Friday, May 30, 2014

Another butanol PCT to Butamax, PCT/US2013/071036 (WO/2014/081848 )

A PCT of Butamax (PCT/US2013/071036 ) related to butanol production was published on May 30, 2014 with abstract

Provided herein are processes for adjusting a fermentation medium to reduce the activity of one or more carboxylic acids. The processes comprise (a) providing a recombinant microorganism comprising an engineered butanol biosynthetic pathway, (b) contacting the recombinant microorganism with a fermentation medium whereby butanol is produced and wherein the fermentation medium comprises one or more carboxylic acids, and (c) adjusting the fermentation medium to reduce the activity of the one or more carboxylic acids. Also provided are processes for reducing the activity of one or more carboxylic acids in a feed. The processes comprise (a) providing a feed from a fermentation vessel, wherein the feed comprises a composition produced by a recombinant microorganism comprising an engineered butanol biosynthetic pathway, wherein the composition comprises butanol, water, and one or more carboxylic acids; and (b) adjusting the feed, wherein adjusting the feed reduces the activity of the one or more carboxylic acids.

In the "international search report" [ISR], other documents by DuPont / Butamax were cited against PCT '036.

CAFC discusses "printed publication" in Suffolk v. AOL: the matter of "sufficient dissemination"

Within Suffolk v. AOL , the CAFC goes through the printed publication cases In re Klopfenstein, MIT v. AB Fortia, and SRI v. Internet, to conclude a message posted to a newsgroup was a printed publication. A grant of invalidity on summary judgment by EDVa was thus affirmed.

the ultimate reason Suffolk’s argument fails,
a printed publication need not be easily searchable
after publication if it was sufficiently disseminated at the
time of its publication. See, e.g. ,
In re Klopfenstein, 380F.3d at 1350–51.
Thus, the question becomes whether the
Post was sufficiently disseminated.

Wednesday, May 28, 2014

David Kappos on Senator Leahy's halting patent reform bill

David Kappos, on Senator Leahy's action on the patent reform bill:

While proponents of quick-fix legislation express frustration over Senate Judiciary Committee’s decision to halt work on a bill, I see a legislative process alert to the risks involved in enacting wholesale change to the greatest innovation engine the world has ever known — the U.S. patent system — without taking the time to get it right.

link Roll Call’s Dueling Op-Eds on Patent ‘Troll’ Legislation

KSR "common sense" at issue at CAFC in HIMPP case

HIMPP, an inter partes challenger of Hear-Wear's patent, appealed a decision of PTAB to the CAFC. The CAFC affirmed PTAB, and the patentee won.
At issue was the level of evidence presented by HIMPP. The CAFC mentioned the element at issue represented a "core factual finding" and thus requires
more evidence than conclusory statements.

The CAFC had to distinguish this case from certain pronouncements in KSR, relating to the use of common sense. Here, there was no evidence upon which
common sense could operate. The matter of official notice arose.

Judge Dyk dissented. Judge Dyk felt that KSR did impact this case.




Sunday, May 25, 2014

60 Minutes on May 25, 2014

Scott Pelley on post-traumatic stress disorder.

Lesley Stahl on different pharmacy doses for women.

Liam Neeson.

Scott started with scandal at Dept of Veterans Affairs. One of five vets has PTSD. Troubled vets live the war within. VA Hospital in Little Rock, Arkansas where they will live for eight weeks. One person started with alcohol, then crack. One treatment is called "prolonged exposure." The soldier will re-live the attack five times per session. Staring the dragon in the eye. Get beyond survivors guilt.

The Alexander Report plagiarism matter in Maine

A flap over plagiarism in the state of Maine seems to involve, in part, a matter of self-plagiarism and "re-purposing" of work:

The reports contain verbatim content from a previous report the Alexander Group wrote for the state of Arkansas (with just the names of the states swapped).

One recalls a similar issue in the state of Illinois, related to the Wender matter, which preceded the Poshard plagiarism matter at SIU:

Prior to the Poshard plagiarism matter at SIU, there was the Wendler self-plagiarism matter [Walter Wendler copied material he created while at Texas A&M into a proposal while he was employed at SIU ]. SIU gave self-plagiarism a pass.

from IPBiz post
Self-plagiarism and the "repurposing" of research
. See also:

In light of the Wendler matter (among other things), IPBiz finds the following of interest:

Al Tompkins, a senior faculty member at the Poynter Institute, a journalism think tank in Florida, said he’s never heard of an instance in which a policy consultant group lifted whole chunks of information without proper attribution.

from post by Eric Russell titled LePage suspends payments as more plagiarism found in Maine welfare study

Gigaom calls for disbanding the CAFC: At this point, the Federal Circuit looks beyond salvaging. It’s time for Congress to disband the court

In a post Ethics fail by top judge gives Congress new reason to close patent court , Gigaom notes:

At this point, the Federal Circuit looks beyond salvaging. It’s time for Congress to disband the court, and return responsibility for patent appeals to the other Circuit courts.

CBS Sunday Morning on May 25, 2014

Charles Osgood introduced the stories for May 25, 2014, Memorial Day Sunday.
A title change, is the cover story by Barry Peterson, on Colorado's law on marijuana. Colorado marijuana. Second, Mo Rocca on MacDonald on Broadway as Billie Holliday. Third, Lee Cowan on O Henry punoff. Fourth, Anthony Mason on Barry Gibb. Fifth, Rita Braver. Sixth, David Martin. Seventh, Steve Hartman. Headlines: Isla Vista killer, Elliott Roger. Shooting in Brussels, Belgium. Pope Francis in Bethlehem. Ukraine presidential elections. Kanye West married in Florence (Belvedere Fort). Weather: Storms in midwest. Rain in northeast.

First up, Osgood on killings in Isla Vista. Danielle Nottingham is there. Billie Maples interviewed. Jacklyn Taylor. Elliott Roger is the killer. Santa Barbara sheriff Jim Brown. All weapons involved were legally purchased. Richard Martinez talked of his son, Chris, who died.
[From Los Angeles Times: In video after video, Elliot Rodger roamed Santa Barbara like an invisible man, narrating his lonely existence in a strange, clinical tone, consumed by a feeling of total alienation.]

Osgood makes reference to "Rocky Mountain High." Then byop, bring your own pot. 80,000 people at marijuana celebration in April 2014. John Hickenlooper opposed the pot law. "High on the Range" (1929). Keith Straup of NORML. Cab Calloway, funny reefer man. Then, reefer madness campaigns. Marijuana outlawed by federal government in 1937. In 1996, California allowed marijuana for medical use. Hickenlooper: marijuana creating jobs and taxes. But, growers and sellers have to deal in cash.
"Medicine Man" is a thriving business, but has to pay in cash. Sales in Washington will begin in the summer 2014. Obama administration has taken a look the other way approach.

48% of Americans say they have tried marijuana.

Almanac. May 25, 1889. Igor Sikorsky born in Kiev. By age 20, built first helicopter, that didn't fly. Then, four engine aircraft. Worked with Charles Lindberg on Pan Am. In 1940, VS-300. He died in 1972 at age of 83. Company makes Blackhawk. Also, Marine-1 helicopters.
[Note: Igor Sikorsky is considered to be the "father" of helicopters not because he invented the first. Yes, in 1908, Edison patented his own design for a helicopter. ]

Rita Braver on the real Gerber baby. Ann Turner Cook. Now 87. Dorothy Hope Smith entered sketch in 1928 in contest. Gerber HQ in Fremont, Michigan. Sally Gerber daughter of Dorothy Gerber. Cook became a high school English teacher. I can't think of anything nicer than to be a symbol for babies, and that's what I became.

David Martin on James Webb. Marine Corps gallows humor. Webb in Viet Nam in 1969, "Fields of Fire". We just went round the bush, and then we left. "I heard my country calling," published by CBS' Simon & Shuster. His office includes some "sands of Iwo Jima." James C. Ward, died May 9. "Arizona Valley." Incident between Bush and Webb about Webb's on in Iraq. If you were there, I don't need to explain it to you. "Not for fame or reward, (...) but in simple obedience to duty." The story ends with a tabulation of "the fallen."

Clip from 1980 film Airplane. Once a pun a time. Lee Cowan. O. Henry Pun-Off in Austin, Texas. Gary Halleck, chief kook and bottle washer. Linguistic terrorist. Matt Pollock. . Darrin Walsh in a chicken suit. Had to Book a Rest. Alexandra Petri. Tanks but not tanks. Check my eyes an hour later. Ben Zeek. Pun on queue. I don't know if you're reggie jackson. Osgood: as good as it gets. When Bush comes to shove. Punslingers competition. I wasn't blackboard yesterday. Matt Pollock won the contest.

Next week on Sunday Morning: Mike Myers.

Moment of nature. Spiriva. Deep Hole at Myakka River State Park in Sarasota County, FL.

Friday, May 23, 2014

End of the line for Patent Transparency and Improvements Act; deja vu all over again

Of the demise of his patent reform bill, Senator Leahy noted:

“Regrettably, competing companies on both sides of this issue refused to come to agreement.”

Back in 2007, IPBiz had noted what Ted Kennedy had said:

U.S. Sen. Edward M. Kennedy said today [June 18] that the biotech and traditional high tech industries need to come to agreement about how patent laws should be updated rather than pursue conflicting agendas through Congress.

See IPBiz post
Kennedy on patent reform: "it comes down to who has more lobbyists."

On the 2013 bill, see U.S. Senate Shelves Long-Debated 'Patent Troll' Bill

Thursday, May 22, 2014

Lemley tops citations list

Top 30 scholars by h-index

See 2005 post on IPBiz:
The "h index", a new way of ranking authors through citations

The ambiguities in demonizing patent licensors

Gil Amelio's post reveals the ambiguities in defining licensing behavior as evil and troll-like.

Wall Street Journal breaks story on Rader recusal

Tuesday, May 20, 2014

EETimes: Bell Labs Restored to Former Status [??]

See post Bell Labs Restored to Former Status.

One might ask "which" status? That of the 1950's, or of the 1980's?

See LBE, 8 JMRIPL 80 (2008)

Republicans on U.S. Patent Reform

No peace in Apple/Samsung patent war

Monday, May 19, 2014

"As more patent applications are filed, the quality of each new patent increases"??

On May 19, 2014, the blog Intellectual Profit began with the text

Monday, May 19, 2014

Graphene - lessons for British innovation

Today's Financial Times has an article with the headline "Asia ahead in race to develop graphene". This is a technology that the British Chancellor of the Exchequer described as a "great British discovery". However, the UK has only filed 101 of the 11,372 patents and patent applications filed worldwide in the field of graphene - a mere 0.9% of the total.

One notes that the 2010 Nobel Prize in Physics went to two Russians, Geim and Novoselev , "for groundbreaking experiments regarding the two-dimensional material graphene." From a Nobel Prize press release : Both of them originally studied and began their careers as physicists in Russia. Now they are both professors at the University of Manchester.

The blog post also had some interesting comments on "quantity" of applications:

Despite the inevitable protestations of "quality versus quantity", experience curve effects mean that as more patent applications are filed, the quality of each new patent increases.

CAFC reverses PTAB on "written description" issue in Tobinick interference case

In the appeal of the interference decision in TOBINICK v. OLMARKER , the CAFC agreed with the Board’s claim construction but reversed its written
description decision.

As to written description, the parties disputed whether the ’205 application provides
written description support for the term “administered locally.”

As to the law

The purpose of the written description requirement is to
require an inventor to disclose his invention to the public
in such a manner as to allow “a person of skill in the art
to recognize that the patentee invented what is claimed.”
Synthes USA, LLC v. Spinal Kinetics, Inc., 734 F.3d 1332,
1341 (Fed. Cir. 2013) (citing Ariad Pharms., Inc. v. Eli
Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en
banc)). The written description determination depends on
“the nature and scope of the claims and on the complexity
and predictability of the relevant technology.” Id. (citing
Capon v. Eshhar, 418 F.3d 1349, 1357-58 (Fed. Cir.
2005)). Accordingly, we must determine whether the
disclosure of the ’205 application “reasonably conveys to
those skilled in the art” that Tobinick “had possession” of
the claimed local administration. Id. (internal citations

“Written description is a question of fact, judged from
the perspective of one of ordinary skill in the art as of the
relevant filing date.” Falko-Gunter Falkner v. Inglis, 448
F.3d 1357, 1363 (Fed. Cir. 2006) (citing Vas-Cath, Inc. v.
Mahurkar, 935 F.2d 1555, 1563-64 (Fed. Cir. 1991)).

New York Times on China's Unit 61398

In a post
U.S. Treads Fine Line in Fighting Chinese Espionage
, the New York Times writes that the Obama administration is claiming

that the Chinese military leadership is behind an enormous organized campaign to steal American intellectual property and designs for its own profit.


Led Zeppelin charged with copyright infringement

From Led Zeppelin being sued by suriving member of Spirit over 'Stairway to Heaven' , one sees an assertion that the opening notes of 'Stairway to Heaven' were copied without permission by guitarist Jimmy Page :

The suit is being brought by the founding bassist [ Mark Andes] of Spirit, an obscure 1960s band that Led Zeppelin toured the U.S. with back in 1968 and 1969.


Mick Wall wrote in 'When Giants Walked the Earth: A Biography of Led Zeppelin,' what Jimmy Page did 'was the equivalent of taking the wood from a garden shed and building it into a cathedral.'

“Our last patent troll we settled for $10,000. If you think about that, it’s barely more than 10 hours of lawyer time.”

VentureBeat has an interesting post titled Life360 founder calls patent holder ‘Piece of sh*t.’ Lawsuit ensues

Within the post, StarTrek as prior art is invoked, and the dreary exercise of retaining counsel is mentioned:

“I could show them a Star Trek episode from the 1960s” that had a similar concept, [Chris] Hulls said.

Thus his response:

Dear Piece of Shit,

We are currently in the process of retaining counsel and investigating this matter. As a result, we will not be able to meet your Friday deadline. After reviewing this matter with our counsel, we will provide a prompt response.

The "patent troll" phenomenon is neither new nor evil

Within a post titled Thomas Edison Was a “Patent Troll”
, Adam Mossoff writes of his "title character":

Edison would have been wiser to continue to embrace market specialization—inventing in his lab and selling or licensing his patents to others to manufacture and sell his innovative products. It was doing this that brought him his fame and fortune as a young innovator at Menlo Park, and ironically it would have brought him notoriety today as a “patent troll.”

Mosoff also writes of the tendency by some to view the troll "problem" as recent in origin:

Yet, many smart people assume that the patent licensing business model—and the buying and selling of patents themselves—is an entirely recent development. In 2006, for instance, Justice Anthony Kennedy stated as simple fact in eBay v. MercExchange that “An industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees.” Commentators now assert in prestigious law journals that the “patent marketplace is a relatively new secondary market.” Now we’re seeing calls that the patent laws should be changed in response to this “new” development by mandating that all patent owners manufacture or sell their patented innovations in the marketplace.

Back in 2006, LBE, within an article titled Edison as a Patent Troll, or Where is California Going in Stem Cell Research? , recognized the flaw in the "recent" attribution and wrote:

Although some people, such as Adam B. Jaffe, and Josh Lerner, suggest the patent problems are of recent origin, with changes in the last 20 years which have led to a decline in patent quality but a strengthening in patent rights, the empirical evidence for this is thin. Many of the issues we see now have been around for a long time.

In the following, aspects in the history of the light bulb are discussed. Consistent with the viewpoint of the VCs, J.P. Morgan invested in Edison, the man, before Edison's key patent issued. To attract attention of the influential, Edison set up the first commercial electric power plant near Wall Street, much as RIM (BlackBerry) has attained impact through the opulence of its customers

LBE's article was so popular at the time that it was repeatedly plagiarized.
JEB Stuart travels to India
"Edison as a patent troll"

Of the copying of LBE's article, fark found the copying of LBE's bio of interest:

"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

See also
The convenience of not remembering history when discussing patent reform

Sunday, May 18, 2014

The Good Wife on May 18, 2014; inadvertent disclosure

"We're like a banana republic here," as Diane finds the key vote in the battle for control of Lockhart Gardner belongs to Howard Lyman.

Eli to Alicia, who feels bad about deep-sixing good guy Finn Polmar: put your political hat on.

Of a significant legal point, the subject of inadvertent disclosure arises in the episode. Alicia, Cary and others at Florrick Agos observe an inadvertenly unclosed video link from Lockhart Gardner discussing strategy to remove Diane and to destroy Florrick Agos.

The legal issue in the episode relates to ABA Model Rule 4.4:

Under Rule 4.4(b) of the Model Rules, the lawyer must at least inform the sending party of receipt of the document. Rule 4.4(b) reflects the conflict between the recipient’s obligation of zealous representation of the client and acknowledging the confidential relationship between the opposing party and his or her client. Since 2005, ABA ethics opinions note that Rule 4.4(b) solidifies the recipient’s obligation to inform the disclosing attorney, but an attorney is no longer explicitly prevented from examining the materials or required to comply with instructions to return or destroy the materials.

See Ethical Obligations Regarding Inadvertent Disclosures

In the episode, Alicia and co-workers do NOT inform the "sending" party of the transmission.

Peter discusses backing Diane for state's attorney after his previous backed candidate (Polmar) runs into problems.

A key theme in the episode is a malpractice suit against both law firms over
a failed adoption and a bribe to a tribal counsel member.

Alicia on the two mothers preparing lasagna: I would go there myself with a hatchet.

There is a proposed merger of the two firms.

Cary meets with Canning. Cary lets Canning know of Diane's plans for merger.

Diane decides against state's attorney and asks to join
Alicia's firm.

At the end, Eli asks Alicia if she would run for state's attorney.

Of the inadvertent disclosure matter, tvline had text:

Robert King: In the writers’ room, we have three lawyers in there, and this was an issue that raised more arguments than any issue this season — whether [the camera being left on] was an unintended disclosure, and, even if it was an unintended disclosure, what you had to do based on that fact. I thought [our writers] were going to come to blows, and then we had our tech advisor, Irv Miller in Chicago, getting on the phone, and he had a completely different opinion that was a little more pragmatic and a little more like Alicia’s. [Laughs] What we loved about it is that it seemed to create quite a stir between between people who know the law. All the lawyers on our staff did exactly what the lawyers on the show did. They all started pulling out their iPhones and looking up what was said online about the ethics, the American Bar Association, and all that.

See also ‘The Good Wife’ ends emotional season with more turmoil and a big cliffhanger

Friday, May 16, 2014

Arbitrating control of a robot?

The InTouch v. VGO decision begins

The world has come a long way; this is a patent case
about robots. InTouch Technologies, Inc. d/b/a InTouch
Health (“InTouch”) and VGo Communications, Inc.
(“VGo”) both manufacture remote telepresence robot
systems. In 2012, InTouch filed a First Amended Complaint
in the Central District of California alleging that
VGo’s remote telepresence robot system infringed several
of its patents, including U.S. Patent Nos. 6,346,962 (“the
’962 patent”), 6,925,357 (“the ’357 patent”), and 7,593,030
(“the ’030 patent”) (collectively, “the asserted patents”).
The asserted patents generally relate to remote
telepresence technology regarding camera movement,
arbitrating control of a robot, and a call back mechanism
to notify a previously denied user that the robot is now
available. VGo counterclaimed for declaratory judgment
of non-infringement and invalidity.


InTouch is the owner of the asserted patents. In
2001, InTouch developed a remote telepresence robot
system for the health care industry that allows physicians
and family members to visit a patient through a remote
terminal without travelling to the physical location of the
patient. This system permits a user to operate a robot
from a remote terminal, e.g., computer or tablet. The
InTouch robot contains several features, including a video
display, two-way audio, and a camera. Based on the
user’s instructions, the robot travels throughout a hospital,
and a user appears through live video on the video
display as a remote presence. For example, a doctor can
conduct “in-person” patient consultations from his office
in another location through a computer.

IBM was indirectly involved:

InTouch acquired the ’962 patent in November 2009
from IBM. The ’962 patent is titled “Control of Video
Conferencing System with Pointing Device.” ’962 Patent,
at [54] (filed Feb. 27, 1998). The technology relates to
controlling the movement of a remote video camera in real
time directly responsive to movement of a remote mouse

The dispute

The parties only dispute the construction of three
claim terms. InTouch challenges the district court’s
construction of the ’030 patent claim term “arbitrating to
control” and the ’357 patent claim terms “arbitrator” and
“call back mechanism.”3 We address the terms “arbitrating
to control” and the “arbitrator” together.

As to obviousness:

A party seeking to invalidate a patent on obviousness
grounds must “demonstrate ‘by clear and convincing
evidence that a skilled artisan would have been motivated
to combine the teachings of the prior art references to
achieve the claimed invention, and that the skilled artisan
would have had a reasonable expectation of success in
doing so.’” Procter & Gamble Co. v. Teva Pharm. USA,
Inc., 566 F.3d 989, 994 (Fed. Cir. 2009) (quoting Pfizer,
Inc. v. Apotex, Inc., 480 F.3d 1348, 1361 (Fed. Cir. 2007)).
While an analysis of any teaching, suggestion, or motivation
to combine elements from different prior art references
is useful in an obviousness analysis, the overall
inquiry must be expansive and flexible. KSR Int’l Co. v.
Teleflex, Inc., 550 U.S. 398, 415, 419 (2007). “Often, it will
be necessary for a court to look to interrelated teachings
of multiple patents; the effects of demands known to the
design community or present in the marketplace; and the
background knowledge possessed by a person having
ordinary skill in the art, all in order to determine whether
there was an apparent reason to combine the known
elements in the fashion claimed by the patent at issue. To
facilitate review, this analysis should be made explicit.”
Id. at 418 (citing In re Kahn, 441 F.3d 977, 988

A decision enumerating what was NOT decided!

Note text in Innovative Biometric Technology v. Toshiba :

In so ruling, however, we think it worthwhile briefly to mention
a few of the issues that we do not decide.

A movant-appellant was Niro, Haller and Niro.

“But it’s actually male bovine fecal matter extruded on a longitudinal axis.”

From a story on Stephen Colbert discussing the recent Amazon patent:

“But it’s actually male bovine fecal matter extruded on a longitudinal axis.”

See IPBiz post Amazon's US 8,676,056

Unhappy engineers create patent lawyer?

From a post on patent attorney Rudy Telscher who has become one of the highest profile attorneys in St. Louis:

So he was one of those farsighted guys who realized that a technical background would help in law? No, he intended to be an engineer, but while he was in college, he worked at McDonnell Douglas and met some engineers who were unhappy. Then he met a lawyer who told him a background in engineering would help with patent law.

Thursday, May 15, 2014

Plagiarism charges at Arizona State University

See New Book, New Allegations about charges against Arizona State University professor of history Matthew C. Whitaker .

Within the post, one finds the text

Donna Shear, director of the [University of Nebraska] press, said she hadn’t edited Whitaker’s book personally and couldn’t speak to the exact nature of his review process. She said the press does not and cannot check everything it publishes for plagiarism and that authors sign a statement saying they have not plagiarized, indemnifying the press from such charges.

All that aside, she said, “We stand by Matt.”

Shear continued: “I will say that all of this has been over the years sent to us by someone with a personal Gmail account, whose identity has never been revealed. But not only has [Whitaker’s] book been through rigorous peer review, knowing that he’s had an issue in the past, he took tremendous pains to make sure that there wasn’t anything that could be questioned in this book.”

This seems to be a “personal issue, not a professional one,” Shear added.

Inside Higher Ed

CAFC affirms TTAB on case about mark -- STOP THE ISLAMISATION OF AMERICA --

Discussion of the case

Applicants Pamela Geller and Robert B. Spencer
(“Appellants”) appeal from the Trademark Trial and
Appeal Board’s (“Board”) refusal to register the mark
with the recited services of “understanding and preventing
terrorism.” J.A. 27. The Board found the mark contains
“matter which may disparage” a group of persons in
violation of § 2(a) of the Trademark Act. Because the
Board’s finding is supported by substantial evidence and
in accordance with law, this court affirms.


Samsung loses appeal of Apple ITC case at the CAFC

Forbes on patent pools

A Forbes post Abuse From Patent Pools could have benefitted from a discussion of past patent pools, such as for aircraft circa 1915 and sewing machines even earlier.

For example
Patent pools don't encourage innovation

Monday, May 12, 2014

Forbes on "the clear blue line"

Within the Forbes article titled Why Apple Is Fighting The Patent Battle So Hard; What Other Protection From The Competition Does It Have?

And no supplier ever would like to be selling in such a perfectly competitive market, having to use price and price alone as the come on. So, Apple, just like every other producer of anything ever, is desperately trying to find some method of making sure that there’s a clear blue line between what it can offer to the market and what others can. Branding is important, yes, but branding won’t deliver the majority of the market, only that high end (and gorgeously profitable) niche. And despite the fact that Apple is fighting so hard to use those patents as a method of producing that line, sadly for the company it’s not working all that well. As things are turning out there’s very little that cannot simply be worked around to provide the same functionality.

And, when the patents work well, the next thing one has is a patent pool. Recall the outcome of the Wright/Curtiss wars.


Kappos ridicules idea that "patent system is broken"

David Kappos, a senior adviser for the Partnership for American Innovation, has a column in the Detroit Free-Press
which includes:

The same anecdotes and flawed studies are trotted out time and again to the delight of those who wish to substantially restrict the patent rights of operating companies in favor of their own narrow business interests. What these sound bites don’t tell you is that the cost of reducing or eliminating the incentives for innovation would be devastating for nearly all sectors of the U.S. economy. Worse, it could make slow growth permanent by ceding our position as a global high-tech leader to foreign competitors.


Sunday, May 11, 2014

"60 Minutes" on May 11, 2014

Steve Croft on Washington's Open Secret", a followup from a story in fall 2013.
Peter Sweitzer on life-style subsidy. Ethics reform act of 1989. Leadership pacs are exempt from personal use. Trevor Potter. Leadership pacs are political slush funds. John Edwards used leadership pacs. Robert Andrews of NJ used money to fly his family to Scotland. Leadership lacs are a political annuity. Leaders use it in retirement.
Pail Gillmor died but money was used after. Melanie Sloan tracks campaign expenditures. Sloan says 75 members of Congress have hired family members. Rodney Alexander. Congress has created a domain where they decide ethics.

Friday, May 09, 2014

Octane, Highmark cases

How would the Bass/Tuschl dispute be resolved under the AIA?

The new patent law, the AIA, has two sections which deal with resolution of patent rights through derivation proceedings. However, to get into the game, the challenger must have filed a patent application. Recall the dispute over the "Tuschl" patents.
University of Utah Professor Bass published an idea about RNA interference in an April 2000 review of Tuschl's published work and also described it at two conferences. Bass also discussed it with Tuschl at a conference dinner.

On the topic of co-inventorship/collaboration, from the Salt Lake City Tribune,
Much at stake in University of Utah's RNA interference lawsuit

Under patent law, those who collaborate on research that results in a technological breakthrough are supposed to share the patent and the financial rewards that flow from it.

The U.'s [University of Utah's] lawyers say Bass and Tuschl collaborated in that they were working toward the same end of characterizing the molecules that mediate RNA and often consulted one another at various meetings.

Defense lawyers ridiculed the U.'s case, saying its arguments are a "mockery" of the collaboration requirement, wrote attorney Thomas Maffei in a motion to dismiss the case.

"All scientists studying RNAi could be said to be working to this same end," he wrote. Nor should reading another scientist's published research count as collaboration.

Maffei continued: "If Utah's slippery standard for collaboration were the law, it would have a chilling effect on the free exchange of ideas among academic researchers at scientific meetings."


It would mean that people would be afraid to have those dinner conversations. That would hurt science because they'd be afraid, if they shared their exciting insights and their lab [experiments], they'd lose all," Saris told Maffei's colleague, attorney David Grindler.

"[Bass] would have clammed right up because she would be afraid that if she shared what happened in her lab, that he could then use it to get the patent and she'd lose out completely."

Grindler replied that Bass would have a simple remedy: File a patent application.

"We wouldn't be here today, your Honor, if Dr. Bass had done what any other inventor does if they want a patent," said Grindler, a partner with the Los Angeles firm Irell & Manella.

Note previous post on IPBiz: University of Utah prevails at CAFC in a case of opposing state universities

The recusals by Judge Rader

See Recusals Spur Patent-Case Revisions on two recent recusals by Judge Rader.

Amazon's US 8,676,056

The background section states

Items are often photographed and/or filmed in a studio environment and the resultant images and/or video rendered on a display device associated with a computing device. The resultant images and/or video can also be used as promotional and/or informational collateral associated with the items, which is also viewed on a display device. Post-processing or retouching of images and/or video captured in a studio environment can be time consuming and/or resource intensive, particularly when a consistent look and feel is desired and the items photographed in the studio environment are non-uniform.

The first claim recites

A studio arrangement, comprising:

a background comprising a white cyclorama; a front light source positioned in a longitudinal axis intersecting the background, the longitudinal axis further being substantially perpendicular to a surface of the white cyclorama; an image capture position located between the background and the front light source in the longitudinal axis, the image capture position comprising at least one image capture device equipped with an eighty-five millimeter lens, the at least one image capture device further configured with an ISO setting of about three hundred twenty and an f-stop value of about 5.6; an elevated platform positioned between the image capture position and the background in the longitudinal axis, the front light source being directed toward a subject on the elevated platform; a first rear light source aimed at the background and positioned between the elevated platform and the background in the longitudinal axis, the first rear light source positioned below a top surface of the elevated platform and oriented at an upward angle relative to a floor level; a second rear light source aimed at the background and positioned between the elevated platform and the background in the longitudinal axis, the second rear light source positioned above the top surface of the elevated platform and oriented at a downward angle relative to the floor level; a third rear light source aimed at the background and positioned in a lateral axis intersecting the elevated platform and being substantially perpendicular to the longitudinal axis, the third rear light source further positioned adjacent to a side of the elevated platform; and a fourth rear light source aimed at the background and positioned in the lateral axis adjacent to an opposing side of the elevated platform relative to the third rear light source; wherein a top surface of the elevated platform reflects light emanating from the background such that the elevated platform appears white and a rear edge of the elevated platform is substantially imperceptible to the image capture device; and the first rear light source, the second rear light source, the third rear light source, and the fourth rear light source comprise a combined intensity greater than the front light source according to about a 10:3 ratio.

Thursday, May 08, 2014

GE wins wind turbine inventorship case: "without credible testimony from Wilkins, there was nothing to corroborate"

GE prevailed in the Wilkins case concerning inventorship.

At one point, Wilkins worked for GE in the area of wind turbines.
Later in time, however, Wilkins came to work for competitor Mitsubishi:,
in particular to challenge a GE patent, US '985:

In the ITC proceeding, Mitsubishi challenged the validity
of the ’985 patent and hired Wilkins to search for
relevant prior art. Wilkins worked approximately 1,000
hours in an effort to invalidate the ’985 patent, for which
he received approximately $200,000.


Following the ITC proceedings, Wilkins averred that
he retained ownership rights in the ’985 patent
and U.S.
Patent 6,924,565 (the “’565 patent”), which is directed to
continuous reactive power support for wind turbine
generators that GE prosecuted in Wilkins’s name after he
left the company. Wilkins subsequently entered into
another set of agreements with Mitsubishi under which
Mitsubishi paid him $100,000 for an option to license the
’985 patent and an additional $200,000 for “consulting”
work. J.A. 3961–64. In return, Wilkins agreed to “take
all necessary and reasonable steps” to support Mitsubishi
in actions against GE regarding the ’985 patent. Id.

Of some interest

The district court initially found that GE was likely to
prevail on its claims and preliminarily enjoined Wilkins
from licensing either of the patents in suit. Gen. Electric
Co. v. Wilkins, No. 10-0674, 2011 WL 1740420 (E.D. Cal.
May 5, 2011) (unpublished). After subsequently refusing
four times to take an unqualified oath to tell the truth at
his deposition, behavior that the court deemed “not acceptable,”
Wilkins filed a declaration calling the district
court “obtuse,” “overly assumptive,” and “ignorant.” Gen.
Electric Co. v. Wilkins, No. 10-0674, 2011 WL 220240
(E.D. Cal. Jan. 21, 2011) (unpublished);

In turn

In reaching that conclusion, the district court determined
that Wilkins had undermined his own credibility.
The court noted that Wilkins had received approximately
$2 million from Mitsubishi by the time of the trial and
had indeed demanded those substantial payments in
order for him to “stay in the game” so that Mitsubishi
could “manage” him. Id. at *9–10. The court thus concluded
that Wilkins was “biased,” “a purchased witness/
party,” and “more concerned about gaining personal
advantage than testifying truthfully.” Id. at *3, *12. The
court found that Wilkins lacked credibility based on his
“purposefully evasive” responses to even basic questions,
noting that Wilkins was “repeatedly impeached during
cross-examination, to the point where the veracity of even
simple answers w[as] called into question.” Id. at *3. The
district court judge described Wilkins as “one of the worst
witnesses I have ever seen.” J.A. 842.

Wilkins had involvement in the technology in question while at GE.

Correspondence between Wilkins and two of the
named inventors in spring and summer of 2002 indicates
that the German team was consulting Wilkins for confirmation
that their invention, which was then implemented
on German wind turbines, would work with the different
“60 Hz” grid requirements and turbine components used
in the United States. Gen. Electric, 2012 WL 5989349, at
*5; J.A. 2031, 3171.

The ’985 patent is one of several asserted by GE
against Mitsubishi Heavy Industries, Ltd. and Mitsubishi
Power Systems Americas, Inc. (collectively “Mitsubishi”)
in at least two lawsuits, including a patent infringement
case in the United States District Court for the Southern
District of Texas and an investigation before the United
States International Trade Commission (“ITC”). The ’985
patent is also one of the patents at issue in an antitrust
suit that Mitsubishi brought against GE in the United
States District Court for the Western District of Arkansas

As to the underlying law:

Inventorship is a question of law, which we review
without deference. Ethicon, Inc. v. U.S. Surgical Corp.,
135 F.3d 1456, 1460 (Fed. Cir. 1998). We review the
district court’s underlying findings of fact for clear error.
Id. Because the issuance of a patent creates a presumption
that the named inventors are the true and only
inventors, id., the burden of showing misjoinder or nonjoinder
of inventors is a heavy one and must be proved by
clear and convincing evidence, Hess v. Advanced Cardiovascular
Sys., Inc., 106 F.3d 976, 980 (Fed. Cir. 1997)
(citing Garrett Corp. v. United States, 190 Ct. Cl. 858, 422
F.2d 874, 880 (1970)). Credibility determinations are
entitled to strong deference. See Celsis In Vitro, Inc. v.
CellzDirect, Inc., 664 F.3d 922, 929 (Fed. Cir. 2012);
Baxter Int’l, Inc. v. McGaw, Inc., 149 F.3d 1321, 1330
(Fed. Cir. 1998).

Corroboration is needed (recall the Barbed Wire cases):

We agree with both GE and the district court that, in
light of all the record evidence, Wilkins did not prove his
inventorship claim by clear and convincing evidence
because he did not present any credible testimony that
could be corroborated. In order to guard “against courts
being deceived by inventors who may be tempted to
mischaracterize the events of the past through their
testimony,” the law requires corroboration of a putative
inventor’s credible testimony, the sufficiency of which is
measured under a “rule of reason” standard. Martek
Biosciences Corp. v. Nutrinova, Inc., 579 F.3d 1363, 1374
(Fed. Cir. 2009). Therefore, as a threshold matter, in
order for the rule of reason requirement to even apply
there must be some evidence that a fact-finder can find
reasonable; the putative inventor must first provide
credible testimony that only then must be corroborated.
See, e.g., Univ. of Colo. Found., Inc. v. Am. Cyanamid Co.,
342 F.3d 1298, 1308–09 (Fed. Cir. 2003) (rejecting inventorship
theory based upon putative inventor’s discredited
testimony). The very purpose of the rule of reason requirement
is to verify the credibility of a putative inventor’s
story. Loral Fairchild Corp. v. Matsushita Elec.
Indus. Co., 266 F.3d 1358, 1364 (Fed. Cir. 2001); Ethicon,
135 F.3d at 1461; Price v. Symsek, 988 F.2d 1187, 1195
(Fed. Cir. 1993) (“An evaluation of all pertinent evidence
must be made so that a sound determination of the credibility
of the inventor’s story may be reached.”).

The Ewen case is cited:

Record evidence confirms that Wilkins collected ideas
from many different collaborating GE sources when
preparing the Design and Cost Analysis. J.A. 2365–66.
Wilkins himself conceded that the idea to use a UPS to
perform LVRT was not novel in 2002. Id. at 591–92.
Accordingly, if all Wilkins allegedly contributed to the
’985 patent was the idea to use a UPS, then he would
have contributed nothing beyond what was already
known in the art. That is not sufficient to name Wilkins
as a co-inventor. Fina Oil & Chem. Co. v. Ewen, 123 F.3d
1466, 1473 (Fed. Cir. 1997) (“[A] person will not be a coinventor
if he or she does no more than explain to the real
inventors concepts that are well known and the current
state of the art.”).

Roslin Institute loses Dolly the Sheep case at CAFC

Judge Dyk wrote the opinion finding unpatentable subject matter:

The Board held that all of Roslin’s pending claims—claims 155-159
and 164—were unpatentable subject matter under 35
U.S.C. § 101. The Board also rejected Roslin’s claims as
anticipated and obvious under 35 U.S.C. §§ 102 and 103.
We affirm the Board’s rejection of the claims under § 101.

The application at issue involved claims to the clone, not to
the method of cloning:

Campbell and Wilmut obtained a patent on the somatic
method of cloning mammals, which has been assigned
to Roslin. See U.S. Patent No. 7,514,258 (the ’258
patent). The ’258 patent is not before us in this appeal.
Instead, the dispute here concerns the Patent and Trademark
Office’s (PTO) rejection of Campbell’s and Wilmut’s
claims to the clones themselves, set forth in the ’233
application, titled Quiescent Cell Populations for Nuclear

In re Best was mentioned:

The Board also affirmed the examiner’s finding that
Campbell’s and Wilmut’s claimed subject matter was
anticipated by and obvious in light of the relevant prior
art under 35 U.S.C. §§ 102 and 103. Specifically, the
Board explained that “‘[w]here . . . the claimed and prior
art products are identical or substantially identical, or are
produced by identical or substantially identical processes,
the PTO can require an applicant to prove that the prior
art products do not necessarily or inherently possess the
characteristics of his claimed product.’” J.A. 21 (quoting
In re Best, 562 F.2d 1252, 1255 (CCPA 1977)) (alteration
and omission in original).

One notes

The Court
further clarified that “[a]n unpatentable article, like an
article on which the patent has expired, is in the public
domain and may be made and sold by whoever chooses to
do so.” Id. at 231; see also Bonito Boats, Inc. v. Thunder
Craft Boats, Inc., 489 U.S. 141 (1989). Roslin’s claimed
clones are exact genetic copies of patent ineligible subject
matter.2 Accordingly, they are not eligible for patent


Tuesday, May 06, 2014

The CAFC tackles indefiniteness in In re Packard

The CAFC panel of Judges O'Malley, Plager, and Taranto issued a per curium presidential opinion in In re Packard , with an interesting concurring opinion by Judge Plager.

The major issue was the conflicting standards for indefiniteness (old law, 112 P 2), with the Appellant Packard arguing that the Board had to meet the "insolubly ambiguous" standard to his claims, which he argued he would have passed.

The "majority" did not resolve the legal standard issue as to indefiniteness, but may have created a new kind of "waiver" problem for appellants. For the majority:

Given the role of the applicant in the process, it is a
reasonable implementation of the examination responsibility,
as applied to § 112(b), for the USPTO, upon providing
the applicant a well-grounded identification of clarity
problems, to demand persuasive responses on pain of
rejection. That approach decides this case, because Mr.
Packard did not offer a satisfactory response to wellgrounded
indefiniteness rejections
in this case.


Mr. Packard did not respond adequately to this group
of claim language problems. He ignored some entirely.
As to others, he offered brief explanations of what he
thought certain material in the written description and
figures showed. But he did not focus on the claimlanguage
difficulties, nor did he propose clarifying changes
or show why, on close scrutiny, the existing claim
language really was as reasonably precise as the circumstances


Because Mr. Packard had an opportunity to bring
clarity to his claim language, we affirm the Board’s findings
as to indefiniteness under the MPEP standard
properly applied by the USPTO, the standard which we
have here approved.

Judge Plager's concurring opinion begins

I join the per curiam opinion of the court, and fully
support the conclusion stated therein. While the per
curiam opinion reaches the right result and, as far as it
goes, for the right reasons, it decides the case on grounds
not argued by either party.

The reason for Judge Plager's writing:

I write separately because I am of the view that a petitioner
to this court seeking reversal of a decision is
entitled to an explanation of why the arguments on which
he relied for his appeal did not prevail. I also believe that
the significant issues raised by Mr. Packard deserve to be
addressed directly.

The appellant still loses under Judge Plager's view:

In my view (and that of the per curiam court), it is
within the authority of the USPTO to so interpret the
applicable standard. Further, it is my view that, as a
policy matter, this court should support the USPTO in so
doing. To begin with, I find nothing in the statutes that
precludes the USPTO from adopting such guidance for the
examiners and the Board.17 Beyond that, no precedent of
this court or of the Supreme Court addressing patent
claim construction issues suggests that such a position on
the part of the USPTO would be beyond its authority in
the proper administration of the governing statutes.

As a separate issue, note Microsoft v. DataTern: Judge Rader’s Dissent Withdrawn

cite for Packard case

751 F.3d 1307; 2014 U.S. App. LEXIS 8448; 110 U.S.P.Q.2D (BNA) 1785

Plager, Circuit Judge, concurring.

I join the per curiam opinion of the court, and fully support the conclusion stated therein. While the per curiam opinion reaches the right result and, as far as it goes, for the right reasons, it decides the case on grounds not argued by either party.

I write separately because I am of the view that a petitioner to this court seeking reversal of a decision is entitled to an explanation of why the arguments on which he relied for his appeal did not prevail. I also believe that the significant issues raised by Mr. Packard deserve to be addressed directly.


"High patent grant rate" fable resurrected

Timothy B. Lee [ ] resurrects the old Cecil Quillen "high grant rate" saga in a post Study suggests patent office lowered standards to cope with backlog.

Going back to the past, see for example 4 CHI.-KENT J. INTELL. PROP. 186 and Patent Grant Rates"

Also, Patent Quality Myth

Patent Grant Rate Lower Than Many Academics Think

Sunday, May 04, 2014

"60 Minutes" does 90+ on May 4

In a study of 90+ year olds! it was found that 15 minutes of exercise enhanced longevity. 45 minutes was optimum.

Vitamins, including A,C and E, gave no benefit.

Moderate alcohol and coffee did enhance longevity.

As to weight, maintain or increase. It's not good to skinny when you are old.

As to the future, the number of 90+ will quadruple by mid-century.

As to dementia, the risk after age 65 doubles every five years.

But the correlation of plaque and dementia was questioned.

CBS Sunday Morning on May 4, 2014

Charles begins talking about autistic children. Lesley Stahl does cover story. Owen Susskind. Second, Ben Tracey gives sneak peak on summer movies. Third, Erin Moriarty on degenerate art. Fourth, Anthony Mason on Kevin Spacey on House of Cards. Martha Teichner. Steve Hartman.
Headlines. Ukrainian forces on the move. Northeastern Afghanistan. Washington correspondents dinner. California Chrome. Weather: rain in northeast

First story, breaking through. Ron and Cornelia Susskind on their son Owen. Year 1994. Doctors say autism. Now, 2 in 68 diagnosed. With autism. Owen would watch Disney movies for hours. After 4 years, Owen speaks. Walter does not want to grow up. Book: Life Animated. Owen at Riverview School.
Kevin Pelfrey at Yale. Affinity therapy on autistic children. Owen has girlfriend Emily.
Owen started a Disney club at school. Owen likes Aladdin. Happy diamond in the rough.

Almanac. May 4, 1932 Al Capone entered federal prison. Went to Atlanta. Two years later to Alcatraz. Released in 1939. Died in 1947.

Friday, May 02, 2014

GE Lighting v. AgiLight: introduced evidence becomes adverse to the proponent [ however, it was AgiLight’s own expert who provided the cross-sectional images of the AgiLight devices ]

The case GE Lighting v. AgiLight involved issues of claim construction at the summary judgment stage.

One learns at classes on patent law not to refer to one embodiment as "the invention". Text in the case includes:

We also have found disclaimer when the
patent repeatedly disparaged an embodiment as “antiquated,”
having “inherent inadequacies,” and then detailed
the “deficiencies [that] make it difficult” to use.
Chicago Bd. Options Exch., Inc. v. Int’l Sec. Exch., LLC,
677 F.3d 1361, 1372 (Fed. Cir. 2012). Likewise, we have
used disclaimer to limit a claim element to a feature of
the preferred embodiment when the specification described
that feature as a “very important feature . . . in an
aspect of the present invention,” and disparaged alternatives
to that feature. Inpro II Licensing, S.A.R.L. v. TMobile
USA Inc., 450 F.3d 1350, 1354–55 (Fed. Cir. 2008).
Such circumstances are not present in this case. The
specifications consistently refer to the IDC connector of
Figure 6 merely as a “depicted embodiment.” See, e.g.,
’140 patent col. 4 ll. 5–7, 16–17. They do not describe the
depicted IDC connector—or any of the various limitations
set forth by the district court—as the present invention,
as essential, or as important.

As to excluding the preferred embodiment in a claim construction

We normally do not construe claims in a manner that
would exclude the preferred embodiment, especially
where it is the only disclosed embodiment. See MBO
Labs., Inc. v. Becton, Dickinson & Co., 474 F.3d 1323,
1333 (Fed. Cir. 2007). In particular, “where claims can
reasonably [be] interpreted to include a specific embodiment,
it is incorrect to construe the claims to exclude that
embodiment, absent probative evidence on the contrary.”
Oatey Co. v. IPS Corp., 514 F.3d 1271, 1277 (Fed. Cir.
2008). No such evidence exists in this case that would
require us to construe “substantially ellipsoidal inner
profile” in a manner that would exclude the Figure 7
embodiment. There are no statements during prosecution
or in the specification that indicate the patentee’s intent
to limit his claim to an entire inner profile that is substantially
ellipsoidal. And the specification makes clear
that the patentee considered Figure 7 to have an “ellipsoidal
inner profile.” We conclude that district court erred
when it required the entire inner profile to be substantially
ellipsoidal. The “substantially ellipsoidal inner profile”
limitation can be met if a portion of the inner profile is
substantially ellipsoidal determined in accordance with
the stipulation.

As to shooting oneself in the foot

We agree with AgiLight that attorney argument,
alone, may not create a material question of fact regarding
technical evidence. Here, however, it was AgiLight’s
own expert who provided the cross-sectional images of the
AgiLight devices. Those images are evidence.
attorney merely placed an image of an undisputedly
substantially ellipsoidal inner profile over AgiLight’s
cross-sectional images. These cross-sectional images
point to a genuine dispute as to whether AgiLight’s accused
devices include a substantially ellipsoidal inner
profile. We thus reverse the district court’s grant of
summary judgment with regard to the ’896 patent and
remand. (…)

For similar reasons, we find that the drawings of the
accused products point to a genuine factual dispute as to
whether the AgiLight structure’s outer profile is generally
spherical. Again, the cross-sectional images came from
AgiLight’s own expert and are themselves evidence. GE’s
attorney merely overlaid an undisputedly circular image
over AgiLight’s expert’s cross section.

The outcome

We affirm the grant of summary judgment with regard
to the ’055 patent. We reverse the grant of summary
judgment with regard to the ’140, ’771 and ’896 patents
and remand.