• Patent Trolls, Superpredators and Deplorables: The Ramifications of Political Bullying

    This damaging narrative, which portrays inventors in an incredibly disrespectful way, has been allowed to infect the highest levels of our nation’s government… Aside from the specific classes being targeted by these different monikers, it would seem that the use of the term “patent troll” is not much different than the use of the terms “superpredators” or “deplorables.” Each of them is a gross over-generalization of groups of people that have turned out to be incredibly demeaning and evidence…

    Continue Reading ...
  • Endo mainly prevails at CAFC in case related to painkiller opioid oxymorphone

    The result of this Hatch-Waxman case was mainly a victory for the patent holder Endo:


    The generic drug manufacturers argued generally that
    the asserted patents’ claims were invalid or not infringed.
    The district court rejected those arguments and found all
    asserted claims of the ’122 and ’216 patents not invalid,
    and all but two asserted claims infringed. Because there
    is no reversible error in the district court’s findings, we
    affirm.

    Of details of the district court decision:


    The district court concluded that the generic drug
    manufacturers failed to show that the asserted claims of
    the two patents are invalid. J.A. 128–29. Specifically, the
    court found that the asserted claims of the two patents
    are not invalid for obviousness; that the asserted claims
    with the dissolution limitations are not invalid for lack of
    written description; and that the asserted claims reciting
    the multiple peaks limitations are not invalid for indefiniteness.
    The court also found that Endo carried its
    burden to show that defendants infringe or will infringe
    all but two of the asserted claims of the ’122 and ’216
    patents. J.A. 72–73. The court then issued a permanent
    injunction against Actavis’s manufacture, use, offer to
    sell, or sale of its generic version of OPANA®ER prior to
    the expiration of the ’122 and ’216 patents. J.A. 182.

    Of teaching away:


    Amneal contends that the court erred by finding that
    oxymorphone’s low bioavailability teaches away from
    attempting a controlled release formulation. Overwhelming
    evidence at trial, however, supports that factual
    finding. Expert testimony showed that a skilled artisan
    would not have been motivated to select oxymorphone for
    use in a controlled release setting because of its “exceptionally
    low bioavailability.” J.A. 98. As the district court
    noted, the Oshlack reference also taught that “bioavailability
    is a significant, even crucial, factor in evaluating a
    drug’s suitability for placement in a controlled release
    vehicle.” J.A. 92. The court also observed that “[t]he
    notion that low-bioavailability drugs were considered
    unsuitable for extended-release formulation is reinforced
    by the fact that, until Endo’s development of OPANA®ER,
    there were remarkably few such examples.” J.A. 94. For
    example, the existence of another low-bioavailability
    drug, oxybutynin—a non-opioid analgesic, unlike oxymorphone—which
    had previously been developed into a
    controlled release formulation, served to underscore “the
    fact that low bioavailability drugs were remarkably rare
    in controlled-release settings.” J.A. 95. Indeed, “its total
    absence from the expert reports of both sides, impressed
    on the court that low-bioavailability drugs were, at the
    time of the invention, perceived as unsuited for development
    into controlled release forms.” Id. Tellingly, Appellants’
    own expert maintained the view that active
    ingredients with poor bioavailability would not be good
    candidates for controlled release dose forms. J.A. 2769.
    Appellants contend that the low bioavailability of oxymorphone
    could be addressed by increasing the dosage.
    The district court did not err in rejecting that argument.
    The court found, based on published research, that such
    an approach “risk[ed] toxicity.”

    (…)

    Oxymorphone’s inclusion in Maloney’s and Oshlack’s
    lists of candidate molecules does not alter this conclusion.
    Those lists mention oxymorphone among a vast number of
    other molecules, including drugs such as heroin, opium,
    and fentanyl, so the district court doubted that the lists
    would be taken seriously as indicating suitability for
    controlled release treatment. J.A. 96–98. The court
    noted, for example, that fentanyl was widely understood
    as suitable only for transdermal, not oral, delivery. J.A.
    96–97. Given that context, the district court reasonably
    found that a skilled artisan would not have viewed oxymorphone
    as suitable for a controlled release setting.
    Moreover, neither Penwest S-1 nor Cleary discloses any
    technical details, such as dosing interval or twelve-hour
    efficacy, for achieving the claimed inventions. J.A. 3144–
    45. Accordingly, a person of ordinary skill, upon reading
    those references, would have been strongly discouraged
    from using oxymorphone in a controlled release setting.
    The district court did not clearly err in finding that the
    references taught away from the claimed invention.


    Of written description


    The written description requirement provides that a
    patentee’s application for a patent must “clearly allow
    persons of ordinary skill in the art to recognize that [he]
    invented what is claimed.” Ariad Pharm., Inc. v. Eli Lilly
    & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc)
    (quoting Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563
    (Fed. Cir. 1991)). “[T]he test for sufficiency is whether the
    disclosure of the application relied upon reasonably
    conveys to those skilled in the art that the inventor had
    possession of the claimed subject matter as of the filing
    date.” Id.

    Of injunction and irreparable harm:


    Endo relatedly demonstrated, mainly through trial
    testimony, that it had to lay off its sales force, which may
    damage its reputation in the market segment and make
    the company less attractive to potential new hires. The
    court found that such irreparable harm cannot be adequately
    addressed without an injunction.

    Continue Reading ...
  • Anacor loses in appeal of result of IPR decision coming from petition of Coalition for Affordable Drugs


    In 2015, the Coalition for Affordable Drugs X LLC
    filed a petition requesting inter partes review of all 12
    claims of the ’621 patent. The Board instituted review
    and found that the claims would have been obvious in
    light of the combination of Int’l Pat. Appl. No.
    PCT/GB95/01206 (“Austin”) and U.S. Pat. Appl. No.
    10/077,521 (“Brehove”). Both Austin and Brehove teach
    the use of boron heterocycles as antifungal agents that
    inhibit C. albicans, among other fungi. Boron heterocy-
    cles are organic compounds that contain both boron and
    carbon in a ring structure.2
    Austin teaches the use of oxaboroles—boron heterocycles
    that include a five-member ring containing three
    carbon atoms, one oxygen atom, and one boron atom—as
    fungicides. Austin discloses tavaborole as one of a small
    group of oxaboroles that were tested for antifungal activity
    and teaches that tavaborole is a highly effective agent
    that inhibits a variety of fungi, including C. albicans.

    Footnote 4:


    Dr. Stephen Kahl, another of the petitioner’s experts,
    testified to the same effect. He stated, “I think a
    [person of ordinary skill] would presume that if a compound
    showed significant antifungal activity against any
    of a variety of fungi, would have reasonable reason to look
    at those against a specific fungus and expect some success.
    . . . [F]ungi are rather simple organisms. And it’s
    not unusual that a compound that . . . has antifungal
    activity in one fungus, might be expected or at least
    evaluated in another fungus.”

    Of Anacor’s arguments:

    On appeal, Anacor first argues that the Board violated
    due process and the procedural requirements of the
    Administrative Procedure Act (“APA”) by failing to provide
    Anacor with adequate notice of, and an opportunity
    to respond to, the grounds of rejection ultimately adopted
    by the Board.
    Under the APA, a patent owner involved in an inter
    partes review is entitled to notice of and a fair opportunity
    to address the grounds of rejection. 5 U.S.C. §§ 554(b)–
    (c), 557(c); Dell Inc. v. Acceleron, LLC, 818 F.3d 1293,
    1301 (Fed. Cir. 2016). Therefore, an agency “may not
    change theories in midstream without giving respondents
    reasonable notice of the change and the opportunity to
    present argument under the new theory.” Genzyme
    Therapeutic Prod. Ltd. P’ship v. Biomarin Pharm. Inc.,
    825 F.3d 1360, 1366 (Fed. Cir. 2016) (quoting Belden Inc.
    v. Berk-Tek LLC, 805 F.3d 1064, 1080 (Fed. Cir. 2015)).

    Anacor argues that the Board’s decision violated the
    APA and due process in two related ways. First, Anacor
    contends that the petitioner abandoned one prior art
    reference in its reply (Brehove) and shifted to a new
    theory of invalidity (relying on Austin in light of Segal
    and Mertin), and that the Board adopted that new theory
    without giving Anacor proper notice or an opportunity to
    respond to it. Second, Anacor argues that, in bolstering
    this new theory of obviousness, the petitioner impermissibly
    relied on new evidence, not included in the petition, to
    satisfy its burden of showing a prima facie case of obviousness.
    We reject Anacor’s argument that the Board violated
    the APA or due process by adopting a new theory of
    obviousness not presented in the petition. Unlike in In re
    NuVasive, Inc., 841 F.3d 966 (Fed. Cir. 2016), on which
    Anacor relies, the Board’s final written decision was
    based on the same combination of references—Austin and
    Brehove—and the same series of inferences that the
    petition proposed.

    (…)

    We also reject Anacor’s argument that the Board improperly
    relied on new evidence to which Anacor did not
    have an opportunity to respond. Anacor argues that the
    Board improperly cited two references—Mertin and
    Segal—that were not cited in the petition. There is,
    however, no blanket prohibition against the introduction
    of new evidence during an inter partes review proceeding.
    In fact, “the introduction of new evidence in the course of
    the trial is to be expected in inter partes review trial
    proceedings and, as long as the opposing party is given
    notice of the evidence and an opportunity to respond to it,
    the introduction of such evidence is perfectly permissible
    under the APA.” Genzyme, 825 F.3d at 1366; see also
    Novartis AG v. Torrent Pharm. Ltd., 853 F.3d 1316, 1325–
    26 (Fed. Cir. 2017) (finding no APA violation because
    patent owner was not “surprised” where a reference was
    discussed in patent owner’s response, in depositions, and
    at the hearing, because “it is quite clear that [the patentee]
    had more than sufficient notice and opportunity to be
    heard on [the reference’s] potential relevance”).

    In addition, the petitioner in an inter partes review
    proceeding may introduce new evidence after the petition
    stage if the evidence is a legitimate reply to evidence
    introduced by the patent owner, or if it is used “to document
    the knowledge that skilled artisans would bring to
    bear in reading the prior art identified as producing
    obviousness.” Genzyme, 825 F.3d at 1369 (quoting Ariosa
    Diagnostics v. Verinata Health, Inc., 805 F.3d 1359, 1365
    (Fed. Cir. 2015)).8
    It was not improper for the Board to cite Segal and
    Mertin (along with Nimura) as evidence of the knowledge
    that a skilled artisan would bring to bear in reading
    Austin and Brehove, even though those references were
    not cited in the petition. Anacor argues that Segal, Mertin,
    and Nimura “surfaced for the first time in Petitioner’s
    Reply,” but that is not so. Anacor discussed both Nimura
    and Segal in its patent owner’s response and related
    submissions; indeed, Anacor spent three pages of its
    patent owner’s response addressing Segal. For that
    reason, it was not improper for the Board to rely on those
    references to show what a person of skill in the art would
    believe about whether a compound effective against a
    yeast such as C. albicans would be likely to be effective
    against a dermatophyte.

    Also

    Anacor next argues that the Board improperly shifted
    the burden of proof by requiring the patent owner to
    disprove obviousness. Relying on In re Magnum Oil Tools
    International, Ltd., 829 F.3d 1364 (Fed. Cir. 2016), Anacor
    contends that the record provides no basis to conclude
    that tavaborole’s activity against dermatophytes would be
    expected and that, in adopting the petitioner’s position
    without supporting evidence, the Board necessarily shifted
    the burden of proof to Anacor.
    Unlike in In re Magnum, nothing in the Board’s final
    written decision suggests that the Board improperly
    shifted the burden to the patent owner to disprove obviousness.
    To the contrary, the Board expressly and repeatedly
    stated that it was the petitioner’s burden to
    “show[] by a preponderance of the evidence that claims 1–
    12 of the ’521 patent are unpatentable.” Final Written
    Decision, at 3; see also id. at 9, 10, 18, 22, 23, 37, 42

    Notwithstanding those statements, Anacor argues
    that the Board effectively shifted the burden of proof to
    the patent owner because the Board’s conclusions rested
    not on the petitioner’s presentation of evidence in support
    of an argument, but rather on whether Anacor had sufficiently
    disproved that argument. In particular, Anacor
    contends that the Board failed to require proof from the
    petitioner as to the mechanism of action that would lead
    to the conclusion that tavaborole would kill both C. albicans
    and dermatophytes, and that the Board did not
    explain why the evidence that dermatophytes are usually
    more sensitive than yeasts to antimycotics applies to
    tavaborole.
    In substance, Anacor’s argument is not that the Board
    shifted the burden of proof to Anacor, but that the Board
    improperly relaxed the burden on the petitioner to prove
    its case. That argument, however, does not suggest that
    the Board shifted the burden of proof to Anacor, but
    instead is directed to the question whether there was
    substantial evidence to support the Board’s finding of
    obviousness.

    Continue Reading ...
  • Inside Views: The Patent Paradox In Brazil And Its Implications For Access To Medicines

    Brazil is frequently pointed to as one of the countries in which fewer pharmaceutical patents are granted. The fact that there is a low number of patents granted could lead to the conclusion that medicines can be bought under competition and that the prices would be low. However, many medicines in Brazil are bought exclusively from one producer and usually at high prices. The situation of few granted patents, but many purchases under exclusivity due to absence of competition (which can lead to higher prices), is what we are calling the ‘patent paradox in Brazil’. In the absence of granted patents, what are the factors that lead to the situation of no competition and high prices in Brazil? This is the question that we, at the accessibsa: Innovation & Access to Medicines in India, Brazil & South Africa, aim to answer with a study currently being conducted at the Department of Medicines Policy and Pharmaceutical Services (NAF) of the Sergio Arouca National School of Public Health – ENSP/Fiocruz.

    Continue Reading ...
  • Praxaire wins at CAFC

    The outcome was that Praxaire won its appeal as to claim 9:

    Praxair Distribution, Inc. (“Praxair”) appeals from the
    inter partes review decision of the United States Patent
    and Trademark Office Patent Trial and Appeal Board
    (“the Board”) holding claim 9 of U.S. Patent 8,846,112
    (the “’112 patent”) not unpatentable as obvious under 35
    U.S.C. § 103 (2006).1 Praxair Distrib., Inc. v. Mallinckrodt
    Hosp. Prods. IP Ltd., No. IPR2015-00529, 2016 WL
    3648375 (P.T.A.B. July 7, 2016) (“Decision”). Mallinckrodt
    Hospital Products IP Ltd. (“Mallinckrodt”) crossappeals
    from the same decision holding, inter alia, claims
    1–8 and 10–11 unpatentable as obvious. Because we
    conclude that the Board did not err in its conclusions as to
    claims 1–8 and 10–11, but did err with respect to claim 9,
    we affirm the Board’s decision in part and reverse it in
    part.

    Of the review by the CAFC of a PTAB ruling:


    Our review of a Board decision is limited. In re Baxter
    Int’l, Inc. 678 F.3d 1357, 1361 (Fed. Cir. 2012). We review
    the Board’s legal determinations de novo, In re Elsner,
    381 F.3d 1125, 1127 (Fed. Cir. 2004), but we review the
    Board’s factual findings underlying those determinations
    for substantial evidence, In re Gartside, 203 F.3d 1305,
    1316 (Fed. Cir. 2000). A finding is supported by substantial
    evidence if a reasonable mind might accept the evidence
    as adequate to support the finding. Consol. Edison
    Co. v. NLRB, 305 U.S. 197, 229 (1938).

    As to claim 9:

    That does not end the inquiry, however, as we must
    still consider whether claim 9 as a whole would have been
    obvious to a person of ordinary skill at the time of the
    invention. In assessing obviousness, the Board found that
    Bernasconi taught that inhaled nitric oxide may lead to
    pulmonary edema in patients with LVD, and emphasized
    the “need for careful observation and intensive monitoring
    during [nitric oxide] inhalation” in patients with LVD.
    Decision, 2016 WL 3648375, at *13. Nonetheless, the
    Board held that Bernasconi did not render claim 9 obvious
    for two reasons, both of which we reject.
    First, in addressing the differences between the prior
    art and claim 9, the Board found that Bernasconi did not
    “teach[] or suggest[] that treatment with [nitric oxide]
    should be discontinued in pediatric patients with LVD
    that experience pulmonary edema,” as required by
    claim 9. Id. at *19. Rather, the Board found Bernasconi
    to be “contrary to [its] interpretation of the claim language”
    because Bernasconi taught “that [nitric oxide] may
    be given to patients with LVD, as long as those patients
    are monitored carefully during treatment.” Id. (emphasis
    added). The Board’s finding is premised on an incorrect
    reading of claim 9, and under the correct reading Bernasconi
    is not “contrary to” claim 9. The Board conflated
    excluding a patient with LVD from nitric oxide treatment
    and discontinuing nitric oxide treatment in a patient with
    LVD after that patient experiences a pulmonary edema.
    But claim 9 does not permit, let alone require, excluding
    patients with LVD from nitric oxide treatment. Instead,
    claim 9 recites that nitric oxide be given to patients with
    LVD, and be discontinued if a pulmonary edema occurs.
    Thus Bernasconi’s teaching that patients with LVD could
    be treated with nitric oxide if carefully monitored is not
    contrary to the claim language, and the Board erred by
    interpreting claim 9 otherwise.
    Second, the Board found “compelling” Mallinckrodt’s
    evidence of secondary considerations that “patients were
    not excluded” from the INOT22 study, despite the known
    relationship between nitric oxide treatment and pulmonary
    edema for patients with LVD. Decision, 2016 WL
    3648375, at *19. The Board found persuasive the inference
    that “if it were obvious to a person of ordinary skill
    in the art to exclude” such patients from the study, the
    researchers conducting the INOT22 study would have
    done so. Id. The Board’s secondary considerations analysis
    also rested on its “excluding” interpretation of claim 9.
    But, because we conclude that claim 9 requires administering
    nitric oxide to patients with LVD, Mallinckrodt’s
    evidence of secondary considerations regarding the failure
    of researchers to exclude such patients from the INOT22
    study lacks sufficient nexus to the claim. See Classco, Inc.
    v. Apple, Inc., 838 F.3d 1214, 1220 (Fed. Cir. 2016).

    In sum, both the Board’s findings regarding the differences
    between the prior art and claim 9 and its findings
    on secondary considerations depended on an
    incorrect interpretation of that claim, and we therefore
    hold that they are not supported by substantial evidence.
    See In re Smith Int’l, Inc., 871 F.3d 1375, 1384 (Fed. Cir.
    2017).
    We also conclude that remand is unnecessary. The
    Board’s uncontested findings regarding Bernasconi render
    claim 9 obvious under the proper reading of the claim.

    Continue Reading ...
  • Patenting Antibodies: Written Description Considerations in Antibody Patents

    The Amgen v. Sanofi decision put most functional antibody claims into question, including epitope and competitive binding claims, as well as antibody claims based on a newly characterized antigen. After Amgen v. Sanofi, non-sequence based antibody claims may become more difficult to obtain before the USPTO from a written description standpoint.  Yet, to fully protect the essence of the invention and avoid design-arounds, such claims are extremely valuable to patent owners. To obtain antibody…

    Continue Reading ...
  • 逆にする

                            目次はこちら

    逆にする

    (INVERT/INVERSE)
    $$ It will be appreciated by those skilled in the art that by inverting the above arrangement the vehicles 1 can be configur…

    Continue Reading ...
  • Patents as Holdups and the DOJ Controversy

    by Dennis Crouch

    In February 2018, I wrote an essay titled Patents and Antitrust: Trump DOJ Sees Little Connection.  USDOJ’s chief antitrust lawyer Makan Delrahim has repeatedly stated his position that patent holders rarely create antitrust concerns — even in the standard setting organization and FRAND framework. Mr. Delrahim explained recently:

    By denying injunctive relief to standard essential patent holders except in the rarest circumstances, courts in the U.S. run the risk of turning a FRAND commitment into a compulsory license. As a defender of competitive markets, I am concerned that these patent law developments could have an unintended and harmful effect on dynamic competition by undermining important incentives to innovate, and ultimately, have a detrimental effect on U.S. consumers.

    Another advocacy position we have taken relates to how patent holders are held to their commitments to license on FRAND terms. . . [U]nilateral patent hold-up is not an antitrust problem. Where a patent holder has made commitments to license on particular terms, a contract theory is adequate and more appropriate to address disputes that may arise regarding whether the patent holder has honored those commitments. . . .

    Continue reading Patents as Holdups and the DOJ Controversy at Patently-O.

    Continue Reading ...
  • On ending disputes prematurely. Baseball and university professors.

    On Wednesday, May 16, 2018, Jorge Ortiz of USAToday headlined that Brandon Belt of the San Francisco Giants
    questioned the integrity of an umpire and wrote:


    On Wednesday it was the San Francisco first baseman [Belt] who expressed his frustration, in
    clear and accusatory terms against home plate umpire Doug Eddings.

    Belt, who took a questionable third strike for the game’s final out in the Giants’ 6-3 loss
    to the Reds, said Eddings has previously expressed a desire to end games quickly and reiterated
    that notion on Wednesday.

    (…)

    Reds closer Raisel Iglesias got the call on a 3-2 fastball that MLB.com’s Gameday showed was clearly outside.

    Giants slugger Brandon Belt questions umpire’s integrity after questionable call ends game

    Video of call at
    https://www.mlb.com/gameday/reds-vs-giants/2018/05/16/530041#game_state=final,lock_state=final,game_tab=videos,game=530041

    ESPN reported:

    Belt stepped to the plate with a runner on second base and two outs in the bottom of the ninth inning
    at AT&T Park. Facing closer Raisel Iglesias, Belt worked the count full before plate umpire Doug
    Eddings called a third strike on a fastball just off the plate to end the game .

    Afterward, Belt said there was no question he got cheated on the call and insinuated that
    Eddings made it to get a matinee that lasted 2 hours, 41 minutes over with.

    link: http://www.espn.com/mlb/story/_/id/23524777/brandon-belt-san-francisco-giants-raw-plate-umpire-loss-vs-cincinnati-reds

    Neither post went into great detail about “how far off the plate” the pitch was. The video does suggest it was not a strike. The story was the call-out of the umpire for “ending the game” prematurely.

    Also of possible relevance to ending the game prematurely is the case Kenny v. Denbo, CA3, No. 17-2342, which involves themes of plagiarism, intellectual property, Blackboard software, and arbitration.

    The short description given by CA3:


    Adjunct Professor Robert Kenny substituted for Professor Susan Denbo while she was
    on sabbatical. After an arbitration, he was suspended for borrowing her syllabus. Kenny’s
    borrowing resulted from an excusable misunderstanding. Only later did evidence come out
    that Denbo had passed along that syllabus specifically for the adjunct to use. But the unavailability
    of certain evidence at the arbitration does not justify rescinding his settlement.

    Of “ending the game prematurely,” CA3 wrote of the arbitration:


    After Rider’s opening statement, and ten minutes into the Union’s opening, the arbitrator
    cut off the Union’s lawyer and held a sidebar conference
    . When the Union’s lawyer
    returned from that conference, he relayed to Kenny and to the Rider faculty’s Union representative
    that the arbitrator “wanted to see a settlement,” and “gave a broad outline” of
    the sort of agreement the arbitrator had in mind. DA 277. According to the Union’s lawyer,
    the arbitrator felt that any settlement “needed to include [Kenny’s] suspension.” Id.
    The Union’s lawyer came back to Kenny with a proposed settlement and presented it
    as a fait accompli
    . Kenny signed it. As part of the settlement, he apologized in writing to
    Denbo and accepted a suspension for the fall of 2012. Neither side admitted wrongdoing.
    Since then, Rider has not offered Kenny any teaching assignments. When Kenny applied
    for unemployment compensation, Rider told the state authorities that Kenny had been suspended
    for misconduct. So his application was denied.

    Of plagiarism and intellectual property, CA3 wrote

    Denbo sincerely believed that Kenny’s conduct amounted to
    plagiarism, so her statement was not knowingly false. And her mistake about Kenny’s permission
    does not amount to reckless disregard of the truth. See id. at 777. She did not give
    the syllabus directly to him and was not completely unreasonable in believing that passing
    it along to Sprotzer did not authorize verbatim copying. That is particularly true because
    the Collective Bargaining Agreement recognized syllabi as intellectual property. No reasonable
    juror could find otherwise. So the statements are privileged, not libelous

    Plagiarism is copying (basically anything) without attribution. Whether or not the the Agreement recognized
    syllabi as intellectual property is not relevant to the charge of plagiarism (AND there is no federal/state cause of action
    for “plagiarism” AND see below about custom and practice at this school, Rider University).
    CA3 did not mention who was the owner/author of the syllabi intellectual property. One might
    infer, in context, that the professor owns the intellectual property of the syllabus because of the Agreement, but otherwise one might be
    in a “work for hire” context. One might also suspect that there is a lot of copying of syllabi going on.

    Of Blackboard, CA3 wrote:

    Kenny also visited Rider’s Blackboard website, where faculty post course materials,
    and downloaded a copy of the syllabus from Denbo’s web page. Denbo’s Blackboard settings,
    which were not the default, let guests access her other course materials as well, including
    student resources and assignments. But Kenny did not download or share them. He
    tweaked the syllabus’s grading scale, but otherwise kept the readings, sequence, and assignments
    verbatim. Then he uploaded the syllabus to the spring 2012 course module

    (…)

    Nonetheless, Denbo was “outraged!!!!!” by all this. DA 86. In a series of emails to
    Rider administrators, she accused Kenny of “EXTREME unethical behavior,” fuming that
    he had accessed “MY ENTIRE BLACKBOARD!!!” using the guest access permitted by
    her Blackboard privacy settings. DA 99. Denbo also fulminated that Kenny’s syllabus “is
    IDENTICAL to my syllabus and references all of my Blackboard materials.” Id. In followup
    emails, she continued her tirade, deploying such punctuation-peppered interjections as
    “UGH!!!!” and “REALLY?????????” DA 102, 105. Even though she conceded that “he
    assured me that he had not posted anything yet,” she suggested that Kenny never teach at
    Rider again. DA 99-100

    Somewhat related to the Rutgers/San Filippo case (but with a different outcome):


    Rider acceded to Denbo’s request. For the first time at Rider (as far as we know), an adjunct professor was
    disciplined for using a syllabus given to him by his department chair for a course that he
    was hired to substitute teach. As the Union grievance officer testified, in his thirty-eight
    years at Rider, he had never seen syllabi posted with attribution. And Sprotzer conceded
    that he had never heard of any university where adjuncts were given syllabi but needed to
    seek further permission to use them. App. 315-16. He also admitted that Rider developed
    its unwritten policy against such borrowing only after Kenny’s arbitration.

    [The San Filippo case involved 14th Amendment issues. See

    Flipping Filippo, Batman, Gunasekera files federal suit against Ohio U./officials
    ]

    Initially, Kenny’s defense related to his access using Blackboard:


    As the Union’s letter explained, Kenny had “reasonabl[y] but inaccurate[ly] assum[ed]”
    that, because Denbo made her course materials available to guests on Blackboard, she had
    given implied permission to use them. DA 61. The Provost rejected these arguments and
    sustained the discipline

    Of the summary judgment on libel:


    The District Court arguably erred in finding
    that Denbo’s statements were mere opinion rather than factual. But “[w]e can affirm
    the District Court’s grant of summary judgment on any basis supported by the record.”
    United States ex rel. Spay v. CVS Caremark Corp., 875 F.3d 746, 753 (3d Cir. 2017)

    Of the discovery issue, CA3 wrote


    The Union
    was not allowed to depose witnesses, but it asked for all materials collected during the
    Provost’s investigation, including correspondence, emails, and Blackboard records

    The interpretation of this was that if emails were not collected, they were not within the scope.
    By this logic, the recipient of a discovery request could choose not to collect certain emails during
    the investigation, and they would not fall within the scope of discovery.

    CA3 wrote of duty to disclose:


    But Kenny has produced no evidence that could justify a jury in finding a misrepresentation
    here. Not turning over the three emails in question could amount to one only if Rider had
    an obligation to do so. And while New Jersey does recognize that “[s]ilence in the face of
    a duty to disclose may constitute a fraudulent concealment,” it imposes such a duty only in
    limited circumstances. See United Jersey Bank v. Kensey, 704 A.2d 38, 43 (N.J. Super. Ct.
    App. Div. 1997). This is not a case involving—at least as between Kenny and his employer—“fiduciary
    relationships such as principal and agent.” Id. at 44.

    Nor are settlement negotiations the kind of “transactions which in their essential nature,
    are intrinsically fiduciary, and necessarily call for perfect good faith and full disclosure.”

    Id. (internal quotation marks and alteration omitted). In other circumstances, the New Jersey
    courts have declined to find a quasi-fiduciary relationship when the parties act “at armslength,
    … in their own interest,” and stand in “essentially adversarial” positions. Id. at 44-
    45 (discussing lender-borrower negotiations). All of these qualities are present in a labor
    arbitration conducted, like this one, between sophisticated parties represented by counsel.

    **Separately


    Professor who punished plagiarists fired over FERPA>


    Newark Star-Ledger does Rutgers plagiarism case on 4 Dec 2011

    Trademark cancelled for failure to respond in discovery

    **See especially


    Harsh penalty dealt to student copying from wikipedia

    which references the PatentlyO post
    Plagiarism Actions

    as to text


    (3) “failing to consider Dr. Adames’ [own] plagiarism” (he had copied portions
    of his syllabus from another professor without attribution);

    AND


    We may affirm the trial court’s judgment after a bench trial on any basis in the record,
    regardless of whether the trial court relied on that basis or whether the trial court’s reasoning was
    correct. Northwestern Memorial Hospital v. Sharif, 2014 IL App (1st) 133008, ¶ 25. We affirm
    the trial court’s judgment in favor of defendant on plaintiff’s breach of contract action, not on the
    grounds stated by the court (which were based solely on plaintiff’s failure to appeal her dismissal
    to the dean of academic affairs and on the lack of proof of damages) but rather on plaintiff’s
    failure to meet her heavy burden of proving that defendant acted in an arbitrary, capricious, or
    bad-faith manner by dismissing her without any discernible rational basis.

    concerning Drobetsky v. Chicago School of Prof. Psych.

    Continue Reading ...
  • Law of the Flag and Patent Infringement on the High Seas

    Law of the Flag and Patent Infringement on the High Seas

    by Dennis Crouch

    Due process ordinarily requires that a court have personal jurisdiction over the parties to a lawsuit.  In its 2016 opinion, the District Court dismissed M-I Drilling’s lawsuit against the Brazilian company Dynamic Air Ltda. (DAL) for lack of personal jurisdiction. M-I Drilling Fluids UK Ltd. v. Dynamic Air Ltda, 2016 U.S. Dist. LEXIS 27357, 2016 WL 829900 (D. Minn. 2016).  On appeal here, the Federal Circuit has reversed. M-I Drilling Fluids UK Ltd. v. Dynamic Air Ltda., 2018 U.S. App. LEXIS 12497 (Fed. Cir. May 14, 2018).

    Law of the Flag: The alleged infringement here did not occur within the United States proper, but rather aboard U.S. flagged ships in international waters – the vessels Resolution and Pinnacle.  The district court held that the U.S. Patent Act applies to U.S. flagged ships — “While on the high seas, a vessel is deemed to be part of the territory of the nation to whose citizens it belongs, and under whose flag it sails.” However, the district court then dismissed the case for lack of personal jurisdiction.

    Personal Jurisdiction over a Foreign Entity: In most U.S.

    Continue reading Law of the Flag and Patent Infringement on the High Seas at Patently-O.

    Continue Reading ...