• Contacts with a Forum State that Occurred Prior to the Issuance of a Patent are Not Sufficient to Confer Personal Jurisdiction for a Patent Infringement Case

    NEXLEARN, LLC, v. ALLEN INTERACTIONS, INC.: June 19, 2017.  Before Moore, Schall, and Hughes   Takeaway: A defendant’s contacts with a forum state that occurred prior to the issuance of a patent are not sufficient to confer specific personal jurisdiction for a patent infringement case after the patent issues. Absent any …

    The post Contacts with a Forum State that Occurred Prior to the Issuance of a Patent are Not Sufficient to Confer Personal Jurisdiction for a Patent Infringement Case appeared first on CAFC Blog.

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  • Contacts with a Forum State that Occurred Prior to the Issuance of a Patent are Not Sufficient to Confer Personal Jurisdiction for a Patent Infringement Case

    NEXLEARN, LLC, v. ALLEN INTERACTIONS, INC.: June 19, 2017.  Before Moore, Schall, and Hughes   Takeaway: A defendant’s contacts with a forum state that occurred prior to the issuance of a patent are not sufficient to confer specific personal jurisdiction for a patent infringement case after the patent issues. Absent any …

    The post Contacts with a Forum State that Occurred Prior to the Issuance of a Patent are Not Sufficient to Confer Personal Jurisdiction for a Patent Infringement Case appeared first on CAFC Blog.

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  • Copyright issue with Turnitin?

    In an essay titled A Guide for Resisting Edtech: the Case against Turnitin in Hybrid Pedagogy, Morris and Stommel write of Turnitin:

    Turnitin isn’t selling teachers and administrators a product. The marketing on their website frames the Turnitin brand less as software and more as a pedagogical lifestyle brand. In fact, the word “plagiarism” is used only twice on their home page, in spite of the fact that the tool is first and foremost a plagiarism detection service. The rest of the copy and images are smoke and mirrors. They are “your partner in education with integrity.” They are “trusted by 15,000 institutions and 30 million students.” (We feel certain they didn’t ask those 30 million students whether they “trust” Turnitin.) The “products” most prominently featured are their “revision assistant” and “feedback studio.” For the teachers and administrators using Turnitin as a plagiarism detector, these features function like carbon offsetting. When asked whether their institution uses Turnitin, they can point to all the other things Turnitin can be used for — all the other things that Turnitin is not really used for. The site even attempts to hide its core functionality behind a smokescreen; in the description for the “feedback studio,” plagiarism detection is called “similarity checking.”

    BUT, Turnitiin ONLY looks for similarity. It is not checking for copying without attribution (plagiarism). In the essay, Morris/Stommel talk about intellectual property (e.g., a “product,” some of which, like Turnitin, are designed to eat our intellectual property] but the word copyright arises only in statements from turnitin.
    One puzzles at what Morris/Stommel mean in the text: Even if it is true that Turnitin doesn’t assert ownership over the intellectual property it collects, their statement is misleading. They are basically saying our brand is your brand — that by helping them build their business we all simultaneously protect our own intellectual property. This is absurd.

    IPBiz suggests that Turnitin is NOT saying “our brand is your brand.” They are saying, by showing similarities of your presented work to past work, Turnitin enables you to weed out weak parts and strengthen your work. Turnitin is not using past student work for its original purpose (in contrast to say, an essay mill).

    This key point is ignored by Morris/Stommel in the text: In a recent conversation where he tried to explain why Turnitin’s violation of student intellectual property was a problem, Sean’s argument was countered with a question about whether that intellectual property was worth protecting. After all, most student work “isn’t worth publishing.” Ignoring for a moment this flagrant disregard for the value of student work, the point to make here is that Turnitin actively profits (to the tune of $752 million) from the work of students.

    One knows from Feist that copyright requires only marginal creativity. The issue of “worth protecting” is not Turnitin’s point. They are not using past student essays as essays and trying to compete with students in the marketplace. The essays stay in a vault. The past essays are comparators.

    TimesHigherEd pushes the IP angle:

    “Plagiarism detection software, like Turnitin, has seized control of student intellectual property,” write Mr Morris and Professor Stommel [in an essay in Hybrid Pedagogy]. “While students who use Turnitin are discouraged from copying other work, the company itself can strip-mine and sell student work for profit.”

    Turnitin’s practices have been ruled as being fair use in a federal court, and the company itself offers a different perspective on its operations.

    “When students engage in writing and submitting assignments via Turnitin’s solutions, students retain the copyright of the submitted papers,” said Chris Harrick, vice-president of marketing. “We never redistribute student papers, or reveal student information via the service.


    But to Mr Morris and Professor Stommel, the ceding of control of students’ work to a corporation is a moral issue, even if it’s legally sound. Time spent on checking plagiarism reports is time that would be better spent teaching students how to become better writers in the first place, they argue.

    “This is ethical, activist work….we must ask ourselves, when we’re choosing ed tech tools, who profits and from what?” they write in the essay. “Every essay students submit – representing hours, days or even years of work – becomes part of the Turnitin database, which is then sold to universities.”

    In an interview, Dr Morris and Professor Stommel said that they wrote the post with a view to rethinking on a pedagogical level how students are taught about plagiarism, and what should be emphasised when teaching students how to write.

    link: https://www.timeshighereducation.com/news/anti-turnitin-scholars-call-rethink-tackling-plagiarism#survey-answer

    IPBiz notes that it is hard to see how Turnitin “has seized control of student intellectual property.” Turnitin does not re-publish student work. It compares a new submission to archived work.

    Of course, under the (circuit) law of AGU v. Texaco, archiving itself can be problematic. But the purpose of archiving is different between Turnitin and the archived research papers at Texaco.

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  • Sovereign Immunity of Patents: While a Strong Benefit to Patent Owners, These Patents Remain Subject to Traditional Challenges

    The United States Patent Trial and Appeal Board (“PTAB”) recently dismissed another inter partes review (“IPR”) based on an assertion of 11th Amendment sovereign immunity.  This decision demonstrates the willingness of the PTAB to permit State agencies (such as public universities, medical schools, and research centers) to effectively shield their patents from the threat of post-grant proceedings at the PTAB.  While this is certainly a benefit to entities that can take advantage of sovereign…

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  • Makers of Bionic Wrench awarded $5.9M by federal jury against Sears in willful infringement verdict

    The inventor of the two patents-in-suit is Dan Brown, Sr., president and founder of LoggerHead. He also teaches engineering at Northwestern University’s Segal Design Institute. Brown came up with the concept for the adjustable gripping tool, which LoggerHead markets as the Bionic Wrench, after watching his son try to work on a lawnmower with a pair of pliers. Realizing that there was no good tool to serve as a substitute, Brown worked for three years to create a suitable gripping tool while…

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  • GII shows innovation momentum in Sub Saharan Africa

    Last week WIPO, Cornell University, INSEAD and their knowledge partners published their annual Global Innovation Index GII 2017. This index is a global benchmarking tool for determining the state of innovation on the globe. Its premise is that innovation is the key driver for economic growth and general prosperity.


    The GII is notable because it far more than a measure of R&D or levels of patenting. It covers and uses data from:


    ·         127 country/economy profiles, including data, ranks, and strengths and weaknesses

    ·         81 data tables for indicators from over 30 international public and private sources, of which 57 are hard data, 19 composite indicators, and 5 survey questions

    ·         A transparent and replicable computation methodology including 90% confidence intervals for each index ranking (GII, output and input sub-indices) and an analysis of factors affecting year-on-year changes in rankings.


    Intellectual property and innovation are linked. There is continuous debate on how strong and/or appropriate that link is but the fact is that they are connected.
    Africa is a large dark blob on the GII short video on global innovation hotspots in their press release. It is not alone, according to the GII more than half of the world’s innovators exist in only 30 innovation hotspots across the globe. The usual feature – cities on the west and east coast of the USA, Central and Western Europe and in Asia. GII recognises that innovation is everywhere but thrives in these areas,
    None of those hotspots exist in the southern hemisphere. Perhaps this is easily explained by the fact that the southern hemisphere has been relatively slow to adopt the patent system or contains few tax havens (indeed often having protectionist regimes considered a disincentive to FDI based innovation), and hence would not feature. However, one just has to consider the geographical origin of the most innovative and largest value companies in the world to realise the direct correlation between the origin of those companies and the innovation hotspots. Indeed, the GII report indicates a very strong link between business value and the results of patent data mapping undertaken by the publishers


    There is some indication that Africa has opportunities. As the world’s population grows, innovation in the agricultural industry – a large staple of Africa economies – is tipped to be the most important over the coming decades. The relevance of such innovation is a major focus of the GII.


    Over the next decades, the agriculture and food sector will face an enormous rise in global demand and increased competition for limited natural resources. In addition, it will need to adapt to and help mitigate climate change. Innovation is key to sustaining the productivity growth required to meet this rising demand and to helping enhance the networks that integrate the sustainable food production, processing, distribution, consumption, and waste management known as food systems.”


    The question is whether Africa has the nous, character and leadership to take advantage of this reality. Put differently, will corruption, poor leadership, naivety, and short termism long associated with Africa make it vulnerable such that its societies do not benefit as much as they could. After all, this has happened over the centuries and there is evidenceof it happening again. A different question is whether those who employ the innovators of the hotspots will have learnt from mistakes made in the past and collaborate differently with Africa. This too is a leadership question.
    The GII recognises a number of what it calls Innovation Achievers – a term used for low income countries whose rate of innovation outpaces its relative growth in development. A number of African countries score high on this ranking. Indeed, 9 of the 17 countries in this category come from Sub Saharan Africa. Take a visit to Rwanda, for example, and this is clear to anyone. A company can be registered in a day and trade marks are registered well within a year. The first two destinations of its A380 aircraft investments are India and China and its skyline boasts increasing numbers of foreign law firms. The other 8 countries are Kenya, Mozambique, Uganda, Malawi, Madagascar, Senegal, Burundi and the United Republic of Tanzania.


    The positive results from Sub Saharan Africa are despite rating falls in the top three. South Africa becomes  the highest ranked on the index at 57 (falling from 54), followed by Mauritius (64, falling from 53) and Kenya (81 falling from 80). According to the report:


    Preserving and building upon this innovation momentum in Sub-Saharan Africa is now key.” 
    Touché. How, will be very important too.

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  • Open Access Policy In International Organisations

    Open access is “part of the DNA” of international intergovernmental organisations, Charlotte Beauchamp, head of editorial and design at the World Intellectual Property Organization, said during a workshop last week. Representatives of different international organisations described during the workshop the increasing use of an open access policy by their organisations.

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  • Conference & CLE Calendar

    June 19-22, 2017 – BIO International Convention (Biotechnology Innovation Organization) – San Diego, CA June 22, 2017 – “Conflicts in Patent Prosecution: Avoiding the Ethical Pitfalls — Minimizing Risks of Malpractice Liability and Ethics Sanctions” (…

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    $$ For a voice call this is acceptable, as the loss of a particular packet is much less important than it is in a normal data call, where all packets must be received if the data is not to be corrupted. / これは音声呼において、データが破損されないときに全てのパケットが受取られなければならない場合に、特定のパケットの損失が正規のデータ呼の損失ほど重要でないときに許容できる。(USP6584098)

    $$ An alternative approach to compensating for temperature changes in use within the imager device is not to allow the temperature of the device to change (or at least not to allow the temperature of one or more critical components to change). / 画像化装置内の使用時の温度変化を補償する別の選択肢となる取り組みは、装置の温度を変化させない(あるいは1つまたは複数の重要な部品の温度を少なくとも変化させない)ことである。(USP6900756)

    $$ If a pressure sensitive contact device is used on the probe tip then this will signal when data is not to be collected, and the operator can stop the mapping stage. / 圧感接触装置をプローブ先端に用いる場合、データが 収集されていない場合にこの装置が信号を送り、オペレータがマッピング段階を終了さ せることもできる。(USP7576332)

    $$ The references hereafter to tape refer to one particular application but are not to be taken as limiting. (USP7343081)

    $$ It should be appreciated that modifications and alterations obvious to those skilled in the art are not to be considered as beyond the scope of the present invention. (USP6771565)

    $$ At point B, after processing by the primary lookup tables 3, all of the corrected R, G and B signals, including those that are not to be modified, are provided (possibly downsampled) to the secondary signal path. (USP6075887)

    $$ The problem is particularly relevant to single-pilot and dual-pilot aircraft although this is not to say that the likelihood of three or more pilots falling asleep simultaneously in a given aircraft is remote.(USP4879542)that以下とは言えないまでも;言うほどでもないが

    $$ The alternatives are not to use the GID based pixel ownership tests for one of the buffers but rely on the scissor clipping, or to install a second set of GID planes so each buffer has it’s own set.(USP5727192)

    $$ The pixels that are not to be modified are passed through the digital colour processor ("DCP") without any processing that could create rounding or other errors.(USP6075887)


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  • CBS Sunday Morning on Fathers Day, June 18, 2017 does Monterey Pop and Custer’s Last Stand

    Jane Pauley introduced the stories for June 18, 2017, beginning with Ted Koppel’s cover story on the increasing divide in American politics. Second mentioned was Anthony Mason on the 50th anniversary of Monterey Pop. Tony DeCappo on millenial dads, Mo Rocca on Custer’s Las Stand, Seth Doane, Steve Hartman on the need to behave like a little leaguer, and DeMarco Morgan.

    The news headlines were the USS Fitzgerald at Yokosuba, fires in Portugal, and the London fire. There was an image noting summer begins Wednesday, June 21, at 12:24 A.M. EDT.

    Prior to the cover story, there were pieces by DeMarco Morgan on Cosby and Erin Moriarty on Michelle Carter (manslaughter because of texting).

    The June 18 cover story (“The Great Divide”) is related to a prior piece by Koppel, not mentioned by CBS on June 18. Within the prior March 2017 Koppel story (“The Great Divide”) was text:

    A Pew study finds 81% of voters say they cannot agree with the other side on basic facts, which may owe something to the president’s campaign against “fake news.”

    CNN’s Jim Acosta: “Just because of the attack of fake news and attacking our network, I just want to ask you, sir …
    President Trump: “I’m changing it from ‘fake news,’ though. ‘Very fake news.’”

    There’s nothing new about simmering hostility between a President and the press.

    There was a text from Fareed Zakaria [once accused of plagiarism; see 2012 Washington Post–Fareed Zakaria suspended by CNN, Time for plagiarism]: “I think the President is somewhat indifferent to things that are true or false. He has spent his whole life bullsh***ing. He has succeeded by bullsh***ng.”

    Within the June 18, 2017 piece, Koppel spent some time with Yochai Benkler, who was referred to as an “honest academician.” For clarity, Benkler is a Harvard Law grad (1994) and is a faculty co-director of the Berkman Klein Center for Internet & Society at Harvard. Whether law grads are academicians is open to question. Of relevance to intellectual property, Benkler in “Wealth of Networks” raises the possibility that a culture in which information is shared freely could prove more economically efficient than one in which innovation is encumbered by patent or copyright law. In the June 18 piece, it seemed that Benkler was saying that there was a uniformity in factual presentation by news groups (other than say by Breitbart). Pat Buchanan suggested that the great divide started with the November 1968 speech by Nixon on the silent majority and media followup thereto. Similarities between Buchanan’s presidential run in 1992 and Trump’s campaign were mentioned.

    The Almanac piece was the creation of New Jersey’s “Steel Pier” on June 19, 1898, which was attended by, among others, Annie Oakley. Yes, pictures of diving horses, and a 1938 color clip of The Three Stooges.

    Next up, Daddy’s home, featuring Millenial (born after 1980) fathers. A clip of a 1966 Lyndon Johnson establishing Fathers Day. Mention of the MGH “Fatherhood Project.”

    Seth Doane interviewed Lang Lang. Of note was a reference to classic music being the province only of professors (compare honest academicians)

    Steve Hartman on the post (baseball) game handshake and how we should act more like little leaguers.

    Anthony Mason on the 1967 Monterey Pop Festival, organized by John Phillips and Lou Adler. Top ticket: $6.50. Members of the governing group suggested musicians to appear. Michelle Phillips suggested Otis Redding. Paul McCartney suggested Jimi Hendrix. Competition between The Who and Hendrix. Eric Burdon there in 1967 and will be there in 2017.

    The piece on Custer’s Last Stand by Mo Rocca was poorly done. Presumably of news note because the “battle” was on June 25, 1876. There was mention of Custer’s being “last in his class.” There were two West Point Classes of 1861, one in May and one in June. Custer was indeed number 34 of 34 in June 1861. Number 1 in the class was Patrick H. O’Rorke, who was killed at Gettysburg. Number 11 was Alonzo Cushing, also killed at Gettysburg, and awarded the Medal of Honor. Number 33 (just ahead of Custer) was Frank A. Reynolds, who served in the Confederate Army. The Rocca piece mentioned economic troubles for Custer in 1876 but omitted his political troubles. Custer had to beg to be part of the expedition.
    Also omitted was Custer’s attack on an Indian encampment comprising mainly women and children, which provoked Custer’s problems. Although there was reference to Custer’s body being mutilated, Custer’s was the only body of the command not scalped. No mention was made of Custer’s brothers also killed at Big Horn, including the one awarded two Medals of Honor. LBE has previously noted an irony in Custer’s work at East Cavalry Field (where his men were armed with repeating (Spencer) rifles) and at Little Big Horn (where only the Indians had repeating rifles)

    Moment of nature: wild burros in Black Mountains of Arizona.

    ***Separately, from Blawgsearch on 18 June 2017

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  • Where is the Federal Circuit on Aqua Products?

    More than six months have passed since the en banc rehearing in Aqua Products without a decision from the Federal Circuit. It could be an indication that the court is working on handing down a ruling that would greatly alter PTAB practices relating to motions to amend. In the alternative, it could be an indication that there’s a split in opinion and Federal Circuit is still making up its mind on the matter with multiple separate opinions being prepared and circulated. Interestingly, an article…

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