Tuesday, April 27, 2021

New Jersey at 189.8 new Covid cases per 100k drops to 6th worst state; national average is 116.4

Although Michigan at 360.6 new Covid cases per 100K population remains the worst state in the nation, New Jersey has fallen to number 6, trailing Mich, Colorado, Pa, Minnesota and Delaware.Governor Murphy announced easing of restrictions on outdoor events.

Sunday, April 25, 2021

Proposed explanation for "how" Michigan became #1 in new Covid cases per 100,000

From Michigan became hotspot as variants rose and vigilance fell

Doctors, medical professionals and public health officials point to a number of factors that explain how the situation has gotten so bad in Michigan. More contagious variants, especially the mutation first discovered in Britain, have taken root here with greater prevalence than other states. Residents have emerged from harsh, lengthy state restrictions on dining and crowd sizes and abandoned mask wearing and social distancing, especially in rural, northern parts of the state that had largely avoided severe outbreaks. The state has also had average vaccine compliance. Michigan has recorded a highest-in-the-nation 91,000 new COVID-19 cases over the last two weeks, despite improvements in the numbers in recent days. By comparison, that is more cases than California and Texas had combined in the same period.


Dr. Mark Hamed, medical director in the emergency department at McKenzie Hospital in Sandusky, Michigan, and for several counties in the state’s northern region, says the area was spared from rampant COVID-19 last year and that may have created a false sense of security, especially among the region’s farmers and blue-collar workers who suffered economically from the pandemic and already were feeling COVID fatigue. ‘’Businesses weren’t really enforcing mask-wearing,’’ and many people in the region shunned them anyway, he said. Now, with variants spreading and many people still unvaccinated, his area “is being hit pretty hard,’’ Hamed said. "Our ER is absolutely swamped beyond belief.’’

Query: are these factors sufficient to differentiate Michigan's numbers from those of states below the national average?

New Jersey, at 230.7 cases per 100,000 is still second worst Covid state in nation, with the national average at 120.4

The number of new Covid cases is going down in New Jersey. BUT, as of Sunday, April 25, 2021, New Jersey is at 230.7 per 100,000 people, second only to Michigan ( 381.5 ) as the worst state in the nation. New cases in New Jersey are NOT randomly distributed, with three counties especially bad [map below].

The Covid cases per 100k data is obtained from the CDC site.

CDC link: https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days




Saturday, April 24, 2021

Thinking about In re Hall, 781 F.2d 897 (CAFC 1986)

On the matter of printed publications, patent law students get exposed to In re Hall early in their careers. A reference indexed in one library was deemed available and thus a printed publication for 102 purposes.
Casebriefs describes the facts:

Hall’s application for a patent was rejected because a doctoral thesis was available as a "œprinted publication" more than one year prior to the application’s effective date. Hall appealed, claiming that there was no evidence that the dissertation was indexed properly in the library catalog before the critical date and that, even if it were, the presence of a single catalogued thesis in one university library does not establish sufficient accessibility of the publication’s teachings to those interested in the art and who practice reasonable diligence.

Hall's argument was rejected.

Of details, “‘[P]ublic accessibility’ has been called the touchstone in determining whether a reference constitutes a ‘printed publication . . . .’” In re Hall, 781 F.2d 897, 899 (Fed. Cir. 1986). “A reference will be considered publicly accessible if it was disseminated or otherwise made available to the extent that persons interested and ordinarily skilled in the subject matter or art exercising reasonable diligence [] can locate it.” Medtronic, 891 F.3d at 1380 (alteration in original) (internal quotation marks omitted). “Whether a reference is publicly accessible is determined on a case-by-case basis based on the ‘facts and circumstances surrounding the reference’s disclosure to members of the public.’” In re Lister, 583 F.3d 1307, 1311 (Fed. Cir. 2009) (quoting In re Klopfenstein, 380 F.3d 1345, 1350 (Fed. Cir. 2004).

Let's change the facts a bit. There is information in a government document that is relevant to a patent application. The document was never published, in the sense that nothing has been presented to the public about its contents. HOWEVER, if a FOIA request is made (such cannot be too general), one MIGHT obtain the document, or perhaps information leading to obtaining the document.

Is the "hidden" document a "printed publication"? See also VidStream loses at CAFC: matters of "what is" prior art. In re Hall revisited.

Dunst review of Seidule book on Robert E. Lee way off base

In Stars, Bars, and Memoirs, Robert Dunst of the Los Angeles Review of Books writes about the book Robert E. Lee and Me by Ty Seidule and states the following:

Second, Seidule shows that the myth hinges on the obviously false portrayal of the “obedient servant” or “happy slave.” It is telling, he notes, somewhat angrily, that literally zero enslaved Blacks fought as Confederate soldiers.

Although basically a correct factual observation, the inference drawn is incorrect. Confederate leaders absolutely,positively did not want to have African Americans as fighting soldiers. This was most vividly demonstrated by the Cleburne proposal (to have black soldiers), which not only was rejected but also effectively buried from further discussion. Refer to the article "That Extraordinary Document" by Steve Davis in Civil War Times Illustrated, page 14 (December 1977). link: https://www.blogger.com/blog/post/edit/7478238/6274381773405697680
See also IPBiz Were there African American soldiers for the Confederacy?

The Dunst book review also contains the text:

The next tenet of the “Lost Cause” argues that the Confederacy was doomed from the start because the Northerners simply had more materiel — that the Yankees’ might had triumphed over the Southerners’ right. This is not true, as Seidule points out in prosaic terms: both armies saw desertion rates of over 10 percent. The South was not physically outmatched; they were just beaten.

While believing that the Civil War was about slavery, IPBiz also believes that the Confederacy "was doomed from the start." The only hope the Confederacy had was foreign recognition (which became unlikely after the Emancipation Proclamation) or Northern disallusionment. In the planning for the Gettysburg campaign, Lee was relying on the latter, and recognized that failure at Gettysburg would lead to a drawn out, losing situation for the Confederacy because of lack of resources. Cleburne, in his document of January 1863, recognized that the deficiency of resources would lead to defeat. An argument about "desertion rates" does not negate this reality. Moreover, even if the "desertion rate percentage" argument were valid, it would more adversely impact the Confederacy, which had fewer soldiers in uniform. That is merely the war of attrition thought attributed to Grant's Overland Campaign, or later to airplane fighting in World War I or II.

In passing, note the post on "alternate histories" of the American Civil War. Yes, "the" Winston Churchill did write one (a different Winston Churchill wrote a Civil War novel).

Divided We Stand: “Confederate” and Civil War Alternate Histories

New Jersey remains the second worst state in new Covid infections per capita; more than twice the national average

An April 23 article in Statnews by Andrew Joseph titled States with springtime Covid-19 surges appear to have turned a corner contains text:

Trends can also be moving in the right direction when, in raw numbers, infections are still high. Cases may be coming down in Michigan, but they’re still higher than they were there at just about at any other point in the pandemic. National case counts in the 60,000 range as opposed to the, say, 20,000 range mean that many more people will suffer severe outcomes from the coronavirus. And while death counts have dropped dramatically from the more than 3,000 people taken daily in the United States in stretches of January and February, the progress has been stalled at more than 700 deaths per day. The hope is that if case counts continue to fall over the coming weeks, deaths will follow in turn.

But there was an intermediate hurdle: In some states, cases started rising again this spring, as politicians eased restrictions and individuals grew more relaxed. More transmissible variants of the coronavirus pushed cases up or slowed progress — most notably B.1.1.7, which ignited major outbreaks in the United Kingdom (where it first emerged) and then in other European countries. Some recent transmission in New York and New Jersey also seems to have been driven by another variant, B.1.526. The declining case counts in Michigan and other states suggest we may be back on track. “I’m hopeful for that,” epidemiologist Stephen Kissler of Harvard’s T.H. Chan School of Public Health said about the U.S. dodging the full brunt of B.1.1.7. “I’m cautiously optimistic.”

A list of the "bad" states for new Covid cases follows. With the national average 129.3 new Covid cases per 100,000 people, Michigan (432.4) and New Jersey ( 261 ) remain numbers one and two as being the worst, both being at a level more than twice the national average. As to easing of restrictions, New Jersey did very little in the time period preceding and during the spring 2021 increase. Separately, there is no evidence that the five worst states [Mich, NJ, Del., PA, Minnesota ] had unusual levels of B.1.1.7 relative to states with lower levels of covid per 100,000. The situation in Michigan remains largely unexplained.

Thursday, April 22, 2021

New Jersey remains the second worst state for new Covid infections per 100,000 people (268.7), trailing only Michigan (449.2)

The CDC post as of Thursday, April 22, 2021 12:30 PM ET. still places New Jersey as the second worst state in the nation in new Covid cases per 100,000 at a number of 268.7, which is more than twice the national average of 132. Michigan, the worst state, is at 449.2. For reference below, note that North Dakota is at 131.9 (basically right at the national average) and South Dakota is at 128.6. Montana is at 84.8.

There is some talk of people who will decline to get the vax. The New York Times, on April 22 [below], correlated those declining to be VAXd with those who were Trump voters. One notes that the areas with relatively higher non-VAX fractions turn out to be in those states with about average, or below average, Covid infection numbers. They also are in "Trump voter" states. The states with high Covid infection numbers, such as Michigan and New Jersey, are "Biden states."

There is some talk that the next obstacle will be to convince such people to get VAXd. In New Jersey, as of 22 April 2021, there are still issues with getting a VAX appointment at all [below]. The immediate question that might be addressed is "why" Michigan and New Jersey have such high Covid infections per 100,000 of population.

One might think these issues would be newsworthy in the local New Jersey newspapers. In fact, the cover of the April 22, 2021 of the Courier News. was about whether or not high schoolers could dance at the 2021 prom. [Recall Lee Ann Womack: And when you get the choice to sit it out or dance] See also IPBiz of 15 April 2021,
New Jersey remains as the third worst state in Covid cases per capita; nationwide U.S. at 146.7 cases per 100,000

See also Talal Ansari in Wall Street Journal, 21 April 2021: Michigan’s Spring Covid-19 Surge Is Close to Previous Pandemic High

Roni Caryn Robin in NYT, An unvaccinated worker set off an outbreak at a U.S. nursing home where most residents were immunized. including text: "The outbreak involved a variant of the virus that has multiple mutations in the spike protein, of the kind that make the vaccines less effective. Vaccinated residents and health care workers at the Kentucky facility were less likely to be infected than those who had not been vaccinated, and they were far less likely to develop symptoms. The study estimated that the vaccine, identified as Pfizer-BioNTech, showed effectiveness of 66 percent for residents and 75.9 percent for employees, (...) In the Kentucky outbreak, the virus variant is not on the C.D.C.’s list of those considered variants of concern or interest. But, the study authors note, the variant does have several mutations of importance: D614G, which demonstrates evidence of increased transmissibility; E484K in the receptor-binding domain of the spike protein, which is also seen in B.1.351, the variant first recognized in South Africa, and P.1. of Brazil; and W152L, which might reduce effectiveness of neutralizing antibodies."

Wednesday, April 21, 2021

New Jersey still number 2 in new Covid cases per 100,000; number of cases increased!

New Jersey retains its ranking as the second worst state in the nation for new Covid infections per 100,000, and the number is UP relative to the previous report. New Jersey with 25,963 new cases (over last 7 days) has a fraction of 292.3 new cases per 100,000, which is up from the previous count of 285.6. Michigan leads the nation with 519.8, with the national average being 140.6.

A front page article in the 21 April 2021 issue of the Newark Star-Ledger entitled "IS N.J. finally beating back Covid-19?" begins "New cases are dropping..." Well, not exactly. Of course, as the pool of people who never had Covid (and/or who won't get Covid because of VAX) diminishes, yes, the fraction of "new cases" will necessarily drop, because the number of people who could be in that category diminishes.

The Murphy target for vaccinations is 70% (4.7 million people) by the end of June 2021. One notes that is still hard to get a vaccination at CVS.

First two pages from the CDC; third from CVS; fourth from Star-Ledger link: cdc: https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days link: cvs: https://www.cvs.com/immunizations/covid-19-vaccine?icid=cvs-home-hero1-banner-1-coronavirus-vaccine#statetool

CAFC addresses a "“Request to Change the Real-Party-in-Interest from Third-Party Requestor" and FRAP 43 in Mojave Desert case

The outcome was that the PTAB got the case wrong:

We therefore conclude that Mojave is the successor-ininterest to U.S.A. Dawgs, that it has standing to pursue this challenge to the ’789 patent, and that the Board erred in not substituting Mojave for U.S.A. Dawgs as the thirdparty requester during the inter partes reexamination.

Under these circumstances, we think that no useful purpose would be served by remanding to the Board to add Mojave as the requester and that the appropriate course is to grant the motion to substitute on appeal pursuant to Rule 43(b) of the Federal Rules of Appellate Procedure. See Mullaney v. Anderson, 342 U.S. 415, 417 (1952);13 see also Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 833–34 (1989) (reaffirming Mullaney); Carlton v. Baww, Inc., 751 F.2d 781, 789 (5th Cir. 1985) (permitting amendment to a pleading at the appellate court because “it appear[ed] plainly from [the] record that jurisdiction exists,” and as a result, “it best serve[d] the interests of justice to grant the motion for leave to amend [in the appellate court], without requiring a perfunctory remand for that purpose” (citations omitted)).

Of the motion to substitute:

The motion to substitute is made pursuant to Rule 43(b) of the Federal Rules of Appellate Procedure, which provides that, “[i]f a party needs to be substituted for any reason other than death, the procedure prescribed in Rule 43(a) applies.” Fed. R. App. P. 43(b).6 Substitution [under Rule 43(b)] may . . . be necessary when a party is incapable of continuing the suit, such as . . . when a transfer of interest in the company or property involved in the suit has occurred[] or when the focus of the litigation has shifted, making another entity the real party in interest. 21 James W. Moore et al., Moore’s Federal Practice – Civil § 343.12 (2020).

Of a "protective notice of appeal":

Crocs also argues that Mojave failed to file a notice of appeal from the Board’s decision. Mojave could not file a notice of appeal because it had not been added as a party by the Board to the inter partes reexamination proceeding. Under Nevada law, however, U.S.A. Dawgs retained the ability to file a protective notice of appeal12 and did so on November 8, 2019. That was sufficient to confer jurisdiction on this court. Other courts have apparently reached similar conclusions. See, e.g., Barger v. City of Cartersville, 348 F.3d 1289, 1291–93 (11th Cir. 2003) (determining that the notice of appeal filed by transferor was sufficient), overruled on other grounds by Slater v. U.S. Steel Corp., 871 F.3d 1174 (11th Cir. 2017); ELCA Enters., Inc. v. Sisco Equipment Rental & Sales, Inc., 53 F.3d 186, 190–91 (8th Cir. 1995) (permitting party denied substitution before the district court to appeal despite transferring all interest in lawsuit).

Tuesday, April 20, 2021

Hard for poor people to get vaccinated in New Jersey

One IPBiz reader asked why IPBiz keeps mentioning the absence of Covid vaccine appointments at CVS. There are several reasons.

1. In the New Jersey system of vaccine registration, one had to register at more than one hundred different sites. There is no central system that allows one to look for the closest vaccination site and book an appointment there. At an earlier time, the "official" New Jersey system only covered about 8% of the sites, and one still had to deal with the individual site (among the 8%) to get an appointment.

2. In theory, the CVS system, which in principle allowed vaccinations at many, geographically separated, sites, was a good bet. One could get a VAX appointment "close to home." Governor Murphy praised the CVS system.

3. In practice, getting an appointment at a nearby CVS store proved illusory.

There is another problem. Without the availability of vaccination sites near population centers, poorer people could not get vaccinated. For example, in Somerset County, the main VAX site was at Raritan Valley Community College, which is located a distance from the population centers of Somerset County. Moreover, to get a VAX, one had to ARRIVE in a car, AND GET VACCINATED in a car. That is a problem for people without access to a car.

Some of the issues are covered in a Newark Star-Ledger article on 20 April 2021. Note that people without ready access to the internet (independently of whether they were, or were not, internet savvy) were at a big disadvantage.

Appellant Cerner loses at CAFC, failed to present its main argument to the Board

The CAFC decision in Cerner begins:

This is not the first time issues presented on appeal do not mirror directly those presented to the lower tribunal. Such is the case here. Because we conclude that the claim construction debate on which this appeal initially turns was never presented to the Patent Trial and Appeal Board (“Board”) and that the Board had substantial evidence to support its assessment of the prior art disclosure at issue, we affirm the Board’s patentability determination.


The problem for Cerner is that it never asked the Board to construe the term “portion” in the storing clause of claim 1 and the Board did not do so. Cerner and Clinicomp asked for a number of terms to be construed and the Board thoroughly analyzed each of the identified claim term

Instead, the parties and the Board proceeded on the assumption that the terms “partition” as used in the specification and the term “portion” as used in the claim were interchangeable and that they had a common ordinary meaning to one of skill in the art. As the Board described it, the two words were distinct, but it was a “distinction without a substantive difference.” J.A. 85. The Board’s finding on this point was not persuasively debated below, and with good reason. It is supported both by the plain language of the ’647 patent specification and by the testimony of both experts. Quite simply, the Board did not decline to construe any claim term presented to it and did not misunderstand the parties’ requests for claim construction.

The idea of "moving the goalposts" comes up in footnote 2:

As the Board noted, Cerner’s contention that claim 1 did not actually require “partitioning” was a belated attempt to move the goalposts— one without evidentiary support.

New Jersey still the second worst state in terms of new infections per 100,000, but infections are dropping each day

The national average for new Covid infections per 100,000 (averaged over the last 7 days) is now 140.7, with New Jersey still the second worst state in the nation at 285.6, trailing only Michigan at 485.2. Getting appointmens for vaccinations is difficult, but not impossible.

Included below are CDC data for infections, both normalized per 100,000 of people and absolute. To interconvert, one divides ((the number infections) by (state population)) and multiplies by 100,000. Thus, roughly, for New Jersey 25,363/8,970,000 X 100,000 is 282.

Monday, April 19, 2021

New Jersey remains the second worst Covid state in terms of new infections per 100,000 people on April 19, 2021 the day vaccine eligibility expands

With the national average at 142.2 new Covid infections per 100,000 population, New Jersey at 288.2 (more than twice the national average) remains as the second worst state in the nation, trailing only Michigan (533.7). Monday, April 19, 2021 is the day that vaccine eligibility expanded in New Jersey, which event made the first page of the Newark Star Ledger. However, vaccine appointments remained hard to obtain (see CVS availability below).

Covid data from the CDC on 19 April 2021

Sunday, April 18, 2021

As of April 18, 2021, New Jersey rises to number 2 ranking for worst Covid infections per 100,000 population

With the U.S. average for Covid infections at 142.2 infections per 100,000, New Jersey, at 288.2 was second in the nation, trailing only the state of Michigan ( 533.7 ). Pennsylvania at 270.6 was number 3. Florida was at 198.4. [See https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days]

Of previous coverage, from NBC5 news on 6 April 2021: New York, Michigan, Florida, Pennsylvania and New Jersey together reported 44% of the nation's new COVID-19 infections, or nearly 197,500 new cases, in the latest available seven-day period, according to state health agency data compiled by Johns Hopkins University. Total U.S. infections during the same week numbered more than 452,000. The heavy concentration of new cases in states that account for 22% of the U.S. population has prompted some experts and elected officials to call for President Joe Biden’s administration to ship additional vaccine doses to those places. So far, the White House has shown no signs of shifting from its policy of dividing vaccine doses among states based on population.

link: https://www.nbcdfw.com/news/national-international/nearly-half-of-new-us-virus-infections-are-in-just-5-states-ny-nj-pa-fla-and-mich/2598625/

The Newark Star-Ledger ran a page one article on 18 April 2021 titled "Hesitancy over vaccines low in N.J," which began with the text: "Across the United States, vaccinations are opening for any adult who wants one, with a goal of inoculating enough people to allow for a return to normalcy." But as the shots become available to everybody, will everybody roll up their sleeves for them?"

Being WILLING to get vaccinated is one thing; getting an appointment to actually get vaccinated is something else.

Looking at the CVS vaccination website [ https://www.cvs.com/immunizations/covid-19-vaccine?icid=cvs-home-hero1-banner-1-coronavirus-vaccine#statetool ], one sees on April 18 that most (but not all) sites are FULLY BOOKED. A sample page follows.

As to New Jersey's rank as second worst in the nation:

Friday, April 16, 2021

On April 16, 2021, New Jersey remains number 3 in Covid infections per 100,000 people at 282.5, with the national average at 146.3

Although New Jersey's Covid infections per capita has been dropping (now at 282.5 ), it is still the third worst in the nation, trailing only Michigan (538.1) and Rhode Island ( 302.6 ) and far in excess of the national average of 146.3.

The April 16 issue of the Newark Star Ledger had a small article on page A3. The article did NOT mention New Jersey's number 3 position in Covid cases per 100,000. It did not that the rate of transmission (Ro) remained at 0.92 on Thursday, April 15 down steadily form 1.07 on April 5. Governore Murphy was quoted: "Better days are coming folks. I know this for sure."

Of the publication by the Courier-News on April 15, 2021 of the "healthiest" counties in New Jersey, note that Bergen County ranks number one in Covid infections and Middlesex County number three in Covid infections. One might think that Covid risk enters into assertions of "healthiest" !!!

Thursday, April 15, 2021

New Jersey remains as the third worst state in Covid cases per capita; nationwide U.S. at 146.7 cases per 100,000

Although dropping in new Covid cases per 100,000 to the number 287.2 (about twice the national average), New Jersey is the third worst state in the nation on April 15, 2021, lagging only Michigan ( 551.6 ) and Rhode Island (304.5 ).

Radio station 101.5 talked about the new normal for high school students in which a New Jersey prom, if held at all, might occur without dancing allowed.

According to an article in the Courier News, Bergen and Middlesex are the state of New Jersey's 4th and 5th healthiest counties. More on that later

Wednesday, April 14, 2021

Apple loses at CAFC

The outcome

Apple Inc., HTC Corp., and HTC America, Inc. (collectively, Appellants) appeal a Patent Trial and Appeal Board final written decision holding Appellants failed to prove claims 1–3, 5–9, and 11 of U.S. Patent No. 6,611,676 would have been obvious over Keskitalo1 in view of Lindell.2 We affirm.

Covid cases per capita in the United States up 10% in last week; New Jersey falls to the third worst state

Covid cases in the United States as a whole are rising, going from 133.8 per 100,000 on April 7 (see IPBiz post New Jersey now only #2 in Covid cases per capita ) to 147.5 (as of 12:43pm on April 14, 2021). That is an increase of 10% in one week. New Jersey at 294.8 cases per 100k, fell to the third worst state in the country, behind Michigan ( 551.8 ) and Rhode Island ( 304.4 ). States adjacent to New Jersey, Pennsylvania and Delaware were the fifth and sixth worst states, slightly better than New York ( 234.4 )

Tuesday, April 13, 2021

Covid cases in the U.S. as of April 12: New Jersey still number 2 (at 296 per 100K); U.S. average up to 142.6

From the CDC for the states with the most new cases per 100K of population:

Monday, April 12, 2021

Standing issue in WiNet case

It is well-established that “every federal appellate court has a special obligation to ‘satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,’ even though the parties are prepared to concede it,” and that the principle applies to the issue of Article III standing. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (quoting Mitchell v. Maurer, 293 U.S. 237, 244 (1934)); see also FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230–31 (1990). “To have standing, a plaintiff must ‘present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged behavior; and likely to be redressed by a favorable ruling.’” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2565 (2019) (quoting Davis v. Fed. Election Comm’n, 554 U.S. 724, 733 (2008)).

Here, the only basis on which WiNet has asserted that the alleged infringement caused it an injury required for Article III standing is its asserted ownership of the ’374 patent. We have now been presented with evidence that casts grave doubt on whether WiNet has any ownership interest in the patent

Tolmar case on attorney fees

The CAFC in affirming the district court observed:

Tolmar raises three primary arguments on appeal, of which none are persuasive. First, Tolmar contends that the district court applied the wrong legal test by focusing on limited portions of the case, rather than the totality of the circumstances. However, the record reflects that the district court properly evaluated the totality of the circumstances consistent with the law. We cannot fault the court for doing its job by discussing some specifics of the case as part of that totality analysis.1 Second, Tolmar contends that the district court required a showing of bad faith for exceptionality, but again, Tolmar is mistaken. The district court discussed bad faith only as part of its totality analysis. It never transformed bad faith into an outcome-determinative factor. Third and finally, Tolmar argues that the district court engaged in a clearly erroneous assessment of the evidence, given the conduct of Tolmar’s opponent, Horatio Washington Depot Technologies LLC (“Horatio”). As the district court noted, much of Horatio’s conduct was potentially concerning, but we are not convinced—given the standard of review and the district court’s detailed consideration of these issues—that the court abused its discretion

New Jersey hangs onto "number 2 position" of states with most Covid cases per capita

Although its moving 7 day average of cases per capita is going down, New Jersey remains the second worst state in the nation for Covid cases per 100,000 people at 296, well above the national average of 142.6.

With the "eligibility pool" to expand next Monday, seniors and other compromised people are in for rougher sledding to get an appointment, as per a front page story in the Newark Star-Ledger on April 12, 2021.

Merely fyi as to CVS


See also CNBC post titled Covid variant from South Africa was able to ‘break through’ Pfizer vaccine in Israeli study on B.1.351

April 12: the Civil War began in 1861 and Garretson Road (Bridgewater, NJ) became Route 22 in 2021

The American Civil War began on April 12, 1861. One hundred sixty (160) years latter, a traffic accident at Route 22 and Country Club Road brought down power lines and forced traffic normally on Route 22 onto Garretson Road in Bridgewater, NJ.

Sunday, April 11, 2021

New Jersey still second worst in the United States for new Covid cases per 100k population on 10 April 2021, trailing only Michigan

The discussion of Covid in the Sunday editions of New Jersey newspapers Star-Ledger and Courier Nees was minimal. The Star Ledger ran a short piece on page A9 emphasizing that the rate of transmission (Ro or Rt) was below 1.0, which is a good thing. Both papers did not note that New Jersey had the second highest fraction of new Covid cases per 100,000 (as of April 10 at 8pm: 310.2 per 100K), which trailed only the state of Michigan ( 533.4 ), with the national average for all states at 140.5 cases per 100K. Thus, New Jersey is 2.21 times the national average (310.2/140.5) and even the differential is 169.7/140.5 = 1.21 times the national average.

The "bad" states, per CDC data, are as follows:

The "good" states are:

link: https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days

The Newark Star-Ledger of April 11, 2021 did not mention New Jersey's "number 2 ranking" on "new cases" per 100K of population:

Comparing the following table (doses delivered to those 18 or older) to the above first two tables, one notes that there is no obvious correlation suggesting "more doses delivered" produces "fewer new cases":

Saturday, April 10, 2021

Michigan in Covid free fall; BUT compare VAX utilization to Covid cases (the worst is best?)

Michigan keeps getting worse as to Covid cases, being now above 500 cases per 100,000 population. But note which states are at the bottom of this list and compare that to a map of VAX in the arm.

The bad, led by Michigan

The "good," led by Arkansas and Alabama

And as to vaccination

Friday, April 09, 2021

New Jersey still number 2 behind Michigan in Covid cases per 100K population

The 7 day average case "rate" (newly reported cases per 100,000 people) for the entire United States is 135.3 per 100,000 people. As of April 8, 2021, New Jersey is 2.43 times the national average. Michigan is 3.64 times the national average.

link: https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days

As to deaths per 100K

AND at CVS [ https://www.cvs.com/immunizations/covid-19-vaccine?icid=cvs-home-hero1-banner-1-coronavirus-vaccine#statetool ] there are TWO CVS locations available at this SPECIFIC point in time:

Mount Ephraim


Wednesday, April 07, 2021

New Jersey now only #2 in Covid cases per capita

The "good news" for new Covid cases in New Jersey is that between April 5 and April 6, 2021, New Jersey ceased being #1 in the United States in Covid cases per capita, falling from 351 to 335 per 100,000, and overtaken by the state of Michigan, which state had 471 (!).

The bad news is that New Jersey is 2.5 times (ie 250%) higher than the national average of 133.8. Moreover, New Jersey is 1.95 times the 171.7 number for the state of Florida.

See also New Jersey leads the nation in Covid cases per capita

New Jersey seniors to Governor Murphy: [you're] killing me softly with your song

From the CDC-->

AND, as to increased vaccination eligibility, note that "eligibility" and a tangible appointment are TWO VERY DIFFERENT THINGS; on April 7 for CVS in New Jersey:

Apple and Fish&Richardson go down in flames at the CAFC

The outcome was that Apple lacked standing to be in the appeals court:

Apple Inc. appeals an inter partes review final written decision of the Patent Trial and Appeal Board holding Apple did not prove claims 1–14 and 16–18 of U.S. Patent No. 7,844,037 would have been obvious. Apple also appeals another final written decision of the Board holding Apple did not prove claims 1–6 and 8–20 of U.S. Patent No. 8,683,362 would have been obvious. Because Apple lacks standing to maintain either appeal, we dismiss.

The "Consumer Watchdog" case was cited in an odd way:

“Article III standing is not necessarily a requirement to appear before an administrative agency.” Consumer Watchdog v. Wis. Alumni Research Found., 753 F.3d 1258, 1261 (Fed. Cir. 2014) (citing Sierra Club v. E.P.A., 292 F.3d 895, 899 (D.C. Cir. 2002)).

In THAT case, "Consumer Watchdog" was found to LACK STANDING, and the appeal thrown out. Thus, the citation is to a statement not relevant to the decision in "Consumer Watchdog." Furhtermore, on the technical side, in the time since, the particular stem cells in question proved to be irrelevant.

The Apple case contains some interesting quotes:

These rules prevent an appellee or respondent from having to “flail at the unknown in an attempt to prove the negative.” Sierra Club, 292 F.3d at 901.

(“[B]uyer’s remorse, without more, is not a cognizable injury under Article III of the United States Constitution.”).

The "judicial notice" comment was of interest:

To cure the deficiencies in its evidence, Apple suggested we could take judicial notice that Apple sells and will continue to sell its smart phone products. Oral Arg. at 33:45–34:19. A court may take judicial notice of a fact only when it is either “generally known” or “accurately and readily [discernible] from sources whose accuracy cannot reasonably be questioned.” FED. R. EVID. 201(b); see B.V.D. Licensing Corp. v. Body Action Design, Inc., 846 F.2d 727, 728 (Fed. Cir. 1988) (“Courts may take judicial notice of facts of universal notoriety, which need not be proved, and of whatever is generally known within their jurisdictions.”) What products and product features Apple may be selling at the expiration of the license agreement years from now are not the kind of undisputed facts we may take judicial notice of because they may be reasonably questioned. See, e.g., In re Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006) (declining to take judicial notice of a “long-felt but unresolved need for a device that will help the blind read”). We are not fortune-tellers. Accordingly, we must decline Apple’s invitation to take judicial notice

Tuesday, April 06, 2021

New Jersey leads the nation in Covid cases per capita

Further to the IPBiz post New Jersey seniors to Governor Murphy: [you're] killing me softly with your song , the Courier-News, in a front page story on April 6, 2021 stated:

(...)New Jersey leads the nation in cases per capita the past seven days, with 351 per 100,000, according to the Centers for Disease Control and Prevention.

On page 11A, the April 6 Courier News ran a story "Alleged vaccine favoritism examined," by one Zac Anderson of the Sarasota Herald Tribune, which discussed charges made in the "60 Minutes" story of April 5 by Sharyn Alfonsi. A different issue about the story had been raised by Fox News; IPBiz had written:

Unlike Hawaii, New Jersey did not have 70+ as first priority or anything other than 65+. Neither did Florida. In first two weeks of Jan 2021, police/firemen were given vax. Then as of 15 Jan 21, over 65 and some others. Difficult to get appt and fierce competition. NJ "state" website only covered 8% of available vax. Curiously, "60 Minutes" criticized DeSantis for prioritizing seniors (over 65) tho Murphy did exactly same thing. **from 60 min "Florida's rollout started pretty typically. The first doses were given to healthcare workers and nursing home residents in early December," Alfonsi began. "But then, a few weeks later, Gov. Ron DeSantis, breaking from CDC guidelines, announced he would not vaccinate teachers and essential workers next but instead put seniors first, making anyone 65 and over eligible for the vaccine, the first in the country to do that." "DeSantis said seniors were at highest risk," she added, implying that it was an unsubstantiated claim made by the governor rather than following the science that showed a substantially larger death toll amongst older Americans. Recent demographic data from the Centers for Disease Control shows about 80 percent of coronavirus deaths have been among ages 65 and older, and 95 percent of them among those over age 50. The report went on to suggest DeSantis was to blame for having Florida's 4.5 million seniors "compete against each other" to get the vaccine and for the state's Health Department phone lines "failing" and websites "crashing." **Separately

If Hawaii has high OVERALL vax fraction, but low 65+ vax fraction, then there is more than late 65+ rollout.

The CAFC tackles evidentiary rules in the Wi-Lan case

Wi-Lan lost at the CAFC:

Wi-LAN Inc. appeals two related judgments of the United States District Court for the District of Delaware, on summary judgment in one instance and by stipulation in the other, holding that Sharp Electronics Corporation and Vizio, Inc. did not infringe the asserted claims of U.S. Patent No. 6,359,654 (“the ’654 patent”) and U.S. Patent No. 6,490,250 (“the ’250 patent”). We affirm.

One has an interesting issue on declarations as evidence in summary judgment:

As Wi-LAN notes, declarations are typically used at summary judgment as a proxy for trial testimony. But declarations cannot be used for this purpose unless the witness will be available to testify at trial. Under Federal Rule of Civil Procedure 56(c)(2), Wi-LAN was required to “explain the admissible form that is anticipated.” Fed. R. Civ. P. 56(c)(2) advisory committee’s notes on 2010 amendments. Wi-LAN argued that it met this burden by explaining that the declarants were available to testify at trial. The district court, however, found the opposite. Indeed, when asked by the court at the summary judgment hearing whether the declarants would appear at trial, Wi-LAN’s counsel responded that Wi-LAN did not “think that [it would be] able to force them to come to trial.” J.A. 15,398–99.

Wi-LAN thus did not establish that the declarants would be available to testify at trial and, as a result, the declarations could not be used as a substitute for trial testimony. E.g., Fraternal Order of Police, Lodge 1 v. City of Camden, 842 F.3d 231, 238 (3d Cir. 2016) (testimony admissible if declarants were available to testify at trial); J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990) (“[H]earsay evidence produced in an affidavit opposing summary judgment may be considered if the out-ofcourt declarant could later present the evidence through direct testimony, i.e., in a form that ‘would be admissible at trial.’” (quoting Williams v. Borough of West Chester, 891 F.2d 458, 465 n.12 (3d Cir. 1989)).

Wi-LAN also seems to argue that it properly authenticated the source code printout because the declarations were custodial declarations that were themselves admissible as business records under Rule 803(6). Wi-LAN, however, admits that it obtained the source code printout and declarations by filing lawsuits against the manufacturers and then dismissing the lawsuits without prejudice after the manufacturers provided Wi-LAN with the source code printout and declarations it sought. Wi-LAN even explains that “[t]he lawsuits were necessary to secure production of the source code and declarations because [the system-onchip manufacturers] had refused to cooperate in discovery.” Appellant’s Br. 51. The declarations thus do not constitute a “record [that] was kept in the course of a regularly conducted activity of a business.” Fed. R. Evid. 803(6)(B). Instead, the declarations were created and prepared for the purposes of litigation, placing them outside the scope of the exception. As a result, the declarations were not admissible as business records for use to authenticate the source code printout. Wi-LAN argues alternatively that, under Third Circuit law, these deficiencies in the declarations did not preclude their use. It bases its theory on the Third Circuit’s view that “the testimony of the custodian or another qualified witness” under Rule 803(6)(D) “can be met by documentary evidence, affidavits, or admissions of the parties, i.e., by circumstantial evidence, or by a combination of direct and circumstantial evidence.” In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 288 (3d Cir. 1983), rev’d on other grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). The Third Circuit adopted this view after concluding that “[i]t would make little sense to require live witness testimony every time a business record is offered when, from the other materials open for the court’s consideration, it can make the required finding to its own satisfaction.” Id. The Third Circuit’s approach runs counter to the text of Rule 803(6), which requires the conditions of the Rule to be shown “by the testimony of the custodian or another qualified witness[] or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification.” Fed. R. Evid. 803(6)(D). Its view appears not to have been widely adopted. See 5 Weinstein’s Federal Evidence § 803.08[c] & n.76. But even under this approach, the declarations do not suffice because Wi-LAN does not meet Rule 803(6)’s final requirement that “the opponent does not show that the source of information or the method or circumstance of preparation indicate a lack of trustworthiness.” Fed. R. Evid. 803(6)(E). The district court concluded that Sharp and Vizio “have demonstrated a lack of trustworthiness in the materials; the source code contains inconsistent dates in the metadata, copyright, and revisions histories as well as added commentary on the printed excerpts.” J.A. 29. The court also found that Wi-LAN “failed to obtain change logs, file comparisons, or other evidence of code revisions that might clear up the inconsistencies in the code.” J.A. 29. And the district court found that

[t]he circumstances surrounding the production, including the fact that the [system-on-chip] manufacturers originally claimed that they could not produce one version of source code for all [system on-chips] at issue in the case, raise[d] further concern as to the credibility of both the source code and the [system-on-chip] declarations seeking to authenticate the code.
SEPARATELY Wi-LAN’s argument presents two separate and distinct questions: (1) whether the source code printout was admissible because it was relied on by the expert and (2) whether the expert’s testimony relying on the source code was admissible to establish infringement. The answer to the first question is “no” because expert reliance does not translate to admissibility. The answer to the second question is also “no” because Wi-LAN did not establish that experts in the field “reasonably rely on” unauthenticated source code. As to the first question, “Rule 703 does not make admissible otherwise inadmissible evidence.” 4 Weinstein’s Federal Evidence § 703.05 n.12. That is because “Rule 703 is not, itself, an exception to or exclusion from the hearsay rule or any other evidence rule that makes the underlying information inadmissible.” Id. § 703.05. Rule 703 does not authorize admitting inadmissible evidence “on the pretense that it is the basis for expert opinion when, in fact, the expert adds nothing to the [inadmissible evidence] other than transmitting [it] to the jury.” 29 Charles Alan Wright, Arthur R. Miller & Victor J. Gold, Federal Practice and Procedure § 6274 (2d ed. 2020). “In such a case, Rule 703 is simply inapplicable and the usual rules regulating the admissibility of evidence control.” Id. Rule 703 permits the proponent of an expert’s opinion to disclose the underlying material to a jury if “experts in the particular field would reasonably rely on” the underlying material and “if [the underlying material’s] probative value in helping the jury evaluate the opinion substantially outweighs [its] prejudicial effect.” Fed. R. Evid. 703. But “the trial judge must give a limiting instruction upon request, informing the jury that the underlying information must not be used for substantive purposes.” Fed. R. Evid. 703 advisory committee’s notes to the 2000 amendments. These principles have been reaffirmed repeatedly.

As to the second question (the admissibility of the expert’s testimony as to infringement), under Rule 703, “[d]ata relied on by the expert ‘need not be admissible for the opinion to be admitted’ if experts in the field would reasonably rely on such data.” Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc., 711 F.3d 1348, 1373 (Fed. Cir. 2013) (quoting Fed. R. Evid. 703). “[I]t is the judge who makes the determination of reasonable reliance, and . . . for the judge to make the factual determination under Rule 104(a) that an expert is basing his or her opinion on a type of data reasonably relied upon by experts, the judge must conduct an independent evaluation into reasonableness.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 748 (3d Cir. 1994). The burden to establish reasonable reliance is on the proponent of challenged expert testimony. See id. at 743–44, 747–48. Wi-LAN argues that experts typically rely on material, like source code, in reaching opinions about infringement. That is obviously correct. But Wi-LAN has not made a showing that source code experts reasonably rely on unauthenticated source code printouts.

Monday, April 05, 2021

New Jersey seniors to Governor Murphy: [you're] killing me softly with your song

From the lyrics of the song popularized by Roberta Flack:

Killing me softly with his song Killing me softly with his song

I felt all flushed with fever, embarrassed by the crowd

I prayed that he would finish, but he just kept right on

And then he looked right through me as if I wasn't there.

Recent CDC data places New Jersey in the "bottom ten" for doses per 100,000 of people over 65 years of age, with a number of 120,150. [South Dakota is in the "top ten" with 154,862 and Connecticut has 154,224}:

This bad number is on top of the "nursing home" issue faced by Governors Murphy and Cuomo. See The nursing home issue in New Jersey's high Covid death per capita number . If one wants to get an idea why New Jersey was number one in the nation in Covid infections per capita for parts of March 2021 (with Ro ranging from 1.08 to 1.10), take a look at "who" is not getting vaccinated (the vulnerable people).

Thursday, April 01, 2021

McCoy loses appeal at CAFC, BUT there is an interesting contrast between a "person of ordinary skill" and an expert

The outcome was that Appellant McCoy lost but the discussion about "person having ordinary skill in the art" (a PHOSITA or POSA) is rather interesting.

The Board issued its final written decision on December 30, 2019, concluding that all challenged claims are unpatentable as anticipated and/or obvious. J.A. 1–78. Relying on expert testimony, HEAL proposed a definition of a person having ordinary skill in the art (“POSA”). McCoy objected to the Board’s adoption of HEAL’s proposed definition because HEAL’s expert stated, along with the definition, that a POSA would have had access to an expert. In its decision, the Board adopted HEAL’s proposed definition of a POSA. Specifically, the Board concluded “that an ordinarily skilled artisan at that time of invention ‘would have had at least a Bachelor of Science degree in mechanical, petroleum, or chemical engineering, or a related degree, and at least 3-4 years of experience with downhole completion technologies related to deliquification or artificial lift and gas separation.’” J.A. 42. After considering McCoy’s objection, the Board agreed with HEAL’s expert testimony that access to an expert would not convert a POSA into an expert. The Board also determined that a POSA would indeed have access to experts in this particular field. J.A. 43.

McCoy argues that the Board erred by defining the POSA as having “access to” and the ability to “consult with other experts,” and that such a definition is contrary to statutory law, the law of the Supreme Court, and this court. Appellant’s Br. 23. McCoy contends that the Board improperly keyed its analysis to the skill of experts rather than ordinary skill, which allows for hindsight bias and improperly adds the insight of experts. According to McCoy, the Board’s definition constitutes reversible error that infects the Board’s anticipation and obviousness determinations with respect to all challenged claims.

The POSA is patent law’s hypothetical, legal construct “akin to the ‘reasonable person’ used as a reference in negligence determinations.” In re Rouffet, 149 F.3d 1350, 1357 (Fed. Cir. 1998). This theoretical person is the objective vantage point for making obviousness determinations according to the statute, see 35 U.S.C. § 103,1 and Supreme Court and Federal Circuit case law, see Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966); see Custom Accessories, Inc. v. Jeffrey-Allan Indus., 807 F.2d 955, 962 (Fed. Cir. 1986). The legal definition of “ordinary” skill for a POSA can be contrasted with one of “expert” skill. See Env’t. Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 697 (Fed. Cir. 1983) (emphasizing “the need to adhere to the statute, i.e., to hold that an invention would or would not have been obvious, as a whole, when it was made, to a person of ‘ordinary skill in the art’—not to the judge, or to a layman, or to those skilled in remote arts, or to geniuses in the art”). By contrast, the role of an expert is to give an impartial opinion on a particular matter that is in dispute and within her expertise. See, e.g., 37 C.F.R. § 42.62; FED. R. EVID. 702. As a threshold matter, we are not convinced that the Board expressly included expert skill in its definition of the POSA. As referenced above, HEAL’s expert defined a POSA, and the Board adopted that definition. HEAL’s expert further opined that a POSA would have had access to an expert, and the Board merely agreed that, in this particular field, a POSA would indeed have had access to an expert. J.A. 43. Nevertheless, for purposes of our analysis, we assume that the Board intentionally included “access to an expert” in its POSA definition.

The problem with this definition is that in the abstract, it may be overly broad. A POSA could, for example, appropriately rely on a seismologist to conduct a seismological test if in the relevant art the POSA routinely would rely on such expert assistance. Reliance on another type of expert, if not routine in the art, might not be appropriate. In each case, the definition of POSA must be tailored to practice in the art. Here, it appears common for POSAs to rely on experts to some extent. Specifically, HEAL’s expert opined that a POSA would have accessed other technical experts in the field because the POSA would have been trained and encouraged to do so. Appellee’s Br. 25–26 (citing J.A. 1440–41). McCoy’s expert admitted that even he frequently consults with field engineers and agreed that this did not make them experts. Id. (citing J.A. 1547–75). We conclude that the Board did not improperly determine the challenged claims’ patentability from an expert’s perspective rather than a POSA’s perspective.

Even if we deem that the Board’s POSA definition was erroneous, we see no indication that it affected the outcome as required to constitute reversible error. See Innovention Toys, 637 F.3d at 1323; Elbit Sys. of Am., LLC v. Thales Visionix, Inc., 881 F.3d 1354, 1356 (Fed. Cir. 2018) (“If two inconsistent conclusions may reasonably be drawn from the evidence in record, [the PTAB]’s decision to favor one conclusion over the other is the epitome of a decision that must be sustained upon review for substantial evidence.” (alteration in original) (internal quotation marks omitted)). McCoy does not identify any instance where “expert” knowledge was applied and led to an erroneous conclusion. See, e.g., Ruiz v. A.B. Chance Co., 234 F.3d 654, 667 (Fed. Cir. 2000) (collecting cases where reversal is not warranted if “it was not shown that the failure to make a finding or an incorrect finding on level of skill influenced the ultimate conclusion under section 103 and, hence, constituted reversible error” (quoting Custom Accessories, 807 F.2d at 963)); see also Appellant’s Br. 28. Although the Board agreed that a POSA would have access to an expert, this by itself does not necessarily mean that the Board made patentability determinations based on an expert level of skill in the art. See, e.g., J.A. 43 (the Board finding McCoy’s argument that having access to an expert renders a POSA an expert “wholly unsupported by any citation to objective evidence”). We therefore conclude that any perceived error in the Board’s definition did not result in incorrect unpatentability findings, and we affirm the Board’s decision in that regard