Tuesday, March 30, 2021

Concerning the New Jersey Judicial Canons

Further to the IPBiz post Gurbir S. Grewal's bad day in "State v. Lawrence" , sometimes there are bad consequences to Municipal Judges and/or municipal prosecutors who do not obey the law.

New Jersey Judicial Canon 2A requires that a judge should respect and comply with the law and Canon 3A(1) requires that a judge should be faithful to the law and maintain professional competence in it.

The case In re Samay, 166 N.J. 25, 764 A.2d 398 (N.J. 2001) is of interest. The "overview" presented in LEXIS states:

Respondent [Samay] committed three acts subjecting him to removal as a municipal court judge. He violated N.J. Ct. R. Canon 1, 2A, 2B, and N.J. Ct. R. 2:15-8(a)(6), by purposefully and intentionally using judicial initials, thus representing himself as a judge, in a private letter to his son's school for his own person gain. He violated N.J. Ct. R. Canon 1, 2A, 2B, 3C, and 3C(1), and N.J. Ct. R. 2:15-8(a)(6), by failing to disqualify himself from sitting in two matters. In the first matter, he issued a search and arrest warrant and presided over an arraignment so that he could benefit a long-term municipal government colleague. In the second matter, motivated by revenge, he had his son's gym teacher arrested and then arraigned before him. Respondent minimized his misconduct and demonstrated that he had no compunction about being less than credible in support of his position, further showing that he lacked the honor and integrity demanded of a judge. Thus, the court found, beyond a reasonable doubt, cause for removal based on respondent's unfitness for judicial office. It therefore ordered him removed as a municipal court judge.

In a peculiar way, the "judicial initials" issue was sort of an inappropriate advertising, trademark issue. Samay may have been a judge at the time, but he should not advertise that for personal benefit. Does signing off as a judge in a personal matter convey a benefit beyond that for an average person? Intimidation? What?

Respondent sent copies of that letter to Angela Gibson, the Headmaster at Collegiate School, and to other school officials. The aspect of respondent's letter that has disciplinary significance is the fact that respondent signed the letter as an attorney ("Esq.") and as a judge ("JMC"). Respondent testified that he used the "JMC" initials only to "impress" upon Lazor that respondent "had enough intelligence" to "make [his] own decisions" and "take care of [his] financial problems." Thus, respondent acknowledged using the "JMC" initials intentionally. Respondent also acknowledged knowing that utilization of the initials in a non-judicial, personal letter was "[w]holly inappropriate." We find respondent's alleged motive for using the initials "JMC" totally lacking in credibility. Cf. State v. Locurto, 157 N.J. 463, 470-75, 724 A.2d 234 (1999)  (discussing appellate review of witness credibility determinations).

New Jersey covid vax at CVS still hard to come by. Possible trick????

There was a post with a rather interesting title Hawaii Is A Great Way to Schedule Appointments in New Jersey Through CVS which included the text:

It sounds so odd, but it's true...at least as of March 28, 2021. You see, whenever one tries to find an available appointment in New Jersey via CVS you get "fully booked." Sometimes that is not correct and there are bookings available, which is why joining the Facebook group or following the Twitter bots above is helpful. If the group identifies bookings have opened up, start by choosing another state with available bookings, like Hawaii, and you can then get around that stop sign.

A few screenshots follow which illustrate how this "might" work. However, logging into either the CVS Hawaii or New Jersey site list in the 5am to 6am time frame gave a "busy" warning with an estimated time frame of one hour for a response. If one logs into CVS in the afternoon, the "trick" simply does not work. Separately, one notes that various New Jersey newspapers are not giving much coverage. The Biden admin story on Covid "doom" merited mainly an interior page in the March 30 issue.

No Covid vax appts in New Jersey on March 30, 2021

The "Hawaii trick" does not work in the afternoon (an NJ zip code was entered) and the response is "We're sorry"-->

Saturday, March 27, 2021

Gurbir S. Grewal's bad day in "State v. Lawrence"

Tucked away in the annals of unpublished New Jersey appellate decisions is State v. Lawrence ( 2016 N.J. Super. Unpub. LEXIS 780, 2016 WL 1387150 ) prosecuted by now New Jersey Attorney General (but then Bergen County prosecutor) Gurbir S. Grewal.

The Defendant Gail Lawrence had a host of charges against her, which weighed heavily against her in Municipal Court. The Appellate decision noted:

On May 3 and June 9, 2010, the Palisades Interstate Parkway Police Department (PIPPD) issued defendant sixteen complaint-summonses for various traffic and driver credential violations, as well as disorderly persons offenses. Although the record is very muddled and conflates this matter with a separate matter also under separate appeal, defendant's case was adjourned several times over a lengthy period.

Defendant repeated her request for discovery [Under Court Rule 7:7-7], sought but not supplied by the State. The judge then responded:

There's procedure that has to be followed. And one of them is retaining  an attorney. You did that. That discovery was sent to your attorney. I'm satisfied that that satisfies the State's obligation. I'm not satisfied that your attorney had the right to walk out and assume that he didn't have to be here today. That's his problem and your problem on for a special trial. You've got like about 40 charges against you. The oldest one is a year and two or three-months-old. I note on the calendar there are eight adjournments. It's time to face the music and hear the trials. Defendant then was asked to enter her pleas to each charge, to which she pled "not guilty" to all of them. Defendant then requested to contact her attorney, presumably pursuant to the judge's prior instruction. The judge denied the request, stating:

THE COURT: It's not going to do — why, so he's going to come here now and we're going to wait for two hours? No, the attorney should have been called before and told to be here today. He's, he's got to know that. You can sue him for malpractice for not being here. DEFENDANT: But I also — THE COURT: No attorney has the right to walk out mid-trial — or just before the trial date. So — DEFENDANT: Sir, I'm — THE COURT: Have a seat. Call your first witness  [prosecutor]. DEFENDANT: Sir, Sir, — PROSECUTOR: Okay. Officer — DEFENDANT: - I do not want to have the trial today. It's not — I did — THE COURT: I know you don't. You don't want . . . to be tried for a year and a half. Just have a seat. Trial proceeded with the State's witnesses. Defendant repeated her objections to conducting trial under the circumstances, which were overruled.
The judge found defendant guilty of three counts of speeding and two counts of weaving as prohibited by municipal ordinances; three counts of careless driving, N.J.S.A. 39:4-97; failure to keep right, N.J.S.A. 39:4-82; and using a cell phone while driving, N.J.S.A. 39:4-97.3. The judge imposed consecutive sixty and ninety-day license suspensions and assessed fines [*8]  and penalties. Immediately thereafter, trial on the June 9, 2010 summonses was held. The judge reiterated defense counsel recently withdrew, without court approval. He denied defendant's request for an adjournment because the trial date had been set "well in advance," and the court was satisfied all the discovery was provided to defendant's counsel. The State's witness testified and defendant declined to cross-examine the officer, stating: "I'm just objecting to everything because I'm asking for adjournment to retain counsel. And you can do whatever you want to do, but it's not fair." When informed of her right to call witnesses, defendant responded she needed additional discovery.
According to the State's brief, defendant filed a timely notice of appeal to the Law Division, a copy of which is not in the record. Trial de novo review was held on January 23, 2012, and defendant was represented by counsel, who  addressed whether she was improperly denied her right to an attorney and whether discovery was withheld. Counsel explained certain discovery requests, never considered by the municipal court judge, were necessary to show defendant was being targeted because she ended an intimate relationship with a fellow PIPPD officer. She maintained her ex-lover arranged for her to be stopped every time she drove on the Palisades Parkway, conduct for which he and others were disciplined. Defendant also sought the MVR videotapes, which purportedly were released, yet at some later point, the State admitted the MVR videotapes "were lost."

The Law Division judge never considered the discovery challenges.
First, the municipal court record provided no information regarding prior adjournments, such as why they were granted and at whose request. The May 4, 2011 hearing record reflects, almost one year following [*16]  issuance of the first set of summonses, the State had not provided discovery and defendant was leaving the country. Otherwise, the assumption defendant was responsible for the delay is unsupported. Second, we cannot find support for the finding defendant's conduct was purposely dilatory. Following the May 4, 2011 hearing, where the judge related some information regarding the effect of proceeding self-represented, she hired counsel, who submitted a June 10, 2011 letter informing of his representation and again pursuing discovery, which the State apparently had still not released.
The Law Division judge ignored the circumstances where the municipal court judge told defendant to get her attorney "on the phone or get him here or you're going to have to try the case by yourself" and then refused to allow her to comply with this directive to contact counsel.2 At the very least, the obligation to contact counsel to determine the circumstances of withdrawal or availability to proceed was required. In this regard, we do not understand the Law Division judge's comments "I mean we all know, when you hire an attorney you have to both hire and pay that attorney." The record does not include information that counsel's failure to appear was the result of defendant's non-payment. Moreover, the Law Division judge confirmed this fact stating, "Why [trial counsel] wasn't there [at trial], I have no idea."
Fourth, during the trial de novo, the judge's finding of "a deliberate attempt to stall this matter" is not supported. At that time, the State proposed the record contained an unidentified individual's statement that defendant was smiling, which demonstrates she acted willfully in delaying the proceedings. Reliance on this statement plucked from the record without more information regarding the context of the assertion or the person making the statement is erroneous.

We also conclude the judge failed to consider defendant's discovery assertions.   Further, the record does not clearly disclose what evidence the State released or why the MVR videotapes, containing allegedly exculpatory evidence, purportedly sent by the State, were never provided. On remand, prior to trial, the municipal court judge must first address precisely what discovery the State released as required by Rules 7:7-7 and 7:7-8; what it did not release, despite assertions to the contrary; and what relief may be appropriate.

Reversed and remanded for a new trial in the municipal court, before a different municipal court judge.

Apparently, prosecuting attorney Mr. Grewal did not consider failure under Court Rule 7:7-7 a big deal, or even the right to an attorney. IPBiz makes no comment on the merits of the substantive case but disregard of Court Rules, as manifested by the Municipal Court Judge is unacceptable.

Footnote 2 of the opinion states:

There are many inappropriate comments made by the municipal court judge that are concerning. Of note, after suggesting counsel should have appeared, we consider the statement telling defendant: "You can sue him for malpractice" as a serious lapse in judgment.

Still no Covid VAX at any CVS in New Jersey on 27 March 2021

Tucked away on page A4 of the 27 March 2021 issue of the Newark Star Ledger was an article on some of the latest data on Covid infections in the state of New Jersey. New Jersey has been number one in the United States for new cases per capita for the last two weeks. The seven day average of 3,373 per day was up 3.4% from a week ago and up 30.7% from a month ago. Ro is at 1.10. The article mentions a positivity fraction of 8.06% (as of Monday), although the number reported by Governor Murphy on Wednesday was over 10%. On Wednesday, Governor Murphy praised CVS. But note, as of Saturday, 27 March 2021, there are no Covid appointments. A different news source listed Mercer County (the location of the capital city Trenton) as vulnerable.

No appointments at CVS as of March 27, 2021:

As to Covid infection vulnerable (see for example-https://covidactnow.org/us/new_jersey-nj/?s=1708632):

Friday, March 26, 2021

No Covid vax at CVS in New Jersey

As the attached shows, there are no available vaccination appointments at CVS anywhere in New Jersey:

And, although NJ vaccinations are INCREASING, Covid infections are also increasing:

Stanford University loses at CAFC on 101 issue

The outcome:

The Board of Trustees of the Leland Stanford Junior University appeals the final rejection of patent claims in its patent application. The patent examiner reviewing the application rejected the claims on the grounds that they involve patent ineligible subject matter. On review, the Patent Trial and Appeal Board affirmed the examiner’s final rejection of the claims. As discussed below, the rejected claims are drawn to abstract mathematical calculations and statistical modeling, and similar subject matter that is not patent eligible. Accordingly, we affirm the decision of the Patent Trial and Appeal Board.

The subject matter:

The Board of Trustees of the Leland Stanford Junior University (“Stanford”) filed its Application No. 13/486,982 (“’982 application”) on June 1, 2012. J.A. 39.1 The ’982 application is directed to computerized statistical methods for determining haplotype phase. A haplotype phase acts as an indication of the parent from whom a gene has been inherited. Haplotype phasing is a process for determining the parent from whom alleles—i.e., versions of a gene—are inherited.

The analysis by PTAB:

In its analysis of the examiner’s rejections, the Board applied the two-step framework established by the Supreme Court for determining patent eligibility. See Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208 (2014); J.A. 9–20. Addressing step one of the Alice inquiry, the Board determined that representative claim 1 is directed to patent ineligible abstract ideas in the form of mathematical concepts, i.e., mathematical relationship, formulas, equations, and calculations. J.A. 10–11. Specifically, the Board explained, claim 1 recites an initial step of receiving genotype data, followed by the mathematical operations of building a data structure describing an HMM and randomly modifying at least one imputed haplotype to automatically recompute the HMM’s parameters. Id. The Board also determined that claim 1 recites two abstract mental processes. J.A. 11. First, claim 1 recites the step of “imputing an initial haplotype phase for each individual in the plurality of individuals based on a statistical model,” which, according to the Board, does not require a computer implementation. See id. Second, claim 1 recites the step of automatically replacing an imputed haplotype phase with a randomly modified haplotype phase when the latter is more likely correct than the former. See J.A. 11– 12. The Board thus concluded that claim 1 recites abstract ideas.

The CAFC noted:

We conclude, at Alice step one, that the reviewed claims of the ’982 application are directed to patent ineligible abstract ideas. Specifically, the claims are directed to the use of mathematical calculations and statistical modeling. Courts have long held that mathematical algorithms for performing calculations, without more, are patent ineligible under § 101. See, e.g., Parker v. Flook, 437 U.S. 584, 595 (1978) (“[I]f a claim is directed essentially to a method of calculating, using a mathematical formula, even if the solution is for a specific purpose, the claimed method is nonstatutory.” (internal citation omitted)); Gottschalk v. Benson, 409 U.S. 63, 71–72 (1972) (finding claims patent ineligible because they “would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself”); In re Schrader, 22 F.3d 290, 294 (Fed. Cir. 1994) (a data gathering step of entering bids was “insufficient to impart patentability to a claim involving the solving of a mathematical algorithm”).
(...) Stanford separately suggests that another claimed advance is that the claim steps result in more accurate haplotype predictions. See, e.g., Appellant’s Br. 21–22, 29–34, 43, 46. Specifically, Stanford argues that the alleged increase in haplotype prediction accuracy renders claim 1 a practical application rather than an abstract idea. See id. at 30. Stanford’s cited cases do not support its argument because the cases involve practical, technological improvements extending beyond improving the accuracy of a mathematically calculated statistical prediction. See, e.g., McRO, 837 F.3d at 1315 (“The claimed process uses a combined order of specific rules that renders information into a specific format that is then used and applied to create desired results: a sequence of synchronized, animated characters.”); Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1304 (Fed. Cir. 2018) (finding patent eligible a claim drawn to a behavior-based virus scan that protects against viruses that have been “cosmetically modified to avoid detection by code-matching virus scans”); Enfish, 822 F.3d at 1330, 1333 (discussing patent eligible claims directed to “an innovative logical model for a computer database” that included a self-referential table allowing for greater flexibility in configuring databases, faster searching, and more effective storage); CardioNet, LLC v. InfoBionic, Inc., 955 F.3d 1358, 1368 (Fed. Cir. 2020) (explaining that the claims at issue focus on a specific means for improving cardiac monitoring technology; they are not “directed to a result or effect that itself is the abstract idea and merely invoke generic processes and machinery” (quoting McRO, 837 F.3d at 1314)). Unlike the technological improvements made in those cases, the improvement in computational accuracy alleged here does not qualify as an improvement to a technological process; rather, it is merely an enhancement to the abstract mathematical calculation of haplotype phase itself. See Athena, 915 F.3d at 750; Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016) (“[A] claim for a new abstract idea is still an abstract idea.”). The different use of a mathematical calculation, even one that yields different or better results, does not render patent eligible subject matter. Because we conclude that claim 1 is directed to patent ineligible subject matter, we next turn to step two of the Alice inquiry. At step two, we inquire whether any limitations establish an inventive concept that transforms the abstract idea into patent eligible subject matter. Alice, 573 U.S. at 217– 18. Step two is like a lifeline: it can rescue and save a claim that has been deemed, at step one, directed to non-statutory subject matter. We conclude that claim 1 is not saved.

Wednesday, March 24, 2021

CAFC affirms PTAB in Transtex case; "reasonable" expectation of success explicated

The outcome

Transtex, Inc., formerly known as Transtex Composite Inc. (“Transtex”), is the owner of U.S. Patent No. 8,449,017 (“the ’017 patent”). The ’017 patent is directed to a “trailer skirt” for a road trailer. A trailer skirt is one type of fairing used to reduce aerodynamic drag on a trailer when it is being hauled. It thereby improves fuel efficiency. ’017 patent, col. 1, ll. 31–33. The ’017 patent has 20 claims. Claims 1, 11, and 17 are independent claims. WABCO Holdings, Inc. and Laydon Composites, Ltd. (collectively, “WABCO”) petitioned the United States Patent and Trademark Office, Patent Trial and Appeal Board (“Board”), for inter partes review of the ’017 patent. After instituting and conducting inter partes proceedings, on January 20, 2020, the Board rendered its decision. WABCO Holdings Inc. v. Transtex Composites Inc., No. IPR2018-01319, Paper 25, at 1 (Jan. 10, 2020) (“Final Written Decision”). In its decision, the Board held that WABCO had proved by a preponderance of the evidence that claims 1, 5–11, and 15–19 of the ’017 patent were unpatentable as obvious over the combination of U.S. Patent No. 7,578,541 to Layfield et al. (“Layfield”) and U.S. Patent No. 5,280,990 to Rinard (“Rinard”). Id. at 64–65. The Board also held, however, that WABCO had failed to prove that claims 2–4, 12–14, and 20 of the patent were unpatentable as obvious over the same combination. Id. Transtex now appeals the Board’s holding that claims 1, 5–11, and 15–19 of the ’017 patent were unpatentable. For its part, WABCO cross-appeals the Board’s decision that claims 2–4 and 12–14 of the ’017 patent were not shown to be unpatentable. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A). For the reasons stated below, we affirm the Board’s decision in all respects.

Standard of review:

Under 35 U.S.C. § 316(e), a petitioner in an inter partes review has the burden of proving a claim’s invalidity by a preponderance of the evidence. We review the Board’s factual findings for substantial evidence and its legal conclusions de novo. In re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1281 (Fed. Cir. 2015). Thus, we review the Board’s ultimate determination of obviousness de novo and its underlying factual determinations for substantial evidence. Ariosa Diagnostics v. Verinata Health, Inc., 805 F.3d 1359, 1364 (Fed. Cir. 2015). The underlying factual findings include “findings as to the scope and content of the prior art, the differences between the prior art and the claimed invention, the level of ordinary skill in the art, the presence or absence of a motivation to combine or modify with a reasonable expectation of success, and objective indicia of nonobviousness.” Id

Arthrex arises in footnote 3:

Transtex also argues that the Board’s panel of Administrative Patent Judges (“APJs”) that issued the Final Written Decision was unconstitutionally appointed. Transtex Br. 40–41 (citing Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019)). The Director of the United States Patent and Trademark Office intervened solely to address this issue. We reject Transtex’s Arthrex argument. Our court’s holding in Arthrex was expressly limited “to those cases where final written decisions were issued.” Arthrex, 941 F.3d at 1340. The Board’s APJs were constitutionally appointed as of the date that Arthrex issued, which was before the Board’s Final Written Decision in this case. See Caterpillar Paving Prods. Inc. v. Wirtgen Am., Inc., 957 F.3d 1342, 1342–43 (Fed. Cir. 2020); see also Daikin Indus. v. Chemours Co. FC, No. 2020-1616, ____ F. App’x ____, 2021 WL 717017, at *4 n.5 (Fed. Cir. Feb. 24, 2021); Infineum USA L.P. v. Chevron Oronite Co., No. 2020-1333, ____ F. App’x ____, 2021 WL 210722, at *8 (Fed. Cir. Jan. 21, 2021).

The matter of conclusory assertions arose:

The Board’s finding of a motivation to combine Layfield and Rinard was more than an impermissible conclusory assertion. See In re Van Os, 844 F.3d 1359, 1361 (Fed. Cir. 2017) (citing KSR, 550 U.S. at 418, 421). In the Final Written Decision, the Board agreed with WABCO that “Layfield and Rinard both seek to provide fairing panels with ‘sufficient flexibility’ to bend when encountering objects.” Final Written Decision at 42 (quoting J.A. 1854–55). The Board disagreed with Transtex that “one would not consider the benefits of using the resilient materials disclosed in Layfield and Rinard to make Layfield’s struts resilient,” noting that “the advantages of resilient materials, as taught by Rinard, . . . are compelling reasons as to why one of ordinary skill in the art would have made the minor modifications proposed.” Id. at 41 n.22. The Board ultimately “determine[d] that Petitioner ha[d] shown that one of ordinary skill in the art would have had a reason with rational underpinning to look to other similar types of trailer components that are flexible to make further improvements to Layfield’s design.” Id. at 43 (citing KSR, 550 U.S. at 417).

We also disagree that the Board failed to articulate its reasons for finding an expectation of success. First, we note that our court has made clear that a relevant artisan’s expectation of success “need only be reasonable, not absolute.” Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1364, 1367–68 (Fed. Cir. 2007). The Board began by rejecting Transtex’s arguments against a reasonable expectation of success, which were premised on an understanding of Layfield as having rigid and non-moving upper skirt panels. Having found Layfield’s upper skirt panels to be resilient, the Board did not give weight to Transtex’s arguments. Final Written Decision at 43–44. The Board concluded that “Petitioner ha[d] demonstrated sufficiently that one of ordinary skill in the art would have had reason with rational underpinning to combine the teachings of Rinard and Layfield in the manner proposed by [WABCO] with a reasonable expectation of success.” Id. at 44. In reaching this conclusion, the Board disagreed that there was no reasonable expectation of success “for the same reasons” the Board rejected Transtex’s arguments regarding motivation to combine. Id.

As noted, there is no requirement that there be an “absolute” expectation of success; a “reasonable” expectation is sufficient. Mr. Tres’s declarations confirm that the expectation of success here is reasonable in view of the teachings of Layfield and Rinard. See First Tres Declaration at ¶¶ 196–197, J.A. 1010–11; Third Tres Declaration ¶ 47, J.A. 2446

Of dictionary definitions:

The dictionary’s use of the term “hollowed” does not “broaden[ ] ‘concave’ such that it does not mean curved or rounded inward.” Id. We thus affirm the Board’s claim constructions and its corresponding determinations that WABCO did not establish that claims 2–4 and 12–14 were obvious over the combination of Layfield and Rinard.

New Jersey's bad Covid situation on Wednesday, March 24, 2021

IPBiz listened to the 1pm press conference of New Jersey Governor Murphy on 24 March 2021. A big question, raised in a front page story in the Star Ledger on March 24, was IF immunizations are way up, THEN why is New Jersey presently the worst state in the nation in Covid infections? The positivity percentage was given as a whopping 12.49% in the March 24 briefing, cases were up, hospitalizations were up and Ro was 1.09. No credible answers were forthcoming in the briefing.

An issue may be that the "spreaders" are not the ones being given the mRNA injections. The older population, not likely the spreaders, are the ones likely to be in tough shape if infected, but not likely to be spreading much to others. VAXing the elders may conserve hospital resources, but it likely has little effect on spreading, as New Jersey is demonstrating.

A point of unintended humor was Murphy's reference to the good job done by CVS, and other pharmacies. Merely for reference, on March 24, 2021, CVS had no available vaccination appointments.

Thursday, March 18, 2021

The nursing home issue in New Jersey's high Covid death per capita number

Following the March 8, 2021 post in IPBiz about New Jersey Governor Murphy's appearance on CBS "Face the Nation" on March 7 [ see Governor Murphy on "Face the Nation" on March 7, 2021. The nursing home issue. ], there have been two relevant subsequent articles in the Newark Star-Ledger. One suggests that in March 2020, New Jersey nursing home officials were verbally told of the need to segregate Covid patients, even though the written March 31 order does not reflect this. The second shows that this is going to be a campaign theme in the upcoming governor election.

As an initial matter, there has been a "lack of transparency" issue:

Associated Press requests last year for written and electronic communications among officials about the coronavirus were denied as “overbroad,” a kind of catch-all under the state’s Open Public Records Act that permits officials to shield certain information.
The administration also cited emails among the governor’s staff as privileged under the law because they were “inter-agency” and “consultative or deliberative,” additional carve-outs that prevent the release of documents under the law.

link: https://www.nj.com/politics/2021/03/murphy-administration-has-blocked-some-information-from-the-public-during-covid-pandemic-ap-finds.html

From the Newark Star-Ledger on March 17, 2021 (note reference to what was told during the March 31, 2020 meeting and compare to image within IPBiz post of March 8, 2021)

AND, as to the political issue, from the Star-Ledger on March 18, 2021:

Mylan fails in its challenge to "failure to institute" appeal

Mylan fails at the CAFC in the Janssen case. The outcome:

Because we lack jurisdiction over appeals from decisions denying institution, we grant Janssen’s motion to dismiss. Although we have jurisdiction over mandamus petitions challenging such decisions, Mylan has not shown it is entitled to such an extraordinary remedy. Thus, we dismiss Mylan’s appeal and deny its request for mandamus. B

For the foregoing reasons, we lack jurisdiction over Mylan’s direct appeal. Though we have jurisdiction over its request for mandamus, Mylan has failed to show a clear right to relief.

Of the constitutional issue:

Finally, Mylan fails to state a colorable claim for constitutional relief. It does not identify a deprivation of “life, liberty, [or] property,” so any procedural due process challenge is foreclosed. Stone v. F.D.I.C., 179 F.3d 1368, 1375 (Fed. Cir. 1999) (“Procedural due process requires that certain substantive rights—life, liberty, and property—cannot be deprived except pursuant to constitutionally adequate procedures.”); see also Oral Arg. at 44:38–46:15 (questioning whether deprivation of a property right is required for a due process claim, but not identifying any property right).

Monday, March 15, 2021

Problems in New Jersey registration for Covid vaccinations?

A front page article in the Newark Star-Ledger on March 15, 2021 begins:

Monday, March 08, 2021

CAFC hands out another 101 loss in Enco Systems

The outcome:

ENCO Systems, Inc. owns U.S. Patent No. 7,047,191, titled “Method and System for Providing Automated Captioning for AV Signals.” ENCO sued DaVincia, LLC in the United States District Court for the Eastern District of Missouri, alleging that DaVincia infringed the ’191 patent. The district court held that the ’191 patent claims are invalid under 35 U.S.C. § 101. ENCO Systems, Inc. v. DaVincia, LLC, 447 F. Supp. 3d 916 (E.D. Mo. 2020). We affirm

The background

The district court explained that the claims “suffer[] from the same high-level generalities and broad-form functional terminology” that this court rejected as ineligible under § 101 in University of Florida Research Foundation, Inc. v. General Electric Co., 916 F.3d 1363 (Fed. Cir. 2019). ENCO, 447 F. Supp. 3d at 922. The district court then determined that the claims do not include an “inventive concept” beyond the abstract idea because they rely on “selfdescribed conventional computer components” arranged for functional purposes without a “particularized and concrete” configuration. Id. at 922–23. Based on those determinations, the court dismissed ENCO’s case with prejudice. Id. at 923. The court subsequently denied ENCO’s motion for reconsideration and request for leave to amend its complaint.

We review a district court’s dismissal for failure to state a claim under the law of the regional circuit, which here requires that we review the district court’s dismissal de novo and take all facts alleged in the complaint as true. See Univ. of Fla., 916 F.3d at 1367; Kelly v. City of Omaha, 813 F.3d 1070, 1075 (8th Cir. 2016). Subject-matter eligibility under § 101 is a question of law based on underlying facts. See Aatrix Software, Inc. v. Green Shades Software, Inc., 882 F.3d 1121, 1125 (Fed. Cir. 2018). “Like other legal questions based on underlying facts, this question may be, and frequently has been, resolved on a Rule 12(b)(6) . . . motion where the undisputed facts, considered under the standards required by that Rule, require a holding of ineligibility under the substantive standards of law.” SAP America, Inc. v. InvestPic, LLC, 898 F.3d 1161, 1166 (Fed. Cir. 2018).

We are not bound by internally precedential decisions of the Patent Trial and Appeal Board that seek to follow this court’s precedents, which we apply directly. See In re Rudy, 956 F.3d 1379, 1383 (Fed. Cir. 2020). In any event, the Board in Hannun ruled patent eligible claims that recited automatic speech-recognition methods that were “directed to a specific implementation” of processing data by measuring tailored parameters identified within audio files. Hannun, 2020 WL 7407450, at *5. No such specificity exists here. We conclude that the claims of the ’191 patent are directed to an abstract idea.

Governor Murphy on "Face the Nation" on March 7, 2021. The nursing home issue.

On March 7, 2021, the CBS program "Face the Nation" interviewed two governors, Phil Murphy of New Jersey and Jim Justice of West Virginia. In this post, we discuss some points of the interview with Governor Murphy.

Margaret Brennan, sensitive to some of the problems New York Governor Cuomo is having with undercounts of deaths, asked Murphy about undercounts in New Jersey. As a first point, Brennan did NOT address the issue that admission of Covid-infected people proximately caused the deaths of many nursing home "inmates," who were basically captive to the New Jersey policies. As a second point, in its order of March 31, 2021, New Jersey basically copied the New York order. As a third point, the March 31 order did not mention segregation of infected people. There is an order of April 13 mentioning segregation, but not quite in the way Governor Murphy discussed on March 7. Here is the relevant exchange:

MARGARET BRENNAN: We will be watching for that. I want to ask you, though, about your record and last spring. It was last March that the-- your administration ordered long-term care facilities to start accepting infected residents. New York has gotten a lot of scrutiny for a similar decision. Are you confident that New Jersey did not undercount or-- deliberately or otherwise, nursing home deaths? GOVERNOR PHIL MURPHY: Yeah, Margaret, I don't have any insight on New York, but I have a clear answer as to what we did in New Jersey. Our health department, our commissioner was explicit, black and white, if you readmit a previously COVID positive resident, they need to be segregated. They need to be separated into either their own floor, their own wing, their own building and staff as well. Secondly, I think we started reporting probable deaths from COVID as early as June. Thirdly, we hired, in the middle of this, a firm that came in independently- There are a number points here. As illustrated in the image below, the March 2021 order in New Jersey was basically copied from the earlier New York order. Thus, the text --I don't have any insight on New York -- is a bit tricky. As a second point, the March order did not allow testing. As a third point, the March 2021 said NOTHING about segregation. The later April 13 order did talk about segregating ANY incoming patient. It was not specific to re-admission of a previously positive resident.

Merely for entertainment,

GOVERNOR JIM JUSTICE: Well, I don't know every single thing, but I know this, that the states, whether it be New Jersey or New York, I mean, they've got it all wrong. You know, we got it right in West Virginia, little old West Virginia. That it's, you know, a lot of people perceive maybe not in a good way.
MARGARET BRENNAN: These allegations of personal behavior, though? GOVERNOR JIM JUSTICE: I think it's terrible and I-- I truly believe, you know, that he has a dog's mess on his hands, and with all this, you know, where it stands-
MARGARET BRENNAN: Mm-Hm. GOVERNOR JIM JUSTICE: --it's not going to do anything except getting worse. MARGARET BRENNAN: Okay. GOVERNOR JIM JUSTICE: And I-- and I would say he needs to resign.

copied from a file at senate.nj-->

Saturday, March 06, 2021

Mixed result at CAFC in OLAPLEX case

The outcome:

Liqwd, Inc. (“Liqwd”) and Olaplex LLC filed suit in the United States District Court for the District of Delaware, alleging that L’Oréal USA, Inc., L’Oréal USA Products, Inc., L’Oréal USA S/D, Inc., and Redken 5th Avenue NYC, L.L.C. (together “L’Oréal”) infringed claims 1 and 10 of U.S. Patent No. 9,498,419 (the “’419 patent”) and claims 1, 4, 11–16, 19, 20, and 30 of U.S. Patent No. 9,668,954 (the “’954 patent”). The district court granted Liqwd and Olaplex LLC summary judgment of direct and indirect infringement on all claims and issued a permanent injunction. L’Oréal appealed. Following post-grant review proceedings before the Patent Trial and Appeal Board (“Board”), only claims 14–16 of the ’954 patent survive. As to these claims, we affirm the district court’s claim construction. But because there are genuine questions of material fact relating to infringement of these claims under that claim construction, we vacate and remand for trial.1 Additionally, we grant Liqwd and Olaplex LLC’s motion to substitute Olaplex, Inc

A PTAB decision was involved:

During the pendency of the district court proceeding at issue here, L’Oréal filed petitions for post-grant review of the ’419 and ’954 patents. The Board held claims 1–8 and 10 of the ’419 patent unpatentable as obvious. The Board also found that L’Oréal copied an unpublished patent application owned by Olaplex, Inc.’s predecessors in interest, but that this evidence of copying was not relevant to obviousness because there was no evidence L’Oréal copied a patented product. On appeal, we concluded that this evidence of copying was relevant to the obviousness determination and had to be considered by the Board. On remand, the Board again concluded that claims 1–8 and 10 of the ’419 patent were unpatentable as obvious. Although Olaplex, Inc. initially appealed the Board’s remand decision, it later voluntarily dismissed its appeal.

The CAFC noted:

First, L’Oréal’s construction would render the claim term “maleic acid” meaningless because both parties agree that maleic acid is neutralized and transformed into maleate (a salt) once added to an alkaline bleaching solution. Consequently, there would be no maleic acid in the final bleaching solution under L’Oréal’s construction, and the claim limitation would never be satisfied. See Wasica Fin. GmbH v. Cont’l Automotive Systems, Inc., 853 F.3d 1272, 1288 n.10 (Fed. Cir. 2017) (“It is highly disfavored to construe terms in a way that renders them void, meaningless, or superfluous.”); Bicon, Inc. v. Straumann Co., 441 F.3d 945, 950– 51 (Fed. Cir. 2006) (rejecting a construction of a term that would render another limitation superfluous).6

Chef America is cited in footnote 6

Our opinion in Chef America, Inc. v. Lamb-Weston, Inc., 358 F.3d 1371 (Fed. Cir. 2004), does not require a different result. In Chef America, the claims were only susceptible to one meaning and the patent owner was essentially asking this court to “redraft” the claim to make it operable. 358 F.3d at 1374 (“[W]e construe the claim as written, not as the patentees wish they had written it.”). Here, the claim language supports either proposed construction and Olaplex has presented intrinsic and extrinsic evidence, including expert testimony, supporting its construction.