Sunday, February 27, 2022

National Covid death rate at 3.7 per 100K per week on Feb. 27, 2022

The CDC reported on 27 Feb 2022:

7 DAY DEATH RATE PER 100,000 3.7

TOTAL DEATHS 944,517 +2,216 New Deaths

The "bad" states:

Ohio 9.3 West Virginia 8.2 Missouri 8.1 Maine 7.7 Tennessee 7.7 Virginia 7 Montana 6.3 New Mexico 6.1 Mississippi 5.8 Northern Mariana Islands 5.8 Arizona 5.7 Oklahoma 5.6 Georgia 5.3 Arkansas 5.1 Nevada 5.1 South Carolina 5.1 Wyoming 5 Michigan 4.8 Delaware 4.7 Palau 4.6 Louisiana 4.4 Iowa 4.3 Kentucky 4.3 Texas 4.1 Indiana 4 Massachusetts 3.8 Nebraska 3.8

CDC | Data as of: February 27, 2022 1:59 PM ET. Posted: February 27, 2022 3:22 PM ET

CNBC on BA.2

A more contagious subvariant of omicron, known as BA.2, is spreading across the globe and could soon become the dominant version of Covid-19. It’s now the top variant in at least 18 countries and rapidly spreading, representing 35% of all new cases that have been genetically sequenced worldwide, up from 10 countries and 21% of cases the week before, according to new data from the World Health Organization. In the U.S, BA.2 currently makes up 3.8% of genetically sequenced Covid cases, according to the Centers for Disease Control and Prevention. A pandemic-weary public wants to know two main things: Will BA.2 cause a second surge of omicron cases, and will it put even more people in the hospital with severe infections? So far, scientists say the answer to both questions is probably no.

Saturday, February 26, 2022

CAFC tackles USC 315 and estoppel in

The issue

One other provision is central to the issue presented to us—one of the two estoppel provisions of the IPR scheme set out in chapter 31 of Title 35, U.S. Code. The provision at issue here is § 315(e)(1), which states: The petitioner in an inter partes review of a claim in a patent under this chapter that results in a final written decision under section 318(a), or the real party in interest or privy of the petitioner, may not request or maintain a proceeding before the [PTO] with respect to that claim on any ground that the petitioner raised or reasonably could have raised during that inter partes review. 35 U.S.C. § 315(e)(1).

because the actions or underlying findings or conclusions were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” § 706(2)(A), and “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” § 706(2)(C). See J.A. 16, 38–42. In its prayer for relief, also requested a permanent injunction preventing the PTO from applying the General Policy “to grounds presented in any future requests or petitions.” J.A. 43.

When determining whether a statute precludes judicial review, we apply a “‘strong presumption’ in favor of judicial review.” Cuozzo Speed Techs., LLC v. Lee, 579 U.S. 261, 273 (2016) (quoting Mach Mining, LLC v. EEOC, 575 U.S. 480, 486 (2015)); see also SAS Institute Inc. v. Iancu, 138 S. Ct. 1348, 1359 (2018). Although a statute need not explicitly state that judicial review is unavailable for preclusion to be found, the presumption of reviewability may be overcome only by “clear and convincing indications, drawn from specific language, specific legislative history, and inferences of intent drawn from the statutory scheme as a whole, that Congress intended to bar review.” Cuozzo, 579 U.S. at 273 (cleaned up); see also SAS, 138 S. Ct. at 1359; Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 671–73 (1986). In Block v. Community Nutrition Institute, the Supreme Court explained: In the context of preclusion analysis, the “clear and convincing evidence” standard is not a rigid evidentiary test but a useful reminder to courts that, where substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling. That presumption does not control in cases . . . [where] the congressional intent to preclude judicial review is “fairly discernible” in the detail of the legislative scheme.

We conclude that § 303(c) does not apply to the estoppel decisions at issue here. Such an application would breach the provision’s textual limits and would be contrary to the just-discussed decisions addressing § 303(c). It also would run counter to precedents adhering to the textual limits of other non-reviewability provisions in Title 35. See SAS, 138 S. Ct. at 1359–60 (holding that § 314(d) did not bar review of consistency of Board’s policy of partial institutions

Trademarks and free speech: the Elster case and "Trump Too Small"

The outcome

Steve Elster appeals a decision of the Trademark Trial and Appeal Board (“Board”). The Board affirmed an examiner’s refusal to register the trademark “TRUMP TOO SMALL” for use on T-shirts. The Board’s decision was based on section 2(c) of the Lanham Act, 15 U.S.C. § 1052(c), and the Board’s finding that the mark included the surname of a living individual, President Donald J. Trump, without his consent. Because we hold that applying section 2(c) to bar registration of Elster’s mark unconstitutionally restricts free speech in violation of the First Amendment, we reverse the Board’s decision.

From within the CAFC decision

Section 2 of the Lanham Act requires the PTO to refuse registration of certain categories of proposed trademarks. In the last five years, the Supreme Court has held unconstitutional two provisions of section 2. In Matal v. Tam, 582 U.S. ___, 137 S. Ct. 1744 (2017), the Court considered a provision of section 2(a) of the Lanham Act, which directed the PTO to deny registration of marks that “disparage . . . or bring . . . into contempt[] or disrepute” any “persons, living or dead,” 15 U.S.C. § 1052(a). The eight-Justice Court was evenly split between two non-majority opinions, but both sides agreed that the provision violated the First Amendment. See Tam, 137 S. Ct. at 1765. In Iancu v. Brunetti, 588 U.S. ___, 139 S. Ct. 2294 (2019), the Court considered another provision of section 2(a) of the Lanham Act, which directed the PTO to deny registration of marks that “consist[] of or comprise[] immoral . . . or scandalous matter,” § 1052(a). Again, the Court held the provision unconstitutional. See Brunetti, 139 S. Ct. at 2302. The two opinions in Tam and the majority opinion in Brunetti each relied on a “core postulate of free speech law”—that “[t]he government may not discriminate against speech based on the ideas or opinions it conveys”— and concluded that “[v]iewpoint discri mination doomed” the two provisions. Id. at 2299.

In any event, even if a trademark were a government subsidy, this is not a situation in which First Amendment requirements are inapplicable. Elster’s mark is speech by a private party in a context in which controversial speech is part-and-parcel of the traditional trademark function, as the Supreme Court decisions in Tam and Brunetti attest. Under such circumstances, the effect of the restrictions imposed with the subsidy must be tested by the First Amendment. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 543, 547–48 (2001) (funding condition barring lawyers from challenging constitutionality of welfare laws violated the First Amendment); see also FCC v. League of Women Voters, 468 U.S. 364, 396–97 (1984) (funding condition preventing broadcasters receiving federal funds from editorializing held unconstitutional). We are also not convinced by the government’s argument that Lanham Act bars are comparable to speech restrictions in a limited public forum. To be sure, Justice Alito’s opinion in Tam, joined by three other Justices, suggested that the limited public forum doctrine, which permits some viewpoint-neutral “content- and speaker-based restrictions,” presented a “[p]otentially more analogous” framework than the subsidy theory. 137 S. Ct. at 1763 (Alito, J.). But this is not a case in which the government has restricted speech on its own property to certain groups or subjects, a fact distinguishing it from nearly all of the Supreme Court’s limited public forum cases. S

Dubose loses at CAFC

From Western Plastics v. Dubose we agree with the district court that DuBose did not set forth evidence to meet the high standard of establishing that the patent applicant intended to deceive the Patent Office, as required to sustain an inequitable conduct defense. Relevant to recusal

Circuit Judge Newman and Circuit Judge Stoll are recused, taking no position in this decision. Chief Judge Moore and Circuit Judge Chen replaced Circuit Judge Newman and Circuit Judge Stoll on the panel following the court’s initial December 17, 2021 judgment. DuBose raised a potential conflict of interest in its petition for rehearing. That potential conflict was identified to the court more than a month after argument and, in fact, after a judgment was entered against DuBose. Counsel had all of the necessary facts at the time of argument and should have brought the potential conflict to the court’s attention at that time. Delays under these circumstances are the “most egregious.” Pendergraft v. Network of Neighbors, Inc., 745 F. App’x 517, 520 (5th Cir. 2018). As other circuit courts have described, a litigant “should not be permitted to sandbag” the court while “hoping for a satisfactory resolution, but retaining a ground of attack on the judge’s ruling.” El Fenix de Puerto Rico v. The M/Y Johanny, 36 F.3d 136, 141 n.6 (1st Cir. 1994) (quoting James W. Moore & Jo D. Lucas, Moore’s Federal Practice ¶ 63.07 (2d ed. 1993)); see also, e.g., Burke v. Regalado, 935 F.3d 960, 1053 (10th Cir. 2019) (“Most circuits require that [a motion for recusal] be brought ‘at the earliest moment after knowledge of the facts demonstrating the basis for such disqualification.’ . . . This requirement guards against a party’s withholding ‘a recusal application as a fall-back position in the event of adverse rulings on pending matters.’”) (first quoting Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1410 (5th Cir. 1994); and then In re IBM Corp., 45 F.3d 641, 643 (2d Cir. 1995)). We expect parties and counsel who appear before this court to have the utmost candor including in issues of potential conflict.


Some background is helpful to put the relevant events in perspective. In response to the COVID-19 pandemic, this court issued administrative orders in 2020 that prohibited public access to the National Courts Building and suspended all in-person oral arguments. (...) When this court resumed allowing counsel in the courthouse for argument in September 2021, we kept in place the restrictions on public access to the National Courts Building, see Administrative Order 2021-10, and put in place strict protocols governing appearances at oral argument in order to protect the health and safety of the court and its staff, the bar, and the public. (...)

Under the in-person argument protocols in effect during the events here, “[o]nly arguing counsel and no more than one attendee whose presence is necessary to assist or supervise arguing counsel (e.g., a client, lawyer sitting second chair, or paralegal)” were “permitted access to the National Courts Building and the courtroom.” The Revised Protocols also required all persons entering the building to complete Form 33C declaring under penalty of perjury that the individual was “scheduled to appear in person for argument at the National Courts Building in Washington, D.C. either as (a) arguing counsel or (b) to assist or to supervise arguing counsel” and that the individual was either fully vaccinated for COVID-19 or received a negative test result for COVID-19 that was administered within 48 hours of the argument scheduled in the argued matter. To ensure compliance with the Revised Protocols, the court required that arguing counsel also complete Form 33A, certifying that “I understand and agree that, as an officer of the court, I am personally responsible for ensuring all individuals attending argument with me have also read and will comply with the Revised Protocols,” and that “I further understand and agree that it is my responsibility to ensure that all individuals attending argument with me remain in compliance with the Revised Protocols while in the National Courts Building.” In completing that form, arguing counsel also certified that he or she understood that “failure to abide by any of” the provisions certified in the form “may subject [him or her] to discipline.” (...) Federal Rule of Appellate Procedure 46(c) provides that “[a] court of appeals may discipline an attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with any court rule.” We have also adopted Federal Circuit Attorney Discipline Rules, which make clear that “[a]n act or omission by an attorney that violates the Federal Rules of Appellate Procedure, the Federal Circuit Rules, these rules, or orders or instructions of the court . . . may be the basis for discipline.” Fed. Cir. Att’y Disc. R. 2(d). Although the Revised Protocols are not incorporated by reference or otherwise in any rule of this court, they are instructions of this court and help define conduct becoming a member of this court’s bar. Accordingly, we are authorized to impose sanctions on an attorney whose actions or omissions violate the Revised Protocols. Turning to the disciplinary matters at hand, we conclude that the fact that the arguing partner was accompanied by the special counsel and the non-arguing partner clearly violated the Revised Protocols. The Revised Protocols were perfectly clear that “[o]nly arguing counsel and no more than one attendee whose presence is necessary to assist or supervise arguing counsel” were “permitted access to the National Courts Building and the courtroom.” The language of Form 33C, which Respondents readily understood was required when in the building, further reinforced these access restrictions. That form required a declaration under penalty of perjury that the individual was “scheduled to appear in person for argument at the National Courts Building in Washington, D.C. either as (a) arguing counsel or (b) to assist or to supervise arguing counsel.” This language, together with the language of the Revised Protocols just quoted, put all here on clear notice that the non-arguing partner and special counsel could not be in the building as spectators or additional attendees there to assist or supervise arguing counsel. If there was some ambiguity or reasonable basis for confusion, we would be inclined to resolve that in Respondents’ favor. See United States v. Brown, 72 F.3d 25, 29 (5th Cir. 1995); In re Ruffalo, 390 U.S. 544, 556 (1968) (White, J., concurring). However, there was no ambiguity in the protocols.2

Newark Star-Ledger notes New Jersey has the third most Covid deaths per capita in the United States

In an article on Saturday, 26 Feb. 2022, Brent Johnson stated that New Jersey has reported 29,897 confirmed Covid deaths in a population of 9.2 million, ranking New Jersey as the third "deadliest" Covid state in the nation, trailing only Mississippi and Arizona.

Tuesday, February 22, 2022

NYTimes publishes "CDC Is Not Publishing Larges Portions of the Data That It Collects on Virus" on 21 Feb 2022

In an interesting piece by Apoorva Mandavilli on February 21, 2022, the NY Times includes the text:

When the Delta variant caused an outbreak in Massachusetts last summer, the fact that three-quarters of those infected were vaccinated led people to mistakenly conclude that the vaccines were powerless against the virus-validating the CDCs cpmcerns.

But that could have been avoided if the agency had educated the public from the start that as more people are vaccinated the percentage of vaccinated people who are infected or hospitalized would rise, public experts say.

Paragraphs 1 and 2 (above) speak to differenc issues, and paragraph 1 does not lead to the inference of paragraph 2.

Paragraph 1 sets up a strawman of "powerless" vaccines. For some people, especially those with weakened immune systems, vaccination would improve their anticipated outcome. The idea that vaccines would be "powerless" or worthless does not flow from an observation of vaccinated, infected people (unless perhaps 100% of vaccinated people became infected).

HOWEVER, one does not see that the "explanation" of paragraph 2 would have "avoided" any incorrect inference from paragraph 1.

If vaccination were in any way effective, one could infer that the percentage (as opposed to absolute numbers) of vaccinated people who became infected would not have risen. In fact, 75% of those newly infected were vaccinated.

In the end, any idea that vaccination provided absolute immunity was "walked back" to a concept that vaccinated people had less severe outcomes because of the vaccination, and vaccination was not a bulletproof vest against covid.

The NYTimes piece, including the questionable statements:

Monday, February 21, 2022

Newark Star Ledger does Covid piece "State's response to omicron raises concerns about a future surge" on 21 Feb 2022

The Newark Star-Ledger did a rather extended Covid piece on February 21, 2022.

The good news is that it was extremely lengthy.
The bad news was that the length comprised a rather disjointed collection of anecdotes.

Richard Buzza was quoted:

These were all predictable things and we should have and could have done better and done more to prepare for this.

There was a discussion of "how difficult" it was to get Covid tests performed in December 2021 and January 2022, with some color pictures of people waiting (in the cold) in long lines. There was also discussion of the schools issue.

Saturday, February 19, 2022

As Covid death rate goes down, incidence of Omicron subvariant BA.2 goes up

As the national Covid death rate dropped to 4.2 per 100K per week on February 18, 2022, there has been a flurry of discussion about the BA.2 subvariant of Omicron:

BA.2 may cause more severe symptoms compared to omicron including text

“It might be, from a human’s perspective, a worse virus than BA.1 and might be able to transmit better and cause worse disease,” said Dr. Daniel Rhoads, section head of microbiology at the Cleveland Clinic in Ohio, according to CNN.

As BA.2 subvariant of Omicron rises, lab studies point to signs of severity including

New lab experiments from Japan show that BA.2 may have features that make it as capable of causing serious illness as older variants of Covid-19, including Delta. And like Omicron, it appears to largely escape the immunity created by vaccines. A booster shot restores protection, making illness after infection about 74% less likely. BA.2 is also resistant to some treatments, including sotrovimab, the monoclonal antibody that's currently being used against Omicron. The findings were posted Wednesday [16 Feb 2022] as a preprint study on the bioRxiv server, before peer review. Normally, before a study is published in medical journal, it is scrutinized by independent experts. Preprints allow research to be shared more quickly, but they are posted before that additional layer of review.


How Worried Should We Be About the BA.2 Omicron Subvariant?

Below is a conversation with Dr. Dan Barouch, a Harvard Medical School professor

In our preprint, which is under review at a major journal, we looked at Pfizer-vaccinated individuals as well as a cohort of Omicron-infected individuals. Similar to with BA.1, there was very little neutralization prior to a third boost of Pfizer. But after a third boost, neutralizing antibody titers [a test that measures the level of antibodies in a blood sample] came up strongly to both BA.1 and BA.2, still at substantially lower levels than the vaccine-matched strain. The neutralization titers between BA.1 and BA.2 were relatively similar. In our hands, there’s a slight trend toward lowering antibody titers against BA.2, about 1.3 to 1.4 fold. That’s a relatively minor difference; overall we found that antibody responses to BA.2 were roughly comparable, trending slightly lower, but roughly comparable to BA.1. That was true in vaccinated individuals and in people who were infected with Omicron BA.1. Those two data sets suggest that Omicron BA.2 does evade vaccines, but to a similar extent, not a greater extent as Omicron BA.1. Also it shows that people who are vaccinated and then infected with BA.1 have high neutralizing antibody titers against BA.2, suggesting there would be a substantial degree of cross-reactive natural immunity as well.

I can’t predict whether it will be a new surge or not, but it’s probably going to be driven more by increased transmissibility. It has similar, not fundamentally greater, ability to evade vaccines. The ability of BA.2 to become more dominant than BA.1 in certain populations appears to be more due to its increased transmissibility rather than some sort of brand new immune escape from vaccines.

The front page of the Feb.19, 2022 issue of the Courier-News carried some quotes from Dr. Reynold Panettieri of Rutgers.

When one (variant) does become more likely to induce infection, we're in a position to rapidly modify our vaccines and establish boosters for it (...) The fact is that so many people got infected by Omicron, and there could be carryover immunity that the likelihood of developing a completely resistant virus, I think, is going to be vanishingly low. But only time's going to tell."

As a comment to the above, one has the text

And like Omicron, it appears to largely escape the immunity created by vaccines.

As to boosters, the issue is not so much having a third (or fourth or whatever) booster, but rather the level of antibodies one has at the time of exposure to an entity with large viral shedding. And, one suspects the 65+ cohort will drop its antibody level faster than the 65- cohort. So, "establishing a booster" is only part of the story. The enhancement has a "date of expiration" on it. And none of the antibody talk deals with the subject of T cell immunity.

link for CDC data:

7 DAY DEATH RATE PER 100,000 4.2

TOTAL DEATHS 928,723 +2,226 New Deaths

Data as of 1:50pm (Eastern) on 18 Feb 2022

from the Courier News on 19 Feb. 2022

CAFC addresses amendments in IPRs in ZAXCOM, INC. v. LECTROSONICS, INC.; back and forth with "industry praise"; Emmy Award as evidence

The outcome was affirmance of initial rejection and acceptability ("not unpatentable") of amended claims:

Lectrosonics, Inc. petitioned the Patent and Trademark Office to institute an inter partes review, under 35 U.S.C. §§ 311–19, of all claims of U.S. Patent No. 9,336,307, which is owned by Zaxcom, Inc. After institution of the requested review, Zaxcom filed a motion to replace the original claims 1–14 with fourteen corresponding claims—substitute claims 15–28—if the Patent Trial and Appeal Board held the original claims unpatentable. The Board issued a final written decision holding all original claims unpatentable, and it therefore addressed Zaxcom’s proposed substitute claims, which it allowed to be added to the patent because Lectrosonics had not proved them unpatentable. Lectrosonics, Inc. v. Zaxcom, Inc., No. IPR2018-00972, 2019 WL 5849856, at *29 (P.T.A.B. Nov. 7, 2019). Zaxcom appeals the Board’s rejection of the original claims, and Lectrosonics appeals the Board’s approval of the substitute claims. We affirm both determinations.

Industry praise did not work here to overcome obviousness:

Zaxcom argues, as to claims 1–11, that no obviousness conclusion should be drawn because its evidence of industry praise and long-felt need should have outweighed the above-recited determinations based on the prior art. But given the adopted claim construction, the Board determined that Zaxcom’s evidence of such objective indicia lacked the nexus to the claimed invention required to alter a conclusion of obviousness that would be justified based on the prior-art analysis. Id. at *10–11. Zaxcom specifically focused on a Technical Achievement Academy Award, J.A. 4272, an Engineering Emmy Award, J.A. 4304, and declarations from sound mixers, J.A. 4273–78; J.A. 4281– 84, praising Zaxcom’s wireless recording systems. The Board reasonably found that the praise was primarily directed to the systems’ critical feature of dropout repair, while the claims of the ’307 patent, under the BRI construction properly adopted, are broadly directed to wirelessly transmitting audio data and combining local and remote audio data from a plurality of devices—a technique already known in the prior art. The evidence, in short, says nothing to suggest non-obviousness of one of the two types of systems and methods within the claims’ coverage. We therefore agree with the Board that, based on that finding, the objective indicia evidence is insufficient to overcome the prior-art evidence of obviousness. See Intercontinental Great Brands LLC v. Kellogg North America Co., 869 F.3d 1336, 1343–44, 1347 (Fed. Cir. 2017) (overall obviousness determination is a legal one based on weighing of prior-art and objective-indicia facts). Thus, the Board properly held claims 1–11 unpatentable for obviousness.

BUT, as to the counterclaim, industry praise was enough [!]

Having found the asserted prior-art basis for an obviousness conclusion relatively weak in light of the narrowed scope of the claims, the Board determined that the objective indicia evidence was strong in light of that narrowed scope—strong enough to support an overall conclusion of nonobviousness. Id. at *23–29. We affirm the Board’s findings and ultimate conclusion. In particular, the Board determined that Zaxcom’s evidence of industry praise and long-felt need was entitled to a presumption of nexus, noting that these indicia were commensurate in scope with the claims as now narrowed, id. at *25, a determination that comports with the legal standards for a presumption, see, e.g., Fox Factory, Inc. v. SRAM, LLC, 944 F.3d 1366, 1373 (Fed. Cir. 2019); Polaris Indus., Inc. v. Arctic Cat, Inc., 882 F.3d 1056, 1072 (Fed. Cir. 2018). The Board also reasonably found that the evidence positively showed a nexus, Lectrosonics, 2019 WL 5849856, at *25, as the substitute claims are undisputedly directed to dropout repair in systems with wearable recording devices, and this feature was discussed in at least the Emmy Award, J.A. 4304, and substantial portions of the declarations, see, e.g., J.A. 4276–77 ¶ 6, J.A. 4283–84 ¶ 6. We see no basis for reversing the Board’s findings or the conclusion that these findings outweigh the weak prior-art case and therefore warrant rejection of the obviousness challenge to the substitute claims.

Tuesday, February 15, 2022

The CAFC does 101 in Travel Sentry

The outcome of this 101 case:

These two patent cases involve David Tropp’s U.S. Patent Nos. 7,021,537 and 7,036,728. The district court granted summary judgment against Mr. Tropp on the ground that all the at-issue claims of those patents—of which the parties agree claim 1 of the ’537 patent is representative—are invalid because they claim ineligible subject matter under 35 U.S.C. § 101. Travel Sentry, Inc. v. Tropp, 527 F. Supp. 3d 256, 259 (E.D.N.Y. 2021). Mr. Tropp appeals. We affirm.

The district court correctly held representative claim 1 ineligible. The claim recites a method of making available to consumers a dual-access lock having a combination-lock portion and a master-key-lock portion, marking it so that luggage screeners know a master key will open it, agreeing with a screening entity that its luggage screeners will use the key to open a marked bag if opening is necessary, and marketing the luggage to consumers as subject to this screening process. The district court summarized: The claim “essentially describe[s] the basic steps of using and marketing a dual-access lock for luggage inspection, a longstanding fundamental economic practice and method of organizing human activity.” Id. at 265

The court properly held the claim to be directed to an abstract idea, noting that our precedents consistently recognize the abstract character of such practices and methods. See, e.g., Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1313 (Fed. Cir. 2016). The court also properly held that Mr. Tropp identified no “inventive concept” in the claim’s details—in particular, in the claim’s reference to a “special” lock. Travel Sentry, 527 F. Supp. 3d at 267–69. No “technical specifications or concrete improvements,” or identification of what physical changes are made to the lock mechanism to make the lock “special,” is found in the claim (or, for that matter, the specification), id. at 266, an absence that “only highlight[s] the generic nature” of the “special lock” and other details to which Mr. Tropp pointed, id. at 268. And there is no genuine dispute about the fact that dual-access (combination/key) locks were familiar and used in luggage screening, with bags identified by a tag to enable such use. Id. at 268–69. In these circumstances, the claim fails to pass muster under both steps of the eligibility inquiry. See Simio, LLC v. FlexSim Software Prods., Inc., 983 F.3d 1353, 1364 (Fed. Cir. 2020) (observing that where the focus of the claimed advance is abstract, an abstract-idea improvement cannot transform the ineligible claim into an eligible one).

In this court, Mr. Tropp argues that claim 1 is directed to “the creation of novel physical locks with a uniform master key (that works with a variety of locks that have different locking mechanisms).” Tropp Opening Br. 18. This contention raises at least two substantial questions bearing on eligibility under § 101: Does the claim, properly construed, require a dual-access lock in which the key for the master-key lock portion is the same for different combination-lock mechanisms? And if so, could the claim pass muster under § 101 in the absence of anything in the specification, or even in the summary judgment record, that provides details regarding the physical makeup, mechanism, or operation of such a lock indicating a concrete technical advance over earlier dual-access locks? See, e.g., Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1258–59 (Fed. Cir. 2016) (holding invalid under § 101 a claim that “is drawn to the [abstract] idea itself” instead of “how to implement” it and noting that “[e]ven if all the details contained in the specification were imported into the [patent] claims, the result would still not be a concrete implementation of the abstract idea”); Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1241 (Fed. Cir. 2016). But we do not address those questions, because Mr. Tropp has not preserved this argument for eligibility.

Of points not argued:

In his opposition to the § 101 summary judgment motion, Mr. Tropp referred to the “special lock having a combination lock portion and a master key lock portion” and the “identification structure” as the claimed improved “physical components.” J.A. 1659 (internal quotation marks and citation omitted). Nothing in that opposition argued that the inventive concept in the claims was, or included, the creation of a new dual-access lock with a master key capable of opening dual-access locks whose combination-lock mechanisms differed from one another. We need not evaluate Mr. Tropp’s opposition to a different summary judgment motion (concerning prior art invalidity) or the statement of disputed facts under Local Civil Rule 56.1 to determine whether they contained meaningful assertions about physical changes in the locks. In his opposition to the § 101 motion, Mr. Tropp did not argue for the § 101 significance of the lock-mechanism improvement he now asserts to be required, an argument materially different from what he did argue. We decline to upset the district court’s judgment based on an argument like this made for the first time on appeal. See, e.g., Icon Health & Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1040 (Fed. Cir. 2017).

National Covid death rate drops to 4.6 per 100K per week on 14 Feb 2022

The CDC reported:

7 DAY DEATH RATE PER 100,000 4.6

TOTAL DEATHS 916,977 +406 New Deaths

The "bad" states:

Mississippi 10.4 Virginia 8.7 West Virginia 8.2 Arkansas 7.8 Arizona 7.4 Colorado 6.9 Delaware 6.9 Ohio 6.7 Georgia 6.4 Indiana 6.3 Missouri 6.3 Nevada 6.2 Massachusetts 6 Michigan 5.9 New Mexico 5.9 Oklahoma 5.9 Louisiana 5.8 Iowa 5.5 Texas 5.4 Guam 5.3 Kentucky 5.3 New York City* 5.3 South Carolina 5.3 Pennsylvania 5.2 South Dakota 4.9 Wisconsin 4.8 New Jersey 4.6 Washington 4.6 Illinois 4.5

CDC | Data as of: February 14, 2022 1:53 PM ET. Posted: February 14, 2022 3:41 PM ET

Sunday, February 13, 2022

New Jersey Governor Murphy paints a rosy Covid picture on 13 February 2022 "Face the Nation"

The national 7 day average Covid death rate was 4.7 on February 13

7 DAY DEATH RATE PER 100,000 4.7

TOTAL DEATHS 915,425 +2,668 New Deaths

The "bad" states are

Mississippi 10.4 Virginia 8.7 West Virginia 8.2 Arizona 7.5 Arkansas 7.1 Colorado 6.9 Ohio 6.7 South Carolina 6.7 Missouri 6.5 Georgia 6.4 Indiana 6.3 Nevada 6.2 Pennsylvania 6.1 Massachusetts 6 Guam 5.9 Michigan 5.9 New Mexico 5.9 Oklahoma 5.9 Louisiana 5.8 New York City* 5.8 Iowa 5.5 Kentucky 5.3 New Jersey 5.1 South Dakota 4.9 Tennessee 4.9 Texas 4.9 Wisconsin 4.8

CDC | Data as of: February 13, 2022 12:38 PM ET. Posted: February 13, 2022 2:23 PM ET


One recalls the NATIONAL Covid death rate was 1.7 on 30 November 2021, and the worst state was Montana at 6.6.

At on 13 Feb. 2022

Governor Murphy was on "Face the Nation," conveying a rosy image of Covid under control in New Jersey. Murphy made no reference to the Covid death rate in New Jersey in the "Face the Nation" piece.

And on page 1 of the Star-Ledger on 13 Feb 2022

Saturday, February 12, 2022

Sometimes the perfect line is not used later in time

Back in 1966, the character Tuco (played by Eli Wallach) was cornered in a bathtub by a gunman, but shot the bad guy with a gun held in the bathtub. Tuco's words:

“If you're going to shoot, shoot. Don't talk.”

Flash forward to the 2007 CSI: Miami episode titled Guerillas in the Mist. The Tuco line at the end would have been perfect, but Horatio (Caruso) did not say it.

Plus ça change, plus c'est la même chose ???

From a blog

The New York Times described an atmosphere of tense apprehension on Capitol Hill with fear that “the counting of the electoral votes would never be peacefully accomplished.” House leadership responded to “rumors of plots to take the city, blow up the public buildings, and prevent the inauguration” with a large police detail and limited access to the House Chamber. Local authorities increased security throughout the city to ensure that Members of Congress could perform their constitutional duty. The Baltimore Sun described the House as “filled to overflowing with spectators, and an eager crowd . . . poured along the passages and corridors leading to the galleries.” The “immense throng strained its ears to catch . . . every word” (...) Those feelings ranged between “half jolly, half angry, some sneering, some smiling, some swearing.”

No not 2021. The year was 1861.

Tomorrow, February 13, is the anniversary of that electoral count.



On February 12 to February 16, 1862, one had the battle of Fort Donaldson in the Civil War.

National Covid death rate on Feb. 11 2.4 times that of Dec. 6

Back on December 6, 2021, the CDC reported a Covid death rate

7 DAY DEATH RATE PER 100,000 2.4

AND a case rate

7 DAY CASE RATE PER 100,000 218.9

On February 11, 2021, more than two months into the omicron wave, the CDC reported

a death rate of 4.9

and a case rate

7 DAY CASE RATE PER 100,000 401.5

The "bad" states for high case rate

Alaska 1,230.6 Kentucky 944.7 Montana 917.4 West Virginia 870.8 Idaho 728.1 North Dakota 715.3 Mississippi 671.4 Arizona 613.9 Tennessee 610.2 New Mexico 562.2 South Carolina 556.7 Minnesota 551.6 Oregon 534.3 Wyoming 532.2 New Hampshire 527.9 California 525.8 Florida 479.9 North Carolina 479.5 Washington 467.5 Kansas 458.3 Hawaii 440.9 Maine 435.7 Utah 425.8 Louisiana 417 Missouri 397.3

In spite of the continued high death rate, one finds stories like the following from the Feb. 12 Newark Star Ledger

Merely for illustrative purposes the CASE rate of Hawaii

Friday, February 11, 2022

Covid death rate at 4.9 on February 11, 2022

The CDC posted:

7 DAY DEATH RATE PER 100,000 4.9

TOTAL DEATHS 912,757 +2,383 New Deaths

CDC | Data as of: February 11, 2022 3:28 PM ET. Posted: February 11, 2022 5:05 PM ET


The "bad" states:

Mississippi 10.3 Virginia 9.1 Ohio 9 Kansas 8.3 Arizona 8.1 South Carolina 7.6 West Virginia 7.6 Nevada 7.4 Arkansas 6.8 Colorado 6.8 Missouri 6.6 Pennsylvania 6.5 Louisiana 6.4 Georgia 6.3 Michigan 6.2 Massachusetts 6.1 Guam 5.9 Oklahoma 5.9 New York City* 5.8 Iowa 5.5 New Jersey 5.5 Indiana 5.4 New Mexico 5.4 South Dakota 5.3 Illinois 5.1 Kentucky 5.1 Wisconsin 5.1 Tennessee 5

As of February 10, 2022

CDC | Data as of: February 10, 2022 1:04 PM ET. Posted: February 10, 2022 2:53 PM ET National 7 DAY DEATH RATE PER 100,000 4.9 TOTAL DEATHS 910,373 +2,869 New Deaths link: Worst states Virginia 9.9 Mississippi 9.6 Ohio 9 Kansas 8.3 South Carolina 8 Arkansas 7.9 Nevada 7.1 West Virginia 7 Pennsylvania 6.8 Arizona 6.7 Georgia 6.5 Michigan 6.5 Missouri 6.4 Colorado 6.3 Louisiana 6.1 Massachusetts 6.1 New York City* 6.1 New Jersey 5.9 Oklahoma 5.9 Iowa 5.5 Guam 5.3 Tennessee 5.3 New Mexico 5.2 Illinois 5 Kentucky 4.9 Wisconsin 4.8

US Today on Feb 10 was paying attention to the high death rate in the US:

Wednesday, February 09, 2022

Covid death rate at 4.9 as of 9 Feb 2022

The CDC reported a national Covid death rate of 4.9 per 100K per wook as of 9 Feb 2022

7 DAY DEATH RATE PER 100,000 4.9

TOTAL DEATHS 906,603 +3,489 New Deaths

The states of higher rate

Mississippi 11.2 Virginia 10.5 South Carolina 9.1 Ohio 9 Arkansas 7.6 Pennsylvania 7.4 Nevada 7.3 Missouri 7.2 West Virginia 6.8 Arizona 6.6 New York City* 6.6 Kansas 6.5 Michigan 6.5 Massachusetts 6.4 Indiana 6.3 New Jersey 6.1 Louisiana 5.9 Oklahoma 5.9 Georgia 5.8 Iowa 5.5 Tennessee 5.5 Delaware 5 Nebraska 5

CDC | Data as of: February 9, 2022 2:03 PM ET. Posted: February 9, 2022 4:00 PM ET

Saturday, February 05, 2022

As of 4 February 2022, CDC reports Covid death rate of 5 per 100K per week; 894,810 total deaths

The death rate

7 DAY DEATH RATE PER 100,000 5

The states of higher rate:

Mississippi 10.9 South Carolina 10.9 Ohio 9 Tennessee 7.9 Missouri 7.8 Indiana 7.4 Pennsylvania 7.4 West Virginia 7.4 New York City* 7.1 Arizona 6.9 Massachusetts 6.9 Nevada 6.8 Virginia 6.8 Guam 6.5 Kansas 6.5 Delaware 6.3 New Jersey 6.3 New Mexico 6 Louisiana 5.8 Idaho 5.7 Wisconsin 5.7 Michigan 5.5 South Dakota 5.5 Georgia 5.4 Illinois 5.3 Maine 5 Rhode Island 5 Connecticut 4.9

Data as of: February 4, 2022 3:12 PM ET. Posted: February 4, 2022 4:51 PM ET

Note also from the NYT on 5 Feb 2022

Friday, February 04, 2022

Covid, the trap of the unvaccinated OR the problem of the poorly immune (mainly people over 65)???

Axios notes:

Alaska has the country's biggest COVID outbreak, with 310 cases per 100,000 people. Most states are still well above 100 cases per 100,000 people. So there's still a long way to go. But that improvement is happening quickly. Yes, but: Deaths are still on the rise. The virus is killing roughly 2,600 Americans per day, on average. That's a function of two things: Deaths are always the last number to move, in any wave, and so it makes sense for Omicron deaths to be accumulating now. But those deaths were almost entirely preventable. The overwhelming majority of people dying from COVID were unvaccinated. The risk of dying from COVID is 60 times higher for unvaccinated people than it is for people who are vaccinated and boosted, according to the CDC's most recent data.


The cite to "overwhelming"

is to data through EARLY December 2021, long BEFORE the dramatic increase in Covid death rate:

National Covid death rate climbs to 5.1 per 100K per week on February 3, 2022

CDC | Data as of: February 3, 2022 9:46 PM ET. Posted: February 3, 2022 11:30 PM ET Download Data 7 DAY DEATH RATE PER 100,000 5.1 Mississippi 10.9 Ohio 9 South Carolina 8.7 Pennsylvania 8.6 Indiana 8.1 Missouri 7.9 Tennessee 7.9 West Virginia 7.8 New York City* 7.6 Massachusetts 7.3 Guam 7.1 Nevada 6.9 Illinois 6.6 Arizona 6.5 Kansas 6.5 New Jersey 6.4 New Mexico 6.3 Delaware 6.1 Wisconsin 6.1 Louisiana 5.6 Idaho 5.4 Rhode Island 5.4 Virginia 5.4 Georgia 5.3 Michigan 5.3 Connecticut 5.1

Thursday, February 03, 2022

CAFC addresses SUCKS in Vox Populi case

Vox is the domain registry operator for the .SUCKS generic top-level domain (“gTLD”) for Internet websites. A registry operator “maintains the master database of all domain names registered in each top-level domain, and also generates the ‘zone file,’ which allows computers to route Internet traffic to and from top-level domains anywhere in the world.” Trademark Manual of Examining Procedure (TMEP) § 1215.02(d) (8th ed. July 2021); see generally ICANN Acronyms and Terms, Internet Corporation for Assigned Names and Numbers, (last visited Dec. 20, 2021). Vox filed two trademark applications relevant to this case. U.S. Trademark Application Serial No. 86/700,941 (“the ’941 application”) sought registration on the Principal Register of the standard character mark .SUCKS in Class 42 (computer and scientific services) for “[d]omain registry operator services related to the gTLD in the mark” and in Class 45 (personal and legal services) for “[d]omain name registration services featuring the gTLD in the mark” as well as “registration of domain names for identification of users on a global computer network featuring the gTLD in the mark.”1 J.A. 1–2.
Substantial evidence supports the Board’s finding that “consumers will view [the standard character mark .SUCKS] as only a non-source identifying part of a domain name, rather than as a mark.” J.A. 21. Specimens from Vox’s website use .SUCKS to refer to a product (domain names ending in .SUCKS), J.A. 38–43, for example, advertising the “exceptional value” in “Registry Premium names” like “ and,” J.A. 42. Online articles discussing Vox and domain names similarly use .SUCKS to refer to a product rather than as an identifiable provider of services. J.A. 82–94, 96–101. Third-party domain name registrars (a subset of Vox’s customers) also use .SUCKS to refer to a product being sold to the public rather than as an identifier for Vox’s services. J.A. 64–81. Vox relies on a declaration by its COO stating that Vox “has spent substantial sums in the advertising and promotion of its services under the .SUCKS brand (irrespective of design format),” J.A. 134, and referencing sample advertising and marketing materials using the stylized form of .SUCKS in the context of trade shows, J.A. 135–38. The declaration states that “[a]s evidence of its successful branding, [Vox] has experienced double-digit growth in domain registrations year-over-year since the domain debuted in 2015.” J.A. 135. Advertising and sales volumes, while relevant, are not by themselves dispositive of how consumers perceive a mark. See Am. Footwear Corp. v. Gen. Footwear Co. Ltd., 609 F.2d 655, 663 (2d Cir. 1979); In re Kwik Lok Corp., 217 U.S.P.Q. 1245, 1248 (T.T.A.B. 1983).

The CAFC addresses preliminary injunctions in Blephex case

In February 2019, Myco Industries, Inc. (“Myco”) began marketing a product it called the AB Max at a trade show in New Orleans. The AB Max is a device for treating blepharitis.1 A month later, BlephEx, LLC (“BlephEx”) filed an application that would become United States Patent Number 10,449,087 (“the ’087 patent”). On October 22, 2019, the United States Patent and Trademark Office issued the ’087 patent, entitled “Instrument for Treating an Ocular Disorder.” The same day, BlephEx sued Myco and its chairman, John R. Choate, in the Eastern District of Michigan, alleging that the AB Max infringed claim 16 of the ’087 patent.2 Soon thereafter, the district court granted a preliminary injunction enjoining Myco and those acting on its behalf from, inter alia, selling, distributing, or offering to sell or distribute the AB Max product. See BlephEx, LLC v. Myco Indus., Inc., No. 2:19-CV-13089, 2020 WL 5951504 (E.D. Mich. Oct. 8, 2020) (“Preliminary Injunction Decision”); BlephEx, LLC v. Myco Indus., Inc., No. 2:19-CV13089, 2020 WL 7134932 (E.D. Mich. Nov. 25, 2020) (“Reconsideration Decision”). Myco appealed.

Because the district court did not abuse its discretion in granting the preliminary injunction, clearly err in its underlying factual findings, or abuse its discretion in setting the scope of the preliminary injunction, we affirm.

A party may obtain a preliminary injunction by showing that (1) it is “likely to succeed on the merits,” (2) it is “likely to suffer irreparable harm in the absence of preliminary relief,” (3) the “balance of equities tips in [its] favor,” and (4) “an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The burden is always on the movant to show that it is likely to succeed on the merits. And in the context of a patent infringement suit, “[a] patent holder seeking a preliminary injunction bears the burden of establishing a likelihood of success on the merits with respect to the patent’s validity.” Entegris, Inc. v. Pall Corp., 490 F.3d 1340, 1351 (Fed. Cir. 2007) (citing Helifix Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339, 1351 (Fed. Cir. 2000)). Absent an invalidity defense, “the very existence of the patent with its concomitant presumption of validity satisfies the patentee’s burden of showing a likelihood of success on the validity issue.” Titan Tire Corp. v. Case New Holland, Inc., 566 F.3d 1372, 1377 (Fed. Cir. 2009) (citations omitted). But if the accused infringer presents a substantial question of validity, “i.e., asserts an invalidity defense that the patentee cannot prove ‘lacks substantial merit,’ the preliminary injunction should not issue.” Entegris, 490 F.3d at 1351 (quoting Genentech, Inc. v. Novo Nordisk, 108 F.3d 1361, 1364 (Fed. Cir. 1997)).

The CAFC addresses settlement agreements in Plasmacam case

PlasmaCAM, Inc. (“Plasmacam”) sued CNCElectronics, LLC, Fourhills Designs, LLC, and Thomas and Martha Caudle (collectively “CNC”) in the Eastern District of Texas for infringing U.S. Patent No. 7,071,441 (“the ’441 patent”) for which Plasmacam has an exclusive license. In December 2019, the parties notified the district court that they had settled the case. However, when the parties met to draft a formal agreement, it became evident that they interpreted the settlement differently, and further negotiations resulted. The parties eventually advised the district court that they had reached a complete agreement. The district court granted the motion to enforce Plasmacam’s version of that agreement and ordered CNC to execute it. CNC appeals. We hold that this court has jurisdiction over CNC’s appeal. We also reverse the district court’s judgment ordering CNC to execute Plasmacam’s version of the settlement agreement and conclude that CNC’s version of the agreement accurately reflects the parties’ understanding. We remand for further proceedings not inconsistent with this opinion.

National Covid death rate climbs to 5 per 100K per week on February 2, 2022

The CDC reported:

7 DAY DEATH RATE PER 100,000 5

The locations with highest rate

Arizona 9.9 Ohio 9 Connecticut 8.5 Pennsylvania 8.5 Indiana 8.3 Guam 7.7 New York City* 7.7 Tennessee 7.6 New Mexico 7.4 Mississippi 7.3 Illinois 7.2 Massachusetts 7.2 Missouri 7.1 South Carolina 7.1 West Virginia 7.1 Nevada 7 Kansas 6.9 New Jersey 6.8 Wisconsin 5.9 Louisiana 5.8 South Dakota 5.8 Delaware 5.7 Rhode Island 5.6 Georgia 5.3

AS of

CDC | Data as of: February 2, 2022 1:51 PM ET. Posted: February 2, 2022 3:27 PM ET