Saturday, May 17, 2014

The Geek Syndrome

The Geek Syndrome
Autism - and its milder cousin Asperger's syndrome - is surging among the children of Silicon Valley. Are math-and-tech genes to blame?
By Steve Silberman
Nick is building a universe on his computer. He's already mapped out his first planet: an anvil-shaped world called Denthaim that is home to gnomes and gods, along with a three-gendered race known as kiman. As he tells me about his universe, Nick looks up at the ceiling, humming fragments of a melody over and over. "I'm thinking of making magic a form of quantum physics, but I haven't decided yet, actually," he explains. The music of his speech is pitched high, alternately poetic and pedantic - as if the soul of an Oxford don has been awkwardly reincarnated in the body of a chubby, rosy-cheeked boy from Silicon Valley. Nick is 11 years old.
Nick's father is a software engineer, and his mother is a computer programmer. They've known that Nick was an unusual child for a long time. He's infatuated with fantasy novels, but he has a hard time reading people. Clearly bright and imaginative, he has no friends his own age. His inability to pick up on hidden agendas makes him easy prey to certain cruelties, as when some kids paid him a few dollars to wear a ridiculous outfit to school.
One therapist suggested that Nick was suffering from an anxiety disorder. Another said he had a speech impediment. Then his mother read a book called Asperger's Syndrome: A Guide for Parents and Professionals. In it, psychologist Tony Attwood describes children who lack basic social and motor skills, seem unable to decode body language and sense the feelings of others, avoid eye contact, and frequently launch into monologues about narrowly defined - and often highly technical - interests. Even when very young, these children become obsessed with order, arranging their toys in a regimented fashion on the floor and flying into tantrums when their routines are disturbed. As teenagers, they're prone to getting into trouble with teachers and other figures of authority, partly because the subtle cues that define societal hierarchies are invisible to them.
"I thought, 'That's Nick,'" his mother recalls.
Asperger's syndrome is one of the disorders on the autistic spectrum - a milder form of the condition that afflicted Raymond Babbitt, the character played by Dustin Hoffman in Rain Man. In the taxonomy of autism, those with Asperger's syndrome have average - or even very high - IQs, while 70 percent of those with other autistic disorders suffer from mild to severe mental retardation. One of the estimated 450,000 people in the US living with autism, Nick is more fortunate than most. He can read, write, and speak. He'll be able to live and work on his own. Once he gets out of junior high hell, it's not hard to imagine Nick creating a niche for himself in all his exuberant strangeness. At the less fortunate end of the spectrum are what diagnosticians call "profoundly affected" children. If not forcibly engaged, these children spend their waking hours in trancelike states, staring at lights, rocking, making high-pitched squeaks, and flapping their hands, repetitively stimulating ("stimming") their miswired nervous systems.
In one of the uncanny synchronicities of science, autism was first recognized on two continents nearly simultaneously. In 1943, a child psychiatrist named Leo Kanner published a monograph outlining a curious set of behaviors he noticed in 11 children at the Johns Hopkins Hospital in Baltimore. A year later, a pediatrician in Vienna named Hans Asperger, who had never seen Kanner's work, published a paper describing four children who shared many of the same traits. Both Kanner and Asperger gave the condition the same name: autism - from the Greek word for self, autòs - because the children in their care seemed to withdraw into iron-walled universes of their own.
Kanner went on to launch the field of child psychiatry in the US, while Asperger's clinic was destroyed by a shower of Allied bombs. Over the next 40 years, Kanner became widely known as the author of the canonical textbook in his field, in which he classified autism as a subset of childhood schizophrenia. Asperger was virtually ignored outside of Europe and died in 1980. The term Asperger syndrome wasn't coined until a year later, by UK psychologist Lorna Wing, and Asperger's original paper wasn't even translated into English until 1991. Wing built upon Asperger's intuition that even certain gifted children might also be autistic. She described the disorder as a continuum that "ranges from the most profoundly physically and mentally retarded person ... to the most able, highly intelligent person with social impairment in its subtlest form as his only disability. It overlaps with learning disabilities and shades into eccentric normality."
Asperger's notion of a continuum that embraces both smart, geeky kids like Nick and those with so-called classic or profound autism has been accepted by the medical establishment only in the last decade. Like most distinctions in the world of childhood developmental disorders, the line between classic autism and Asperger's syndrome is hazy, shifting with the state of diagnostic opinion. Autism was added to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders in 1980, but Asperger's syndrome wasn't included as a separate disorder until the fourth edition in 1994. The taxonomy is further complicated by the fact that few if any people who have Asperger's syndrome will exhibit all of the behaviors listed in the DSM-IV. (The syn in syndromederives from the same root as the syn in synchronicity - the word means that certain symptoms tend to cluster together, but all need not be present to make the diagnosis.) Though Asperger's syndrome is less disabling than "low-functioning" forms of autism, kids who have it suffer difficulties in the same areas as classically autistic children do: social interactions, motor skills, sensory processing, and a tendency toward repetitive behavior.
In the last 20 years, significant advances have been made in developing methods of behavioral training that help autistic children find ways to communicate. These techniques, however, require prodigious amounts of persistence, time, money, and love. Though more than half a century has passed since Kanner and Asperger first gave a name to autism, there is still no known cause, no miracle drug, and no cure.
And now, something dark and unsettling is happening in Silicon Valley.

In the past decade, there has been a significant surge in the number of kids diagnosed with autism throughout California. In August 1993, there were 4,911 cases of so-called level-one autism logged in the state's Department of Developmental Services client-management system. This figure doesn't include kids with Asperger's syndrome, like Nick, but only those who have received a diagnosis of classic autism. In the mid-'90s, this caseload started spiraling up. In 1999, the number of clients was more than double what it had been six years earlier. Then the curve started spiking. By July 2001, there were 15,441 clients in the DDS database. Now there are more than seven new cases of level-one autism - 85 percent of them children - entering the system every day.
Through the '90s, cases tripled in California. "Anyone who says this is due to better diagnostics has his head in the sand."
California is not alone. Rates of both classic autism and Asperger's syndrome are going up all over the world, which is certainly cause for alarm and for the urgent mobilization of research. Autism was once considered a very rare disorder, occurring in one out of every 10,000 births. Now it's understood to be much more common - perhaps 20 times more. But according to local authorities, the picture in California is particularly bleak in Santa Clara County. Here in Silicon Valley, family support services provided by the DDS are brokered by the San Andreas Regional Center, one of 21 such centers in the state. SARC dispenses desperately needed resources (such as in-home behavioral training, educational aides, and respite care) to families in four counties. While the autistic caseload is rising in all four, the percentage of cases of classic autism among the total client population in Santa Clara County is higher enough to be worrisome, says SARC's director, Santi Rogers.
"There's a significant difference, and no signs that it's abating," says Rogers. "We've been watching these numbers for years. We feared that something like this was coming. But this is a burst that has staggered us in our steps."
It's not easy to arrive at a clear picture of whether there actually is a startling rise in the incidence of autism in California, as opposed to just an increase in diagnoses. One problem, says Linda Lotspeich, director of the Stanford Pervasive Developmental Disorders Clinic, is that "the rules in the DSM-IV don't work." The diagnostic criteria are subjective, like "Marked impairment in the use of nonverbal behaviors such as eye-to-eye gaze, facial expression, body posture, and gestures to regulate social interaction."
"How much 'eye-to-eye gaze' do you have to have to be normal?" asks Lotspeich. "How do you define what 'marked' is? In shades of gray, when does black become white?"
Some children will receive a diagnosis of classic autism, and another diagnosis of Asperger's syndrome, from two different clinicians. Tony Attwood's advice to parents is strictly practical: "Use the diagnosis that provides the services."
While diagnostic fuzziness may be contributing to a pervasive sense that autism is on the rise, Ron Huff, the consulting psychologist for the DDS who uncovered the statistical trend, does not believe that all we're seeing now is an increase in children who would have previously been tagged with some other disability, such as mental retardation - or overlooked as perfectly healthy, if quirky, kids.
"While we certainly need to do more research," says Huff, "I don't think the change in diagnostic criteria will account for all of this rise by any means."
The department is making its data available to the MIND Institute at the University of California at Davis, to tease out what's behind the numbers. The results of that research will be published next year. But the effects of a surging influx are already rippling through the local schools. Carol Zepecki, director of student services and special education for the Palo Alto Unified School District, is disturbed by what she's seeing. "To be honest with you, as I look back on the special-ed students I've worked with for 20 years, it's clear to me that these kids would not have been placed in another category. The numbers are definitely higher." Elizabeth Rochin, a special-ed teacher at Cupertino High, says local educators are scrambling to create new resources. "We know it's happening, because they're coming through our schools. Our director saw the iceberg approaching and said, 'We've got to build something for them.'"
The people scrambling hardest are parents. In-home therapy alone can cost $60,000 or more a year, and requires so much dedication that parents (particularly mothers) are often forced to quit their jobs and make managing a team of specialists their new 80-hour-a-week career. Before their children become eligible for state funding, parents must obtain a diagnosis from a qualified clinician, which requires hours of testing and observation. Local facilities, such as the Stanford Pervasive Development Disorders Clinic and its counterpart at UC San Francisco, are swamped. The Stanford clinic is able to perform only two or three diagnoses a week. It currently has a two- to six-month waiting list.
For Rick Rollens, former secretary of the California Senate and cofounder of the MIND Institute, the notion that there is a frightening increase in autism worldwide is no longer in question. "Anyone who says this epidemic is due to better diagnostics," he says, "has his head in the sand."

Autism's insidious style of onset is particularly cruel to parents, because for the first two years of life, nothing seems to be wrong. Their child is engaged with the world, progressing normally, taking first steps into language. Then, suddenly, some unknown cascade of neurological events washes it all away.
One father of an autistic child, Jonathan Shestack, describes what happened to his son, Dov, as "watching our sweet, beautiful boy disappear in front of our eyes." At two, Dov's first words - Mom, Dad, flower, park - abruptly retreated into silence. Over the next six months, Dov ceased to recognize his own name and the faces of his parents. It took Dov a year of intensive behavioral therapy to learn how to point. At age 9, after the most effective interventions available (such as the step-by-step behavioral training methods developed by Ivar Lovaas at UCLA), Dov can speak 20 words.
Even children who make significant progress require levels of day-to-day attention from their families that can best be described as heroic. Marnin Kligfeld is the founder of a software mergers-and-acquisitions firm. His wife, Margo Estrin, a doctor of internal medicine, is the daughter of Gerald Estrin, who was a mentor to many of the original architects of the Internet (see "Meet the Bellbusters," Wired 9.11, page 164). When their daughter, Leah, was 3, a pediatrician at Oakland Children's Hospital looked at her on the examining table and declared, "There is very little difference between your daughter and an animal. We have no idea what she will be able to do in the future." After eight years of interventions - behavioral training, occupational therapy, speech therapy - Leah is a happy, upbeat 11-year-old who downloads her favorite songs by the hundreds. And she is still deeply autistic.
Leah's first visit to the dentist required weeks of preparation, because autistic people are made deeply anxious by any change in routine. "We took pictures of the dentist's office and the staff, and drove Leah past the office several times," Kligfeld recalls. "Our dentist scheduled us for the end of the day, when there were no other patients, and set goals with us. The goal of the first session was to have Leah sit in the chair. The second session was so Leah could rehearse the steps involved in treatment without actually doing them. The dentist gave all of his equipment special names for her. Throughout this process, we used a large mirror so Leah could see exactly what was being done, to ensure that there were no surprises."
Daily ordeals like this, common in the autistic community, underline the folly of the hypothesis that prevailed among psychologists 20 years ago, who were convinced that autism was caused by a lack of parental affection. The influential psychiatrist Bruno Bettelheim aggressively promoted a theory that has come to be known as the "refrigerator mother" hypothesis. He declared in his best-selling book, The Empty Fortress, "The precipitating factor in infantile autism is the parent's wish that his child should not exist. ... To this the child responds with massive withdrawal." He prescribed "parentectomy" - removal of the child from the parents - and years of family therapy. His hypothesis added the burden of guilt to the grief of having an autistic child, and made autism a source of shame and secrecy, which hampered efforts to obtain clinical data. The hypothesis has been thoroughly discredited. Richard Pollak's The Creation of Dr. B exposed Bettelheim as a brilliant liar who concocted case histories and exaggerated both his experience with autistic children and the success of his treatments.
One thing nearly everyone in the field agrees on: genetic predisposition. Identical twins share the disorder 9 times out of 10.
But the debates about the causes of autism are certainly not over. Controversies rage about whether environmental factors - such as mercury and other chemicals in universally administered vaccines, industrial pollutants in air and water, and even certain foods - act as catalysts that trigger the disorder. Bernard Rimland, the first psychologist to oppose Bettelheim and promote the idea that autism was organic in origin, has become a leading advocate for intensified investigation in this area. The father of an autistic son, Rimland has been instrumental in marshaling medical expertise and family data to create better assessment protocols.
The one thing that almost all researchers in the field agree on is that genetic predisposition plays a crucial role in laying the neurological foundations of autism in most cases. Studies have shown that if one identical twin is autistic, there's a 90 percent chance that the other twin will also have the disorder. If parents have had one autistic child, the risk of their second child being autistic rises from 1 in 500 to 1 in 20. After two children with the disorder, the sobering odds are 1 in 3. (So many parents refrain from having more offspring after one autistic child, geneticists even have a term for it:stoppage.) The chances that the siblings of an autistic child will display one or more of the other developmental disorders with a known genetic basis - such as dyslexia or Tourette's syndrome - are also significantly higher than normal.
The bad news from Santa Clara County raises an inescapable question. Unless the genetic hypothesis is proven false, which is unlikely, regions with a higher than normal distribution of people on the autistic spectrum are something no researcher could ask for: living laboratories for the study of genetic expression. When the rain that fell on the Rain Man falls harder on certain communities than others, what becomes of the children?
The answer may be raining all over Silicon Valley. And one of the best hopes of finding a cure may be locked in the DNA sequences that produced the minds that have made this area the technological powerhouse of the world.

It's a familiar joke in the industry that many of the hardcore programmers in IT strongholds like Intel, Adobe, and Silicon Graphics - coming to work early, leaving late, sucking down Big Gulps in their cubicles while they code for hours - are residing somewhere in Asperger's domain. Kathryn Stewart, director of the Orion Academy, a high school for high-functioning kids in Moraga, California, calls Asperger's syndrome "the engineers' disorder." Bill Gates is regularly diagnosed in the press: His single-minded focus on technical minutiae, rocking motions, and flat tone of voice are all suggestive of an adult with some trace of the disorder. Dov's father told me that his friends in the Valley say many of their coworkers "could be diagnosed with ODD - they're odd." In Microserfs, novelist Douglas Coupland observes, "I think all tech people are slightly autistic."
Though no one has tried to convince the Valley's best and brightest to sign up for batteries of tests, the culture of the area has subtly evolved to meet the social needs of adults in high-functioning regions of the spectrum. In the geek warrens of engineering and R&D, social graces are beside the point. You can be as off-the-wall as you want to be, but if your code is bulletproof, no one's going to point out that you've been wearing the same shirt for two weeks. Autistic people have a hard time multitasking - particularly when one of the channels is face-to-face communication. Replacing the hubbub of the traditional office with a screen and an email address inserts a controllable interface between a programmer and the chaos of everyday life. Flattened workplace hierarchies are more comfortable for those who find it hard to read social cues. A WYSIWYG world, where respect and rewards are based strictly on merit, is an Asperger's dream.
Obviously, this kind of accommodation is not unique to the Valley. The halls of academe have long been a forgiving environment for absentminded professors. Temple Grandin - the inspiring and accomplished autistic woman profiled in Oliver Sacks' An Anthropologist on Mars - calls NASA the largest sheltered workshop in the world.
A recurring theme in case histories of autism, going all the way back to Kanner's and Asperger's original monographs, is an attraction to highly organized systems and complex machines. There's even a perennial cast of hackers: early adopters with a subversive streak. In 1944, Asperger wrote of a boy "chemist [who] uses all his money for experiments which often horrify his family and even steals to fund them." Another boy proved a mathematical error in Isaac Newton's calculations while he was still a freshman in college. A third escaped neighborhood bullies by taking lessons from an old watchmaker. And a fourth, wrote Asperger, "came to be preoccupied with fantastic inventions, such as spaceships and the like." Here he added, "one observes how remote from reality autistic interests really are" - a comment he qualified years later, when spaceships were no longer remote or fantastic, by joking that the inventors of spaceships might themselves be autistic.
Clumsy and easily overwhelmed in the physical world, autistic minds soar in the virtual realms of mathematics, symbols, and code. Asperger compared the children in his clinic to calculating machines: "intelligent automata" - a metaphor employed by many autistic people themselves to describe their own rule-based, image-driven thought processes. In her autobiography, Thinking in Pictures, Grandin compares her mind to a VCR. When she hears the word dog, she mentally replays what she calls "videotapes" of various dogs that she's seen, to arrive at something close to the average person's abstract notion of the category that includes all dogs. This visual concreteness has been a boon to her work as a designer of more humane machinery for handling livestock. Grandin sees the machines in her head and sets them running, debugging as she goes. When the design in her mind does everything it's supposed to, she draws a blueprint of what she sees.
"In another age, these men would have been monks, developing new ink for printing presses. Suddenly, they're reproducing at a much higher rate."
These days, the autistic fascinations with technology, ordered systems, visual modes of thinking, and subversive creativity have plenty of outlets. There's even a cheeky Asperger's term for the rest of us - NTs, "neurotypicals." Many children on the spectrum become obsessed with VCRs, Pokémon, and computer games, working the joysticks until blisters appear on their fingers. (In the diagnostic lexicon, this kind of relentless behavior is called "perseveration.") Even when playing alongside someone their own age, however, autistic kids tend to play separately. Echoing Asperger, the director of the clinic in San Jose where I met Nick, Michelle Garcia Winner, suggests that "Pokémon must have been invented by a team of Japanese engineers with Asperger." Attwood writes that computers "are an ideal interest for a person with Asperger's syndrome ... they are logical, consistent, and not prone to moods."
This affinity for computers gives teachers and parents leverage they can use to build on the natural strengths of autistic children. Many teenagers who lack the motor skills to write by hand find it easier to use a keyboard. At Orion Academy, every student is required to buy an iBook fitted with an AirPort card. Class notes are written on electronic whiteboards that port the instructional materials to the school server for retrieval. (At lunch, the iBooks are shut off, and if the kids want to play a two-person game, they're directed to a chess board.) The next generation of assistive technology is being designed by Neil Scott's Archimedes Project at Stanford. Scott's team is currently developing the equivalent of a PDA for autistic kids, able to parse subtle movements of an eyebrow or fingertip into streams of text, voice, or images. The devices will incorporate video cameras, head and eye tracking, intelligent agents, and speech recognition to suit the needs of the individual child.
The Valley is a self-selecting community where passionately bright people migrate from all over the world to make smart machines work smarter. The nuts-and-bolts practicality of hard labor among the bits appeals to the predilections of the high-functioning autistic mind. The hidden cost of building enclaves like this, however, may be lurking in the findings of nearly every major genetic study of autism in the last 10 years. Over and over again, researchers have concluded that the DNA scripts for autism are probably passed down not only by relatives who are classically autistic, but by those who display only a few typically autistic behaviors. (Geneticists call those who don't fit into the diagnostic pigeonholes "broad autistic phenotypes.")
The chilling possibility is that what's happening now is the first proof that the genes responsible for bestowing certain special gifts on slightly autistic adults - the very abilities that have made them dreamers and architects of our technological future - are capable of bringing a plague down on the best minds of the next generation. For parents employed in prominent IT firms here, the news of increased diagnoses of autism in their ranks is a confirmation of rumors that have quietly circulated for months. Every day, more and more of their coworkers are running into one another in the waiting rooms of local clinics, taking the first uncertain steps on a journey with their children that lasts for the rest of their lives.
In previous eras, even those who recognized early that autism might have a genetic underpinning considered it a disorder that only moved diagonally down branches of a family tree. Direct inheritance was almost out of the question, because autistic people rarely had children. The profoundly affected spent their lives in institutions, and those with Asperger's syndrome tended to be loners. They were the strange uncle who droned on in a tuneless voice, tending his private logs of baseball statistics or military arcana; the cousin who never married, celibate by choice, fussy about the arrangement of her things, who spoke in a lexicon mined reading dictionaries cover to cover.
The old line "insanity is hereditary, you get it from your kids" has a twist in the autistic world. It has become commonplace for parents to diagnose themselves as having Asperger's syndrome, or to pinpoint other relatives living on the spectrum, only after their own children have been diagnosed.
High tech hot spots like the Valley, and Route 128 outside of Boston, are a curious oxymoron: They're fraternal associations of loners. In these places, if you're a geek living in the high-functioning regions of the spectrum, your chances of meeting someone who shares your perseverating obsession (think Linux or Star Trek) are greatly expanded. As more women enter the IT workplace, guys who might never have had a prayer of finding a kindred spirit suddenly discover that she's hacking Perl scripts in the next cubicle.
One provocative hypothesis that might account for the rise of spectrum disorders in technically adept communities like Silicon Valley, some geneticists speculate, is an increase in assortative mating.Superficially, assortative mating is the blond gentleman who prefers blondes; the hyperverbal intellectual who meets her soul mate in the therapist's waiting room. There are additional pressures and incentives for autistic people to find companionship - if they wish to do so - with someone who is also on the spectrum. Grandin writes, "Marriages work out best when two people with autism marry or when a person marries a handicapped or eccentric spouse.... They are attracted because their intellects work on a similar wavelength."
That's not to say that geeks, even autistic ones, are attracted only to other geeks. Compensatory unions of opposites also thrive along the continuum, and in the last 10 years, geekitude has become sexy and associated with financial success. The lone-wolf programmer may be the research director of a major company, managing the back end of an IT empire at a comfortable remove from the actual clients. Says Bryna Siegel, author of The World of the Autistic Child and director of the PDD clinic at UCSF, "In another historical time, these men would have become monks, developing new ink for early printing presses. Suddenly they're making $150,000 a year with stock options. They're reproducing at a much higher rate."
Genetic hypotheses like these don't rule out environmental factors playing a role in the rising numbers. Autism is almost certainly not caused by the action of a single gene, but by some orchestration of multiple genes that may make the developing child more susceptible to a trigger in the environment. One consequence of increased reproduction among people carrying some of these genes might be to boost "genetic loading" in successive generations - leaving them more vulnerable to threats posed by toxins in vaccines, candida, or any number of agents lurking in the industrialized world.
At clinics and schools in the Valley, the observation that most parents of autistic kids are engineers and programmers who themselves display autistic behavior is not news. And it may not be news to other communities either. Last January, Microsoft became the first major US corporation to offer its employees insurance benefits to cover the cost of behavioral training for their autistic children. One Bay Area mother told me that when she was planning a move to Minnesota with her son, who has Asperger's syndrome, she asked the school district there if they could meet her son's needs. "They told me that the northwest quadrant of Rochester, where the IBMers congregate, has a large number of Asperger kids," she recalls. "It was recommended I move to that part of town."

For Dov's parents, Jonathan Shestack and Portia Iversen, Silicon Valley is the only place on Earth with enough critical mass of supercomputing resources, bio-informatics expertise, genomics savvy, pharmaceutical muscle, and VC dollars to boost autism research to the next phase. For six years, the organization they founded, Cure Autism Now, has led a focused assault on the iron-walled fortress of the medical establishment, including the creation of its own bank of DNA samples, available to any scientist in the field on a Web site called the Autism Genetic Resources Exchange (see "The Citizen Scientists," Wired 9.09, page 144).
At least a third of CAN's funding comes from donors in the Valley. Now Shestack and Iversen want to deliver the ultimate return on that investment: better treatments, smarter assistive technology - and, eventually, a cure.
"We have the human data," says Shestack. "Now we need the brute-force processing power. We need high-density SNP mapping and microarray analysis so we can design pharmaceutical interventions. We need Big Pharma to wake up to the fact that while 450,000 people in America may not be as large a market as for cholesterol drugs, we're talking about a demand for new products that will be needed from age 2 to age 70. We need new technology that measures modes of perception, and tools for neural retraining. And we need a Web site where families with a newly diagnosed kid can plug into a network of therapists in their town who have been rated by buyers - just like eBay."
The ultimate hack for a team of Valley programmers may turn out to be cracking the genetic code that makes them so good at what they do. Taking on that challenge will require extensive use of technology invented by two people who think in pictures: Bill Dreyer, who invented the first protein sequencer, and Carver Mead, the father of very large scale integrated circuits. As Dreyer explains, "I think in three-dimensional Technicolor." Neither Mead nor Dreyer is autistic, but there is a word for the way they think - dyslexic. Like autism, dyslexia seems to move down genetic pathways. Dreyer has three daughters who think in Technicolor.
One of the things that Dan Geschwind, director of the neurogenetics lab at UCLA, finds fascinating about dyslexia and autism is what they suggest about human intelligence: that certain kinds of excellence might require not just various modes of thinking, but different kinds of brains.
"Autism gets to fundamental issues of how we view talents and disabilities," he says. "The flip side of dyslexia is enhanced abilities in math and architecture. There may be an aspect of this going on with autism and assortative mating in places like Silicon Valley. In the parents, who carry a few of the genes, they're a good thing. In the kids, who carry too many, it's very bad."
Issues like this were at the crux of arguments that Bryna Siegel had with Bruno Bettelheim in a Stanford graduate seminar in the early '80s, published in Bettelheim's The Art of the Obvious. (Siegel's name was changed to Dan Berenson.) The text makes poignant reading, as two paradigms of scientific humanism clash in the night. Siegel told "Dr. B" that she wanted to do a large study of children with various developmental disorders to search for a shared biochemical defect. Bettelheim shot back that if such a marker were to be uncovered it would dehumanize autistic children, by making them essentially different from ourselves.
Still an iconoclast, Siegel questions whether a "cure" for autism could ever be found. "The genetics of autism may turn out to be no simpler to unravel than the genetics of personality. I think what we'll end up with is something more like, 'Mrs. Smith, here are the results of your amnio. There's a 1 in 10 chance that you'll have an autistic child, or the next Bill Gates. Would you like to have an abortion?'"
For UCSF neurologist Kirk Wilhelmsen - who describes himself and his son as being "somewhere on that grand spectrum" - such statements cut to the heart of the most difficult issue that autism raises for society. It may be that autistic people are essentially different from "normal" people, he says, and that it is precisely those differences that make them invaluable to the ongoing evolution of the human race.
"If we could eliminate the genes for things like autism, I think it would be disastrous," says Wilhelmsen. "The healthiest state for a gene pool is maximum diversity of things that might be good."
One of the first people to intuit the significance of this was Asperger himself - weaving his continuum like a protective blanket over the young patients in his clinic as the Nazis shipped so-called mental defectives to the camps. "It seems that for success in science and art," he wrote, "a dash of autism is essential."
For all we know, the first tools on earth might have been developed by a loner sitting at the back of the cave, chipping at thousands of rocks to find the one that made the sharpest spear, while the neurotypicals chattered away in the firelight. Perhaps certain arcane systems of logic, mathematics, music, and stories - particularly remote and fantastic ones - have been passed down from phenotype to phenotype, in parallel with the DNA that helped shape minds which would know exactly what to do with these strange and elegant creations.
Hanging on the wall of Bryna Siegel's clinic in San Francisco is a painting of a Victorian house at night, by Jessy Park, an autistic woman whose mother, Clara Claiborne Park, wrote one of the first accounts of raising a child with autism, The Siege. Now 40, Jessy still lives at home. In her recent book, Exiting Nirvana, Clara writes of having come to a profound sense of peace with all the ways that Jessy is.
Jessy sent Siegel a letter with her painting, in flowing handwriting and words that are - there is no other way to say it - marvelously autistic. "The lunar eclipse with 92% cover is below Cassiopeia. In the upper right-hand corner is Aurora Borealis. There are three sets of six-color pastel rainbow on the shingles, seven-color bright rainbow on the clapboards next to the drain pipe, six-color paler pastel rainbow around the circular window, six-color darker pastel rainbow on the rosette ..."
But the words aren't the thing. Jessy's painting is the thing. Our world, but not our world. A house under the night sky shining in all the colors of the spectrum.

7 Reasons to Increase Patent Filings

Patents are enjoying an unprecedented amount of attention currently.  For example, patents are frequently in the news in the context of acquisitions, and more often, litigation.  While litigation is important (, some studies suggest that less than 2% of patents are ever involved in litigation.
Unrelated to current attention, yearly numbers of U.S. patent filings have increased steadily for years.  Recently, that number reached over half-a-million per year (by USPTO count, 2013).  Thus, there must be a number of good reasons to support the current numbers of filings.*  Presumably, those reasons that have little to do with litigation.
If your patent filing activities have flattened out, and you need a reminder of the value proposition, here are seven (alliterative!) business reasons to file patent applications:              
Copycat deterrence: Once disclosed, if the creator doesn’t file patent applications or obtain other IP protection, any innovation or R&D results can be copied (or reverse engineered).  In fact, absent IP, copying is considered by judges to be a desirable activity in commerce.      
Commodity prevention: Without patent applications or other IP protection, customers are free to treat your innovation as a commodity and look for the lowest cost supplier.  While you may obtain short-term exclusivity by contract, a patent is a much stronger and longer way to obtain exclusivity.
Capture value: Developing IP can be a significant investment, but royalty payments and other licensing fees are an attractive way to recoup some, all, or multiples, of the investment.  Beyond the legal fees to set up the license, you make a percentage on sales (or use) by some third party, while requiring no infrastructure or further investment from you.  From a business perspective, license revenue is nearly all upside.
Cultivate margin: Given the exclusivity that patents grant, one would expect higher margins on products covered by patent.  In fact, studies by large corporations on patent-advantaged sales have borne this out.  Moreover, margins can be even higher in cases with good product-specific coverage and narrower market segments, such as medical device or pharmaceuticals.
Credibility: The first step in developing a reputation as a market-leading innovator requires a significant number of patent filings.  In some industries, patent filings do double duty as marketing and recruiting materials, as patent applications publish 18 months after filing, and word spreads quickly as to who is actively filing.
Cross-licensing: Patents are bargaining chips in disputes to act as grounds for counter-suit.  Similarly, in a license situation, a licensee’s block of patents can help stimulate a cross-license to offset costs. 
Collateral: As general intangible property, patents can be used as collateral for loans.  In many cases, the bank takes a security interest in the patent.  Typically, the bank files a state UCC-1 financing statement, and preferably records the interest in the U.S. Patent Office, to perfect the interest and give notice.
* Interestingly, the biggest incentive to file patent applications hasn’t even had time to affect the number of filings yet.  Patent law changed to “first to file” in 2013.  If you invent something today and keep it secret, and your competitor independently invents it next year (or years from now), things are not going to pan out as you remember under the previous system.  Post law-change, given certain assumptions, your competitor will be able to file an application, potentially get a patent, block you, and force your customers buy their patented product.  Even though the idea was something you came up with first, but didn’t file on.  This outcome is intentional, as the law change was meant to incentivize filing by stimulating inventors to hurry to file, which theoretically fosters innovation.

Getting the Most Value From Your Patent Claims

Getting the Most Value From Your Patent Claims

By: Heather J. DiPietrantonio and Edmund J. Walsh

Intellectual Property & Technology Law Journal
Preparing patents is both a science and an art. The science is often easy to recognize, if not always easy to understand. The art of properly expressing that science in the words of a patent claim is harder to evaluate and is more often overlooked, yet is crucial to the value of the patent. Working with an experienced patent attorney can make all the difference in helping you avoid the pitfalls of patent claim drafting while getting you the most protection, both now and in the future.
The Role of Patent Claims
Patent claims define the scope of patent protection. Whether a claim covers a product accused of infringement frequently determines whether a patent holder will be rewarded or left with nothing. For example, in one 2008 case from the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), a dispute over the meaning of terms in the claims wiped out a $115 million judgment in favor of the patent holder. At issue were two phrases in the claims, totaling less than 10 words – truly million dollar words.
Painting a picture in words of what a patent is to cover is an essential contribution that should be made by a patent practitioner. The claims should, of course, characterize what is inventive, but they must do so in a way that distinguishes over the prior art while still covering activities of future infringers who are trying to work around the patent. There is no formula or model to copy in writing a patent claim. If an invention must be unique (“novel”) to be patentable, then it stands to reason its patent claims must be unique as well. Accordingly, it falls to the patent drafter to visualize the invention and craft the appropriate words.
Poorly Written Claims Can Be Hazardous to a Patent’s Health
A good patent attorney contributes to the value of a patent by identifying features that characterize the invention, as it will be put into practice now and in the future when the patent might be enforced. This task, while on its face seems straight forward, often proves to be quite challenging. 
Of course, some part of a valuable claim is simply avoiding errors by claiming what the invention is not. Claims drafted improperly can cost a client dearly, as was the case in the 2004 Federal Circuit case, Chef America, Inc. v. Lamb-Weston, Inc. Chef America, Inc. accused Lamb-Weston, Inc. of infringing a patent that covered a process for making dough. One of the patent claims required, “heating the resulting batter-coated dough to a temperature in the range of 400 degrees Fahrenheit to 850 degrees Fahrenheit.” Though heating dough to such a temperature would turn it to charcoal, and though Chef America, Inc. insisted that the language meant that the oven (not the dough) was to be heated to such a temperature, the Federal Circuit ruled that Chef America was stuck with what the claim literally recites.
As any patent attorney worth his/her salt will tell you, don’t hang your hat on expecting people to know what you mean. Leave nothing open to claim interpretation – say what you literally mean. If you mean that an oven is to be heated to a temperature in the range of 400 degrees Fahrenheit to 800 degrees Fahrenheit, and then the dough is to be heated in that oven, you had better spell that out in the claims.
Having said that, there is often more to an artful claim than simply being precise. In fact, there is a risk in being too literal. The eye is often drawn to what is tangible – what the inventor has implemented. It can be difficult to extract from the specific tangible examples of an invention as built or tested those characteristics of the invention that could apply in the abstract, regardless of how the invention can be implemented. 
An example from a 1997 Federal Circuit case (Sage Products, Inc. v. Devon Industries, Inc.) will illustrate this point. The case involved a patent to a disposal container for hypodermic needles that prevented a user from inadvertently contacting what is inside. The container, as implemented by the inventors, had a slot with constrictions above and below the slot. Unfortunately for the inventor, the patent claims to such a container claimed exactly that. When an accuser built a similar container, with constrictions that performed the same functions in other positions, the claims did not cover the product and the patent owner lost the benefit of patent protection.
Not surprisingly, more complex examples of the need for a patent drafter who can see the essential features of the invention arise from more complex technologies. Some technologies may provide a solution to an immediate problem, but the problem may evolve over time, demanding the solution evolve as well. This is particularly relevant in the field of biologics, where much of the technology—such as vaccines—must meet the demands of ever evolving microorganisms. 
A vaccine to a specific microorganism may be effective now, but by the time a patent protecting the vaccine is granted, another strain of the microorganism will likely have developed, rendering the specific vaccine ineffective or much less effective and, consequently, less valuable. A patent attorney, together with the inventor, must account for this unpredictability by crafting claims that capture the characteristics of the vaccine that will remain even as it evolves. 
Avoiding Claim Drafting Pitfalls
Despite these challenges, there are important things that skilled patent attorneys and agents do to ensure that their clients receive the scope of protection to which they are entitled, now and several years from now. 
Think big and think creatively. Inventors often take their inventions at face value, describing each element in careful detail. Given the amount of time and dedication that goes into perfecting an invention, who could blame them? It may have taken months or years of development to figure out that the optimal size of a typical beerbrella (that’s right—U.S. Patent No. 6,637,447) is 5 to 7 inches, but clearly that size is going to depend on the size of your beer bottle. When writing claims, a patent prosecutor and an inventor should work together to see beyond the perfect prototype to abstract any variation on the elements that may permit a competitor to evade granted patent protection later on – such as by making a 9 inch beerbrella.
Think long term. One of the jobs of a patent prosecutor is to tease out core ideas that will persist over time and in different implementations of an invention. While technology is constantly changing, there are frequently overarching concepts that persist. To avoid narrowing the scope of claims with transient limitations, a good patent prosecutor will avoid terms that may only be relevant at the time a patent is written but may change over the lifetime of the patent. While a “leisure suit” of bell bottoms and pastels may have been popular at some point in time, claims to a “suit,” or perhaps more generally just “clothes,” would still describe today’s business suits with straight legs and dark grey color and would give protection even as fashion changes. 
Likewise, vacuum tubes gave way to semiconductor transistors, which may some day give way to biological transistors. Yet, even for inventions initially implemented with vacuum tubes, there is likely a core concept of a switching element or control circuit that persists, regardless of how the technology changes. Good claims will not limit the next high tech design feature to a particular era. Technology—like fashion—can be fleeting, especially over a period of 20 years. 
Use the right words. As Mark Twain said, “The difference between the right word and the almost right word is the difference between lightning and a lightning bug.”  A good (and valuable) claim elegantly balances details of an invention – not too many, not too few. As a rule of thumb, if a particular word in a claim is not necessary to describe the invention in its broadest sense, pitch it. Remember that to infringe a patent, a product must include every element in at least one claim. If a particular element is recited in a claim, but not necessary, a would-be infringer turns into a gainful entrepreneur by simply leaving out that element of the product, thereby avoiding the litigation song and dance down the road. On the other hand, if an element which distinguishes the invention over the prior art is left out of the claim, there no longer is an “invention” to patent.
It’s also good to keep in mind that adjectives may cause ambiguity problems during both prosecution and litigation, so be wary of them. Some patent prosecutors advise avoiding relative terms (e.g., large, small, many, few) and absolute positions (e.g., above, below, right, left). You will likely find yourself arguing with someone at some point about how big is big and whether that widget necessarily resides to the right of that gadget.
Say what you mean. Everything a patent prosecutor says should lead to the intended claim interpretation. A substantial part of patent litigation is determining the meaning of the claims, and this often daunting task is left primarily to a court. To properly construe a patent claim, the court may look to terms as used in the art, but may also look to the specification and the history of prosecution of the patent before the U.S. Patent & Trademark Office (USPTO) to glean what the claim is intended to cover. Even seemingly simple terms can lead the troops to battle, as was the situation involving the claim term “baffles” in the milestone Phillips v. AWH Corp. case, where the Federal Circuit ultimately relied on the dictionary definition of the term. Knowing that courts may ultimately look to the specification and prosecution history to interpret the claims provides many opportunities for a patent prosecutor to undo – or bolster – an insightful choice of words in the claims.
Know the landscape. While avoiding needless adjectives and actually saying what you mean are important first steps, that alone is often not enough to write a good claim. Understanding the patent owner’s business objectives lends a more complete understanding of the invention itself and is important to the process of abstracting the overarching concepts that make a good claim. When drafting a patent application, the attorney should first understand the commercial problem the invention solves. A good patent attorney can identify features that characterize commercial forms of the invention as well as features that distinguish over the prior art. It’s quite a walk along that tightrope between the two. 
Sometimes, meeting this need means deemphasizing the most technologically interesting portions of the invention. For example, it may be advantageous to characterize an invention based on a unique combination of inputs and outputs that must exist in any implementation of the invention rather than as a computational algorithm that occurs deep within the system. 
Know your target. Equally important is knowing the target of the patent. Who are the competitors who may infringe the patent? Who are potential licensees or business partners that will need to be persuaded of the value of the patent? Whomever the target, claims should be focused on that target. If a patent owner wants to prevent a particular competitor from developing the same or similar product, but it is difficult to broadly characterize inventive aspects of the product, claims might be focused on methods of making the product. If a patent owner wants to prevent a competitor from using the product, the claims might cover methods of using the product.  All of these questions are ones an experienced patent attorney can help you answer and resolve when it comes to drafting the claims.
An otherwise beautiful picture might be marred if the target is out of focus. Particular problems can arise when claims mix elements or concepts in an imprecise way. Problems can arise if the claims are not focused on a product, as used or sold solely by that target, or a method performed solely by that target. A method claim, for example, requires that all of the steps be performed by or under the control of the target. This fact has tripped up more than one potential infringement suit.
Know who is performing the steps. Of course, there is no case of infringement (no one to sue) unless there exists an agency relationship or other contractual obligation to perform the steps. While seemingly straightforward, this rule is frequently violated with computer technologies where claims may recite functions that are implemented in a computer operated by one company networked to a computer operated by another company – though similar problems can arise for other technologies.  
In the 2010 Federal Circuit case Akamai Techs., Inc. v. Limelight Networks, Inc., the claims were to a method of storing content. Limelight (Akamai’s direct competitor) was accused of benefitting by using exactly the same method. However, Limelight avoided liability because it did not attach tags to the information, which was a step of the claimed method. The Federal Circuit concluded that Limelight was not an appropriate target of an infringement suit even though Limelight’s customers did attach tags, which allegedly allowed Limelight to perform the rest of the steps of the claimed method.
Similar problems can arise for other claim formats. In a Federal Circuit case decided this past January (Centillion v. Quest), the claims were drafted to cover a system. Predominately, the claims recited elements of the system that were maintained by the service provider who was the target of the infringement suit. Unfortunately for the patent holder, the claims also recited a user’s computer. Because the service provider did not control that user’s computer, the service provider could not be the target of the suit for infringement. 
In this case, it is only end users who brought together all elements of the claim, making them the appropriate target of an infringement suit. However, there are many reasons that having claims that target individual users can substantially diminish the value of a patent. A remedy may only be available against parties scattered around the country or who are also customers of the patent holder. 
Other Ways to Deliver Value
Of course, these are just a few of the claim drafting pitfalls a good patent attorney will be constantly working to avoid. Choices for what to include in a claim can create questions about the validity of a patent that can be equally devastating to efforts to enforce a patent. The claims, of course, must avoid the prior art. In addition, the claims must avoid both apparent and latent ambiguities. For example, defining an inventive structure based on how it will be used can lead to trouble if the claim is drafted in such a way that it is ambiguous as to whether the claim is infringed when the structure is created or when it is used. Such was the holding in In re Katz Interactive Call Processing Patent Litigation, a Federal Circuit decision handed down in February of 2011. 
While the claim is the name of the game, so to speak, there are many other things that a good patent prosecutor must do to deliver a valuable patent at the end of the day. Each element of the claim, for example, must be supported in the patent specification. The specification must describe how to make and use the invention as it is claimed. While it is important to provide a description of each element, and perhaps several specific examples, patent prosecutors should, again, think expansively – looking ahead to what may need to be added to the claims during prosecution. 
As just one example, a good patent drafter should establish a hierarchy of words when writing the specification, with some referring to broad concepts and others referring to more narrow implementations. For example, one might describe the beerbrella mentioned above as a broader apparatus for shading a beverage, having a specific example of an umbrella for shading a beer bottle. In this way, the patent attorney will have a palette of characteristics of the invention from which to choose.   Such a palette may be essential to crafting a valuable claim as the patent attorney negotiates with the USPTO to define the scope of the claims that broadly cover the invention, while distinguishing the prior art.
Keep in mind, a valuable patent is one that protects an inventor’s creation—possibly years after the patent is drafted. A good patent drafter will bring together the art and the science to do just that. The goal, of course, is to have a patent that is more like a fine painting than a velvet Elvis. By crafting claims, and a supporting specification, the value of the patent should appreciate along with the technology the patent is intended to protect.

Pressing The Patent Reform Panic Button

Rumor has it that the Senate will vote on the House Patent Reform bill (HR 1249) this week. The Senate is scheduled to vote on the procedural issue of “cloture” on the bill in its first roll call session on Tuesday, September 6, 2011 at 5:30 pm. The cloture process limits further debate and precludes new amendments after the vote, although amendments may be introduced on Tuesdaty before the vote. If the Senate approves the House bill without amendment, the Leahy-Smith America Invents Act could become law within a few days. (I still don’t believe it!)
The full text of HR 1249 is nearly 100 pages long, and different provisions have different effective dates, and will be more or less important to different groups. In this article, I outline the effective dates of some of the provisions of interest, based on my understanding of HR 1249.
Because of the potential significance of this law and the complexity of HR 1249, I remind my readers that this article does not provide legal advice, but rather is intended to spur further review and discussion.
General Effective Date
The default effective date set forth in HR 1249 is one year after the date of enactment, with applicability to patents issued on or after that date.
Effective Immediately
  • USPTO Fee Setting Authority (on a cost recovery basis)—but fee diversion remains possible.
  • Ban On Tax Strategy Patents—effective immediately and applicable to pending applications.
  • Ban On Patents To A Human Organism—effective immediately and applicable to pending applications—so you might as well maintain your basement Frankenstein as a trade secret!
  • Changes to requirements for standing to bring False Marking cases and marking requirements—effective immediately and applicable to pending proceedings.
    This means that standing will no longer exist for virtually all pending false marking suits, requiring their dismissal
  • Change of Inter Partes Reexamination standard—effective immediately and applicable to any requests for inter partes reexamination filed on or after that date, the standard for inter partes reexamination will change from “substantial new question of patentability” to “a reasonable likelihood that the requestor would prevail” with respect to at least one of the challenged claims.
  • Appeal of Board decisions in ex parte reexamination to Federal Circuit only—effective immediately and applicable to any pending or subsequent Board appeal.
  • Best Mode violation no longer a basis for invalidating a patent—effective immediately and applicable to proceedings commenced on or after the effective date.
  • Changes to Prior Use Defense—effective immediately as applied to any patent issued on or after the date of enactment.
  • Limitations on joinder of defendants in infringement actions—effective immediately and applicable to all actions commenced on or after the date of enactment.
  • Exception to Patent Term Extension application deadline if marketing approval is transmitted after 4:30 pm on a business day—effective immediately and applicable to any pending or subsequent Patent Term Extension application, or any Patent Term Extension application subject to judicial review on the date of enactment.
Effective After 10 Days
  • 15% surcharge will be added to all patent-related fees, including patent maintenance fees.
  • The USPTO is to set a Prioritized Examination Fee of $4800/$2400.
    (I expect the USPTO to quickly implement the “Track I” prioritized examination program, in accordance with the regulations set forth in the April 4, 2011 Federal Register Notice.)
Effective After 60 Days
USPTO to impose a $400/$200 surcharge for patent applications not filed electronically.
Effective After One Year, But With Retroactive Effect
  • Revised Ex Parte Reexaminaton procedures—effective after one year and applicable to any patent issued before, on or after that date.
  • New Inter Partes Review procedures (based only on patents or printed publications under 35 USC § 102 and/or 103)—effective after one year and applicable to any patent issued before, on, or after that date.
    A petition for inter partes review will have to be filed after the later of 9 months after the patent grant date or after the termination of any post-grant review proceeding. Competitors may wish to consider monitoring pending applications now, and begin assessing whether an inter partes review proceeding may be appropriate.
  • Transitional Post-Grant Review procedures for Business Method Patents—effective after 1 year and applicable to any covered business method patent issued before, on, or after that date, unless a petition for post-grant review could be filed.
  • Filing By Assignee—effective one year after the date of enactment and applicable to any application filed after that date (apparently without regard to priority date).
  • Elimination of requirement for no “deceptive intent”—effective one year after the date of enactment and applicable to all proceedings commenced on or after that date (apparently regardless of the filing/issue date of the application/patent at issue), errors in inventorship, errors being corrected in reissue applications, and the failure to obtain a foreign filing license can be corrected without averring that the error(s) arose without deceptive intent.
  • Preissuance Third Party Prior Art Submissions—effective after one year and applicable to any pending application, a third party can submit prior art before the earlier of a first Office Action on the merits, Notice of Allowance, or within 6 months of the application’s publication date.
    (Current 37 CFR § 1.99 requires third party prior art submissions to be made within 2 months of publication and prohibits any discussion of the prior art, while the new law requires a concise explanation of the asserted relevance.)
Effective After One Year, But Strategies Should Be Developed Now
  • New Post-Grant Review procedures (based on any ground for challenging validity)— effective after one year under the transitional provisions for certain business method patents, and then effective generally to patents encompassed by the first-to-file provisions, e.g., patents granted from applications with priority dates on or after 18 months after the date of enactment.
    A petition for post-grant review will have to be filed within 9 months of the patent grant date. Competitors may want to consider monitoring pending applications now, and begin assessing whether a post-grant review proceeding may be appropriate.
  • Pending Interference Proceedings—The current provisions of 35 USC §§ 102(g), 135 and 291 will continue to apply to applications that are not affected by the first-to-file provisions (e.g., applications with priority dates prior to 18 months after the date of enactment). However, the USPTO will determine the circumstances and procedures under which a pending interference could be dismissed without prejudice in favor of a post-grant review proceeding.
Effective After Eighteen Months, But Strategies Should Be Reviewed Now
  • First-To-File—effective 18 months after the date of enactment and applicable to any application with an effective filing date on or after that date.
    To the extent that the first-to-file provisions eliminate or curtail the current one year grace period afforded by 35 USC § 102(b), this means that companies have at most 6 months to educate their inventors about the elimination of the grace period and the importance of filing a patent application before making any public disclosure of the invention, and to develop and implement appropriate safeguards against pre-filing disclosures.
    (Yes, there are exceptions to the first-to-file provisions, but their precise meaning and scope are sure to be litigated for years to come.)
  • Derivation Proceedings—effective 18 months after the date of enactment and applicable to any application with an effective filing date on or after that date.
    A derivation proceeding can be brought by a later applicant who alleges that an inventor named in an earlier application derived the invention for an inventor named in the later application. A petition must be filed within one year (or 364 days?) of the first publication of a relevant claim, and must be supported by substantial evidence. This means that applicants concerned about derivation should have procedures in place to monitor the claims of newly published applications.