Friday, June 29, 2012

MIT/BU patent lawyer convicted of bribery in California

See the discussion of Richard Chae in the article titled Lawyer convicted of trying to bribe way out of DUI .

See also previous IPBiz post
California patent attorney in trouble

Intellectual property in Pasco County, Florida

Within a Tampa Tribune article titled Pasco patent lawyer sues Obama over immigration laws one finds the following text:

In 2006, he [Edward Dutkiewicz ] represented David Reynard, the inventor of a glass phallus made to resemble a hand-held fruit juicer. Reynard sued other companies he accused of making cheap knockoffs of the sex toy and were infringing on the trademark "Juice" name. That lawsuit later settled

Wolfson on supporting innovation

From within an interview by the San Jose Mercury News with Jonathan Wolfson of Solazyme:

Q In response to critics who call the Navy contract too expensive, you've said the cost of your fuel eventually will drop as you ramp up new production facilities. Any other thoughts on that subject?

A I'm worried that we're losing sight of one of the things that has really helped America become the global center of the business universe and that is that this country is better at supporting innovation than anywhere else in the world. The discussion of whether or not someone is paying above-market price for early deliveries of an advanced biofuel that replaces petroleum to me is really odd.

Of diverging from a "solely fuels" approach:

Initially we started the company purely for fuel. But after not very long, we realized oils are used much more broadly than for fuel. We also started to think about how you can keep a company financially healthy to get to the point where you can make fuels. Because to get the fuels, you need to get to the lowest cost of production -- you need to get into big facilities, which costs a significant amount of capital. So it was very logical for us to say we're going to leverage our technology into cosmetics and nutrition as we come down that cost curve for fuels.

Apple gets preliminary injunction in tablet case in ND CA

From post at BusinessWeek titled Apple Wins Preliminary Injunction Against Samsung Tablet

The public interest “favors the enforcement of patent rights,” [Judge Lucy] Koh wrote. “Although Samsung has a right to compete, it does not have a right to compete unfairly, by flooding the market with infringing products.”

This worldview is distinct from that of Judge Posner, sitting by designation in ND Ill.

Gevo to raise $102 million

Bloomberg reports:

Gevo Inc. (GEVO), the U.S. biotechnology company backed by the French oil company Total SA (FP) and the specialty chemicals maker Lanxess AG, will sell stock and notes to raise $102 million.

Thursday, June 28, 2012

Individual healthcare mandate UPHELD as a TAX

The Supreme Court has held that the federal government can tax people for NOT buying something.

From the syllabus:

3. CHIEF JUSTICE ROBERTS concluded in Part III–B that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.

The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance. But, for the reasons explained, the Commerce Clause does not give Congress that power. It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.” Art. I, §8, cl. 1. In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155 U. S. 648, 657, the question is whether it is “fairly possible” to interpret the mandate as imposing such a tax, Crowell v. Benson, 285 U. S. 22, 62. Pp. 31–32.
4. CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part III–C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause. Pp. 33– 44.
(a) The Affordable Care Act describes the “[s]hared responsibility payment” as a “penalty,” not a “tax.” That label is fatal to the application of the Anti-Injunction Act. It does not, however, control whether an exaction is within Congress’s power to tax. In answering that constitutional question, this Court follows a functional approach, “[d]isregarding the designation of the exaction, and viewing its sub- stance and application.” United States v. Constantine, 296 U. S. 287, 294. Pp. 33–35.
(b) Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37. None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language— stating that individuals “shall” obtain insurance or pay a “penalty”— does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance. See New York v. United States, 505 U. S. 144, 169–174. Pp. 35–40.
(c) Even if the mandate may reasonably be characterized as a tax, it must still comply with the Direct Tax Clause, which provides: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” Art. I, §9, cl. 4. A tax on going without health insurance is not like a capitation or other direct tax under this Court’s precedents. It there- fore need not be apportioned so that each State pays in proportion to its population. Pp. 40–41.

Within the dissent:

The case is easy and straightforward, however, in another respect. What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to com- pel the States to function as administrators of federal programs.
That clear principle carries the day here. The striking case of Wickard v. Filburn, 317 U. S. 111 (1942), which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurispru- dence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.


In answering that question we must, if “fairly possible,” Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than un- constitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. “ ‘ “[A]l- though this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’” Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964), in turn quoting Scales v. United States, 367 U. S. 203, 211 (1961)). In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” Grenada County Supervisors v. Brog- den, 112 U. S. 261, 269 (1884), to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.
Our cases establish a clear line between a tax and a penalty: “‘[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. S. 568, 572 (1931)). In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an act “adopt[s] the criteria of wrongdoing” and then imposes a monetary penalty as the “principal consequence on those who transgress its standard,” it creates a regulatory pen- alty, not a tax. Child Labor Tax Case, 259 U. S. 20, 38 (1922).
The Government and those who support its view on the tax point rely on New York v. United States, 505 U. S. 144, to justify reading “shall” to mean “may.” The “shall” in that case was contained in an introductory provision—a recital that provided for no legal consequences—which said that “[e]ach State shall be responsible for providing . . . for the disposal of . . . low-level radioactive waste.” 42 U. S. C. §2021c(a)(1)(A). The Court did not hold that “shall” could be construed to mean “may,” but rather that this preliminary provision could not impose upon the oper- ative provisions of the Act a mandate that they did not contain: “We ... decline petitioners’ invitation to con- strue §2021c(a)(1)(A), alone and in isolation, as a com- mand to the States independent of the remainder of the Act.” New York, 505 U. S., at 170. Our opinion then proceeded to “consider each [of the three operative provi- sions] in turn.” Ibid. Here the mandate—the “shall”—is contained not in an inoperative preliminary recital, but in the dispositive operative provision itself. New York pro- vides no support for reading it to be permissive.

Of the tax issue during oral argument:

At oral argument, the most prolonged statement about the issue was just over 50 words. Tr. of Oral Arg. 79 (Mar. 27, 2012).

The final words of the dissent:

The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provi- sions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most im- portant ones, for which reason they alone were embod- ied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.


UPDATE. As to the actions of CJ Roberts. From ABC's Terry Moran and Yahoo! News Preach Roberts 'Saved' the Supreme Court at Newbusters:

Top Line host and Yahoo! News Washington Bureau Chief David Chalian reminded viewers, "We know from the Obama administration, they were ready to pounce on this Court, and attack it for political partisanship if it went the other way. They’re not under that attack right now from the Left, but do you think that kind of thing weighs on the Chief Justice’s mind?"

Moran replied: “There’s no evidence in the opinion that it does, but knowing John Roberts, I think it does. The prestige of the court is the source of its authority, and justices can’t be happy if it’s just another football in the political wars.”

Moran said Roberts made "the country" happy: “That sense that the Court stands in a different position is essential to the authority of the Court and in some ways, to the happiness of the country. Isn’t it nice that there’s one place where there’s not hollering at each other?"

See also Was the dissent originally a majority opinion?

Wednesday, June 27, 2012

LA Times on Posner on patents

Biofuel company Primus of Hillsborough, New Jersey

Tuesday, June 26, 2012

Teresa A. Sullivan back as UVa prez

The New York Times reported University of Virginia Reinstates Ousted President

Sixteen days after the Board of Visitors removed UVa Prez Sullivan, they brought her back.

Orbitz distinguished Mac users from PC users; Orbitz complains about WSJ

NBC Nightly New/Brian Williams went with a story about how Orbitz is serving up pricier hotel lists to those using Mac computers than those on PCs. Orbitz CEO Barney Harford was quoted on NBC.

The Wall Street Journal had broken the story, but Orbitz complained:

In a Tuesday tweet, Orbitz CEO Barney Harford said the Journal's "confusing headline" and subscription paywall that prevented non-subscribers from reading the whole story sent a "distorted message about @Orbitz Mac users recommendations. Editors need to fix."

See also Is Orbitz steering Mac users toward pricier hotels?

Pro se appellant defeated on obviousness in In re MOUTTET

The CAFC affirmed the Board in an appeal brought by a pro se appellant in In re MOUTTET.

Substantial evidence supports the Board’s factual determinations, and we agree with the Board’s conclusion that Mouttet’s claimed invention would have been obvious to one having ordinary skill in the art. We therefore affirm.

Of the Board

On March 29, 2011, the Board affirmed the examiner’s rejection of all twenty claims.5 Ex parte Mouttet, 2011 Pat App. LEXIS 15036, at *1. The Board agreed that an ordinarily skilled artisan, i.e., an electrical engineer with several years of related industry experience, would have recognized that substituting Das’s wired crossbar array for Falk’s optical path crossbar would have predictably yielded Mouttet’s claimed computing device. Id. at *6, *9 (citing KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007)). The Board found that while Falk notes certain advantages to optical devices, the reference in no way suggests that using electronic hardware instead of optical hardware would destroy Falk’s operability as a programmable arithmetic unit, nor that it teaches away from electrical circuitry.

The basic law on obviousness:

Whether an invention would have been obvious to one of ordinary skill in the art is a legal determination based on underlying findings of fact. KSR, 550 U.S. at 427; In re Gartside, 203 F.3d 1305, 1316, 319 (Fed. Cir. 2000). The scope and content of the prior art, as well as whether the prior art teaches away from the claimed invention, are determinations of fact. See Para-Ordnance Mfg., Inc. v. SGS Importers Int’l, Inc., 73 F.3d 1085, 1088 (Fed. Cir. 1995). The PTO bears the initial burden of showing a prima facie case of obviousness. In re Mayne, 104 F.3d 1339, 1341 (Fed. Cir. 1997). If the PTO carries its burden, the applicant must rebut the PTO’s showing. Id.

As to evidentiary standards:

While this court reviews the Board’s legal conclusion of obviousness without deference, it upholds the Board’s factual findings if supported by substantial evidence. In re Gartside, 203 F.3d at 1313-16.

Thus, “where two different, inconsistent conclusions may reasonably be drawn from the evidence in record, an agency’s decision to favor one conclusion over the other is the epitome of a decision that must be sustained upon review for substantial evidence.” In re Jolley, 308 F.3d 1317, 1329 (Fed. Cir. 2002); Gartside, 203 F.3d at 1312 (noting that the possibility of drawing inconsistent con-
clusions from the evidence does not prevent the Board’s
findings from being supported by substantial evidence)

Substantial evidence is something less than the weight of the evidence but more
than a mere scintilla of evidence. Id. at 1312 (citing
Consol. Edison Co. v. Nat’l Labor Relations Bd., 305 U.S.
197, 229-30 (1938)). It means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. Consol. Edison, 305 U.S. at 229-30.

As to teaching away:

A reference that properly teaches away can preclude a
determination that the reference renders a claim obvious. See DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1326-27 (Fed.
Cir. 2009). Whether or not a reference teaches away from
a claimed invention is a question of fact. See In re Napier,
55 F.3d 610, 613 (Fed. Cir. 1995)


In re Gurley, 27 F.3d 551, 553, we
emphasized that “[a] reference may be said to teach away
when a person of ordinary skill, upon reading the refer-
ence, would be discouraged from following the path set
out in the reference, or would be led in a direction diver-
gent from the path that was taken by the applicant.”

Thus the mere disclosure of alternative designs does not teach away.” In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). This court has further explained that just because better alternatives exist in the prior art does not mean that an inferior combination is inapt for obviousness purposes. Gurley, 27 F.3d at 553.

Posner on industry standard patents

From within an article Potency of Industry Patents Key to U.S. Google-Apple Case , one finds

In the Chicago [N. D. Illinois district court] case, U.S. Circuit Judge Richard Posner said he wouldn’t ban a product that follows an industry standard unless Apple refused to pay a fair rate.

“Once a patent becomes essential to a standard, the patentee’s bargaining power surges because a prospective licensee has no alternative to licensing the patent; he is at the patentee’s mercy,” Posner wrote.

Also within the article

“There’s some sort of movement to reduce ‘competition through litigation,’” said Will Stofega, a program manager at researcher IDC in Framingham, Massachusetts. “They really want to bring this whole issue to a head. Patent litigation is part of the ordinary due course of business, but this has gone beyond that.”

As to industry standard, one recalls the Unocal case on gasoline conforming to a California standard.

On the science of biofuels

from PNAS paper written by Lu-Ning Liu and Conrad W. Mullineaux related to photobiology of PCC 7942:

from abstract:

The balance of electron transport routes is crucial for cell physiology, yet the factors that control the predominance of particular pathways are poorly understood. Here we use a combination of tagging with green fluorescent protein and confocal fluorescence microscopy in live cells of the cyanobacterium Synechococcus elongatus PCC 7942 to investigate the distribution on submicron scales of two key respiratory electron donors, type-I NAD(P)H dehydrogenase (NDH-1) and succinate dehydrogenase (SDH). When cells are grown under low light, both complexes are concentrated in discrete patches in the thylakoid membranes, about 100–300 nm in diameter and containing tens to hundreds of complexes. Exposure to moderate light leads to redistribution of both NDH-1 and SDH such that they become evenly distributed within the thylakoid membranes.

The authors note: This could be an important consideration for the future reengineering of organisms for enhanced biofuel production.

Big River Resources joins up with Butamax on isobutanol

A press release on 26 June 2012 notes:

Butamax(TM) Advanced Biofuels, the leading global biobutanol technology company, announced that its Early Adopters Group (EAG) has expanded with the addition of Big River Resources, bringing ethanol capacity of the collective EAG to nearly 900 million gallons a year.

Monday, June 25, 2012

Gevo and BioFuel Energy discuss collaboration

A press release notes:

"The capacity of BioFuel's plants would allow us to begin delivering isobutanol at the scale that refinery customers are likely to demand," said Dr. Patrick Gruber, CEO of Gevo. "We have the potential to be at the forefront of the Advanced Biofuel market. BioFuel Energy recognizes this potential and has agreed to explore a possible retrofit of their assets to produce isobutanol."

Sunday, June 24, 2012

"60 Minutes" on June 24, 2012 shows recycled stories

The first story was on Greg Mortenson's "Three Cups of Tea." There was no initial mention that the story was re-cycled. Scott Pelley introduced the story. Scott mentioned the story aired last year. Jon Krakauer, author of Into Thin Air. Village of Khane. Mortenson's "Stones into Schools." Central Asia Institute of Bozeman, Montana. Pennies for Piece. American Institute of Philanthropy [AIP]. Pelley refers to an event "late last night". Abdul Rashid Khan. Ted Callahan. Speaking engagement in Atlanta, Ga (in September 2011?). Update: Steve Bullock, Montana AG investigated.

The second story was on Howard Buffet. No initial mention of recycling.

The third story was on Novak Djokovic. No initial mention of recycling.

CBS Sunday Morning June 24, 2012 money issue primarily a recycle of the past?

Anthony Mason, not Charles Osgood, introduced the stories for June 24, 2012, the money issue. Lee Cowan does the cover story on the demise of paper money. Going cashless. Tracey Smith does a story on product testing in Columbus, Ohio, which is a recycled story. Rita Braver does a story on Iman, also a recycled story. Martha Teichner on inventions from Bell Labs. Solar cells, transistors. America's true think tank. Mo Rocca on alpaca farming. Rebecca Jarvis does the headlines. Tropical Storm Debbie. Wild fires in the western states. Colorado Springs. Election results to be announced in Egypt. Jerry Sandusky attorneys asked to resign but judge denied request. Arman Ketayain reports details of Sandusky case. Pa AG Linda Kelly. Penn State announced a program for claims against Penn State. General Hospital wins awards at Emmys. Weather: sunny and warm around the US.

For a previous discussion of the money issue, see
"CBS Sunday Morning" on March 25, 2012 does money; inventions from Bell Labs

The intro for the cover story: Changing technology is nickel and diming old fashioned cash out of business. Former treasury sec Robert Reich gives a prediction of the demise of cash. 95% of transactions in America have nothing to do with cash. Cash's days are numberbered. Book: The End of Money. Production costs of pennies and nickels is about twice the face value. The filth factor. Ap: Pay with Square. Verify by face and by name at the site of the transaction. "The real innovators have to prove to us that this is truly life changing." [IPBiz: is this an oxymoron?]
Flu virus can live for three days on paper money.

Of Columbus, Ohio as a marketing test center. Wendy's allows CBS to view their testing facility. Fine tuning all the way up to national marketing. "I'm happy to be a guinea pig." Near perfect cross-section of the country's consumers. Introducing blend of funky culture and creativity. If an idea can make it in Columbus... Cayenne pepper flavored ice cream. Piada. Chris Doody. Giant Eagle Market District. Bret Merrill is Giant Eagle (of Pittsburgh) VP. One can buy a glass of wine and drink it.

This story leads right into the Erin Moriarty story on costs of clothes. A woman's shirt require about a yard of fabric. Labor costs in the US add about 75%. KP MacLane. From wholesale to retail, clothing is marked up 100%. Issue of a brand and a quality product.

Oct. 29, 1929: Black Tuesday. In the midst of the depression, Fiesta Dinnerware was born. Joseph Wells, III. Family owned since 1897. Have something to be happy out. Inexpensive plates with colors like a crayon box. Richard Mayberry of Southport, CT. The story says the factory is in Newell, West Virginia.

Clarissa Ward on the European economy. Raxevsky. Plans for the brand. Nobody wanted to deal with anything touched by Greece. Are you going to be there next week?
22% of Greeks are out of work. Contagion. Greece to Spain to Germany. John Cornblume, former ambassador to Greece. 17 countries use the Euro. 9 of Raxevsky's 69 stores have closed down.

Arman K. on baseball cards. Parsippany, NJ. Mike Gordon baseball card show. Book: Mint Condition.

Jeff Glor on Goya. Ads from the 1980s. 1.7 billion per year in sales. Have Goya products on every table. Formed in 1936 by man named Ortiz. Name "Goya" bought for $1. Food is a tie to immigrant community. Pinto/Mexico; Pink/Puerto Rican; Roman/Dominicans. Goya delivers directly to stores. Same pricing policy for all stores. Hispanic population is now 16%. "Staying private and very profitable."

Suzie Orman. Mentions that scholarship people check out social media posts. Living revocable trust. Pay down the mortgage of a home, (only) if you plan to stay forever.

"Mother of Invention" by Martha Teichner starts with the first transistor from 1947.
Then 1960's helium neon laser. Edward Eckhart is archivist at Alcatel/Lucent. Fax machines, solar cells, digital cameras. Tel-Star. Jon Gertner on the history of Bell Labs. 7 Nobel Prizes. Founded in 1925, eventually employed 25,000. Science could take its time. The picture phone at 1964 World's Fair. Bell Labs devised concept of cell phone in 1947 with operating cell system in 1977. Richard Frenkiel on cell phone. "We thought we were the good guys." AT&T was broken up in 1984. Without the monopoly, it cannot never be the same. Things are getting created. Bell Labs VP Theodore "Tod" Sizer. The light radio. Now Bell Labs has 1500 employees. Lessons to be learned from Bell Labs. Innovations that change the world. Previous: 17,000 patents, 1 per day. Now, 30,000 patents. Seven patents per day.

Rita Braver with Iman. Somali born model lit up magazines in 1970s and 1980s. Question: did you bring your own foundation? In 1994, she founded Iman Cosmetics, designed for women of color. 25 to 30 million dollars per year. Her father was a diplomat; close Muslim family. Peter Beard in Nairobi, Kenya. Peter Beard fabricated a story about Iman's background. In 1990, she fell for David Bowie. As to security, "only age can give you this."

Celia Haddon on "Year of the Dragon" in 2012. Babies born in year of dragon destined for success. China's baby care industry growing 20%. Huggies, Rice, Fisher-Price. Chinese buy foreign products for safety reasons. Larry Kung. Owns chain of 200 baby care stores. 31 births per minute in China.

"Have you Herd?" by Mo Rocca on alpacas. Look like muppets. Amber Isaac has an alpaca ranch in Golden, CO. She bought hers in 2007. "Alpacas" magazine did an interview with her. She now has 50 alpacas. First came to the US in 1984. Alpacas are the ultimate fiber animal. Also, Harley Hill Farms in Pennsylvania.

Anthony Mason interviews Paul Volcker. Culture on Wall Street has to change as to greed and speculation. Economic Recovery Advisory Board. The Volcker Rule. Goes into effect in July 2012. Jamie Diamond quote on Volcker. Obama as the great socialist? Volcker's 65th college reunion at Princeton next year.

Face the Nation: Rick Perry

Next week on Sunday Morning: mosquitoes, a story with bite.

Moment of Nature (no sponsor mentioned ): Routerville pig sanctuary near Gainesville, FL.

[This becomes a twice repeated moment of nature.]

Friday, June 22, 2012

The chewing gum patent wars

See Wrigley v Cadbury-Adams

Within the case

Cadbury’s argument that Abraxis Bioscience, Inc. v. Mayne Pharma Inc., 467 F.3d 1370 (Fed. Cir. 2006), compels a different result is unavailing. The issue in Abraxis was whether diethylenetriaminepentaacetic acid (“DTPA”) could be considered as an equivalent of edetate. Both compounds belonged to “a broad class of structurally analogous compounds known as polyaminocarboxylic acids.” Id. at 1379 n.7. The patentee, however, had narrowly claimed edetate. Id. at 1381. We rejected the
argument that such narrow claiming precluded the pat- entee from arguing that DPTA was an equivalent of edetate. Id. at 1380. In so finding, we relied on the fact that it was unknown at the time of the invention that the properties of DTPA made it a suitable substitute for edetate in the claimed invention. Id. at 1381-82. Because it was unknown that DTPA and edetate were inter- changeable, the patentee had no reason to claim DTPA, and we therefore held that DTPA could be considered to be within the scope of the patent under the doctrine of equivalents. Id.; see also Kinzenbaw v. Deere & Co., 741 F.2d 383, 389 (Fed. Cir. 1984) (“The doctrine of equiva- lents is designed to protect inventors from unscrupulous copyists and unanticipated equivalents.”).

The facts of this case support the opposite inference. The inventors of the ’893 patent were introduced to WS-3 and WS-23 by a salesman for Sterling Organics, the distributor of the compounds, during the same sales call, and they were told that the two compounds were appro- priate for the same uses. Although the fact that WS-23 did not enjoy FEMA-GRAS listing at the time of the invention might have prevented Cadbury from marketing a chewing gum containing a combination of WS-23 and menthol, it would not have precluded the inventors from anticipating that WS-23 could be used as a substitute for WS-3. Thus, the inventors were on notice of the potential interchangeability of WS-23 and WS-3, yet they drafted the claims of the ’893 patent narrowly to recite certain N- substituted-p-menthane carboxamides, not a broader category of carboxamides that would include WS-23. The trial court therefore properly held that Cadbury could not expand the coverage of its patent to include WS-23 through the doctrine of equivalents.

Judge Newman saw things a bit differently:

I concur in Part III of the court’s opinion, and agree that Wrigley does not infringe Cadbury’s ’893 patent. However, I must dissent from Parts I and II. I would sustain the valid- ity of Wrigley’s ’233 patent, for the district court departed from the routine correct law of obviousness and anticipation.
On the correct law, the district court’s decisions on these grounds are not supportable.

She invoked Learned Hand:

The district court erred in holding the ’233 composition prima facie obvious on only part of the evidence, ignoring the evidence that supports unobviousness. As remarked by Judge Learned Hand, “Courts, made up of laymen as they must be, are likely either to underrate, or to overrate, the difficulties in making new and profitable discoveries in fields with which they cannot be familiar; and, so far as it is available, they had best appraise the originality involved by the circumstances which preceded, attended and succeeded the appearance of the invention.” Safety Car Heating & Lighting Co. v. General Elec. Co., 155 F.2d 937, 939 (2d Cir. 1946).

Of copying

My colleagues’ finding that nexus was not established, maj. op. at 13, is hard to fathom. Cadbury’s own documents showed that Cadbury changed its formulation to copy Wrig- ley’s new gums containing WS-23 and menthol.

Wednesday, June 20, 2012

The Kodak patent auction

from PC World

Kodak entered into a $950 million financing facility secured by its assets, including some of its digital imaging patents, which it is required to put up for sale this month. It plans to auction off its patents in a process where there will be no disclosure of unsuccessful bidders to other bidders and the public.

Kodak said in the filing of the motion for the auction that the sellers propose to sell all or any portion of the digital imaging patents to successful bidders free and clear of all claims and interests, to maximize their value. Holders of claims and interests, if any, will be sufficiently protected by the availability of the proceeds of the sale.

Tuesday, June 19, 2012

CBS savages A123 on Sunday Evening News on 17 June 2012

See link Electric car battery company hits road bumps

But, on June 18, 2012, we have Why A123 Systems' Shares Jumped

Meanwhile Sean Williams wrote:

Spending even more when you admit your cash flow is deeply negative is a strategic alternative? I was unaware that corporate suicide was a business tactic. I definitely must have missed that day in my economics classes back in college.

Sarcasm aside, times are very dire for A123. It may have a breakthrough technology, but it has proved time and again that it doesn't have the ability to see its projects through. Its technology might be useful for Tesla Motors (Nasdaq: TSLA ) , whose Model S is readying to hit the market. I'm still concerned about whether Tesla can really monetize its EV idea, but A123's batteries, if effective, could knock down Tesla's costs to the point where it could actually be profitable -- something I thought I'd never see. Johnson Controls (NYSE: JCI ) is another company that could benefit from A123's technology, as it produced nearly $1.1 billion in operating cash flow in the trailing-12-month period -- more than enough to handle the hiccups associated with bringing new technology to market.

Seagate refined in Bard v. Gore

In Bard v. Gore , the CAFC determined that the -- objective recklessness -- prong of Seagate is to be decided by the judge.

The court today reaffirms its opinion issued on February 10, 2012, except for section E and that portion of section F relating to Section 284 and 285 of Title 35 of the United States Code allowing for enhanced damages and attorneys’ fees.1 The court vacates section E and the limited portion of section F relating to its prior discussion of willfulness. The briefs related to the petition for re- hearing present this court with a new question regarding the nature of the objective inquiry from In re Seagate Technology, LLC (“Seagate”), 497 F.3d 1360 (Fed. Cir. 2007) (en banc). The court agrees that the trial court failed to address the objective prong of willfulness as a separate legal test from Seagate’s subjective component. The court now holds that the threshold objective prong of the willfulness standard enunciated in Seagate is a question of law based on underlying mixed questions of law and fact and is subject to de novo review. The court remands the issue of willfulness so that the trial court may reconsider its denial of JMOL of no willful infringement in view of this holding. If the court grants the JMOL, it should then reconsider its decisions on enhanced damages and attorneys’ fees.

The CAFC noted:

When a defense or noninfringement theory asserted by an infringer is purely legal (e.g., claim construction), the objective recklessness of such a theory is a purely legal question to be determined by the judge. See Powell, 663 F.3d at 1236. When the objective prong turns on fact questions, as related, for example, to anticipation, or on legal questions dependent on the underlying facts, as related, for example, to questions of obviousness, the judge remains the final arbiter of whether the defense was reasonable, even when the underlying fact question is sent to a jury. See Powell, 663 F.3d at 1236-37; DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1324 (Fed. Cir. 2009) (explaining that ensnarement has underlying factual issues but is ultimately a question of law for the judge that is “‘to be determined by the court, either on a pretrial motion for partial summary judgment or on a motion for judgment as a matter of law at the close of the evidence and after the jury verdict’” (quoting Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co., 520 U.S. 17, 39 n.8 (1997))).

Judge Newman dissented from the partial remand:

When these aspects are considered, it is apparent that willful infringement is not supportable. However, if the court insists on retrial of willfulness, the appealed issues of validity and inventorship are relevant, for if Cooper has sole or joint inventorship rights or the right to use his prior information, the question of infringement evaporates, mooting any question issue of willfulness.

Romanian Prime Minister Victor Ponta accused of plagiarism

From the Associated Press:

[The journal] Nature said in a press release Monday [18 June 2012]it has seen documents that indicate that more than half of the 432-page thesis of Prime Minister Victor Ponta written in 2004 on the International Criminal Court was plagiarized from the work of two Romanian law scholars.

Sunday, June 17, 2012

Sara Blakely and Spanx

From Ideas That Made $100 Million :

One night, Sara Blakely cut off the bottom of her pantyhose and the idea of Spanx was born. Armed with $5,000 in savings, Blakely researched and wrote her patent for footless pantyhose and drove around North Carolina begging mill owners to make her product. Most told her it would never sell, but one owner decided to take a chance and help her make her “crazy idea.”

Note US 6,463,765 with abstract

A pantyhose garment is provided that has relatively sheer leg portions that end with knitted-in welts just below or above the knees, and a reinforced control top portion having good shaping and control characteristics that terminates at the top of the waist region with a knitted-in welt. The pantyhose under garment provides the user with shaping support, and because the lower leg is bare, it gives the user the freedom to wear any type of shoe (i.e., open-toed shoes, sandals, etc.). Pantyhose worn with open-toed shoes are usually undesirable, and also dangerous because the foot may slip in the shoe due to the lack of friction between the pantyhose and the shoe. In addition, there are many occasions when the user wants a more casual look in clothing, and therefore pantyhose on the foot and ankle would not be desired. The reinforced control top portion extends down the leg portions of the pantyhose far enough to provide support over the "saddlebag" and cellulite regions of the body. The knitted-in welt at the waist region blends into the control top without causing waist constriction. Similarly, the knitted-in welts at the ends of the leg portions blend into the leg portions without causing leg constriction. The overall design provides the user with a smooth, tight appearance when worn under clothing, without causing the user to suffer discomfort

and first claim

An undergarment comprising: a waistband having a knitted-in welt; a control top portion knitted to the waistband, the control top portion including a panty portion having panty legs that extend partway down the thighs of a person wearing the undergarment; and leg portions knitted to the panty legs of the control top portion, wherein each leg portion terminates at a lower end thereof with a knitted-in welt for snugly fitting about the leg of a person wearing the undergarment, and the leg portions are knit to be of a substantially thinner fabric than the control top.

Also U.S. Pat. No. 6,276,176.

More on Huguette Clark

Further to an earlier IPBiz post [
Huguette Clark story fit for "Law and Order"
], the story of Huguette Clark is again in the news [ Copper heiress' huge gifts spotlighted in NY court ] including the text:

Another issue is how well Clark was advised by her lawyer and her accountant. Both have come under scrutiny for their management of her affairs.

Does air thin out at northern latitudes?

An AP story titled 4 presumed dead after avalanche on Mount McKinley includes the text:

Mount McKinley, also known as Denali, is North America's tallest peak. While not a particularly tall peak by global standards, its latitude makes for far thinner air than is found in mountains closer to the equator. That, combined with the weather and temperatures, makes it a particularly dangerous climb.

CBS Sunday Morning on June 17, 2012

Charles Osgood introduced the stories for Father's Day, June 17, 2012. Osgood mentioned that the man was the do-er and shaker, but now not so much. Susan Spencer does the cover story about what's going on with men. Is it still a man's world? Lee Cowan discusses Sargent Shriver as a father. Third, Mo Rocca on "Family Guy." Seth MacFarlane. Fourth, Bill Geist on father of the bride (recycled from 25 Sept. 2011). Rita Braver, video games;Norah O'Donnell; Steve Hartman at a restaurant. Headlines: UN suspends mission in Syria due to violence. Voting in Egypt and Greece. Rocket launched from Gobi Desert, China. High Park fire in Colorado. Nick Wollenda at Niagara Falls. Weather: Warm in the west; perfect in the east. Summer begins on Wednesday.

"A Man's World?" by Susan Spencer. Summer break at Kenyon College. Dean Jennifer Delahunty's opinion piece in the New York Times that women are going better than men at college. Lower enrollment is not at 43.5%, the lowest in decades. Michael Kimmel, sociologist. Boys think that academic disengagement is a sign of masculinity. 70% of valedictorians are girls. The economy is now service-based, not action-based. 66% (women) vs. 59% (men) on valuing high money careers. "To all the girls I've rejected" in Delahunty's op-ed. Liza Mundy, "The Richer Sex." Men not judged on ability to generate a salary. Opened up the definition of what a man is supposed to be. Sneider on "stay at home fathers," which are on the rise. Our schools have been geared to students who can sit still for long periods of time. Self-control, communication, expressiveness, are qualities rewarded in school, and they are qualities more associated with girls. Advice: teach them honor, self-management. Throw boys will be boys out the door.

Almanac. Amelia Earhart, first women passenger to cross Atlantic, June 17, 1928. Separately, 75 years ago this month. Earhart and Fred Noonan, round the world. New information on Earhart from TIGHAR. Nikumaro Island. Anti-freckle cream found.

"Name of the Game," on video games by Rita Braver, a recycle from March 18, 2012. The Smithsonian American Art Museum. Director Betsy Broom. The Art of Video Games. One time: 6 million game copies sold in one day. Images resemble moving paintings. M. C. Escher. Video games are interactive. Chris Melissinos is curator. 1970s-1980s games. PacMan in 1981. Women now represent 40% of gamers. Criticism of video games as too violent. Game: 2010 Violent Rain.

Sunday Profile: Mo Rocca on Seth McFarlane. Just keeping my brain challenged and stimulated and on it's toes. In 2009, highest paid tv producer. American Dad, The Cleveland Show, and Family Guy. Fictional Rhode Island family. McFarlane voices Peter, the father; Brian, the dog; and Stewey. His head is correlated the voice. The initial evacuation was difficult. TV show based on his thesis in 1995, related to The Simpsons. Mashup of culture. Rapid fire reference to show biz. Rifs disconnected to the plot. Characters break into song at random. Family Guy is most popular scripted show among men 18-24. Fart jokes. At age 2, started drawing Fred Flintstone. Walter Crouton; strip shown in Connecticut. Family Guy at age 23. "What I enjoy are things that scare me a little bit." The comedy Ted. And Cosmos, Carl Sagan. Seth talks about a systematic rejection of science. Date with Helen Mirren??

Allan Pizzi gives a Sunday Journal on voting in Egypt for the two candidates. The genie is out of the bottle. Invisible ink on ballots? Muslim Brotherhood. Clarissa Ward in Athens. Must stop feeling the terrorism of the market. Greece debt: 547 billion dollars. Nearly 1/4 of Greeks are unemployed. There is no quick fix to Greece's economic problems.

Norah O'Donnell on Marco Rubio. Tea Party hero. Personable and unflappable. "The Tea Party Senator." Pro-life. ObamaCare should be replaced. Grew up in West Miami. His parents came from Cuba in 1956. Father was a bartender. Purpose in life: give children opportunities they never had. Got a law degree. Seat on West Miami city commission. Victory: getting trees planted on a street. Served in Florida State House of Representatives. Issue of "when" family fled Cuba. Use of Florida Republican credit card. Rubio was up against Charlie Crist. Wife Jeannette against quitting: Once we start something, we do it. The hug Crist gave to Obama. Rubio comes home on weekends. Rubio born Catholic, briefly Mormon, then Catholic; now goes to Baptist church. Rubio's new autobiography. Obama's recent easing of deportation rules undercut legislation Rubio was planning to unveil. Hispanics are worried about more than immigration. 67 to 24%, Obama over Romney among hispanics. Segment ends at a bakery in West Miami.

Steve Hartman on Keith Harris, Down's Syndrome. Albuquerque. Son Tim owns his own restaurant. Tim is the front man for this family restaurant. On the menu: "A Tim Hug." Restaurant is "Tim's Place."

JFK named his brother-in-law Sargent Shriver head of Peace Corps. Clip with Mark Shriver at homestead in in Union Mills, Maryland, near Gettysburg, PA. "Could anybody be as good as he seemed to be?" Book: "A Good Man". Sargent married Eunice Kennedy in 1953. The idea of difference; the Shrivers were different. Shriver was an idealist; war on poverty. Called Shriver a Boy Scout, an in-law. Got to go internal to go eternal.

Bill Geist on the marriage of his daughter Libby. Weddings have a way of getting out of hand. Thousands of decisions to be made. Wallet open; mouth shut. Mr and Mrs. Wildes. Libby's dog Barkley led the procession. [Earlier story updated with a pregnant Libby.]

Pulse: 70% say harder to be a father.

Luke Burbank, opinion: Luke was a father as a senior in high school. Fateful night after the junior prom. Terrifying realization that there is no handbook. Fake it until you make it. Burbank's daughter is now 18. Gabby Rodriguez has no idea of what she missed out on.

Next week on Sunday Morning: the money issue.

Moment of Nature (Spiriva Handihaler ): Valley of Fire State Park, north of Las Vegas. Shot of a ram.

Wednesday, June 13, 2012

Judge Robinson rules in Gevo/Butamax TRO matter

The Minneapolis Star Tribune noted

In a temporary restraining order, U.S. District Judge Sue L. Robinson [of D. Delaware] limited shipments of isobutanol from the Luverne plant [of Gevo] to Sasol, an international energy and chemical company, and the Air Force for fuel testing. The order remains in effect while the judge considers Butamax's request for an injunction against Gevo.

See New Minnesota biofuel plant in Luverne faces patent fight

Bloomberg reported in the story titled DuPont, BP Win Temporary Halt To Rival Isobutanol Sales :

U.S. District Court Judge Sue Robinson, in Wilmington, Delaware, issued an order yesterday limiting Gevo Inc. from shipping the chemical, used in making biofuels, to new customers. The company can continue selling isobutanol to Sasol Chemical Industries Ltd. and the U.S. Air Force, Robinson said.

Monday, June 11, 2012

Colossal blunder on Jeopardy on June 11, 2012

The final answer was Acts 1:13 says this event occurred in “an upper room”

The correct credited question in real time was [what is] "The Last Supper." A video insert corrected this mistake, truly a colossal blunder by Jeopardy.

The King James Version:

And when they were come in, they went vp into an vpper roome, where abode both Peter & Iames, & Iohn, and Andrew, Philip, and Thomas, Bartholomew, and Matthew, Iames the sonne of Alpheus, and Simon Zelotes, and Iudas the brother of Iames.

The New International Version:

When they arrived, they went upstairs to the room where they were staying. Those present were Peter, John, James and Andrew; Philip and Thomas, Bartholomew and Matthew; James son of Alphaeus and Simon the Zealot, and Judas son of James.

**From wikipedia:

The biblical narrative of Pentecost, where the 12 Disciples of Christ (Acts 1:13,26) along with about 108 other individuals (Acts 1:15), including many women, among whom was Mary the mother of Jesus (Acts 1:14) received the Baptism in the Holy Spirit in the Upper Room, is given in the second chapter of the Book of Acts.

**See also Final Jeopardy for 6/11/12

***Relevant to the comment below, Acts 1:14 (New International Version):

They all joined together constantly in prayer, along with the women and Mary the mother of Jesus, and with his brothers.

As a first point, Acts 1:13 does not describe "The Last Supper." By itself, Acts 1:13 only describes certain people going to an Upper Room. In context, the event is Pentecost.

Separately, "Judas of James" is not Judas Iscariot. From BiblePages

Luke 6:14-16 gives this list:

Simon Peter, Andrew, James, John, Philip, Bartholomew, Matthew, Thomas, James the son of Alphaeus, Simon Zelotes, Judas the brother of James, Judas Iscariot.


Acts 1:13 gives these names (with Judas Iscariot excluded):

Peter, James, John, Andrew, Philip, Thomas, Bartholomew, Matthew, James of Alphaeus, Simon Zelotes, Judas of James.

[Luke, the author of the texts, is not included in either list.]

Mitsubishi/GE wind turbine patent war leads to mothballing of energy project

From within a post titled State’s investment in alternative energy showing progress, officials say :

Mitsubishi Heavy Industries Ltd., a Japanese company, which had announced plans to open a wind-turbine plant in Fort Smith, decided to “moth ball” the plans earlier this year because of an ongoing legal battle with General Electric related to patent claims on wind-turbine equipment.

Kodak patent auction does not attract much interest

See post Kodak patent hopes fade as auction attracts little interest on the search for a Stalking-Horse bidder for Kodak's patent portfolio,

Keith Smith, of the University of Edinburgh, criticizes LCAs of biofuels from crops

Life cycle analyses [LCAs] are designed to measure factors relating to the production, usage, and disposal of a fuel, to determine how use of a given fuel impacts the environment. Within a post titled Study: Environmental benefit of biofuels is overestimated, Dr. Keith Smith, from the University of Edinburgh criticizes some LCAs for biofuels. He observes: "Emissions of N2O from the soil make a large contribution to the global warming associated with crop production because each kilogram of N2O emitted to the atmosphere has about the same effect as 300kg of CO2."

See also Environmental Benefit of Biofuels is Overestimated, New Study Reveals

Secretary of Commerce Bryson alleged to be involved in hit and run

Secretary of Commerce Bryson, who followed Gary Locke in the post, according to CBS News has been cited in a felony hit-and-run case after allegedly crashing a Lexus into two vehicles in California Saturday evening [June 9, 2012], Los Angeles County police have confirmed. On Thursday, June 7, 2012, Bryson gave the Commencement address at Pasadena Polytechnic School.

Bryson has an undergrad degree from Stanford, and a J.D. from Yale Law.

The US Patent Office is within the Department of Commerce.

At the time of Bryson's appointment in 2011, Bryson's background in the business sector was asserted to be favorable for job creation:

"With nearly two decades as a CEO [Edison International] and having served in the leadership of some of America's top companies [director at Boeing and Disney], John Bryson has created jobs and understands what it takes for American businesses to innovate and compete in an increasingly competitive global economy," [Kate] Bedingfield said.

from Senator vows to block Commerce nominee Bryson

Bryson was a founder of the NRDC.

Hollmer v. Harari shows that patent draftsmanship is an exacting art

The CAFC case Hollmer v. Harari involved an interference between Hollmer's '601 patent and Harari's '880 application, and the CAFC concluded:

The Board entered judg- ment against Hollmer after finding that Harari’s ’880 application was entitled to the benefit of the filing date of Harari’s U.S. Patent Application No. 07/337,566 (“’566 application”) and thus preceded the date of conception for Hollmer’s ’601 patent. Because the Board misinterpreted our previous decision in Harari v. Hollmer, 602 F.3d 1348 (Fed. Cir. 2010) (“Harari I”), in finding that continuity was maintained in the chain of priority between the ’566 application and the ’880 application involved in the inter- ference, we reverse the Board’s decision and remand.

The case hinged on the standard of review related to incorporation by reference.

As background,

Harari’s ’880 application was filed on May 14, 1999, and is part of a chain of patent applications beginning with the ’566 application, which was filed on April 13, 1989. The ’880 application is a continuation of U.S. Patent Application No. 08/771,708 (“’708 application”), which is a continuation of U.S. Patent Application No. 08/174,768 (“’768 application”), which is a continuation of U.S. Patent Application No. 07/963,838 (“’838 application”), which is a divisional of the original ’566 application.1

The ’566 application was filed on the same day as Harari’s U.S. Patent Application No. 07/337,579 (“’579 application”). The following incorporation statement from the ’566 application was copied into the subsequent applications in the priority chain and is at the heart of this appeal:

Optimized erase implementations have been disclosed in two copending U.S. patent applications. They are copending U.S. patent applications, Serial No. 204,175, filed June 8, 1988, by Dr. Eliyahou Harari and one entitled “Multi-State EEprom Read and Write Circuits and Tech- niques,” filed on the same day as the present appli- cation, by Sanjay Mehrotra and Dr. Eliyahou Harari. The disclosures of the two applications are hereby incorporate[d] by reference.
J.A. 1204 (emphasis added). Harari’s ’579 application is the above-referenced application titled “Multi-State EEprom Read and Write Circuits and Techniques” that was “filed on the same day” as the ’566 application. The ’880 application included a photocopy of the ’566 application, a transmittal sheet identifying the filing as a continuation application, and a preliminary amendment. The preliminary amendment revised the above incorporation by reference language copied from the ’566 application to refer to the ’579 application by both serial number and filing date and added additional material from the ’579 application.

During the interference proceedings before the Board, Hollmer filed a motion arguing that Harari’s involved claims were unpatentable under 35 U.S.C. § 112, first paragraph, for lack of written description. Specifically, Hollmer argued that the ’579 application was not properly identified in the ’880 application’s original disclosure because the ’579 application was not “filed on the same day” as the ’880 application. As a result, Hollmer contended, the material from the ’579 application in the preliminary amendment was new matter under 35 U.S.C. § 132. The Board agreed, granting Hollmer’s motion and entering judgment against Harari.

In terms of the previous CAFC decision in the case, a "reasonable examiner" standard had been applied:

On appeal in Harari I, we concluded that the Board had applied an incorrect standard for determining whether the ’579 application was incorporated into the ’880 application’s original disclosure, and we articulated a narrow rule for reviewing such statements when an applicant seeks to amend an ambiguous incorporation statement at the “initial filing stage”: “The proper standard by which to evaluate the sufficiency of incorporation by reference language, at this stage of the proceedings, is whether the identity of the incorporated reference is clear to a reasonable examiner in light of the documents presented.” Harari I, 602 F.3d at 1352-53 (emphasis added). Applying this standard, we held that the reasonable examiner, who had the benefit of the transmittal sheet and the preliminary amendment, would understand that the copied language from the original ’566 application in the ’880 application referred to the ’579 application.

What was at issue:

On remand, the Board addressed Harari’s motion seeking the benefit of the filing date of the ’566 application for the ’880 application. To resolve this motion, the Board had to determine whether the intervening ’838 and ’768 applications sufficiently incorporated the ’579 application by reference such that 35 U.S.C. § 120’s continuity requirements were satisfied. If they did, the ’880 application was entitled to the benefit of the April 13, 1989 filing date of the ’566 application; if they did not, the ’880 application was only entitled to the benefit of the Decem- ber 20, 1996 filing date of the ’708 application, which undisputedly discloses the ’579 application.
The intervening ’838 and ’768 applications contain the same incorporation language copied from the ’566 applica- tion but, unlike the ’880 application, were never amended to refer to the ’579 application by serial number and filing date.

The BPAI had applied Harari I and concluded there WAS continuity:

Using this standard, the Board found that a reasonable examiner would have had access to all of the filing papers, including the transmittal sheets, for the ’838 and ’768 applications, and conse- quently would have understood that the disputed incorpo- ration by reference language in those applications referred to the ’579 application. J.A. 16-17. Accordingly, the Board determined that continuity between the ’566 and ’880 applications was maintained and that the ’880 application was entitled to the priority date of the ’566 application. The Board entered judgment against Hollmer, and Hollmer timely appealed.

The CAFC determined there was no continuity:

Thus, if any application in the priority chain fails to make the requisite disclosure of subject matter, the later-filed application is not entitled to the benefit of the filing date of applications preceding the break in the priority chain. See Lockwood, 107 F.3d at 1571-72; Ho- gan, 559 F.2d at 609 (finding that claim 15 was only entitled to a 1967 filing date where “the disclosure to support claim 15 appears in the 1953 and the 1967 appli- cations, but not in the 1956 application”). Whether the intervening patents in a chain of priority maintain the requisite continuity of disclosure is a question of law we review de novo. Zenon, 506 F.3d at 1379. Here, Harari does not dispute that the intervening ’838 and ’768 appli- cations must incorporate the ’579 application for the ’880 application to be entitled to the benefit of the filing date of the original ’566 application.

Harari I was distinguished:

We contrasted this stan- dard with the standard that generally applies to review- ing such incorporation statements: “[I]f we were determining the validity of an issued patent containing the disputed incorporation by reference statement . . . we would be concerned with whether one of ordinary skill in the art could identify the information incorporated.” Id. at 1353 n.2. Because Harari I did “not involve an issued patent or language that is intended to appear in an issued patent,” we held that the proper inquiry focused on the reasonable examiner, not the person of ordinary skill. Id. In this second appeal, we address whether this rea- sonable examiner standard also applies for determining if the intermediary ’838 and ’768 applications sufficiently incorporate the ’579 application by reference such that they satisfy § 120’s continuity requirements. Hollmer argues that the Harari I reasonable examiner standard is limited to situations in which an applicant seeks to clarify an ambiguous incorporation statement through an amendment that triggers a potential 35 U.S.C. § 132 new matter problem. Where, as here, § 120 priority is at issue, Hollmer contends that the incorporation by refer- ence inquiry takes place within the § 120 context, apply- ing the person of ordinary skill standard.


with respect to the appropriate standard for assessing the incorporation statements, we disagree with Harari that the Harari I reasonable examiner standard applies whenever the identity of an incorporated document is at issue before the PTO. Questions surrounding incorporation by reference statements do not arise in isolation but instead generally manifest as an initial hurdle that first must be crossed before reaching an underlying issue. It is this underlying issue that provides the framework for resolving the incorporation by refer- ence question. For example, when the ultimate question implicates the understanding of a person of ordinary skill, such as determining whether the written description requirement is satisfied, construing claims, or evaluating the teachings of a prior art reference, we have reviewed the incorporation statements from the person of ordinary skill vantage point. See Harari v. Lee, 656 F.3d 1331, 1334 (Fed. Cir. 2011) (“[T]he standard is whether one reasonably skilled in the art would understand the appli- cation as describing with sufficient particularity the material to be incorporated.”); Zenon, 506 F.3d at 1378-79 (same); Cook Biotech Inc. v. Acell, Inc., 460 F.3d 1365, 1376 (Fed. Cir. 2006) (same); Advanced Display Sys., Inc. v. Kent State Univ., 212 F.3d 1272, 1283 (Fed. Cir. 2000) (same). In assessing incorporation statements from this point of view, our cases have required that “the host document . . . identify with detailed particularity what specific material it incorporates and clearly indicate where that material is found in the various documents.” Zenon, 506 F.3d at 1378 (quoting Cook Biotech, 460 F.3d at 1376).


In Harari I, we identified a narrow circumstance warranting the application of the reasonable examiner standard, but we did not alter these traditional rules governing the incorporation by reference inquiry. Specifically, Harari I’s modified standard applies when an application is at the initial filing stage and the examiner is evaluating an amendment that clarifies ambiguous incorporation by reference language. Our predecessor court applied an analogous standard under similar cir- cumstances in In re Fouche, 439 F.2d 1237, 1239-40 (CCPA 1971).

Here, unlike Harari I or Fouche, we are not considering an amendment seeking to clarify the incorporation statements in the ’838 and ’768 applications. Instead, the issue before us is whether these intervening applications maintain continuity between the ’566 and ’880 applica- tions by disclosing the ’579 application. The continuity inquiry provides the backdrop for the incorporation by reference analysis. In Zenon, where incorporation also was at issue, we explained that the continuity inquiry is undertaken using the “reasonable person of ordinary skill in the art standard”


Unlike the ’566 application, neither the ’838 application nor the ’768 application was “filed on the same day” as, or “copending” with, the ’579 application. At least two other applications by named inventors Mehrotra and Harari, however, were “copend- ing” with the ’838 application and had the same title as the ’579 application: U.S. Patent Application Nos. 07/508,273 and 07/734,221. J.A. 297. Thus, on its face, the incorporation language does not directly lead one of ordinary skill to the ’579 application but rather presents several potential documents for incorporation. Such ambiguity in incorporation does not suffice. As we have previously cautioned, “[P]atent draftsmanship is an exacting art, and no less care is required in drafting an incorporation by reference statement than in any other aspect of a patent application.” Zenon, 506 F.3d at 1382 n.3. Without the incorporation of the ’579 application in the ’838 and ’768 applications, the ’880 application is not entitled to the benefit of the priority date of the ’566 application.

Sunday, June 10, 2012

"60 Minutes" on June 10, 2012

First story Scott Pelley on Leon Panetta.

Second, Lara Logan on big game hunting in Texas.

Third, Steve Kroft on Trey Parker and the Book of Mormon.

The first two stories are recycled from January 29, 2012. See post

60 Minutes on January 29, 2012: U.S. Secretary of Defense Leon Panetta, NFL Commissioner Roger Goodell and Can Endangered Animal Hunts Save Species?

The third story appeared on June 10, 2012.

Ethical issues with genetic test of unborn

University of Washington researchers devised a non-invasive in utero genetic test. Dr. Robert Klitzman was interviewed by Nancy Snyderman on NBC News on June 10, 2012 about ethical issues.

CBS Sunday Morning on June 10, 2012

Charles Osgood introduced the stories for June 10, 2012. Summer solstice is 10 days away. Neighbors are not always friends. Rita Braver on the Sunday morning cover story on the Hatfields and the McCoys. Second, John Miller on New York's Plum Island. Third, Lee Cowan on Charlize Theron, on Huntsman. Fourth, Tracy Smith on tap dancing, Vickie Reardon, "stepping out." Fifth, Mo Rocca, Steve Hartman, Anthony Mason. Headlines: Hosni Mubarak is near death in prison hospital. New reports of violence in Syria. 17 nations that use the Euro may loan Spain money. Little Bear fire in New Mexico. 18 year woman dies in Yellowstone. Belmont: Union Rags wins by a nose. Weather: stormy from Plains eastward.

Rita Braver talks to real McCoys, Hatfields. Jimmy Hatfield Wolford was interviewed by Rita. WVU Professor Bill Richardson gave background. Asa McCoy fought for the Union and was murdered in 1865. Next battle happened in 1878 over a hog. The main witness for the Hatfields in the subsequent trial was murdered. In 1882, Devil Anse Hatfield's brother is murder. New Year's Eve in 1887. Walter Cronkite appears in 1955 in a re-enactment. Bad Frank Philips is hired to round up the Hatfields. Battle of Great Pine Creek. History Channel covered the battle. Pawpaw Tree Incident.

Almanac. June 10, 1891, the birthday of Al Dubin. Tiptoe throw the tulips. With Harry Warren, 42nd Street. Ruby Keeler. The Gold Digger film series (Gold Diggers of 1935, with lullaby of Broadway). Dubin died in 1945. Jerry Orbach at the Tony Awards. Osgood puts in a plug for the Tony Awards on CBS on June 10, 2012.

Tracy Smith on stepping out. Ford Theater in Harrisburg, PA. Vickie's tap club. Vickie Reardon opened a school as a teen, but gave up her school to be a mom. Then a bad divorce. Vickie thought husband was going to kill her. Tap Pups. Encore Performance, a book published by Simon & Shuster. People realizing childhood dreams. A yearly show at Harrisburg Forum. Living out a childhood dream in middle age, and beyond.

Foot and mouth disease vaccine developed at Plum Island, controlled by Dept. of Homeland Security. USDA studies diseases than can impact livestock. Marvin Grubman and Luis Rodriguez. Althea Sadicky put plum island on a list of sites to terrorize. Foot and Mouth disease. Grubman has worked on the Island for over 30 years. In 1971, animals were kept in outdoor pens. Book, Lab 257 by Michael Carroll (lawyer). Bio containment facilities pictured in 1999. Carroll talks about facade improvements. Montauk Monster. UFO Digest. The more secrecy, the more people invent stories. Carroll: Lyme Disease fostered on Plum Island? Thurlan Fish of Yale University criticized Carroll's hypothesis. Borrellia. Black legged tick. But, Plum Island is in serous need of improvements. Plum Island Animal Disease Center. Facilities to be moved to Manhattan, Kansas. Swapping capsets. See Island Fever from 2004

(...)SUNDAY PASSAGE: Ray Bradbury

Steve Hartman recycles his story "The Longest Wait" on Billie D. Harris from CBS Evening News. This version is a little more critical of Congressman Thornberry. Peggy Harris is the last widow who still visits Normandy. Place Billie D. Harris in Lesvent, France.

Charlize Theron in 2003 movie Monster. Lee Cowan does Sunday Morning Profile on Charlize which is a recycle of sorts of an earlier story on December 4, 2011.. If you come with your own agenda and your own ego, you can't make a good movie. Prometheus and Snow White and the Huntsman. North Country in 2005: portrayed a miner. Theron: a lot of it is a mystery to me. At 15, she saw her mother shoot, and kill, her father. Her characters are not victims. At 36, her life is where she wants it. Charlize Theron Africa Outreach Project. In March, she adopted. Theron: there is no recipe; it's all a stroke of luck sometimes.

Ben Stein. In 2008, federal guv made a huge mistake on Lehman Brothers. Now, another mistake is going to be made on Greece. If Greece, Spain, Italy default, the US banking system will be hit hard. The US needs to get involved. IMF should support Athens. A Marshall plan for our times. Get out of the fear and into the sunlight.

Mo Rocca does a piece on the gypsy robe related to Broadway. "And the show is blessed." This season the robe was awarded thirteen times. David Westphal is the keeper of the robe. He speaks with several Actors who have worked on Chorus contracts, including the legendary Chita Rivera and Ms. Brooks-Dunay. They reveal their pride as a member of the Chorus, and their early inspirations to make the stage their career. More than a dozen Actors participated in the taping several of whom will be shown in the segment. The Actors include: Cameron Adams, Adrian Bailey, Jessica Bishop, Florence Brooks-Dunay, Jennie Ford, Jean Michelle Grier, JoAnn Hunter, Richard Korthaze, Brian O’Brian, Chita Rivera, Judine Somerville, Tad Wilson, and David Westphal, Equity’s National Chorus Business Representative and former Chorus Actor. From BroadwayWorld. Call Me Madame; Guy and Dolls. 23 robes exist, including two at the Smithsonian.

Next week. Animator Seth McFarland. Family Guy.

Moment of nature. Normandy beach.

Apples Design Patent D661,296

TheVerge discusses Apple's '296 design patent in the post titled Ultrabooks beware: Apple receives broad patent on MacBook Air wedge design.

Within the comments is the text:

We all borrow because it has all been done before and we are not the originators. To merely copy is to take an existing interpretation and not run away with it. To steal an idea is to take something of value and make it yours. To make an artistic element yours you have to interpret it your way with your own approach.This cannot be done when you are merely copying the idea. When copying the idea you are just doing everything exactly like it was previously done. When you have done it your way you have used the element and not simply duplicated it.

Saturday, June 09, 2012

Judge Posner addresses patent injunction issue in Apple/Motorola

In a post titled Judge Throws Apple-Motorola Patent Claims Out of Court, Mark Long writes

In a preliminary opinion on the lawsuits, Judge Richard Posner said both sides in the patent dispute over smartphone and tablet technology should have their claims dismissed with prejudice because neither party had established a right to relief. The finding would prevent the two sides from bringing a similar suit in the future.

See also IDG post U.S. Judge Cancels Motorola, Apple Patent Trial

Did "Glass House" copy from "Big Brother"?

Attorneys for CBS are arguing that people involved with ABC's "Glass House" improperly utilized information gained while working on the CBS show "Big Brother."

Yes, a nondisclosure agreement [NDA] is involved. In a post titled CBS adds new allegations against ABC reality show , AP notes

That would violate a non-disclosure agreement Rosen signed while working with CBS and could be a basis for blocking ABC from airing "Glass House," CBS' attorneys argue.

And, yes, there were deleted emails:

Rosen acknowledged in a recent deposition that he deleted emails after ABC had been warned by CBS that it would be sued, court documents said. It also alleges that Rosen directed a staffer to copy manuals he obtained while working on "Big Brother."

In a post titled Reality TV's Copycat Fight: Can CBS Stop ABC's Glass House? , TV Guide noted

CBS notes that 19 staffers on The Glass House once worked on Big Brother, including executive producer Kenny Rosen, and says all of them had signed nondisclosure agreements. The sheer number of ex-Big Brother employees proves that ABC is copying the show, CBS says, and will now have the ability to rely on the unique ways that Big Brother is produced, including the technical setup and story-producing process. "CBS has expended considerable time, money and labor in the development of these trade secrets," the suit says. Calling the actions "oppressive and malicious," CBS is asking for $500,000 for "each act of violation," among other damages.

On another problem with NDAs, see post
Using Confidential Information in a Hostile Bid

Oliver North column Sikahema'd

A post titled Oliver North uses Maureen Dowd plagiarism defense concludes with the text:

There’s a different Memorial Day column by North on Fox News Insider now, one in which he visits the Vietnam War Memorial in Washington, D.C., and is dismayed to see a protester wearing “dirty T-shirt, ragged jeans – and Gucci loafers.” (Talk about uncheckable facts — “Gucci loafers” were a meme used to describe lobbyists in ’80s-era Washington, when North famously served in the Reagan White House.) But the original column, as Farhi points out, isn’t hard to find on the Web. I found it, for instance, on

Update: Fox appears to have removed North’s column. It’s also vanished from

Way back in time, IPBiz noted the disappearance from the internet of a tirade by Vai Sikahema titled "Rutgers is Wrong."
He was complaining about Rutgers renewed efforts to build a football team, involving Greg Schiano. Rutgers never won the Big East, and Schiano left.

As to intellectual property, what will one do with internet references that vanish?

Update. Another Sikahema.
See Asus Tweet Stirs Controversy

he caption of the picture, taken from behind and showcasing the woman's backside, read, "The rear looks pretty nice. So does the new Transformer AIO."

The post disappeared quickly, but not before screen grabs were shared on multiple sites across the Web and charges of sexism were lobbed at the tech company. Asus has since apologized and pledged to "take steps to ensure this doesn't happen again."

Thursday, June 07, 2012

Startup Act 2.0: are you turning up your nose at $150K/year jobs?

The website of Congressman Michael Grimm contains the following in regard to HR 5893:

Last night [5 June 2012], Reps. Michael G. Grimm (R-NY) and Loretta Sanchez (D-CA), introduced the Startup Act 2.0 (H.R. 5893) in the House of Representatives, with Reps. Robert Dold (R-IL), Jared Polis (D-CO), Kevin Yoder (R-KS), Russ Carnahan (D-MO), and Devin Nunes (R-CA). The Startup Act 2.0 is a bill to create and keep jobs in America; increase America’s access to talent in the fields of science, technology, engineering, and math (STEM) by reforming high-skilled visa policies; and create opportunities for startup businesses with tax incentives and access to resources for innovation.

“Startup 2.0 is about creating American jobs. Too often we educate the world’s best and brightest in STEM fields, only to send them back to countries like India and China to open businesses and compete against us. This bill will keep top talent here in the U.S. to build businesses that hire Americans, and drive U.S. innovation and competitiveness. I thank Senator Moran for his leadership on this legislation in the Senate and thank my colleagues in the House for working together across the aisle for the greater good of the American people and the U.S. economy,” said Rep. Grimm.

Without directly commenting on the merits of HR 5893, IPBiz draws attention to an audio discussion of the bill that took place on June 5, 2012 at about 2:10pm on CBS AM 880. The interesting commentary occurs around the four minute mark, and specifically around the 4:15 point.

**And two footnotes

--> jokes arising from the linkedin breach

The country's current high unemployment was a common reference point of the jokes.

"In this job market, I'm just happy the Russians who hacked LinkedIn have my resume," one guy tweeted.

"Okay, maybe it's just me, but if my LinkedIn was hacked... who cares? More people will see my resume?" someone else said.

-->As to "unavailability" of qualified American workers, Congressman Grimm is invited to review the Dickakian matter, wherein the Department of Labor actually investigated the qualifications of the "unqualified" people

Refer to In the Matter of Exxon Chemical Company (on behalf of Dickakian), 87-INA-615 AND see On Gold-Plating Patents, which article noted:

Through a post on the internet [], I became aware on March 2, 2001 of a Department of Labor/Board of Alien Labor Certification case in 1987 peripherally involving me. The case for denying employer’s application for alien labor certification is far stronger than indicated, because of omission of numerous facts. [see “You can’t know it when you can’t see it,” p. 22, IPT (April 2001)]

In that particular case, a large U.S. corporation had terminated 50% of its scientists in its basic research laboratory, but denied several of them the opportunity to compete with a foreign worker for a single position in one of its applied laboratories.

See previous IPBiz post titled
Who gets fired first, older or younger people?
and links therein

Tuesday, June 05, 2012

Judge Posner says "no" to Apple

Within a post titled Judge Allows Steve Jobs Quotes in Motorola Patent Trial , one sees that Judge Posner has allowed use of text including the Jobs quotes:

"Our lawsuit is saying, 'Google, you f**king ripped off the iPhone, wholesale ripped us off.'" "Grand theft."
(...)"I'm willing to go to thermonuclear war on this."

Attorneys for Apple had filed a motion asking to have any reference to the Isaacson book kept out of the upcoming patent trial.

Separately, Judge Posner has prohibited Apple from arguing that jurors should favor Apple over Motorola if they admire Jobs, or like Apple products.

Monday, June 04, 2012

Miami cannibal victim Poppo 1964 grad of Stuyvesant High, classmate of UChicago Prez Zimmer

An article in the New York Post notes that the victim (Ronald Poppo ) of the Miami cannibal is a 1964 graduate of Stuyvesant High School in New York City. His classmates include Robert Zimmer, the current president of the University of Chicago, Assemblyman Richard Gottfried, Dick Morris, a political analyst and former adviser to President Bill Clinton, and sportscaster Len Berman.

See story. Miami ‘face’ vic a NYer

Poppo's daughter currently lives in New Jersey.

Sunday, June 03, 2012

"60 Minutes" recycles on June 3, 2012

The first story on Elon Musk, the founder and CEO of SpaceX, was recycled from March 18, 2012. The story was updated to include mention of the Dragon flight. "It looks like we have a dragon by the tail." The contract for NASA's next manned space vehicle is the coming big prize.

The interview with Angelina Jolie was from November 28, 2011.

The story "The Murder of an American Nazi" (Jeff Hall) was from September 25, 2011.

CBS Sunday Morning on June 3, 2012

Lee Cowan, not Charles Osgood, introduced the stories for Sunday, June 3, 2012. Cowan discussed the boats on the river Thames for Queen Elizabeth. Mark Phillips does the cover story on the four day long diamond jubilee party for Queen Elizabeth. Second, Martha Teichner does "In Stitches," on clothes prepared for the royal family. Royal School of Needlework. Third, Lee Cowan on Jane Fonda. Confidence has to come from inside. Jane Fonda at age 74, on Fonda's third act. Steve Hartman on "painting the town," on Jim Cotter and Gloucester, Ohio, a recycle from CBS Evening News.
Anthony Mason on tailors on Saville Row (recycled story). Mo Rocca. Headlines: Zimmerman returns to jail in Florida. Leader of Syria blames foreign extremists. In Egypt, protestors. Hostages refuges rescued in Afghanistan. Bank robber in suburban Chicago. Chicago conference on breast cancer. Smart bomb killing cancer. Karen Houston (West Wing) died. VP Biden attended daughter's wedding. Weather: 80's in northeast.

Mark Phillips did the cover story on Diamond Jubilee pageant along banks of River Thames. Phillips notes "it's a royal story." Familiarity is a large part of what queens are about. Doing the same thing. Incredible thought of reassurance. Painting: The Thames. Historian David Starkey: it's a throw back sense to Elizabethan buccaneers. Diamond Jubilee Royal River Pageant. Paul Woodhead was a choirboy during Elizabeth's coronation, now in river pageant. She is an embodiment of British carry-on spirit. Queen has expressed doubts about that whole boat thing. In 1957, Queen on television. Of lows, none lower than the death of Princess Diana. Rachel Johnson. Grandchildren have re-invented the royal brand. Freud: no such thing as an accident. Voices in wilderness. Greg Jenner. The monarchy is a room that does not fit it with the rest of the decor. The queen as an excuse for a party?

The "almanac" clip began with a reference to the date Wednesday, April 17, taken from a clip from Dragnet. The memorialized date for the almanac is June 3, 1949, the date radio listeners first hear Dragnet. TV premier on 1952. Jack Webb as Joe Friday, badge 714. Cover of Time in 1954. Ended in 1959; re-started in color in 1967, with Harry Morgan as sidekick. Webb died in 1982; movie in 1987. Ackroyd and Hanks. Dragnet as a model for tv crime shows. Badge 714 is in LA Police Museum.

Back to London with picture of Queen. Then Martha Teichner. Holbein picture of Henry VIII, in gold. Hampton Court Palace. Lucy Worsley, curator for London's Royal Palaces. In 1539, Henry VIII took up embroidery. Susan K. Williams runs the Royal School of Needlework, located at Hampton Court Palace. Embroidery as art. Naturalistic silk shading. Stem stich. French knots. Black work with black thread. In 1872 Lady Victoria Wellby, keep hand embroidery alive. Queen Victoria was school's patron; Princess Helena. Embroidery made with 18 kinds of gold thread. Kirsten Fitzgerald is a student now. There is a three year degree course. In Henry VIII's time, embroiderers were all men.

Gerswhin's Porgy & Bess. Mo Rocca. Summertime is one of the most recorded tunes. The story of star-crossed lovers living in Charleston. Audra MacDonald stars as Bess. Norm Lewis as Porgy. An urban ballet. Folk opera: appeal to the many, rather than the cultured few. Robert Kimball is an expert on Porgy & Bess. Diane Paulus is the show's director. Her revival is 2.5 hours, not 4; less like an opera. Steven Sondheim: disdain. In 1935, the version had racial epithets. In 1936, controversy in Washington. Leontyne Price. In present production, Bess has a nasty scar.
Gershwin died at age 38, less than 2 years after he wrote Porgy & Bess.

Cowan on recall issue with Scott Walker in Wisconsin. Dean Reynolds has Sunday Journal on Walker. World of Beer Festival in Milwaukee. Congresswoman Moore. Christine Christie gathered signatures for recall. Amy Kramer, Tea Party. Tom Barrett is Walker's opponent. Wisconsin as a political weather vane.

Anthony Mason on Savile Row. In 1969, Michael Caine in The Italian Job. Royal family has military uniforms done here. Chittleborough. Bespoke. Angus Cundy. Henry Poole & Company set up in the 1840s. Suit is 3000 pounds; $5000. 120 books dating from 1846. Charles Dickens. Buffalo Bill Cody. 1936 suit for Winston Churchill. Poole & Company has royal warrant for uniforms. 14 stitches to the inch hold gold lace. Armani: Savile Road--bad British comedy. Richard James. Americans account for 40% of Poole's business. [recycled story]

Cowan noted the Queen is not wearing her crown during the boat festival. Story: A Girl's Best Friend done by Michelle Miller. Costco sold 100,000 carats last year. 90% of all diamonds pass through 47th Street in New York City. 120 carat blue diamond.
GIA. cut clarity carat weight. John King.

Lee Cowan mentioned On Golden Pond. Sunday Profile done in Hollywood Hills. In Cannes last month, she stole the show. HBO drama: The Newsroom. Life as an arc. Over the hill, but look at these other hills. "Peace, Love, and Misunderstanding." Person to Person in 1960. Barbarella in 1968. Roger Vadim. All the hair was hers. Got Oscar for Klute. Allan Pakula. Hire Faye Dunaway. Francis Brokaw, mental illness. With Henry in "On Golden Pond."
Protest movement. 1972 to Hanoi. Sitting on anti-aircraft gun in Hanoi, smiling. Husband Tom Hayden. Bulemia.
Workout videos. Husband Ted Turner; married for ten years. Monster-in-Law. Book Prime Time. Richard Perry.

Opinion. Lauren Daisley. Husband is British. Why do Brits idolize the queen? Just this once, I've filled it [coffee mug] with tea.

Painting the town by Steve Hartman. A recycled story on Gloucester, Ohio.

Next week. Charlize Theron.

Moment of Nature. HandiHaler. England's New Forest, now a national park.

Saturday, June 02, 2012

"Edison as a patent troll"

In the year 2006, LBE published an article on eZine titled Edison as a Patent Troll, or Where is California Going in Stem Cell Research? . Text within the article suggested Edison was not a patent troll, but separately might not be deemed the inventor of the electric light bulb: Of various suggestions that Edison was troll-like in his behavior in not making product, one observes that Edison himself obtained the funds from investors to set up the first electric power plant, and then created the power plant. He made product. Whether he was actually the inventor of the light bulb is a different story.

A March 20,2012 post titled Hidden Inflection Points includes the text

I love the story of the light bulb. We often credit Edison for its invention, but few know that his famous practical, inexpensive incandescent bulb was essentially an iteration of another light bulb invented a year earlier by a British scientist by the name of Joseph Swan. And even fewer people may realize that by the time Edison “invented” them in the late 1870s, electrically powered light bulbs had been in slow, steady development for decades.

**Of course, the earlier light bulbs that were "in development" did not last too long. And, even Edison's US Patent No. No. 223,898, granted January 27, 1880, did not disclose the use of bamboo as filament material.

**Moreover, by the time of the Chicago World's Fair in 1893, the tide had turned against Edison, and there were no Edison light bulbs at the fair. Wikipedia notes:

Tesla's high-frequency high-voltage lighting produced more efficient light with less heat. A two-phase induction motor was driven by current from the main generators to power the system. Edison tried to prevent the use of his light bulbs in Tesla's works. General Electric banned the use of Edison's lamps in Westinghouse's plan in retaliation for losing the bid. Westinghouse's company quickly designed a double-stopper lightbulb (sidestepping Edison's patents) and was able to light the fair. The Westinghouse lightbulb was invented by Reginald Fessenden, later to be the first person to transmit voice by radio. Fessenden replaced Edison's delicate platinum lead-in wires with an iron-nickel alloy, thus greatly reducing the cost and increasing the life of the lamp.[16]

Of interest, Fessenden had worked for Edison PRIOR to working with Westinghouse (while Fessenden was at Purdue University). Wikipedia notes: In late 1886, Fessenden began working directly for Thomas Edison at the inventor's new laboratory in West Orange, New Jersey. A broad range of projects included work in solving problems in chemistry, metallurgy, and electricity. However, in 1890, facing financial problems, Edison was forced to lay off most of the laboratory employees, including Fessenden. [Of a separate Edison/Fessenden anecdote: in his first application [for a job to Edison] Fessenden wrote, "Do not know anything about electricity, but can learn pretty quick," to which Edison replied, "Have enough men now who do not know about electricity." ]

**Of a different patent issue, wikipedia notes In 1900 Fessenden left the University of Pittsburgh to work for the United States Weather Bureau, with the objective of proving the practicality of using a network of coastal radio stations to transmit weather information, thus avoiding the need to use the existing telegraph lines. The contract gave the Weather Bureau access to any devices Fessenden invented, but he would retain ownership of his inventions.

**As to LBE's initial article on "Edison as patent troll," several uncredited copies have appeared on the internet. For example

Edison as a Patent Troll, or Where is California Moving into Stem Cell Research? [2011]

Edison As A Patent Troll, Or The Place Is California Stepping Into Stem Cell Analysis?

On stupidities in copying,

from IPBiz
Searching the web for copied articles

"This blatant rip-off is unacceptable, even for a blogger.", which included the following advice to would-be plagiarists from fark:

Helpful hint: when plagiarizing an article just go ahead and skip the last paragraph if it is a bio of the real author


Patents as products

Within a post by Alan Minsk at Forbes titled Old Model: Patents Protect Products. New Model: Patents Themselves Are Products , one has the text:

Strategically focused patent portfolio development is a key process in protecting intellectual property and one that may enable a smaller player to have relatively large leverage in an industry, because it can obtain an asset of value to a competitor. This means that it can negotiate on more favorable terms with a more powerful competitor, contribute something of value to a joint-development project, increase its role in a standards group, raise capital more easily, etc. Further, it is not just a question of the number of patents a company has, but of the quality and potential value to others of those patents.

Of course, if one is an actual "player" in a field, conveyance of one's patent rights to a larger competitor could erode one's ability to be a "player." One could revert to the status of an independent contractor R&D lab.