Tuesday, November 30, 2004

End of the line for URochester COX-2 patent

from the AP:

-->The University of Rochester's costly legal battle to reap billions of dollars in royalties from a new class of "super aspirin" appeared to be over November 29, 2004, after the U.S. Supreme Court refused to hear its claims. The high court denied the school's request for a review of lower court rulings that dismissed its patent infringement claims against the makers of lucrative painkillers known as cox-2 inhibitors, which include Pfizer Inc.'s Celebrex and Merck & Co.'s Vioxx.<--

[The use of the term "super aspirin" is a bit misdescriptive, because COX-2 drugs offer no more pain relief than do conventional NSAIDs.]

I had written in the May 2003 issue of Intellectual Property Today:

-->In University of Rochester v. G. D. Searle, et al., 2003 U.S. Dist. LEXIS 3030, the Federal Circuit will have the opportunity to tackle so-called "reach-through" claims, claims which attempt to reach-through from one discovery to obtain patent protection on a different discovery not yet made. In the area of non-steroidal anti-inflammatory pain relievers (for example, aspirin, RELAFEN), researchers at the University of Rochester had a theory that two enzymes were implicated in inflammatory pain, and that inhibition of one of them (COX-2) but not the other (COX-1) would be beneficial in treating humans. They identified the portion of the genome coding for COX-1 and COX-2, and were able to make these two enzymes. However, they did not make, or suggest how to make, a drug which was capable of selectively inhibiting the COX-2 enzyme. The University of Rochester obtained a patent claim for a method of treating humans with a drug capable of selectively inhibiting the COX-2 enzyme, and they asserted the patent the day it issued. However, in the litigation, this claim was invalidated because of the failure of the patent to describe such a drug or a way to make such a drug. The defendants in that litigation had made a drug capable of selectively inhibiting the COX-2 enzyme, and were selling it to the public (CELEBREX). One suspects that the decision will be affirmed by the Federal Circuit. [IT WAS.] From a patent law standpoint, 35 U.S.C. section 112 requires that the patent applicant provide a written description of the invention to show what it is that the inventor possesses and that the applicant show that the invention actually works. Patent law expresses the requirements of a deal between the inventor and the public. The public, in return for the grant of a right to exclude others for a limited period, is entitled to receive an invention which can be put into practice without undue experimentation. In the case of the University of Rochester patent, the public did not receive knowledge of how to obtain a drug to selectively inhibit the COX-2 enzyme, and thus could not use the invention as claimed. The public cannot live on promises of what could have been if some third party did significant work. Of Chairman Greenspan's issues, one notes that a determination that reach-through claims were valid would discourage the innovative effort of those who would actually bring a tangible, working product to the public. Economic growth, in the form of patients buying newly developed, viable drugs to foster better health, would be thwarted. <--

[In passing, with the issues with Merck's VIOXX, there is a whole new discussion about COX-2 inhibitors in regard to stroke and heart attack.]

Brazil to go to compulsory licensing of AIDS patents

Although Brazil will pay royalties to the patent holders of three to five foreign drugs used in an anti-AIDS cocktail central to its innovative program to fight AIDS, Brazil will violate the patents because Brazil will do so without permission from the drug manufacturers. "After technical analysis of the sustainability of the universal access to medication in this country, we determined that we have to move to a situation of self-sufficiency through compulsory licensing," said Pedro Chequer, head of the government's AIDS program.

Merely as an historical reference, recall the program of the United States for compulsory licensing of aircraft patents in the time period 1914-1918. Recall also the handling of radio patents in this time period. Recall also the history of CIPRO during the anthrax scare.

**UPDATE. August 25, 2005** from Chicago Tribune

A key question is whether the two countries [Brazil and Argentina] plan to break international patents, many of which are held by U.S. companies, and use the venture to produce their own versions of the most effective and expensive drugs to fight AIDS.

Gines Gonzalez Garcia, Argentina's minister of health and environment, said the accord was aimed at "guaranteeing our inhabitants access to these medicines."

"Without prejudice to our understanding of the international rules of the game," Gonzalez Garcia told the Buenos Aires daily Clarin, "what comes first are the interests of the citizens of each country."

His Brazilian counterpart, the newly appointed Jose Saraiva Felipe, was more assertive. He is under pressure from health experts and lawmakers to declare AIDS a medical emergency, which some Brazilian officials argue would allow the government to manufacture patented anti-HIV drugs without violating international trade agreements.

"We are going to conduct ourselves in accordance with the public interest," said Saraiva Felipe, who took over as health minister last month.

"There is no predisposition to gratuitously violate intellectual property, but if Brazil goes so far as to develop medicines, especially anti-retrovirals, we could come to adopt this attitude."

Anti-retroviral drugs, which kill or inhibit the growth of HIV, are key components in the so-called AIDS cocktail.

Brazil battles drugmaker

Brazil is locked in a battle with Abbott Laboratories over one such drug, Kaletra. Brazil, which provides free AIDS care to its citizens, wants the North Chicago company to further lower Kaletra's price. Abbott and other drugmakers say discounts to Brazil have gone far enough.

The two parties appeared to have reached a deal last month that would have dropped the Brazilian government's cost of Kaletra from its current $1.17 a pill while affirming Abbott's patent rights.

But after Saraiva Felipe took office, he said no agreement had been signed yet. He pressed Abbott for further discounts, saying Brazilian companies could produce a generic version of Kaletra for as little as 41 cents a pill.

Kaletra, also known as Lopinavir/Ritonavir, is a protease inhibitor. That means the drug blocks an enzyme, protease, that HIV needs to make more copies of itself. The drug is one of Abbott's biggest moneymakers, expected to produce $1 billion in sales this year.

Abbott submitted a revised pricing proposal to Brazil last week, the company said. In a statement, the company pledged "to negotiate in good faith . . . to finalize an agreement that Brazil will honor."

Like other major drug companies, Abbott charges different prices in different countries. It says Brazil, which boasts the world's ninth-largest economy, can afford the "fair price" Abbott is demanding. And it argues that without strong profits from Kaletra and other successful drugs, Abbott would be unable to fund the research that produces such breakthroughs.

But Brazilian officials say Kaletra itself eats up a third of the country's AIDS spending. Anti-HIV medicines account for a quarter of the Health Ministry's budget, Saraiva Felipe said.

"We say the price of drugs has to be based not on how rich the country is but how rich the person is," said Michael Weinstein, president of AIDS Healthcare Foundation, a Los Angeles medical and advocacy group.

"Brazil is one of the world leaders in AIDS prevention as well as in providing access to treatment and drugs," Weinstein said, praising Brazil's aggressive stance with drugmakers as well as its willingness to cooperate with other nations.

This month in Argentina, officials from 11 Latin American nations reached a deal with 26 drug and diagnostic companies to lower the prices governments pay for anti-HIV drugs and tests. Among the signatories were Brazil, Mexico and Argentina, Latin America's three biggest pharmaceutical markets.

Though AIDS activists complained that the reductions, which range from 15 percent to 55 percent, are still not enough, officials said they will help governments reach their goal of providing anti-retroviral therapy to everyone who needs it.

According to the World Health Organization, Latin America and the Caribbean are home to about 465,000 people under age 50 who need anti-retroviral therapy. Nearly two-thirds of them are now being treated, the WHO estimated.

Risk of trade sanctions

Brazil runs the risk of trade sanctions should it break the patents on Kaletra or other drugs. Some members of the U.S. Congress already are preparing retaliatory legislation, a real threat for Brazil's export-fueled economic recovery.

Yet Brazil has won price reductions from multinational companies in part by developing its own technology and capacity. Brazilian and Argentine officials say they must pursue alternatives in case drug shortages arise or the cost of drugs from abroad is deemed too high.

But this week's accord should not be viewed as merely another aspect of their negotiating strategy, Argentine officials said.

"It's downplaying this to say the agreement is only to negotiate prices," said Gabriela Hamilton, director of Argentina's AIDS and HIV program.

She also said the nations would work together on drugs to treat diseases other than AIDS.

Patents infringing patents?

Classen Immunotherapies Inc. alleges that Elan Pharmaceuticals Inc., a unit of Elan Corp. filed patents on the muscle relaxant Skelaxin that included methods involving the disclosure of drug interaction events covered by two of Classen's patents, and that King Pharmaceuticals Inc. later purchased these patents from Elan.

Infringement under 35 USC 271 requires the alleged infringer to make, use, sell, or offer to sell the accused product or process. One can obtain a patent on a method that requires the use of a (separately) patented method. That by itself is not infringement. If one uses the method, then there are issues.

Posner to sit by designation over Pinpoint v. Amazon in ND Ill

Judge Richard A. Posner of the Court of Appeals for the Seventh Circuit will be sitting by designation as the district court judge presiding over the jury trial concerning infringement asserted by Pinpoint against Amazon.com's over claims of Pinpoint's U.S. Patent Nos. 5,758,257 and 6,088,722.

Judge Posner sat by designation in an earlier patent case, SKB v. Apotex. I had written in the May 2003 issue of Intellectual Property Today ("There's Always Something There to Remind You"):

-->In the case SmithKline Beecham v. Apotex, 2003 U.S. Dist. LEXIS 2902, the district court addressed the issue of de minimis infringement and concluded that a composition of matter claim can be read as if it excludes any [measureable] amount so small as to lack any commercial significance. Although this interpretation is helpful to generic companies seeking to design around proprietary drugs, it is not clear that it will stand up to text in Embrex v. Service Engineering, 216 F.3d 1343, 1352-1353; 55 USPQ2d 1161 (Fed. Cir. 2000)[J. Rader concurring: "no room remains in the law for a de minimis excuse," the patent statute gives no leeway to excuse infringement because the infringer only infringed a little and that questions of degree go to damages, not to liability]; Madey v. Duke University, 307 F.3d 1351 as quoted in Semitool v. Ebara, 2002 U.S. Dist. LEXIS 21939 ["Similarly, our precedent does not immunize any conduct that is in keeping with the alleged infringer's legitimate business, regardless of commercial implications."]. Provided that the patent holder did meet the requirements of the patent law, the patent holder is given the right to exclude a competitor from making, using, selling, or offering to sell his claimed invention, without reference to the "amount" of the claimed invention to be used. The concept that there can be a "de minimis" level of infringement will likely be rejected by the Federal Circuit.


The Glaxo decision has many interesting aspects. The claim at issue simply recites crystalline paroxetine hydrochloride hemihydrate. The words “paroxetine hydrochloride hemihydrate” describe chemical composition. One of ordinary skill knows what paroxetine is, what hydrochloride is, and what hemihydrate means. The word “crystalline” establishes a requirement of a degree of translational periodicity of the chemical entities; in practical terms, it means relatively narrow lines in x-ray diffraction. If this claim is indefinite, there are many, many claims which are indefinite. The opinion repeatedly talks about “single crystals,” although it does not mean “single crystals” as a scientist would understand them (a phase consisting of one crystal manifesting narrow diffraction lines corresponding to long coherence lengths through the Scherrer equation, as distinct from a polycrystalline material having crystallites of different orientations). In the context of the opinion, a single crystal means a single particle of the claimed material. There is much discussing of the “disappearing polymorph” phenomenon, which is more in the realm of anecdotal stories than well-researched evidence. If SARS were as contagious as the alleged seed contamination were pervasive, there would be no one left to read this article. The bigger problem in the case, however, is the adoption of a “de minimis” infringement exception in light of Federal Circuit cases to the contrary.<--

In the end, the Federal Circuit did not adopt Judge Posner's claim construction or the proposed "de minimis" level of infringement. Further, Posner's new defense was not accepted.

The CAFC affirmed Posner's decision on grounds Posner rejected: public use. It is interesting to note here that SKB began US testing in May 1985, just two months after the (British) lab discovery in March 1985. (However, there seemed to be a natural conversion in December 1984.) As a result of the decision, foreign drug companies will need to accelerate the timetable on US filings.

The judges in the case seemed to have an (unjustified) fear that the modification in question bore some similarity to prions and ice-nine. Ironically, the fear was instilled by SKB. [As a separate matter, as discussed in IPL&B, SKB's lawyers never really got on board with the way Judge Posner was running the case.]

For another pair of eyes on the Apotex case, here is text from the Orrick website:

-->In revising the claim construction, the Federal Circuit admonished the district court for its policy-driven narrowing of the unambiguous language of claim 1 of the '723. The Federal Circuit held the claim to be broad enough to cover even a single crystal of the hemihydrate, as SKB had argued. The court went to hold that because the record showed that Apotex's proposed drug would contain trace amounts of the hemihydrate, Apotex's proposed drug would infringe claim one of the '723 patent. More importantly, the record also showed that more than one year before filing the '723 patent SKB had conducted public clinical trials to test the efficacy of the hemihydrate as an antidepressant. It was on this basis that the court held that the claim at issue was invalid as barred by a prior public use under § 102(b).

Rejecting SKB's argument that the clinical trials constituted an experimental use which would negate the application of the public use bar, the court pointed out that "an experimental use only negates a statutory bar when the inventor was testing claimed features of the invention." Thus, because the asserted claim of the '723 patent claims only the hemihydrate regardless of its use as an antidepressant, clinical trials testing the drug's efficacy as an antidepressant were not an experimental use that negated the public use bar. Holding claim 1 of the '723 patent invalid for public use under § 102(b) as a matter of law, the court warned that: "a patentee should understand that testing the properties, uses, and commercial significance of a compound claimed solely in structural terms may start the clock under § 102(b) for filing a claim that is not limited by any property, commercially significant amount, or other use of the compound." SmithKline Beecham Corp. v. Apotex Corp., 2004 WL 868425 (Fed. Cir. (Ill.))<--

In the present matter, Pinpoint is represented by Phil Beck and Peter Bensinger, Jr.

Monday, November 29, 2004

Sony and Ampex settle digital camera dispute

In return for withdrawal of complaints before the ITC and D. Del., Sony will license Ampex-patented technology for making digital videotape recorders and digital still cameras. Sony will pay $40 million for the period through April 2006. After that, royalties will be based on sales. Sony will pay the fees starting with the fourth quarter of its fiscal 2004.

Recall that way back in the 1950's, Sony and Ampex cut a deal over videotape technology. Contrary to reports by Mark Lemley (for example in the University of Chicago Law Review), both parties understood the commercial potential of home videotape recording, but a business decision placed that market with Sony. Neither party failed to foresee the potential.

Parachutes for Merck execs in post-Vioxx period

Merck has adopted a special severance plan for about 230 managers. Note that part of the motivation for a special plan for Merck managers is the loss of patent protection for Zocor in 2006.

-->from Reuters

Merck & Co. Inc. has adopted a severance benefits plan aimed at protecting key managers in the event the company is taken over -- a growing possibility since the withdrawal of arthritis drug Vioxx sent shares tumbling.

Participants in the plan must sign a release of claims against the company, and a commitment not to solicit company employees for two years following the change in control.

[Barbara] Ryan said the plan, by guaranteeing pay and benefits to senior managers, could discourage them "in the short run" from jumping to rival drugmakers.

But she said morale at the company and the mood of shareholders will continue to be sorely tested because Merck's earnings will likely decline through 2007, in part due to the slated loss of U.S. patent protection in 2006 on its Zocor cholesterol fighter.

Ryan said the two companies most likely to make a bid for Merck, were a bid to emerge, are London-based drugmaker GlaxoSmithKline Plc (GSK.L) and Novartis AG (NOVN.VX) of Switzerland.

She said Glaxo wants to grow into a company closer to the size of New York-based Pfizer, the world's largest drugmaker, and that Glaxo would also bolster its line of heart drugs by acquiring Merck. <--

Sarnoff's iTrace software

On November 29, 2004, the Trenton Times had a feature article on the iTrace technology of Sarnoff Labs, developed with Post Logic Studios.

The technology is a watermark system. The asserted improvement is a watermark that can uniquely mark millions of legitimate copies and make that watermark easily readable, even on bad copies. Jeffrey Lubin is the chief developer of the watermark system.

More on the auction of Commerce One patents

A query for the San Francisco Chronicle in regard to their coverage of the auction of Commerce One's patents. If Commerce One's patents covered the use of Web services utilized by many companies, how come Commerce One went bankrupt?

from the SF Chronicle:

-->On the auction block are 39 patents held by Commerce One, a bankrupt software company in Santa Clara that's shutting down and liquidating its assets. The patents cover technical protocols that underlie popular methods for exchanging business documents over the Internet.

The protocols, also known as Web services, are in wide use. Microsoft, IBM and, presumably, the companies at last week's meeting have incorporated them into their software products and their own business systems, Smith said. Although it may turn out that the patents are too broad to enforce or may be otherwise invalidated if challenged, people are nervous.

"There's a concern that these patents could be used aggressively by a buyer to shake down the whole Web services industry," said Jason Schultz, an attorney at technology activist organization the Electronic Frontier Foundation. Schultz is helping put together and promote the CommerceNet proposal. <--

Korean Trade Commission bans Matsushita PDPs

Further to the LG/Matsushita IP dispute, on November 29, 2004, South Korea imposed a temporary ban on imports of plasma display panels [PDPs] made by Matsushita after LG Electronics complained its rival had violated its intellectual property rights. Matsushita has raised similar complaints about LG in Japan [see earlier posts.]

The Korean Trade Commission’s ban indicates Panasonic will temporarily be prohibited from importing new PDPs, used in flat-screen televisions and computer monitors, and will not be able to sell those it has in stock until a formal ruling is made.

-->The dispute underlines the increasingly strong stance Japanese electronics groups are taking against their Asian competitors over intellectual property rights. Japanese manufacturers have been alarmed about technology leaks and patent infringements by Asian rivals, which they claim are undermining their competitiveness in an industry where digitalisation has lowered the entry barrier to many product sectors.<--

Sunday, November 28, 2004

EU demands before WTO about descriptors of origin

The EU has demanded a global trade agreement that protects at least 41 food and drink names (eg, Port, Parmesan, Roquefort, Chianti and Champagne). The US asserts that most of the names have passed into everyday usage (ie, become generic). A confidential interim report was issued by a WTO dispute panel last week (Nov. 2004). The WTO had asked the EU to clarify whether products from outside the EU could be registered in Europe's geographic indicator system.

[Trenton Times, C8 (Nov. 27, 2004)]

Saturday, November 27, 2004

Scientific mafias ...

There has been a lot of discussion about utilizing the creativity of academic researchers through the Bayh-Dole Act. Under this law, which goes back to 1980, universities may, subject to certain conditions, take ownership interest in patents obtained through the use of federal funding. In 1980, there was talk of harnessing the innovation of academics to improve a US economy under attack from the outside, and, in the years since, many patents have gone to universities. But is there really a wellspring of innovation to visit?

In an article focussed on cold fusion, there is a quote about mainstream academic science being composed of "mafias," who, far from being innovative, are clanlike in their adherence to orthodoxy and resistance to change.

As a microcosm of this issue, many years ago, there was a certain topical Gordon Conference which, year after year, invited the same people to attend. These same people talked about fundamentally the same research year after year, and this Gordon Conference became like a summer vacation retreat in New Hampshire. No one talked about new ideas, and new people were generally excluded. There were complaints, and this particular group was put on probation. But not that much changed. Orthodoxy and the same-old, same-old were the order of the day.

Separately, posts on a different board complain about the publishing of "me-too" articles on nanotech in the Journal of the American Chemical Society. Each one is a little different, but none really represent any significant advance. One thinks back to the thousands of publications on fullerenes in the 1990's, along with the hundreds of patents, with no real commercial innovation to show for any of the activity. Most of the work was highly derivative in nature, with very little innovation going on. Similarly, the relish with which academic scientists embraced the fraudulent work of Jan-Hendrik Schon is a different indicator of problems in the research community. Rather than step back and think about the issues, there was a lemming-like rush to derivatize Schon's work.

The feeding frenzy over Schon does remind one of the days of cold fusion. However, unlike with the Schon research, resistance to the experiments of Pons and Fleischmann developed rather quickly, and the "cold fusion" work was discredited by the mainstream scientific community. In an article on November 21, Sharon Weinberger presents the flip side to this. Through years of mainstream criticism, certain scientists hung on in "cold fusion" and received in August 2004 a hearing from the Department of Energy. There is only one question before the DOE: Is the work surrounding cold fusion legitimate science? The DOE is expected to give its answer by the end of 2004.

In her article, Weinberger highlights Peter Hagelstein of MIT, who believes the mainstream community has been unreasonably dismissive of cold fusion. Apart from the particulars of what one might believe about cold fusion, there are general themes about rejection of outsiders and maintenance of orthodoxy (recall H. pylori?).

from an article by Sharon Weinberger in the Nov. 21, 2004 issue of the Washington Post, on cold fusion:

-->on scientific mafias

[Peter] Hagelstein describes the
mainstream scientific community as "mafias" that
promote and publish their friends' work, unwilling to
accept new ideas. "From time to time there will be
wild claims that will be wrong," he says. "Let's
accept that, instead of destroying the careers of the
folks who either say such things or work on such
things. This is a normal part of the process, too."


Just days after the infamous Utah announcement,
Hagelstein presented possible theories for cold
fusion, and MIT applied for patents on his behalf.
Some scientists openly ridiculed his theories. And
cold fusion, despite his support, was attacked the
next month at a Jasons meeting he attended. Hagelstein
remembers Happer, then chairman of the Jasons, telling
him to choose between cold fusion and his membership
in the group. Hagelstein resigned.

--> of the secrecy of the August 2004 DOE meeting on cold fusion

The Department of Energy went to great lengths to
cloak the meeting from public view. No announcement,
no reporters. None of the names of the people
attending that day was disclosed. The DOE made sure to
inform the panel's members that they were to provide
their conclusions individually rather than as a group,
which under a loophole in federal law allowed the
agency to close the meeting to the public.

At 9:30 a.m., six presenters were invited in and
instructed to sit in a row of chairs along the wall.
The group included a prominent MIT physicist, a Navy
researcher and four other scientists from Russia,
Italy and the United States. They had waited a long
time for this opportunity and, one by one, stood up to
speak about a scientific idea they had been pursuing
for more than a decade.

All the secrecy likely had little to do with national
security and more to do with avoiding possible
embarrassment to the agency. To some, the meeting
would seem no less outrageous than if the DOE honchos
had convened for a seance to raise the dead -- and in
a way, they had: Fifteen years ago, the DOE held a
very similar review of the very same idea.

--> McKubre of SRI and Hagelstein of MIT

McKubre and Hagelstein met in 1990 at the first
international cold fusion conference and quickly hit
it off. While hundreds of scientists still plow away
at cold fusion worldwide, the two of them have emerged
as perhaps the most prominent, particularly in the
United States. Hagelstein, an applied physicist at
MIT, works on theory, while McKubre is a practiced

McKubre's staff is well below its all-time high of 12
people -- today, it's just he and a part-time
assistant -- but the lab is still well equipped. For
years the experiments took place behind bulletproof
glass, the result of a 1992 accident that killed one
of his colleagues. McKubre still has bits of glass
embedded in his side from the cold fusion experiment
that exploded that day in his lab (the blast had
nothing to do with fusion; hydrogen mixed with oxygen,
creating the equivalent of rocket fuel).

--> on publications

Since 1989, hundreds of scientists working in dozens
of labs around the world have claimed similar results.
Supporters point to the written literature -- more
than 3,000 papers -- as proof of the effect. But the
most credible cold fusion advocates concede that the
vast majority of those papers are of poor quality; one
supporter called the collection "mixed toxic waste."

And even the best research is plagued by cold fusion's
most nagging problem: a long history of failing to
reproduce experimental results. McKubre is one of the
more respected people in the field, and in more than
50,000 hours of experiments, he says, he has recorded
50 times when the setup "unmistakably" produced excess
heat. That is a far cry from the scientific standard
for reproducibility. Erratic results such as those,
coupled with the theoretical unlikelihood of the whole
idea, long ago drove most mainstream scientists to
dismiss cold fusion; they say that any indication of
heat or nuclear byproducts is the result of an error
in the experiment. Now few of them take the trouble to
review the new results or attend the annual cold
fusion conferences.

[Note: the last time I looked, there were over 7,000 scientific publications on buckminsterfullerene and fullerenes.]

--> on patents

Research money has dried up. The U.S. Patent and
Trademark Office has refused to grant a patent on any
invention claiming cold fusion. According to Esther
Kepplinger, the deputy commissioner of patents, this
is for the same reason it wouldn't give one for a
perpetual motion machine: It doesn't work.

These problems, Hagelstein and McKubre argue, are all
tied to the 1989 DOE review. While the report's
language was measured, pointing out the lack of
experimental evidence, "it was absolutely the
intention of most of the framers of that document to
kill cold fusion," McKubre says.

[Don't forget the patent issued to BlackLight concerning the hydrino]

--> Other workers

Edmund Storms, a former scientist at the renowned Los Alamos
National Laboratory, has set up a cold fusion lab next
to his home in Santa Fe, N.M. John Dash, a physicist
at Portland State University in Oregon, conducts cold
fusion research, but among his academic colleagues, he
says, "I'm an outcast, a pariah."

[There still is an annual meeting of workers in cold fusion.]

--> Early criticism

As Hagelstein explains it, leading physicists came out
swiftly and prematurely against cold fusion. A
prominent physicist at Caltech said Pons and
Fleischmann were "suffering from delusions." William
Happer, a Princeton professor, called them
"incompetent boobs."

[Where were these folks when the papers of Jan-Hendrik Schon were being published?]

***Separately, merely for contemplation, from Nobel Laureate Brian Josephson:

This talk mirrors "Pathological Science", a lecture given by Chemistry Laureate Irving Langmuir (1). Langmuir discussed cases where scientists, on the basis of invalid processes, claimed the validity of phenomena that were unreal. My interest is in the counter-pathology involving cases where phenomena that are almost certainly real are rejected by the scientific community, for reasons that are just as invalid as those of the cases described by Langmuir. Alfred Wegener's continental drift proposal (2) provides a good example, being simply dismissed by most scientists at the time, despite the overwhelming evidence in its favour. In such situations incredulity, expressed strongly by the disbelievers, frequently takes over: no longer is the question that of the truth or falsity of the claims; instead, the agenda centres on denunciation of the claims. Ref. 3, containing a number of hostile comments by scientists with no detailed familiarity with the research on which they cast scorn, illustrates this very well. In this "denunciation mode", the usual scientific care is absent; pseudo-arguments often take the place of scientific ones. Irving Langmuir's lecture referred to above is often exploited in this way, his list of criteria for "Pathological Science" being applied blindly to dismiss claims of the existence of specific pheomena without proper examination of the evidence. We find a similar method of subverting logical analysis in a weekly column supported by the American Physical Society (4).

Other popular forms of attack are "if X were true we would have to start over again" (as we of course had to do with Relativity and Quantum Theory, and so the argument proves nothing), and then there is the dictum "Extraordinary Claims require Extraordinary Evidence", which has the marvellous feature of allowing the requirements for acceptable proof to be stretched indefinitely as more and more support for a contested claim comes in. Its originator, the late Marcello Truzzi, later decided that his comment was 'a non sequitur, meaningless and question-begging', and had planned to write a debunking of his own creation (5). Ref. 6 takes a light-hearted look at a range of strategies used by critics.

"Cold fusion" appears to be the modern equivalent to continental drift, starting with the controversial claim, made by Pons and Fleischmann in 1989, to have generated in an electrochemical cell heat considerably in excess of anything explicable in conventional terms. This provoked hostile reaction: ignoring the possibility that an aggregate of ions in a condensed matter matrix may behave differently to a collection of freely moving ones, it was asserted that nuclear fusion could not be responsible for the claimed excess heat. Then came 'failure to replicate' by a number of groups, equated with the non-existence of the phenomenon, ignoring the fact that if different groups get different results there can be two explanations, one that the people who see some effects are bad experimenters, and the other that they were in fact better at creating the precise conditions needed for an effect to be seen. Usually in such cases time tells which side is right, but here the steadily mounting evidence that there was a real effect was suppressed through the publication policies of the major journals. Consequently, these apparently supportive results are not known to most scientists, who simply take it for granted that the Pons-Fleischmann claims have been disproved.

In an attempt to promote proper discussion of the issue, I tried in 2002 to upload a survey by Storms (7) to, the preprint server arxiv.org, the natural place for facilitating such discussion, but the moderators frustrated this intent by deleting the review, declaring it "inappropriate" (chemists, being a more robust species than physicists, were permitted to see it on their own server chemweb.com). A breath of fresh air has been introduced into the situation now, with the recent decision of the US Department of Energy to review the research (8); if the reviewers simply look at some of the research going on they will almost inevitably conclude that fusion can take place at ordinary temperatures, with a yield far in excess of the 'almost undetectable level' referred to in Langmuir's lecture.

The overall situation seems profoundly unsatisfactory. The system built up over the years to promote scientific advance has become one that narrow-minded people can use to block any advance that they deem unacceptable. This demands urgent review: otherwise, just as astronomy became fixated on the reasonably accurate, but wrong, Ptolemaic model, science will become fixated in a respectable, but inaccurate, view of reality.

The scope of surrender in Festo

In the November 2004 issue of Intellectual Property Today, Grant Langton et al. of Jeffer Mangels suggest that "a claim that is cleanly allowed without being amended may ultimately capture a greater lanscape of products (through its scope of equivalents)..."

The Langton article did not cite to the Hamilton Sunstrand case, wherein a cleanly allowed dependent claim was infected by surrender in the independent claim. It may be that the "clean allowance" of a claim is not the principal issue. Rather, if there is any claim with broader scope as to a claim element which is narrowed through amendment or abandoned, that action of surrender can infect other claims reciting that element and affect the equivalents for that element.

Whether the use of many independent claims solves the Festo problem remains to be seen.

Separately, from a board:

-->As for Festo, abandoning an application with broad claims to file a second application with the same specification and narrower claims has the same effect as cancelling broad claims and entering narrower claims without comment through a preliminary amendment. <--

The "without comment" merits discussion. In the past, the mantra has been --the less said, the better.-- Now, with a presumption of surrender, there is some merit in explaining why one narrows a claim. In the Festo case itself, Festo might have been able to make a "tangential" argument if the reason for the change had been more clear. On the facts as they were, Festo had no opportunity for the tangential argument, which ultimately may become the best way to rebut the presumption of surrender (note Insituform, Cordis, and see my article in the December 2004 issue of Intellectual Property Today.)

Of foreseeability, the patentee has to walk a tightrope in showing no foreseeable interchangeability at the time of amendment, but interchangeability at the time of infringement.

Friday, November 26, 2004

Extreme discussion of patent reform

In a discussion of the book by Lerner and Jaffe, Newswise stated the following:

-->Newswise — The U.S. Patent and Trademark Office (PTO) is bogged down with tens of thousands of patent applications, most of them for totally worthless inventions. The PTO grants thousands of patents every year, many of them for completely absurd "inventions" such as a crustless peanut-butter-and-jelly sandwich, a watch for dogs that runs seven times faster than a conventional watch, and a kit for a snowman complete with a lump of coal and a carrot, to name just a few.<--

The position of the book is summarized:

-->To inject some sanity back into the patent process, Jaffe and Lerner propose that, first, legislators create incentives and opportunities for parties to challenge the novelty of an invention before the U.S. Patent and Trademark Office grants a patent. Second, that the PTO provide multiple levels of application review, with examiners devoting successively more time and effort as an application proceeds to higher levels, a way to avoid wasting money on unimportant patents, while taking sufficient care to avoid mistakes where the stakes are high. Finally, in cases involving claims of patent invalidity based on the existence of prior art, replace juries with judges who could call on experts for guidance. The change would give parties threatened by invalid patents a better opportunity to make their case.<--

Of --tens of thousands of patent applications, most of them for totally worthless inventions--, the PTO gets more than one hundred thousand applications yearly. Whether they are for totally worthless inventions is not clear. They have enough perceived value that someone is paying the application fees.

The first point of reform seems related to various proposals for a European-style opposition proceeding to be created in the US. Of the third point, one recalls the judge in the district court of Arizona in the Osram case who set back chemical science over 100 years by doing stoichiometric calculations using atomic number instead of atomic weight. Whether this amounts to a "correction" of the PTO by the court is open to question.

Nanotech coating for clothing from Clemson

Another Bayh-Dole innovation is a nanotech coating for clothing developing at Clemson University.

An AP release on November 26, 2004 describes the coating as a polymer mixed with silver nanoparticles which is infused into the fabric.

An interesting statement is imputed to Philip Brown of Clemson:

--> He [Brown] siad the film won't make clothing look glossy because the particles [of silver] are too tiny to be seen and, theoretically, have no color because they are smaller than the wavelength of light. <--

While particle size has an influence on the reflectivity of light (see Lord Rayleigh), absorption of light works well no matter what the particle size. Thus, (molecular) chlorine gas has a color as do many molecules dissolved in solvents.

Here, silver particles smaller than the wavelength of visible light are not transparent because they are smaller than the wavelength of visible light.

Upcoming patent wars over 3G cell phones?

In the past, there has not been much direct conflict between Texas Instruments Inc. and Qualcomm Inc. over cell phones by virtue of their focussing on different mobile technologies: in TI's case, the GSM standard used by 80 percent of mobile subscribers; for Qualcomm, the CDMA system used in parts of the United States and Asia.

In the future, with the advent of new standards for third-generation mobiles, the companies may compete on one another's turf.

from Reuters:

-->San Diego-based Qualcomm, as well as making chips for the 3G standard that will succeed CDMA, is tasting early success with its semiconductors for the GSM successor.

TI, likewise, is offering chips for both of the new technologies that will turn mobile phones into broadband Internet-enabled devices.

But Qualcomm has an advantage in that both 3G standards are based on its patented CDMA technology, as their names attest: the GSM successor is called WCDMA, while the plain CDMA networks are upgrading to CDMA 2000.

"Next year is going to be a brand new game," said Warren Lau, a semiconductor analyst at Macquarie Securities. "Qualcomm seems to be doing pretty well in Europe with their WCDMA chipsets. But I'm not sure if they can repeat their success in Asia." <--

WTO authorizes sanctions against US concerning Byrd Amendment on dumping

On November 26, 2004, the WTO authorized stiff sanctions against the US concerning the Byrd Amendment, which US law allows American companies to receive proceeds from duties levied on foreign rivals for alleged "dumping" —selling goods at below-market prices, making it difficult for American producers to compete against their foreign competitors.

The WTO agreed with assertions that the Byrd Amendment breaks trade laws by punishing exporters to the United States twice: first the foreign competitors are fined in the form of the duties, and second, that money is passed on to their U.S. counterparts.

The value of the sanctions has yet to be determined, but trade officials have said they could amount to more than $150 million a year — a tiny sum in comparison with the $2 billion in sanctions the EU threatened in its successful bid to force the United States to lift illegal tariffs on foreign steel last year.

In August 2004, a WTO arbitrator approved penalties of up to 72 percent of the money collected from foreign exporters and handed to American companies and said the winners in the case should submit lists of potential targets. Under WTO rules, however, formal authorization must come from the dispute settlement body.

Thursday, November 25, 2004

US patent applications with thousands of claims

I saw a post on an IP board asserting that only 1 in 10,000,000 US applications is longer than 430 pages (ie, basically there are no such "long" applications.)

The asssertion was based on the following reasoning.

-->Among 100 applications published on November 11, 2004, the longest was 68 pages, the shortest was 2 pages. The mean length was 12.9 pages, standard deviation 10.4. To estimate the frequency of very long patent applications, i.e. "thousands of pages" or at least 2000 pages long, I used a log-normal distribution.* Based on this model: 10% of the app's are more than 23 pages long; 1% of the app's are more than 51 pages long; only 1 in 1000 is more than 89 pages long; and only 1 in 10,000,000 applications is longer than 430 pages. In other words, it is unlikely that the USPTO ever received a patent application was thousands of pages long.<--

Although such items are not typical, they do exist. Because we are talking about what happened in the past, all we have to do is look. Extrapolating from the results of part of one day to infer --In other words, it is unlikely that the USPTO ever received a patent application was thousands of pages long.-- is risky business, and, in this case, wrong.

In the context of patent reform, then PTO Director Rogan told a House panel that an oil company had submitted a patent application to the USPTO that contained 5,100 claims. I don't know which one he meant. However, US App 20030196788 [titled "Producing hydrocarbons and non-hydrocarbon containing materials when treating a hydrocarbon containing formation," first inventor Vinegar, Harold J.; Shell Oil] has 8,958 claims. Separately, it contains at least 1,884 numbered paragraphs; number 1884 recites:

FIG. 193 illustrates a comparison plot between the average pattern temperature curve and temperatures at the coldest spots for each pattern, as a function of time when heaters are turned off after the average temperature reaches a target value. As shown in FIG. 193, average temperature curve 1882 of the formation reaches a target temperature (about 340.degree. C.) in approximately 3

[at this point, my text from the PTO database ends]

Additionally, US App. 20020093648 (Methods and systems for determining an implant characterstic and a presence of defects on a specimen; first inventor Nikoonahad, Mehrdad) has 6,632 claims. There are 175 independent claims and 6457 dependent claims. Apart from the claims, it has 580 numbered paragraphs, the last of which recites:

Further modifications and alternative embodiments of various aspects of the invention may be apparent to those skilled in the art in view of this description. For example, the system may also include a stage configured to tilt in a number of angles and directions with respect to a measurement device. Accordingly, this description is to be construed as illustrative only and is for the purpose of teaching those skilled in the art the general manner of carrying out the invention. It is to be understood that the forms of the invention shown and described herein are to be taken as the presently preferred embodiments. Elements and materials may be substituted for those illustrated and described herein, parts and processes may be reversed, and certain features of the invention may be utilized independently, all as would be apparent to one skilled in the art after having the benefit of this description of the invention. Changes may be made in the elements described herein without departing from the spirit and scope of the invention as described in the following claims.

In terms of applications filed after November 11, 2004, we have
US appl no 20040235205 (titled: Methods and systems for determining a critical dimension and overlay of a specimen, assigned to KLA-Tencor, drafted by Conley Rose, P.C., published November 25, 2004) which has 6,632 claims and 580 numbered paragraphs.

Wednesday, November 24, 2004

Another litigation/reexamination combination

In the Eolas/Microsoft browser matter, the director-ordered re-exam came after the litigation. In the CNS/Silver Eagle matter we have a different permutation.

-->CNS Inc., maker of Breathe Right nasal strips, reported Nov. 24, 2004 that the USPTO will re-examine two of its nasal strip patents at issue in a lawsuit. This re-examination comes at the request of Silver Eagle Labs Inc., a company named as a defendant in a patent suit filed by CNS. <--

Happy Thanksgiving to patent lawyers...

A USAToday article by Kevin Maney begins:

Though it's not a usual part of the Thanksgiving tradition, this year you might pause to give deep and gracious thanks to lawyers.

The text includes references to US 6,460,020 of Pool/DE, to Allen Kaplan, and to American Video Graphics.

The article includes the text:

-->Is there anything wrong with these broad patent lawsuits?

"Many people intuitively suspect that many such patents are not, in fact, valid, enforceable and infringed," says tech lawyer Daniel McMullen of Calfee Halter & Griswold in Cleveland.

"In many instances, (the big companies being sued) have never heard of (the plaintiffs) before receiving some form of demand — and therefore perceive such offers to grant a license as thinly veiled extortion."<--

Tuesday, November 23, 2004

Oil shale: history repeating?

-->The U.S. government said on November 23, 2004 it was ready to resurrect oil shale drilling in the Rocky Mountains, a technology heralded 30 years ago to boost America's energy output until it failed financially. <--

As I learned in "mining law" from Professor Helmholtz at Chicago, the time period of the 1970s was not the first time oil shale in the US was big. Legal cases involving The Oil Shale Company (aka TOSCO) go back to the 1920s.

Also, apart from the financial issue, there are some aspects involved with the high arsenic levels.

As has been said, synfuel is the fuel of the future and always will be.

Google scholar

A search of selected academic literature is available at

It won't be mistaken for Dialog, but it's free.

To illustrate some of the problems, I searched on myself, as L.B. Ebert.

The first three hits were denoted [citation], meaning that the pertinent article was identified only because it was cited, not because the database had the article.

Then, there was the hit

Experimental Band Structure and Temperature-Dependent Magnetic Exchange Splitting of Nickel Using …
DE Eastman, FJ Himpsel, JA Knapp - Cited by 96
Using angle-resolved photoemission and synchrotron radiation, we have determined
the energy-versus-momentum valence-band dispersion relations for a Ni(111) ...
Physical Review Letters, 1978 - link.aps.org - adsabs.harvard.edu

which was totally irrelevant.

Similarly irrelevant was

Nature of the Bond in Hydrogen Chemisorption on Ni, Pd, and Pt
JP Muscat, DM Newns - Cited by 5
We describe a model of H chemisorption on Ni, Pd, and Pt in which both extended
sp bands and the more localized d bands are appropriately incorporated. It ...
Physical Review Letters, 1979 - link.aps.org - adsabs.harvard.edu

Google scholar appears to need work. It is flawed.

The Dec. 1, 2004 issue of JAMA

The December 1, 2004 issue of the Journal of the American Medical Association [JAMA] six articles related to drug safety.

Dr. Steven Galson, acting director of the FDA's Center for Drug Evaluation and Research stated that the agency earlier this month asked the Institute of Medicine to study the effectiveness of the nation's drug safety system.

There has been some discussion of risks associated with taking statins (eg, Lipitor, Pravachol, Zocor) AND fibrates (used to lower the level of triglycerides).

Ranbaxy challenges Pfizer's Lipitor in D. Del.

Ranbaxy Laboratories Ltd. has filed an ANDA concerning two patents that Pfizer says protect Lipitor through 2009 and 2011. Trial will begin November 30, 2004 in D. Delaware.


Pfizer spokesman Paul Fitzhenry said Pfizer believes that Ranbaxy is infringing on two patents, which will expire in 2009 and 2011, respectively. “Ranbaxy is seeking to sell a generic form of Lipitor and it claims its products will not infringe on our basic patent and that the other patent is invalid,” he said.

More patent litigation in Japan?

-->In late 2002, the Japanese Parliament passed a law that has cut the time it takes to try a patent-infringement case to around a year, down from two to three years. And in April, 2003, a bill was passed enabling companies to block the import of products they allege infringe patents if court hearings are pending -- the law Matsushita just invoked against LG of South Korea.

Critics of the legal deluge charge that Japan is just trying to erect protectionist import barriers. And the litigation isn't without risks. LG, for instance, has filed its own suit against Matsushita in Korea that seeks to cut off imports of its Panasonic products. And Hynix is threatening "aggressive countermeasures."

The Matsushita court action came just two days after Toshiba Corp. filed suit in Japan and the U.S. against South Korea's Hynix Semiconductor Inc., charging patent violations in the manufacture of so-called NAND flash-memory chips that Hynix began selling in February. Toshiba is seeking a ban on imports of Hynix chips into Japan and money damages in the U.S. The company has a lot to protect. With 37% of the global market, Toshiba ranks second only to Samsung in flash memory and holds more than 1,000 NAND-related patents. The chips are used in digital cameras, MP3 players, and other equipment. "We are prepared to take action against any infringement of our patents," says Shozo Saito, a vice-president in Toshiba's semiconductor division. Hynix vigorously denies any wrongdoing.<--

Memo of understanding from 22nd Annual Trilateral Conference

from USPTO press release:

Heads of the Department of Commerce’s United States Patent and Trademark Office (USPTO), the European Patent Office (EPO), and the Japan Patent Office (JPO) signed on Nov. 19, 2004 a Memorandum of Understanding (MOU) to coordinate work sharing, electronic business developments to support work sharing, and harmonization or standardization of search strategies, tools and substantive patent law. The 22nd Annual Trilateral Conference held this week at the USPTO in Alexandria, Virginia continues the cooperative effort that began in 1983 among the three Offices, known as the Trilateral Offices.

Patenting the "is not" operator

An article in eWeek criticized a Microsoft patent application which is entitled the --IS NOT OPERATOR-- [US appl no 20040230959, to Vick, Barsan and Silver; drafted by WOODCOCK WASHBURN LLP]. The first claim recites:

A system for determining if two operands point to different locations in memory, the system comprising: a compiler for receiving source code and generating executable code from the source code, the source code comprising an expression comprising an operator associated with a first operand and a second operand, the expression evaluating to true when the first operand and the second operand point to different memory locations.

Claim 15 recites:

A method for producing executable code for performing an object non-equivalence comparison comprising: receiving source code comprising at least one statement comprising a keyword representing a logical operator, a first operand preceding the keyword and a second operand following the keyword; and generating from the source code, executable code for evaluating the statement to true if the first operand and the second operand point to different locations in memory and to false if the first operand and the second operand point to the same locations in memory.

Claim 21 recites:

A computer-readable medium comprising computer-executable instructions for: receiving source code comprising at least one statement comprising a keyword representing a logical operator, and a first operand and a second operand; and generating from the source code, executable code for the at least one statement, the executable code evaluating to true when the first operand points to a first location in memory and the second operand points to a second location in memory that is different from the first location in memory, the at least one statement evaluating to false when the first operand and the second operand point to the same location in memory.

The patent application is directed in part to BASIC. BASIC, (Beginner's All Purpose Symbolic Instruction Code), was designed to be an easy-to-learn programming language that makes programming easier by providing an intuitive, English-like syntax in which to code. One of the ways in which BASIC eases programming tasks is by not requiring the use of pointer arithmetic. When a BASIC program is executing, a memory buffer 250 (typically a heap) is created in RAM (random access memory) to store application data. When a new object is created, space for the object is allocated on the heap.

Of the application, Peter Coffee wrote:

-->It sounded like the worst sort of sophomoric parody, worthy of the most rabidly anti-Microsoft blog, but it turned out to be the literal truth. A team of three inventors, two of whom are publicly identified as "members of the Visual Basic team," has applied (in a filing published late last week) for a U.S. patent on "A system for determining if two operands point to different locations in memory"—in short words, on the IsNot operator in "BASIC-derived" programming languages.

The fundamental idea, of course, is the same as that of the eq predicate in Lisp, which determines whether two symbolic expressions evaluate to the same actual object rather than merely to objects with identical values, or the similarly semanticized == operator in Prolog. Oh, excuse me, I guess the patentable novelty is in having a single inequality operator that is the logical complement of Lisp's eq or Prolog's ==. Prolog, though, already had \==—and for that matter, C already had the != operator whose allowable operands include pairs of pointers.

This seems like an obvious setup for a dumb joke with a nursery-rhyme punch line, perhaps "Peter promptly proffered pounds of programmers' prior practice," except that I'm not making up this stuff.

As often is the case with legal documents, what's perhaps most interesting is not the self-evident silliness of the top-line claims, but rather the invidious implications of the footnotes. Some developers, for example, might dismiss this episode as irrelevant to their interests due to the putative focus on "BASIC-derived languages." Perhaps their threat assessment will change when they realize that Paragraph 42 of the Description section of the patent application lists Borland's Pascal-based Delphi among the so-called "BASIC-like or BASIC-derivative" <--

Peter had a jump for the "visual Basic [VB] team." At the other end was the following:

VB Team in India

The VB Team is coming to India next week! Alan Griver (http://blogs.msdn.com/vsdata) and I will be visiting five cities for the final leg of the 2004 VB World Tour. It will be great to see India and meet up with VB developers over there.

We'll be in:

Bangalore: 11/30 and 12/1
Mumbai: 12/1 and 12/2
Chennai: 12/3 through 12/6
Hyderabad: 12/7 and 12/8
Delhi: 12/9 and 12/10

Line extensions the wave of pharma's future?

Text by Cutting Edge asserts --71% of these same companies expect line extensions to be their predominant defense strategy over the next three years.--

In the case cited by Cutting Edge of Prilosec/Nexium, Astrazeneca BOTH litigated against the generics over Prilosec AND launched a line extension of sorts (they obtained a patent on the active ingredient in Nexium, which is an enantiomer of the racemate in Prilosec). This particular type of "line extension" will not be available for all drug companies. In fact, with key patents running out on many drugs in the next few years, "line extension" may be an imposed strategy, rather than a strategy of choice.

from PRnewsire:

Although patent litigation remains the most commonly used generic defense strategy among pharmaceutical companies -- 71% of drug companies have used legal battles to defend their patents in the past three years -- many feel that line extensions offer the greatest strategic opportunity for the future, according to research from pharmaceutical business intelligence firm Cutting Edge Information.

Aside from litigation, line extensions are the most common, and potentially most lucrative, strategy pharmaceutical companies pursue. Cutting Edge Information's study, "Combating Generics: Pharmaceutical Brand Defense," available at http://www.PharmaGenerics.com , reveals that 57% of surveyed companies have begun researching line extensions for products close to expiration. 71% of these same companies expect line extensions to be their predominant defense strategy over the next three years. When implemented correctly, line extensions can salvage much of the revenue stream exposed to generic competition. AstraZeneca, for example, successfully shifted 40% of its Prilosec users to Nexium prior to Prilosec's patent expiration.

"Ethical pharmaceutical firms are looking for any way possible to lengthen revenue streams for their products," says Jon Hess, senior analyst at Cutting Edge Information. "After all, drug-makers spend an average of 12 years turning a patented compound into a marketable drug and a few more producing and marketing it. In reality, innovative drugs have just five to seven years to earn returns before the core compound's patent expires."

Missing patents?

A recent law review article by legal academics speaks of missing patents. These are patents which are issued, but are not licensed or litigated or otherwise used to make money.

The ability to be commercially successful is not one of the criteria analyzed by the Patent Office in granting a patent application. Whether or not a patent makes money is irrelevant to the patent bargain, which is (full disclosure) in return for (limited period to exclude others).

Issued patents are publicly available. They are not missing.

Patent agent Matthew Powell gives a nice, short description of the patent process.

-->from Matthew Powell

Patents can be thought of as a bargain between the patent owner and the public. That is, in return for a full disclosure of how to make and use a new, useful and unobvious invention, the patent owner receives the exclusive right to prevent others from practicing the invention.

The two-part form of the patent document reflects this bargain--a description and drawings fully describing the invention supports a claim or claims defining the exclusive right held by the patentee.

Lewontin on coerced co-authorship

Think about the co-authors of Jan-Hendrik Schon.

Richard Lewontin in Nov. 18 NYRB:

Despite the sophistication of Judson's analysis he has missed a pervasive dishonesty in the practice of science that makes a certain level of intellectual corruption characteristic of the institution. The dishonesty consists in the way credit for scientific research is falsely ascribed to some of the authors of jointly signed scientific papers. He brushes by this practice by referring to "gift authorship," but, far from a willing gift, it is an exaction that the powerful impose on the weak. Science is carried out for the most part in a collection of cottage industries, work groups called "laboratories," but that is a synecdoche. The group is headed by a senior scientist, sometimes accompanied by a more junior but established colleague, and includes postdoctoral fellows, research associates, graduate students, visiting scientists, and technical assistants all working in offices and laboratory rooms clustered around the laboratory director's own space.

It is almost always the case that the laboratory director performs no actual experimental work. There is considerable variation from laboratory to laboratory and from project to project within the laboratory in the degree to which the senior scientist participates in the conception, planning, supervision, and eventual writing-up of the work. In many cases the entire project from conception to publication is without any significant input from the director. Much of what is done, however, is supported by funds from various grants and contracts obtained by the director as the euphemistically named "principal investigator."

Regardless of the actual involvement of the laboratory director in the intellectual and physical work of a research project, he or she has unchallenged intellectual property rights in the project, much as a lord had unchallenged property rights in the product of serfs or peasants occupying dependent lands. The chief product of a laboratory is in the form of published papers and the chief manifestation of the director's intellectual property rights is that he or she will be coauthor on every publication from the laboratory, sometimes including even general review papers and book chapters written by subordinate group members. Such property rights explain how, for example, Professor Eugene Braunwald of the Harvard Medical School came to be an author, at the age of fifty, of over six hundred publications.

Unfortunately for Braunwald, one of his protégés and coauthors, John Darsee, turned out to be a detected fabricator. One wonders how many sleepless nights Braunwald spent worrying about those other publications. But if laboratory directors as a matter of course claim authorship of work to which they have made no intellectual contribution or only a trivial one then they are, year in and year out, committing an intellectual fraud from which they reap immense rewards of ego, prestige, income, and social power. Moreover, by an unconscious affirmation on the part of the scientific community as a whole, these rewards grow autocatalytic. Robert Merton, the founder of modern social studies of science, called attention to a phenomenon he named the "Matthew Effect" after Matthew 25:29:

For unto every one that hath shall be given, and he shall have abundance; but from him that hath not shall be taken away even that which he hath.
Irrespective of the order of authors on a paper, it is referred to informally and sometimes formally by the name of the best-known author. In laboratory libraries papers are filed under the name of the "senior" author and remembered and discussed under his or her name. I was an indignant witness to an extreme case of the Matthew Effect. A graduate student in my laboratory had published a seminal paper, without my name on it, on an enzyme called alcohol dehydrogenase that everyone agrees has revolutionized the experimental study of population genetics. Shortly afterward I gave a lecture on a different subject, at the end of which a colleague came up from the audience and said, "That was very interesting but what I really admire is your paper on alcohol dehydrogenase." There is some justice in the world, however, and the misappropriation of intellectual property occasionally means that one may try to pass a bad check. The Matthew Effect then does its work. The fraud attributed to Imanishi-Kari becomes known as the "Baltimore Affair." To them that hath it shall be given.

Scientists in training are conscious of the appropriation of credit for their work by senior scientists and they resent it but feel that they cannot protest. It is not that they place no value on the details of authorship. They will fight bitterly with colleagues of their own rank about who should be first author on jointly authored publications. Yet when they too become seniors they will engage in the same fabrications of intellectual credit. The fabrications and falsifications of scientific results that we condemn as fraud are carried out from the desire for fame, status, and economic reward. But the misappropriation of credit by senior scientists arises from the same motives. How can we expect scientists to hold literal truth about nature as an inviolable standard, when they participate, en masse, in a conscious everyday falsification about the production of that truth? That is an aspect of what Judson calls "the culture of fraud" that is far more relevant to scientific honesty than the behavior of the executives of Enron on whom most scientists claim to look with disdain.

Monday, November 22, 2004

IVAX to challenge Forest's LEXAPRO

Generic drug makers including Miami-based Ivax Corp. have filed ANDAs on Lexapro, which is an altered version of Forest's older drug Celexa. Both drugs are licensed from Danish company Lundbeck A/S.

Beating on the swing patent

Nicholas Gruen picks on the swing patent (6,368,227, since invalidated) and the toast patent (6,080,436), as well as the video screen patent (5,576,951).

On magnetoresistive random access memory (MRAM)

Jeff Young of Motley Fool has an interesting piece on the Magnetoresistive Random Access Memory (MRAM) of NVE.

It concludes:

This is the model of how a former penny stock like NVE becomes a darling of speculators. Take allegedly important patents and big name licensees who may never use the technology or produce a marketable product. Add a promotional CEO and mix in a self-styled "visionary" with a wide readership of speculators.

But dubious penny stocks have a habit of returning from whence they came. The truth is that everyone best positioned to understand NVE's technology and future business prospects -- Motorola or Cypress or even Baker -- has cashed out already. Investors who get caught in this trap have simply ignored the evidence before them.

Young also writes:

NVE has also enjoyed the sponsorship of a number of stock promoters, including most prominently the Forbes/Josh Wolfe nanotech newsletter, which first mentioned the stock in June 2003. Wolfe subsequently anointed it a "Nanosphere" play and the stock took off. Wolfe has shown panache as a self-promoter. Before he had made a single nanotech investment, he modestly heralded himself as one of the "true business visionaries of the nanotechnology sector."

Although Young does not mention specific patents of NVE, he states:

The highlight of what NVE calls its "watershed" MRAM patents is something known as a "one-transistor-per-bit read addressing scheme." This invention relates to the electrical circuitry supporting a memory cell, but has nothing specific to do with MRAM. Further, the claim is based on so much prior art that it's meaningless and unenforceable. The DRAM in your PC has relied on this approach for decades. Motorola did license technology from NVE in 1995, but this was before NVE even had these patents. Motorola pays NVE no fees today and has no reason to pay NVE royalties in the future. Meanwhile, Cypress Semi appears no closer than it has been to producing a commercially viable MRAM-based product. No other company with a major MRAM development program has licensed NVE's patents.

[Young notes that MRAM relies on magnetic tunnel junctions (MTJ). Separately, in conventional flash memory (not SRAM but EEPROM), there are two transistors which are separated from each other by a thin oxide layer. One of the transistors is known as a floating gate, and the other one is the control gate. The floating gate's only link to the row, or wordline, is through the control gate. As long as this link is in place, the cell has a value of 1. To change the value to a 0 one uses a process called Fowler-Nordheim tunneling, which alters the placement of electrons in the floating gate.]

Inverness prevails against Acon over US 6,485,982

Inverness announced on November 22, 2004 that it had prevailed in a jury verdict against Acon concerning US 6,485,982 (Charlton) in D. Mass.

Inverness expects the court to issue an injunction against Acon.

Ron Zwanziger, CEO of Inverness Medical Innovations, stated: We are extremely pleased that the jury decided in our favor in this case, and that they agreed with our contention that the patent is clearly valid. We feel very positive about the impact this decision will have on the growth of our business, and are particularly proud that the jury affirmed our longstanding belief in the strength of our patent position. We fully intend to apply the result in this case in our prosecution of other infringement actions.

Continued discussion in European Union about "what is an invention"

As of November 22, 2004, members of the European Union [EU] have delayed voting on a proposed law that would define which technological innovations are patentable inventions, after Poland said it was considering withdrawing its support.

The proposed definition was endorsed by government leaders this month as an important legislative priority for the sluggish European economy to make it more competitive with the American economy. But an agreement reached in May 2004 by the European Union's 25 members now appears to be unwinding because of Poland's possible switch.

At issue is whether the proposed modification could open the door to patents on software - something many people in the debate believe would harm innovation.

The definition of what constitutes a patentable invention is related to recent remarks made by Ballmer of Microsoft about the WTO.

Update from eWeek:

On Thursday [Thanksgiving is not a holiday in Europe] or Friday, the Competitiveness Council is expected to decide whether to formally back-draft legislation on "the Patentability of Computer-Implemented Inventions," which received the tentative approval of the EU Council in May. In the long EU legislative process, this would amount to a significant step forward for the controversial proposal, which many argue would open the floodgates to software patents if approved in its current form.

In a statement published on Tuesday [Nov. 22, 2004], Torvalds, the inventor of the Linux operating system kernel, along with Michael Widenius, one of the creators of the MySQL database, and Rasmus Lerdorf, creator of the PHP scripting language, urged the EU Council to prevent the proposal's adoption. "In the interest of Europe, such a deceptive, dangerous and democratically illegitimate proposal must not become the Common Position of the member states," they wrote.

"The draft directive in question is deceptive because it leads laymen, and even those legal professionals who are not familiar with the intricacies of patent law, to falsely believe that it would exclude software from patentability," the statement read. In fact, the proposal would legitimize the practice of patenting software and business practices, which has already crept into European Patent Office practice, they argued, reiterating the position of most of the proposal's critics. The proposal's backers deny that it would allow software patents.

At stake is whether software patents will be officially allowed and enforceable in Europe, as is already the case in the United States. Many companies, including American IT giants such as Cisco Systems Inc., oppose software patents on the grounds that they stifle innovation and shut out smaller competitors, requiring companies to build up huge patent portfolios in order to defend themselves from legal attacks.

"Software patents are dangerous to the economy at large, and particularly to the European economy," Torvalds, Widenius and Lerdorf stated. "Lawmakers should heed the warnings of such reputable organizations as Deutsche Bank Research, the Kiel Institute for World Economics, and PricewaterhouseCoopers. A software patent regime would establish the law of the strong, and ultimately create more injustice than justice."

UPDATE on Nov. 30
from http://www.theinquirer.net/?article=19964

-->John Collins, a partner at UK firm Marks and Clerk said: "Torvalds and his supporters lack a fundamental understanding of intellectual property rights as they seem to be unaware that copyright can only protect software code and not software".

“Linus Torvalds (creator of Linux) has recently made a statement claiming that the Directive would broaden the area in which patents would be granted. This is simply a false assumption. The original proposal was solely designed to clarify and unify existing practice in the EU. However the current version – as a result of amendments made by the European Parliament – will result in patent holders in certain areas losing a significant element of protection meaning that some existing patents will become worthless.”<--

The Oddzon precedent soon to be removed by statute?

The decision in OddzOn Products, Inc. v. Just Toys, Inc., 122 F.3d 1396, 43 USPQ2d 1642 (CAFC 1997) has generated much discussion. [for example, L.B. Ebert, Written Description: Circumscribing Possession to Prevent Overreaching, Intellectual Property Today (October 2000).]

It now appears the controversial holding of the case may be reversed by statute.

from the Washington Post:

In its Oddzon decision, the Court of Appeals for the Federal Circuit found that the inventor of the Vortex ball, a patent for which was held by OddzOn Products Inc., derived the invention with the help of research collaborators who shared confidential designs among each other.

In a challenge from a rival toymaker, the court found that the information shared by the inventors could be considered evidence that the invention was not original, and thus the patent could be revoked.

Essentially, the ruling meant that sharing of information among researchers, even confidentially, could lead to challenges to the validity of patents by parties who had nothing to do with the original patent.

"It was the sword of Damocles hanging over the heads of universities that engage more and more with other universities and companies," said Andrew Cohn, spokesman for the Wisconsin Alumni Research Foundation [WARF], which coordinates patents for University of Wisconsin at Madison.

The bill, which had broad, bipartisan support, changed U.S. patent law to eliminate the threat of such challenges. [The bill remains to be signed by President Bush.]

"Today's biotech, pharmaceutical, and nanotechnology companies are among the foremost users of collaborative research strategies," Rep. Lamar S. Smith (R-Tex.), the bill's chief sponsor in the House, said in a statement.


The President signed the Cooperative Research and Technology Enhancement (CREATE) Act of 2004 into law on December 10, 2004. The Act extends the safe harbor provision of 35 U.S.C. 103(c) that shields patent claims from certain types of secret prior art. Under the new law, secret prior art of another is excluded as long as the claimed invention was made under a joint research agreement and the application discloses the names of the parties to the agreement.

California's proposition 71 on stem cell research

from stanford.edu:

Irving Weissman, director of Stanford’s new Institute for Cancer/Stem Cell Biology and Medicine, already is looking for Prop. 71 money to fund the institute’s facility, now slated to be one floor in a planned four-floor medical school building. That space will house eight institute faculty and 20 to 30 additional collaborators. The mere existence of the new funds will make it easier to lure scientists to the institute. “When I go to recruit people who are devoting their lives to this research, they’re having trouble funding their work,” Weissman remarked. “If I said to them, ‘In California you can apply for grants that will cover your full expenses,’ that would be very appealing.”


Palmer added that curing disease is the most talked about but perhaps least important aspect of embryonic stem cell work. Creating new lines from people with genetic diseases would let researchers study how and why cells carrying these mutations become diseased. “With this work we could think about preventing the disease before it starts,” he said.

Creating these new lines requires a technique called somatic cell nuclear transfer, which Palmer said he’s eager to use in his lab. “I can’t do SCNT now because I don’t have a history of that research,” he said, and he can’t get federal funding to do it. With Prop. 71 ending the financial barrier he said that one good postdoctoral fellow could seed his lab with the cell lines needed to study the genetics of Parkinson’s and other diseases.

[cross-reference: WARF]

A mild Habanero, but will it kill fire ants?

Dr. Kevin M. Crosby and the folks at the Texas A&M
Agricultural Experiment Station in the Rio Grande
Valley have developed and patented the TAM Mild
Habanero, with less than half the bite of the familiar
jalapeno (which A&M scientists also previously
produced in a milder version).

In an entirely different patent, someone had patented the use of extracted peppers (containing capsaicin) as an insecticide against ants and termites.

The Scoville scale is used to measure pepper "heat." A regular jalapeno scores between 5,000 and 10,000 units on the Scoville scale of pepper hotness based on the amount of the chemical capsaicin, and a regular habanero averages around
300,000 to 400,000 units. Texas A&M's mild version registers
only 2,300, or barely one-hundredth of its coolest
formidable namesake.

There has been an attempt in Mexico, to trademark
the Yucatan habanero in the same way, say, that the
French protect Champagne and Cognac.

Capsaicin is being studied as a stroke preventive.
Other chemicals in peppers were potent antioxidants
and protected against macular degeneration.

Sunday, November 21, 2004

Gillette files DJ action in D Mass over Hummingbird Flosser

Gillette filed a declaratory judgment action on Nov. 12, 2004 in federal court in D. Mass., seeking a declaration that three patents licensed to Water Pik by Dane Robinson/Skyvision are not infringed or invalid.

This action relates to an electric dental-flossing device, which
Gillette began selling in March 2004 as the Oral-B Hummingbird Power Flosser and Pick.

Friday, November 19, 2004

Coolsavings.com wins in Catalina Marketing case

Catalina alleged infringement of claims of US 4,674,041 by coolsavings.com. In this second visit to the Federal Circuit (Catalina-I is 289 F3d 801 (CAFC 2002)), four claim terms were at issue. The Federal Circuit sustained the district court's interpretation and Catalina lost.

Two of the terms at issue were means plus function terms, and the (unpublished) decision illustrates how such claiming can be problematic when few structures are recited in the specification.

Patent applications for new ways to keep unrefrigerated tortillas fresh

Of further examples of the Bayh-Dole Act, Ralph Waniska of Texas A&M University is filing patent applications on new ways to keep unrefrigerated tortillas fresh.

Two of the methods involve ways to make tortillas thinner, with the knowledge that thinner tortillas stay fresh longer.

A third method involves the use of an enzyme otherwise used to produce high fructose corn syrup. Waniska finds that the use of this enzyme makes the proteins in the tortilla function more effectively to hold up the tortilla structure.

Waniska has a colloboration with Iowa State University to make tortillas that last four years without refrigeration.

And, yes, there is a use. NASA has been using flour tortillas since the early days of the space shuttle, because they make few crumbs to get lost in zero gravity. NASA would like longer lasting tortillas. One of the favorites is apparently peanut butter and jelly tortilla sandwichs. Hmm... is this a prior public use or an infringement of the crustless peanut butter-and-jelly sandwich covered within U.S. Patent 6,004,596 for a "sealed crustless sandwich."

[I didn't find Waniska's applications on the USPTO database, but there are other tortilla applications: 20040191378, 20040105925, 20040071854, 20030066106. Did find reference to papers: Mitre-Diestre, C.M., Ames, N.P., Rooney, L.W. and Waniska, R.D. 2001. Effect of amulose and -glucan content on barley tortilla properties. Tortilla Industry Association Technology Meeting. Los Angeles, California, May 2001; Gomez, M. H., Rooney, L. W., Waniska, R. D. and Pflugfelder, R. L. 1987; Dry corn masa flours for tortilla and snack production; Cereal Foods World. 32:372.]

[For a listing of articles on the Bayh-Dole Act, see

Testimony of David Graham before Senate Finance Committee on drug safety

In testimony before the Senate Finance Committee on November 18, 2004, David Graham raised issues about the safety of the drugs Meridia, Crestor, Accutane, Bextra, and Serevent. [AP report, for example, Trenton Times, C9, Nov. 19, 2004.] The corresponding drug makers have defended the safety and use of these drugs.

Graham asserted that the FDA's Office of New Drugs (Sandra Kweder, Deputy Director) maintains a drug is safe unless reviewers establish ith 95% certainty that it is not.

The CEO of Merck has noted that his wife took VIOXX until the date of withdrawal.

Anchen files ANDA for Wellbutrin XL (buproprion)

Taiwan-based generic company Anchen Pharmaceuticals has submitted an abbreviated new drug application (ANDA) to the FDA for Biovail's Wellbutrin XL (once daily dose of bupropion for depression).

Litigation over bupropion has been extensive. Current issues are NOT about the drug itself (the composition of which is off patent) but about the formulations for controlled delivery of the drug. The Excel and Impax decisions of the Court of Appeals for the Federal Circuit have involved interpretation of the foreseeability prong of the US Supreme Court decision in Festo (535 US 722 (2002)).

Wellbutrin is a drug used to treat depression, but the underlying chemical is also used for smoking cessation (marketed as ZYBAN). Of depression, the chemical is different from Paxil, Prozac and Zoloft, and as a result, Wellbutrin can often successfully treat people with depression whose condition has not improved from taking these other drugs.

Although the chemical of Wellbutrin and Zyban has been off patent as a composition of matter for a long time, in 1995 Glaxo received a patent for the extended release formula of Wellbutrin SR. In 1999, generic drug manufacturer Andrx filed two ANDAs with the FDA seeking to sell generic versions of extended release Wellbutrin and Zyban. Andrx argued that because its generic used a different method of extended release, that it did not infringe on Glaxo's patent. Four other generic manufacturers followed Andrx's lead, and several have received tentative approval to manufacture and market their generic versions. In February of 2002, the US District Court for the Southern District of Florida ruled that Andrx did not violate Glaxo’s patent and therefore should be allowed to manufacture and market its generics. On appeal, however, the Federal Circuit Court of Appeals held that the district court in Florida erred in its construction of the patent infringement claims.

Glaxo owns U.S. Patent No. 5,427,798 (the ’798 patent) directed to controlled sustained release tablets containing bupropion hydrochloride. Pharmacologically, bupropion (m-chloro--t-butylaminopropiophenone) is a monocyclic aminoketone antidepressant. See U.S. Patent No. 4,393,078 (issued July 12, 1983) (the ’078 patent). These compounds treat depression and inebriation. In addition, they facilitate the cessation of smoking by producing neural stimulation in mammalian systems. See ’798 patent, col. 1, ll. 5-10; ’078 patent, col. 1, ll. 29-39; U.S. Patent No. 3,819,706 (issued June 23, 1974). To avoid the need for multiple dosages with the attendant fluctuations in plasma bupropion concentrations, Glaxo invented a sustained release formulation of the compound. While bupropion hydrochloride itself was separately patented, Glaxo obtained the ’798 patent to protect its sustained release formulation of the drug. Glaxo markets this patented sustained release formulation as Wellbutrin®SR for treatment of depression and as Zyban® for smoking cessation. The key ingredient for achieving sustained release in this invention is hydroxypropyl methylcellulose (HPMC), which is a partly O-methylated and O-(2-hydroxypropylated) cellulose. In oral preparations, HPMC extends drug release by transforming into a gel that swells upon ingestion. The hydrogel state of HPMC releases bupropion hydrochloride from an ingested tablet over a period of time.

The ’798 patent claims a sustained release tablet containing an admixture of bupropion hydrochloride and HPMC. However, many of the claims as originally filed did not recite HPMC as a limitation. During prosecution on the merits in the United States Patent and Trademark Office (Patent Office), the examiner rejected the claims that did not recite HPMC for lack of enablement under 35 U.S.C. § 112, 1. Glaxo amended those claims to overcome the rejection.

The first independent claim of the ’798 patent states:

1. A controlled release tablet comprising 25 to 500 mg of bupropion hydrochloride and hydroxypropyl methylcellulose, the amount of hydroxypropyl methylcellulose to one part bupropion hydrochloride being 0.19 to 1.1 and said tablet having a surface to volume ratio of 3:1 to 25:1 cm-1 and said tablet having a shelf life of at least one year at 59deg to 77deg F. and 35 to 60% relative humidity, said tablet releasing between about 20 and 60 percent of bupropion hydrochloride in water in 1 hour, between about 50 and 90 percent in 4 hours and not less than about 75 percent less in 8 hours.

The WTO angle and TRIPS

Of the Ballmer quote: "Someday, for all countries that are entering the [World Trade Organization], somebody will come and look for money owing to the rights for that intellectual property."

Section 5, Article 27, paragraph 1 of TRIPS recites:

1. Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. (5) Subject to paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.

Paragraphs 2 and 3 don't say anything about business method or software patents.


David Berlind writes: Given the significant overlap between the members of the WTO and the European Union [EU], I'm having a tough time imagining how, if Europe can't uphold patents on software, the WTO can. One poster observed that the EU could take the position that business methods/software are not a "field of technology" or perhaps even "inventions." Further, if the USA did even try to get WTO to force a change in the EPC, the EU would counter-attack with TRIPS complaints about various aspects of the US patent system which currently favour US-based inventors. --> Mutually assured standoff.

Berlind also wrote of the WTO remark: "the easiest way to get rid of a potential customer forever is to sue them. Especially when that customer is a government. Governments usually have pretty big budgets."

Within the US, patent holders have sued customers. Go back to the days of the Selden patent on the automobile. One of the advertising slogans for licensed cars was "Don't buy a lawsuit." Henry Ford said that this tactic by the Selden patent holder (ALM) launched Ford's business. In the pharma business today, many claims on drugs are written such that patients, doctors, and pharmacists could be sued for use of competitor's infringing drugs. For example, this could have happened with omeprazole. But, of course, it didn't. In the area of copyright, there have been some exemplary suits brought by the RIAA against consumer-infringers, but this is tricky business.

A different website gives a different example.

-->Up to now, not many users have faced such threats. When asked for an example of a user actually getting sued over intellectual property rights, Microsoft spokesmen go back four years.

In 2000, Allan Konrad, a computer scientist, sued three dozen corporations, including General Motors, Ford Motor, The Boeing Co., Daimler Chrysler, United Air Lines and Eastman Kodak. Konrad held three patents and ownership to the mechanism of Web-based delivery of information. He went after corporations serving Web information from back-end databases.

"Microsoft worked to get IBM, Sun and AOL, whose products were also implicated, to step in collectively on behalf of our customers. We hired one law firm to defend them, paid the cost of that. The outcome was very positive, the infringement claims were thrown out," said David Kaefer, director of business development at Microsoft. <--

The Register goofs on Microsoft's FAT patents

From Andrew Orlowski in The Register, Nov. 19, 2004:

-->Let's remember too that many software patents are thrown out by the judge. Microsoft's first foray into patent licensing was thrown out by the USPTO itself, when its right to the FAT patents was nullified on the basis of prior art. The explosion of patent filing activity at Microsoft doesn't necessarily indicate an explosion of creativity; and many may be even more fatuous than the FAT patent. For example today (thanks TheoDP) Microsoft has applied to patent the IS NOT operator.<--

Sorry, Andrew, but the action taken by the USPTO as to the FAT patents has NOT nullified or invalidated these patents as of this time. You need to get a better grip on US patent law.

Elsewhere, Andrew suggests that the Microsoft foray is to set up the WTO as an enforcement agent:

-->By adopting the WTO as its intellectual property enforcement proxy, Redmond believes it has a tactic that allows it to prevail without filing a single lawsuit. This has many advantages for Microsoft, as we'll see. But without filing a lawsuit, it's going to prove extremely difficult to convince anyone that the GPL poses a risk to their way of doing business: so many people now depend on it.<--

Andrew does not believe a non-litgious strategy will work in places like China:

-->In China, Linux is considered more expensive than Windows (a pirate copy of Windows, of course) because Linux comes on three CDs rather than one. For Microsoft to compete effectively in a fair market competition against Dragon Linux, it's going to have to produce a version of Windows much cheaper than the $26 cut down version offered in Thailand. It'll have to cut this by an order of ten, or fifty.

So it's in Microsoft's long-term strategic interests to make writing GPL software and using it illegal. Microsoft has already indicated that it can build up its IP patent stream without opening fire. In an interview published last week, Microsoft's director of licensing David Kaefer noted that Microsoft could no longer "look the other way" when companies used its IP, [here] But Kaefer also "... noted that [Marshall] Phelps built IBM's intellectual property business without filing a single lawsuit." [our emphasis] Phelps is the IBM attorney who built up its patent revenues from zero to a billion dollar business in the 1980s. He joined Microsoft last summer.

So how can Microsoft win a patent war without suing anyone? It's hard to conclude that it can, but perhaps that's not the goal. We can certainly see how hard the company wants to avoid a legal fight over the GPL. Tacking the GPL's validity head on in court carries lots of dangers.<--

Andrew captures the essence of the IBM patent strategy:

-->So like Mutually Assured Destruction, the true value of Microsoft's patent arsenal lies in the threat of their use, not their actual use. In any case, what Microsoft seems to be counting on is that the momentum behind the GPL will falter as companies become wary of deploying it.<--

On the politics of world trade:

-->There's much irony to this. The anti-globalization movement arrived in the United States with the extraordinary Seattle protests at the height of the dot.com boom. Panglossian dot com sages huffed and puffed and did their best to ignore it: after all, politics was dead: entrepreneurs were the revolutionaries, and any lessons that conventional economics could tell us were useless in the New Economy. Both markets, and the internet itself, they believed, were "self-correcting".

But the protesters weren't so much against trade, as they were for fair trade, and against a Washington Consensus that sees financial capital ride over the interests of labor everywhere, and developing economies in particular. This is the logic that reduces technically skilled white collar workers in the first world to the state of indentured coolies, and orders developing countries to institute "cost recovery" programs where poor parents must pay for their kids' education. (Former Nobel Prize Winner, and chief economist of the World Bank, Joseph Stiglitz describes how Uganda rebelled against this imposition, with the result that a generation of daughters received an education for the first time, rather than being forced to work on the land as child labor).

So Microsoft's adoption of the WTO as its enforcer may be the moment when the technical community realizes that everything is political, perhaps encouraging them to send their Ayn Rand novels down the crapper.<--