Monday, April 30, 2012

Pa Make Loa Hawaii Five-O brings in NCIS: LA team. Cross-branding.

The episode Pa Make Loa begins with an ex-husband trying to break into the ex-wife's house.  The police come.  The ex-husband's face is terribly disfigured.

Danny and Chin talk about Steve's absence while at Steve's place.  The governor phones.  Danny is told to run a quite investigation quietly as to the victim (Brian Palmer) , who was determined to have had smallpox.  Smallpox vaccination is effective only for 3-5 years.  US/CDC and Russia are the only known places harboring smallpox.  Smallpox was injected into Palmer, thus used as a murder weapon.

The ex-wife and kids are quarantined.  It's not clear that the couple is actually divorced, as they have been in counseling. The (ex?)- wife refers to his "dark place."   Liquids containing cyclotripzine (anti-depressant) are in vials in Palmer's refrigerator.  A pharma company (BioStatin) is involved in the trials of the antidepressant, run by Ken Tanner.  Danny and Chin go to Ken Tanner's home.  He's dead in the garage, car running.    Kono pings Tanner's cell phone, which was found in a garbage can.  Tanner was killed via blunt force drama.  Dracul Comescu's prints were found at the murder scene.  Danny calls the NCIS-LA folks (G. Callen and Sam Hanna).   They discuss Comescu's Romanian - organized crime family.

The crime lab processes the contents of the garbage can, and finds at least four distinct sets of clothes.
Hanna draws attention to the Chevy car, product placement.

The drug trial was directed to single people without family.  Ken Tanner had financial troubles.  Then CF&Q limited wired him $500,000.  The trials were being done at Sand Island (aka Quarantine Island).  The teams go there, and we have a Chevrolet car chase scene.  Line:  you shoot like Ray Charles.  The bad guys SUV is wrecked.  Going back to the warehouse on Sand Island, the teams find another victim.

Someone with very specialized scientific knowledge is involved.  There is discussion of "patient beta." Usually 14-28 days to death; here, three days.  A scientist studying the situation recognizes a voice on a recovered tape, but can't exactly place the voice.  Danny talks to the driver recovered from the crash, and threatens to inject him with material allegedly obtained from the virus site.  The "buy" is going down at 2pm.  But the "test patients" were shot by someone other than Comescu.  Scene at the Tree House Cafe.  Sam criticizes Danny's clothes.  Chechens are found to be involved.  Comescu is there at the meet site.  The Chechens are captured, with their money.  Comescu escapes.

Kono shoots one of the bad guys, but Comescu is still going.  Callen catches up to Comescu.  Callen shoots Comescu.  The case with the vials is recovered.

Dinner at Kamekono's [ Taylor Wily ] shrimp place.  Danny's Chevy is going to be called Winnifred?

But there is bad news.  Dr. Jarred Probman  switched the vials after they had been recovered from Comescu.  The doctor's motivation was given as having been caught faking data to get a research grant.   Jarred switched flights with one Benjamin Gallagher, and arrived via Hanalei Air Flight 792 in LA before he could be apprehended.  Stay tuned for NCIS:  LA.

Apple prevails over Zapmedia at the CAFC

TIP Sys. vs. Phillips & Brooks/Gladwin, 529 F.3d 1364, is cited on the impact of prosecution history in a related application.

See Zapmedia Services v. Apple

Sunday, April 29, 2012

Season ending episode on April 29 for "The Good Wife"

Kalinda reveals to Alicia: I'm not gay; I'm flexible.

Judge Trent Wynter rules on a product liability on an acne medication (Vericene). $25 million in favor. Peter tells Alicia he is moving into the house, with the intent of flipping it. Cary has no office to begin with, and starts at a conference table. Alicia finds a check for $21,000 made out to cash from F&E Construction. Patti Nyholm appears.

Patti and Louis Canning are bringing suit against Lockhart, Gardner for malicious prosecution in the acne case.  Judge Linden presides over this case.

Eli visits Peter's mother, Jackie, in the hospital. Eli wants Jackie to apologize to Alicia.

Louis Canning deposes Kalinda. Patti deposes Will. F&E Construction gets back to Alicia about the check. Lockhart: Patrick Edelstein is making noises. Patti: You've seen Butch Cassidy and the Sundance Kid. We're the super-posse.
Also: we're here to destroy you.

Andrew Wiley is the leak of grand jury testimony.

Alicia and Kalinda talk about the check for $21,000.  Kalinda buys a sledge hammer.  Kalinda bashes in a wall and retrieves money and a gun from behind the wall.

Alicia is deposed by Patti.  Patti says that Peter met with the (acne) judge 3 times in the week before the $25 million award.  Peter meets Will in the elevator, as Peter heads to his deposition.  Eli sees Peter, Will, and Alicia together.  Then Cary shows up.  Then Kalinda shows up.  Kalinda and Will meet over drinks, and Kalinda asks for money.  Will talks about the bad state of things.  Kalinda notes that Will will build things back up again.

Canning and Nyholm both depose  Peter Florrick.  Peter tells the two that he is separated from Alicia.  Peter was seeing the judge for support for Peter's campaign.

Alicia asks Kalinda, who is this man, is this man dangerous?  The man is Kalinda's husband.

Canning and Nyholm reveal their true intention was to poach Edelstein as a client, which they have done.  Will and Alicia talk in the elevator.  Do you think it was a mistake?  No.  Good night Alicia.  Good night Will.

Kalinda empties out her duffel bag.  Alicia visits Peter at home.  Peter notes the previous owners didn't put any money in the house to flip it.

Kalinda loads her gun.

Zach asks Alicia to stay and eat pizza.

Kalinda waits at a door with a loaded gun.

The episode ends with Alicia looking in through the window as Peter, Zach, and Grace eat pizza.

"60 Minutes" on CIA interrogation techniques on April 29, 2012

In the first story, Lesley Stahl interviews Jose Rodriguez, related to his book "Hard Measures." Rodriguez noted: the dark side, that's what we do.

The topic of "black site" arose. Abu Zubaydah was interrogated first by the FBI, using traditional methods of questioning. Rodriguez felt a ticking time bomb, and proposed an alternative set of interrogation procedures. 9/11 as a failure of imagination. Rodriguez said the CIA did not have a failure of imagination in 2002. Rodriguez got everyone to put on "their big boy pants" and thus no plausible deniability. There was a DoJ memo on 1 August 2002. Rodriguez described waterboarding, giving a sensation of drowning. Nudity was employed. "Cramped confinement box with an insect." Water applied from a height of 12 to 24 inches in water boarding. Insult slap. Sleep deprivation. Rodriguez: this program was not about hurting anyone, rather instilling a feeling of hopelessness and despair.
FBI interrogators say everything important was given up by Abu BEFORE the CIA started with their methods.

In the second portion of the story, Stahl interviews Rodriguez about the interrogation of Khalid Sheikh Mohammed [KSM]. The CIA had access to aircraft to take suspects to a variety of "black sites." KSM was captured in 2003. KSM wanted a lawyer, and to go to New York. KSM was denied sleep for 180 hours in a row. And 183 pourings of water (average 10 sec) in water boarding. KSM knew that the water would stop at about 10 seconds. KSM ate ENSURE. Lesley: this is Orwellian stuff; the United States doesn't do that. Lesley asked if the plots could have been stopped WITHOUT waterboarding. The CIA inspector general said the water boarding did NOT stop any imminent attack. Lesley said the truth is you didn't break KSM.

Rodriguez retired from the CIA in January 2008. His book is published by Simon & Shuster, an affiliate of CBS. Rodriguez talked about the pointy end of the sphere. McCain: it's killing us that America is stooping to the level of our worst enemies.

Morley Safer did the story "Hooked" on analysis of addiction with an interview with Dr. Nora Volkow, head of the National Institute on Drug Abuse [NIDA]. Release of dopamine. Research on receptors. In addicts, the number of dopamine receptors is diminished. Frontal cortex is related to free will. Marijuana use among high school students: 1 in 3. And prescriptions for vicodin, oxycontin are on the rise. Overdoses from pain pills killed 15,000 people in a year's time.

Volkow's great grandfather was Leon Trotsky. Trotsky arrived in Mexico in 1936. Esteban Volkow, the father of Nora, is the grandson of Trotsky. August 20, 1940: Trotsky killed with an ice axe.

Volkow is working on vaccines to keep drugs from entering the brain.

CBS Sunday Morning on April 29, 2012

Charles Osgood introduced the stories for April 29, 2012. America is the land of opportunity. Now, soaring expenses of colleges. Rebecca Jarvis does cover story on "Smart Money." A typical cost can be $60,000 per year. Second story by Mo Rocca on magazine covers, especially those not used. Third, Anthony Mason on the Beach Boys. The surviving members have reunited for the 50th anniversary. Fourth, Tracy Smith on Body of Work, on images of Marilyn Monroe. Lawrence Schiller. Review of The Avengers. LBJ. Hotdog tosser. News: Peter Keller found in bunker. In China, activist thought to have moved from Linyi to US embassy in Beijing. Tent blown over in St. Louis. Jimmy Kimmel roast. Obama line: I have to get the Secret Service home to meet their new curfew. Forecast: heavy weather in midAmerica.

Osgood prefaced story on college costs with discussion of college loan interest rate debate. Rebecca Jarvis started on the campus of Sarah Lawrence College. The "all-in" cost will top $60,000. 90% of classes of Lawrence are seminars with 11-12 students. You are paying for the attention of the faculty. That is where the money goes. College tuitions have doubled within the last ten years. Student loan debt is over 1 trillion, more than credit card. Average debt is 27,200 per student, not counting loans from parents. Jarvis noted Obama had worked the college circuit in the last week. Issue: "how to pay for it." Democrats propose closing tax loopholes for oil and gas companies. Shelley Buffone, a recent poly sci grad, in Pittsburgh interviewed. helps students work off loan debt. In California, tuition has gone up 50% in just two years. Santa Monica College has reduced 1,100 sections. Jasmine Delgado interviewed. Santa Monica tried offering more sections at triple the cost. Two-tiered pricing system was killed. 280,000 students not being served. Megan Ragouska has debt of $23,000. How much debt is too much? Sandy Baum says: debt should not rise above your earnings level. College advantage: $1,000,000 over a lifetime. People work about 40 years over their lifetime.

Almanac. Rodney King. April 29, 1992: southern California jury acquitted policemen involved in Rodney King incident. South Central LA looting. Reginald Denny incident.
55 people killed, 2300 people injured; riots cost closed to 1 billion. Two officers were subsequently convicted of civil rights violations. Rodney King got 3.8 million. Wrote book "The Riot Within."

Mo Rocca on covers The New Yorker did not use. Feb. 1925 debut issue. Sol Steiberg's view of the world from NYC. Now, covers which are political and provocative. Current cover editor (FRANÇOISE Mouly) has done over 950 covers. Christoph Niemann (New Yorker is olympics of covers). David Remnick is editor. For us, it's what we like. Push the boundary to see where the boundary can be. Book: Blown covers. Remnick: spoke of unwashed masses not seeing Obama as patriotic. Harry Bliss.

Sunday Passage. Release of 1971 recording by Louis Armstrong.

Bound Together. Robert Caro and Lyndon Baines Johnson. Political power. In second half of 20th century, LBJ best understood use of political power. Influential Senate majority. The passage of power. LBJ outmaneuvered for Democratic nomination. Johnson considered Kennedy pathetic. Rickety ankles. Real blood feud was between LBJ and RFK. Two dogs coming into a room and hair rising behind their necks (George Reedy). RFK asked LBJ to withdraw from the ticket. As VP, Johnson is treated with disdain. The hangdog look. Of Caro: obsessive. Johnson moved immediately to consolidate his power (27 Nov. 1963). Caro previously did book on Robert Moses. 1964 Civil Rights Act. Caro is doing another book on LBJ: about how the LBJ presidency was undone by the Viet Nam War.

For comic book fans, the Avengers. John Blackstone notes the movie is supersized in heros. Josh Whedon of Buffy the Vampire Slayer (1997-2003). Empowerment of women. See the tiny person take control. He was a writer on Roseanne in 1989. Equality Now. Next for Whedon: movie on Much Ado About Nothing.

Charles Kuralt (1986) reprised. P. Stephen Potter. A recycle of a story that appeared on Pelley's Evening News. In 2000, the University of Nebraska refused to give him a vendor's permit. The Wiener Schlinger. Automation taking jobs: how much more American can you get.

Tracy Smith on Body of Work (images of Marilyn Monroe). In 1960, Let's Make Love. Lawrence Schiller on assignment for Look Magazine. By 1962, Cleopatra, Liz Taylor, bothered Monroe. Marilyn doing Something's Got to Give. No mention of Liz Taylor in that issue of Life. Marilyn needed the exploitation for her own purposes. Unspoken contract. June edition of Vanity Fair: A Splash of Marilyn. How do you tell a story in one image? Picture of Lee Harvey Oswald. The Kennedy family knew they could be elected if they did the right thing with the media. Monroe was upset that the media was concerned with her body. Schiller noted there is no equivalent today of Marilyn Monroe.

Anthony Mason, for the record, on the Beach Boys. No American band has more top 40 hits. Brian Wilson, Al Jardine, and Mike Love are the three remaining original members of the Beach Boys. Re-united in February at the Grammys. Grammy nomination for Good Vibrations, but beaten out in 1969 by Monday, Monday. Opening Day at Dodger Stadium, celebrating its 50th anniversary. Band formed in Hawthorne, CA. Four Freshmen harmony over Chuck Berry guitar licks. Surfin' Safari released in 1962. Murray Wilson was abusive to his kids. Brian Wilson and Mike Wilson fired him. Brian Wilson was emotional heart of the Beach Boys. "Being scared" is driving force in my life. Mike Love talked about drugs being a divisive influence. In 1965, Beatles' Rubber Soul. This led Beach Boys to "God Only Knows," termed by McCartney the greatest song ever written. The Beach Boys did not like Brian's Smile album. Dennis and Carl Wilson died. "How does a 70 year old sound that good?" You can let the past screw with your head for a lifetime, or you can focus on right now.

Meaning of Hopefully discussed. Abandon all hopefully all ye who enter here. Statement by AP on use of hopefully.

Next week: Simon Baker of Mentalist on Sunday Morning.

Moment of nature (Pradaxa): southwestern Oklahoma, Wichita Mountain Wildlife Refuge showing prairie dogs, and bison. [Recycled?]

The Doug Lynch phantom Ph.D. affair at the University of Pennsylvania

Vice Dean of the University of Pennsylvania Graduate School of Education [GSE] Doug Lynch resigned recently. It seems he had not received a Ph.D. at Columbia, contrary to representations that he had said degree.

The sequence of events is interesting, and does not reflect well on University of Pennsylvania administrators. The Daily Pennsylvanian wrote:

In an email sent to GSE faculty and staff Thursday, GSE Dean Andrew Porter said he has known about Lynch’s situation since March 2. Initially, rather than remove him from his current role, Porter and other University administrators decided to impose a set of unspecified sanctions on Lynch.

When the Inquirer first reached out to GSE spokesperson Kat Stein on Wednesday, Stein told the newspaper that these sanctions had “resolved [the situation] to our satisfaction.”

Hours later, though, MacCarthy said in a one-line statement that the University had decided to place Lynch on administrative leave pending the outcome of an ongoing investigation.

In an article in the Philly Inquirer on Thursday, April 26, 2012, Susan Snyder wrote:

Earlier Wednesday, Penn officials said they became aware of the misrepresentation a couple of months ago, taking unspecified "appropriate sanctions" but deciding to leave Lynch in his leadership role.

That changed after The Inquirer placed a call to Penn president Amy Gutmann for comment. The university then issued a one-sentence statement from Stephen J. MacCarthy, vice president for university communications.

"Doug Lynch has been placed on administrative leave pending the outcome of an ongoing investigation," MacCarthy's statement said.

Lynch, 47, a specialist in nontraditional education, declined to comment Wednesday. Kat Stein, spokeswoman for the graduate school, said Lynch maintained he was unaware he did not have the degree. "He mistakenly believed that it was complete," she said.

Readers of IPBiz may recall the heading "Plagiarize with Pride" that appears at page 68 in the April 2004 issue of Harvard Business Review.
Harvard Business Review article: Plagiarize with Pride

The Snyder article notes the following:

When a former student asked him if she could copy and use parts of her Penn executive doctorate program in her for-profit education program at Fremont College, Lynch gave her the following advice, according to the article: "Steal shamelessly."

And the UPenn alum magazine plumped Lynch:

A February 2011 feature on him in Penn's alumni magazine said: "What happens when you unleash an entrepreneurship evangelist on an education school? Meet Doug Lynch, the vice dean bent on making Penn GSE a hub for social entrepreneurs, venture capitalists, and next-generation educational reform."

Tuesday, April 24, 2012

Biofuels Digest on the Gevo / Butamax patent war on bio-isobutanol

In a post titled Butamax and Gevo: Bio’s Montagues and Capulets get it on, and on, and on, Biofuels Digest discusses the patent war between Butamax and Gevo without discussing a single claim of any patent. The Digest post ends with a cryptic


There are no comments yet. Why not be the first to speak your mind.

Comments are closed.

<--------- ------------------------------------------------------------------------------ Back in January 2011, IPBiz noted the initial infringement action and included some relevant claims of the Butamax '188 patent. See Gevo's response to Butamax infringement assertion re: US 7,851,188 Claim 1 of the '188 patent requires polypeptides that catalyze substrate to product conversions for each step below:. Omit one polypeptide and one does not infringe. The as-filed claim did NOT have this requirement.

In September 2011, IPBiz discussed Gevo's US 8,017,375 (issued Sept. 13, 2011) in the post
Gevo bites back in isobutanol biofuel area; goes after Butamax with US 8,017,375
Gevo's US '375 included a requirement wherein said isobutanol producing metabolic pathway comprises the following substrate to product conversions: AND a term wherein said recombinant yeast microorganism expresses: with the following requirement an .alpha.-ketoisovalerate decarboxylase from Lactococcus lactis to catalyze the conversion of .alpha.-ketoisovalerate to isobutyraldehyde; Omit any of the requirements and there is no literal infringement.

Within the Biofuels Digest post:

Nevertheless, lots of pesky legal activity does not generally correlate to long-term loss in company value, for robust management teams that have built companies instead of science projects disguised as companies. Novozymes has, for example, more than 6000 pending and granted patents and a $7.6 billion market cap, and Danisco and its Genencor subsidiary recently sold to Dupont for $6 billion.

As to patent law itself, the last Gevo / Butamax tussle over re-exam of a Butamax patent has some interesting legal implications, and the USPTO stance on the AIA provision would likely surprise a few people. IPBiz will cover that separately.

Other text in the Biofuels Digest post caught the eye of IPBiz:

No one is suing anyone over, say, Cello’s technology, or to gain control of the Range Fuels process. At least not a positive suit aimed at gaining freedom to operate.

For the same reason, you never see a Western where two old prospectors duel it out over a worthless piece of land. In films like Treasure of the Sierra Madre, the fight is invariably over the gold, the map that marks the gold, or the entrance to the mine that guards the gold.

The mounting mountains of paper should be properly seen as a leading indicator of just how valuable a bio-based process to generate low-cost isobutanol from biomass can be, especially if you have figured out the engineering of separating the alcohol from the broth before it kills the microorganism.

As a double-layered counter-example, contemplate the fight over COX-2 inhibitors brought by the University of Rochester against (initially) Searle. The suit was brought the day URochester's patent issued, and ended with the URochester patent being found invalid, on summary judgment. Rumor has it UR spent over $10 million. Big dollars, yes; valuable to URochester, no! But, that's not all folks, this area is COX-2 inhibitors, which turned out to be rather bad for some people taking them, and thus not a big pharma gold mine. Ask Merck about that. Nobody mistakes this story for the Treasure of the Sierra Madre. [And, remember, in the movie, the gold blew away.] In summary, in COX-2, there was no gold, and we had two old prospectors dueling it out over a worthless piece of land. For another saga, think also about the "Dolly the Sheep" patent estate.

Gevo's Brett Lund wins award as "Best Corporate Counsel"

MarketWatch noted on 23 April 2012: Gevo, Inc., a leading renewable chemicals and advanced biofuels company, is pleased to announce that Executive Vice President and General Counsel Brett Lund recently received the Denver Business Journal's (DBJ) "Best Corporate Counsel" award at a ceremony in Denver. Lund was recognized for his strong business acumen, intellectual property expertise, strategic deal making, Securities and Exchange Commission acumen, human resources knowledge, and experience in raising money. "It was an honor to receive the DBJ's Best Corporate Counsel award for public companies," said Lund. "It's a humbling experience to be recognized for my contributions at Gevo, within the community and amongst my peers. I attribute my success to the collaborative culture and leadership at Gevo." The DBJ's selection was attributed to Lund's efforts in defending Gevo's intellectual property against patent-infringement lawsuits filed by Butamax(TM) Advanced Biofuels, LLC (Butamax). Lund built up Gevo's intellectual property portfolio to include over 300 hundred patents and applications. Gevo filed counterclaims against Butamax and E.I. du Pont de Nemours and Company (DuPont) for infringement of two of its patents and has added an additional four patent infringement lawsuits against Butamax and DuPont. ****************************** See post Brett Lund, Gevo EVP & General Counsel Awarded "Best Corporate Counsel" Lund Receives Award at 2nd Annual Denver Business Journal's Award Program

Monday, April 23, 2012

CAFC tackles patent prosecution malpractice in Landmark Screens

The CAFC laid out the problematic underlying facts of the case Landmark Screens vs. Morgan, Lewis and Thomas Kohler: On August 13, 2003, [patent attorney] Kohler submitted a divisional application to the PTO, and it was assigned Application No. 10/640,916 (“the ’916 divisional application”). However, in filing the ’916 divisional application, Kohler made two mistakes that left the application incomplete: (1) he failed to include copies of required drawings and specifications, and (2) his transmittal letter failed to incorporate by reference materials filed earlier with the original ’096 application. Kohler also did not use the PTO’s “postcard receipt” method, which would have enabled prompt notification when the PTO noticed deficiencies in the application. (...) It was not until June 22, 2004, that the PTO issued a Notice of Incomplete Nonprovisional Application, stating that the ’916 divisional application was missing the required specification and therefore had not yet been granted a filing date. By this time, Kohler had left Pennie and was practicing law at MLB, with Landmark as a client of the firm. Neither Kohler nor any other MLB attorney took action for several weeks, and the one-year anniversary of the ’096 application’s publication passed on July 10, 2004. As a result, Landmark’s own ’096 application became prior art against the ’916 divisional application under 35 U.S.C. § 102(b). Unless the PTO could be convinced to give the ’916 divisional application the benefit of an earlier filing date, all claims in the ’916 divisional application would be lost. ********************************************************************************* The legal issue and outcome: Granting summary judgment to the defendants, the district court dismissed Landmark’s complaint on the grounds that it was filed out of time under the relevant California statute of limitations and that Landmark’s timeliness error was not correctible in equity. In addition, the court issued a partial summary judgment order, the effect of which would have been to limit damages available to Landmark had its complaint been both timely and successful. Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP, No. 5:08-cv-2581, 2010 WL 3629816 (N.D. Cal. Sept. 14, 2010) (hereafter “Damages Order”). For the reasons set forth below, we reverse the judgment dismissing the complaint because under California equitable tolling law, the state law fraud claim was timely filed in the United States district court. Further, because the record does not support the district court’s manner of summarily limiting damages, we vacate the Damages Order and remand the case for trial on the fraud claim. ********************************************************************************* Of the fraud claim: As to the fraud claim, the parties continued to litigate. Under California law, the elements of fraud are: “(1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage.” Robinson Helicopter Co., Inc. v. Dana Corp., 102 P.3d 268, 274 (Cal. 2004). Landmark asserted that the following conduct by Kohler and MLB constituted fraud: concealment of the June 22, 2004, notice from the PTO rejecting the ’916 divisional application, malpractice committed in filing the ’916 divisional application, and defendants’ improper course of action in seeking correction of its malpractice. Dismissal Order at 4. Landmark alleged that such fraud damaged it because, absent the fraud, competent counsel could have prosecuted a divisional application in time to avoid the adverse prior art effect of 35 U.S.C. § 102(b). On Septem- ber 14, 2010, the district court entered partial summary judgment as to damages on the fraud claim, limiting the possible recovery that Landmark might obtain at trial were it to succeed on the merits of its fraud claim. Damages Order at 10. AND Landmark sought relief from the statute of limitations by way of two equitable doctrines: equitable estoppel and equitable tolling. Landmark’s estoppel theory focused on the conduct of Kohler and MLB after the mistakes in prosecution of the ’916 divisional application came to light, when Landmark’s counsel gave assurances that its mistakes could be cured. According to Landmark, those assurances led it to rely on counsel to the detriment of timely pursuit of legal remedies against counsel. Thus, Landmark argued that the defendants should be equitably estopped from invoking the statute of limitations. The district court rejected Landmark’s estoppel theory but did not address Landmark’s equitable tolling argument, which was based on the California equitable tolling law discussed in the following paragraph. ********************************************************************************* Of equitable tolling Under California law, courts consider three factors in determining whether equitable tolling should apply when a litigant timely files a second suit in another forum based on the same facts: “(1) timely notice to the defendant in filing the first claim; (2) lack of preju- dice to the defendant in gathering evidence to defend against the second claim; and (3) good faith and reason- able conduct by the plaintiff in filing the second claim.” Azer v. Connell, 306 F.3d 930, 936 (9th Cir. 2002) (citing Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1137-38 (9th Cir. 2001) (en banc)). AND With this understanding of California law, we conclude that the district court erred in not tolling the three-year statute of limitations for fraud claims during the time the case was pending in the state courts. This conclusion means that Landmark’s fraud claim was timely filed in the district court. Our conclusion is mandated by the factors laid out in Daviton. As to the first Daviton factor, Landmark gave timely notice to MLB and Kohler by filing the state court lawsuit in November 2005, less than a year after Kohler first mentioned any problem with the ’916 divisional application in late December 2004 and well within the statutes of limitation for malpractice (one year) and fraud (three years). The facts alleged in the state court com- plaint included the allegations of deception by the defen- dants about the nature of the defendants’ conduct and adequately provided notice to MLB and Kohler of the claims brought in the federal action. As to the second Daviton factor, the appellees have suffered no prejudice in their ability to gather evidence and prepare a defense since they were on notice of all key facts underlying Landmark’s claims from the start of the state court ac- tion. As to the third Daviton factor, Landmark acted reasonably and in good faith in filing the federal lawsuit after the state court dismissed its claims for lack of sub- ject matter jurisdiction. At the time that Landmark filed the state court suit, there was ambiguity as to whether the suit belonged in state or federal court, as this court had not yet decided Immunocept, 504 F.3d 1281, and Air Measurement Technologies, 504 F.3d 1262. The Ninth Circuit has expressly stated that when the law is unclear whether state or federal court is the proper forum for suit, a plaintiff “should not be denied a chance to present his case because he chose the wrong line of precedent.” Valenzuela, 801 F.2d at 1175. An issue: Kohler and MLB view the wrong of malpractice as fundamentally different from the wrong of fraud. Thus, they see Landmark’s pursuit of a remedy for the alleged malpractice as a bar under Aerojet to a later claim for remedy from the harm caused by the alleged fraud. Kohler and MLB misunderstand the gist of Landmark’s grievance. From the start, Landmark has asserted a single harm to it, the loss of its patent rights. The defendants have even admitted as much. In their motion to dismiss the fraud claim, they stated that “Landmark complains of a single harm arising from a single course of conduct—loss of patent rights.” J.A. 1164. For that single harm, Land- mark has multiple legal remedies. As discussed above, Landmark reasonably and in good faith pursued a remedy in the state courts, only to learn that the state courts lacked jurisdiction over its legal remedy. Landmark thus qualifies for equitable tolling under California law, and the negative test of Aerojet does not stand in Landmark’s way. The CAFC did NOT address the equitable estoppel issue: Since we hold that the district court should have equitably tolled the statute of limitations on Landmark’s fraud claim during the time the case was pending in the state courts, we need not decide whether the district court abused its discretion in denying Landmark’s request for the application of equitable estoppel.

Sunday, April 22, 2012

"The Good Wife" on April 22, 2012

The episode begins with Judge Cuesta declaring a mistrial. The problem is with Judge Cuesta. Previously, the judge was a prosecutor, and he is now being investigated for the possibility of withholding evidence in a case he did as a prosecutor. The judge asks Lockhart Gardner to represent him A mention of the "halo effect," that other judges would know Lockhart, Gardner attorneys would cover their back. The firm contemplates bringing Cary back. Howard asks "who" Cary would take to a desert island. [Keith Richards and Thurgood Marshall] There is concern about conflicts of interest. Eli tips off Peter that the Gardner Lockhart firm is contemplating Cary. Line from Bishop: I don't think a law firm is working hard enough unless they get into a little trouble now and them. Line about client lawyers wanting to do back-seat driving. Bishop to Kalinda about visit from FBI agent Lana Delaney. Bishop: I pay you not to be surprised. Bishop: Take care of it. Alicia to Kalinda: Your FBI friend is going to get you killed. Murphy Wicks presiding over the court of inquiry over Judge Richard Cuesta. The defense prosecutorial discretion is not prosecutorial misconduct. Separately, as to Lockhart Gardner, another possible lawyer addition (female: character "Callie Simko", who is seeing Will Gardner) was suspended as a lawyer because of client billing/drug issues. As to the deserted island question, Callie answers YoYo Ma and Brad Pitt. July 1992, prosecution of Patrick Rooney. Daughter of Judge Cuesta dated Larry Gibbs, one of the jurors in the case. But the daughter was estranged from Judge Cuesta. Kalinda confronts Lana Delaney. Kalinda notes Lamond Bishop is going to kill Kalinda. Peter and Cary talk. Peter says the one thing he prizes more than anything else: loyalty. Peter to Cary: I want you to hand over your cases to Geneva Pine; I'll give you a month's notice. Mr. Peel testifies against Judge Cuesta. But Peel himself made a deal with the prosecutor to testify against Judge Cuesta. The past jury foreman changed her vote to guilty at the last moment. She saw excluded evidence. Lloyd Bullock was an assistant prosecutor at the time. "Playing games with the truth." An attempt is made to implicate Bullock. Line by Judge Cuesta: Do you think there is a hell? Diane: no. Cuesta: Neither do I. But then I see lawyers and I change my mind. Lockhart Gardner offers Cary a job. Cary: People who judge lie the most. Next week is the season finale.

"60 Minutes" on April 22, 2012

The first story was on Lehman Brothers, with Lawrence University graduate Anton Valukas interviewed. The second story was on Christians of the Holy Land. The third story was on emeralds discovered in the bottom of the Gulf. "There's trouble with treasure." On Sept. 15, 2008, Lehman Brothers declared bankruptcy, the largest bankruptcy in history. Anton Valukas was appointed to do an investigation. Two years ago, the report noted there was enough evidence to bring criminal prosecution, but no prosecutions have been done. 26,000 employees lost their jobs. This was the worst economic downfall in 70 years. The job was to determine what actually happened. There were over 34 million documents. Lehman borrowed $44 for every dollar Lehman had in the bank. There were colorable claims that this was a fraud. Overseeing and certifying misleading financial documents. Ernst & Young might also be culpable. "It was a shell game." Repo 105. Matthew Lee was an accountant who raised objections about Repo 105. Nov. 30, 2007 was end of a fiscal year, and Lehman reported profits. Lee later put in writing: "Possibly unethical and unlawful." 6 days after writing letter, Lee was downsized. The SEC has not brought any charges against any Lehman executives. Valukas's job was to set out the facts. During the last 6 months of Lehman's existence, SEC representatives were on site at Lehman. They were getting the material; whether they understood the material is a different question. David Katz of SEC. SEC was there; why did it not do anything at the time? Daily oversight of the balance sheets. It's critical for SEC to go after companies and individuals. There were claims of $370 billion. Ernst & Young is being sued by New York State. Matthew Lee is looking for a job. Bob Simon reported on a story "60 Minutes" decided to do last year on Christians in the Holy Land. The story begins with St. Catherines. Christians make up only 18% of the local population of Bethlehem. In Jerusalem, in 1964, there were 30,000 Christians in the old city; now only 11,000, which is 1.5% of the total population. Christianity has a stamp on its back: made in Palestine. West Bank is like a piece of Swiss cheese. Discussion of the wall. Bethlehem as an open air prison; wall built in 2003. Anastas family. Michael Orrin is Israel's ambassador to the United States, and described the security issues. Christian communities in the West Bank are living under duress. Christians as collateral damage. In 2009, Christian activists published Kairos Palestine. Orrin complained to CBS management (Chairman of CBS News) that the earlier story was a hatchet job. Simon noted to Orrin that Simon had never got a reaction on a story that had not yet been broadcast. Armen Keteyian on "The Trouble with Treasure" on emeralds off of Key West, Florida from an ancient sea wreck. Tom Moses of GA (Gemological Institute of America). Key West as a haven for drifters and dreamers. Jay Miscovich was a real estate guy from Latrobe, PA who was looking for treasure. In the "Whistle Bar," Jay met a driver, who offered Jay a nautical map. Found emeralds nearby. Got investors to invest. David Harand, lawyer on salvage. Boat "Playmate." Three people know the exact coordinates. 4.5 hours into the Gulf from Key West. Emeralds and amethysts. Enormous collection of emeralds. Implications as to title. Emerald rich and cash poor. In January 2012, special testing. Some of the gems had been treated with polish (epoxy) that has only existed for last 50 years. Jay is now 10 million dollars in debt to investors and lawyers.

''When you're accused of plagiarism, it cuts to the core of who you are when you are a creative person. "

Glenn A. Baker, discussing the death of "Men at Work" band member Greg Ham: "When you're accused of plagiarism, it cuts to the core of who you are when you are a creative person. It becomes something that very likely gnaws away at you. That [flute solo] was his legacy." Link:

"Sunday Morning" on April 22, 2012

Charles Osgood introduced the stories for April 22, 2012. Our national anthem mentions "land of the free," but many Americans are behind bars. Martha Teichner does a cover story "Incarceration Nation", starting with a Supreme Court decision about California prisons. Nearly 2.3 million people are behind bars in the U.S. Rita Braver's story on Tiffany's was described second. Third, Anthony Mason on The Black Keys. College dropouts from Akron, Ohio. Fourth, Bill Geist on beach-combing at Sanibel Island. Extreme shelling. Good by to Dick Clark. News headlines: George Zimmerman remains in jail. The French are voting to pick a president. US Senator Hatch forced into primary fight. Charles Colson died at the age of 80. Etan Patz. Soccer Ball on Middleton Island, Alaska. Phil Humber pitched a perfect game for the White Sox, ironically is first major league complete game. Weather: warm and sunny in the west but maybe a noreaster in the east. The Teichner started with the Gadsden County Jail in Florida. Then, overcrowding in California, referencing a Supreme Court decision in May 2011. The crime rate has dropped 40%. The US has 5% of world population but 40% of prisoners. In places like Connecticut, cost is about $50K/prisoner. Overall, more than 63 billion per year spent on incarcerating prisoners. The beginning of the trend for larger prison populations: the war on drugs. Blacks are disproportionately impacted: 3/4 of people in jail for drugs are blacks. 1/3 black men are in prison, on parole. Brian Stevenson argued about sentencing kids. US Senator Jim Webb: if you are a violent career criminal you belong in jail...(but) We can be much more adaptive to non-violent crimes. 15 states in 2011 passed sentencing reform laws. State of Florida is building a re-entry center. At Gadsden County, teaching inmates to look for jobs. California's San Quentin: prisoner university project, including a class on Greek tragedy. One more tool. More than 50% of ex-prisoners will be back behind bars within three years. In New York, between 2000-2010, prison population dropped. Almanac. Atom Bomb Lady. April 22, 1952: nuclear bomb test in Nevada desert televised live. CBS "See it Now" did story. 8 governors were present. Troops were present. Bomb was dropped from a plane. Drink: the Flamingo atom bomb. Film: The Atomic Cafe. (duck and cover). 1963: test ban treaty. 49,000 cases of thyroid cancer created by testing? A diamond necklace from Tiffany's began the story. 1961 film. "To dream about Tiffany." Michael Kowalski, President. The company began 175 years ago. Flagship store built in 1940. Initial store 1837. American Indian inspired loving cup. Even Abraham Lincoln bought sea pearls from Charles Louis Tiffany. No one gets a discount at Tiffany & Company. Blue color favorite of Empress Eugenie (deposed in 1870; sold some of her pieces to Tiffany). Now, 3.6 billion in annual sales. Yellow diamond (1877) considered priceless. 128 carats. Bought for $18,000. Louis Comfort Tiffany known for artistry. Montana Sapphires. Yago Gulch. Orange serpentine from New Jersey ( "don't get enough respect"). In 1885, version of a great seal of the United States, now used on US dollar bills. Tiffany silver costs about $100. Issue of brand dilution. Rubedo: mix of gold, silver, and copper, with the name trademarked. History of product innovation. Challenge of being an innovator: surprising people. Tiffany name synonymous with quality. Lonely Boy by The Black Keys. Anthony Mason does story. Album "El Camino." They sold out Madison Square Garden in 15 minutes. Music used in more than 300 commercials. Dan Auerbach and Patrick Carney on drums. In 2003, offered 200,000 pounds for music for a mayonnaise company. They turned it down. They accepted the next offers. Wearing a tuxedo: "I felt like I was wearing a hot dog casing." Akron's Harvey Firestone High School placed them on Alumni Hall of Fame. Carney: one of three winners of most unique. Got a B in music appreciation. Carney's brother Michael designs album covers. Jim Carney, the father, is a reporter. Chuck Auerbach, father, is an antiques dealer. Campaign finance trial of John Edwards reported by Erin Moriarty. Federal criminal indictment of Johnny Reed Edwards. He is accused of mis-using campaign funds. Hansen Dellinger, former deputy attorney general, notes no other candidate has faced such charges. Usually, selling something in exchange for money. This has not happened here. Andrew Young is chief witness. Andrew Young was given full immunity to testify. John Edwards on Nightline denied he was father. Melanie Sloan of Crew believes case against Edwards should be thrown out. At least 56 federal agents employed in nearly 4 year investigation. Edwards treated for atrial fibrillation. Edwards was offered a plea deal, but turned it down. Pulse: Progress on environment problems since 1970: only 17% said yes. Bill Geist on Sanibel Island. Competitive shellers are Shellebration on Sanibel. 400 species of colorful, artistic specimens. "I broke my husband's leg shelling." Leroy Nightsell. Captain Joey Burnsed. Fighting conch. High-low tide. Alternative approach: just buy shells. David Turecamo on Pierre Cardin. Cardin will be 90 this year. He was commissioned by the Beatles to prepare suits. Last fall, he presented a new collection. I like to continuously prove myself. Party at Maxim's. He was Pietro Cardin, born in Italy. Avril Grahams of Harpers. Love of geometric patterns. Futuristic dabbling with materials, vinyls, PVCs. He worked for Christian Dior. Cardin's first collection was in 1951. Ready-to-wear. In the 1950's, designers catered to the super-rich. This is an elitist profession. In 1959, Cardin sold his collection in a department store. Cardin made millions. Cardin changed the business of fashion. Issue of licensing the Cardin name to others. "Everything is business." If you don't sell your picture, you are no one. "I'm a fancy boy." Pierre Cardin made elegance affordable. Levon Helm died at age 71. Member of "The Band." The Night They Drove Old Dixie Down. Bruce Springsteen: We get used to versions of the thing; Levon is the thing. "The Last Waltz" The Right Stuff. Coal Miner's Daughter. Woodstock, New York. In the winter of 2004: concert in Levon's barn in Woodstock. "Levon's midnight ramble." Heaven decided to give Levon an extra decade. In the whole history of rock n roll, no one had a better encore than Levon. Steve Hartman taking us "On the Road" again, about dominos in Newtown Square, PA. Bob Speca. Piece by Kuralt 29 years ago. "Human Mattress Dominos". 850 people. The whole thing worked in 11 minutes. La Quinta. Bob mentors "after-school" domino club. Dick Clark, Sunday Passage. Died at age 82, 56 years after taking over American Bandstand. The world oldest teenager. On "Person to Person." A common ground of understanding. The Jackson Five. New Year's Eve Countdown. He returned in 2006. American Bandstand Blvd in Philadelphia. Next week: The Beach Boys. Moment of nature. Spiriva Handihaler. On the beach in Galveston Island, Texas. Lots of birds.

Friday, April 20, 2012

Slinging hot dogs

P. Stephen Potter of Gothenburg, Nebraska was featured in the Kuralt/Hartman final story on April 20. It is so important that you don't take yourself seriously. Automation taking jobs. A machine which threw hot dogs ultimately replaced Potter. See

Tuesday, April 17, 2012

NCIS on April 17: "A patent could mean millions."

The topic of thermite (iron oxide and aluminum) came up. The killer here attenuated the reaction. Line: Fire is nature's greatest gift to man.

Thermite test No. 4, with linseed oil as an inhibitor. Line: I'm a sucker for empirical data.

Line: The best salesmen are the best liars.

Line: "A patent [on a more stable thermite] could mean millions."

A motive for the fires: corporate espionage?

Thermite mixed with ammonium phosphate. Fire retardant comprises ammonium phosphate. Bruce Johnson is implicated.

Tony to Jason: for the first time in my life, I made a difference.

kewyord: United Equinox. Watcher Fleet. Aqua Marine . Tony talks about the Final Four being in Baltimore. He was walking getting ready for the game (involving Ohio State). Mary Gardocky. USS Brewer.

Sunday, April 15, 2012

"60 Minutes" on April 15, 1012: remembering Mike Wallace

Steve Kroft hosted a remembrance of Mike Wallace on April 15. Looking back at some of the highlights. Kroft sat down with Mike back in 2006, in the context of Mike's "retirement." Mike with Putin: Corruption is every place in Russia. Kroft to Wallace: I've never seen an interview in which you did not dominate. Wallace: confident in the material I have. When I ask a question, there's a reason. With the leader of China, "father knows best." Wallace identified "Nightbeat" as his best transition. Wallace with labor leader Mike Quill. Abrasive questions. In 1957, Mike with mobster Mickey Cohen. Mobster Jimmy Fratiano in 1981 on "60 Minutes." Mike: try to establish a chemistry of confidentiality. The interviewee thinks: look I'm here and they forget about the cameras. They answer comfortably. Steve to Mike: You ride up like the Lone Ranger, saving the day. Mike's special short hand vocabulary: Come on. Look. Forgive me.

Wallace to John Ehrlichman in 1973. List of crimes. John to Mike: "Is there a question in there, somewhere."

Mike with Charlton Heston. Right wing nut case zealot.

Kroft to Wallace: some people say you're a grandstander. You think you are more important than the story.

Wallace to Ed Bradley: Let's ask the questions that the people in the audience want to hear.

Wallace to Noriega: how much do you make?

Wallace to Louis Farrakhan. Corruption in Nigeria.

Mike did over 800 reports on "60 Minutes." Interview with former Secret Service agent Clint Hill. Mike: you showed bravery and presence of mind. Clint: Mike, I don't care about that. If I could have reacted just a little bit quicker.

Mike interviewed the Reagans. Mike interviewed Eleanor Roosevelt in the 1950s. In 1960s, Mike interviewed MLK, JFK, and Malcolm X. Malcolm X: I'm probably a dead man already. Mike did Yasir Arafat 7 times. Mike with Jose Canseco on steroid use in major league baseball. Roger Clemens. Jack Kevorkian.

Paul Medlowe on 60 Minutes in 1969 about My Lai massacre. "Just one of them things." Thompson and Colborn put a stop to massacre.

Mike hung out with Johnny Carson in 1979. Never mentioned people's drinking problems. Johnny: I don't handle alcohol real well. Mike first met Barbra Streisand in the 1960s. Interview with Shirley Maclain in 1984. With actress Hillary Swenk.

Mike's favorite interview was with Vladimir Horowitz in 1977. Stars and Stripes Forever in 1945. Brilliant, tempermental.

Morley to Mike: time to pack it all in and reflect? Morley: reflection was never Mike's strong suit. Mike to Morley: we are colleagues and competitors. Morley: talked about Myron (Mike) being targeted to be a lawyer. In 1941, Mike was announcer on the Green Hornet. No lawyer for the Wallaces. Mike doing Fluffo. In 1962, Mike's 19 year old son Peter was killed in Greece. Mike did news on CBS News. Mike passed out on a plane. He had a pacemaker which was monitored. Interview with Jeffrey Wigand: a delivery device for nicotine. General William Westmoreland sued Mike Wallace about allegation of falsification of troop strngths. Suicide attempt more than 25 years ago. Morley: you've become a poster boy for treating depression.

Mike about retirement: "I work." Yitzhak Perlman talked to Mike on playing the violin.

A lack of confidence made Mike Wallace work harder. University of Michigan (Ann Arbor), class of 1939. "Mike and Mary Wallace Place." Cheeky kid from Brookline, MA.

CBS Sunday Morning on April 15, 2012

Charles Osgood introduced the stories for April 15, 2012. In this world, nothing is certain but death and taxes. And one should add, fudging on taxes. Rebecca Jarvis does the cover story on tax evasion. "Our Cheating Ways." Mo Rocca does Fenway Park. A diamond is forever. Serena Alschular on Dr. Allan Scott on the invention of the use of botox for wrinkes (10th anniversary). Martha Teichner on the Three Stooges. 100th anniversary of Titanic. Headlines: line of damaging storms. Woodward, Oklahoma. A scandal said to involve Secret Service agents. Bill Plante has the story. Hotel Caribe in Cartagena. Taliban launched attacks in Kabul, and 7 cities in all. Goose-stepping troops celebrating Kim Il Sung. Dick Cheney at Republican convention in Wyoming. Donovan inducted into Rock and Roll Hall of Fame. Weather: thunder showers in central US.

Rebecca Jarvis notes April 17 is just two days away. The first quote: it takes over my life. Hays of Block is interviewed. Procrastination. Many of us lack a clear understanding of the tax code. Home offices. Dependents. The government only collects 85% of the money is owed. 385 billion shortfall in 2006. Think tank called Demos. Douglas Schulman keeps an eye on people who make a lot of money. The reality is: if you make $50,000 as a school teacher, there is little opportunity to cheat. Schulman does point out US has good history of voluntary compliance. 84% said not permissible to cheat on taxes. Nobody wants to be the chump who pays every dime. Jarvis: what's worse: fudging taxes or stealing (shoplifting)? David DeSteno, pscychologist. Example of flipping virtual coin. People flipped coin until got a favorable answer. Issue of moral hypocrites. Francesca Jena tested changing location of signature line. People less likely to cheat if signature line at top of form. David Callahan says IRS needs bigger budget. We have lost $3 billion to tax evasion in last decade. Dishonesty won't be disappearing any time soon. In 1913, first tax code was 27 pages long; now 5300 pages.

Almanac. April 15, 1819. Date of death of Oliver Evans, inventor, who died at age 63. Sketched out design for refrigerator. Jacob Perkins protege patented in 1834 concept of vapor phase refrigeration. Mention of Monitor refrigerator. 1991/1994 horror film, Refrigerator William Perry. Bill Geist story on refrigerator magnets.

Sweet Caroline introduces story on Fenway Park, as it introduces games at Fenway Park. Clips: Home run by Fisk; home run by Bucky Dent. Mets in 1986. In 2004, Red Sox won first World Series since 1918. Little band box of a ball park. 100th anniversary on Friday. Janice Page author of book on Fenway Park. It's both majestic and tiny. Dan Shaunessey went there first in 1961. "Red Sox Nation." Ladder to no where. 37 foot high green monster. Green monster built because of concern of balls breaking windows on Lansdown Street. Metal plates used for keeping score. In 1999, Fenway Park almost destroyed. Larry Laquino is Red Sox President. Fenway is a ball park, not a stadium. Fenway Park, South, in Ft. Myers, Florida (JetBlue Park). Replica of Fenway Park. Jeannie Bone interviewed. Opening Day 1912, faced Yankees, and will face Yankees this Friday.

The 1997 movie Titanic. Michelle Miller does story. Clips from: A Night to Remember (1958). This year, 100 books on Titanic. Museum in Belfast and museum in Southhampton. Pigeon Forge, TN. Survivor: John B. ("Jack") Thayer. An end to the age of innocence. There is something "perfect" about Titanic as a lesson. People wonder: how would we act, if only two hours left to live. Ida and Isidore Strauss. Ida chose to stay with her husband. Paul Kurzman is great grandson of the Strausses. A death which is beautiful. They died as they lived. Jackie Astor-Drexel. Grandmother Madeleine Astor. A Survivor's Tale by Jack Thayer. Stein is a distant relative of Thayer. Comparison to World Trade Center. Last Tuesday, survivors of the Strausses gathered at Macy's. Rabbi from Canton, Ohio (Lee Morton). Possible that her grandmother was beneficiary of Ida Strauss giving up seat in life boat.

Marlon Brando in 1951 playing Stanley Kowalski. Now, a new Streetcar and a new actor, Blair Underwood. Rita Braver does the interview. In 1987, in LA Law. "In Treatment" in 2008. Rules of Engagement, Just Cause. "The Event." "Bad guys are always better to play." Blair grew up in Petersburg, VA. His father is a retired Army colonel. Blair decided to be an actor at age 4/5. Studied acting at Carnegie-Mellon. Walk on role in Cosby show. At age 21, role in LA Law. Young, dumb, making money, and being single. Choosing the right person. Dr. Robert Leeds, Miranda's love interest in Sex and the City. Blair's very good looks. When people perceive you in a certain way, it's a good thing.

Brad Pitt and Angelina Jolie announced they are getting married. Lee Cowan on Sunday Morning had asked the question. "We will someday. That's a great idea." Ring spotted on Wednesday. And, Lee Cowan just got married.

Clip from Sex and the City on Botox. FDA decision 10 years ago. Portrait of the inventor. Dr. Allan Scott. You never know what's going to happen when you do these things. Cure for crossed eyes. I wasn't tuned in to the practical aspect. Accidental discovery that Botox made wrinkles disappear. Drug paralyzes facial muscles. Botulism. Fight the looks of aging. Botox in Hollywood has become the drug of choice. It's now the number 1 cosmetic treatment: 6 million cases last year. Dr. Mitch Chaisson: everything in moderation is good. Example of Jenny McCarthy. Frozen face. The key is minimal. Kate Winslet is against the procedure. Artifice and trickery. "Bro-tox". Last year, 300,000 men. Laura Daugherty: it's about removing the pain. Life changing. Botox made her more functional. Migraine, severe muscle stiffening, urinary incontinence.
Scott was not a good business person. Got $8 million from Allergan for rights.

Three Stooges re-created. Story by Martha Teichner. Moe Howard, father of Paul Howard. Irving and Jack were older brothers of Mo, were business man. Women Haters in 1934. Larry Fine. There were 190 shorts for Columbia Pictures. Physical humor ages better, especially with sound effects. Men in Black was nominated for an Oscar. Moronica. Stooges made fun of Hitler, before Chaplin did. Son Paul said Mo was different in real life. Moe was like a father to Curley. The Stooges got a 60,000 annual salary, for all three of them. The Stooges got NO royalties. The "huge Stooge" fans; stooge-dom. Producers had "spring training" teaching the Stooges how to hit. Teichner put together a focus group. Disclaimer at end of film about fake tools, etc.

Opinion by Faith Staley. Naming a baby. Nomen est omen. Paper by Gebauer on influence of names on career. Name regret is on the rise. Jaden and Sophie. Now, 100,000 baby names. Trends are for fashion week. The name of Faith's baby: Begins with A and has three syllables. Initials = A.C. S.-S.

Osgood talks about Kuralt's "On the Road." Now Steve Hartman follows in Kuralt's footsteps. First story is on Bobby Hinds. 65 big plastic beads, you have a good jump rope. Millionaire practically overnight. SADLY, this story was already on. LifeLine now doing rubber tubing. Handle contraption: interactive wireless device. Quantify exercise. Exercise as a video game. Hartman stumbled on to holy grail.

Preview on Face the Nation. Congressman Issa.

Next week on Sunday Morning. Sunday breakfast at Tiffany's.

Moment of Nature. Spiriva HandiHaler. Zion National Park in Utah. Hint of springtime.

Saturday, April 14, 2012

"Chinese companies should watch out"

See the article China's smartphone firms warned of patent disputes.

Friday, April 13, 2012

Dateline does story of 1994 McLaughlin murder

Dateline on April 13, 2012 presented the story of the murder of William McLaughlin in 1994. Yes, patents were involved, which patents generated the money that created the motive.

Note US Patent No. 5,034,135, titled Blood fractionation system and method and issued July 23, 1991, gives as sole inventor Halbert Fischel, with assignee William F. McLaughlin. See also 5,376,263, 5,464,534, and 5,783,085 (the last assigned to the Estate of William F. McLaughlin ).

For early discussion of the story Newport Entrepreneur's Death Baffles Community : Crime: Police are investigating victim's dealings. Neighbors believe the shooting was not a random act. The account gives some idea of the money involved: royalties from HemaScience Laboratories Inc., the company that merged with Baxter. Court records show he was earning $100,000 a month.

“The Navy has always led the nation in transforming the way we use energy"

Ray Mabus, former Mississippi governor and current Secretary of the Navy, on biofuel purchases by the Navy:

“The Navy has always led the nation in transforming the way we use energy. This is not work we can afford to put off to another day.”

Back during the Wright Brothers patent wars, the Navy backed Glenn Curtiss against the Wright Brothers. It was the Wright Brothers who developed novel thinking about screws (propellors). Of the USS Arizona, from wikipedia: Four coal-fired American dreadnoughts were eventually sent across the Atlantic in December 1917 as Battleship Division Nine, but Arizona was not among them, as it was easier to obtain coal than oil in the United Kingdom.

Elsewhere in the article by Hembree Brandon :

Critics’ caviling aside, all progress comes with cost. Computers once were room-size and cost millions; now they’re WalMart loss-leaders. Cell phones started out brick size and cost a fortune; now they’re the most ubiquitous devices on the planet.

IPBiz notes that some things do scale. Some things do not. About 100 years ago, Thomas Edison was going to solve the battery problem for electric cars.

Thursday, April 12, 2012

Plus ca change, plus c'est la meme chose

A WSJ article by ASHBY JONES and JESSICA E. VASCELLARO on patent wars about "slide to unlock" ends with a quote:

"When you have companies spending hundreds of millions in litigation, something is seriously wrong with our patent system," said Michael Carrier, a professor at Rutgers School of Law in Camden, N.J. "You've got to wonder whether it's doing more harm than good," he added.

In the arena of biofuels, Cindy Zimmerman writes of the patent war between Butamax and Gevo:

Granted, business is business, but if these two companies are truly interested in furthering the energy independence of this country by taking advanced biofuels to the next level, they would get together and collaborate to commercialize this fuel. Until then, hold the press releases unless there is a technical breakthrough or big news that will advance biofuels. That would be interesting.

Quotes such as these are nothing new. The interested person should go back 100 years and read press reports of the patent wars involving the Wright Brothers. And, note George Bernard Shaw's 'Revolutionist's Handbook' (1903). Same old, same old.

The Dae Sung Moon matter in South Korea

There are allegations of plagiarism against athlete/politician/academic Dae Sung Moon.

Cross-reference: Kookmin University

Honeywell, Nest, and thermostats

See the post by STEVE LOHR titled: Apple’s Former Patent Chief Joins Nest Labs . There is reference to a patent infringement suit brought by Honeywell against Nest in February 2012.

Becton Dickinson loses CAFC appeal on trademark on design of a closure cap for blood collection tubes

As to analysis

The Board considered the four factors from In re Morton-Norwich Prods., Inc., 671 F.2d 1331 (CCPA 1982), in finding that the cap design, considered in its entirety, is functional. The Board found that the first factor–the existence of a utility patent (e.g., the ’446 patent) disclosing the utilitarian advantages of the design sought to be registered–weighed in favor of finding the cap design functional. The Board found that the ’446 patent ex- plained the utilitarian advantages of at least two prominent features of the cap design, namely, the circular opening and the ribs. Board Opinion, 2010 WL 3164746, at *4-5.

The second factor—advertising by the applicant that touts the utilitarian advantages of the design—also weighed in favor of a functionality finding. The Board agreed with the examining attorney that several parts of BD’s advertising “extol the utilitarian advantages of several design features of the proposed mark,” including (1) the ridges on the side of the cap that allow for a more secure grip, (2) the flanged lip at the bottom that inhibits the handler’s ability to roll their thumb to pop off the cap, thereby reducing the risk of splattering, and (3) the hooded feature of the cap whereby the bottom of the cap extends over the top of the tube and thus prevents the user’s gloves from getting pinched between the stopper and tube when closing the tube. Id. at *6.

Next, the Board considered the third factor, assessing whether the cap design results from a comparatively simple or inexpensive method of manufacture. With little argument or evidence on this factor, the Board found that it did not favor a finding of functionality. Id. Finally, the Board considered the fourth factor, regarding the avail- ability of alternative designs, and found that “the record does not establish that there are alternative designs for collection tube closure caps.” The Board considered BD’s evidence: website printouts featuring three third-party collection tube products. The Board found one product did not perform the same function as BD’s goods and there- fore was not relevant. Regarding the two remaining third-party products, the Board found them difficult to characterize as alternative designs because they shared the same utilitarian features as BD’s cap design, includ- ing ribs on the side to allow for a better grip and an opening on the top, rather than discernible contrasting features. Id. at *7.

The CAFC noted:

The functionality of a proposed mark is a question of fact. In re Bose Corp., 476 F.3d 1331, 1334 (Fed. Cir. 2007); Valu Eng’g, Inc. v. Rexnord Corp., 278 F.3d 1268, 1273 (Fed. Cir. 2002); Morton-Norwich, 671 F.2d at 1340. Likewise, distinctiveness and acquired distinctiveness are questions of fact. In re Slokevage, 441 F.3d 957, 959 (Fed. Cir. 2006); In re Loew’s Theaters, Inc., 769 F.2d 764, 769 (Fed. Cir. 1985).
Legal conclusions of the Board are reviewed de novo, but the factual findings of the Board are upheld unless they are unsupported by substantial evidence. In re Pacer Tech., 338 F.3d 1348, 1349 (Fed. Cir. 2003). Evidence is substantial if a “reasonable person might find that the evidentiary record supports the agency’s conclusion.” On- Line Careline, Inc. v. Am. Online, Inc., 229 F.3d 1080, 1085 (Fed. Cir. 2000). The possibility that two inconsis- tent conclusions may be drawn from the evidence does not preclude a Board finding from being supported by sub- stantial evidence. Id. at 1086. Rather, where contradictory conclusions may reasonably be drawn from the evidence, the decision of the Board favoring one conclu- sion over the other is the type of finding that must be sustained as supported by substantial evidence. In re Bayer Aktiengesellschaft, 488 F.3d 960, 970 (Fed. Cir. 2007); In re Jolley, 308 F.3d 1317, 1329 (Fed. Cir. 2002).

Of functionality:

De facto functionality simply means that a design has a function, like the closure cap in this case. Such functionality is irrelevant to the question of whether a mark as a whole is functional so as to be ineligible for trademark protection. De jure functionality “means that the product is in its particular shape because it works better in this shape.” Id. Further, as the Board recognized in this case, Textron instructs that where a mark is com- posed of functional and non-functional features, whether “an overall design is functional should be based on the superiority of the design as a whole, rather than on whether each design feature is ‘useful’ or ‘serves a utili- tarian purpose.’” 753 F.2d at 1026. Textron cited as an example the Coca-Cola® bottle, noting that the bottle’s significant overall non-functional shape would not lose trademark protection simply because “the shape of an insignificant element of the design, such as the lip of the bottle, is arguably functional.” Id. at 1027.

Of "competent evidence"

To support a functionality rejection in proceedings be- fore the Board, the PTO examining attorney must make a prima facie case of functionality, which if established must be rebutted by “competent evidence.” In re Teledyne Indus., 696 F.2d 968, 971 (Fed. Cir. 1982). Given the burden of proof in other areas of trademark law and given the context here, we understand the “competent evidence” standard as requiring proof by preponderant evidence. See, e.g., Yamaha Int’l Corp. v. Hoshino Gakki Co, 840 F.2d 1572, 1576 (Fed. Cir. 1988) (in an inter partes oppo- sition before the Board, the opposer has the initial burden to present prima facie evidence that the mark has not acquired distinctiveness, and then burden shifts to the applicant to prove acquired distinctiveness by a prepon- derance of the evidence); Cold War Museum, Inc. v. Cold War Air Museum, Inc., 586 F.3d 1352, 1356 (Fed. Cir. 2009) (petitioner in a cancellation proceeding bears the burden of proof and must overcome the registration’s presumption of validity by a preponderance of the evidence).

Bottom line

Because the Board committed no legal error in its as- sessment of the functionality of BD’s proposed mark, and because substantial evidence supports the Board’s find- ings of fact under the Morton-Norwich factors, we affirm the final decision of the Board.

Judge Linn dissented. He noted

Addressing the third Morton-Norwich factor, the Board and the majority discounted the most probative evidence submitted in this case—the design patents and evidence of alternative designs. Because “the effect upon competition is really the crux of the matter, it is, of course, significant that there are other alternatives avail- able.” Morton-Norwich, 671 F.2d at 1341 (internal quota- tion omitted).
The three design patents noted by the majority are not identical to the specific design for which trademark protection is sought. Maj. Op. at 13. However, the fact that three distinct design patents were granted on simi- lar, but not identical, designs performing the same overall function as the current design at issue suggests that the current design is not “made in the form it must be made if it is to accomplish its purpose.” Morton-Norwich, 671 F.2d at 1339 (internal citation omitted).

Wednesday, April 11, 2012

O'Malley's dissent in Memorylink

As in Byrne, Judge O'Malley noted a jurisdictional issue: This court’s routine extension of jurisdiction to purely state-law malpractice claims is improper and conflicts with governing Supreme Court precedent.

The claim at issue was legal malpractice:

Here, Memorylink alleged a single count of legal malpractice, under Illinois law, based on the defendants’ alleged negligent failure to identify the proper inventors in a patent application. The district court dismissed the complaint as time-barred under the relevant Illinois statutes of limitations and repose, and Memorylink appealed to this court. Appellees moved to transfer the appeal to the Seventh Circuit on grounds that the cause of action arose under state, not federal patent law. We denied that motion on the mistaken belief that Memorylink’s complaint “sought to correct the inventorship” of the patent at issue. Memorylink Corp. v. Motorola, Inc. 419 Fed.App’x. 991, 992 (Fed. Cir. 2011). That ruling was expressly “without prejudice” to Appellees’ right to raise the issue again to the merits panel. Id. Appellees, thereafter, continued to press their jurisdictional objection in their merits brief.

Footnote 1 raises jurisdiction issues:

The fact that defendants—unsurprisingly, given their successful appeal in this court—now consent to our jurisdiction is irrelevant. See, e.g., Coastal Corp. v. United States, 713 F.2d 728, 730 (Fed. Cir. 1983) (“Juris- diction of a tribunal, however, cannot be conferred by waiver or acquiescence. A court always is obligated to consider not only its own jurisdiction but that of the tribunal from which an appeal is taken.”) (citing Mans- field, Coldwater & Lake Mich. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)).

Of Rule 36:

By resorting to Rule 36, the panel necessarily resolved Appellee’s jurisdictional challenge— rejecting it without discussion.
Though the panel’s use of Rule 36 to resolve this mat- ter, including the question of our subject matter jurisdic- tion over it, is understandable given the extent and breadth of our case law on the topic,2 it should not insu- late the decision from en banc review. A Rule 36 judg- ment remains a judgment of this court and parties should not be discouraged from asking the entire court to assess the propriety of those judgments where our subject matter jurisdiction is in question.
As discussed at length in my dissent from the en banc denial in Byrne, the jurisdictional predicate upon which the exercise of appellate review in this court rests is wrong.


While Rule 36 may provide an efficient tool through which to dispose of appeals that merely retread familiar ground, it does not relieve us of our obligation to deter- mine whether that ground needs re-tilling. It is inappro- priate to allow our reluctance to consider Rule 36 cases en banc to shield important jurisdictional decisions from review, particularly where, as here, non-frivolous chal- lenges to our subject matter jurisdiction have been lodged.

DoJ brings antitrust action against Apple

Bloomberg noted issues behind the DoJ action:

When Apple came out with the iPad in 2010, it let publishers set their own prices for e-books as long as it got a 30 percent cut and the publishers agreed to offer their lowest prices through Apple. This agency model overtook Amazon’s practice of buying books at a discount from publishers and then setting its own price for e-reader devices.

from Cutline :

According to the complaint, filed by the U.S. Department of Justice, at least five publishers—Simon & Schuster, HarperCollins, Hachette, Penguin and Macmillan—conspired with Apple to fix prices for e-books ahead of the 2010 launch of the iPad tablet and iBookstore, forcing Amazon to raise prices for e-books on the rival Kindle.

Starboard Value LP on the value of AOL's intellectual property

From a letter by Jeffrey C. Smith of Starboard Value LP on April 10:

We have been consistent in our view that AOL’s portfolio of intellectual property is non-core, extremely valuable, and should be monetized. On February 24, 2012, we sent a letter urging you to explore actions to monetize and unlock the value of AOL’s portfolio of more than 800 patents. We noted our belief that AOL’s patent portfolio could produce in excess of $1 billion of licensing income if appropriately harvested and monetized. On March 30, 2012, we wrote you a follow-up letter stressing that the Company should explore the monetization of the patent portfolio with a sense of urgency, and should carefully assess any asset sale or divestiture to ensure the most tax-efficient outcome.

We were pleased to read yesterday’s announcement that AOL has entered into a definitive agreement to sell more than 800 of its patents and their related patent applications to Microsoft Corporation (“Microsoft”) for aggregate proceeds of $1.056 billion in cash in a tax efficient manner. The Company will also grant Microsoft a non-exclusive license to its retained portfolio of more than 300 patents and patent applications covering categories including advertising, search, social networking, content generation/management and mapping, among others. We commend management and the Board for taking this meaningful first step in unlocking value for AOL shareholders.

Possible plagiarism issue at University of Alaska Southeast

Dean of Students Jessie L. Grant of University of Alaska Southeast has resigned, giving no specific reason. The Whalesong student newspaper had presented evidence of possible plagiarism by Grant in an article published in Capital City Weekly.

Of the issue of whether the University of Alaska Southeast has an obligation to inform future employers of the issue, there was a quote from Chancellor John Pugh :

“From our viewpoint, and from our attorney’s view point, we do not have any responsibility to any future employer.”

Tuesday, April 10, 2012

"The Missionary Position"

The episode of NCIS titled "The Missionary Position" begins with Marine Larrabee falling from the sky, dead. He has been shot. He has a connection to Chaplain Teresa Wade.

Monique Lisson (Ziva's former mentor) contacts Ziva about Chaplain Teresa Wade, who may be missing in Colombia. Courage Mission International gives aid to people in Colombia. The Lazaro Drug Cartel is in the area and does not like strangers. Ziva describes Monique as the "big sister I never I had." Line: like yogurt and garlic. Line: more monolingual.

Doctor Samantha Ryan makes an appearance.

In Colombia, line "better safe than spoiled" to describe the primitive hotel. Chaplain Maria Castro accompanies Ziva and Tony.

Manny aka "Javier Ramos" says $50,000 to do a run out of Cartagena. The odd thing is "Javier" is bringing things back in coolers, with tubes.

Tony: Why are you not in Provence, growing lavender, Monique? Then, a drive-by shooting disrupts a meeting of Monique, Ziva, Maria, and Tony.

The Lazaro cartel uses the AK-47 (Zephyr), of the type that killed Larrabee.

Monique tells Ziva to go home with Tony, and accept this as a case you may not solve.

Steven Wheeler and Constance Mazni, who guided Teresa Wade into the mountains of Colombia, are not missionaries, but rather are CIA, Ryan tells Gibbs that the vaccination program allows the CIA to get blood, thereby DNA. The DNA information is used to track the cartel members. "Just like with bin Laden."

Wade is rescued.

The episode ends with Ryan and Gibbs together.

CAFC: Norris v. SEC. Emails to Mark Cuban.

The outcome:

Jeffrey B. Norris (“Norris”) petitions for review of an arbitrator’s decision affirming his removal from his position as a Trial Attorney with the Securities and Exchange Commission (“SEC”). U.S. Sec. & Exch. Comm’n v. Nat’l Treasury Emps. Union Chapter 293, No. SEC-AR-09-005 (Apr. 19, 2011) (Winograd, Arb.) (“Arbitration Decision”). Because we hold that the arbitrator erroneously failed to consider new evidence bearing upon the reasonableness of Norris’s removal, we vacate and remand.

From the background:

Norris served as a Trial Attorney with the SEC from February 23, 1992, until he was removed on August 28, 2009. Before the events leading to his removal, discipline was initiated against Norris for exercising poor judgment and misuse of government email on two separate occasions. (...) from March to May 2007, Norris exchanged a series of antagonistic emails from his SEC email account, and in which he identified himself as SEC trial counsel, with businessman Mark Cuban, owner of the Dallas Mavericks professional basketball team.

Vermont Yankee appears in footnote 4:

See, e.g., Vt. Yankee Nuclear Power Corp. v. Natu- ral Res. Def. Council, Inc., 435 U.S. 519, 555 (1978) (“[T]he role of a court in reviewing the sufficiency of an agency’s consideration of environmental factors is a limited one, limited both by the time at which the decision was made and by the statute mandating review.” (empha- sis added)); Co-Steel Raritan, Inc. v. Int’l Trade Comm’n, 357 F.3d 1294, 1316 (Fed. Cir. 2004) (“[I]f litigants could demand rehearing as a matter of law because of new circumstances, new trends or new facts, ‘there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening.’” (quoting Vt. Yankee, 435 U.S. at 554-55)).

The crux of this matter:

In this case, the arbitrator erred in holding that “post- removal . . . good conduct is not relevant to the issue before the arbitrator.” Arbitration Decision, slip op. at 57 n.17. In assessing the reasonableness of the penalty imposed, the arbitrator was required to consider post- removal evidence that was brought to his attention. On remand, the arbitrator should consider the post-removal evidence submitted by Norris in evaluating the relevant Douglas factors. We express no opinion as to the weight to be given such mitigating evidence.

IBMs US 8,138,882: Securing premises using surfaced-based computing technology

From the specification of US 8,138,882:

Premises security systems, such as systems used in homes and commercial locations are primarily designed to prevent intrusion or burglaries. Components, such as photo-infrared motion sensors, ultrasonic detectors, microwave detectors, photo-electric beams, glass break detectors are commonly used to detect when someone enters, or attempts to enter, a premises and the system is "on," or "armed." When the intrusion detection system is armed and intrusion is detected, actions can be performed such as sounding an audible alarm, flashing emergency lights, and contacting public safety officials via telephone. Traditional systems, however, are either "on" or "off." When "on" an authorized person, such as the homeowner, can trip the alarm system if they fail to disarm the alarm before entering. This causes an abundance of "false alarms" that are annoying to neighbors and waste valuable public safety resources investigating such false alarms.

It has been discovered that the aforementioned challenges are resolved using an approach that uses an electronic multi-touch floor covering that has numerous sensors to identify shapes. The electronic multi-touch floor covering identifies a shape of an object that is in contact with the surface of the electronic multi-touch floor covering. An entity record is then retrieved from a data store, such as a database, with the retrieved entity record corresponding to the identified shape. Actions are then retrieved from a second data store with the actions corresponding to the retrieved entity record. The retrieved actions are then executed by the computer system.

A comment to the Daily Tar Heel on plagiarism

The following is a comment made to the Daily Tar Heel made by one Tarh33l, related to a proposed teaching module about plagiarism at UNC :

I think most cases of plagiarism are obvious: you either copied someone else’s work and tried to pass it off as your own, or you didn’t. For specific assignments, professors would need to specify to what degree of collaboration is acceptable. These expectations vary from assignment to assignment and class to class. Also, it should also be up to the student to be accountable. We should be intelligent enough to use common sense and sound judgment when entering a POTENTIALLY dicey situation. I don’t think the Honor Court just slaps people with plagiarism violations for fun. If you haven’t figured out what plagiarism GENERALLY is by now, then I am not sure you are a strong enough student or have a sufficient moral system to be here.

The commenter Tarh33l is right, and various defenses about "not knowing" about the impropriety of plagiarism, as in the Poshard matter, have always been a bit silly.

Re-writing history

Craig Silverman discussed copying done by Josh Linkner of material originated by Chris Dixon.

There was a parenthetical comment in the Silverman piece about the later, corrected post by Linkner and FastCompany:

(Unfortunately, they didn’t add an editor’s note acknowledging that the original version included plagiarized material…)

When Lexis corrects a previously published judicial decision, Lexis does not add an editor's note stating that there was an earlier decision saying something else. The previously published version "ceases to exist." Imagine how that sort of thing plays out in the world of prior art.

Returning to the Linkner copying, here is what Linkner had to say:

Hi Chris. Josh Linkner here, the author of this piece @ Fast Company. I owe you a HUGE apology!! A friend of mine sent me that excerpt and I had no idea it was yours or anyone else’s so I didn’t attribute it when I wrote my post. As an author, VC, and entrepreneur I hold myself to the highest standards and I’m deeply sorry this happened. Will correct and cite you ASAP. Again, honest mistake and I’m sorry it happened.

So, copying material provided by a third party is supposed to "wash away" the obligation to cite the originating party?

Monday, April 09, 2012

CAFC addresses discovery of settlement documents

The bottom line in the case:

Thus, the district court did not clearly abuse its discretion in ordering production of the settlement negotiation documents.

Within the case:

As a matter of fairness MSTG cannot at one and the same time have its expert rely on information about the settlement negotiations and deny discovery as to those same negotiations. See In re Pioneer Hi-Bred Int’l, Inc., 238 F.3d 1370, 1374-76 (Fed. Cir. 2001).

Within the case:

This situation is similar to that in University of Pennsylvania, 493 U.S. 182, involving a Title VII suit against a university claiming bias in a tenure decision. The univer- sity asserted that a new privilege should be recognized under Rule 501 covering confidential peer review materials, that is, confidential documents in a professor’s ten- ure-review file such as evaluations made by other professors and documents reflecting the internal delibera- tions of the tenure committee. The Supreme Court re- jected that privilege, placing significant emphasis on the fact that in extending Title VII to educational institutions and providing for broad EEOC subpoena powers, Con- gress did not see fit to create a privilege for peer review documents.

Intuit prevails over Noah at CAFC

The conclusion:

Computer-implemented means-plus-function claims are indefinite unless the specification discloses an algo- rithm to perform the function associated with the limita- tion. When the specification discloses an algorithm that only accomplishes one of multiple identifiable functions performed by a means-plus-function limitation, the speci- fication is treated as if it disclosed no algorithm. Because the ’435 patent’s specification discloses an algorithm for performing only one of the functions associated with the “access means” limitation, the limitation is indefinite. All of the asserted claims contain this limitation; the asserted claims are, therefore, invalid as indefinite.

with the indefiniteness finding affirming the special master:

The special master concluded that the “access means” limitation was indefinite, agreeing with Intuit that the specification failed to disclose an algorithm by which the financial accounting computer was programmed to perform the limitation’s function. Claim Construction R&R at 42–47.

**Of Intuit's argument of waiver:

“[P]resenting proposed claim constructions which al- ter claim scope for the first time on appeal invokes the doctrine of waiver as to the new claim constructions.” NTP, Inc. v. Research In Motion, Ltd., 418 F.3d 1282, 1296 (Fed. Cir. 2005) (citations omitted). Intuit argues that Noah’s contention that the structure used to perform the function associated with the “access means” limitation “includes an algorithm by which a passcode is issued to a user or agent, the passcode is entered by a user or agent, and the passcode is validated, and equivalents thereof” is new on appeal. Appellee’s Br. 18–19. Accordingly, Intuit asserts that Noah waived this argument. We disagree.

**Of indefiniteness

Whether a claim complies with the definiteness re- quirement of 35 U.S.C. § 112 ¶ 2 is a matter of claim construction, which we review de novo.7 S3 Inc. v. nVIDIA Corp., 259 F.3d 1364, 1367 (Fed. Cir. 2001) (citation omitted). Similarly, “[a] determination that a patent claim is invalid for failure to meet the definiteness requirement of 35 U.S.C § 112, paragraph 2, is a legal conclusion . . . that we review de novo.” Intellectual Prop. Dev., Inc. v. UA-Columbia Cablevision of Westchester, Inc., 336 F.3d 1308, 1318 (Fed. Cir. 2003) (internal quotation omitted). Here, the disputed “access means” limitation qualifies as a means-plus-function limitation under 35 U.S.C. § 112 ¶ 6.

The legal analysis:

Construction of a means-plus-function limitation in- cludes two steps. “First, the court must determine the claimed function. Second, the court must identify the corresponding structure in the written description of the patent that performs the function.” Applied Med. Res. Corp. v. U.S. Surgical Corp., 448 F.3d 1324, 1332 (Fed. Cir. 2006) (internal citations omitted). On appeal, neither party disputes the function performed by the access means, so the inquiry on appeal is whether the specifica- tion adequately discloses a corresponding structure that performs the function associated with the “access means” limitation.

Aristocrat is cited:

In cases such as this one, involving a special purpose computer-implemented means-plus-function limitation, “this court has consistently required that the structure disclosed in the specification be more than simply a general purpose computer or microprocessor.” Aristocrat Techs. Austl. Pty Ltd. v. Int’l Game Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008).


The specifi- cation can express the algorithm “in any understandable terms including as a mathematical formula, in prose, or as a flow chart, or in any other manner that provides sufficient structure.” Finisar Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1340 (Fed. Cir. 2008) (internal citation omitted). Simply disclosing software, however, “without providing some detail about the means to accomplish the function[,] is not enough.” Id. at 1340–41 (citation omit- ted).


First, cases in which the specification discloses no algorithm; and second, cases in which the specification does disclose an algorithm but a defendant contends that disclosure is inadequate. Com- pare Blackboard, Inc. v. Desire2Learn Inc., 574 F.3d 1371, 1383–85 (Fed. Cir. 2009) (no algorithm) with WMS Gam- ing, 184 F.3d at 1349 (algorithm).

AOL agrees to sell over 800 patents to Microsoft

On April 9, 2012, AOL agreed to sell 800 patents and related applications, AND a nonexclusive license to its remaining portfolio of about 300 patents, to Microsoft, for over 1 billion dollars. Also, the deal includes the sale of an AOL unit on which AOL expects to record a capital loss for tax purposes. Furthermore, if the deal falls through there is a termination fee of around 211 million, according to Fox news.

Sunday, April 08, 2012

April 8: Horatio, we have a situation

The initial video scene to CSI: Miami on April 8 [ “Habeas Corpse"] ends with Ryan Wolfe saying: "Horatio, we have a situation." Wolf is in a room with a dead ASA Josh Avery. The CSIs clear Ryan, with Walter saying to Ryan "the next time you decide to go rogue, give a call for backup."

Somebody put spyware in a cellphone of Avery. And, Avery's landline was bugged. But the landline bug was by Avery's CSI girlfriend, Samantha Owens. This is the event that causes Horatio to swipe things off the table.

Tape from the landline tap shows Darren Vogel was giving instructions to Josh Avery.

The CSIs inspect Josh Avery's boat and find a load of meth. A sample is inspected in the lab for a chemical signature to identify the source. Sodium metal [sic !] and red phosphorous. Eddie Coster is implicated as the chemist making the meth. Line: a human tiki torch. Narco confiscated over 40 kilos of meth when Coster was arrested. But something is moving in the bag in evidence. The "dope" is actually flour, and the movement was a weevil. Looking at the log, Walter and Ryan find that Samantha was working evidence when the flour/dope was logged.

Eddie Coster had kidnapped Samantha and Darren. Samantha is driving and causes the car to flip off an overpass. Samantha is alive, but Ryan finds something in her shoe. Shard of glass from the wine bottle. Samantha was in the room with Ryan and Josh.
Ryan to Samantha: What did you do? Ryan: You left me there.

The episode ends with the team having a get-together. Could serve as a series-finale.

"60 Minutes" on April 8, 2012

Morley Safer described Mike Wallace as a one man truth squad. Next Sunday, "60 Minutes" will broadcast an extended tribute to Mike Wallace.

The first news story (titled an Imperfect Union, done by Steve Kroft) was on the economic situation in Europe, particularly as between Germany and Greece. 17 of 27 members of the EU use the Euro. Louise Cooper says the European holiday is over. "We are living beyond our means." Ten European countries are in recession. Three French banks were in trouble. Ireland, Portugal, Spain, and Italy are in trouble. Christine Lagarde of the IMF is part of the process. The divide exists between northern Europeans and southern Europeans. It did not matter much until 2008. Greece with 11 million people owed half a trillion dollars. Nobody knows what a messy Greek default will do. Germany is the check-writer for the EU. Greece is in a coma. The Greek unemployment rate is 21%. Greece now is like the US between 1929-1932. On Feb. 12, 80,000 Greeks took to the streets to protest. When you get into debt, your creditors take over. 300,000 Greeks died of starvation under the German occupation during World War II. One comment: the US is doing terribly well at the moment. But, if the situation worsens, America will not escape.

The second story was on polo, a team sport that is more than 2000 years old. The story is a re-cycle. Nacho is the face of Ralph Lauren.

The third story was done by Bob Simon who discussed music in Central Africa’s Democratic Republic of Congo. Armand Diangienda formed the Kimbanguist Symphony Orchestra, the only symphony orchestra in Central Africa and the only all-black orchestra in the world.

CBS Sunday Morning on Easter 2012

Charles Osgood did the news for Easter Sunday 2012. The lead event was the arrest of two individuals, Jake England and Alvin Watts, in the murders of three in Tulsa, OK. The 40,000 workers of AT&T are still working. 100,000 attend Easter Mass in the Vatican. Concerns by people at USGS over lesions found in polar bears near Beaufort Sea. Peter Hansen leads Masters. Weather: clear skies over US.

Thomas de Wesselow, art historian, is interviewed by Martha Teichner on the subject of the Shroud of Turin. The last time the Shroud was publicly displayed was 2010. Radiocarbon dating placed the age at 1260 to 1390 AD. Thomas asserts a provocative theory: Each supposed sighting of the Christ was actually a sighting of the shroud. The history of the Shroud is well-chronicled. The shroud went to Damascus. Then Edessa, Constantinople.. Later, Lirey, France in 1355. In Turin, since 1578. Harold W. Attridge of Yale Divinity School analyzes the de Wesselow theory and book. In 1898, Pia photographed the shroud. In 1978, the Shroud of Turin Research Project (STRP). Thomas asserts chemical reaction. Like crust of bread going brown in oven. Teichner asks: what does this do to the Resurrection? Harold W. Attridge gives further points.

Almanac. April 8, 1986. Voters of Carmel, CA elect Clint Eastwood mayer. Frogs Breath Inn. Do I feel lucky?

Brooklyn Heights row house was location for birth of book The Phantom Tollbooth. Milo. Author: Norman Juster and Jules Pfeiffer. Foothills of Confusion. Short Shrift. The Spelling Bee. The Armies of Wisdom mounted on cats? Dictionopolis. Quote: Fantasy is bad for children because it disorients them. Make a connection between yourself and some anonymous readers. "Things to invent and make."

What was for dinner at the Last Supper? from the Fast Draw. Craig Wansink. In time, paintings depicted larger and larger portions of food. Lamb, roast pig but the Bible only describes bread and wine. Life imitating art?

Clip of Billy Graham in 1957 in Madison Square Garden. Byron Pitts interviews son of Billy Graham, Franklin. Old time fiery and brimstone in the cool age of television. Billy Graham is now 93. Right wing zealot? Faithful? Presidential inauguration in 2001, mention of Jesus. Then after 9/11, labelled Islam wicked. Issue of Obama being a Christian. The way Franklin executes his faith has brought Franklin praise. The son is a cowboy boots and blue jeans man. Pitts: you have been picking fights since high school. Grew up in mountains of North Carolina. Franklin was thrown out of high school and college. At age 22, Billy gave him a choice: there's no half way; accept Jesus Christ or you don't. Ruth Bell Graham. View of Franklin's office reveals guns.
The greatest work I can do: how many people's lives I can impact. Christ died for the whole world. The Bible is the word of God, and every word is true, cover to cover.

In the last week, three artists died. Ferdinand Alexander Porsche, who designed the 911 sports car in the 1960s, died last week. Tim Marshall enhanced the amplifier. A louder and fuzzier sound wanted by Peter Townsend. Spinal Tap. Numbers go to eleven. Thomas Kincaid died on Friday. 60 Minutes interview in 2001. Million seller art. Paintings in 10 million homes.

David Terracama on traveling to Lourdes. David described a friend who took his mother to Lourdes. In France, only Paris has more hotels than Lourdes. David gives clips of various visitors to Lourdes. Marlene Watkins. Bernadette of Lourdes. 1858. Waters stated to have remarkable healing powers. The church has recognized only 67 cases of true miracles. Think about the difficulties of bringing a handicapped person to Lourdes. Dan Ravetto, a volunteer. The North American Lourdes Volunteers.

Lee Cowan does Sunday Profile on Jim Abbott. Baseball does not discriminate. "I was born this way." University of Michigan. Number 25 at Yankee Stadium. Spent his life teeing up expectations. "Dad, do you like your little hand." Abbott's book "Imperfect." Mike and Kathy Abbott. [The hand] could not be an excuse. He did not want pity. He just wanted to play. Brick wall in Flint, Michigan. In 1987, named best amateur athlete. Jim made it to majors with Angels. Kids who were not going to let circumstances of their life be an excuse. Sept 4, 1993: no hitter for Jim Abbott. Abbott gets new fans every day. "I was doing something I loved to do." Don't let anybody change your opinion.

Opinion. Preface: Istanbul, Turkey talks on Iran nuclear program. Ben Stein begins opinion piece, noting "it's Passover." Enemies of Jews.6 million in Europe, roughly half the Jews on earth. Now Israel is threatened with another holocaust. "Maybe is not good enough." The survivors cannot accept maybe. If they are going to be saved, they have to save themselves.

Franc Grom of Slovenia carves designs on egg shells. Each egg contains 2000 to 3000 holes.

In 1917, Irving Berlin wrote a song for the girls left behind. Smile and show your dimple. In 1933, Berlin gave it new lyrics: you'll be the grandest lady in the Easter Berlin. Osgood at the Baldwin piano sings the song.

Preview of "Face the Nation." Timothy Dolan and Richard Land. [Morley Safer talks on death of Mike Wallace.]

A moment is taken to note the death of Mike Wallace of "60 Minutes."

Moment of Nature by Pradaxa. Beech Forest [near Provincetown] on Cape Cod.