• Discussion of Barnicle’s false tweet of the death of Pete Frates

    A post titled Reimer: After Pete Frates flub, it’s time for a retelling of Mike Barnicle’s big plagiarism scandal discusses the recent matter of Mike Barnicle’s erroneous tweet that Pete Frates was dead, and then goes into Barnicle’s earlier plagiarism/fake reporting issue.

    Of the Frates matter, one notes that various news organizations relied only on a tweet to publish news stories:

    The news of his death was reported by The Sun, The Mirror, Fox8 in North Carolina and several members of the sporting press. Outlets were citing journalist Mike Barnicle who had tweeted around 8 a.m. that a family friend informed him Frates was dead.

    [from http://www.masslive.com/news/boston/index.ssf/2017/07/multiple_outlets_mistakenly_re.html, which also noted:

    Barnicle was a columnist for the Boston Globe from 1975 to 1998 when he resigned amid a controversy over two columns — one a humorous column that had lines similar to those in a book by George Carlin and another column about a child dying of cancer that the Globe was not able to verify.

    Barnicle is now a senior contributor on MSNBC’s Morning Joe.


    *From within USA Today [Disgrace, dishonor, infamy: They’re not so bad anymore, page 1D, May 22, 2003]

    * Mike Barnicle, a longtime columnist for The Boston Globe, was forced to resign in 1998 after being accused of plagiarism and making stuff up. Today he’s a columnist for the New York Daily News, constantly appears on television as a pundit and frequently fills in for Chris Matthews on MSNBC’s Hardball.

    *From a comment in the Globe and Mail [What we’ve got here is a failure of originality, page A21,
    September 28, 2012 ]:

    Before the Internet, newsrooms were lucky enough to stumble into a method for growing writers. It wasn’t perfect and there certainly were scandals, such as when The Washington Post’s Janet Cooke fabricated a character in a story that went on to win the Pulitzer, or when Boston Globe columnist Mike Barnicle stole material from comedian George Carlin. But those were few and far between.

    These days, it feels like hardly a week goes by without a professional journalist being exposed for plagiarism, fabrication or patchwriting, which is a failed attempt at paraphrasing that over-relies on the original writer’s syntax and vocabulary. That last transgression is likely today’s most common sin, according to Rebecca Moore Howard, the Syracuse University professor of writing and rhetoric who coined the term.

    Originality is elusive today in every place that people write – not just in journalism, but in academia, professional writing, book publishing, speech writing and politics.

    In our panic to keep up with a changing world, we’ve failed to identify new methods for originality. We need to look to the writer-editor relationship, to the community of writers and thinkers and to the very process that writers use to go from nothing to something.

    We’re mystified by the prospect of building a culture that breeds original thinking and writing in today’s digital world. Yet, we can look to writers who are successfully hitting the mark of originality and imitate their methods.
    Today’s most original successful writers often combine new and old to foster their thinking. Writers such as Anne Lamott or columnist Connie Schultz test out their ideas in social media settings such as Twitter or Facebook. They stay grounded in the real world, allowing for the influence of other people and experiences.

    [Of the Globe & Mail, note a post at Huffington Post on 4 July 2017 titled Romeo Saganash Apologizes For Plagiarism In Globe And Mail Column: NDP indigenous affairs critic Romeo Saganash apologized Tuesday [July 4, 2017] for having plagiarized portions of a recent newspaper column about Canada’s 150th anniversary.

    The column appeared in the Canada Day edition of the Globe and Mail under the headline, “150 years of cultural genocide: Today, like all days, is an insult.”

    In a statement, Saganash said he takes complete ownership for the omission.

    “In drafting my letter on my thoughts on Canada 150, a mistake was made by which ideas that were expressed by someone else were not given proper credit,” Saganash said. “I take full responsibility for this omission.”]

    ***Of misreported deaths, one recalls the Jim Brady saga. As discussed in the Smithsonian:

    Dan Rather, in his first major event as anchor for CBS News, noted on air that the Secretary of State was fifth in line to succession (after the Speaker of the House and the president pro tempore of the Senate), not third. Some might look at Haig’s delivery “somewhat patronizingly,” said Rather, but “anyone could be forgiven today in the chaos of the moment.”

    Shortly thereafter, at 5:10 p.m., Rather told the nation that James Brady had died. A White House spokesman responded quickly, saying the report was false.

    “There is some confusion,” said Rather. Brady would be partially paralyzed from the shot to his head for the rest of his life.

    By the end of the evening, the public learned that Hinckley was in custody and had acted alone. It learned that a bullet had pierced the president’s left lung, that it had been removed, and that he was already joking with the doctors and his wife. It learned that Brady, while alive, remained in critical condition.

    The next day, the print press indicted broadcast journalism for misleading the American people. “Whether or not the surplus of misinformation doled out yesterday is an inevitable byproduct of an information-addicted, ready-access environment remains to be discussed in future days and weeks,” wrote Tom Shales in The Washington Post. “The news organizations of the three major networks are staffed and organized so that no effective system exists during coverage of a crisis of global sport to screen out rumor, gossip, hysterical tale-telling, hearsay and tongue-wagging.”

    link: http://www.smithsonianmag.com/history/media-learned-nothing-after-misreporting-reagan-assassination-attempt-180960091/#xPYeX4aCjRA1S8ze.99

    Also, from the Washington Post:

    The camera zoomed in for a close-up of the presidential press secretary, James S. Brady, as he lay stricken and bleeding on the sidewalk and then, at 5:13, viewers heard Dan Rather of CBS News say, “It is now confirmed that Jim Brady has died.”

    Thirteen minutes later a White House spokesman on the air live said the report of Brady’s death was “untrue.” Rather said, “There is some confusion.” Later, Chris Wallace of NBC News reported on the air that the president was undergoing “open-heart surgery,” apparently untrue; a White House adviser had to deny that report after Wallace repeated it. Again, as in past crisis, the viewer was becoming privy to the newsgathering process.

    link: https://www.washingtonpost.com/archive/lifestyle/1981/03/31/tvs-day-of-trauma-38/4994b747-87f6-49bd-b4f2-7f3b101b228a/?utm_term=.4328d96b316e

    Continue Reading ...
  • Why is Steven Anderson of Culver Franchising testifying on patent reform in front of Congress?

    The fact that Culver Franchising’s VP and general counsel is citing this case as a reason why Congress needs to create stricter venue provisions is confusing given the fact that Culver hasn’t filed a motion to transfer venue in the case. The company has only filed a motion to dismiss based on invalidity of the asserted claims under 35 U.S.C. Section 101. In fact, Culver filed an answer with affirmative defenses three weeks after the Supreme Court decided TC Heartland which notes that “Culver’s…

    Continue Reading ...
  • Kent Goss and Valerie Goo Join Crowell & Moring’s Litigation Group in Los Angeles

    On June 27, 2017, Crowell & Moring LLP announced the arrival of partners Kent B. Goss and Valerie M. Goo to the firm’s Litigation Group. Goss and Goo are recognized trial lawyers who have a distinguished record in representing clients in commercial litigation and intellectual property matters, including eight- and nine-figure disputes. Their arrival expands on the litigation capabilities of Crowell & Moring’s nationally recognized group to serve clients in California and across the…

    Continue Reading ...
  • PTAB Life Sciences Report

    By John Cravero — About the PTAB Life Sciences Report: Each month we will report on developments at the PTAB involving life sciences patents. Myriad Genetics, Inc. v. Johns Hopkins University PTAB Petition: IPR2017-01102; filed March 16, 2017. Patent at Issue: U.S. Patent No. 6,440,706 (“Digital amplification,” issued August 27, 2002) claims a method for determining the ratio of a selected genetic sequence in a population of genetic sequences. Petitioners Myriad Genetics, Inc.; Myriad Genetic Laboratories, Inc.; Bio-Rad Laboratories, Inc.; and RainDance Technologies, Inc. are challenging the ‘706 patent on six grounds as being anticipated under 35 U.S.C. § 102(b)…

    Continue Reading ...
  • The Increasing Value of Trade Secrets: Baker & McKenzie and Euromoney Release Trade Secret Report

    The law firm of Baker and McKenzie (and Euromoney Institutional Investor Thought Leadership) has released a 22 page report titled, “Protect and Preserve: The Rising Importance of Trade Secrets.”  The authors surveyed 404 senior executives in industries which included Industrials; Financial Services; Consumer Goods/Retails; Information, Communication and Technology; and Chemical, Healthcare, Biotechnology, and Pharmaceuticals.  Over half of those surveyed reported that trade secrets were more valuable than other types of intellectual property for them.  Additionally, 69% of those surveyed believe that trade secrets will be even more important in the future because of the rapid change of technology.  Apparently, short product/service cycles coupled with the time required to obtain some IP rights (patents?) may make them less important.  The key findings of the report, include:

    [1] In our survey, 82% of respondents said their trade secrets are an important, if not essential, part of their businesses. Among industries, 46% of financial services executives said they consider their trade secrets to be essential to their corporate strategy, followed by industrials and ICT executives (both 41%), healthcare (35%) and consumer goods and retail (27%).

    [2] Among our respondents, 61% said that protecting their company trade secrets and IP is a board-level issue, reflecting the rising value of trade secrets in our digital age. Nearly one-third ranked it a top-five concern.

    [3] Among the companies in our survey, 20% said they’ve had trade secrets stolen. Another 11% said they don’t know whether they’ve been the victim of misappropriation, indicating that the incidents of theft are likely higher. The healthcare industry is by far the most targeted, with 33% of those executives in our survey reporting that they’ve suffered trade secret theft, followed by industrials (18%) and ICT (17%).   

    [4] When asked to identify the greatest threat to their trade secrets, 32% of our respondents said they most feared having trade secrets stolen by former employees, followed by suppliers, consultants and other third parties (28%), and current employees (20%). Another 15% said they most fear rogue or state-sponsored cybercriminals or hackers.

    [5] Despite the heightened awareness of the importance of trade secrets, only 31% of our respondents said they have procedures in place to respond to the threat of or actual theft of trade secrets. Given that trade secrets are no longer protected once they become public, the question is how much more they should be doing to manage this risk.

    The report identifies the apparent cause of the disconnect between the importance of trade secrets and the fact that companies have insufficient protection with the belief that many companies do not know which of their trade secrets are the most valuable until they are actually stolen.  One reason for this appears to be a failure to audit and perhaps a lack of clarity in valuing trade secrets.  Executives also seem to want stronger trade secret protection, particularly those based in Asia.  [Hat tip to Corporate Counsel for a lead to the report.]

    Continue Reading ...
  • BUMP 衝突・こぶ


    BUMP 衝突・こぶ

    $$ It will be appreciated that the ridge 22 may take any shape or configuration as long as it serves to urge the utensil away from th…

    Continue Reading ...
  • Patents on pot

    Craig Nard has an interesting post titled Pot with patents could plant the seeds of future lawsuits which includes text

    As a professor who researches and teaches in the area of patent law, I have been monitoring how private companies are quietly securing these patents on cannabis-based products and methods of production, even though marijuana remains a Schedule 1 drug. An even richer irony is that the government itself has patented a method of “administering a therapeutically effective amount of a cannabinoids.”

    link: https://medicalxpress.com/news/2017-07-pot-patents-seeds-future-lawsuits.html#jCp

    Key word: US 6,630,507 (Hampson)

    Of Nard:

    Galen J. Roush Professor of Law; Director, Spangenberg Center for Law, Technology & the Arts and the FUSION Certificate Program in Design, Innovation & IP Management

    **Separately, one notes a 2015 article at law360 which begins:

    The U.S. Patent and Trademark Office has started receiving applications for patents on new types of marijuana plants, and attorneys say that the federal government’s classification of the drug as illegal could make obtaining a patent difficult, though nothing in the law expressly bars patent protection for illegal substances.

    The patent applications follow recent decisions by voters in Colorado and Washington to legalize the recreational use of marijuana. That appears to have emboldened marijuana entrepreneurs in those states and elsewhere to seek patent protection on strains they have developed, but the U.S. government still classifies the drug as a Schedule I narcotic, the most dangerous type of drug.

    The USPTO has not yet decided whether to issue any patents on marijuana plants, but many attorneys say it is unlikely to allow patent protection for a substance the federal government has deemed illegal.

    “My first impression is that the patent office is going to say no,” said David Resnick of Nixon Peabody LLP. “It’s still a federal crime and Schedule I narcotic.”

    Unless Congress decides to legalize marijuana nationwide, it’s likely the patent office will say, “this is illegal under federal law, and we’re not going to promote it,” Resnick said.

    link: https://www.law360.com/articles/609140/marijuana-patent-applications-face-tough-road-at-uspto

    Continue Reading ...
  • CAFC in Parallel Networks: mistaken premise by district court "clearly erroneous" and constitutes abuse of discretion

    The outcome:

    This case returns to us from the United States District
    Court for the Eastern District of Texas (district
    court), where Parallel Networks, LLC (Parallel Networks)
    asserted U.S. Patent No. 6,446,111 (ʼ111 Patent) against
    more than 100 defendants for their use of certain applets
    on their websites. Over Parallel Networks’ opposition, the
    district court granted summary judgment of noninfringement
    for Kayak Software Corp., d/b/a Kayak.com
    (Kayak); Orbitz LLC, Orbitz Worldwide, Inc., Orbitz
    Worldwide, LLC, Orbitz Away LLC (collectively, Orbitz);
    and Wolverine World Wide, Inc. (Wolverine), because
    their accused applets did not meet the “executable applet”
    claim limitation in the ʼ111 Patent. Shoebuy.com LLC
    (Shoebuy) also moved for summary judgment of noninfringement.
    In response, Parallel Networks proposed
    that it would dismiss its infringement claim against
    Shoebuy with prejudice, if Shoebuy agreed to dismiss its
    invalidity counterclaim with prejudice. After the parties
    failed to reach an agreement, the district court dismissed
    both the infringement claim and invalidity counterclaim
    with prejudice. With the merits resolved, all defendants
    moved for attorneys’ fees, pursuant to 35 U.S.C. § 285
    (2012), but the district court denied that motion. We
    agree with the district court in all respects, but for its
    dismissal of Shoebuy’s invalidity counterclaim with
    prejudice. We, therefore, affirm in part and reverse in

    Of the invalidity counterclaim

    In deciding the propriety of a dismissal of a counterclaim
    with or without prejudice, we apply the law of the
    regional circuit, here the Fifth Circuit. See Univ. of
    Pittsburgh v. Varian Med. Sys., Inc., 569 F.3d 1328, 1331
    (Fed. Cir. 2009) (citing H.R. Techs., Inc. v. Astechnologies,
    Inc., 275 F.3d 1378, 1384 (Fed. Cir. 2002)). The Fifth
    Circuit reviews a district court’s dismissal of a counterclaim
    with prejudice for an abuse of discretion. See, e.g.,
    Hyde v. Hoffmann-La Roche, Inc., 511 F.3d 506, 509 (5th
    Cir. 2007); Elbaor v. Tripath Imaging, Inc., 279 F.3d 314,
    317–18 (5th Cir. 2002).
    Shoebuy argues that the district court abused its discretion
    because it dismissed the invalidity counterclaim
    with prejudice on the mistaken premise that Parallel
    Networks and Shoebuy had entered a covenant.
    We agree
    with Shoebuy that the dismissal of the counterclaim
    should be without prejudice. The district court’s finding
    that these particular parties agreed to a covenant was
    clearly erroneous, especially given that Parallel Networks
    does not insist that such a covenant exists. We, therefore,
    reverse the dismissal of Shoebuy’s invalidity counterclaim
    with prejudice on this ground.

    **Separately, from Blawgsearch on July 5, 2017:

    Continue Reading ...
  • Attorney Fee Award: District Court Erred in Not Awarding Fees

    In another successful appeal by Prof. Mark Lemley, the Federal Circuit has reversed on fees – finding that the E.D. Texas Court (Judge Gilstrap) erred by not awarding fees to the successful defendant Newegg. AdjustaCam v. Newegg (Fed. Cir. 2017) [16-1882.Opinion.6-29-2017.1] [regarding U.S. Patent No. 5,855,343] AdjustaCam dropped its infringement case against Newegg following an adverse claim […]

    Continue Reading ...
  • Was America’s Industrial Revolution Based on Trade Secret Theft?

    Is it reasonable to say that the U.S. got an unfair head start on the Industrial Revolution by stealing secrets from Britain? I don’t think so. Industrial espionage had been practiced in Europe throughout the 18th Century, with the British and French particularly active, even using diplomats to get access to valuable commercial information. Moreover, Britain, like some other European countries, frequently granted “patents of importation,” which didn’t require the applicant to be an inventor, if…

    Continue Reading ...
  • Newegg wins appeal at CAFC

    The outcome:

    AdjustaCam sued Newegg and dozens of other defendants for patent infringement. Although AdjustaCam voluntarily dismissed most defendants early in the litigation, it continued to litigate against Newegg, including through a Markman order and extended expert discovery. Just before summary judgment briefing, AdjustaCam voluntarily dismissed its infringement claims against Newegg with prejudice. Newegg then filed a motion for attorneys’ fees. The district court denied Newegg’s motion, and Newegg appealed to this court.

    We remanded to the district court in light of intervening Supreme Court precedent.
    On remand, the district court again denied Newegg’s motion for fees. Newegg then filed this appeal.
    Because the district court erred in denying Newegg’s motion, we reverse.

    Of abuse of discretion

    Despite this considerable latitude in making fees determinations, an appellate court may correct a district court’s legal or factual error. Highmark, 134 S. Ct. at 1748 n.2. A district court abuses its discretion when its ruling rests on an erroneous legal conclusion or on a clearly erroneous assessment of the evidence. Id.; see also Apple Inc. v. Samsung Elecs. Co., 809 F.3d 633, 639 (Fed. Cir. 2015). The court also abuses its discretion when it makes a “‘clear error of judgment in weighing relevant factors.’” Bayer CropScience AG v. Dow AgroSciences LLC, 851 F.3d 1302, 1306 (Fed. Cir. 2017) (quoting Mentor Graphics Corp. v. Quickturn Design Sys., Inc., 150 F.3d 1374, 1377 (Fed. Cir. 1998)).

    B. The District Court Abused Its Discretion

    We hold that the district court abused its discretion by not awarding fees to Newegg for two independent reasons:

    (1) it failed to follow our mandate on remand; and

    (2) its decision was based on “a clearly erroneous assessment of the evidence.” Highmark, 134 S. Ct. at 1748 n.2. We recognize the deference owed to district courts in deciding fees motions. See Univ. of Utah v. MaxPlanck-Gesellschaft zur Foerderung der Wissenschaften e.V., 851 F.3d 1317 (Fed. Cir. 2017) (affirming decision not to award fees); Bayer, 851 F.3d at 1303 (affirming decision to award fees). Deference, however, is not absolute. Apple, 809 F.3d at 639; see also Highmark, 134 S. Ct. at 1748 n.2; Checkpoint Sys., Inc. v. All-Tag Sec. S.A., __ F.3d __, 2017 WL 2407853 (Fed. Cir. June 5, 2017) (reversing fee award); Rothschild Connected Devices Innovations, LLC v. Guardian Prot. Servs., Inc., __ F.3d __, 2017 WL 2407870 (Fed. Cir. June 5, 2017) (reversing decision not to award fees). When a district court bases its decision on a clearly erroneous view of the evidence, as it did here, the court abuses its discretion in denying fees.


    Octane disclosed another reason why this case is exceptional that was not considered by the district court: AdjustaCam litigated the case in an “unreasonable manner.” Octane, 134 S. Ct. at 1756. This measure of exceptionality is evident through AdjustaCam’s repeated use of after-the-fact declarations. In 2012, AdjustaCam served a new expert report on Newegg the day of that expert’s deposition. J.A. 8. AdjustaCam claims it did not realize that it had inadvertently served a draft report until the day of the deposition. But as Newegg argued to the district court, had AdjustaCam served an earlier draft of Dr. Muskivitch’s report on June 25, AdjustaCam would have been aware of this error when Newegg’s expert served his rebuttal report on July 27, 2012. J.A. 1789. AdjustaCam certainly would have known of its error well before Newegg’s expert’s deposition in August 2012. Id.

    Continue Reading ...
  • New Publications on FRAND, Patent Remedies in China

    1. On Monday of this week, Yin Li, Hui Zhang, and James Yang published a post titled New Developments on SEP-Related Disputes in China on the Kluwer Patent Blog.  The post discusses the Huawei v. IDC and Iwncomm v. Sony cases, as well as the April 2016 Interpretations (II) of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Dispute Cases and the April 2017 Beijing High People’s Court Guidelines for Patent Infringement Determination.
    2.  A company called IP House published a report titled Beijing Intellectual Property Court :  Judicial Protection Data Analysis Report (2015), which has information on (among other matters) damages awards (see pp. 21-30).  The report has previously been discussed by Mark Cohen on China IPR and by Jacob Schindler on the IAM Blog.
    3.  Liu Wei published The Boundary for Proper IP Warning Letter–An Analysis of the Supreme People’s Court Decision in the Edan Case, China IP Magazine (Oct.-Nov. 2015), pp. 66-68, discussing the standards for determining the circumstances under which an IP owner might be liable under unfair competition law for sending warning letters to an alleged infringer’s business partners or for communicating allegations of infringement to the public.  Wang Guiling (Lucy Wang) also published an article titled Proposals for Improving Remedies Available for Patent Infringement in China in the same issue (pp. 69-72).
    4.  Xiutin Yuan and Paul Kossof published Developments in Chinese Anti-Monopoly Law:  Implications of Huawei v. InterDigital on Anti-Monopoly Litigation in Mainland China in 37 EIPR 438-41 (2015).  Here is the abstract:
    Recent litigation between Huawei Technologies and InterDigital Group in the People’s Republic of China has been closely followed by the international legal community owing to its relation to cases in the US and implications for intellectual property holders and licensees. This article analyses this important case and the potential effects on anti-monopoly litigation in China.
    5. Brian J. Love, Christian Helmers, and Marks Eberhardt have published Patent Litigation in China:  Prpotecting Rights or the Local Economy? in the April 2017 issue of Mitteilungen der deutschen Patentanwälten (pp. 163-69).  Here is the abstract:
    Today, China is the world leader in both patent filings and litigation.   However, many in the West believe that the Chinese patent system facilitates protectionism, not innovation.  We took a look at five years of Chinese invention patent litigation to see what the data can tell us.

    The authors previously published a paper by the same name in the Vanderbilt Journal of Entertainment and Technology Law (see here).

    Update (July 6):  Also of possible interest to some readers might Zhu Dan titled Review and Reconstruction of the jurisdiction System of the Criminal Trial of Intellectual Property in China, China IP Magazine, 11-12/2016, pp. 58-63 (translated by Liu Xiaoyu).  From the introduction:

    Jurisdiction is the prerequisite and basis for the trial.  If the jurisdiction is imperfect, it will inevitably hinder the improvement of trial quality.  At present, many weak points in the criminal justice protection for intellectual property rights (IPR) in China are caused by imperfect trial jurisdiction system.  Therefore, in order to promote the perfection of the IPR criminal jurisdiction system in China, this article puts forward some ideas and suggestions on reforming and reconstructing the IPR criminal trial jurisdiction system by fully reviewing Chinese current IPR criminal trial jurisdiction system.

    Continue Reading ...