Thursday, September 30, 2021

CAFC in AMC Multi-Cinema. The matter of claim 7 of U.S. Patent No. 9,454,748

The outcome:

Fall Line Patents, LLC owns U.S. Patent No. 9,454,748, entitled “System and Method for Data Management.” The appellants (collectively, AMC) challenged various claims of the ’748 patent in an inter partes review in the Patent and Trademark Office. The Office’s Patent Trial and Appeal Board held all challenged claims unpatentable for obviousness, except for independent claim 7. For claim 7, the Board deemed AMC’s petition for inter partes review insufficient regarding the prior art’s teaching of a required claim limitation, making AMC’s reply elaboration and evidence impermissible, and also deemed that reply material insufficient on its merits. American Multi-Cinema, Inc. v. Fall Line Patents, LLC, 2020 WL 4530148, at *19–26 (P.T.A.B. Aug. 5, 2020) (Final Written Decision). AMC appeals. We hold that, as to AMC’s petition, the Board abused its discretion in its reading of one short, integrated, uninterrupted passage about the disputed limitation of claim 7—which, we conclude, fairly stated in terse form why the limitation was met by the prior art and sufficed to permit AMC to submit, in reply, further evidence that explained, without materially altering, that point. We also hold that the Board gave an inadequate explanation of why the AMC reply material was unpersuasive on the merits of that point. For those reasons, while we affirm the Board’s rejection of certain contentions by AMC, we vacate the Board’s decision as to claim 7 and remand for further proceedings.


For the foregoing reasons, we affirm the Board’s rejection of AMC’s contentions regarding claim 7’s limitation (b) except for AMC’s reliance on the teaching of Barbosa; we vacate the Board’s decision rejecting AMC’s unpatentability challenge to claim 7 based on Barbosa combined with Falls; and we remand for further proceedings consistent with this opinion.


The Board did not address such material. Nor did it explain what “executable” means in this setting—a term about which AMC’s counsel offered somewhat restrictive views in this court. See Oral Arg. at 17:03–20:42, 42:50– 47:25, x?fl=21-1051_08312021.mp3. The Board seems to have assumed that the reply-cited passages did disclose an automatic transfer of something, but it did not provide an explanation, considering all the material properly before it, why what was automatically transferred in those passages, e.g., the passages involving Java applets, did not meet the requirement of being executable. The Board’s analysis leaves us unable adequately to discern the basis of its rejection of AMC’s reply analysis on its merits or ultimately to determine its soundness under the applicable standard of review. See Intelligent Bio-Systems, 821 F.3d at 1366 (“Substantial evidence review asks ‘whether a reasonable fact finder could have arrived at the agency’s decision’ and requires examination of the ‘record as a whole, taking into account evidence that both justifies and detracts from an agency's decision.’” (quoting In re Gartside, 203 F.3d 1305, 1312 (Fed. Cir. 2000))); Icon Health & Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1043–44 (Fed. Cir. 2017). This

National Covid death rate remains at 3.1 per 100,000 per week

Some of the "bad" states:

Alaska 10.9 West Virginia 9.8 Idaho 9.3 Montana 8.1 Guam 7.8 Georgia 7.5 Texas 7.1 Wyoming 7.1 South Carolina 6.2 Tennessee 6.2 Oklahoma 5.9 Alabama 5.7 Louisiana 5.2 Nevada 5.2 North Carolina 4.8 Arkansas 4.7 Kansas 4.5 Arizona 4.1 Connecticut 4.1 Washington 3.7 Virginia 3.4 Mississippi 3.2

CDC | Data as of: September 30, 2021 3:42 PM ET. Posted: September 30, 2021 4:59 PM ET


Wednesday, September 29, 2021

In re Vivent: CAFC notes: Agency action that “departs from established precedent without a reasoned explanation [is] arbitrary and capricious.” Fred Beverages, Inc. v. Fred’s Cap. Mgmt. Co., 605 F.3d 963, 967 (Fed. Cir. 2010)

The AIA is interpreted by the CAFC.

“[I]n the post-AIA world, a patent can be reexamined either in federal court during a defense to an infringement action, in an ex parte reexamination by the Patent Office, or in the suite of three postissuance review proceedings before the Patent Trial and Appeal Board.” Return Mail, Inc. v. U.S. Postal Serv., 139 S. Ct. 1853, 1860 (2019). Often, parties use multiple pathways to challenge validity. For example, an accused infringer may challenge validity both in district court and in an inter partes review (IPR), one of the three post-issuance review proceedings.

This case requires us to determine when one pathway, ex parte reexamination, is available to a requester who has repeatedly tried to use another pathway, IPR, to forward the same arguments. By statute, the Patent Office must find a “substantial new question of patentability” before ordering reexamination, 35 U.S.C. § 303(a), and it may deny reexamination when “the same or substantially the same prior art or arguments previously were presented to the Office,” 35 U.S.C. § 325(d).1 While the ex parte reexamination in this case was based on substantial new questions of patentability, the Patent Office abused its discretion and acted arbitrarily and capriciously under § 325(d). Thus, we vacate and remand with instructions for the Patent Office to dismiss.2

New question of patentability??

To order reexamination, the Patent Office must identify a “substantial new question of patentability.” 35 U.S.C. § 303(a). Vivint challenges the Patent Office’s outcome on that score, which is a question of law that we review without deference. See In re Swanson, 540 F.3d 1368, 1381 (Fed. Cir. 2008) (“[T]he ultimate question of whether the reexamination is based on a substantial new question of patentability . . . remains a question of law.”).4 Vivint argues that, because the ex parte reexamination request repackaged arguments in the ’091 petition, it did not present a new question of patentability. We do not agree.

The broader statutory context, however, clarifies that a question of patentability is new until it has been considered and decided on the merits. See, e.g., Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1748 (2019) (“[T]he words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”). The Patent Office has discretion to deny an ex parte reexamination request that raises an argument that has been previously presented to it: In determining whether to institute or order a proceeding under . . . [§ 303(a)] . . . , the Director may take into account whether, and reject the petition or request because, the same or substantially the same prior art or arguments previously were presented to the Office. 35 U.S.C. § 325(d) (emphasis added). That discretion would be meaningless if a question of patentability was not new simply because it had been previously presented to the Patent Office. Therefore, more is required for a question of patentability to no longer be new; the Patent Office must have considered and decided that question on the merits.


Second, the Patent Office never considered or decided the questions of patentability raised in the ’091 petition. To be sure, the ’091 petition presented several questions of patentability, two of which were identical to questions raised in the ex parte reexamination request. But the Patent Office may deny institution without resolving any questions of patentability. See, e.g., 35 U.S.C. § 325(d). And that is precisely what the Patent Office did in the ’091 Decision; it relied on’s abusive filing practices to deny institution. The Patent Office did not decide the questions of patentability raised in the ’091 petition. Instead, it found’s serial filing to amount to an abuse of process and, therefore, refused to address the merits of the patentability arguments. Thus, we hold the ex parte reexamination in this case was based on substantial new questions of patentability.

U.S. National Covid death rate up to 3.1 per 100,000 per week

The death rate increased from 2.8 to 3.1 [7 DAY DEATH RATE PER 100,000 = 3.1; CDC | Data as of: September 28, 2021 4:50 PM ET. Posted: September 28, 2021 8:40 PM ET ]

The "bad" states:

VAlaska 10 Guam 8.5 Montana 8.1 Georgia 8 South Carolina 8 West Virginia 8 Idaho 7.9 Tennessee 7.4 Texas 7.4 Louisiana 7 Wyoming 6.4 Oklahoma 5.8 Kentucky 5.4 Nevada 5.4 Arkansas 4.9 Indiana 4.7 Mississippi 4.5 Arizona 4.1 Virgin Islands 3.8 Connecticut 3.7 Kansas 3.7 Washington 3.4 Virginia 3.3 Missouri 3.2 Alabama 3 Hawaii 3 Ohio 3 North Carolina 2.9


Tuesday, September 28, 2021

SRI v. Cisco. A win for SRI

The outcome

SRI International, Inc. appeals the United States District Court for the District of Delaware’s denial of its motion to reinstate the jury’s willfulness verdict and to reinstate the district court’s award of enhanced damages. Cisco Systems, Inc. cross-appeals the district court’s award of attorney fees and expenses. Because substantial evidence supports the jury’s finding of willful infringement, we reverse the district court’s denial of SRI’s motion to reinstate the willfulness verdict. Having restored the jury’s willfulness finding, we also restore the district court’s award of enhanced damages. Finally, we affirm the district court’s award of attorney fees.
In SRI II, we held that there was no willful infringement as a matter of law before Cisco had notice on May 8, 2012. We did not decide whether substantial evidence supported the jury verdict of willful infringement after May 8, 2012. Rather, we remanded for the district court to determine this issue in the first instance. We now hold that that substantial evidence supports the jury’s finding of willful infringement after May 8, 2012. We do not disturb SRI II’s holding that there was no willful infringement before May 8, 2012.

Of note

SRI presented evidence that Cisco’s invalidity defenses were unreasonable. Cisco’s only assertion of invalidity over the prior art was based on anticipation by a reference that was twice considered and twice rejected by the Patent Office. See SRI I, 254 F. Supp. 3d at 722 n.52. SRI’s expert testified that this reference was lacking a key limitation of the claims—the requirement for multiple network monitors. Moreover, Cisco’s expert had not even seen (let alone distinguished) the Patent Office’s prior analysis rejecting this same prior art during the reexamination of the asserted patents before that expert opined that this prior art anticipated the claims. SRI also presented evidence to the jury that Cisco did not have any reasonable basis for non-infringement. For example, as its only non-infringement argument for one of two sets of product groupings, Cisco maintained throughout trial that the claims required separate monitors, which its products did not have. Id. at 722. SRI countered that this non-infringement defense was untethered to the district court’s claim construction of a “network monitor,” which expressed no such requirement. See J.A. 22228 (Trial Tr. 1934:13–21) (stating that “during the entire time

U.S. national Covid death rate remains at 2.8 per 100,000 per week

As to the national death rate:

7 DAY DEATH RATE PER 100,000 2.8

The "bad" states

West Virginia 8.5 Alaska 7.9 Texas 7.4 Georgia 7.3 Guam 6.6 Idaho 6.6 Wyoming 6.4 Louisiana 6.2 South Carolina 6.2 Tennessee 6.1 Montana 5.8 Nevada 4.8 Arkansas 4.4 Missouri 4.4 Arizona 4.1 Kentucky 4.1 Indiana 3.7 Oklahoma 3.5 New Mexico 3.2 Washington 3.2 Hawaii 3 Ohio 3 Kansas 2.9

CDC | Data as of: September 27, 2021 1:29 PM ET. Posted: September 27, 2021 2:42 PM ET


New cases

7 DAY CASE RATE PER 100,000 200.8

"Bad" states

Alaska 784.5 West Virginia 652 Guam 528.5 Wyoming 498 Montana 490.2 Idaho 483.1 North Dakota 482.2 Kentucky 417 Ohio 366.2 Delaware 325.6 Tennessee 298.4 South Dakota 288 Wisconsin 286.4 Iowa 285.5 South Carolina 272.2 Texas 270.7 Arkansas 257.3 Pennsylvania 247.4 Minnesota 247.1 Arizona 241.3 Indiana 237.6 Georgia 234.1 Utah 232.4 Mississippi 228.6 Florida 220.6 Oklahoma 213.2 Maine 212.5

Better states:

New Jersey 157.3 North Carolina 153.1 Vermont 152.1 Rhode Island 151.5 Nebraska 148.8 New Mexico 146 Louisiana 145.4 Maryland 144 New York City* 137.7 Massachusetts 127.9 Illinois 127.7 District of Columbia 124.7 Colorado 118.3 Connecticut 68.1

Monday, September 27, 2021

Inadequate Board reasoning in TrustID

TRUSTID, Inc. (“TRUSTID”), the owner of U.S. Patent No. 9,001,985 (“the ’985 patent”), appeals a final written decision of the Patent Trial and Appeal Board (“Board”) determining that certain claims of the ’985 patent were shown to be unpatentable. Next Caller Inc. v. TRUSTID, Inc., No. IPR2019-00039 (P.T.A.B. Feb. 24, 2020), Paper No. 67, Corrected Non-Confidential Joint Appendix (“J.A.”) 1–92 (“Final Written Decision”). Next Caller, Inc. (“Next Caller”) cross-appeals the Board’s determination that other claims of the ’985 patent were not shown to be unpatentable. We affirm-in-part, vacate-in-part, and remand. In particular, we affirm the Board’s decision finding claims 1– 7, 12–14, 16–18, and 22 of the ’985 patent unpatentable. However, because the Board did not adequately explain the reasoning for its non-obviousness determination as to claims 8–11, 19, and 20 of the ’985 patent, we vacate the Board’s decision with respect to those claims and remand for further proceedings.

US national covid death rate drops to 2.8 per 100K per week as of Sept 27

The "bad" states for Covid death:

West Virginia 8.5 Alaska 7.9 Texas 7.4 Georgia 7.3 Guam 6.6 Idaho 6.6 Wyoming 6.4 Louisiana 6.2 South Carolina 6.2 Tennessee 6.1 Montana 5.8 Nevada 4.8 Arkansas 4.4 Missouri 4.4 Arizona 4.1 Kentucky 4.1 Indiana 3.7 Oklahoma 3.5 New Mexico 3.2 Washington 3.2 Hawaii 3 Ohio 3 Kansas 2.9 Iowa 2.6

CDC | Data as of: September 27, 2021 1:29 PM ET. Posted: September 27, 2021 2:42 PM ET

Some of the less bad states:

Nebraska 1.5 Wisconsin 1.5 Colorado 1.4 Maine 1.4 Minnesota 1.4 Massachusetts 1.3 New York City* 1.3 Vermont 1.3 Connecticut 1.1 New Hampshire 1.1 Florida 1 Michigan 0.8 District of Columbia 0.7 Alabama 0.5 Rhode Island 0.5 California 0.2

Sunday, September 26, 2021

U.S. national covid 7 DAY DEATH RATE PER 100,000 climbs to 3.4 as of September 26, 2021

Within the U.S. there were TOTAL DEATHS 684,884 +2,177 New Deaths.

The "bad" states (above the national average of 3.4):

Alabama 16.6 Georgia 8.5 West Virginia 8.5 Alaska 8.2 Idaho 7.8 South Carolina 7.3 Texas 7.3 Louisiana 7 Oklahoma 6.6 Montana 6.4 Wyoming 6.4 Tennessee 6.1 Nevada 5.5 Kentucky 5.4 Arizona 4.9 Arkansas 4.9 Indiana 4.4 Missouri 4.4 Kansas 4 Washington 3.9 Hawaii 3.7 New Mexico 3.5

CDC | Data as of: September 26, 2021 12:32 PM ET. Posted: September 26, 2021 1:45 PM ET


In terms of death data, not normalized per 100,00

DEATHS IN LAST 7 DAYS 11,168, with the "bad" states:

Texas 2,112 Georgia 901 Alabama 813 Tennessee 417 South Carolina 375 Arizona 358 Ohio 349 Louisiana 323 Indiana 294 Washington 293 Virginia 283 California 278 Missouri 269 Illinois 265 Oklahoma 262 North Carolina 256 Pennsylvania 252 Kentucky 241 Florida 207 Nevada 170 New York* 167 West Virginia 153 Arkansas 149 New Jersey 142

CDC | Data as of: September 26, 2021 12:32 PM ET. Posted: September 26, 2021 1:45 PM ET

In terms of Covid cases, the "bad" states are:

Alaska 972.1 West Virginia 682.4 Wyoming 675.2 Montana 591.6 Kentucky 544.4 (#25, 60%) Guam 506.1 (would be #5 state, 75.5%) Idaho 474.4 North Dakota 471.2 South Carolina 431.8 Alabama 390 Ohio 379.1 Wisconsin 376.8 (#23, 60.6%) Iowa 362.2 Tennessee 336.8 Delaware 330.9 (#20, 65.8%) South Dakota 321.5 Indiana 316.6 Georgia 305.4 Utah 303 Mississippi 288.8 Oklahoma 286.5 Arkansas 280.9 Minnesota 276.1 Texas 270.8 (#26, 60%) Oregon 264.3 (#19, 66.1%) Virginia 262.9 (#16, 67.8%) Washington 259.3 (#17, 66.7%) Kansas 259.2 (#27, 59.3%) Pennsylvania 254.5 (#9, 71.7%) Florida 248.3 (#18, 66.4%) Maine 242.1 (#6, 73.6%) Arizona 237.3 Michigan 230.4 New Hampshire 230.3 (#14, 69%) North Carolina 226.6 Rhode Island 213.1 (#5, 74.6%) Vermont 213 (#1, 77.3%)

The above: 7-Day Case Rate per 100,000 The national average is 241.2

CDC Data as of: September 26, 2021 12:32 PM ET. Posted: September 26, 2021 1:45 PM ET

As to vaccinations, we put the state rank, and % with at least one dose, for selected states in parentheses in the above. VAX data from statista as of Sept. 23, 2021.


Saturday, September 25, 2021

The U.S. national 7 DAY DEATH RATE PER 100,000 on September 24, 2021 is 3.3

The "bad" states are

Alabama 17.8 West Virginia 10 Georgia 8.3 Louisiana 7.2 Texas 7.1 Idaho 6.7 Oklahoma 6.4 Wyoming 6.4 Montana 6.1 Kentucky 5.8 South Carolina 5.7 Nevada 5.3 Arkansas 5.1 Arizona 5 Tennessee 5 Indiana 4.4 Missouri 4.4 Hawaii 4.2 Kansas 4.1 Washington 3.8 Mississippi 3.7 New Mexico 3.5 Virginia 3.2

CDC | Data as of: September 24, 2021 12:38 PM ET. Posted: September 24, 2021 1:50 PM ET

Data Table for Cumulative Deaths per 100k in Last 7 Days

TOTAL DEATHS 682,646 +1,803 New Deaths

New Jersey is at 1.6 and Florida is at 1.3.


In terms of Covid cases (not deaths)

National 7 DAY CASE RATE PER 100,000 is 246.8

The "bad" states

Alaska 854.6 West Virginia 662 Wyoming 640.7 Montana 608.8 Kentucky 571.2 Guam 542.3 Idaho 479.1 South Carolina 458.1 North Dakota 451.7 Alabama 400.7 Ohio 390.6 Wisconsin 382.2 Delaware 335.8 Indiana 332.6 South Dakota 329.8 Tennessee 321.1 Mississippi 318.8 Georgia 317.5 Oklahoma 311.3 Utah 305.4 Iowa 301.9 Arkansas 295.7 Texas 286.6 Minnesota 272 Washington 269.2 Virginia 265.6 Oregon 264.3 Florida 261.7 Vermont 261.7 Pennsylvania 255.5

In terms of cases, one notes that the state of Florida (261.7) and the state of Vermont (261.7) are the same.

Virginia 265.6 Oregon 264.3 Florida 261.7 Vermont 261.7 Pennsylvania 255.5 Maine 247.4 Nebraska 242.4

In terms of vaccination,, in a post titled Percentage of U.S. population who had been given a COVID-19 vaccination as of September 23, 2021, by state or territory, gives the level of vaccination for Vermont as 69.1 (fully vaccinated)/77.3 (at least one dose) , making Vermont the highest vaccinated state in the U.S. In contrast, Florida is at 56.5/66.4.


Curiously, the New York Times reported "insufficient or no data" for vax data on Vermont on Sept. 25.

from statista on vax data

From the New York Times (note Vermont):

Thursday, September 23, 2021

U.S. national Covid death rate remains at 3.2 on September 22, 2021 and climbs to 3.3 on September 23, 2021

The death rate per week, per 100,000 for the U.S. as a whole remained at 3.2.

Data Table for Cumulative Deaths per 100k in Last 7 Days for individual states as of September 22,2021:

Alabama 18 West Virginia 10 Idaho 8.8 Georgia 8.7 Louisiana 6.8 Texas 6.8 Guam 6.6 Oklahoma 6.4 Wyoming 6.4 Kentucky 6.2 Arkansas 5.5 South Carolina 5.3 Montana 5.1 Nevada 5 Kansas 4.9 North Carolina 4.8 Missouri 4.4 Arizona 3.9 Mississippi 3.9 Hawaii 3.8 Washington 3.7 Indiana 3.4 New Mexico 3.3 Oregon 3.2 Ohio 2.8 Virginia 2.8

CDC | Data as of: September 22, 2021 2:02 PM ET. Posted: September 22, 2021 4:30 PM ET


Followup, as of September 23, 2021, the seven day rate went up to 3.3

7 DAY DEATH RATE PER 100,000 3.3

TOTAL DEATHS 680,688 +1,961 New Deaths

CDC | Data as of: September 23, 2021 4:04 PM ET. Posted: September 23, 2021 4:52 PM ET

The "bad" states on Sept. 23:

Alabama 19.2 West Virginia 9.5 Georgia 8.2 Louisiana 7.3 Idaho 7.1 Texas 6.8 Oklahoma 6.7 Wyoming 6.4 Kentucky 6.2 Guam 6 South Carolina 5.8 Arkansas 5.5 Montana 5.2 Nevada 5.2 Missouri 4.7 Tennessee 4.7 Arizona 4.5 Indiana 4.5 Kansas 4.1 Mississippi 4.1 Hawaii 3.9 Washington 3.7 New Mexico 3.3 Virginia 3

The above: CDC | Data as of: September 23, 2021 4:04 PM ET. Posted: September 23, 2021 4:52 PM ET

As to 7 DAY CASE RATE PER 100,000 on Sept. 22, one has 269.2

The "bad" states:

Alaska 800 West Virginia 702.7 Wyoming 620.1 Guam 617.1 Kentucky 610.8 Montana 593 South Carolina 500.5 Idaho 469.8 North Dakota 424.6 Alabama 421.3 North Carolina 405.7 Ohio 405.5 Wisconsin 402.4 Iowa 385.5 Mississippi 363.8 Indiana 351.9 Georgia 343.4 Texas 332.8

TOTAL DEATHS 677,086 +1,972 New Deaths

Wednesday, September 22, 2021

US national covid death rate at 3.2 on September 21, 2021

The "bad" states for Covid death rate (per 100,000 per week) are

Alabama 15.1 West Virginia 10.4 Idaho 9.2 Georgia 8.2 South Carolina 8 Louisiana 7.6 Oklahoma 6.8 Texas 6.7 Wyoming 6.7 Guam 6.6 Arkansas 6.1 Mississippi 5.7 Kentucky 5.5 North Carolina 5 Kansas 4.9 Nevada 4.9 Arizona 4.5 Missouri 4.3 Montana 4.2 Hawaii 3.8 Washington 3.8 Oregon 3.5 New Mexico 3.3

CDC | Data as of: September 21, 2021 3:32 PM ET. Posted: September 21, 2021 4:55 PM ET


In terms of deaths, not normalized per 100K:

DEATHS IN LAST 7 DAYS 10,734 (placing US population at about 335 million; Worldometer estimates 333,373,690)

One notes the population of the U.S. in the year 1918 was about 103.2 million. Thus, the US now has about 3.2 times more people than in 1918.

See also

Monday, September 20, 2021

National average Covid death rate drops to 2.9 per 100,000 per week on September 20, 2021

As of September 20, 2021 12:35 PM ET. Posted by the CDC: September 20, 2021 1:45 PM, the national average weekly deaths per 100,000 is 2.9 [7 DAY DEATH RATE PER 100,000 is 2.9 ]

The "bad" states are:

Alabama 10.9 Idaho 9.2 West Virginia 9.1 Guam 7.8 Georgia 6.9 Louisiana 6.9 Texas 6.7 Wyoming 6.7 South Carolina 6.3 Arkansas 5.5 Arizona 4.5 Mississippi 4.3 Nevada 4.1 North Carolina 4.1 Hawaii 3.8 Montana 3.7 Kentucky 3.5 Kansas 3.3 Oregon 3.2 Washington 3.2 Missouri 3.1 Oklahoma 3 [national average is 2.9] New Mexico 2.7 Ohio 2.7 Tennessee 2.7 Pennsylvania 2.3 Puerto Rico 2.3 Delaware 2.1 Vermont 2.1 Illinois 2 Iowa 2 Virginia 2 Virgin Islands 1.9 Indiana 1.8 North Dakota 1.7 Utah 1.7 South Dakota 1.6 New Jersey 1.5 Alaska 1.4 Colorado 1.4 Maryland 1.4 New York* 1.4 Maine 1.3 Wisconsin 1.3 Florida 1.2

In terms of new Covid cases. For the US: 7 DAY CASE RATE PER 100,000 is 250.7

The "bad" states:

West Virginia 715.8 Guam 667.8 Alaska 562.1 Montana 485.1 Idaho 470.8 Alabama 449 Wyoming 437 Kentucky 426.6 North Dakota 424.9 Tennessee 417.7 Ohio 415.6 South Carolina 397 Texas 385.1 North Carolina 334.4 Iowa 329.3 Delaware 323.3 South Dakota 320.4 Mississippi 313.8 Arkansas 308.7 Indiana 296.8 Florida 287.2 Georgia 284.8 Kansas 269

State/Territory 7-Day Case Rate per 100,000 with national average 250.7

In terms of un-normalized data:

Texas 111,673 Florida 61,682 Ohio 48,580 California 37,634 North Carolina 35,068 Pennsylvania 32,795 Georgia 30,240 Tennessee 28,524 New York* 23,449 Alabama 22,013 South Carolina 20,442 Indiana 19,982 Illinois 19,856 Virginia 19,072 Kentucky 19,057 Arizona 18,203 Michigan 16,776 Washington 16,736 New Jersey 15,722


Sunday, September 19, 2021

"Face the Nation" gets Covid facts completely wrong on September 19, 2021

From the CBS news show, "Face the Nation" on September 19, 2021:

MARGARET BRENNAN: Good morning, and welcome to FACE THE NATION. On the COVID front the news is still bleak. Nearly 10,000 Americans died last week of the virus. We now total more than 673,000 dead. Children, who are still not eligible for vaccines, account for almost 29% of all cases. And according to the AAP, there were nearly a quarter million new pediatric covid infections last week. We begin with Senior National Correspondent Mark Strassmann in Orlando.


MARK STRASSMANN: Not in COVID America, where the virus now kills around nineteen hundred people a day, the highest average in six months. By any measure, COVID sorrow stalks Florida with a vengeance. More than fifty thousand Floridians already dead. An average of three hundred fifty more every day tops in America.


MARK STRASSMANN: Doctor Vincent Hsu, an infectious disease physician, works at AdventHealth, Orlando. Systemwide AdventHealth has fifty hospitals with seventeen hundred COVID patients. More than half of them in Central Florida. DR. VINCENT HSU: There is still a lot of issues with-- with taking care of these patients, supplies, space, as well as staffing. MARK STRASSMANN: Continuous surges remain a threat? DR. VINCENT HSU: We always have to be prepared for another surge. MARK STRASSMANN: Critics blast the state's leadership for failing to protect the youngest Floridians.


MARK STRASSMANN: This hospital, Orlando's largest, is short hundreds of nurses despite retention bonuses and shift bonuses. And it's a crisis across America's hospitals. Early retirements, resignations, and a rash of sick days, staff burned out by this ongoing COVID siege. Margaret.

As sportscaster Warner Wolf [ perhaps best known as a local news sports anchor in Washington, D.C. and New York City, and for his catchphrase "Let's go to the videotape!" ] would say "Let's go to the videotape."

For CDC data as of CDC | Data as of: September 19, 2021 12:32 PM ET. Posted: September 19, 2021 1:40 PM, the national Covid weekly death rate per 100,000 people is 3.2. Of the states with the highest death rate:

Alabama 10.9 West Virginia 9.1 Idaho 8.6 Georgia 7.9 South Carolina 7.9 Louisiana 7.8 Arkansas 7.1 Texas 7 Wyoming 6.7 Tennessee 6.6 Mississippi 5.5 North Carolina 5.2 Oklahoma 4.7 Nevada 4.6 Montana 4 Hawaii 3.7 Kentucky 3.7 Oregon 3.7 Washington 3.7 Kansas 3.4 Arizona 3.2 Missouri 3.1

Contrary to what Mark Strassman and Margaret Brennan suggested [ By any measure, COVID sorrow stalks Florida with a vengeance ], Florida (at 1.0 is below national average in Covid death rate and ranks slightly better than Connecticut and Minnesota.

Connecticut 1.1 Minnesota 1.1 Florida 1 Michigan 0.9

Separately, in terms of un-normalized Covid deaths (in the last seven days), Florida is not the leader:

Texas 2,025 Georgia 836 North Carolina 540 Alabama 533 Tennessee 451 South Carolina 405 Louisiana 362 Illinois 330 California 326 Ohio 317 Washington 283 Pennsylvania 277 Arizona 232 Florida 224 Arkansas 213 Virginia 210 Missouri 188

CDC | Data as of: September 19, 2021 12:32 PM ET. Posted: September 19, 2021 1:40 PM

If Covid is stalking Florida with a vengeance, Covid is stalking many other states with MORE of a vengeance.

The Strassman/Brennan presentation, asserting "an average of three hundred fifty more [deaths in Florida] every day tops in America," is false

In terms of new Covid cases (not normalized):

Texas 111,980 Florida 76,434 Tennessee 53,455 North Carolina 50,992 Ohio 50,304 California 43,286 Georgia 40,840 Pennsylvania 31,934 South Carolina 31,743 Indiana 26,760 Illinois 25,956 Virginia 24,994 Kentucky 24,165 New York* 23,969 Washington 23,020 Michigan 21,442 Alabama 19,690 Arizona 19,124 Wisconsin 17,900 New Jersey 15,531

In terms of new Covid cases, normalized per 100,000

Tennessee 782.7 West Virginia 762 Alaska 691.1 Guam 636.4 South Carolina 616.5 Wyoming 572.8 Montana 561.1 Kentucky 540.9 North Carolina 486.2 Idaho 483.1 Ohio 430.4 North Dakota 426.1 Iowa 414.3 Alabama 401.6 Mississippi 398.1 Indiana 397.5 Texas 386.2 Georgia 384.7 South Dakota 359.9 Florida 355.9 Oklahoma 353.7

The national average is 7 DAY CASE RATE PER 100,000 299.6

In passing, NJ 101.5 reported the transmission rate (Ro) for New Jersey as 1.08, meaning NJ is currently getting worse, not better.

"Face the Nation" got its facts, and its inference, completely wrong.

Saturday, September 18, 2021

The legacy of Robert E. Lee

Some posts on the legacy of Robert E. Lee

Let’s get real about Robert E. Lee and slavery , including the text:

Lee is sometimes defended as a “man of his times,” who, by the standards of the day, could not have concluded that slavery was wrong or that he could choose loyalty to the United States over Virginia. The former claim ignores the millions of Black Americans who were able to divine slavery’s evil at that time, not to mention White abolitionists and White Southerners such as Cassius Marcellus Clay, James Birney and Elizabeth Van Lew, who inherited enslaved people and freed them. As for the latter claim, it is worth noting that other high-ranking military officers from Virginia remained loyal to the United States, among them generals Winfield Scott and George Thomas.


By the time Lee officially freed the people his family held in bondage, the Civil War was in full swing and the Arlington estate had been seized by the Union army. In the end, Lee blew the five-year deadline by a handful of weeks, officially freeing them on Dec. 29, 1862. Three days later, President Abraham Lincoln’s Emancipation Proclamation went into effect.


Robert E. Lee’s Legacy Proves Why He Deserves No Statues , including

Historians often fault Lee’s strategic judgment, in part because of his obsession with defending Richmond, and in part because of his two failed invasions of the North. These assessments are not sound, and fail to consider the strategic context. Lee understood (as did Grant) that Richmond was the Confederate center of gravity and that its capture might result in a collapse in resistance. Thus, defending the Confederate capitol against the Army of the Potomac, the largest and most formidable force available to the United States, was a clear imperative. But more importantly, he appreciated that the Confederacy could not survive with a defensive strategy. Grant was in the process of dismembering the Confederacy in the West as Lee invaded Pennsylvania in the summer of 1863. Even if a defensive strategy had been able to force the North to give up on its effort to conquer Virginia, the Mississippi (and quite likely all territories west of the Mississippi) would have been lost forever; the Army of Northern Virginia might force Lincoln to cease hostilities, but it could not force him to give up territory already conquered. Moreover, Federal control of the Mississippi was an existential threat to the institution of slavery in the South, as it gave the Black population an easy highway to seek liberation.
The case against Lee’s decision-making in battle generally rests on the wisdom of Pickett’s Charge, an infantry assault on the center of the US Army line at the Battle of Gettysburg. The attack was a costly failure, but it is important not to read Lee’s decision to attack through the lens of World War I, when infantry assaults across open ground had become utterly suicidal. Confederates achieved numerical superiority at the decisive point and forced hand-to-hand fighting before being repulsed. Had they carried the US Army position, they would have inflicted a serious defeat on the Army of the Potomac. Similar assaults in other battles during the war succeeded, although the conditions at Gettysburg are not generally regarded as conducive to success. In any case, even great captains are allowed a mistake or two; the decision of Ulysses S. Grant to assault prepared Confederate defenses at Cold Harbor is altogether less sensible than the Gettysburg attack.

But we do not build statues of and pile honors upon people who are merely excellent at some skill. To understand the meaning of the removal of Lee’s statue, we must take into account the purposes to which he put his great skills. Lee was a traitor, and being a traitor is complicated. Treason is perhaps the least heinous of the mortal sins; Washington and Adams and Jefferson were all traitors, as was De Gaulle, and Alcibiades, and Brutus and Cassius, and a great many others who we may find admirable. But the evaluation of one’s treason depends on its purpose and its consequences. Washington’s treason is justified because it succeeded in creating something, and because we regard its purpose as noble. De Gaulle’s treason helped usher in the defeat of Nazi Germany; the jury remains out on Cassius and Brutus.

Lee betrayed his oath and his country for the principle that white people should be able to own black people. It was a principle he was willing to kill for, and he killed a very great number of Americans in his failed effort to maintain the South as a slaveocracy. We ought not to erect statues to men who are characterized only by their tactical and strategic military judgement, but not by any moral or ethical sense. Lee failed at his purpose, and it is an altogether good thing that he failed. Thus, there should be no hesitation about removing statues that were erected to the cause of white supremacy.

Now a 1945 Contributing Editor, Dr. Robert Farley is a Senior Lecturer at the Patterson School at the University of Kentucky.

--Of the reference to the Emancipation Proclamation, most people know that it did not free slaves in the border states not in the Confederacy. Fewer know that it did not free slaves in the Confederate state of Tennessee. Fewer still know that it did not free slaves in parts of Louisiana and Virginia. Note:

order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, the following, to wit:

Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans) Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the counties of Berkley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth[)], and which excepted parts, are for the present, left precisely as if this proclamation were not issued.

And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.

--One notes that Alexandria County, VA was not on Lincoln's list, even though it was occupied by Union forces. For discussion of the impact of the Proclamation on Alexandria County (the county containing Arlington at the time), see Life after emancipation in Alexandria


Yhe Finnigan case is cited:

The Commission’s final determinations are reviewed under the Administrative Procedure Act. 5 U.S.C. § 706; Honeywell Int’l, Inc. v. Int’l Trade Comm’n, 341 F.3d 1332, 1338 (Fed. Cir. 2003). We review the Commission’s legal determinations de novo and its factual findings for substantial evidence. See Finnigan Corp. v. Int’l Trade Comm’n, 180 F.3d 1354, 1361–62 (Fed. Cir. 1999); Linear Tech. Corp. v. Int’l Trade Comm’n, 566 F.3d 1049, 1060 (Fed. Cir. 2009).

One issue was "how" to do a measurement:

We first consider Jennewein’s argument that its #1540 and #2410 strains do not produce any β-galactosidase activity, let alone at the level recited in the claims. Patent infringement, whether literal or under the doctrine of equivalents, is a question of fact, which we review for substantial evidence. See Linear Tech., 566 F.3d at 1060. The patent owner bears the burden to prove infringement by a preponderance of the evidence. See Spansion, Inc. v. Int’l Trade Comm’n, 629 F.3d 1331, 1349 (Fed. Cir. 2010).
Here, substantial evidence supports the Commission’s finding that Jennewein’s #1540 and #2410 strains literally meet the limitation requiring that “the level of β-galactosidase activity comprises between 0.05 and 200 units.” To assess infringement of the claimed activity range, all parties acknowledge that the Miller protocol is the appropriate test. See, e.g., Reply Br. 5. Yet the parties disagree on how to conduct the assay. Jennewein argues that the plain meaning of the claim language requires that the Miller unit readings reflect the activity of the inserted βgalactosidase gene and not activity from a different source. Therefore, to assess infringement, Jennewein asserts that a negative control strain lacking a functional β-galactosidase gene must be used to ensure that the measured βgalactosidase activity of an accused strain is from the inserted β-galactosidase gene, not from another source or from background noise. Per Jennewein, the Commission erred by not requiring a negative control strain in the Miller assay.


Moreover, communications between Jennewein and a third-party company it hired to conduct infringement testing suggest that the two negative control strains preferred by Jennewein are not suitable. See Appellee’s Br. 38–39 (“‘unfortunately, the Miller activity at your 1540 (30 °C) batch is still above 0.05 after subtracting [a third possible negative control strain],’ and ‘if we subtract [one of the two previously discussed negative control strains] instead of the [third possible negative control strain] as reference, the value would fall below 0.05’” (quoting J.A. 51523–51524) (cleaned up)). Because of these communications, the Commission found that “Jennewein sought a control strain that would minimize the measured Miller Units.” Initial Determination, 2019 WL 5677974, at *35. Substantial evidence supports this finding.


See Spansion, Inc., 629 F.3d at 1344 (noting that under the substantial evidence test, we “must affirm a Commission determination if it is reasonable and supported by the record as a whole, even if some evidence detracts from the Commission’s conclusion” (internal quotation marks omitted)); see also Nutrinova Nutrition Specialties & Food Ingredients GmbH v. Int’l Trade Comm’n, 224 F.3d 1356, 1359 (Fed. Cir. 2000) (discussing that as an appellate court, we are not “to reweigh the evidence and reexamine the credibility of the witnesses”). Once the Commission concluded a negative control was not needed, it credited Glycosyn’s testing of Jennewein’s #1540 and #2410 strains, finding “Glycosyn’s testing simply hewed more closely to the Miller protocol, i.e., the terms in which the invention is defined.”8 Initial Determination, 2019 WL 5677974, at *37. The Commission then determined that “a large majority of [the] samples exhibit[ed] Miller Unit activities within the claimed range.” Id.

As to disclaimer,

See Schindler Elevator Corp. v. Otis Elevator Co., 593 F.3d 1275, 1285 (Fed. Cir. 2010) (“The doctrine of prosecution disclaimer attaches where an applicant, whether by amendment or by argument, unequivocally disavowed a certain meaning to obtain his patent.” (internal quotation marks omitted)); see also id. (“An argument made to an examiner constitutes a disclaimer only if it is clear and unmistakable.” (internal quotation marks omitted)).

U.S. national Covid death rate remains at 3.1 for 7 DAY DEATH RATE PER 100, of: September 17, 2021 12:38 PM ET

With the national death rate at 3.1 per seven days per 100,000, the most problematic states are:

Idaho 8.6 Georgia 8.2 Louisiana 8.1 Alabama 7.7 Arkansas 7.5 South Carolina 7.1 Texas 7.1 Mississippi 6.9 West Virginia 6.9 Wyoming 6.7 Tennessee 6 North Carolina 4.9 Oklahoma 4.8 Nevada 4.6 Washington 3.9 Virgin Islands 3.8 Kansas 3.7 Oregon 3.6 Montana 3.3 Hawaii 3.2 Arizona 3 Kentucky 3 Missouri 3 Illinois 2.5 Indiana 2.5 Puerto Rico 2.5 Utah 2.4 Virginia 2.4 Rhode Island 2.2 New Mexico 2.1 Ohio 2.1 Pennsylvania 2.1 Iowa 2 South Dakota 1.9 Maryland 1.8 North Dakota 1.8 Vermont 1.8 Colorado 1.7 Wisconsin 1.6

Note that Hawaii, at 3.2, is now above the national average of 3.1.

New Jersey and Florida are below the national average:

New Jersey 1.4 New York* 1.4 Delaware 1.3 Florida 1.3 Massachusetts 1.3 New Hampshire 1.2 Minnesota 1.1 New York City* 1.1 Connecticut 0.9 Nebraska 0.9 Michigan 0.7 California 0.5


UPDATE. Data as of September 18, 2021 2:50 PM ET. Posted: September 18, 2021 4:30 PM ET
The death rate went up to 3.2: 7 DAY DEATH RATE PER 100,000 = 3.2

The "bad" states as of September 18, 2021 2:50 PM ET. Posted: September 18, 2021 4:30 PM ET:

labama 10.9 West Virginia 9.1 Idaho 8.6 Georgia 7.9 South Carolina 7.9 Louisiana 7.8 Arkansas 7.1 Texas 7 Wyoming 6.7 Tennessee 6.6 Mississippi 5.5 North Carolina 5.2 Oklahoma 4.7 Nevada 4.6 Montana 4 Hawaii 3.7 Kentucky 3.7 Oregon 3.7 Washington 3.7 Kansas 3.4 Arizona 3.2 Missouri 3.1 Virgin Islands 2.9 New Mexico 2.7 Ohio 2.7 Illinois 2.6 Indiana 2.6 Virginia 2.5 Puerto Rico 2.4 Pennsylvania 2.2 Vermont 2.1 Iowa 2 Utah 2 Rhode Island 1.8 South Dakota 1.8 Colorado 1.7 Maryland 1.7 North Dakota 1.7 Maine 1.6 Wisconsin 1.6 Alaska 1.4 Massachusetts 1.4 New Jersey 1.4 New York* 1.4 Delaware 1.3 New Hampshire 1.2 Connecticut 1.1

Note that Hawaii jumped from 3.2 to 3.7.
Florida is at 1

New Jersey 1.4 New York* 1.4 Delaware 1.3 New Hampshire 1.2 Connecticut 1.1 Minnesota 1.1 Florida 1 Michigan 0.9 New York City* 0.9 California 0.8 Nebraska 0.8

In terms of new CASES, the national average is 7 DAY CASE RATE PER 100,000 301 [Data as of Sept. 17]

The "bad" states are

West Virginia 765.3 Tennessee 764 Guam 714.9 Alaska 664.5 Wyoming 658.8 South Carolina 609.7 Montana 537.3 Kentucky 517 Idaho 474.4 North Carolina 466.9 Mississippi 440.2 Ohio 435.2 North Dakota 427.9 Indiana 413 Georgia 410 Texas 404 Oklahoma 373.1 South Dakota 367.9 Alabama 367.6 Arkansas 363.1 Utah 357 Florida 353.2 Delaware 338.5 Oregon 317.1 Iowa 314.4 Kansas 298.5


CDC | Data as of: September 17, 2021 12:38 PM ET. Posted: September 17, 2021 2:49 PM

Thursday, September 16, 2021

US National Covid death rate climbs to 3.1 per (100,000) per week.

The US national covid death rate was reported as 7 DAY DEATH RATE PER 100,000 3.1 as of CDC | Data as of: September 16, 2021 2:10 PM ET. Posted: September 16, 2021 3:00 PM ET .

Of the states:

Guam 10.9 Louisiana 8.7 Georgia 8.2 Idaho 7.5 Mississippi 7.5 Arkansas 7.3 Texas 7.2 West Virginia 7.1 South Carolina 6.9 Wyoming 6.7 Tennessee 6.2 Nevada 4.9 North Carolina 4.9 Oklahoma 4.9 Alabama 3.9 Oregon 3.9 Washington 3.9 Virgin Islands 3.8 Kansas 3.7 Arizona 3.5 Hawaii 3.1 Missouri 3.1 Montana 2.8 Puerto Rico 2.8 Maine 2.5 Indiana 2.4 Illinois 2.3 Virginia 2.3 Rhode Island 2.2 Utah 2.2 Ohio 2.1 Iowa 2 Pennsylvania 2 Maryland 1.9 Wisconsin 1.9 Colorado 1.8 Delaware 1.8 Kentucky 1.8 South Dakota 1.8 Florida 1.7 North Dakota 1.7 Vermont 1.6 Alaska 1.5 New Hampshire 1.5 Massachusetts 1.4 New Mexico 1.4 New Jersey 1.3 New York* 1.3 New York City* 1.2 Minnesota 1 Connecticut 0.9 Nebraska 0.8 Michigan 0.7 District of Columbia 0.6 California 0.4

Wednesday, September 15, 2021

Total U.S. Covid deaths reach 662,620 on September 15, 2021; 7 DAY DEATH RATE PER 100,000 is 2.9

The CDC reported, as of CDC | Data as of: September 15, 2021 2:38 PM ET. Posted: September 15, 2021 3:47 PM ET , a 7 day death rate per 100,000 of 2.9.

The leading states were

Louisiana 9.9 Guam 9.7 Arkansas 7.5 Mississippi 7.5 Oklahoma 6.9 Texas 6.8 Wyoming 6.7 Georgia 6.5 Tennessee 6.1 West Virginia 6.1 Idaho 5.3 Nevada 5.2 South Carolina 5.2 Indiana 4.7 North Carolina 3.9 Oregon 3.9 Virgin Islands 3.8 Washington 3.8 Arizona 3.5 Missouri 3.4 Kansas 3.3 Montana 3.1

Also note Hawaii at 2.3 exceeded Florida at 0.5. New Jersey was at 1.4.


Tuesday, September 14, 2021

Reaching an accurate number for Covid breakthrough cases?

New Jersey has recently reported a Covid breakthrough fraction of 21.6%. In New Jersey from Aug. 23 through Aug. 29, fully vaccinated individuals accounted for: 2,602 positive tests out of a statewide total of 12,051


CalAmp wins; issue of "what" can be appealed

The outcome:

CalAmp Corp. (“CalAmp”) appeals from a judgment of infringement and award of damages as to U.S. Patent No. 8,032,278 (“the ’278 patent”). Omega Patents, LLC (“Omega”) cross-appeals the district court’s determination of the post-verdict royalty rate. We affirm the judgment of infringement of the asserted claims of the ’278 patent but vacate and remand for a new trial on damages. Omega’s cross-appeal is therefore moot. The jury further found that CalAmp did not induce infringement of the asserted claims of U.S. Patent No. 6,756,885 (“the ’885 patent”) and Omega does not appeal that determination. CalAmp, however, appeals the jury’s underlying finding of direct infringement of the asserted claims by CalAmp’s customers. We vacate the jury’s finding of direct infringement.

Some discussion

CalAmp appeals (1) the district court’s denial of JMOL that CalAmp’s customers did not directly infringe the ’885 patent (and in the alternative, CalAmp requests that we vacate the direct-infringement finding); (2) the district court’s denial of JMOL and a new trial on CalAmp’s infringement of the ’278 patent; and (3) the district court’s denial of remittitur and a new trial as to damages for the ’278 patent. Omega cross-appeals the district court’s determination of the ongoing royalty rate for infringement of the ’278 patent.

CalAmp does appeal, however, an underlying finding of direct infringement by CalAmp’s customers—specifically, the district court’s denial of JMOL that those customers did not directly infringe. The direct-infringement finding did not itself impose liability on CalAmp but instead was intended to serve as a predicate to Omega’s induced-infringement theory. In the alternative, CalAmp requests that we vacate the jury’s finding if we do not consider the merits. Because CalAmp is the prevailing party as to Omega’s claim of induced infringement of the ’885 patent, we decline to review the merits of CalAmp’s appeal of the JMOL denial regarding direct infringement by its customers. See Mass. Inst. of Tech. v. Abacus Software, 462 F.3d 1344, 1350 (Fed. Cir. 2006) (“An appeal is not an opportunity to bring before the appellate court every ruling with which one of the parties disagrees without regard to whether the ruling has in any way impacted the final judgment.”). Here, the final judgment of no induced infringement is not before us, and it is a “well-established rule that, as an appellate tribunal, we review judgments, not opinions” or predicate findings. Droplets, Inc. v. E*TRADE Bank, 887 F.3d 1309, 1321 (Fed. Cir. 2018); see Tesco Corp. v. Nat’l Oilwell Varco, L.P., 804 F.3d 1367, 1379 (Fed. Cir. 2015) (declining “to address the predicate findings in the trial court’s opinion”).

Nonetheless, we agree with CalAmp that the jury’s direct-infringement finding should be vacated


As the Supreme Court has stated, “[a] party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance . . . ought not in fairness be forced to acquiesce in that ruling.” Camreta, 563 U.S. at 712 (cleaned up). Under such circumstances, “[t]he equitable remedy of vacatur ensures that those who have been prevented from obtaining the review to which they are entitled are not treated as if there had been a review.” Id. (cleaned up). Here, appellate review is unavailable to CalAmp through no action or fault of its own. Accordingly, to “expunge[] an adverse decision that would be reviewable had this [issue] not become moot,” id. at 712 n.10, we vacate the jury’s finding of direct infringement of the asserted claims of the ’885 patent by CalAmp’s customers.

Saturday, September 11, 2021

Was Robert E. Lee a "stone-cold loser"?

Dana Milbank's opinion piece in the Washington Post begins:

Robert E. Lee was a stone-cold loser.
No general in U.S. history was defeated as unequivocally and as totally as Lee. For all his supposed strategic skill, his army was entirely destroyed. One-quarter of those who served under him were killed, and an additional half were wounded or captured. He was a traitor to the United States who killed more U.S. soldiers than any other enemy in the nation’s history, for the supremely evil cause of slavery. To boot, he was a cruel enslaver and a promoter of white supremacy until his death.

It is ridiculous that, in the year 2021, these simple truths are in dispute. But here we are.

Milbank continues:

For a point-by-point grading of Trump’s history paper, I checked in with Ty Seidule, a retired U.S. Army brigadier general and military historian who is the former head of the U.S. Military Academy history department. Now at Hamilton College, he’s the author of “Robert E. Lee and Me: A Southerner’s Reckoning With the Myth of the Lost Cause.”

Greatest strategist of all? “Well, he’s a loser,” Seidule responded. “He wasn’t just defeated; his army was destroyed. The idea that he’s the greatest strategist of all is just ludicrous.”

War would have been over in a day? If it had, Seidule argued, then slavery may have survived. Emancipation wasn’t U.S. policy until 1863. “So the fact that Lee was able to keep the war going as long as it did helped add to the eventual destruction of that which he fought for.”


Would have won but for Gettysburg? The day after Gettysburg, Ulysses S. Grant triumphed at Vicksburg, giving the U.S. Army control of the Mississippi River and splitting the Confederacy. Lee’s army couldn’t function without thousands of enslaved people working as servants or in factories and on farms, and after Vicksburg, Seidule said, “they lose all that enslaved labor” as the U.S. Army pushed into the South.
“No one has lost more completely in American history than Robert E. Lee,” Seidule said. “There is no general that has been more crushed, more defeated, at the strategic, tactical, operational level. … How much genius does it take to lose absolutely and completely?”

To begin, this author is not at the top of the list in the Robert E. Lee fan club. This author believes that Grant's work at Vicksburg was a masterful job in terms of military and supply chain thinking.

But to say Lee was the most unequivocally defeated general in U.S. military history is a bit of hyperbole.

Within the confines of the Civil War, John Bell Hood was clearly worse as an army leader; From wikipedia;

at the age of 33 was promoted to temporary full general and command of the Army of Tennessee at the outskirts of Atlanta, making him the youngest soldier on either side of the war to be given command of an army. There, he dissipated his army in a series of bold, calculated, but unsuccessful assaults, and was forced to evacuate the besieged city. Leading his men through Alabama and into Tennessee, his army was severely damaged in a massive frontal assault at the Battle of Franklin and he was decisively defeated at the Battle of Nashville by his former West Point instructor, Maj. Gen. George H. Thomas, after which he was relieved of command.

The Army of Tennessee was much more destroyed under Hood's leadership than was the Army of Northern Virginia under Lee's.
Beyond the Civil War, Little Turtle's defeat of General St. Clair has to be the one of the worst defeats in U.S. Military history. From wiki:

Little Turtle is generally credited with leading a coalition force of about 1,000 warriors that routed the U.S. forces near the headwaters of the Wabash River on November 4, 1791. The battle remains the U.S. Army's worst defeat by American Indians, with 623 federal soldiers killed and another 258 wounded. (...) Of the 1,000 officers and men that St. Clair led into battle, only 24 escaped unharmed. As a result, President George Washington forced St. Clair to resign his post, and Congress initiated its first investigation of the executive branch.

Nothing Lee ever did was this bad.

Separate matters

From the IPBiz post Was Robert E. Lee a traitor?

Sophia Nelson makes factual errors in the above-quoted text. points out that Robert E. Lee resigned his commission in the U.S. Army on April 20, 1861 (not in 1862) and Lee took a position in the Virginia state militia, not in the Confederate army: [On April 20, 1861] Colonel Robert E. Lee resigns from the United States army two days after he was offered command of the Union army and three days after his native state, Virginia, seceded from the Union. (...) Two days later, Lee was appointed commander of Virginia’s forces with the rank of major general. He spent the next few months raising troops in Virginia, and in July he was sent to western Virginia to advise Confederate commanders struggling to maintain control over the mountainous region. If secession were legal, Lee was a citizen of the state of Virginia, but not of the United States, on April 20, 1861. Lee took command of Virginia forces, and was not, at that time, "commanding general of the Confederate States of America." Lee would take command of the Army of Northern Virginia during the battle of the Seven Days in 1862. He was not "commanding general of the Confederate States of America" at that time either.

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

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: See also IPBiz Were there African American soldiers for the Confederacy?

From wiki on Ty Seidule:

Upon completion of the college ROTC program at Washington and Lee University in 1984,[10] Seidule became an officer in the United States Army.[7] Seidule served for 36 years, starting as a tank platoon leader in Germany.[11] His commands include a cavalry unit in the 82nd Airborne Division during the Gulf War, as well as 3rd Battalion, 81st Armor Regiment. His staff positions included crisis planning for NATO in Kosovo and North Macedonia.[2] After receiving his master's degree in history from Ohio State University in 1994, Seidule was appointed an assistant professor of history at the United States Military Academic while remaining on active duty in the Army.[9] Seidule retired from the Military Academy and the US Army as a brigadier general in 2020. In 2020, Seidule was appointed the Chamberlain Fellow and Visiting Professor of History at Hamilton College. He is also a fellow in the International Security program at New America.[12][13] He is a professor emeritus of history at the United States Military Academy at West Point where he taught and was the head of the history department for two decades during his time as an officer in the US Army

**Update on Sept 12, 2021:

History doesn't jibe with Trump's characterization of Robert E. Lee as a unifier and premier war strategist?

Within the post History doesn't jibe with Trump's characterization of Robert E. Lee as a unifier and premier war strategist , CNN has a milder rendition.

Lee's rank in the regular U.S. Army at the time of his resignation was colonel. He had been "passed over" for a generalship, which went to Joseph Johnston, a native of Virginia, and the highest ranking officer who switched from regular U.S. Army to the Confederacy.

Jefferson Davis, while serving as U.S. Secretary of War had created the Second U.S. Cavalry, which became a training ground for Confederate officers. The first leader was A.S. Johnston (not related to Joe), who outranked Robert E. Lee in the Confederate army.

On September 11, 2021, the national 7 DAY COVID DEATH RATE PER 100,000 is 2.5; Hawaii at 1.9, and Florida at 0.9

On September 11, 2021 the national Covid death rate per 100,000 people per week as 2.5. For the individual sates:

ouisiana 7.5 Texas 6 Arkansas 5.9 Georgia 5.9 Oklahoma 5.8 Mississippi 5.7 Alabama 5.3 West Virginia 5 Guam 4.8 Kansas 4.7 South Carolina 4.7 Idaho 4.5 Nevada 3.9 Missouri 3.6 Wyoming 3.6 Kentucky 3.5 Oregon 3.4 Indiana 3.2 Tennessee 3.1 Washington 3 Virgin Islands 2.9 Arizona 2.6 Puerto Rico 2.6 New Mexico 2.5 Montana 2.2 North Carolina 2.2 Utah 2 Hawaii 1.9 Illinois 1.8 Ohio 1.8 Rhode Island 1.8 Virginia 1.8 Maine 1.6 Maryland 1.6 Wisconsin 1.6 Colorado 1.4 Pennsylvania 1.4 South Dakota 1.4 New York* 1.3 Alaska 1.2 Delaware 1.2 New Jersey 1.2 North Dakota 1.2 New Hampshire 1.1 Iowa 1 Florida 0.9 Massachusetts 0.9 New York City* 0.9 Connecticut 0.8 California 0.7 Michigan 0.7 Minnesota 0.6 Nebraska 0.5 Vermont 0.5 District of Columbia 0.4

CDC | Data as of: September 11, 2021 12:32 PM ET. Posted: September 11, 2021 1:40 PM ET


In terms of deaths, not normalized per 100,000:

Texas 1,734 Georgia 621 Louisiana 349 California 287 Alabama 259 South Carolina 243 Illinois 231 North Carolina 231 Oklahoma 231 Washington 227 Missouri 219 Tennessee 214 Indiana 213
(...) Hawaii 27

In terms of new Covid infections (national average: 7 DAY CASE RATE PER 100,000 286.2):

Guam 660.6 West Virginia 629.3 Kentucky 623.8 South Carolina 602.4 Alaska 594.4 Wyoming 593.9 Tennessee 584.9 Alabama 541.1 Georgia 476.2 Florida 427.7 Oklahoma 425.8 Texas 422.9 Idaho 396.5 Montana 395.6 Indiana 391.6 Arkansas 390.1 North Dakota 389.5 Mississippi 387.2 Ohio 380.6 Kansas 344.3 Louisiana 337.2 South Dakota 329.7 Utah 329.1 Hawaii 308.3

From The CDC reveals how much the delta variant really infects fully vaccinated people including the text: The study said that during the specific time frame of April 4–June 19, fully vaccinated people accounted for 5% of total COVID-19 cases, 7% of COVID-19 hospitalizations and 8% of deaths overall. These percentages were higher during June 20 to July 17 time frame, when fully vaccinated people accounted for 18% of cases, 14% of hospitalizations and 16% of deaths, per the CDC.


However, from June 20 to July 17, the CDC expected fully vaccinated people to represent 10% of cases — not 18%. The 18% number would have been expected if vaccine efficacy was at 80%.
The article did not get into the issue that un-vaxxed people might be maintaining a riskier lifestyle, thus incr3easing their exposure in time and place to people "loaded" with virus particles.
Also, from the Courier News on 10 September 2021

UPDATE on September 13, 2021

7 DAY DEATH RATE PER 100,000 2.5

CDC | Data as of: September 12, 2021 11:53 AM ET. Posted: September 12, 2021 1:12 PM ET

Some states:

New Mexico 2.5 Montana 2.2 North Carolina 2.2 Utah 2 Hawaii 1.9 Illinois 1.8 Ohio 1.8 Rhode Island 1.8 Virginia 1.8 Maine 1.6 Maryland 1.6 Wisconsin 1.6 Colorado 1.4 Pennsylvania 1.4 South Dakota 1.4 New York* 1.3 Alaska 1.2 Delaware 1.2 New Jersey 1.2 North Dakota 1.2 New Hampshire 1.1

Friday, September 10, 2021

The national average for 7 DAY DEATH RATE PER 100,000 is 2.3; Hawaii at 1.9 and Florida at 1.1

The list of states:

Louisiana 7.2 Mississippi 6.7 Oklahoma 6 Virgin Islands 5.7 Texas 5.6 Arkansas 5.5 Georgia 5.5 Alabama 4.3 West Virginia 4 Idaho 3.8 Kansas 3.8 Nevada 3.8 Arizona 3.6 South Carolina 3.6 Wyoming 3.6 Oregon 3.5 Kentucky 3.4 Missouri 3.4 Tennessee 3.3 Indiana 3.2 Washington 2.7 Puerto Rico 2.6 Guam 2.4 Montana 2.2 New Mexico 2 Hawaii 1.9 North Carolina 1.9 Illinois 1.7 Utah 1.6 Virginia 1.6 Colorado 1.5 Maine 1.5 Maryland 1.5 Pennsylvania 1.4 Rhode Island 1.4 Wisconsin 1.4 New York* 1.3 Ohio 1.3 Delaware 1.2 New Jersey 1.2 Florida 1.1

CDC | Data as of: September 10, 2021 12:54 PM ET. Posted: September 10, 2021 2:11 PM


Thursday, September 09, 2021

Anniversaries in September

There is much discussion of the 20th anniversary of "9/11."
Also coming up is the September 14 anniversary of "the great beefsteak raid," in which on September 14, 1864, Wade Hampton of the Confederat army set out with approximately 3,500 men of his Cavalry Corps from camps southwest of Petersburg on the Boydton Plank Road and purloined about 2,500 cattle from the Union army.

September 19

"Adam West Day" each year on September 19 in Walla Walla, Washington (which at the time of the Civil War was the largest city in Washington territory)

"Manila John" Basilone parade in Raritan NJ on September 19
The parade will be held on Sunday, Sept. 19 at 1 p.m. in downtown Raritan, said Co-chairman of the Basilone Parade Bruce Doorly. [If you were wondering, the date for the early parades was the first Sunday in November to coincide with John Basilone’s Birthday. But it was later changed to the fourth Sunday in September to ensure better weather. (the 19th is the 3rd Sunday.]]

From the Newark Star-Ledger

Does the removal of the Lee statue remove history?

In a post titled Virginia Isn't Bound by 1890 Deed to Perpetually Display Robert E. Lee Monument , the blog the Volokh conspiracy covered the Virginia Supreme Court decision concerning the Robert E. Lee statue in Richmond, VA.

The blog quoted from the decision:

The merits of the arguments for and against the retention of the Lee Monument in its present location are for the political branches to consider. Our function as a Court is to address the legal claims before us. The essence of our republican form of government is for the sovereign people to elect representatives, who then chart the public policy of the Commonwealth or of the Nation. Democracy is inherently dynamic. Values change and public policy changes too. The Government of the Commonwealth is entitled to select the views that it supports and the values that it wants to express. The Taylor Plaintiffs erroneously assert that the Commonwealth is perpetually bound to display the Lee Monument because of the 1887 Deed, the 1890 Deed, and the 1889 Joint Resolution. A restrictive covenant against the government is unreasonable if it compels the government to contract away, abridge, or weaken any sovereign right because such a restrictive covenant would interfere with the interest of the public.
One wonders if such arguments could justify the removal of the Lee statue from the Gettysburg battlefield?

Of the Court text -- The essence of our republican form of government is for the sovereign people to elect representatives, who then chart the public policy of the Commonwealth or of the Nation. --, the Virginia government,including the Virginia Supreme Court, in earlier embodiments, enforced anti-miscegenation laws, which existed in Virginia up to 1967 and the Loving case. That was the "public policy" of Virginia.

As a footnote, of "fake news" (as it existed at the time of the Civil War), from Wikipedia:

The Miscegenation hoax, taking the form of a pamphlet subtitled The Theory of the Blending of the Races, Applied to the American White Man and Negro, was published by New York World staff in December 1863 as part of an anti-Lincoln Copperhead campaign leading up to the 1864 presidential election. The 72-page piece coined the term miscegenation (from the Latin miscere "to mix" + genus "kind") and was put together by World managing editor David Goodman Croly and reporter George Wakeman. The work purports to be a sincere advocacy of the virtues of racial mixing, but it is a literary forgery intended to argue against racial equality, and to blame the Lincoln administration for allegedly supporting this goal

Team WorldWide loses at CAFC

The outcome:

Team Worldwide Corporation (TWW) appeals a postgrant review decision of the Patent Trial and Appeal Board (Board) finding claims 1–5 of U.S. Patent No. 9,989,979 (’979 patent) unpatentable as indefinite under 35 U.S.C. § 112(b).1 The Board construed the claim term “pressure controlling assembly” as a means-plus-function limitation under § 112(f) and determined the patent failed to disclose structure to perform each recited function of the assembly limitation, as claimed. The ’979 patent’s filing date is August 29, 2014, making it subject to the American Invents Act (AIA) unless it can properly claim priority from an earlier-filed, pre-AIA patent application. The Board found the specification, shared with an earlier pre-AIA patent application from which the ’979 patent claims priority, lacks adequate written description to support that the inventor possessed the claimed “pressure controlling assembly” at the filing date of either application. The Board therefore concluded that the challenged claims are eligible for postgrant review as they could not claim priority from the preAIA application. We affirm.

CDC places the 7 DAY U.S. Covid DEATH RATE PER 100,000 at 2.2; Hawaii remains at 2.5 and thus above the national average

The CDC for Data as of: September 8, 2021 3:05 PM ET. Posted: September 8, 2021 3:43 PM ET places Arkansas as the state with the highest death rate per 100,000 per 7 days:

Arkansas 5.8 Georgia 5.7 Texas 5.5 Louisiana 5.3 Oklahoma 4.1 Alabama 4 Mississippi 3.9 Arizona 3.7 West Virginia 3.7 Wyoming 3.6 North Carolina 3.5 South Carolina 3.4 Kentucky 3.2 Missouri 3.1 Nevada 3.1 Oregon 3 Idaho 2.7 Hawaii 2.5 Kansas 2.5 Guam 2.4 Puerto Rico 2.3 Washington 2.3 New Mexico 2.1 Tennessee 2 Illinois 1.6 Nebraska 1.6 Utah 1.6 Colorado 1.5 Indiana 1.5 Maryland 1.5 Pennsylvania 1.4 Virginia 1.4 Montana 1.3 New York* 1.3 Ohio 1.3 Wisconsin 1.3 Iowa 1.2 Delaware 1.1 New Jersey 1.1 Connecticut 1 Maine 1


In terms of absolute number of deaths (not normalized to population):

Texas 1,603 Georgia 602 North Carolina 363 Arizona 267 Louisiana 244 Alabama 197 Illinois 197 Missouri 192 Arkansas 174 South Carolina 174 Pennsylvania 173 Washington 171 California 161 Oklahoma 161 Ohio 154 New York* 146 Kentucky 141 Florida 140 Tennessee 133 Oregon 128 Mississippi 116 Virginia 116 Indiana 103 New Jersey 96 (...) Hawaii 36

CDC | Data as of: September 8, 2021 3:05 PM ET. Posted: September 8, 2021 3:43 PM ET

Tuesday, September 07, 2021

How is Hawaii doing in Covid deaths per 100,000?

The latest information from the CDC gives the national average of Covid deaths per 100,000 as 2, with Hawaii at 2.5, thus with Hawaii exceeding the national average. In the September 4, 2021 CDC release, Hawaii was at 2.1, suggesting that deaths per 100,000 are increasing in Hawaii. Hawaii was at 1.8 in the August 30, 2021 CDC release.

CDC | Data as of: September 7, 2021 1:20 PM ET. Posted: September 7, 2021 2:27 PM ET


Texas 5.9 Virgin Islands 5.7 Mississippi 5.4 Arkansas 5.2 Oklahoma 4.9 Louisiana 4.7 Georgia 4.5 West Virginia 4.1 Wyoming 4 South Carolina 3.9 Nevada 3.4 Arizona 2.9 Alabama 2.8 North Carolina 2.8 Oregon 2.8 Idaho 2.7 Hawaii 2.5 Kansas 2.5 Guam 2.4 Montana 2.3 Puerto Rico 2.1 Washington 2.1 Tennessee 1.9 Kentucky 1.8 Colorado 1.7 New Mexico 1.6 Wisconsin 1.6 Delaware 1.4 Pennsylvania 1.4 Maryland 1.3 Nebraska 1.3 Ohio 1.3 Iowa 1.2 New York* 1.2 Virginia 1.2 Alaska 1.1 Florida 1.1 Illinois 1.1 Connecticut 1 New Jersey 1

Florida is at 1.1 and New Jersey is at 1.

In terms of raw numbers, Florida was at 229, New Jersey was at 88, and Hawaii at 36.

Texas 1,706 Georgia 479 North Carolina 296 Florida 229 Louisiana 216 Arizona 213 South Carolina 200 Oklahoma 192 Pennsylvania 184 California 175 Mississippi 162 Arkansas 158 Washington 157 Ohio 148 Illinois 142 Alabama 137 New York* 132 Tennessee 129 Oregon 117 Virginia 105 Nevada 104 Colorado 96 Wisconsin 91 New Jersey 88 Kentucky 81 Maryland 80 New York City* 75 West Virginia 74 Kansas 73 Puerto Rico 68 Michigan 60 Massachusetts 57 Indiana 55 Missouri 50 Idaho 48 Iowa 39 Minnesota 38 Connecticut 36 Hawaii 36 New Mexico 34 Utah 31 Nebraska 26 Montana 24 Wyoming 23 Delaware 14 Maine 10 New Hampshire 10 Alaska 8 Vermont 6 Virgin Islands 6 South Dakota 5 Guam 4 North Dakota 4 Rhode Island 4 District of Columbia 3

Just as a check, for Florida, 229/(21.6 X 10) = 1.06, which rounds to 1.1, consistent with the CDC report. Also, the CDC would be taking the population of Hawaii as 1.4 million (36/25), close to the estimate of 1.46 million.

Robbins lost at the CAFC in No. 13/675,440 via a Rule 36 affirmance

In the case titled In re Robbins, one notes the following:

JAMES R. KLAIBER, Hughes Hubbard & Reed LLP, New York, NY, argued for appellants Richard Allen Robbins, Justin Mark Brockie, James Michael Kelly, Asif Ali, Mojahedul Hoque Abul Hasanat, Omar Faruq, Sazzad Rafique, Tahseen Mohammad, Ummy Habiba, Suraiya Parveen, Jeremy Ian Schulman Robbins. Also represented by JAMES W. DABNEY, LYNN M. RUSSO, JUSTIN TAYLOR.

One recalls the KSR case

Oral arguments were heard by the Supreme Court on November 28, 2006. The petitioner KSR was represented by James W. Dabney. Deputy solicitor general Thomas G. Hungar represented the government, which sided with the petitioner. Thomas C. Goldstein argued on behalf of the respondent Teleflex. EFF filed an amicus brief supporting KSR. On April 30, 2007, the Supreme Court unanimously reversed the judgment of the Federal Circuit. The Court held that the disputed claim 4 of the patent was obvious and that in "rejecting the District Court’s rulings the Court of Appeals analyzed the issue in a narrow rigid manner inconsistent with §103 and our precedents." The Supreme Court disapproved the Federal Circuit's strict application of its "teaching-suggestion-motivation" (TSM) test, and therefore made it easier to invalidate patents as obvious.

KSR is cited only to illustrate one of many of Mr. Dabney's contributions to patent law. The Robbins case is a 101 case, and itself is rather interesting (link: )

We have the issue of the conclusory statement that everything was covered:

First, Appellant does not quote the full text of our statement. In fact, our statement also states, “We find that our analysis above substantially covers the substance of all the arguments, which have been made.” Decision 13. Thus, we did notify Appellant that by our analysis, the substance of all arguments was covered, and, as is shown below, this did occur.

Berkheimer arises:

Concerning Appellant’s citations (Req. Reh’g 8–9) to “[r]ecent decisions of the Board,” we are not bound by a non-precedential decision of another panel of the Board.Citing inter aliato Berkheimer, Appellant again argues error because whether subject matter is “well-understood, routine, and conventional” is a question of fact, and the Examiner’s purported finding is entirely conclusory, is completely unsupported by evidence, and fails to address whether the claims, as a whole, include “well-understood, routine, and conventional” subject matter to a skilled artisan in the relevant field, i.e., in the ‘electronic healthcare record’ industry.Req. Reh’g 10 (emphasis omitted). We disagree with Appellant. According to Appellant’s reading of Berkheimer, evidentiary support would always be required for all Alice step two determinations. This simply is not what the Federal Circuit stated in Berkheimer. There, the Federal Circuit made clear that “not every § 101 determination contains genuine disputes over the underlying facts material to the § 101 inquiry.” Berkheimer, 881 F.3d at 1368. In fact, the Federal Circuit in Berkheimerdid not require evidentiary support for independent claim 1 because “[t]he limitations [of claim 1] amount to no more than performing the abstract idea of parsing and comparing data with conventional computer components.” Id. at 1370


Against this finding, Appellant in its Request cites to paragraphs 5–9 of the Declaration and asserts that its declaration “includes numerous details supporting Mr. Robbins’s cited statement.” Req. Reh’g 11. But, the only specific argument advanced by Appellant is that, the declaration explains why “there was ‘no practical way to review or analyze large amount[s] of video healthcare information containing the personal information of many individuals.’” Id.(emphasis omitted). But, this explanation does not tell us how the known use of blurring faces is not a well-understood, routine, conventional activity.Appellant’s other arguments, including those directed to now-superseded USPTO guidance, have been considered but are not persuasive of error. (See2019 Revised Guidance, 84 Fed. Reg. at 51 (“Eligibility-related guidance issued prior to the Ninth Edition, R–08.2017, of the MPEP (published Jan. 2018) should not be relied upon.”)).)


CDC data shows national Covid death fraction per 100,000 to be 2.4; Florida is at 1.2

In terms of Covid deaths per 100,000, the CDC as of September 4, 2021 12:31 PM ET. Posted: September 4, 2021 1:53 PM ET , showed the following for US COVID-19 7-Day Death Rate per 100,000, by State/Territory:

Louisiana 7.5 Virgin Islands 6.7 Arkansas 6.2 Texas 5.5 South Carolina 5.4 Georgia 5.3 Oklahoma 5 Nevada 4.9 Tennessee 4.2 Mississippi 4 Wyoming 4 Alabama 3.9 North Carolina 3.7 Oregon 3.7 West Virginia 3.5 Missouri 3.4 Arizona 3.2 Idaho 2.9 Kansas 2.9 Montana 2.6 Puerto Rico 2.6 Guam 2.4 Washington 2.4 Hawaii 2.1 Kentucky 1.9 Indiana 1.7 New Mexico 1.7 Illinois 1.5 Nebraska 1.5 Colorado 1.4 Wisconsin 1.4 Delaware 1.3 Maryland 1.3 Ohio 1.3 Pennsylvania 1.3 Florida 1.2 Iowa 1.2 New Jersey 1.2 Virginia 1.2 Alaska 1.1

The national average is 7 DAY DEATH RATE PER 100,000 2.4

CDC | Data as of: September 4, 2021 12:31 PM ET. Posted: September 4, 2021 1:53 PM ET

Among other things, one notes Hawaii has a HIGHER Covid death fraction than Florida.

Of note, Hawaii officials decided to put a "happy face" spin on the increasing numbers. See the Sept. 7 article CDC data: Overall, Hawaii’s COVID cases, fatalities are lowest in nation which begins:

HONOLULU (HawaiiNewsNow) - When it comes to COVID cases, the CDC says Hawaii has had the lowest infection rate in the U.S. since the start of the pandemic.

Separately, KFF reports, for the Timeframe: as of 8/26/21, for DAILY deaths, as a 7 day rolling average
Florida 212
for per 100,000 212/(21.6 X 10) = 0.98 covid deaths per 100,000 (per day)

Hawaii 3
for per 100,000 3/(1.4 X 10) = 0.21 covid deaths per 100,000 (per day) link:,%22sort%22:%22asc%22%7D

New Jersey 11

End KFF information.

See also, for Hawaii,

Saturday, September 04, 2021

Florida Covid deaths per 100,000 are at 1.2, as of September 4, 2021, the same as for New Jersey, Iowa and Virginia

As of 4 September 2021, the CDC gave information on Covid deaths per state:

US COVID-19 7-Day Death Rate per 100,000, by State/Territory
CDC | Data as of: September 4, 2021 12:31 PM ET. Posted: September 4, 2021 1:53 PM ET The national average is 2.4 per 100,000

Louisiana 7.5 Virgin Islands 6.7 Arkansas 6.2 Texas 5.5 South Carolina 5.4 Georgia 5.3 Oklahoma 5 Nevada 4.9 Tennessee 4.2 Mississippi 4 Wyoming 4 Alabama 3.9 North Carolina 3.7 Oregon 3.7 West Virginia 3.5 Missouri 3.4 Arizona 3.2 Idaho 2.9 Kansas 2.9 Montana 2.6 Puerto Rico 2.6 Guam 2.4 Washington 2.4 Hawaii 2.1 Kentucky 1.9 Indiana 1.7 New Mexico 1.7 Illinois 1.5 Nebraska 1.5 Colorado 1.4 Wisconsin 1.4 Delaware 1.3 Maryland 1.3 Ohio 1.3 Pennsylvania 1.3 Florida 1.2 Iowa 1.2 New Jersey 1.2 Virginia 1.2 Alaska 1.1 New York* 1.1

In terms of Covid deaths, not normalized to population

Texas 1,607 Georgia 567 North Carolina 389 Louisiana 348 Tennessee 285 South Carolina 280 Florida 262 California 257 Arizona 236 Missouri 206 Oklahoma 197 Illinois 194 Alabama 192 Arkansas 186

Note that 262 X 7 = 1834

On 3 September 2021, the Orlando Sentinel ran a story titled

Florida reports 2,345 COVID deaths, over 129,000 cases this week

which included text

The state Department of Health reported 129,240 new coronavirus cases this week among Florida residents to bring the cumulative total to 3,308,916. With 2,345 more fatalities on record, 46,324 Florida residents have died. This week’s 2,345 deaths reflect an increase from the 1,727 reported last week, but deaths can take several days or weeks to be reported. The number of weekly cases decreased by 22,520 compared to the previous week’s 151,760. Positivity decreased to 15.2%, but that’s for new cases only and excludes anyone who previously tested positive.

Across the state, 13,143 people are hospitalized with COVID-19 for the seven-day period from Aug. 24-30, according to the latest White House report. In comparison, 14,833 were hospitalized the previous week. The week before that, it was 16,087. Statewide, 13,124,436 residents, or 69% of people age 12 and up, have received at least one vaccination shot, including 10,880,393 who have completed their shot regimens through Sept. 2.

A yahoo news report included the text:

As of mid-August, the state was averaging 244 deaths per day, up from just 23 a day in late June and eclipsing the previous peak of 227 during the summer of 2020. (Because of both the way deaths are logged in Florida and lags in reporting, more recent figures on fatalities per day are incomplete.)


The 2021 population of Florida is estimated as 21.6 million. 262 / 21.6 X 106 gives 1.2 per 100,000, as reported by the CDC.

Friday, September 03, 2021


From the opinion

Having reviewed the district court’s thorough and thoughtful opinion, we affirm. We specifically adopt its construction of the following terms from U.S. Patent No. 6,967,208 (“the ’208 patent”): (1) “substituted with [N] R,” see Bristol-Myers Squibb Co. v. Aurobindo Pharma USA Inc., 477 F. Supp. 3d 306, 340 (D. Del. 2020), and (2) “pharmaceutically acceptable salts,” see id. at 312 ¶ 13. And, we adopt its construction of the following terms from U.S. Patent No. 9,326,945 (“the ’945 patent”): (1) “apixaban particles have a D90 equal to or less than about 89 microns,” see id. at 313 ¶ 19, and (2) “crystalline apixaban particles,” see id. We also find no error, and certainly no clear error, in the district court’s findings of fact, including its expert witness credibility determinations

D90 or DV (0.9) means that 90% of the total particles are smaller than this size.

As of 3 Sept 2021, the national average for Covid deaths is 2.3 per 100,000 and new infections 321.6 per 100,000

Florida is well below the national average for deaths per 100,000 (which is 7 DAY DEATH RATE PER 100,000 2.3 )

Louisiana 7.7 Arkansas 6.5 Texas 5.5 Nevada 5.4 Oklahoma 5.4 South Carolina 5.3 Mississippi 5.1 Georgia 4.8 Wyoming 4 Virgin Islands 3.8 West Virginia 3.8 Tennessee 3.7 Alabama 3.6 Oregon 3.6 Missouri 3.5 Idaho 3.4 North Carolina 3.4 Arizona 3 Puerto Rico 3 Guam 2.4 Montana 2.4 Hawaii 2.3 Washington 2.3 Indiana 1.7 Nebraska 1.7 Delaware 1.6 Florida 1.6 Kansas 1.6

CDC | Data as of: September 3, 2021 2:05 PM ET. Posted: September 3, 2021 3:08 PM ET


But see: ** Florida’s Newly Reported Deaths Jump to Record (5:58 p.m. NY) Florida reported 2,345 additional Covid-19 deaths in its latest weekly report, the most ever in a similar period. The daily average rose 36% to 335, according to calculations based on data in the report. That would surpass the high for the entire pandemic in Johns Hopkins University data. The data is based on when the death was reported, not when it occurred. People 65-and-over accounted for 63% of the deaths. Cumulatively over the entire pandemic, Florida seniors have made up 79% of deaths.