Headline from The State newspaper from South Carolina: "No patent on ‘You’re Fired’ - Trump’s attempt to register words rejected because it’s too much like ‘You’re Hired!’"

- The article doesn't mention if Trump's term was rejected under 35 U.S.C. 102 or 103 . . .

India Breaches Arrythmia and Alappat: Innovators in IT can rejoice. Even as software per se would continue to be outside the purview of patenting, embedded software as well as software/hardware combinations would qualify for patents, if they fulfil specified novelty conditions. That is, certain applications of software that have hardware elements can be patented.

The clarification is among a host of changes the UPA government has made in the patent amendment bill, originally drafted by the previous NDA government. Another major amendment in the re-drafted bill relates to protection of biological resources from unfair patenting. Disclosure of the origin of materials like plants, animals and micro-organisms would now be a mandatory pre-requisite for patents of inventions using such material or associated knowledge.

In the patent application, the disclosure has to be made upfront. Absence of the disclosure can be held as reason for opposition to or rejection or revocation of a patent, it has been freshly clarified. India is the first country to make such disclosure mandatory, officials said. The aim is to avoid usurpation of traditional knowledge and unfair patenting by use of such usurped knowledge.

Medtronic Case Goes to Jury: After a month and a half of testimony presented by two high-powered legal teams, a jury of eight men and three women in Memphis will decide whether a company with a significant financial presence here owes an inventor more than $1 billion.

The players in the trial, of a suit instigated three years ago, include Medtronic, Inc., a Fridley, Minn.-based medical technology company that owns Medtronic Sofamor Danek. The subsidiary company is based in Memphis, where it employs about 1,200 people. It's Medtronic's spinal business, and accounts for about 12% of the company's overall revenue.

Dr. Gary Michelson invented important technology that contributes significantly to Medtronic's revenue stream. He claims the company is cheating him out of rights and royalties that belong to him. Attorneys for Medtronic implored jurors Thursday to keep intact agreements that protect much of Medtronic's spinal fusion technology, according to a report in Friday's Minneapolis Star Tribune. That technology is a cornerstone of Medtronic's highly profitable $1.8 billion-a-year spinal business, the business of Memphis-based Medtronic Sofamor Danek.

Michelson a spinal surgeon who lives and practices in Los Angeles, claims in the trial that Medtronic cheated him out of royalties in a $1.7 billion contract dispute playing out in U.S. District Court. Thursday's closing arguments wrapped up 46 days of testimony before a jury of eight men and three women. The jury is expected to begin deliberating Friday afternoon.

The twilight of the trial brought charges and counter charges between both sides' lawyers. Leo Bearman, who represents Medtronic, claims that Michelson "wants to destroy this company, which has 1,200 employees in Memphis," according to the Star Tribune.

Medtronic sued Michelson in 2001, claiming that he tried to peddle his spinal fusion technology to competitors -- even though his contracts had a noncompete clause prohibiting him from doing so. Michelson's attorneys say that the company doesn't own the doctor's "life's work," and that he was free to market his other inventions to Medtronic rivals.

Not Accepted to Princeton? Apply to Trump! As reported in the "Smoking Gun":

Donald Trump is plotting the establishment of Trump University. The millionaire developer/reality TV star this month filed an application with the U.S. Patent and Trademark Office to secure a TM for the Trump University name in connection with planned "educational services in the nature of conducting on-line courses in the fields of business and real estate." A copy of the August 4 trademark application, filed on The Donald's behalf by a lawyer with the white-shoe Proskauer Rose law firm, can be found below. It is unclear what position Trump, a graduate of the Wharton School of Finance, will hold at Trump U.

Stupid Idea of the Day: No offense, but this made my mouth drop when I read it from the Hindu Times in an article titled "Alternatives to Patent System":

In his `Policy Forum,' in Science, Yochai Benkler describes how scientists can organize their research projects using a cooperative approach that gets around some of the limitations imposed by the patent system.

Production is "commons-based" when no one uses exclusive rights to organise effort or capture its value, and when cooperation is achieved through social mechanisms other than price signals or managerial directions.

-- And from each according to his abilities to each according to their needs . . .

China's Got the Litigation Bug: China is likely to see an increase in patent lawsuits after domestic drugmakers won victories against overseas competitors in cases against the Pfizer drug Viagra and the GlaxoSmithKline drug Avandia, legal experts have said. "I would not be surprised to see many more challenges such as these," said Janice Mueller, a professor at the University of Pittsburgh's School of Law.

Glaxo, Europe's largest drugmaker, last week gave up a fight to protect a key ingredient in Avandia, its top diabetes treatment, a month after China revoked the local patent for Viagra, the world's best-selling impotence drug.

Chinese drugmakers are becoming more willing to use legal means to secure competitive advantages, three years after the nation joined the World Trade Organization. The trend may hurt sales for foreign companies in China's $10 billion drug market and lead to more trade disputes.

"It isn't hard to find loopholes" in Chinese patents held by overseas drugmakers, said Xu Guowen, a Beijing-based lawyer who led the cases against Viagra and Avandia. "All I need is to find one weakness and I can break your patent."

-- Loopholes? Is that what he considers prior art?

Inequitable Conduct = Very Angry Licensees Invoking the False Claims Act: The Fourth Circuit Court of Appeals will decide the right of the United States to recover losses on payments made to Hoffmann-La Roche and its partner Applera Corporation on a key patent in molecular biology. The claim filed in Virginia seeks recovery of what could be hundreds of millions of dollars in wrongful payments for Taq DNA Polymerase by theGovernment to Hoffmann-La Roche and Applera. This action arose out of other litigation in which the Roche Taq patent was ruled unenforceable. The FederalCourt for the Northern District of California ruled in 1999 and reaffirmedthis past May that the patent for Taq could not be enforced against anyone because it had been obtained with a series of false material statements thatwere intentionally made to the United States Patent Office, which even included the fabrication of experimental data. Promega damage claims on its own behalf remain pending in California.

"As the Federal Court in California held, people lied to the United States Patent Office in obtaining the Taq patent," stated Randall Dimond, PromegaVice President and Chief Technical Officer. "As many in the scientific community recognize, Roche's aggressive enforcement of this patent caused hundreds of millions to be paid to Roche through government grants and other government programs, and we believe the people who paid those monies, including the government, should be paid back. We believe the False Claims Actis one important way to ensure integrity in the patent process. Wrongfully obtained patents prevent free and open competition and thus lead, as they did here, to grossly excessive pricing caused by the payment of royalties and license fees on a patent that never should have been allowed. Open competition guarantees that precious federal dollars are not needlessly squandered."

The Virginia action is based on the False Claims Act, a federal statute allowing recovery of funds improperly paid by the Government. While the case was brought by Promega on behalf of the United States, the United StatesDepartment of Justice had, as well, previously filed a Statement of Interestin the Virginia case in support of Promega. At the insistence of Hoffmann-LaRoche, the media and public have been barred from seeing the substance of the latest False Claims Act allegations.

Paying Programmers on Contingency (Just Like Lawyers!): The "Ingres Million Dollar Challenge" recently announced by Computer Associates (CA) has a lot in common with a contingent legal matter. A million dollar pool is divided into six prizes, ranging from $400,000 to $50,000. The prizes award the best tools for migrating from competing database platforms to CA's Ingres platform. For example, the developer that creates the best migration tool for moving data from the IBM DB2 Universal platform to the Ingres platform gets $300,000.

Like a lawyer deciding whether to take on a contingent matter, programmers deciding whether to rise to the Ingres Challenge need to take a hard look at the project. Developing a migration tool for complex databases is not a three weekend job for four teenagers on home computers. It takes a considerable investment of time and money by skilled programmers.

CIO Leaves USPTO: At a time when intellectual-property issues promise to be a sensitive and hotly contested for years to come among software users and vendors, the U.S. Patent and Trademark Office is losing its IT chief. Douglas Bourgeois, who has been CIO at the agency for more than three years, announced Monday that he has accepted an offer to become director of the Department of Interior's National Business Center. Bourgeois, whose last day with the Patent Office is Sept. 3, leaves an organization dealing with a business environment that increasingly places a high priority on defending intellectual property. Over the past few years Bourgeois has led the Patent E-Government initiative, which provides online access to the full-text database of more than 3 million patents and published applications using the Electronic Filing System or traditional paper filing.

Get Thee To a Biotech Firm! New York Lawyer is reporting that Biotech patent work has boomed to the point that there aren't enough attorneys to handle it. Biotech lawyers say the demand for their legal specialty has grown tremendously over the last five years -- a period during which science has recorded several watershed discoveries, including the sequencing of the human genetic code, cloning, gene-based therapies and genetically engineered crops. Now drug companies are suing each other over patent rights. Farmers are suing the makers of bio-engineered corn. Patients are suing doctors over genetic testing. Privacy rights are being raised in child-custody battles involving DNA. And the government is under pressure to approve genetically altered foods and gene-based drugs.

Nintendo Takes a Poke at Microsoft, Sony and Nokia: Another day, another patent. This time it's Nintendo in the news, as they have applied for and been granted a patent covering many aspects of online console gaming. The new patent looks to be an extension of this earlier patent filed for in April 1999 and awarded in July 2003, which is common under the current US patent system. Together, the two patents cover about everything you need for online gaming with your favorite console. Looking at the features described in the most recent patent, you will no doubt note similarities between this hypothetical device from Nintendo and other consoles currently on the market.

• Communications circuitry, coupled in use to said game processing system and to a user's communications network, for linking said game processing system to the Internet and permitting communication from the player to another party over the Internet
• A writeable mass storage device coupled in use to said game processing system for receiving information downloaded from the Internet

In addition, it covers keeping track of player performance data, multiplayer gaming, and an entire online gaming service.

At first glance, it is a curious move from a company that has limited support for online gaming in its flagship console and has publicly expressed a lack of interest in the whole online gaming scene. The Nintendo GameCube is the only one of the "big three" consoles that does not support online gaming, and the only plans they have made known for online gaming is via the new Nintendo DS handheld. It is unclear if their next-generation console will allow players to go online. However, it does give them a certain amount of leverage over competitors such as Sony and Microsoft, both of which have made online gaming a centerpiece of their user experience. Even Nokia could be in trouble with the N-Gage. Until Nintendo makes their Internet connectivity intentions known for their next-generation console, it is likely that they will use the patents as leverage over its rivals, even to extract licensing revenues.

Eolas Update: Chicago-based Eolas Inc. holds a license to the patent, No. 5,838,906, from the University of California at Berkeley. Last year, it won a $521 million jury verdict against Microsoft Corp. in its patent-infringement case. Microsoft has since appealed the verdict.
According to patent office spokeswoman Brigid Quinn, Eolas on Monday was mailed an "office action" on the re-examination of the disputed patent. A number of online reports said the patent office examiner decided to reject the 10 claims presented by Eolas.

But Eolas attorney Martin Lueck, of Minneapolis-based Robins, Kaplan, Miller & Ciresi LLP, said the examiner had accepted a number of Eolas' arguments and had withdrawn his previous finding from February.

Lueck said the patent office examiner had issued a new action—based on yet another piece of "prior art"—to reject the patent's claims. The prior-art piece was outside the examples offered by the W3C (World Wide Web Consortium), which brought the prior-art question to the attention of the patent office in November 2003.

"X-Files" - USPTO Style: The Patent and Trademark Office has issued nearly 7 million patents. The first 10,000 are known as the X-patents. They were issued from July 1790, when the U.S. patent system was created under an order signed by George Washington, to July 1836, when every one of them burned in a fire.

Virtually every patent is available to the public on paper, micro-fiche, CD-ROM and the Internet -- except the X-patents.

In the 168 years since the fire, copies and records of only about 2,800 have been recovered. Over time, the appearances of missing X-patents grew fewer and farther between. Now no one at the patent agency, which does not have an official historian, can remember the last time one surfaced.

Until this spring, that is. That's when two lawyers with a passion for patent history uncovered a clue to several important patents from the 1790s -- including one from 1826 for the first internal combustion engine. Following the trail to Dartmouth College, they discovered inventors' copies of 14 patents that had been written off as lost forever.

Karma-Karma-Karma-Karma Karma (Apple) Chameleon: Apple has filed a patent for an "active enclosure for computing device". The invention, attributed to Duncan Kerr and Steve Hotelling is described thus: "The computing device includes a housing having an illuminable portion. The computing device also includes a light device disposed inside the housing. The light device is configured to illuminate the illuminable portion." The patent, filed on February 6, 2004, describes how Macs can be modified so that they can alter their physical appearance through lights encased within. The device is described as "chameleonic" because it is able to alter its physical appearance, like a chameleon.

Nanotech Report 2004: Lux Research, an advisory firm focused on nanotechnology, today announced the release of keyfindings from The Nanotech Report 2004, a more than 600-page reference study.The findings are part of the report's 24-page introduction that can beaccessed at no charge from: http://www.luxresearchinc.com/tnr2004

Partial list of The Nanotech Report 2004's key findings:

* Governments, corporations and venture capitalists will spend more than $8.6 billion worldwide on nanotechnology research and development in 2004.

* National and local governments across the world will invest more than $4.6 billion in nanotechnology R&D in 2004. We expect 2004 will be the last year that governments outspend corporations on nanotechnology as activity shifts from basic research to applications development.

* The U.S. government will spend nearly twice as much on nanotechnology this year as it did on the Human Genome Project (HGP) in its peak year. In 2005, the National Nanotechnology Initiative will surpass the HGP on a cumulative basis. The U.S. has now appropriated more than $3.16 billion to fund nanotechnology R&D since 2000 and is proposing $982 million in new funding for FY 2005.

* Established corporations will spend more than $3.8 billion globally on nanotechnology R&D in 2004.

* There is no bubble in nanotech venture capital funding, despite widespread reports to the contrary. VC firms invested just $79 million into nanotechnology companies in the first half of 2004, down from annual totals of $325 million in 2003 and $386 million in 2002. Based upon current fundraising activity, we expect VC investment to total approximately $200 million in 2004.

* Approximately 1,500 total companies worldwide have announced nanotechnology R&D plans. Eighty percent of them -- approximately 1,200 -- are start-ups, 670 of which are in the U.S.

* Media coverage of nanotechnology -- both positive and negative -- is increasingly exponentially. Mentions of the word "nanotechnology" in the popular press rose from 190 in 1995 to 7,316 in 2003; we predict more than 12,000 mentions in 2004.

2 Cents: Attorney's weigh in on the Linux patent threat.

RTIS wins $876 million patent services deal: Reed Technology and Information Services Inc. has won a 10-year, $876 million contract from the Patent and Trademark Office to process patents, the company announced today. RTIS of Horsham, Pa., will continue to capture, manage and prepare for publication patent applications submitted to the office.

To support these services, the company has developed a work flow management system designed to meet Patent and Trademark Office business rules, which require converting large volumes of complex and scientific and technical information into searchable Extensible Markup Language and image databases.

The XML and image-based patent products that RTIS delivers under the contract are used by agency examiners and staff and disseminated worldwide by the Patent and Trademark Office. RTIS has supported patent grant operations at the Patent and Trademark Office since 1970 and publication of patent applications since 2001.

RTIS is part of the LexisNexis Group of Miamisburg, Ohio. The parent company has 12,800 employees and annual sales of $2.3 billion, according to Hoover’s Online of Austin, Texas.

Acacia Hits the Universities (It Just Keeps Getting Better With These Guys): The Maryland attorney general's office is investigating claims by a California technology company that several of the state's colleges and universities have infringed upon its patents by using the Internet to transmit video and audio."We're trying to review the situation and make some strategic decisions," Assistant Attorney General Thomas Faulk said yesterday. "We are first trying to determine whether or not we think there's any viability to the claim."

But even if the allegations are false, college officials say they might have no choice but to pay a fee for the technology, fearing the alternative is to go to court, which could cost millions of dollars in legal fees.A division of Acacia Research Corp., based in Newport Beach, recently sent letters to dozens of higher education institutions across the country. Among them were Washington College in Chestertown, the University of Maryland, College Park and the University of Maryland, Baltimore County.

The company claimed that schools using a form of streaming video or audio for online lectures or to transmit course material over the Internet were violating Acacia's patents on the technology if they weren't paying the company for that privilege.

Un - - - - - believable . . .

Microsoft Fights Back in Japan: The head of Microsoft's Japan unit acknowledged Tuesday that the U.S. software giant's battle with Japanese anti-monopoly authorities over the company's licensing clause is hurting its corporate image here.

But Michael Rawding said the company will continue to oppose the Fair Trade Commission's decision last month. He said the legal wrangle could last as long as two years. Commission officials agree the battle could be a long one.

The Fair Trade Commission sent an official warning to Microsoft on July 13, demanding that it drop the clause in licensing agreements that the commission suspects help Microsoft unlawfully infringe patents.

The clause prevents companies from suing Microsoft or other licensees over suspected cases of patent and copyright infringement in which elements of manufacturers' own software technology may end up in the Windows system.

The contract clause, called the "non-assertion of patents provision," says companies that sign Windows licensing agreements will forgo the right to sue over suspected patent infringements linked to the licensing.

The commission said the clause is "restrictive" by making it difficult for Japanese electronics companies to obtain royalty fees even when rivals violate their patents. The commission did not levy a fine or issue other penalties.

Why Patent Interference Proceedings Are Worth It

We're In The Money: Forgent Networks Inc. has a modest software business, but lately it's been showing a swagger reminiscent of another line of work: trial lawyers.

While it tries to build its line of scheduling software, Austin-based Forgent has been hiring lawyers to extract revenue from the company's store of old patents. Already, Forgent has reaped nearly $50 million by claiming that one of its patents covers JPEG, the popular standard for digital images. Sony Corp. and Adobe Systems Inc. are among the tech giants that have settled with Forgent. More riches may be on the way: In April, Forgent sued 31 tech companies, most of them Fortune 500 members, in U.S. District Court in Marshall, Texas for allegedly infringing on the JPEG patent.

Two of Forgent's former lawyers say the company has only scratched the surface with the patent and that the potential payoff could be in the hundreds of millions of dollars. Now Forgent is escalating its strategy. The company is demanding payment for a patent it says underlies the digital-recorder technology behind TiVo Inc. It's also hired the 650-lawyer Baker Botts law firm to examine 40 additional patents.

Then there's Jenkens & Gilchrist, the Dallas-based law firm handling enforcement of the JPEG patent. Under a fee agreement, Jenkens receives 50 percent of the revenue from licensing the patent, plus some expenses. The law firm's take so far is an estimated $50 million.

Update on E-Data: After settling with Apple, E-Data Corporation is suing some of the most powerful and successful e-commerce players, demanding they pay a penalty for every time a customer downloaded digital content in the last six years. E-Data has its sights on Amazon.com, The New York Times Company and Hallmark Cards, American Greetings, suing them for damages based on past patent infringements by their downloading services.

Interesting article on the EPO's decision that the Harvard Oncomouse could be patented in Europe.

IBM Promises to Play Nice (Well, Kind Of): IBM announced that it will not use its patents against Linux, and it encouraged other software companies to make the same vow.
As the owner of 60 patents on which the Linux core might infringe, IBM could wreak havoc on Linux if it chose to do so. The new promise, delivered at LinuxWorld, emphasizes the company's commitment to open source . In a speech at the conference, however, IBM senior vice president Nick Donofrio said that in the future the company could be "forced to defend" itself through patent enforcement.

False Start For Nanosys - Nanosys Inc., a company that develops technology aimed at building new materials by manipulating atoms and molecules, withdrew its highly anticipated initial public offering Wednesday.

Palo Alto, Calif.-based Nanosys cited "adverse market conditions" as the reason it pulled the IPO. The company, which reported an $8.8 million loss for the first six months of 2004, had been hoping to raise about $100 million and use the proceeds to help meet its operating and capital requirements over the next year.

Proponents tout nanotechnology as a potential multibillion-dollar industry. But so far, nanotechnology has yielded only modest commercial products like stain-resistant fabrics, and some scientists say nanotech's profit-making future is still 10 to 20 years off.

Nanosys says it has more than 200 patents and patent applications covering its discoveries. The company's regulatory filings say it's in the early stages of research to develop products for industries, such as energy, defense, electronics and information technology.

Patent Holding Companies Everywhere - And Not a Drop To Drink: Apple Computer has become the latest in a line of companies licensing patents from the relatively obscure E-Data, a company that claims to hold property rights on the process of selling music online.

E-Data said Wednesday that it had reached a European agreement with Apple that gave the company worldwide rights for its iTunes Music Store. It has now launched a new round of patent infringement suits against 14 companies including Amazon.com and The New York Times.

Previously, E-Data sued and settled with Microsoft, as well as a handful of other companies, largely under European patent rules.

"This settlement with Apple marks another important milestone, as we aggressively pursue companies that are infringing upon our intellectual property," said E-Data Chairman Bert Brodsky. "We have identified additional companies that are infringing upon our intellectual property, both in the U.S. and abroad, and will seek the necessary legal actions to ensure that our rights are enforced worldwide."

E-Data has been one of the most successful of a generation of companies that has emerged claiming patent rights to what many view as basic Internet business or technology procedures, such as e-commerce, streaming media and Web browser elements.

Say Good-Bye to Jazz: A federal trade agency might impose $13 million in sanctions against a New Jersey company that rebuilds used disposable cameras made by the Fuji Photo Film Company and sells them without brand names at a discount.

Fuji said yesterday that the International Trade Commission found that the Jazz Photo Corporation infringed Fuji's patent rights by taking used Fuji cameras and refurbishing them for resale. The agency said Jazz sold more than 25 million cameras since August 2001 in violation of a 1999 order to stop and will consider sanctions.

Fuji, based in Tokyo, has been fighting makers of rebuilt cameras for seven years. Jazz takes used shells of disposable cameras, puts in new film and batteries and then sells them.

Storm Brewing Between Apple and RealNetworks? RealNetworks last week introduced Harmony, a technology that allows users of the Real Music Store to download their files onto an Apple iPod, a space Apple has strongly defended for its own music store files. Apple responded, saying that Real's efforts were the "tactics and ethics of a hacker."

Apple also cautioned Real that they were investigating the ramifications of the software under the Digital Millennium Copyright Act (DMCA), legislation enacted in 1998 that extended American copyright law to cover digital content. Real claims that they did not violate any laws under the DMCA and said, "consumers, and not Apple, should be the ones choosing what music goes on their iPod."

A good summary of the spat can be found here.

Japanese Universities Clean Up on Blue LED Technology: Some 96 percent of patent fees that national universities gained in fiscal 2003 came from inventions related to blue light-emitting diodes (LEDs) developed by Professor Emeritus Isamu Akasaki of Nagoya University, government officials said.

The demand for blue LEDs that have a lengthy lifespan and are bright has been rapidly growing as they are widely used for traffic lights and other similar purposes.

In fiscal 2003, 14 institutions, including those established jointly by multiple national universities and national colleges of technology gained a combined amount of roughly 427 million yen in patent fees, according to the Ministry of Education, Culture, Sports, Science and Technology.

Biggie Verdict in CA - An Orange County jury awarded $43.5 million in damages to a Rancho Santa Margarita-based company that claimed industry giant U.S. Surgical Corp. infringed on its patent for a device used in laparoscopic operations. The federal jury ruled Tuesday that U.S. Surgical, a division of Tyco International Ltd., willfully violated the patent of Applied Medical Services.

The finding allows Judge Cormac Carney to triple the damages and award attorney fees, actions which he is scheduled to consider at a Sept. 20 hearing. Applied argued that U.S. Surgical violated its patent on a sealing mechanism for a trocar, a tube that surgeons insert in patients to handle instruments during laparoscopic surgeries.

Linux's Patent Risk: Open Source Risk Management (OSRM) announced today that it had found 283 issued, but not yet court-validated, software patents in the Linux kernel.

The findings are the result of a thorough Linux patent review sponsored by OSRM, a firm that provides risk mitigation and insurance offerings to the open source community. The review however did not find a single patent infringement that had currently been court validated.
"By saying that these 283 patents could cover Linux means that [patent holders] have claims that could be infringed by practicing the Linux kernel," Dan Ravicher, founder and executive director of the Public Patent Foundation and senior counsel to the Free Software Foundation, told internetnews.com. "When patents get tested in court, the court finds them invalid about half of the time, so the court doesn't just accept the patent office's decision," Ravicher said.

"None of the 283 that I've identified are actually being litigated so far as I know, but the extent to which Microsoft is asserting its patents through means other than litigation is indeterminable," Ravicher said. "In many cases, there could be confidentiality agreements in place that prohibit us and the public from knowing exactly what Microsoft is doing and how they are trying to go out and assert their patents."

OSRM, however, is not going to reveal any hard specifics on the 283 patents. Ravicher explained that being aware of the particulars of a patent could potentially expose a developer to risk.