Sunday, December 30, 2007

Of plagiarism, James Bond, and Thunderball

There's a new book by Robert Sellers titled The Battle for Bond (published by Tomahawk Press) which details the plagiarism case AGAINST Ian Fleming over Thunderball.

Part of a review in the Sunday Times states: So, why has nobody written before about the collaboration between the maverick Irish film producer Kevin McClory and Ian Fleming to make what would have been the first 007 film, back in 1960 – with Richard Burton as Bond, and Alfred Hitchcock directing? Instead, it led to Fleming being accused of plagiarism, a bitter court case, betrayals, deaths and broken lives.

The review also suggests that Fleming thought he would overcome the plagiarism charges by virtue of his high status in British society. Such a position would not be inconsistent with the outcomes of the Laurence Tribe matter or the Glen Poshard/SIU matter.

In a different matter, the Yale Daily has some comments on the plagiarism charges by a Yale professor as to Peking University.
These include:

A Yale biology professor who taught at Peking University this fall as part of a joint program between the two schools has accused the Chinese school of turning a blind eye toward plagiarism, raising questions about the academic integrity of an institution that is a central partner in Yale’s internationalization efforts. "

At least it's the "Harvard" of China -- given the stories on plagiarism by a student and prominent faculty at Harvard, the Chinese could be said to be doing their best to live up to that appellation.

One also has:

I doubt Stephen Stearns’s sincerity in fighting against violation of intellectual property right. This is because he was involved in a much greater and even more shameful violation of intellectual property.

In a 2003 publication in Science (300: 1920) which was authored by his former student Martin Ackermann, himself, and his former colleague in Switzerland he cheated the whole world by claiming that “A fundamental question about senescence has not been settled: Which organisms should be senescent, and which should be potentially immortal?” This is an outright lie because I had already published a view that all organisms (including the so-called “immortal” bacteria) are mortal and subject to aging/senescence (see more details at

Due to the deception buried in that 2003 Science publication, western world has regarded Ackermann, Stearns and Jenal as pioneers in studying bacterial aging. But the truth is I was the true pioneer in this research area and has published most on this topic. Jenal (who later became a mentor of Ackermann) should know my study because he was at the same session of the 1997 ASM General Meeting where I presented my discovery of bacterial life and aging to the world for the first time. However, my publications, including a peer-reviewed and SCI-indexed publication in both English (Science in China 42: 64-654, 1999) and Chinese (Science in China 29: 571-579, 1999), were ignored (very likely intentionally) by Ackermann, Stearns and Jenal in their 2003 Science publication. I should also point out that the methodology used in that 2003 Science study was an exact “copy” of my method invention disclose in my 2000 patent application which was open to public in 2002 and granted a US patent in 2004 (US6767734B).

In August this year, I wrote to Ackermann and others (including Stearns) to ask them to do some right things for the truth of scientific history and the respect for others’ intellectual property right after I saw Ackermann et al. continued their lie to the world in another publication (Aging Cell 6: 235-244, 2007). However, none of these “scientists” have answered my criticisms or done any right things so far.

Thus, I was very surprised to see that Stearns would be so “upset” with the “plagiarism” he saw in the term papers submitted to him by the Chinese students. If he does upheld a high ethical standard, why would not he do anything moral regarding his outright lie and credit robbery?

Shi V. Liu

IPBiz responded to a commenter to this post:

Everything you say about Chinese culture might be correct. But that's only half the story.

Beyond doubt, Laurence Tribe of the Harvard Law School plagiarized. Beyond doubt, Glen Poshard, President of SIU, plagiarized. Nothing happened. Merrill, a journalism professor, plagiarized, and many journalists came to his defense.
Thus, of your --But to their culture, plagiarism cannot be a stigma.-- one could say
--But in our culture, plagiarism is not a stigma, either-- Like they say at the Harvard Business Review: plagiarize with pride!

People in the U.S. may talk about the evils of plagiarism, but they don't walk the walk.

In passing, IPBiz did attempt a post at the Yale Daily website on pre-grant damages.

Barack Obama should listen to inventors, not professors, to formulate patent policy

TMCnet has a rather dull post titled: Barack Obama's Technology Position Paper: Part 5 of 5 which includes the text:

The most forthright of Obama's proposals in this section is a plea to Reform the Patent System. He, as do I, agree the current Patent laws stifle innovation by allowing patent trolls to gum up the process.

IPBiz will help the less-informed readers of TMCNet to connect some dots. First, we'll connect the "patent troll" dot [above] through the omitted citation [to Lemley] for gold-plating patents [below] to the entirely unmentioned position of Lemley on patenting laws of nature, a position normally associated with trolls.

The TMC post continues:

Here's what Sen. Obama would like to see in terms of Patent reform:

"A system that produces timely, high-quality patents is essential for global competitiveness in the 21st century. By improving predictability and clarity in our patent system, we will help foster an environment that encourages innovation. Giving the Patent and Trademark Office (PTO) the resources to improve patent quality and opening up the patent process to citizen review will reduce the uncertainty and wasteful litigation that is currently a significant drag on innovation.

"With better informational resources, the Patent and Trademark Office could offer patent applicants who know they have significant inventions the option of a rigorous and public peer review that would produce a "gold-plated" patent much less vulnerable to court challenge. Where dubious patents are being asserted, the PTO could conduct low-cost, timely administrative proceedings to determine patent validity. As president, Barack Obama will ensure that our patent laws protect legitimate rights while not stifling innovation and collaboration."

As discussed on IPBiz, the gold-plating idea has been shopped-around for a while.
Gold-plating patents: been there, proposed that...
Jaffe/Lerner: "Our patent system is the enemy of enterprise" [Note within the post the text: Lemley's backing Metabolite, for patenting laws of nature.]

So, Obama and TMC are "passing off" old, shop-worn goods as some kind of new policy initiative. See also
And, the shop-worn idea comes from a guy who backed a patent claim (in the Metabolite case) that most "reformers" considered patenting a law of nature, which would be the ultimate in patent trollism.

Separately, various reformers have touted post-grant reviews (oppositions) as low-cost, timely administrative proceedings. Christopher Logan wrote in 2005: Currently, patent litigation costs on average about $ 1 million. It has been estimated that opposition proceedings may cost an average of only $ 100,000. This cost difference matters little to the small firm or independent inventor who cannot afford either amount. However, this difference in cost will certainly factor into large corporations' cost/benefit analysis when considering whether or not to challenge a patent, making it more likely that such a challenge will occur. See generally, Post-Grant Opposition: a Bad Idea This becomes another area wherein Obama is dead wrong on the facts.

A problem is that Obama's position is basically copied from that of certain law professors, and manifests no inventive thought by Obama. If Obama is interested in listening to people who are part of the system and drawing from their first-hand experience, maybe he could start by reading what inventor George Margolin has to say.

Saturday, December 29, 2007

Vonage AND Nortel; AND AT&T

CNNMoney reports: Internet phone service provider Vonage Holdings Corp. (VG) and Nortel Networks Corp. (NT) are close to settling their patent spat, and under terms more favorable to Vonage than in other patent cases it settled this year.

A source familiar with the matter said Vonage and Nortel will cross-license each others' technology, which is used to make emergency calls or dial 411. Meanwhile, Vonage won't have to pay Nortel anything for any alleged unauthorized use of its technology.

Reuters reported on a DIFFERENT case: Internet phone service Vonage Holdings Corp said on Friday, Dec. 28 it agreed to settle a patent dispute with U.S. telephone giant AT&T Inc that calls on Vonage to pay AT&T up to $7.8 million a year.

Reuters also noted: Eastman Kodak Co. and Matsushita Electric Industrial Co Ltd (MEI) agreed to settle their patent infringement claims, Kodak said in a regulatory filing on Friday, Dec. 28.

Looking back at Hilton Davis

Following the opinion of the Supreme Court, the per curiam order of the CAFC noted:

This case is back in this court on remand from the Supreme Court of the United States. See Warner-Jenkinson Co. v. Hilton Davis Chem. Co., -- U.S. --, 117 S. Ct. 1040 (1997). In Warner-Jenkinson, the Court reversed the judgment of this court ...


Because of this presumption, we expect that the PTO and applicants will henceforth usually include in the prosecution history express statements of their reasons for requiring or making claim changes or interpretive assertions. Express recitations may not exist, however, in applications prosecuted prior to the Supreme Court’s decision. See Warner-Jenkinson, 117 S. Ct. at 1055 (Ginsburg, J., concurring) (“Years after the fact, the patentee may find it difficult to establish an evidentiary basis that would overcome the new presumption.”). Thus, we conclude that where the prosecution history is silent or unclear the district court should give a patentee the opportunity to establish the reason, if any, for a claim change. See id. (urging the Federal Circuit to “bear[] in mind the prior absence of clear rules of the game”).

IPBiz notes that of the issue of "equivalent: yes or no," the patentee won, with the CAFC writing:

We have reconsidered the pH equivalence issue in light of the Supreme Court’s guidance and hold that there is substantial record evidence to support the jury’s verdict of equivalence. The ‘746 patent claim recites a pH range “from approximately 6.0 to 9.0.” Warner-Jenkinson performed the process using a pH of 5.0.

Separately, IPBiz observes that the text in the amended claim was used because that was the text in the specification for which there was written support. The lower limit of 6 was not needed for prior art, but the upper limit of 9 was lower than that needed to overcome prior art. NEITHER 6 NOR 9 was optimal for the patentee but that it was the patentee had support for.
Of the text --There is no law that says if one discloses a range, then both ends of the range must be incorporated into any related claim. Furthermore, even if some court ultimately did decide this, at the time of prosecution one should not assume that outcome.-- how about 35 USC 112 P1, which is probably what the patent prosecutor ran into when he/she had to amend? There has to be written description support for a claim amendment, and a range 6-9 is not the same thing as less than 9. The patentee was forced into the 6-9 range by the examiner, long before any court looked at this. This is why experienced prosecutors include ranges which express alternative embodiments.

And this of course doesn't answer the real question: if 6-9 was forced because of 112, and not because of 102/103, was that related sufficiently to patentability to invoke estoppel? That question was never answered in Hilton Davis.

Internet used to help inventors raise cash

The following was received from Andrew Knight:

Just wanted to let you know about the world's first online invention
market where members of the public can purchase shares in individual
inventions. It's called USIPE (the U.S. Intellectual Property Exchange) and
our information website is up and running.

We are targeting the inventors of the world, and if you have a chance,
please take a look at

Basically, you post your invention, and members of the public (called
Believers) can invest in shares of your invention, to help you raise
enough cash to get a patent. It's the first of its kind.

Since LOTS of inventors read your blog, do you think they'd be
interested in knowing about this invention market?

Kind regards,
Andrew Knight, J.D., Registered Patent Agent

Relevant previous posts on IPBiz:

U.S. forbids loose lithium batteries in baggage on air flights after 1 Jan 08

AP reports: To help reduce the risk of fires, air travelers will no longer be able to pack loose lithium batteries in checked luggage beginning Jan. 1, the Transportation Department said Friday, Dec. 28.

Passengers can still check baggage with lithium batteries if they are installed in electronic devices, such as cameras, cell phones and laptop computers. If packed in plastic bags, batteries may be in carryon baggage. The limit is two batteries per passenger. [The ban includes NON-rechargeable lithium batteries.]

The AP mentioned a fire at the Philadelphia airport ("The National Transportation Safety Board earlier this month said it could not rule out lithium batteries as the source of a cargo plane fire at Philadelphia International Airport last year."), but did not mention a fire at LAX.


Friday, December 28, 2007

Contract issues concerning former West Virginia University football coach

Bloomberg reports: Alex Macia, vice president for legal affairs at West Virginia University [WVU], said in a telephone interview that comments saying the contract [between WVU and Coach Rodriguez] wasn't valid were made by people who said they spoke for former football coach Rich Rodriguez and that he didn't contradict those statements.

"If he believes he's bound by the contract, we'd certainly welcome the payment of one-third of the buyout," Macia said. "That would go a long way toward resolving this lawsuit."

The suit says that the Morgantown-based school fulfilled its newest obligations under Rodriguez's contract, including a $100,000 increase in assistant coaches' salaries and improvements to the football team's headquarters. Rodriguez, who signed a new deal in August after turning down an offer from Alabama in December 2006, never notified university officials in writing of any breach of the contract, which the agreement required, the suit said. It added that Rodriguez never received permission to speak with Michigan officials.

IPBiz notes that Rodriguez was not the first choice at the University of Michigan. Further, Rutgers coach Schiano decided to stay put.

Could a suit against the University of Michigan be next?


Karen Kiley of WBOY interviewed lawyer Drew Capuder who noted the following:

"Its a simple complaint in that it focuses on the buy-out clause on the second amendment of last year," said Drew Capuder.

The buy-out clause is for $4 Million, to be paid by Rich Rodriguez personally if he leaves West Virginia University before August 2008.

"They're suing for that $4 Million, claiming WVU did everything it was required to do under contract and the coach left for no good reason other than the fact the coach got a better offer," explained Caputer.

"They [WVU] will probably argue that this is a WVU matter for WV courts to decides it's a contract between coach and university so the state courts to be the appropriate venue to decide dispute," explained Caputer.
The case can only become a Federal case if Rodriguez is no longer a resident of West Virginia, a fact the University maintains, and Rodriguez will likely dispute.

[IPBiz note: that is WVU will maintain Rodriguez IS a WV resident, so that there could not be diversity jurisdiction under federal law.]


Of the "big bucks" associated with college football, note the following from

It's a well-kept secret that amid all the festivity, bowl games rarely pay for cost of the schools attending them. According to a recent Orange County Register article, Florida and Ohio State each finished more than $600,000 in the red last year from travel expenses to the national title game. The PetroSun Independence Bowl's $1.1 million payout to each school might sound immense, but with the average program expenditure for a non-BCS bowl game sitting at $937,834, Alabama and Colorado will be fortunate to break even on games.

OC Register on patent reform

The OC Register has an opinion piece on patent reform which includes the text:

According to several Washington insiders, there was great pressure to pass the patent-law changes quickly. Some lawmakers are questioning the motives behind the law and the rush to passage.

"This bill was clearly rammed through by the wealthiest of transnational technology companies," Rep. Dana Rohrabacher, R-Huntington Beach, said in a phone interview. "This bill should be renamed the Steal American Technologies Act."

IPBiz notes that no one has presented any cogent argument to validate the "second window" of post-grant review. If bad patents are being issued, the "quality" response is to correct the examination process, not to add another layer of "inspection." The "second window" operates to favor infringers with more resources over smaller inventors.

Thursday, December 27, 2007

Shulman digging up old bones in the Bell/Gray saga

Broadband has a post titled: Alexander Graham Bell: Patent Thief?, which links to an AP article (by Brian Bergstein) boosting a new book by Seth Schulman:

In "The Telephone Gambit: Chasing Alexander Graham Bell's Secret," journalist Seth Shulman argues that Bell — aided by aggressive lawyers and a corrupt patent examiner — got an improper peek at patent documents Gray had filed, and that Bell was erroneously credited with filing first.

Readers of IPBiz may be familiar with some of the questionable omissions of Shulman in a previous book on the Wright Brothers.
See "Unlocking the Sky": missing a few facts?

For smoking guns, the AP story notes:

As Bell described that new approach, he sketched a diagram of a person speaking into a device. Gray's patent documents, which describe a similar technique, also feature a very similar diagram.

Shulman's book, due out Jan. 7, recounts other elements that have piqued researchers' suspicions. For instance, Bell's transmitter design appears hastily written in the margin of his patent; Bell was nervous about demonstrating his device with Gray present; Bell resisted testifying in an 1878 lawsuit probing this question; and Bell, as if ashamed, quickly distanced himself from the telephone monopoly bearing his name.

The story of Bell, Gray, and Meucci is an old one, and may be found at many places on the internet.

One could start here-->

Bell's notebook is on the internet.

Elsewhere, IPBiz questioned Bell's role in creating, and awarding, the Langley Prize to the Wright Brothers, which was the forerunner of giving an Edison Prize to Tesla.

More on the Sinorgchem case

Claim 30 of US Patent 5,117,063, at issue in the Sinorgchem case, contains the text:

A method of producing 4-aminodiphenylamine (4-ADPA) comprising the steps of:

a) bringing aniline and nitrobenzene into reactive contact in a suitable solvent system;

b) reacting the aniline and nitrobenzene in a confined zone at a suitable temperature, and in the presence of a suitable base and controlled amount of protic material to produce one or more 4-ADPA intermediates; and

c) reducing the 4-ADPA intermediates under conditions which produce 4-ADPA.

The first sentence of the "summary of the invention" states:

The present invention is directed to a method of preparing 4-ADPA intermediates, namely 4-nitrodiphenylamine (4-NDPA) and the salts thereof, and/or 4-nitrosodiphenylamine (p-NDPA) and/or the salts thereof, wherein aniline and nitrobenzene are brought into reactive contact in a suitable solvent system, and then reacted in the presence of a base and under conditions wherein the amount of protic material, such as water, is controlled.

The DISPUTE arises over text in the "detailed description":

A "controlled amount" of protic material is an amount up to that which inhibits the reaction of aniline with nitrobenzene, e.g., up to about 4% H.sub.2 O based on the volume of the reaction mixture when aniline is utilized as the solvent. The upper limit for the amount of protic material present in the reaction varies with the solvent. For example, when DMSO is utilized as the solvent and tetramethylammonium hydroxide is utilized as the base, the upper limit on the amount of protic material present in the reaction is about 8% H.sub.2 O based on the volume of the reaction mixture. When aniline is utilized as a solvent with the same base, the upper limit is 4% H.sub.2 O based on the volume of the reaction mixture. In addition, the amount of protic material tolerated will vary with type of base, amount of base, and base cation, used in the various solvent systems. However, it is within the skill of one in the art, utilizing the teachings of the present invention, to determine the specific upper limit of the amount of protic material for a specific solvent, type and amount of base, base cation and the like. The minimum amount of protic material necessary to maintain selectivity of the desired products will also depend on the solvent, type and amount of base, base cation and the like, that is utilized and can also be determined by one skilled in the art.

IPBiz notes that the number 4% is preceded by the notation e.g.

Footnote 4 of the case, describing a purported "complex" calculation, is a gem of obfuscation by the majority. All in all, Judge Newman has the better of the legal arguments, and illustrates the inappropriate caselaw relied upon by the majority. The credibility of the majority, in dismissing Example 10 and its significance, might be questioned. In any event, this case is an important one to remember, and to learn from. Good lawyers have to work to insulate their clients even from bad legal analyses.

In terms of a message for patent prosecutors, one should never set off language limiting a claim element in the format:

A "controlled amount" of protic material is an amount up to that which inhibits the reaction of aniline with nitrobenzene, e.g., up to about 4% H.sub.2 O based on the volume of the reaction mixture when aniline is utilized as the solvent

in which the claim element is in quotes, one has the verb "is", and one has e.g., followed by a number. The SAME information could have been conveyed in a NON-LIMITING way.

IPBiz is puzzled by the lack of discussion of the accused infringing method. In the background section of the decision, the majority says of the accused process "aniline is a solvent," NOT aniline is THE solvent. The language relied upon by the majority REQUIRES that aniline be THE solvent. Further, in the same section, one has the rather clumsy sentence:

The amount of water used ... is at least 10 to 15% water throughout the reaction.

Who wrote this?

A commenter to an earlier IPBiz post wrote:

Whether that is a good or bad thing, the implication for ppl who write patent claims is pretty clear: don't put in a numerical limitation in your claims (either directly or through lexicographic language in the spec), unless there a specific, known prior art that requires it to be there. Again, for better or worse, there is a lot of hostility toward patents out there these days. The old saving doctrines won't save you anymore.

IPBiz respectfully disagrees. If the drafter of the Flexsys application had utilized numerical limits in the specification as limits were presented, for example, in the Hilton Davis case, there would not have been this problem. Having numerical ranges is a good thing, both to avoid (later-uncovered) prior art and to avoid indefiniteness problems (as were raised in the Sinorgchem case). In the Hilton Davis case, the patentee amended to INCLUDE numerical ranges, which allowed issuance, and, in the end (lest we forget) allowed the patentee to WIN the case under the doctrine of equivalents.

Disclosure of known ranges is a GOOD thing. The problem with the Flexsys patents was the WAY in which the numbers were disclosed, NOT that they were disclosed.

On the reliability of Wikipedia for prior art in patent analyses

A 20 Dec 07 post on patently o has some comments concerning the use of wikipedia at the USPTO:

Maybe you can show that a page was created on a certain date, but it could have been modified yesterday. Thus, proof that a page was "published" on a certain day, is not proof that it was published in its anticipatory form on that day. It could have easily been modified into an anticipatory form. Wikipedia is an example of an evolving "publication."


CaveMan is missing part of the puzzle, however. Wiki's tend to keep track of changes, and archives the way a page looked at a particular point in time. At least does this. So if you wanted to see what the Coca-Cola wiki page looked like on Feb 10 of this year, go to:


I know that the examiners are encouraged to use the Internet Wayback Machine to determine the date of an online reference, but citing Wikipedia in an Office action is forbidden due to unreliability. Has Wikipedia been cited in an appeal or in litigation?


I must say that Wikipedia seems extremely reliable to me on most scientific issues, at least as reliable as other references that are allowed (offline and online encylopedias). If anything, the problem is that wiki is not detailed enough.

I recently encountered a PTO patent disclosing a homeopathic administration that is vastly more unreliable than the wikipedia article re same.

Bottom line: the ban on Wiki citations is bogus. [post by Malcolm Mooney]


What is interesting to me is that while examiners may be able to rely on anything that may prove anticipation or obviousness, e.g., a wayback machine entry dated before the critical date, the same evidence is - at this point - unlikely to be admissible in court due to hearsay issues.

AFAIK, the wayback machine has overcome hearsay objections in only one case (Telewizja Polska United States v. Echostar Satellite Corp., 2004 U.S. Dist. LEXIS 17876 (N.D. Ill., 2004)). Granted, I last looked into this about two years ago, but at the time there were a number of cases vehemently deriding the Internet in general as being completely unreliable to prove something was published on a given date due to the potential for hacks, modifications, etc.

The discrepancy between what an examiner can use to determine pre-grant patentability and what is admissible in court to invalidate an issued patent is what I find truly interesting. It makes a case for re-exam in attacking a patent's validity.

Let me just say that Wikipedia is one of the most biased and in many casess plainly falsified information sources whenever patents come up

Sooooooo many little nice folks like you Mooney out there typing on little keyboards...

You are sitting at the kiddies table tonight, Malcolm Mooney !!!

Business Week (9/4/2006 Issue 3999, p12) reported that the United States Patent & Trademark Office will no longer accept Wikipedia entries as "accepted sources of information"

An interesting article title "Kicking Wiki Out Of The Patent Office" (see, quotes Patents Commissioner John Doll stating "[t]he problem with Wikipedia is that it's constantly changing . . . " The article further quotes a USPTO spokesperson, who state "We've taken Wikipedia off our list of accepted sources of information."

It is important to note that this article is over a year old.

[End patently o comments]

IPBiz further notes the following from patentlibrarian.blogspot:

According to the Sept. 4 issue of Business Week, the USPTO has recently banned Wikipedia as an acceptable source of information for determining the patentability of inventions. Patent examiners and applicants have been citing Wikipedia articles in patents since at least November 2003... and not very many of them at that. A quick search of the USPTO's patent database reveals that from January 2004 to the present only 74 patents cite Wikipedia articles. Compare that to 33,802 references to IEEE (Institute of Electrical and Electronics Engineers) publications. Other science and engineering publishers heavily favored by patent examiners and applicants include:

Association of Computing Machinery = 6,010
Elsevier = 4,493
Springer Verlag = 2,319
McGraw-Hill = 2,728
Chemical Abstracts Service = 2,274
Oxford Univ Press = 781
Society of Automotive Engineers = 968
American Society of Mechanical Engineers = 850
Society of Petroleum Engineers =706
Cambridge Univ Press = 639
Wiley Interscience = 545
MIT Press = 403
ASTM = 498
American Institute of Chemical Engineers = 207

Wikipedia did beat its arch rival Encyclopedia Britannica, which was cited in only 47 patents in the same time period.

Of the comments of "Malcolm Mooney", IPBiz notes text from a previous post on IPBiz:

Notice that Wikipedia writes of Edison's U.S. patent 223,898: Edison continued to improve this design and by Jan 20, 1880 had U.S. patent 223,898 for a lamp that could last over 1200 hours using a carbonized bamboo filament.

IPBiz to Wikipedia: try reading US 223,898 and see if you find the word "bamboo."

None of the commentary on patently o came to grips with issues presented in Internet Publishing: Online Today, But What About Tomorrow Or Where Have You Gone, 406,302?

Through the wonders of third-party copying on the internet, this text can also be found at,_But_What_About_Tomorrow_Or_Where_Have_You_Gone,_406,302_517620x1146036883.htm

***In passing, IPBiz notes that the key patent of the Wright Brothers, US 821,393, was filed March 23, 1903, about NINE months BEFORE the flight on December 17, 1903.

****Of Edison and US 223,898, see also a picture of Lamp #4 from the Edison Collection, one of the Tar-putty lamps made in accordance with the description in Edison's fundamental lamp patent. Also: John W. Howell.

Confusion among the "community patent review" folks

IPBiz came upon "10 Things 2007" which includes the following text about Community Patent Review (CPR) [aka peer-to-patent]:

Currently, third-party input into patent issuance is quite limited. All input must be made by mail, within a two-month window, without commentary, at a cost of $180 per mailing. The patent examiner cannot respond to the commenter except to process the fee, and commenters are not allowed to discuss to which aspects of the invention their prior art pertains. The comment process is not very popular; there were less than one hundred comments filed in 2005. The procedure is quite different in other countries, especially in those that use a registration model rather than a validation model. In Japan, there is a post-grant opposition procedure in which patents can be ruled invalid based on comments from the public. In the European Patent Community, there is a period of time in which patents can be challenged before they take full effect. Although the post-grant opposition documents are open to the public, no countries currently have an online system for review of post-grant applications. In a way, CPR can be viewed as a step toward harmonizing world patent systems, in that it provides a mechanism for pre-grant review that is similar to other nations’ post-grant review procedures and also provides a possible prototype for future post-grant processes. In addition, as mentioned by Silicon Valley intellectual property attorney Judith Hom, United States trademark law has post-grant opposition procedures similar to CPR. In this way, CPR can also be viewed as a step toward harmonizing these currently disparate aspects of domestic intellectual property law.

With CPR-rated patents, applications will be posted online during the pre-grant review period and will be viewable by the public, who can then comment on the patents and submit prior art. Everyone can view these comments, and commenters themselves will be rated for their contribution. The top ten comments, ranked according to an algorithm designed by Paul Resnick, a professor at the University of Michigan’s School of Information, will be submitted to the USPTO. CPR software uses current “best of breed” practices of the internet, including’s reputation ranking system (to rank both the contributions of reviewers and the reviewers themselves),’s collaborative filtering (e.g., “people who submitted prior art for this patent also read Patent X”), Wikipedia’s flexibility of editing (for patent comments), and the common “Web 2.0” feature of tagging items with colloquial terms in a “folksonomy” to promote easier access to information (e.g., “a device classified under Class 438 Semiconductor Device Manufacturing might be tagged as a ‘chip’”). The system will also allow a variety of participation options, with a varying level of commitment, including “rating patent claims, submitting examples of prior art, commenting on prior art submissions, ranking prior art submissions, and rating other contributors.” The system would not include a direct way to contact the examiner, as current law does not allow examiners to communicate directly with the public, but could theoretically open the door to more collaborative processes in the future.

IPBiz notes the following posts on IPBiz which might be contemplated:

Separately, one notes the article Inadvertent Argument Against Peer-to-Patent

UPDATE (to be filed under "snore"):

IPBiz got an email which included the text-->

IBM has a processor patent application posted on the Peer to Patent site ( which has only 13 days remaining and no prior art posted! We would like to invite reviewers to submit prior art and annotations on this application and are asking for your assistance in helping us to identify bloggers, organizations, or individuals who may have a special interest in the topic of this application. IBM’s application (#20070220238) for a dynamic readjustment and interpolation of progress in the execution of multi-step program by a computing device is posted on the Peer-to-Patent site here -

Google's knol to compete with Wikipedia?

The Christian Science Monitor notes differences between Google's knol progject and Wikipedia:

#1. Author-centric in knol

"The key idea behind the knol project is to highlight authors," writes Google's Udi Manber on the company's official blog:

"Books have authors' names right on the cover, news articles have bylines, scientific articles always have authors – but somehow the web evolved without a strong standard to keep authors names highlighted. We believe that knowing who wrote what will significantly help users make better use of web content."

#2. No reader editing of knol entries

Another difference with Wikipedia is that readers will not be able to edit knol entries. But they will be able to rank them, and these rankings will be interpreted by Google's search engine when displaying results. Udi Manber says he expects to see competing entries on the same topic. "Competition of ideas is a good thing," he writes.

#3. Revenue for knol authors

Manber writes that author can choose to have advertising on their entries. He writes that Google will offer "a substantial revenue share from the proceeds of those ads." Wikipedia, by contrast, is run by a nonprofit foundation and edited entirely by unpaid volunteers.

The CSM also notes a conflict of interest issue for Google:

McGuire describes what he sees as a "conflict of interest" in Google's dual role as a search engine and content producer, and he suspects that Google will favor its own content over other sites in its search results.

CSM also notes:

Google says only that it will rank the knols "appropriately" when they appear in search results. Manber says that Google does not want a "walled garden of content"; it will make knols available to other search engines.

If the copyright information on Google's screenshot is any indication, knols will be copyrighted under a Creative Commons license that allows others to copy, distribute, and alter the entry, so long as the original authorship is attributed. The license is similar to Wikipedia's license.

IPBiz recalls that law review article with the words "walled garden" in its title.

Note also previous IPBiz posts:

***UPDATE. 26 Jan 09, from alleyinsider

it's full steam ahead for Knol, Google's would-be Wikipedia of research and how-to articles. This weekend, Google announced a Knol contest with $1,000 for the best entry and some cross-promotion with

We're not sure what the thinking here is. We're still not even sure what Knol is for. For a how-to, like performing car maintenance, we'll go to a site that's run by car-fanatics. For general knowledge, Knol can't come close to touching Wikipedia. If anything, Knol seems to have a reputation for nothing so much as plagiarism, ignorance, and self-promotion.

We admire Google's willingness to experiment with new ways to build cool (and potentially profitable) features onto their existing service. And we admire Google's willingness to realize when their experiments have failed and shut them down. So why still back Knol?

More money in stamps than in intellectual property?

A stamp, bearing an image of an inverted Jenny biplane, is probably worth more than a Jenny itself.

AP reported:

The rare 1918 24-cent stamp, depicting an upside-down Curtis JN-4 biplane known as "Jenny," was sold privately this week to a Wall Street executive who did not want to be identified.

Heritage Auction Galleries president Greg Rohan, who brokered the [$825,000] sale, said the buyer is the same collector who lost an auction last month in which another "Inverted Jenny" sold for $977,500. Rohan said his client, whom he described as not being a rare stamp collector, was glad to get another chance at the prized misprint.

IPBiz had previously noted the interrelation of the Jenny to the intellectual property policy of CIRM:

In an IPBiz post on May 28, there was discussion of a CIRM document from an April 27 meeting of CIRM's IP Task Force: There was a conclusion about the U.S. aviation patent pool in World War I: "and that's what led to fighter planes being built for World War I."

IPBiz noted that there were no U.S. - built fighter planes ever used in World War I. For example, US ace Eddie Rickenbacker flew Nieuport 28 and SPAD XIII aircraft (French).

If we soften this inquiry to Weren’t there U.S.-built planes involved in the war?, the answer may be yes. The Jenny (the Curtiss JN-4) in some sense was "involved" in World War I as a trainer. However, the Jennies were not the planes going up over the lines.

CIRM: waiting to spin a bad story, or hiding an empty cupboard?

Californiastemcellreport, a blog written by a former reporter, continues coverage of CIRM and Proposition 71 from the viewpoint of a reporter. Thus, of the recent non-discussion by CIRM of grant applications by private entities, the report notes:

The California stem cell agency Friday [Dec. 21] declined to disclose the numbers that would provide some indication of how businesses are responding to the agency's first-ever attempt to solicit grant applications from the private sector.


Often when public agencies delay the release of information, it means the information is negative and reflects poorly on the bureaucracy in question. Other times, it can mean that the agency is trying to figure out how to spin the information. We suspect the latter is what is occurring in this case.

IPBiz notes that the fundamental problem with CIRM and the private sector is that CIRM refuses to develop a coherent policy on intellectual property arising from CIRM funding. The big question isn't spinning a bad story, but rather not developing policy.

IPBiz had earlier noted:

At this late date, CIRM has not come up with an intellectual property policy. As a result, "home run hitters" like Yamanaka are not even using CIRM funds, and California taxpayers will have to pay for the "home runs" of these guys. The "singles hitters" are stumbling over themselves to grab some Prop. 71 loot, and, as we have witnessed, don't even care about conflict-of-interest policy.

Even for the home run hitters, the chances of therapeutic uses for embyronic stem cells on a ten year time scale are remote. For the singles hitters, well .... There's likely nothing at the end of this rainbow.

Wednesday, December 26, 2007

Fifth pathway of carbon fixation

Page 1732 of the Dec. 14 issue of Science contains an article by Thauer titled "A Fifth Pathway of Carbon Fixation." It discusses autotrophs including cyanobacteria and mentions the Calvin cycle, including RuBisCO (ribulose 1,5 bisphosphate carboxylase oxygenase). Reference is made to the article by Berg appearing at page 1782 of the Dec. 14 issue.

The Dec. 14 issue also contains an article by Hoegh-Guldberg et al which discusses the impact of higher CO2 levels on coral reefs (318 Science 1737). The text includes:

Sea temperatures are warmer (+0.7degC), and pH (-0.1 pH units) and carbonate ion concentrations (about 210 micromole per kg) are lower than at any other time during the past 420,000 years.

Many experimental studis have shown a doubling of pre-industrial [Co2] to 560 ppm decreases coral calcification and growth by up to 40% through the inhibition of aragonite formation as carbonate ion concentrations decrease

There is discussion of when "carbonate ion concentrations drop below 200 micromole per kg.

Google loses a bit in Hyperphrase case before CAFC

In the nonprecedential case Hyperphrase v. Google, the CAFC affirmed-in-part, vacated-in-part, and remanded a case from WD Wisconsin, which concerned possible infringement by Google concerning the products AutoLink and AdSense.

The term at issue was "data reference." The CAFC found that the district court improperly imported from the specification the limitation that the data reference only refer to one and only one possible data record. In finding an "improper importation" from the specification, this case is a counterpoint to the Sinorgchem case. As in Sinorgchem, the CAFC found that the patentee opted to be his own lexicographer (the CAFC citing CCS Fitness v. Brunswick, 288 F.ed 1359). The CAFC also noted that a claim construction that excludes an embodiment is usually incorrect, citing to both Vitronics and SanDisk (415 F3d 1278). Innova (318 F.3d 1111) was cited for the warning against improper importation of limits from the specification into the claims.

Jay Kesan was of counsel on hyperphrase's brief.

Blogging for dollars?

AP has an article which includes the text:

The site,, is just a year and a half old and gets only about 2,000 readers daily, but it's already earning him [Zach Brooks] enough each month for a weekend trip to the Caribbean — or in his case, more fat-filled culinary escapades in the city.


It's no longer unusual for blogs with just a couple thousand daily readers to earn nearly as many dollars a month. Helping fill the pockets of such bloggers are programs like Google's AdSense and many others that let individuals — not just major publications — tap into the rapidly growing pot of advertising dollars with a click of the mouse.


Brooks only spends two hours at most each day on But the blog affects his life in other ways. Like Chi, he's met close friends through his site. He has also scored freelance writing assignments, and, above all, the site has given his endless fascination with greasy foods a sense of validation.

IPBiz notes that there is likely more interest in lunches served for $10 or less, in midtown Manhattan ( preferably greasy, and if lucky, served from a truck), than in intellectual property. Maybe that shouldn't be the case, but folks in midtown Manhattan are more likely to eat lunch than encounter a patent, even though they are impacted by more patents, on a daily basis, than they are by pastramis-on-rye.

"Bernie's Blog" on patent reform

IPBiz notices that "Bernie's Blog," in a discussion of the need for patent reform, references the article by Bessen and Meurer without mentioning the criticisms thereof.

See a recent post on patent reform at patent docs, which mentioned that Senator Leahy:

intended "to seek and hear the views of any and all parties and to include all interested staff and Senators," while asserting that "[t]his will continue to be an open and deliberative process, with the goal of favorable Senate action as early as the floor schedule permits."

IPBiz hopes that Leahy's pledge is more meaningful than Howard Berman's.

See also

Packing Heat, Not Light on Leahy and Hatch.

Sunday, December 23, 2007

Forceful Newman dissent in Sinorgchem vs. ITC

By a 2-1 vote, the CAFC reversed the ITC on a claim construction issue ("controlled amount"), vacated, and remanded.

Flexsys, the patent holder, went after Sinorgchem. The compounds in question are p- phenylene diamines [PPD] and the particular issue was the scope of "a controlled amount of protic material."

Interestingly, the CAFC cites to Durel v. Osram, 256 F.3d 1298, a case in which the CAFC corrected a garish chemical error by the district court (using atomic numbers instead of atomic weights to calculate stoichiometry).

Judge Newman dissented in Sinorgchem. An important sentence: "The panel majority promotes the number that is described for one condition, to a limit under all conditions, contrary to the specifications."


The prior art at issue in Warner Jenkinson v. Hilton-Davis was at highly basic conditions. The adoption of the limitation of pH 6-9 in the claim arose because that range was explicitly recited in the specification. In the end, the patentee won under the doctrine of equivalents.

Judge Newman's concern was that the numerical limitation adopted by the panel majority was a limitation ONLY for one situation, not for all situations, as other examples in the specification illustrated. In Sinorgchem, the patentee did NOT place the numeric limitation in the claim.

Saturday, December 22, 2007

Electronic documents as prior art at the USPTO

Patently-O has a post on --When is an Electronic Document a Printed Publication for Prior Art Purposes?--.

Don't think Patently-O discusses how the USPTO changes ITS documents, as discussed in
Internet Publishing: Online Today, But What About Tomorrow Or Where Have You Gone, 406,302?

Don't think there's a discussion of the Sikahema effect either.

One IPBiz reader wrote:

Don't you think this publication of YOURS, is a bit devious? You mildly go after Patently-O, by referring to an article on a website...but then YOU are the author of the "new" article? Come on, fess should have mentioned in the IPBIZ post, that YOU had a response on the ezinearticles website.
After all, you could be Sikahema'd by ezinearticles, but you would have provided no support for your IPBIZ ref, you would be the guilty party.


And [IPBiz] "contributes" (or has put himself vulnerable to being a victim) of the same event-ironic, huh?

IPBiz notes that LBE did write the article about how the USPTO changed numbers in an internet-based annual report of USPTO productivity. Further, the USPTO did NOT mention in the later version that they were altering numbers published in the prior version. "But for" the numerous references in the published literature to the numbers of the prior version, the alteration might have gone unnoticed.

Separately, articles written for ezines are frequently copied by others, sometimes crediting the original author, sometimes not. Such copying diminishes the impact of a possible Sikahema. In the case of Alcatel deleting the "Bell Labs" - based copy of the Beasley report on Jan-Hendrik Schon, a different website is currently hosting a copy of the Beasley report. Of course, if this were "prior art" being used by the USPTO, one suspects there would be issues of "when" the initial report (no longer on the internet) was published, whether there were continuity with the later report on a different website, and in fact whether the later report were an authentic copy of the initial report. There's lots to worry about.


Of the comment below, IPBiz suspects Vai Sikahema (and/or station management) knew they would not be retaining references to the Vai's View titled "Rutgers is Wrong" on the station's website.

Even on the day of the presentation, the expression of Vai's fellow correspondent at the end of this Vai's View suggested this one was problematic, becoming a goner when the Rutgers football team enjoyed success after August 2006. The presentation was both abrasive (at the time it was made) and non-prophetic (becoming clearly wrong after the 2006 season played out).
Whether Rutgers made good choices as to the abandonment of other sports may be questioned. HOWEVER, Vai's idea that it was all right for the Ohio State's of the world to invest heavily in football programs, but not for Rutgers, was simply wrong.

Separately, one notes that Vai doesn't talk about his theory any longer, either.

CNN: "Cat fight brews over litter patent"

AP notes that Applica of Miramar, FL has filed a complaint at the ITC naming Lucky Litter LLC, based in Chicago; Doskocil Manufacturing Co. Inc., of Arlington, Texas and OurPet's (OTCBB:OPCO) Company of Fairport Harbor, Ohio, as infringing a patent in the cat litter area.

The AP article gets into the injunction power of the ITC: "it could ultimately block the imports, leaving pet owners with fewer options in the high-tech cat litter department."

Friday, December 21, 2007

Patent reform: just found on pharma's radar???

Patent Docs has a Dec. 20 post titled --Enjoined New Rules and Patent Reform Finally Appearing on Biotech Industry's Radar-- which included the text:

"...the patent reform bills passed by the House and before the Senate, are finally starting to draw wider attention from those in the biotech and pharma community."

Recall that Robert A. Armitage of Lilly wrote a piece on patent reform in 5 J. Marshall Rev. Intell. Prop. L. 267 and has otherwise been appearing in various public fora. See for example:

The Patent Docs post also notes: The article [in Nature Biotechnolgy] also poses a question that has likely been on the tongues of all biotech and pharma prosecutors since the new rules were published on August 21, 2007: what took the industry so long to realize that the new rules would create serious problems? Outside of crediting the information technology industry's lobbying efforts, however, the article does not offer any new insights into the biotech and pharma industry's reluctance - until GSK entered the fray in October - to mount a strong attack on the new rules or, thus far, the patent reform bills passed by the House and before the Senate.

IPBiz notes that the strong traction of HR 1908 is not surprising because Howard Berman is not much associated with the pharma industry AND has publicly discussed a pharma/Republican alignment.

It's true that the IT industry does have a forceful lobbying effort AND that pharma is more tightly correlated with the out-of-power Republicans.

Depressions, radicals, Wobblies, and patent reform

After quoting patent attorney John R. Harris: "If we're about to go into a recession and all of a sudden you kill innovation in the country, we might not have a recession. We might have a depression," Stephan Kinsella titled his piece: Another Reason to Reform Patent Law: Touch Off A Recession! and concluded Come to think of it, since recessions are a good thing--helping to restore the economy back to health after the distorting effects of boom-caused malinvestment--here's yet another reason to favor patent reform!

Although the word "radical" came up only in a quote only of Harris about the new rules on continuing applications ("The new rules are radical," which rules are currently enjoined by a district court), Kinsella extrapolated in noting: Naturally, the organized patent bar and intellectual property (IP) advocates have an interest in labeling recent developments "radical" so that any really radical proposals will be dismissed out of hand. In fact, the organized patent bar, in the form of the AIPLA and the IPO, are backing most of the "recent developments" in patent reform and are NOT labelling such things "radical."

One has difficulty communicating with Kinsella because he does not seem to understand the difference between invention and innovation. He wrote:

I am curious why you assert this. What is your reasoning? Jefferson, e.g., the first patent examiner (and always on the fence about whether patents were a good idea), wrote that "Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody."
Now I do not agree that this is a good idea, or that it actually does encourage (net) innovation; but this seems to clearly have been a motivation of our founders. Jefferson also wrote that the patent system had “given spring to invention beyond my conception.” I.e., encouraged or stimulated innovation--not merely encouraged disclosure of them.

IPBiz notes that throughout the history of the US patent system, the basic transaction has been DISCLOSURE of inventions which are novel and useful (and more recently nonobvious) in RETURN for a RIGHT TO EXCLUDE for a period of time. There has NEVER been an inquiry into whether the invention can be commercialized or will change the way people live (i.e., be an innovation). As to why Kinsella is dead wrong: res ipsa loquitor. Further, currently, only about 10% of issued patents are commercialized or generate license fees.

The interaction with Kinsella resembles previous communications with Mike at Techdirt. See for example:

[UPDATE. The comment below: Mr. Ebert seems to think "innovation" is some subset of "invention", i.e. the type of inventions that are commercializable. This is all irrelevant detail. One goal of giving a monopoly to reward "invention" is to encourage invention, in the hopes that some of the inventions would be useful innovations. Ebert's obsession on subtle linguistic nuances borders on crankish. seems to suggest that the IPBiz remarks (above) indicate "innovation" is a SUBSET of "invention". The reader is invited to find evidence of such a suggestion. Innovation is not a subset of invention, as invention is defined by the USPTO. One can have "innovation" without having a patentable invention. Once one recognizes that, one can begins to understand some of the problems the IT people have. LBE has discussed the differences between "innovation" and "invention" in many places, including in "Patent Reform 2005: Can You Hear Me, Major Tom?",
Getting the Patent Reform Wars on Track, and 88 JPTOS 1068. Far from being in the realm of "subtle linguistic differences", the distinction between "invention" and "innovation" is critical to understanding issues in patent reform.]

Of the views of Harris, an article titled NEW USPTO RULES WILL SIGNIFICANTLY AFFECT PATENT STRATEGY states of the rules on continuing applications:

These rules, which go into effect November 1, 2007, represent a significant change to many current USPTO policies, and will drastically affect patent filing and prosecution strategies.

Harris does use the word "radical":

As stated previously, this will result in a need for better claim drafting and well-thought-out patent applications. This will also likely result in patent applicants being forced to give up on seeking patent protection for related embodiments by staying under the 5/25 limit, and practically prevented from seeking claims with varying scope and fall-back positions as a safety measure. This is a radical change in thinking about patent protection.


If the USPTO had quit here, that would have been enough to cause major changes in patent strategies. But the USPTO did not quit with these changes – there are still more radical and restrictive changes in “continuation” practice.

IPBiz notes this is not the stuff of Wobblies throwing bombs.

Separately, in terms of "how easy" it is to obtain U.S. patents, one notes a recent post at patenthawk:

From a Senior Partner at a Major Law Firm to his Colleagues:

Many of you have experienced rejected appeal briefs over the past year on the silly ground that you failed to attach a blank (non-existent) "Evidence Appendix" to the brief, or that there was not a separate heading for each independent claim in the summary section of the appeal brief. (Yes, the appeal rules do provide for an evidence appendix for "any evidence" but they don't say that you must attach a blank page if there is no evidence to submit.)


Respectfully, examiner's final rejection on the second action was improper, a violation of MPEP 706.07(a).

706.07(a) Final Rejection, When Proper on Second Action
Under present practice, second or any subsequent actions on the merits shall be final, except where the examiner introduces a new ground of rejection that is neither necessitated by applicant's amendment of the claims nor based on information submitted in an information disclosure statement filed during the period set forth in 37 CFR 1.97(c) with the fee set forth in 37 CFR 1.17(p).

The §112 rejections were new, not necessitated by claim amendments nor prior art, and so, if they were to be brought, should have been presented in a non-final office action.

Further, the §112 rejections are unfounded. This is a continuation of a granted patent; evidence that another examiner thought very similar claims of merit, amply supported by the specification. Two granted patents, and an unknown number of applications, cite the parent as prior art. Certainly it is the substance of the disclosure that merits such citations. Examiner rejects all claims under §112 ¶ 1, but then only selectively cites dependent claims as failing. In other words, examiner did not even substantiate a reasonable basis for such sweeping rejection, particularly of the independent claims.

Comments on PatentHawk also included:

The business method art units (3620's) are simply the worst. They have no regard for the law whatsoever. As was noted on this site, and others, feel free to review 09/077,337 and 09/193,787. The PTO's handling of these cases, and others, is simply disgraceful.

There needs to be a house cleaning at the PTO.


1. When an examiner tells you something like this, it is very important to ask who the examiner consulted with, and then to call that person for confirmation. In my experience, more than half the time, there was no "consultation." Of the remainder, usually the examiner has misstated the issue to the "conferee," so the answer you got does not apply to the question you asked - in many cases, where the supervisor did in fact opine, the scope of the advice to the examiner was much narrower than the ruling the examiner passes on to you.

Be very polite, but very firm - have the examiner agree that he/she wouldn't think it fair to have you present the examiner's case in a dispute, and you don't think it's workable to have the examiner present your case. You want to be sure that the correct question was asked. You want to be sure that you received the precise answer, and its basis, so that you can meet the requirements of the law precisely.

It's especially valuable to press these issues if you are a repeat player in an art unit. You'll only have to do it once or twice per examiner - either the examiner will become much more careful and analytically rigorous once you demonstrate a record of follow-up, or you will get a new examiner. Don't escalate close cases, only clear black-and-white ones, but do escalate the easy ones.

2. Use interview summaries to document anything out of line. Write up the conversation as close to verbatim as you can. File it, get it in the record. Then call the SPE. Don't be afraid to escalate to the T.C. Director if the SPE blows you off. If the T.C. Director won't take the law seriously, escalate to the Office of the Commissioner: the folks that get detailed there tend to be lawyers who have enough respect for the rule of law to take these kinds of issues seriously, if you have them documented in the record.

3. If the examiner was telling the truth, then senior officials of the PTO broke the law and are violating their oaths to "see that the laws are faithfully executed." Fifth Amendment due process forbids agencies from having unwritten, changeable-at-will rules. Lightfoot v. District of Columbia, 339 F.Supp.2d 78, 88 (D.D.C. 2004) sings a long hymn to agency due process and written, predictable principles. By telephone, be very polite, but very firm: make the examiner show you where it exists in writing, or demand that the examiner withdraw the requirement. Escalate by phone.

4. If the examiner was telling the truth, then senior officials of the PTO are disobeying the President. Executive Order 13,422 and its associated implementation bulletins from the White House forbid agencies from maintaining caches of "secret" rules. Documents promulgated without notice-and-comment are only binding on agency employees, and may not bind the public. 72 Fed. Reg. 3432 (Jan. 25, 2007,; “Final Bulletin for Agency Good Guidance Practices” (OMB Memorandum M-07-07, January 18, 2007, fy2007/m07-07.pdf); and “Implementation of Executive Order 13422 (amending Executive Order 12866) and the OMB Bulletin on Good Guidance Practices” (OMB Memorandum M-07-13, April 25, 2007,

In my experience, issues of unpredictable procedure and "the PTO does not even care what its own regulations say" are the overwhelming cause of the PTO's "rework" and "backlog." Too many PTO personnel do not understand the fundamental principle that the law is what is written down, it's not what I remember from training years ago, and it's not what my boss tells me. (In a conversation with John Doll about a year ago, he made clear is view of the principle: he stated that if I wanted him to follow the words of 37 C.F.R. instead of his personal impression of PTO policy, I'd have to "take it to a federal district court." His words.) Because there is no agreement on basic principles, final agreements are much more difficult than they should be.

Thursday, December 20, 2007

PubPat continues its confused ways

Not surprisingly, PubPat is backing the USPTO on the rules for continuing applications now being contested in district court. The PubPat press release spun the issue as PubPat

supporting new U.S. Patent Office (USPTO) rules that would curtail abusive behavior by patent applicants and improve patent quality.

IPBiz notes no mention of "reducing backlog," even in a more detailed discussion:

"The public interest overwhelmingly supports the USPTO's Final Rules for at least two significant reasons," the brief said. "First, they will enable the USPTO to curtail abuses of the patent application process made by those patent applicants who seek to pervert the system to gain an unfair advantage. Second, the Final Rules will help the USPTO improve patent quality, which is a critical issue for ensuring the patent system benefits the American public."

The miscreants spouting this nonsense are:

The Public Patent Foundation ("PUBPAT"), Computer & Communications Industry Association ("CCIA"), AARP, Consumer Federation of America ("CFA"), Essential Action, Foundation for Taxpayer and Consumer Rights ("FTCR"), Initiative for Medicines, Access & Knowledge ("I-MAK"), Knowledge Ecology International ("KEI"), Prescription Access Litigation ("PAL"), Public Knowledge ("PK"), Research on Innovation ("ROI"), and Software Freedom Law Center ("SFLC").

You may recall John Simpson of FTCR who told California folks how patent pools led to the production of US fighter planes in World War I. As pointed out in the IPBiz post on patent thickets and the Wright Brothers:

In an IPBiz post on May 28, there was discussion of a CIRM document from an April 27 meeting of CIRM's IP Task Force: There was a conclusion about the U.S. aviation patent pool in World War I: "and that's what led to fighter planes being built for World War I."

IPBiz noted that there were no U.S. - built fighter planes ever used in World War I. For example, US ace Eddie Rickenbacker flew Nieuport 28 and SPAD XIII aircraft (French).

It's likely that Simpson knows even less about continuing applications than he did about patent pools, but ignorance doesn't seem to slow him down.

One finds in the press release the text:

Under current rules, which allow unlimited continuations, USPTO examiners who have repeated rejected an application often face an endless stream of continuation applications that "may well succeed in 'wearing down the examiner,' so that the applicant obtains a broad patent not because he deserves one, but because the examiner has neither the incentive nor will to hold out any longer," according to professor Mark A. Lemley of Stanford Law School and Kimberly A. Moore, now a Circuit Judge on the U.S. Court of Appeals for the Federal Circuit.

Of course, the number of applications filed two, or more times, is about 5%, so the idea of an "endless stream" might be questioned.

The press release had the usual ad hominem attack on patent attorneys: The legal papers, available at, also noted that while briefs filed opposing the new rules claimed they were acting in the "public interest," in fact they represented the narrow interests of patent holders and patent attorneys.

The press release did not address the issue of whether or not the USPTO has the legal authority to issue rules such as this. The press release did not attempt to quantify the alleged abuses in the patent application process. The press release did not explain how "patent quality" would be improved if the rules were implemented.

In passing, given that the present rules would allow 2 cons and 1 RCE, the number of applications that would be affected is far less than 5%.


The 271Blog discussed on 26 Dec. an aspect of the PubPat brief:

Interestingly, the brief suggests that patent applicants and practitioners are not entirely within the purview of the "public interest":

[A]rguments regarding the public interest made by patent holders and patent attorneys should be carefully scrutinized, because they are, in fact, the special interests that benefit from the patent system and what benefits them personally may not actually benefit the public interest.

IPBiz notes that PubPat's attack on the motivations of patent attorneys is merely a re-hash of Jaffe and Lerner's similar ad hominem arguments. From IPFrontline:

Jaffe and Lerner had written unfavorably of patent attorneys in the Harvard Business Review in November 2004; from the talk of Lawrence B. Ebert in Stevenson, Washington before WSPLA/OPLA Joint Conference in 2005: Adam B. Jaffe and Josh Lerner have stated that "Increasingly, the firm with best lawyers or the greatest willingness to risk litigation wins the innovation wars --rather than the company with the brightest scientists or the most original, valuable ideas."
Jaffe and Lerner further assert "Whatever the solutions, when issues of US patent policy are considered by the courts, the Congress, and the executive branch, you can be sure that the opinions of patent lawyers and patent holders will be heard. While their arguments will often be couched in terms of the public interest, at bottom their focus will be on improving their own profits and livelihoods, not on designing a patent system to foster the overall rate of innovation."

Ironically, Jaffe and Lerner, while demonizing patent attorneys, propose "reforms" such as opposition proceedings, which would benefit patent attorneys, even though there are patent lawyers who have vocally opposed reforms creating opposition proceedings. Thus, Jaffe and Lerner do not mention the publications by Joseph Hosteny such as "Post-Grant Opposition: Building on Sand," Intellectual Property Today [IPT], pp. 8-9 (August 2004) or What Now? Post-Grant Oppositions and the Proposed Budget, IPT pp. 8-9 (March 2005).


A December 27 post on PatentHawk contains the following comment:

What is really "laughable" is the Public Patent Foundation Brief. Very little mention of relevant case law, just Lemley & Moore, Lemley & Moore, and (more) Lemley & Moore. May be Cacheris will simply avoid reading this woeful Brief, and move on. But if he does read this Brief, hopefully he'll bury it quickly and pay more attention to Amicus Briefs, like the one recently submitted by IPO which beautifully flays 1.78(f)(2) for what it is, a supposed "procedural rule" which conflicts with case law and the statutes.

Elsewhere, PatentHawk wrote:

Call the "unfair advantage" of patents perverted is laughable. A patent is a reward for invention that grants an advantage; calling it unfair is nothing but pejorative by those against patents holistically.

That the continuation rules improve patent quality is ludicrous.

By helping the USPTO reduce wasted effort on unwarranted abuse of the patent application process, the Final Rules will free up staff and resources that can be used to improve patent quality, which is one of the most important issues for ensuring the patent system advances the public interest.

Patent attorneys have not formed a cabal to thwart patent reform.

Crafty strategy needed for new IDS rules at USPTO?

PatentHawk notes the following about the proposed new rules on information disclosure statements (IDSs):

In many instances, the proposed IDS rules will create a prior art search dilemma for patent prosecutors. The new rules require extensive analysis of cited art, reportage that characterizes the claims and thus invites prosecution estoppel, hence hampering enforcement potential, particularly applying the doctrine of equivalents. In a field crowded with art, to minimize cost while maximizing patentability under the new IDS rules, a crafty prior art strategy is imperative.

The proposed IDS rules require for an "explanation" of any prior art citation over 25 pages, or over 20 cited references:

An “explanation” of a document would include, for each reason for which the document is being submitted:
1. An identification of:
(i) The specific feature(s), showing(s), or teaching(s) that caused a document to be cited, and
(ii) a portion(s) of the document where the specific feature(s), showing(s), or teaching(s) may be found (e.g., by page and line number); and
2. A correlation of the specific feature(s), showing(s), or teaching(s) to corresponding specific claim language, or to a specific portion(s) of the supporting specification, if the document is cited for that purpose.

Correlating prior art to "specific claim language" is a recipe for declaring a claim construction. During enforcement, prosecution estoppel looms large as an outcome of meeting the "explanation" requirement.

Separately, ZDNet has another Microsoft "horror story":

From my read of a Microsoft Patent application just published today, technology is being proposed that will make it impossible for users who download multimedia files to play these files unless advertising messages inserted within these files are viewed.

In other words, no circumvention, no skipping a la the TiVo model.

The title of the Patent application in question lays down the gauntlet of what is being proposed here: “Enforcing Advertising Playback For Downloaded Media Content.” If you want to look it up, it is 20070294772.

Wednesday, December 19, 2007

Who's flying the true conservative colors on patent reform and who is a pirate?

Of the Kinsella/Dinh pro-patent reform positions, IPBiz uses a metric that it is less likely that Nancy Pelosi will advocate a "conservative" position than Dinh will advocate a "liberal" position. Thus, IPBiz concludes that neither Stephan Kinsella nor Viet Dinh are flying the truly conservative colors on patent reform.

One of the other blogs missed the important point in detailing how different Viet Dinh was from the Democrats on "homeland security" and such. The key point here is that Dinh and Pelosi are almost on the same page on patent reform, and that tells you all you need to know about Dinh as a "conservative", neo or otherwise.

It's separately true that none of Pelosi, Berman, Kinsella, or Dinh want to talk about substantive issues, like why "post-grant review" (opposition), a product inspection step, is not going to solve the perceived problem of bad patents, a production step.

**Of points in Kinsella's later comment

Mr. Ebert: do you deny that most patent lawyers are in favor of the patent system? That most patent lawyers are opposed to *radical* weakening of patent right? That is my point. The details of the current legal changes are really "insipid", to me. They distract from fundamental issues.

Mr. Kinsella's initial post was about "patent reform", not about the patent system. As to "who is where" on patent reform, the AIPLA and the IPO seem to be mostly in FAVOR of the proposed reforms. Hmmm, does that mean they are NOT in favor of the PRESENT patent system?

"In "Who You Gonna Call?" (Intellectual Property Today, March 2007, page 8), patent attorney Charles Gholz basically assumed post-grant opposition was a done-deal and was pointing out how interference attorneys would be the best (only?) attorneys to handle post-grant review. Gholz was NOT terming post-grant review or first-to-file as radical."

Why would he? This is merely tinkering with the system. It's just a minor detail. It won't affect patent attorneys very much.

IPBiz thinks the whole "reason" for Mr. Gholz's writing the March 2007 is that Mr. Gholz thinks that post-grant review is going to affect attorneys in the position of Mr. Gholz a whole lot. That means "very much."

See also:

Saturday, December 15, 2007

Kinsella's post on patent reform: insipid or not?

Stephan Kinsella took exception to some of the remarks on IPBiz about his piece Another Reason to Reform Patent Law: Touch Off A Recession!

Of Kinsella's authority, Kinsella is a registered patent attorney, unlike Mark Lemley.
Kinsella further noted: I would be surprised if you can find any other patent practitioners who have written as much on patent policy as I have--see, e.g., my "Against Intellectual Property", "In Defense of Napster and Against the Second Homesteading Rule," and "There's No Such Thing as a Free Patent" (variously translated into Polish, Spanish, and Georgian, btw) and other pieces collected here and on the Mises Blog, for a starter. Further discussion is found on wikipedia, and one can find a list of

Kinsella took issue to his article being termed insipid. The title of his post is Another Reason to Reform Patent Law: Touch Off A Recession!, but one has to dig hard in the post to find the demon giving rise to the title: Patent attorney John R. Harris ominously intones about recent and proposed change: “The U.S. has the best patent system in the world. What I'm afraid of is that they are about to throw the baby out with the bathwater. … The new rules are radical. The new legislation is radical. They will cause fewer patents to be issued.” The dots to the title of the post are finally connected (sort of) in paragraph 5 (of six paragraphs total): Anyway, Harris goes so far as to raise the possibility of a patent-reform-caused depression: “If we're about to go into a recession and all of a sudden you kill innovation in the country, we might not have a recession. We might have a depression." Whatever you do, don't lower money-supply growth and easy credit, and don't reform patent law--we might have a recession!

Somehow, Kinsella never manages to talk about currently-pending issues in patent reform, such as post-grant review (opposition), apportionment of damages, and first-to-file, instead choosing to whip up on poor John R. Harris to embody "hyperbolic opposition to patent reform efforts." Thus, in addition to the diffuse structure of the post (i.e., the title theme shows up in paragraph five), the post never gets to the substantive issues currently in patent reform. For someone actually interested in patent reform, that makes the post insipid (bland). It was "interesting" only to the extent it further illustrates how little solid content there really is among the patent reform people.

Apart from trashing Harris, Kinsella goes after patent lawyers generally: Naturally, the organized patent bar and intellectual property (IP) advocates have an interest in labeling recent developments “radical” so that any really radical proposals will be dismissed out of hand. IPBiz seems to recall that AIPLA and IPO favor most of patent reform. In "Who You Gonna Call?" (Intellectual Property Today, March 2007, page 8), patent attorney Charles Gholz basically assumed post-grant opposition was a done-deal and was pointing out how interference attorneys would be the best (only?) attorneys to handle post-grant review. Gholz was NOT terming post-grant review or first-to-file as radical. Gholz invited people to respond to the March 07 article, and LBE wrote and submitted response in the beginning of April 07, which IPT did not publish until September and to which Gholz never responded. (IPFrontline did publish a version on April 4, establishing a response was timely made).

Paragraph 2 of the Kinsella post noted: the U.S. Patent and Trademark Office has proposed a new set of rules that opponents say would dramatically limit the ability of companies to create new products and protect them under the law. The main justification for the new rules given by the USPTO was to reduce backlog. Kinsella's reply included: Anyway--where did I argue that the reform would reduce backlog? Kinsella earlier had demonized the opponents to the rules: opponents say would dramatically limit the ability of companies to create new products and protect them under the law. but Kinsella failed to note that (some) opponents to the rules oppose the rules because they won't achieve their objective, and simply burden the system. See for example comments on continuation practice. Kinsella did NOT include the objective reasons why people oppose the new rules, instead trying to paint the opponents as crazies by reporting only SOME commentary on the topic. Like IPBiz says, it's what one omits to say that is frequently most revealing.

Similarly, IPBiz does disagree with the assertion that opposition to patent reform is increasingly hyperbolic. There are SOME people that have intense feelings about this. HOWEVER to paint the whole picture in this way is like saying the advocates of patent reform are embodied by Mike at Techdirt. Mike exists, but he is not the whole picture.

Of --What does this comment have to do with people "like me" not "responding" to "some of you" pointing to bad aspects of patent reform?-- why don't you respond to the objective arguments against patent reform instead of demonizing poor old John Harris?

Of --First, the purported official rationale for the patent system is not merely to encourage disclosure. It's also to encourage innovation itself. I'm not sure how you just assert that the latter purpose is not as important as the former one.

Second, talk about what "the" purpose of a patent system is, is a bit question-begging; this type of language seems to assume that the official explanation is the truth. Sure, the state and its supporters might give a reason for a policy. -- IPBiz has no idea what Kinsella means by "purported official rationale." The system does what it does: in return for a certain kind of disclosure an inventor gets the right to exclude for so many years. That's it. Period. The USPTO never asks how the invention might be commercially implemented ("innovation.") That's for capitalism and free markets. Kinsella, and others, try to read "innovation" into a system that is not about innovation. It's about disclosure of inventions and right to exclude. It's not the only way one could do business. But the Venetians figured out it's preferable to the "no patent" way about 500 years ago.

IPBiz had previously referenced to a different Mises post as claptrap, but that engendered no response.

IBM, the BRIC countries, and patent reform

An AP article titled About 1 in 5 IBM Employees Now in India began with sentences

IBM Corp.'s expansion in developing countries shows no sign of relenting. The technology company revealed Friday [14 Dec. 2007] that it now has 73,000 employees in India, almost a 40 percent leap from last year. IBM did not provide updated figures for its work force in the U.S., which has held steady around 125,000 people in recent years.

and also noted:

Like many other technology providers, IBM has rushed to take advantage of the lower labor costs India offers even for highly skilled workers. IBM's base in India numbered only 9,000 people in 2003, but it was about 53,000 last year.

IPBiz notes that the timing of the scale-up of outsourcing to India coincides with IBM's campaigning for "patent reform" of U.S. laws, effectively a downsizing of patent rights in the U.S.

IBM is focussing on the "BRIC" countries: The plan is meant to capitalize on the higher growth rates in the so-called "BRIC" countries of Brazil, Russia, India and China. IBM's revenue from those countries rose 18 percent in the first three quarters of this year, even after discounting the benefit of currency fluctuations. IBM's total employee count in those countries now is nearly 100,000, up from 70,000 a year ago.

This is happening faster than one can say Santos Dumont.

Friday, December 14, 2007

Kinsella way off on patent reform

Stephan Kinsella has a particularly insipid piece on patent reform, titled Another Reason to Reform Patent Law: Touch Off A Recession!

Kinsella writes: There's increasingly hyperbolic opposition to patent reform efforts. Dude, some of us have been pointing to the "same old, same old" bad aspects of patent reform for years but guys like yourself never respond.

LBE published "Patent Reform 2005: Can you hear me, Major Tom?" back in 2005 and talked about it on IPBiz.

Kinsella finds boogeymen in the patent bar, just as Jaffe and Lerner do: Naturally, the organized patent bar and intellectual property (IP) advocates have an interest in labeling recent developments “radical” so that any really radical proposals will be dismissed out of hand. (Patent lawyers also seem loath to have to learn some new rules—those CLE courses are so bothersome.)

Lots of people in the "organized patent bar" favor post-grant opposition, a current part of the house and senate patent reform packages. It creates MORE opportunities for patent lawyers. Duh, where's your brain Steve? Oh, yes, lots of new rules to learn in post-grant opposition.

The changes to the rules on continuing applications were supposed to impact the backlog, but they will affect only 5% (or fewer) of filed cases. Tough to see how all this added paperwork is going to reduce backlog. Where's your logic Steve?

Steve writes: Well, I disagree that the proposed and recent changes are radical. Patent terms have not been shortened. The scope of what is patentable has not shrunk. Steve doesn't mention that the ability to claim an invention will have shrunk if the new rules go into effect, and the ability to argue with examiners about stupid rejections will diminish. If a large fraction of continuing applications were devious attempts to claim the products of competitors, one might at least understand the motivation (if not the ultimate rationale), but the most abundant continuing application form is the RCE, wherein one can't change the invention. One is arguing with the examiner about the claim scope of already submitted claims.

See also, PatentHawk Compact Prosecution and the 271 blog (Study Shows USPTO Backlog Is Tied More to Non-Final Actions, and Not Continuations)

Tuesday, December 11, 2007

Typhoon Touch goes after Dell in ED Texas

Computerworld says-->

Typhoon Touch Technologies, Inc., in a suit filed in ED Texas on 5 Dec 07, seeks an unspecified amount of damages and a permanent injunction enjoining Dell and Motion Computing from continued alleged infringement.

Monsanto whacks farmer Beneteau

from the Canadian Press__>

The Winnipeg-based Canadian headquarters of the global agricultural giant Monsanto said Paul Beneteau of Amherstburg was found in court to have grown, harvested and sold 55 acres of soybeans that he "knew contained genes and cells as claimed in the said claims of the patent."

Beneteau was ordered to pay damages amounting to $160 per acre.

"We have a duty to protect our intellectual property and keep the playing field level for all growers who are purchasing Monsanto patented technologies," Monsanto Canada spokeswoman Trish Jordan said in a release.

[There is also an injunction against Beneteau.]

See also

Obviousness and the Christmas tree stand

See IPFrontline, including the text:

So as we approach this holiday season, it occurs to us – if ever there was a long felt unmet need and a legacy of failure by others, it is in the art of the Christmas tree stand. Doesn’t anybody make a decent one? Not as far as we know, and we’re not alone. According to the World Institute of Marriage Psychologists, 95.4% of post-holiday marriage failures result directly from TTSS3,4.

The Peterlin matter: AHARONIAN v. GUTIERREZ

Judge JAMES ROBERTSON deep-sixed the position of Greg Aharonian, et al., in the matter of Margaret Peterlin holding the job of Deputy Under Secretary of Commerce for Intellectual Property (see 2007 WL 4282064 (D.D.C.))

The argument under 35 U.S.C. s 3(b) was deemed "dead on arrival":

FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997) ("It is well understood in this Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.")

Of the qualifications issue itself, the court noted:

The presumption must be that decisions involving high-level
policymaking personnel are left primarily to the executive. Cf. Myers v. United
States, 272 U.S. 52 (1926). In such a situation, one would expect Congress to speak
in precise terms if it intended the courts to monitor the minimal qualifications
for agency officers. Here, Congress has given only the broadest of
instructions--that the Deputy Director should have "a professional background and experience in patent or trademark law." 35 U.S.C. s 3(b). The statute is silent as to the content of those terms. Were the decision subjected to APA review, the Court--not Congress--would be the ultimate source of the standards by which the qualifications of Ms. Peterlin would be judged: Is a law degree necessary? Is it sufficient? Are law school courses in intellectual property a requirement? Is certification to practice before the USPTO? Is law firm experience? How many years? If Congress had intended the extraordinary situation in which judicial review would
reach to the very qualifications of agency officers for their policymaking
positions, its statute would not be drawn "in such broad terms that ... there is no
law to apply." See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402,
410 (1971) (citation omitted).

Sunday, December 09, 2007

Mark Lemley and AutoAdmit

Mark Lemley, the Stanford law prof who thinks Gary Boone invented the integrated circuit, was busy this summer in the AutoAdmit law suit, in which two female Yale law students, named as defendants 28 pseudonyms who allegedly posted defamatory and threatening content about the students:

Mark Lemley, says he isn’t pursuing Ciolli as an administrator. And that’s not a surprise. As an administrator, Ciolli would likely be protected under the Communications Decency Act of 1996, lawyers say. “We sued the people we have reason to believe posted the objectionable content,” Lemley wrote in an email. Yet he also wrote, “There is no specific reference to Ciolli as one of the posters in the complaint as filed.” from

There was an amended complaint on 8 Nov. 2007.


It's good to see that Professor Lemley is finding topics of profundity comparable to his "Ending Abuse" paper to occupy his time.

The Checklist

Atul Gawande:

[Motivation for checklists]

Here, then, is the puzzle of I.C.U. care: you have a desperately sick patient, and in order to have a chance of saving him you have to make sure that a hundred and seventy-eight daily tasks are done right—despite (...)


On October 30, 1935, at Wright Air Field in Dayton, Ohio, the U.S. Army Air Corps held a flight competition for airplane manufacturers vying to build its next-generation long-range bomber. It wasn’t supposed to be much of a competition. In early evaluations, the Boeing Corporation’s gleaming aluminum-alloy Model 299 had trounced the designs of Martin and Douglas. [The plane crashed during the demo through error of the pilot Hill] While doing all this, Hill had forgotten to release a new locking mechanism on the elevator and rudder controls. The Boeing model was deemed, as a newspaper put it, “too much airplane for one man to fly.” The Army Air Corps declared Douglas’s smaller design the winner. Boeing nearly went bankrupt. [...] Instead, they came up with an ingeniously simple approach: they created a pilot’s checklist, with step-by-step checks for takeoff, flight, landing, and taxiing. Its mere existence indicated how far aeronautics had advanced. [...] With the checklist in hand, the pilots went on to fly the Model 299 a total of 1.8 million miles without one accident. The Army ultimately ordered almost thirteen thousand of the aircraft, which it dubbed the B-17.


A second effect was to make explicit the minimum, expected steps in complex processes. Pronovost was surprised to discover how often even experienced personnel failed to grasp the importance of certain precautions. In a survey of I.C.U. staff taken before introducing the ventilator checklists, he found that half hadn’t realized that there was evidence strongly supporting giving ventilated patients antacid medication. Checklists established a higher standard of baseline performance.

These are, of course, ridiculously primitive insights.


In the first month, according to Christine Goeschel, at the time the Keystone Initiative’s director, the executives discovered that the chlorhexidine soap, shown to reduce line infections, was available in fewer than a third of the I.C.U.s. This was a problem only an executive could solve.

In December, 2006, the Keystone Initiative published its findings in a landmark article in The New England Journal of Medicine. Within the first three months of the project, the infection rate in Michigan’s I.C.U.s decreased by sixty-six per cent.

[Policy issues]

The tasks of medical science fall into three buckets. One is understanding disease biology. One is finding effective therapies. And one is insuring those therapies are delivered effectively. That third bucket has been almost totally ignored by research funders, government, and academia. It’s viewed as the art of medicine. That’s a mistake, a huge mistake. And from a taxpayer’s perspective it’s outrageous.” We have a thirty-billion-dollar-a-year National Institutes of Health, he pointed out, which has been a remarkable powerhouse of discovery. But we have no billion-dollar National Institute of Health Care Delivery studying how best to incorporate those discoveries into daily practice.

As a bit of trivia, the first international commercial flight was in 1920 between Miami and Havana.