Monday, September 28, 2015

Copying issue with the movie "The Martian"?

See the post at CinemaBlend including the text:

Gorgadze said that Raskhodnikov wrote the script back in 2008 and shopped it around to a number of studios. The lawyer also said that Raskhodnikov is positive that his script made its way to Fox’s main headquarters, and the plot line and "some details" from the script were used for The Martian. The suit is currently slated to be considered in October, and Gorgadze brought up Russia’s Culture Minister, Vladimir Medinsky, saying he has a legal right to suspend the October 8 release of the film until this situation is resolved.


CAFC addresses patent issues related to Vermont's Consumer Protection Act

The background:

On May 8, 2013, Plaintiff-Appellee State of Vermont
(“Vermont” or “the State”) filed a state court action
against Defendant-Appellant MPHJ Technology Investments
LLC (“MPHJ”) alleging violations of the Vermont
Consumer Protection Act, 9 V.S.A. §§ 2451 et seq.
(“VCPA”). The complaint alleged that letters mailed to
Vermont businesses informing them that they may be
infringing certain patents were deceptive and otherwise
violative of the VCPA. MPHJ removed the case twice to
the United States District Court for the District of Vermont,
once under the State’s original complaint (“original
complaint”) and once under the State’s amended complaint
(“amended complaint”). The district court remanded
the case to state court both times. Before this court is
MPHJ’s appeal of the district court’s second remand
order. Because removal under § 1442(a)(2) is not authorized
in the circumstances at issue here, and MPHJ does
not appeal the district court’s other removal rulings in the
second remand order, we affirm.

The issue in the first removal:

MPHJ timely filed a motion to remove the case to the
United States District Court for the District of Vermont
on June 7, 2013 (“the first removal”). MPHJ claimed that
the court had diversity jurisdiction and that the court had
federal question jurisdiction because the validity, infringement,
and enforcement of its patents were at issue.
The State thereafter moved to remand, arguing that its
complaint sounded solely in the VCPA, a state law.
MPHJ then filed a motion to dismiss the case for lack of
personal jurisdiction and a motion for sanctions under
Federal Rules of Civil Procedure (“FRCP”) 11. The district
court held a hearing on these pending motions on
February 25, 2014, and expressed concern that the State’s
second request for an injunction could prevent MPHJ
from sending legitimate assertions regarding patent
infringement to Vermont businesses.

As to jurisdiction, the CAFC noted:

The parties dispute our jurisdiction over this appeal.
The State asserts that we have none and asks that we
dismiss the appeal. MPHJ argues that we do have jurisdiction
over this appeal and correctly points out that, even
if we disagreed with that contention, the appropriate
remedy would be a transfer to the Second Circuit, not
dismissal. 28 U.S.C. § 1295 defines the scope of this
court’s jurisdiction. Specifically, it provides that this
court has jurisdiction “in any civil action arising under, or
in any civil action in which a party has asserted a compulsory
counterclaim arising under, any Act of Congress
relating to patents.” 28 U.S.C. § 1295(a)(1). Because we
find jurisdiction on the basis of at least one of MPHJ’s
counterclaims, counterclaim 5, we have jurisdiction over
this appeal. We, therefore, do not need to assess whether
this court could exercise jurisdiction on the basis of
MPHJ’s other counterclaims or Vermont’s claim.

An article in Law360 is discussed:

Finally, although MPHJ relies on a Law 360 article
featuring an interview with Vermont Attorney General
William Sorrell, which it originally included as an exhibit
to its notice of removal, that article supports the State’s
position. In that interview, which was published two
months after the State filed its conditional motion to
amend, Sorrell was asked whether the lawsuit against
MPHJ was filed under the VCPA:
Q: So the case against MPHJ was filed under the
then existing consumer protection law?
A: Yes.

In the end, MPHJ loses

In these circumstances, we see no reason to
disturb the district court’s finding that the State is not
seeking an injunction that requires MPHJ’s compliance
with the BFAPIA. Given this conclusion, if the State
prevails on the merits in state court, it may not seek an
injunction requiring MPHJ to comply with the BFAPIA
based on the amended complaint. Because MPHJ relies
on the BFAPIA as its basis for removal under
§ 1442(a)(2), the necessary consequence of our decision is
that we find no grounds for removal to federal court.

Given these conclusions, we decline to decide whether
§ 1442(a)(2) applies to intellectual property rights or
whether the phrase “derived from” a federal officer means
the property right at issue must have been obtained by
the removing defendant itself from such an officer, rather
than by a predecessor in interest to that defendant.
Because MPHJ has not appealed the district court’s
ruling pursuant to 28 U.S.C. § 1454, we have no occasion
to address the timeliness or propriety of MPHJ’s attempted
removal under that statute or how that newly enacted
provision should be interpreted in light of the other
amendments to jurisdictional statutes adopted in the AIA.

For the foregoing reasons, we hold that there is no basis
for removal to federal court under § 1442(a)(2). We,
therefore, affirm.

Docket: 2015-1310

Joule's US Patent 8,986,964

Further to the March 2015 post on IPBiz [Bold predictions for biofuel production by Joule Unlimited published in BiofuelsDigest on 23 March 2015 ], note that Joule's US Patent 8,986,964 cites as a reference:

Statement of Opposition in re European Patent No. 2285948, filed Oct. 8, 2014, on behalf of Algenol Biofuels Switzerland GmbH before the European Patent Office, twenty-nine pages. cited by applicant .

Note also


- Ref Country Code: DE

- Ref Legal Event Code: R026

- Ref Document Number: 602009021285

- Country of Ref Document: DE

- Effective date: 20141008

Sunday, September 27, 2015

Another German politician charged with plagiarizing Ph.D. thesis

Of the case of alleged plagiarism by German Defence Minister Ursula van der Leyen:

The Berlin-based law professor Gerhard Dannemann, who investigated her thesis and published his findings on the internet platform Vroniplag Wiki, said several passages of her thesis were clearly from sources that were not attributed.

"In think the flaws are more severe than in the case of Mrs Schavan," Dannemann told Sueddeutsche Zeitung newspaper in an interview to be published on Monday. "We're not talking about a borderline case here."

Schavan resigned as education minister in 2013 after being stripped of her doctorate for plagiarism, embarrassing Merkel and the conservatives in the run-up to the elections that year.


**The Telegraph noted:

Ms von der Leyen is alleged to have copied text in her obstetrics doctorate verbatim from other sources without proper attribution on 27 of the 62 pages of her 1990 dissertation, according to Berlin-based law professor Gerhard Dannemann, who examined the thesis and published his findings on VroniPlag.

The defence minister, a member of Mrs Merkel's centre-right CDU party and a mother of seven, qualified as a doctor in 1987 and was awarded a doctorate in medicine in 1991, working as a gynaecologist and in public health before entering politics, according to her website.


Statistics on the use of 101 at PTAB from IPWatchdog

In a post titled PTAB Wonderland: Statistics show Alice PTAB interpretation not favorable to patent applicants , IPWatchdog concludes

Overall, the above statistics provide a depressing prognosis for those who are hoping that the PTAB will overturn an examiner’s § 101 rejection (even when the examiner did not apply Alice) based on the PTAB’s current application of Alice. Moreover, while we identified no PTAB decisions that have been issued based on the examiner applying Alice during prosecution, the PTAB’s current trends strongly suggest that successfully appealing such a rejection in the future will be challenging. As a result, filing an appeal to the PTAB is no sure escape from Alice’s not-so-wonderful wonderland.

The word "wonderland" appears only in the title and in the conclusion. One suspects the use of "wonderland" is not favorable to PTAB.

Saturday, September 26, 2015

More on CRISPR: Zhang on a class 2 CRISPR effector

The Boston Globe mentions newly published work by Feng Zhang of MIT:

In a study published on Friday, scientists led by Feng Zhang of the Massachusetts Institute of Technology report that they discovered enzymes that cut more precisely than those now in use in CRISPR, a technique with an uncanny ability to make a beeline for a targeted stretch of DNA, snip it out, and replace it.

The abstract of Zhang's paper in Cell includes the text:

The microbial adaptive immune system CRISPR mediates defense against foreign genetic elements through two classes of RNA-guided nuclease effectors. Class 1 effectors utilize multi-protein complexes, whereas class 2 effectors rely on single-component effector proteins such as the well-characterized Cas9. Here, we report characterization of Cpf1, a putative class 2 CRISPR effector. We demonstrate that Cpf1 mediates robust DNA interference with features distinct from Cas9. Cpf1 is a single RNA-guided endonuclease lacking tracrRNA, and it utilizes a T-rich protospacer-adjacent motif. Moreover, Cpf1 cleaves DNA via a staggered DNA double-stranded break.

Boston Globe story on a new development in the CRISPR saga:

EFF discusses dispute over meaning of the word "integer"

Within the post Our Broken Patent System at Work: Patent Owner Insists the “Integers” Do Not Include the Number One , EFF notes

In patent litigation, patent owners and alleged infringers often disagree about the meaning of words in patent claims and ask the court to resolve the differences (a process known as “claim construction”). In Core Wireless’ case against LG, the majority of the disputes seem like usual ones in terms of patent litigation.

Except for the dispute about “integer.”

You may have learned what an “integer” was in high school. It’s a common concept many teenagers learn about when they take algebra. In Ontario, Canada, for example (where Conversant is based), teachers discuss integers in the 9th and 10th grades. As defined in the Ontario Curriculum, an integer is: “Any one of the numbers . . . , –4, –3, –2, –1, 0, +1, +2, +3, +4, . . . ”


To be clear: the law allows patent applicants to redefine words if they want. But the law also says they have to be clear that they are doing that (and in any event, they shouldn't be able to do it years after the patent issues, in the middle of litigation). In Core Wireless’ patent, there is no indication that it used the word “integer” to mean anything other than what we all learn in high school. (Importantly, the word “integer” doesn’t appear in the patent anywhere other than in the claims.)

It appears that Core Wireless is attempting to redefine a word—a word the patent applicant freely chose—because presumably otherwise its lawsuit will fail. The Supreme Court has long disapproved of this kind of game playing. Back in 1886, it wrote:

Some persons seem to suppose that a claim in a patent is like a nose of wax which may be turned and twisted in any direction, by merely referring to the specification, so as to make it include something more than, or something different from, what its words express.

EFF correctly notes the source of the nose of wax line as the Supreme Court, which is more specifically White v. Dunbar, 119 U.S. 47 (1886).

Earlier, the 717MadisonPlace blog had written:

Judge Plager was the author of the “nose of wax” line from Exxon Chem. Patents, Inc. v. Lubrizol Corp., 64 F.3d 1553 (Fed. Cir. 1995) in which he stated:

Claim drafting is itself an art, an art on which the entire patent system today depends. The language through which claims are expressed is not a nose of wax to be pushed and shoved into a form that pleases and that produces a particular result a court may desire. The public generally, and in particular, the patentees’ competitors, are entitled to clear and specific notice of what the inventor claims as his invention. That is not an easy assignment for those who draft claims, but the law requires it, and our duty demands that we enforce the requirement. There is no room in patent claim interpretation for the equivalent of the cy pres doctrine; that would leave the claiming process too indefinite to serve the purposes which lie at the heart of the patent system.


***As to the future, the Recorder notes that there are no patent cases currently docketed by the Supreme Court:

So far the high court has not put a single patent case—or trademark or copyright, for that matter—on its 2015-16 docket. Some patent law experts believe the court is taking a break from patent law after a period of exceptional activity, including a record six decisions in 2013-14.

"I don't think we'll see six" this term, said Emory University School of Law professor Timothy Holbrook. "I wouldn't be surprised if we saw none."

"It may be that other things are crowding out patent law for awhile," said Fenwick & West patent litigation chief Michael Sacksteder.


Thursday, September 24, 2015

CAFC tackles preliminary injunction issues in M-I LLC V. FPUSA, LLC

The outcome

FPUSA, LLC, appeals from an order of the district
court granting M-I LLC’s motion for a preliminary injunction.
The district court enjoined FPUSA from promoting,
selling, or renting a system for recovering drilling fluid
that infringes claims 1 and/or 16 of M-I’s patent. Because
the district court did not abuse its discretion in granting
an injunction with respect to claim 16, we affirm the
preliminary injunction as to claim 16, vacate as to claim
1, and remand with instructions to reform the injunction
consistent with this opinion.

As to claim 16:

The district court did not abuse its discretion in granting
a preliminary injunction as to claim 16. The district
court did not err in finding that M-I is likely to prove
infringement of a valid claim. The court’s construction of
the “first” and “second” modifiers was proper in light of
the claim language and the specification. And based on
FPUSA’s representation that the Vac-Screen system only
applies a vacuum to one screen, the one closest to the
shaker outlet, the district court’s finding that the VacScreen
system meets the “first screen” limitation was not
clearly erroneous. Nor was the district court’s determination
that the Vac-Screen likely meets the “degassing
chamber” limitation, based on the disclosures in the ’959
patent and Technology Evaluation Report.
The district court also did not err in finding that
FPUSA had not raised a substantial question of invalidity.
There is a statutory presumption that issued patents
are valid. 35 U.S.C. § 282. The district court did not err
in determining that the claims of the ’288 patent are
supported by the written description in the parent application,
which was filed in 2006.

Further, the district court did not err in determining
that irreparable harm would likely result based on the
evidence in the record. FPUSA admitted in its briefing
before the district court that enjoining FPUSA would
“leav[e] M-I as the sole source of a substitute technology,”
J.A. 480, which means that absent an injunction, M-I
would likely suffer an irreparable loss of market share.
See Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142,
1151 (Fed. Cir. 2011) (“[The existence of a two-player
market] creates an inference that an infringing sale
amounts to a lost sale for the patentee.”). M-I only started
marketing its product in 2015, while FPUSA has been
on the market since 2010. And while FPUSA faulted
M-I’s reliance on a third-party report as evidence of
FPUSA’s inability to satisfy a judgment, FPUSA did not
offer any evidence of its profitability. Finally, the district
court did not err in finding that the balance of equities is
neutral, and that the public interest weighs in favor of an


Defendants do not make out well in Shire v. Amneal, et al. in Vyvanse® case

The outcome:

Because defendants have failed to raise a genuine issue of material
fact that the asserted claims are obvious, we affirm the
district court’s judgment of nonobviousness.

Because the district court did not abuse its discretion in denying
defendants’ motion to amend their invalidity contentions
to include an on-sale bar claim, we affirm that ruling.

Because in the circumstances of this case Johnson Matthey
cannot be liable for induced infringement prior to the
grant of FDA approval of the application filed by the
ANDA defendants, we reverse the district court’s judgment
that Johnson Matthey has induced infringement of
the asserted compound claims and remand the case for
further proceedings consistent with this opinion.

Some of the history

Shire is the assignee of the patents-in-suit and markets
LDX dimesylate capsules. These capsules are approved
by the Food and Drug Administration (“FDA”) and
distributed under the brand name Vyvanse®. The FDA’s
Approved Drug Products with Therapeutic Equivalence
Evaluations (commonly known as the “Orange Book”) lists
all the patents-in-suit for Vyvanse®.
The ANDA defendants filed Abbreviated New Drug
Applications (“ANDAs”) for their generic versions of
Vyvanse® seeking approval prior to the expiration of the
patents-in-suit. The ANDAs included certifications
pursuant to 21 U.S.C. § 355(j)(2)(A)(vii)(IV) (2012) (commonly
referred to as “Paragraph IV certifications”) stating
that the claims of the patents-in-suit are invalid and/or
not infringed. Pursuant to § 355(j)(2)(B), the ANDA
defendants notified Shire of the Paragraph IV certifications.
In response, Shire sued the ANDA defendants for
infringing the asserted claims, along with certain other
claims not at issue in this appeal, under 35 U.S.C.
§ 271(e) (2012). In each suit, Shire also sued Johnson
Matthey. Johnson Matthey supplied LDX dimesylate to
the ANDA defendants and correspondingly filed a drug
master file with the FDA, see 21 C.F.R. § 314.420, but did
not itself file an ANDA. The district court consolidated all
the lawsuits

As to the obviousness defense:

The district court concluded that (1) the prior art did
not disclose LDX or make it obvious; (2) even if it did, the
prior art did not disclose that LDX was known as an
active drug substance; (3) even if it did, the prior art
provided no motivation to pick LDX as a starting compound;
and (4) even if it did, the prior art provided no
motivation to make mesylate salts of LDX. Op. at *15–17.
Shire did not introduce and the district court did not
analyze any secondary considerations.
Defendants maintain that there is a genuine issue of
material fact whether Australian Patent Application No.
54,168/65 (“AU ’168”), actually discloses LDX. Specifically,
they claim that page 7 of AU ’168 identifies 18 amino
acids by name, including lysine, and states a preference
for L-amino acids and d-amphetamine. Upon reading this
passage, defendants argue, a person of skill in the art
would immediately envisage LDX. Defendants also claim
that Formula IV and Example 24 of AU ’168 disclose
LDX. Defendants also contend that there is a genuine
issue of material fact whether the prior art as a whole
rendered the mesylate salts of LDX obvious. There is also
a genuine issue of material fact, defendants argue,
whether mesylate salts of LDX were obvious and whether
there was a reasonable expectation of success that the
mesylate salt of LDX would serve its intended purpose.
In addition to AU ’168, defendants rely on several other
pieces of prior art, including U.S. Patent No. 3,843,796
(“Miller”), to bolster their obviousness argument.
Shire denies that AU ’168 discloses LDX. Shire
claims that the record fails to show that a person of skill
in the art would: “(i) start with d-amphetamine, (ii) chemically
modify d-amphetamine, (iii) make a prodrug of damphetamine,
(iv) synthesize [LDX] while ignoring other
conjugates of d-amphetamine, (v) make a salt of [LDX]
instead of using the freebase form, and finally (vi) specifically
choose a mesylate salt rather than any other salt.”
Resp. Br. at 19.

The matter of deference to the USPTO for consideration of
a reference of record arises:

On this record, there is no genuine issue of material
fact that the prior art did not disclose or make obvious the
mesylate salt of LDX. Defendants’ primary reference is
AU ’168. AU ’168 is listed on the face of the patents-insuit
and therefore the examiner is presumed to have
considered it.
Defendants therefore “ha[ve] the added
burden of overcoming the deference that is due to a qualified
government agency presumed to have properly done
its job, which includes one or more examiners who are
assumed to have some expertise in interpreting the
references and to be familiar from their work with the
level of skill in the art and whose duty it is to issue only
valid patents.” PowerOasis, Inc. v. T-Mobile USA, Inc.,
522 F.3d 1299, 1304 (Fed. Cir. 2008) (citations omitted).

Here, a generic disclosure is not enough to render
the species obvious:

AU ’168 discloses combining amphetamine, in any of
its stereochemical forms, with numerous amino acids, in
various stereochemistries and with many potential protecting
groups. Nothing in AU ’168 specifically suggests
combining d-amphetamine with L-lysine. Page 7 of AU
’168, relied on heavily by defendants, lists 18 amino acids
“and the like,” and states they can belong to the D- or Lseries.
Even this list, therefore, does not limit itself to 18
amino acids. AU ’168 expressly suggests posttranslational
modifications of the amino acids, see id. at 8,
thus further increasing the potential amino acid groups to
be utilized. While page 7 states that “[a]cids of the Lseries
are preferred,” AU ’168 actually describes numerous
D-series amino acids. Read in context of the whole
reference, a person of skill in the art would, therefore, not
focus exclusively on amino acids with the L stereochemistry.


There is no genuine issue of material fact that AU ’168 does not
disclose L-lysine as part of a limited class of compounds
for ‘A’. AU ’168 suggests that ‘A’ can be selected from one
of three lists, and as defendants’ expert candidly admitted,
Formula IV “does not indicate any preference” among
the different options. Thus, Formula IV discloses all the
compounds from all three lists, the first of which lists 17
amino acids (including lysine), the second of which teaches
over a hundred possible combinations of amino acids
and protecting groups and the third of which does not
even provide a definite list of compounds. This too is not
a definite and limited class. Further, as described above,
AU ’168 does not meaningfully describe a preference for
the L stereochemistry of its amino acids.

As to induced infringement:

Shire counters by asserting that Johnson Matthey is
properly in the suit and can be liable for induced infringement.
According to Shire, this court’s decision in
Forest Laboratories, Inc. v. Ivax Pharmaceuticals, Inc.,
501 F.3d 1263 (Fed. Cir. 2007), held that a party can be
liable “under section 271(e)(2) for its future infringement
under section 271(b) as the ANDA-filers’ API supplier.”
Resp. Br. at 52. Shire contends that on the facts before us
“Forest cannot be distinguished.” Id. at 55 (capitalization
altered). Finally, Shire argues that under the reasoning
of Forest Labs., Johnson Matthey can be enjoined.
Johnson Matthey is correct that it cannot be liable for
the API it sold the ANDA defendants up to this point.
Johnson Matthey, as an API supplier, has thus far done
nothing more than provide material for use by the ANDA
defendants in obtaining FDA approval. As the district
court found, these sales, and the ANDA defendants’ use of
the API for filing the ANDA, were “reasonably related to
the submission of an ANDA.” Op. at *12. As such, Johnson
Matthey’s activities are protected by the safe harbor
of § 271(e)(1), and the district court erred by entering
judgment that Johnson Matthey has induced infringement
of the compound claims at issue.


Wednesday, September 23, 2015

Thermometer patent wars

Related to a ruling on MOTION FOR SUMMARY JUDGMENT OF NONINFRINGEMENT, Exergen v. Kaz, 2015 U.S. Dist. LEXIS 117770

As to "intended purpose" vs. substantive claim limitation:

The facts of this case lend themselves to the conclusion that "detecting human body temperature" states the intended purpose of the claims and is not itself a substantive claim limitation. Although Kaz seizes on the fact that Exergen agreed to a construction of the phrase during the Markman proceeding, construing a term is not determinative of a claim limitation. The patents-in-suit do not teach direct measurement of temperature at a person's core. Rather, they disclose methods of measuring temperature at the forehead, and then computing or otherwise providing "a body temperature approximation." See, e.g., '938 patent claim 54. The steps of the claims constitute integral methods that do not depend on the preamble. Each asserted [*6] claim that recites language from the preamble also incorporates an explicit step for computing or determining an internal body temperature or a body temperature approximation. Thus, the preamble language "is reasonably susceptible to being construed to be merely duplicative of the limitations in the body of the claim."4 Am. Med., 618 F.3d at 1359. Finally, the preamble language was not "clearly added to overcome a [prior art] rejection." Id. The preamble phrase appeared in the original claims of the patent applications and Exergen did not rely on the preamble language to distinguish prior art during patent prosecution.

Of expert opinions in summary judgment:

It is unnecessary for the court to determine now the admissibility of Kaz's evidence to decide the motion for summary judgment. At this juncture, the court must draw all reasonable inferences in Exergen's favor as the nonmoving party.8 See Fed. R. Civ. P. 56. In doing so, the court finds that Dr. Collins' evidence, if credited by the jury, could warrant a conclusion that the devices meet the "peak temperature" limitation, either literally or under the doctrine of equivalents.9 See, e.g., In re Gabapentin Patent Litig., 503 F.3d 1254, 1259-1261 (Fed. Cir. 2007) (conflicting expert opinions sufficient to defeat summary judgment). That said, the court will deny Exergen's motion to strike. [*15] The court will give the parties (if either so chooses) the opportunity to take the depositions of Cho and Frick for the limited purpose of authenticating the Microlife documents on which Gorsich relies. The court will decide the admissibility question by way of an appropriate motion in limine prior to trial.

There was an earlier order relating to an assertion of invalidity; from the National Law Review on the motion by Kaz:

In its motion, Kaz contended that the ’813 patent, which relates to measuring body temperature at the ear, teaches the key elements of the asserted claims and that Exergen was estopped from arguing otherwise based upon positions it took in an earlier litigation involving the ’813 patent. In that earlier case, Exergen alleged that certain temporal artery thermometers similar to Kaz’s infringed claim 7 of the ’813 patent, which is directed to a thermometer for measuring temperature at any “biological surface tissue.” Exergen also claimed that claim 7 of the ’813 patent was enabled by the ’813 specification. As a result, Kaz asserted that Exergen cannot reverse course now and claim that the ’813 patent does not disclose essential elements of the patents asserted against Kaz.

In response, Exergen stated that its position in the earlier case—“that claim 7 of the ’813 patent is both enabled and covers temporal artery thermometers”—and its position here—“that temporal artery thermometers were invented years after the ’813 patent”—are not directly inconsistent and thus, estoppel is not triggered.

The Court sided with Exergen, explaining that after-arising technology—like temporal artery thermometers—can be captured within the scope of the broadly-drafted ’813 patent claims without necessitating the conclusion that “the ’813 patent disclosed the later invention.” Similarly, Judge Stearns found that the earlier jury’s finding of enablement of claim 7 of the ’813 patent “does not conclusively establish that the ’813 patent enabled the making of temporal artery thermometers.

link to NLR article:

A genus does not necessarily anticipate (or render obvious) a species.

Dean Baker's piece on 23 Sept 2015 in the New York Times on pharma patents

An op-ed by Dean Baker in the New York Times begins:

The United States stands out among wealthy countries in that we give drug companies patent monopolies on drugs that are essential for people’s health or lives and then allows them to charge whatever they want. Every other wealthy country has some system of price controls or negotiated prices where the government limits the extent to which drug companies can exploit the monopoly it has given them. The result is that we pay roughly twice as much for our drugs as the average for other wealthy countries. This additional cost is not associated with better care; we are just paying more for the same drugs.

Within the Baker piece, one has the text:

Drug companies routinely mislead doctors and the public about the safety and effectiveness of their drugs to increase sales. The cost in terms of bad health outcomes and avoidable deaths runs into the tens of billions of dollars every year.

And Baker talks about giving the NIH money for more research:

We don’t need patent monopolies to support research. We already spend more than $30 billion a year financing research through the National Institutes of Health. Everyone, including the drug companies, agrees that this money is very productive. We could double or triple this spending and replace the patent supported research done by the drug companies. With the research costs paid upfront, most drugs would be available for the same price as a bottle of generic aspirin.

link to Baker piece:

** IPBiz talked earlier about Baker's ideas in the post The debate about the proposed IPR carve-out for pharma patents , including the text:

One notes that the bulk of money to bring a drug to market is in running the trials, not in getting a patent on the drug.

Baker received his B.A. from Swarthmore College and his Ph.D. in Economics from the University of Michigan.


The matter of running trials has taken on new meaning following PTAB's denial of the IPR petition on Tecfidera.

Russian Vladimir Platonov loses degree over plagiarism

Several German politicians lost graduate degrees over plagiarism; now a Russian suffered the same fate; the Moscow Times reports

The Ministry of Education and Science has stripped a former speaker of the Moscow City Duma of his doctoral degree, after he conceded that his thesis contained "unconscientious borrowing."

The ministry said it acted on the request of the former speaker Vladimir Platonov, to revoke his degree and on a ruling by the state certification board, according to the ministry's order published this week by — an online group aimed at exposing intellectual fraud by public figures.

Dissernet exposed parts of Platonov's thesis for a doctoral law degree as having been lifted from other sources, according to the group's report last fall.

Platonov responded months later, saying he had made a "difficult decision" and asked the State Commission for Academic Degrees and Titles to revoke his degree.

In the United States, VP Joe Biden was caught plagiarizing in law school and Glenn Poshard was caught copying in his Ph.D. thesis. Biden had to repeat the course, but graduated and
went on to other things. Poshard kept his Ph.D. and job.

Some facts on Daraprim (Pyrimethamine)

PEOPLE Magazine introduced a story on Martin Shkreli and the specialty drug Daraprim:

If you guessed, "the kind who would buy a patent for a 62-year-old drug and hike its price 4,000 percent," you're absolutely right – meet Martin Shkreli.

Shkreli, 32, landed in the hot seat this week when news broke that his company, Turing Pharmaceuticals, purchased the rights to the drug Daraprim, used to treat the parasitic infection toxoplasmosis (HIV and AIDS patients are especially susceptible). The company that had previously held the rights to the drug was selling it at $18 a pill; Turing changed the price to $750.


Wikipedia notes:

Daraprim has been available since 1953, meaning the patent for Pyrimethamine has expired. In the United States the market for this product is quite small so no generic manufacturer has emerged. In 2010 GlaxoSmithKline sold the marketing rights for Daraprim to CorePharma and in 2015 the rights were bought by Turing Pharmaceuticals

What is going on with Daraprim is not a patent issue. It is the FDA, not the US Patent Office, which grants exclusivity as to specialty drugs.

**One can find a more thorough discussion of the matter at InThePipeline
Martin Shkreli Has One Idea, And It’s a Bad One


**From The FDA Law Blog in June 2015:

Noting that revoking patent protection is not a practical (or realistic) way to address the problem he lays out, Dr. Nichols says that we should consider revoking non-patent exclusivity if a company proces a drug too high:

What if we changed existing law enough to say this to developers of newly approved specialty drugs: you can price them as you will, this is America, but if you price them high enough, you will forfeit the marketing and/or data exclusivity grants that the FDA is empowered to make – but not your patents from the US Patent Office – and encourage competitors to enter the market with all our regulatory powers and fast track authorities.


From the FDA website:


Exclusivity. Exclusivity is exclusive marketing rights granted by the FDA upon approval of a drug and can run concurrently with a patent
or not. It prevents the submission or effective approval of ANDAs or applications described in Section 505(b)(2) of the Act, and was
designed to promote a balance between new drug innovation and generic drug competition.
Exclusivity is granted upon approval of a drug product if the statutory requirements are met. The length of time that FDA grants new drug
exclusivity depends on the type of exclusivity. Note that exclusivity is not added to the patent life. Hatch Waxman exclusivity (5-year, 3-
year, and 180-day) is described in 21 C.F.R. 314.108.
<-- link: As to specialty drugs-->

In 2010, specialty drug approvals by the FDA exceeded traditional drug approvals for the first time, a trend that has continued each year since. And in 2013, 60 percent of the drugs approved by the FDA are expected to be specialty drugs. Under current law, brand name biologic drugs are given a 12 year exclusivity period upon approval from the FDA, while traditional drugs are given exclusivity protection for just 5 years. Granting exclusivity to specialty drugs removes the economic benefits of price competition, resulting in higher prices relative to what they would be in a perfectly competitive market. The Government Accountability Office released a report examining trends in Medicare Part B spending and found that in 2010, not only did 10 drugs account for 44 percent of all Part B spending, but none of these drugs had a generic version also approved by the FDA.


See also the IPBiz post on colchicine, wherein the FDA granted exclusivity on a drug known to treat gout for hundreds of years.
[The colchicine case is different from the Daraprim case in that there were other makers of pharmaceutical grade colchicine.]

As to specialty drugs:

Treatment for complex or life-threatening health conditions now includes the use of certain drugs broadly referred to as specialty drugs. These are typically made using advanced biotechnology methods and are referred to as “biologics” or “large molecules.”4 While no standard definition exists, specialty drugs generally are defined as having one or more of the following characteristics:
• Complex to manufacture, requiring special handling and administration
• Injectable or oral, self-administered or administered by a health care provider
• Costly, both in total and on a per-patient basis; taken by a relatively small share of the population who have complex medical conditions
• Difficult for patients to take without ongoing clinical support; also challenging for providers to manage5

A decade ago, specialty drugs were commonly referred to as “injectable drugs” and were used to treat conditions like cancer, rheumatoid arthritis, multiple sclerosis, and growth disorders; today, their use has expanded beyond those conditions to include treatment for other chronic and inflammatory conditions and through other modes of administration. The Food and Drug Administration (FDA) has approved about 300 drugs, which many industry stakeholders consider “specialty,” compared to a mere handful available two decades


Costs for patients. A relatively small share of the population uses specialty drugs—in the commercial population, approximately three to four of every 100 plan enrollees use at least one.21,22 Therefore, per-person specialty drug costs are high, ranging from several thousand dollars to hundreds of thousands of dollars annually for some of the highest-cost products.

In 2012, MS drugs accounted for 10% of specialty drug outlay.

[From United Health Care, April 2014]

IMS noted

Specialty pharmacy, which once occupied only a small niche in the marketplace, has now become the largest growth area in the pharmacy industry. IMS Health data shows a clear trend of increasing utilization for top Rheumatoid Arthritis (RA) and Oral Oncology products in the specialty channel with decreasing utilization in retail channel over the past 5 years (Figure 2). Currently, three pharmacies -- Express Scripts, CVS Caremark and Walgreens -- make up more than 50% of the specialty drug market while the rest of the market is comprised of hundreds of smaller specialty pharmacies, including Diplomat pharmacy and Omnicare’s advanced care scripts4. However, due to the commoditization of retail pharmacy dispensing, there has been an ever-growing increase in the number of pharmacy providers dispensing specialty drugs, driving up the level of competition. In addition to traditional specialty pharmacies which are independent or owned by pharmacy benefit managers (PBMs), there is a range of new entities entering the specialty pharmacy marketplace. The new players include specialty pharmacies operated by wholesalers, large hospital organizations, physician practices and retail pharmacies. As a result, there has been an emergence of several specialty pharmacy trade associations representing viewpoints from a diverse set of players and further increasing the complexity of this market.

Appellants get no traction at PTAB in Appeal 2013-008852 (Malek)

From the decision:

We have reviewed the Examiner’s rejections in light of Appellants’ contentions that the Examiner has erred. Further, we have reviewed the Examiner’s response to Appellants’ arguments. The Examiner has provided a comprehensive response to each argument presented by the Appellants on pages 5 through 11 of the Answer. We have reviewed this response and concur with the Examiner’s findings and conclusions. We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellants’ Appeal Brief.

PTAB oddly grants re-hearing in 90/012,087

The PTAB decision states the law on re-hearing:

A request for rehearing must state with particularity the points believed to have been misapprehended or overlooked. Arguments not raised in the briefs before the Board and evidence not previously relied upon in the briefs are not permitted in the request for rehearing. See 37 C.F.R. § 41.52(a)(1). Also, a request for rehearing is not an opportunity to merely express disagreement with a decision without setting forth points believed to have been misapprehended or overlooked. The proper course for an Applicant dissatisfied with a Board decision is to seek judicial review, not to file a request for rehearing to reargue issues that have already been decided. See 35 U.S.C. §§ 141, 145. Appellant seeks a rehearing arguing the Board overlooked discouragement for the asserted combinations. Req. Reh’g. 2.

Then, PTAB observes

Appellant’s request is improper because, although characterizing the basis as a point overlooked, it is merely an expression of disagreement with our Decision in connection with whether the prior art teaches away from the applied combination of prior art references. In particular Appellant “submits that the Examiner and Board overlooked the fact that the Hayduke reference when viewed in its entirety expressly teaches away from the proposed combination with Hartmann and the proposed modification.” Req. Reh’g. 2. Appellant takes issue with our prior Decision, contending there is no requirement that Appellant establish that Hayduke cannot have an aperture to demonstrate Hayduke teaches away from the modification in view of the teachings of Hartmann, only that Hayduke discouraged the aperture. Id. In support of a teaching away argument, Appellant contends Figure 9 and Column 9, line 64 to Column 10, line 15 of Hayduke would be understood to require the absence of screw holes in cover plate 90. Req. Reh’g 3–4. According to Appellant, “[t]he proposed combination would provide direct access to the box behind back plate 4. Therefore, the proposed modification would not enable ‘only the outlets with the female receptacles for receiving plugs remain visible.’” Id. at 5. Although we consider Appellant’s Request to amount to no more than an improper expression of dissatisfaction with a Board Decision, rather than an appropriate identification of points believed to have been misapprehended or overlooked, we address the specifics of the alleged errors as follows

Patent owner gets re-hearing at PTAB but still loses in Reexamination 95/001,775

In Engineered Plastics v. ADA, the patent owner got a re-hearing but still lost.

The Patent Owner requests reconsideration (hereinafter "Rehearing Request" or "Reh'g Req.") under 37 C.F.R. § 41.79 of our Decision mailed March 26, 2015 (hereinafter "Original Decision") affirming the Examiner's final rejections of the appealed claims 1, 2 and 19–22.

We grant the Rehearing Request to the extent that we consider the Patent Owner's arguments infra, and further explain the Original Decision. However, we deny the request to modify the Original Decision.

Of argument A

More importantly, regardless of what the Trafixigns ’732 statement may mean, the Patent Owner overlooks the actual basis for affirming the rejection, which is that Wehmeyer explicitly discloses installation of plates in freshly poured (or hardened) concrete, and also specifically discloses wetset installation with the lugs attached to the plates (Original Decision 6–7; Wehmeyer, col. 2, ll. 36–44, col. 8, ll. 17–21).

Of argument D (and attorney argument):

However, the Patent Owner merely provides attorney argument to support its assertion. Attorney argument is no substitute for such evidence. Enzo Biochem, Inc. v. Gen-Probe, Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005); In re Schulze, 346 F.2d 600, 602 (CCPA 1965) ("Argument in the brief does not take the place of evidence in the record."); see also In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). The Patent Owner also ignores the disclosure in Szekely that its tile has a thickness of 0.100 inch (Szekely, col. 5, l. 45), which is much closer to 0.0598 inch said to allow for tile removal than to 0.312 inch said to preclude tile removal. Thus, as stated in the Original Decision: the limited evidence of record as to this issue, which is the ’491 patent itself, specifically teaches that wet-set tactile warning surface units having a flange with a hole therein are removable and replaceable, contrary to the assertion now made by the Patent Owner in this appeal. (

Tuesday, September 22, 2015

Bank of America into Bitcoin in published US application 20150262173

The first claim in the published application relating to manipulating cryptocurrency:

A system comprising:

a memory operable to: store a customer account associated with a customer; and

a processor communicatively coupled to the memory,

the memory including executable instructions that upon execution cause the system to: receive an electronic request for a fund transfer from the customer; initiate a debit of a first amount of a first currency from the customer account; determine whether using cryptocurrency is optimal; in response to determining using cryptocurrency is optimal: transfer the first amount of the first currency into an account associated with a first cryptocurrency exchange; initiate the purchase of a first quantity of a cryptocurrency from the first cryptocurrency exchange, wherein the first quantity of cryptocurrency is equivalent to the first amount of the first currency; transfer the first quantity of the cryptocurrency to a second cryptocurrency exchange; initiate, essentially simultaneously as the initiation of the purchase, the sale of the first quantity of the cryptocurrency at the second cryptocurrency exchange, wherein the sale of the first quantity of cryptocurrency results in a second amount of a second currency; and communicate a message to a local automated clearing house, the message requesting a transfer of at least a portion of the second amount of the second currency to a recipient.

Paragraph 12 of the specification:

FIG. 1 illustrates an example cryptocurrency wire transfer environment 100 according to certain embodiments. In general, wire transfers are used by enterprises, such as financial institutions, to transfer funds from one customer account to another customer account. Some wire transfers may move funds from a customer account in one country to a customer account in another country. In response, the enterprise may decide to use a cryptocurrency to transfer the funds. A cryptocurrency is typically a peer-to-peer, decentralized, digital currency whose implementation relies on the principles of cryptography to validate transactions and generate the currency itself. Some examples of cryptocurrencies are: Bitcoin, Litecoin, Ripple, Peercoin, and Dogecoin. In some instances, a cryptocurrency, such as MintChip, may be backed by a government (e.g., Canada). To transfer funds using cryptocurrency, an enterprise may receive payment from a customer and purchase a quantity of a chosen cryptocurrency, at a local cryptocurrency exchange, in an amount equivalent to the received payment. Essentially simultaneously or shortly thereafter, the enterprise may sell the quantity of the chosen cryptocurrency at a foreign cryptocurrency exchange, resulting in a foreign currency that is used by the country in which the recipient account is located. The enterprise may also transfer the quantity of the chosen cryptocurrency from the local cryptocurrency exchange to the foreign cryptocurrency exchange.

CAFC grants amicus request in Lexmark v. Impression Products

Amici Curiae LG Electronics, Inc., Dell Inc., Google Inc., Intel Corporation, L Brands Inc., Newegg Inc., Ninestar Image Tech Limited, QVC, Inc., Samsung Electronics Co., SAS Institute Inc., and Xilinx, Inc. move to participate in the oral argument scheduled for October 2, 2015. Lexmark International, Inc. opposes.

The motion was granted.

Monday, September 21, 2015

Did PTAB and the NLR analyze the facts of the Tecfidera petition properly?

A post in the National Law Review, dated 10 September 2015,

Clinical Trials As Prior Art: PTAB Denies Bass IPR Petition With Only A "Hope" of Efficacy includes the text:

The Board rejected the challenge based on Kappos for a variety of reasons. Notably, the Board explained that Kappos does not contain “a description that DMF is useful for treating MS; rather, at best it is a ‘hope’ that DMF will turn out to be useful for treating MS. A hope may or may not come true and does not establish that DMF is useful for treating MS.” IPR2015-01136, Paper 23 at 12-13. The Board went on to explain that a Phase 2 study was needed to demonstrate efficacy: “Phase II may or may not establish that DMF is useful for treating MS. However, prior to completion and evaluation of Phase II, one skilled in the art would not necessarily understand from Kappos that DMF is useful for treating MS.” IPR2015-01136, Paper 23 at 10-11

This NLR text ignores IPBiz text from 3 September 2015, a week earlier:

One notes that if a study showed a product containing a mixture of fumaric acid
esters reduced the number of gadolinium-enhancing (Gd+) lesions in
patients with RRMS , then therapeutic effectiveness
has been established. The Kappos people had already found --a therapeutically effective amount--.
Optimizing amounts when the effect is demonstrated is usually considered "obvious."
MRI measurements are standards used by the FDA to judge effectiveness for many
disease-modifying MS drugs. [note: the "gadolinum" refers to an MRI scan technique,
including paramagnetic gadolinium, which is sensitive to newly-formed lesions;
this is related to the NMR relaxation time T1, and is distinct from MRI measures
related to T2, which are not necessarily solely related to "newly-formed" lesions]

link to IPBiz post:

One notes that pre-clinical studies, which precede Phase II studies, are done to establish preliminary efficacy. A problem with the PTAB decision: are Phase II studies necessary to establish utility in the patent law context?

In the context of this case, the fumaric acid esters (which apparently were di-methyl and mono-methyl in the Kappos work) did show positive results in the gadolinium MRI.
One notes from a paper published in 1987: Gadolinium DTPA is a paramagnetic contrast agent that does not cross an intact blood–brain barrier. We studied 16 patients with multiple sclerosis, using magnetic resonance imaging, gadolinium-enhanced magnetic resonance imaging, and computed tomographic scans. Gadolinium enhancement of multiple sclerosis plaques correlated with the clinical activity of the disease and corresponded anatomically with the symptoms and signs.

Next up: trade secret trolls?

From The Verge:

Of course, frivolous lawsuits are nothing new, but recent shifts have made trade secrets a particularly attractive claim for anyone looking to go after a deep-pocketed tech company. As courts weaken patent protection to counteract trolls, companies have been keeping more of their intellectual property as unregistered trade secrets. That means more legitimate claims as companies choose to keep their tools as trade secrets rather than patents, but it also gives potential trolls more cover if they want to puff up a shaky claim into a quick settlement.


University of Arizona places gag order on discussion of promoted professor plagiarist

From within an Arizona Daily Star article on plagiarism by Professor Susannah Dickinson titled UA professor who plagiarized student gets tenure :

The provost has explicitly prohibited us from discussing with anyone particulars related to the individuals mentioned or implicated in the story, including the media. Including the faculty. Including students.”

Miller also cautioned employees to be “careful about believing what you read,” in the Star — even though the UA has never challenged the accuracy of the newspaper’s reporting on the Dickinson case.

The UA declined to release documents related to the tenure award. In response to a recent public records request, the school provided the Star with a version of Dickinson’s personnel file stripped of any information related to the plagiarism case or the tenure decision.

Jury finds for Exmark against Briggs & Stratton in patent infringement case

See Exmark awarded 24.3 million in patent case

Exmark is a division of Toro.

The Milwaukee Journal Sentinel added details-->

In a federal court decision in Nebraska, announced Monday, jurors said that Exmark was entitled to $24.3 million in damages and also found that the infringement was willful, which would allow the judge to enhance the jury's damages award.

Exmark's lawsuit, filed in 2010, was aimed at certain Snapper and Ferris brand mowers manufactured by Briggs & Stratton.

The patent was issued in 1999, according to court records.

Briggs and another defendant in the case, Schiller Grounds Care Inc. of Pennsylvania, argued that the patent was invalid for several reasons.

But in an earlier ruling, a federal judge said it had been reviewed by the U.S. Patent and Trademark Office and that its claims were patentable.

The District Court jury decided that Briggs willfully infringed on Exmark's patent.

The jury, however, found that redesigned versions of the mowers, currently in the marketplace, did not infringe on the patent.

Briggs & Stratton spokeswoman Laura Timm said the company strongly disagreed with the verdict.

The company "intends to vigorously pursue its rights through post-trial motions and, if necessary, on appeal," Timm said in a statement.

Exmark spokesman Branden Happel said the company was pleased with the verdict.

"We work hard to develop innovative products and solutions to help our customers and vigorously protect and defend our patents and other intellectual property rights," Happel said in a statement.


CAFC affirms award against Samsung in Summit6 case

This appeal is from a final judgment entered on a jury verdict in a patent case. The jury found the asserted claims of U.S. Patent No. 7,765,482 (“the ’482 patent”) not invalid and infringed. The jury awarded Appellee-Cross Appellant Summit 6, LLC (“Summit”) $15 million in damages. The parties raise various issues relating to the proper legal framework for evaluating reasonable royalty damages in the patent infringement context. Also before us are questions regarding claim construction, infringement, invalidity, and the admissibility of expert testimony. For the reasons explained below, we affirm

Sunday, September 20, 2015

Phil Silvers featured on Sunday Morning Almanac on 20 Sept 2015

Almanac noted of Phil Silvers, the King of Chutzpah:

Eventually renamed for its star, "The Phil Silvers Show" ran for just four years, but won EIGHT Emmys, including a Best Actor Award for Silvers in 1956.

Related to patent reformers talking about the "peanut butter and jelly sandwich" patent of Smuckers,
recall the episode of the Silvers show: "The Case of Private Harry Speakup", wherein a recruit's pet chimpanzee is sworn into the Army.

Of some IP interest, the last line of the last episode was -- "Th-th-that's all, folks!" --, which of course is the signature line of Porky Pig. Separately, CBS, which cancelled the show, immediately sold the rights to NBC, which benefitted greatly from the re-runs.

Of note to New Jersey, the "moment of nature" featured great blue herons in Veterans Park in
Hamilton Township, New Jersey.


Other posts of IPBiz relating to Hamilton:


Holes in the safest city conclusion?

**A picture of the Hamilton Nazi at

Friday, September 18, 2015

Carla Hills weighs in against patent reform

From TheHill -->

We must not erode this incentive to develop novel ideas or restrict the opportunity for inventors to license their know-how. Unfortunately, there is legitimate concern that patent legislation currently pending before the U.S. Congress -- H.R. 9 (the Innovation Act) and S. 1137 (the PATENT Act) -- would do just that.

A stated aim of the pending legislation is to stop abusive patent litigation. Without question those who seek to abuse the patent system should be rooted out for the same reasons that our courts guard against abusive litigation involving physical property. But as currently drafted, the bills would fundamentally weaken basic patent rights by protecting infringers at the expense of patent holders. This would be devastating to small and large entities that invent or seek licenses to use inventions of others.

A particularly problematic component of the House and Senate bills is the so-called “customer stay” provision, which like other parts of the legislation is much broader than necessary to achieve its stated goals. The provision seeks to ensure that a business that buys and uses a patent-infringing off-the-shelf product may avoid litigation that is more appropriately brought against the manufacturer of the product. The provision would “stay” or stop litigation against such “customers” and force patent holders to first go after “upstream” manufacturers. The problem is that the definition of “customer” is so broad that the right to stay litigation would also apply to large manufacturers, assemblers, and retailers that may reap millions or even billions in profits from using and selling the infringing product or component.

R & L Carriers v. Qualcomm

R+L Carriers, Inc. (“R+L”) brought suit against, inter
alia, Qualcomm, Inc. (“Qualcomm”), asserting infringement
of the claims of U.S. Patent No. 6,401,078 (“the ’078
patent”). While the case was pending, R+L filed for ex
parte reexamination of the ’078 patent. Although the
patent survived, R+L added language to all of the claims
at issue. Because the district court determined that the
new claims were not substantially identical to the initial
claims of the ’078 patent, and because there was no dispute
that Qualcomm ceased its allegedly infringing activity
before the reexamination certificate issued, R+L
stipulated to final judgment, dismissing its infringement
claim against Qualcomm. R+L appeals the district court’s
determination that the amendments made during reexamination
resulted in a substantive change in claim
scope. For the reasons set forth below, we affirm, albeit
on slightly different grounds than those relied upon by the
district court.

As to intervening rights

As an initial matter, we disagree with both Qualcomm
and R+L on the primary premises of their arguments. As
for Qualcomm, we do not agree that claim 1 was substantively
narrowed in reexamination because insertion of the
term “advance” into the claims limited claim 1 to only
computer-generated loading manifests. Qualcomm reads
too much into the term “advance,” which, as discussed
below, was added to the claim for reasons unrelated to the
format for preparing the loading manifests. Speculation
about what R+L was attempting to accomplish vis-à-vis
the N&M reference does not change our view.
Under the statute and our prior case law, it is irrelevant
why an amended claim is narrowed during reexamination,
or even whether the patentee intended to narrow
the claim in a particular way. If the scope of the amended
claim is not “substantially identical” to the scope of the
original claim—based on a normal claim construction
analysis—per § 252, that fact affects intervening rights.
See 35 U.S.C. § 307(b).

The bottom line

Accordingly, we conclude that amended claim 1 is not
“substantially identical” to original claim 1. 35 U.S.C.
§ 252. R+L is, thus, not entitled to infringement damages
prior to issuance of the reexamination certificate for the
’078 patent. Since R+L concedes that Qualcomm did not
perform any allegedly infringing conduct after the PTO
issued the reexamination certificate, the district court
properly entered judgment dismissing the case against
For the foregoing reasons, we affirm the judgment of
the district court dismissing R+L’s infringement claims
against Qualcomm.


CAFC on laches in SCA Hygiene Products v. First Quality

We convene en banc to resolve whether, in light of the
Supreme Court’s recent decision in Petrella v. MetroGoldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014), laches
remains a defense to legal relief in a patent infringement
suit. We conclude that Congress codified a laches defense
in 35 U.S.C. § 282(b)(1) that may bar legal remedies.
Accordingly, we have no judicial authority to question the
law’s propriety. Whether Congress considered the quandary in Petrella is irrelevant—in the 1952 Patent Act,
Congress settled that laches and a time limitation on the
recovery of damages can coexist in patent law. We must
respect that statutory law.
Nevertheless, we must adjust the laches defense in
one respect to harmonize it with Petrella and other Supreme Court precedent. We emphasize that equitable
principles apply whenever an accused infringer seeks to
use laches to bar ongoing relief. Specifically, as to injunc-
tions, considerations of laches fit naturally within the
eBay framework. In contrast, Menendez v. Holt, 128 U.S.
514 (1888), and Petrella counsel that laches will only
foreclose an ongoing royalty in extraordinary circumstances.

As to reasoning:

Four different portions of Aukerman’s reasoning are
especially relevant to this case. First, we determined in
Aukerman that laches was codified in 35 U.S.C. § 282.
Aukerman explained that, “[a]s a defense to a claim of
patent infringement, laches was well established at the
time of recodification of the patent laws in 1952.” Id. at
1029. We also credited P.J. Federico’s Commentary on the
New Patent Act for its observation that the second paragraph
of § 282 includes “equitable defenses such as laches,
estoppel and unclean hands.” Id. (quoting P.J.
Federico, Commentary on the New Patent Act, 35 U.S.C.A.
1, 55 (West 1954) (hereinafter Federico Commentary)).

Second, Aukerman addressed the argument that laches
conflicts with 35 U.S.C. § 286, which limits recovery of
damages to the six years prior to the complaint. We
explained that “[i]n other areas of our jurisdiction, laches
is routinely applied within the prescribed statute of
limitations period for bringing the claim.” Id. at 1030
(citing Cornetta v. United States, 851 F.2d 1372 (Fed. Cir.
1988) (en banc) (military pay); Reconstruction Finance
Corp. v. Harrisons & Crosfield Ltd., 204 F.2d 366 (2d
Cir.), cert. denied, 346 U.S. 854 (1953) (breach of contract)).
Moreover, we observed that § 286 (or a virtually
identical analogue) “has been in the patent statute since
1897,” and that, “[w]ithout exception, all circuits recognized
laches as a defense to a charge of patent infringement
despite the reenactment of the damages limitation
in the 1952 statute.” Id. Aukerman also noted that
“section 286 is not a statute of limitations in the sense of
barring a suit for infringement.” Id. Rather, “the effect of
section 286 is to limit recovery to damages for infringing
acts committed within six years of the date of the filing of
the infringement action.” Id. Finally, we reasoned that
laches and a statute of limitations are not inherently
incompatible. “By section 286, Congress imposed an
arbitrary limitation on the period for which damages may
be awarded on any claim for patent infringement. Laches,
on the other hand, invokes the discretionary power of
the district court to limit the defendant’s liability for
infringement by reason of the equities between the particular
parties.” Id. (emphasis in original).
Third, we rejected the argument “that laches, by reason
of being an equitable defense, may be applied only to
monetary awards resulting from an equitable accounting,
not to legal claims for damages.” Aukerman, 960 F.2d at
1031. According to the Aukerman court, the merger of
law and equity courts allowed laches to bar legal relief.
When in 1915 Congress enacted 28 U.S.C. § 398—which
authorized parties to plead equitable defenses at law
without having to file a separate bill in equity—“laches
became available to bar legal relief, including patent
damage actions.” Id. We also found persuasive the fact
that Federal Rule of Civil Procedure 8(c) recognizes laches
as a defense in civil actions. Id.
Fourth, Aukerman considered whether laches bars recovery
of pre-filing damages only, or whether it precludes
the entire suit. In ruling that laches prohibits recovery of
pre-filing damages only, Aukerman relied on the Supreme
Court’s Menendez decision. Aukerman quoted the following
portion of Menendez:


Thursday, September 17, 2015

Apple wins against Samsung at CAFC

Injunction win for Apple in smart phone wars.

From the decision:

Despite the narrowness of Apple’s proposed injunction,
the district court denied Apple’s motion, finding that
Apple had not shown that it would suffer irreparable
harm without an injunction. Id. at *23. Predicated
entirely on this finding, the district court reasoned that
Apple could not establish that monetary damages were
inadequate. Id. at *19. Although the district court found
that the public interest favored Apple’s request and that
the narrowness of Apple’s proposed injunction tilted the
balance of hardships in Apple’s favor, it determined that
these factors did not overcome Apple’s lack of irreparable
harm. Id. at *23. Apple appealed. We have jurisdiction
under 28 U.S.C. § 1295(a)(1).


The district court erred when it found the first two
eBay factors weighed against an injunction. Although the
evidence may not make a strong case of irreparable harm,
Apple has satisfied the causal nexus requirement and
therefore established irreparable harm.2 Apple has also
established that the harm it will suffer is not easily
compensable at law. Moreover, as the district court
found, the balance of hardships and public interest weigh
strongly in favor of an injunction. Given this, the district
court abused its discretion when it did not enjoin Samsung’s
infringement. If an injunction were not to issue in
this case, such a decision would virtually foreclose the
possibility of injunctive relief in any multifaceted, multifunction
technology. We vacate the district court’s order
denying Apple’s proposed injunction and remand for
further proceedings consistent with this opinion.

See Wall Street Journal article.

link to case:

Wednesday, September 16, 2015

TNS/Kantar v. TiVo at CAFC

Tivo Research and Analytics, Inc. dba TRA, Inc.
(“TRA”) appeals a judgment of the district court granting
summary judgment in favor of TNS Media Research, LLC
dba Kantar Media Audiences and Cavendish Square
Holding B.V. (collectively, “Kantar”). Kantar initially
filed suit in the district court, seeking a declaratory
judgment that it did not infringe U.S. Patent No.
7,729,940 (the “’940 Patent”). Tivo Research and Analytics,
Inc. dba TRA, Inc. (“TRA”) counterclaimed, asserting
infringement of the ’940 Patent, and also U.S. Patent Nos.
8,000,993 (the “’993 Patent”); and 8,112,301 (the “’301
Patent”), misappropriation of trade secrets, and breach of
contract and fiduciary duty claims against Kantar. The
district court determined at summary judgment that
Kantar’s two categories of accused products—the Auto
Products and the Consumer Packaged Goods (“CPG”)
Products—did not infringe the patents-in-suit, that Kantar
did not misappropriate TRA’s trade secrets, that TRA
could not rely upon its damages expert’s testimony or
report to support its claim for damages with respect to its
non-patent claims, and that TRA could not seek punitive
damages against Kantar. Ultimately, the district court
determined that TRA only could pursue a request for
nominal damages for its remaining breach of contract and
fiduciary duty claims, but, was not entitled to do so before
a jury. The parties agreed to settle that remaining claim,
however, and the court entered final judgment.

We affirm-in-part, reverse-in-part, vacate-in part, and

As to trade secrets:

TRA also alleged that Kantar misused its confidential
information—which Kantar received during the merger
discussions and via its appointed board member—in order
to assess whether to launch its competing product and to
accelerate its own product development. But for this
improper use, TRA contended that Kantar would have
been unable to release a competing product as quickly as
it did. Originally, TRA asserted that Kantar misappropriated
twenty four categories of trade secrets but, in
order to streamline this case for trial, the district court
ordered TRA to reduce the number of asserted trade
secrets in April 2013. Following this order, TRA agreed to
reduce the number of trade secrets to the following five:
“(1) Media TRAnalytics’—TRA’s product—speed, reliability,
scalability and performance; (2) TRA’s client lists and
client interactions[;] (3) TRA’s strategic plans[;] (4) TRA’s
product positioning[;] and, (5) TRA’s capital structure,
financials, financing proposals target investor list, and
offers to acquire or merge the company.” Summary
Judgment Op., 984 F. Supp. 2d at 222.


Because allowing TRA to remedy its
deficiency after the close of discovery would be prejudicial
to Kantar and taxing on the district court, the district
court dismissed TRA’s trade secret claim as a sanction
under Fed. R. Civ. P. 37. Id. at 239.

The CAFC noted

Trade secret misappropriation is a matter of state
law. See Atl. Res. Mktg. Sys., Inc. v. Troy, 659 F.3d 1345,
1356 (Fed. Cir. 2011). The parties agree that New York
law applies to TRA’s trade secret claims against Kantar.
We review the grant of summary judgment under the law
of the regional circuit. Charles Mach. Works, Inc. v.
Vermeer Mfg. Co., 723 F.3d 1376, 1378 (Fed. Cir. 2013).
The Second Circuit reviews the grant or denial of summary
judgment de novo. Petrosino v. Bell Atl., 385 F.3d
210, 219 (2d Cir. 2004). Summary judgment is appropriate
when, drawing all justifiable inferences in the nonmovant’s
favor, there exists no genuine issue of material
fact and the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). Additionally, this court reviews
a district court’s decision to exclude evidence and impose
discovery sanctions under the law of the relevant regional
circuit. See Meyer Intellectual Props. Ltd. v. Bodum, Inc.,
690 F.3d 1354, 1358 (Fed. Cir. 2012). In the Second
Circuit, such rulings are reviewed for abuse of discretion.
See Phoenix Assocs. III v. Stone, 60 F.3d 95, 100 (2d Cir.
1995); Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d
522, 525 (2d Cir. 1990).


Therefore, a failure to follow Rule 26(e) will warrant
preclusion of omitted information, “unless the failure was
substantially justified or is harmless.” Id. “Failure to
timely amend a contention interrogatory can bar use of a
theory of liability, especially when such failure results in
prejudice to the adverse party.” N.J. Dep't of Envtl. Prot.
v. Atl. Richfield Co., No. 1:00-cv-1898, 2014 U.S. Dist.
LEXIS 15966, at *9 (S.D.N.Y. Feb. 6, 2014) (citing
Unigene Labs. v. Apotex, Inc., No. 06-cv-5571, 2010 U.S.
Dist. LEXIS 67444, at *6 (S.D.N.Y. July 7, 2010), aff’d,
655 F.3d 1352 (Fed. Cir. 2011) (“[W]here there is substantial
prejudice to the Plaintiffs—namely, not being advised
of the contours of [a] claim until long after the termination
of discovery and the filing of dispositive motions—the
Defendants’ failure to amend their contentions results in
[a] claim being deemed waived.”)).

Here, the district court concluded that TRA violated
Rule 26 when it narrowed its trade secret claims on May
10, 2013. We note that on April 23, 2013, the court ordered
TRA to reduce its trade secret claims. In response
to that order the parties stipulated, with the court’s
approval, that TRA would reduce its trade secret claims
by May 10. While this does not necessarily establish that
TRA complied with Rule 26, it is also not clear that TRA’s
actions—to reduce its trade secret claims on the courtapproved
timeline—rise to the level of violating the rules
of procedure. For the reasons below, we conclude the
district court abused its discretion when it dismissed all of
TRA’s trade secret claims as a discovery sanction. On
remand, the district court should both address whether
TRA violated Rule 26 and, if there was a violation, craft a
more appropriate sanction.

We find that the district court abused its discretion
when it dismissed all of TRA’s trade secrets claims as a
discovery sanction. Generally, “[a] district court ‘abuses’
or ‘exceeds’ the discretion accorded to it when (1) its
decision rests on an error of law (such as application of
the wrong legal principle) or a clearly erroneous factual
finding, or (2) its decision—though not necessarily the
product of a legal error or a clearly erroneous factual
finding—cannot be located within the range of permissible
decisions.’” Zervos v. Verizon N.Y., Inc., 277 F.3d 635,
650 (2d Cir. 2002) (quoting Zervos v. Verizon N.Y, Inc.,
252 F.3d 163, 169 (2d Cir. 2001)). In order to determine
the appropriate sanction for a discovery violation, the
Second Circuit considers several factors including “(1) the
willfulness of acts underlying noncompliance; (2) the
efficacy of lesser sanctions; (3) the duration of noncompliance;
and (4) whether the noncompliant party was on
notice that it faced possible sanctions,’” but no one factor
is dispositive. Agiwal v. Mid Island Mortg. Corp., 555
F.3d 298, 302–03 (2d Cir. 2009);

Considering these factors, it is clear that a dismissal
was an inappropriate sanction in these circumstances.
First, there is no indication that TRA purposefully
shirked its discovery obligations. Cf. Robertson v.
Dowbenko, 443 F. App’x 659, 661 (2d Cir. 2011) (noting
that willful non-compliance exists when a party has
“repeatedly failed to respond to interrogatories and produce
documents . . . in violation of the district court’s
orders”). Instead, the record suggests that TRA actually
tried to meet its obligations, as evidenced by its decision
to amend its initial disclosures in response to Kantar’s
complaint that such disclosures were deficient and the
fact that it was not until Kantar lobbied the court in April
2013 to order TRA to identify and limit its trade secrets in
anticipation of trial that TRA became aware that Kantar
still believed its disclosures were inadequate. When the
court ordered the parties to confer in the hopes of streamlining
the case, moreover, TRA responded by reducing the
number of trade secret claims asserted. It did so within
days of the court’s suggestion and well before Kantar filed
its motion for summary judgment. We see no discovery
violation which would warrant such a harsh sanction,
especially one imposed without warning.
There is also nothing in the record that evinces the
district court considered the efficacy of lesser sanctions.
World Wide Polymers, Inc. v. Shinkong Synthetic Fibers
Corp., 694 F.3d 155, 159 (2d Cir. 2012) (finding that a
dismissal of a party’s damages claim was inappropriate,
in part, because “there [was] no indication in the record
that the district court considered any lesser sanctions”).


For the foregoing reasons, we affirm the district
court’s conclusion that there is insufficient evidence from
which a reasonable juror could conclude that Kantar’s
Auto Products do not infringe the asserted patent claims,
that TRA’s product positioning secrets are not protectable
as a matter of law, and that TRA’s damages expert failed
to comply with Fed. R. of Evid. 702. We reverse the
district court’s ruling that TRA’s financial projections and
strategic plans are not protectable as a matter of law. We
reverse the district court’s decision to dismiss TRA’s
misappropriation of trade secret claims as a discovery
sanction and its decision to dismiss TRA’s remaining
trade secrets claims as a matter of law. We also reverse
the district court’s determination that TRA was entitled
to only nominal damages on its non-patent claims, which
moots the propriety of the district court’s conclusion that
TRA was not entitled to a jury trial as to those claims.
And, we reverse the district court’s conclusion that TRA is
not entitled to injunctive relief on its fiduciary duty
claims as a matter of law. Lastly, we vacate the district
court’s decision that Kantar’s CPG Products do not infringe
the asserted patent claims. We remand for further
proceedings consistent with this opinion.


Tuesday, September 15, 2015

Segway goes after Hovertrax for infringement


Odd argument for Google to make in Suprema vs. ITC?

From the text of the opinion:

Suprema and amicus Google, Inc. (“Google”) argue
that a requirement to seek out every reference referred to in
a competitor’s patent would place too high a burden on
manufacturers to avoid a finding of willful blindness. We
do not hold that such an exhaustive patent search is
required in every instance.

One notes that SUZANNE MICHEL, Google
Inc., Washington, DC is mentioned as to the amicus brief.

The CAFC further notes of Google's argument:

In its amicus brief, Google argues that the Commission’s
willful blindness ruling imposes too onerous a duty
on innovators to ensure that its customers will not potentially
infringe a patent. Google asserts that the Commission’s
ruling upsets the balance struck in Global-Tech. It
is nearly impossible, Google argues, for a technology
company to identify “all patents that are potentially
implicated” by customers’ potential infringement of patents.
While we are not unmindful of these concerns, we
do not find them sufficiently implicated in this present
controversy to warrant a different outcome. We note,
moreover, our deferential standard of review, which
requires us to defer to the Commission’s factual findings if
supported by substantial evidence. Our holding is limited
to the facts in the case before us. None of the facts upon
which the Commission relied, in isolation, would support
a finding of willful blindness. Yet, while no single factor
is dispositive here, we are satisfied that there is substantial
evidence on this record to support the Commission’s

As to failure to obtain an opinion of counsel, the issue was
not the opinion per se but what an opinion would have uncovered:

The Commission also found that Suprema’s failure to
obtain an opinion of counsel constituted an additional fact
evidencing Suprema’s willful blindness. The Commission
noted that, had an opinion of counsel been sought, it
would have “undoubtedly uncovered the ’344 patent, the
fact that both the ’344 and ’562 patents are assigned to
Cross Match, and would have analyzed whether Suprema
infringed any of the Cross Match patents.”

The subtle point:

The failure to obtain counsel opinion goes to the “state
of mind” inducement requirement, and “such evidence
remains relevant to the . . . intent analysis” for inducement.2
Broadcom, 543 F.3d at 699. Thus, it was not error
for the Commission to consider Suprema’s failure to
obtain an opinion of counsel as a factor in their analysis of
inducement. We do not hold that an opinion of counsel is
required to avoid a finding of induced infringement. The
failure to obtain an opinion of counsel is merely one fact of
many that may be considered in the assessment of willful
blindness. Broadcom, 543 F.3d at 698-701. Like the
Commission, we do not place dispositive weight on Suprema’s
failure to obtain an opinion of counsel. While
Global-Tech changed the standard of intent for establishing
induced infringement, Global-Tech did not displace
this Court’s holding in Broadcom that failure to obtain an
opinion of counsel can be considered in determining
whether the intent standard for induced infringement has
been met. See Global-Tech, 131 S. Ct. at 2069-70. We
thus reject Suprema’s argument that its failure to seek
the opinion of counsel could not be considered as part of
the totality of circumstances indicating its willful blindness
to Mentalix’s infringement.

Text in the AIA is dismissed over timing matters:

The America Invents Act (AIA) provides that
“[t]he failure of an infringer to obtain the advice of counsel
with respect to any allegedly infringed patent, or the
failure of the infringer to present such advice to the court
or jury, may not be used to prove that the accused infringer
willfully infringed the patent or that the infringer
intended to induce infringement of the patent.” 35 U.S.C.
§ 298. Because the AIA only applies to patents issued on
or after September 16, 2012, and the ’344 and ’562 patents
issued in 2007, this provision does not control here.


National Law Review on issues with confidential information retained by departing employees

Of strategies relating to departing employees:

The Utah case mentioned within is the Innosys matter, discussed earlier on IPBiz. From the National
Law Review on the Utah Supreme Court decision:

In a 3-2 decision, the Utah Supreme Court has held that there is a presumption of harm for claims made under the Utah Uniform Trade Secrets Act, Utah Code § 13-24-1, et seq., and for claims for breach of a non-disclosure agreement when a former employee takes confidential information or trade secrets from her recent employer. InnoSys v. Mercer, 2015 UT 80 (Aug. 28, 2015). - link:

Allegations of copying in UNevada/Reno Ph.D. thesis relate to material in background section

There have been allegations of plagiarism related to an introductory chapter in a Ph.D. thesis at the University of Nevada. The author pointed out that the copied material had nothing to do with his original research:

“The introductory facts were preliminary to my research and dissertation,” Geddes, in a response to the RJ article, stated on his website. “I would never attempt to take credit for anyone else’s ideas or work, as evidenced by the more than 140 citations in my 120-page dissertation.” After Geddes’ introductory chapter the similarities end, as his paper focused on the process of the spilled fumigant becoming a hazardous chemical after exposure to the sun. The California Department of Health Services’ report focused on the health effects caused by the spill. -


A "red flag" of copying is when the copyist copies errors contained within the source:

Both the paper and the report reference the same statements presented before the U.S. House of Representatives in 1991, and both include the same spelling error for one source’s name.

Settlement of two stem cell cases

StreetInsider announced the settlement of two cases related to stem cell research:

StemCells, Inc. and StemCells California, Inc. v. Neuralstem, Inc., Karl K. Johe, and I. Richard Garr, U.S. District Court, District of Maryland, Civil Action No. 06-CV-1877 RWT, on appeal before the U.S. Federal Circuit Court of Appeals, Case No. 15-1952. (patent infringement case)

Rob Williams v. StemCells, Inc., StemCells California, Inc., and Does 1-50, Alameda County Superior Court, Case No. RG 14732694. (wrongful termination case)


Wall Street Journal opinion piece criticizes patent "reform"

From the Wall Street Journal opinion piece:

Some big businesses appear to ignore patents owned by individuals and small businesses thinking their potential infringement won’t be challenged. They
are lobbying hard for the pending legislation mentioned in Mr. Malanga’s piece to make it extremely risky for individuals and small businesses to sue infringers. If they are successful, patents will no longer be financially feasible for most individuals and small businesses, making their innovations and development results much less valuable, leading to a huge disincentive to their research and development. This will greatly reduce technical progress.


The "extremely risky" comment likely refers to the presumption of "loser pays" in Goodlatte's
Innovation Act.

If a smaller entity, such as an individual inventor or university, sues an alleged infringer, and loses,
that smaller entity will have to pay lawyers to show "why" it should not pay the alleged infringer's legal fees.

Sunday, September 13, 2015

"Invention companies that rely on patent-licensing fees are outnumbered and outgunned in lobbying by the companies selling products that are in high demand because of the valuable technologies inside them. "

TheHill has commentary related in part to non-practising entities (NPEs):

Meanwhile, policy discussions have focused on theories, promoted by parties that would profit from lower patent licensing fees, of alleged patent hold-up and royalty stacking -- which suggest patent holders can charge excessive royalties – despite the utter lack of evidence offered by proponents of these theories. To the contrary, there is abundant evidence showing the smartphone market is open, competitive, accelerating with innovation and technology adoption, and increasingly cost effective for consumers. Unsurprisingly, no party seeking to reduce its royalty costs has yet tried to prove in court the total amount of the alleged smartphone “royalty stack,” or more importantly, that the total amount of royalties they pay to use technologies they did not invent is “excessive.”

Antitrust agencies should resist pressures from vested interests to regulate the market in favor of one business model over another. Invention companies that rely on patent-licensing fees are outnumbered and outgunned in lobbying by the companies selling products that are in high demand because of the valuable technologies inside them. If this free-market economic balance shifts to favor short-term profits of technology implementers over long-term innovation, consumers will be the biggest losers.


Inventorship dispute at the University of Pittsburgh

The Pittsburgh Post-Gazette has an article about academic intrigue and patents, titled
Federal patent office rules against two Pitt doctors on vaccine application.

There was a patent application filed by Professors Jay Kolls and Mingquan Zheng. The aggrieved complainants were Pitt researchers Karen Norris, an immunology professor at UPitt, and Heather Kling, a postdoctoral student in her lab.

The issue:

In 2011, Dr. Norris complained to Pitt officials that Dr. Kolls and Dr. Zheng, who had moved to Children’s Hospital of Pittsburgh of UPMC from Louisiana State, had falsely claimed they did the monkey research that was the basis for seeking a patent on a pneumocystis vaccine. She contended that the Kolls-Zheng lab had received samples of the pneumocystis protein cited in the patent documents from her lab; that the Kolls-Zheng lab never worked with monkeys, only mice; and that Dr. Kolls had learned about details of her lab’s research when he served as a member of Dr. Kling’s dissertation committee.


When Dr. Kolls failed to add her name, Dr. Norris sought a university investigation. That was carried out by a faculty committee, which ruled in 2013 that even though the Norris lab had made the original discovery of the protein fragment cited in the patent application, it could not determine whether Dr. Kolls and Dr. Zheng had engaged in outright misconduct. Instead, the panel said, the two physicians were guilty of “research impropriety.”

Ironically, the patent office cited the Pitt faculty committee’s own report as the primary basis for ruling against Dr. Kolls and Dr. Zheng on the patent application. “The threshold question in determining inventorship is who conceived the invention,” the office said. “Unless a person contributes to the conception of the invention, he is not an inventor.” The “evidence appears to indicate that Kolls and Zheng do not meet the requirements of inventorship.”

CBS Sunday Morning on September 13, 2015: Jan Crawford interviews Justice Stephen Breyer

Charles Osgood introduced the stories for September 13, 2015, beginning with the cover story by Lee Cowan on athletes not managing their finances well. A later pulse poll revealed 67% of the population think athletes are paid too much.

The almanac was on the birth of Milton Hershey. Of interest, Hershey's decision to do chocolate was a result of a visit to Chicago's Worlds Fair in 1893. This World's Fair was pivotal as to Edison and ac/dc as well as for the use of batteries in cars and other things. Not mentioned in the piece was the furor from 2002. From Wikipedia: On July 25, 2002 it became public knowledge that the Hershey Trust Company was seeking to sell its controlling interest in the Hershey Foods Corporation. The value of Hershey stock skyrocketed 25% with over 19 million shares trading that day. But over the following 55 days, widespread press coverage, as well as pressure from Pennsylvania Attorney General Mike Fisher, the community of Hershey, and Dauphin County Orphans' Court Senior Judge Warren G. Morgan, led to the sale being abandoned.
In terms of intellectual property, wikipedia notes: Hershey's filed a lawsuit against Let's Buy British Imports, and Posh Nosh Imports because of the aforementioned companies importation of Nestlé's Yorkie, and Toffee Crisp, for Hershey's claim of alleged resemblance to York Peppermint Patties and Reese's Peanut Butter Cups, respectively; despite the fact that Hershey's and Nestlé's respective products are different types of candy. Hershey also claimed that import of original British Rolo by Nestlé violated its licensed rights to the Rolo brand in the US, and sought the end of importation of Rolo into the US.

Hershey's also sought the halting of the importation of British, South African, Canadian, Australian, New Zealander, and all other Cadbury brand chocolate other than Hershey's licensed chocolate product produced in the US and marketed under the Cadbury brand name. Hershey's claimed that the importers, LBB Importers and Posh Nosh, were infringing on their rights to the Cadbury brand name in the US due to their licensing agreement with Cadbury, a division of Mondelez.

In addition, Hershey's claimed that the two importers needed to stop importing Mars's Maltesers malted milk balls because Hershey's makes their own malted milk balls under the Maltesers name. Hershey's itself has been sued by Mars for violating Mars' trademark and rights to Maltesers, Mars has said that Hershey's has copied Maltesers brand, packaging, and products; that lawsuit has not settled as of 16 February 2015.

The Jan Crawford interview with Stephen Breyer included the text:

Breyer has just written a new book, "The Court and the World: American Law and the New Global Realities" (Knopf), which argues that while our nation's justice system remains an example to other democracies, it must also evolve to meet the demands of a rapidly-changing world.

That puts him at odds with conservative Justice Antonin Scalia -- a familiar place for Breyer. He's not only known as a liberal-leaning justice, but also the one most willing to publicly debate Scalia and other Justices who adhere to "Originalism" -- a philosophy focused on the original understanding of the Constitution. Breyer thinks the meaning of the Constitution can change with the times.

The contrast was clear earlier this summer, when Breyer said the Justices should rethink the constitutionality of the death penalty -- a punishment accepted by the founding fathers.

Justice Scalia called it "gobbledy-gook."


The moment of nature was on a coral reef in Honduras