• Don’t Miss the Big Picture: What Companies Get Wrong When It Comes to IP Strategies

    Yesterday’s IPWatchdog webinar, “How to Evolve Your IP Strategy Over Time,” focused on the trouble companies—both large and small—can run into when they don’t take the time to audit and implement concrete strategies to ensure they are focusing on developing valuable, rather than merely voluminous, IP portfolios. Michael Gulliford, Managing Principal at Soryn IP Group, said that there is often “a disconnect between the academic exercise of building a patent portfolio and the reality of running a…

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  • 静止



    $$ A solenoid coil 17 is arranged to create magnetic flux to attract the moving pole 10 towards a static pole 18. / ソレノイドコイル17が、磁束を作り出して可動ポール10を静止ポール18に引寄せるように構成される。(USP8757583)

    $$ If the tip is static, the force will displace the tip relative to the sample surface. / 先端が静止している場合、この力は試料表面に対して先端を移動させる。(USP8479310)

    $$ FIG. 14 shows an embodiment of the apparatus incorporating a corrector plate to reduce the over-dimensioning of the main static reflector lens, / 図14は、主静止レフレクタレンズの寸法の過剰度を減少させる補正板を有する装置の実施形態を示す図である。(USP6587246)

    $$ For simplicity the background is assumed to be stationary, but this need not be the case. / 簡略化の目的で、背景は静止していると仮定するが、そうである必要はない。(USP8358878)

    $$ An image is built up progressively by scanning the spot over the specimen or by scanning the specimen relative to a stationary spot. / 試料上のスポットを走査することによって、または静止するスポットに対して試料を走査することによって、像が累進的に構築される。(USP6429967)

    $$ In particular, two hands may be required to compress the sleeve, or to compress one end of the sleeve whilst holding the other still. / 特に、スリーブを圧縮するために、またはスリーブの一端を圧縮し、同時に他端を静止状態に保持するのに両手が必要であり得る。(USP8361034)

    $$ The apparatus may comprise conventional lens elements or groups of such elements of the type commonly found in the lenses of conventional video/still cameras. / 装置は、従来からのビデオ/静止画カメラのレンズにおいて一般的に見ることができる種類の従来からのレンズ素子、またはそのような素子の群を備えることができる。(USP8294080)

    $$ A lamp as claimed in claim 22, wherein the quiescent vapor pressure is 10 ton or less. / 前記静止蒸気圧は、10トル以下であることを特徴とする請求項22に記載のランプ。(USP8421358)

    $$ The flat leaf spring members 50 assists in returning the mechanism to rest when the door is opened. / 平坦な板ばね部材50は、ドアが開けられたときに、静止するようにこの機構を戻す手助けをする。(USP8925250)

    $$ The stylus has a surface contacting tip and deflection from its rest position is measured by transducers. / スタイラスは表面接触先端を持ち、その静止位置からの撓みがトランスデューサにより測定される。(USP8908901)

    $$ The satellite may be a geostationary satellite providing coverage over a global area. / 衛星は、世界の領域を網羅する静止衛星であってよい。(USP8897403)

    $$ A particular example of this occurring is that of geostationary satellites. / この発生の特定の例は、静止衛星のそれである。(USP8674893)

    $$ It represents changes as a vehicle accelerates from a standing start at time t0. / それは、車両が時間t0における静止スタートから加速するときの変化を示す。(USP8989970): standing

    $$ One is encountered upon "launch"–i.e. when applying drive to the PTO output to accelerate it from a standstill to the required operating speed. / 1つの欠点は「発進」時即ち静止状態から所要の作動速度へ加速するために駆動力をPTOシャフトに適用した時に体験する。(USP8733191): standstill

    $$ The third operation that is performed is to separate the identified upright posture classification into active and quiet periods. / 第3工程は、直立姿勢と分類確認された種別を、さらに活動期間と静止期間とに分けることである。(USP8342045): quiet


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  • Of Secret Sales and Public Uses: The Practical Consequences of the Supreme Court’s Helsinn Decision

    It seemed like a trade secret trifecta when Congress in 2011 passed the America Invents Act (AIA). Although the statute was aimed at patent reform, it made three helpful changes in how trade secrets are treated. First, companies could hold onto secret information about an invention without risking invalidation of their patents for failing to disclose the “best mode” of implementing it. Second, the “prior user right” that guarantees continuing use of a secret invention, even if someone else…

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  • Hachimoji DNA

    To an electrical engineer like me, the Hachimoji DNA discussed in this New York Times article [link] (https://www.nytimes.com/2019/02/21/science/dna-hachimoji-genetic-alphabet.html ) seems pretty groundbreaking. It will be interesting to see how it influences patent claiming for my friends in the biotech area. In a quick search, I did not see any issued patents that reference “Hachimoji.”

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  • Mission Product: SCOTUS Appears Skeptical That Bankrupt Licensor’s Rejection of Trademark License Means Licensee Can’t Use the Mark

    On Wednesday, February 20, the U.S. Supreme Court heard oral arguments in Mission Product Holdings, Inc. v. Tempnology, LLC, where the Court was asked to address one of the most important issues at the intersection of trademark law and bankruptcy law: whether a debtor-licensor’s rejection of a trademark license terminates the rights of the licensee to use that trademark. Taking seriously the language of the question presented, and generally acknowledging that 11 U.S.C. § 365(g) provides that…

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  • More on Lesley Stahl and Xyleco

    Back on 7 Jan 2019, IPBiz posted on some bad reporting by Lesley Stahl:
    Lesley Stahl “at it” again in sad piece on biotech, Marshall Medoff, Xyleco

    See also a post on 11 Jan 2019
    60 minutes promotes biomass scam including text

    Medoff’s company, Xyleco, has also garnered hundreds of millions of dollars from investors impressed with his inventive use of accelerators. Sixty minutes describes this as his “novel idea of using these large blue machines called electron accelerators to break apart nature’s chokehold on the valuable sugars inside plant life – or biomass”.

    But wait! There are thousands of research papers going back as far as Imamura (1972) about using electron accelerators to break down lignocellulosic biomass. This is done to create more surface area for the next step, in Xyleco’s case, enzymes to break down the cellulose further. Other ways biomass can be shattered are milling, chipping, shredding, grinding, and pyrolysis.


    Xyleco isn’t yet in business, so it remains to be seen if the founder’s name ought to be Madoff rather than Medeff.

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  • Drew Ferguson and the 1897 book on Robert E. Lee

    There has been an issue with the presentation, in the office of Congressman Drew Ferguson, of a page in an 1897 biography of Robert E. Lee.
    See for example
    A Confederate book was open to a racist passage in a Georgia GOP congressman’s office. He blamed his staff.

    One irony here is that the book, published in 1897 during the time of proliferation of the “Lost Cause” theme, was meant to paint Lee in a favorable light, and text from that particular page is frequently quoted to that end.

    Another observation, not being discussed, is that the quote being referenced from that page, is from a letter by Lee to his wife in December 1856.

    To see something that is more clearly racist, consider the slogan of Democrat nominee Seymour during the 1868 presidential campaign:


    See also

    Reading the Man: A Portrait of Robert E. Lee Through His Private Letters
    By Elizabeth Brown Pryor, Robert Edward Lee

    The page in question from the 1897 book:

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  • CAFC rules on attorney conflict of interest in Dr. Falk Pharma case

    The outcome was disqualification:

    At issue are three motions to disqualify Katten Muchin
    Rosenman LLP as counsel for Mylan Pharmaceuticals Inc.
    (“Mylan”) in three appeals before this court. Valeant Pharmaceuticals
    International, Inc. (“Valeant-CA”) and Salix
    Pharmaceuticals, Inc. (“Salix”) move to disqualify in Valeant
    Pharmaceuticals International, Inc. v. Mylan Pharmaceuticals Inc.,
    No. 2018-2097 (“Valeant II”), Salix moves to
    disqualify in Salix Pharmaceuticals, Inc. v. Mylan Pharmaceuticals Inc.,
    Nos. 2017-2636, 2018-1320 (“Salix II”), and
    Valeant-CA and Salix move to disqualify in Dr. Falk
    Pharma GmbH v. GeneriCo, LLC, No. 2017-2312 (“Dr. Falk
    II”). Because we find that Katten has an ongoing attorney client
    relationship with Valeant-CA and its subsidiaries,
    including Salix, we conclude that Katten’s representation
    of Mylan in these appeals presents concurrent conflicts of
    interest. Therefore, we grant the motions to disqualify.

    Of the issue

    Specifically, Salix—a movant in all three appeals—
    is a wholly-owned subsidiary of Salix Pharmaceuticals,
    Limited, which is a wholly-owned subsidiary of ValeantDE, which is an indirect,
    wholly-owned subsidiary of Valeant-CA. Bausch & Lomb is also an indirect subsidiary of
    Valeant-CA and an affiliate of the above-listed entities.
    Valeant-CA contends that it has been a longstanding
    client of Katten, both directly and through its subsidiaries.


    Mukerjee and Soderstrom, then at Alston & Bird, represented Mylan
    throughout the district court litigation. On
    May 3, 2018, Mylan notified the district court that Mukerjee and Soderstrom
    had left Alston & Bird to join Katten.
    On May 25, 2018, Valeant-CA filed a motion to disqualify
    Katten in the district court action. Mylan timely appealed
    the district court’s summary judgment on June 22, 2018.
    Valeant-CA then filed a motion to disqualify Katten in this
    court on July 9, 2018, and the district court stayed a decision
    on the motion to disqualify pending before it. We
    stayed the parties’ briefing on the merits in this appeal
    pending our decision on the motion. Valeant II, ECF No.

    Of applicable rules

    In Valeant, the relevant regional circuit is the
    Third Circuit, which applies the professional conduct rules
    of the forum state. See United States v. Miller, 624 F.2d
    1198, 1200 (3d Cir. 1980). The forum state, New Jersey,
    has adopted the Model Rules of Professional Conduct. N.J.
    Rule of Prof’l Conduct 1.7(a). In Salix, the relevant regional
    circuit is the Fourth Circuit, which applies the rules
    of professional conduct of the forum state. See Shaffer v.
    Farm Fresh, Inc., 966 F.2d 142, 145 (4th Cir. 1992). The
    forum state, West Virginia, has also adopted the Model
    Rules. W. Va. Rule of Prof’l Conduct 1.7(a). Finally, in Dr.
    Falk, the U.S. Patent and Trademark Office is the relevant
    forum and it has also adopted the Model Rules. 37 C.F.R.
    § 11.107(a).
    Indeed, Comment
    34 to Rule 1.7, which addresses “organizational clients,”
    A lawyer who represents a corporation or other organization does not,
    by virtue of that representation, necessarily represent any constituent or
    affiliated organization, such as a parent or subsidiary. See Rule 1.13(a).
    Thus, the lawyer for an organization is not barred from accepting
    representation adverse to an affiliate in an unrelated matter, unless the circumstances are such
    that the affiliate should also be considered a client
    of the lawyer, there is an understanding between
    the lawyer and the organizational client that the
    lawyer will avoid representation adverse to the client’s affiliates, or the lawyer’s obligations to either
    the organizational client or the new client are
    likely to limit materially the lawyer’s representation of the other client.
    Model Rules of Prof’l Conduct r. 1.7 cmt. 34 (Am. Bar Ass’n
    2018) (emphasis added). Circumstances in which an affiliate is considered a client of a lawyer can arise by express
    agreement or when affiliates are so interrelated that representation of one constitutes representation of all. GSI
    Commerce Sols., Inc. v. BabyCenter, LLC, 618 F.3d 204,
    210–12 (2d Cir. 2010)


    We find this reading of the engagement letter to be irrational.
    Section 1.2 does not indirectly authorize Katten
    to represent parties adverse to Valeant-CA and Salix so
    long as Katten remains a non-key firm. Rather, section 1.2
    expects a heightened degree of loyalty from key firms,
    requiring something more than mere adherence to the ethical
    rules. It states that key firms should not represent “any
    party” in “any matters” that would conflict with “any Valeant entity.”
    Gorman Decl. Ex. A, at § 1.2. This reference
    to “any matters” encompasses, as Valeant-CA stated at oral
    argument, a “blunderbuss” limitation on key firms to avoid,
    not only matters that give rise to ethical conflicts, but also
    those that give rise to other types of conflicts. See Oral Arg.
    at 9:36. Other types of conflicts could include, for example,
    a matter involving the filing of an amicus brief that presents
    no ethical conflict under the rules of professional conduct, but that espouses a legal position contrary to one
    taken by a Valeant entity in another case. Thus, section
    1.2 broadens the degree and type of loyalty expected from
    key firms.

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  • The retraction by Nature of the Samaha work: is Gaetan Burgio correct on who is responsible for improper submissions to journals?

    DIANA KWON of The Scientist discusses the retraction by Nature of a paper co-authored by oncologist Nabil Ahmed and Heba Samaha. Of note within her text:

    But starting last October, a few weeks after the paper was posted online, comments about potential image manipulation in the article began to appear on PubPeer, and the issue quickly caught the attention of scientists on social media.

    Gaetan Burgio, a geneticist at Australian National University who posted a widely circulated Tweet about the manuscript, notes that the extent of alleged image duplication identified in this paper was “quite exceptional.”


    According to the retraction notice posted today, the authors are pulling the paper “due to issues with figure presentation and underlying data.” All the authors, except Samaha, the first author, agreed with the retraction.

    “Unfortunately, issues were identified in the presentation of several figure panels and the underlying data [in the paper],” Ahmed writes in an email to The Scientist. “I promptly notified the office of research at Baylor College of Medicine, which is looking into the cause of these issues.”


    Some commenters on both PubPeer and social media suggested that the duplicated images should have been caught by peer reviewers. But Burgio believes that the responsibility lies with the publisher, not the reviewer. “I think it’s on the publisher to ensure that the paper doesn’t contain any image duplication or plagiarism,” he says. “It’s unfair to rely solely on the reviewer to police the paper.”

    Nature currently conducts random spot checks of images in manuscripts prior to publication. “If concerns about a figure in a Nature paper are raised, we have software tools that enable us to evaluate images in detail,” a Nature spokesperson writes in an emailed statement to The Scientist. (The spokesperson also noted that the journal could not comment on individual articles for confidentiality reasons).

    Some journals, such as the Journal of Cell Biology and The EMBO Journal, have implemented procedures to screen figures in every article prior to publication. “This [practice] is absolutely admirable,” Ferguson says. “How to screen really carefully for image manipulation prior to publication is something that most journals will have to address.”

    As to the issue of plagiarism, IPBiz disagrees with Burgio: it is the people who have knowledge of the field (the reviewers) who should be most responsible for identifying the copying of material, whether it is slavish word-for-word duplication or more subtle forms of intellectual theft.
    IPbiz has already posted examples of plagiarism identified by readers, who are familiar with the given field, rather than publishers, who are not.

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