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Comment Re:Any insight into what "nonfunctional aspects" m (Score 1) 330

The answer to your question is that design patents cover articles that are "primarily ornamental", which I elaborate upon below. (Your item (b) is the closest to this. However, it is important to point out that, unless specifically stated, design patents cover all potential colorations of an article.)

An ornamental feature or design has been defined as one which was “created for the purpose of ornamenting” and cannot be the result or “merely a by-product” of functional or mechanical considerations. (In re Carletti, 328 F.2d 1020, 140 USPQ 653, 654 (CCPA 1964); Blisscraft of Hollywood v. United Plastic Co., 189 F. Supp. 333, 337, 127 USPQ 452, 454 (S.D.N.Y. 1960), aff’d, 294 F.2d 694, 131 USPQ 55 (2d Cir. 1961)) It is clear that the ornamentality of the article must be the result of a conscious act by the inventor, as 35 U.S.C. 171 requires that a patent for a design be given only to “whoever invents any new, original, and ornamental design for an article of manufacture.” Therefore, for a design to be ornamental within the requirements of 35 U.S.C. 171, it must be “created for the purpose of ornamenting.” (In re Carletti, 328 F.2d 1020, 1022, 140 USPQ 653, 654 (CCPA 1964))

To be patentable, a design must be “primarily ornamental.” “In determining whether a design is primarily functional or primarily ornamental the claimed design is viewed in its entirety, for the ultimate question is not the functional or decorative aspect of each separate feature, but the overall appearance of the article, in determining whether the claimed design is dictated by the utilitarian purpose of the article.” (L. A. Gear Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 1123, 25 USPQ2d 1913, 1917 (Fed. Cir. 1993)) The court in Norco Products, Inc. v. Mecca Development, Inc., 617 F.Supp. 1079, 1080, 227 USPQ 724, 725 (D. Conn. 1985), held that a “primarily functional invention is not patentable” as a design.

A determination of ornamentality is not a quantitative analysis based on the size of the ornamental feature or features but rather a determination based on their ornamental contribution to the design as a whole.

While ornamentality must be based on the entire design, “[i]n determining whether a design is primarily functional, the purposes of the particular elements of the design necessarily must be considered.” (Power Controls Corp. v. Hybrinetics, Inc., 806 F.2d 234, 240, 231 USPQ 774, 778 (Fed. Cir. 1986)) The court in Smith v. M & B Sales & Manufacturing, 13 USPQ2d 2002, 2004 (N. D. Cal. 1990), states that if “significant decisions about how to put it [the item] together and present it in the marketplace were informed by primarily ornamental considerations”, this information may establish the ornamentality of a design.

“However, a distinction exists between the functionality of an article or features thereof and the functionality of the particular design of such article or features thereof that perform a function.” (Avia Group International Inc. v. L. A. Gear California Inc., 853 F.2d 1557, 1563, 7 USPQ2d 1548, 1553 (Fed. Cir. 1988)) The distinction must be maintained between the ornamental design and the article in which the design is embodied. The design for the article cannot be assumed to lack ornamentality merely because the article of manufacture would seem to be primarily functional.

Comment Re:Oracle vs Google (Score 2) 330

To understand how I reached that decision, beyond what I mentioned above, it is important to start with case law dating back to 1893, specifically Smith v. Whitman Saddle Co., 148 U.S. 674, respectively.

The Whitman Saddle case involved a patent on a design for a saddle. During its ruling, the court emphasized the importance of “invention” to the patentability of a design; it stated, “Mere mechanical skill is insufficient. There must be something akin to genius, an effort of the brain as well as the hand. The adaptation of old devices or forms to new purposes, however convenient, useful, or beautiful they may be in their new role, is not invention.” (148 U.S. at 679) The Court then explained (id.):

"The exercise of the inventive or originative faculty is required, and a person cannot be permitted to select an existing form, and simply put it to a new use, any more than he can be permitted to take a patent for the mere double use of a machine. If, however, the selection and adaptation of an existing form is more than the exercise of the imitative faculty, and the result is in effect a new creation, the design may be patentable."

In the case before it, the court characterized the patented saddle design as a combination of elements from two saddle designs that were well known in the art. The court explained that the patented design consisted of a combination of the front half of the so-called Granger saddle and the back end of the so-called Jenifer saddle. The design differed from a simple combination of the two known saddles, according to the court, only in that the front end of the design had “a nearly perpendicular drop of some inches at the rear of the pommel,” unlike in the Granger saddle. (Id. at 680)

Although the trial court, sitting in equity, concluded that the design was patentable, the Supreme Court disagreed. The court wrote, “Nothing more was done in this instance (except as hereafter noted) than to put the two halves of these saddles together in the exercise of the ordinary skill of workmen of the trade, and in the way and manner ordinarily done.” (148 U.S. at 681) The court noted that there was a difference between the pommel of the designed saddle and the pommel of the Granger saddle, and it added that the “shape of the front end being old, the sharp drop of the pommel at the rear seems to constitute what was new and to be material.” Id. at 682. That feature, however, was not present in the defendants’ saddle. The court then concluded with the following remarks (id.):

"If, therefore, this drop were material to the design, and rendered it patentable as a complete and integral whole, there was no infringement. As before said, the design of the patent had two features of difference as compared with the Granger saddle, one the cantle, the other the drop; and unless there was infringement as to the latter there was none at all, since the saddle design of the patent does not otherwise differ from the old saddle with the old cantle added, an addition frequently made. Moreover, that difference was so marked that in our judgment the defendant’s saddle could not be mistaken for the saddle of the complainant."

Since Whitman Saddle was an action in equity, the court did not distinguish sharply between its analysis of patentability and its discussion of infringement. Within the same passage, it moved from stating that it could not agree with the trial court that the design in issue was patentable to the conclusion that if the design were patentable because of the drop at the rear of the pommel, there was no infringement. The point the court was making was that, viewed in light of the similarities between the prior art and the patented design, the accused design did not contain the single feature that would have made it appear distinctively similar to the patented design rather than like the numerous prior art designs. For that reason, it held, the accused design did not infringe.

Subsequent cases applied that principle, interpreting the ordinary observer test of Gorham Co. v. White, 81 U.S. 511 (1871), to require that the perspective of the ordinary observer be informed by a comparison of the patented design and the accused design in light of the prior art, so as to enable the fact-finder to determine whether the accused design had appropriated the inventiveness of the patented design. For example, two cases decided in the wake of Whitman Saddle shed light on the Supreme Court’s analysis in Whitman Saddle and illustrate the application of the ordinary observer test in light of the prior art.

In the first of those cases, Bevin Brothers Manufacturing Co. v. Starr Brothers Bell Co., 114 F. 362 (C.C.D. Conn. 1902), the patent drawing showed an oblate spheroid and neck, and the claim covered “a bell as herein shown and described.” Sitting in equity, the court addressed both validity and infringement, noting that the test of identity on both issues “is the eye of the ordinary observer.” Id. at 363. After noting that the patented form was commonly found in a variety of prior art structures, the court held that the “defense of want of patentable novelty is sustained.” Id. As for infringement, the court again consulted particular objects in the prior art having a similar shape, including a door knob, and concluded that “[t]he shape of the defendant’s bell differs from plaintiff’s more widely than plaintiff’s differs from the door knob, and therefore defendants’ construction does not infringe the patent.” Id. Thus, the court’s approach, like that of the Supreme Court in Whitman Saddle, did not employ a point of novelty test, but invoked the ordinary observer test in which the observer was comparing the patented and accused designs in the context of similar designs found in the prior art.

The second case, Zidell v. Dexter, 262 F. 145 (9th Cir. 1920), cited Whitman Saddle for the proposition that under the ordinary observer standard, a patented design that consists “only of bringing together old elements with slight modifications of form” is not infringed by “another who uses the same elements with his own variations of form . . . if his design is distinguishable by the ordinary observer from the patented design.” Id. at 146. The court emphasized the importance of similar prior art designs to the determination of infringement under the ordinary observer test:

"The evidence shows that at and prior to the conception of this design there were in use and on sale very many similar garments, with variations in design so slight as to leave to the ordinary observer the impression of a very general resemblance, and we must assume that to womankind, who are the purchasers in the main of this class of garment, these various coincident forms of garments were known, and whether such purchasers would be deceived into taking the garments which are alleged to infringe for a garment of the patented design would necessarily depend largely upon that general knowledge."

(Id. at 147)

Some years later, the Sixth Circuit addressed a similar issue in a case involving a design patent on a combination ash tray and electric lighter. Applied Arts Corp. v. Grand Rapids Metalcraft Corp., 67 F.2d 428 (6th Cir. 1933). The district court found infringement by two of the defendant’s designs upon finding that the resemblance between the patented design and the accused design was such as to deceive the ordinary observer. In analyzing the case, the court addressed the question whether the ordinary observer test of Gorham was in conflict with the principle that “similitude of appearance is to be judged by the scope of the patent in relation to the prior art.” (Id. at 429) The court explained that the ordinary observer of the Gorham test was not one “who has never seen an ash tray or a cigar lighter, but one who, though not an expert, has reasonable familiarity with such objects,” and is capable of assessing the similarity of the patented and accused designs in light of the similar objects in the prior art. (67 F.2d at 430) Viewing the ordinary observer test in that manner, the court stated:

"[W]hile there is some similarity between the patented and alleged infringing designs, which without consideration of the prior art might seem important, yet such similarity as is due to common external configuration is no greater, if as great, between the patented and challenged designs as between the former and the designs of the prior art."

(Id.) After noting the similarities between the patented design and the prior art designs, the court concluded that the differences between the two “are no greater than those that exist between the patented design and the alleged infringing designs.” Accordingly, the court concluded, assuming the patent to be valid “it is quite clear it is entitled to a very limited interpretation and that so limited the defendant’s designs do not infringe.” Id. The court ruled that while it was aware that similarity “is not to be determined by making too close an analysis of detail,” nonetheless, “where in a crowded art the composite of differences presents a different impression to the eye of the average observer (as above defined), infringement will not be found.” (Id.)

That precedent was followed by the Eighth Circuit in Sears, Roebuck & Co. v. Talge, 140 F.2d 395 (8th Cir. 1944). The district court in that case held that the defendant’s home fruit juicer infringed the plaintiff’s patents on fruit juicer designs. The court stated that the test for design patent infringement involves two elements: (1) “the identity of appearance, or sameness of effect as a whole upon the eye of an ordinary purchaser must be such as to deceive him, inducing him to purchase one, supposing it to be the other” and (2) “the accused device must appropriate the novelty in the patented device which distinguishes it from the prior art.” (Id. at 395-96) To make the latter determination, the court explained, “requires a comparison of the features of the patented designs with the prior art and with the accused design.” (Id. at 396) By examining the prior art fruit juicers, the court was able to identify the “novel elements embodied in the [patented] design.” The court then determined that there was no identity of appearance with respect to those elements between the claimed designs and the accused products. (Id.)

To summarize, in Bevin Brothers and Zidell, the courts emphasized that the defendant’s product would appear different from the plaintiff’s protected design to an ordinary observer aware of the great number of closely similar prior art designs. In Applied Arts, the accused ash tray would not appear to be the same as the claimed ash tray as long as “similitude of appearance is [...] judged by the scope of the patent in relation to the prior art.” (67 F.2d at 429) And in Sears, Roebuck, the court concluded that the accused fruit juicer would not appear similar to the claimed design if the fact-finder performed the required “comparison of the features of the patented designs with the prior art and with the accused design.” (140 F.2d at 396)

Now, based upon all of this information, I reached the following conclusions:
- In close cases, it can be difficult to answer the question whether one thing is like another without being given a frame of reference. Nevertheless, the context in which the claimed and accused designs are compared, i.e., the background prior art, provides such a frame of reference and is therefore often useful in the process of comparison; further, those designs highlight the distinctions between the claimed design and the accused design as viewed by the ordinary observer.
- Since Apple's design patents do not outline articles that strongly resemble those before patented it, along with the intricacies they contain, I found, as I noted above, and possibly the courts will too, that they are unique enough (even though they describe incredibly "simplistic" packages/layouts) to deserve a patent and will likely pass the "ordinary observer" test.

Comment Re:Oracle vs Google (Score 3, Informative) 330

(Submitting this comment again, since it apparently didn't get accepted the first time)

As I mentioned above, according to the US Patent Office, Apple's design met their criteria to merit the awarding of a patent. Whether or not the jury, and likely the appeal courts, agree, is still debatable.

To elaborate a bit on this, and also better refine by above post, Apple's design patents do not cover all rectangular-shaped electronic devices with rounded corners. Apple's design patents, e.g., for the iPad (D504,889, and others), are rather precise, and, ultimately, limited: they cover an article with a certain kind of case design, a specific screen placement and size ratio with respect to the body, and input port/button location. Provided that other companies/individuals do not, practically, reuse the same design elements, i.e., an article doesn't have buttons in the same locations, similar stylizations in the same locations, the same kind of package design, etc., the US Patent Office is willing to grant design patents.

Now, the court's view is mostly aligned with the US Patent Office's on what constitutes a valid design, i.e., the design threshold needed to afford protection via a patent. To begin, it is helpful to at least outline some preliminary case law about design patents:

"A design patent protects the nonfunctional aspects of an ornamental design as shown in the patent." (Elmer v. ICC Fabricating, Inc., 67 F.3d 1571, 1577 (Fed. Cir. 1995) (citing Keystone Retaining Wall Sys., Inc. v. Westrock, Inc., 997 F.2d 1444, 1450 (Fed. Cir. 1993))) The chief limitation on the patentability of designs is that they must be primarily ornamental in character. If the design is dictated by performance of the article, then it is judged to be functional and ineligible for design patent protection. (Best Lock Corp. v. Ilco Unican Corp., 94 F.3d 1563, 1566 (Fed. Cir. 1996))

As for case law about design thresholds, I found it by looking through that concerning infringement (a design patent is infringed by the "unauthorized manufacture, use, or sale of the article embodying the patented design or any colorable imitation thereof." (Goodyear Tire & Rubber Co. v. Hercules Tire & Rubber Co., 162 F.3d 1113, 1116-17 (Fed. Cir. 1998))):

Similar to the infringement analysis of a utility patent, infringement of a design patent is evaluated in a two-step process. First, the court must construe the claims of the design patent to determine their meaning and scope. (OddzOn Prods., Inc. v. Just Toys, Inc., 122 F.3d 1396, 1404-05 (Fed. Cir. 1997)) Design patents typically are claimed as shown in drawings. Claim construction by a court is adapted accordingly. Goodyear, 162 F.3d at 1116. The scope of the claim of a patented design “encompasses ‘its visual appearance as a whole,’ and in particular ‘the visual impression it creates.’” (Contessa Food Prods., Inc. v. Conagra, Inc., 282 F.3d 1370, 1376 (Fed. Cir. 2002) (quoting Durling v. Spectrum Furniture Co., 101 F.3d 100, 104-05 (Fed. Cir. 1996)))

Second, after construction of the patent’s claims, the court is to compare the construed claims to the accused design. Elmer, 67 F.3d at 1577. Infringement of a design patent occurs if "the designs have the same general visual appearance, such that it is likely that the purchaser [(or the ordinary observer)] would be deceived into confusing the design of the accused article with the patented design." (Goodyear, 162 F.3d at 1118) The patented and accused designs do not have to be identical in order for design patent infringement to be found. (Contessa, 282 F.3d at 1376) In determining infringement of a design patent, the court "is not limited to the ornamental features of a subset of the drawings, but instead must encompass the claimed ornamental features of all figures of a design patent." (Id. at 1379 (emphasis added))

The comparison of the patented and accused designs involves two separate tests, both of which must be satisfied to find infringement: the "ordinary observer" test and the "point of novelty" test. (Bernhardt, L.L.C. v. Collezione Europa USA, Inc., 386 F.3d 1371, 1383 (Fed. Cir. 2004)) The "ordinary observer" test was first enunciated by the United States Supreme Court in Gorham Manufacturing Co. v. White, 81 U.S. 511 (1871), which held that: "[I]f, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other."

Id. at 528. In a separate and distinct inquiry, the "point of novelty" test requires proof that the accused design appropriated the novelty which distinguishes the patented design from the prior art. (Egyptian Goddess, Inc. v. Swisa, Inc., No. 2006-152, 2007 WL 2439541, at *2 (Fed. Cir. Aug. 29, 2007) (citing Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1444 (Fed. Cir. 1984))) To quote: "[T]he panel stated that the point of novelty in a patented design 'can be either a single novel design element or a combination of elements that are individually known in the prior art.' Id. at 1357. The panel added, however, that in order for a combination of individually known design elements to constitute a point of novelty, 'the combination must be a non-trivial advance over the prior art.' Id."

Bringing things back to the main discussion, in their original iPad design patent, Apple cited five prior works: P. M. Alfonso, et al. (D345,346, Oct. 1991), M. Naruki (D396,452, Jul. 1997), D. Iseki, et al. (D451,505, Dec. 2000), M. E. Palm, et al. (D458,252, Dec. 2000), and Y.-B. Chen (D453,333, Jan. 2001), all of which are articles that, while being rectangular and being dominated by a a large screen, would likely appear sufficiently different under the "ordinary observer" test.

(Continued below)

Comment Re:Oracle vs Google (Score 4, Informative) 330

A flat rectangle with a touch screen is not a patentable design.

This is an erroneous claim. To see why, it is instructive to see what the US Patent Office has to say about design patents:

"A design consists of the visual ornamental characteristics embodied in, or applied to, an article of manufacture. Since a design is manifested in appearance, the subject matter of a design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation. A design for surface ornamentation is inseparable from the article to which it is applied and cannot exist alone. It must be a definite pattern of surface ornamentation, applied to an article of manufacture.

The Patent Law provides for the granting of design patents to any person who has invented any new, original and ornamental design for an article of manufacture. A design patent protects only the appearance of the article and not its structural or utilitarian features. The principal statutes (United States Code) governing design patents are:

35 USC 171: Whoever invents any new, original and ornamental design for an article of manufacture may obtain a patent therefor, subject to the conditions and requirements of this title. The provisions of this title relating to patents for inventions shall apply to patents for designs, except as otherwise provided.

[...]

35 USC 102: A person shall be entitled to a patent unless: (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or (c) he has abandoned the invention, or (d) the invention was first patented or caused to be patented, or was the subject of an inventor’s certificate, by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application for patent or inventor’s certificate filed more than twelve months before the filing of the application in the United States, or (e) the invention was described in (1) an application for patent, published under section 122 (b), by another filed in the United States before the invention by the applicant for patent or (2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, except that an international application filed under the treaty defined in section 351 (a) shall have the effects for the purposes of this subsection of an application filed in the United States only if the international application designated the United States and was published under Article 21(2) of such treaty in the English language; or (f) he did not himself invent the subject matter sought to be patented, or (g) (1) during the course of an interference conducted under section 135 orsection 291, another inventor involved therein establishes, to the extent permitted in section 104, that before such person’s invention thereof the invention was made by such other inventor and not abandoned, suppressed, or concealed, or (2) before such person’s invention thereof, the invention was made in this country by another inventor who had not abandoned, suppressed, or concealed it. In determining priority of invention under this subsection, there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.

35 USC 103: (a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made. [...]"

In short, the US Patent Office found that Apple's design patents (B. K. Andre, et al., D618,677, Jun. 2007; B. K. Andre, et al., D602,016, Apr. 2008) were sufficiently original to merit acceptance based upon their guidelines, even though they effectively describe articles that are rounded rectangles with touch screens. (The only way that such a design would be invalid, at least according to the US Patent Office, is if a sufficiently similar article was fleshed out in an earlier design patent.)

Comment Re:Arizona? No Thanks (Score 3, Informative) 555

Since you didn't bother to specify which, now disbanded, Arizonian "minutemen" group, there's the murders of Raul and Brisenia Flores by Shawna Forde (State of Arizona vs. Shawna Forde (court case number CR-20092300-001, Pima County)), the founder of the splinter group Minutemen American Defense, and Jason Bush (State of Arizona vs. Jason Eugene Bush (court case number CR-20092300-003, Pima County)).

Comment Re:So what's the purpose of this story again? (Score 5, Interesting) 172

Although the story doesn't mention it, unlike others, I'm guessing it's one more subtle jab to the fact that he [Curt Schilling] is vehemently opposed to government financial bailouts and stimulus funds, yet didn't bother to eschew a tax-payer backed state loan, let alone managed his company, from afar, in the same impetuous manner as those that required government aid in the first place.

Had Schilling really wanted to make Copernicus a reality, there were plenty of other alternative steps he and the management at 38 Studios could have taken. One option would have been to scrap the development of an MMO, something that, as the article noted, resulted in a number of years without revenue, and instead focused on an excellent single-player game from the get-go, so as to build up brand recognition before branching out. (While they, in a half-hearted attempt, did this with Kingdoms of Amalur, it really wasn't a good enough effort, which is evident in just about every facet of the game.)

Comment Re:Relevant (Score 1) 696

You've displayed a key lack of understanding in many topics in all of your posts. While I don't have a desire to point out all of your egregiously specious claims, as some have already done that for me, I will say that you clearly have a short memory, depending upon your age, when it comes to some of the components of the Patient Protection and Affordable Care Act (HR 3590 with amendment).

To elaborate, almost two decades ago, a paper from the Heritage Foundation (S. M. Butler, "The Heritage consumer choice health plan", Heritage Foundation, 1992; see also S. M. Butler, "Assuring Affordable Health Care for All Americans", 1989; M. V. Pauly, et al., "A plan for responsible national health insurance", Health Affairs, 1991; R. E. Moffitt, "Personal freedom, responsibility, and mandates", Health Affairs, 1994; T. Miller, "Cato Institute policy analysis no. 210: Nickles-Sterns is not the market choice for health care reform", Cato Institute, 1994) pushed for health insurance mandates as an alternative to the Clinton health care plan of 1993. To quote:

"Step #2: Require all households to purchase at least a basic package of insurance, unless they are covered by Medicaid, Medicare, or other government health programs: All Heads of households would be required by law to obtain at least a basic health plan specified by Congress. The refundable credit system would offset the cost of such a plan for most Americans, as the exclusion does today for those with company-sponsored plans.

In addition to these core steps, the Heritage plan would institute reforms to smooth the transition to the consumer-based national system and to enable the market for health insurance and medical care to operate more effectively. Among these, the plan would:

(1) Reform the insurance market: The private insurance market would be reformed to make a standard basic package available to all at an acceptable price.
(2) End state insurance mandates: Most states mandate that insurance sold must cover certain services. These mandates would in effect be preempted, to allow the basic plan to be marketed throughout the United States and to permit new types of group sponsors to sell plans. In addition, plans could not be made subject to state restrictions on managed care. These state mandates could be preempted by federal law, as they are for the Federal Employee Health Benefit Program. Or the federal government could widen current exemptions from state mandates for self-insured company plans to include any plan that complies with the insurance requirements of the Heritage proposal.
(3) Place requirements on employers: In a system based on the Heritage proposal, employers would be required by law to do two things: 1) "Cash out" benefits during a one year transition period: Employers would have to add the cash value of their existing plan to the paychecks of any employee wishing to switch to an alternative plan or if the employer decided to terminate the plan. This means employees would be what economists call "held harmless" by the charge. After the transition, employers and employees would bargain for compensation packages as they do today. 2) Introduce payroll deduction for health insurance to adjust withholdings: Employers would be required to make payroll deductions each pay period, at the direction of each employee, and send the amount to the plan of the employee's choice. This would be like the payroll deduction that many employees instruct their employers to make for contributions to a 401(k) or similar savings plan. In the federal employee health system, a worker's agency or congressional office makes a similar payroll deduction to pay for premium costs."

This resulted in a number of bills, sponsored by Republicans, including the Consumer Choice Health Security Act (SB 1743), which was introduced in 1993 by Senator Don Nickles (R-OK) and 24 Republican co-sponsors and had this to say about the individual mandate:

"Subtitle C: Employer Provisions - Requires employers to: (1) withhold health insurance premiums from employee wages and remit such premiums to the employee's chosen insurer; and (2) notify employees of their right to claim an advance refundable tax credit for such premiums."

and the Health Equity and Access Reform Today Act (SB 1770), which was introduced in 1993 by Senator John Chafee (R-RI) and 18 Republican co-sponsors:

"Subtitle F: Universal Coverage - Requires each citizen or lawful permanent resident to be covered under a qualified health plan or equivalent health care program by January 1, 2005. Provides an exception for any individual who is opposed for religious reasons to health plan coverage, including those who rely on healing using spiritual means through prayer alone."

Comment Re:A field in its infancy (Score 2, Interesting) 575

I'm not sure what point you're trying to make in relation to my post. Almost all of the references I listed, which the parent poster desired from the grandparent poster, were to neuroscience journals, not "soft science" ones. (Having worked and written articles with more than a few neuroscientists in the past, many of whom also had M.D.s and joint appointments as faculty in the schools of medicine at various universities, I can definitely say they are not, principally, psychologists; granted, some neuroscientists can dabble in psychology, but most tend to stay within the realms of biology, medicine, and chemistry.)

In case you're confused about the two, to illustrate the difference between psychologists and neuroscientists, it is instructive to consider how we parse space.

In the psychology literature, one of the more dominant theories says that, when we couple or descriptions of routes with directional relations, we form spatial mental models of the information [1]. We then, through imagined geometric [2] or perspective transformations [3-5], synchronize them with the environment to navigate. Similarly, when we encounter spatial and object information that portray a scene, psychologists argue that we construct internal characterizations of it [6-10], which can be linked to the real world [11-15], despite incomplete or poorly worded descriptions [16], object position/size differences [17], etc.

Now, according to psychologists, how we build up this information is a source of contention: one group believes that we form abstract, mental images, while another says that we fabricate a semi-relaxed rule-base, both of which have "evidence" to "strongly support" their claims. That is, some psychologists got together and designed some experiments whose predicted observational results could be loosely interpreted as supporting some of their conclusions.

In contradistinction to simply dreaming up a theory, and sometimes tailoring tests to yield results that mostly conform to it, neuroscientists actually dig into the nervous system and try to figure out what's going on, i.e., they work from the opposite direction as psychologists and typically move forward without any sort of preconceptions as to what they will find. Of course, it is important to point out that their work usually takes years or decades to reach fruition, as they first have to find specific area(s) of the brain that correspond to various functions, which is no easy task, followed by making sense of neuronal activity, chemical secretions, etc. (see e.g., [18-42]). (Consequently, while psychologists think they have space partly figured out, neuroscientists have yet to say if any of them are actually right!)

[1] B. Tversky, et al., "Spatial mental models from descriptions", J. Amer. Soc. Inform. Science 45: 656-668, 1994
[2] R. Maki, et al., "Processing location and orientation information", Memory Cogn. 5: 602-612, 1977
[3] H. Taylor and B. Tversky, "Descriptions and depictions of environments", Memory Cog. 20: 483-496, 1992
[4] H. Taylor and B. Tversky, "Spatial mental models derived from survey and route descriptions", J. Memory Lang. 31: 261-282, 1992
[5] H. Taylor and B. Tversky, "Perspective in spatial descriptions", J. Memory Lang. 35: 371-391, 1996
[6] P. Foos, "Constructing cognitive maps from sentences", J. Exper. Psychol. 6: 25-38, 1980
[7] A. Garnham, "Mental models as representations of text", Memory Cogn. 9: 560-565, 1981
[8] K. Mani and P. Johnson-Laird, "The mental representation of spatial descriptions", Memory Cogn. 10: 181-187, 1982
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Comment Re:A field in its infancy (Score 0) 575

Learning can be hard for some, e.g., that person might have developmental dyscalculia, a rather specific developmental disorder:

B. Butterworth, et al., "Dyscalculia: From brain to education", Science 332: 1049–1053, 2011
N. Molko, et al., "Functional and structural alterations of intra-arietal sulcus in a developmental dyscalculia of genetic origin", Neuron 40: 847-858, 2003
H. S. Levin, et al., "Dyscalculia and dyslexia after right hemisphere injury in infancy", Arch. Neurol. 53: 88-96, 1996
K. L. Koontz and D. B. Berch, "Identifying simple numerical stimuli: Processing inefficiencies exhibited by arithmetic learning disabled children", Mathemat. Cogn. 2: 1-24, 1996
L. M. Levy, et al., "Metabolic abnormalities detected by 1H-MRS in dyscalculia and dysgraphia", Neurol. 53: 639-641, 1999
N. Molko, et al., "Brain anatomy in Turner syndrome: Evidence for impaired social and spatial-numerical networks", Cereb. Cortex 14: 840-850, 2004
E. B. Isaacs, et al., "Calculation difficulties in children of very low birthweight: A neural correlate", Brain 124: 1701-1707, 2001
R. S. Shalev, et al., "Developmental dyscalculia and brain laterality", Cortex 31: 357-365, 1995
I. P. Martins, et al., "Acquired procedural dyscalculia associated to a left parietal lesion in a child", Child Neuropsychol. 5: 265-273, 1999
K. Kucian, et al., "Impaired neural networks for approximate calculation in dyscalculic children: A functional MRI study", Behav. Brain Funct. 2: 31, 2006
R. Cohen, et al., "Virtual dyscalculia induced by parietal-lobe TMS impairs automatic magnitude processing", Curr. Biol. 17: 689-693, 2007
R. Stanescu-Cosson, et al., "Understanding dissociations in dyscalculia: A brain imaging study of the impact of number size on the cerebral networks for exact and approximate calculation", Brain 123: 2240-2255, 2000
S. M. Rivera, et al., "Functional brain activation during arithmetic processing in females with fragile X Syndrome is related to FMR1 protein expression", Hum. Brain Mapp. 16: 205-218, 2002
S. M. Rivera, et al., "Developmental changes in mental arithmetic: Evidence for increased functional specialization in the left inferior parietal cortex", Cereb. Cortex 15: 1779-1790, 2005
S. Dehaene and L. Cohen, "Cerebral pathways for calculation: Double dissociation between rote verbal and quantitative knowledge of arithmetic", Cortex 33: 219-250, 1997
P. Burbaud, et al., "Lateralization of prefrontal activation during internal mental calculation: A functional magnetic resonance imaging study", J. Neurophysiol. 74: 2194-2200, 1995
V. Menon, et al., "Dissociating prefrontal and parietal cortex activation during arithmetic processing", NeuroImage 12: 357-365, 2000
Y. Takayama, et al., "Isolated acalculia due to left parietal lesion", Arch. Neurol. 51: 286-291, 1994
M. Pesenti, et al., "Neuroanatomical substrates of arabic number processing, numerical comparison, and simple addition: a PET study", J. Cogn. Neurosci. 12: 461-479, 2000
T. C. Rickard, et al., "The calculating brain: an fMRI study", Neuropsychologia 38: 325-335, 2000
L. Cohen, et al., "Language and calculation within the parietal lobe: A combined cognitive, anatomical and fMRI study", Neuropsychologia 38: 1426-1440, 2000
L. Kaufmann, et al., "Deficient arithmetic fact retrieval - Storage or acess problem?", Neuropsychologia 42: 482-496, 2004
N. J. van Harskamp, et al., "Are multiplication facts implemented by the left supramarginal and angular gyri?", Neuropsychologia 40: 1786-1793, 2002
O. Rubinsten and A. Henik, "Automatic activation of internal magnitudes: A study of developmental dyscalculia", Neuropsychol. 19: 641-648, 2005
V. J. Schmithorst and R. D. Brown, "Empirical validation of the triplecode model of numerical processing for complex math operations using functional MRI and group independent component analysis of the mental addition and subtraction of fractions", NeuroImage 22: 1414-1420, 2004
R. S. Shalev and V. Gross-Tsu, "Developmetnal dyscalculia", Pediatr. Neurol. 24: 337-342, 2001
A. Ardila and M. Rosselli, "Acalculia and dyscalculia", Neuropsychol. Rev. 12: 179-231, 2002
C. M. Temple, "Procedural dyscalculia and number fact dyscalculia: Double dissociation in developmental dyscalculia", Cogn. Neuropsychol. 8: 155-176, 1991
J. Bachot, et al., "Number sense in children with visuospatial disabilities: orientation of the mental number line", Psychol. Science 37: 172-183, 2005
J. F. McLean and G. J. Hitch, "Working memory impairments in children with specific arithmetic learning difficulties", J. Exper. Child Psychol. 74: 240-260, 1999
D. C. Geary, "Mathematics and learning disabilities", J. Learn. Disabilities 37: 4-15, 2004
K. Landerl, et al., "Developmental dyscalculia and basic numerical capacities: A study of 8–9-year-old students", Cognition 93: 99-125, 2004
L. Rousselle and M.-P. Noël, "Basic numerical skills in children with mathematics learning disabilities: A comparison of symbolic vs non-symbolic number magnitude processing", Cognition 102: 361-395, 2007
L. Kosc, "Developmental dyscalculia", J. Learn. Disabil. 7: 164-177
M. C. Monuteaux, et al., "ADHD and dyscalculia: Evidence for independent familial transmission", J. Learn. Disabil. 38: 86-93, 2005
C. Lewis, et al., "The prevalence of specific arithmetic difficulties and specific reading difficulties in 9- to 10-year old boys and girls", J. Child Psychol. Psychiatry 35: 283-292, 1994
B. Butterworth, "The development of arithmetical abilities", J. Child Psychol. Psychiatry 46: 3-18, 2005

Comment Re:Cue the melodramatic space nutters.... (Score 1) 138

History is filled with intransigent people like yourself that do not believe we will ever grow beyond our current mold, that certain topics are not worth pursuing as they will never bear fruit, etc. A good example are those skeptical about the future of artificial intelligence moving away simple heuristics and mathematical models, despite that "full"-brain simulation, at least at the neuronal level, is now not a matter of if, but when:

H. Markram, "The Blue Brain project", Nature Rev. Neurosci. 7: 153-160, 2006
H. Markram, "Fixing the location and dimensions of functional neocortical columns", HFSP J. 2: 132-135, 2008
G. Khazen, et al., "Combinatorial expression rules of ion channel genes in juvenile rat (Rattus norvegicus) neocortical neurons", PLoS One 7: e34786, 2012
M. Hines, et al., "Comparison of neuronal spike exchange methods on a Blue Gene/P supercomputer" Front. Comput. Neurosci. 5: 49, 2011
R. Perin, et al., "A synaptic organizing principle for cortical neuronal groups", PNAS 108: 5419-5424, 2011
A. C. Anastassiou, et al., "Ephaptic coupling of cortical neurons", Nature Neurosci. 14: 217-223, 2011
S. Druckmann, et al, "Effective stimuli for constructing reliable neuron models", PLoS Comput. Biol. 7: e1002133, 2011
E. Hay, et al., "Models of neocortical layer 5b pyramidal cells capturing a wide range of dendritic and perisomatic active properties", PLoS Comput. Biol. 7: e1002107, 2011
S. Romand, et al., "Morphological development of thick-tufted layer V pyramidal cells in the rat somatosensory cortex", Front. Neuroanat. 5: 5, 2011
J. G. King, et al., "A copmonent-based extension framework for large-scale parallel simulations in NEURON", Front. Neuroinfo. 3: 10, 2009
T. K. Berger, et al., "Frequency-dependent disynaptic inhibition in the pyramidal network: A ubiquitous pathway in the developing rat neocortex", J. Physiol. 587: 5411-5425, 2009
A. Loebel, et al., "Multiquantal release underlies the distribution of synaptic efficacies in the neocortex", Front. Comput. Neurosci. 3: 27, 2009
H. Köndgen, et al., "The dynamical response properties of neocortical neurons to temporally modulated noisy inputs in vitro", Cerebral Cortex 18: 2086-2097, 2008
M. L. Hines, et al., "Neuron splitting in compute-bound parallel network simulations enables runtime scaling with twice as many processors", J. Comput. Neurosci. 25: 203-210, 2008
M. L. Hines, et al., "Fully implicit parallel simulation of single neurons", J. Comput. Neurosci. 25: 439-448, 2008
C. Calì, et al., "Inferring connection proximity in networks of electrically coupled cells by subthreshold frequency response analysis", J. Comput. Neurosci. 24: 330-345, 2008
M. Arsiero, et al., "The impact of input fluctuations on the frequency–current relationships of layer 5 pyramidal neurons in the rat medial prefrontal cortex", J. Neurosci. 27: 3274-3284, 2007
J.-V. Le Bé, et al., "Morphological, electrophysiological, and synaptic properties of corticocallosal pyramidal cells in the neonatal rat neocortex", Cerebral Cortex 17: 2204-2213, 2007
G. Silberberg and H. Markram, "Disynaptic inhibition between neocortical pyramidal cells mediated by Martinotti cells", Neuron 53: 735-746, 2007
M. Toledo-Rodriguez and H. Markram, "Single-cell RT-PCR, a technique to decipher the electrical, anatomical, and genetic determinants of neuronal diversity", Methods Mol. Biol. 403: 123-139, 2007
T. Berger, et al., "Transient rhythmic network activity in the somatosensory cortex evoked by distributed input in vitro", Neurosci. 140: 1401-1413, 2006
J.-V. Le Bé and H. Markram, "Spontaneous and evoked synaptic rewiring in the neonatal neocortex", PNAS 103: 13214-13219, 2006
M. Migliore, et al., "Parallel network simulations with NEURON", J. Comput. Neurosci. 21: 119-129, 2006
Y. Wang, et al., "Heterogeneity in the pyramidal network of the medial prefrontal cortex", Nature Neurosci. 9: 534-542, 2006
J. V. Le Bé, et al., "Morphological, electrophysiological, and synaptic properties of corticocallosal pyramidal cells in the neonatal rat neocortex", Cerebral Cortex 17: 2204-2213, 2007
J. B. Maciokas, et al., "Accurate dynamical models of interneuronal GABAergic channel physiologies", Neurocomput. 65-66: 5-14, 2005
G. Silberberg, et al., "Synaptic pathways in neural microcircuits", Trends Neurosci. 28: 541-551, 2005
N. Kalisman, et al., "The neocortical microcircuit as a tabula rasa", PNAS 102: 880-885, 2005
M. J. E. Richardson, et al., "Short-Term synaptic plasticity orchestrates the response of pyramidal cells and interneurons to population bursts", J. Comput. Neurosci. 18: 323-331, 2005
M. Toledo-Rodriguez, et al., "Neuropeptide and calcium-binding protein gene expression profiles predict neuronal anatomical type in the juvenile rat", J. Physiol. 567: 401-413, 2005
S. Grillner, et al., "Microcircuits in action from CPGs to neocortex", Trends Neurosci. 28: 525-533, 2005
M. Toledo-Rodriguez, et al., "Correlation maps allow neuronal electrical properties to be predicted from single-cell gene expression profiles in rat neocortex", Cerebral Cortex 14: 1310-1327, 2004
Y. Wang, et al., "Anatomical, physiological and molecular properties of Martinotti cells in the somatosensory cortex of the juvenile rat", J. Physiol. 561: 65-90, 2004

In any event, it makes me saddened that you have such low regard for the capabilities, prowess, and determination of mankind.

Comment Re:WTF was he thinking? (Score 3, Interesting) 60

[...] highlights what's wrong with the dissertation format of masters and PhD's, which is that there's a lot of information in there which no one cares about, isn't really yours anymore than you're just re-writing it for the sake of demonstrating that you know the information exists, and that could probably be cut entirely from the process and not negate much.

All of the background information in a thesis serves to do three more things, when properly written, beyond what you mentioned, i.e., showing that you appear to know the material:

- First, it should provide a nice, high-level summary of the research area you're focusing on, perhaps with a nod to related ones, so that a new researcher coming into the field can immediately get a foothold and decide what he or she needs to read to become more proficient. (Merely citing a slew of papers is great, but definitely not as meaningful as posting what work was done in them, providing some insights, etc.) In fact, being rather thorough in your literature review is a great way to garner plenty of citations: even if you don't intend for it to be a review paper, others will start viewing it as such.

- A second, intertwined point is that it should provide enough background information for someone who is sufficiently well-versed in that discipline, but not necessarily your topic, to gauge the credibility of your work. For example, in my S.M. Applied Math thesis, I had some nice sections on (special) functions of bounded variation, gamma convergence, k-currents, and variolds, along with some novel proofs of some fundamental notions associated with each of those, as my committee members were not completely knowledgeable about each. Moreover, the proofs I included had the effect of making my later analyses simpler than if I had gone with some of the standard proofs, e.g., by L. Ambrosio, G. Dal Maso, etc.

- Finally, it should explain how what you are doing is sufficient to merit an advanced degree.

Comment Re:Wonderful concept... (Score 2) 163

From the units posted on the graph, the windows in the Passivhaus are emitting radiation consistent with a 1-2C increase in temperature (or, rather, the difference between 37/39.2F and 41F), while those for the traditional structure are consistent with a ~4C increase in temperature (or, rather, the difference between 37/39.2F and 46F). (Compared to double-pane, low-E, R-3 (U-factor 0.3) windows, triple-pane windows (typically R-5/U-factor 0.2) can reduce average heat loss through the window by more than 30 percent, when compared to R-3 windows in residential buildings situated in northern climate zones.) To say that the windows in the Passivhaus are leaking heat like a sieve is specious.

Comment Re:One Sided science (Score 1) 505

As a some-time computational physicist I find accounts like yours disturbing and depressing.

Nowhere in my posts have I explicitly espoused the current crop of global climate models: I stated that I wish to see those ardent skeptics go out and intelligently start to refute those models (be it through comment papers or, my primary hope, by advancing much more sound methodologies).

To elaborate, having done a Ph.D. in applied math and another in statistics, let alone having worked on incredibly complex mathematical models for seemingly simple biological, neurological, and geological processes, I recognize that many of the climate models in the literature are likely woefully inadequate. For example, the HadCM2, which I believe you were discussing in your post, required an adjustment phase, whereby additional, "artificial" heat and freshwater fluxes at the ocean surface were added in order to produce "good" simulations (this was, however, corrected in the HadCM3: C. Gordon, et al., "The simulation of SST sea ice extents and ocean heat transports in a version of the Hadley Centre coupled model without flux adjustments", Clim. Dyn. 16: 147-168, 2000; V. D. Pope, et al., "The impact of new physical parameterizations in the Hadley Centre climate model - HadAM3", Clim. Dyn. 15: 1230146, 2000; M. Collins, et al., "The internal climate variability of HadCM3: A version of the Hadley Centre coupled model without flux adjustments", Clim. Dyn. 17: 61-81, 2001). Nevertheless, many of them do at least couple multiple processes, e.g., thermomechanical ice sheet dynamics and chemical transport models.

That being said, I would relish the thought of more money, be it from public or private sources, being pumped into exascale computing so we could reduce the equivalent of 64 Blue Gene /Q cabinets into a single one and start doing much more complex simulations.

Comment Re:One Sided science (Score 1) 505

Impossible when the AGW people control the "peer reviewed literature" and collude to keep out papers that disagree with AGW [...]

The AGW people control the literature as much as officials at the Pentagon wield influence over the US populace with their secret mind control machines.

As I mentioned in my above post, the editors at places like Science, Nature, PNAS, etc., will publish skeptical papers if you can provide sound evidence and/or reasoning to support your claims, let alone a solid empirical validation protocol,. As an example, Nature was willing to publish a paper by Jacques Benveniste ("Human basophil degranulation triggered by very dilute antiserum against IgE", Nature 333: 816-818, 1988), which basically proved the existence of homeopathy, provided that the results could be replicated by independent laboratories. Another is the paper by Targ and Puthoff ("Information transmission under conditions of sensory shielding", Nature 251: 602-607, 1974) about the self-proclaimed psychic Uri Geller.

[...] which was one of the things exposed by all those leaked climate emails

The emails between Mann and Jones (http://www.eastangliaemails.com/emails.php?eid=295&filename=1047388489.txt) were talking about the flawed paper by W. Soon and S. Baliunas ("Proxy climatic and environmental changes of the past 1000 years", Clim. Res. 23: 89-110, 2003) and how Mann, and others, should boycott Climate Research until one of their editors got his act together.

To put things in perspective, if papers that would normally go to the Journal of Creation or Creation Research Society Quarterly, e.g., those with wonderful claims like:

"According to Genesis, trees were created on the third day of the Creation Week. Within a Biblical worldview, this suggests that they are discontinuous with other plant forms. Naturalists posit that trees arose by random processes from simpler photosynthetic organisms. Fossil evidence for tree evolution from putative non-tree precursors is evaluated. It is concluded that the fossil record does not support an evolutionary origin for trees from non-tree plant forms. The earliest trees found in the fossil record were well developed, and no plausible explanation exists to overcome the enormous odds against their evolutionary origins from single-celled ancestors. It is concluded that when the fossil record, tree ecology, global Flood, and complex biochemical systems are analyzed within a Biblical worldview, the data are consistent with the Genesis account that God directly created trees."

and:

"Experiments co-sponsored by the Creation Research Society show that helium leakage deflates radioisotopic ages. In 1982 Robert Gentry found amazingly high retentions of nuclear-decay-generated helium in microscopic zircons (ZrSiO4 crystals) recovered from a borehole in hot Precambrian granitic rock at Fenton Hill, NM. We contracted with a high-precision laboratory to measure the rate of helium diffusion out of the zircons. The initial results were very encouraging. Here we report newer zircon diffusion data that extend to the lower temperatures (100 to 277 C) of Gentry's retention data. The measured rates resoundingly confirm a numerical prediction we made based on the reported retentions and a young age. Combining rates and retentions gives a helium diffusion age of 6,000 ± 2,000 years. This contradicts the uniformitarian age of 1.5 billion years based on nuclear decay products in the same zircons. These data strongly support our hypothesis of episodes of highly accelerated nuclear decay occurring within thousands of years ago. Such accelerations shrink the radioisotopic 'billions of years' down to the 6,000-year timescale of the Bible."

started to appear, en masse, in actual, top-tier research journals, I'd boycott those in a heartbeat for purposefully allowing junk science built purely on hand waving, false assertions, and/or overtly flawed experimental methodologies to be published.

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