• It is already too late, but we still have time

    “If companies were to lobby to allow for more polluting most people would think that is unethical,” Lauder explained. But there are people lobbying to make it more difficult for companies to come up with cures that allow for the creation of cures that save lives, which Lauder says he finds “equally unethical.” Lauder hopes that others start to look at the problem in the same way. That would indeed be a big step forward.

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  • Microsoft Announces Shared Innovation Initiative Encouraging Industry Partners to Patent Collaborative Innovations

    On Wednesday, April 4th, the official Microsoft blog published a post written by the company’s president and chief legal officer, Brad Smith, which announced the company’s new Shared Innovation Initiative. The initiative involves a series of principles which the Redmond, WA-based tech giant says should address issues related to intellectual property and technologies which are co-created with Microsoft’s industry customers so as to help those customers grow their business while allowing…

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  • 間隔で/等間隔で



    $$ Similarly, four or more point calibrations could equally be achieved by use of additional slow release c…

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  • The case of Eric K. Noji, B.S., 1977, Stanford University

    In an article titled Doctors Urge Elite Academy to Expel a Member Over Charges of Plagiarism , the New York Times discusses action by Dr. Arthur Kellerman as to the membership of Eric K. Noji in the National Academy of Medicine. There was an issue of copying from workers at the Centers for Disease Control and Prevention and the Agency for International Development. There was also an issue of a non-existent MBA from Stanford University.

    From the New York Times on the issue:

    But when Dr. Arthur Kellerman asked the academy to dismiss Dr. Noji as well, he hit a roadblock. Nothing in the academy bylaws allowed for ousting a member who had committed scientific misconduct. So Dr. Kellerman, who was on the academy’s governing board, and colleagues, lobbied for the change. Dr. Victor Dzau, president of the academy, supported it.

    Formerly known as the Institute of Medicine, the organization is a division of the National Academies of Sciences, Engineering and Medicine and has over 2,000 members in the United States. It accepts about 70 new members from the U.S. a year. It is not a government agency, but it is often relied on as a source of independent, objective analysis for policymakers on subjects ranging from gun violence to regulation of medical devices.

    According to Noji’s CV at King Saud University, Dr. Noji has a BS from Stanford:

    1977-1981 University of Rochester School Of Medicine, Rochester, New York
    Doctor of Medicine (M.D.), May, 1981

    1973-1977 Stanford University, Stanford, California
    B.S., June, 1977
    Concentration: Biological Sciences

    The CV does NOT include an MBA from Stanford. However, it does include the following:

    Institute of Medicine of the National Academy of Science. Elected to membership, October 2005. Election to the IOM is considered the highest honor that can be bestowed on a medical doctor in the United States.

    As to the copying issue, see also:


    This is an abbreviated version of what appears to be a very sad story.

    ***BeckersHospitalReview wrote of the Noji case:

    Here are six things to know about the case.

    1. Dr. Noji was admitted into the NAM in 2005. Dr. Noji has previously held executive roles at the CDC, World Health Organization and in the White House, advising on a number of disease and health-related endeavors. He has also won numerous awards and medals for his work, according to his Facebook page.

    2. However, The New York Times notes some of the awards Dr. Noji claims to have won don’t exist, and several of his papers and one book chapter were copied from the work of his former colleagues at the CDC and the Agency for International Development, according to a complaint filed by Arthur L. Kellermann, MD, dean of the F. Edward Hébert School of Medicine at the Uniformed Services University of the Health Sciences in Bethesda, Md.

    3. In his complaint, Dr. Kellerman specifically cites a research paper in which Dr. Noji described emergency medicine work he performed during the 2003 Iraq invasion. The Uniformed Services University, where Dr. Noji served as an adjunct professor, conducted an investigation in 2016 and discovered the work described in Dr. Noji’s paper was actually done by Frederick Burkle Jr., MD, a senior fellow and scientist at the Cambridge, Mass.-based Harvard Humanitarian Initiative and adjunct professor at USU, who served as Dr. Noji’s supervisor during the mission.

    4. The university’s investigation also alleges Dr. Noji plagiarized five research papers, fabricated an account of his research and his experience in Iraq and misrepresented his credentials before he was named to NAM in 2005, according to the The New York Times. USU dismissed Dr. Noji from the medical school staff in May 2016.

    5. Dr. Kellerman reportedly brought his concerns to NAM officials with the intent to expel Dr. Noji from the organization. While the move received support from the academy’s governing board, its president and various members, the academy’s bylaws reportedly do not possess any protocol for ousting a member who commited scientific misconduct, according to the report. A NAM spokesperson told The New York Times falsification, plagiarism or fabrication after a physician is elected to the organization are not grounds for removal.

    6. NAM reportedly reached a compromise regarding the complaint against Dr. Noji in December 2016 and issued a rule stating membership into the organization may be rescinded if an individual provides false information prior to becoming a member. The organization is reportedly still considering Dr. Noji’s case, according to The New York Times.

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  • Maxon loses on 101 at CAFC

    As to the 101 issue in Maxon v. Funai:

    Patent eligibility under § 101 is a legal determination
    that we review de novo. buySAFE, Inc. v. Google, Inc.,
    765 F.3d 1350, 1352 (Fed. Cir. 2014). Under Alice, we
    consider: (1) whether the claims are directed to an abstract
    idea, and (2) whether the claims contain an inventive
    concept sufficient to transform the claimed
    abstract idea into a patent-eligible concept. Alice Corp.
    Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2355 (2014).
    The use of “wholly generic computer implementation”
    cannot “transform a patent-ineligible abstract idea into a
    patent-eligible invention.” Id. at 2358.

    Maxon concedes that the patents are directed to the
    abstract idea of “decentralized delivery controlled by the
    owner of a plurality of devices.” Appellant’s Op. Br. 11.
    Accordingly, the only issue before the district court was
    whether the claims “do significantly more than simply
    describe the abstract method.” Affinity Labs of Tex., LLC
    v. DIRECTV, LLC, 838 F.3d 1262 (Fed. Cir. 2016). The
    court found that they do not.

    The CAFC stated:

    The district court also correctly found that the ordered
    combination of the claimed elements is not inventive
    under Alice step two. Analyzing claim 8 of the ’160 patent,
    the court noted:
    [T]he invention consists of some kind of memory
    capable of identifying the device and the networks
    to which it is connected, the ability to take instructions
    and use them in connection with the
    stored identification data, and the ability to send
    and receive signals based on the processor’s abilities.
    That describes only the desired result—
    increased user control over services available to
    him or her—without describing any inventive way
    that result is reached. The only method of reaching
    the result the patent teaches is, in essence,
    use of generic computer components for their
    standard purposes to achieve the result. Nothing
    about the order of the elements, or the way they
    are combined, suggests inventiveness.
    J.A. 11–12. We agree that the representative claim does
    not recite anything beyond the application of routine and
    conventional computer components. The same principles
    apply to each of the asserted patents in this case. We
    have considered Maxon’s other arguments and find them
    unpersuasive. Accordingly, we find that the patents only
    cover ineligible subject matter.

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  • Baker v. Microsoft. CAFC finds clear and unmistakable disavowal of relevant claim scope

    Pro se appellant-plaintiff RICHARD J. BAKER lost his appeal
    against Microsoft at the CAFC.

    There was an issue of disavowal, via amendment, of claim scope:

    In his remarks accompanying the proposed amendments,
    Mr. Baker argued that Mann did not anticipate
    the amended claims because “[n]owhere in Mann is there
    a teaching that the computer system is located remotely
    from the teaching station as is emphasized in Applicant’s
    disclosure.” J.A. 99. Mr. Baker further argued that
    “[t]ransmittance to a separate location for analysis and
    feedback is critical in Applicant’s invention, because the
    programming can be efficiently performed at the remote
    computer station.” Id.
    Mr. Baker made these amendments to distinguish the
    ’001 Patent over Mann. We agree with the district court
    that Mr. Baker clearly and unmistakably disavowed any
    portion of his claim scope which combines the claimed
    features of the ’001 Patent’s remote computers into a
    single location or a single computer-like device, as disclosed
    in Mann.
    Lastly, for the reasons discussed by the district court,
    we agree that the word “remote” in claim 18 carries the
    same meaning as it conveys in claims 1 and 10. See
    Baker, 2017 WL 44517, at *4.

    The CAFC observed:

    We agree that Appellees’ accused products do not
    literally infringe the ’001 Patent. Rather than incorporating
    two remote, computer-like devices (plus a peripheral
    camera) as required by the claims, we observe—and Mr.
    Baker appears to concede1—that the accused products
    only employ a single game console or personal computer
    in conjunction with a peripheral camera. As explained,
    Mr. Baker clearly and unmistakably disclaimed such a
    system during prosecution. Thus, we agree with the
    district court’s conclusion that the accused products do
    not literally infringe each limitation of claim 1, 10, or 18
    of the ’001 Patent. See Advanced Steel Recovery, LLC v.
    X-Body Equip., Inc., 808 F.3d 1313, 1319 (Fed. Cir. 2015);
    Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570,
    1575 (Fed. Cir. 1995) (“To establish literal infringement,
    every limitation set forth in a claim must be found in an
    accused product, exactly.”).

    The district court also concluded that prosecution
    history estoppel barred Mr. Baker from pursuing his
    infringement claim under the doctrine of equivalents. See
    Baker, 2017 WL 44517, at *7–8. For the same reasons
    discussed in the district court’s order, we agree.

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  • A few Eighth Circuit Cases

    The 8th Circuit court of appeals holds court at Mizzou law school about once each year.  Although no IP cases this year, all three slated for tomorrow’s oral arguments are interesting: Is the right to counsel enforceable in court?: The first case involves the class action Church  v. State of Missouri and Gov. Eric Greitens.  […]

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  • The Other TCL v. Ericsson Case

    Or I suppose I should say, Ericsson v. TCL.  Hat tip to Christine Yun Sauer for forwarding this opinion to me, from Magistrate Judge Roy Payne of the Eastern District of Texas, ordering a new trial on damages, in a case that (in contrast to the TCL v. Ericsson FRAND case) involved the alleged infringement of a single Ericsson non-SEP, and resulted in a jury award of $75 million.  The judge concludes, among other things, that a survey used by Ericsson’s witness to show that 28% of TCL customers wouldn’t have bought a phone without the infringing feature doesn’t lead to the conclusion that 28% of TCL’s profit is attributable to that feature.  The judge’s reasoning seems correct to me:
    It is not difficult to see how this lost profit number quickly becomes unrealistic. Subtracting just three features covered by a mere three implementation patents would have allegedly cut TCL’s profit by more than half. The evidence from both sides suggested that there were at least a thousand implementation patents that might cover a TCL phone. See Trial. Tr. 8:22-9:4, Dkt. No. 404; Trial Tr. 90:3-95:17. Regardless of the number, there is no dispute that a phone with an Android-operating system has many patented features, and that, according to Dr. Wecker’s survey results, consumers would likely find numerous features essential. See, e.g., Trial Tr. 90:3-95:17. According to Mr. Mills, any one of these allegedly essential features could independently be worth more than a quarter of TCL’s profit on the phone. See id. By removing even three additional features covered by an implementation patent, on top of the features allegedly covered by the ’510, ’931, and ’310 patents, TCL would have lost all its profit (conservatively), according to Mr. Mills’ theory.

    Mr. Mills’ conclusion is unreliable for at least two reasons. First, Mr. Mills did not consider the numerous patented features on the accused phones, many of which a consumer would consider essential, assuming Dr. Wecker’s survey results were extrapolated. Second, Mr. Mills did not account for how his theory would result in the erosion of all of TCL’s profit. Realistically, there are many features on a phone that would likely yield survey results similar to those obtained for the ’510 patent, e.g., ability to make a call, text messaging, Wi-Fi connection. See Trial Tr. 90:3-9-98:17, Dkt. No. 398. To conclude that any one of these features—simply because it is considered essential to a consumer—could account for as much as a quarter of TCL’s total profit is unreliable and does not consider the facts of the case, particularly the nature of smartphones and the number of patents that cover smartphone features (pp. 10-11).

    On a different issue–one that not enough people write about, given how much money can sometimes be at stake–the judge also announces that in the district, standard practice is to award prejudgment interest at the prime rate, compounded quarterly (p.16).
    Finally, I’d like to pass along this article by Ms. Yun Sauer and two other Robins Kaplan attorneys, Aaron Fahrenkrog and Danielle Rosenthal, titled A Back-To-Basics Approach to Patent Damages Law, which I think makes some valid critiques about the Federal Circuit’s insistence (in some cases, at any rate) on apportioning the royalty base.
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