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Mark Simon Davies is a counsel at O’Melveny & Myers LLP, where he works on appellate matters in one of the top Supreme Court and Appellate practices in the country. Davies is the author of Patent Appeals: The Elements of Effective Advocacy in the Federal Circuit.

Yesterday, the Supreme Court issued another significant opinion in patent law. In a unanimous opinion authored by Justice Thomas, the Court held that a patent owner who licenses the sale of components has “exhausted” patent rights even where the components must be combined with additional components to practice the patent. In so deciding, the Court reasoned that the exhaustion doctrine applies to sales of products that include only the “inventive aspect” of the patent. This unanticipated focus of the Court’s decision reflects the Court’s apparent continuing interest in refocusing patent law on protecting the “inventive” contribution.

The question before the Court was whether the patent rights of LG Electronics, Inc. were “exhausted” by its license agreement with Intel Corporation. Under the exhaustion (or first sale) doctrine, “the initial authorized sale of a patented item terminates all patent rights to that item.” Here, LGE owns patents covering various methods of managing main computer memory. LGE licensed Intel to manufacture and sell microprocessors and chipsets that practice the LGE patents. Intel sold the parts to Quanta Computer, a group of computer manufacturers, who made computers using the LGE/Intel microprocessors and chipsets in combination with non-LGE/Intel computer parts. LGE filed a complaint against Quanta, asserting that the combination of the LGE/Intel products with other computer parts infringed its patents. Quanta defended on the ground that LGE’s license to Intel “exhausted” and thus terminated its patent rights.

In siding with Quanta to find that LGE had exhausted its patent rights, the Supreme Court’s opinion proceeds in three steps. The Court begins by rejecting LGE’s argument that the exhaustion doctrine does not apply to “method” claims (i.e., claims that are not linked to a tangible article). The Court was wary that “[e]liminating exhaustion for method patents would seriously undermine the exhaustion doctrine” because patentees “could simply draft their patent claims to describe a method rather than an apparatus.” Next, the Court considered the “extent to which a product must embody a patent in order to trigger exhaustion.” On that question, the Court found that United States v. Univis Lens Co., 316 U.S. 241 (1942), “governs this case.” Just as the product in Univis “embodie[d] essential features of [the] patented invention,” so too Intel’s products embody “[e]verything inventive about each patent” and thus triggered patent exhaustion. “The Intel Products embody the essential features of the LGE Patents because they carry out all the inventive processes when combined, according to their design, with standard components.” Last, the Court determined that LGE’s contract with Intel “authorized” the sale of the products that practiced LGE’s patents (“Intel’s authority to sell its products embodying the LGE Patents was not conditioned on the notice”), and the Court expressed “no opinion on whether contract damages might be available even though exhaustion operates to eliminate patent damages.”

In various procedural respects, today’s decision resembles the Supreme Court’s patent law decisions of the past few terms. As it did most prominently in KSR Intn’l v. Teleflex Inc., 127 S. Ct. 1727 (2007), the Court has once again unanimously reversed a lower court decision based on a long-settled Federal Circuit rule favoring patent owners. As the briefing before the Court had emphasized, the Federal Circuit’s decision in Mallinckrodt, Inc. v. Medipart, Inc., 976 F.2d 700 (Fed. Cir. 1992), held that the patent-exhaustion doctrine does not apply to an “expressly conditional sale.” As in KSR, the Supreme Court declined to endorse the Federal Circuit’s “conditional sale” test. Instead, the Supreme Court again emphasized the abiding relevance of its older patent law decisions. Thus, here the Court found that Univis “governs this case” much like the KSR Court found that Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966), provides the current “framework” for whether a claimed invention is “obvious.” Unlike KSR, however, the Court did not directly fault the Federal Circuit for a “rigid rule” (or even specifically refer to Mallinckrodt).

As is often the case with Supreme Court opinions, the immediate practical consequences of today’s decision may well be limited. The Court’s ruling that the sale here was not in fact conditional arguably leaves parties free to argue that the Federal Circuit’s “conditional sale” bar on exhaustion remains the law. Moreover, the Court expressly declined to consider whether LGE could use contract law to achieve its apparent objective of requiring its patent devices only to be used in computers manufactured with LGE parts.

Nevertheless, today’s Quanta decision provides a strong indication that the Supreme Court intends to continue restricting the enforceable scope of patents. The Solicitor General recommended that the Court hear Quanta. But the Supreme Court went beyond the Solicitor General’s request. Rejecting the advice of the Solicitor General not to reach the question, the Court relied on Univis to hold that the exhaustion doctrine applies to a product that embodies “[e]verything inventive” about the patent even if further “common and noninventive” steps are necessary to practice the patented invention. In this respect, Quanta is in close step with KSR. KSR closed by emphasizing that “the results of ordinary innovation are not the subject of exclusive rights under the patent laws.” So too in Quanta, the Court explained that a patent owner could not avoid the impact of the patent exhaustion doctrine merely because the patent includes “common” steps. In both cases, the Court has refocused patent law on protecting the “inventive aspect” of a patented invention.

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On Friday, Steph gave us some great tips for naming characters. Today, I'm going to share some of my tips for turning your cardboard cutout into a fully developed character.

Even with the coolest name in history (like Aspen Brooks or Nicolette Antonavich) your character is not going to be able to carry the weight of your book unless you know more about them than height, weight, eye and hair color. You have to understand what makes them tick, how they will respond to the situations you present them with in the course of the book, whether they like Diet Coke or Pineapple Fanta (My protagonist, Phoebe Castro, likes Fanta, by the way).

So what if your character doesn't appear to you in a dream as a fully realized, three-dimensional person who tells you everything you need to know about her? Well, there are a few shortcuts I've picked up along the way to help me move from characteristic to character.

1. Archetypes. When I'm first developing a character, one of my first stops is The Complete Writer's Guide to Heroes and Heroines by Tami D. Cowden, Caro LaFever, and Sue Viders. This book categorizes male and female characters into eight archetypes each, giving a personality profile for each. And the best part is, once you've figured out who your two main characters are (like Phoebe is a Spunky Kid and Griffin is a Bad Boy) then you can flip to the back to get a rundown of how they react together. Instant conflict and resolution!

2. Zodiac. I use this method less often (usually when the archetypes don't quite nail it for me) but it can give you lots of good stuff, from likes and dislikcopes to favorite colors and foods to where your character holds stress. (I'm a Virgo, so my stress shows up in my stomach. If I ever write a Virgo character, I'll probably use that.) There are tons of great websites where you can get zodiac profiles, but I love The Book of the Zodiac. It goes into great detail about each sign, differences between males and females, work and home life, what their relationships are like. (Plus, it's really colorful!)

3. Collage. I do this for every book. Because I'm a visual learner, I find it invaluable to have a pictorial compilation of my characters. Lots of writers do collages, but here's my method. You'll need some printer paper, scissors, a glue stick, and some magazines.

• Step One: Flip through as many magazines as possible. I like TeenVogue, CosmoGirl, InStyle, and Lucky the best. I tear out anything that reminds me of any of the characters in this book. I do collages for all of the main characters and most of the secondary ones, so as I tear stuff out I divide into piles by character. The more I have to choose from the better. At a minimum I need something that will make a good background, a headshot or two of and actor or model who looks like the character, and some clothing and accessories they would own.

  
  

• Step Two: Build the collage. Start by gluing down a background image that fills up most of the page (this way you won't end up with whitespace left over at the end). Then select a few of the headshot and clothing images, trim them to just the desired element, and arrange them over the background. I always lay these out before I glue so I make sure they all fit. Then snip out the small pictures and accessories and stick them wherever they fit.

  
  

• Step Three: Finalize the collage with words. This usually requires flipping back through the magazines looking for two things. 1) Words that resonate with your characters. 2) Ransom-note-type letters that you can cut out and use to form your character's name. Sometimes I even outline the letters of the name in a silver Sharpie to make it stand out more.

Ta da! You have created a collage (or two or ten) that will give a visual reference for your characters development.


Okay, those are all my secrets. Do you have any special tips or methods you use to give your character depth and substance?

Hugs,
TLC
OH. MY. GODS. -- Dutton, May 2008
teralynnchilds.com

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Admit it. There's a boy you've pining over for weeks (or months or years). You've loved him from afar. Watched him laugh with his friends, pick the olives off his pizza, and--to your utter horror and heartbreak--indulge in some serious PDA with his queen of the Barbie clones girlfriend.

But the world just shifted. The inseparable couple is now officially, unequivocally, irreversibly over. The chance you've been waiting for has finally arrived. Now you just have to figure out how to capitalize on the opportunity.

Here are five ways you might get closer to your crush:

1. Join A Team. Is your crush a hardcore jock? Then what better way to show up on his radar than to show up for practice? Run track or swim on a summer team, where boys and girls practice together. Join the basketball team or take up tennis--even if the boys and girls teams practice separately, they often share buses for out-of-town games, sit together at assemblies, and scrimmage against each other for extra practice.

2. Make Some Music. Maybe your crush is the musical type. If he marches with the school band, only a few clarinet lessons keep you from marching at his side. If he's more the garage band type, find out when his next gig is and plant yourself in the crowd--be sure to compliment his performance afterwards.

3. Join A Club. Is your crush more the straight As and extra-curriculars type? The next time his Science Club has a meeting, be there--lab coat not required. (Plus, it will look good on your college applications!)

We interrupt our regularly scheduled programming for this announcement:

• The winner of Dona's How To basket contest is ... ElaineRene07!

And now, back to the blog.

4. Be A Loyal Customer. Does your crush have a day job? Maybe he delivers pizza on the weekends or works the rental counter at the local video store. Well, a girl has to eat and be entertained, right? Just make sure you don't get in the way of him actually doing his job--he'd probably like to keep it.

5. Ask For Help. If there's one thing all guys like--all people, actually--it's praise for something they're good at. So, if your crush has a particular talent that you don't, why not ask him for help. See if he's available for English tutoring. Or can teach you how to draw those cool graffiti letters he's always sketching--be sure to have a reason, like you want to make really cool posters for your class treasurer campaign.

What do all of the above have in common? They are all ways to show that you and your crush have mutual interests. That's a signal that, once he's finally taken notice, you'll actually have things to talk about beyond how much you've been crushing on him.

There's one last important thing to keep in mind while on your crush quest: You are not a stalker. Approaching any of the above activities with the intention of just getting a chance to gaze longingly at your crush from a closer distance is going to get your nowhere. You have to take the opportunity and make something of it. Keep this valuable axiom in mind:

We almost never regret the things we do, but we often regret the things we didn't do.

In other words, if you take that first step to go after your crush, the worst that can happen is he says, "No." But if you don't, you will never know what might have been.

Time to put this lesson into action. Which one of these ways can you use to get closer to your crush?

Hugs,
TLC
OH. MY. GODS. -- Dutton, May 2008
Pre-order from Amazon now (and save 32%!)
teralynnchilds.com

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What a great week we've had here with the launch of Tina's new book, HOW TO HOOK A HOTTIE! If you haven't run out to get your own copy, keep reading as I'm doing a giveaway today.

We've had a lot of great advice on hooking your own hottie, so I thought I'd help wrap up with some tips on keeping that hooked hottie.

1. Keep in Touch: What's better than walking down the hallway at school hand in hand or with your arms around each other? Keeping in touch with your hottie churns up feel-good hormones and keeps the affection alive and kickin'.



2. Keep Talking: Don't monopolize every conversation. Sharing what's on your mind is the best way to keep the relationship going. Let him tell you what he's thinking.



3. Keep it Real: Neither you nor your hottie are perfect in every way, although we'd like to think so. (LOL!) Don't look at his flaws or quirks or things that might annoy. Realize it's those things that make him real...human.



4. Keep Who You Are: While you've got that hottie hooked, don't forget your friends. They're just as important as he is. Make sure you still have lunch and shopping outings with your friends and don't completely abandon them just to spend time with him. It'll make your time with him all that much better.



5. Keep Being a Good Date: Don't get in the dinner and movie rut. Keep dates fresh. Plan secret things for you and your hottie. Try an extreme sport. Take in a museum. Go to a hockey game. Think of fun and creative things you can do together that keeps the relationship fresh and alive.



So, for today's giveaway of Tina Ferraro's HOW TO HOOK A HOTTIE, post your advice on how to keep your hooked hottie. Winner will be announced on Wednesday!



Hugs,
Marley = )

SORORITY 101: Zeta or Omega? (May 2008, Puffin Books)
SORORITY 101: The New Sisters (May 2008, Puffin Books)
GHOST HUNTRESS Series (Begins May 2009, Houghton Mifflin)

What I'm reading: Well, what else? HOW TO HOOK A HOTTIE

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I don't know about you, but here in the frigid northeast, there's nothing I want to do more than stay indoors, curled under blankets with something warm to drink, some comfort food and a great book to read...

Like Dona's awesome debut, HOW TO SALSA IN A SARI!!!



(Can you tell how proud we are of Dona here at Books, Boys, Buzz?)

And what's the perfect comfort food? Well, mashed potatoes, of course! Sure, you might say, "but I don't need instructions on mashed potatoes." It seems simple, right? However, there is a way to make them perfect. Here's my secret:

1. You want a really sticky, starchy potato. Best are Idaho baking potatoes or the large Yukon Gold potatoes. If you use Idaho, use three medium sized ones, or four large Yukons. This’ll make about four ½ cup servings.

2. Peel them and rinse them off. Cut them into equal size pieces. If they're equal sized pieces, they'll cook more evenly. Usually, I third the potato and then half the thirds. Fill a large pot on the stove with warm water from the tap and drop the cut potatoes in. Make sure the water completely covers the potatoes. To the water, add a good amount of salt. Two teaspoons, at least. The salt will flavor the water and the potatoes as they cook and that much salt won't be absorbed all into the vegetables.

3. Turn to high and cook for 20-25 minutes. You can test the potatoes' done-ness by sticking them with a sharp knife. You want them tender, not tough, but not too mushy.

4. Before draining, take a measuring cup and fill it carefully with about 1/3 of a cup of the cooking liquid and set aside. Turn stove down to low. Pour potatoes carefully into a colander and drain for a moment and then return the potatoes immediately to the hot pot. You will hear the potatoes "sizzle" as this is the remaining liquid evaporating.

5. After about half a minute, take your potato masher and start mashing the potatoes in the pot, on the stove, over the heat. Pour in a little bit of the reserved cooking liquid to help you as you mash, eyeballing so that you mash the potatoes into a smooth paste. Depending on how starchy your potatoes are will depend on how much of the liquid it will hold. Just don't turn it into soup...maybe only using 1/4-1/2 the cup.

6. Here is where I add 2-3 tablespoons of Brummel and Brown (yogurt butter) and 1/2 cup of reduced fat sour cream. Keep mashing and stirring everything together, keeping the stove at a very low setting.

7. At this point, salt the whole thing to your taste and add pepper. I also add fresh cut/diced chives -- maybe a tablespoon -- for taste and appearance. Taste the potatoes and if they're not seasoned to your preference, salt and pepper some more. The key is to season they while they're still on the stove and not when you put them on your plate.

8. Then, I use a mold to present them. You can use anything, really...a sugar shell, a coffee cup, or just plop them on the plate. I guarantee you, if you follow this, they will NOT be bland in the least.



Voila! You're done! Now, enjoy your meal and Dona's book!

Hugs,
Marley = )

SORORITY 101: Zeta or Omega? (May 2008, Puffin Books)
SORORITY 101: The New Sisters (May 2008, Puffin Books)
GHOST HUNTRESS Series (Begins May 2009, Houghton Mifflin)

What I'm reading: (finishing, actually) NEW MOON by Stephanie Meyer

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