Saturday, March 31, 2012

On buying biofuel at $15 a gallon

A copy of the letter of Secretary of the Navy Mabus to Congressman Doug Lamborn is included in the post.

Protests in Hungary over plagiarism by Pal Schmitt

Reuters reports of protests in Hungarian calling for the resignation of President Pal Schmitt.

But, the Telegraph reported on 30 March 2012:

But in a television interview broadcast last night the president argued the fault lay with his advisers and the examining committee. He claimed they had failed to bring the problems with his doctorate to his attention, and, if they had done so, he would have corrected the text.

Friday, March 30, 2012

Justice Stephen Breyer “promised” he had not read the entirety of the 2,700-page health-care legislation the court was examining.

Recall also: In a speech delivered March 9, 2010, twelve days before the House passed the health-care legislation, then-House Speaker Nancy Pelosi said, “But we have to pass the bill so that you can find out what is in it.”

Taylor Wilson, fusion, and patents

From Popular Science:

Shortly after his 14th birthday, Taylor and Brinsmead loaded deuterium fuel into the machine, brought up the power, and confirmed the presence of neutrons. With that, Taylor became the 32nd individual on the planet to achieve a nuclear-fusion reaction. Yet what would set Taylor apart from the others was not the machine itself but what he decided to do with it.
While still developing his medical isotope application, Taylor came across a report about how the thousands of shipping containers entering the country daily had become the nation’s most vulnerable “soft belly,” the easiest entry point for weapons of mass destruction. Lying in bed one night, he hit on an idea: Why not use a fusion reactor to produce weapons-sniffing neutrons that could scan the contents of containers as they passed through ports? Over the next few weeks, he devised a concept for a drive-through device that would use a small reactor to bombard passing containers with neutrons. If weapons were inside, the neutrons would force the atoms into fission, emitting gamma radiation (in the case of nuclear material) or nitrogen (in the case of conventional explosives). A detector, mounted opposite, would pick up the signature and alert the operator.
He entered the reactor, and the design for his bomb-sniffing application, into the Intel International Science and Engineering Fair. The Super Bowl of pre-college science events, the fair attracts 1,500 of the world’s most switched-on kids from some 50 countries. When Intel CEO Paul Otellini heard the buzz that a 14-year-old had built a working nuclear-fusion reactor, he went straight for Taylor’s exhibit. After a 20-minute conversation, Otellini was seen walking away, smiling and shaking his head in what looked like disbelief. Later, I would ask him what he was thinking. “All I could think was, ‘I am so glad that kid is on our side.’ ”

Wikipedia on Taylor Wilson:

Taylor Ramon Wilson (born May 7, 1994) is an American nuclear scientist who was noted in 2008 for being the youngest person in the world (at age 14) to build a working nuclear fusion reactor.[1] The U.S. Department of Homeland Security and U.S. Department of Energy offered federal funding to Wilson concerning research Wilson has conducted in building inexpensive Cherenkov radiation detectors; Wilson has declined on an interim basis due to pending patent issues.[1] Traditional Cherenkov detectors usually cost hundreds of thousands of dollars (USD), while Wilson invented a working detector that cost a few hundred dollars.[1] In May 2011, Wilson entered his radiation detector in the Intel International Science and Engineering Fair against a field of 1,500 competitors and won a $50,000 award.[1][2] The project was entitled “Countering Nuclear Terrorism: Novel Active and Passive Techniques for Detecting Nuclear Threats” and won the First Place Award in the Physics and Astronomy Category, Best of Category Award, and the Intel Young Scientist Award. Wilson stated he hopes to test and rapidly field the devices to U.S. ports for counterterrorism purposes.[1]

According to Wilson, he is currently attending the University of Nevada, Reno and the Davidson Academy of Nevada.[3] He lives in Reno, Nevada.

The sippy cup patent wars go to CT scans!

At the end of the CAFC decision in Learning Curve Brands v. MUNCHKIN, INC.:

The district court examined the evidence proffered by Learning Curve’s expert, including the CT scans of the accused cups, and it concluded that the difference in the radii of the lids and the rims of the accused cups was so great that no reasonable jury could find the radii to be “similar.” The court observed that based on Learning Curve’s own evidence, at least one-fifth of the extent of the arc formed by the groove in the lid of the accused cups is not in contact with the corresponding arc formed by the rim of the main body of the cup. As Learning Curve’s own evidence demonstrates, that difference in congruence reflects a substantial difference in the radius of curvature of each of the two arcs. An exhibit offered by Learning Curve shows the difference in the two semi-circular arcs clearly. The CT scan of the accused cups with the lid screwed into place over the cup shows the arc of the cup rim with a relatively short radius and the corresponding arc of the groove of the lid above the cup rim with a substantially greater radius:

Thus, as the district court observed, the evidence demon- strates “a substantial difference in size between the respective radii, far more substantial than any ‘difference in degree’ that must be decided by the jury.”

Because the district court properly concluded, based on the difference in the radii of the two semi-circular arcs, that no reasonable jury could have found that the accused cups infringe the ’784 patent, the grant of summary judgment was appropriate. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255-56 (1986); Absolute Software, Inc. v. Stealth Signal, Inc., 659 F.3d 1121, 1129- 30 (Fed. Cir. 2011); On Demand Mach. Corp. v. Ingram Indus., Inc., 442 F.3d 1331, 1345 (Fed. Cir. 2006).

Is oral argument at the Supreme Court a predictor of outcome?

An article in the Los Angeles Times suggests the answer is yes.

Text in the article refers to a paper co-authored by William Landes of the University of Chicago Law School:

Several studies have looked at the question, including one by USC law professor Lee Epstein, William M. Landes of the University of Chicago and Judge Richard A. Posner of the U.S. 7th Circuit Court of Appeals, based on statistical analysis of Supreme Court oral arguments from 2004 through 2007.

Their conclusion: "The number of questions and the total words in question ... provide a reasonable predictor of most Justices' votes," the clearest exception being Justice Clarence Thomas who, alone among his colleagues, almost never speaks during the court's arguments.

The least predictable member of the court in their study? That would be Justice Anthony M. Kennedy, who is often the swing vote in the court's closely divided cases and was the justice most closely watched in the healthcare arguments.


Chief Justice John Roberts, and others, have noticed that the lawyer in an oral argument in the Supreme Court who is asked more questions than his opponent is likely to lose.2 Our main purpose in this paper is to provide empirical tests of that hypothesis and the related hypothesis that the number of words asked, as distinct from the number of questions, also predicts the outcome. We also explore the theoretical basis for these hypotheses, and we begin with a brief discussion of the theoretical issue.

Footnote 2 of the paper quotes CJ Roberts: “the secret to successful advocacy is simply to get the Court to ask your opponent more questions." John G. Roberts, Jr., "Oral Advocacy and Re-emergence of a Supreme Court Bar," 30 Journal of Supreme Court History 68 (2005).

The paper speaks of a "realistic theory":

The realistic theory is that judges usually make up their mind before oral argument. Indeed, in the case of judges, such as the Supreme Court Justices, who have discretion to decide which cases to hear, their minds may be made up when they decide whether to vote to hear the case. They use oral argument to try to persuade the other judges, and this implies asking more questions of the lawyer for the party they plan to vote against in order to punch holes in the lawyer’s case and perhaps prevent him from articulating his best arguments. This tactic is especially important because judges usually do not discuss the cases before argument, although, in the case of Supreme Court Justices, their votes on whether to grant certiorari will often indicate their leanings. Moreover, at their post-argument conference, at which they discuss the case and vote on the outcome, they speak (and usually, in speaking, indicate their vote) in a prescribed order. In some courts, the judges speak in reverse order of seniority; in the Supreme Court, they speak in order of seniority. A judge high on the seniority ladder in the first type of court, or low on the ladder in the second type, has to fear that a majority will have in effect decided the case before he gets to speak, and this motivates him to speak his mind at the oral argument in the guise of questioning the lawyers, in order to communi- cate his views to the Justices who will vote ahead of him at the conference.

Thursday, March 29, 2012

“It’s a new world that needed a fresh viewpoint, an objective and thorough analysis that would render a straightforward, balanced opinion'

The Boston Globe has a story on lawyer Raymond Cotton of Mintz Levin. There was a matter about former Suffolk University president David Sargent.

"Identity Crisis" episode of "Person of Interest" does chemistry

In an episode on "identity theft," the book "The Trial" (Kafka) appears twice. Finch takes credit for inventing social network sites, as a device to allow intelligence agencies to obtain information more easily. The identity thief is running an ecstasy lab, and there are several chemistry references, including mention of chemistry being more efficient for killing and a threat by Reese to drop hydrochloric acid on the floor.

Keywords: "Good night, Nathan."

March 29, 2012

CAFC discusses arbitration in PROMEGA v. Life Sciences

The bottom line: Because the district court properly compelled arbitration, we affirm. As to the players,

In 2003, Promega granted Invitrogen written consent to assign its rights under the 1996 agreement to IP Holdings, a wholly- owned subsidiary of Invitrogen. On November 21, 2008, Invitrogen merged with Applied Biosystems Inc. (“AB”), one of Promega’s sublicensees, and changed its name to Life Technologies Corporation (“Life Technologies”). IP Holdings remained a wholly owned subsidiary of Life Technologies. AND

In the course of preparing its responses to Promega’s filings, Life Technologies discovered that IP Holdings had not assigned its rights under the 1996 agreement to Life Technologies. Accordingly, IP Holdings served Promega with a demand for arbitration on behalf of IP Holdings. IP Holdings also filed a motion to compel arbitration.

Within the decision:

As the district court noted, Promega cannot have it both ways; it cannot deny IP Holdings the right to arbitrate because it assigned its right to Life Technologies, and then consequently deny Life Technologies the right to arbitrate because Promega did not grant IP Holdings consent to assign its rights. See Arbitration Order, slip op. at 8. Because there was no assignment, the rights under the 1996 agreement remain with IP Holdings. Because there is no dispute that IP Holdings remains a corporation in good standing under Delaware law, we conclude that there is a valid agreement between Promega and IP Holdings to arbitrate.


the Supreme Court has instructed that “the relevant federal law requires piecemeal resolution when necessary to give effect to an arbitration agreement.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 20 (1983). The district court’s duty to compel arbitration is not altered by the fact that non-arbitrable claims may remain pending in the district court. See, e.g., Klay v. All Defendants, 389 F.3d 1191, 1204 (11th Cir. 2004) (recognizing the district court’s authority to compel arbitration of arbitrable claims, while allowing related non-arbitrable claims to proceed before the district court).

Judge Newman dissented:

Although arbitration may be a salutary alternative to litigation, there is no agreement to arbitrate as between the parties in interest for this dispute. No consent was given to assignment of the contract to Life Technologies, although consent is explicitly required by the terms of the prior contract.
In the absence of agreement to arbitrate, arbitration cannot be imposed. I respectfully dissent from the court’s contrary ruling.

"Binding precedent on the Supreme Court"?

A post at IPWatchDog includes the text:

Let me also say that, before Mayo Collaborative Services, this quoted paragraph from Diehr was binding precedent on the Supreme Court, and is also directly on point as to the patent-eligibility issue involved in Mayo Collaborative Services.


As I said above, you could attribute what happened here to “selective precedent amnesia.” But frankly such mishandling of binding Supreme Court precedent in Mayo Collaborative Services is a huge problem.

There is no such thing as "binding precedent on the Supreme Court." For example, recall Brown, which overturned the Plessy v. Ferguson decision of 1896 which had allowed state-sponsored segregation.

Hungarian President Pal Schmitt pressured to resign over thesis plagiarism

One observation of interest in the Schmitt plagiarism matter, the report investigating the plagiarism is 1,157-pages BUT the Schmitt thesis itself is only 215-pages. Of those these pages, 180 pages are copied from one source (which was in the French language) and 16 pages are copied from a different source.

"It hurt, because I had to let go of a dream I'd fallen in love with."

The quote is by Tuur Demeester on the work of Andrea Rossi on his Energy Catalyzer. It could be applicable to some other work in the energy area.

Wednesday, March 28, 2012

Oracle and Google's Android software

Oracle's patent infringement suit against Google, related to the use within Android of Java computer programming language, is scheduled for trial in April 2012 in the court of Judge William Alsup.

Lohan lawyer accused of plagiarism in legal brief

As IPBiz noted, Professor Dershowitz spoke of a culture of plagiarism in legal writing. Now, we have a lawyer for rapper Pitbull
(lawyer=Marcos Daniel Jimenez) stating of a brief filed by the lawyer for plaintiff Lindsay Lohan:

"Its legal discussion mostly consists of plagiarized excerpts of articles found on various websites without explaining their relevance to the facts and issues in this case. The opposition fails to meaningfully address the arguments raised in [Jimenez's motion to dismiss], does not distinguish a single case relied upon by Defendants, and reveals a lack of independent research."

The issue in the case is whether the line "I got it locked up like Lindsay Lohan" in "Give Me Everything" constitutes some form of misappropriation, as in a "right of publicity."

There is a post at E! Online which has a link to the documents filed by plaintiff and by
defendant [footnote 4 makes reference to Lohan's previous complaint against E*Trade; footnote 3 raises the issue of copyright.]

Relevant term: namechecking

Ocean Tomo to auction off NASA patents on March 29

InformationWeek reports: The Innovative Partnership Program Office of the NASA Goddard Space Flight Center is partnering with ICAP Ocean Tomo LLC of Chicago to sell portfolios comprising 12 patents that can be used for a range of applications, including software development, robotics, artificial intelligence, industrial process control, and wireless sensor networks according to NASA.

Tuesday, March 27, 2012

The Militia Act of 1792

In the context of Obama Health Care, there has been discussion of "The Militia Act of 1792" as to the provision:

That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.

The Militia Act was in direct response to US losses at the Battle of the Wabash, a battle not frequently discussed in US history textbooks. From an earlier IPBiz post:

Readers of IPBiz may recall the discussion of St. Clair in another context: St. Clair commanded US forces in 1791 in "the Battle of the Wabash," the greatest defeat of the American army by Native Americans in history with some 623 American soldiers killed in action as opposed to about 50 enemy dead. That loss is roughly three times more dead than suffered by Custer at Little Big Horn in 1876.


The Militia Act related to a perceived military threat, and was not an assertion of powers under the Commerce Clause.

Torvalds makes Microsoft patent collateral damage

In a post titled How Linus Torvalds Helped Bust a Microsoft Patent by Robert McMillan, one has text related to Linus Torvalds:

Last December, Microsoft scored a victory when the ITC Administrative Law Judge Theodore R. Essex found that Motorola had violated four Microsoft patents. But the ruling could also eliminate an important Microsoft software patent that has been invoked in lawsuits against Barnes & Noble and car navigation device-maker Tom Tom.

According to Linus Torvalds, he was deposed in the case this past fall, and apparently his testimony about a 20-year-old technical discussion — along with a discussion group posting made by an Amiga fan, known only as Natuerlich! — helped convince the Administrative Law Judge that the patent was invalid.

Essex’s ruling is merely an initial determination. It is being reviewed and could yet be reversed by the Commission. But if it’s upheld, it could work against Microsoft as it continues to fight Android and other Linux-based systems that it believes violate its intellectual property.

As illustrated for example by the ion trap case (Finnigan; ITC case reviewed by the CAFC) in testimony by Keith Jefferts, testimonial assertions about prior art must be corroborated.

Sunday, March 25, 2012

CSI: Miami does "Law & Disorder" on March 25

CBS CSI: Miami parodies NBC with an episode titled "Law & Disorder."

After the opening scene, with a death of young girl, there is an investigation of people inside a nearby club. A purse, belonging to the victim, is found in the trash in the ladies room. G series nerve agent (vial solution turned yellow) is implicated. Sarin is one. Denise was poisoned with liquid sarin. A cab left the club location at 25 Azure Avenue with another woman showing symptoms. CSI tracks down the other woman, who turns out to be the killer of Denise.

At the apartment of victim Denise. Some sort of needle in this filestack? The CSI's find a semen stain on a blue dress.(belonging to Randall Stafford, head of Miami City Council. Darren Vogel (Malcolm McDowell} is the lawyer for Randall.) Scene: Calleigh is thinking about adopting Austin North and his sister. Darren defeats the blue dress evidence on a chain-of-custody issue.

CSI tries to de-code Denise's notes. It seems the Councilman ordered re-paving of pavement where a murder had occurred the day before. Casal is the suspect. During interrogation, Vogel (McDowell) shows up. Cross-contamination issue. Line: ADA Avery, despite his experience in cheap suits... CSI figures Vogel is black-mailing his clients to do his dirty work. Denise had found out; Stafford (inadvertently?) disclosed Denise's identity to Vogel.

Gabrielle Wade is the "fall person." The case of Esteban Navarro arises. Sam's boyfriend Josh, the assistant state's attorney, is working for Vogel. The episode ends.

"The Good Wife" on March 25, 2012: "Blue Ribbon Panel"

The episode begins with Alisha interviewing Kalinda about her income tax audit. Then, Diane sets up Alisha for a committee on officer-involved shooting (IPRA reports). Alisha shows up at a meeting and Mike Kresteva (Matthew Perry) and a pastor ( Charles Dutton ) are there as panelists. Then there is a scene of a partner's meeting. There is an issue of whether or not Will will share in the profits while not functioning as a law partner. The scene returns to the panel. A judge on the panel tells Alisha she does not need to be clever. You don't have to re-invent the wheel; the wheel works fine. Then another panel scene, and Alisha brings up some factual matters, and the panel goes into executive session and there is a motion to censure Alisha. Then, the scene shifts to Alisha talking to an IRS agent. After Kalinda and Alisha leave the room, Kalinda lets Alisha know a laptop in the room was monitoring the meeting. Then a scene showing Eli and Julius meet about cutting a deal to remove Will. Back to panel: Issue: people respond to sound and sight when they experience chaotic conditions, trying to undercut Alisha's earlier point. An issue of dropped guns arises and the pastor gives his five minutes of time to Alisha. White office/black victim issue. Kresteva (Perry) to Alisha: ask Diane what it is like to piss off judges like this.

Alisha works on writing a letter to Gilda, about the house. Then a flashback to earlier times at the house. Then another flashback, done in Unforgettable fashion, with the present Alisha looking at a past Alisha. Scene shifts to Diane, Will, and Alisha talking about the panel. Diane: you have more responsibility and consequences. Alisha leaves Diane and Will. Diane: easy to be idealistic on the sidelines. Will making friends with the old retired pattern (Howard). Scene: FBI agent (Lana Delaney) talks to Alisha about Kalinda. What is the nature of this investigation? FBI agent says I don't know. [In fact, FBI agent has a past with Kalinda.] Mr. Burk shows up about the panel; Gilda phones Alisha. Alisha asks to recall Burk. Alisha's motion, slowly, carries the day. Scene: Dave Lee telling Will to tell Diane to make smart decisions. Scene: Alisha thinks Peter (not) Alisha puts winning bid on the house.

Scene: Will and Diane about holding Will's seat. Diane terms Dave Lee, Julius, and Eli children, wanting a toy, which they will break if they get it. Scene: panel about dropped gun. Matan and Cary had made an investigation about a dropped gun. Inappropriate decision in the state attorney's office. Scene: FBI agent and Kalinda. Scene at panel: Cary did interview Zimmerman about dropped gun. Cary announces he has been demoted from position of deputy states attorneys. Cary states Eli Gold was present at meeting with Peter about "dropped gun" matter. Scene: Alisha and Peter together. Alisha says "this is wrong." Peter is talking about panel; Alisha is talking about house. But, Peter did not buy the house; Jackie did!

Scene: partner meeting with Eli talking. Dave Lee: this gonna take long? Eli: only if it annoys you. Will talks about Howard Lyman. Scene: Kresteva: there are two reports I can write. I want to avoid a minority report. The more forthcoming report hurts your husband. Which one do you want. Candyland is simple. All the boy wanted from you is the truth. Scene: Jackie at the hairdesser (Jacques) and Alisha comes in. Do you have a minute? Yes I do.

End of "Blue Ribbon Panel."

"60 Minutes" on March 25, 2012

The first previewed story was on Sergio Marchionne of Fiat / Chrysler (Steve Kroft). The most dramatic car recovery was that of Chrysler. $180 million profit last year. Sergio is 59 years old, and looks, in a black sweater, more like a film director than an auto exec. Some snippets of Sergio quotes: There is nothing worse than to see fear in people's faces. There is nothing worse than being a victim of something that is outside one's control. For you to be the only guy at the bar, there's got to be a reason. If it were that easy, everyone would be doing it. The 6 billion loan from the US was to upgrade operations. From a product standpoint, Chrysler was the other half of the coin (to Fiat). Preview of the Dodge Dart sort of a version of Alfa Romeo Julietta. Joke: enough like an Italian car but avoids pitfalls of being an Italian car. 200 workers increased to 4500 workers. Jefferson plant that makes Grand Cherokee. Sergio found 26 leaders, who then would depart directly to him. Chairman's office: nothing happens there. Sergio is on the plant floor. Ralph Giles. 2 minute 8 million dollar ad with Clint Eastwood. Loans were paid back at 19.7% interest. "You turn these things [cameras] and I'll give you my own assessment" [of Republicans' comments about superbowl ad.] The combined Chrysler/Fiat company has 200,000 employees. Maserati and Ferrari are part of Fiat. In Europe, Sergio has to travel in bulletproof vehicles. Alfa Romeo will be re-introduced in US in 2014. Current question: how big a market share for Chrysler? Sergio on biggest challenge: slip on execution.

The second story by Lara Logan was on wrongfully convicted Michael Morton. [See also article by LBE in Volume 1 of the University of Chicago Roundtable: Comment: Frye after Daubert: The Role of Scientists in Admissibility Issues As Seen through Analysis of the DNA Profiling Cases.] High profile case in Texas. Morton in 1987 was convicted of murdering his wife. Nightmare began in Austin, Texas in 1986. All the questions were adversial, accusatory. In six weeks, Morton was arrested. Ken Anderson was prosecuting attorney. Anderson stated Morton was violent. Barry Sheck was involved on behalf of Morton. Police report had evidence which excluded Morton as suspect. Statement of Morton's son Eric. Videoclip of attorney Scheck. Anderson was named prosecutor of the year later that year. When Morton's son turned 18, the son changed his name. Bloody bandana implicated Mark Allan Norwood. There is probable cause to believe Anderson withheld exculpatory evidence. People break rules because they want to win. Anderson: in my heart, I know there was no misconduct. Eric Nichols is attorney for Anderson. Anderson is now the subject of a criminal inquiry. But prosecutors have absolute immunity for their legal work.
Mention of Ted Stevens case. Morton has received $2 million dollars under a Texas law which compensates the wrongfully convicted.

Novak won the Australian Open in 2012, and last year's Wimbledon. Early instructor, on Novak at 5 1/2, this is a golden child and will be a champion. At seven, Novak stated his goal was to be champion of the world. Bob Simon interviews Novak Djokovic and goes into the basement of Novak's grandfather's apartment in Belgrade, Serbia, where he and his family stayed for hours each night during the 1999 NATO bombing of the city. Family spent every night in the basement for two weeks. Novak: we didn't need to go to school and we played more tennis. Serbs want to re-invent themselves as trendy Europeans.
Serbs have a harder way to succeed. Dig deeper. At 2007 US Open, Novak impersonated top tennis stars. (Sharakova; Nadal) The Expendables-2.

Samuel Morse in the wrong century?

A post at online.wsj begins:

In 1853, the Supreme Court gave Samuel Morse some bad news. In O'Reilly v. Morse, the justices approved the inventor's patent for part of the telegraph that delivered the Morse code message "What Hath God Wrought?" but said he could not patent the idea of sending messages electronically across great distances. Ideas alone, the justices said, cannot be patented.

Morse's descendants should demand a rehearing. The standards for patents are so low that simply having an idea often justifies a patent. Morse wanted a patent to cover "electro-magnetism, however developed, for marking or printing intelligible characters, signs, letters, at any distance, being a new application of that power of which I claim to be the first inventor or discoverer."

This would have been a patent for all uses of the telegraph—and would also have included the Internet.

"CBS Sunday Morning" on March 25, 2012 does money; inventions from Bell Labs

Anthony Mason introduced the stories for March 25, 2012, the money issue. Lee Cowan did the cover story on going cashless.
Second, Tracy Smith on Columbus, Ohio, a test marketing center. Third, Rita Braver on Iman. Fourth, Martha Teichner on Ma Bell and Bell Labs inventions (America's true think tank). Mo Rocca n alpacas. Headlines: Former VP Cheney had a heart transplant. Rick Santorum won Louisiana primary. President Obama is in Asia. Compensation to Afghan victims. Pope Benedict in Mexico. London Sunday Telegraph on dieing of a broken heart. Rain across the country.

The cover story on "Making Change" was about the likely disappearance of paper money. Money is now digital. The old-fashioned greenback (physical money) may be a goner. Robert Reich gives quotes, like 95% of transactions in America have nothing to do with cash. Book: The End of Money (David Wolman). It costs the guv twice as much money to make a penny and a nickel as they are worth. Ap: Square Card Case, which is a digital wallet. The company Square. Every transaction has a foto right next to the name of the account holder. Pay Pal, digital wallets. Money is better in a digital world. Reich: icons or symbols of who we are. but cashless is inevitable. Fact at end: a virus can live up to three years on paper money.

Tracy Smith begins with The Black Label Burger of Wendy's introduced in Columbus, Ohio. Laurie Estrada of Wendy's. Denny Lynch. Fine tuning until we pull the trigger to go national. I'm happy to be a guinea pig; I liked it. Student population at Ohio State University. Alex Fisher. Funky culture and creativity in Columbus. If an idea can make it here. Jeni's ice cream: cayenne.
Piada: egg plant and calamari. Columbus is a sophisticated market. Giant Eagle Market District. Cactus, rattlesnake, elk, python. Brett Mayerl, VP of Pittsburgh based Giant Eagle. One can buy wine by the glass. People can choose what they want.

Erin Moriarty on determining costs of a shirt. Kathyrn and Jerry MacLane. $155 for a polo shirt. What can we do to make the best shirt possible. They looked to France for fabric. 6.10 to 6.50 for a yard of fabric for the shirt. 0.12 for buttons. Hand embroidered linen bags from Viet Nam, 2.90. Manufacturing in US is 75% than in China. KPMacLane. Wholesale cost is $65.
Retail price is $155. Now, 2% of clothing bought in US is actually made in US.

[ConocoPhillips ad with the buckyball ran here.]

Businesses making it in USA. Story by Elaine Quijano. Begins with video of Great Depression. Fiesta Dinnerware started in the Great Depression. Joseph Wells III. Homer Laughlin Pottery Company in Newell, West Virginia. People need to brighten up their table. Inexpensive plates in colors worthy of a Crayon box. Fiesta Ware has spawned a legion of collectors. An explosion of color. A video on a collector; Great Wall of China. Wells: a bit of mud. Provide jobs for the people who live here (in West Virginia (correction)).

Mitt Romney clip appeared, talking about how bad Europe is. State of European economy done by Allan Pizzi. The recession is biting here, but the Europeans have a way of getting by. Germany has 5.7% unemployment rate, lower than in US. Germany believes in low taxing, saving. James Walston, use of socialism, but really social democracy. Candidates in US: European socialism. Clip: hope most voters in US more intelligent than politicians. EU comprises 27 different countries. Rick Santorum: read up on Greece. Clip: health care should be guaranteed. In Italy: full patient care, even for tourists. A big part of feeling secure. Europeans saying I'm much happy to be here (Europe).

Baseball cards, House of Cards (Arman K.). Mike Gordon, baseball card show in New Jersey. Now in Parsippany, only a handful of middle aged men. Dave Jamieson, Mint Condition. Old cards had a chance to become rare. By 1991, three million people collecting cards. Allan "Mr. Mint" Rosen buys and sell cards for 34 years. in 1989, 8.7 million dollars in sales. Rosen at show in Chicago. Rosen quote: grandfather is dead; father has no money to spend; son is into digital (video games). Card business is now down 75%. Card makers flooded market. Topps. "Tuesday night in Parsippany". Kids dont' care.
In 2007, Honus Wagner sold for 2.7 million.

Jeff Glor on Goya. Largest Hispanic owned food company. Goal: to have Goya products in every store, in every home. Formed in 1936 by person Ortiz. Bought the name Goya from a sardine manufacturer for 1.00. (trademark). Food is a deep tradition for most immigrants. Tie to homeland and cuisine. Everybody has favorite bean. Pinto. Dominicans have different preference.
Javion crijollo. Goya delivers directly to store. Same pricing policy for all size stores. Bob and Peter kept Goya private. Hispanic population is 16% going to 30%

Suzie Orman, three pieces of information. #1 for students, twitter is being investigated by scholarship people. Be careful.
#2. Minors cannot inherit money. Beneficiary: living revocable trust. #3. If 45 or older, pay down mortgage if you are staying. If not staying, don't pay down.

Martha Teichner, Bell Labs soldiers on. Transistor invented in 1947. A 1960's helium laser, invented at Bell Labs. Lasers shrunk to size of grain of salt. Edward Evers historian of Alcatel Lucent. TelStar first satellite to transmit television images. Bell Labs
John Gertner did book on history of Bell Labs. Had smartest people in world. founded in 1925. 25,000 people. Bell System Pavilion at 1964 World's Fair. BellLabs patent from 1947 for cell phone. Didn't worry about competition. Richard Frankiel worked on developing cell phone. AT&T broken up in 1984. 4.7 billion in monopoly money ended. World has moved on to a different model for how things are being created. Theodore Sizer, current Bell Labs VP. The light radio. Bell Labs now has 1500 employees. Budget over 3 billion/year now. John Gertner: basic research and applied research can pay dividends. 17,000 patent; 1 patent a day for over 30 years. Curiously, now, in the Alcatel-Lucent era, averaging seven (7) patents a day, more than in the golden era.

Story on Iman by Rita Braver. Iman lit up runways in 70s and 80s. Did you bring your own foundation? In 1994, retired from modeling. Then, Iman Cosmetics for foundations for black and latinas. 25 to 30 million dollars per year. Her father was a diplomat. Muslim family. Peter Beard saw her in Nairobi, Kenya. Have you ever been photographed. Trying to pick her up. She needed tuition money. Then got modeling contract. BUT, Beard made up story about first meeting. In 1990, she fell for David Bowie. Hair dresser set them up. Iman has expanded to accessories and fabrics. At 56, Iman is proud of ageing gracefully.

Year of the Dragon. Trade with China. Babies born in year of dragon, destined for success. Average 16 million babies per year.
Now, extra dragon incentive. Story on Gerber, Huggies, Fisher-Price products being consumed in China. Lawrence Xie. Baby care stores in China pushing American products. New necessites mad in USA. In China, 31 births per minute.
[from China Daily:
Eleven of the 12 zodiac symbols in Chinese culture are animals - the dragon is the only one that is a mythical creature and is often related to emperors.
According to a report by the BBC, the birth rate in Hong Kong increased by 5 percent year-on-year during the last Year of the Dragon in 2000. Xinhua News Agency said China is expecting a 5 percent rise in the number of babies born in this auspicious year.
"We're busier than last year," said a saleswoman at Leyou (China) Chain Store Co Ltd, a major Chinese shop specializing in children's products in Beijing. "This year, there are many more pregnant ladies in our store."
"Maternity clothes and babywear have sold very well recently and I think demand for formula milk and diapers will rise too," said the saleswomen.
"The baby boom has brought a sales increase, although not a very sharp one, and the growth is likely to be sustained for the next few years," said Larry Kung, chief operating officer at Leyou. "We will increase the range of maternity products at our stores." Kung said sales growth will be driven by higher spending by Chinese parents. "They tend to pay more attention to the safety and quality of kids' products and they want to provide the best for their only child."
Established in 1999, Leyou offers maternity, baby and children's products at more than 200 stores in the country. "Our sales revenue has been growing at more than 60 percent annually in recent years thanks to our rapid store expansion. I believe there will be huge potential in this niche market in the future," said Kung.

Mo Rocca on alpaca farm. They look like muppets. Amber Isaac in Golden, Colorado. Alpacas Magazine, "From Broadway to the Barn." Her herd is about fifty. In 5 months, made more money from alpacas than in 2 years at regional theater. Sheep and alpacas have different talents. No lanolin in alpaca. Ultimate fiber animal. Quakertown, PA. Harley Hill Farm. Alpaca hay. Tax returns for alpaca owners. It is a business. Herd sire. "Max"

Paul Volcker interview. He is 6 foot 8. A giant shadow over Wall Street. Campaign to curb greed and speculation. Now 84 years old. In Jan 2010, Obama talked about "the Volcker rule." Goes into effect in July, prevents banks from making speculative bets. Distorted culture of traditional banking. He pushed interest rates above 20% when he was chairman. Farmers blockading Fed with tractors. Now, Volcker is being attacked by banks. Jamie Diamond: he doesn't understand capital markets. President Obama: target of Wall Street. Obama as great socialist (no connection with reality). Deaf,dumb, and blind. Back in the mix at age 84? Banks will be glad to see back of him. Volcker is a Princeton graduate.

[Bob Schieffer is off today. Nora O'Donald[

Next week: Zack Effron, Patty Smith.

Moment of nature, (no sponsor mentioned!) at the Routerville Sanctuary near Gainesville, Florida. Pot-bellied pigs. This is a recycle of a PREVIOUS moment of nature!!!

"The Edison of Chicken"

Robert C. Baker of Cornell is credited with inventing the chicken nugget.

Friday, March 23, 2012

Google's US 8,138,930: Advertising based on environmental conditions

The first claim of the US Patent "Advertising based on environmental conditions" states:

A computer-implemented method comprising:
receiving, from a computing device, a search request comprising (i) information about a first environmental condition of the computing device, and (ii) one or more search terms;
parsing the search request;
selecting, from the search request based on parsing, the information about the first environmental condition;
identifying an advertisement based on the first environmental condition and at least one of the one or more search terms; providing the advertisement to the computing device; receiving one or more of an audio signal, an image signal, or a video signal from a sensor of the computing device; and
determining a second environmental condition based on the one or more of the audio signal, the image signal, or the video signal.

The "summary" gives one an idea of the objective:

This document describes a system for allowing advertisers to target on-line advertisements based on environmental factors of end users. When determining what ads to serve to end users, the environmental factors can be used independently or in combination with matching of keywords associated with the advertisements and keywords in user search queries. A web browser or search engine located at the user's site may obtain information on the environment (e.g., temperature, humidity, light, sound, air composition) from sensors. Advertisers may specify that the ads are shown to users whose environmental conditions meet certain criteria. For example, advertisements for air conditioners can be sent to users located at regions having temperatures above a first threshold, while advertisements for winter overcoats can be sent to users located at regions having temperatures below a second threshold.

In general, in one aspect, information about an environmental condition of a remote user who is accessing a network is received at a server, an advertisement based on the environmental condition is identified at the server, the information about the environmental condition being derived from an output of a sensor located at the remote user, and the advertisement is provided to the user through the network.

As to prior art, the patent cites an article by Barnaby J. Feder [of the New York Times, J.D., the University of California at Berkeley School of Law, 1977 ], "Billboards That Know You by Name" [online], New York Times, Jan. 29, 2007 .

The patent also notes: This application is related to U.S. patent application Ser. No. 12/017,597, titled "ADVERTISING BASED ON ENVIRONMENTAL CONDITIONS"

Facebook buys IBM patents

Facebook had 56 issued patents, but has now bought 750 more from IBM, according to a story in the Telegraph.

Buying patent rights does not provide a legal defense against claims of patent infringement by others, although it might create a situation in which business deals are made.

Horse-and-buggy thinking at the US Supreme Court?

A post by Kevin Noonan on Prometheus includes the text:

Despite sentiments (dicta, to be accurate) from Bilski v. Kappos regarding the dangers of imposing horse-and-buggy thinking about technology to the 21st Century, the Court seems happy to do so.

Apart from the consequences of the resounding 9-0 vote against the Prometheus claims, Noonan did observe:

In an interesting departure from its recent denigration of the efforts of the legal academy, the Court also signaled its willingness to credit their theories of what drives and sustains innovation against the arguments, based on actual experience, from groups and individuals who have created companies and been involved in innovation in the biotechnology industry.

Work by Lemley first appears in the Prometheus decision in the following:

And so there is a danger that the grant of patents that tie up their use will inhibit future innovation premised upon them, a danger that becomes acute when a patented process amounts to no more than an instruction to “apply the natural law,” or otherwise forecloses more future invention than the underlying discovery could reasonably justify. See generally Lemley, Risch, Sichelman, & Wagner, Life After Bilski, 63 Stan. L. Rev. 1315 (2011) (hereinafter Lemley) (arguing that §101 reflects this kind of concern)

and then

Section 112 requires only a “written description of the invention . . . in such full, clear, concise, and exact terms as to enable any person skilled in the art . . . to make and use the same.” It does not focus on the possibility that a law of nature (or its equivalent) that meets these conditions will nonetheless create the kind of risk that under­ lies the law of nature exception, namely the risk that a patent on the law would significantly impede future innovation. See Lemley 1329–1332 (outlining differences between §§101 and 112); Eisenberg, supra, at ___ (manuscript, at 92–96) (similar). Compare Risch, Everything is Patentable, 75 Tenn. L. Rev. 591 (2008) (defending a minimalist approach to §101) with Lemley (reflecting Risch’s change of mind).

These considerations lead us to decline the Government’s invitation to substitute §§102, 103, and 112 inquires for the better established inquiry under §101.

Yes, it was interesting that a not-yet-published manuscript was cited by the Supreme Court:

See also Eisenberg, Wisdom of the Ages or Dead-Hand Control? Patentable Subject Matter for Diagnostic Methods After In re Bilski, 3 Case W. Res. J. L. Tech. & Internet 1, ___ (forthcoming, 2012) (manuscript, at 85–86, online at files/eisenberg.wisdomordeadhand.patentlyo.pdf (as vis­ ited Mar. 16, 2012, and available in Clerk of Court’s case file))

When IPBiz tried to access files/eisenberg.wisdomordeadhand.patentlyo.pdf, obtained simply a white screen. If somebody does better, please advise.

***Separately, the oral argument for Prometheus

John Benemann: the Dr. No of algal biofuels?

IPBiz has previously discussed claims of high production of biofuel [e.g.,
MIT Tech Rev still pushing Joule, who claims 15,000 gallons per (acre-year)
] Biofuels Digest, in the context of discussing product "yield per acre," mentioned a quote by John Benemann:

Of course, we have learned to be careful about yield claims. As Algae’s Dr. No, John Benemann writes:

“Unfortunately, [they] are just following the inverse law of knowledge: the less you know the better it looks, and vice-versa. Now that they understand a little about lignocellulosic ethanol, gosh, it does not looks so good anymore, so let us drop this flame and go on a date with pond scum, that looks really good as we don’t know anything. One of these days it will dawn on these worthies that neither algae nor ethanol nor whatever will not be THE solution to the oil or climate change or whatever problem, and then we can start doing something rational.”

As to the idea of "dropping the flame," remember what the MIT Technology Review said of Jan-Hendrik Schon: But it won’t be a surprise if Schön helps transform microelectronics. Schon's work was, of course, fraudulent, and yes, it would be a surprise if it transformed anything. But, MIT Tech Rev isn't talking about that.

Thursday, March 22, 2012

Jay Leno does US 20120062371 on March 22, 2012

A patent application made the Tonight show on March 22, 2012, with Jay Leno lampooning Nokia's US 20120062371 , titled HAPTIC COMMUNICATION , with abstract In accordance with an example embodiment of the present invention, an apparatus comprises: a material attachable to skin, the material capable of detecting a magnetic field and transferring a perceivable stimulus to the skin, wherein the perceivable stimulus relates to the magnetic field.

Jay hit on the idea of a "tatoo" alerting the presence of an incoming phone call [ a magnetic tattoo would transfer a tingling feeling into phone users' arms when the phone rings.] and the name Mike Tyson came up.

O'Malley's dissent in Byrne in the legal malpractice area

In Byrne v. Wood, Herron , on the subject on legal malpractice cases in the patent area [PETITION FOR REHEARING EN BANC denied ], Judge O’MALLEY authored a lengthy dissent, arguing against federal jurisdiction.

From the dissent, giving background on the case:

The gist of Byrne’s malpractice case is that defendants negligently failed to secure broader patent protection for his invention from the United States Patent and Trademark Office (“PTO”), and, as a result, Byrne was unsuccessful in a subsequent patent infringement lawsuit against Black & Decker Corporation and related entities (collectively, “Black & Decker”). See Byrne v. Black & Decker Corp., 2007 WL 1492101 (Fed. Cir. May 21, 2007). All agree that Byrne’s claim is a purely state law claim for which federal law creates no cause of action.


On appeal to this court, a majority of the panel agreed that our current case law extended § 1338 jurisdiction over this action but noted that, because it is inconsistent with Supreme Court precedent, that case law should be revisited. See Byrne v. Wood, Herron & Evans, LLP, 2011 WL 5600640, at *5 (Fed. Cir. Nov. 18, 2011) (“Although we must adhere to our precedent, we believe this court should re-evaluate the question of whether jurisdiction exists to entertain a state law malpractice claim involving the validity of a hypothetical patent . . . .” (emphasis in original)). The panel then reluctantly resolved the merits of the appeal, and this petition for rehearing en banc followed.

Words of Justice Oliver Wendell Holmes, Jr. show up in footnote 2 of the dissent. Footnote 3 begins: See also IMT, Inc. v. Haynes & Boone, L.L.P., 1999 WL 58838 (N.D. Tex. Feb. 1, 1999) (remanding a legal malpractice claim to state court where the plaintiff alleged that its attorney’s negligence in filing a continuation-in-part patent application instead of a new patent application raised questions about the patent’s validity and enforceability);

Of the year 2007:

In 2007, the Federal Circuit weighed in on this issue in what one commentator has described as a “substantial shift in the view of whether federal or state courts have jurisdiction over patent-related legal malpractice claims.” Robert W. Hesselbacher, Jr., Which Court Decides? Legal Malpractice Claims Arising from Patents, 51 No. 5 DRIFTD 32 (May 2009). In that year, a single panel of this court issued two decisions on the same day that, according to the panel, resolved an “issue of first impres- sion” – i.e., whether § 1338 jurisdiction exists where a legal malpractice claim requires resolution of an underly- ing question of patent law. See Air Measurement Techs., Inc. v. Akin Gump Strauss Hauer & Feld, L.L.P., 504 F.3d 1262 (Fed. Cir. 2007) (“AMT”); Immunocept, LLC v. Fulbright & Jaworski, LLP, 504 F.3d 1281 (Fed. Cir. 2007).

"Awake" does suppression of unfavorable research reports

One of the plotlines in the "Kate Is Enough" episode of Awake on March 22, 2012 involved a woman who was murdered because she wanted to disclose unfavorable research results of a small company, which disclosure would have damaged investment in said company. Two college friends had formed the company, one an inventor, one more business-oriented. The business guy masterminded the murder.

In the patent business, unfavorable results contrary to arguments made to the Patent Office must be disclosed to the Patent Office.

André Cassagnes: inventor of Etch a Sketch

Wiki.answers relates an interesting story:

André Cassagnes, an electrician at Lincrusta Company, conceived of the idea of a mechanical drawing toy using aluminum powder in a sealed case.


He was directed to Paul Chaze, the owner of a plastic injection molding company named MAI.

Chaze agreed to fund development of the device as well as helping Cassagnes to officially register his patent. Chaze instructed his accountant, Arthur Granjean, to prepare, file and pay for the patent on the "tracing device". The patent application was submitted 28 May 1959, without Cassagnes' knowledge and under Granjean's name. MAI produced some prototypes and then licensed the design to a French company, Joustra, which produced it under the name "Telecran" (the name that Cassagnes used for the toy) and paid Cassagnes a royalty.

Chaze and Winzeler [of Ohio Art] met with Cassagnes. Cassagnes agreed, reluctantly, to relinquish all rights to the invention, and all future royalties (except in France), for the sum of $10,000.

Over the course of the next 18 years, Ohio Art paid over $1 million in royalties to Chaze.

Wednesday, March 21, 2012

Pouring molten pyrite?

The "Alice in Wonderland" episode of CSI on March 21, 2012 involved an incident where a victim died after having gold poured down his throat. Ted Danson did an XRF and determined that it was not gold, but rather pyrite.

But pyrite doesn't exactly melt, especially when sulfur activity is not fixed.

Ask Jeeves notes: Pyrite has no melting point but exhibits a peritectic decomposition point at 1016 Kelvin where it decomposes to FeS and sulfur.

Tuesday, March 20, 2012

NCIS "The Tell"

As to IP issues in "The Tell" on March 20, there was mention of a non-disclosure agreement.

As to the culprit, Carl Dalton, the in-house counsel, did it. He had two blackmarks: a lawyer and an in-law.

Supreme Court rejects patent by Prometheus Laboratories

The opinion written by Justice Stephen Breyer, for a unanimous court, said the Prometheus blood test used "unpatentable" natural laws.

From the decision:

Prometheus’ patents set forth laws of nature—namely, relationships between concentrations of certain metabo­ lites in the blood and the likelihood that a dosage of a thiopurine drug will prove ineffective or cause harm. Claim 1, for example, states that if the levels of 6–TG in the blood (of a patient who has taken a dose of a thiopu­ rine drug) exceed about 400 pmol per 8x108 red blood cells, then the administered dose is likely to produce toxic side effects. While it takes a human action (the administration of a thiopurine drug) to trigger a manifestation of this relation in a particular person, the relation itself exists in principle apart from any human action. The relation is a consequence of the ways in which thiopurine compounds are metabolized by the body—entirely natural processes. And so a patent that simply describes that relation sets forth a natural law.

The question before us is whether the claims do signifi­ cantly more than simply describe these natural relations. To put the matter more precisely, do the patent claims add enough to their statements of the correlations to allow the processes they describe to qualify as patent-eligible pro­ cesses that apply natural laws? We believe that the an­ swer to this question is no.

The name "Einstein" appears in the decision:

That is to say, these clauses tell the relevant audience about the laws while trusting them to use those laws appropriately where they are relevant to their decisionmaking (rather like Einstein telling linear accelerator operators about his basic law and then trusting them to use it where relevant).

The claims were "routine":

To put the matter more succinctly, the claims inform a relevant audience about certain laws of nature; any additional steps consist of well­ understood, routine, conventional activity already engaged in by the scientific community; and those steps, when viewed as a whole, add nothing significant beyond the sum of their parts taken separately. For these reasons we believe that the steps are not sufficient to transform un­ patentable natural correlations into patentable applica­ tions of those regularities.

As to previous decisions:

The claim before us presents a case for patentability that is weaker than the (patent-eligible) claim in Diehr and no stronger than the (unpatentable) claim in Flook.

As to the CAFC:

We have considered several further arguments in sup­ port of Prometheus’ position. But they do not lead us to adopt a different conclusion. First, the Federal Circuit, in upholding the patent eligibility of the claims before us, relied on this Court’s determination that “[t]ransformation and reduction of an article ‘to a different state or thing’ is the clue to the patentability of a process claim that does not include particular machines.” Benson, supra, at 70–71 (emphasis added); see also Bilski, supra, at ___ (slip op., at 6–7); Diehr, 450 U. S., at 184; Flook, supra, at 588, n. 9; Cochrane v. Deener, 94 U. S. 780, 788 (1877). It reasoned that the claimed processes are therefore patent eligible, since they involve transforming the human body by ad­ ministering a thiopurine drug and transforming the blood by analyzing it to determine metabolite levels. 628 F. 3d, at 1356–1357.

Lemley is mentioned [ based on whether or not they will interfere significantly with innovation in other fields now or in the future. Brief for Respondent 42–46; see also Lemley 1342–1344 (making similar argument). ] But the Supreme Court said Courts and judges are not institutionally well suited to making the kinds of judgments needed to distinguish among differ- ent laws of nature. And so the cases have endorsed a bright-line prohibition against patenting laws of nature, mathematical formulas and the like, which serves as a somewhat more easily administered proxy for the underlying “building-block” concern.

Similarly, the government's position is rejected: This approach, however, would make the “law of nature” exception to §101 patentability a dead letter. The approach is therefore not consistent with prior law. The relevant cases rest their holdings upon section 101, not later sections. Bilski, 561 U. S. ___; Diehr, supra; Flook, supra; Benson, 409 U. S. 63. See also H. R. Rep. No. 1923, 82d Cong., 2d Sess., 6 (1952) (“A person may have ‘invent­ ed’ a machine or a manufacture, which may include any­ thing under the sun that is made by man, but it is not necessarily patentable under section 101 unless the condi­ tions of the title are fulfilled” (emphasis added)).

Terminated for wearing orange?

The Sun-Sentinel reported on March 16 that the law offices of Elizabeth R. Wellborn, P.A. fired 14 employees for wearing orange shirts.

According to its website, Elizabeth R. Wellborn, PA (Deerfield Beach, FL) focuses on the representation of mortgage lenders, servicers and private investors.

See ABC News story Florida Law Firm Fires Workers For Wearing Orange

JDJournal noted: Eric K. Gabrielle, a labor and employment lawyer, Florida law states that without a specific contract to the contrary, an employer can fire a worker “for a good reason, for a bad reason or even the wrong reason, as long as it’s not an unlawful reason.”

Monday, March 19, 2012

John Cena survives three car accident in Philadelphia

Wrestler John Cena was in an auto accident on the way to an interview with KYW. A Mack truck hit a Honda Civic which in turn ran into Cena's vehicle. Cena: I usually get into car wrecks in the ring. Cena was scheduled to fight Mark Henry on March 19.

The accident happened on the Schuylkill Expressway around 11:30 a.m. on March 19, 2012.

Cena will face Dwayne "The Rock" Johnson on April 1.

Hawaii-Five-O on 19 March 2012 (Kalele)

McGarrett's sister (Mary) shows up with a job as a flight attendant, and then gets arrested for diamond smuggling. It's a frame, but a complicated one. The friend of McGarrett's sister (Angela) is in on the frame.

August March (Ed Asner) is the fence who knows everything. March gives them a phone number. March mentions a cop named McGarrett who transported March to jail 30 years ago [2012 -30 = 1982]. Asner appeared in the original Hawaii Five-O series, as August March, in 1975 in the episode titled Wooden Model of a Rat . The earlier episode revolved around McGarrett's collection of netsuke.

The diamonds come from the Republic of Liberia. Asner mentions the words "allotrope of carbon." Asner also mentions the words "blood diamond." The Liberian connection leads to a search of Liberian nationals on the island, and McGarrett's sister recognizes one of the Liberian nationals as the one who set her up.

McGarrett gets a birthday cake (red velvet, shaped like a hand grenade) with a little surprise.

At the end of the episode, August March does a deal with Angela for the diamonds, and then August kills Angela.

Text: In loving memory of Rose Freeman appears after the episode video ends. Rose Freeman was the wife of the late Leonard who created Hawaii Five-O.

"This American Life" and Foxconn/Apple noted: On Friday [March 16], "This American Life" retracted an entire storyline told by Daisey that aired in early January after Daisey's translator said he made up significant details of the tale.

Also within the article: Daisey described meeting workers whose hands were shaking after they were poisoned with the neurotoxin hexane and meeting several children right at the gates of the factory who were as young as 12.

IPBiz notes that hexane is not a neurotoxin.

The fiduciary shield doctrine and patent law

Back in 2005, IPBiz posted about the Solaia patent case, which involved a non-practicing entity [NPE, here Solaia] suing others for patent infringement.

Underneath the patent case was an interesting state court case, between the inventor (Michael Femal) and an attorney (James O’Shaughnessy) for one of the defendants (Honeywell).

The company which employed Femal at the time of the patent was Schneider. Solaia later acquired the patent rights. Schneider contracted with Solaia to let Femal help Solaia enforce the patent, for which he was to get 2% of Solaia’s earnings. Schneider later investigated the deal more thoroughly (because of statements by O’Shaughnessy) and fired Femal for misuse of company assets.

Femal, in turn, sued O’Shaughnessy in Illinois, because the comments by O’Shaughnessy in Illinois had initiated the investigation of Femal's deal.

O’Shaughnessy, however, lived in Wisconsin, and moved to dismiss on the basis of lack of personal jurisdiction. If O’Shaughnessy was ordered by his employer into Illinois, he would be protected for work done for the employer under the fiduciary shield doctrine. There was an issue of whether or not O’Shaughnessy had a personal interest in the matter.

Sunday, March 18, 2012

Mercedes tv commercial features patents

Flying paper patents are featured in a commercial by Mercedes Benz.

"At risk" episode of CSI: Miami

The initial scene involves a dog attacking first one man (tennis instructor Hopper), then another Ross (who was attempting rescue), in a locker room at a tennis academy. A tennis racket had been used to bar the handles of the doors. Custodian Ross, the second man, dies.

The dog is a fighting dog. An RFID scan is made, and the dog identified. The dog is Brutus. Mr. Torrez is the registered owner, who rescues fighting dog and re-trains them. But Brutus was stolen before being re-trained.

Tom looks at the racket. Graphite frame; hybrid strings. This racket was custom made. Unique tension setting. 52.6 X 54.3 tension. The tension of the racket of Jack Brody. Brody was earlier instructed by Hopper.

A disgruntled client (Janet Wells) had confronted Harper about the $40,000 tuition paid for her son, who still could not play tennis.

There is a search of the records. Austin North comes up. Austin is from a prior episode, and is now under the care of a foster mom.

Then, a page of a deposition reveals an "inappropriate touching"/sexual issue for Coach Hopper from 2002. Coach Hopper declines to reveal the name of the party, based on a nondisclosure agreement. There is a possibility that the charges of "inappropriate touching" were fabricated.

Austin talks about Coach Jack Brody. "You should never trust an adult who asks you to keep a secret." "Sometimes money trumps morality."

A twist in the case. The janitor's clothes were covered with pheromones. The story established that Ross the janitor had been aware of child molestation and did nothing to help. Brody and Torrez (actually Diaz) were both involved in the dog attack. Diaz had been molested by Hopper at the tennis academy, told Brody, who did not believe him. Diaz had motive to want both Hopper and Ross dead.

Victim Andrew Kingman signed a non-disclosure agreement. The police assert that anything that happened after the nondisclosure agreement is not covered by the NDA. The final scene shows Hopper being led off in handcuffs from the tennis academy, and then shot.

"The Good Wife" on March 18, 2012

The beginning scene of "The Good Wife" in "The Gloves Come Off" involves a partner meeting. Diane mentions someone leaked info of Will to the disciplinary committee. Diane notes: if you have an issue with the way things are run, you talk to me. If you want to backstab someone, do it right here. Diane brings up Alisha's raise and recommends 10%. Will asks Diane who leaked the info about Will to the disciplinary committee. Alisha is doing a snowmobile case, wherein the snowmobile steering mechanism locked. A bench-supervised negotiation is ordered. The snowmobile client tells Alisha: life is short, and I'd do anything to go backward. The snowmobile maker invokes chronic encephalopothy (previous hockey player; 86 games (de Vernais)) and thus modified comparative negligence as a defense. The new strategy: bring the hockey league in as a defendant. Louis Canning (Michael J. Fox) appears for the hockey league.

Julius Kane and Alisha Florrick are handling the hockey case. Alisha interviews Cary about the issue of criminal charges in a hockey fight involving the former hockey player. Mr. Raker, a left winger, testifies. Christian Lund was hit by the former player (de Vernais). On Feb. 15, Rader decked de Vernais, in retaliation.

Canning asked Alisha if she was happy at Lockhart Gardner. Canning asks to make Alisha an offer and Alisha says no.

Frank Michael Thomas (J. Fred Thompson) meets with the neuro specialist after the neuro's testimony. Fred says "Acting is all about the voice." Fred is suing the hockey league. My answer (to joining) is "not a chance in hell." Fred to Alisha and Will: you are going to lose bad.

In the middle of the show, the "Highland Park Liberal Plan" and national politics get discussed.

Canning asks de Vernais if he faked his baseline text and the answer was yes. After the hearing, Canning catches a ride with Alisha, and they discuss details of an offer. Then Alisha changes her mind. Canning: this is how America works.

At the hearing, copyright issues arise over videoclips from hockey games. The hockey league does issue cease-and-desist orders to people posting clips. BUT How many cease-and-desist orders to a hockey fight website, wherein people vote on who will win fights? answer: none. At the end of hearing, Thomas (J. Fred Thompson) has a change of heart and offers to help Lockhart Gardner.

Why are there no real fights during the (hockey) championship series? Then Alisha is queried about her relationship with Will.

Frank (Fred): don't look at this as a benevolent gesture. When you use this against Canning, try to draw blood.

Dr. Wed got a rejection email from the league on treating injuries. Canning gives Alisha a brown envelope with an offer.

Diane screws up on the phone between Curt and Jack.

Eli tells Will he did not leak, but David Lee did. Will tells Eli David Lee said Eli leaked.

Alisha informs Diane that Canning has given her an offer. Diane asks till the end of the week to make a decision on a counter-offer and concludes "End of the week Alisha, or you clean out your desk right now."

At this point, the snow mobile company agrees to settle for the full five million. Diane invokes "managing partner prerogative" and gives Alisha the raise. Will tells Diane: you stuck your neck out for a third year associate. Diane: with your position, you've left us exposed. Canning to Alisha: you used me. (but) I needed to smoke Frank Thomas out, and now [thanks to you] I know.

Alisha to Kalinda: I want to try to make it work. I can't be the only one trying to be honest. (...) Good, ok, I'll see you tomorrow.

"60 Minutes" on March 18, 2012

First story: private enterprise into space. Second story: Face-blindness (Prosopagnosia).

Scott Pelley: the US, Russian, China, and Elon Musk are the only four entities who have launched successfully into outer space.
The White House decided private industry should take the lead in launchings. Elon Musk is the founder and CEO of SpaceX. Musk is a native of South Africa and the co-founder of PayPal. Musk is the founder of Tesla. Musk made three trips to Russia to try to buy a re-furbished ICBM (Kniepper). When something is important enough, you do it even when the odds are not in your favor. SpaceX is in a factory near Los Angeles where 747s used to be built. SpaceX builds most of its parts in house. 1400 employees. Final assembly takes place at Cape Canaveral. Self-taught in the sense Musk does not have an aerospace degree (does have a physics degree). Go back in time to be with Howard Hughes. Building space ships is the chance of a lifetime. Falcon-1, first three test flights, failed to reach orbit. Fourth flight worked. Falcon-9 and cargo capsule Dragon. Critics: Musk doesn't know what he doesn't know. Neil Armstrong and Gene Cernan have testified against the Obama commercial space plan. Next flight: cargo to space station. Plan: deliver cargo to space station in 2012 Next: contract for manned space flight.

Lesley Stahl on face blindness, which condition means one cannot recognize faces. Jacob Hodes is one who suffers from faceblindness. John Travolta, Jimmy Carter. Michael Jordan. Brad Dushanes at Dartmouth College studies faceblindness. A test with faces upside down. Lesley could not identify any of six. Denzel, John Travolta, Jennifer Anniston, Stahl's daughter were among the six.

Jo Livingston, Ben Dabrowsky are others with face blindness.

Chuck Close is face blind. He paints faces. He works from a photograph with a grid on it. Jay Leno is given as a test. Identified. Identified Tiger Woods. But failed at Tom Cruise. Deduced Martin Luther King with moustache.

Jo, a victim, could not identify her own daughter.

Dr. Oliver Sax, author of the book The Mind's Eye. Mary Ann Sieghart. 1 in 50 may be face blind.

The flip side: super recognizers.

Colleen Castaldo suffered a seizure, due to brain tumor. Operation to remove tumor. After operation, problem in recognizing faces. Clooney, Obama were not recognized by her.

MIT Nancy Kanwisher. neuroscientist. Did MRI scanning. Fusiform face area.

Super recognizers like Jessica Jarrod. Pictures at an early age can be recognized. Dick Cheney, Richard Gere and Nancy Pelosi. George Clooney. Recognized Mike Wallace as a six year old.

Harvard team is studying the superrecognizers.

Tim McDonough, a child who is face blind.

The need to look for cues. Be extremely charming.

CBS Sunday Morning on March 18, 2012

Charles Osgood introduced the stories for March 18, 2012. We're getting an early start on spring. The cover story is by Susan Spencer on medications to treat depression. The depressing news about depression. Richard Roth on the Chieftans, on Irish music. Third, Mo Rocca on Eric McCormack. Fourth, Rita Braver on the art of video games. Fifth, Erin Moriarty; David Martin.
Headlines: Mitt Romney campaigning. Arab spring in Syria. American teacher shot dead in Yemen. Former Nazi (John Demjanjuk) died. Video of northern lights from NASA. 60's in northeast.

"One in ten" by Susan Spencer, referring to CDC reporting 1 in 10 Americans are depressed. Jerome Wakefield a professor at NYU. Something goes wrong: generating sadness. Richard Friedman at Weil-Cornell Medical College. 27 million Americans. Wakefield says there is a spike in diagnosing sadness, not a spike in sadness. Cymbalta commercials. Re-shapes our cultural view. No longer acceptable to be sad. More people (30 million) take antidepressants than go to moviews. DeReuvis of Penn State published in JAMA that antidepressants no better than placebos. Lexapro mentioned. Diasta/Prozac. 65% of prescriptions for antidepressants are written by primary care physicians. The mechanism of "sadness" is not understood.

Almanac. March 18, 1852: Wells Fargo formed as banking and express company. Tales of Well Fargo 1957-1962, Dale Robertson. Song in "The Music Man." In 1905, banking biz separated from express biz. Now, Wells Fargo is fourth largest bank by assets.

Name of the Game. A celebration of videogames in the Smithsonian American Art Museum. Betys Bloom, director, The Art of Videogames. Moving paintings. Japanese woodcuts. M.C. Escher. Chris Melosinus was curator. Pitfall, Combat, Space Invaders, Pac Man from 1981, appealed to women. Super Mario in 1985. 2010 and Heavy Rain.

Richard Roth on The Chieftans, for the record. Paddy Maloney, 50 years of the Chieftans. Back in 1962, traditional Irish music to entertain an audience. One critic: they didn't sing and they had no sex appeal. Another: looked like six cadavers on stage. Early collaborators: The Rolling Stones. Keith Richards. Ricky Skaggs. Pavorotti. Sting. Platforms throughout the world. Paddy Maloney almost 74. Bring Irish music to the rest of the world. Anniversay album. Voice of Ages including Carolina Chocolate Drops. Pistol Annies. Preserving the past while engaging the future. Tin whistle. Katie Coleman on the International Space Station.

Two different criminal cases this week. David Martin and Erin Moriarty give Sunday Journals. David Martin on Bales/Afghanistan.
A watershed moment. General John Allen: too early now to predict what it means. Increase public pressure to be "done" with this war. Reduce US forces to 68,000 by next December. John Henry Brown is Bales' defense attorney: issue of re-deployment. Erin Moriarty on hate crimes. James Bird in 1998. Matthew Shepard. 10,000 hate crimes documented every year. Dharun Ravi convicted of hate crime in NJ; the weapon was a camera. Sept. 19, 2010. people are having a viewing party. Mark Foyer of Seton Hall: verdict was overreaction. Movie: Boys don't cry. Dharun faces 10 years in prison.

Greg Smith on Goldman Sachs. Clients called Muppets. Infrequent fliers: Clampetts. Platinum trash. Foamers. Bobbleheads.
Piker, Mark, Pawn. Deadbeats: pays bill every month. Term: inmate.

Update on Foxconn story on Sunday Morning. This American Life said Daisey exaggerated Foxconn situation. CBS confirmed all aspects of Sunday Morning story except working 12 year old. Foxconn and Apple declined to respond on this item.

Patti Smith plugged. Sunday Morning ringtone as Apple app.

The Crystal Cathedral. "A House Divided." Story by Brian Rooney. Robert Schuler. A new Christian positivity. If you can dream it, you can do. The Cathedral in Garden Grove, CA. At its peak, 20 million people. Celia Schuler Coleman, starting over in a move theater. Income dropped by a third. Bankruptcy. Designed by Philip Johnson. Devolved into lawsuits. The future: get a message and put it on the web. Comeback story. A setback is a setup for a comeback.

Eric McCormack won an Emmy for work on "Will and Grace." Profile by Mo Rocca. Gore Vidal's "The Best Man" on Broadway. Angela Landsbury and John Laroquette and James Earl Jones. McCormack saw Jones in Othello, with Christopher Plummer. Food in Les Pescadeux [90 Thompson Street]. Studied at Ryerson University, where his father went. Father acted in Antigone. Show: Perception.

Faith Staley on Girl Scouts. Buying or boycotting? Mistletoe Troop baked first cookies. Download an app that will locate a cookie sale near you. Bob Morris refused to sign a resolution on celebration of 100th anniversary. Bobby Montoya, transgender. Cookie boycott.

4th warmest winter on record. 3rd least snowy. 6000 high temperature records. 27 states recorded among warmest. 324th consecutive month of warm records. Pulse: 35% say spring is favorite season.

Steve Hartman in Pocatello, Idaho. "Museum of Clean." Don Aslett. Varsity House Cleaning. Cleanliness carries over into all aspects of life. 6 million dollars invested in the museum. [Last line: Now if we can just get a truth museum.]

Next week on Sunday Morning. The money issue 2012.

Moment of nature. Handihaler. Washington DC cherry blossoms. Jefferson Memorial in background.

Saturday, March 17, 2012

The prison on Central Park

An 2002 article in The Morning News titled Prison on the Park described the Lincoln Correctional Facility, located on the north side of New York's Central Park, and ended with the text:

The five percent who don’t make parole, Williams said, usually come from the prisoners who comprise the rest of Lincoln’s population: white-collar criminals. It’s more than a little ironic that quite a few of them have probably spent time in some of Central Park’s tonier and better-known addresses. In any case, they’ve gotten to know Lincoln pretty well.

Flash forward ten years, to 2012, and one learns that L. Dennis Kozlowski (of Tyco fame) joins Alan D. Hevesi, the former New York state comptroller, at the Lincoln Correctional Facility.

Part of the Tyco legacy was the ADT deal. From There was a problem though with the deal: ADT was based in Bermuda. Tyco could not bring ADT back to the America without paying taxes that were going to cost more than the deal. So we did a reverse merger, in which ADT would acquire Tyco. And the management of Tyco would become the management of ADT Within the article, Kozlowski notes: Guys we hired out of business schools don’t have that human element experience. Plus, their idea of a career path is to spend 15 minutes in a job and then get promoted to division president. And, of the future of the alarm industry: A completely wireless system that can be designed on the Internet without central station monitoring and checked over a cell phone is the future of the industry. The industry is going to be technically driven over the next number of years. (Patents anyone?)

The impact of free licensing on innovation?

According to Gilad Sorek in an article to be published in Economics Letters Firms that make a previously patented innovation accessible to competitors increase overall likelihood of improving upon that breakthrough while also raising profits for the original innovator and market welfare [from the University of Buffalo]

Examples include Adobe putting both Postscript and PDF formats in the public domain, but one suspects few examples from the pharma domain.

Rejections based upon "mere design choice"

The 717MadisonPlace blog notes the words of Judge Linn on "mere design choice" -->

I can remember way back when when I was an examiner, some of the toughest problems we faced were when we went out, we did comprehensive searches, and we found references that covered every element of the claim except one little thing. And, it was common practice back then, and I think you’re justifying the practice, that the examiners very frequently would say ‘Well the claim is rejected A in view of B and C — with respect to the last element, that’s a matter of mere design choice of no patentable consequence.’ It was a nice phrase. It had a nice ring to it. But I often wondered whether that was legitimate or not.

Friday, March 16, 2012

"They're lawyers, after all. They're in the business of hedging. "

An article titled PATENT LAWYERS: Yahoo's Case Against Facebook Is Weak has, as its first take-away message:

Yahoo will be attacking Facebook on specific "claims" in each patent.


it's unlikely that Yahoo will be able to pick up more than a few "wins."

The problem with this thinking is that Facebook will have problems if Yahoo gets any "wins." Infringe a single claim, and there can be difficulties.

The text The wording on many of the patents is very vague. sounds as if taken right out of a Bessen handbook.

Elsewhere, a blog post titled Yahoo, Facebook and the wisdom of Shakespeare ends with: To paraphrase Shakespeare, “the first thing we do to save Silicon Valley, let’s get rid of all the lawyers.”

IPBiz (the blog) not for sale

IPBIz got a shock on seeing the following on Patent Baristas:

IPBiz For Sale

Speaking of IPBiz, their website ( is reportedly up for sale. The website is run by Lawrence Ebert, a patent lawyer located in central New Jersey. The minimum offer is listed as $250.00 with a Buy It Now option for $35,000.00. See more at the web site

IPBiz.blogspot, the blog, is not for sale, but if you look carefully at past posts, you can find a picture of Stephen Jenei..., which must be worth something (at least more than $250.00). And the pic of Lex Luther is priceless.

CAFC reverses TTAB; Bridgestone prevails on opposition

The issue: Bridgestone Americas Tire Operations, LLC and Bridge- stone Corporation (together “Bridgestone”) appeal the decision of the Trademark Trial and Appeal Board (“TTAB” or “Board”) dismissing Bridgestone’s opposition to registra- tion of the mark MILANZA for use with tires. The Board concluded that there is no likelihood of confusion as to source, as between Bridgestone’s marks POTENZA and TURANZA, on one hand, and Federal Corporation’s mark MILANZA, all for use with tires.1 We reverse the Board’s decision, and sustain the opposition.

A big factor was the commonality of the goods being marked.

When the goods are identical, the appearance of a mark of similar sound, appearance, or connotation is more likely to cause confusion than if the goods are significantly different. See Century 21 Real Estate v. Century Life of Am., 970 F.2d 874, 877 (Fed. Cir.1992) (“When marks would appear on virtually identical goods or services, the degree of simi- larity necessary to support a conclusion of likely confusion declines.”). Exact identity is not necessary to generate confusion as to source of similarly-marked products. See Saxlehner v. Eisner & Mendelson Co., 179 U.S. 19, 33 (1900) (“It is not necessary to constitute an infringement that every word of a trademark would be appropriated. It is sufficient that enough be taken to deceive the public in the purchase of a protected article.”). In Bose, in comparing WAVE and ACOUSTIC WAVE with POWERWAVE, this court found that the “presence of the root element WAVE, upon this court’s review, introduces a strong similarity in all three marks,” Bose, 293 F.3d at 1378, although in that case the goods were not identical, for the POWERWAVE product was an amplifier rather than a radio.


There is a heavy burden on the newcomer to avoid con- sumer confusion as to products and their source. Precedent illustrates many examples in which registration was denied to the second entrant, in view of a mark in prior use, e.g., Kimberly-Clark Corp. v. H. Douglas Enters., 774 F.2d 1144 (Fed. Cir. 1985) (HUGGIES and DOUGIES); Magnavox Co. V. Multivox Corp. of Am., 341 F.2d 139, 141 (CCPA 1965) (MAGNAVOX and MULTIVOX). See generally McCarthy, supra, § 23:23 (collecting examples). This court has cau- tioned that there is “no excuse for even approaching the well-known trademark of a competitor.” Kenner Parker Toys, 963 F.2d at 353; Nina Ricci, S.A.R.L. v. E.T.F. Enters., Inc., 889 F.2d 1070, 1074 (Fed. Cir. 1989). This caution applies here; the prior user is entitled to the traditional protections of its marks of trade, as against newcomers choosing a confusingly similar mark for the same goods.

Bottom line, Bridgestone wins:

In light of the identity of the goods, the lengthy prior use of POTENZA and TURANZA, the market strength of the POTENZA and TURANZA marks, and the similarities of words, sounds, and connotation with MILANZA, sufficient similarity has been shown as would be likely to cause consumer confusion, deception, or mistake. We conclude that the Board erred in denying Bridgestone’s opposition to the registration of MILANZA for intended use with tires. The Board’s decision is reversed.

CAFC finds agency interpretation wins in Price v. Panetta

Although not a patent case, Price v. Panetta , includes text:

It is well settled that an agency’s interpretation of its own regulations is entitled to deference unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). That principle applies whether the regulation in question is ambiguous or simply silent on the issue in question. See White v. United States, 543 F.3d 1330, 1337-38 (Fed. Cir. 2008). Moreover, an agency’s interpre- tation of its regulations is entitled to that generous degree of deference even when that interpretation is offered in the very litigation in which the argument in favor of deference is made, as long as there is “no reason to sus- pect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.” Auer, 519 U.S. at 462; Reizenstein v. Shinseki, 583 F.3d 1331, 1335 (Fed. Cir. 2009); Abbott Labs. v. United States, 573 F.3d 1327, 1331 (Fed. Cir. 2009); Gose v. U.S. Postal Serv., 451 F.3d 831, 838 (Fed. Cir. 2006) (“Legitimate agency interpretations may be made even during the very administrative determination that has become the subject of review.


There is no reason to believe that the Defense Department’s interpretation of its NSPS regulations is merely a “convenient litigating position” or a “post hoc rationalization” in this case. See Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 881 (2011); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213 (1988).

The "Little Tucker Act" was involved:

The Little Tucker Act, 28 U.S.C. § 1346(a), allows a plaintiff to bring an action in district court if the action is based on a claim against the United States “not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department.” The Act both creates jurisdiction in the district court and waives sovereign immunity for an action falling within the jurisdictional grant. It does not, however, create a cause of action; for that, the plaintiff must look elsewhere. Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in pertinent part). As the Supreme Court has explained, the plaintiff must “identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties,” after which “the court must then determine whether the relevant source of substantive law can fairly be inter- preted as mandating compensation for damages sus- tained” as a result of the breach.

The amount in question as to Mr. Price was $4,777.

"Upon discovery of such errors, we publicly admit them"

In an opinion piece on the Flatland plagiarism matter titled Good journalists have no tolerance for plagiarism, observes:

Upon discovery of such errors, we publicly admit them — and punish ourselves more than most readers can possibly realize.

With scientific journals, quite frequently the opposite is true. In both the Hwang Woo Suk and Jan Hendrik Schon frauds, relevant high prestige journals dragged their feet on getting the truth out. At one point, the Hwang fraud was described merely as a mislabeling of figures. See Analyzing Innovation the Right Way, 88 JPTOS 239 (March 2006).

LBE recounted an event wherein the editor of the ACS journal "Energy & Fuels" refused to correct a citation to a non-existent journal. See Intersection of Science and Law.

Correction of factual errors in judicial decisions can also be problematic.

Linking is not endorsing

In the twitter tangle between M.I.A. and Anderson Cooper, text from about Cooper's side:

The silver-haired talk show host then let loose some mad journalism skills on her. He responded, “you’ve gone from saying ‘I wrote’, ‘I called you,’ to saying my cnn show blog had a link to an article. Big difference…we link to many articles with different viewpoints, and we gave you an opportunity to respond. I can understand your frustration if someone wrote untrue things about you, and I’m glad you were able to respond.”

Linking to an article, or referencing an article, is certainly not the same as endorsing an article. IPBiz has referenced the Lemley/Moore article in BULR, as well as several articles written by a certain former Kodak employee (Cecil Quillen), but that was in the context of criticizing them.

Sadly, systems which merely count citations don't make the distinction between a favorable citation and a critical one. Anderson Cooper is right, and, for that reason, citation counting is wrong.

Thursday, March 15, 2012

Conflicts of interest in patent litigation

Note the quote: "The public has a right to expect fidelity to professional standards." in the article by Amy Miller.

Copyrighting one's own mind?

Jonathan Keats copyrighted his own mind in 2003, claiming it was a sculpture he had created, neuron by neuron, by thinking; he even created a conceptual futures market based on his copyright.

CAFC en banc in MARINE POLYMER v. HEMCON: an unusual and unfortunate approach to an important issue?

The conclusion of the CAFC:

In sum, the plain directive of the governing statute before us does not permit HemCon to invoke intervening rights against claims that the PTO confirmed on reexamination to be patentable as originally issued. To be sure, patent applicants’ actions and arguments during prosecution, including prosecution in a reexamination proceeding, can affect the proper interpretation and effective scope of their claims. But in rejecting HemCon’s request for intervening rights, we are not here interpreting claims. Rather, we are interpreting a statute that provides for intervening rights following reexamination only as to “amended or new” claims. The asserted claims of the ’245 patent are neither.


Accordingly, the final judgment of the district court is affirmed.

But note also the text: Upon reconsideration en banc, we affirm the judgment of the district court by an equally divided court.

In footnote 4, the majority of the equally divided court cited Exxon v. Lubrizol:

Judge Dyk’s opinion argues the details of claim construction based on the assertion that neither party argued the construction arrived at by the district court. We are not bound by the arguments of the parties, however, and neither was the district court. Exxon Chem. Patents, Inc. v. Lubrizol Corp., 64 F.3d 1553, 1555 (Fed. Cir. 1995). Moreover, Judge Dyk suggests that we are deciding claim construction based only on one example, to the exclusion of others. In fact there is only one example of the claimed p-GlcNAc in the specification; the rest of the cited “examples” provide various methods of purifying, characterizing, or using the disclosed product.

The dissent begins:

The court took this case en banc to address when absolute intervening rights arise under 35 U.S.C. § 307(b) during reexamination. In particular, the question is whether intervening rights accrue when the patentee limits the claim scope by argument rather than by formal amendment to the claim language. (...) the court did not seek further briefing and argument by the parties. This approach to an important issue is in my view difficult to justify. Now, remarkably, the court having affirmed the district court’s judgment by an equally divided court, goes on to opine in dictum as to the issue of intervening rights even though that issue (as discussed below) has been resolved by the affirmance and also, in the majority’s view, “is not properly before us on appeal.” Maj. Op. at 20. This is an unusual and unfortunate approach to an important issue. This issue is likely to become even more important under the new Leahy-Smith America Invents Act (“AIA”) because of the increased availability of reexamination. The majority’s interpretation of the statute is both incorrect and certain to encourage improper strategic behavior by patent applicants.

The dissent discusses a recurring theme:

The approach in Judge Lourie’s opinion of interpreting a claim limitation based solely on a single example from the specification is an approach we have repeatedly rejected. See, e.g., Silicon Graphics, Inc. v. ATI Techs., Inc., 607 F.3d 784, 792 (Fed. Cir. 2010) (“A construing court's reliance on the specification must not go so far as to import limitations into claims from examples or embodiments appearing only in a patent’s written descrip- tion unless the specification makes clear that the patentee intends for the claims and the embodiments in the specifi- cation to be strictly coextensive.” (internal quotation marks omitted)); Howmedica Osteonics Corp. v. Wright Med. Tech., Inc., 540 F.3d 1337, 1345 (Fed. Cir. 2008) (“[W]e have repeatedly held that the fact that the specifi- cation describes only a single embodiment, standing alone, is insufficient to limit otherwise broad claim language.”). We have “cautioned against limiting the claimed invention to preferred embodiments or specific examples in the specification.” Tex. Instruments, Inc. v. U.S. Int’l Trade Comm’n, 805 F.2d 1558, 1563 (Fed. Cir. 1986). Indeed, the “[v]aried use of a disputed term in the written description demonstrates the breadth of the term rather than providing a limited definition.” Johnson Worldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 991 (Fed. Cir. 1999).

AND, rather bluntly:

Judge Lourie’s new approach to claim construction would enable patentees to eliminate questions of validity by narrowing claims in accordance with a preferred embodiment or single example, while also allowing alleged infringers to narrow claims beyond their valid scope to avoid infringement. That approach cannot be correct.

The final text in the dissent:

Allowing patent owners to avoid creating intervening rights by amending claims by argument is an abuse of the reexamination process and undermines the purpose of intervening rights. Section 307(b) cannot be construed to sanction such abuses.

To be sure, not every argument during reexamination should give rise to intervening rights, but intervening rights should be available where an argument during reexamination rises to the level of a clear and unambiguous disclaimer or disavowal of the original, correct claim construction. Here, Marine Polymer clearly and unambiguously disclaimed the scope of its claim by effectively becoming its own lexicographer and presenting a specific, limiting definition of the term “biocompatible.” 10 I
respectfully dissent.

Note a slight correction at

Wednesday, March 14, 2012

Diane Sawyer does patents on March 14, 2012

The final story on ABC World News with Diane Sawyer on March 14, 2012 involved the diaper patents of Marion Donovan, although Donovan was not explicitly named. Diane suggested the inventor (Donovan) got one million dollars for the patent. In fact, Donovan unsuccessfully tried to sell the patent. Only after a company was formed, and sales made, were her company and patents sold for $1,000,000 to the Keko Corporation.

Marion O'Brien Donovan
Disposable Diapers - Marion Donovan

Blunder by Nike in marking product

Usually, intelligent companies do a little research before assigning a product name. In response to naming a shoe "Black and Tan Quickstrike," Nike stated that the product was "unofficially named by some using a phrase that can be viewed as inappropriate and insensitive."

Refer to Nike ‘Black and Tans’ Sneaker Accidentally Incites Outrage From Irish Community

CAFC reverses, remands in Aspex v. Marchon

The summary of the outcome:

In sum, we reverse the district court’s grant of summary judgment on res judicata grounds to Revolution and Marchon with respect to products that were not at issue in the California Actions and were not covered by the Marchon settlement agreement, in particular the New Design products sold by Revolution and Marchon. We remand for further proceedings, including a determination as to whether the New Design products that Revolution introduced during the pendency of the Revolution California Action were included within the scope of that litigation, and whether principles of collateral estoppel have any effect of limiting Aspex’s rights to proceed under the ’545 patent against the defendants. If the court determines that Aspex’s action against one or more of the defendants is not barred, the court will be required to determine the issue of infringement based on the con- struction of the critical terms of the two claims at issue in this case.

Aspex’s allegations of induced infringement against Zelman and Nike stem from Revolution’s and Marchon’s alleged direct infringement, respectively. Given our holding above reversing the district court’s grant of sum- mary judgment in favor of Revolution and Marchon, the district court’s grant of summary judgment in favor of Zelman and Nike is likewise reversed and the proceedings against those defendants are included within the scope of the remand.

The eBay case was cited:

Third, the Supreme Court has held that injunctions should not be routinely granted in patent cases. See eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006). It is therefore likely that there will be many instances in which an injunction has not been issued, but in which an infringer continues with its infringing activities. In that setting, a new action for infringement is the patentee’s only recourse. It would be peculiar (and exceptionally unfair) to invoke res judicata to bar any further relief to a patentee in such a situation, thus effectively giving the infringer an unpaid license for the remainder of the life of the patent based on an earlier judgment of infringement.


See Forest Labs., Inc. v. Ivax Pharm., Inc., 501 F.3d 1263, 1272 (Fed. Cir. 2007); Int’l Rectifier Corp. v. IXYS Corp., 383 F.3d 1312, 1316 (Fed. Cir. 2004); Additive Controls Measure- ment Sys., Inc. v. Flowdata, Inc., 986 F.2d 476, 479-80 (Fed. Cir. 1993). A patentee’s right to recover for post- judgment acts of infringement should not depend on the willingness of a court to issue an injunction that would test the permissible limits of injunctive breadth.

As to res judicata:

In patent cases, this court has applied the general rule that res judicata does not bar the assertion of “new rights acquired during the action which might have been, but were not, litigated.” Gillig v. Nike, Inc., 602 F.3d 1354, 1363 (Fed. Cir. 2010), quoting Computer Assocs. Int’l, Inc. v. Altai, Inc., 126 F.3d 365, 370 (2d Cir. 1997); see also Manning v. City of Auburn, 953 F.2d 1355, 1360 (11th Cir. 1992) (“for res judicata purposes, claims that ‘could have been brought’ are claims in existence at the time the original complaint is filed or claims actually asserted by supplemental pleadings or otherwise in the earlier action”). While a party may seek to pursue claims that accrue during the pendency of a lawsuit adjudicated in that lawsuit, the party is not required to do so, and res judicata will not be applied to such accruing claims if the party elects not to have them included in the action. Gillig, 602 F.3d at 1363; In re Piper Aircraft Corp., 244 F.3d 1289, 1298 (11th Cir. 2001); Curtis v. Citibank, N.A., 226 F.3d 133, 139 (2d Cir. 2000). The question to be resolved on remand, then, is whether in the course of the 2002 Revolution action in California, the parties consented to have the court adjudicate their rights as to products that were made and sold during the pendency of that case.

On the impact of a settlement agreement:

In a settlement agreement, the parties to an action can determine for themselves what preclusive effect the settlement of the first action will have as to any potential subsequent actions between the parties. Pactiv Corp. v. Dow Chem. Co., 449 F.3d 1227, 1231 & n.2 (Fed. Cir. 2006); Greenberg v. Bd. of Governors, 968 F.2d 164, 168 (2d Cir. 1992); see generally Restatement (Second) of Judgments § 26(1)(a) (1982).

On the topic of judicial economy:

Because the district court’s claim construction rulings did not result in a judgment of noninfringement, we are not compelled to address those rulings at this time. However, the claim construction issues that the parties have presented to us are likely to be dispositive as to the issue of infringement, and for us not to address those issues at this juncture would in all likelihood result in further proceedings in the district court followed by another appeal in which pre- cisely the same claim construction issues would be pre- sented. In the interest of judicial economy, we therefore exercise our discretion to address the claim construction issues presented by the parties. See Advanced Software Design Corp. v. Fiserv, Inc., 641 F.3d 1368, 1379 (Fed. Cir. 2011); Chimie v. PPG Indus., Inc., 402 F.3d 1371, 1383-84 (Fed. Cir. 2005); E.I. DuPont de Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1437-38 (Fed. Cir. 1988).

As to limitations from a preamble of a claim:

This court has recognized that as a general rule preamble language is not treated as limiting. See Allen Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1346 (Fed. Cir. 2002).

And nothing in the prosecution history suggests that the preamble language was considered necessary to the patentability of the claims. Under those circumstances, this court has found the preamble lan- guage not to be limiting. See Am. Med. Sys., Inc. v. Bio- litek, Inc., 618 F.3d 1354, 1358-59 (Fed. Cir. 2010); Catalina Mktg. Int’l, Inc. v., Inc., 289 F.3d 801, 808 (Fed. Cir. 2002).


In order to construe the settlement agreement to reach those New Design products that were introduced during the several-month period before the settlement agreement was executed, we would have to conclude that the parties intended to depart from the normal rule that the products at issue in a patent suit are those in exis- tence at the time the suit is filed. See Gillig, 602 F.3d at 1363. As this court has noted, the parties’ decision to depart from the normal rules of claim preclusion by agreement “must be express.” Pactiv Corp., 449 F.3d at 1231. There was no such express agreement here.


That result would be at odds with the ordinary principles of claim differentiation, as “the presence of a dependent claim that adds a particular limitation gives rise to a presumption that the limitation in question is not present in the independent claim.” Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed. Cir. 2005) (en banc).


See Sta-Rite Indus., LLC v. ITT Corp., 682 F. Supp. 2d 738, 753 (E.D. Tex. 2010) (construing “adapted to,” in context, to mean “designed or configured to,” not “having the capacity to”); Boston Scientific Corp. v. Cordis Corp., 2006 WL 3782840 (N.D. Cal. Dec. 20, 2006) (construing “adapted to,” in light of patent as a whole, to mean “con- figured to,” not “capable of”).


see generally Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (when different words are used in separate claims, they are presumed to have different meanings); Tandon Corp. v. U.S. Int’l Trade Comm’n, 831 F.2d 1017, 1023 (Fed. Cir. 1987) (same).

***UPDATE. From a press release by Aspex on March 15:

Pembroke Park, FL – March 15, 2012, Aspex Eyewear Group announced today that the Federal Circuit Court of Appeals in Washington DC issued a ruling on March 14, 2012 that will allow its patent infringement litigation in Miami, Florida against several defendants, including Marchon Eyewear, Inc. and Revolution Eyewear, Inc., to proceed.

In the ruling, the Federal Circuit confirmed that the prior successful litigation over one of Aspex’s magnetic clip-on technology patents does not bar the company’s patent infringement claims on products made after those suits were resolved.

An excerpt from the ruling states:
In sum, we reverse the district court’s grant of summary judgment on res judicata grounds to Revolution and Marchon with respect to products that were not at issue in the California Actions and were not covered by the Marchon settlement agreement, in particular the New Design products sold by Revolution and Marchon.

“We applaud the decision by the Federal Circuit, which allows Aspex to proceed with patent infringement claims against Revolution, Marchon and Nike.” said Thierry Ifergan, Executive Vice President, Aspex Eyewear. “This ruling validates our right to prevent others from ‘trespassing’ on Aspex’s valuable intellectual property and sends a clear message that continued infringement will subject the infringer to enforcement actions. We remain resolute in our efforts to enforce our patents and intend to continue to vigorously defend our position in this matter.”

In summarizing the court’s reasoning that Aspex should litigate to defend the company’s intellectual property, the decision states that in the situation where “an infringer continues with its infringing activities… a new action for infringement is the patentee’s only recourse. It would be peculiar (and exceptionally unfair) to invoke res judicata to bar any further relief to a patentee in such a situation, thus effectively giving the infringer an unpaid license for the remainder of the life of the patent based on an earlier judgment of infringement.