Thursday, January 31, 2008

Boost from "Chaos Manor Mail"

IPBiz received a compliment from "chaos manner mail" on its Coskata / ethanol

re: Ethanol from Biomass Hint #1 - when you read about a new technology that's going to change everything - start looking for patents. The author of this blog actually understands the science and the intellectual property issues.

Elsewhere on "chaos" (by jerry pournelle) was a comment that seemed to touch on the issue of self-plagiarism:

I'm not sure that "self piracy" is a legitimate term of art. It is not possible, in the legal sense, to steal from yourself. If you own a copyright then you may do as you please with it, including giving it away selectively or entirely by putting it in the public domain. There was a writer at WesterCon last year who did podcast readings from his novels and got so many hits that he managed to acquire not one, but two book contracts from a regular publisher. Of course Science Fiction and Fantasy is one place where good fiction still rules and is considered an acceptable risk.

which seemed to relate to an earlier comment

My concern has always been this: when ebooks become a large part of book publishing, then when a potential reader uses a search engine to find that book on line, it is important that the first hits not be pirated free copies; that the first hits be a legitimate copy sold at a reasonable price and easily obtained and easily paid for. Given those conditions I think most readers will simply pay the man the five dollars or whatever is the price, rather than search further to find the pirated copy. The second concern I have is web sites that use free books as a means to draw viewers, and derive their income from advertising; they will have money to publicize their pirate web sites.

When books are free, or make only modest sums from first publication, then the temptation will be for authors to indulge in journalism, not in putting in years to build large novels.

**In passing, going back to the SIU/Wendler issue, a key here can be "who owns the copyright." In the copyright business, there is the concept of "work for hire." In the Wendler case, Texas A&M employed Wendler, so it's not obvious that Wendler owned the copyright to the work in question. Thus, "self-plagiarism" could be a copyright violation. The Fleming/Thunderball saga is a different variation.

***UPDATE on Coskata***

IPBiz ran across a 25 Jan 08 post on treehugger titled GM's Partner, Coskata, Using "Non-GM" Organism To Make Ethanol which included:

Looking at the publication listing of Dr. Tanner (pictured fishin' below), it seems pretty clear the anaerobe in question is a Clostridium, possibly C. ljungdahlii or variant. BIOwaste Blog reports that as far back as 1991, a BRI Energy pilot plant located outside the City of Fayetteville, Arkansas was using a Clostridium bacteria in a manner similar to that outlined in Jeremy's Coskata post.

IPBiz suggests John Laumer look at the 13 Jan 08 post of IPBiz which includes

Note published US application 20070275447 the first claim of which states: A biologically pure culture of the microorganism Clostridium carboxidivorans having all of the identifying characteristics of ATCC No. BAA-624.

Letters to Senators opposing patent reform

Relevant to an earlier post on IPBiz, maybe NJBiz (and others) should take note of the increasing opposition to patent reform (S.1145):

Letter to Senators Lamar Alexander and Bob Corker of Tennessee Opposing the Patent Reform Act, January 29, 2008.
Letter to Senator John Cornyn from Texas Opposing the Patent Reform Act, January 24, 2008.

Letter to Senators Arlen Specter and Robert P. Casey Jr. Opposing the Patent Reform Act, January 24, 2008.

Letter to Senators Mitch McConnell and Jim Bunning from Kentucky Opposing the Patent Reform Act, January 23, 2008.

Letter to Senators Harry Reid and John Ensign from Nevada Opposing the Patent Reform Act, January 23, 2008.

Letter to Senator Kay Bailey Hutchison from Texas Opposing the Patent Reform Act, January 22, 2008.

Letter to Senators McCain and Kyl from Arizona Opposing the Patent Reform Act, January 18, 2008.

Letter to Senator Wayne Allard from Colorado Opposing the Patent Reform Act, January 18, 2008.

Letter to Senators Chambliss and Isakson from Georgia Opposing the Patent Reform Act, January 12, 2008.

Letter to Senators Durbin and Obama from Illinois Opposing the Patent Reform Act, September 24, 2007.

Judge Whyte on ALJ decision in Rambus

PatentHawk has discussion of a recent action by Judge Whyte in the long ongoing Rambus case, wherein Judge Whyte declined to enter into evidence certain findings by the ALJ in the parallel Rambus case at the FTC:

The Administrative Law Judge ("ALJ") had previously decided in favor of Rambus, and the FTC appealed "challeng[ing] virtually all of the ALJ's rulings and ask[ing] that the Initial Decision be set aside in its entirety." In re Rambus, Inc., Docket No. 9302 at 16.1 The FTC's opinion granted this relief, reversed the ALJ's decision and found that Rambus had engaged in exclusionary conduct that significantly contributed to Rambus's acquisition of monopoly power. The opinion has now been stayed pending appeal to the D.C. Circuit. The Manufacturers seek to admit this opinion into evidence.

Federal Rule of Evidence ("FRE") 803 permits certain types of hearsay to be introduced as evidence. The Manufacturers invoke Rule 803(8)(C) to permit them to introduce the FTC opinion.

The first hurdle to admitting a public record into evidence is whether it "results from an investigation." The Fourth Circuit has held that "[a] judge in a civil trial is not an investigator, rather a judge." Nipper v. Snapes, 7 F.3d 415, 417 (1993). Accordingly, another judge's findings of fact were not made pursuant to an investigation, and it was reversible error for the district court to admit them into evidence. Id. at 417-18.

A second hurdle to admitting a public record under 803(8)(C) is whether "the sources of information or other circumstances indicate lack of trustworthiness." Rambus points to two factors indicating a lack of trustworthiness: (1) that the FTC had a "motivation problem" because the case presented the opportunity to make policy, and (2) that the pending appeal, coupled with the fact that the FTC largely reversed the ALJ's findings and conclusions, suggest that the opinion is not reliable.

Recall that Judge Whyte was once the frontrunner for the CAFC seat currently held by Judge Moore.

from Idaho Statesman, 1 Feb 08:

A California company’s [Rambus] charge that Micron and other companies infringed on patents used in the manufacture of dynamic random-access memory goes to trial next week.

If Micron loses, it could be forced to pay millions of dollars in royalty fees to Los Altos-based Rambus. The trial will decide if Micron is at fault or if Rambus illegally patented technology.


In August 2006, The Federal Trade Commission ruled unanimously that the company illegally obtained a monopoly by falsely obtaining the patents on the technology that would become the standard for DRAM chips.

"Through its successful strategy, Rambus was able to conceal its patents and patent applications until after the standards were adopted and the market was locked in," the FTC opinion said. "Only then did Rambus reveal its patents - through patent-infringement lawsuits against JDEC members who practiced the standard."

Rambus is appealing that decision. U.S. District Judge Ronald M. Whyte, who is presiding over the current trial, denied a request by Micron and the other companies to enter the commission's findings as evidence.

Note investorvillage

Science reports on issues with rock art at Nine Mile Canyon in Utah

The Jan. 25, 08 issue of Science has an article titled "Dust Storm Rising Over Threat to Famed Rock Art in Utah", concerning Nine Mile Canyon, which includes a quote from chemist Marvin Rowe:

"Think of a painting in your house that is placed over a fireplace that produces soot. Over time, that soot gets incorporated into the mineral content of the painting, and it builds a thick enough coating where it makes the painting fade away."

IPBiz is not sure to what extent "soot" gets incorporated into a mineral content ("reverse intercalation"?) but it was an evocative analogy.

On page 418 of the 25 Jan. issue, one had "The Rise and Fall of a Great Idea," and at page 396 "Max Planck Accused of Hobbling Universities," which in turn refers to an article titled "The Unsolved Max Planck Problem." Interestingly, Science begins the Planck discussion mentioning a report from Shang-hai Jiao Tong University in China on university rankings.

Page 397 mentions Judge Cooper's decision on the use by the Navy of MFA sonar.

Wednesday, January 30, 2008

Embodiment of figure is within claim scope

The case Oatey v. IPS involved a patent based on an application filed by Oatey in 1999 directed to outlet boxes for water for washing machines.

The CAFC cited Phillips (citing Innova/Pure v. Safari, 381 F.3d 1111), went on to
Verizon v. Vonage, 503 F.3d 1295, and concluded:

We conclude that the embodiment in Figure 3 was improperly excluded from the scope of claim 1. See MBO Labs., Inc. v. Becton, Dickinson & Co., 474 F.3d 1323, 1333 (Fed. Cir. 2007) (rejecting claim construction that would exclude embodiments illustrated in the drawings); Lava Trading, Inc. v. Sonic Trading Mgmt., LLC, 445 F.3d 1348, 1353-55 (Fed. Cir. 2006) (rejecting claim construction that "excluded embodiments disclosed in the specification" including embodiments in the drawings); Vanderlande Industries Nederland BV v. United States Int'l Trade Comm'n, 366 F.3d 1311, 1320, 1322 (Fed. Cir. 2004) (declining to limit the term "glide surface" to a specific embodiment where the descriptive text includes other embodiments).

An IPS argument on "plain meaning" was rejected.

****In passing there is a plain meaning to "Repo Express" / "ONE STOP SHOPPING for homebuyers and investors" (Coshow Real Estate Group )

CBS national news on 1/30 discussed bus tours in San Diego touring foreclosed properties. "Repo Express." Prof. Frank Alexander of Emory got to make some comments. Hope Now was also mentioned.

More plagiarism at Harvard

An account of plagiarism by a Harvard professor has some eerie similarities to the Poshard plagiarism at SIU:

A British medical journal said today [Jan. 29, 08]it has retracted an article written by a Harvard doctor because it duplicates material previously published in another scientific journal by a different author.

Dr. Lee S. Simon's review of treatments for rheumatoid arthritis, which appeared in Best Practices & Research: Clinical Rheumatology in 2004, contained substantial portions from a 2003 article on the same topic in Expert Opinion: Drug Safety.

"This paper has been retracted," according to a statement issued by the Best Practice journal. "It included the reproduction of several sections of text and much of the reference list" from the earlier paper.
[by Elizabeth Cooney at the Boston Globe]

IPBiz notes that at page 54 of his Ph.D. thesis Poshard copied from a previous review (in a book) to summarize his own "review" of the literature. At least Simon only copied a one year old review! Poshard copied from a book older than the time period he was reviewing. Simon is a Harvard Medical School faculty member and evaluated painkillers, including COX-2 inhibitors, for the US Food and Drug Administration [FDA] in 2002 and 2003. The now-ironically-named "Best Practice" journal, in which the plagiarized work appeared, is published by Elsevier in England.

The Chronicle of Higher Education reported:

The Boston Globe reported yesterday that the journal Best Practice & Research Clinical Rheumatology had retracted a 2004 paper by Lee S. Simon, an associate clinical professor of medicine at Harvard University, because it contained overlapping text with a 2003 article in the journal Expert Opinion on Drug Safety.

The researchers who sounded the warning bell last week had found the paper through a search that turned up 70,000 copycat abstracts of biomedical papers. Dr. Simon’s abstract was one of more than 70 possible plagiarism cases they identified when they studied 2,600 abstracts individually. The researchers, who are at the University of Texas Southwestern Medical Center, notified the journals and authors in several of those cases. The retraction appears to be the first result of their sleuthing.

The Texas researchers discovered that Dr. Simon’s paper, a review of arthritis treatments, contained entire pages of text that matched those of the earlier paper, which was by Roy Fleischmann, also of Texas Southwestern. Dr. Simon’s article did not cite the earlier paper.

One recalls other episodes of Harvard plagiarism, including that of Laurence Tribe, and the now-famous line in the
Harvard Business Review: Plagiarize with Pride!. Well, at least Harvard is walking like it's talking.

Rutgers: plagiarism with a sexual twist

Newsday reported on 30 Jan 08:

Rutgers University has cleared three former graduate students of plagiarism and other academic misconduct charges and settled a lawsuit with them.

The agreement may bring to rest a scandal surrounding former anthropology professor William Powers that goes back to the mid-1990s.

One of the students says that when she tried to break of an affair with him, he became abusive. She filed a university complaint against Powers in 1994.

IPBiz notes that, prior to the Powers matter, one had the San Filippo affair in the chemistry department of Rutgers, which had
a bizarre sexual twist in a later "collateral damage" case. The San Filippo affair was more of an embarrassing saga to Rutgers than is the Powers matter, but who now remembers the facts of the San Filippo affair?

Jeff Whealan of the Newark Star-Ledger wrote:

The settlement revives an embarrassing saga for Rutgers regarding the professor, William Powers, who acknowledged an extramarital affair with one of the students and resigned amid sexual harassment allegations.

The university relied on the students' testimony as it sought to oust Powers through high-profile public hearings in 1997. But Rutgers reached a settlement with him the following year before a panel of professors had the chance to render a decision.

Powers, who taught at the university for 24 years, stepped down without admitting any wrongdoing and preserved his pension benefits. Rutgers also paid him $92,000 for pain and suffering as part of the deal to settle a lawsuit he'd filed against the university.

The move left the students feeling betrayed by the university, they said. During the controversy, Powers had accused them of plagiarism, among other charges. The students said their reputation was impugned and sued Rutgers and Powers in 1999.

Today, Rutgers publicly renounced Powers' allegations against the students, Adriana Greci Green, David Oestreicher and Mark Speeney. A statement Rutgers filed in federal court in Newark says the university conducted an extensive investigation and found "no credible evidence" of any academic misconduct or wrongdoing by them.

Prior IPBiz posts on San Filippo:

A response of sorts to Don C. Reed about covering both sides of CIRM

Don C. Reed made a comment to yesterday's IPBiz post on the "state of the union" speech of George Bush. The comment included:

But I must object strongly to your characterization of David Jensen's California Stem Cell Report as "Fantasyland".


But Jensen is a reporter, who makes a genuine and ongoing effort to present both sides accurately.

IPBiz had written on Jan. 29:

of the state of the union speech the [californiastemcellreport] noted:

The California stem cell agency is accusing President Bush of distorting facts and performing a disservice to millions of Americans who suffer from chronic diseases and injuries.

The agency said Bush intends to "further limit" research into human embryonic stem cells.

The CIRM statement is contained in a press release on its web site that concerned Bush's speech Tuesday night. Interestingly, the CIRM statement is not attributed to either Bob Klein, chairman of the agency, or its new president, Australian stem cell researcher Alan Trounson. In the past, statements such as this have been linked to either the president or chairman.

There is a post on stemcellbattles (by Mr. Reed) including the text:

Here is a news-release from CIRM (the California Institute for Regenerative Medicine)

Important: the CIRM has of course absolutely no connection with my politics. This is a press release, from the CIRM’s website, their response to the President’s remarks.

For release: IMMEDIATE Contact: Ellen Rose


SAN FRANCISCO, Calif., January 28, 2008 –

The California Institute of Regenerative Medicine (CIRM) issued the following statement in response to President Bush’s State of the Union address:

Tonight, in his State of the Union address, President Bush distorted the scientific facts on stem cell research and did a disservice to the millions of patients suffering from chronic disease and injury for whom stem cell research holds great promise for future therapies and cures.

Stemcellbattles notes: Don C. Reed is co-chair of Californians for Cures, and writes for their web blog, Reed was citizen-sponsor for California’s Roman Reed Spinal Cord Injury Research Act of 1999, named after his paralyzed son; he worked as a grassroots advocate for California’s Senator Deborah Ortiz’s three stem cell regulatory laws, served as an executive board member for Proposition 71, the California Stem Cells for Research and Cures Act, and is director of policy outreach for Americans for Cures. The retired schoolteacher is the author of five books and thirty magazine articles, and has received the National Press Award.


Of the point about --disservice to the millions of patients suffering from chronic disease and injury for whom stem cell research holds great promise for future therapies and cures--, one might look to a January 19 IPBiz post quoting Dr. Yamanaka on his iPS work:

Last week, Yamanaka told reporters in Tokyo that aspects of the iPS discovery - though not stem cell therapy, which might be a decade away from clinical application, even if the research continues going well - have reached another breakthrough point.

IPBiz notes that iPS is further along in development than the human SCNT work of the Hwang-type that CIRM was trying to fund, for example, in its grant (now withdrawn) to the Cha entity. One asks: great promise for "when" in the future? Sooner than Jules Verne's Nautilus, but likely not within 10 years? One suspects that the rejection by the voters of the state of New Jersey of the stem cell bond issue last November was caused in part by these concerns. There are probably also concerns about money going to scientific empire building rather than to the pursuit therapeutic cures. How much disservice has been done as to promises that might be a long time in realization?


IPBiz sadly must take issue with Reed's --a genuine and ongoing effort to present both sides accurately--. Californiastemcellreport has not presented both sides of the intellectual property issues, including those pertaining to the WARF / Thomson patents. There have been a number of IPBiz posts, including but not limited to:

What californiastemcellreport isn't talking about [Of this 2006 post, note the supposed
"breakthrough" went nowhere AND was irrelevant to weakening WARF's (supposed) lock on research]

Trounson named prez of CIRM; what you won't read at californiastemcellreport

The Scientist talks about latest in Cha v. Flamm saga


Within a 31 Jan 08 post on californiastemcellreport titled 'California Has Changed Everything', one finds californiastemcellreport quoting Christine Vestal at in the following way:

"Now that grant money is flowing, the California Institute of Regenerative Medicine (CIRM) reports it has wooed more than two dozen of the world’s top stem-cell scientists, including Japanese scientist Shinya Yamanaka, who lead the most recent skin-cell discoveries at the University of Kyoto. Yamanaka accepted a state grant in August 2007 and began working part-time in San Francisco to avoid stem-cell restrictions in Japan."

In a press release of 16 Aug 07, the Gladstone Institute made no mention of a grant from CIRM and stated:

Acclaimed Japanese stem cell scientist Shinya Yamanaka, MD, PhD has joined the Gladstone Institute of Cardiovascular Disease (GICD), where he will continue his research into reprogramming adult cells into embryonic stem (ES) cells. Dr. Yamanaka is the L.K. Whittier Foundation Investigator in Stem Cell Biology at Gladstone. He will also be a professor of anatomy at the University of California, San Francisco.

Gladstone will provide Shinya with the resources and facilities to apply his research to human cells,” said Deepak Srivastava, MD, GICD director. “Furthermore, we will have the great benefit of his unique knowledge and experience to advance the stem cell capability we’ve been building.”

Further, in a post on 1 Sept 07 , IPBiz noted explicitly that Gladstone was not getting Yamanaka involved in CIRM funding:

Deepak Srivastava, GICD's director, said in a press release that
“Gladstone will provide Shinya with the resources and facilities to
apply his research to human cells.” Yamanaka's work will not be funded by grants from Proposition 71 -- at least not inititally, according to Gladstone spokesperson Valerie Tucker -- allowing it to move forward without concern of whatever revenue-sharing agreement is finally reached.

Accord, WiredScience:Yamanaka's work will not be funded by grants from Proposition 71.

See also California's CIRM as a hanging curve ball

IPBiz wonders if Don C. Reed has anything to say. The comment icon is below.


When one has a blog directed to an agency, one runs the risk of the phenomenon of "regulatory capture." The blog's interests and the agency's interests become aligned, although certainly NOT fully aligned.

***IPBiz amplification: Of regulatory capture, wikipedia notes-->

Regulatory capture is a phenomenon in which a government regulatory agency which is supposed to be acting in the public interest becomes dominated by the vested interests of the existing incumbents in the industry that it oversees.

In public choice theory, regulatory capture arises from the fact that vested interests have a concentrated stake in the outcomes of political decisions, thus ensuring that they will find means - direct or indirect - to capture decision makers.

The concept is central in a branch of public choice that is often referred to as the "economics of regulation", which is critical of earlier conceptualizations . of regulatory intervention by governments as being motivated to protect public goodsTwo often cited articles are Laffont & Tirole (1991) and Levine & Forrence (1990).

IPBiz was trying to be humorous. In conventional "regulatory capture", the special interests capture the governmental agency, nominally presumed to be neutral in the absence of such capture. In the IPBiz comment, the government agency, here CIRM (dominated by special interest groups) has captured (in part) the blog, presumed to be neutral in the absence of such capture.

The comment on californiastemcellreport [Today he suggested the report was something of a tool of California's stem cell agency. ] should be viewed noting the above. Otherwise, one might presume that LBE didn't learn much in AdLaw from Cass Sunstein at the University of Chicago Law School. Separately, one person's dream might be viewed as another's fantasy. IPBiz is troubled by suggestions that human SCNT will lead to any therapeutic treatments on a time scale of ten years, which doesn't seem to have substantive scientific support. The suggestions made in California (and in New Jersey) that patent royalties arising from such (likely non-existent) treatments would generate significant state revenue is easily labeled a fantasy. In California, wherein Proposition 71 supporters dramatically outspent opponents, state money was allocated. In New Jersey, wherein supporters somewhat outspent opponents, the proposal for state money was rejected.
These days, we expect to hear more it's the economy, stupid. ***

Of the bond vote in New Jersey, see also

Tuesday, January 29, 2008

30% of R&D wasted on re-inventing the wheel?

I/P Updates points to an EPO post: Why researchers should care about patents?

The European post notes: "up to 30% of all expenditure in R&D is wasted on redeveloping existing inventions."

Elsewhere the post notes that top scientific journals such as Nature refer to patents.

***In passing, on blogs

What's Hot Online which on 29 Jan links to Wicked Lasers Torch - Burn Paper

--"Do you expect me to talk?" "No Mr. Bond, I expect you to die," -- but 007 evaded the wicked laser

Patent reform 95% of the way there?

Reuters quotes HP General Counsel Mike Holston: "We're 95 percent of the way there. We're down to four (sticking points)," adding that Patrick Leahy, the chairman of the Senate Judiciary Committee, appeared at the meeting. "We're in the final stretch."

The bill is slated to go before the Senate in February, according to an aide to the Senate Judiciary Committee, which oversees patent law issues.

The sticking points involve calculating damages for patent infringement, limiting venue, allowing post-grant reviews [oppositions] and defining "inequitable conduct," said Holston.

Software patents in UK

ZDNet writes:

I really can't believe - can barely understand, given its dense legalities - this latest ruling, which seems to want to reinstate software patents in the UK. I had thought that the reasons software should not be patented, but given instead other sorts of intellectual property protection, were by now widely understood.

Perhaps Justice Kitchin has been talking to a friend of mine with whom, years ago, I had a knock-down argument that neither of us won.

My friend's engineering nous is exemplary, his creativity is off-planet, his logical prowess would shame a Vulcan, and his commercial instinct is so minuscule I doubt CERN could detect it with its finest machinery set to maximum magnification.

Patents in the "state of the union" speech

George Bush's line in the State of the Union on 28 Jan 08 against patenting human life forms drew considerable applause. [Text of George Bush: So I call on the Congress to pass legislation that bans unethical practices such as the buying, selling, patenting, or cloning of human life.]

Meanwhile, at the fantasyland known as californiastemcellreport:

While the current president is reiterating his opposition to human embryonic stem cell research, investors are beginning to look to the future.

We have reported previously that the prospect of a favorable presidential change has eased some of the fears of stem cell investors. One further sign is the announcement today that UBS Investment Research upgraded Geron Corp. of Menlo Park, Ca., from neutral to a buy recommendation on its stock.


of the state of the union speech the report noted:

The California stem cell agency is accusing President Bush of distorting facts and performing a disservice to millions of Americans who suffer from chronic diseases and injuries.

The agency said Bush intends to "further limit" research into human embryonic stem cells.

The CIRM statement is contained in a press release on its web site that concerned Bush's speech Tuesday night. Interestingly, the CIRM statement is not attributed to either Bob Klein, chairman of the agency, or its new president, Australian stem cell researcher Alan Trounson. In the past, statements such as this have been linked to either the president or chairman.

But carefully note, the californiastemcellreport itself is not accusing Bush of distorting facts, merely quoting someone [hmmm, some entity?] else who is.

Trivia: Rand McNally developed a numbering system for US highways in 1917.

More on the Ohio University plagiarism mess

See Cheating: just a mouse-click away


FDA: broken, like the USPTO?

The New York Times quotes Peter Barton Hutt, a former top lawyer with the FDA who will testify Tuesday before the House Energy and Commerce committee:

“This is a fundamentally broken agency, and it needs to be repaired.”

Does this evoke Jaffe and Lerner or Quillen and Webster describing the USPTO?

The Times also notes: GAO reports and a recent assessment by the FDA’s Science Board conclude that the F.D.A. is so overwhelmed by a flood of imports that it is incapable of protecting the public from unsafe drugs, medical devices and food.

A quote by John Dingell about the FDA sounds eerily similar to complaints about patent quality at the USPTO:

“Our investigation has found ample evidence that F.D.A. inspections across the board are sorely lacking.”

The Times also reported:

An illustration of the agency’s situation comes from a comparison of the allocated budgets of it and the Centers for Disease Control and Prevention. In 1987, the two had nearly identical budgets. Last year, the C.D.C. received nearly four times the amount given to the F.D.A.

In the last 14 years, the drug agency has lost 1,311 employees and nearly $300 million in appropriations to inflation while Congress has passed more than 100 laws defining or expanding its regulatory responsibilities. The agency now regulates about $1 trillion worth of goods, or 25 cents of every dollar spent by consumers.

The agency’s field inspection force has suffered, particularly in the area of food. In 1973, the F.D.A. undertook 34,919 food inspections; in 2006, that number had dropped to 7,783.

As the share of imported food, drugs and devices has soared, the number of agency import inspectors has plunged, to 380 in 2006 from 531 in 2003. Although 80 percent of the nation’s drug supply is now imported, the F.D.A. last year inspected only 30 of more than 3,000 foreign drug plants. It inspected 100 of 190,000 foreign food plants.


The "political" dimension of saying something is "broken" is seen in comments made by candidate Mitt Romney (from

Romney, 60, a former Massachusetts governor, rallied his supporters in Florida last night and took a shot at McCain, without mentioning him by name. "Washington is fundamentally broken, and we're not going to change Washington by sending the same people back just to sit in different chairs,'' he said.


flashback to 2004: "Simply put, FDA and its Center for Drug Evaluation and Research are broken."

Sunday, January 27, 2008

Gilead claims rejected in re-examination

MedicalNewsToday reported:

The U.S. Patent and Trademark Office on Wednesday (Jan. 23) rejected four patents on Gilead Sciences' antiretroviral drug Viread, Reuters reports. Viread is known generically as tenofovir and is sold as part of Gilead's combination therapies Truvada and Atripla.

According to Reuters, the not-for-profit group Public Patent Foundation, or PUBPAT, last year submitted evidence to PTO that the scientific knowledge on which the four patents were based existed before Gilead held the patents (Beasley, Reuters, 1/23). The foundation in its challenge to the patents submitted prior knowledge that Gilead had not disclosed to PTO during the patent application process. In its challenge, PUBPAT said that the prior knowledge would have prevented PTO from issuing the patents (PUBPAT release, 1/23).


Amy Flood, a spokesperson for Gilead, said that rejection is a "typical step in the re-examination process," adding that although the "process may take some time," the company does not "believe the exclusivity of our product is in jeopardy" (Reuters, 1/23).

FBI's 100th anniversary in 2008 [?]

The story on "60 Minutes" on the FBI role with Saddam Hussein mentioned that 2008 was the 100th anniversary of the FBI.

Some background from the FBI website:

By 1907, the Department of Justice most frequently called upon Secret Service "operatives" to conduct investigations. These men were well-trained, dedicated -- and expensive. Moreover, they reported not to the Attorney General, but to the Chief of the Secret Service. This situation frustrated Bonaparte, who wanted complete control of investigations under his jurisdiction. Congress provided the impetus for Bonaparte to acquire his own force. On May 27, 1908, it enacted a law preventing the Department of Justice from engaging Secret Service operatives.

The following month, Attorney General Bonaparte appointed a force of Special Agents within the Department of Justice. Accordingly, ten former Secret Service employees and a number of Department of Justice peonage (i.e., compulsory servitude) investigators became Special Agents of the Department of Justice. On July 26, 1908, Bonaparte ordered them to report to Chief Examiner Stanley W. Finch. This action is celebrated as the beginning of the FBI.

J. Edgar Hoover entered the picture in 1924:

For the new Attorney General, Coolidge appointed attorney Harlan Fiske Stone. Stone then, on May 10, 1924, selected Hoover to head the Bureau of Investigation.

Port Huron patent dispute: CIRM microcosm?

The Times-Herald reports on an interesting patent inventorship dispute in Port Huron, Michigan:

In 2005, Larry O'Keefe, then manager of the St. Clair County landfill, and his wife, Jan, filed a patent application along with two others - engineers Murugappan Subbarayan and Te-Yang Soong - who helped develop the bioreactor.

According to the O'Keefes' Ohio lawyer, David Ison, after the inventors rejected the county's request to share control of the patent, the officials used "strong-arm tactics" to force Larry O'Keefe out of his position as landfill manager.

[Gary] Fletcher [corporate counsel for the county ] continued, saying that listing the engineers and the O'Keefes as the only inventors is itself misleading.

"From the county's point of view, the only reason that anyone is talking of a patent is because of the project the county initiated," Fletcher said, before adding that the county "paid for the engineering, the location, the whole financing of the project," and it should have been put on the patent as an inventor in the first place.

Fletcher said the county is interested in the patent for the potential royalties the invention could bring.

"We strongly feel the taxpayers should benefit," said Fletcher.

Sounds like John Simpson of FTCR talking about Proposition 71 and CIRM.

Published application 20060222463 (application 11/096170) shows three (3) inventors. The first claim states:

A landfill containing refuse, comprising: at least one wet cell; a septage distribution system in said wet cell; said septage distribution system having defined spaces for temporarily holding septage in said refuse; a quantity of septage; said defined spaces being located to provide controlled flow of said septage into said refuse; said septage temporarily occupying said defined spaces.

For those that don't remember, Port Huron was the source of the Students for a Democratic Society [SDS], with the famous Port Huron Statement in 1962.

Patent Reform 2008: less protection for the underdog?

Alexander Poltorak has an op-ed piece on patent reform (S.1145) in the Christian Science Monitor:

Second, the bill creates a mechanism for endless post-grant oppositions. This would throw a cloud of uncertainty over all issued patents, further diminishing the incentive to innovate and invest in the manufacturing of new products. Many inventors, exhausted from defending the validity of their patent repeatedly, will be forced to abandon their patents.

The bill also proposes changing from the American "first-to-invent" system, which favors true innovators, to a European-style "first-to-file" regime, which favors the winners of a sprint to the patent office. Large corporations, with their legions of patent attorneys on staff, would undoubtedly have the upper hand against small inventors and university researchers in this race.

IPBiz doesn't know if the post-grant reviews ("oppositions") would be "endless," but there should not be any at all. Get the examination right in the first place.

Of "exhaustion," recall the fate of Wilbur Wright, who lost his life in the continued fight over the patent of the Wright Brothers.

Bill Walton says James is better teammate than Bryant

In discussion before the Celtics/Magic game on Sunday, 27 Jan 2008, Bill Walton (commentator for ABC) was asked who he preferred as between Kobe Bryant and LeBron James. Unequivocally making the case for James, Walton kept bringing up the point, who would you rather have as your teammate?

No one on ABC mentioned that Luke Walton is Kobe's teammate.

Nobody in academics ever mentions that the Quillen/Webster analysis of patent grant rate is wrong, either.

The Celtics (34-7 before the game) played, and lost to, the Magic (27-18) on Jan. 27 at Amway Arena, providing the stage for two MVP contenders -- the favorite and a long shot -- to make their case before a national television audience on ABC (WFTV-Ch. 9). Kevin Garnett didn't play.

Using a citation to provide plausible deniability

Bob Park, in discussing Pope Benedict XVI and the current Sapienza matter, wrote:

In a 1990 visit to La Sapienza, the Pope, then Cardinal Ratzinger, supported the trial of Galileo by quoting oddball science philosopher Paul Feyerabend: "The trial against Galileo was reasonable and just." Using a quote to make his point is a standard ploy of the Pope to preserve deniability. "The pontiff didn't say it," the Vatican will explain, "he was quoting someone else."

IPBiz notes that such a procedure is routinely employed by academics. In the legal realm, this device was used in the "97% patent grant rate" matter, wherein many professors would quote the elevated patent grant rate claimed by Quillen and Webster, but were completely incapable of justifying it when challenged.

Similarly, when IPBiz challenged a certain blogger on the Merrill plagiarism matter at the University of Missouri, the blogger immediately went to "I was only quoting someone else." A similar result ensued in the Tom Carhart / Gettysburg Day 3 matter, wherein a favorable reviewer of the book was incapable of defending his review.

Of Park on the Flamm matter, see also

Elsewhere in the 25 Jan 08 WN post, Park wrote: Flamm is now being sued for defamation by one of the authors. He doesn't deny the study was fraudulent, but claims Flamm defamed him by persisting. Initially dismissed by the court under an anti- SLAPP law, the suit against Flamm has been reinstated on appeal. IPBiz notes that there was no appeal. The same judge changed his mind on re-consideration.

FDA pushed for warning on fluoroquinolones

Public Citizen is pushing the FDA for warnings on fluoroquinolones, including CIPRO and LEVAQUIN.

Reuters noted: [Public Citizen] argued in a complaint filed with the U.S. District Court for the District of Columbia.

Public Citizen also argued that the FDA was violating federal law by not ruling on the petition. The agency said in February 2007 it had not yet reached a decision because the petition raised complex issues requiring extensive review, according to Public Citizen.

Maybe they should call it "NBC Nightly Olds"?

NBC Nightly News had a piece on Saturday, 26 January 2008 on a Chinese guest teacher
in Elberta, Alabama. There was even a reference to the Roadkill Cafe in Elberta.

This was not exactly a newsflash. The linguafranca on 14 November 2007 had noted an AP article:

ELBERTA, Ala. (AP) - A small school in south Baldwin County has become the only one in Alabama and the first Catholic elementary school in the country to be chosen for a guest teacher program designed to teach students Chinese.

The program at St. Benedict Catholic School brings in a guest Chinese teacher and is co-sponsored by the College Board and Hanban, China’s Office of Chinese Language Council International.

St. Benedict, which has 158 students in pre-kindergarten through eight grade, decided to add Chinese to its foreign language curriculum, augmenting a Spanish program that launched a few years ago.

A further discussion of the Chinese guest teacher program may be found
at 51sat.

If you are wondering, NBC filmed the story in December 2007. From the Press-Register on 9 Dec. 2007:

Big things are happening at a tiny Catholic school in this hamlet, and the rest of the world will soon know about it.

A crew from "NBC Nightly News" visited St. Benedict School on Thursday to film a report about the school's new Chinese program, taught by Wang Zhenghai. The crew -- correspondent Michelle Kosinski, sound technician Dave Barnes, videographer Lynn Rabren and producer Denise Baker -- spent the day with Zhenghai, visiting classes and attending an evening lecture in Lillian.

Baker said it's unclear when the report will air, although she estimated it would be broadcast "sometime in the next two weeks." The crew conducted interviews with St. Benedict Principal Kendall McKee, parents, teachers, students and Zhenghai, before heading to Lillian for the second installment in the school's Chinese lecture series.

Another example of a poor report on NBC Nightly News may be found at

Wegner: S.1145 to kill Cybor de novo review?

Harold Wegner has a post on IPFrontline suggesting an impact of S.1145 on Cybor, 138 F.3d 1448.

Wegner describes the Leahy approach in S.1145 as taking a sledgehammer to a problem that could be fixed with a surgical needle.

The bulk of Wegner's post is an excerpt from the Senate report on S.1145.

Cha's suit against Flamm is back

The Nov. 2007 decision in the Flamm/Cha business has been re-considered, and the lawsuit (of Cha against Flamm) re-instated.

Apparently, one of the factors involved a PhD "forensic linguistics” expert who analyzed the wording and structure of the single “offending sentence” that is allegedly the basis of the lawsuit. The paid linguistics expert concluded that, taken out of context, the sentence stated that Cha had not only been charged with plagiarism but had been found guilty of it.

IPBiz wonders whether the Flamm/Cha business will lead to another definition of

See also

See also

citizen media law project

Saturday, January 26, 2008

Plagiarism at the New York Press

Editor & Publisher wrote:

In a note to readers in its current issue, the New York City alt-paper said columnist Claudia Lonow, whom it identified as "a television writer based in Los Angeles who had not previously written for a newspaper," plagiarized the questions for the first column because she had no reader questions.

"It had been our understanding that the questions for her first column came from friends," the newspaper said. "She has told us she was unaware that using questions from Savage's column was a breach of journalism ethics. She has offered her resignation, and we've accepted it. We apologize to our readers, and to Dan Savage, for this error in judgment."

IPBiz notes that the Poshard-popularized concept of inadvertent plagiarism arises. A Seattle blog noted:

Savage got an e-mail Thursday morning from the Press's former advice columnist apologizing for Claudia Lonow's actions, he said. The paper's editor-in-chief apologized publicly on the Press's Web site.

"I don't think she did this on purpose," Savage wrote in an e-mail Thursday. "The borrowing was an accident, not malicious, and doesn't rise to the level of plagiarism, in my opinion. She could've avoided this ... if she'd said, 'I don't have any letters yet, so here are some I swiped from 'Savage Love.'' And I would've given her my permission to use 'em."

Monsanto v. Bayer Bioscience

The Federal Circuit affirmed a decision by Judge Webber in ED Missouri that Bayer's US 5,545,565 is unenforceable for inequitable conduct. The CAFC also notes that Judge Webber had the jurisdiction to declare three (3) other Bayer patents unenforceable.

The patents concerned the insertion of a gene for Bt toxin into plants through transformation. For background, the CAFC cited itself: 243 F.3d 1316.

There had been earlier a summary judgment of unenforceability because of inequitable conduct. This is a RARE event, and that judgment was vacated by the CAFC. After the facts were developed, however, the SAME result ensued.

For background on inequitable conduct in this case, the CAFC cited Kingsdown and Bruno v. Acorn, 394 F.3d 1348.

The inequitable conduct in the case revolved around material prepared by Dr. Wayne Barnes. There was an initial abstract and there was a poster prepared by Dr. Barnes for a scientific meeting. Bayer disclosed the abstract as prior art, but Bayer did not disclose notes taken by one of its employees, which notes were based on observation of the poster itself. Because the information in the notes was in sharp contradiction to arguments made by Bayer before the patent examiner, the district court found, and the CAFC affirmed, inequitable conduct. All claims of the '565 patent were rendered unenforceable. Further, the CAFC let stand the impact on the other three patents, which were no longer at issue in the infringement case as it developed.

US 5,545,565 has the following continuity chain:

This application is a continuation of U.S. Ser. No. 08/133,965, filed Oct. 8, 1993, now abandoned, which is a divisional of U.S. Ser. No. 08/014,148, filed Feb. 5, 1993, now U.S. Pat. No. 5,317,096, which is a divisional of U.S. Ser. No. 07/555,828, filed Jul. 23, 1990, now U.S. Pat. No. 5,254,799, which is a continuation of U.S. Ser. No. 06/821,582, filed Jan. 22, 1986, now abandoned, which is a continuation-in-part of U.S. Ser. No. 06/692,759, filed Jan. 18, 1985, now abandoned.

The Barnes abstract is mentioned in the following way:

Barnes (Oct. 1985) Abstracts of the 1st International Congress on Plant Mol. Biology; Savannah, GA, USA, Abstract No. OR-21-10.

One can determine that the "1st International Congress" was held from Oct. 27 to Nov. 2, 1985. That date would make material at the conference prior art to anything ADDED to the '759 application in the '582 application. 35 USC 102(a) negates patentability if a proposed invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent,

Of Wayne M. Barnes, see portions of the Washington University website.

PatentBaristas has

Friday, January 25, 2008

Patent reform: bad for (small) business

Following up on the IPBiz post Does the current patent reform bill help small business in any way? concerning an article in NJBiz, IPBiz invites NJBiz to read the filing by Ron Katznelson concerning the manner in which the "patent reform" on the rules on continuing applications has adversely impacted small business.

It's available in the form of an amicus brief in Tafas v. Dudas:

See also Dr. Rick Belzer's paperwork burden analysis of the Rules in Tafas' latest submission in
Rick's paper is Exhibit 13, available at


See a post at PatentHawk describing a brief filed by Tafas which includes the text:

In short, the USPTO is saying that it intends to reduce its backlog by restricting and/or denying patent applicants the ability to make filings (e.g., continuations and multiple claims) expressly contemplated by various provisions of the Patent Act. It is only a small exaggeration to say the USPTO’s approach would be akin to the manager of an amusement park seeking to reduce lines for rides by not admitting anyone to the park. Only applying the most extreme bootleg logic could such an approach be characterized as reasonably calculated at “expediting” or “facilitating” a reduction in amusement park lines. The same is true here.

IPBiz notes a variant on this amusement park theme from an episode in South Park

IPBiz notes the Tafas brief also discusses re-work:

The USPTO has continually argued that continuation applications are inappropriately adding to its backlog as they comprise nothing more than “rework.” (See Testimony of Jon W. Dudas before the subcommittee on Intellectual Property Committee on the Judiciary April 21, 2005 (p. 9), Ex. 26 to Rueda Declaration dated December 20, 2007 (“Rueda Decl.”). Nonetheless, the USPTO cites no evidence to support this assertion in the record other than rehashing Mr. Dudas’ own earlier unsupported assertion, which type of ipse dixit statement does not become fact through mere repetition.

No wonder CIRM wants to emulate the NIH: "conflicts of interest"!

In February 2007, IPBiz noted: In the past, there has been much discussion of the secrecy of grant proposals for research on embryonic stem cells at CIRM. Secrecy was defended on the basis that CIRM was acting just like NIH (or NSF).

One notes that the "be like Mike" philosophy is accurate, if not effective. Nature (online, 23 Jan 08), in an article titled NIH in the dark over conflicts of interest observes:

The US National Institutes of Health (NIH) relies on an honour system that leaves it unaware of the details of situations in which its external grantees have financial conflicts of interest, according to a report released on 17 January.

The report, from the inspector-general of the Department of Health and Human Services, found that nearly half of the NIH's 24 grant-making institutes and centres were unable to provide any of the financial disclosure reports they received from external institutions between 2004 and 2006. Of the 438 reports that were produced, 89% were devoid of details describing the conflicts or how they were being managed.

Such details are not required under current rules; the report recommended that this change. But the NIH disputed that advice, saying that if it agreed to accept detailed reports, it would be held accountable for oversight duties that are properly the job of grantees' institutions.

Let's focus on the line: if it agreed to accept detailed reports, it would be held accountable for oversight duties which might be viewed as "if the NIH knew about the problems, someone might think the NIH should do something about the problems."

In Zipped Lips and CIRM's $263 Million, californiastemcellreport notes:

But only about one out of three of the directors will be able to vote on or even discuss some of the key issues in what is the largest round of grants ever made by CIRM.

The reason? They are associated with institutions that are seeking big chunks of the $263 million jackpot. In many cases they have conflicts of interests that CIRM's attorneys say make it illegal for them to vote or even participate in debate.

See also

Conflicts of interest. Prop 71. NIH

Edward Penhoet: only 1 in 200 NIH grants results in intellectual property

Thursday, January 24, 2008

Plagiarism in the restaurant business

Michael Bauer of SFGate wrote:

A review I wrote of the restaurant Terzo in San Francisco more than a year ago is causing a stir in Portland, because some of the words and phrases I used turned up in an article written by chef Stu Stein to describe his Portland, Ore., restaurant Terroir.

I became aware of this heist several days ago when alerted by an email. Then a reporter from Willamette Week called me to get my reaction to a posting Stein wrote on his Restaurants and Institutions blog, Earth2Table.

(Update, 1/23: Read her piece here.)

On December 13, he wrote:

"The message we'd hoped to get across was, 'Terroir is the quintessential Pacific-Northwest restaurant. A place that feels like a real restaurant. It's a copacetic blend of good design and focused intent. Terroir is that rare restaurant that seems so right for its location, yet with an appeal far beyond its neighborhood. A place that will convince you that small plates, civilized dining and reasonably priced food can coexist.' "

Here are excerpts from the first part of my review:

"Few restaurants are as clear-cut in their appeal as Terzo. From the minute you step into the chic room, you sense you'll have a great experience. It offers a toasty smell, personable staff and an understated, grown-up look. It feels like a real restaurant; the place doesn't need overwrought lighting, kitschy themed decor or any other gimmick to succeed. It's a rarity for a restaurant to seem so right for its location, but Terzo is perfect for its Cow Hollow neighborhood, with a copacetic blend of good design and focused intent."

And my last sentence:

"I thought I was growing tired of the tapas-inspired concept, but Terzo has renewed my enthusiasm, proving that small plates, civilized dining and reasonably priced food can coexist."

Of the 42 comments to this piece at SFGate, there was no mention of Glen Poshard or of "inadvertent plagiarism."

There were some interesting comments:

For a more enticing plagiarism story, see this:

Great case on the subject, from the 80s I think, where the court used "Weasles Ripped My Flesh" as an example of the rare short phrase or title that might be copyrightable. Ninth Circuit. Zappa.

A commenter (twinfan) at SFGate wrote:

This seems like a real stretch to me. What is he infringing on? It's not like this is a rival critic. It does seem a bit lazy, maybe even sleazy: but not actionable. Here's a phrase Bauer highlights as being heisted:" small plates, civilized dining and reasonably priced food can coexist." I'd wager every penny I have ( 123 of 'em) that that phrase has been used dozens of times before Bauer's review. Who gets to sue who? Lighten up, MB seems to get all het up pretty easily. I mean, counting bumps and all- sue that waiter for assault, Michael...

A Google search of

+"small plates" +"civilized dining"+"reasonably priced food"

produced only eight (8) hits.

IPBiz notes that if the theme "plagiarism in Portland" sounds familiar to you, there's good reason. Although Portland is unlikely
to overturn Harvard ("plagiarize with pride") University as the plagiarism capital, it's in the running.

Whirlpool files ITC action against LG Electronics

LG Electronics, no stranger to patent cases (at the Supreme Court and elsewhere) is involved in a case with Whirlpool over refrigerators.

Reuters stated: Whirlpool said on Wednesday [23 Jan 2008] it filed the patent infringement action with the International Trade Commission (ITC), charging several LG refrigerator models infringe five Whirlpool patents. It asked for an ITC order to stop LG from selling and importing infringing products into the United States.

Wednesday, January 23, 2008

Fear of getting caught not really a plagiarism deterrent

A commentary in Nature about plagarism and multiple publication titled "A Tale of Two Citations" concludes with the words:

But above all, the fear of having some transgression exposed in a public and embarrassing manner could be a very effective deterrent. Like Dickens's Ebenezer Scrooge, the spectre of being haunted by publications past may be enough to get unscrupulous scientists to change their ways.

The authors probably have not been in touch with the Poshard matter, which demonstrated that "unintentional plagiarism" has diminished the fear of having a transgression exposed.
See IPBiz post:
Separately, the Schon incident was not a deterrent to the Hwang incident.

The authors also noted: Scientific productivity, as measured by scholarly publication rates, is at an all-time high.
They cited-- but don't seem to mention a recent NSF study to the contrary.

Of idea-stealing: Unlike repeated publication by the same authors, simultaneous publication is rarely observed for duplicates that do not share authors (see Supplementary information), undoubtedly due to the fact that it is usually difficult to re-use someone else's work before it appears in print — unless the duplicating author also happens to have been a referee of the original. Although anecdotes abound of referees stalling a publication in order to give themselves time to duplicate and publish the same result first, the general lack of duplicates with different authors appearing in rapid succession suggests that this is either rarer than feared, or that the perpetrators do a good job of concealing it.

The authors appear unfamiliar with the now-classic story of a certain submission on 1-2-3 superconductors.

***UPDATE. 24 Jan 2008***

SUE GOETINCK AMBROSE, in the Dallas Morning News, in an article titled, UT Southwestern finds possible plagiarism in scientific database, wrote:

Dr. Joseph Kuhn, director of general surgical research at Baylor University Medical Center at Dallas, was among those whose work appears to have been substantially copied. UT Southwestern researchers reviewed a 2002 article by Dr. Kuhn and colleagues and found that in 2007, researchers from France published a highly similar article in a different journal. Overall, 40 percent of Dr. Kuhn's article was duplicated in the French article, including the entire introduction and methods section, the UT Southwestern database indicates.

Dr. Kuhn said he didn't know about the French paper.

"I'm not terribly surprised," he said. "The temptation to copy and paste is not just in high schools."

Dr. Roy Fleischmann, a rheumatologist and clinical professor of medicine at UT Southwestern, may also be a victim.

About 55 percent of a 2003 article by Dr. Fleischmann is duplicated in a 2004 article in a different journal, authored by Dr. Lee Simon, a rheumatologist at Beth Israel Deaconess Medical Center and Harvard Medical School in Boston.

Dr. Fleischmann said he was upset when notified of the duplication by Dr. Garner but is reserving judgment until the case is resolved by the two journals.

"It's distressing," he said. "You spend three or four months writing an article, and then it's duplicated. I don't know whether the second journal asked for permission to duplicate."

Dr. Simon, speaking through a representative, declined to comment and directed questions to the journal in which he published. The journal's editor did not reply to an e-mail inquiry.

Ambrose also wrote:

Still, merely recycling one's own work to stretch a résumé hurts the scientific enterprise, said Thomas Mayo, a lawyer and medical ethicist at Southern Methodist University.

"You have an unethical gaming of the system by an individual who gets two or more credits from one article," he said. "That's the measure for promotion, salary, grant awards. If you have rigged those numbers, the rewards that come your way are a form of ill-gotten gain."

IPBiz thinks of the way Google ranks webpages.

The Scientist blog noted:

One of the nabbed authors is a "big shot" at "one of the most prestigious universities in the United States" who is now being investigated by a journal for plagiarism, author Mounir Errami told the Chronicle of Higher Education.

Under a title Text tool to give cheats a blasting, news com au notes:

They developed and used an automated text-matching tool, eTBLAST, to trawl through more than 7 million related scientific abstracts held in the online database Medline, which indexes more than 5000 international journals.

"We estimate there are potentially more than 200,000 duplicates in Medline (now)," they reported last night in the journal Nature.

They claimed that not only can eTBLAST detect suspect publications, it could be used to discourage "unscrupulous scientists" from behaving badly.

from the Chronicle of Higher Education:

After two researchers warned last week that many examples of plagiarism may mar biomedical journals, a paper flagged by their search process has been retracted.

The Boston Globe reported yesterday that the journal Best Practice & Research Clinical Rheumatology had retracted a 2004 paper by Lee S. Simon, an associate clinical professor of medicine at Harvard University, because it contained overlapping text with a 2003 article in the journal Expert Opinion on Drug Safety.

On a plateau in American scientific publications, see

Monday, January 21, 2008

Does the current patent reform bill help small business in any way?

Within an article titled Proposed Patent Law Changes Could Help, Hurt Small Businesses, NJBiz notes in the first paragraph:

Some quirks in the [proposed] law can make it tough for new entrants to patent their inventions, while other anomalies may cause lengthy delays in patent litigation.

The article was not clear on how proposed changes could "help" small business.

There was mention of issues with patent in the area of taxes:

A proposal in the House version of the bill would prohibit the ability of accountants and others to get a patent for their tax strategies, or methods of minimizing tax liabilities, says Wall.

That would be fine for smaller CPAs, who complain that the prospect of paying royalties to a patent holder every time they implement a tax strategy could inhibit their ability to offer creative advice. But Wall says the Senate version of the reform act does not address this issue, diminishing its chances of becoming law.

IPBiz notes that the typical targets of so-called trolls are larger companies, not smaller companies. Smaller companies can be targets though. Nevertheless, this particular change would NOT seem to be one that favors small business over large business. It would remove a certain area from patenting for ALL people.

The article suggested that the patent reform proposal of "first to file" might be selectively harmful to smaller inventors:

If Congress adopts a first-to-file approach, it could streamline the process and prompt faster filings. But the change could also put smaller, cash-starved companies at a disadvantage since large companies often have the financial resources to quickly apply for patents without worrying about their commercial feasibility, notes Mentlik. In contrast, smaller enterprises may want to do more commercial research before shelling out thousands of dollars on the patent process.

“In theory, first to file might give some edge to bigger businesses,” says Mentlik. “But overall, I think that encouraging faster filing will mean that the public won’t have to wait as long to get the benefits of new inventions.”

IPBiz notes several problems with this analysis:

#1. The number of applications that become involved in interferences arising from the current "first to invent" process is miniscule, less than 1% of all applications. How eliminating a small issue will streamline the process in the face of an application backlog of over 700,000 applications is not clear.

#2. One has to distinguish "faster" filing from "more frequent" filing. Entities with greater numbers of patent attorneys might be encouraged to file more frequently in "first to file," but the contents of each application will be less. Changing from first to invent TO first to file does NOT change the number of scientists, engineers, and simple inventors. It will change "how big" each "report" is, and it will give more work to patent attorneys to do more frequent filings.

#3. The idea that this is "smaller enterprise" vs. larger enterprise issue is misleading. Universities (say, such as Princeton) are not "smaller enterprises) [Princeton being the largest employer in Mercer County). Princeton does not have a big staff of patent attorneys, or a big budget for filing lots of applications, even though they have lots of ideas. Universities will be disadvantaged by changing to first to file.

#4. The idea of enhancing the public's obtaining the "benefits of new inventions" faster is misleading on several levels. To the extent one views the public's benefit as the receipt of information (the actual purpose of the patent system), current law provides for the publication of applications in 18 months (with certain exceptions). This has NOTHING TO DO WITH first to file vs. first to invent. To the extent one views public benefit as the receipt of tangible new products (innovation changing the way the public lives), one notes that 90% or so of ISSUED patents don't make anybody any money (they are NOT commercialized). Again, this has nothing to do with first to file vs. first to invent.

One can view other relevant posts on IPBiz, including:

One can gauge the "true colors" of the position of small business on patent reform by looking at
the strenuous opposition by small business to patent reform. See for example the IPBiz post:

The NJBiz article also had the text:

A move like that could drive the cost of an uncomplicated patent application to the $20,000 range, nearly double the current average, he adds. Wall worries that a hike like that could make it tougher for patent-heavy business proposals to attract venture capital.

As IPBiz has noted, the typical venture capitalist will quickly tell one: "patent are not why we are investing."
See for example:

Venture capitalist stresses management; ideas are a dime a dozen
and IPBiz posts cited therein.

PatentHawk flames NERA

In a post titled Trolling, PatentHawk goes after NERA, beginning with the text:

Academics from NERA, a self-proclaimed economic consulting hothouse, who spurt that they "understand how markets work," demonstrate to the contrary in a report on the mythical patent troll, scintillating to a degree that guarantees no loss of sleep.

Spending a page and half on delineating trollishness, they roll a dung ball, deciding: "Each of these definitions presents a series of tensions and grey areas."

One commenter wrote: Economics, one of the "soft" sciences; aka "the study of the obvious". IPBiz reminds folks that the so-called National Academy of Sciences report on patent reform is truly the NAS/STEP report, featuring economists writing on patent reform.

Another commenter wrote: NERA is a subsidiary of Marsh & McLennan, the giant insurance broker. It looks like their experts are hired guns in a variety of big-dollar litigation matters.

From the web site:
"We were Microsoft's economists in the US Department of Justice's antitrust challenge"

See also

Generics settle

Ranbaxy settled with GSK over Sumatriptan Succinate, the generic version of GlaxoSmithKline's Imitrex.

Dr. Reddy's settled with Novartis over Rivastigmine Tartrate, a generic version of Novartis' Alzheimer's drug Exelon.

Saturday, January 19, 2008

It's not SCNT cloning that matters; it's the stem cell line

Of the recent work by Stemagen, the Boston Globe noted:

"It's very convincing, [it's] just not that big a leap," said Dr. George Q. Daley, president of the International Society for Stem Cell Research and a stem cell scientist at Children's Hospital Boston. "The real holy grail is to generate a pluripotent stem cell line from a cloned human blastocyst. It's only a matter of time before some group succeeds."

The Globe also stated:

"No other scientific group has documented the cloning of an adult human cell, much less been able to grow it to blastocyst stage," said Andrew J. French, Stemagen's chief scientific officer and lead author of the research.

A blastocyst is an embryo about five days old and containing 50 to 200 cells. This is the stage at which stem cells - capable of forming any of the body's 220 cell types, including blood, bone, and nerve tissue - can be harvested for research or therapy, a process that destroys the embryo.

See also:

Of the Yamanaka work , note the following from the Australian:

The Office of Pharmaceutical Industry Research reported last year that Japanese biotech drug development, as a ratio of overall drug development, lagged the US, Britain, France and Germany by about 50 per cent.

The disappointing performance in applied biotechnology is often attributed to Japanese science's alleged weakness at radical innovation, though it's a generalisation that doesn't sit convincingly with the nation's international scientific patents, or Nobel Prize winners over the past 20 years.


Last week, Yamanaka told reporters in Tokyo that aspects of the iPS discovery - though not stem cell therapy, which might be a decade away from clinical application, even if the research continues going well - have reached another breakthrough point.

"The other applications, like toxicology and drug development, it's ready to go," he said.

"We can use iPS cells in these applications today, if somebody can pay a lot of money - like pharmaceutical companies."

Those applications involve using iPS cells to create, for instance, neural cells outside someone's body so they can be tested for personal disease factors, or for an exactly tailored drug treatment.

"Translational research", the move from pure research to clinical applications, might not start immediately. The Yamanaka method of producing iPS cells is expensive, inefficient and time-consuming

And it has not yet been demonstrated that iPS cells have all the positive qualities of embryonic stem cells.

However, the opportunity to get in on the ground floor of this technology must be highly attractive to pharmaceutical giants.

[IP comes up]

Yamanaka says Kyoto University's intellectual property department is already in discussions with pharmaceutical and venture capital firms.

Yamanaka's team has moved stem cell research closer to clinical application than anyone else.

Yet he fears the moment of opportunity may be fleeting.

TechCrunch wrong on reform

Erick Schonfeld at TechCrunch writes of patent reform 2008:

A much bigger problem is the general quality of patents that are approved. Hire and train more patent examiners and raise the bar for which inventions deserve a patent, and you will fix a lot of the underlying problems with the broken patent system.

The Reform Act of 2007 does try to take a few steps in this direction by making provisions for post-grant challenges that could nullify patents that are too obvious or replicate prior inventions. It also tries to streamline the review process by switching to a first-to-file, instead of a first-to-invent, system. This latter provision seems to favor big companies with patent-filing bureaucracies rather than small-time inventors, but it is the way most other countries do it and makes it a lot simpler to determine who was first. Neither of these steps, however, adequately address the bigger problem of poor patents being granted in the first place.

The second sentence is a non sequitur. Post-grant review is NOT a step in the direction of quality patents. If patents are not being examined properly, the right approach is to fix the examination process, not to REVIEW results of a (presumptively bad) examination process.

Schonfeld also writes:

The sad truth is that patents have always been more valuable in the courthouse than in the marketplace. But focusing on the size of awards is treating the symptom instead of the disease. Too many patents are granted that should never see the light of day in the first place.

IPBiz suggests Schonfeld review "how" the Wright Brothers did at the courthouse, in terms of "value" for their patent. Further, Chester Carlson, of xerography fame, had to create his own marketplace (IBM, Kodak, et al. were NOT listening), and he extracted no value from the "courthouse." Most patents are not litigated at all, and there are plenty of patents that have had value outside of the courthouse.

Of a comment on an earlier IPBiz post:

1. It seems kind of insulting that you directly analogize a putative inventor's patent application to a standardized, interchangeable car part. I much doubt that Deming himself would have thought his methods directly applicable to "inspection" of patent applications.

2. Deming did not generally favor 100% inspection and preferred more limited methods of statistical inspection. Because of this, I doubt that Deming would have like ex partes exam, even if patent applications could be analogized to car parts.

IPBiz notes-->

As LBE has written, Deming explicitly used "quality" techniques to analyze government services, including that provided by the US Post Office. Further, Deming did NOT consider quality approaches limited to methods to make standardized, interchangeable parts. The poster was dead wrong in point 1, and obviously not familiar with the writings of Deming.

Of point 2, Deming did not favor inspection AT ALL to resolve problems with production. One inspected to identify the problem, and then one fixed production. Thus, the commenter's point 2 missed the whole issue. Deming would NEVER advocate using an inspection technique to resolve a production problem. Talking about "what kind of inspection" is not the issue.

Microsoft "spyware" for monitoring activities?

An InfoWorld piece, provocatively titled Microsoft 'spyware' to jack into your brain waves notes:

According to a report in The Times, the patent, which was last month published by the U.S. Patent Office after an 18-month filing period, describes a monitoring system that would enable computers to wirelessly pick up on a user's heart rate, galvanic skin response, brain signals, body temperature, facial movements and expressions, blood pressure, and respiration rate.

Although the sense of this sentient system would seem to be to provide nefarious means for employers to spy on employees, the patent describes a more empathic rationale. Detecting frustration by mapping biorhythmic changes against profiles corresponding to employee's weight, age, and health, the system would gently nudge managers to conduct a quick, how-are-we-doing-today pop in -- certain to ensure further off-chart trajectories for the monitored biorhythms that alerted the system in the first place.

The Times of India emphasized the aspect of monitoring employee PRODUCTIVITY:

Microsoft is developing software that may help employers to monitor the productivity, competence and physical well-being of employees while sitting at a distance.

The software will even reveal when an employee is stressed or frustrated by reading his/her heartbeat and facial expressions.

A patent application filed by the company reveals that the whole process will be based on a computer system that links workers to their computers through wireless sensors that measures their metabolism.

The system will be able to measure workers' heart rate, body temperature, brain signals, movement, facial expression and blood pressure.

However, civil liberties groups and privacy lawyers are criticising this project, voicing concerns that it may lead to employees’ dismissal on the basis of a computers assessment of their physiological state.

Ina Fried of CNET News got into a different angle:

Microsoft's patent push is stimulated by a number of factors. One is competition and trying to make sure that Microsoft's rivals don't get access to key innovations. However, the company also began a broad intellectual-property licensing push several years ago, under which it licenses technology to many companies big and small. The company has signed a slew of patent cross-licensing deals since then, the most recent being Tuesday's deal with Japan's JVC.

A number of Microsoft's recently published patent applications cover search and advertising, areas in which Microsoft is investing a lot as it tries to play catch-up with Google. There are so many of these, I'll save them for a separate post, but recent filings cover things such as creating a spot market for video ads, and creating marketing that uses a combination of video and banner advertisements.

IPBiz notes that Microsoft simultaneously has a "patent push" (for Microsoft) and "complaints about patents" (of those other than Microsoft).


Microsoft has published application 20070300174 (MONITORING GROUP ACTIVITIES ) the first claim of which is

An activity monitoring system that facilitates managing and optimizing user activity automatically to improve overall user productivity and efficiency comprising:a monitoring component that can monitor user activity conducted on one or more computing devices; andan activity management component which can process and evaluate user activity data to assess user performance on their respective activities and the current allocation of system and human resources.

Paragraph 62 notes: The method 800 involves continuously monitoring user activity at 810. At 820, the method can detect that a user (target user) needs assistance with his activity (target activity). Detection for assistance can be implicit or explicit. For example, various physiological sensors can detect stress or frustration (e.g., elevated blood pressure, heart rate, or respiration rate). Alternatively or in addition, a time monitor can detect that the user has exceeded the recommended or allotted time to complete the activity (or a sub-part thereof). Otherwise, the user can expressly request assistance such as through clicking a button, sending a message, or making a call. Because user activity is continuously monitored at 810, the method 800 can locate at least one assisting user for the target user at 830.

IPBiz infers that the Times of India may have been more "on the money" here. This is application 11/426818.

Separately, note paragraph 73 of US published application 20070299949 says: A person's contact information creates a relationship between people--this contact information is a resource. Rich information about a person, e.g., brain waves, heart rate, respiration rate, galvanic skin response, environmental data, is interesting data about the person which can be interrelated. As well, all of this information can have a relationship with an activity.

As a general matter, Microsoft has published application 20070299795, titled CREATING AND MANAGING ACTIVITY-CENTRIC WORKFLOW, the first claim of which is

A system that facilitates management of an activity-centric workflow, comprising:an interface component that accesses information related to an activity; anda workflow processing component that analyzes the information and establishes a workflow related to at least a subset of the information.

Claims 19 and 20 are

19. A system that facilitates management of an activity-centric workflow, comprising:means for accessing activity information;means for analyzing the activity information;means for dynamically establishing a plurality of activity-centric workflow components from at least a subset of the activity information; andmeans for generating the activity-centric workflow based at least in part upon a subset of the plurality of activity-centric workflow components.

20. The system of claim 19, further comprising means for monitoring a plurality of sources to identify the activity information.

One also has published application 20080005053, the first claim of which is

A system that responds to human communications, comprising:a recognition component that dynamically monitors communications for an apparent intent related to a task; anda task component that receives, at least in part, an apparent intent from the recognition component and associates it with a task to form a candidate task for prompting a user.

In a different vein, note text from US published application 20070118043 :

[0002] Conventionally, an individual often needs to seek the input of a human personal trainer to achieve the individual's exercising goals. The use of a human personal trainer can be expensive and inconvenient. For example, besides paying the human personal trainer, the individual needs to take the human personal trainer along during an exercising routine. Therefore, it is desirable to provide a means allowing a person to achieve his or her exercising goals during an exercising routine without the aid of a human personal trainer.

[0003] In addition, music has been part of the exercise routines for many people. Research has identified positive effects of music on exercise performance. For example, different studies agree that music positively influences users' exercise endurance, performance perception, and perceived exertion levels. The reasons proposed to explain such positive effects include that music provides a pacing advantage and a form of distraction from the exercise, that music boosts the moods of users and raises the confidence and self-esteem of the users, and that music motivates users to exercise more. It is therefore desirable to take advantage of the positive effects of music in exercise performance to enable users to more easily achieve their exercise goals.

[0004] It is not surprising, therefore, that music has increasingly become part of the exercise routines of more and more people. In particular, in recent years, MP3 players and heart-rate monitors are becoming increasingly pervasive when people exercise, especially when they are walking, running, or jogging outdoors. For example, it has been common in the community of runners to prepare a "running music playlist" to help runners in their training schedules. A runner may even develop a script that creates a running music playlist in which music pieces stop and start at time intervals to indicate when to switch from running to walking without the runner having to check a watch.

[0005] However, none of the existing systems directly exploits the effects of music on human physiology during physical activities in an adaptive and real-time manner. The existing systems and prototypes developed so far usually operate in a one-way fashion. That is, they deliver a pre-selected set of music in a specific order. In some cases, they might independently monitor the user's heart rate, but they do not include feedback about the user's state of performance to affect the music update. Therefore, it is desirable to provide a means that monitors a user's physiology and movements and selects music for the user accordingly.

[0006] While specific disadvantages of existing practices have been illustrated and described in this Background Section, those skilled in the art and others will recognize that the subject matter claimed herein is not limited to any specific implementation for solving any or all of the described disadvantages.


[0007] This summary is provided to introduce a selection of concepts in a simplified form that are further described below in the Detailed Description. This summary is not intended to identify key features of the claimed subject matter, nor is it intended to be used as an aid in determining the scope of the claimed subject matter.

[0008] Aspects of the invention provide a system (hereafter "MPTrain") that utilizes the positive influences of music in exercise performance to help a user more easily achieve the user's exercising objectives.

[0009] One aspect of the invention implements MPTrain as a mobile and personal system that a user can wear while exercising, such as walking, jogging, or running. Such an exemplary MPTrain may include both a hardware component and a software component. The hardware component may include a computing device that a user can carry or wear while exercising. Such a computing device can be a small device such as a mobile phone, a personal digital assistant ("PDA"), a watch, etc. The hardware component may further include a number of physiological and environmental sensors that can be connected to the computing device through a communication network such as a wireless network.

[0010] The software component in the exemplary MPTrain may allow a user to enter a desired workout in terms of desired heart-rate stress over time. The software component may assist the user in achieving the desired exercising goals by (1) constantly monitoring the user's physiology (e.g., heart rate in number of beats per minute) and movement (e.g., pace in number of steps per minute), and (2) selecting and playing music with specific features that will guide the user towards achieving the desired exercising goals. The software component may use algorithms that identify and correlate features (e.g., energy, beat or tempo, and volume) of a music piece, the user's current exercise level (e.g., running speed, pace or gait), and the user's current physiological response (e.g., heart rate).

"What was he thinking?"

Michael Arkush, of Yahoo! Sports, interviewing recently-fired Golfweek (former) editor Dave Seanor:

How do you respond to people who say, 'What was he thinking?'

Seanor: It's an easy question for someone to ask who has never sat in an editor's chair or worked in journalism. We were thinking, as unbelievable as that might seem to people. Perhaps we overthought it in a way. We weren't trying to be sensational. It's interesting that a lot of the objection, 'Oh, they're just trying to sell magazines.' We're 99 percent subscriptions. We're not even on the newsstand.

Journalist Seanor's lack of connection to reality can be seen in the following from the Star-Telegram [DOUG FERGUSON (AP)] :

The editor of Golfweek magazine said he was overwhelmed by negative reaction to the photo of a noose on the cover of this week's issue, illustrating a story about the suspension of a Golf Channel anchor [Tilghman] for using the word "lynch" in an on-air discussion about how to beat Tiger Woods.

"We knew that image would grab attention, but I didn't anticipate the enormity of it," Dave Seanor, vice president and editor of the weekly magazine, said from the PGA Merchandise Show in Orlando, Fla.

"There's been a huge, negative reaction," he said. "I've gotten so many e-mails. It's a little overwhelming."

The Ft. Worth Star-Telegram has a picture of the cover, and noted: Seanor said editors at the magazine debated several choices for a cover, and he took responsibility for the noose. The title of the cover is "Caught in a Noose," with a sub-title, "Tilghman slips up, and Golf Channel can't wriggle free."

The Kansas City Star summed up the matter:

Of course the magazine would cover this story, even if Woods, through his agent, called it a “nonissue.” And the decision to put a noose on the cover was bold and provocative and certain to attract attention — and probably boost sales.

And dumb. A terrible idea.

The cover didn’t attract attention to the issue, only to itself.

Everyone involved in this decision should have known better.

And, YES, there is a connection to the Poshard "inadvertent" plagiarism matter, with Doug Ferguson quoting Tim Finchem:

"Over the years, many PGA Tour players and staff have had the chance to get to know Kelly [Tilghman]," he said. "Knowing her, her comment seems to us to be very uncharacteristic and we believe it was completely inadvertent. We have no reason to believe that she was intentionally malicious in her remark."

One could ask SIU President Poshard what he was thinking at the time of his 1984 Ph.D. thesis, or in 2007 when he came up with the theme of inadvertent plagiarism, but it is evident that plagiarism simply is not a firestorm issue to most people.

IPBiz has noted the naivete of certain journalists covering intellectual property/patent issues concerning California's CIRM:

The naive leading the blind at California's CIRM?

Friday, January 18, 2008

EETimes discusses patent reform 2008

Rick Merritt of EETimes has an article titled Patent reform debate heads to U.S. Senate which includes the text:

The number of patent lawsuits heard in federal district courts doubled between 1988 and 2001, from 1,200 to nearly 2,400, according to a report from the National Research Council. Meanwhile, the number of patent attorneys in the United States rose 39 percent, more than six times the growth rate overall for attorneys, the report found. [Of course, "patent attorneys" are those who can prosecute patents before the USPTO, a different proposition from attorneys who litigate. Also, one notes that Professor Lemley, who advocates reform, is not a "patent attorney."]

The Senate's Patent Reform Act of 2007, introduced last April, generally follows the line of HR1908 which calls for the U.S. to shift from its first-to-invent to a first-to-file policy more in line with patent offices around the world. The first-to-file approach reduces sometimes thorny litigation aimed at establishing when concepts were invented and eases a path to global patent harmonization. [Interferences, arising BECAUSE OF the "first to invent" system are a MINISCULE part of the landscape of contested patents.]

Others said the bills in Congress fail to address fundamental issues in the process at the beleaguered patent office. The United States Patent and Trademark Office has a backlog of as many as 750,000 patent applications. The present Senate bill does say something about funding and the fee diversion issue.

The Merritt article did NOT mention post-grant review (aka opposition). But see the IPBiz post: Patent reform, again in 2008

The Merritt article did NOT note that S.1145, in current form, does NOT extend a grant of rule-making authority to the USPTO.
Without such a grant, the proposed new rules on continuing applications, currently enjoined by Judge Cacheris, are unlikely to survive. See also the letter of GSK of 16 Jan 08 to Senators Leahy and Specter.

The Merritt article did note:

The IEEE-USA came out strongly opposed to the bill, saying it would weaken the patent system and thereby harm an already bad job market for US engineers. The group also compiled a list of about 200 generally medium-sized companies and universities who opposed the bill. The list included some large concerns such as the AFL-CIO, the American Intellectual Property Lawyers Association, General Electric, Medtronic and Texas Instruments.