There is another urban story in the rounds regarding what to do when a life-threatening event strikes. As is usual with these stories, the story of taking aspirin for a heart attack but not lying down is true in part, largely false, and needs a HUGE caution sign with further information.
The idea of taking aspirin for a heart attack dates back to 1991 with a public statement by an emergency medical doctor, but who had not done an actual study. (1). Even though almost 20 years have passed, the research regarding using aspirin to treat heart attacks is still from informal observation, i.e. reviewing the charts of people after a heart attack and seeing that people on aspirin generally lived longer. There is as yet no actual medical research study of placing some people on aspirin and using others as 'controls.' That is likely because the patent on aspirin expired decades ago and no drug company will fund an expensive test without a patent to control the market.
The first flag on this email is that it states an EMT (unnamed) suggested this treatment, but the email did not also include a confirmation from a named doctor or pharmacist, or cite another medical authority. Bayer (the aspirin company), in fact, received a warning letter from the FDA that such labeling and advertisement is illegal. (2). As the FDA warned Bayer, there are several situations in which aspirin should NOT be taken, even during a heart attack, and the consumer labeling would be too complex for a layperson to understand.
Even the American Heart Association has retreated to cautiously state that "research shows that getting an aspirin early in the treatment of a heart attack, along with other treatments EMTs and Emergency Department physicians provide, can significantly improve your chances of survival." (3, Emphasis added.)
Second, while the FDA acknowledges the idea of taking aspirin during the onset of a heart attack, the FDA does not discuss dosage, and in light of the Bayer warning, no authority likely would without a test that no one will perform. (4). Outside of the U.S., one or two of the 81-mg (a.k.a., child's aspirin) seems to be the suggested dose. (5). Bayer reported to the FDA that AspirinCardio, an aspirin-drug it markets OUTSIDE the U.S., states to take two of the 81-mg sizes in the event of a heart attack. (6). Bayer, however, did not state whether they made an actual study, or decided that recommending 2 pills would double the profit over recommending 1 pill.
Importantly, in the event of a heart attack, DO NOT take extra-strength size aspirin, and especially do not take the Bayer "crystal" aspirin. This formulation is dangerous because it contains 850 mg of aspirin (five times Bayer's suggested dose, which may cause stomach bleeding) plus caffeine, which raises blood pressure. (7).
The third concern is that if you are going to take aspirin during a heart attack, consider a chewable aspirin instead of swallowing a whole pill. The chewable version seems to work faster to reduce clotting than swallowing a whole pill. (8).
Lastly, challenge every email-based health advisory. This root of this "don't lie down" myth is well over a year old, yet EMTs and hospitals continue to place heart attack patients flat on a gurney or flat on a bed. (3). This fact alone is a certain signal that the whole email is to some degree false.
Also raising the caution flag is that this email is a revision of a March 2009 version that also lacks authoritative references. (1). Two other troubling aspects of this email are that early distributors that failed to substantiate the facts. One was a member of a group generally better known for name calling than fact checking. (9). Another source recommended Crystal Bayer for heart attacks under the title "Aspirin Crystal: Heart Attack’s New Dear Friend" from Bonsai International News and Reviews – of India. (10). Since when does heart attack have a "dear friend?"
(1) Barbara and David P. Mikkelson, Snopes.com, Bedside Companion, last updated: 1/12/2010, http://www.snopes.com/medical/drugs/aspirin.asp.
(2) Public Health Service, Food and Drug Administration, Warning Letter to Bayer HealthCare LLC, 10/27/2008, last updated: 07/08/2009, http://www.fda.gov/ICECI/EnforcementActions/WarningLetters/2008/ucm1048456.htm.
(3) Aspirin in Heart Attack and Stroke Prevention, American Heart Association, undated, http://www.americanheart.org/presenter.jhtml?identifier=4456.
(4) Dept. of Health and Human Services, Food and Drug Administration, Aspirin: Questions and Answers, last updated: 06/18/2009, http://www.fda.gov/Drugs/ResourcesForYou/Consumers/QuestionsAnswers/ucm071879.htm
(5) Robin Parks, MS, Aspirin for heart attack and unstable angina, last updated: May 14, 2007, http://health.yahoo.com/heart-medications/aspirin-for-heart-attack-and-unstable-angina/healthwise--tx4214.html, (citing Danchin N, Durand E (2006). Acute myocardial infarction, search date August 2004. Online version of BMJ Clinical Evidence. http://www.clinicalevidence.com.)
(6) Bayer, AspirinCardio, 11/26/03, Aspirin® in cardiovascular indications including primary prevention indications, http://www.fda.gov/ohrms/dockets/ac/03/briefing/4012B1_05_Appd%202-%20Cardiovascular%20Indications.pdf.
(7) Bayer Aspirin Pain Reliever Extra-Strength Quick Release Crystals, 20-Count Pouches (Pack of 2), http://www.amazon.com/exec/obidos/ASIN/B002GU79LK/, http://www.snopes.com/medical/drugs/aspirin.asp
(8) Harvard Health Publications, Aspirin for heart attack: Chew or swallow?, May 2005, http://www.health.harvard.edu/fhg/updates/update0505a.shtml.
(9) John Vescuso, NEW Aspirin - a reminder!, 2/27/2010, Valley Forge Patriots - Tea Party Conservatives, http://www.meetup.com/VFP-TeaParty09/messages/9324021.
(10) Bonsai International News and Reviews, Aspirin Crystal: Heart Attack’s New Dear Friend, 1/7/2010, http://www.newsandreviews.in/index.php/KnowNow/?title=aspirin-crystal-heart-attack-s-new-dear-.
Thursday, April 22, 2010
Monday, April 5, 2010
Copyright – Part I: Out-of-print and out-of-touch
Congress has a duty to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (1) Of these rights, the most contested and contentious area is undoubtedly the copyright. This article looks at a significant copyright issue in the print media and in the entertainment industry and how consumers drive infringement.
Print Media
In 2004, Google drew both praise and criticism by scanning and posting on Google a copy of almost every book and magazine from select libraries.
On the praise side, researchers and the public were finally able to access out-of-print books and periodicals, which are notoriously time consuming and expensive to find. Where but Google Books, for example, could a modern day person find the 1904 series "The Works of Daniel Defoe" by Daniel Defoe and Howard Maynadier (2) or read the June 15, 1953 edition of Life magazine about the coronation of Queen Elizabeth? (3)
The criticism came from The Authors Guild, the Association of American University Presses, the Association of American Publishers and other publishers. The posting rankled some people so much that The Authors Guild sued on behalf of three of its author members stating, "[i]t's not up to Google or anyone other than the authors, the rightful owners of these copyrights, to decide whether and how their works will be copied." (4)
Google's defense was to assert fair use (discussed later), and a concept called "sampling," i.e., "[a]t most we show only a brief snippet of text where their search term appears." (5) The Electronic Frontier Foundation, which "battles for digital freedom" also weighed in, asserting that fair use favored Google. (6) Neither defense was really successful, however, because fair use has statutorily defined applications, which did not apply, and sampling really means a small part, and half or more is clearly not a sample.
Fortunately, The Authors Guild and Google settled. (7) The authors and publishers are to receive $60 per copy, for at least $45 million, with $34.5 million to set up a Book Rights Registry, i.e. an ASCAP equivalent entity for writers, and of course, a chunk for the lawyers. (Note: The settlement consolidates multiple lawsuits, which will likely be appealed separately on different points of law.)
Entertainment
The other high visibility aspect of copyright is in the field of music and video entertainment. Until 1984, there weren't many problems with copyright infringement of either. Disc records (33, 45, etc.) has so many flaws that the public could not make a good copy, and copied magnetic tape (cassette or 8-track) suffered from distortion and degradation.
Meanwhile, Sony released the Betamax video cassette for the time-shifted viewing of television, and even the Supreme Court accepted that "time-shifting may enlarge the total viewing audience and that many producers are willing to allow private time-shifting to continue." (8) The central issue feared by the entertainment studios was the home or commercial storage of copied content that would result in a "great deal of harm" because "the copyright owner has lost control over his program." (9) By a 5-4 margin, the studios lost because they failed to show this was true.
Since then, the studios and industry groups have been careful to monitor and adopt technology only when it could either control the technology, persuade Congress to legislate penalties for unauthorized copying, or both. For example, in the 1990's, as Congress was harmonizing U.S. copyright law with international treaty, the studios enlisted the help of Rep. Sonny Bono to revise copyright law to forbid the time-honored concept of reverse engineering if the product was subject to copyright protection. (10)
The studios then used technology called "Content Scramble System" (CSS) and coded DVDs so people could not copy a DVD or watch imported DVDs. Of course, the new law is only a U.S. law, so a teenager in Norway reverse engineered a DVD player and created a program he called De-CSS so he watch a DVD he had bought but couldn't watch on his DVD player. He gave the program to a friend, and in short time, millions of people became criminals. The studios, not surprisingly, starting suing U.S. users of the De-CSS program and similar encoding-cracking programs. (11) In 2004, the studios also adopted the now familiar hard-line warning seen before every movie.
The unauthorized reproduction or distribution of this copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to five years in federal prison and a fine of $250,000.
While encryption, law and threats have had some curtailing affect to copyright infringement, the real disincentive occurs when the economics of rental and purchase prices achieve what many people have long said was the best option - the studios need to lower the acquisition price of purchases. There are two examples of this affect.
Driving Infringement
Currently, there are 50 million DVD sales monthly for about $18 each. (12) This sounds great for the studios until you factor in that DVD sales fell almost 14% to $5.4 billion in the first half of 2009. (13) While the move to downloaded content for the Apple iPod and similar portable players accounts for part of the decrease, the 8% rise in DVD rentals to 175 million DVD rentals each month at an average price of $3.50 says that the DVD is still a strong force in American video entertainment.
In addition, there are companies still trying to legally break CSS encryption. To legally sell a CD or DVD player, a device maker must have a CSS license. Kaleidescape bought such a license and sells an $8000 system for copying a DVD, and then playing the digital content without the DVD. Sued by the licensor for breach of contract, Kaleidescape lost an appeal on the scope of the contract, and is likely to lose on remand.
Here's the interesting part: The complaint did not allege copyright infringement, probably because the Kaleidescape system cannot replicate or distribute the copied DVD or CD. The real issue, however, is that the Kaleidescape system cannot distinguish between the user's purchased movies and those the user may have borrowed or rented. (14) Kaleidescape attempted to divert its liability by including a license agreement that mandates that a user will "never to load or permit someone else to load a commercial DVD or CD onto your Kaleidescape System ... that you do not rightfully own and possess." (15) Even so, a user can copy a DVD and create a library for unauthorized time-shifting, just as Sony feared.
Real Networks developed DVD copying software in 2008 and a $30 DVD copying system in early 2009. For its efforts, Real Networks received preliminary injunctions on both. The studios' attorney, Bart Williams, analogized DVD copying as using renting a car, buying a theatre ticket, or having a locker room press pass, and then keeping the car, filming the movie in the theatre, or stealing from the players. (16)
At one point, Kaleidescape tried a defense that people are not going to spend $8000 just to copy a bunch of $3.50 rentals. They know better. Apple's iTunes store (17) and the Napster file-sharing case (18) show that people want and will get inexpensive information and entertainment legally, illegally or in combination.
Overall, the intellectual property system works as envisioned more than 200 years ago. The public receives the promoted Progress of Science and useful Arts, and the Authors get compensated. The studios and industry groups need to pay attention. The more they continue to squeeze for high profit margins, the more out-of-touch they become with their market and technology.
Endnotes
(1) U.S. Constitution. Article I, Section 8.
(2) Volume 9 is available at: http://books.google.com/books?id=VioVAAAAYAAJ.
(3) Available at: http://books.google.com/books?id=A0gEAAAAMBAJ.
(4) Elinor Mills, CNET News, "Authors Guild sues Google over library project", September 20, 2005, available at: http://news.cnet.com/Authors-Guild-sues-Google-over-library-project/2100-1030_3-5875384.html.
(5) Available at: http://googleblog.blogspot.com/2005/09/google-print-and-authors-guild.html.
(6) Fred von Lohmann, Electronic Frontier Foundation, "Authors Guild Sues Google", September 20th, 2005, available at: http://www.eff.org/deeplinks/2005/09/authors-guild-sues-google.
(7) Roy Blount Jr., The Authors Guild, "$125 Million Settlement in Authors Guild v. Google", October 28, 2008, available at: http://www.authorsguild.org/advocacy/articles/member-alert-google.html.
(8) Sony Corp. V. Universal City Studios, Inc., 464 U.S. 417, 443 (US 1984).
(9) Sony, 464 U.S. at 451, citing 480 F. Supp. at 467.
(10) Digital Millennium Copyright Act, 17 U.S.C. §1201 (2009).
(11) See e.g., Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000); and United States v. Elcom, Ltd., 203 F. Supp. 2d 1111 (ND Cal. 2002).
(12) Bart Williams Munger, Tolles & Olson, State Bar of California Telephone Seminar, "Winning Strategies for Securing a TRO and/or Preliminary Injunction in IP Cases," October 27, 2009.
(13) Douglas A. McIntyre, "DVD Sales Crushed By Rentals, As Apple (AAPL) And Amazon (AMZN) Rise", September 22, 2009, available at http://247wallst.com/2009/09/22/dvd-sales-crushed-by-rentals-as-apple-aapl-and-amazon-amzn-rise/.
(14) DVD Copy Control Association, Inc., v. Kaleidescape, Inc., H031631 at 4, Santa Clara County Super. Ct. No. CV031829, Filed 8/12/09.
(15) Kaleidescape Service and License Agreement, provision 7, available at https://www.kaleidescape.com/activate/index.php.
(16) Bart Williams, State Bar of California, supra.
(17) Dawn C. Chmielewski, L.A. Times, "Hottest tracks to cost $1.29 at ITunes starting April 7", March 26, 2009, available at: http://articles.latimes.com/2009/mar/26/business/fi-cotown-itunes26.
(18) David Kravets, Wired, "Napster Trial Ends Seven Years Later, Defining Online Sharing Along the Way" August 31, 2007, available at: http://www.wired.com/threatlevel/2007/08/napster-trial-e/.
Print Media
In 2004, Google drew both praise and criticism by scanning and posting on Google a copy of almost every book and magazine from select libraries.
On the praise side, researchers and the public were finally able to access out-of-print books and periodicals, which are notoriously time consuming and expensive to find. Where but Google Books, for example, could a modern day person find the 1904 series "The Works of Daniel Defoe" by Daniel Defoe and Howard Maynadier (2) or read the June 15, 1953 edition of Life magazine about the coronation of Queen Elizabeth? (3)
The criticism came from The Authors Guild, the Association of American University Presses, the Association of American Publishers and other publishers. The posting rankled some people so much that The Authors Guild sued on behalf of three of its author members stating, "[i]t's not up to Google or anyone other than the authors, the rightful owners of these copyrights, to decide whether and how their works will be copied." (4)
Google's defense was to assert fair use (discussed later), and a concept called "sampling," i.e., "[a]t most we show only a brief snippet of text where their search term appears." (5) The Electronic Frontier Foundation, which "battles for digital freedom" also weighed in, asserting that fair use favored Google. (6) Neither defense was really successful, however, because fair use has statutorily defined applications, which did not apply, and sampling really means a small part, and half or more is clearly not a sample.
Fortunately, The Authors Guild and Google settled. (7) The authors and publishers are to receive $60 per copy, for at least $45 million, with $34.5 million to set up a Book Rights Registry, i.e. an ASCAP equivalent entity for writers, and of course, a chunk for the lawyers. (Note: The settlement consolidates multiple lawsuits, which will likely be appealed separately on different points of law.)
Entertainment
The other high visibility aspect of copyright is in the field of music and video entertainment. Until 1984, there weren't many problems with copyright infringement of either. Disc records (33, 45, etc.) has so many flaws that the public could not make a good copy, and copied magnetic tape (cassette or 8-track) suffered from distortion and degradation.
Meanwhile, Sony released the Betamax video cassette for the time-shifted viewing of television, and even the Supreme Court accepted that "time-shifting may enlarge the total viewing audience and that many producers are willing to allow private time-shifting to continue." (8) The central issue feared by the entertainment studios was the home or commercial storage of copied content that would result in a "great deal of harm" because "the copyright owner has lost control over his program." (9) By a 5-4 margin, the studios lost because they failed to show this was true.
Since then, the studios and industry groups have been careful to monitor and adopt technology only when it could either control the technology, persuade Congress to legislate penalties for unauthorized copying, or both. For example, in the 1990's, as Congress was harmonizing U.S. copyright law with international treaty, the studios enlisted the help of Rep. Sonny Bono to revise copyright law to forbid the time-honored concept of reverse engineering if the product was subject to copyright protection. (10)
The studios then used technology called "Content Scramble System" (CSS) and coded DVDs so people could not copy a DVD or watch imported DVDs. Of course, the new law is only a U.S. law, so a teenager in Norway reverse engineered a DVD player and created a program he called De-CSS so he watch a DVD he had bought but couldn't watch on his DVD player. He gave the program to a friend, and in short time, millions of people became criminals. The studios, not surprisingly, starting suing U.S. users of the De-CSS program and similar encoding-cracking programs. (11) In 2004, the studios also adopted the now familiar hard-line warning seen before every movie.
The unauthorized reproduction or distribution of this copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to five years in federal prison and a fine of $250,000.
While encryption, law and threats have had some curtailing affect to copyright infringement, the real disincentive occurs when the economics of rental and purchase prices achieve what many people have long said was the best option - the studios need to lower the acquisition price of purchases. There are two examples of this affect.
Driving Infringement
Currently, there are 50 million DVD sales monthly for about $18 each. (12) This sounds great for the studios until you factor in that DVD sales fell almost 14% to $5.4 billion in the first half of 2009. (13) While the move to downloaded content for the Apple iPod and similar portable players accounts for part of the decrease, the 8% rise in DVD rentals to 175 million DVD rentals each month at an average price of $3.50 says that the DVD is still a strong force in American video entertainment.
In addition, there are companies still trying to legally break CSS encryption. To legally sell a CD or DVD player, a device maker must have a CSS license. Kaleidescape bought such a license and sells an $8000 system for copying a DVD, and then playing the digital content without the DVD. Sued by the licensor for breach of contract, Kaleidescape lost an appeal on the scope of the contract, and is likely to lose on remand.
Here's the interesting part: The complaint did not allege copyright infringement, probably because the Kaleidescape system cannot replicate or distribute the copied DVD or CD. The real issue, however, is that the Kaleidescape system cannot distinguish between the user's purchased movies and those the user may have borrowed or rented. (14) Kaleidescape attempted to divert its liability by including a license agreement that mandates that a user will "never to load or permit someone else to load a commercial DVD or CD onto your Kaleidescape System ... that you do not rightfully own and possess." (15) Even so, a user can copy a DVD and create a library for unauthorized time-shifting, just as Sony feared.
Real Networks developed DVD copying software in 2008 and a $30 DVD copying system in early 2009. For its efforts, Real Networks received preliminary injunctions on both. The studios' attorney, Bart Williams, analogized DVD copying as using renting a car, buying a theatre ticket, or having a locker room press pass, and then keeping the car, filming the movie in the theatre, or stealing from the players. (16)
At one point, Kaleidescape tried a defense that people are not going to spend $8000 just to copy a bunch of $3.50 rentals. They know better. Apple's iTunes store (17) and the Napster file-sharing case (18) show that people want and will get inexpensive information and entertainment legally, illegally or in combination.
Overall, the intellectual property system works as envisioned more than 200 years ago. The public receives the promoted Progress of Science and useful Arts, and the Authors get compensated. The studios and industry groups need to pay attention. The more they continue to squeeze for high profit margins, the more out-of-touch they become with their market and technology.
Endnotes
(1) U.S. Constitution. Article I, Section 8.
(2) Volume 9 is available at: http://books.google.com/books?id=VioVAAAAYAAJ.
(3) Available at: http://books.google.com/books?id=A0gEAAAAMBAJ.
(4) Elinor Mills, CNET News, "Authors Guild sues Google over library project", September 20, 2005, available at: http://news.cnet.com/Authors-Guild-sues-Google-over-library-project/2100-1030_3-5875384.html.
(5) Available at: http://googleblog.blogspot.com/2005/09/google-print-and-authors-guild.html.
(6) Fred von Lohmann, Electronic Frontier Foundation, "Authors Guild Sues Google", September 20th, 2005, available at: http://www.eff.org/deeplinks/2005/09/authors-guild-sues-google.
(7) Roy Blount Jr., The Authors Guild, "$125 Million Settlement in Authors Guild v. Google", October 28, 2008, available at: http://www.authorsguild.org/advocacy/articles/member-alert-google.html.
(8) Sony Corp. V. Universal City Studios, Inc., 464 U.S. 417, 443 (US 1984).
(9) Sony, 464 U.S. at 451, citing 480 F. Supp. at 467.
(10) Digital Millennium Copyright Act, 17 U.S.C. §1201 (2009).
(11) See e.g., Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000); and United States v. Elcom, Ltd., 203 F. Supp. 2d 1111 (ND Cal. 2002).
(12) Bart Williams Munger, Tolles & Olson, State Bar of California Telephone Seminar, "Winning Strategies for Securing a TRO and/or Preliminary Injunction in IP Cases," October 27, 2009.
(13) Douglas A. McIntyre, "DVD Sales Crushed By Rentals, As Apple (AAPL) And Amazon (AMZN) Rise", September 22, 2009, available at http://247wallst.com/2009/09/22/dvd-sales-crushed-by-rentals-as-apple-aapl-and-amazon-amzn-rise/.
(14) DVD Copy Control Association, Inc., v. Kaleidescape, Inc., H031631 at 4, Santa Clara County Super. Ct. No. CV031829, Filed 8/12/09.
(15) Kaleidescape Service and License Agreement, provision 7, available at https://www.kaleidescape.com/activate/index.php.
(16) Bart Williams, State Bar of California, supra.
(17) Dawn C. Chmielewski, L.A. Times, "Hottest tracks to cost $1.29 at ITunes starting April 7", March 26, 2009, available at: http://articles.latimes.com/2009/mar/26/business/fi-cotown-itunes26.
(18) David Kravets, Wired, "Napster Trial Ends Seven Years Later, Defining Online Sharing Along the Way" August 31, 2007, available at: http://www.wired.com/threatlevel/2007/08/napster-trial-e/.
Monday, December 14, 2009
Wasted money on a provisional patent application
Here are six reasons not to waste money on a provisional patent application.
(1) Informed people know that only an issued patent from a non-provisional application has patent rights and that there is no such thing as a provisional patent. At best, a provisional patent application allows you to mark your product as "patent pending," which is like having a toy gun in your pocket. You must file a non-provisional application within 12-months to seek a patent.
(2) That "no one else has a patent on it" is not the sole test for a patent. The 'obviousness' requirement (35 U.S.C. § 103) is so easy to fail that over 99% of all non-provisional patent applications receive a first-review rejection for obviousness. The patent office even grades examiners on how quickly and well they reject patent applications. Overcoming an obviousness rejection is so difficult that only 50% of all patent applications even become a patent. Look at the following Patent Office website: http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm.
(3) A patentability search is flawed if the search omits patent applications, as these are the basis of many obviousness rejections.
(4) Patents issued before 1976 are not searchable by the idea. To properly search these patents, you have to understand the patent classification system, so many patent searches omit them. Look at the following Patent Office website and think, would a $149 patent search really cover all this? http://www.uspto.gov/web/patents/classification/selectnumwithtitle.htm (this is only the first level class, click GO for any one to see the second level.)
(5) All patent applications must still meet the legal requirements of teaching how to make and use the invention. (35 U.S.C. § 112(1)). A one to three-page provisional patent application is not likely to be able to meet the novelty and non-obviousness requirements (35 U.S.C. § 102 & 103) and show how to make and use the invention. (If anyone down-talks the legal requirements - run. While a provisional application is not generally reviewed, IF the examiner must look at the provisional application to prove your date of invention, and the provisional application fails - you lose the filing date, the reason you filed the provisional application, and the money you paid the company and to the Patent Office).
(6) Now that you know all this - do you really want someone to rush draft your idea in 8-hours? (No one works 24-hours around the clock - how awake would you be after working even 16 hours?)
(1) Informed people know that only an issued patent from a non-provisional application has patent rights and that there is no such thing as a provisional patent. At best, a provisional patent application allows you to mark your product as "patent pending," which is like having a toy gun in your pocket. You must file a non-provisional application within 12-months to seek a patent.
(2) That "no one else has a patent on it" is not the sole test for a patent. The 'obviousness' requirement (35 U.S.C. § 103) is so easy to fail that over 99% of all non-provisional patent applications receive a first-review rejection for obviousness. The patent office even grades examiners on how quickly and well they reject patent applications. Overcoming an obviousness rejection is so difficult that only 50% of all patent applications even become a patent. Look at the following Patent Office website: http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm.
(3) A patentability search is flawed if the search omits patent applications, as these are the basis of many obviousness rejections.
(4) Patents issued before 1976 are not searchable by the idea. To properly search these patents, you have to understand the patent classification system, so many patent searches omit them. Look at the following Patent Office website and think, would a $149 patent search really cover all this? http://www.uspto.gov/web/patents/classification/selectnumwithtitle.htm (this is only the first level class, click GO for any one to see the second level.)
(5) All patent applications must still meet the legal requirements of teaching how to make and use the invention. (35 U.S.C. § 112(1)). A one to three-page provisional patent application is not likely to be able to meet the novelty and non-obviousness requirements (35 U.S.C. § 102 & 103) and show how to make and use the invention. (If anyone down-talks the legal requirements - run. While a provisional application is not generally reviewed, IF the examiner must look at the provisional application to prove your date of invention, and the provisional application fails - you lose the filing date, the reason you filed the provisional application, and the money you paid the company and to the Patent Office).
(6) Now that you know all this - do you really want someone to rush draft your idea in 8-hours? (No one works 24-hours around the clock - how awake would you be after working even 16 hours?)
Saturday, November 14, 2009
Applying Copyright Registration to Subsequent Works by the Author
I received a call from a programmer asking whether the copyright registration of software written in one code language applies to the same program written in another code language. The answer was important to him because someone had taken his registered DOS language program and adapted it to different code languages. Since an author can sue for derivative infringement, I thought the answer would automatically be yes. I learned, however, that the answer is not so clear, but is more of a 'it depends'.
Copyright provides an author the right to "secur[e] for [a] limited Time[] … the exclusive Right to [his] respective Writing." U.S. Constitution, Article I § 8. Binary software code, and hardware embedded code are protectable under copyright. Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1246-48 (3rd Cir.1983), cert. denied, 464 U.S. 1033, 104 S.Ct. 690, 79 L.Ed.2d 158 (1984). The copyright owner has the exclusive right "to distribute copies … of the copyrighted work to the public by sale or other transfer of ownership." 17 U.S.C. § 106(3). A copyright also includes the exclusive right "to reproduce the copyrighted work in copies" and "to prepare derivative works based upon the copyrighted work." 17 U.S.C. § 106(1) and (2). To bring an action for copyright infringement, the work must be registered with the Copyright Office. 17 U.S.C. § 411(b).
Copyright provides an author the right to "secur[e] for [a] limited Time[] … the exclusive Right to [his] respective Writing." U.S. Constitution, Article I § 8. Binary software code, and hardware embedded code are protectable under copyright. Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1246-48 (3rd Cir.1983), cert. denied, 464 U.S. 1033, 104 S.Ct. 690, 79 L.Ed.2d 158 (1984). The copyright owner has the exclusive right "to distribute copies … of the copyrighted work to the public by sale or other transfer of ownership." 17 U.S.C. § 106(3). A copyright also includes the exclusive right "to reproduce the copyrighted work in copies" and "to prepare derivative works based upon the copyrighted work." 17 U.S.C. § 106(1) and (2). To bring an action for copyright infringement, the work must be registered with the Copyright Office. 17 U.S.C. § 411(b).
To qualify for registration, the work must be an "original work of authorship." 17 U.S.C. § 102(a). The work may be a derivative work "based upon preexisting works, such as a translation, … or any other form in which a work may be recast, transformed, or adapted." 17 U.S.C. § 101. This originality must be "something of substance added making the piece to some extent a new work." Woods v. Bourne Co., 60 F.3d 978, 991 (2d Cir. 1995) (Woods II). Thus, to qualify for, i.e., to require registration, the new work must have an "unmistakable dash of originality." Weissmann v. Freeman, 868 F.2d 1313 (2d Cir.), cert. denied, 493 U.S. 883 (1989). (Holding that a separate copyright protection existed in a derivative work based upon a jointly authored work.).
There is a distinction, however, between a translation of another work, i.e., a work "recast, transformed, or adapted" and a translation of software. "Translation" as historically used in § 101 applies to the translation of literary works, performance works and similar works. The 1870 Copyright Act reversed a ruling that a German translation of "Uncle Tom's Cabin" was not infringement. Stowe v. Thomas, 23 F. Cas. 201, 207 (C.C.E.D. Pa. 1853). Only then could "authors … reserve the right to dramatize or to translate their own works." Act of July 8, 1870, ch. 230 § 86, 41st Cong., 2d Sess., 16 Stat. 198. The subsequent revision to the Copyright Act gave the author the right "to translate the copyrighted work into other languages or dialects." 1909 Copyright Act §1(b). In fact, the term "derivative work" with "translation" first appeared in the 1976 Copyright Act, four years before the definition of "computer program" first appeared in the Copyright Act. Pub. L. 96-517, Dec. 12, 1980, 94 Stat. 3015. Consequently, the term "translation" as a derivative work does not apply to software.
To require registration of something rewritten, there must be "editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship." 17 U.S.C. § 101. For example, new registration is required when the derivative work adds new voices, horns and lyrics. Murray Hill Publications Inc. v. ABC Communications Inc., 264 F.3d 622 (6th Cir. 2001). (Affirming dismissal of suit on grounds of non-registration as required by §411(a) of contested derivative work).
The key aspect of rewriting software from one code language to another code language, however, is to have identicalness of program ideas, structure and overall organization between the programs, irrespective of the code language. Whelan Assoc. v. Jaslow Dental Lab, Inc., 797 F.2d 1222, 1229, 230 USPQ 481 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987). (Affirming infringement on substantial similarity of program ideas, structure and overall organization.). In the Second Circuit, this is the "Substantial Similarity" test for copyright infringement. Steinberg v. Columbia Pictures, 663 F. Supp. 706 (D.C.S.D.N.Y. 1987).
The "Substantial Similarity" test demonstrates that the continuity of registration through language translation exists for the same reason that software is infringed, i.e. because of the substantial similarity remaining after "filtering out the unprotected aspects of an allegedly infringed program and then comparing the end product to the structure of the suspect program." Computer Associates International v. Altai Inc., 982 F.2d 693, 714, (2d Cir. 1992).
There are, however, some distinctions to be made. The Copyright statutes require that when "the work has been prepared in different versions, each version constitutes a separate work." 17 U.S.C. §101(14). This is not applicable to software where the same essential function remains between the versions. Montgomery v. Noga, 168 F.3d 1282 (11th Cir. 1999). (Holding for infringement of a software program containing only 70% of the registered version despite that the infringed 'version' was not separately registered).
Another important distinction is that translating a software program from one code language to another code language is not the same as making a copy for the "essential step" of use of the program, archival storage, maintenance, or repair which in not copyright infringement. 17 U.S.C. § 117. Likewise, registration does not extend protection to the standardized information, a.k.a. "externalities" that decided the sequence and organization of the software, making them unprotectable. Plains Cotton Coop. Ass'n v. Goodpasture Computer Serv., 807 F.2d 1256 (5th Cir. 1987). Code translation, however, provides the same expression of the same idea as in the original code. Only the computer or a programmer could tell the difference.
In other words, software requires separate registration only when it is "different enough from the original to be regarded as a new work or must contain a substantial amount of new material." Circular 14, U.S. Copyright Office, Rev. 01/2009. Consequently, the registration of software in one code language applies to the software in another code language having the same program ideas, structure and overall organization. Changes to any of these creates a new work - and requires a separate registration.
Tuesday, September 1, 2009
To insure, or not to insure: that is the question
On August 6, 2009, Zane F. Pollard, M.D. posted his view on the current health care crisis. In his view, nothing should change. His posting, "ObamaCare and me" is at
http://www.americanthinker.com/2009/08/obamacare_and_me.html.
Reply to Dr. Pollard, by Gerald R. Prettyman, J.D., LL.M. (Intellectual Property), B.S.M.E, Certified Quality Engineer (1999-2001), Medical Laboratory Technician and Hospital Corpsman, U.S. Navy (1976-1982).
"I have been sitting quietly on the sidelines watching all of this national debate on healthcare. It is time for me to bring some clarity to the table by explaining many of the problems from the perspective of a" guy that actually pays the full cost for his family's private insurance.
As usual, the distractors are distorting history and overlooking facts to predict a false future as certainty, and making unsupported conclusions.
Dr. Pollard first cites "three young children on Medicaid who had corneal ulcers" and complains that" the antibiotic needed for the eradication of the infection was not on the approved Medicaid list." He overlooks that they were on Medicaid because of poverty or disability (the requirement to be on Medicaid), so that means that their mother did not have and could not afford or qualify for private insurance.
Dr. Pollard also overlooks the fact that the private health insurers also have "approved" medication lists. A drug is not prohibited if not approved. It has less or no subsidy from the insurer. My private insurer constantly sends me letters demanding that I drop my life-saving brand name medication and suggests I take an almost useless generic drug. I'm lucky enough to afford the higher out-of-pocket cost - at least for now. My private insurer also suggests that my doctor should write an illegal prescription for more than one-month's worth of medication. How's that for ethical behavior?
Dr. Pollard cites a doctor that quit the practice of medicine. Some doctors are happy with the current private insurer system. Many are not. One of my doctors (and a good one too) quit medicine in 2001 because the private insurers coding program (a.k.a. DRG) and different forms for every insurer were just too much work. One of the network news programs just last week (around August 24th) interviewed a doctor who has a staff of 5 people - just to handle private insurer billing. That alone significantly drives her expenses to overwhelming.
Some persons are very happy with their private insurer - many others and I are not. As a self-employed person, my family's private insurance costs me $11,640 a year - this year. Based on "past performance," my cost next year will be $12,200, and a thousand dollars more each year thereafter. By 2020, my private medical insurance premiums will be about $25,000 per year.
So, where does my premium money go? Here's some fact.
In 2001, Anthem's CEO Glasscock got $3.1 million in salary and bonuses, as well as a $12.4 million long-term incentive payout. (A doctor challenged this at a board meeting).
Here's a chart of Health Care CEO compensation in 2002.
First line: Company and Executive
Second line: 2002 Salary, Bonus, Other*, 2002 Compensation
Aetna, John W. Rowe, MD chair and CEO
$1,000,000 -----$2,500,000 -----$89,490 -----$3,589,490
Anthem, Larry C. Glasscock, chair and CEO
$980,000 -----$2,352,000 -----$3,525,839 -----$6,857,839 (big drop from 2001)
CIGNA, H. Edward Hanway, chair and CEO
$1,021,900 -----$0 -----$1,169,100 -----$2,191,000
Health Net, Jay M. Gellert, president and CEO
$754,808 -----$700,000 -----$72,011 -----$1,526,819
Humana, Michael B. McCallister, president and CEO
$700,000 -----$612,500 -----$336,472 -----$1,648,972
PacifiCare, Howard G. Phanstiel, president and CEO
$917,309 -----$1,690,000 -----$398,472 -----$3,005,781
WellPoint, Leonard D. Schaeffer, chair and CEO
$1,246,155 -----$5,690,916 -----$347,724 -----$7,284,795
UnitedHealth, Group William W. McGuire, MD, chair and CEO
$1,896,154 -----$5,275,000 -----$2,286,243 -----$9,457,397
* "Other" may include long-term compensation payouts of either cash or restricted stock, 401(k) matching contributions, transportation such as cars and plane travel, expense allowances and insurance premiums.
Here are some of the numbers for 2003.
Company, CEO --- 2003 Pay (millions)
Anthem Inc., Larry Glasscock --- $50.9 million (guess the drop in pay didn't last long)
Coventry Health, Allen Wise --- $14.6 million
Wellpoint Health, Leonard Schaeffer --- $27.4 million
Sierra Health, Anthony Marlon --- $3.6 million
UnitedHealth Grp., William McGuire --- $30.0 million
Amerigroup Corp., Jeffrey McWaters --- $2.9 million
Wellchoice Inc., Michael Stocker --- $6.9 million
Aetna Inc., John Rowe --- $16.2 million
Pacificare Health, Howard Phanstiel --- $10.2 million
Oxford Health, Charles Berg --- $5.4 million
Health Net Inc., Jay Gellert --- $7.9 million
Humana Inc., Michael McCallister --- $6.6 million
Private insurance premiums DO NOT go to the doctors.
Family practice, $47.28 per hour
Internal medicine, $51.38 per hour
Neurology, $63.00 per hour
Ob-gyn, $79.58 per hour
General surgery, $83.74 per hour
Otolaryngology, $84.99 per hour
Cardiology, $96.31 per hour
Physicians Search 2002 survey (physicians with three or more years experience).
Dr. Pollard also says that the new plan will drive physicians out of specialties. As shown above, specialists earn more than family practice doctors, who are supposed to be our front line to medical care. We already have a tremendous shortage of family practice physicians because of the pay disparity. The wait time to see a family practice doctor can be as long as two weeks or more. The lack of general practitioners in some locations causes people to use the emergency room when a general practitioner is better suited - but there just isn't a family practice doctor available for two weeks. This drives up hospital costs so hospitals close their emergency rooms. Trauma patients in Galveston, Texas have to be airlifted to Houston because there isn't an emergency room at the hospital anymore.
And contrary to the bigoted viewpoint, 98% of these people are not illegal immigrants. Even Dr. Polland admits that he operates on only 2 illegal immigrants each month. I suspect he sees well more than 100 patients per month, so the true percentage of illegal immigrants is much lower.
Dr. Pollard also says that that the new plan will make it illegal for any doctor to accept more than the government-allowed rate. This is not true. The law applies to, and has for a long time, as Dr. Pollard admitted, a doctor receiving federal funds (e.g., Medicare). Don't worry about the rich, though. The rich will still have well-paid private personal doctors (just like Michael Jackson - his doctor received $150,000 per month!) So much for the 'best.'
Dr. Pollard also says that the current system is best. On the contrary, private insurance premiums DO NOT go for top of the line patient care.
In 2004, a good friend of mine suffered a massive stroke that has left him partially paralyzed. Before his stroke, he suffered several TIAs (a.k.a. mini-strokes), but his private insurance refused to pay for a diagnostic test that would have detected the source of his stroke risk. Lifeline Screening even warns that private insurance will not pay for such testing. (Not that they don't lie - the test is recommended only for persons over 60, but Lifeline Screening fails to add that bit of clarification).
After the stroke, the private insurer booted him out of therapy because his recovery was 'good enough' for him to survive. He still has trouble walking and cannot use his right arm, but that's good enough for the private insurer.
I was also stationed at the Naval Hospital in Oakland, California (Oak Knoll), albeit from 1977 to 1982. Dr. Pollard failed to mention that until mid-war, Oak Knoll had only the same barracks-style facilities that were constructed during World War II. From 1969 until its closure in 1996, Oak Knoll had a beautiful nine-story hospital with 20 plus wards and many clinics excelling at treating many, many thousands of patients every year - active duty, dependents, retirees and local civilian trauma patients.
Dependent care was a topic of concern then, as well during the Vietnam war. As Dr. Pollard alluded, the difficulty always was that Oak Knoll was first and foremost a facility for treating wounded active duty personnel who were not closer to Honolulu, San Diego, or Bremerton, Washington - Oak Knoll was responsible for a BIG area. During the Vietnam war, about 25% of the San Francisco Bay Area was eligible for care at Oak Knoll. All the while, Oak Knoll received many overseas causalities for long-term care and rehabilitation. At times, the onslaught of dependent civilians coming in for unnecessary or untimely treatment was ridiculous. The fact was treatment was free meant we had a lot of civilians coming in for treatment when they should have gone to the drugstore for an over the counter medicine. That Dr. Pollard's wife had a "private internist in Beverly Hills" merely demonstrates his bourgeoisie attitude towards the unprivileged.
It is also unfortunate that Dr. Pollard is a sexist. He says, "the US government has mandated gender equity in admissions to medical schools. That means that for the past 15 years somewhere between 49 and 51% of each entering class are females." He thinks women should stay out of medicine, because he says, "the average career of a woman in medicine now is only 8-10 years and the average work week for a female in medicine is only 3-4 days." Is Dr. Pollard really the person we want to listen to for public policy?
The bashing of foreign healthcare systems is both incorrect and irrelevant. Those lies were disproved TWO years ago, before Obama was even nominated to run.
After thirty plus years of working with many thousands of people both in the private and public sectors, I've learned that 99% of people are both honest and work for the benefit of society as a whole. There is, however, a one per cent of the population with such greed and self-interest, that they must feed on society in whatever form they can - by violence, deception, or sowing graft. Our society is well rehearsed at finding the first, somewhat uncertain in finding and handling the second, but only capable of even detecting the last only after enormous harm has occurred. Thus, I can conclusively say that BOTH SECTORS ARE BROKEN! (Expletive Deleted.) The distinction in either sector is always the people managing the organization and operating it on a day-to-day basis.
Dr. Pollard is likely a good person, and a great doctor. His detachment from his patients' condition, in spite of his service to them, is a disservice. Dr. Pollard is unpaid for some his services because those patients cannot afford private insurance.
The private insurance industry in the U.S. has an oligopoly, which is a near-monopoly, on health care. The high entrance costs bar small competitors from having an affect, but once they do reach such a size, they are bought out - capitalism at its best. Capitalism is best adept at providing goods and services at a price that suits most of society. Capitalism, however, is not adept at providing social services to all sectors of society. Our Dwight D. Eisenhower National System of Interstate and Defense Highways provides transportation access regardless of social and income strata. The private insurance system, on the other hand, will always leave some persons without ready-access to medical care. Medicare requires poverty or disability - for which the recent out-of-work or under employed do not qualify. Unfortunately, this country's finances have been stretched too thin by war, whether true or fabricated, graft by government contractors, and shoring of the finances of the wealthy and the well connected.
Irrespective of your political party and beliefs - the health care system is clearly broken, but obviously not broke. The top 12 health care CEOs earn collectively over $182 million annually. The Obama plan is not good for these 12 CEOs. They are spending millions against it - but they can afford it. Private health insurance started as a post-WWII incentive for workers to join a company. Instead of bartering with the doctor, people could pass the cost of medical care to the insurance company, which merely raised rates as expenses and CEO wages increased. As the recession goes on, more people will lose their jobs and their health insurance. At a cost of $12,000 a year, many people cannot afford private health care insurance. The question is whether as a society, can we afford to keep the current system?
Is there anyone intelligent enough and not in conflict to solve this?
http://www.americanthinker.com/2009/08/obamacare_and_me.html.
Reply to Dr. Pollard, by Gerald R. Prettyman, J.D., LL.M. (Intellectual Property), B.S.M.E, Certified Quality Engineer (1999-2001), Medical Laboratory Technician and Hospital Corpsman, U.S. Navy (1976-1982).
"I have been sitting quietly on the sidelines watching all of this national debate on healthcare. It is time for me to bring some clarity to the table by explaining many of the problems from the perspective of a" guy that actually pays the full cost for his family's private insurance.
As usual, the distractors are distorting history and overlooking facts to predict a false future as certainty, and making unsupported conclusions.
Dr. Pollard first cites "three young children on Medicaid who had corneal ulcers" and complains that" the antibiotic needed for the eradication of the infection was not on the approved Medicaid list." He overlooks that they were on Medicaid because of poverty or disability (the requirement to be on Medicaid), so that means that their mother did not have and could not afford or qualify for private insurance.
Dr. Pollard also overlooks the fact that the private health insurers also have "approved" medication lists. A drug is not prohibited if not approved. It has less or no subsidy from the insurer. My private insurer constantly sends me letters demanding that I drop my life-saving brand name medication and suggests I take an almost useless generic drug. I'm lucky enough to afford the higher out-of-pocket cost - at least for now. My private insurer also suggests that my doctor should write an illegal prescription for more than one-month's worth of medication. How's that for ethical behavior?
Dr. Pollard cites a doctor that quit the practice of medicine. Some doctors are happy with the current private insurer system. Many are not. One of my doctors (and a good one too) quit medicine in 2001 because the private insurers coding program (a.k.a. DRG) and different forms for every insurer were just too much work. One of the network news programs just last week (around August 24th) interviewed a doctor who has a staff of 5 people - just to handle private insurer billing. That alone significantly drives her expenses to overwhelming.
Some persons are very happy with their private insurer - many others and I are not. As a self-employed person, my family's private insurance costs me $11,640 a year - this year. Based on "past performance," my cost next year will be $12,200, and a thousand dollars more each year thereafter. By 2020, my private medical insurance premiums will be about $25,000 per year.
So, where does my premium money go? Here's some fact.
In 2001, Anthem's CEO Glasscock got $3.1 million in salary and bonuses, as well as a $12.4 million long-term incentive payout. (A doctor challenged this at a board meeting).
Here's a chart of Health Care CEO compensation in 2002.
First line: Company and Executive
Second line: 2002 Salary, Bonus, Other*, 2002 Compensation
Aetna, John W. Rowe, MD chair and CEO
$1,000,000 -----$2,500,000 -----$89,490 -----$3,589,490
Anthem, Larry C. Glasscock, chair and CEO
$980,000 -----$2,352,000 -----$3,525,839 -----$6,857,839 (big drop from 2001)
CIGNA, H. Edward Hanway, chair and CEO
$1,021,900 -----$0 -----$1,169,100 -----$2,191,000
Health Net, Jay M. Gellert, president and CEO
$754,808 -----$700,000 -----$72,011 -----$1,526,819
Humana, Michael B. McCallister, president and CEO
$700,000 -----$612,500 -----$336,472 -----$1,648,972
PacifiCare, Howard G. Phanstiel, president and CEO
$917,309 -----$1,690,000 -----$398,472 -----$3,005,781
WellPoint, Leonard D. Schaeffer, chair and CEO
$1,246,155 -----$5,690,916 -----$347,724 -----$7,284,795
UnitedHealth, Group William W. McGuire, MD, chair and CEO
$1,896,154 -----$5,275,000 -----$2,286,243 -----$9,457,397
* "Other" may include long-term compensation payouts of either cash or restricted stock, 401(k) matching contributions, transportation such as cars and plane travel, expense allowances and insurance premiums.
Here are some of the numbers for 2003.
Company, CEO --- 2003 Pay (millions)
Anthem Inc., Larry Glasscock --- $50.9 million (guess the drop in pay didn't last long)
Coventry Health, Allen Wise --- $14.6 million
Wellpoint Health, Leonard Schaeffer --- $27.4 million
Sierra Health, Anthony Marlon --- $3.6 million
UnitedHealth Grp., William McGuire --- $30.0 million
Amerigroup Corp., Jeffrey McWaters --- $2.9 million
Wellchoice Inc., Michael Stocker --- $6.9 million
Aetna Inc., John Rowe --- $16.2 million
Pacificare Health, Howard Phanstiel --- $10.2 million
Oxford Health, Charles Berg --- $5.4 million
Health Net Inc., Jay Gellert --- $7.9 million
Humana Inc., Michael McCallister --- $6.6 million
Private insurance premiums DO NOT go to the doctors.
Family practice, $47.28 per hour
Internal medicine, $51.38 per hour
Neurology, $63.00 per hour
Ob-gyn, $79.58 per hour
General surgery, $83.74 per hour
Otolaryngology, $84.99 per hour
Cardiology, $96.31 per hour
Physicians Search 2002 survey (physicians with three or more years experience).
Dr. Pollard also says that the new plan will drive physicians out of specialties. As shown above, specialists earn more than family practice doctors, who are supposed to be our front line to medical care. We already have a tremendous shortage of family practice physicians because of the pay disparity. The wait time to see a family practice doctor can be as long as two weeks or more. The lack of general practitioners in some locations causes people to use the emergency room when a general practitioner is better suited - but there just isn't a family practice doctor available for two weeks. This drives up hospital costs so hospitals close their emergency rooms. Trauma patients in Galveston, Texas have to be airlifted to Houston because there isn't an emergency room at the hospital anymore.
And contrary to the bigoted viewpoint, 98% of these people are not illegal immigrants. Even Dr. Polland admits that he operates on only 2 illegal immigrants each month. I suspect he sees well more than 100 patients per month, so the true percentage of illegal immigrants is much lower.
Dr. Pollard also says that that the new plan will make it illegal for any doctor to accept more than the government-allowed rate. This is not true. The law applies to, and has for a long time, as Dr. Pollard admitted, a doctor receiving federal funds (e.g., Medicare). Don't worry about the rich, though. The rich will still have well-paid private personal doctors (just like Michael Jackson - his doctor received $150,000 per month!) So much for the 'best.'
Dr. Pollard also says that the current system is best. On the contrary, private insurance premiums DO NOT go for top of the line patient care.
In 2004, a good friend of mine suffered a massive stroke that has left him partially paralyzed. Before his stroke, he suffered several TIAs (a.k.a. mini-strokes), but his private insurance refused to pay for a diagnostic test that would have detected the source of his stroke risk. Lifeline Screening even warns that private insurance will not pay for such testing. (Not that they don't lie - the test is recommended only for persons over 60, but Lifeline Screening fails to add that bit of clarification).
After the stroke, the private insurer booted him out of therapy because his recovery was 'good enough' for him to survive. He still has trouble walking and cannot use his right arm, but that's good enough for the private insurer.
I was also stationed at the Naval Hospital in Oakland, California (Oak Knoll), albeit from 1977 to 1982. Dr. Pollard failed to mention that until mid-war, Oak Knoll had only the same barracks-style facilities that were constructed during World War II. From 1969 until its closure in 1996, Oak Knoll had a beautiful nine-story hospital with 20 plus wards and many clinics excelling at treating many, many thousands of patients every year - active duty, dependents, retirees and local civilian trauma patients.
Dependent care was a topic of concern then, as well during the Vietnam war. As Dr. Pollard alluded, the difficulty always was that Oak Knoll was first and foremost a facility for treating wounded active duty personnel who were not closer to Honolulu, San Diego, or Bremerton, Washington - Oak Knoll was responsible for a BIG area. During the Vietnam war, about 25% of the San Francisco Bay Area was eligible for care at Oak Knoll. All the while, Oak Knoll received many overseas causalities for long-term care and rehabilitation. At times, the onslaught of dependent civilians coming in for unnecessary or untimely treatment was ridiculous. The fact was treatment was free meant we had a lot of civilians coming in for treatment when they should have gone to the drugstore for an over the counter medicine. That Dr. Pollard's wife had a "private internist in Beverly Hills" merely demonstrates his bourgeoisie attitude towards the unprivileged.
It is also unfortunate that Dr. Pollard is a sexist. He says, "the US government has mandated gender equity in admissions to medical schools. That means that for the past 15 years somewhere between 49 and 51% of each entering class are females." He thinks women should stay out of medicine, because he says, "the average career of a woman in medicine now is only 8-10 years and the average work week for a female in medicine is only 3-4 days." Is Dr. Pollard really the person we want to listen to for public policy?
The bashing of foreign healthcare systems is both incorrect and irrelevant. Those lies were disproved TWO years ago, before Obama was even nominated to run.
After thirty plus years of working with many thousands of people both in the private and public sectors, I've learned that 99% of people are both honest and work for the benefit of society as a whole. There is, however, a one per cent of the population with such greed and self-interest, that they must feed on society in whatever form they can - by violence, deception, or sowing graft. Our society is well rehearsed at finding the first, somewhat uncertain in finding and handling the second, but only capable of even detecting the last only after enormous harm has occurred. Thus, I can conclusively say that BOTH SECTORS ARE BROKEN! (Expletive Deleted.) The distinction in either sector is always the people managing the organization and operating it on a day-to-day basis.
Dr. Pollard is likely a good person, and a great doctor. His detachment from his patients' condition, in spite of his service to them, is a disservice. Dr. Pollard is unpaid for some his services because those patients cannot afford private insurance.
The private insurance industry in the U.S. has an oligopoly, which is a near-monopoly, on health care. The high entrance costs bar small competitors from having an affect, but once they do reach such a size, they are bought out - capitalism at its best. Capitalism is best adept at providing goods and services at a price that suits most of society. Capitalism, however, is not adept at providing social services to all sectors of society. Our Dwight D. Eisenhower National System of Interstate and Defense Highways provides transportation access regardless of social and income strata. The private insurance system, on the other hand, will always leave some persons without ready-access to medical care. Medicare requires poverty or disability - for which the recent out-of-work or under employed do not qualify. Unfortunately, this country's finances have been stretched too thin by war, whether true or fabricated, graft by government contractors, and shoring of the finances of the wealthy and the well connected.
Irrespective of your political party and beliefs - the health care system is clearly broken, but obviously not broke. The top 12 health care CEOs earn collectively over $182 million annually. The Obama plan is not good for these 12 CEOs. They are spending millions against it - but they can afford it. Private health insurance started as a post-WWII incentive for workers to join a company. Instead of bartering with the doctor, people could pass the cost of medical care to the insurance company, which merely raised rates as expenses and CEO wages increased. As the recession goes on, more people will lose their jobs and their health insurance. At a cost of $12,000 a year, many people cannot afford private health care insurance. The question is whether as a society, can we afford to keep the current system?
Is there anyone intelligent enough and not in conflict to solve this?
Monday, July 13, 2009
Should product features of touch, smell or taste be eligible for trademark?
Duets Blog asked about the use of texture as a trademark.
I'm in favor of registering anything (compatible with public policy) that can put the public on reasonable notice that the thing is used a trademark. By reasonable notice, I mean there is consistent reproducibility in the product or service and adequacy of the description in the registration.
As a former manufacturing engineer, I am familiar with the problems of reproducible manufacturability and in reliable measurement (description). Fortunately, technology has reduced both to essentially 'no problem' for many fields of manufacture.
As such, the question of reasonable notice now shifts to adequacy of the description for public notice. While an embossed sample apparently sufficed for OLD PARR (Ecuador?), current electronic searches (via TESS, the Internet, etc.) require a textual description with a reasonable pictorial facsimile for non-word visual marks. This is not to prohibit embossed masters for registration, but the public needs reasonable notice without having to seek and buy every competitive product in the field. Some tactile marks could meet the textual description with a reasonable pictorial facsimile criterion. More complicated tactile marks might require dimensional (surface finish) descriptions, the measurement of which is now standardized and is therefore adequate for putting the public on notice. Holography would also be a good descriptive viewer with proper technology (but not on my monitor as yet).
Moving on to scent, non-functional single description scents have had minor success for registration as a trademark, but a description as a mix of scents failed (http://www.caslon.com.au/trademarkprofile11.htm). From an engineering and forensic point of view, a description based on gas-liquid chromatography results would likely have reproducibility, adequacy of the description, and be electronically searchable. Multiple blends of scents might be registered if the GLC description truly described the scent as reproduced with pure chemicals. Even if there were some difficulty to electronic searches, the difficulty would likely not be more than patent lawyers (like me) currently work with for prior art searches (and yes, it leaves a lot to be desired).
This leaves the fifth sense, taste, but taste analysis sufficient for reproducible manufacturing is still a skilled talent outside of an engineered metric. As evident by the description of fruit flavor and oak tone in wine, taste relies considerably on smell. The wide range of genetic ability to taste various compounds combined with age and culture related considerations makes an adequate description likely impossible at any stage of technology.
CHEERS!
I'm in favor of registering anything (compatible with public policy) that can put the public on reasonable notice that the thing is used a trademark. By reasonable notice, I mean there is consistent reproducibility in the product or service and adequacy of the description in the registration.
As a former manufacturing engineer, I am familiar with the problems of reproducible manufacturability and in reliable measurement (description). Fortunately, technology has reduced both to essentially 'no problem' for many fields of manufacture.
As such, the question of reasonable notice now shifts to adequacy of the description for public notice. While an embossed sample apparently sufficed for OLD PARR (Ecuador?), current electronic searches (via TESS, the Internet, etc.) require a textual description with a reasonable pictorial facsimile for non-word visual marks. This is not to prohibit embossed masters for registration, but the public needs reasonable notice without having to seek and buy every competitive product in the field. Some tactile marks could meet the textual description with a reasonable pictorial facsimile criterion. More complicated tactile marks might require dimensional (surface finish) descriptions, the measurement of which is now standardized and is therefore adequate for putting the public on notice. Holography would also be a good descriptive viewer with proper technology (but not on my monitor as yet).
Moving on to scent, non-functional single description scents have had minor success for registration as a trademark, but a description as a mix of scents failed (http://www.caslon.com.au/trademarkprofile11.htm). From an engineering and forensic point of view, a description based on gas-liquid chromatography results would likely have reproducibility, adequacy of the description, and be electronically searchable. Multiple blends of scents might be registered if the GLC description truly described the scent as reproduced with pure chemicals. Even if there were some difficulty to electronic searches, the difficulty would likely not be more than patent lawyers (like me) currently work with for prior art searches (and yes, it leaves a lot to be desired).
This leaves the fifth sense, taste, but taste analysis sufficient for reproducible manufacturing is still a skilled talent outside of an engineered metric. As evident by the description of fruit flavor and oak tone in wine, taste relies considerably on smell. The wide range of genetic ability to taste various compounds combined with age and culture related considerations makes an adequate description likely impossible at any stage of technology.
CHEERS!
Saturday, July 11, 2009
LifeLine Screening - Stretching fluff into false advertising?
To: Karen R. Law
Director of Clinical Operations
LifeLine Screening
6150 Oak Tree Blvd.
Independence OH 44131
Dear Ms. Law,
Thank you for your letter of invitation for LifeLine Screening in Pleasanton on July 17th. Two of your statements are quite interesting.
"Unfortunately, 4 out of 5 people that suffer a stroke have no apparent symptoms or warning signs."
and
"Ultrasound screenings have proven to be accurate in detecting vascular disease prior to active warning signs and before a major medical incident such as stoke or sudden death from aneurysm rupture."
Your first statement is, "unfortunately," unsubstantiated, and as shown below, appears to be an outright lie, while your second statement takes out of context the position of the Society for Vascular Surgery.
Your letter lacks a reference for the first statement, and I have not found a reference to authenticate it. None of the information I found from by American Heart Association (1), the National Stroke Association (2) or the Society for Vascular Surgery (3) support your statement. The AHA, NSA and SVS information, in fact, regarding silent cerebral infarction strongly suggests your statement is untrue.
There are some related facts that I found. "Four out of five American families will be touched by stroke at some time." (4) "About four out of five people who die of coronary heart disease are 65 or older."(5) "Up to 80% of strokes are preventable."(6) These related facts, even taken together and with inferences, however, do not support that your statement is true.
Every reference I found containing your "4 out of 5" statement was an advertisement for your services. These include the Larry King Cardiac Foundation, the American Senior Benefits Association, and other organizations, such as a letter like yours that I received in April from the American Society for Mechanical Engineers. Based on the lack of authentication, I conclude that your statement is fabricated.
The closest independent supporting statement I found was from a doctor who stated that Peggy Fleming said in 2004, "50% of all strokes occur in people who show no symptoms." (7) I am unaware of where or how Ms. Fleming gained her expertise to make that statement. If true, I suspect the rise from 50% to 80% (4 of 5) of asymptomatic stroke in five years would undoubtedly raise alarm and be in the publications of the American Heart Association and the National Stroke Association. While proving a negative is generally not possible, the absence of support for a statement is accepted as disproving the statement, particularly when, as here, other facts fail to support the statement. At best, is the statement of SVS that "[v]ascular disease is … generally asymptomatic until a catastrophic event occurs." As an educated person, you are aware that "generally" is meaningless. Based on the lack of authentication, I conclude that your statement is fabricated.
Your second statement, attributed to the Society for Vascular Surgery, omitted the sentence before ihttp://www.blogger.com/img/blank.gift. If you are not aware of the sentence, here it is:
Individuals 55 years of age or older with cardiovascular risk factors such as a history of hypertension, diabetes mellitus, smoking, hypercholesterolemia, or known cardiovascular disease may benefit from preventive screening for vascular disease.(8)
Taken in proper context, the paragraph clearly limits the benefits of "preventive screening for vascular disease" to "individuals 55 years of age or older WITH cardiovascular risk factors." Your letter omits this important fact. Thus, your statement plainly takes the Society for Vascular Surgery position out of context. For that reason, I am copying them this letter and your letter.
Furthermore, the accompanying tiny leaflet magnifies the distortion under the question of "Who needs to be screened?" As with many 3-point marketing misrepresentations, (9) the answer of "anyone over 50 who wants to be proactive about his or her health" misconstrues the NSA fact following it. Neither these statements nor those in the letter substantiate the conclusion that people with risk factors "may wish to be screened, even if you are in your 40s." This conclusion, in fact, clearly misrepresents the SVS position above suggesting screening of people with risk factors over the age of 55. While 55 may be the new 40, being 40 with risk factors for stroke does not equate to being 55 with such risk factors. For this misrepresentation, I am copying this letter and your letter to SVS.
I also found other inconsistencies. Your letter says, "LifeLine Screening is … important to keep you and your loved ones healthy and independent." As a Registered Diagnostic Medical Sonographer, Registered Diagnostic Cardiac Sonographer, and Registered Vascular Technologist, you know that screening does not "keep [a person] healthy and independent." Those come with a beneficial diet, exercising, negating risk factors, and treatment. Your use of your credentials to appear to authenticate these lies is a discredit to the medical profession (I was formerly a medical technician). For that reason, I am copying to ARDMS this letter and your letter.
In addition, your letter states the cost as $149. Just two months ago the cost was $135. (10) In 2005, the cost was $109. (11) Collectively, it appears that LifeLine is more interested in inflating its price and fluffing its advertising, and not in keeping its price and facts current with reality.
Wishing you the best of health,
/s/ Gerald R. Prettyman
cc: Society for Vascular Surgery, 633 N. St. Clair, 24th Floor; Chicago, IL 60611;
ARDMS, 51 Monroe Street, Plaza East One, Rockville, Maryland 20850-2400.
cc: Society for Vascular Surgery, 633 N. St. Clair, 24th Floor; Chicago, IL 60611
---Endnotes---
((1) Stroke Warning Signs, American Heart Association, 2009. Available at http://www.americanheart.org/presenter.jhtml?identifier=4742.
(2) Stroke 101, National Stroke Association, 2009. Available at http://www.stroke.org/site/DocServer/STROKE_101_Fact_Sheet.pdf?docID=4541
(3) Society for Vascular Surgery, SVS Position Statement On Vascular Screenings, 2009. Available at: http://www.vascularweb.org/patients/screenings/SVS_Position_Statement_on_Vascular_Screenings.html
(4) USC Neurosurgery - Stroke / Brain Attack - Cause Symptoms Treatment Risk, USC Neurosurgeons, Inc., Last Modified 5-9-2009. Available at: http://www.uscneurosurgery.com/stroke.html.
(5) Heart Attack / Stroke, Kent Fire/Fire District 37, Brochure fdfp6714, 10/05. Available at: http://www.ci.kent.wa.us/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=7142.
(6) What is Stroke? National Stroke Association, 2009. Available at: http://www.stroke.org/site/PageServer?pagename=STROKE.
(7) Dentist Saves Lives!!! (Oral Cancer), Ralph Parkin D.M.D., citing a 2004 letter. Available at: http://www.myhealthymouth.com/Content/DisplayArticle.aspx?ArticleID=1.
(8) Society for Vascular Surgery, SVS Position Statement On Vascular Screenings, 2009. Available at: http://www.vascularweb.org/patients/screenings/SVS_Position_Statement_on_Vascular_Screenings.html.
(9) Gerald R. Prettyman, Life Line Screening - Turning Facts and Half-truths into a Marketing Marvel, April 23, 2009. Available at: http://grpblawg.blogspot.com/.
(10) American Society Of Mechanical Engineers, LifeLine Screening in Dublin, CA, April 6, 2009, Letter on file.
(11) January W. Payne, Screening With Holes in It? July 19, 2005, HE01, http://www.washingtonpost.com/wp-dyn/content/article/2005/07/18/AR2005071801175.html.
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