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:

(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? (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).

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

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 ( 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.


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."


"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 i 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

((1) Stroke Warning Signs, American Heart Association, 2009. Available at
(2) Stroke 101, National Stroke Association, 2009. Available at
(3) Society for Vascular Surgery, SVS Position Statement On Vascular Screenings, 2009. Available at:
(4) USC Neurosurgery - Stroke / Brain Attack - Cause Symptoms Treatment Risk, USC Neurosurgeons, Inc., Last Modified 5-9-2009. Available at:
(5) Heart Attack / Stroke, Kent Fire/Fire District 37, Brochure fdfp6714, 10/05. Available at:
(6) What is Stroke? National Stroke Association, 2009. Available at:
(7) Dentist Saves Lives!!! (Oral Cancer), Ralph Parkin D.M.D., citing a 2004 letter. Available at:
(8) Society for Vascular Surgery, SVS Position Statement On Vascular Screenings, 2009. Available at:
(9) Gerald R. Prettyman, Life Line Screening - Turning Facts and Half-truths into a Marketing Marvel, April 23, 2009. Available at:
(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,

Monday, June 15, 2009

Trademarks as verbs and the significant of meaning (1) asked in the LinkedIn group Intellectual Property Professionals, "What do you think about brands being used as verbs?" A number of the serious answers generally favored allowing the use of trademarks as verbs or said it at least is inevitable. Of the first nineteen answers, only one used the word "confusion," and no one (including any of my first four postings) stated the rational of a trademark as a symbol to avoid consumer confusion as to the source of the goods. In fairness, all the posters were attorneys who knew this and an early poster noted the protectionist act of "admonish[ing] their admiring public … that their precious brand is an adjective denoting a source of these fantastic goods or services (and a registered trademark to boot), and not merely a generic moniker."

In my first post, I discussed the objective and subjective aspects of trademarks validity.

"The objective test of validity is still the public perception (measured by on the street interviews) of whether the mark pertains only to the single brand or to the class of products. Mark owners hoping for a subjective test of advertisements reminding the public of the single brand meaning may be in for a rude awakening by a competitor who monitors public perception, then challenges the validity of the mark."

In my second post, I responded to a poster who stated that "[o]ne of the ways companies have buttressed their protection is through the licensing of their trademarks into categories that are beyond their core business." This somewhat surprised me.

"TRIPS Article 21 allows trademark assignment without transfer of the business. This is not the law in the US. (15 U.S.C. § 1060). A US mark owner may exchange the goodwill of the mark to another of its own goods or services. The US mark owner may not license (assign) a mark to another company's product or service. Such naked licensing inherently confuses consumers as to the source of the goods or service, and risks invalidity of the mark. (Sugar Busters LLC v. Brennan) (Use by others without control diminishes the strength of the mark.)"

In my third post, I responded to a poster who remarked that a cornstarch manufacturer successfully held off a trademark challenge using cookbooks as evidence of genericide by "showing that over the years they had written cease and desist letters to loads of publishers demanding that they stopped using their brand as generic."

I responded, the "example is on point that a trademark challenge requires the proper segment of the public. The cookbooks submitted did not show the public perception of the right persons. The proper audience for the public perception survey (and trademark challenge) would have been the persons who buy and use cornstarch. As long as people using search engines recognize there is a search engine brand named Google, the public can google along on any search engine and say they "googled it."

The poster disagreed with me, saying "the recipes in magazines showed the public perception of the right people: homemakers who used corn starch in their cooking, and for whom Maizena had become such a staple and a household name that it had reached their "top of mind" so that they thought of all corn starch being Maizena." The poster added that the "[s]ame happens with Henkel's glue stick "Pritt"; since I was a child doing school pro[j]ects I've never heard any one go to a stationary store and ask for a stick of glue; people will ask for a "Pritt". He added that, "people here will refer to all sticks of glue as "Pritts", even if they're holding a stick of UHU glue in their hand ... however I've never heard anyone say they "Pritted" a picture on their album or so."

In my fourth posting, I replied slightly more on topic, but still focused on mark validation.

"Whether the misuse of the mark is as a verb or as a generic noun is irrelevant. "The primary significance of the registered mark to the relevant public [is] the test for determining whether the registered mark has become [] generic." (5 U.S.C. § 1064(3)).

Invalidation of a trademark is a two-part test. The first test is to establish the relevant product market. (A. J. Canfield Co. v. Honickman, 808 F.2d 291 (3d 1986) (holding that there is a difference in the relevant market for a diet chocolate fudge soda as a chocolate diet soda, or as a chocolate fudge soda.)) Maizena is a mark for cornstarch, not a mark for an ingredient in a cookbook recipe.

The second step is determining whether "the term [is] understood by the relevant public primarily to refer to that genus of goods or services?” ((In re Reed Elsevier Properties Inc., 06-1309 at 3 (Fed. Cir. 2006) (citing H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc., 782 F.2d 987, 990 (Fed. Cir. 1986)). The relevant public is "in the minds of the consuming public." (A. J. Canfield Co. v. Honickman, 808 F.2d 291 (3d 1986)). Maizena sending individual letters to the publisher could not change public perception because the consumer purchasers of Maizena never saw the letters.

Evidence of the mind of the consuming public may be "any competent source [that] show[s] the relevant public’s understanding of a contested term, including purchaser testimony, consumer surveys, dictionary definitions, trade journals, newspapers, and other publications. (In re Reed Elsevier Properties Inc., 06-1309 at 3 (Fed. Cir. 2006) (citing In re Merrill Lynch, Pierce, Fenner & Smith, Inc., 828 F.2d 1567, 1570 (Fed. Cir. 1987)). Were the cookbook publishers truly the relevant public, then the court would have invalided the Maizena mark because Maizena had already lost the strength of the mark. Closing the barn door after the horse is gone does not recover the horse.

[The] Pritt example is a prime case of a mark about to die from genericide."

In my fifth posting, I finally addressed the affect of trademark verbing.

"The purpose of a trademark is to associate a specific brand of product or service to its source (to prevent consumer confusion). Use of a trademark as a verb is therefore only a generic use if the interpretation is subjectively open to another source and the source was objectively different.

In a one-brand market, use of the trademark as a verb inherently refers to the source (e.g., "barting to San Francisco," for riding the BART train to San Francisco from the East Bay area. The mark would similarly be safe from genericide when the speaker and listener share by a common experience that the verb refers to the same source of the specific product or service. Such an example occurs between two employees of one company referring to a contracted product or service from one source (e.g., FEDEX as above) for their company. The last example of inherent meaning is in the association to the overwhelming monopolist in the market. Talking about the Office Suite software implies Microsoft for most offices. Google may be 'safe' from genericide for now, but Microsoft Bing just knocked Google down to 72% of the market.

Outside of these circumstances, use of the trademark as a verb becomes less specific, subject to interpretation, with an increased risk of genericide. As stated above, the understanding and meaning of the consumer is paramount to the success of a trademark. Thus, CalTrain and DHL would likely object to the BART and FEDEX examples as they compete with BART and FEDEX respectively, but in limited markets. Taking the train from Millbrae to San Francisco is open to interpretation to both BART and CalTrain as both trains carry passengers between those cities. A passenger could still speak of barting to San Francisco from Millbrae without injury to the trademark if the user had ridden BART and the listener understood the speaker had ridden BART.

The true injury of using a trademark as a verb occurs when the user and listener or reader do not have the common experience. A Baby Boomer might receive a confused look after asking a Generation Y employee to 'xerox' something because with competition and time there is now an entire generation with many people who have likely never used a Xerox brand copier and do not know 'xerox' as a verb. Similarly, I might say that I googled "trademarks" and love the way the images jump up from the page. This would confuse a Google, Yahoo or Internet Explorer user because that is a feature of

Thus, verbing a trademark is not necessarily an injury to the mark. The significance is in whether the use is open to interpretation and whether user and listener or reader understood the verb-mark to apply to the same source of the product or service."


Thursday, April 23, 2009

Life Line Screening - Turning Facts and Half-truths into a Marketing Marvel

Life Line Screening of America is a Cleveland-based mobile ultrasound company. (1) Life Line performs four tests to "screen for: plaque buildup in the carotid artery of the neck, which can lead to a stroke; an enlarged abdominal aorta, a higher risk for a potentially deadly rupture; peripheral arterial disease, a hardening of the arteries of the leg; and low bone density in the heel, which can indicate the bone-thinning disease osteoporosis." (2) Life Line has screened over 6 million people, which translates to about $600,000,000 in revenue from its humble beginnings in 1993. (3)

These tests raise a lot of debate, in part because medical insurance does not cover the cost, and for other reasons as discussed below. The Life Line website cites several examples of people crediting Life Line for saving them or a loved one from a stroke. (4) Conversely, at least one doctor calls Life Line a scam. (5) As with all marketing stories, there is more to the story than the flyer states.

First up, when you make your reservation, be ready for a not-so-inexpensive credit card hit. The current cost is $140 ($139.99 but that's $140 in my checkbook), although group tie-in marketing drops the price to $135.00. (6) A trip to the doctor generally costs half as much. (7) Life Line also seems to follow the fast rising cost of medicine. In 2005, the cost was $109. (8) The cost was $119 in 2007. (9) The 2009 cost is 28% higher than the 2005 cost. Wow, talk about inflation. (N.B. to everyone, the "specially priced" package that every group gets is $135.00 - what a savings from the public price (not)).

The other debates focus on the usefulness of the tests, and the marketing ploys.

Arterial plaque disease occurs in several areas of the body, not just the carotid (neck) or coronary (heart) arteries. Many tests may detect arterial plaque disease. These include lipid blood tests, blood pressure monitoring, carotid pulse palpitation, ultrasound (external and intravenous), catheterization, cardiac stress test and heart monitoring. (10) There is no single test for diagnosing the likelihood of a stroke. Each test suffers from detecting only one or more aspects of arterial plaque disease or the test is specific to the measured locale only. In addition, some methods, such as ultrasound, are subject to technical error. (11) Thus, a good testing regime uses multiple tests or views as the case may be. More important, however, is a good preliminary oral screening to select the proper test.

Oral screening starts with questions such as, do you or anyone on either side of your family have a history of heart disease, stroke, or signs of peripheral artery disease? Some information indicates that coldness in the legs or arms, or recurrent cramping or pain in one location may indicate blockage or "a problem with blood flow in the arteries." (12) If so, skip Life Line, talk to your doctor, and do not be bashful about demanding more than just a measurement of your blood pressure or the doctor feeling your pulse in your neck. Neither of these detect all vascular problems that may cause a stroke or heart attack from dislodged plaque.

A problem with Line Line, and with every screener for that matter, is that even a battery of tests can miss a diagnostic opportunity if the preliminary oral screening missed a question, or the answer did not alert the screener to call for the proper spot-on diagnostic test. A good friend of mine with a history of smoking had a series of dizzy spells (TIA for you medical types) at about age 60. His bean-counting health care plan (corporation) failed to perform, or misread the result of the diagnostic procedure that would have detected the arterial blockage that led to his stroke that disabled him completely on one side of his body. One year later, as he was recuperating, his wife took him to Life Line because his health plan would not do the scan. Shortly into the procedure, Life Line sent him to the hospital because of the severity of the blockage Life Line found. 'K' re-checked him, and cleaned out the artery. He was a semi-walking killer-stroke waiting to happen. (He is doing much better, but many effects of the first stroke persist). While this seems like a Life Line success story, the gist of it was that he already had one severe stroke preceded by multiple TIA's so a reasonable doctor would look for compounding problems. This was more a failure with the health care corporation than a Life Line success story.

A good example of a less decisive 'get-scanned' example is my family. Both sides of my family have a history of debilitating stroke or heart disease, although each afflicted person was in the 70's, 80's or 90's years of age at the time of the first event. Rather expectedly, the age of onset followed the risk factors. (13) The latter-afflicted persons were non-smokers, not too over-weight, non-or light drinkers, with low cholesterol, had some form of regular activity and they did not live in air-polluted areas, which is also linked to heart disease. (14) The earlier-afflicted persons were overweight by 25% or more, with less activity, drank alcohol, had related health problems, and in some cases, smoked.

With this family history, those of us that are younger are wondering like crazy whether we should go to Life Line for screening. This is where the rest of the debate comes in. The Line Line advertising, whether by flyer or other posting, uses three to four common marketing tactics, or as lawyers call them, arguments. The debate focuses on the truthfulness of the arguments. Generally, the first arguments are wholly or mostly true (fluff), with the truth getting more lost as more arguments are used. What the debate ignores, however, is who makes the statement, and that is the crux of misrepresentation.

In its opening arguments, Life Line uses two bold bullets that combine statistics with fear:
· Stroke is the number one reason that people move into nursing homes and the third leading cause of death in the United States. Yet, many strokes can be prevented.
· Amazingly, 4 out of 5 strokes occur in people who show no prior symptoms.

As noted above, the first bullet point is true, or at least "many strokes can be prevented" is true (diet, exercise, medicine, etc.), as is the statistic that stroke is "the third leading cause of death in the United States." (15) Life Line and Peggy Fleming, however, seem to be the only authorities of the statistic that "[s]troke is the number one reason that people move into nursing homes." (16) This former medical technician turned lawyer has been to many nursing homes over many years. Having seen many residents, infirmity is, in my experience, the number one reason that people move into nursing homes. There is an article from the Wall Street Journal that "[s]troke is the leading cause of disability in the U.S." (17) Once released from the hospital, however, many stroke victims live at home, in assisted living, or in skilled nursing facilities (which are not nursing homes), so the Life Line statement is at best a fuzzy exaggeration.

Under the principle of tiered arguments (marketing), the second argument is somewhat fuzzy compared to the first, but follows the same reasoning. Life Line has it here with the second bullet point, again a statistic with fear, but with a fuzzy 4 of 5 (not 80%, see the difference). Life Line also follows the tier rule that the second argument does not have to be as true, i.e., there can be more exaggeration. In this case, the statistic seems unsubstantiated, or is perhaps a fluffy exaggeration, as Peggy Fleming said it was only 50%, but two of four does not sound as dire as 4 out of 5. (18)

The next stage is to tie the first two arguments with a third argument, and then close with a super coupe implication. To do so, Life Line starts with an apparent authority. Citing the Wall Street Journal of September 24, 2004, the Life Line flyer states: "Many vascular specialists say two diagnostic tests - carotid ultrasound an the ankle-brachial test - can provide a clear window into artery disease that can lead to strokes …" At this point, however, Life Line crosses the line from fuzzy marketing to a half-truth. While the cited line is directly quoted from the Wall Street Journal article, the title and topic of the article is "Screening for Artery Disease Is Good Idea for People Over 60." (19) At best, the Wall Street Journal supports Life Line's half-truth only for the portion of those under 60, "with a variety of risk factors for stroke." (20) The rest of the population can and should ignore Life Line. What is important for Life Line, however, is that it did not lie.

Despite the half-truths, Life Line is not finished, as the flyer or posting adds a second apparent authority that is not really so much an authority as a pitchperson duped into delivering the closing (and untrue) coupe. For Life Line, the apparent authority is the person who signs the flyer (an executive of the tie-in organization) and who "encourage[s] you to read … about these … life-saving tests." Obviously, the pitch is that Life Line screening is life saving. The wise reader will recognize, however, that the screening is not life saving. The life saving comes in changing your diet, exercising, taking medicine, other treatment, etc.

There is another interesting aspect to the life-saving test statement. For clarification, "bait and switch" is illegal because the seller does not intend to sell the advertised product or service. (21) Advertising a need for a product or service is not illegal unless the ad is directed to a specific person to sell "a part, replacement, or repair service [a]s needed when it is not." (22) Even if someone proved the life-saving test statement was directed to a specific person, Life Line is not on the hook because the flyer expresses the statement as the opinion of the executive of the tie-in organization, and Life Line is not responsible for what the organization says.

Consequently, Life Line has done its homework of turning facts and half-truths into a marketing marvel. So now that I have reviewed all this, I suppose the best thing for me is to watch what I eat and weigh, exercise, routinely check my blood pressure, take my medications, and have a check-up each year. Guess I'll get the Life Line scan at age 60.

Gerald R. Prettyman is an Attorney at Law licensed in California and Minnesota and with the U.S. Patent Office as a Registered Patent Attorney. His contact information is at

(1) See
(2) January W. Payne, Screening With Holes in It?, July 19, 2005, HE01,
(3) Screening value from Life Line. See Gross revenue estimated as 6 million times $100 per screening. Simply Hired reports revenue as less than $5 million year. See
(4) See
(5) Ed Zimney, MD, October 21, 2008, Life Line Screening: A scambuster report.
(6) American Society for Mechanical Engineers, April 6, 2009, Priority Code BEJA-045.
(7) The current price of Life Line screening is $140 while "the national average doctor's office visit is approximately $60." See Life Line website and Doctor's Office Versus E.R. Visits. Blue Cross Blue Shield of Texas, (citing American Medical Association, "Physician Socioeconomic Statistics," 2001),
(8) January W. Payne, Screening With Holes in It?, July 19, 2005, HE01,
(9) Monroe Clinic and Life Line Screening Partner to Promote Healthier Communities, August 23, 2007,
(10) While I'm not an M.D., I was formally schooled in medical technology, I'm familiar with all of these tests, and I have been a patient for many of them.
(11) "Carotid tests … [in] a hospital … is the best [as the] tests can be hard to read for an untrained eye." Thomas M. Burton, The Wall Street Journal, Screening for Artery Disease Is Good Idea for People Over 60, September 24, 2004; Page B3,
(12) National Institutes of Health, Department of Health & Human Services, Peripheral artery disease, Page last updated: 24 March 2009,
(13) American Heart Association, Inc., Stroke Risk Factors, April 22, 2009,
(14) American Physiological Society, March 23, 2009, Inhaling A Heart Attack: How Air Pollution Can Cause Heart Disease,
(15) American Heart Association, Inc., Stroke Statistics, April 22, 2009,
(16) The online references this author found stating this information were hawking Life Line or other screening companies. One dental surgeon (D.M.D.) cited Peggy Fleming (the ice skater) as his authority! See The most credible authority was from an advertisement in 2007 (the time of the screening), who was the Chief Nurse Executive of a clinic, but she was hawking the Life Line tie-in to the clinic and repeating what Life Line states in its promotions, so that negates her credibility. See:
(17) Thomas M. Burton, The Wall Street Journal, Screening for Artery Disease Is Good Idea for People Over 60, September 24, 2004; Page B3,
(18) This author could not independently substantiate this so-called fact, although Peggy Fleming (cited above) supposedly wrote in 2004, "50% of all strokes occur in people who show no symptoms."
(19) Thomas M. Burton, The Wall Street Journal, Screening for Artery Disease Is Good Idea for People Over 60, September 24, 2004; Page B3,
(20) Thomas M. Burton, The Wall Street Journal, Screening for Artery Disease Is Good Idea for People Over 60, September 24, 2004; Page B3,
(21) Cal. Civil Code § 1770(9). The law of your jurisdiction may vary.
(22) Cal. Civil Code § 1770(15). The law of your jurisdiction may vary.

Wednesday, February 11, 2009

Has Spare the Air Spared the Penalty and Raised a Constitutional Question?

On July 9, 2008, the Bay Area Air Quality Management District (BAAQMD) adopted "a regulation that makes it illegal to burn wood or firelogs in household fireplaces and woodstoves" on Spare the Air days and nights. (1). Regulation 6 Rule 3, "limit[s] emissions of particulate matter and visible emissions from wood-burning devices." (2). These limits are in effect during the months of November through February as declared on a day-by-day basis by the BAAQMD. (3). The BAAQMD posts the wood burning status by noon each day on its Spare the Air website. (4). The news media, which publicly reported the regulation, also reports the Spare the Air declarations of the Air Pollution Control Officer. (5).

This article does not dispute the need for the regulation. "[F]ireplace and woodstove burning … make up 30 percent to 40 percent of soot emissions." (6). By one estimate, one million wood-burning fireplaces produce about ten tons of lung-trashing particles and gases per day during the winter months. (7,8). At this rate, the "estimated 1.4 million fireplaces and wood stoves in the nine-county district" kick out 14 tons of this pollution per day. (9).

The BAAQMD and the regulation have practical flaws and constitutional issues. Once the district declares a Spare the Air day, the public must proactively determine the legality of burning wood that afternoon and evening. At least one organization has noted that morning newspapers and other morning reports cannot report a Spare the Air day "because the air quality district doesn't decide until noon to declare a 24-hour no-burn period." (10). Undoubtedly, there are people who cannot access public media that day. As such, the regulation is burdensome to these people. While there is an exemption from the regulation for people lacking another source of heat, stopping the activities of a busy family to learn if a morning fire has become illegal may be a problem. (11).

The next flaw is that the BAAQMD has limited enforcement capacity. The BAAQMD has about 70 inspectors to cover its year round routine work of the commercial and residential sites in the district. (12). These inspectors must also handle responding to calls of winter wood-burning violations as well. (13). With so few inspectors, the BAAQMD has to ask the public to report "wood smoke concerns in their area." (14). This reliance on neighborhood informers was evident early on with the first Spare the Air days, when nine violators received warning letters, and "[s]ix of the nine violators were reported by neighbors." (15).

In addition, the BAAQMD has led people to believe that it has banned wood burning entirely on Spare the Air days. (16). In fact, the regulation only bans wood burning that produces more than a certain level of smoke. (17). People calling in the mere smell of smoke are potentially calling in a false alarm. With a limited number of inspectors, this quasi-policing policy is creating unproductive work for the district. The BAAQMD acknowledged the problem when it received 50 complaints but issued only six warnings on the first Spare the Air day. (18).

The next flaw is in the purported standard. Under the regulation, a violation occurs if the smoke from a wood-burning device exceeds "No. 1 on the Ringelmann Chart or 20 percent opacity for … more than six consecutive minutes in any one-hour period." (). For those persons unfamiliar with measuring the density of smoke from oil or coal-fired power plants, the Ringelmann Chart, and its opacity test, is a series of rectangular grills of black lines on paper published by the Bureau of Mines that an inspector holds up while eye-balling a smoke plume to determine the approximate combustion efficiency of the power plant. (20). The method of determining a measurement is so subjective, that even the Bureau of Mines admits that use of the Ringelmann Smoke Chart is empirical in nature with many limitations, although "it gives good practical results in the hands of well-trained operators." (21). With fines of possibly "several thousand dollars," we can only hope that the BAAQMD inspectors have reflective-laser reliable eyesight. (22).

The final flaws in the regulation relate to the purported penalties. To enforce penalties depriving a person of property or liberty, such as fines or jail time, the government must give advance notice that an act was illegal at the time committed, and the government must give advance notice of the severity of the penalty in relation to the regulated act. (23). Concisely, a person must have reasonable access to know in advance the proscribed act and the penalty.

BAAQMD, however, has not published the fine schedule, so the public does not actually know how BAAQMD will assess fines. (24). Regulation 6 Rule 3 lacks a provision for a penalty, none of the other regulations cite it, and the BAAQMD web site titled, "New Wood Burning Regulation 6, Rule 3: Wood-Burning Devices" merely states that "wood burning [is restricted] when air quality is unhealthy and a Spare the Air Advisory is issued." (25). The web site at refers back to the Wood-Burning Devices page "for more information." (26). An email sent on December 13, 2008 to Susan Adams, the Assistant Counsel for the District Office Bay Area Air Quality Management, recounted a review of the regulations listed in the bibliography below. The email stated that the review of the regulations was "unable to locate the regulation providing the fine schedule. Please provide the name of the regulation providing for the fine schedule, and if possible, a link to, or copy of the regulation." She did not reply. On January 28, 2009, a couple of very nice people at the District Office of BAAQMD confirmed that there is not a written fine schedule for the public to view. A voice message was also left then for Ms. Adams, but she has not returned the call. For BAAQMD to impose fines without public knowledge of the fine schedule violates the due process requirement, and as shown below, other provisions of the Constitution.

The next flaw with the regulation is the amount of the fines. According to BAAQMD's CEO, the fines will be set to match the severity of the problem, with "some offenders [getting] little or no fine if the circumstances merited." (27). The constitutional issue here is that, as BAAQMD admits, "a $50 fine isn't enough to deter repeat offenders, [so] subsequent violations [will be] punished with fines of hundreds or even thousands of dollars." (28). Thus, some wood burning would be legal, but a violator would not know whether the fine for a repeat violation would be in the hundreds or the thousands of dollars until receiving a notice of violation. Such significantly high fines violate the proportionality requirement of the Eighth Amendment of the U.S. Constitution unless the penalty is clearly applicable to the crime of burning wood in a fireplace. (29).

This is not to argue that having penalties for violating the wood-burning regulation is unconstitutional. The air quality districts around Sacramento and the South Coast regions have properly worded penalty regulations. Rule 445 (h) of the South Coast Air Quality Management District clearly sets fixed fine penalties or constitutional alternatives. (30). Fines in other jurisdictions are similarly reasonable. (31). The issue here is that BAAQMD lacks a readily available fixed fine schedule and may impose arbitrary and discretionary penalties. That is unconstitutional.

The legislature has authorized BAAQMD to assess fees and fines through the Health and Safety Code. The misdemeanor penalties applying to air quality, however, are for outdoor fires, the burning of waste and for toxic pollution sources. (32). At worst, a fireplace or wood-burning stove that spews emissions (smoke) over No. 2 on the Ringelmann Chart and that causes actual bodily injury can carry penalties of $15,000 to $100,000 and jail time of up to one year, depending on the severity of the actual injury. (33). The lesser misdemeanors of §§39000 to 41500 are punishable by "a fine of not more than one thousand dollars ($1,000) or imprisonment in the county jail for not more than six months, or both."(34). These penalties have been law for some time. The legislature did not intend BAAQMD to threaten the public inside their homes with substantial fines "in the thousands of dollars" for merely staying warm next to an indoor fireplace or a wood burning stove. (35).

If anyone wants to challenge BAAQMD on the word-burning regulations, there is a likelihood of success in a procedural due process challenge. The substantial penalties circulated by BAAQMD in the public media are outside the range of the legislation and are arbitrary and capricious. Despite the amount of harm that burning wood in a fireplace or wood burning stove might cause, the BAAQMD would violate due process and the Eighth Amendment for imposing penalties in the thousands of dollars without a well-written and published regulation or fact-related legislation. (36).

The following regulations were reviewed in preparation for this article.
--General Provisions & Definitions - (
--Notice to Comply - (
--Permits - General Requirements - (
--Fees - (
--Open Burning - (
--Particulate Matter - General Requirements - (
--Wood-burning Devices - (
--Users Guide - (

1. Welcome! Bay Area Air Quality Management District. *Viewed and saved February 7, 2009.
2. Regulation 6-3-101. Adopted July 9, 2008.
3. Regulation 6-3-301. Adopted July 9, 2008.
4. Winter Spare the Air Program, Bay Area Air Quality Management District. *Viewed and saved February 7, 2009.
5. Regulation 6-3-203. Adopted July 9, 2008.
6. Mike Taugher. "Duraflame sues over fireplace restrictions." Contra Costa Times. January 27, 2009. Available at: *
7. Daniel Tedford. "Air quality officials want wood-burning fireplace out of the home." Inland Valley Daily Bulletin. October 29, 2008. Available at: *
8. FN6, Taugher, supra.
9. "Letting everyone know is crucial to success of no-burn days." Marin Independent Journal. February 3, 2009. Available at: *
10. Id.
11. Regulations 6-3-110, -111, -112. Adopted July 9, 2008.
12. Compliance and Enforcement Division, Bay Area Air Quality Management District. *
13. Denis Cuff. "First Bay Area burn violators get warnings." Contra Costa Times, November 20, 2008. Available at: *
14. FN4,, supra.
15. FN13, Cuff, supra.
16. Wood Burning Rule Compliance. Bay Area Air Quality Management District. *
17. Regulation 6-3-302. Adopted July 9, 2008.
18. Christopher Heredia, "Wood burning banned today across Bay Area," S.F. Chronicle, Nov. 25, 2008. Available at:
19. Regulation 6-3-217. Adopted July 9, 2008.
20. Ringelmann Smoke Chart, Information Circular 8333, Revision of IC 7718, By Staff, Bureau of Mines (May 1967), pages 1-2. Available at: The Ringelmann chart was already old in Europe when adopted by the USA in 1897. Why BAAQMD still uses such archaic technology in Silicon Valley in this high-tech era is not clear.
21. FN20, Ringelmann, supra.
22. FN6, Taugher, supra.
23. Unites States v. Booker, 543 U.S. 220 (2005). ((Holding that the statute mandating courts to follow the Federal Sentencing Guidelines violated the Sixth Amendment because "the statutes put a potential federal defendant on notice that a judge conceivably might sentence him anywhere within the range provided by statute." J. Breyer, dissenting). (Emphasis added). (N.B., See Footnote 6 to Justice Thomas's dissent in part on the commentary to statute §6A1.3, at which the Court notes the Guidelines violated due process with a mistaken belief in the burden of proof).)
24. Denis Cuff. "Fireplace ban, fines effective today." Oakland Tribune. October 31, 2008. Available at: *
25. New Wood Burning Regulation 6, Rule 3: Wood-Burning Devices, Bay Area Air Quality Management District, * (The word "advisory" is a clue that the BAAQMD knows the penalties are just smoke.)
26. See the bibliography for the list of regulations and articles reviewed in the attempt to find the fine schedule.
27. FN24, Cuff, supra.
28. FN24, Cuff, supra.
29. Furman v. Georgia, 408 U.S. 238, 249 (1972) ("A penalty . . . should be considered `unusually' imposed if it is administered arbitrarily or discriminatorily." (quoting Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv. L. Rev. 1773, 1790.))
30. South Coast Air Quality Management District, Rule 445, Wood Burning Device, §(h) Penalties. Adopted March 7, 2008. Available at
31. FN24, Cuff, supra.
32. See Cal. Health & Safety Code §41700, et. seq., §41800, et. seq., and §42400 et. seq.
33. Cal. Health & Safety Code §42400 et. seq.
34. Cal. Health & Safety Code §42400(a).
35. FN24, Cuff, supra.
36. United States v. Jordan, 256 F.3d 922 (9th Cir. 2001). (holding when a sentencing factor has extremely disproportionate effect on the sentence relative to offense of conviction, due process requires that government prove the facts underlying the enhancement by clear and convincing evidence).

Friday, January 9, 2009

The Debate over Bees and Seedless Crops.

As we generally learn in primary school, bees collect pollen to make honey, and cross-pollinate the flowers they visit. Bees are so important to agriculture, that California law provides for "regulations necessary to minimize the hazard to bees, while still providing for the reasonable and necessary application of pesticides toxic to bees to blossoming plant."(1)

A legal battle, however, is now taking flight in central California challenging the role of the bees, as in the birds and the bees. Growers of many crops, in and out of California, hire beekeepers, in the fashion of nomads of the nation, to bring in bees for crop pollination.(2) The beekeepers need the pollen for the bees to make honey so this is one of nature's win-win symbiosis.

Some citrus and melon growers, however, raise seedless fruit, for which consumers will pay a premium to enjoy, but which happens only if the bees do not pollinate the fruit. Pollination causes seeds, so at contest, then, is that the seedless crop growers do not want bees around their crops, but other growers and the beekeepers want them present.

Caught in the middle are the bees, who besides the income role of pollination and honey, are suffering from colony collapse, a bee disorder of undetermined cause that results in death of 10% to 90% of a bee colony.(3) A bee ban would aid citrus growers, but cause hardship to other crop growers, and decrease the livelihood of the bees.

Mediation efforts have so far been unsuccessful. The State of California is proposing notice regulation to encourage beekeepers to move their hives during pesticide spraying.(4) Unfortunately, this soft-touch of the debate does not include the voice of the consumer, so I'll add my two-bits worth.

First, I enjoy honey - a lot. Honey improves toast and peanut butter and jelly sandwiches, and of course, baklava is not baklava without honey and nuts. And yes, I enjoy seedless fruit. I had three seedless tangerines the morning of the day before I read about the issue. But then, watermelon seed-spitting contests are futile without large seeds, so who needs seedless watermelons?

In the balance, is the cost of a resolution. The bee-side forces suggest that the seedless growers place nets over the trees. A fair solution, except that trying to net over 31,000 acres of growing trees to block out bees would require fishing-trawler-style nets, and thousands of hours of effort, or a lot of helicopter time. In addition, the small net matrix might affect photosynthesis of the plants, which requires a balance of sun and water.(5) Those of us from northern latitudes are familiar with the effect of reduced sunlight, which results in smaller plants and crops. Consumers are less likely to pay more for less, especially in this economic condition.

The seedless camp has suggested that beekeepers reduce the number of bees, which in turn, reduces the distance that the bees travel. In this way the bees would be less likely to enter seedless orchards. One option is for growers to change crops, but this is also expensive and time-consuming, especially in the face that some growers recently switched to seedless crops after the market premium made its glowing sunrise.(6)

In reality, the consumers will lose this battle over seedless crops, nuts and the bees. The price of something, if not everything, will rise. From this viewpoint, two options are present.

One is to do nothing. If growers are successful in raising seedless crop prices due to losses, then growers would accommodate losses by increasing seedless acreage, which they would likely would do anyway to earn the premium. On the other hand, the economy may drive premium purchases down anyway, so the reduction in yield will help keep prices up.

Another option, and I'll admit to proposing it only if it is popular, is to provide for a minor subsidy to seedless growers who lose seedless crops to bee incursion. A penny or two honey bottle (t-word) or a nut package (t-word) would aid seedless growers in expenses to keep growing seedless crops. Overall, however, my economic background and arguments suggest that the first proposal seems the better solution.

So, and I hate to admit it, the notice regulation by the California Department of Food and Agriculture may be the best solution. The beekeepers will either move or reduce their hives, as the seedless growers want, or the bee-favoring growers will pay to compensate the beekeepers for their pesticide losses. The seedless growers already get a market premium for their product, so any bee incursion loss is either de minimis, or gets accounted for in the market premium.


(1) Cal. Food & Ag Code S 29102(a).
(2) Tangerine growers tell beekeepers to buzz off, Tracie Cone, Associated Press, 1/9/2009,
(3) See e.g., Questions and Answers: Colony Collapse Disorder, U.S.D.A. Agricultural Research Service, Last Modified: 05/29/2008.
(4) Tangerine growers tell beekeepers to buzz off, Tracie Cone, Associated Press, 1/9/2009,
(5) Scientists Decode How Plants Avoid Sunburn, ScienceDaily, July 20, 2006,­ /releases/2006/07/060720094251.htm.
(6) Tangerine growers tell beekeepers to buzz off, Tracie Cone, Associated Press, 1/9/2009,

Wednesday, January 7, 2009

Detecting Targeted Email Scams – The New Phishing

The souring of the global economy has in a two-factor way encouraged the growth and success of three new email and internet scams known as targeted scams. These scams are called targeted scams because the phishing form sent generally not only contains the name of a legitimate company of which you are familiar, but also contains your personal name. In addition, the email, letter, website or pop-up page so closely copies a real one that detection of the scam is almost not possible until you've been 'had.' This blawg will identify to the lay-user and busy professional ways to identify these scams before becoming a victim.

As evidence of the growth of the success of the new spam email, both the American Bar Association (1), and the esteemed publication, American Banker (2), recently sent out memorandums warning their professionals of these new and ingenious scams. In addition, a user of the online network, recently posted a warning about domain name owners receiving emails pretending to 'warn' the domain name owner of a registration problem. (3). The responses indicated that this is a common occurrence. This author has received similar scam letters.

The first factor in the success of these scams, is that the spam emails are more convincing than ever, as is discussed below. The second factor, is that the victim lacks good anti-spamware, or fails to recognize the email as spam. An apparent ancillary factor may be that with anti-spamware in place, the victims were perhaps are paying less attention in looking for scams. Regardless, the number of successful scams is rising.

The new scams, however, do share traits with their less complicated brethren. We'll first review the scams noted by the ABA, American Banker, and the domain name scam, and relate them to common scam forms, along with ways to detect the scams.

For legal professionals, the ABA warned of usual phishing and spoofing emails, and of an interesting, and yet bizarre set-up that makes the "Nigerian scam" (4) seem like child's play. In a targeted scam, the email pretends to be from a legitimate company seeking assistance in receiving payment from another person. What makes the scheme so peculiar, is the email may provide for a fee agreement, confidentiality agreement, etc., and so seems completely legitimate. Once the 'paperwork' is finished, the attorney receives a check (maybe even a cashiers check), along with a separate request from the seemingly legitimate company asking for a quick transfer of the funds, less the attorney's fee. Complying with the client's request, however, proves to be costly when the lawyer learns that the check is phony, and that the contact and wire transfer information had nothing to do with the legitimate company.

Some people may already be familiar with this scam from emails promising a person to work at home as an escrow agent, or 'representative,' of a sort, and earning a "commission" by receiving checks and then sending on the funds. As with the "Nigerian scam," either the check is not good, or the goods are poor quality, or never shipped. Either way, the representative is left alone to explain the scam to the police.

American Banker, on the other hand, directed it's warning to computer professionals. In its memorandum, American Banker said that computer professionals who handle domain name registration were receiving letters advising them to change information about a domain name. The change would, in effect, allow the sender to hijack the domain name. While we would hope that the computer professionals would be alert to the scam, they are busy people too, and sometimes details get missed.

This brings us to the third scam, which may involve a domain name, or more often a financial account. In this scam, the email or letter warns the recipient of a problem that must be immediately resolved. For domain name owners, the alleged problem is often that someone else is trying to register the recipient's domain name, or that the domain name is going abandoned for some reason, and that the recipient must pay the letter sender immediately to avoid losing the domain name. In other cases, the financial account will be locked or closed unless action is immediately taken.

In reality, a close look at the email or letter will reveal one or two, if not more, scam clues. If the letter addresses a domain name issue, the letter sender is likely NOT the same company with whom the domain name was last registered. As with the Nigerian scam, the funds are not spent to your benefit.

The second scam clue is more common, in that domain name is somehow different from the registered domain name. For example, we are used to seeing domain names like,, or In one scam form, the domain name may include a couple of extra letters at the end, such as,, or In this case, the '.cn' means that the domain name is registered in China. Similarly, the end letters '.ru' stand for Russia, '.ca.' is Canada, and so forth, for the well-over 200 country codes called top level domain names. If you have a world-wide business, you might want to register these domain names in those countries, just as did Nikon, KFC, and Coca-Cola. If you do not plan to have a world-wide business, why worry about it? (5)

Another form of the second scam clue includes a familiar company name, with other words in the domain name. One example is In this case, the email seems to be from paypal, but is in fact, directed to a website called, which is NOT You can see the difference from a link on paypal's website, such as All the special code is AFTER the '.com.' There are even examples of the two scam forms appearing together, such as one I received to immediately go to a website with a true link of:
This one has both a Russian registered domain name, and a phony domain name.

The second scam form is more likely to appear in an email, as it is easier to hide, which brings us to the third way to discover a spam email, which is to look at the true link in an email.

This clue is a little more difficult to detect, as the email reader has to find the way in which the email program shows the true link in an email. For many email programs, you can simply place the cursor over the link show in the email, then look at the lower left corner of the program window. For example, in one case, I received an email saying there was a disputed transaction, and that I should click on the link, which looked like this:

In the lower left corner of the program window, however, the true link was shown, which was As noted above, the website, "" is not the same website as "" In other words, caveat lector (reader beware).

Not all email programs readily show the true link and it is possible to block display of the web address from the lower left corner of the email or browser. In such a case, you may be able to determine the true link by opening the Properties command in the menu. You may need to click a Details tab and then Message Source to see the actual web address. This is tedious in some cases, but is at least, safe. The safest way, of course, is to visit the web site as you usually do, and look for a message or alert on the website.

Safe Browsing.

(1) "Three Internet scams and solutions lawyers should know about," Your ABA, American Bar Association, November 2008,
(2) "Data Hackers Shift to Phishing for Domain Name Credentials," American Banker, January 2, 2009,
(3) "Solicitations mails .. from china claiming to be a domain name registration authority," Intellectual Property Professionals, 1/ 5/2009, (Registration and login may be required.)
(4) Nigerian scam,, 9/6/2003,
(5) This is not to suggest ignoring possible foreign trademark protection. The interested reader is encouraged to contact the author or other competent trademark authority for more information.

Saturday, January 3, 2009

Cell phones, Radiation and Cancer

Cell phones, Radiation and Cancer

A few months ago, a "prominent-cancer-doctor-warn[ed]-about-cellphones" and the risk of brain cancer. (1). To avoid worldwide panic, the modern person should be better informed. First, cellphones are not high-powered radio transmitters. The power output of cellphones in the U.S. has been regulated by law to about the strength of a night-light or holiday LED decoration.(2). Second, as the doctor states, "the evidence about a cellphone-cancer link remains unclear." Third, other incriminating statements clearly point to heavy use (30 hours per month), if not extreme use (50 hours per month) of headside cellphone use.(3)(4).

On the flip side is that radio waves are in use to cure cancer.(5)(6)(7)(8)(9). Thus, there is a certain irony that radio waves both cause and cure cancer.

Another problem with modern living cancer scares is confusion over the causative agent. Uninformed people confuse radio and microwave energy with nuclear radiation. See (10)(11) but compare (12). Radio waves are part of the electromagnetic spectrum of radiation. See e.g., (13). The danger, however, is not in the length of the wave as asserted by some, (14), but rather in the amount of energy received by the body. See e.g.,(15).

Cooks and electricians can vouch for the danger of heat and electrical sources, see e.g.,(16), neither of which we think of as "radiation" per se, but both of which are also part of the electromagnetic spectrum of radiation, heat as infrared radiation, and electricity as beta radiation, (15). Radio waves, such as emitted by cellphones, have the lowest energy, (13), although there are conflicting reports that even AM transmitting towers are dangerous to children, (17)(18). Another popular thought, albeit somewhat discredited, is that high-voltage transmission towers also cause cancer.(19).

The actual danger, as this former medical technician, then nuclear engineer now patent attorney is well-aware, is in whether the energy is enough to harm the DNA or RNA in the nucleus of the cells of the body.(20). If you can, in a prolonged exposure, fry an egg on a hot sidewalk, think of what happens to our brains next to a continuous stream of many hours electromagnetic radiation. Consequently, the correct viewpoint is not that cellphones are dangerous, but that prolonged exposure is dangerous.

The astute reader will realize, however, that our environment is awash in radiation in many forms. Besides cellphones, our homes, offices and outdoors are bathed in electromagnetic radiation from and to cellphones and to our AM and FM radios, televisions, from satellite broadcasts such as XM, Sirius and GPS signals.

Another ignored cancer risk is high-altitude living as well as traveling by air. As stated by one Stanford University authority, "[b]ackground radiation exposure for a person living in a brick house in Denver, Colorado is approximately three times larger than the exposure of a person living in a wooden home in Palo Alto, California."(21). Frequent flyers, who tend to double-dip as cellphone-using bodies, might particularly be at risk, in that a mere two-hour flight doubles a person's daily radiation exposure.(22). At those levels, one cross-country flight is a week's worth of ground-level radiation.

In summary, do not believe everything the sound bite harps on, but in a society that purports to care for its children, "people should take precautions, particularly for children."(1).

For more information, the EMFacts Consultancy, founded in 1994 by Don Maisch, has produced a wide range of reports and papers dealing with various health issues related to human exposure to Electromagnetic Radiation.(23).

(1) Prominent Cancer Doctor Warns About Cellphones, The New York Times, Tat Parker, 7/24/2008,
(2) Information On Human Exposure To Radiofrequency Fields From Cellular and PCS Radio Transmitters, FCC, Office of Engineering and Technology, last reviewed/updated 12/11/08, The regulations are posted at
(3) Comment 107, "2000 to 3000 minutes per month,"
(4) Comment 108, thirteen years of heavy use,
(5) Radio waves used to destroy cancer,
(6) Radio Waves Fire Up Nanotubes Embedded in Tumors, Destroying Liver Cancer , M. D. Anderson News Release 11/01/07,
(7) Patient Becomes Unlikely Inventor Of Cancer-Fighting Technology, David Templeton, Pittsburgh Post-Gazette, 9/3/2007,
(8) The Kanzius Machine: A Cancer Cure? CBS News, 7/20/2008,
(9) Combination Of Radio Waves With Pharmacologically Active Substances, United States Patent Application 20070184020 A1,
(10) Comment 4,
(11) Comment 36,
(12) Comment 14,
(14) Comment 18,
(17) Radio-frequency radiation exposure from AM radio transmitters and childhood leukemia and brain cancer, Am J Epidemiol. 2007 Aug 1;166(3):270-9. Epub 2007 Jun 7. "Brain cancer and infantile cancer were not associated with AM RFR."
(18) AM Towers Fingered as Cancer Cause, Radio World, Randy J. Stine, 11/21/2007,
(19) Exposure to power-frequency magnetic fields and the risk of childhood cancer. UK Childhood Cancer Study Investigators, Lancet. 1999 Dec 4;354(9194):1918-9,, "This study provides no evidence that exposure to magnetic fields associated with the electricity supply in the UK increases risks for childhood leukaemia, cancers of the central nervous system, or any other childhood cancer."
(21) Radiation, Stanford University National Accelerator Laboratory, Last update: 10/31/2008,
(22) Natural Radiation Hazard at Aircraft Altitudes, NOAA / Space Weather Prediction Center, Updated: October 1, 2007,
(23) EMF Health-effect Research, Don Maisch,

Welcome to grpblawg

grpblawg will not consistently follow the nature of a law blog, but each article will typically have a kernel of a legal aspect. Similarly, although my Master's degree is in Intellectual Property, grpblawg will often be on topics outside of patents, copyrights, trademarks and other forms of intellectual property. grpblawg may use analogies and cases from intellectual property. At times, grpblawg may publicly present analysis and views on issues presented in another form to a private individual or group.