Sunday, January 31, 2021

Getting a Covid vaccination in New Jersey: issues with the state registration/appointment system as of January 31, 2021

Further to the IPBiz post on Covid vaccinations in Somerset County [Real Story], one notes that the New Jersey Covid registration system was savaged by NBC Nightly News on Saturday, January 30, 2021, with text including:

When the New Jersey vaccine registration system failed, residents grappled with calling 100 different phone numbers and checking 63 unique websites for appointments. Despite supply issues, mass vaccination sites continue to open in large cities such as Denver and New York City

The Newark Star-Ledger on January 31, 2021 ran a cover story on the inadequacies of the registration/appointment system, which illustrated that the problem was far more than residents failing to master it. [See also below]

P. Kenneth Burns of WHYY has a post titled How to register for the COVID-19 vaccine in New Jersey , which includes text

If you’re not computer-savvy, Fisher suggests calling the state’s COVID-19 Vaccine Call Center at 855-568-0545. Starting Sunday, Jan. 31, residents will be able to use the hotline to make appointments. When the hotline first went live Monday, Jan. 25, there was a lot of interest, causing extremely high call volume — agents fielded 58,000 calls in the first four hours. Those issues have since been resolved, Fisher said.

I phoned the 0545 number on January 31, 2021, and got a recorded message, followed by a hangup. The recorded message did acknowledge difficulties with the scheduling/appointment system, which were, according to the message, still being worked on.

Burns did reference the NJ Spotlight article [see also previous discussion in IPBiz]

The short answer is that not all of the scheduling systems talk to one another, so if you registered with a county or pharmacy website, the state website will never know. As NJ Spotlight recently reported, only about 5% of all vaccine sites are using the state’s online registration system to schedule appointments, so even if you pre-register through the state, you will likely still need to make an appointment with your local vaccine site separately.

As things stand now, this is a VERY IMPORTANT POINT for New Jerseyans to understand.

As to the New Jersey state registration/appointment system, the Newark Star-Ledger, on Sunday, January 31, has significant coverage of the problems. The text begins as follows

Saturday, January 30, 2021

Getting a Covid19 VAX appointment in Somerset County NJ on January 30, 2021: mission not possible

Utilizing the state Covid19 VAX system [ ] on January 30, 2021 [after it supposedly was fixed], one finds Somerset County residents are "out of luck." The result within 25 miles is

No COVID-19 vaccine clinics were found within those search options. Please change your search options and try again. Note: New clinics are added throughout the week, so please check again if you do not find a location today.

The one result within 50 miles is

1. International High School 32.8 miles 200 Grand St, Paterson, NJ 07501

BUT one from Somerset County cannot schedule an appointment because:
Currently this location is restricted to those in Passiac county.

[Note: spelling is NOT a strong point of the system, either. That is, the county name is Passaic.] If one expands to 100 miles, one gets the 50 mile result:

1. International High School32.8 miles 200 Grand St, Paterson, NJ 07501

Thus, as to the state Covid registration/appointment system on January 30, 2021: not a chance for VAX

The real story on Covid19 vaccinations in Somerset County

Following up on an IPBiz post on January 28, 2021 of the bizarre behavior of the State of New Jersey Covid website telling Somerset County residents that they were not Somerset County residents (Covid in Somerset County )
[See also entry by Wan-Ling Tuan at which states -- I am registered and received notification to book my vaccine. I found available site today. But system error keep complaining I am not Somerset county residence, The state help line - there is no help - only replay the system messages, no live person --]

one is a bit surprised to see the cover article in the January 29, 2021 issue of Courier News by one Mike Deak suggesting the problems are with Somerset County residents who don't understand the registration system and that the problem is just a supply issue. Blaming the customer is never a good approach in business, and, here, these statements are not true. [See scan of Courier News article below]

Apart from the silliness of denying Somerset County residents appointments because they are not Somerset County residents, there have been other issues.

Alexis Tarrazi of the Patch reported on January 29, 2021: A statewide error in the state's COVID vaccination pre-registration and scheduling system is causing double bookings and other issues. Alexis stated: Donna Leusner, a spokeswoman with the Department of Health, said the state "worked with our vendor overnight to address it. We continue to monitor the system. We regret the confusion this technical issue caused."

Karen Price Mueller of had an extensive post about the situation in Gloucester County:

Gloucester County officials said a problem with the state’s vaccine registration system caused double bookings for appointments to get the COVID vaccine on Thursday. The county said the New Jersey Vaccine Scheduling System (NJVSS) “glitched” around 10 a.m. on Thursday. The result was a cancellation of appointments for the afternoon session, flooding the state’s system with seemingly open appointments that residents claimed, the county said. People who had booked earlier received emails about the cancelations or found as they tried to use their state-provided QR codes that they “had been rendered useless,” the county said. “This then allowed open appointments to be filled with new individuals through NJVSS. Therefore, creating a double booking of appointments.” “Now for every one one vaccine we have, we have two individuals with appointments,” the county said. “The Gloucester County Mega Site is now dealing with yet another catastrophe we did not create.” But, no one was turned away and the mega-site was able to accommodate the double-bookings, said Chad Bruner, the Gloucester County administrator. Bruner said those who came in for morning appointments had no issues, but when the site reopened for its afternoon session, it was clear something had happened with the state’s registration system. The site had been scheduled to give about 600 doses in the afternoon, he said, but it may have given more than 1,000 by the time the session ended because of the double-bookings. “We’re not telling them to go home,” he said. “It’s not the right thing to do. We have the supply.” Bruner said by using the appropriate needles, administrators have been able to draw more than five doses per vaccine bottle. “Sometimes even up to seven,” he said. Bruner said he wasn’t sure if the system would have problems for Friday’s scheduled doses, and the Department of Health didn’t immediately respond to inquiries about the problems. But two people reported to NJ Advance Media on Thursday evening that they had booked last minute appointments for Friday, but around an hour later, they received emails saying the bookings were canceled. Bruner said people who were not originally scheduled for Friday and received cancellations should probably stay home if they could afford to wait, but “if they have documentation (about the appointments) we probably won’t turn them away.” “I’m not going to penalize anyone if it wasn’t their fault,” he said. The Department of Health didn’t immediately respond to questions about the reported scheduling glitch.

See also a January 22, 2021 story by the Philadelphia Inquirer at

The Somerset County Covid website no longer mentions the software scheduling problem, but does say this:

All COVID-19 vaccination appointments will be scheduled at The Somerset County Department of Health is working in coordination with the Centers for Disease Control and Prevention (CDC), the New Jersey Department of Health, and other federal, state, and local partners in planning for the distribution of COVID-19 vaccine when it becomes available. For more information on COVID-19 vaccination, please click here. Register for the COVID-19 Vaccine Everyone interested in receiving the COVID-19 vaccine is asked to pre-register in the state’s vaccination registration portal at: Registered individuals will receive a follow-up email when they can make an appointment. It is important to note: As demand and supply of vaccine changes, this information is subject to change. Please check back often for the most up-to-date information.


See also article in NJ Spotlight at including text: Regardless of how much of the vaccine is getting to New Jersey, members of the public have complained about the lack of access to immunization sites, directing much of their anger at the state’s online registration program, the New Jersey Vaccine Scheduling System. Residents were encouraged to sign up through the portal, but many found it nearly impossible to secure an appointment through the system.
That’s because less than 5% of the vaccine sites open to the general public — or nine of 205 — are connected to the state registration database, according to state records. Most locations are instead requiring people to sign up through existing corporate websites or new links created for the purpose.
Murphy and state Health Commissioner Judy Persichilli declined to say why the state did not opt for a unified system from the start when asked at Wednesday’s media briefing or offer details on what is being done to improve the operation. Instead, they underscored the challenges that come with building a new infrastructure to handle an unprecedented task.

The Courier News story of January 29, 2021:

Friday, January 29, 2021

The CAFC debates the meaning of the word "each" in Keynetik v. Samsung

The panel agreed on a point of legal error by the Board. From Judge O'Malley's separate opinion:

I agree with the majority that the Board’s analysis of claims 4, 7, 15, and 18 was fundamentally flawed because it applied an incorrect legal standard. As to those claims, the Board stated that Samsung had no burden to establish a reasonable expectation of success from combining the prior art references at issue. We have held the exact opposite. Intelligent Bio-Sys., Inc. v. Illumina Cambridge Ltd., 821 F.3d 1359,1367–68 (Fed. Cir. 2016) (It is the petitioner’s “burden to demonstrate both ‘that a skilled artisan would have been motivated to combine the teachings of the prior art references to achieve the claimed invention, and that the skilled artisan would have had a reasonable expectation of success in doing so.’”). The Board’s error on this point could not be clearer.


Finally, without any support in the intrinsic record, the Board found that the orientation detector limitation’s use of the word “each” in the phrase “detect orientation towards gravity for each slow motion phase” can refer to “one or more” slow motion phases. Board Decision, 2019 Pat. App. LEXIS 13034, at *22–24. In reaching this construction, the Board credited the conclusory opinion of Samsung’s expert, who testified that, “in the context of the claims, ‘each’ can refer to one or more.” Id. at *23–24. We have recognized, however, that “conclusory, unsupported assertions by experts as to the definition of a claim term are not useful to a court.” Phillips v. AWH Corp., 415 F.3d 1303, 1318 (Fed. Cir. 2005). Indeed, Samsung presented no evidence to support its interpretation of “each,” and conceded during oral argument before the Board that it had not “tried that hard” to find any evidence. J.A. 729 at ll. 4–9.

The Board then provided its own example of “each” meaning “one or more,” stating that, “if one addressed a room full of people and asked each WW1 veteran to stand and only one person stood, each WW1 veteran would have stood.” Board Decision, 2019 Pat. App. LEXIS 13034, at *24. But we have expressly recognized that the plain meaning of “each” refers to “two or more” people or things. Alcohol Monitoring Sys., Inc. v. Actsoft, Inc., 414 F. App’x 294, 299–300 (Fed. Cir. 2011) (“We agree with the district court that the plain meaning of ‘each’ is defined as ‘being one of two or more distinct individuals . . . .’” (quoting Merriam-Webster’s Collegiate Dictionary, 390 (11th ed. 2007)). That the Board came up with an example where the term “each” might be used differently cannot overcome its general usage in the English language, especially where the Board’s example is grammatically suspect. The proper phrasing, using the Board’s example, would ask any or all WW1 veterans to stand, which would account for the possibility of there being only one (or none).

The Board’s construction, which the majority again accepts, is inconsistent with the intrinsic record and defies common English usage of the word “each.” In my view, the broadest reasonable interpretation of the “orientation detector limitation” consistent with the specification is detect orientation (singular) of two or more slow motion phases.

Thursday, January 28, 2021

Secondary considerations in L'Oreal case

From the decision:

The Board then considered, at length, Olaplex’s submissions concerning objective indicia of nonobviousness, addressing commercial success, long-felt and unmet need, unexpected results, industry praise, and copying. J.A. 48– 76. For commercial success, long-felt need, and unexpected results, the Board “g[a]ve little weight” to Olaplex’s evidence. J.A. 61, 68, 71, 73. For industry praise, the Board did “not find that the record here demonstrates industry praise for the subject matter claimed in the ’954 patent.” J.A. 76 (emphasis added). And for copying, the Board did “not give substantial weight to” the copying evidence. J.A. 59. While stating that “one plausible takeaway is that” L’Oréal copied information in a then-confidential Olaplex patent application disclosing maleic acid in a bleaching mixture, J.A. 54, the Board found that the evidence (including a laboratory notebook) showed that L’Oréal had independently described “its own maleic-acid additive for a bleaching composition before receiving” the Olaplex patent application, J.A. 56. In the end, the Board concluded, the objective indicia did “not outweigh the evidence that claim 1 is unpatentable” based on Pratt and Tanabe. J.A. 76. Claims 2–13, 19– 23, and 29–30 fell with claim 1. J.A. 76–77, 84.

HOWEVER, there was a matter of issue preclusion:

we must accept that “L’Oréal would not have developed products using maleic acid without having access to Liqwd’s confidential information.” Liqwd, Inc. v. L’Oréal USA, Inc., 941 F.3d 1133, 1136 (Fed. Cir. 2019) (’419 Decision); id. at 1138–39 (affirming Board finding that “L’Oréal used maleic acid because of L’Oréal’s access to Liqwd’s non-public information, rather than because of L’Oréal’s independent development” (cleaned up)). We conclude, however, that substantial evidence supports the additional nexus-related facts that the Board in this matter found regarding copying, and given those facts, we further conclude, in conducting the ultimate legal analysis of obviousness based on all supported facts, that claims 1– 13, 19–23, and 29–30 are unpatentable for obviousness.

As a review, "issue preclusion," prohibits relitigation of factual or legal issues that have been "actually and necessarily decided" in earlier litigation. Although one does not know the CAFC's meaning of the text cleaned up, it might appear that collateral estoppel (issue preclusion) was not applied here, so that the text "we must accept" is a bit problematic.

Can the presence of additional nexus-related facts trump an earlier factual finding actually and necessarily decided?

Covid19 in Somerset County, New Jersey

In New Jersey on 28 January 2021, from the Somerset County Covid site:

A state-wide error in the state’s COVID vaccination pre-registration and scheduling system has caused many Somerset County residents utilizing the state system to be incorrectly informed they are not Somerset County residents. As noted, this is a state-wide error and the state is working to fix it as quickly as possible
Now scheduling TESTING for Wednesday January 27th - 10 am to 1 pm. In preparation for COVID-19 vaccinations, Somerset County will end testing at RVCC [Raritan Valley Community College] on January 27th

All COVID vaccination appointments are filled at this time (1/25/2020). We will announce additional appointments on this website as they become available. Please view the COVID Vaccination FAQ for more information. Somerset County will be participating in the distribution of COVID-19 vaccinations throughout the next six months, with the rollout going initially to the CDC’s Phase 1 categories of health care staff, first responders, essential workers, and vulnerable populations Following Phase 1, vaccinations will be rolled out to the general public, as well. Any New Jersey resident or worker interested in receiving a vaccine in those categories or in the general population should register at to be notified when they will be eligible to attend a vaccination clinic during the roll-out. Pre-registration does not include an appointment, but an interest in being vaccinated. Once pre-registered, appointments will be sent based on your priority group and eligibility to receive vaccine. The length of Phase 1 and the timing of Phase 2 vaccinations for the general public will be determined by the number of vaccination requests and the availability of vaccine, but anyone can pre-register immediately.


The error on the Covid19 appointment website is particularly disturbing, because the website indicates that the RVCC vaccination site at RVCC is taking appointments and one is allowed to pick a time. Only after the registered resident picks a time (and enters an anti-robot code), is the unsuspecting resident falsely told that the resident is ineligible because the resident is NOT a resident of the county. Apart from that glitch, the Somerset County website, on January 28, is only "up to date" as of January 25.

The state of New Jersey website incorrectly indicates that RVCC is taking appointments, as seen in the following screenshot:

The response: This form could not be submitted for the following reasons:

Currrently this location [ie RVCC] is restricted to those in Somerset county.

A comment was sent to the state Covid19 website, describing the issues:

Monday, January 25, 2021

Prioritizing Covid19 vaccinations?

The following article about Covid19 vaccinations appeared on page 4A of the January 25, 2021 issue of the Courier-News:

Although the issue of priority is real, this evokes something of "deck chairs on the Titanic," with the exception that, unlike Covid19 vaccinations in Somerset County, New Jersey, there really were deck chairs on the Titanic.

The lead story on NBC Nightly News with Lester Holt on 25 January 2021 was indeed about the difficulty in getting vaccine appointments (and about not getting a vaccination for an already scheduled appointment.)

Separately, there were pieces on Dr. Fauci recommending "double masking" and on the new Covid mutants. Of the latter, a math biologist from Great Britain asserted that the new mutants were 70% more likely than the earlier strain to infect someone through a short, chance encounter.

Saturday, January 23, 2021

Getting vaccinations for Covid-19 in Somerset County, New Jersey

The Courier-News had the following article on page 2A of the newspaper of January 23, 2021:

Sounds good, right?

BUT, if e person eligible for vaccination goes to the covid vaccine map on January 23, 2021, and enters a starting point near the Bridgewater, NJ municipal building and a radius of 25 miles (covering all the locations mentioned in the Courier News article), one gets: Covid-19 vaccinations will be made available in phases to ensure those populations most at risk are prioritized. Based upon your current status, you are currently eligible to schedule your appointment for vaccination. Please select a COVID-19 Vaccine clinic location by clicking on the name from the list below.

BUT, one gets NO LIST, but rather the message:

No COVID-19 vaccine clinics were found within those search options. Please change your search options and try again. Note: New clinics are added throughout the week, so please check again if you do not find a location today.

At the ShopRite site, one finds:

Due to overwhelming demand, our COVID-19 Vaccine appointment schedule is FULL — there are currently no new appointments available. Please check back at a later date. We are working hard to secure additional vaccine and open appointment availability. We are sorry for the inconvenience and appreciate your patience.

Tuesday, January 19, 2021

Judge Newman makes procedural points in analyzing Hytera, an appeal of IPR2018- 00176. _

Some procedural points from the case:

In its Reply filed in the PTAB, Hytera elaborated its argument concerning Stubbs, stating that Stubbs discloses the use of incompatible protocols as “exemplified by the encapsulation/decapsulation conversions in the GGSN and SGSN.” Reply at 18. Hytera’s Reply cited additional quotations from the Stubbs reference, that “flowed directly from its contention [in the Petition] that converters evidence incompatible protocols.” Hytera Br. 51. The Board declined to consider this information, calling it “new argument advanced in the Reply” without any reason “why this argument could not have been made in the Petition.” Board Op. at *11–12. It was error for the Board to refuse to consider information filed in Reply, although it was relevant to Motorola’s Response, for the Board is intended and expected fully to explore the issues, to justify the estoppel that Congress included in the America Invents Act. In the interest of expediency, we have reviewed the information that the Board refused to consider. We conclude that this information does not change the result. The question of “waiver” Hytera argues that the Board adopted an argument that had been waived by Motorola: the argument that the inter-ward interface of Grube “refers merely to a connection between ward controllers” and thus does not function as a group controller. Hytera Br. 53–54.

Hytera acknowledges that this argument was presented by Motorola in its preliminary response, but Hytera states that Motorola did not develop the argument, and therefore that it could not be relied on by the Board. We do not discern error or inequity on the facts hereof, for the issue was initially mentioned by Motorola, and the record does not show that as to this aspect Hytera was foreclosed from stating its position.

HAAG-STREIT AG loses appeal at CAFC in case involving state of blue LED art

The matter of the blue LED arises in the case:

Second, the Board found that Dr. Jiao’s testimony did not support the position that one of ordinary skill in the art would have understood Longobardi to implicitly disclose the presence of a blue LED. In particular, the Board found that none of Dr. Jiao’s testimony “actually addresses the state of the art of blue LEDs in 1992, which, as acknowledged by [Haag-Streit], is the relevant point in time to assess the alleged implicit disclosures in Longobardi.” Board Decision, 2019 Pat. App. LEXIS 13545, at *33. The Board explained that, although Dr. Jiao’s original declaration filed with the IPR petition stated that “one of ordinary skill in the art ‘would understand Longobardi’s teaching of using fluorescein for imaging purposes [to] necessarily mean[] that the instrument emits blue light’” he failed to “adequately support the view that one of ordinary skill in the art would have understood Longobardi to implicitly disclose the presence of a blue LED.” Id. at *33. Indeed, the Board noted that Dr. Jiao’s testimony on this issue “makes no reference to a blue LED.” Id. On appeal, Haag-Streit argues that the Board’s finding that “none of Dr. Jiao’s testimony supports the contention that Longobardi implicitly discloses a blue LED” is inconsistent with findings the Board made in its Institution Decision. Appellant’s Br. 34. But it is well established that “the Board is not bound by any findings made in its Institution Decision.” TriVascular, Inc. v. Samuels, 812 F.3d 1056, 1068 (Fed. Cir. 2016) (explaining that, at the institution phase, “the Board is considering the matter preliminarily without the benefit of a full record”). In any event, we disagree with Haag-Streit’s assertion that the Board’s findings in the Institution Decision are inconsistent with those in its final written decision. In the Institution Decision, the Board never said that Dr. Jiao’s testimony supports the position that one of ordinary skill in the art would have understood Longobardi to implicitly disclose the presence of a blue LED. Instead, the Board acknowledged that “Petitioner (via Dr. Jiao) [took] the position that one of ordinary skill in the art would view Longobardi as at least implicitly teaching or suggesting the use of a blue LED to generate blue light energy,” while “Patent Owner (via Dr. Lebby) [took] the position that blue LEDs did not exist at the time for medical use and that one of ordinary skill in the art would not have used a blue LED for medical use.” Haag-Streit AG v. Eidolon Optical, LLC, No. IPR2018-01311, 2019 WL 171684, at *10 (P.T.A.B. Jan. 11, 2019). The Board found that this conflicting testimony created a genuine issue of material fact which, at that stage in the proceedings, had to be viewed in the light most favorable to Haag-Streit. Id. In its final written decision, the Board carefully considered Dr. Jiao’s declarations, but agreed with Eidolon’s evidence and argument in finding that his testimony failed to demonstrate that one of ordinary skill in the art would have understood Longobardi to implicitly disclose the presence of a blue LED. Board Decision, 2019 Pat. App. LEXIS 13545, at *31–33. “[I]t is not for us to second-guess the Board’s assessment of the evidence.” Velander v. Garner, 348 F.3d 1359, 1378–79 (Fed. Cir. 2003) (“Our task is to determine whether substantial evidence supports the conclusion chosen by the Board.”). Finally, the Board found that Haag-Streit did not carry its burden to establish that “a blue LED with sufficient power output to cause sodium fluorescein to fluoresce existed as of February 5, 1992.” Board Decision, 2019 Pat. App. LEXIS 13545, at *34. On this point, Eidolon presented expert testimony that, “[a]t the time of Longobardi, 1992, an LED capable of generating blue light energy suitable for diagnostic medical applications such as retinal angiography simply did not exist.” Id. at *34–35. The Board found that this evidence shifted the burden of production to Haag-Streit to establish that blue LEDs sufficient to excite sodium fluorescein existed as of February 5, 1992. Id. at *35–36. Haag-Streit’s expert, Dr. Jiao, admitted that he did not know the specific amount of power output needed for an LED to cause sodium fluorescein to fluoresce

Sunday, January 17, 2021

iLife Technologies loses appeal at CAFC on 101 issue

The outcome:

iLife Technologies, Inc., appeals a Northern District of Texas order holding that claim 1 of U.S. Patent No. 6,864,796 is directed to patent ineligible subject matter under 35 U.S.C. § 101. We affirm

Of note:

While we agree with the district court that these claims are directed to the abstract idea of gathering, processing and transmitting data, the district court erred to the extent that it incorporated conventionality of claim elements at step 1. See, e.g., J.A. 26 (“Nothing in claim 1, understood in light of the specification, requires anything other than conventional sensors and processors performing ‘conventional activit[ies] previously known to the industry.’” (quoting Alice, 573 U.S. at 225 (quoting Mayo, 566 U.S. at 73))). The conventionality of the claim elements is only considered at step two if the claims are deemed at step 1 to be directed to a patent ineligible concept, such as an abstract idea. Alice, 573 U.S. at 217, 225. A claim is not directed to an abstract idea simply because it uses conventional technology. This claim is, however, directed to an abstract idea because it contains nothing more than the idea of gathering processing and transmitting
As the district court held, the elements of claim 1, considered individually and as an ordered combination, fail to recite an inventive concept. J.A. 28. Aside from the abstract idea, the claim recites only generic computer components, including a sensor, a processor, and a communication device. The specification’s description of these elements confirms they are generic. See, e.g., ’796 patent at 2:46–50 (communication device includes “cellular phones, . . . laptops, computers, . . . and other similar types of communications equipment”); 2:64–67 (sensor broadly means “a device that senses one or more absolute values, changes in value . . . of at least the sensed accelerative phenomena”); 4:34–38 (processor means “any device, system, or part thereof that controls at least one operation”). iLife argues that configuring an acceleration-based sensor and processor to detect and distinguish body movement as a function of both dynamic and static acceleration is an inventive concept. Appellant’s Br. at 53–54. But the specification clarifies sensors (e.g., accelerometers) “that measure both static and dynamic acceleration [were] known.” ’796 patent at 2:1–2. And unlike the claims in Thales, claim 1 does not recite any unconventional means or method for configuring or processing that information to distinguish body movement based on dynamic and static acceleration.
Therefore, we conclude that claim 1’s mere call for sensing and processing static and dynamic acceleration information using generic components does not transform the nature of claim 1 into patent eligible subject matter. See Elec. Power, 830 F.3d at 1355; see also BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1290–91 (Fed. Cir. 2018)
(“If a claim’s only ‘inventive concept’ is the application of an abstract idea using conventional and well-understood techniques, the claim has not been transformed into a patent-eligible application of an abstract idea.”). Accordingly, we hold claim 1 is directed to patent-ineligible subject matter.

Friday, January 15, 2021

Burger King logo: meet the new boss, same as the old boss?

BurgerKing is changing its logo/favicon:

Dezeen describes the switch:

Burger King's first rebrand in 20 years focuses on the American fast-food restaurant's food and its past says its designer Lisa Smith, executive creative director at Jones Knowles Ritchie. The comprehensive redesign of Burger King's visual identity by Jones Knowles Ritchie included the creation of a retro logo that closely resembles the logo used by the brand in the 1970s, 80s and 90s. "We explored a lot of different design territories, but kept coming back to the brand's original iconic logo from 1969 and 1994 when Burger King looked at its best," Smith told Dezeen.

And, yes, the "new" logo of 2021 does CLOSELY RESEMBLE the "old" logo of the 60's etc, which was

Separately, a new slogan might be "have it your way, as long as you pay, but you won't have any say." My local BK was going to charge me $0.47 for substituing barbecue instead of the normal stuff on a whopper. When I pointed out this was a substitution, the guy repeated 47 cents please. I wanted to comment. Below shows what happened.

Tuesday, January 12, 2021

Applicant Sturgeon loses 101 case on floral arrangements

The review:

We review the Board’s legal determinations de novo, In re Elsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), including patent eligibility under § 101, Berkheimer v. HP Inc., 881 F.3d 1360, 1365 (Fed. Cir. 2018). We review underlying factual findings for substantial evidence. Elsner, 381 F.3d at 1127 (citing In re Gartside, 203 F.3d 1305, 1316 (Fed. Cir. 2000)). I The question of eligibility under § 101 is governed by the two-step framework set out by the Supreme Court in Alice Corp. Pty. Ltd. v. CLS Bank International, 573 U.S. 208 (2014), and Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66 (2012).

Sturgeon concedes that merely creating a floral arrangement using a computer is an abstract idea, but at step 1, she argues that the claim is not abstract because it adds an element of realism to the floral arrangement. The Board properly found that the claim is directed to “mental processes,” “the abstract idea of managing personal behavior,” and “methods of organizing human activity”—in this case, arranging flowers—and is thus abstract at step 1. See J.A. 7–8. As we have explained, methods which can be performed entirely in the human mind are unpatentable . . . because computational methods which can be performed entirely in the human mind are the types of methods that embody the “basic tools of scientific and technological work” that are free to all men and reserved exclusively to none. Genetic Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369, 1378 (Fed. Cir. 2016) (quoting CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1373 (Fed. Cir. 2011)). The Board correctly determined that claim 2 is directed to an abstract idea. At step 2, Sturgeon argues that claim 2 involves an inventive concept by specifying that an image of the flower at an appropriate angle must be selected from an image library based on the location the user has selected for placing the flower. The Director responds that the ’028 application lacks an inventive concept because it does not describe any specific steps that the computer takes to select an appropriate image from an image library and does not disclose an improvement in computer technology. We agree with the Director and the Board that claim 2 is not directed to an inventive concept as required under the second step of Alice. Claim 2 recites a method of “selecting a flower from an image library,” “placing the flower at a user-selected location,” “dynamically selecting” an image from the library based on the chosen location, and “displaying the selected flower . . . on the display screen.” ’028 application (emphases added). As the Board properly found, these steps do not differentiate the claim from ordinary mental processes and conventional computer activity. All of these elements are described at a high level of generality and require only generic computer implementation. There is no inventive concept here that meaningfully adds to the existing practice of simulating a floral arrangement by creating a digital collage—

MORTGAGE APPLICATION TECH. v. MERIDIANLINK, INC: Loss on 101 but no attorney's fees awarded

The outcome:

Mortgage Application Technologies, LLC (“MAT”) appeals the final decision of the U.S. District Court for the Central District of California finding that the asserted claims of U.S. Patent No. 8,548,902 (“’902 patent”) are invalid under 35 U.S.C. § 101. Mortg. Application Techs., LLC v. Meridianlink, Inc., No. 19-CV-704, 2020 WL 1000581 (C.D. Cal. Jan. 6, 2020). MeridianLink, Inc. (“MeridianLink”) cross-appeals from a separate decision that denied MeridianLink’s motion for attorney’s fees. Mortg. Application Techs., LLC v. Meridianlink, Inc., No. 19-CV704, 2020 WL 4187766 (C.D. Cal. Mar. 12, 2020). For the reasons set forth below, we affirm the district court’s decision finding the ’902 patent invalid and affirm the denial of MeridianLink’s motion for attorney’s fees.

Of attorney's fees:

We now turn to MeridianLink’s cross-appeal on the denial of attorney’s fees. Under 35 U.S.C. § 285 “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” “[A]n ‘exceptional’ case is one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 134 S. Ct. 1749, 1756, 188 L. Ed. 2d 816 (2014). “District courts may determine whether a case is ‘exceptional’ in a case-by-case exercise of their discretion, considering the totality of the circumstances.” Id. Section 285 “imposes no specific evidentiary burden” and is rather “a simple discretionary inquiry[.]” We review the district court’s exceptional case determination for abuse of discretion. See Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 572 U.S. 559, 564, 134 S. Ct. 1744, 1749, 188 L. Ed. 2d 829 (2014). Because the district court did not abuse its discretion, we affirm.


MeridianLink further argues that the district court underestimated the weakness of MAT’s litigation position in light of the relevant caselaw, and that this case is exceptional because it “was not a close call under Alice.” CrossAppellant Br. 64. The district court, however, reviewed the relevant case law and found that MAT’s litigation position was not substantively weak. Although the ’902 patent is ineligible under § 101, it was unlike a number of other cases that MeridianLink cites in which the patents at issue were drawn to a fundamental economic processes. Specifically, as the district court stated, the claims in this case are drawn to an abstract process that is applied to a fundamental economic process. Mortg. Application, 2020 WL 4187766, at *3. MeridianLink argues that although the district court distinguished this case from a number of precedential cases, it did not distinguish this case from a few other cases MeridianLink cites. We are not persuaded that the handful of cases finding patent ineligibility under § 101, including Audatex, is sufficient to show that the district court abused its discretion in ultimately denying MeridianLink’s motion for attorney’s fees

Monday, January 11, 2021

The CAFC reviews taxable costs under section 1920 in view of CA3 law

The outcome in Parallel Networks v. Microsoft at the CAFC:

Parallel Networks Licensing, LLC, appeals a United States District Court for the District of Delaware order awarding costs under 28 U.S.C. § 1920 to Microsoft Corporation for depositions, documents, and trial exhibits. J.A. 1–3. For the following reasons, we affirm-in-part, vacate-in-part, and remand.
The issue:

The district court granted costs in the amount of $182,684.68, only denying the trial transcript costs. Parallel Networks appeals, disputing $153,775.10 of the $182,684.68 award. Microsoft seeks affirmance of $141,488.28 of the $182,684.68 award: the full award for deposition transcripts and for trial exhibits, and $31,358.78 of the $72,555.18 award for document production. We have jurisdiction under 28 U.S.C. § 1295(a)(1).
(...) Section 1920 permits the recovery of “[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case.” The district court’s analysis addressed “deposition transcripts and deposition recordings” but then ordered the taxation of “the deposition costs.” Microsoft argues that because the depositions themselves were necessary, it should be entitled to all of the challenged costs, even costs which can be fairly characterized as convenience, not necessary, costs such as realtime transcription or early transcripts. And it is entirely unclear what the fees delineated as laptop fees and litigation package fees even are much less whether they were necessary for the printed or recorded transcript of any deposition. It is not enough that the depositions themselves were “necessary,” § 1920(2) allows only for “[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case.” We thus vacate and remand for the district court to consider whether these fees are the type that the Third Circuit would agree constitute fees for printed or electronically recorded transcripts or whether such convenience fees are beyond the scope of taxable costs.
Trial exhibit copies and their associated folders and labels are taxable costs. See § 1920(4); see also, e.g., In re Ricoh Co., Ltd. Patent Litig., 661 F.3d 1361, 1368 n.3 (Fed. Cir. 2011) (it would not be an abuse of discretion to award costs for tabs and folders if “related to categories of documents as to which the recovery of reproduction costs under section 1920(4) is appropriate”). Given that these types of costs are taxable under § 1920(4), we review the district court’s award of these costs for abuse of discretion. Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 167–68 (3d Cir. 2012). Contrary to Parallel Networks’ argument, there is no statutory requirement that copies be admitted at trial in order to recover costs for those copies. See § 1920(4); see also In re Ricoh, 661 F.3d at 1367 (applying Ninth Circuit law) (section 1920(4) “does not require . . . that the copies actually be used in the case or made part of the record.”). Because the invoice attached to the Golden Declaration seems to be reasonably consistent with a commercial exhibit printing order, the district court acted within its discretion in taxing these costs in what it deemed to be a complex patent litigation