332 F.2d 571, 573 (CCPA 1964) and Oka v.
Youssefyeh, 849 F.2d 581, 584 n.1 (Fed. Cir. 1988)). While
Dr. Iwai’s work provided important in vivo data, in vivo
verification is not required for a conception to be definite
and permanent. See In re Isaacs, 347 F.2d 887, 889 (CCPA
1965) (holding that in vivo testing was not required to establish utility for claims to interferon). Moreover, the record is clear that Dr. Iwai’s work was conducted after Dr.
Freeman had shown expression of PD-L1 in human tumors
and Dr. Honjo had shown that PD-L1 expression causes tumor growth, so as a factual matter, PD-L1’s potential utility in treating human cancers was developed jointly with
Dr. Freeman before Dr. Iwai’s work.
Ono also argues that the Honjo patents were issued
over Drs. Freeman and Wood’s 1999 provisional patent application, so the latter contributions were thus not significant to the dispute over inventorship of Dr. Honjo’s
patents. As a factual matter, it is unclear that Drs. Freeman and Wood’s contributions to the inventions are co-extensive with the disclosure of their provisional application.
Regardless, joint inventorship does not depend on whether
a claimed invention is novel or nonobvious over a particular researcher’s contribution. Collaboration and concerted
effort are what result in joint inventorship. Eli Lilly, 376
F.3d at 1359. The novelty and nonobviousness of the
claimed inventions over the provisional application are not
probative of whether the collaborative research efforts of
Drs. Honjo, Freeman, and Wood led to the inventions
claimed here or whether each researcher’s contributions
were significant to their conception.


It is clear based on the record that Drs. Freeman and
Wood both contributed to conception of the ’474 patent. Dr.
Freeman connected the 292 sequence to PD-1 and directed
important immunohistochemistry experiments revealing
that several types of tumors express PD-L1. Dr. Wood provided Dr. Honjo with the first confirmation that the PD1/PD-L1 interaction was inhibitory, supported by experimental data. Drs. Freeman and Wood’s work on PD-L1,
Dr. Wood’s discovery that the PD-1/PD-L1 interaction inhibits the immune response, and Dr. Freeman’s discovery
of PD-L1 expression by human tumors were significant
building blocks upon which the ’474 patent is built.

Monday, July 13, 2020

During the Civil War, the New York Times exercised its Second Amendment rights

In the July 12, 2020 Sunday edition of the New York Post, Michael Goodwin has a piece "Inside the Confederate History of the New York Times. Confederates in the Closet," which appears at pages 12 and 13.

There does not seem to be much discussion of the pre-Adolph Ochs era of the New York Times.

It is worth noting how the New York Times of the Civil War era dealt with rioters.

See the IPBiz post titled -- IPBiz: Patents, Draft Riots, and Little Big Horn -- to see how the Times brandished Gatling guns.


See also

Toyota loses at CAFC; analogous art and "inherent teaching"

The outcome

Toyota Motor Corporation appeals from a Final Written Decision of the Patent Trial and Appeal Board holding
that claims 1–11 of U.S. Patent No. 8,394,618 are unpatentable as obvious. Reactive Surfaces Ltd., LLP v.
Toyota Motor Corp., No. IPR2016-01914, 2018 WL 1146318
(P.T.A.B. Mar. 1, 2018) (Board Decision). Because substantial evidence supports the Board’s obviousness determination, we affirm.

The technology

Toyota is a co-owner of the ’618 patent, which is directed to the use of lipase enzymes to remove visible fingerprints from surfaces through vaporization. The ’618 patent
teaches that if lipases are included in a coating or substrate
applied to a surface, such as a touchscreen display, these
enzymes can degrade lipids in fingerprints placed on the
coating into smaller, more volatile molecules that are more
likely to vaporize than the original lipids in the fingerprint,
making the fingerprint less visible.

Of analogous art:

We first address Toyota’s challenge to the Board’s finding that Buchanan was analogous prior art. Analogous
prior art includes art from the same field as the invention
at issue. But it also encompasses references from other
fields if such reference is “reasonably pertinent to the particular problem with which the inventor is involved.” Id.
(quoting In re Clay, 966 F.2d 656, 658–59 (Fed. Cir. 1992)).
“Whether a reference is analogous art is a question of fact.”
Id. “Generally, a skilled artisan would only have been motivated to combine analogous prior art [references].” Id.
Toyota raises multiple arguments in support of its contention that Buchanan should not be considered analogous
prior art. However, none of them speak directly to the relevant standard of review: whether the Board’s finding to
the contrary was supported by substantial evidence.2

Inherency in an obviousness context:

The inherent teachings of prior art references are
questions of fact. In re Napier, 55 F.3d 610, 613 (Fed. Cir.
1995). “[I]n order to rely on inherency to establish the existence of a claim limitation in the prior art in an obviousness analysis,” a party must show that “the limitation at
issue necessarily must be present, or the natural result of
the combination of elements explicitly disclosed by the
prior art.” PAR Pharm., Inc. v. TWI Pharm., Inc., 773 F.3d
1186, 1195–96 (Fed. Cir. 2014). This is an exacting standard which cannot be met by a showing of “probabilities or
possibilities. The mere fact that a certain thing may result
from a given set of circumstances is not sufficient.”
Hansgirg v. Kemmer, 102 F.2d 212, 213 (CCPA 1939).

Power Analytics: what is a plausible claim under FRCP 8?

The decision begins:

As courts have regularly maintained, the allegations
set forth in a complaint may not simply recite the elements
of a cause of action. A plausible “short and plain” statement
of the plaintiff’s claim, pursuant to Federal Rule of
Civil Procedure 8(a)(2), must contain putative facts that
provide fair notice and show that the plaintiff is entitled to
relief. Skinner v. Switzer, 562 U.S. 521 (2011). Although
we accept such factual allegations as true at the motion to
dismiss stage, the complainant “must plausibly suggest an
entitlement to relief, such that it is not unfair to require
the opposing party to be subjected to the expense of discovery and continued
litigation.” Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011).

Of note

Similarly, Power Analytics’ continued reference to
ETAP’s intent to “kill competition” is irrelevant. Appellant
Br. 54. Courts have regularly explained that there is no
duty to aid competitors and that “[s]tatements of an innovator’s intent to harm a competitor . . . are insufficient by
themselves to create a jury question under Section 2.” Allied Orthopedic, 592 F.3d at 1001. “Were intent to harm a
competitor alone the marker of antitrust liability, the law
would risk retarding consumer welfare by deterring vigorous competition.” Aerotec Int’l, Inc. v. Honeywell Int’l, Inc.,
836 F.3d 1171, 1184 (9th Cir. 2016). In this case, ETAP’s
memo discusses no interest in restricting competition in
the industry; it only expresses a desire to defeat ETAP’s
competitors. J.A. 1508 ¶ 85. And, it proposes no conduct
such as below-“cost” pricing, that would make no economic
sense other than for purposes of eliminating competition.


Because Power Analytics fails to allege sufficient
facts to “nudge [its] claim[] across the line from conceivable
to plausible,” its claim must be dismissed. Twombly, 550
U.S. at 570

George Will baffled in his appearance on "Meet the Press" on July 12, 2020??

Talking with Chuck Todd on July 12, 2020, George Will stated the following:

Andrew Johnson who became president when Lincoln was shot tried to
reverse or minimize the consequences of the Civil War. He was a Klan supporting
man who supported only preserving the union, not getting rid of what made the south
distinctive at that time which was slavery.


Let's look at the facts.

Abraham Lincoln exempted Tennessee from the Emancipation Proclamation; Tennessee was the only one of the eleven states of the Confederacy to be exempted. Andrew Johnson called for “immediate” emancipation in Tennessee in late August 1863. In January 1864, Johnson called a state constitutional convention to enact a reconstruction program for the state and require future voters to swear their support for an end to slavery in order to obtain the right to vote. Tennessee voters approved the new state constitution in a vote on February 22, 1865, which constitution abolished slavery. Under the guidance of war-time governor Andrew Johnson, Tennessee was the first state of the Confederacy to abolish slavery, and did so before the border slave states of Kentucky and Delaware abolished slavery (which happened in those states only because of the ratification of the 13th Amendment). Tennessee ratified the 13th Amendment on April 5, 1865, while Abraham Lincoln was still in office and before Robert E. Lee surrendered.

Contrary to what George Will said to Chuck Todd on July 12, 2020, Andrew Johnson fought to end slavery DURING the Civil War and in fact was the leader in getting Tennessee to end slavery before the Civil War itself had ended.

See Slavery Ends in Tennesee

In one of the ironies of history, the later impeachment of Andrew Johnson (tied to his attempt to remove Secretary of War Stanton) became intertwined with indictment of Jefferson Davis for treason. In the end, neither man was convicted.

See also

The Legal Status of Free Negroes and Slaves in Tennessee
Author(s): William Lloyd Imes
Source: The Journal of Negro History , Jul., 1919, Vol. 4, No. 3 (Jul., 1919), pp. 254-272
Published by: The University of Chicago Press on behalf of the Association for the
Study of African American Life and History

Friday, July 10, 2020


As to an award of attorneys fees:

We review a district court’s denial or grant of attorney
fees under § 285 for abuse of discretion. See Highmark Inc.
v. Allcare Health Mgmt. Sys., Inc., 572 U.S. 559, 561 (2014);
see also ThermoLife Int’l LLC v. GNC Corp., 922 F.3d 1347,
1356 (Fed. Cir. 2019) (“We review a district court’s grant of
attorney[] fees under § 285 for abuse of discretion.”). An
abuse of discretion occurs where a district court makes “a
clear error of judgment in weighing relevant factors or in
basing its decision on an error of law or on clearly erroneous factual findings.”
Bayer CropScience AG v. Dow AgroSciences LLC, 851 F.3d 1302, 1306 (Fed. Cir. 2017)
(internal quotation marks and citation omitted). “A factual
finding is clearly erroneous if, despite some supporting evidence,
we are left with the definite and firm conviction
that a mistake has been made.” Insite Vision Inc. v.
Sandoz, Inc., 783 F.3d 853, 858 (Fed. Cir. 2015) (internal
quotation marks and citation omitted). A district court
must “provide a concise but clear explanation of its reasons
for the fee award.” Hensley v. Eckerhart, 461 U.S. 424, 437
(1983); see In re Rembrandt Techs. LP Patent Litig., 899
F.3d 1254, 1276 (Fed. Cir. 2018).

The manner of litigation

The District Court clearly erred by failing to address
ECT’s manner of litigation and the broader context of
ECT’s lawsuit against ShoppersChoice. See generally
J.A. 1626–28. These are relevant considerations. See SFA
Sys., LLC v. Newegg Inc., 793 F.3d 1344, 1350 (Fed.
Cir. 2017) (“[A] pattern of litigation abuses characterized
by the repeated filing of patent infringement actions for the
sole purpose of forcing settlements, with no intention of
testing the merits of one’s claims, is relevant to a district
court’s exceptional case determination under § 285.”). Before the District Court was evidence that ECT sent standardized demand letters and filed repeat patent
infringement actions to obtain low-value “license fees” and
forcing settlements. See Motion for Attorney Fees at 5. For
example, ShoppersChoice provided the District Court with
evidence that, between 2011 and 2015, ECT, under its former name Eclipse, filed lawsuits against at least 150 defendants, alleging infringement of claims in the ’261 patent
and in other patents in the ’261 patent’s family. Id. at 4.
This number does not reflect the additional pre-litigation
demands made by ECT. See generally id. ECT’s demand
for a low-value settlement—ranging from $15,000 to
$30,000—and subsequent steps—such as failure to proceed
in litigation past claim construction hearings—indicates
the use of litigation to achieve a quick settlement with no
intention of testing the strength of the patent or its allegations of infringement. See id. at 4–6. Not only did ShoppersChoice provide the District Court with a list of other
court proceedings involving ECT and its demand letters involving claim 11, id. at 5, ShoppersChoice filed the True
Grit opinion with the District Court prior to its attorney fee
determination, J.A. 2155–56.
Indeed, the True Grit opinion reveals problems with
the District Court’s analysis. The opinion provided a detailed account of ECT’s practice of seeking nuisance-value
license fees. True Grit, 2019 WL 3064112, at *8–9. In the
decision, the California District Court concluded that
awarding attorney fees against ECT was appropriate, either “consider[ing] only the litigation history of ECT (as
both ECT and Eclipse IP) or the entire history of the entities that True Grit has demonstrated are related (including
Shipping & Transit[, LLC (‘S&T’)]) the [California District]
Court can discern a clear pattern of serial filings, and also
several (and presumably many more) instances of threats
of litigation, intended only to obtain quick settlements[.]”
Id. at *9. In reviewing ECT’s actions, the California District Court explained that “ECT’s immediate demand for a
low[-]value settlement, apparent willingness to reduce that
amount to avoid any challenge to its patent, and immediate
provision of a [covenant not to sue] to True Grit once the
declaratory judgment action was filed demonstrate ECT’s
‘in terrorem’ tactics—threatening litigation in hopes of a
quick settlement with no intention of ever testing either
the strength of its patent or its allegations of infringement.” Id. Moreover, the California District Court took
judicial notice of “yet another litigious entity,” S&T, “seeking nuisance value patent ‘rents’ that is helmed by many of
the same individuals that control ECT[.]” Id. at *5.

The CAFC discusses prosecution errors in the Fitbit case; written decision was not "a reasonable resolution"

The outcome of Fitbit v. Valencell:

We hold that Fitbit as a joined party has the right to
appeal the Board’s decisions pertaining to claims 3–5. We
conclude that the Board erred in its rulings concerning
claims 3–5. We vacate the decision that claims 3–5 are not
unpatentable, and remand for determination of the merits
of patentability on the grounds presented in the petition.

Of errors in patents:

The prosecution history shows this conspicuous error, for claims 4 and 5, as filed and throughout the
prosecution, correctly recited their antecedent; and, in a
claim chart filed in preparation for issuance the examiner
was told that there was “no change.” It appears that neither the applicant nor the examiner caught the error. However, the error has come to light, and the Board declined to
accept the parties’ shared view of the correct antecedent.

The preferable agency action is to seek to serve the
agency’s assignment under the America Invents Act, and
to resolve the merits of patentability. Although the Board
does not discuss its authority to correct errors, there is
foundation for such authority in the America Invents Act,
which assured that the Board has authority to amend
claims of issued patents. See 35 U.S.C. § 316(d). And precedent has provided guidelines for district courts to correct
errors in issued patents. See Novo Indus., L.P. v. Micro
Molds Corp., 350 F.3d 1348, 1354 (Fed. Cir. 2003) (“[A] district court can do so if (1) the correction is not subject to
reasonable debate based on consideration of the claim language and the specification and (2) the prosecution history
does not suggest a different interpretation of the claims.”);
see also CBT Flint Partners, LLC v. Return Path, Inc., 654
F.3d 1353, 1358 (Fed. Cir. 2011) (the district court can correct an obvious drafting error). The concept of error correction is not new to the Agency, which is authorized to issue
Certificates of Correction.


Although the Board states that
the intended meaning of the claims is “subject to reasonable debate,” we perceive no debate. Rather, the parties to
this proceeding agree as to the error and its correction. The
Board erred in declining to accept the parties’ uniform position and correct the error that claim 4 depend from
claim 3. With this correction, the rejection of claims 4 and
5 for absence of antecedent basis for “the application” disappears.
We conclude that the Agency’s treatment of this error
as the basis of a Final Written Decision of patentability is
not a reasonable resolution, and does not comport with the
Agency’s assignment to resolve patentability issues. On
the correct antecedent basis, the petition’s issue of obviousness may be resolved by the Board, in furtherance of resolution of the parties’ dispute in concurrent district court
The Board’s Final Written Decision on the ground of
“absence of antecedent” basis is vacated. On remand the
Board shall determine patentability of corrected claims 4
and 5 on the asserted grounds of obviousness.

CAFC interprets Hatch-Waxman in Genentech v. Immunex

Genentech filed two motions in the District of Delaware seeking to preclude Amgen from commercially marketing Mvasi “until such time as Amgen . . . provides notice
of its intent to commercially market such product[] pursuant to [42] U.S.C. § 262(l)(8) and 180 days have elapsed.”
J.A. 3. It argued that Amgen’s third and fourth supplements resulted in new and distinct applications that require new notices under Section 262(l)(8)(A). The district
court denied both motions, reasoning that Amgen’s October
2017 commercial marketing notice for Mvasi satisfied Section 262(l)(8)(A)’s notice requirements. Genentech appeals. We have jurisdiction under 28 U.S.C. §§ 1292(a)(1)
and (c)(1).


Our interpretation is consistent with the Supreme
Court’s decision in Sandoz Inc. v. Amgen Inc., 137 S. Ct.
1664 (2017) (Sandoz II). In Sandoz II, the Supreme Court
explained that the term “licensed” in Section 262(l)(8)(A)
simply means that the product must be licensed on the date
of the first commercial marketing, id. at 1677, not that each
supplemental application results in a new license requiring
the biosimilar applicant provide further notice. In fact,
Sandoz II recognized that “nothing in § 262(l)(8)(A) turns
on the precise status or characteristics of the biosimilar application.” Id. at 1678. Section 262(l)(8)(A)’s notice requirement is separate from Section 262(k)’s licensure
requirements. Sandoz II also explained that “Section
262(l)(8)(A) contains a single timing requirement: The applicant must provide notice at least 180 days prior to marketing its biosimilar.” Id. at 1677. Thus, Genentech’s
interpretation, which would impose several timing requirements where each supplement necessarily triggers another
notice requirement, is inconsistent with the statute and
with Sandoz II. A biosimilar applicant that has already
provided Section 262(l)(8)(A) notice regarding its biological
product need not provide another notice for each supplemental application concerning the same biological product.
Accordingly, we conclude that Amgen’s October 6,
2017, letter, which notified Genentech of Amgen’s intent to
commercially market Mvasi at least 180 days before its
July 2019 launch, satisfied Section 262(l)(8)(A).

The CAFC tackles "filing under seal" in Uniloc v Apple

The issue of sealing records from public view:

In its sealing motions, Uniloc asked the district court
to seal most of the materials in the parties’ underlying
briefs, including citations to case law and quotations from
published opinions. J.A. 414–15; see J.A. 279–87. It also
requested that the court seal twenty-three exhibits in their
entireties. J.A. 414–15; see J.A. 299–412, 422, 503. These
exhibits included matters of public record, such as a list of
Uniloc’s active patent cases. See J.A. 388.

In support of its sealing requests, Uniloc filed three
short declarations. See J.A. 413–16, 420–22, 502–04.
These declarations listed the exhibits Uniloc sought to seal
and stated that these exhibits “contain[ed] sensitive, confidential and
proprietary information related to financial
data, licensing terms and business plans with respect to
various Uniloc entities” and that “disclosure of this extremely sensitive
information would create a substantial
risk of serious harm to the Uniloc entities.” J.A. 503; see
also J.A. 414–15, 422.


On November 28, 2018, the Electronic Frontier Foundation (“EFF”)
contacted counsel for Uniloc, asserting that
its proposed redactions were excessive. J.A. 768.3 EFF
stated, moreover, that if the documents at issue were not
“re-filed consistent with the public’s right of access,” it
would move to formally intervene in the case and “ask the
court to . . . unseal improperly withheld material.” J.A.
768. After Uniloc declined to revise its sealing requests,
EFF filed a motion to intervene for the purpose of opposing
Uniloc’s sealing motions. J.A. 53.
On January 17, 2019, the district court denied, in full,
the administrative motions to seal, stating that Uniloc had
failed to provide “a compelling reason to justify sealing.”4
Sealing Order, slip op. at 1. According to the court, Uniloc’s
“generalized assertion of potential competitive harm
fail[ed] to outweigh the public’s right to learn of the ownership
of the patents-in-suit—which grant said owner the
right to publicly exclude others.” Id. at 2.
The court stated, moreover, that Uniloc’s request to
seal covered an “astonishing” amount of material. Id. In
support, it noted that Uniloc sought “to seal the majority of
exhibits and large swaths of briefing and declarations,” including
portions of Apple’s motion to dismiss “that simply
quote[d] Federal Circuit law.” Id.

The collateral order doctrine

As a general rule, the jurisdictional reach of the
federal appellate courts extends only to “final decisions of
the district courts of the United States.” 28 U.S.C. § 1291.
The collateral order doctrine, however, provides a “narrow
exception” to the final judgment rule, permitting appellate
review of “trial court orders affecting rights that will be
irretrievably lost in the absence of an immediate appeal.”
Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 430–31
(1985) (citation and internal quotation marks omitted); see
also Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
546 (1949) (explaining that there is a right to appeal a
“small class” of orders “which finally determine claims of
right separable from, and collateral to, rights asserted in
the action, too important to be denied review and too independent of the
cause itself to require that appellate consideration be deferred until the whole case is adjudicated”).
To fall within the collateral order doctrine, “an order
must at a minimum satisfy three conditions: It must [1]
‘conclusively determine the disputed question,’ [2] ‘resolve
an important issue completely separate from the merits of
the action,’ and [3] ‘be effectively unreviewable on appeal
from a final judgment.’” Richardson-Merrell, 472 U.S. at
431 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463,
468 (1978)); see Apple I, 727 F.3d at 1220. These requirements are met here.

Public access to judicial records

“It is clear that the courts of this country recognize a
general right to inspect and copy public records and documents, including judicial records and documents.” Nixon
v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (footnotes omitted); see Ex parte Uppercu, 239 U.S. 435, 439–41
(1915). This right of access supports “the citizen’s desire to
keep a watchful eye on the workings of public agencies.”
Nixon, 435 U.S. at 598; see also Metlife, Inc. v. Fin. Stability
Oversight Council, 865 F.3d 661, 665 (D.C. Cir. 2017)
(“Like the First Amendment . . . the right of inspection
serves to produce an informed and enlightened public opinion.” (citation and internal quotation marks omitted)).
There is a strong presumption in favor of access to documents filed with a court. See Ctr. for Auto Safety, 809
F.3d at 1096; see also In re Violation of Rule 28(D), 635 F.3d
1352, 1356 (Fed. Cir. 2011). “The presumption of access is
‘based on the need for federal courts, although independent—indeed, particularly because they are independent—
to have a measure of accountability and for the public to
have confidence in the administration of justice.’” Ctr. for
Auto Safety, 809 F.3d at 1096 (quoting United States v.
Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)); see also Valley
Broad. Co. v. U.S. Dist. Ct. for the Dist. Nev., 798 F.2d 1289,
1294 (9th Cir. 1986) (emphasizing that the presumption of
public access “promot[es] the public’s understanding of the
judicial process and of significant public events”).

As to reconsideration

We do not find this argument persuasive. Under Local
Rule 7-9, a litigant, in order to obtain leave to file a motion
for reconsideration, must establish:
(1) That at the time of the motion for leave, a material difference in fact or law exists from that
which was presented to the Court before entry of
the interlocutory order for which reconsideration is
sought. The party also must show that in the exercise of reasonable diligence the party applying for
reconsideration did not know such fact or law at the
time of the interlocutory order; or
(2) The emergence of new material facts or a
change of law occurring after the time of such order; or
(3) A manifest failure by the Court to consider material facts or dispositive legal arguments which
were presented to the Court before such interlocutory order.
N.D. Cal. Civ. Local R. 7-9(b).

A backwards argument

Uniloc further maintains that the district court erred
in refusing to redact the specific dollar amounts and financial terms in certain agreements because Apple’s motion to
dismiss for lack of subject matter jurisdiction “‘did not directly depend’” on this information. Br. of Appellants 26
(quoting Reconsideration Order, 2019 WL 2009318, at *2).
In support, it argues that although Apple alleged that
“Uniloc was . . . required to license its patents for at least a
certain amount of money by a certain deadline,” it was irrelevant “whether the threshold was $10,000,000 or $10.”
This argument has it backwards. See Kamakana, 447
F.3d at 1181–82. The district court was not required to seal
any information that was not “directly relevant” to its ruling on Apple’s motion to dismiss; instead, all filings were
presumptively accessible, and it was Uniloc’s duty to provide compelling reasons for shielding particular materials
from public view. See, e.g., Ctr. for Auto Safety, 809 F.3d
at 1098 (“[O]ur precedent . . . presumes that the compelling
reasons standard applies to most judicial records.” (citations and internal quotation marks omitted)); Kamakana,
447 F.3d at 1182 (“The judge need not document compelling reasons to unseal; rather the proponent of sealing
bears the burden with respect to sealing.”).


Trial court judges, heavily burdened with the task of
resolving complex legal and factual disputes, must also
serve as the gatekeepers for vast quantities of information.
They should not be forced to spend large swaths of their
time struggling to rein in overzealous efforts to seal. See
Reconsideration Order, 2019 WL 2009318, at *2 n.2 (“Because of the frequently overbroad requests to seal arising
in patent litigation today, the Court . . . must now deal with
these burdensome motions to seal on a regular basis.”); see
also Takeda Pharm. U.S.A., Inc. v. Mylan Pharm., Inc., No.
cv-19-2216-RGA, 2019 WL 6910264, at *1 (D. Del. Dec. 19,
2019) (“In my experience, corporate parties in complex litigation generally prefer to litigate in secret. To that end,
discovery is over-designated as being confidential, pleadings and briefs are filed under seal, redacted versions of
sealed documents are over-redacted, requests are made to
seal portions of transcripts of judicial proceedings, and parties want to close the courtroom during testimony.”); Cardiac Pacemakers, Inc. v. St. Jude Med., Inc., No. 1:96-cv1718-DFH-TAB, 2007 WL 141923, at *2 (S.D. Ind. Jan. 16,
2007) (“[A]ll too frequently this Court finds itself reviewing
overbroad and unsupported requests to file documents under seal. Lest practitioners suspect the Court is overstating its case, counsel in one case recently filed a motion
seeking to file excerpts from the Federal Register under

What is the truth about Covid testing in New Jersey in July 2020?

From a post on on July 10, 2020:

Officials have said the transmission rate and positivity rate are the two most important figures to measure how the virus is currently spreading across the state, helping determine when restrictions can be lifted.

“And feeding into both of these metrics are the results of the coronavirus tests being recorded every day,” Gov. Phil Murphy said at his latest coronavirus briefing in Trenton. “The more testing, the more precise we can get these numbers.”


In fact, the two major testing sites in New Jersey closed on June 30, 2020:

The drive-through coronavirus testing sites at Bergen Community College in Paramus and the PNC Bank Arts Center in Holmdel will close June 30 as federal support ends.

But the Federal Emergency Management Agency and the U.S. Department of Health and Human Services will continue to support ongoing testing at local pharmacies through at least the end of August.

As to locales for testing in Somerset County, New Jersey, one had the RVCC site, once serving residents of Hunterdon and Somerset Counties, but now only for Somerset County residents. Initially, the RVCC site would NOT test asymptomatic individuals:

Raritan Valley Community College, 118 Lamington Road. COVID-19 drive-thru testing site. Residents can make an appointment by visiting here or call (908) 237-7150. Testing will be by appointment only and a valid doctor’s prescription is required. Initially, the test site at RVCC will be open from 10 a.m. to 1 p.m. on certain dates. Check here for updates. Testing is free and only available to Hunterdon and Somerset County residents, age 5 and older, with symptoms, such as fever, dry cough and shortness of breath. Must have a written doctor’s authorization and show proof of residency, such as a valid driver’s license or state-issued identification.

This restriction was lifted, BUT the RVCC site has stopped taking appointments. Thus, on Wednesday, July 8, 2020, an internet submission did get an acknowledgement:


Date: Wed, Jul 8, 2020 10:18 AM
Subject:Somerset County Survey #XXXX - Please validate your email address


Thank you for your submission. We are working quickly to schedule your appointment. Soon you will receive a text and email with your appointment information.


An inquiry on July 9 produced no response


Just to confirm, I have received no scheduled appointment.

Sent July 9 at 1:20pm


No response has been given as of July 10.

Contacting the CVS site on Union Ave., as an asymptomatic 70 year old gives the following:

Thus, while Governor Murphy speaks about the value of testing, New Jersey is in fact a "testing-unfriendly" state.

We will talk about how the decisions on testing in New Jersey impact the accuracy, and significance, of the transmission rate and positivity rate in a separate post.

UPDATE on 16 July 2020:

The RVCC site was open on July 16, 2020.

Note also: