Thursday, October 28, 2021

National Covid death rate drops to 2.3 per 100K per week on October 27, 2021

The CDC reported

7 DAY DEATH RATE PER 100,000 = 2.3

as of October 27, 2021 12:58 PM ET. Posted: October 27, 2021 2:46 PM ET

The "bad" states:

West Virginia 9.5 Montana 9.3 Idaho 8.8 Wyoming 6.6 North Dakota 6.3 Georgia 6.2 Oklahoma 5 Ohio 4.7 Texas 4.2 Alaska 4 Arizona 4 Tennessee 4 Pennsylvania 3.7 Guam 3.6 Nevada 3.6 Maine 3.4 Delaware 3.2 North Carolina 3 Indiana 2.9 Virgin Islands 2.9 Arkansas 2.8 Colorado 2.8 South Dakota 2.8 Virginia 2.8 Wisconsin 2.8 Kansas 2.5 Washington 2.5 Louisiana 2.3


Wednesday, October 27, 2021

The CAFC gets into beer making and trademarks in the Brooklyn Brewery case: standing, inevitable confusion, and more

The outcome:

The Brooklyn Brewery Corporation (“Brewery”) appeals a decision of the Trademark Trial and Appeal Board (the “Board”). Brewery petitioned to cancel Brooklyn Brew Shop, LLC’s (“BBS”) registration of the mark “BROOKLYN BREW SHOP,” in standard characters, for goods identified as “Beer making kit[s]” in Class 32 (the “Cancellation”), and opposed BBS’s application to register a stylized version of the same mark for beer-making kits in Class 32 and sanitizing preparations for household use in Class 5 (the “Opposition”). We affirm the Board’s denial of Brewery’s petition for cancellation. As for the Opposition, we dismiss the appeal as to the Class 5 goods for lack of standing. We vacate and remand in part because we find the Board erred by not entering judgment in favor of Brewery on the Class 32 goods deleted from BBS’s application. As to the remaining goods in Class 32 (beer-making kits), we affirm the Board’s dismissal of the claim that, under Section 2(d), the mark is likely to cause confusion. We vacate and remand with respect to the descriptiveness issue under Section 2(e)(1), because the Board erred by not reaching Brewery’s claim that the applied-for mark lacked acquired distinctiveness under Section 2(f) as to the beer-making kits, but affirm the Board’s refusal to consider geographic descriptiveness under Section 2(e)(2)

The standing issue

BBS argues that Brewery lacks both Article III and statutory standing to appeal the Board’s decision dismissing the Opposition as to the Class 5 goods (sanitizing preparations). Although we have not yet had occasion to address Article III standing in a trademark case, our cases in the patent context have made clear that the statute does not set forth the exclusive test for standing when a decision of an administrative agency is appealed in federal court. The appellant must also satisfy the requirements of Article III. See, e.g., Phigenix, Inc. v. Immunogen, Inc., 845 F.3d 1168 (Fed. Cir. 2017); see also Consumer Watchdog v. Wis. Alumni Rsch. Found., 753 F.3d 1258, 1261 (Fed. Cir. 2014) (“[A]lthough Article III standing is not necessarily a requirement to appear before an administrative agency [such as the TTAB], once a party seeks review in a federal court, ‘the constitutional requirement that it have standing kicks in.’” (quoting Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002))). This is because Article III of the U.S. Constitution limits federal courts to hearing “Cases” or “Controversies,” U.S. Const. art. III, § 2, cl. 1, and “Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to [an appellant] who could not otherwise have standing,” Phigenix, 845 F.3d at 1175 (quoting Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997)). Accordingly, we must address Article III standing.

Consumer Watchdog is cited

“To meet the constitutional minimum for standing, the party seeking to invoke federal jurisdiction must satisfy three requirements.” Consumer Watchdog, 753 F.3d at 1260–61 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). First, the party must show that it has suffered an “injury in fact” that is both “concrete and particularized” and “actual or imminent.” Lujan, 504 U.S. at 560–61 (internal quotation marks omitted). Second, it must show that the injury is fairly traceable to the challenged action. Id at 560. And third, the party must show that it is “likely,” rather than “merely speculative,” that a favorable judicial decision will redress the injury. Id. at 561 (internal quotation marks omitted). Although certain of these requirements, “namely immediacy and redressability,” may be relaxed “where Congress has accorded a procedural right to a litigant,” Consumer Watchdog, 753 F.3d at 1261 (citing Massachusetts v. EPA, 549 U.S. 497, 517–18 (2007)), the “requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute,” id. (quoting Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009)).
To establish injury in fact in a trademark case, an opposer must demonstrate a concrete and particularized risk of interference with the rights that flow to it from registration of its own mark, or some other Article III injury. This does not require that an opposer show that it faces a risk of potential trademark infringement liability, though that could be sufficient to establish standing. It may also establish standing by showing that if a mark is not canceled, or if an application is granted, the very registration and use of the mark would cause the opposer concrete and particularized harm.
Thus, the test for likelihood-of-confusion or descriptiveness purposes is whether the challenger and registrant compete in the same line of business and failure to cancel an existing mark, or to refuse registration of a new mark, would be likely to cause the opposer competitive injury. To be clear, an opposer cannot show standing by merely showing the registrant competes with the opposer and receives a benefit from an unlawful trademark. See Already, LLC v. Nike, Inc., 568 U.S. 85, 96–100 (2013) (“Taken to its logical conclusion, the theory seems to be that a market participant is injured for Article III purposes whenever a competitor benefits from something allegedly unlawful— whether a trademark, the awarding of a contract, a landlord-tenant arrangement, or so on. We have never accepted such a boundless theory of standing.”). A more particularized showing of harm is required. Id.

Here, Brewery never explains how granting the application to register the mark for sanitizing preparations in Class 5 would cause Brewery to suffer an Article III injury. To be sure, BBS’s sanitizing preparations are used in connection with beer-making kits. But Brewery does not make or sell sanitizing preparations. The Board found that “sanitizing preparations are only peripherally related to beermaking kits, much less beer” and that there was no indication in the record that “[BBS’s] sanitizing preparations for household use—particularly when sold individually—are likely to travel in the same channels of trade . . . as [Brewery’s] beer.” Decision, 2020 WL 4673282, at *20. When pressed on this issue at oral argument on appeal, Brewery urged that it would suffer possible injury if it were ever to expand its business to the sale of sanitizing preparations. See Oral Arg. 02:50–02:57, available at 2277_08302021.mp3.

Laches (and inevitable confusion) also arise:

Before the Board, BBS successfully argued that the defenses of laches and acquiescence applied to Brewery’s Section 2(d) claims in the Cancellation and as to the beermaking kits in the Opposition. The defense of laches in a trademark proceeding “requires a showing of undue delay in asserting rights against a claimant to a conflicting mark and prejudice resulting therefrom.” Nat’l Cable Television Ass’n, Inc. v. Am. Cinema Eds., 937 F.2d 1572, 1580 (Fed. Cir. 1991). And to establish acquiescence, the Board requires a defendant to prove that the plaintiff’s conduct amounted to an assurance to defendant, “either express or implied[,] that plaintiff w[ould] not assert [its] trademark rights against the defendant.” CBS, Inc. v. Man’s Day Publ’g Co., 205 U.S.P.Q 470, 1980 WL 30129, at *5 (TTAB 1980); see also Coach House Rest. Inc. v. Coach & Six Rests., Inc., 934 F.2d 1551, 1558 (11th Cir. 1991) (setting forth test for acquiescence in trademark cases). Here, the Board found that Brewery’s more than fouryear delay in bringing an action was unreasonable given that Brewery “was long aware of the nationwide sales of [BBS’s] beer-making kits.” Decision, 2020 WL 4673282, at *14. Between 2011 and 2016, Brewery publicly collaborated with BBS on the sale of “co-branded beer-making kits, books on beer making, and educational programs on beer making.” Id. at *15. During that time, the Board found, “[Brewery] actively represented that it would not assert a right or a claim against [BBS’s] use of its BROOKLYN [BREW] SHOP mark in connection with beermaking kits.” Id. Finding no valid excuse for Brewery’s delay in asserting its rights that could outweigh the material prejudice BBS would suffer from the delay, the Board held the defenses were applicable in this case. As a result, Brewery could not overcome the defenses and prevail on its Section 2(d) claims as to the beer-making kits unless it established “inevitable confusion.” See Australian Therapeutic, 965 F.3d at 1372; see also Ultra-White Co., Inc. v. Johnson Chem. Indus., Inc., 465 F.2d 891, 893– 94 (CCPA 1972) (finding six-year delay in filing a petition to cancel did not make a laches defense where confusion was inevitable).

Of note

The Board rejected this argument, explaining that “[t]he mark must [] be regarded as a whole, including the disclaimed matter, in evaluating similarity to other marks.” Decision, 2020 WL 4673282, at *11 n.74 (citing In re Nat’l Data Corp., 753 F.2d 1056, 1059 (Fed. Cir. 1985)). “[A] disclaimer does not remove the disclaimed matter from the mark,” nor does “a Section 2(f) claim . . . remove matter from the mark.” Id. In National Data Corp., we held that “[t]he technicality of a disclaimer . . . has no legal effect on the issue of likelihood of confusion,” because “[t]he public is unaware of what words have been disclaimed during prosecution of the trademark application at the PTO.” 753 F.2d at 1059; see also Specialty Brands, Inc. v. Coffee Bean Distribs., Inc., 748 F.2d 669, 672 (Fed. Cir. 1984) (disregarding the fact that the applicant had disclaimed the word “spice” apart from SPICE VALLEY for the purposes of likelihood-of-confusion analysis, because “the marks are viewed in their entireties”). The Board did not commit legal error in finding that the defense of laches was available in the opposition proceeding as to the beer-making kits, so its application of laches was not an abuse of discretion.

Seen in Ocala

Pools and patent law, happy together?

Tuesday, October 26, 2021

National Covid death rate drops to 2.5 per 100K per week as of October 26

The CDC reported

7 DAY DEATH RATE PER 100,000 2.5

As of October 26, 2021 2:24 PM ET. Posted: October 26, 2021 3:44 PM ET

Bad states:

Wyoming 11.9 West Virginia 8.8 Idaho 7.3 Montana 7.1 Georgia 6.6 North Dakota 5.9 Kentucky 5.5 Ohio 5.4 Alaska 4.9 South Carolina 4.8 Tennessee 4.3 Texas 4.3 Pennsylvania 3.5 Arizona 3.4 Maine 3.4 Delaware 3.3 Indiana 3.2 Iowa 3.2 North Carolina 3.2 Nevada 3.1 Arkansas 3 Virginia 3 Colorado 2.9 Louisiana 2.8 Oregon 2.6 Kansas 2.5


Monday, October 25, 2021

Corephotonics loses to Apple at CAFC

The outcome

Besides raising challenges to the merits of the Board’s decision, Corephotonics presented a challenge under the Appointments Clause of the Constitution, Art. II, § 2. After the Supreme Court resolved a similar constitutional challenge in United States v. Arthrex, Inc., 141 S. Ct. 1970 (2021), we remanded this matter, while retaining jurisdiction, to give the Acting Director of the PTO the opportunity to consider reviewing the Board decision (an opportunity Corephotonics indicated it wanted). The Acting Director has now declined to review the Board decision, and Corephotonics has informed us that it does not challenge the Acting Director’s denial of review, but seeks only our review of the Board’s decision. We proceed to address Corephotonics’s challenges to the merits of that decision. We affirm.

As to anticipation

For a reference to anticipate a claim under 35 U.S.C. § 102, “each claim element must be disclosed, either expressly or inherently, in a single prior art reference, and the claimed arrangement or combination of those elements must also be disclosed, either expressly or inherently, in that same prior art reference.” Therasense, Inc. v. Becton, Dickinson & Co., 593 F.3d 1325, 1332–33 (Fed. Cir. 2010). Here, the anticipation issue comes down to whether Ogino teaches a lens assembly in which the cover glass is omitted and the resulting total track length is 4.387 mm (the TL number in Table 11). If it does, that number is undisputedly less than the effective focal length (4.428 mm), satisfying the claim 1 requirement of TTL/EFL < 1.0—the only contested issue now regarding anticipation of claims 1 and 13.

As to teaching away

Further, despite language in Ogino explaining that the rationale for using a biconcave second lens element is to reduce track length, Ogino, col. 7, lines 39–42, nothing in Ogino “would have the effect of discrediting or discouraging the use of a meniscus shaped lens.” Board Decision, 2019 Patent App. LEXIS 13253, at *38–40; see also In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (“The prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed . . . .”).

National Covid death rate remains at 2.7 per 100K per week on October 24, 2021

The CDC reported that as of October 24, 2021 5:23 PM ET. Posted: October 24, 2021 5:53 PM ET the death rate was 2.7.

7 DAY DEATH RATE PER 100,000 2.7

The "bad states"

Wyoming 11.9 Montana 11.1 Alaska 10.8 West Virginia 8.7 Idaho 8.5 Georgia 7 Kentucky 6 Ohio 5.4 North Dakota 5 Arizona 4.5 Texas 4.5 Oklahoma 4.2 Alabama 4.1 Tennessee 4.1 Pennsylvania 3.8 South Carolina 3.5 Indiana 3.3 Nevada 3.3 South Dakota 3.3 Iowa 3.2 Virginia 3.2 Guam 3 Louisiana 3 North Carolina 3 Colorado 2.9 Oregon 2.9 Washington 2.9 New Mexico 2.7


Saturday, October 23, 2021

Another squash variant at Ocala Publix

Spaghetti squash?

National Covid death rate remains at 2.7 per 100K per week on October 23, 2021

The CDC reported, as of October 23, 2021 12:36 PM ET. Posted: October 23, 2021 2:11 PM ET, a national Covid death rate of

7 DAY DEATH RATE PER 100,000 = 2.7

The "bad" states

Wyoming 11.9 Montana 11.1 Alaska 10.8 West Virginia 8.7 Idaho 8.5 Georgia 7 Kentucky 6 Ohio 5.4 North Dakota 5 Arizona 4.5 Texas 4.5 Oklahoma 4.2 Alabama 4.1 Tennessee 4.1 Pennsylvania 3.8 South Carolina 3.5 Indiana 3.3 Nevada 3.3 South Dakota 3.3 Iowa 3.2 Virginia 3.2 Guam 3 Louisiana 3 North Carolina 3 Colorado 2.9 Oregon 2.9 Washington 2.9 New Mexico 2.7


Friday, October 22, 2021

National Covid dearh rate rises to 2.7 on October 22, 2021

As of : October 22, 2021 12:40 PM ET. Posted: October 22, 2021 2:20 PM ET , the CDC reported a Covid death rate of

7 DAY DEATH RATE PER 100,000 is 2.7

Some "bad" states

Wyoming 11.9 Montana 11 West Virginia 10.6 Alaska 10.4 Idaho 9 Georgia 7.3 Kentucky 6 North Dakota 5.9 Ohio 5.1 Alabama 4.8 Texas 4.7 Arizona 4.4 Delaware 4.1 Pennsylvania 3.7 South Dakota 3.6 Tennessee 3.6 Indiana 3.3 Nevada 3.3 Virginia 3.3 Iowa 3.2 Louisiana 3.2 Oregon 3.2 Guam 3 Washington 2.9 South Carolina 2.8 Colorado 2.7 North Carolina 2.7 Oklahoma 2.7 New Mexico 2.6

New variety of squash being sold at Publix ?

In Ocala

National Covid death rate at 2.6 per 100K per week as of October 21, 2021 9:57 PM ET. Posted: October 21, 2021 11:02 PM ET

The more "poorly performing" states

West Virginia 12.3 Montana 10.9 Alaska 10.5 Wyoming 9.7 Idaho 8.9 Georgia 7.6 Kentucky 6 North Dakota 5.4 Ohio 5.1 Alabama 4.5 Texas 4.5 Indiana 4.2 Pennsylvania 3.9 Arizona 3.8 Nevada 3.8 Delaware 3.7 Louisiana 3.4 Virginia 3.3 Iowa 3.2 New Mexico 3.2 South Dakota 3.2 North Carolina 3 Tennessee 3 Virgin Islands 2.9 Washington 2.9 Oklahoma 2.8 Oregon 2.8 Colorado 2.5


Wednesday, October 20, 2021

National Covid death rate remains at 2.7 per 100K per week on October 20, 2021

The national Covid death rate remains at 2.7 on October 20, 2021:

7 DAY DEATH RATE PER 100,000 = 2.7

The states of highest rate

Idaho 8.9 Montana 8.9 West Virginia 8.8 Nebraska 8.5 Alabama 8 Wyoming 6.7 Georgia 6.2 South Carolina 5.5 Guam 5.4 North Dakota 5 Kentucky 4.8 Pennsylvania 4.8 Texas 4.8 Virgin Islands 4.8 Nevada 4.4 Ohio 4.4 Oregon 4.3 Virginia 3.7 Delaware 3.6 Missouri 3.6 New Mexico 3.5 South Dakota 3.2 Louisiana 3.1 North Carolina 3.1 Iowa 3 Oklahoma 3 Alaska 2.7 Colorado 2.6 Indiana 2.6 Arkansas 2.3 Minnesota 2.3 Utah 2.3 Hawaii 2.2 Washington 2.2

CDC | Data as of: October 20, 2021 1:12 PM ET. Posted: October 20, 2021 2:55 PM ET


The death rate was at 2.7 on October 19, 2021, so there has been no decrease.

Covid mask rule in Florida??

In Florida

Tuesday, October 19, 2021

Life at Delaney Elementary School (Orlando) in the good old days

There are lots of smiling faces in this class picture of Miss Lawson's 5th Grade Class at Delaney Elementary School (Orlando), which school was closed in 1975, to become the Mayor William Beardall Senior Center.

See the post
DELANEY SCHOOL , which includes text about Jim Manuel

Though one might think of this period as easy and fun, note that the students had regular bomb drills, as if hiding under your desk would save one from a nuclear attack. As to creature comforts, there was no air conditioning at Delaney, and one frequently had black-eyed peas for lunch.

The hit song on this day was "Mack the Knife," and the nuclear war aftermath movie "On the Beach" would be released in a month. As to television, the most recent Perry Mason ["The Case of the Golden Fraud"] has just been shown, including Neil Hamilton [later of Batman], Arthur Franz (born in Perth Amboy, later to play in "Alvarez Kelly," a movie about the great beefsteak raid in the Civil War] and Alan Hewitt [ later to play in the Presley movie "Follow that Dream," part of which was filmed in Yankeetown, Florida and part in the Citrus County Courthouse in Inverness, Florida ]. The Huntley/Brinkley national news was on NBC. "Cheyenne" and "Father Knows Best" were on Mondays.

And as to US Route 66:

National covid death rate drops to 2.3 per 100K per week as of October 18, 2021 12:40 PM ET.

The states with higher rates:

West Virginia 9.7 Idaho 7.5 Wyoming 6.7 Alabama 6.3 Guam 5.4 Georgia 5.1 North Dakota 5 Virgin Islands 4.8 Texas 4.7 Ohio 4.4 Montana 4 Oregon 4 Pennsylvania 4 South Carolina 4 Nevada 3.8 Delaware 3.6 Alaska 3 Iowa 3 New Mexico 2.9 Virginia 2.9 Louisiana 2.8 Arkansas 2.7 North Carolina 2.7 Kentucky 2.5 Oklahoma 2.4 Washington 2.4 Missouri 2.3 Hawaii 2.2 Nebraska 2.2 Wisconsin 2.2 Indiana 2

CDC | Data as of: October 18, 2021 12:40 PM ET. Posted: October 18, 2021 2:27 PM ET


UPDATE on October 19. Covid death rate increases!

7 DAY DEATH RATE PER 100,000 = 2.7

CDC | Data as of: October 19, 2021 2:04 PM ET. Posted: October 19, 2021 3:15 PM ET

Sunday, October 17, 2021

Covid death rate 2.7 per 100K per week as of October 17, 2021

The CDC noted a death rate of 2.7 per 100K per week as of October 17, 2021.

The "bad" states

West Virginia 9.7 Idaho 7.5 Wyoming 6.7 Alabama 6.4 Georgia 6 Guam 6 Texas 4.9 Oklahoma 4.8 Virgin Islands 4.8 Montana 4.6 South Carolina 4.6 Nevada 4.5 Ohio 4.4 Oregon 4.2 Pennsylvania 4 Tennessee 4 Virginia 3.6 North Dakota 3.5 Arkansas 3.4 North Carolina 3.4 Alaska 3.3 Louisiana 3.2 Iowa 3 New Mexico 2.9 Washington 2.8

CDC | Data as of: October 17, 2021 12:37 PM ET. Posted: October 17, 2021 2:17 PM ET


Thursday, October 14, 2021

National covid death rate flat at 2.6 per 100K per week on October 14, 2021

From the CDC on October 14

7 DAY DEATH RATE PER 100,000 = 2.6

The "bad" states:

West Virginia 8.9 Idaho 8.2 Guam 7.2 Wyoming 6.7 Georgia 5.7 Texas 5.5 Oklahoma 5.2 Oregon 5.1 Alabama 4.8 Montana 4.5 Ohio 4.5 Tennessee 4.2 Pennsylvania 4 Nevada 3.9 North Carolina 3.7 North Dakota 3.7 Virginia 3.7 Alaska 3.6 Louisiana 3.6 Arkansas 3.5 Washington 3.1 Iowa 3 Delaware 2.9 South Carolina 2.9 Virgin Islands 2.9 Arizona 2.8 Colorado 2.8 Vermont 2.6 Wisconsin 2.6


Hawaii 2.3 Minnesota 2.2 Missouri 2.2 Nebraska 2.2 Utah 2.1 Maryland 1.9 Northern Mariana Islands 1.9 Illinois 1.7 Mississippi 1.7 Maine 1.6 New York* 1.6 Indiana 1.5 Kansas 1.5 Massachusetts 1.4 Michigan 1.4 New Mexico 1.4 New Hampshire 1.3 New Jersey 1.3 Connecticut 1.1 New York City* 1.1 South Dakota 1.1 Kentucky 0.9 Puerto Rico 0.6 Florida 0.5 Rhode Island 0.5 District of Columbia 0.4

CDC | Data as of: October 14, 2021 4:47 PM ET. Posted: October 14, 2021 7:30 PM ET


Energy Heating case: inequitable conduct and attorneys' fees

The outcome:

On remand on the issue of attorneys’ fees (following an affirmed judgment of patent unenforceability due to inequitable conduct), the district court found this case exceptional under 35 U.S.C. § 285 and entered judgment awarding fees to Energy Heating, LLC, Rocky Mountain Oilfield Services, LLC, Marathon Oil Corporation, and Marathon Oil Company (collectively, “Appellees”). Heat On-The-Fly, LLC and Super Heaters North Dakota, LLC (collectively, “HOTF”)1 now appeal the district court’s exceptionality determination. We affirm.

Specifically, the court found by clear and convincing evidence that the patent would not have issued but for HOTF’s deliberate decision to withhold information from the Patent and Trademark Office (“PTO”)—information about substantial on-sale and public uses of the claimed invention well before the patent’s critical date, and that it withheld with an intent to deceive. The jury, for its part, found that HOTF tortiously interfered with Energy’s business. It awarded damages for that conduct. See J.A. 312–13. The jury also found, by clear and convincing evidence, that HOTF represented in bad faith that it held a valid patent (although the jury found that HOTF did not commit the torts of deceit or slander). J.A. 312–13. The district court subsequently denied attorneys’ fees under § 285.3 After trial, HOTF appealed the judgments of inequitable conduct and tortious interference, the summary judgments of obviousness and no direct infringement, and the construction of disputed claim terms. Appellees cross-appealed the district court’s denial of attorneys’ fees under § 285. As to HOTF’s appeal, we affirmed the judgment that the ’993 patent is unenforceable due to inequitable conduct and therefore declined to reach the remaining patent issues raised by HOTF. Energy Heating, 889 F.3d at 1296. We also affirmed the judgment of tortious interference. Id. As to Appellees’ cross-appeal, we vacated the district court’s denial of attorneys’ fees under § 285 because the court’s opinion left us “unsure as to whether the court’s basis for denying attorneys’ fees rests on a misunderstanding of the law or an erroneous fact finding” and remanded the issue to the district court for reconsideration. Id. at 1307–08.


But, as HOTF notes, see Reply Br. 21–22 Appellees’ request is premature under Federal Circuit Rule 47.7, which requires here that “the application must be made within thirty (30) days after entry of the judgment or order denying rehearing, whichever is later,” Fed. Cir. R. 47.7(a)(2) (emphasis added); see Vidal v. U.S. Postal Serv., 143 F.3d 1475, 1481 (Fed. Cir. 1998). Accordingly, we decline to consider the merits of Appellees’ request


Wednesday, October 13, 2021

Mobility Workx case at the CAFC

The outcome:

Mobility Workx (“Mobility”) appeals a decision of the Patent Trial and Appeal Board (“Board”) determining that claims 1, 2, 4, 5, and 7 of U.S. Patent No. 8,213,417 (the “’417 patent”) were unpatentable as obvious. In addition to requesting a remand under United States v. Arthrex, Inc., 141 S. Ct. 1970 (2021), and challenging the merits of the Board’s decision, Mobility raises for the first time on appeal several additional constitutional challenges, including a challenge to the structure of the Board. We first address these other constitutional challenges because a determination that the Board is unconstitutionally structured or that the proceedings are otherwise unconstitutional would dispose of the case and make consideration of the Arthrex issue or the merits unnecessary. We conclude that Mobility’s constitutional arguments are without merit. Without reaching the merits of the Board’s decision, in light of Arthrex, we remand to the Acting Director to determine whether to grant rehearing.

Judge Newman said

The Court in Arthrex did not discuss any other aspect of this new (since 2012) system whereby issued patents are subject to review and cancellation by the Patent and Trademark Office (PTO). Mobility Workx raises several issues concerning this system, including constitutional issues. In addition, the Court’s Arthrex decision now raises another possible Appointments Clause concern, stemming from the PTO’s conduct of the procedure of “institution.” From my colleagues’ endorsement of the status quo, I respectfully dissent.

The procedure called “institution” was established by the America Invents Act in response to concerns that the proposed system of agency review would be subject to abuses such as harassment, delay, and opportunistic attacks on valuable patents, for there is no requirement of an Article III controversy for these agency proceedings, although the statute provides for cancellation (or enforcement) of property rights. The procedure of “institution” is intended to provide a safeguard against unwarranted agency procedures by requiring petitioners to meet an “elevated threshold” and establish “serious doubts about the patent’s validity” before subjecting the patent owner to the burden and delay of this new procedure. 157 Cong. Rec. S1375 (daily ed. Mar. 8, 2011) (statement of Sen. Kyl). Senator Kyl explained:

National covid death rate is at 2.6 on October 12, 2021

The CDC reports

7 DAY DEATH RATE PER 100,000 = 2.6

Bad states include:

West Virginia 12.3 Idaho 9.2 Georgia 6.7 Wyoming 6.7 Texas 5.7 Guam 5.4 Oklahoma 5.1 Oregon 5.1 Ohio 4.5 Montana 4.3 Tennessee 4.1 Alaska 4 Nevada 4 North Carolina 4 Indiana 3.9 North Dakota 3.8 Louisiana 3.7 Pennsylvania 3.5 Virginia 3.4 Arizona 3.3 Arkansas 3.1 Delaware 3.1 South Carolina 2.9

Virgin Islands 2.9 Maine 2.8 Washington 2.7 Colorado 2.6 Minnesota 2.5 Alabama 2.4 Hawaii 2.4

CDC | Data as of: October 13, 2021 2:38 PM ET. Posted: October 13, 2021 4:22 PM ET

Separately for future discussion on Robert E. Lee

Sunday, October 10, 2021

Memorable newspaper front cover

From the New York Post:

National Covid death rate 3.1 as of October 9, 2021; West Virginia tops at 11.9

The US national Covid death rate was reported by the CDC as

7 DAY DEATH RATE PER 100,000 3.1

as of CDC | Data as of: October 9, 2021 12:35 PM ET. Posted: October 9, 2021 2:00 PM ET


The "bad" states

West Virginia 11.9 Idaho 10.5 Georgia 8.5 Guam 8.5 Alabama 7.9 Wyoming 7.8 Oklahoma 6.1 Texas 6.1 Montana 5.8 Kentucky 5.6 South Carolina 5.4 North Carolina 4.8 Ohio 4.7 Delaware 4.4 Indiana 4.4 Louisiana 4 Oregon 4 Tennessee 4 Arizona 3.9 Nevada 3.9 Maine 3.7 Pennsylvania 3.7 Washington 3.4 Virginia 3.2 Arkansas 3.1 Hawaii 3.1

The number 3.1 represents a slight INCREASE over the death rate reported on October 8, 2021:

7 DAY DEATH RATE PER 100,000 = 3

CDC | Data as of: October 8, 2021 1:21 PM ET. Posted: October 8, 2021 3:26 PM ET

West Virginia 10.9 Idaho 8.8 Georgia 8.7 Guam 8.5 Wyoming 7.8 Alabama 7.4 Texas 5.9 Montana 5.7 Oklahoma 5.7 Kentucky 5.6 South Carolina 4.8 North Carolina 4.7 Ohio 4.7 Indiana 4.4 Arizona 4.1 Louisiana 4.1 Oregon 4 Arkansas 3.7 Maine 3.4 Tennessee 3.4 North Dakota 3.2 Pennsylvania 3.2 South Dakota 3.2 Virginia 3.2 Washington 3.2 Hawaii 3.1 Nevada 3.1

One notes that the state of Maine is above the national average in Covid death rate. Yet, according to, it is the fourth MOST vaccinated state:

Vermont 78% 70% 917,788 1,075,350 85% Connecticut 77% 69% 5,138,344 5,749,685 89% Rhode Island 76% 69% 1,489,433 1,730,845 86% Maine 75% 69% 1,852,926 2,198,100 84% Massachusetts 78% 68% 9,954,959 11,177,680 89% New Jersey 73% 65% 11,733,172 14,267,635 82% Maryland 71% 65% 8,116,338 10,207,120 80% New Mexico 73% 64% 2,829,941 3,015,045 94% New York 72% 64% 26,331,713 30,154,585 87% New Hampshire 71% 62% 1,783,818 2,186,780 82% Washington 68% 62% 9,798,601 11,675,975 84% District of Columbia 72% 61% 1,016,129 1,237,365 82% Virginia 69% 61% 11,097,362 13,031,455 85% Oregon 67% 61% 5,338,905 6,869,705 78% California 73% 60% 51,583,481 59,569,885 87% Colorado 66% 60% 7,310,621 8,369,125 87% Hawaii 77% 59% 1,906,531 2,390,390 80% Pennsylvania 74% 59% 16,551,120 19,691,235 84% Minnesota 64% 59% 6,802,645 7,994,350 85% Florida 68% 58% 27,311,365 33,503,395 82% Delaware 67% 58% 1,234,411 1,579,875 78% Wisconsin 61% 57% 6,936,268 7,710,425 90% Nebraska 60% 55% 2,216,436 2,630,910 84% Illinois 69% 54% 15,587,972 18,325,405 85% Iowa 59% 54% 3,525,042 4,331,825 81% Kentucky 61% 53% 5,053,351 5,950,125 85% Kansas 61% 52% 3,149,155 3,978,435 79% Texas 60% 52% 32,939,626 42,562,355 77% South Dakota 60% 52% 975,953 1,220,015 80% Arizona 60% 52% 8,370,474 10,143,070 83% Utah 60% 52% 3,504,509 4,113,670 85% Michigan 57% 52% 10,837,674 13,828,620 78% Nevada 61% 51% 3,464,385 4,113,230 84% North Carolina 61% 51% 11,640,273 14,754,970 79% Alaska 58% 51% 810,238 1,089,275 74% Ohio 55% 51% 12,336,137 15,366,135 80% Missouri 55% 49% 6,440,676 7,996,135 81% Montana 55% 49% 1,115,986 1,384,285 81% Indiana 53% 49% 6,889,662 8,546,670 81% Oklahoma 57% 48% 4,247,608 5,114,950 83% South Carolina 56% 48% 5,394,101 7,044,525 77% Arkansas 56% 46% 3,085,323 4,161,500 74% Georgia 55% 46% 10,855,933 14,852,355 73% Tennessee 53% 46% 7,049,724 8,814,240 80% Louisiana 52% 46% 4,623,927 5,901,020 78% North Dakota 52% 45% 762,221 947,340 80% Mississippi 51% 44% 2,840,936 3,891,415 73% Alabama 53% 43% 4,624,892 6,829,510 68% Wyoming 49% 42% 534,368 690,105 77% Idaho 48% 42% 1,608,784 2,293,970 70% West Virginia 48% 41% 1,567,789 3,032,115 52%

Data Updated Oct 8


Wednesday, October 06, 2021

Post at says: 1 in 3 Americans say they’re open to abolishing or limiting the Supreme Court; WSJ hammers Federal judicial conflict of interest

The post begins

A surprisingly significant portion of Americans would like to see the Supreme Court become the “Subordinate Court,” according to new research. A recent poll conducted by the Annenberg Public Policy Center of the University of Pennsylvania finds over a third of Americans “might be willing” to abolish the Supreme Court altogether or at least permit Congress to limit its power


Elswhere, the Wall Street Journal on September 29, 2021 ran a story on judicial conflict of interest, which included

Pietro Pasquale Antonio Sgromo loses at CAFC: lack of subject matter jurisdiction

The outcome

Pietro Pasquale Antonio Sgromo appeals from a decision of the United States District Court for the District of Minnesota granting Target Brands, Inc.’s (“Target”) motion to dismiss for lack of jurisdiction and denying Sgromo’s motion for a preliminary injunction. See Sgromo v. Target Brands, Inc., No. CV 20-1030, 2021 WL 632496 (D. Minn. Feb. 18, 2021). We affirm.

Because Sgromo lacked ownership of any of the asserted patents and trademarks, the magistrate judge recommended granting Target’s motion to dismiss for lack of subject matter jurisdiction on the ground that Sgromo lacked standing to assert claims for infringement. J.A. 41. In addition, because Sgromo also failed to demonstrate that he had a fair chance of prevailing on any of his claims, the magistrate judge recommended denying Sgromo’s motion for a preliminary injunction. J.A. 41–42. Judge John Tunheim adopted the report and recommendation and dismissed the claims. J.A. 2–14.

Sgromo did not hold ownership of any of the patents or trademarks when he asserted them. At all relevant times, as indicated by publicly available assignment forms, Scott, Bestway, or Imperial Toy owned the ’422, ’440, and ’298 patents and the H2O-GO! trademarks. See J.A. 26–35, 63; S.A. 111–22, 170–75. Although Sgromo is listed as an inventor on the ’298 and ’422 patents, he had assigned them to others and lacked ownership of these patents when he attempted to sue on them. In addition, the purported assignments Sgromo filed for the ’422 patent, ’440 patent, and H2O-GO! trademarks have no legal effect. See 37 C.F.R. § 3.54 (“The recording of a document . . . is not a determination by the Office of the validity of the document or the effect that document has on the title to an application, a patent, or a registration.”).

National Covid death rate at 3.0 per 100K per week on 6 October 2021

The national Covid death rate -- 7 DAY DEATH RATE PER 100,000 is 3

The "bad" states are

West Virginia 10.9 Idaho 9.2 Guam 8.5 Alabama 8.4 Georgia 8.2 Wyoming 7.8 Oklahoma 6.5 Kentucky 6.4 Texas 6.3 Montana 5.5 Iowa 5.4 North Carolina 5 Nevada 4.8 Louisiana 4.7 Ohio 4.7 Arkansas 4.1 South Carolina 4.1 Arizona 4 Hawaii 3.8 Virginia 3.5 Washington 3.5 Indiana 3.3 South Dakota 3.2 Missouri 3.1 Pennsylvania 3

Florida at 0.2 and New Jersey at 1.6

One notes that Hawaii (not Florida) has been at or above the national average for some time now.

CDC | Data as of: October 6, 2021 1:32 PM ET. Posted: October 6, 2021 3:49 PM ET


Tuesday, October 05, 2021

National Covid death rate rises to 3.1 per 100K per week

Data posted on October 5, 2021 shows the national Covid death rate to have risen:
7 DAY DEATH RATE PER 100,000 = 3.1

The "bad" states are

West Virginia 11.2 Idaho 10.8 South Carolina 9.3 Alabama 7.9 Georgia 7.8 Guam 7.8 Wyoming 7.1 Oklahoma 6.7 Texas 6.2 Kentucky 6.1 Louisiana 5 Montana 4.6 Nevada 4.6 North Carolina 4.6 Arizona 4.5 Mississippi 4.4 Arkansas 4 Ohio 3.9 Hawaii 3.8 Washington 3.7 Alaska 3.6 Virginia 3.6 South Dakota 3.5 Delaware 3.1 Missouri 3.1

CDC | Data as of: October 5, 2021 12:23 PM ET. Posted: October 5, 2021 2:11 PM ET


This information shows how seriously wrong "NBC Nightly News" was on Saturday, October 2, 2021. There is no excuse for NBC's misinformation.

Separately, of a breakthrough case/death:

Separately, from USA Today on Monday, October 4, 2021:

Monday, October 04, 2021

Mark Lemley loses in CosmoKey case

MARK A. LEMLEY, of Durie Tangri LLP, San Francisco, CA, argued for the losing defendant-appellee.

CosmoKey Solutions GmbH & Co. KG appeals the United States District Court for the District of Delaware’s entry of judgment on the pleadings holding that the asserted claims of CosmoKey’s U.S. Patent No. 9,246,903 are ineligible under 35 U.S.C. § 101. The district court held that the asserted claims are directed to abstract ideas and fail to provide an inventive concept. We conclude that the claims of the ’903 patent are patent-eligible under Alice step two because they recite a specific improvement to a particular computer-implemented authentication technique. Accordingly, we reverse the decision of the district court.


The district court’s reliance on column 1, lines 15–53 as allegedly admitting that these steps were routine or conventional is misplaced. While column 1, lines 30–46 describes three prior art references, none teach the recited claim steps. To the contrary, the specification describes the prior art references as disclosing: (1) sending a prompt to a user to confirm the transaction followed by the user’s mobile device sending a confirmation signal; (2) using a user’s mobile device for activating and deactivating a credit card; and (3) sending a token to the user’s terminal from which a transaction has been requested followed by the user’s mobile device capturing the image and sending it back to the authentication device via a second communication channel. Id. at col. 1 ll. 30–46. Read in context, the rest of the passage cited by the district court makes clear that the claimed steps were developed by the inventors, are not admitted prior art, and yield certain advantages over the described prior art. The district court erred in its interpretation of this passage. This is particularly so given the procedural posture of Duo’s motion for judgment under Rule 12(c), which requires the district court to draw all reasonable inferences in favor of CosmoKey. Allstate, 667 F.3d at 390.

The concurring opinion by Judge Reyna:

I concur with the majority decision to reverse the district court’s judgment that the ’903 Patent is patent ineligible under 35 U.S.C. § 101. I conclude that, under Alice step one, the subject claims are directed to patent-eligible subject matter. I do not agree, however, with the majority’s analysis or its application of law. In sum, the majority skips step one of the Alice inquiry and bases its decision on what it claims is step two. I believe this approach is extraordinary and contrary to Supreme Court precedent. It turns the Alice inquiry on its head


The Alice inquiry should be viewed as a loose filter that prevents the patenting of abstract ideas, lest free thinking itself become a form of chattel. There should be no exclusivity to abstractness under the law. Of course, preemption is a primary underlying concern, but so are the concepts of inventiveness and innovation. To this end, step one serves several important purposes, chief among them being that a patent must lay bare that which is claimed. To echo Judge Rich’s declaration: “[T]he name of the game is the claim.” Giles S. Rich, Extent of Protection and Interpretation of Claims—American Perspectives, 21 Int’l Rev. of Indus. Prop. & Copyright L. 497, 499 (1990)). In terms of Alice, step one is about the claim.

At step one, we examine whether the claim is directed to patent-ineligible subject matter. Among other things, this examination permits us to distinguish between claims that recite mere concepts, functions or results (abstract ideas) from those that, through claimed limitations, chart the specific means for achieving such concepts, functions or results. Ancora Techs., Inc. v. HTC Am., Inc., 908 F.3d 1343, 1347 (Fed. Cir. 2018). As a result, our case law has developed specific circumstances that help guide the question of abstraction. See id. at 1347–48 (collecting cases). For example, generally, if a claim is directed to a specific technological solution to a technological problem, it is not directed to an abstract idea. See Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1336 (Fed. Cir. 2016).


We should not lose sight, as my colleagues have in this case, that the “question of abstraction is whether the claim is ‘directed to’ the abstract idea itself.” Data Engine Techs. LLC v. Google LLC, 906 F.3d 999, 1011 (Fed. Cir. 2018).

National Covid death rate at 2.8 per 100,000 per week on October 4, 2021

The CDC reported the national Covid death rate as 2.8:

7 DAY DEATH RATE PER 100,000 2.8

CDC | Data as of: October 4, 2021 3:38 PM ET. Posted: October 4, 2021 5:30 PM ET

The "bad" states

Idaho 11.8 West Virginia 11.1 Alabama 9.1 Guam 8.5 Wyoming 7.1 South Carolina 6.9 Georgia 6.3 Texas 6.2 Montana 5.1 Arkansas 5 Arizona 4.5 Louisiana 4.5 Nevada 4.3 Alaska 4.2 North Carolina 3.9 Ohio 3.9 Kentucky 3.8 Hawaii 3.6 Washington 3.3 Oklahoma 3.2 Delaware 3.1 Missouri 3.1 Pennsylvania 3

Other states

Oregon 2.7 Virginia 2.7 Iowa 2.6 Connecticut 2.5 Mississippi 2.4 New Mexico 2.3 North Dakota 2.2 Colorado 2.1 Kansas 2 South Dakota 2 Tennessee 2 Utah 1.9 Virgin Islands 1.9 Vermont 1.8 Illinois 1.7 Maryland 1.6 Minnesota 1.6 Nebraska 1.6 New Jersey 1.6 Wisconsin 1.6 Indiana 1.5 New York* 1.5 Massachusetts 1.4 New York City* 1.3 Michigan 1.1 Puerto Rico 1 Rhode Island 0.9 Maine 0.7 District of Columbia 0.6 Florida 0.6 New Hampshire 0.5 California 0.2

In terms of Covid CASES

7 DAY CASE RATE PER 100,000 183

The "bad" states

Alaska 705.8 North Dakota 566 Guam 560.4 West Virginia 552.2 Idaho 525.8 Montana 480.6 Wyoming 448 Ohio 339.9 Delaware 328.1 Kentucky 324.2 Maine 280.9 Minnesota 279.3 South Dakota 273.6 Wisconsin 273.3 Pennsylvania 257.3 Arizona 248 Tennessee 244.4 Iowa 242.9 Utah 230.7 Alabama 219.9 Texas 217 North Carolina 214.4 New York* 211.8 Michigan 209.9 Indiana 205.8 Oklahoma 201.8 Oregon 197.6 Washington 191.2 Kansas 189.3 Nebraska 185.7

In passing, NBC Nightly News on Saturday, October 2, 2021 [ José Díaz-Balart ] incorrectly reported that the Covid death rate was going down on October 2, 2021, when in fact it was rising.

Balart went to New College of Florida.

Saturday, October 02, 2021

Natioinal Covid death rate rises to 3.2 per 100K per week on 2 October 2021

The death rate went up between Oct 1 and Oct 2, and is now 7 DAY DEATH RATE PER 100,000 at 3.2.

The "bad" states are

West Virginia 11.1 Idaho 10 Alabama 9.1 Guam 8.5 South Carolina 8.4 Georgia 7.2 Wyoming 7.1 Montana 6.7 Texas 6.3 Alaska 5.9 Oklahoma 5.8 Tennessee 5.6 Louisiana 5.3 Arkansas 5.2 Nevada 4.9 North Carolina 4.7 Arizona 4.2 Connecticut 4.2 Kentucky 4 Ohio 3.9 Washington 3.6 Virginia 3.4 Oregon 3.2

Other states:

Mississippi 3.1 Missouri 3.1 Hawaii 3 Kansas 3 Pennsylvania 2.9 Iowa 2.6 Indiana 2.4 New Mexico 2.3 South Dakota 2.3 Utah 2.3 Illinois 2.2 North Dakota 2.2 Colorado 2.1 Nebraska 1.9 Virgin Islands 1.9 Minnesota 1.8 Vermont 1.8 Wisconsin 1.8 Maryland 1.7 New York* 1.6 Massachusetts 1.5 New Jersey 1.5 New York City* 1.4 Rhode Island 1.4 Delaware 1.2 Michigan 1.2 Maine 1.1 Puerto Rico 1.1 New Hampshire 0.7 California 0.6 District of Columbia 0.6 Florida 0.6

CDC | Data as of: October 2, 2021 12:33 PM ET. Posted: October 2, 2021 2:01 PM ET


This month in Civil War history, 160 years ago

The Battle of Ball’s Bluff happened on October 21, 1861. Though not significant on a "numbers engaged" basis, the battle on the Virginia side of the Potomac River (Loudoun County) had significant repercussions. First, it was (and is) the only battle in U.S. history in which a sitting U.S. Senator (Edward Dickenson Baker) was killed in combat. Second, from a legal viewpoint, future Supreme Court justice Oliver Wendell Holmes, Jr. was wounded in the battle. Third, in part because of the bad outcome for Union troops, in February, 1862, Brigadier General Charles Stone was arrested. Stone spent six months in prison with no charges ever filed against him. Union commanders had more than Confederates to worry about.


In terms of trademark trivia, the Confederate forces at First Bull Run and at Ball's Bluff were termed the "Army of the Potomac." Although later famously named by General George McClellan, the Union version of the "Army of the Potomac" was only the size of a corps in 1861, and was part of the (Union) Army of Northeastern Virginia. And Robert E. Lee would give his Confederate force the name "Army of Northern Virginia" later in time. wiki: The Army of the Potomac was also the name given to General P. G. T. Beauregard's Confederate army during the early stages of the war (namely, First Bull Run; thus, the losing Union Army ended up adopting the name of the winning Confederate army).


**Also, in October, we have the anniversary from 1918, of Dwight Eisenhower fighting the Spanish flu at Gettysburg. See

**Also, on October 14, 2021, we have the 35th anniversary of a post-layoff meeting of layoff survivors of a Fortune 50 corporation's 50% cutback. There was much discussion of the work of Deming at that meeting.

See also the 2005 post on IPBiz [ ], including the text:

In "Out of the Crisis," Deming asked, can American history, under handicap of the annual [job performance] rating produce another Irving Langmuir, a Nobel Prize winner? Deming said: It is worthy of note that the 80 American Nobel prize winners all had tenure, security. They were answerable only to themselves. Deming then stated: A common fallacy is the supposition that it is possible to rate people; to put them in rank order of performance for next year, based on performance last year.

If nothing else, the sport of baseball has proved Deming correct.

And from Wiki, about an event in 1981, five years before the above-noted mass layoff:

Ford's newly appointed Corporate Quality Director, Larry Moore, was charged with recruiting Deming to help jump-start a quality movement at Ford.[24] Deming questioned the company's culture and the way its managers operated. To Ford's surprise, Deming talked not about quality, but about management. He told Ford that management actions were responsible for 85% of all problems in developing better cars


Note also from Startup Act 2.0: are you turning up your nose at $150K/year jobs? :

In that particular case, a large U.S. corporation had terminated 50% of its scientists in its basic research laboratory, but denied several of them the opportunity to compete with a foreign worker for a single position in one of its applied laboratories.


Who gets fired first, older or younger people?

Friday, October 01, 2021

Apple succeeds in mandamus action in Fintiv case. Covid issues at the courthouse??

The outcome:

Apple Inc. petitions for a writ of mandamus directing the United States District Court for the Western District of Texas to vacate its order transferring this case from the Austin Division of the Western District of Texas to the Waco Division and to stay that order pending disposition of the petition. Because the district court cites no statutory authority for its re-transfer and because Austin remains the more convenient forum, we grant the petition and direct the district court to vacate its order.


Our review here is governed by Fifth Circuit law. See In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008). When a writ of mandamus is sought, we review a decision to transfer for a clear abuse of discretion. See In re Volkswagen of Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008) (en banc).

In In re Intel Corp., we explained that the only authority for an intra-district re-transfer without full consent of the parties is 28 U.S.C. § 1404(a). 841 F. App’x 192, 193–95 (Fed. Cir. 2020). Under § 1404(a), a district court “should not re-transfer except under the most impelling and unusual circumstances,” such as unanticipated “post-transfer events [that] frustrate the original purpose for transfer.” In re Cragar Indus., Inc., 706 F.2d 503, 505 (5th Cir. 1983) (cleaned up). Further, a re-transfer analysis should be “based on the traditional factors bearing on a § 1404(a) analysis” and “should take into account the reasons of convenience that caused the earlier transfer.” Intel, 841 F. App’x at 195.

Here, the district court inexplicably failed to perform that analysis, giving “the parties and reviewing courts no way of understanding how the court reached its conclusion and providing no assurance that it was the result of conscientious legal analysis.” In re Lloyd’s Reg. N. Am., Inc., 780 F.3d 283, 291 (5th Cir. 2015). The district court articulated no authority in its order to re-transfer, explaining only that “it remains uncertain whether the Austin courthouse will be open for jury trial in the foreseeable future.” Re-Transfer Order at 1. Not only is this explanation minimal, but it is also not supported by any analysis of the traditional § 1404(a) factors. Nor is there any indication that the Austin courthouse is currently closed for trial. The district court even acknowledged that some civil trials are proceeding in Austin and that there is a possibility of “being able to use a courtroom in Austin” and “mov[ing] forward with [the trial] in Austin.” Appx175–77.

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

The "bad" states:

Alaska 11.4 Idaho 10.5 West Virginia 9.9 Guam 8.5 Alabama 7.6 Montana 7.4 South Carolina 7.3 Wyoming 7.1 Georgia 7 Texas 6.7 Oklahoma 6 Tennessee 6 Nevada 5.4 Louisiana 5.3 North Carolina 4.9 Arkansas 4.7 Kansas 4.5 Mississippi 4.5 Connecticut 4.1 Washington 3.8 Arizona 3.5 Virginia 3.5 Kentucky 3.4 Missouri 3.2 Hawaii 3.1 Oregon 3.1 South Dakota 3.1


CDC | Data as of: October 1, 2021 1:40 PM ET. Posted: October 1, 2021 2:55 PM ET

In terms of Covid case rate:
7 DAY CASE RATE PER 100,000 220.7

Raw numbers, not normalized to 100,000 but per last seven days

Texas 72,946 Ohio 40,697 Florida 37,706 North Carolina 32,316 Pennsylvania 32,185 California 29,175 Georgia 25,480 Michigan 25,156 Tennessee 24,590 New York* 23,975 Washington 20,259 Wisconsin 19,595 Virginia 19,463 Illinois 18,683 Indiana 18,100 South Carolina 17,794 Arizona 17,707 Minnesota 16,774 Kentucky 16,298 New Jersey 12,951 Missouri 11,643 West Virginia 11,476 Oregon 11,139 Massachusetts 11,042 Oklahoma 10,826 New York City* 10,699 Colorado 9,858

Normalized to 100,000 per last seven days:

Alaska 1,156.6 West Virginia 640.4 Montana 564.5 Wyoming 561.7 North Dakota 558.5 Guam 555 Idaho 516.4 Kentucky 364.8 Tennessee 360.1 Ohio 348.2 South Carolina 345.6 Wisconsin 336.5 Delaware 317.2 Maine 308.1 North Carolina 308.1 South Dakota 303.9 Minnesota 297.4 Utah 295.3 Iowa 273.6 Oklahoma 273.6 Indiana 268.9 Washington 266 Oregon 264.1 New Hampshire 261.7 Michigan 251.9 Texas 251.6 Pennsylvania 251.4 Arizona 243.3 Georgia 240 Nebraska 238 New Mexico 236

CDC | Data as of: October 1, 2021 1:40 PM ET. Posted: October 1, 2021 2:55 PM ET


TOTAL CASES 43,409,950 +109,796 New Cases

TOTAL DEATHS 696,603 +1,752 New Deaths