Saturday, May 31, 2008

People with bad feelings about IP matters?

On the topic, [Docket No. PTO-T-2007-0051] RIN 0651-AC18 Changes in Rules
Regarding Filing Trademark Correspondence by Express Mail or Under a
Certificate of Mailing or Transmission, IPBiz was cited concerning the McKenna incident in Chicago:

In December 2006, a disgruntled former client shot a patent attorney in Chicago, alleging he had been cheated in connection with a patent application. This shows that some people do have extremely bad feelings about intellectual property matters and may be motivated to hack the Office's electronic system, in order to seek revenge on the Office for rejection of their trademark applications (source:

"Ethanol Boom Heralds Changes in Brazil"

The 29 May 08 issue of "The Epoch Times" sub-leads with "For sugar cane growers, old customs may fade away was world demand [for ethanol] rises."

The article notes that Brazil's largest sugar/ethanol group [Cosan] bought some Exxon/Mobil assets in April 2008. Though the article is not explicit, it suggests that these assets might be related to fuel distribution.

The article also notes that BP bought half of Tropical Energia SA, which is a joint venture between Santelisa Vale and Maeda.
Santelisa Vale itself was created through a merger of Santa Elisa and Vale do Rosario. Goldman Sachs owns a minority stake, as does Brazil's development bank BNDESPar.

The article also mentioned ethanol dehydration plants of Coimex and Crystalsev.

See also the previous IPBiz post:

GM aligns with Coskata on cellulosic ethanol; good plan or Exxon's Reliance re-visited?

When a figure is bad in a patent application.

An article on Ex parte Khan (concerning nanoparticles of MoO3) stated:

The Board agreed that "a picture is worth 1000 words."(23) Pictures are invaluable tools to depict what the invention is all about. However, here it harmed the patent application. As a matter of fact, the Board visualized more "needle-like" nanoparticles in the Fig. 4 of the claimed invention than did the Examiner. (24) So, the lesson is not to take a chance, and to make words the most important tool when the call is close. Appellants should have guided the Examiner with words showing how the nanoparticles were regarded as a cylinder and not as a "needle," and should have explained why some looked like a "needle."

Just-n-examiner on apologies and 35 USC 101

from just-n-examiner:

Another instance where I get the urge to issue an apology has to do with 101 rejections. For a while, the guidance that we were receiving on the interpretation of 101 was, um, evolving.

I'd send out a 101 rejection, and by the time the amendment came back, the Office's position on 101 interpretation had changed. "Thanks for making those changes for me, but things have changed and now you'll have to do these other things to satisfy the requirements for statutory subject matter." Once again, I feel bad about it, but in this case I'm just following the guidance of the Office (and getting stuck writing a second non-final for it). It feels like I should include an apology with the action, but under those circumstances I don't think it's called for.

Hmmmm, IPBiz wonders if law professors ever apologize from writing false things in law review articles? Like when numbers for patent grant rate were, um, evolving, as when Mark Lemley went from rational ignorance to (not) rubber stamping.

PatentHawk chomps Myhrvold

The patenthawk blog takes a bite out of Nathan Myhrvold in a post titled Defensive, which in turn derives from a post on webware titled Nathan Myhrvold at D6: Don't call me a patent troll which in turn comes from an interview of Myhrvold by Walt Mossberg at D6.

For all the nested links, this looks like "same old, same old." See for example

Of Mossberg

LBE tried to submit a comment on PatentHawk the blog concerning the Myhrvold post, and got the following message:

Your comment submission failed for the following reasons:

Too many comments have been submitted from you in a short period of time. Please try again in a short while.

Now we understand the meaning of

The Patent Prospector is an open forum weblog. Contributions are most welcome

For the record, the last comment of LBE to PatentHawk was on April 25, 2008 4:01 AM

Open forum indeed!

An Illinois high school does what SIU didn't do about plagiarism

The Chicago Tribune reported that Illinois School District 203's superintendent moved to reassign Naperville Central High School Principal Jim Caudill next school year, while student Steve Su is being asked to return his valedictorian's medal, after each plagiarized portions of speeches they gave during commencement events last week, the district announced Thursday, May 29.

There seemed to be little doubt that Caudill was well liked: Caudill is popular with many students and parents for his outgoing personality and willingness to work long hours to accommodate school tours and support student activities. He has worked for District 203 for 34 years as a guidance counselor, dean and administrator, coming to Naperville Central in 1983 and being named principal in 2003.

The Tribune also noted: Caudill said that for his address to a senior honors event, he copied a speech given by 1997 graduate Megan Nowicki, now Megan Nowicki-Plackett, who is a teacher in the school's communications arts department.

Caudill said that the night before his speech, dissatisfied with the remarks he had prepared for the honors event, he decided to seek inspiration from previous speeches that the school keeps in a file.

Caudill said he thought Nowicki-Plackett's speech was good and decided to use much of it. He said he did not call her at home for permission because it was so late at night. He said he considered sending her an e-mail but decided that was inappropriate, so he decided to call her the day of the event, "but I just got busy and I forgot to do it."

For a discussion of the Poshard matter at Southern Illinois University, see for example

Friday, May 30, 2008

The pot and the kettle are both black: Mee vs. Dow

The patenthawk blog has a post about Dow vs. Mee Industries. In that post, Dow does not look too good.

Contemplate however a ruling in March 2008 in Mee Industries vs. Dow Chemical, 2008 U.S. Dist. LEXIS 24405 (MD Fl (Orlando)):

In its motion, Dow objects to Mee's efforts to evade the page count limits. (Doc. 134). In light of the conclusions reached above, the Court will deny Dow's motion as moot. Beyond this, the Court notes that Mee's motions not only violate the rules with regard to page limitations, a review of their content demonstrates that they are entirely without merit and appear consistent with a "scorched earth" trial strategy. The motions serve no purpose other than to waste the time of this Court and cause the opposing party to expend unnecessary litigation costs. The Court will no longer tolerate such practices, and further occurrences will likely result in sanctions.

The decision by Judge Presnell is otherwise a lecture in in limine motion practice, beginning with:

The term "in limine" has been defined as "on the threshold; at the very beginning; preliminarily." Luce v. U.S., 469 U.S. 38, 40, 105 S.Ct. 460, 462, 83 L.Ed.2d 443 (1984) (citing Black's Law Dictionary [*2] 708 (5th ed. 1979)). A motion in limine seeks a protective order prohibiting the opposing party, counsel, and witnesses from offering offending evi-dence at trial, or even mentioning it at trial, without first having its admissibility determined outside the presence of the jury. 75 Am. Jur. 2d Trial § 39 (2008).

What a difference a few months make!

The CAFC looked at part of this matter in 2003: 341 F.3d 1370; 2003 U.S. App. LEXIS 18389; 68 U.S.P.Q.2D 1176.

Therein, the CAFC observed: The scope of what is taught by a prior art apparatus extends not only to the apparatus itself, but also to the obvious methods of use suggested by the structure of that apparatus. See In re Lonardo, 119 F.3d 960, 968 (Fed. Cir. 1997) (holding that "the claimed structure of the device suggests how it is to be used and that use thus would have been obvious"), cert. denied, 522 U.S. 1147, 140 L. Ed. 2d 175, 118 S. Ct. 1164 (1998). The Mee proposal placed a specific apparatus on sale, and thus constituted a piece of prior art against the claims of the patents-in-suit both as an apparatus and the obvious uses of that apparatus.

HR 5638: crash parts and patents

Further to an earlier IPBiz post [Design patents and the costs of auto repairs], note H.R. 5638, which states that, “It shall not be an act of infringement to make, use, offer to sell, or sell within the United States or import into the United States any article of manufacture that itself constitutes a component part of another article of manufacture, if the sole purpose of the component part is for the repair of the article of manufacture of which it is a part so as to restore its original appearance.”

The article mentions the 2007 ITC decision about Keystone Automotive.

Of patent reform: A broader patent reform bill is currently bogged down in the Senate [S.1145], and the looming party conventions in the summer may also limit the amount of legislation that gets passed by the end of the session in the fall.


Patently-O has a post on 8 June 08 on Ford Global Technologies v. ITC (Fed. Cir. 2008) which includes the text:

In 2007, the International Trade Commission (ITC) issued a final decision finding three Ford design patents invalid based on a prior public use. The patents relate to various parts of its F-150 truck design. Ford had asked the ITC to stop generic parts manufacturers from imports of the patented designs that were flowing in from Taiwan. In its decision, the ITC found seven of the design patents valid and infringed, but found that three of them were invalid.

Of the design patent angle, Patently-O writes: The defendants are correct that Lawman and Litton appear to require the point-of-novelty test in every case of infringement. That issue will likely be resolved in the upcoming en banc decision in Egyptian Goddess. In addition, the defendants argued that the design patents should be considered obvious under KSR v. Teleflex (2007). As in that case the claims appear to be composed of a set of elements all found in the prior art.

IPBiz notes that this situation brings insurance companies into play, as the use of generic crash parts would lower costs. [Note IPBiz post of January 2008.]

**UPDATE (22 March 2010):

Design Patents and Repair Parts

on H.R. 3059 which would excuse design patent infringement if the accused article of manufacture "itself constitutes a component part of another article of manufacture" and "sole purpose of the [accused] component part is for the repair of the article of manufacture of which it is a part so as to restore its original appearance.’’

Story of Schundler campaign in New Jersey

Within the story:

Franks and the McCain Playbook

With the old campaign dynamics radically altered, Schundler's strategy essentially remained the same. He continued to pound the same issues - his Jersey City record, taxes, education and "those darn tolls" - and would steadily drop Leonardo's mail pieces promoting them. Radio ads also continued.

Franks began a campaign modeled after Sen. John McCain's presidential run, touting himself as a reformer and championing campaign finance reform. He immediately called Schundler a "formidable opponent," at a time when many in the state thought his underdog candidacy was doomed.


Thursday, May 29, 2008

Boston Scientific gets whacked for $250 million in ED Texas

In yet another chapter in the stent patent wars, a jury in Marshall, Texas (ED Texas) has awarded Medtronic damages of $250 million for patent infringement by Boston Scientific.

Mass High Tech reported: The U.S. District Court jury in Marshall, Texas, found that certain Boston Scientific balloon catheters and stent delivery systems infringe on patents held by Minnesota-based Medtronic, and that the patents are valid. Boston Scientific previously had received a couple of wins from the court, as it granted the company's summary judgment motion on one of the patents and dismissed Medtronic's claim of willful infringement.

Of the bigger picture of the stent wars, the WSJ wrote:

The companies are embroiled in suits to prevent competitors from introducing new stents and to claim royalties on each other's devices. Boston Scientific, alone, is involved in more than 15 pending patent lawsuits.

In addition, the legitimacy of some of Medtronic's devices under patent law is being challenged in litigation in federal district court in Delaware.

Medtronic said its new Endeavor drug-coated stent, the focus of part of that litigation, has engendered $81 million in sales in the roughly four months it has been on the market.

See many previous posts on IPBiz, including:

Wednesday, May 28, 2008

Stem cell companies to prosper under Democrats?

Seekingalpha has a post: 10 Biotechs in Stem Cells that Could Profit Under the Democrats, which includes the text:

Pay particular notice to management - a bad management team can destroy a good product.

IPBiz notes lots of VCs pay more attention to management than to invention.

The post does mention ACT and Geron.

Patent case management

Lawyers on the Advisory Board for the "Patent Case Management Judicial Guide":

-- Kenneth R. Adamo of Jones Day, Cleveland
-- Morgan Chu of Irell & Manella, Los Angeles
-- John M. Desmarais of Kirkland & Ellis, New York
-- William F. Lee of WilmerHale, Boston
-- Mark Lemley of Keker & Van Nest, San Francisco
-- Roderick McKelvie of Covington & Burling, Washington, D.C.
--Mike McCool of McKool Smith, Dallas
-- George Pappas of Covington & Burling, Washington, D.C.

Carbon dioxide transformation and sequestration

Carbon Sciences announced filing of a PCT application based upon an earlier nonprovisional filing of US 11/749,741. The technology concerns a method for carbon dioxide transformation and sequestration.

See also

Tuesday, May 27, 2008

Canseco and Sikahema

Vai Sikahema, author of "Rutgers is Wrong," is now tangling with Jose Canseco, author of Juiced:

Jose Canseco, because things are going so well for him these days, has been looking for someone to go toe-to-toe with him in a celebrity (and I use that term very, very loosely) boxing match. He had recently been offering $5,000 to get someone to accept the challenge, and for a while, everyone, as they usually do, completely ignored Jose Canseco.

But a brave hero has finally stepped up so that this stupid fight may finally take place. And that hero is former Philadelphia Eagles return man Vai Sikahema. What a relief that must be for the millions of you who sit around all day and wistfully think, "Man, when is Jose Canseco going to fight Vai Sikahema?!"

Canseco wrote of Roger Clemens: This man never cheated on his wife. He was one of the rarities, the anomalies, in baseball. I can hardly think of anyone else who never cheated on his wife. :

Cases on "failure to disclose" by patent applicants

The topic of inequitable conduct by drug companies, highlighted in an April 2008 NYT piece by Robert Pear, shows up in the recent Aventis case, discussed in some detail by Patent Docs.

In the Aventis case, plaintiff-appellant Aventis was represented by Donald R. Dunner of Finnegan. Dunner and Aventis lost this case, which relates to Lovenox.

The inequitable conduct issue came up in declaration(s) by a non-inventor (Uzan) to assert unexpected properties to overcome an obviousness rejection. The CAFC decision contains the following sentence:

Specifically, Dr. Uzan reported, “For the claimed compound T½ was 4.36 ± 1.07. For the compound of [EP ’144], T½ was 3.33 ± 0.2,” and the statistical analysis showed that 4.36 and 3.33 were statistically significant.

Hmmm, not too well written. The court noted that the data for the EP '144 example did not mention the dosage used.

The CAFC also wrote:

Aventis argued, in its response, that EP ’144 does not suggest compounds
containing polysaccharides of the claimed MW in the claimed proportions and that the
examiner improperly relied on inherency to reject the claimed compounds over EP ’144.

The crux of the matter was: Amphastar averred that Dr. Uzan engaged in inequitable conduct
by failing to disclose that the half-life studies comparing the patented compound to the
EP ’144 compound were at different doses.

Aventis noted: Dr. Uzan informed the examiner that the half-life comparison was done
at different doses, those of skill in the art frequently compare half-lives at different
doses, and half-life is independent of dose.
IPBiz notes that here, the half-life apparently DID depend on dose, so the later Aventis representation was false on these facts. The CAFC so noted: Further, this court did not
accept the explanation that the half-life data were dose independent because the
evidence clearly suggested otherwise.

An interesting aspect of this case is the different approach taken between the majority and the dissent as to the
high qualifications of Uzan. The majority's version is more plausible than Rader's in dissent: the court declined to find that Dr. Uzan’s failure to disclose the difference in doses could be justified based on inadvertence because it was not credible that a scientist with Dr. Uzan’s qualifications could have committed, and failed to correct
during a lengthy prosecution, such an egregious error, and there was a complete
absence of evidence suggesting negligence throughout prosecution.

In this "second time around," Aventis made a different argument:

Aventis offers a new justification for Dr.
Uzan’s failure to disclose the dosage information in his half-life comparisons.7
According to Aventis, Dr. Uzan’s half-life comparisons were intended to show a
difference in properties in response to the obviousness rejection under 35 U.S.C. § 103,
not to demonstrate a compositional difference to address the anticipation rejection
under 35 U.S.C. § 102, as the district court concluded. Aventis’s argument is premised
on the fact that while a half-life comparison must be done using equivalent doses to
establish a compositional difference, a half-life comparison may be done using different
doses if the purpose is to establish a difference in property.

The CAFC acknowledged that the district court made an error in the law: Although the court incorrectly suggested, in a footnote, that obviousness is subsumed
by inherency, we see this as merely a recognition by the court that the notion of
inherency was part and parcel of the examiner’s rejections.

As in the re-exam of the WARF patents on stem cells, In re Best, 562 F.2d 1252, 1255 (CCPA 1977) came up.

There is an interesting sub-theme of attorney error vs. scientist misrepresentation.

Judge Rader, in dissent, noted:

In this case, Dr. Uzan, Associate Director of Biological Research at Aventis,
assisted in the prosecution of the application that led to U.S. Patent No. 5,389,618
('618) covering a low molecular weight heparin mixture invented by Roger Debrie
(Debrie LMWH). Specifically, Dr. Uzan assembled data from various clinical studies
comparing the half-lives of the Debrie LMWH to a prior art LMWH invented by
Mardiguian (Mardiguian LMWH). Dr. Uzan submitted this data, from the Duchier study
and the Foquet study respectively, as example 6 of the patent. In submitting the data,
Dr. Uzan did not draw attention to the different doses in those studies.

The Aventis claim in question discussed molecular weight but NOT half-life:

A heterogeneous intimate admixture of sulfated heparinic polysaccharides,
such sulfated polysaccharides having a weight average molecular weight
less that that of heparin and said admixture comprising[3]
from 9% to 20% of polysaccharide chains having a molecular
weight less than 2,000 daltons
from 5% to 20% of polysaccharide chains having a molecular
weight greater than 8,000 daltons, and
from 60-86% of polysaccharide chains having a molecular weight of
between 2,000 and 8,000 daltons,
the ratio between the weight average molecular weight and the
number average molecular weight thereof ranging from 1.3 to 1.6,
said admixture (i) exhibiting a bioavailability and antithrombotic
activity greater than heparin and (ii) having an average molecular weight
of between approximately 3,500 and 5,500 daltons.

In an obviousness rejection, the issue is whether, with the prior art at hand, one of ordinary skill would be motivated to go to the claimed invention.

Another inventor omission case is Taltech v. Esquel, a failure to disclose best mode case.

Of the best mode issue, the CAFC wrote:

The district court found claim 18 invalid because the inventor failed to satisfy the
best mode requirement of 35 U.S.C. § 112 by not disclosing in the specification the
preferred use of Vilene SL33 as the adhesive when he knew it at the time of filing. We
have set out a two-pronged test for determining whether an inventor has met the best
mode requirement. “First, the factfinder must determine whether, at the time of filing the
application, the inventor possessed a best mode for practicing the invention.” Eli Lilly
and Co. v. Barr Labs., Inc., 251 F.3d 955, 963 (Fed. Cir. 2001) (citing Chemcast Corp.
v. Arco Indus. Corp., 913 F.2d 923, 927-28 (Fed. Cir. 1990)). This involves a subjective
inquiry whereby the factfinder focuses on the inventor’s state of mind at the time of
filing. Id. “Second, if the inventor possessed a best mode, the factfinder must
determine whether the written description disclosed the best mode such that one
reasonably skilled in the art could practice it.” Id. This involves an objective inquiry
focused on the scope of the claimed invention and the level of skill in the art. Id.

Of inequitable conduct, the CAFC cited Cargill:

To support a finding of inequitable conduct, there must be clear and convincing
evidence that the applicant made an affirmative misrepresentation of material fact, failed
to disclose material information, or submitted false material information, intending to
deceive the PTO. Cargill, Inc. v. Canbra Foods, Ltd., 476 F.3d 1359, 1363 (Fed. Cir.


Relevant to a long ago discussion on the patenthawk blog, patent docs does NOT have a link to IPBiz. [Recall PatentHawk's memorable line: That posted blogroll listing on The Patent Prospector: a real sleaze move, huh? I noticed you wouldn't stoop so low on your blog to mention other bloggers in the patent community.] IPBiz notes that, at the time of PatentHawk's line, IPBiz had mentioned PatentHawk 53 times, and PatentHawk had mentioned IPBiz exactly one time. Is your argument sleazy, PatentHawk?

Separately, the new IP blog, effectiveip, does NOT have a link to IPBiz, but does have a link to "fire of genius," most recent post, April 27, 2008 and phosita, most recent post, april 07, 2008.

How useful are blogrolls?

Inter partes re-exam: merely an adjunct to litigation?

The 271 blog writes: recent research strongly suggests that Inter Partes Reexamination has become "an augmentation of litigation strategy rather than an alternative" (more than half (52%) of patents in inter partes re-exams are known to be in litigation during that time).

IPBiz notes that a similar result would have been likely if "post grant review" (aka opposition) had been created via patent reform 2008. Rather than a low cost alternative to litigation, opposition would have been a higher cost supplement to re-exam (and a lower cost add-on to litigation).

J. R. Simplot

The patenthawk blog notes the death of French fry guy J.R. Simplot of Idaho.

IPBiz noted the death in June 2007 of Edwin Traisman, who got a key 1962 patent on frozen French fries.


Solar cells for iPhone

PhonesReview evaluates Apple's application and asks: has Apple filed a good enough patent [application]?

See for example, published application 20080094025, Solar cells on portable devices.

The Des Moines Register notes: Des Moines-based Aviva USA received a patent last week for a process the life insurance company uses to assess and reduce risk involved with indexed universal life insurance products.

OriginOil has a patent application: "Apparatus and Method for Optimizing Photosynthetic Growth in a Photo Bioreactor." This is related to OriginOil's Helix BioReactor™.

Separately, see Bayless application, 20070264708.

Separately, see 20080107652, Methods and compositions for control of disease in aquaculture, first claim, A paratransgenic method for prevention, amelioration or treatment of a disease or disorder in an aquatic animal comprising: i) providing a genetically modified micro algae that expresses one or more recombinant molecules that specifically target one or more key epitopes of a pathogen that infects the aquatic animal and ii) feeding the aquatic animal directly or indirectly with the genetically modified micro algae. [including cyanobacteria]

Monday, May 26, 2008

Lincoln at Gettysburg on 19 Nov. 1863

In the realm of obviousness (and KSR v. Teleflex), things that might seem obvious to one person are not necessarily obvious to another. Take the location of "where" Abraham Lincoln gave the Gettysburg Address. One might think that that one was nailed down a long time ago. Lots of reporters and politicians were there. Photographs, too. Sadly, the place the NPS has marked as the location isn't the correct one. Kathleen Georg [Harrison] took two photographs of the event, from different perspectives, and figured out the location is in the Evergreen Cemetery. She wrote up her findings in (among other places) Civil War Times Illustrated in the 1980's . There's little debate she got it right.

In an article titled Disproving many historical 'facts', the Washington Times in April 2008 discusses the matter. [A new marker has been authorized to be placed on the Park Service side of the fence. ]

Was what Georg-Harrison did obvious? Some might say so. Some might not. Did it lead to an unexpected result? Yes, relative to conventional wisdom. Did it change what the average visitor to Gettysburg sees. No. Did Spencer's rifle help Custer at Gettysburg in 1863? Yes. Did it help Custer at Little Big Horn in 1876? No.

Separately, note a site on science confirms the obvious

Which way is California going in education?

Although californiastemcellreport, and other sites, discuss how Proposition 71 is causing an INFLUX of talent INTO California, a report on NBC Nightly News on May 26 by Rehema Ellis ("Class Struggles") illustrated how budgetary shortfalls in school budgets in California are causing an exodus of qualified teachers FROM California.

["It's not the frills being cut, it's the basics.... bracing themselves to do without.... education as a great equalizer goes away.... other states are recruiting California's at risk teachers...]

Sunday, May 25, 2008


The patenthawk blog has come comments about

IPBiz made some comments a while back. Snore.


Patenthawk quoted Prof. Wegner: Professor Dennis Crouch in his highly reliable blog, Patently O, has now exposed a patent attorney or agent who has launched an anonymous website, "", as a way for practitioners to anonymously post criticisms of individual Examiners. Both examples of anonymous criticism are unacceptable, but the latter is far worse as it posts attacks against individual Examiners who have no way to defend themselves.

Separating out the anonymous issue (think patent troll tracker and the Crouch defense thereof), IPBiz suspects examiners might need management approval to make public comments, so the "no way to defend" might be an issue. IPBiz thinks back to how Robert Clarke of the USPTO was mugged by Mark Lemley in "Ending Abuse..." and no one in the legal academic community said a thing.

PatentHawk noted to Prof. Wegner: Save the outrage for the people in power, the USPTO, court judges, ones who have an impact, who should know better, the ones that, to date, you have been too afraid to take to task, because you're in the little club, and you would be ostracized if you had the courage of your convictions.

IPBiz notes back when Prof. Wegner had an article on Enron-esque accounting at the USPTO, used to fuel the Quillen / Webster nonsense on patent grant rate.

Saturday, May 24, 2008

Desperately seeking Yamanaka on CIRM award page

As a headsup to californiastemcellreport, if one searches the page on the CIRM website titled "Awards and applications approved for funding" for the word --Yamanaka--, one won't find anything.

See also

Did Yamanaka "accept a grant" from CIRM in August 2007?

Facts, relied upon, must be verified, when challenged

Yes, Virginia, patent reform 2008 is really dead

More than one month after the IPBiz post Stick a fork in it: patent reform 2008 is done, various news entities have figured out patent reform 2008 is gone:

HEATHER CHAMBERS, Patent Reform Now Unlikely in 2008
[from San Diego, reporting site of Terri Somers]

Dana Blankenhorn, Patent reform dead for 2008, which includes the dull-witted text:

That’s because one of the act’s main aims was to end “forum shopping,” the practice of filing lawsuits in, say, the Eastern District of Texas, which never saw a patent plaintiff it didn’t like.

The act would have also streamlined reviews of patent claims and made some other important reforms. It wasn’t perfect, but it was better than nothing.

Anybody that thinks that post-grant review (aka opposition) streamlined review of patent claims ought to be sent back to third grade, immediately, and given a long timeout.


Patents and innovation: an empirical study by Edwin Mansfield

Note also Paul J. Heald (who co-organized Bessen/Meurer sympsium), A skeptical look at Mansfield's famous 1994 survey

Will VW shut down the patent biz of ED Texas?

Volkswagen [VW] got sued over a defective part in ED Texas, although the accident occurred in Dallas. VW tried to move the case to Dallas. Judge Ward said no, and VW appealed to the 5th Circuit Court of Appeals.

Bloomberg notes:

U.S. District Judge T. John Ward, in rejecting Volkswagen's bid to have the case moved from his court in Marshall, said the choice made by Amy Singleton, the girl's mother, and two relatives who sued is of "paramount consideration.''

Singleton's lawyer Martin Siegel said that they filed the complaint in Marshall because they consider it their "home turf" since she used to live in Plano, which is part of the eastern district. Ward is used to handling product liability cases and the court moves quickly, the lawyer added.


The American Intellectual Property Law Association, the nation's largest group of patent lawyers, urged the panel to rule that the convenience of the parties should be the primary concern.

About 70 percent of patent trials before Ward, the only judge assigned to the Marshall courthouse, result in wins for the patent owners, according to LegalMetric LLC, a St.Louis-based research company. The national average is 23.5 percent. Most cases settle.

Patent appeals are heard by the U.S. Court of Appeals for the Federal Circuit in Washington, which defers to regional circuits on local rules such as standards for transfer. The 5th Circuit handles appeals of cases in Texas, Louisiana and Mississippi.

Trial lawyers in Texas formed a committee to fight the patent lawyers, and filed court papers saying Marshall has been "unfairly characterized" as a plaintiff-friendly court jurisdiction.


See post CAFC allows Venue Transfer to Texas:

In Texas, the 5th Circuit Court of Appeals just released its en banc opinion in another In re VW case. In that case, the 5th Circuit held that the E.D. Texas (Marshall) court had unreasonably refused to transfer VW's case to a Northern District court in Dallas. The AIPLA filed a brief in that case, noting that the Eastern District of Texas rarely allows an out-transfer. From the AIPLA brief: "The routine filing of patent infringement complaints in the Eastern District of Texas that have essentially no connection to that district has been encouraged by the seeming reluctance of courts in that district to transfer cases under § 1404(a)."

Coalition for Patent Fairness: do as I say, not as I do

In a post Patent Hypocrisy Patent Docs points out that some of the members of the Coalition for Patent Fairness [CFR] are on a "top 10" list of issued patents. This is not exactly a news flash. See also PatentHawk's Politically Correct.

Back in March, no less an authority than Jon Dudas, Director of the USPTO, took a not so subtle jab at the IT folks, by making a remark about IBM's toilet queue patent, without referencing IBM by name. Although IBM is not a member of CFR, the followup remarks of Dudas in Hollywood applied to strategies employed by members of CFR.

See Dudas, IBM's toilet queue patent, and patent quality

Patent reform and IBM's questionable patents

It isn't just that the IT folks are getting a lot of patents. The problem is that they are getting "low quality" patents. That's the hypocrisy.

Members of CFR include: Apple, Autodesk, Business Software Alliance, Chevron, Cisco Systems, Comcast, Dell, Electrolux, Google, Hewlett-Packard Company, Information Technology Industry Council, Intel, Micron Technology Inc., Microsoft, Oracle, Palm Inc., RIM, SAP, Seagate Technology, Symantec, TechNet, Time Warner and Visa. [Intel, Microsoft, and Micron were on the "top 10" in issued patents list of IPO for 2007]

As an additional matter, the CFR folks were complaining about continuing applications. Yet, they get a lot of continuing applications.

See for example

"Coalition for Patent Fairness"

Friday, May 23, 2008

Fundamentalists of Yearning For Zion Ranch in Eldorado prevail

The AP reported:

The Third Court of Appeals in Austin said the state failed to show the youngsters were in any immediate danger, the only grounds in Texas law for taking children from their parents without court action.

The state agency responsible was the Child Protective Services agency.


NBC Nightly New (Brian Williams), in a story reported by Don Teague on May 22, had highlighted text from the Appeals decision about how the agency: "abused it's [sic] discretion". IPBiz doesn't know if --it's-- in the decision, but NBC ought to be ashamed of reporting such. In the same newscast, Pete Williams referred to the decision as a "total legal smackdown."
Where have you gone, Walter Cronkite?

NBC Nightly News reported on May 23 that some of the families, on making a deal, had recovered their children, but that most families would have to wait while the State of Texas appealed the appellate decision, with no time limit on how long the appeal might take.

In passing, May 23 marked the 125th anniversary of the invention of salt water taffy.

Andy Rooney, on "60 Minutes" on May 18, 2008 pondered why [3M's] Scotch tape was called Scotch tape. Maybe we can get Andy a scholarship for "Trademark 101". Andy generified Kleenex in the same episode.

Lemley as a big thinker...

In discussing the Transatlantic Information Law Symposium, Lawgarithms refers to the symposium as "featuring such big thinkers as Mark Lemley and Stefan Bechtold."

Expresiounius writes:

A few years ago Mark Lemley, at the time an Intellectual Property professor, made this exact metaphorical statement when he left "BerkeleyLaw" for Stanford.

He did so at a very inopportune time, just as Boalt was struggling to keep its IP program tops in the country, and was losing steam in the U.S. News rankings, which are irrelevant but incredibly important.

Now, Lemley also works for the famed litigation boutique Keker & Van Nest.

And karma, as they say, is a bitch. Somehow, he got stuck working on a patents case for the adult film industry. And the specific patent relates to -- and I couldn't make this up -- "teledildonics."

This is the same Mark Lemley who proclaimed Gary Boone the inventor of the integrated circuit, leaving Noyce and Kilby in the dustbin of "Lemley history." One notes separately that Lemley is not a registered patent attorney. The only jibe expresiounius missed was that, in leaving Boalt, Lemley increased the faculty IQ at Boalt and Stanford.

In August 2007 the patenthawk blog noted:

Mark Lemley, professor at Stanford Law School, "widely recognized as a preeminent scholar of intellectual property law," toots of the new rules for examination limits: "The idea that this would be any sort of significant restriction on patent owners is ludicrous to me. It will affect 10 applications a year, maybe 50, out of 450,000."

New 37 CFR §1.75(b)(1), known as the 5/25 rule, limits applications to five independent and 25 total claims without an odious examination support document (ESD). An ESD, covered under 37 CFR §1.265, comprises claim charts mapping claims, limitation by limitation, to the most relevant prior art references found; based upon a compulsive prior art search for which inequitable conduct liability is attached. An ESD also includes patentability claims charts: for each independent claim, citing specification support, limitation by limitation. 37 CFR §1.75(b)(4), soon to be known as the 5/25-totality rule, puts all applications in the same family, combined, under the 5/25 rule; where a family is for a set of claims that are "patentably indistinct," which is normal continuation practice. For all patents in a family, you only get five independent and 25 total claims without submitting detailed claim charts. This is a severe stricture.

One may reasonably observe as understatement that Mr. Lemley's long suit is not likely to be statistical prediction, probabilistically speaking, of course.

Elsewhere, Patent Docs, in discussing the work of Bessen and Meurer wrote:

The work has been lauded by patent academia: Professor Dennis Crouch excerpted it extensively on his Patently-O blog prior to publication, and the published work carries glowing accolades from the darling of patent academia, Professor Mark Lemley of Stanford University. While the approval of the academic patent intelligentsia is one thing, more worrisome is that Patent Failure thesis, the familiar "the patent system is broken," is gaining traction among policymakers.

See also:

Is Lemley right about Bell and Gray?

US 7,375,802: quantum dots, spooky radar, and StarTrek

US 7,375,802, titled Radar systems and methods using entangled quantum particles includes a reference

Quantum Entanglement and Teleportation,, pp. 1-8, 2005. cited by other

and looks for enablement in

A publication entitled "Entangled Microwaves From Quantum Dots" by C. Emary, B. Trauzettel, and C. W. J. Beenakker, Instituut-Lorentz, Universiteit Leiden, P.O. Box 9506, 2300 RA Leiden, The Netherlands, (Feb. 23, 2005) (referred to herein as "Emary" and incorporated by reference herein) discloses examples of techniques for producing polarization-entangled microwaves using intra-band transitions in a pair of quantum dots.

and in

"Step-by-Step Engineered Multiparticle Entanglement" by Arno Rauschenbeutel, Gilles Nogues, Stefano Osnaghi, Patrice Bertet, Michel Brune, Jean-Michel Raimond, and Serge Haroche, Science Magazine, Vol. 288, Jun. 16, 2000, (hereafter referred to as "Rauschenbeutel" and incorporated by reference herein).

See also
Lockheed's 'Spooky Radar' Gets U.S. Patent

The illusory world of trade secret protection

In an article titled Inside Entrepreneurship: Patent protection isn't only option , SUSAN SCHRETER discusses the trade secret alternative to patenting in a favorable light. Quoting attorney Warren Rheaume,

"Unlike patents, trade secret protection does not require inventors to publicly disclose the specific attributes of their innovations, which appeals to entrepreneurs who worry about educating their competitors. Trade secrets can also be applied to areas that are typically not patentable, like customer lists."

Rheaume also notes that trade secret protection is well respected among sophisticated angel investors and venture capitalists. "Investors know that technology advances that are covered by trade secrets do not restrict a company from licensing or selling the underlying technology. The key is how well the company and its licensing partners adhere to policies to keep their trade secrets as secret. Trade secrets also don't expire like patents, providing some additional strategic value to a company."

Sadly, Schreter and Rheaume are giving 19th century advice to 21st century problems. The correct answer for protection these days is a provisional patent application. There are several difficulties with the trade secret approach.

First, to deal with a potential backer, one has to negotiate a nondisclosure agreement. This can be tricky, and if things go bad, it's bye-bye invention.

Second, in a world filled with "simultaneous" inventions, if someone else comes up with your idea, and does get patent protection, it's bed time for Bonzo.

Third, if you actually get to the production stage, and someone can design around, they will. Except if you only have trade secret protection, it's called (legal) copying.

Moser already discussed the issues between trade secrets and patents, as to inventions in the 19th century. These days, the balance tips wildly toward patents, because it is harder to conceal anything. In the food business, advances in analytical chemistry allow the interested competitor to determine the content of almost anything. Similarly, scientific devices can be stripped to their bare bones in no time. What worked in the 19th century doesn't work now.

Even with patents, life is tough. Ask the Wright Brothers. Anything they didn't nail down was copied immediately. What they did nail down was copied too. Even in 1903, they knew that trade secrets wouldn't work for them.

See also

"Unlocking the Sky": missing a few facts?

On Fighting Giants

***Separately, note

'Seattle P-I,' Alt-Weekly Investigate Plagiarism By Freelancer

Thursday, May 22, 2008

More on Bessen/Meurer

In a post Maybe It Isn't Going to Get Much Better, Patent Docs discusses Bessen/Meurer.

Patent Docs refers to Professor Wegner who questions some of the implausible numbers found in the Bessen/Meurer book:

Further, Professor Wegner notes that when Eli Lilly and Company lost its patent on Prozac® in 2001, "its market cap dropped $36 billion in one day, roughly triple what the authors say is the annual profit for the entire pharmaceutical and chemistry industries in one year." He also identifies the reason for this discrepancy: "the auhors have explained the seemingly low figure of $15 billion in annual patent profits in pharmaceuticals and chemicals by stating that their figures are calculated based upon "patent 'rents' not sales and not patent value. . . . In economic theory it is the rents from patents, not the associated sales, that provide the reward to inventors." One way of looking at this analysis is to say that patent rents are the measure of the difference between the profits that are made with patent protection and the profits that would be made in the absence of patents. Another way is to recognize that it assumes that there would be profits for pharmaceuticals in the absence of patents, an analysis that ignores the reality that pharmaceutical companies (and their investors) need patents to ensure sufficient return on investment (ROI) necessary to justify the risk created by the supranormal costs of bringing a drug to market.

See also

Legal symposium on Bessen/Meurer book on March 29

[In passing, Professor Heald of UGeorgia never responded to my email.]

Cognex whips Acacia, Veritec in patent fight

The troll word came up in the discussion by Cognex about its victory over Acacia, Veritec (VCode, VData); AP reported-- Cognex Chief Executive Robert J. Shillman denounced "abusive patent trolling ... the activity of purchasing highly questionable patents from patent holders and then asserting them against well-respected and ethical corporations in the hope of extracting large monetary settlements (which are often calculated to be a bit less than the cost of litigation) ... has unfortunately become a growth 'business' in America over the past decade."

The Boston Business Journal reported of a: ruling in U.S. District Court in Minnesota concluded that a patent Acacia Research Corp. and Veritiec Inc. owned was "invalid and unenforceable due to inequitable conduct by the defendants during the procurement of the patent,"

The patent in question had claims directed to a system for capturing and reading 2D symbology codes.

Wednesday, May 21, 2008

Another car seat patent

Following in the shoes of Steve McQueen, staff at the University of Alabama helped a Georgia dentist get a car seat patent.

The Tuscaloosa News reported:

“The whole purpose of the car seat is to prevent a child’s injury or death, and what does such a good job of protecting the child during the accident can actually become a problem after the accident,” said Blackmon of Rome, Ga. “The only purpose of the feature is to just make it easier to get the kid out of the seat.”

Simultaneous invention, or simultaneous copying?

Of the various stories going around about simultaneous inventions (eg, Gray and Bell), one thinks back to the great similarity between the Sabrejet and the MIG-15, which became apparent during the Korean War. Of course, that similarity arose because both makers were copying from the same source, the Messerschmidt 262.

See also

Messerschmitt Me 262

The theory of invention, illustrated with dinosaurs and Alexander Graham Bell

See also

Gladwell Article (Part 1 - Simultaneous Discovery).

Separately, those of us in New Jersey get to see ads by Rob Andrews attacking Lautenberg, for attacking Millicent Fenwick, so long ago, for being too old to run for Senate (then 71).

Law & Order does Eliot Spitzer story on May 21; different ending tho

In its season finale on May 21, Law & Order did its take on the Eliot Spitzer story.

In the world of Law & Order, the governor (and his wife) execute a series of clever manipulations, and the governor survives (so far). The governor (in the Law & Order version) was seeing a high priced call girl (from Brazil, not New Jersey) and, in that capacity, was witness to some pertinent information, relevant to a murder investigation of McCoy and cohorts. McCoy was going to call the governor as a witness, but the murder defendant suddenly pleaded guilty, eliminating the need to call the governor. The implication was that the governor would later pardon the incarcerated defendant. A sub-plot involved the feds also going after the governor, which plan ended when the gov leased some land (in White Plains) to the feds for $1 a year.

The Law & Order version seems more Hobbsian than the real world version.

CNN discussed the episode in a story titled: Ripped from the headlines: Eliot Spitzer?
which included the text:

Wednesday's episode is racier, as a murder investigation leads police to a prostitution ring whose clients include New York Gov. Shalvoy (Tom Everett Scott). That creates a quandary for District Attorney Jack McCoy (Waterston), whose political fortunes may be tied to Shalvoy's.


Waterston says the "Law & Order" episode diverges sharply from what happened with Spitzer.

"It goes in all different directions," he said. "`Law & Order' raises questions about what's fair, what's right, what's justice, that aren't necessarily raised by the original story or ... can't be gone into in just a news story."

Different directions, yes, and different outcome. In this episode of Law & Order, New York City has been transformed into Gotham City, and we might be expecting Batman to be added to the cast next season.

More on Frenkel, Niro business

In a post titled Is the Patent Troll Tracker a reporter?, Joe Mullin discussed some of the recent back and forth between [former?] troll tracker Rick Frenkel and Ray Niro.

Mike Masnick at TechDirt picked up on some of this in a post Blogging vs. Journalism Question A Key Point In Compelling The Troll Tracker To Testify which included a comment

This debate is moot. As Joe Mullin reported in part 1 of his recent series, the lawyers at Niro Scavone Haller & Niro have dropped their demand to depose Frenkel. So, for now, any question about whether Frenkel was as bona fide journalist is moot.
It might be reasonable to take the position that Frenkel was a paided corporate shill dishonestly pretending to be a disinterested journalist....
That position still wouldn't justify Niro's bounty.
If you subpoena a witness and then put a price on their head, then that should be go-directly-to-jail witness intimidation.
And when you put a bounty on someone before you subpoena them as a witness, well, the only reason for not seeing that as go-directly-to-jail witness intimidation is that it was a frivolous subpoena and Niro never actually meant to conduct the deposition. He was just abusing the court's process to harass Frenkel.
Anyhow, the Honorable Magistrate Judge Howard Lloyd should have acted to stop Niro's abuse of the court's process. But don't hold your breath on any sanctions with teeth.
Lawyers like Niro are above the law these days.
I hope Niro puts his next bounty on someone who's not afraid to pull the trigger.

Returning to Mullin, there was text:

But of course, nobody needs a license or a degree to be a journalist (good thing, too.) Even before the age of 'participatory media' that's now blurring all the lines, the practice of finding and verifying facts is just that—a practice, one that's open to anyone in a free country.

IPBiz remembers a post on californiastemcellreport (authored by a person who was a professional journalist) stating that a certain scientist got a grant from CIRM, when said scientist did NOT get a grant from CIRM. There was later an interesting thread about whether bloggers verified facts, or indeed whether journalists were obligated to verify the truth of a single published (non-anonymous) source. If verification were not needed, as the journalist seemed to contend, then writers of all stripes will have a field day perusing law review articles. Gary Boone as inventor of the integrated circuit is only the beginning.

Mullin also had a link to USC guidelines on journalism, which started off with the text:

No plagiarism

By now, you've likely discovered that writing is hard work. You certainly don't want someone else swiping your effort and presenting it as his or her own.

So don't steal others' work.

Such theft is plagiarism. It includes not just cutting and pasting whole articles, but copying photos, graphics, video and even large text excerpts from others and putting them on your web page as well.

If you want to reference something on another website, link it instead.

If you are concerned that the page you're linking to will disappear, give your readers the name of the publication that published the page, its date of publication and a short summary of its content. Just like news reporters used to reference other content before the Web. (“In a Sept. 20 report, the Wall Street Journal reported....").

When in doubt, do both. There's no such thing as too much supporting information.

If the folks at USC think this practice is being followed by many, they are simply in dreamland.

IPBiz enjoyed the reference to the Sikahema effect (If you are concerned that the page you're linking to will disappear... ).
In fact, Vai Sikahema made a reference this week to the value of YouTube in preserving old material, and how one might be surprised at what's on YouTube. IPBiz bets that Vai has not placed "Rutgers is Wrong" on YouTube.

Monday, May 19, 2008

On betting the sun will rise on May 20

May 19, 1780 was the darkest night anyone had seen. Some people could not sleep and waited through the long hours to see if the sun would ever rise again. They witnessed its return the morning of May 20. Many observed the anniversary a year later as a day of fasting and prayer.

EPO to determine in June the fate of WARF stem cell patent application

In the next month, the European Patent Office [EPO] will rule on whether inventions involving human embryonic stem cells (hESCs) can be patented.

Peter Ranscombe of the Scotsman reported:

The enlarged board of appeal (EBA) of the EPO is due to meet in Munich on June 24 and June 25 to consider a patent application filed by Wisconsin Alumni Research Foundation (WARF) in 1995.

The application was initially rejected, but was sent to the EPO's technical board of appeal, which in turn referred the matter to the higher EBA.

The UK patent office allows patents to be filed for inventions concerning pluripotent HESCs – which have the potential to become most but not all cells – but not totipotent HESCs, which could turn into any cell. It also does not accept claims to methods of isolating HESCs that involve the destruction of a human embryo.

U.S. counterparts to this application have issued in the U.S., and recently survived re-examination.

See IPBiz post:

The journal Nature refers to WARF win on stem cells as landmark ruling

Friday, May 16, 2008

Does Petra Moser show patents encourage successful innovation?

The work of Petra Moser on patents was summarized by LIOR JACOB STRAHILEVITZ in 116 Yale L.J. 1472, 1481-2 (2007):

MIT's Petra Moser, for example, has examined the diffusion of innovations during the nineteenth century in two recent papers. Her 2005 paper in the American Economic Review studied the innovations that were highlighted at the 1851 and 1876 World's Fairs. n31 She concluded that in nations without patent laws - such as Switzerland and Denmark in 1851, and Switzerland and Holland in 1876 - there was little innovation in industries like manufacturing and agricultural machinery, in which trade secrecy is a poor substitute for patent protection, and more innovation in industries like food processing and scientific instruments, in which trade secrets do provide a relatively effective means for maintaining a monopoly on innovation. n32 Thus, patent protections do seem to encourage successful innovation. A related paper suggested that in British industries in which firms relied heavily on patent protection, innovations were more geographically dispersed than in those industries in which patent protection was unavailable or not often sought. n33 On the basis of these data, Moser concluded that strong patent protections served an information-forcing purpose and enhanced socially desirable knowledge spillover across England. n34


n31. Petra Moser, How Do Patent Laws Influence Innovation? Evidence from Nineteenth-Century World's Fairs, 95 Am. Econ. Rev. 1214 (2005).

n32. See id. at 1231-32.

n33. See Petra Moser, Do Patent Laws Help To Diffuse Innovations? Evidence from the Geographic Localization of Innovation and Production in 19th-Century England (July 10, 2005),

Frischmann and Lemley [107 Colum. L. Rev. 257 (2007)] consider Moser's analysis to reflect the state of things before the modern era:

For a discussion of how inventions disseminated before the modern era, see generally Petra Moser, How Do Patent Laws Influence Innovation? Evidence from Nineteenth-Century World Fairs (Nat'l Bureau of Econ. Research, Working Paper No. W9909, 2003), available at id=435483 (on file with the Columbia Law Review).

Mann writes in 20 Harv. J. Law & Tec 1 (2006):

Recent literature on the relation between IP and industrial organization provides a strong theoretical basis n130

footnote 130: See Petra Moser, How Do Patent Laws Influence Innovation? Evidence from Nineteenth-Century World Fairs, 95 AM. ECON. REV. 1215 (2005) (reporting empirical evidence that stronger IP systems influence the direction of innovation). The recent history of the software industry, which has seen a great deal of innovation as software patents have become easier to obtain, illustrates this contention.

IPBiz query: does anybody cite check (or think) at Harvard Journal of Law & Technology [JOLT]?

Thursday, May 15, 2008

Geron stem cell study gets verbal hold from FDA

On May 14, it was announced that the FDA placed a so-called clinical hold on their proposed test of the treatment for people with spinal injuries.

Nintendo whacked with $21 million infringement verdict in Anascape case

Anascape Ltd. won a $21 million verdict against Nintendo in a lawsuit (in Lufkin, TX) that was originally filed in 2006. Nintendo spokesman Charlie Scibetta said the company will seek an appeal and expects the court to reduce the award "significantly."

Microsoft, an original defendant, had settled before the start of trial.

Wednesday, May 14, 2008

Tafas v. Dudas: May 5 and May 7

Patent Docs noted on May 7 that a notice to appeal had been filed in Tafas v. Dudas, on the USPTO's rules on continuing applications. Also, on May 7, Patently-O reported: The Patent Office has filed a notice of appeal in the case of Tafas v. Dudas.

from a 7 May 2008 IPFrontline post on Tafas v. Dudas:

Tafas v. Dudas: With an appeal due by June 1, 2008, Peterlin had no announcement whether the PTO would proceed with an appeal.

IPFrontline was covering an address by Margaret Peterlin on 5 May 2008, which indeed gave no hint of the appeal which would be filed on May 7. [ManagingIP: "No announcement has yet been made..."]. What a difference a day makes!

Victoria's Secret sued for trademark infringement over "Pink" brand

Victoria's Secret, sued for patent infringement over the "Very Sexy 100-Way Strapless Convertible Bra," has been sued for trademark infringement over the "Sweet Shoppe" line of Juicy Couture (Liz Claiborne).

The case is Juicy Couture Inc. v. Victoria's Secret Stores Brand Management Inc., 08-cv-3985, U.S. District Court, Southern District of New York [SD NY].

The offending product is alleged to be Victoria's Secret's Pink brand. Victoria's Secret is owned by Columbus, Ohio-based Limited Brands.

See previous IPBiz post: Victoria's Secret: sellers of "Very Sexy 100-Way Strapless Convertible Bra " sued for patent infringement

See also link

Tuesday, May 13, 2008


from an article by Westacott:

Zack: They deserved it, man. Anyone who'd done, like, programming 101 could get around those detectors [turnitin]. Me and my roommate once wrote an app that we were hoping might take off -- we called it Turnitoff. It was cool. You ran your paper through Turnitoff and it would insert invisible jammers to make Turnitin jump to the next sentence whenever it came across a plagiarized passage.

"Judicial hellholes"?

IPBiz found a post at lawbeat of interest. It began:

The junk science on display in the American Tort Reform Association's annual "judicial hellhole" study -- remember, Adam Liptak documented how the rankings are meaningless because the underlying survey has no actual validity, which ATRA cheerfully admitted -- now propagates itself on

IPBiz could not help but think how the "junk science" of the "97% patent grant rate" worked its way through the IP legal academic community. Does that make the IP legal academic community an "academic hellhole"?

More on Translogic and Duffy

Harold Wegner discussed the work of John Duffy in "The Duffy Defect": In re Translogic Technology, Inc., 504 F.3d 1249 (Fed. Cir. 2007), petitioner challenges a Board decision on the basis that current Board member appointments by the Director are unconstitutional as a violation of the Appointments Clause under a manifest flaw announced by Professor John F. Duffy, Are Administrative Patent Judges Unconstitutional?, 2007 Patently-0 Patent L.J. 21.

See also

Quinn on Bilski (and on Duffy)

John Duffy and Translogic Technology and the BPAI

Supreme Court allows verdict against Toyota/Prius stand

The Supreme Court did NOT grant cert to a petition by Toyota, leaving intact a jury verdict favoring closely held Paice LLC of McLean, Virginia. The CAFC upheld the award last year. The CAFC did tell the trial judge to revisit his order that Toyota pay $25 for every Prius, Highlander and Lexus RX400h sold.

The theory of invention, illustrated with dinosaurs and Alexander Graham Bell

The opening cartoon (captioned "the history of science is full of ideas that several people had at the same time") of a piece by Malcolm Gladwell in the New Yorker evoked a March 30 story by MATT RICHTEL in the New York Times titled: Edison ...Wasn’t He the Guy Who Invented Everything?. However, the Gladwell piece is a bit deeper, going into some details of Nathan Myhrvold and Intellectual Ventures:

In 1999, when Nathan Myhrvold left Microsoft and struck out on his own, he set himself an unusual goal. He wanted to see whether the kind of insight that leads to invention could be engineered. He formed a company called Intellectual Ventures. He raised hundreds of millions of dollars. He hired the smartest people he knew. It was not a venture-capital firm. Venture capitalists fund insights—that is, they let the magical process that generates new ideas take its course, and then they jump in. Myhrvold wanted to make insights—to come up with ideas, patent them, and then license them to interested companies.

Of the people -->

Chairing the meeting was Casey Tegreene, an electrical engineer with a law degree, who is the chief patent counsel for I.V. He stood at one end of the table. Myhrvold was at the opposite end. Next to him was Edward Jung, whom Myhrvold met at Microsoft. Jung is lean and sleek, with closely cropped fine black hair. Once, he spent twenty-two days walking across Texas with nothing but a bedroll, a flashlight, and a rifle, from Big Bend, in the west, to Houston, where he was going to deliver a paper at a biology conference. On the other side of the table from Jung was Lowell Wood, an imposing man with graying red hair and an enormous head.

One sees an immediate difference in "patent attitude" between Intellectual Ventures and Cisco. Clarence ("Casey") Tegreene, the chief patent counsel at Intellectual Ventures is a registered patent attorney (number 37951). Mallun Yen, IP head at Cisco, is not. Cisco's focus is defending patent lawsuits. IV creates patents.

The Hertz Foundation come up -->

Myhrvold and Wood have known each other since Myhrvold was a teen-ager and Wood interviewed him for a graduate fellowship called the Hertz. “If you want to know what Nathan was like at that age,” Wood said, “look at that ball of fire now and scale that up by eight or ten decibels.” Wood bent the rules for Myhrvold; the Hertz was supposed to be for research in real-world problems. Myhrvold’s field at that point, quantum cosmology, involved the application of quantum mechanics to the period just after the big bang, which means, as Myhrvold likes to say, that he had no interest in the universe a microsecond after its creation.


Lowell Wood was on the East Coast for a meeting of the Hertz Foundation fellows in Woods Hole.

[LBE was a Fannie & John Hertz Foundation Fellow at Stanford.]

The Alexander Graham Bell/Elisha Gray matter is covered, but in a different way than one usually finds.

See also

Is Lemley right about Bell and Gray?

If multiple groups are working on everything at the same time, why have patents?

Monday, May 12, 2008

"Misbegotten preemptions" as applied to the patent quality issue

There is an editorial titled "Misbegotten Preemptions" that appears in the journal Science in May [320 Science 585]. Nominally, Donald Kennedy is criticizing a proposition: When the FDA acts, state torts must defer.

Kennedy notes

"First, the FDA is badly underfunded."

Then, Kennedy writes

"Second, ... unable to secure a guarantee of safety."

These observations apply equally well to the USPTO. The USPTO is badly underfunded.
The USPTO, lacking laboratories, is unable to verify anything that is sent to it in the form of experimental results. It cannot guarantee that anything is right.

If some things turn out wrong, the issues can be litigated.

StemCells still going after Neuralstem

Forbes (AP) reports on May 12: Clinical-stage biotechnology company StemCells Inc. said Monday [May 12] it filed a second patent lawsuit against Neuralstem in a California federal court, alleging infringement of two patents related to human neural stem cells.

There was the discussion of litigate vs. license:

"While we are disappointed that Neuralstem chose to escalate matters, we have a duty to our shareholders to protect our good name and the significant value of our intellectual property portfolio built over the years," StemCells Chief Executive Officer Martin McGlynn said in a statement. "Litigation of this type can be very time consuming and expensive and might have been avoided had Neuralstem chosen to negotiate a license as others have."

See also

Sunday, May 11, 2008

The urban legend of the Duell quote continues

The second quote on Top 87 Bad Predictions about the Future on 2spare is:

«Everything that can be invented has been invented.»
Charles H. Duell, an official at the US patent office, 1899.

Sadly, as IPBiz has noted before, this quote is an urban legend. It did not happen.

See for example a post on IPBiz in the year 2005: "Wrong expert prediction" site starts with fake quote of Duell

2spare did have a Civil War quote: «They couldn't hit an elephant at this dist-»
Last words of Gen. John Sedgwick, spoken as he looked out over the parapet at enemy lines during the Battle of Spotsylvania in 1864.

There was something about the Smithsonian: «I am tired of all this sort of thing called science here... We have spent millions in that sort of thing for the last few years, and it is time it should be stopped.»
Simon Cameron, U.S. Senator, on the Smithsonian Institute, 1901.

One does recall the unfortunate tie-in between the Smithsonian and Langley's Aerodrome, which kept the Wright Flyer out of the Smithsonian until after 1947.

The Duell quote also appears on

Bad Predictions About Great Inventions at scribd

***Of the old patent office building -->

Look to the right and down 8th Street, Boasberg says, and Obama will see the place where the Old Patent Office was located. Sick and dying Union soldiers were laid out between patent-display cases during the Civil War. Lincoln often stopped by to offer comfort to the troops. Lincoln also held his second Inaugural Ball at this location.

"Officials call it slavery" -- Newark Star Ledger, May 11

The officials called it slavery, but the enslaved defended their enslavers. Although the May 11 Star-Ledger says this was a "first," one suspects the issues were already covered in an episode of Law & Order. The enslaved did hair dressing.

Well, at least New Jersey doesn't have a "Proposition 71," enslaving the taxpayers.

"Burning water" discovery tied up in patents?

KING5 in Seattle writes of the Kanzius "burning water" discovery:

But scientists say the project is all tied up in the patent process, and it could take years before those possibilities are explored.

IPBiz says: yeah, right....

KING5 also wrote:

[Rustum] Roy had his fellow engineers and students at Penn State put the so-called radio frequency generator to the test. They tried all kinds of alternatives, with and without salt water, and at different temperatures. They looked for trickery or hidden fuels, but as they have now reported in a science journal, they find it works.

Roy is NOT saying that this process makes more energy than it consumes. It is, in fact, likely an energy sink, not an energy source. KING5 did not mention that.

The paper in question appears in a 2008 issue of Materials Research Innovations.

See also

Quinn on Bilski (and on Duffy)

Gene Quinn, in talking about the Bilski arguments on May 8, discussed the performance of Professor John Duffy:

Professor John Duffy of the George Washington University Law School argued orally on behalf of Regulatory Datacorp, Inc., one of the many amici in the case. All I can say about Professor Duffy's performance was that it was extremely poor. Prior to seeing the light and leaving the academic world I spent a lot of time teaching oral advocacy and moot court, coaching a number of national winning teams, and if any of my students had ever performed like that I would have been embarassed beyond belief. Repeatedly the judges asked Professor Duffy questions and Professor Duffy simply refused to answer the questions asked. Judges, Michel, Bryson, Rader, Moore and others had to asks their rather straight forward questions over and over and over again, and Professor Duffy simply never answered the questions. At one point Judge Rader said "I am still waiting to hear an answer to the questions Judge Bryson asked and I would really like an answer." Rather than answer any of the questions asked, for 10 minutes Professor Duffy merely lectured the Court that they should act "cautiously" and "follow the Supreme Court precedents." This became so repetetive that Judge Michel even took to asking questions prefacing the questions "Lets assume that we do act cautiously, and we do follow the Supreme Court, what would you suggest we do?"

One recalls that Duffy is now an advisor to candidate McCain. One also recalls that Duffy was savaged in a law review article by Judge Plager.

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Abramowicz on FutureMAP

Michael Abramowicz, a member of John McCain's Justice Advisory Committee, wrote a law review article in the University of Chicago Law Review titled: Information Markets, Administrative Decisionmaking, and Predictive Cost-Benefit Analysis, which discussed issues surrounding FutureMAP, a project of the Defense Advanced Research Projects Agency (DARPA), which was an experiment to determine whether information markets could improve Defense Department decisionmaking.

The article noted:

The technology underlying FutureMAP could have been used before the war to aggregate intelligence agents' predictions about whether weapons of mass destruction would be found. One argument for such a market might have been that it would be better at aggregating information than government officials, but the stronger argument is that it would have provided the public an objective indication of what governmental officials really believed, without release of the underlying intelligence information.

IPBiz notes that the "patent quality" argument in patent reform is analogous to the "weapons of mass destruction" business in the Iraq thinking. At the end of the day, judged by the actions of the Coalition for Patent Fairness, the patent quality issue wasn't really there. But the IT folks couldn't tell you that in advance. The law professors couldn't either (note Lemley's flip flop
on the numbers of Robert Clarke!)

The conclusion of Abramowicz on FutureMap:

The tempest over FutureMAP may have prevented that project from producing useful experiments on the workings of information markets, but it did provide an important experiment about the willingness of the public to allow information markets a role in policymaking. That experiment revealed that the public is not yet ready for information markets, and this Article has suggested some reasons to support the public's caution. Insufficient experimentation has yet been done to establish the degree of information markets' susceptibility to attempts at manipulation, and some of the more adventurous information market designs, such as conditional markets, may be too noisy to be reliable. If such problems can be overcome, however, the objectivity of information markets might allow their predictions to be a useful input into the administrative process. The normative predictions of predictive cost-benefit analysis may be particularly useful, and less [page 1020] likely to excite public angst than direct predictions of variables such as terrorism deaths. Public acceptance will surely be slow, but further academic experimentation could either identify unsolvable problems or produce an academic consensus in favor of some uses of information markets that eventually might lead to gentle introduction of information markets into the policymaking process.

See 71 U. Chi. L. Rev. 933 (2004)

See also

More recently Michael Abramowicz wrote THE DANGER OF UNDERDEVELOPED PATENT PROSPECTS, 92 Cornell L. Rev. 1065 (2007), while a visiting professor at the University of Chicago Law School. Therein he thanks John Duffy (another McCain advisor) for his valuable comments and discussion.

Within, he writes:

The most obvious, though perhaps not the most commercially significant, form of unpatentable development activity is scientific testing. n146 As evidenced by statutes such as the Orphan Drug Act, the need to encourage scientific testing of inventions is particularly acute for pharmaceuticals. n147 However, a wide range of inventions might benefit from further testing to determine how well the invention will perform in the marketplace. If tests reveal that an invention will not perform well, the results will help the patentee make an informed decision about whether to fully commercialize it. In addition, the less patent term remaining, the more incentive patentees have to commercialize products without testing them and thus without finding solutions to potential problems.

IPBiz: scientific testing is NOT a major need in determining how well an invention will perform in the marketplace.

Abramowicz also writes:

Unsurprisingly, courts have been skeptical of efforts to obtain broad patent protection for scientific studies. For example, the Federal Circuit recently upheld a district court's invalidation of a patent for growing and eating cruciferous sprouts, such as broccoli, to reduce the level of carcinogenic substances and the risk of cancer. n152 The patentee argued that it had discovered a new method for "selecting the particular seeds that will germinate as sprouts rich in glucosinolates." n153 The court, however, held that, "while [the patentee] may have recognized something about sprouts that was not known before, [the patentee's] claims do not describe a new method." n154 With its claim rejected, the patentee had no access to additional patent protection. As a result of the Federal Circuit's decision, patentees may not have the incentive to research known but unproven scientific hypotheses about public domain products, such as cruciferous sprouts, or even about their own products. Given the difficulty that courts would face in determining the extent to which a particu-lar experiment reduced scientific uncertainty, the Federal Circuit's decision is likely a good one, but its effect may re-quire the patent system to provide parties with nonpatent innovation incentives, such as governmental scientific grants, to encourage research on patented or once-patented inventions.

He concludes:

Although intellectual property commentators have long discussed the optimal length of the patent term, they have as-sumed that the existing term is long enough to give patentees sufficient incentives to commercialize their patented in-ventions.
Two new developments, one empirical and one theoretical, make such assumptions problematic.

First, patents are increasingly granted on embryonic inventions, particularly in the field of genomics. [IPBiz: !] Such inventions may require study for a period longer than the patent term. Second, economic models of intellectual property suggest that inventors may acquire patents for their option value at a relatively early stage of development. By the time a patent option would be worth exercising if most of the patent term remained, so little time may remain that commercialization would not be feasible.

The patent system includes some mechanisms that significantly limit the underdevelopment problem. First, by imposing substantial requirements for patenting, the patent system reduces the proportion of expenses that need to be made after patenting. The patent underdevelopment concern thus provides a counterweight to the prospect theory of patents, which argues that patents should be granted early. Second, improvement patents can effectively extend the patent term. However, they may not be available for some types of development activity, including scientific experimentation, commercial testing and marketing, and research producing subpatentable inventions. [page 1121] As a result, patent extensions, though probably welfare decreasing for the vast majority of inventions, might enhance social welfare for a small subset.

Auctions for patent term extensions provide a possible solution to the patent underdevelopment problem. Under this approach, a patentee would be able to call for such an extension before the end of the patent term. The patentee, however, would need to offer a bid substantially exceeding that of the runner-up to win the extension, and a patentee who calls for, but does not win, an auction would pay a fine. This approach will result in patent extensions only where the value of continuity of patent ownership is relatively high. These will be cases in which the patentee would like to make investments during the remainder of the original patent term that would pay off primarily in the extension period and, thus, where the degree of patent underdevelopment would otherwise be high.

IPBiz notes the story of Chester Carlson and xerography. Carlson's basic patent ran out long before the Xerox 914 went to market, but he had so many improvements no one competed. Carlson didn't need a patent term extension.

***Further on Carlson (posted on patenthawk)-->

Recall that roughly nine out of ten issued patents don't make any royalties. Further, even when there is a ground-breaking innovation, such as Chester Carlson's, the patent can expire before royalties are made. And, the best and brightest minds at IBM (and a thinktank they hired), did not recognize an equity worth owning in Xerox.

Patent related to Umckaloabo (Pelargonium) challenged at EPO

Native South Africans are fighting the patent of Schwabe Pharmaceuticals related to a method of extraction from Umckaloabo, also known as Pelargonium. Not text from The Times: a team of South African lawyers and environmentalists launched the challenge at the European Union Patent Office headquarters in Munich, Germany, this week.

Recall the mess with the patent activities of the University of Hawaii on the taro plant.

Recall also the mess over the plant patent to yage.

Outsourcing legal work to India

In a May 11 article U.S. Legal Work Booms in India, the Washington Post notes:

Indian workers who once helped with legal transcription now offer services that include research, litigation support, document discovery and review, drafting of contracts and patent writing. The industry offers an attractive career path for many of the 300,000 Indians who enroll in law schools every year. India and the United States share a common-law legal system rooted in Britain's, and both conduct proceedings in English.

Although the Post mentioned patent writing, a key area of work moving to India is in the discovery area:

"The new e-discovery rules sent American companies scurrying all over the place. Neither the corporates nor the law firms in America are geared to do this kind of work at short notice. And that is where the Indian players come in. We can bring together a large number of skilled lawyers in no time at all and at one-fifth the cost," said Srinivas Pingali, executive vice president at Quatrro, which also offers technical support, credit card fraud management, consumer research and architectural services for American clients, among other work.

One recalls the post on PatentHawk titled A New Kind of Patent Boutique? which included text:

Another reason that was obvious after hearing the panelists is the relatively inelastic supply of talent graduating from law schools every year. That pool of talent hasn't grown much in decades, even as the demand for legal services has exploded.

The PatentHawk post neglected that the number of new US law grads (in range 25,000 to 50,000 (per year) over the last 20 years) is tiny compared to the overall number of lawyers (about 1 million) and that a large fraction of law grads end up with lousy jobs. Further, with India producing 300,000 grads per year, who will work at 1/5 the cost, it's not difficult to see how this is playing out.

The PatentHawk post was suggesting patent firms take a slice of patent royalties: Lawyers who (a) believe in the value of their services, (b) understand the technology patented, and (c) believe in the prospective value of the market that the patents are meant to cover should be willing to accept lower rates in exchange for a slice of future profits. The trouble is that there just aren't that many lawyers who understand law, technology, and venture capital investing. And the ones that do (think of senior partners at big law firms) generally are too comfortable with the status quo.

The PatentHawk post does not seem to reflect knowledge that the overwhelming majority of issued US patents make NO money in royalties. Large companies create big patent portfolios as bargaining chips for later cross-licensing deals. For this purpose, the patent scribes in India will work just fine.

Outsourcing and India did NOT show up in the main post, although one comment related to patent prosecution:

You're right that there's no problem on the prosecution side. The supply of talent there isn't a problem -- in addition to patent agents in the U.S., there are plenty of good ones now in India.

See also

Patent reformers take the last train for the coast

Joff Wild at IAM writes of patent reform: Having been led to believe that the US patent system was fundamentally flawed and needed fixing if it was going to be fit for purpose for the 21st century, we end up finding out that the only game in town was actually a debate about how damages should be calculated in patent infringement cases and that nothing else on the table was worth doing anything about.

IPBiz notes that there was never any significant evidence pointing to a patent "quality" problem. Quillen and Webster's "97% patent grant rate" number was a scam all along. The other stuff was window dressing for the damages apportionment issue, which as far as the IT folks were concerned was the ONLY issue. Once that was off the table, the Coalition for Patent Fairness packed up and went home.

Speaking of "packing up," Joff wrote a point confirmed when John Whelan, on secondment from the USPTO, packed up his things and left Senator Patrick Leahy’s office and Leahy’s chief counsel started to work on other things.

In fact, Whealen departed the USPTO for GWU, and won't be available to argue the appeal of the continuing application package. The substantive issues on the appeal won't be won, and the limitations on continuing applications won't happen.. Not much to show for the patent reform wars 2005-2008.

Joff got the "interference bar" position wrong when he wrote: The patent interferences bar that may have feared for its future will be breathing a sigh of relief. The power players in the "interference bar" were in favor of "first to file," and were counting on patent oppositions (post grant review) to bring in more money. Why be content with a small practice area, when one can expand to the big time? Patent oppositions would have been a bonanza for those guys. Are you kidding, Joff?

See also
John Whealan headed to GWU

Patent reform 2008 as a house of mirrors?

Places not to look for significant insight on patent policy

Slashdot cites to TechDirt citing to Stephen Kinsella on patent policy. Not exactly Tinkers to Evers to Chance.

See also

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

Mike Masnick, the "emperor" with no clothes?

Patent reform 2008 as a house of mirrors?

Another day in the stent patent wars

AG-IP reported on May 11:

Boston Scientific Corporation announced in a press release that the Canadian Federal Court has issued judgment in a lawsuit in which Johnson & Johnson had accused the Company's NIR stent of infringing two Johnson & Johnson Palmaz patents.

The Court dismissed Johnson & Johnson's lawsuit, found that the Company's NIR stent did not infringe one patent of Johnson & Johnson, and found that the other Johnson & Johnson patent was invalid.The trial had taken place earlier this year.

Johnson & Johnson recently filed a second lawsuit in Canada in which the Company's Express and TAXUS Express stents are accused of infringing these same two patents.

"We are very pleased with the decision by the Canadian Federal Court dismissing this case," Boston Scientific Chief Operating Officer Paul LaViolette said.

Friday, May 09, 2008

John Whealan headed to GWU

Marcia Coyle reports: John Whealan, deputy general counsel for intellectual property law and solicitor for the U.S. Patent & Trademark Office, has joined the faculty of George Washington University School of Law as associate dean for intellectual property.

Whealan had been working on greasing the skids for patent reform. Since that isn't happening, he's moving on.

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Remember: S.1145 is off the calendar.

Newsflash to Laura Newpoff: of your text: There's also a looming Patent Reform Act in the U.S. Senate that, if passed, will drastically change the IP law landscape, the Senate already took S.1145 off the calendar. It isn't happening this year, and it isn't "looming."

Ex parte Fu and obviousness rejections over a genus

The 271 blog discusses the significance of the BPAI case Ex parte Fu to obviousness determinations, specifically as to the use of a genus to invalidate.

Invitrogen does deal with WARF on stem cell patents

You won't find it on californiastemcellreport, but California-based Invitrogen has signed a deal with Wisconsin-based WARF to license WARF patents in the stem cell area. A May 8 article in the North County Times stated:

Invitrogen Corp. has deepened its involvement in the fast-growing field of embryonic stem cell research under a deal announced Thursday [May 8] with a holder of controversial patents to the technology.

Carlsbad-based Invitrogen gets the legal right to sell products made by using embryonic stem cells, under the deal with the Wisconsin Alumni Research Foundation [WARF]. The foundation has been issued U.S. patents to the underlying technology for growing primate and human embryonic stem cells. Invitrogen would not disclose the terms of its deal.

If, hypothetically, the world was as portrayed by John Simpson of Consumer Watchdog (then FTCR), Invitrogen would not be doing a deal with WARF over the patents, supposedly significantly weakened according to Simpson. The North County Times article also mentions Jeanne Loring: A number of stem cell researchers, led by Jeanne Loring of The Scripps Research Institute, are suing to invalidate the patents. The researchers say the patents are unjustified and are slowing down their work, which they say may lead to new treatments for incurable diseases. It's not clear whether the article refers to Loring's declaration in the ill-fated FTCR re-exam of the WARF patents, or to some other effort. One recalls that Loring's declaration was tossed by the USPTO as conclusory, and the prior art she relied on was deemed not enabled. For all the smoke generated by Simpson, the re-exam was poorly thought-out and produced little. Given that Invitrogen did a deal with WARF, one sees what the business community thinks of Simpson's efforts.

Meanwhile at californiastemcellreport, one has debates on whether Klein did, or did not, violate CIRM policy. See for example:
Consumer Watchdog Rethinks Stand on Klein's Private Contact with Grant Applicants Anybody for re-arranging deck chairs on the Titanic?

As a separate matter, californiastemcellreport has a comment by Dr. Kim on the "Cha plagiarism in Fertility & Sterility" matter:

- ... an author listed on both published articles explaining why Dr. Kim’s name was left off of the Fertility & Sterility article and why Dr. Cha’s name was left off of the Korean journal article.

The author, Lee SH, has been sentenced to 6-month jail term with 1 year of suspension of execution for Copyright infringement in Korea. Her above "explanation" was obviously not accepted by the criminal court.

- ...he first suggested that Fertility & Sterility publish an erratum saying Dr. Kim “should have been included among the authors of the F&S article,” and then he took no further action for nearly one year.

His such suggestion was irrelevant and therefore turned down by me right away. I rejected that offer as I was sure that it had not been merely an error. When asked to present, so-called, the first manuscript with my name listed on, he couldn't. Why? No answer from him so far.

IPBiz notes that apart from the plagiarism issue (and plagiarism is not a federal crime in the U.S.), there was an issue of violation of copyright law in South Korea, because the second paper (in Fertility & Sterility) copied text from the first paper in KJOG. Assuming the accuracy of the comment of Dr. Kim, the Korean court resolved this matter adversely to the interests of Cha's position.

***There was a separate comment on californiastemcellreport concerning Cha:

- The Cha Fertility Center and Cha RMI are located in the same Los Angeles office building, raising further questions about where and how Cha RMI will procure eggs for its CIRM-funded research on cloning techniques. As CGS's press statement put it, "Women's health advocates have warned about the health risks of egg retrieval, as well as about likely conflicts of interest between fertility doctors conducting egg retrieval and researchers who want the eggs for their experiments."

- The medical director of the Cha Fertility Center, another Cha Health Systems subsidiary, has been named in a lawsuit filed by a woman who says that he lied about the number of eggs he collected from her and other aspects of her medical care.

The "Cha plagiarism" business is related to the suit brought by Cha against Bruce Flamm, which suit was tossed by a California Superior Court.