- district courts
- patent litigators
- the USPTO
- the Federal Circuit
We have added a link to Holme Roberts & Owen legal publications to our law publications list at LawPundit.
We have added a link to Holme Roberts & Owen legal publications to our law publications list at LawPundit.
The recent May 18, 2007 Federal Circuit decision in McKesson v. Bridge Medical mirrors the trend found in information technology decisions ushered in by KSR v. Teleflex and followed in Leapfrog Enterprises, Inc. v. Fisher-Price, Inc. and Mattel, Inc. and Perfect 10 v. Google and Amazon (A9.com).
That trend is that the courts are starting to come down hard on the various existing abuses of the patent and copyright system, something which the courts must do in order to keep that same patent, trademark and copyright system functioning viably.
As written by Kevin E. Noonan at Patent Docs regarding McKesson v. Bridge Medical:
“[T]he Federal Circuit significantly increased the extent to which the duty of candor extends to activities occurring during prosecution of related applications. At the same time, the Federal Circuit lowered the standard for deciding that activities during patent prosecution could be inferred to be intentional, making it easier for a patent to be found unenforceable due to inequitable conduct. The effects of this decision are likely to be felt disproportionately by biotech patent applicants, in view of the high frequency with which applications in this technology area are required to file divisional and continuation applications.”
Patently-O cites hopefully – and, in our opinion, unfortunately – to the woeful dissent of Judge Pauline Newman (see picture here) in McKesson, a Judge who will turn 80 this month, June, 2007, and whose current lack of good judgment – in our opinion – is evidenced by the fact that she has not gone into a timely retirement, but selfishly continues to hold on to her position to the detriment of the court, the country and patent law. What is needed – soon – is a modernly-oriented successor.
The patent system consists of “cogs” and “clogs” and Judge Newman in recent years has become one of the main clogs in a patent system desperately in need of reform. Judge Newman has through her backward opinions opposed nearly every type of patent reform and has even campaigned actively against patent reform in Congress. See IPBiz and Judge Pauline Newman urges caution in patent reform.
Nothing sensible has been done in patent law reform for the last 20 years, thank you Judge Newman, and it is time to move forward with desperately necessary intellectual property law reform before the entire IP system collapses of its own ponderous antiquity and inertia.
“As set forth in considerable detail below, this case involves McKesson’s nondisclosure of three items of information during prosecution of the ‘716 patent in a setting where the applicant had co-pending applications. The district court found each of the three nondisclosures individually and collectively material to prosecution of the application that led to the ‘716 patent. With regard to deceptive intent regarding each nondisclosure, the district court found circumstantial evidence strongly supports an inference of deceptive intent. After assessing all the facts, the district court held that McKesson failed to provide a credible explanation for the material nondisclosures. As the district court noted, this was not a case of mistake or negligence—the prosecuting attorney testified that he would make all the same nondisclosure decisions again if prosecuting the same applications today.
The district court’s thorough written opinion documents the court’s correct understanding and application of the relevant precedent. The issues of materiality and intent are fact-driven. With regard to the issue of intent, the law recognizes that deceptive intent is virtually never shown or disproved by direct evidence. Instead, the ultimate fact finding on the issue depends on assessment of all the inferences, favorable and unfavorable, that can be drawn from pertinent evidence. To prevail on appeal, McKesson must demonstrate that the district court’s findings of fact are clearly erroneous. After careful review of the record, we conclude that McKesson has not met its burden, and we therefore affirm.”
For more material on McKesson v. Bridge Medical, see:
Eric M. Acker, Jose L. Patiño and Katherine L. Parker, Morrison & Foerster LLP, United States: Patent Prosecutors Beware, Litigators Take Note: Federal Circuit Affirms Novel Inequitable Conduct Ruling, 25 May 2007
This posting is especially for our friends in the Baltic, Russia, Eastern Europe and the Caucasus or for anyone interested in the prehistory and early history of mankind. We also have some tidbits here on research doctorates (Ph.D.) and the J.D. degree.
The LawPundit has recently succeeded in deciphering the megalithic dolmens of the Caucasus in Russia as representing a gigantic sky map of the heavens, i.e. they are a planisphere of the stars, as shown in the graphic below (as particularly and easily seen at Leo) and as initially posted to the LexiLine Newsletter on the History of Civilization:
EVIDENCE and MEGALITHIC SITES
One of our major projects in “Evidence” is the study of the world’s megalithic sites. The Law Pundit has been studying megaliths, menhirs, dolmens, petroglyphs and their like for over 30 years using the method of critical Socratic analysis that only the law provides (see J.D.).
Because other academic disciplines are not trained to examine evidence critically but rely principally on “authorities” (where copious citation and extensive crony-reviewed publication rather than sound analysis are the keys), the existing megalithic evidence concerning man’s history has not been properly evaluated by the archaeological community and related disciplines (here we include e.g. Archaeology, History of Western Civilization, History of Astronomy, Egyptology, Assyriology, Ancient Near Eastern Studies, Biblical Studies, Historical Linguistics, mainstream Archaeoastronomy).
For example, Archaeology and the related disciplines tend to examine megaliths and megalithic sites as isolated historical monads, which is why megaliths are even called monoliths “single stones”. Megalithic sites are not only examined by mainstream archaeologists primarily in isolation, but are often erroneously identified as tombs, for which there is often no evidence on-site whatsoever. Indeed, their ostensibly later use as tombs by subsequent generations often seems to post-date their actual date of construction.
The idea that megalithic sites were somehow sensibly related to each other at their inception, and that many were not originally tombs but served other purposes, presents a simple alternative explanation which the oft monopoly-seeking mainstream scholars who study these things generally simply ignore under the motto “to each his stone”.
FAILING RESEARCH SKILLS IN MAINSTREAM ACADEMIA
As a Berkeley study recently found, scholars in the humanities prefer to teach concepts rather than facts – which is all fine and good, but it is a disastrous strategy if the concepts taught do not match the actual facts, which is the present situation in many areas of these fields.
We thus continue to hammer away at the establishment of the archaeological community and related disciplines in the hope that younger scholars of critical mind in these fields will ultimately change the current tide of outdated, backward and sometimes blindered mainstream research.
We read with some amusement that the research doctorate is regarded by some to be the highest earned academic degree in U.S. postsecondary education“. Our comment to that is, surely you jest.
Many of the most capable students (e.g. Stanford, Harvard, Yale) often went on to get J.D. “law student” or M.D. “med student” degrees rather than move on to a more comfortable and surely overinflated Ph.D. “research doctorate” degree as a “grad student“. In fact, “Pre-Med” and “Pre-Law” students are often not only the leaders in their undergraduate college academic ranks, but their graduate courses of study are in no way inferior to those of the research doctorates, quite the contrary.
Society as a whole is run to a great deal by those holding a J.D. or the previously comparable LL.B. degree (Presidents of the USA, members of the US Congress, CEOs of the top 1000 corporations are primarily MBAs at 42%, and the JD degree follows with 25%) . Only rarely do PhDs reach these leadership positions. There is also presumably a reason for the large discrepancy in salaries among those holding J.D. versus Ph.D. degrees, and it is simply not the case here that those who earn less are better educated or more competent. Sorry.
We do not mean to denigrate the Ph.D. degree, but the idea that a research doctorate is allegedly academically superior to a J.D. or M.D. is one of those strange erroneous ideas floating around in academia and surely fed by those in academica holding a Ph.D.
As a matter of university politics, there is by the way no reason that Ph.D. study should not also be limited to three viz. maximally four years, just as the J.D., rather than having graduate students vegetate at their superiors’ whims for years on end until they are over age 30 and unemployable.
MEGALITHIC SITES ARE RELATED TO ASTRONOMY
Speaking of years….
For years now, we have been demonstrating in countless postings and publications that many megalithic sites are astronomical in nature and that these sites in the main served as ancient hermetic (as above, so below) land markers, sited (and sighted) by astronomy. Yet,
But what are “facts” to conceptual theorists?
PLACEMENT OF THE WEST CAUCASUS DOLMENS ON THE MAP
Our decipherment of the West Caucasus Russian dolmens relies on the placement of the position of the dolmens as found on a map published by Dr. Viktor Trifonov of the West Caucasus Dolmens Project (Institute for History of Material Culture, Russian Academy of Sciences , Dvortsovaya nab., 18, St.-Petersburg, 191186 Russia.; Tel. +7 (812) 571-50-92, fax +7 (812) 571-62-71; e-mail: email@example.com .
The map of the positions of the dolmens is found at:
INTERPRETATION OF THE DOLMENS AS A SKY MAP
In addition to our graphic above, our interpretation of the positions of these dolmens as representing the stars of the major northern stellar constellations has been posted to the LexiLine Files under Russia Karelia and Eastern Europe as the file
We will be adding some explanatory materials at LexiLine soon, supporting our decipherment with additional decipherments.
INTERNET WEBSITES ON THE CAUCASUS DOLMENS
For more information on the dolmens of the West Caucasus, the two major websites which document the megalithic sites in the Caucasus are:
1. Viktor Trifonov, Prehistoric Megaliths in the Western Caucasus (West Caucasus Dolmens Project), at http://www.archeo.ru/eng/themes/dolmens
2. Serg Valganov, The Dolmen Path – Russian Megaliths, at http://megalith.ru/articles/
“These dolmens cover the Western Caucasus on both sides of the mountain ridge, in an area of approximately 12.000 square kilometres…. The monuments date between the end of the 4th millennium and ….
While generally unknown in the rest of Europe, these Russian megaliths are equal to the great megaliths of Europe in terms of age and quality of architecture, but are still of an unknown origin. In spite of the variety of Caucasian monuments, they show strong similarities with megaliths from different parts of Europe and Asia, like the Iberian Peninsula, France, Great Britain, Ireland, Netherlands, Germany, Denmark, Sweden, Israel and India. A range of hypotheses has been put forward to explain these similarities and the building of megaliths on the whole, but still it remains unclear. Approximately 3000 of these megalithic monuments are known in the Western Caucasus, but more are constantly being found, while more and more are also being destroyed. Today, many of these monuments are in great disrepair and will be completely lost if they are not protected from vandals and general neglect.”
And what, dear archaeological community worldwide, are you doing about this, other than hoarding your pots in your vaults?