Saturday, September 9, 2017

The Seven Most Dangerous Dog Breeds

by Steve Reiss (

  • Pitbulls – The Pitbull was at the top of the CDC’s list of dangerous breeds, with 66 dog bite-related deaths from 1979-1988.
  • Rottweiler – The CDC says Rottweilers ranked second in dog bite-related fatalities with 39 deaths from 1979-1988.  When combined, Rottweiler and Pitbull breeds were involved in approximately 60 percent of human deaths in the CDC’s study.
  • German Shepherd – German Shepherds may be targeted for “banning” in certain areas, or refused coverage on some homeowners’ insurance policies because of their tendency to become territorial and protective, which can result in aggressive behavior.  The CDC says German Shepherds were involved in 17 dog bite-related fatalities from 1979-1988.
  • Husky-type – This breed was responsible for 15 dog bite-related fatalities from 1979-1988 according to the CDC.
  • Malamute – Although similar looking to husky-type dog breeds, the Malamute is its own unique breed. The CDC reports that the breed was still involved in 12 dog bite-related fatalities from 1979-1988.
  • Doberman Pinscher – These dogs were once common as guard and police dogs giving them a reputation of being intimidating and aggressive, especially towards strangers.  The CDC reported this breed to be involved in nine dog bite-related fatalities from 1979-1988.
  • Chow Chow – These dogs are known as an aggressive breed, fiercely protective of their people and property.  The CDC reported this breed to be involved in eight dog bite-related fatalities from 1979-1988.
 Dangerous Breeds

Tuesday, September 5, 2017

Flash of Genius

by Steve Reiss (

Is this what the courts meant by flash of genius. This is from USP6,790,043.

Saturday, September 2, 2017

Exception it is not

by Steve Reiss (

Under this analysis, it is incorrect to impose on the patent owner, as the trial court in this case did, the burden of proving that a "public use" was "experimental." These are not two separable issues. It is incorrect to ask: "Was it public use?" and then, "Was it experimental?" Rather, the court is faced with a single issue: Was it public use under § 102(b)?
Thus, the court should have looked at all of the evidence put forth by both parties and should have decided whether the entirety of the evidence led to the conclusion that there had been "public use." This does not mean, of course, that the challenger has the burden of proving that the use is not experimental. Nor does it mean that the patent owner is relieved of explanation. It means that if a prima facie case is made of public use, the patent owner must be able to point to or must come forward with convincing evidence to counter that showing.[3] See Strong v. General Electric Co., 434 F.2d 1042, 1044, 168 USPQ 8, 9 (5th Cir.1970). The length of the test period is merely a piece of evidence to add 972*972 to the evidentiary scale. The same is true with respect to whether payment is made for the device, whether a user agreed to use secretly, whether records were kept of progress, whether persons other than the inventor conducted the asserted experiments, how many tests were conducted, how long the testing period was in relationship to tests of other similar devices. In other words, a decision on whether there has been a "public use" can only be made upon consideration of the entire surrounding circumstances.

While various objective indicia may be considered in determining whether the use is experimental, the expression by an inventor of his subjective intent to experiment, particularly after institution of litigation, is generally of minimal value. In re Smith, 714 F.2d at 1127, 218 USPQ at 976.

 TP Labs...


by Steve Reiss (

And even in the absence of any statute upon the subject, it was held that a reissue could be granted by the proper officer of the government,

Patent Office @132 page 307

(31 us 218)

Arrows in the Dark And Fishing Expeditions While Patent Prosecuting

by Steve Reiss (

The process of patent examination is an interactive one. See generally, Chisum, Patents, § 11.03 et seq. (1992). The examiner cannot sit mum, leaving the applicant to shoot arrows into the dark hoping to somehow hit a secret objection harbored by the examiner. The 'prima facie case' notion, the exact origin of which appears obscure (see In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984)), seemingly was intended to leave no doubt among examiners that they must state clearly and specifically any objections (the prima facie case) to patentability, and give the applicant fair opportunity to meet those objections with evidence and argument. To that extent the concept serves to level the playing field and reduces the likelihood of administrative arbitrariness.

In Re Hans Oetiker, 977 F.2d 1443 (Fed. Cir. 1992) (Plager, Concurrence)

Tuesday, August 29, 2017

The Pen and Paper Test

by Steve Reiss (

I would love to meet the person who could do that. This is not an algorithm case. This is not a math case. This is not a software case. And the idea that they would say in their reply brief that a human could do what these packets do with a pencil and paper . . . . I mean, it's crazy what they're willing to say.

Monday, August 28, 2017

On the Lone or Individual Inventor

by Steve Reiss (

The iconic individual inventor plays a much smaller role today than he once did. 19th century America was a time of flourishing individual invention. Individual inventors got the vast majority of patents.

Toward the end of the century, the picture began to change

Increasingly, patent rights were sold before the patent was issued, a sign that corporate support was needed at an earlier stage.

The notion of the inventor as a genius working along in his shop became increasingly anachronistic as the complexity of technology required numerous machinists, chemists, or other skilled workers to contribute to the developments of ever more sophisticated and complicated machines, compounds, and processes. Collective research and development had become the source of most inventions long before the courts and the public finally realized it.

By 2003 individual inventors accounted for only about 12% of patents.

Additionally, most of the recent inventions made by individuals are hardly breakthrough technologies.

The most prolific patentee in US history is Donald Weder (1336 patents). At one point, Weder was listed as holding 984[1] utility patents and 413[2] design patents for a total of 1397 US patents. Weder is still actively inventing, so his ultimate number of patents is yet to be known. His most recent patent was issued on April, 2017. He beat out Thomas Edison (1336 to 1093) in 2002.

Weder's contribution to society? Flower pots, bundling flowers, and other inventions relevant to florists.

Most individual inventors appear to work in mature, but not cutting-edge technologies.

Bessen and Meurer, Patent Failure (2008), pp. 168-171 ("Individual Inventors")

Sunday, August 27, 2017

Breaking Bad and Patent Combinations

by Steve Reiss (

It also repeated a local version of its combination argument:
"[I]f these lawyers were defending Walter White, they would come in and say, Judge, you can't convict him of anything because he didn't possess anything but Sudafed, battery acid, drain cleaner, lantern fuel, and  antifreeze. Forget the fact that when [**52] you mix those up, it's methamphetamine."

Saturday, August 26, 2017

Well Settled Doubt Favors Applicant?

by Steve Reiss (

In the first place, it is the settled rule in such proceedings that doubts as to whether or not invention is present are to be resolved in favor of the applicant.7 While the exact degree of doubt necessary to justify the allowance of a claim has not been accurately defined, it is probably greater than the "reasonable doubt" which will prevent a conviction in criminal cases. It is evident, however, that the existence of the rule has a definite tendency to lower whatever standard of invention one may begin with.

7. In re Coykend1all, 58 App. D.C. 280, 29 F. 2d 868 (Ct. App.D.C. 1928); In re Davidson, 56 App. D.C. 279, 12 F. 2d 814 (Ct. App. D.C. 1926); In re Herchenrider, 28 C.C.P.A. (Patents) 876, 117 F. 2d 261, 48 U.S.P.Q. 393 (C.C.P.A. 1941); Ex Parte Bennett, 29 U.S.P.Q. 612 (P.O. Bd. App. 1936); Ex Parte Nord, 68 U.S. P.Q. 335 (P.O. Bd. App. 1945).


101 Money Where Your Infringement Mouth Is

by Steve Reiss (

Front Row repeatedly argued that the Court should require the Defendants "to take precise claims construction positions if they're going to make a 101 argument." Tr. at 101:1-3 (Shore). It explained that the Defendants, given their argument that Front Row's patents cover a broad swathe of material, ought to be willing to stipulate to infringement. See Tr. at 101:7-23 (Shore)