Patent Baristas

Extreme Makeover – Kids Edition:

A Cookie is a Sometimes Food? Sesame Street Re-packages its Beloved Cookie Monster

What is wrong with America these days? Must we be soooooooo PC that even Sesame Street’s beloved blue furry Cookie Monster needs to be harnessed in and white-washed like so much else in our culture (or now lack thereof)? Yes, it is sad but true. When Sesame Street opens its 36th season, Cookie Monster is going to learn some lessons about moderation and will now advocate eating healthy. Get this – his “C is for cookie” song has been replaced with a new song — “A Cookie Is a Sometimes Food.” That’s right, the Muppet who once sang, “C is for cookie, that’s good enough for me,” is advocating eating a healthful diet and learns there are “anytime” foods and “sometimes” foods.

According to Rosemarie Truglio, the show’s vice president of research and education, the focus of “Sesame Street” changes every year. This year, the show will focus not just on teaching numbers and letters but also on emotional and physical health. With the rise in childhood obesity, Truglio said “Sesame Street” is concentrating on the need to teach children about healthful foods and physical activity. This season, each episode opens with a “health tip” about nutrition, exercise, hygiene and rest. That will not go very far in my house.

“It’s not a perfect solution. It’s a ‘Sesame’ solution,” admits “Sesame Street” executive producer Lewis Bernstein. “When we sat down to do the new curriculum, we thought, ‘what are we going to do with (Cookie Monster) in health?’ We are aware that children eat cookies. We’ve got a Cookie Monster. He’s not going to become a Carrot Monster. We’re not trying to get children to not eat cookies, but to eat other things, too.”

And, in fairness to Bernstein, Cookie Monster will still get to eat cookies sometimes (remember, they’re a sometimes food), including the Letter of the Day segment where poor Prairie Dawn habitually watches in dismay as Cookie Monster devours both the Letter and the cookie it’s stamped on.

Now don’t misunderstand me, I am all about healthful eating and lifestyles. With childhood obesity rates soaring, something clearly needs to be done with our super-sized nation. Personally, I exercise 4-5 times a week in my own make-shift home gym, a lot of times with my kids present and watching what I am doing. I am careful about what I eat and try to purchase and serve healthy foods. My kids watch what I eat, purchase and serve. What I don’t do is preach to my kids about a healthy lifestyle and that they watch what they eat. Anyone who knows kids knows that is about as effective as putting a steak in front of a dog and asking the dog to not eat it. Kids learn best by the examples we as parents and family set everyday, year after year, as to what is acceptable and what is not acceptable.

Sesame Street certainly has a great idea about teaching these healthy lifestyle concepts to children and hopefully, the Sesame Street characters will be heard by our kids. But this cannot be the only voice they hear or examples they see. And someone needs to say that to our coach potato nation.

If you are like me and enjoy the economics of law practice as much as the practice itself, then you’re probably familiar with Bruce MacEwen’s blog, Adam Smith, Esq., where “law firm management comes under the microscope.” (and what can I say about a guy who can work in the word “Jesuitical” in a blog article?*)

In a recent post (Deal Market is Back! But Hey, What About the Rest of Us?), MacEwen mentions an article by Aric Press describing that changes are afoot in the profession and that things are essentially unchanged, and that “both sentiments are exactly correct.” This is because clients are dividing their legal work into two distinct categories:

Column A: These are the deals, cases, and issues where price is no object;

Column B: Everything else.

That is, companies hire firms at a money is no object level for their (perceived) mission critical work and then trying to get the rest of the work done at cut rates. I agree with the assertion that unless you have a tony NY address, you’re not going to get the bulk of your revenue from Column A so that leaves a lot in Column B. What I have trouble with is how things get prioritized in column A versus B. My experience is that many clients (not ours, of course) are often penny-wise, pound-foolish. That is, they ask that you “commoditize” work that cannot be easily reduced to a commodity, e.g., patent work. They put Column A patents into Column B.

Clients will say they want an alternate billing arrangement (read: capped price) for patent applications when they really just want to lower the cost; not increase the value derived. Patent applications are as diverse as the inventors themselves. Almost without fail, the invention is presented as (quote) Just a simple invention (unquote) but then the inventor changes the invention in mid-stream or decides that he really has several related inventions. Recently, I had a single invention balloon into over a dozen applications – each one more complicated than the first – as we delved into the gritty details of just what it was the inventors had discovered.

Too often, patentees look to get a patent as cheaply as possible only to turn around and spend like there’s no tomorrow in defending it. Often a lawsuit that could have been avoided had the patent been better crafted in the first place. Personally, I would not want my patent attorney to be incentivized to stop carefully crafting an application because too much time is being spent. Not if this patent covers my company’s core technology. What, indeed, is to be done?

I don’t mean that I’m against alternative arrangements. They can often make sense – just not always. Earlier, MacEwen put together the “Adam Smith, Esq.” official “Savvy Blawgers Panel,” a brain trust of outstanding members of the legal blogosphere and asked about the future of the billable hour (Savvy Blawgers Query #2: The Future of the Billable Hour). The answers often derided the billable hour as bad for the client, good only for the lawyers. But is this really so? No one pretends that the billable hours is perfect or all-wise but, as it has been said about democracy – it’s the worst form of Government except all those other forms that have been tried from time to time.

I agree with Dennis Kennedy’s take on the billable hour, that it is, by its definition, not the best way to make money for lawyers. There is only so much you can charge per hour. There are only so many hours in the day. Unfortunately, when clients ask for a patent application to be an alternative billing arrangement, they are asking that it be shifted from Column A to Column B. That is, they are treating it as a simple routine matter — just file form 123PDQ and you’re done. But patent drafting is not that way. It is an art, a craft, a give-and-take between the patentee and patent office.

This is not to say all patents must be in Column A. Certainly, sophisticated clients can and do decide that they do not intend to procure the best patent claim scope but merely some claim scope, knowing that they will never enforce the claims. Many companies just want patent numbers. For some, this is a way of keeping score. For others, it’s a way to provide tender to barter with if a competitor ever comes knocking at their door.

There’s certainly nothing wrong with trying to get a low cost patent – as long as careful thought goes into the decision. If one decides that a piece of intellectual property is important to the company’s mission and business plan, then it should be treated like column A. If it is nothing more than a commodity-like procurement, then it could be a Column B item. Just be sure you can tell the difference. Like the saying goes, you can have cheap or good … just not both.

Here’s to savvy blawgers … and clients and their attorneys.

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*Jes’u·it’i·cal (adj). One given to subtle casuistry — the determination of right and wrong in questions of conduct or conscience by analyzing cases that illustrate general ethical rules.

I am glad right now that the only thing I am suffering from is a common head cold, thanks to my two toddlers wanting to “share.” If I had arthritis like my grandmother did, I would really be starting to worry. It seems that even after the talk of using “black box warnings” from this past February’s hearings at the FDA, today, the FDA asked Pfizer to pull Bextra (valdecoxib), another beleaguered Cox-2 inhibitor, from the market today as part of a broad-ranging Public Health Advisory on the entire class of NSAIDs.

In making this announcement, the FDA cited inadequate information on possible heart risks from long-term use of the drug as well as “life-threatening” skin reactions, including deaths. The regulatory agency also called for the strongest warning possible on Pfizer’s other arthritis product, Celebrex. These decisions come about six months after rival drugmaker Merck & Co. pulled its blockbuster arthritis drug Vioxx off the market, also due to safety concerns.

In calling for a stronger warning on Celebrex labels, the FDA cited increased risk of cardiovascular “events” and gastrointestinal bleeding and said all similar drugs should have label warnings.

Pfizer said it “respectfully disagreed” with the FDA decision and it plans to hold talks with the agency about returning Bextra to the market.
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Barr Pharmaceuticals, Inc., a holding company that operates through its principal subsidiaries, Barr Laboratories, Inc. and Duramed Pharmaceuticals, Inc., announced that the U.S. District Court in New Jersey has granted summary judgment of invalidity on an additional patent in their litigation challenging the patents on Allegra(R) (Fexofenadine Hydrochloride) allergy treatment products. The court had previously granted summary judgment of non-infringement with respect to three other patents in the case and has yet to rule on six patents remaining in the litigation.

Barr filed an Abbreviated New Drug Application (ANDA) for Fexofenadine HCI 60 mg capsules in May 2001, an ANDA for Fexofenadine HCI 30 mg, 60 mg, and 180 mg tablets in June 2001, and an ANDA for Fexofenadine Hydrochloride 60 mg and Pseudoephedrine Hydrochloride 120 mg Extended-Release Tablets (marketed by Aventis as Allegra-D) in September 2001.

Aventis filed suits in 2001 trying to prevent approval of Barr’s ANDAs until after the expiration of various patents, the last of which expires in 2018. For the 12 months ending January 2005, Allegra tablets had sales of approximately $1.5 billion, while Allegra-D had annual sales of approximately $432 million.

More here.

In case you have not heard already from the many posts out there, Kevin Heller (Tech Law Advisor) and Evan Schaeffer (Notes from the (Legal) Underground) have rolled out Blawg Review, a site for the review of law blogs and postings.

It is not often you see a collaborative project like this from a group of lawyers on any topic, let alone blogging. As they put it, this site represents “a group of law bloggers who are committed to making the best of the blawgosphere more easily accessible and enjoyable to read.”

The premier issue of Blawg Review will be hosted next Monday, April 11th, at Notes from the (Legal) Underground, where Evan Schaeffer is now accepting submissions all this week.

Blawg Review will have three general purposes:

Blawg Reviews: Readers and other bloggers will be able to submit reviews of various law blogs (hopefully with some thought involved). Since this covers all law blogs, this should prove to be a good way for specialty blogs to get noticed by those outside their practice niche. As they point out, “Reviews don’t have to be serious; we’ll accept hilarious.”

Blawg Review Hosting: Various law bloggers are invited to host an upcoming Blawg Review on their own law blog, just let them know the Date Available that you would prefer to host, by sending an email addressed to: host at blawg review dot com

Blawg Postings: Everyone is invited to submit their own law blog posts for inclusion in the weekly Review by sending an email to: post at blawg review dot com. Apparently, using “technology that amazes us”, this email address automatically forwards submissions to the attention of the next host.

Check out this great effort. We think this will be quite successful and, besides getting people noticed, will provide topics to people who would not otherwise see your posting. Sometimes, you don’t know what you don’t know. You know? Note: Not addressed is the question “Are Law Blogs Advertising?” as we posted earlier here. I don’t think it’s a problem with this very unique method of rotating hosts for the Review but let me know your thoughts.

Note that J. Craig Williams, on his blog May It Please the Court, after noting that blogging as a phenomenon is reaching epic proportions, believes they are ads noting that it would be difficult to identify a purely altruistic blog.

For the opposing view that blogs are not ads, see the post by David Giacalone of f/k/a ethicalEsq here.

I’ve held the view that a blog, even in one’s own field, doesn’t always constitute an advertisement but I have to admit it’s vague. Hence, the Baristas have posted “This May be an Advertisement“ on our own site. Vague enough for you?

The Baristas received a nice mention in Ben Cowgill’s new blog, the Legal Ethics Blog where he mentions our web disclaimer.

Cowgill writes: “So what is the ethics angle of this post? It’s this: I think the disclaimer is just right because it says what it needs to say while providing a little humor which actually makes it more effective in getting the attention of a sophisticated audience.”

We’ll keep trying to provide a little humor to a dry subject. In the meantime, check out the Legal Ethics Blog on issues related to professional ethics and don’t miss the talking avatar on the About page.

[Update: The correct name of Ben Cowgill’s Legal Ethics Blog has been added. -Ed.]

Well, I am now back from a rather somewhat self-imposed hiatus from the Barista blawg site. The events of the past 2 weeks in my life, ranging from my toddler having surgery to selling my house, finding a new place to live for the entire herd, and having to move in 2 weeks time, all have taken a toll on any extra time I might have had to devote to any extraneous mental meanderings which I could have posted to this site.

That being said, anyone who knows me, also knows I am a die-hard animal-lover. So should it come as any surprise that since scientists have engineered a variety of barnyard animals to produce human proteins, they can now do the same trick in plants? (I love it – leave those furry creatures alone!)

Biolex, Inc., a privately held protein therapeutics company, today announced the issuance of a patent that broadly claims methods for immunizing a human or non-human animal against an antigen by administering an antibody produced by transgenic plants. This is the first patent ever awarded for the use of “plantibodies” (plant-made antibodies) to treat humans. Biolex now has exclusive rights to five U.S. patents in its Plantibodies portfolio, giving the company coverage for the production of antibodies in transgenic plants and their use to treat humans.

The specific patent issued from the U.S. Patent and Trademark Office is USP 6,852,319, entitled, “Method of Use of Transgenic Plant Expressed Antibodies.” It was issued to The Scripps Research Institute, where the technology was developed, and exclusively licensed to Epicyte Pharmaceutical which was acquired by Biolex in 2004.

Biolex would now appear to have a pretty big patent “stick” they can wield and it will be interesting to see how they choose to and can actually use it.
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There’s a nice update on the new Japanese Intellectual Property High Court on Bill Heinze’s I/P Updates blog. The new court was organized because the Supreme Court, which is supposed to unify legal precedents, takes too long to complete hearings and it now only rules on constitutional issues.

The new court will reportedly have 18 judges and will serve as the court of first instance over whether the Patent Office’s decisions are appropriate. It also will serve as a court of appeal, after Tokyo and Osaka district courts, on compensation suits concerning the infringement of patent rights and injunctions.

It appears that the Intellectual Property High Court will introduce a collegiate court system using five judges, as opposed to the normal collegiate court system of three judges. The new system will only deal with cases in which similar lawsuits have received different rulings or rulings that may influence business activities.

In addition to patent violation lawsuits, the expanded court system could target cases over how much a company should pay an employee who was responsible for a breakthrough invention. As we reported earlier, the inventor of an LED technology settled a lawsuit for 840 million yen ($8.1 million) with his former employer, the Nichia Corporation, for inventing blue-light-emitting diodes.

If the calculation of the cost to be paid to an in-house inventor were harmonized, it could be a model for companies to develop an incentive system.

More here.