America-Israel Patent Law

Al Tashlicheini L’et Zikna: of Jay Friedman and Pauline Newman

"Do not cast me off in old age; when my strength fails, do not forsake me!" (Psalms 71:9)  אַֽל־תַּ֭שְׁלִיכֵנִי לְעֵ֣ת זִקְנָ֑ה כִּכְל֥וֹת כֹּ֝חִ֗י אַֽל־תַּעַזְבֵֽנִי׃

 

One of my favorite albums (if you don’t know what a vinyl record is, Google it) is a collection of canzonas by the 17^th century composer Giovanni Gabrieli, arranged for brass ensemble and recorded in 1969. Apart from the spectacular playing, the recording is remarkable in that it features the entire brass sections of three major symphony orchestras (Chicago, Cleveland and Philadelphia), whose players were somehow able to clear their schedules to get together for a day in Philly. Many of the players on that album are legendary among brass players, inter alia Abe Torchinsky, Myron Bloom, Dale Clevenger, Bud Herseth, Mason Jones, and Arnold Jacobs.

 

Having been recorded more than 50 years ago, most of the musicians on the album are no longer with us. Amazingly, however, one of those players is not only still around, but still active: at age 82 or so, by which age most brass players would have long since retired, Jay Friedman is still the principal trombone player of the Chicago Symphony, where he has played since 1962 (!). Here’s a picture of him at a CSO concert I attended last month, in which he (and the rest of the CSO) played the @#$% out of Dvorak's ninth symphony ("From the New World").

 

One feature of symphony orchestras, especially those at the apex of the profession like the CSO, is that it becomes apparent very quickly when a musician can no longer perform at the necessary level. In the CSO’s case, to help mitigate the incentive to keep the job when it’s time to move on, the orchestra provides a generous retirement package. I assume that when the time comes, Mr. Friedman will step aside, but until then, as we said in the 70’s, keep on truckin’!

 

This leads to the big news that came out of the Court of Appeals for the Federal Circuit last week: not a groundbreaking patent law decision, but the fact that the court’s chief judge, Kimberly Moore, is seeking to force judge Pauline Newman out of her job. You can read the court’s announcements on the matter here, here and here, but basically, the assertion is that, at the age of 95, Judge Newman is no longer able to pull her weight, and is allegedly even suffering mental lapses.  Gene Quinn broke the story on his blog (here and here), and the comments in those pieces include remarks from people who have seen and heard Judge Newman recently, who state that she’s still on the ball.

 

I don’t know the inner workings of the CAFC, and I don’t personally know any of the CAFC judges, nor have I seen Judge Newman herself recently.  However, as a long-time follower of the CAFC, I think that Judge Newman has long been the sharpest judge on the court.  I also know most of the CAFC judges who ostensibly have IP experience from private practice have experience as litigators, which is a different role than preparing and prosecuting patent applications. As in-house counsel at FMC corporation for 30 years, including as head of the patent department for 15 years, Judge Newman has more patent procurement experience than any other judge on the court, and possibly more than all the other judges combined.  In her decisions she rarely gets things wrong, and a dissent from her almost always means that her colleagues in the majority are in error. Frankly, it’s a shame there haven’t been more judges like her on the CAFC.  

 

The Talmud relates how the amora Rav Yosef (bar Hiyya) suffered a sickness (perhaps a stroke) that caused him to forget much of he knew, so that his student Abbaye (who became one of the two leading scholars of his own generation) had to re-teach him what he himself had taught Abbaye. Yet it’s clear that other scholars continued to involve him in discussions, even though Abbaye would sometimes have to remind Rav Yosef of things that Rav Yosef himself had taught when he was younger.

 

It could turn out that Judge Newman’s younger colleagues are conniving cutthroats; it could be that Judge Newman is still sharp but that physical infirmity is taking its toll on her ability to work, and that taking senior status (which allows for a lighter workload) is appropriate; it could be that her mental acuity is also in decline and that it’s time to retire.  We shall see in the coming months if this incident marks the unfortunate but inevitable end of Judge Newman’s career, if it stains the court itself, or both.  For those of us who work in the trenches of patent prosecution, Judge Newman will have our respect even after she’s no longer hearing cases.  

 

And, to slightly twist the verse at the start of this post, the patent community thanks her for not having abandoned us in her old age.

Al Jaffee z"l - Cartoonist and Creator of Prior Art

We heard earlier this week about the passing of 102-year-old Al Jaffee, who for many years wrote for MAD Magazine, and who only retired from cartooning three years ago.  His most well-known (and most consistent) contribution to MAD was no doubt the “fold-in” on the inside back cover, which was the first thing any loyal MAD reader looked at (followed by Prohias’ Spy vs. Spy, the Don Martin cartoons, Dave Berg’s “The Lighter Side of…”, and the doodles in the margins by Sergio Aragones.  The last things a reader would get to were the movie and TV satires). 

But another feature that Jaffee did from time to time involved showing useful gadgets from the distant or not-so-distant future, like a piece on improvements in the collection and disposal of what my colleague David Klein might refer to in patentspeak as “canine exudates”.  At one point MAD collected these into a book called “Al Jaffee’s MAD Inventions”, which I’m sure my brothers and I owned at one point.

From time to time I’ve wondered if any of Al Jaffee’s invention were cited as prior art during the course of patent prosecution, either voluntarily by an applicant, or even better, by the examiner under 102 or 103, but neither my brother Aaron nor I bothered looking until now.  Searching for patents that list “Mad Magazine” or “Al Jaffee” as prior art yields several examples, but the only cited MAD reference I could find that was archived on the internet was from the June 1964 issue which included a piece written by Al Jaffee entitled “The Great Cigarette Filter Tip War”.  The second page of that piece is listed as prior art in US patents nos. 3439685 and 3528432. Although the file histories of these two patents are not available online, if at all, the fact that the patents issued to two different inventors but were examined by the same examiner would seem to suggest that, in at least one of the cases, it was the examiner who cited Jaffee's work.

Passover Post from the Dead Sea

I’ve been spending Passover at the lowest point on the earth’s surface not covered by water, viz. on the shore of the Dead Sea, or what these days (as will be explained below) is more properly referred to as “drying pool no. 5”. This week I’ve learned a few things that are interesting to chemists, to Zionists, and to a lesser extent to IP professionals. 

I’ll start with our visit to the Dead Sea Works’ visitors’ center, which is located at the site of the original southern Dead Sea mineral production facility.  The Dead Sea isn’t so much a sea as a saline lake, which until the 20^th century was fed by water flowing from the Kinneret (Sea of Galilee) via the Jordan River.  As there’s no outflow of water but only water loss by evaporation, the water in the Dead Sea is extremely salty.  Already in the early 1900’s, the Siberian-born and Zionistically-oriented Moshe Novomeysky recognized the potential to obtain valuable minerals from the water.  It took 10 years to get the British bureaucracy to grant permission to establish a plant to harvest the minerals, but permission was granted in 1929 and the first plant on the northern end of the Dead Sea was operational by 1930.  A few years later, a second plant was established on the southern part of the lake after much effort by a group of kibbutznikim. The plants’ products were Mandatory Palestine’s most profitable export. (When the Jordanians captured the northern plant in 1948, they destroyed it rather than use it to produce materials. Today the eastern half of the southern park of the Dead Sea is used by Jordan to produce minerals.)

Before building the facilities, Novomeysky needed proof of concept for his idea for production of the minerals, but once proven feasible, it was implemented and remains in use until today. Basically, the water is put into relatively shallow drying pools having a large surface area. As the water evaporates, sodium chloride precipitates out.  The water is then moved to the next pool, where the process is repeated to collect the next mineral, and so on.  The result is that today Israel produces large amounts of potassium chloride, magnesium chloride, phosphorus, and bromine (of which it produces 40% of the world’s supply).  The NaCl, evidently, is of little commercial value.  The hotels of the Dead Sea area are all located along the shore of the southern part of the lake, specifically along drying pool no. 5.

As a patent attorney, I find it interesting that the same process has been in use for over 90 years, and – the flip side of that – that there are few if any patents related to the production process. Typically, with chemical processes, companies look for a new process or an improvement in an existing process, because any little bit of increase efficiency translates into reductions in cost and thus increases in profitability.  But sometimes you just can’t beat the older process - the Wacker process for production of acetaldehyde from ethylene (by palladium-catalyzed oxidation) has been used since the 1950’s and remains the primary method for production of acetaldehyde.  Additionally, you need the raw materials, and the facilities, and there aren’t many if any other places in the world that have the combination of these minerals in sufficient concentration in aqueous solution, with the area, sunshine and temperatures to facilitate efficient drying. In short, you don’t need to a patent a process (or improvements on that process) if there’s no chance of someone copying what you’re doing.

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I learned this week that the medieval rabbi Levi ben Gershon, aka Ralbag, who is probably best know for his commentaries on the Bible, also published a book of mathematics, Maaseh Khoshev, in which he made use of induction proofs (one my favorite things in high school math), and that he invented a tool referred to as Jacob’s Staff that was used for centuries by sailors.  There is a crater on the moon named after him.